/

UTJ Viewpoints
  • Find us on Facebook
  • Follow Us on Twitter
  • Watch us on YouTube
  • Follow Us on Instagram

What is a Legitimate Opinion, and What is at Stake in the Conversation

Converts/Conversion, Denominations, Modern Judaism, Philosophy

by Rabbi Alan J Yuter

Disclaimer: The opinions expressed here are that of the writer and do not necessarily represent the views of the Union for Traditional Judaism, unless otherwise indicated.

While Jewish religious doctrine focuses upon what is taken to be divine law, to be studied with sincerity and urgency, most decisors pick the opinions that resonate to them and adopt legal positions to which they are ideologically or socially predisposed, choosing to ignore the views that are not socially appropriate, that offend sensibilities, and which do not reflect higher principles. Actual real-life decisions often reflect social approval and communal acceptance criteria, and ignore the religious value of both questioner and quest.

We will consider first the ideal framework regarding legitimate opinions, we will then turn to Orthodox Judaism’s acceptable parameters of pluralism, which will be followed by important illustrative cases, all of which turn upon the definition of these parameters. Specifically, Professor Saul Lieberman’s criticism of my own revered and beloved teacher, Prof. Baruch A. Levine’s senior sermon and Rabbi H. Lookstein’s entering a Church for an interfaith service will be unpackaged. We conclude by searching for a definition of what qualifies as an illegitimate opinion, a view that is not really compatible with the Judaism of the Written and Oral Torah. We will focus upon the learned Blog of Rabbi Gil Student, Hirhurim.[Musings]

1. The Ideal framework

Rabbi Joseph Soloveitchik suggested that there are two kinds of Tradition, the Maimonidean normative order, with higher norms, de-oraita laws, middle range norms, de-rabbanan rules, and local folkways, minhagim usually but less precisely called “customs.”

Legal orders have two kinds of rules, posits H.L.A. Hart: [1] rules of obligation, in Judaism, called mitsvot, or commandments or precepts. God says/commands in the Torah, the contract between the Creator and Israel, the system of mitsvot. Higher grade norms determine the validity of lower norms. Just as a law of the State of Maryland may not override Federal law, unless there is a legislated statutory exception, rabbinic law may not override Torah law without a legislated statutory exception. Similarly, a folkway/custom may not override a de-oraita or de-rabbanan law without statutory exception. [e.g., matters of business convention, where customary usage is authorized to override official statute].

[2] There are also secondary rules called “rules of recognition,” whereby the validity of a legal norm is vetted. A valid rule must be promulgated and violates no higher norm in the legal order. All post-Talmudic rulings, being folkways/customs, are legitimate and valid if they do not violate higher norms and are accepted as custom by the living community. [The Concept of Law (Oxford: Clarendon, 1979, 97-107, Maimonides, Introduction to Mishne Torah]

Rabbi Soloveitchik contends that there is also a folk culture tradition that is also religiously binding, basing himself on Deuteronomy 32:7, “we ask our father, he will tell us, our zeqenim, [elders, grandfathers] they will say/command us.” That such “tradition” exists amongst Orthodox Jews is beyond question. [see “Two Kinds of Tradition (Hebrew) Shiurim le-Zecher Abba Mori (Jerusalem: Aqivia, 1988), 220-239] This de facto tradition’s de jure normative valence is the subject of this paper. Literally [= peshat], the Scriptural passage should be read “ask your daddy, he will tell you, your granddaddy, he will say to you.” That conversation’s plain sense context is not tradition, but history! The first part of the verse has two stiches, “recount [following the Akkadian and Ugaritic meaning of the root zkr, as attested famously at Ps. 145:7] “recount the days of antiquity, understand the years of [each] generation.” The Hebrew word for understand, binu, is connected to years, shenot, alluding to change and comparison. Moses may be understood as commanding that we first learn chronology, yemot ‘olam, and then understand the chronology’s significance by engaging in historiography.

The Oral Torah cites this passage to justify the Hanukka candle blessing, whereby the celebrator praises God for the sanctity giving rite of kindling the Hanukka candle. Since the Hanukka event is post-biblical, how is it that God commanded such a blessing? Deuteronomy 17:10 finds God commanding Israel to obey the commands of the Israelite supreme court; Deuteronomy 32:7 is understood by the rabbinic homily on zeqenecha ve-yomeru lach, to be taken as “your elders, [i.e., the supreme court] will command you, understanding the semitic root amar as “command, as in Aramaic, Arabic, and occasionally, Biblical and Rabbinic Hebrew.

Rabbi Soloveitchik’s creative, innovative midrashic reading of the Written Torah canon enjoys no precedent in the Oral Torah tradition that I could find, and I conjecture that his idiosyncratic reading of Deuteronomy 32:7 is motivated by a concern that without mimetic culture tradition, halakhic religious culture and community are not sustainable. On one hand, any act not forbidden is permitted, authorized, and is therefore a legal right, following mEduyyot 2:2; appeals to the canon that find no canonical precedent, the authorization of an individual rabbi to change Jewish law by means of a midrash halakha that has not been approved by the supreme court is not a legitimate or valid rule of Halakhic recognition.

Take for example the issue of women’s reading Megillah for men on Purim. The Talmud rules that women and men carry the same identical obligation to read the Megillah. Women would therefore be permitted to read Megillah for men.

Three responses to this issue are possible. We may permit the women to read Megillah for men, because the Oral Torah permits and authorizes the act, we may disallow the reading by women for men because we believe that the practice will be socially disruptive in our communities. We are permitted to forbid the permitted on policy grounds; an act that is legally permitted may not by socially appropriate. The first response reflects the Halakhic ideal; the second, legitimate Halakhic flexibility when needs are pressing. We may also invoke “Tradition” in order to forbid the practice because it offends our sensibilities. But this response is not legitimate because our sensibilities are not “Tradition.” God did not command Israel to reify its sensibilities into Covenant.

In the High Middle Ages, when women’s role in the Roman Catholic Church was becoming limited, women’s role in the synagogue was also undergoing constriction. It seems that it would be an error to invent a claim, and a Talmudically unattested commandment blessing that states that women are obliged to hear but not read the Megillah. The Oral Torah canon understands the Megillah obligation [1] to fall on both men and women and [2] the obligation for both women and men is reading. While it is true that the Tosefta denies women any obligation regarding the Megillah reading, the Babylonian Talmud by all normative accounts trumps the Tosefta. [See Rabbi Avraham Weiss, “Women and the Reading of the Megillah,” ed. Jacob J. Schacter, The Torah U-Madda Journal VIII (1998-1999 (New York, 1999), pp. 295-310, for the masterfully presented, cogently conceived, and on the merits irrefutable claim that women may read Megillah for men].

In North Western Europe, it is suggested that we must nevertheless take the Tosefta view into account and strike a compromise:

  1. women have an obligation regarding Megillah, following the Bavli;
  2. women may not read the Megillah for men out of respect for the Tosefta;
  3. a new, unprecedented blessing is initiated, al mishm’a megilla, on “hearing the Megillah.”

This position comports well with Rabbi Soloveitchik’s second sense of tradition, but it violates R. Soloveitchik’s first and Maimonides’ only sense of tradition:

  1. mimetic usage could have been affirmed; rabbis have a right to forbid the forbidden but may not forbid acts that are mandated/commanded.
  2. the Bavli trumps, supersedes, and overrides the Tosefta the Bavli’s alternative norm is clearly stated.
  3. If halakhic piety, probity, and gender propriety were relevant issues to medieval Ashenkenazic Judaism , than the artificial commandment blessing, “on hearing the Megillah, should not have been authorized.

Given Judaism’s rules of recognition being what they are, the following questions need to be addressed:

  1. Does the Tosefta carry a valence sufficient to override the Babylonian Talmud?
  2. May post-Talmudic rabbis invent new blessings, and if they may, why may we not do so? We recall that Rabbi Soloveitchik retains liturgical Hebrew poetry but outlaws initiating new poetry in modern times. If medieval “orthodox” rabbis are authorized to invent new blessings, why are the Conservative rabbis who do so ruled to be out of order? And if the Conservative rabbis who invent new blessings out are indeed out of order, what makes the Medieval “orthodox” rabbis really Orthodox?
  3. Until a rule of recognition is offered to justify this policy of reifying culture tradition into a virtual covenant mandate, questions regarding this policy, whereby Talmudic principles are reconstructed to justify social ends, then thinking Jews will question the moral authority of its rabbinates. “Tradition” has now become the magic world that stifles conversation; it is the retort of last resort.

We are not denying the flexibility of Jewish law; we are objecting to the manipulation, misapplication, and misrepresentation of Jewish law. A communal Orthodox rabbi has a right to de-authorize women’s Megilla readings for several reasons:

  • We do not want to pander to feminism
  • The practice if implemented is socially disruptive
  • We will alienate the most committed core of our community
  • In the folk religion on the ground, the theoretically permitted act will undermine our social Orthodox identity. [I allowed women’s megilla readings. Men who wish to attend were required to sit in the women’s section if they wished to discharge their Megillah obligation in that setting] because the women take center stage in the men’s section.

In order to bring Jews back to religion and observant practice, Maimonides allows for the suspension – not abolition – of Biblical law. [Mamrim 2:4] Thus, while Torah law cannot condone the use of a combustion engine automobile on Shabbat, the emergency principle may be invoked to justify inconsistency in an emergency setting. Therefore, when Rabbi Louis Ginzberg permitted family seating in the synagogue, [Collected Responsa] and when Rabbi Aaron Lichtenstein argued that it is better that Jews in far away places, “Dallas and Dubuque,” drive to the Temple on Shabbat in order to avoid total assimilation, they were making the same realistic claim.

There is in Judaism a set of public terms, idioms, and concepts in Jewish law. The five books of Moses, i.e., the Torah, present two alternative, overlapping, and necessary versions of “religion,” the mystical and the rational. The mystical religion emphasizes the religious spiritual enterprise, a hierarchical chain of being, and leaders who have charisma and followers who do not. This religion uses choreography, i.e., smells and bells, pomp and circumstance, images and melody, to transmit the numinous religious experience, a sense of transcendent enchantment, and an encounter with eternity. This is the Torah religion that is projected, promulgated, and presented by the functioning priests. The other religion, the “religion” encoded in Deuteronomy, is rational, the speaker is Moses and not God, and the narrator exhibits what Professor David Halivni calls the “predilection for a justified law.” Deuteronomy’s setting, unlike the setting of Leviticus, is mundane and disenchanted. God is not revealed in the sacred sanctuary but in the potential majesty of the challenge of every day. By referring to Deuteronomy as the “Second Law,” a Mishneh Torah, the rabbis of that Judaism in antiquity that composed the Mishnah, argues forcefully that God’s religion, Torah, no more and no less than the Lord’s word, [Isaiah 2:3] is not located in the person of the holy, charismatic human, but in the recorded words of the sacred object, the covenanted, canonical text.

Consider the differing Judaism’s of Maimonides and Nahmanides. For the latter sage, being holy requires that the law be observed, and more so. Leviticus 19:2 commands that Israel “be holy.” But the Scriptural passage does not say, teach, or prescribe how to be holy. Nahmanides sees the law of Israel to be a necessary but insufficient minimum for pleasing God. One must not be a law abiding scoundrel and stay away from impurity. For Levitical religion, impurity taboos possess potency and assume an enchanted reality. In Deuteronomy and rabbinic “religion,” impurity is a legal rather than a metaphysical category. We are often told that it is improper to judge the great rabbis of the past. If such judgments are indeed improper, it is because a hierarchical chain of being is assumed, where those higher on the political theological food chain are immune from being questioned by those hierarchically beneath them. Personal charisma bestows authority; the manifest meaning of the plain sense of sacred text does not. The claim that “It is not in Heaven,” [Deuteronomy 30:12] for Nahmanides refers to the possibility of repentance because authentic Torah is proclaimed by the charismatic and is not parsed in a collegial conversation regarding the meaning of the canonical record. bBaba Mesia 59b tells us that it is the Torah—and not the ability to repent—that is not in Heaven. Note well that for Nahmanides, deeply held feeling and the sense of inspired intuition are sources of Torah. Maimonides claims that the only way to be holy is to obey the commandments. [Moreh Nebuchim 3:7] Unlike Nahmanides, whose charismatic intuition is taken to be normative without argument or predilection for justification, Maimonides actually cites his source in the canon for his disenchant demonstration of normative Torah doctrine, Safra Qedoshim 10:9, which maintains that sanctity is acquired by commandment observance and implicitly, not by acts that are “felt” to be normative by charismatic characters. While there may indeed be support in the canonical trove for the Nahmanidean position, I have unhappily been unable to find it. However, in addition to the Safra source cited above and corroborating the Maimonidean position are the rabbinically ordained liturgical idioms, qaddeshenu be-mitsvotecha, sanctify us, using the pi’el, intensive conjugation, and the commandment blessing formula, asher qiddeshanu be-mitsvotav, where the celebrant of a precept praises God for the opportunity to become holy by means of the command performance. Ironically, this doctrine is actually Scriptural and in no way an invention of the rabbis. In the priestly context of Numbers 15:39, which ordains that the covenanted Israelite don liturgical tassels that [1] remind the Israelite to observe the commandments, and “to become thereby holy to God.”

Maimonides’s pre-Weberian claim that this world is disenchanted, that holiness is the acquired result of commandment observance alone, is explicitly justified by a canonical citation and further corroborated by the sourced citations recorded above. Nahmanides’ alternative claim, that intuitionally derived ritual rejections of this world are also sources of sanctification is not accompanied by attestation or demonstration. The idiom “sanctify yourself with what is permitted to you” may be taken in distinctly different Maimonidean and Nahmanidean ways. For the former, by only engaging in permitted activity, one obeys God and becomes holy; for the latter, the phrase should be taken to mean that one becomes holy by forbidding everything that is forbidden and some things that are permitted. The sad fate of Abihu and Nadab [Leviticus 10:1] indicates that defining divine dictates by intuition rather than a reasoned reading of the Torah literary canon is theologically incorrect, problematic doctrine.

That Maimonides’ view, that Torah propriety is determined by commandment observance exclusively, is a legitimate opinion because it is corroborated by the canon. If we claim that the Nahmanidean view is also a legitimate opinion, we must explain why this is so. If we accept a claim merely because it was declared by a divinely inspired, intuitionally endowed mystical charismatic, we are assigning to Nahmanides an infallibility greater than that enjoyed by Moses b. Amram, Israel’s first Moses. Professor Menachem Kellner, in Maimonides’ Confrontation with Mysticism (Oxford and Portland, Oregon: Litman Library of Jewish Civilization, 2006), chapter 10, concedes that the mystical view is taken to be more popular. But what makes the Maimonidean view less “traditional” than Nahmanides only indicates that folk religion Orthodoxy, goes undiscussed. As noted above, R. Joseph Soloveitchik affirms folk tradition, and his erudite son, Prof. Haym Soloveitchik bemoans the fact that the Jewishly legitimate mimetic culture Orthodoxy is being superseded, to his view, by a very parochial book culture. We also note that Rabbi Menachem Genack insightfully associated R. Soloveitchik’s intuitive approach to Jewish Tradition with Nahmanides’ view, that the great rabbi’s intuition is a source of Torah law.

Nowhere in the canonical Oral Torah rabbinic library is charismatic intuition a normative source carrying the valence of a divine mandate; the most that could be claimed is that intuition provides the inspiration that moves the scholar to develop a demonstrated, deductive opinion. Therefore, according to the Oral Torah canon, appeals to intuition and charisma are Jewishly illegitimate. According to Judaism’s canonical library, which is both accessible and textual, Maimonides’ view makes sense, but Nahmanides’ view does not.

The Case of Professor Baruch A. Levine’s senior sermon.

On December 11, 1954, Baruch A. Levine, my doctoral sponsor at New York University, delivered his senior sermon at the synagogue of the Jewish Theological Seminary of America. This event is reported in Elijah J. Schochet and Solomon Spiro, Saul Lieberman: The Man and his Work (New York: JTSA, 2005), 163-165, and one version was reported to me in a personal communication by Professor Levine himself. It must be remembered that both individuals, Professors Levine and Lieberman, are renown for their intellectual honesty and scholarly integrity. According to the Schochet and Spiro report, Prof./then student Levine accused the patriarch Jacob, from the Seminary pulpit, of being guilty of “deviousness,” a rather unflattering designation. This world-class to be Bible scholar did not argue his case from intuition, culture, etiquette, or “Tradition”; he made his claim based upon the Biblical narrative’s literary facts, that Jacob’s very name means “crooked,” that Jacob conspired with his mother to deceive his father regarding the birthright that was by protocol due his to brother, and Esau, who complained, “This one [Jacob,Yaaqov] gypped me [ya’aqveni] twice.” Outraged by what he believed to be the student’s irreverence and arrogance, in Schochet and Spiro’s words, Professor Lieberman claimed that “Levine may have been guilty of vainglory in denigrating the sacred.”

These words of public rebuke were presented by Prof. Lieberman to the entire senior Jewish Theological Seminary Talmud class, a most humiliating experience for the senior rabbinical student.

Both Professors Levine and I continue to revere the late Prof. Leiberman. I personally maintain and, in a future paper hope to demonstrate, that Prof. Lieberman charted a path in Jewish life and learning that speaks to the essence of a sincere, authentic modern Orthodoxy, rather than the Conservative Movement with which he was academically affiliated. With time, these two Jewish giants made their peace with one another. But King Solomon once said, “there is no one so right in the land that one does only good and does not sin.” [Ecclesiastes 7:20] In Israel’s sacred canon, God denies to God self sovereign immunity in order to endow humankind the right to question God with impunity.

Applying the hermenteutic of Oral Torah Judaism, no biblical or rabbinic norm passage forbids the practice of challenging heroes, authority persons, or for that matter , God. from Abraham to Ezekiel and Moses to Joshua and from Jeremiah to Job, exercised this right. The claim that it is improper to criticize Biblical heroes is itself improper unless a norm in the Oral Torah is cited. I suspect that a lay person who will criticize a Biblical hero based upon Torah norms will also hold living rabbinic leaders to account, and by conditioning laypeople to obsequious passivity, great rabbis in the Nahmanidean tradition become immune from accountability.

Professor David Berger, an Orthodox historian who is unsympathetic to secular biblical criticism [in private communication], in his “On the Morality of Patriarchs,” in Understanding Scripture, 56-57, seems to confirm Prof. Levine’s reading because he concedes that Jewish medieval Bible commentaries were not shy when expressing their reasoned opinions, “patriarchal immunity from criticism, even in a traditional society, evidently had its limits.” This immunity is grounded in the absence of a prohibition in the Oral Torah.

I believe that Prof. Lieberman’s opinion, that Prof. Levine violated the “sacred,” is itself an illegitimate opinion, even though its author was, for those who knew him, the greatest Torah scholar of the age.

And I believe that Prof. Lieberman’s behavior, publicly rebuking Prof. Levine, was highly improper. In pagan thought, disagreeing with authority people is both theological heresy and political treason. Not so in Judaism. There are several problems with Professor Lieberman’s approach to and reproach of Professor Levine:

  • It is forbidden by Jewish law to shame some one in public, and excellent student that he was, Prof. Levine should have been given the benefit of the doubt. [Maimonides, De’ot, 6] and asked privately, “why did you do that?”
  • By referring to criticism of Jacob as denigrating the sacred, Professor Lieberman reflects a culture tradition bias, like that of his learned cousin, Rabbi Joseph B. Soloveitchik, referenced above, who asks that simple Jews defer to people called Hachmei ha-Masorah,e., sages who have been accepted as masters of the Oral Torah tradition. According to both Oral and Written Torah Judaisms, Jews have sacred acts and canonical deeds but not sacred people who can read the mind of God. Jews canonize books; pagans canonize people, i.e., political power elites. We have demonstrated that in Judaism’s sacred library, acts make for sanctity and not reputation. By denying sovereign immunity to Godself, God goads good mortals not to tolerate the hierarchical heresy of assigning sanctity to charismatic intuition or privilege to political office. Prof. Levine’s criticism of Jacob does not “denigrate the sacred” precisely because [a] his reading is based on the plain sense of Scripture, [b] no norm of the canonical—as opposed to the cultural—Tradition has been violated, and [c] the accusative suggestion that Prof. Levine’s reading is out of order is not a norm in the Jewish legal order, making the unfounded criticism a wrongful act.
  • Professor Lieberman, in the heat of the moment, mentally misplaced the well known view of Rabbi Abraham Ibn ‘Azra, [the correct form of the name in Ibn ‘Azra’s original Arabic], that as long as one is faithful to the Law, one may exercise intellectual freedom when explaining the Bible. Ever the consummate master of philology, Professor Levine was actually arguing that Jacob’s character matured over time. This perspective, lost upon Professor Lieberman in the heat of the moment, is corroborated by Laban’s taunting retort to Jacob’ painful plea, “why have you tricked me,” after being given the unloved Leah instead of his soul mate, Rachel, for a wife. “it is here [in Mesopotamia] not the practice to favor the younger [Rachel] over the older [Leah],” which is precisely what Jacob had done to Esau by gypping him out of the birthright.
  • The statute that Prof. Levine may have violated should have been cited in any rebuke by Prof. Lieberman, which according to Jewish law [a] should have been done privately and [b] should have been prefaced with the probative question, “why did you do that?” These three errors, that
    • The rebuke was public and not private,
    • That the norm Prof. Levine had allegedly violated was not cited, and
    • The question, “why did you do that?” was not asked,

I am certain that Prof. Lieberman realized that he had committed these three wrongs, and by subsequently awarding Prof. Levine the co-prize for the best sermon of the year, Prof. Lieberman, who knew the sources and views cited above, realized that he had acted wrongly and, more importantly, he was honest enough to own up to his error.

There are those who will claim that we cannot have a conversation regarding the patriarchic characters. This opinion is a legitimate matter of personal taste, but it is not a matter of Jewish law. For Jewish law to be violated, the norm recorded in the legal canon and not the mimetic culture sensibility has to be violated. By holding Professor Lieberman, the Jewish Theological Seminary’s greatest scholar and Orthodox Judaism’s preeminent 20th Century Talmudist, to the same benchmarks as other Jews, glory is given the Author of the Law, the One Who sanctifies people through the commandments, and who requires that Jews live a rule of rules and not a rule of rulers.

When conceding [bBaba Mezi’a 59b] that humans and not God, that the finite findings of foibled creatures and not the divine dictate that determine divine truth in everyday life, God also concedes that “my sons have bested Me.” The ethical greatness of Professor Lieberman was that he realized and owned up to his wrong, awarding the “sermon of the year” to the sermon he wrongly condemned, as the prophet says, ve—haya he-‘aqov le-mishor, the crooked, like Jacob, will be made straight, and Prof. Lieberman moved from being a hierarchically superior teacher to the horizontal relationship of a peer who is first amongst equals in the search for Torah truth, which is no less than the insignia seal of God.

Consider the view of Rabbi Tsvi Yehuda Kook, reported by Rabbi Shelomo Aviner, Ateret Yerushalayim website, Toledot, 5770:

 Our Rabbi immensely loved every Torah scholar. He would mention a Torah scholar with an awe of holiness and rejoicing of the heart. When he met many Torah scholars, whether or not they were his students, he would hug and kiss them – just as Yehoshafat, King of Yehudah did (Ketubot 103b). He rejoiced in their honor, and was distressed when they were the subjects of derision or worse, when they scorned others. He was exceedingly severe with one who shamed a Torah scholar, and would not be silent until he objected, even with Torah scholars who stumbled in this matter.  

Our Rabbi stood before his students who were Torah scholars, and would say that the honor of Torah scholars requires one to be fastidious.

Our Rabbi honored every Torah scholar, even he if he disagreed with him, and he instructed his students to act in the same manner. When he heard a student repeat an expression which he himself had used disagreeing with another Torah scholar, he chastised him: “That which is permissible to me is not permissible to you.” Occasionally when he thought that a Torah scholar erred, he spoke harshly, but on subject and with respect. 

[In this context, our Rabbi relied on what is related in the book “Keter Shem Tov” that the Ba’al Shem Tov, founder of the Chasidic movement, had a fierce opponent, Rabbi Nachman of Horodneko, who would constantly criticize him. One time that same rabbi heard his students speaking against the Ba’al Shem Tov, and he castigated them, saying, “How dare you speak that way against a holy man!” They responded, “But you yourself spoke out against him.” He then replied with exceeding severity, “that what that is permissible for me to speak is not permissible for you.”

Note well the words in bold [emphasis mine]. The Orthodox Judaism that privileges intuitive Torah legislates different rules for different people, a doctrine neither attested nor tolerated in the Oral Torah canon [Deut. 18:36]. This doctrine also approaches the violation of affirming “two powers,” or two standards of normativity. [bHagiga 15a] It is my anecdotal experience that every great scholar who was close to and trained by Professor Lieberman was/is meticulously gentle, personally generous, and sensitive in dealing with their students, and Prof Levine was no exception to this rule. We recall that Israel in its canonical version canonizes books, not people.

A major difference between the Judaism of the Written and Oral Torah and popular culture Orthodox Judaism is the way their respective leaders demand to be addressed . According to the former Judaism, the leader is respected according to legal protocols and norms [Maimonides, Laws of Torah Study 5] There is no evidence in the canon for a prohibiting criticism. But two conflicting sources appear in Tractate Shabbat. bShabbat 56a reports that R. Samuel b. Nahmani said that he who says/claims that David sinned is in error. This is an individual report and is presented in descriptive as opposed to normative or command syntax. Those who posit the that is permissible for me to speak is not permissible for youdoctrine posit that R. Samuel b. Nahmani’s opinon is binding law, ignoring and suppressing the alternative view. bShabbat 30a reports that David asked to be forgiven for his iniquity, ‘avon – a delict far more grievous than a sin, or het – which according to Rashi refers to David’s seduction of Batsheva. By arguing that the bShabbat 56a must be construed as a generic prohibition, and bShabbat 30a, be suppressed, in spite of the plain sense of Scripture, one expresses a Jewishly popular but nevertheless canonically illegitimate opinion. Consequently, by ignoring the bShabbat 30a passage, one projects the culture bias that Professor Lieberman accepted uncritically in his criticism of Professor Levine. Both Professors Levine and Lieberman are champions of peshat, the actual philological meanings of words when they were said or recorded. And it is the reasonable reading of the canon’s actual data and not the superimposed, self-serving doctrines that determine that sacred trove’s normative, covenantal claims.

Ever the gracious gentleman and gentle scholar, Prof. Levine realized that his mentor repented of his imprudent denigration of his student’s motives by awarding him the senior homiletics prize, for his sermon. By awarding this prize to his talented, precocious protégé, Professor Lieberman realized that the observation of Rabbi Naftali Berlin, Ruah Hayyim 1:3, that a student ought not to defer to the teacher, for sometimes the student is correct.

The response to Rabbi Haskell Lookstein’s attendance at a Church service in Halakhic context

What happened

The Jewish Telegraph Association reported that Rabbi Haskell Lookstein violated Jewish law and policy by entering an Episcopal Cathedral prayer sanctuary in order to attend the President Barak Obama inauguration service. Also reported is the response of the Rabbinical Council of America, of which both Rabbi Lookstein and this writer are members,

“The long-standing policy of the Rabbinical Council of America, in accordance with Jewish law, is that participation in a prayer service held in the sanctuary of a church is prohibited….. “Any member of the RCA who attends such a service does so in contravention of this policy and should not be perceived as representing the organization in any capacity.”

The Rabbinical Council hereby maintains that:

  1. Christianity is idolatry
  2. entering an idolatrous sanctuary is forbidden by rabbinic law
  3. interfaith services and theological dialogue legitimates the Christian mission to the Jews
  4. and therefore, R. Lookstein’s behavior was improper.

It is forbidden by Rabbinic law to enter a sanctuary where ‘avoda zarah, “alien cult,” mistaken to be “idolatry” but in reality, a “religion” not promulgated by Torah, is practiced. The sources are well catalogued by R. Obadiah Yosef, Yehavveh Daat, 4:45. For the Jewish people, Christianity is “strange religion,” or ‘avoda zarah, there is a rabbinical edict, correctly documented by R. Yosef, that entering a room that is designated for the practice a religion that is ‘avoda zarah foe Jews is forbidden. In light of contextual realities and other positions taken, we shall show that the Rabbinical Council’s taking Rabbi Lookstein to task is inconsistent with other rulings and policies that it affirms and is therefore is therefore an incorrect, and therefore illegitimate opinion.

According to the pre-eminent modern Orthodox sage, Rabbi Daniel Sperber, “How Not to Make Halakhic Rulings,” Conversations 5 (Autumn 2009/5770), 67-68, raises the following questions:

  1. if Christianity is indeed idolatry, why are we not protesting doing business with Christians three days in Israel before [Wednesday, Thursday, and Friday] and three days after [Monday, Tuesday, and Wednesday] their holiday [every Sunday] [see mAZ 1:1-2] and, on their holiday itself, in the Diaspora? [bAZ 7b,11b], why is there no Orthodox protest?
  2. Partnerships with idolaters are forbidden [Sh.A. H.M 166:51] but this ruling is ignored by Orthodox Jews and rabbis. If Christianity is indeed idolatry, then partnerships with them are as disallowed as is the act entering a church sanctuary. And if partnerships are allowed with Christians because Christians are not idolaters, then there would be no restriction regarding entering a church.
  3. These two lenient decisions are grounded in the rulings of R. Jacob Tam [bAZ 2a, s.v. assur], who restricts trade only in idolatrous objects, and Meiri, Bet ha-Behira to bAZ, 48.

While I am personally not persuaded either by the views of Meiri and Rabbi Tam, and I maintain that the restrictive Maimonidean view is probably the theoretically correct view, as R. Yosef concedes, supra., that even for Maimonides we ought not to reside in idol worshiping cities, clearly an impossible situation.

Looking for leniency, citing Taz, YD 141, it is claimed by Rabbi Yosef, supra, without even a scintilla of canonical textual evidence, that non-Jews are not idolaters if they accept the Trinity. This view seems to be shared by R. Isserles, OH 156 and Tosafot to Bekhorot 2a, s.v. shema. [For a great defense of the Trinity being consistent with monotheism, see Anselm’s Monogolion.]

  1. Sperber argues that the restrictive views of Rabbis Soloveitchik and Feinstein refer to interfaith dialogue. This concern is a matter of policy and not law. Please recall that the Orthodox rector of the Jewish Theological Seminary, Rabbi Saul Lieberman, allowed interfaith dialogue on the Seminary’s premisis, and his learning, piety and integrity are beyond reproach. After all, there is no canonical statute forbidding such dialogue. [ See the important essay of Reuben Kimmelman, “Rabbis Joseph B. Soloveitchik and Abraham Joshua Heschel on Jewish Christian Relations,” Edah Journal 4:2 (2004) 1-21]. Because modern Orthodox rabbis look to the facts and not the franchise, decisions are made on the basis of legal principle, and not the charismatic renoun of the opinion holder.

Rabbi Sperber correctly, cogently, and most critically, courageously, argued

  1. that the context of the service was a ceremony of national solidarity and not an act of idolatry,
  2. Rabbi Lookstein sanctified God’s Name because it would look badly if non-Orthodox rabbis were present and Orthodox Judaism absented itself fro the event, and
  3. the Rabbinical Council of America’s press release [cited above] is, at best, irresponsible, and possibly a desecration of God’s name.
  4. the Halakhic mandate for maintaining good relations [darkei shalom] should have been referenced by the Rabbinical but, sadly, was not.
  5. Sperber argues that code law and case law are distinct legal categories. The Rabbinical Council of America chided R. Lookstein because it applied code law uncritically, mechanically, and inconsistently, deferring to own its great sages’ ruling and not ruling with due consideration to the case at hand, taking into account and considering the event’s circumstances. R. Sperber’s understanding of the matter is eloquently congruent with bGittin 57a-b, where the rabbis express their disapproval of Zecharia b. Avqilas’ position, that blemished animals may not be offered on the altar, may not be waived even in special circumstances, i.e. even if and when the angry Roman army might destroy the polity, land, and Temple of Israel if they are slighted. Given the Roman propensity to view any social slight to provide the grounds for what it called a “just war,” the rabbis regretted having deferred to Zecharia b. Avqilas. While I maintain that the theoretical law follows the view Maimonides rather than Rabbis Menahem Meiri, Moses Isserles, and Jacob Tam, we find that these three rabbis are not subject to criticism or for that matter, assessment, as was Rabbi Lookstein. Even Maimonides, Mamrim 2:4, would concede that the law may be waived in special circumstances.

The Rabbinical Council’s treatment of Rabbi Lookstein is an illegitimate course of behavior, given its acceptance of Rabbis Meiri, Jacob Tam, and Moses Isserles as “Masoretic Sages.” The Rabbinical Council’s acceptance of what would seem to violations of rabbinic law, like permitting the women’s modesty wig [bShabbat 64b], clapping and dancing on Holy Days [bBetsa 30a], and praying to angels, to be discussed below, shows that its invocation of “Tradition” is at best inconsistent. Ironically, the late R. Soloveitchik also forbade the married woman’s wing, with no call that violators be censured, even though this rabbinic norm carries equal valence to the norm regarding entering a church. [See https://www.youtube.com/watch?v=qHJOZMe8hNc] If a “reform,” i.e. an apparent violation of Oral Torah law, is accepted by the institutional Orthodox franchise, that “reform” will be accepted as [if it were] “Tradition.” But if a suggested practice deviates from the accepted social norms of the Orthodox street, even if that practice violates no legal norm, that innovation will be rejected. Furthermore, no position that Haredi Orthodoxy maintains will ever be categorized as illegitimate by the “modern” Orthodox Rabbinical Council, like the military draft in Israel of Orthodox men and women, as evidenced by its refusal to endorse the requirement at bSota 44b. For this “Orthodoxy,” correct doctrine proceeds from the unquestionable intuition—and will—of men, but not by a consistent application of the sacred text. R. Lookstein’s “sin” was “violating” Orthodox social taste and not Jewish Law as understood by precedents already accepted the Rabbinical Council of America.

The acceptable framework: the parameters of theological pluralism

In Hakira 7 (2009) the “Zoo Rabbi,” Noson Slifkin examines the following claims:

  1. It is heretical to believe that God possesses a shape or form.
  2. Rashi was a Torah scholar of inconceivable greatness.
  3. Hence Rashi could not possibly have believed that God possesses form. [p. 81

After several pages of meticulous citations, the moderate Haredi Rabbi Slifkin concludes that

“This essay should not be misunderstood: I do not believe it acceptable for a person to believe in a corporeal God. In a future essay, I hope to explain why even if Rashi maintained this view, it can still be rated as heretical to believe it today. Rashi said it, but we cannot. (p. 101)

 Rabbi J. David Bleich believes that there are dogmas in Judaism, against Moses Mendelssohn [With Perfect Faith (New York: KTAV, 1983), p. 1]. R. Bleich adds that the view that the Messiah already arrived during King Hezekiah’s time [bSan 99a] was legitimate in its time but, following the subsequent rabbinic consensus, becomes heretical. [p. 4] Maimonides believed that believing that God has a body is a heretic [Repentance 3:7]. This position follows Slifkin’s, that correct doctrine is determined by contemporary rabbinic consensus and not persuasive textual analysis, which is the position adopted in this study.

Nevertheless, R. Abraham b. David denies that this correct belief is a dogma, because and “bigger and better [authority persons] than he [= Maimonides] believed that God had has a body [ad. loc.]. Note well that while R. Abraham b. David disagrees with Maimonides, which is legitimate, his diction is uncongenial if not disrespectful and to my view regrettable and unacceptable. The implied doctrine suggested by R. Abraham b. David, that religious truth resides not in the religious documentary canon but in the “bigger and better” rabbinic person, does not seem to fit the view that it is the cogency of the claim that grounds Jewish normativity [bHullin 90b]. In R. Abraham b. David’s version of Orthodoxy, plebian rabbis have no right to measure and evaluate great rabbis based upon their own reading of the Torah Law, i.e. to have and to express an opinion. The doctrine that what is permissible to Rashi or Raabad is not permissible to moderns is absurd. God gave one Torah to all Israel. Great men are held to higher, and not lower standards. According to Nahmanidean Orthodoxy, where intuition is the ultimate source of Torah truth, dissent is met with de-legitimating ridicule, not reasoned refutation. There is in this Orthodoxy two sets of hermeneutic rules.

Usually unaddressed by Orthodox Judaism’s latter day heresy hunters is the view of R. Joseph Albo,

But a person who upholds the law of Moses and believes in its principles, that when he undertakes to investigate these matters with his reason and scrutinizes the texts, is misled by his speculation and interprets a given principle otherwise than it is taken to be meant at first sight; or denies the principle because he thinks that it does not represent a sound theory which the Torah obliges us to believe; or erroneously denies that a given belief is a fundamental principle, which however he believes as he believes the other dogma of the Torah which are not fundamental principles; or entertains a certain notion in relation to one of the miracles of the Torah because he thinks that he is not thereby denying any doctrines which is obligatory upon us to believe by the authority of the Torah, –a person of this sort is not an unbeliever (כופר ‘heretic’). He is classed with the sages and pious men of Israel, though he holds erroneous theories. His sin is due to error and requires atonement [Sefer ha-‘Ikkarim, ed. and tr. Isaac Husik (Philadelphia: The Jewish Publication Society, 1946), I, 2, vol. 1, pp 48-50]

Accordingly, as long as one accepts the working principles of Torah, which for R. Albo, God exists, holds humankind accountable, through and by means of a divine Torah [Ikkarim 1:4], one’s opinion is normative, the Orthodox consensus notwithstanding. Consider mSanhedrin 10:1, where one is required not to orally deny [and one is not even required to affirm these doctrines!] the Divinity of Torah and the resurrection of the dead. At HM 25 and 34, Maran Yosef Caro takes a similar position regarding Jewish law. Well intentioned error is subject to correction, and the person who makes the error is not branded as a heretic. The assignation of “heresy” requires the legislation of a Bet Din ha-Gadol, not the consensus of a lesser, self-selected synod. To make the contrary claim, made by Rabbis Bleich and Slifkin, that a Jewishly binding dogmatic theology is determined by the Great Rabbis of the day, is to concomitantly violate the legal norm encoded at Deuteronomy 4:2, that God’s word correctly given from the moment of Sinai, is in no need of additions or subtractions. “Great rabbis’ consensus” applies up to and including Rabina I and Rav Ashi; and is the Talmud of Babylon and not any post-Talmudic consensus that provides Torah’s validating benchmarks.

Therefore, while we agree with R. David Berger, a scholar of Jewish messianism and the Lubavitch Messianist scandal, who argues that the belief that the no longer still living 7th Rebbe, Rabbi Menachem Schneerson, remains the Messiah, is incorrect, unwise, and foolish, following R. Albo, the theologically wrong doctrine rises to the level of error but not of heresy. See David Berger, The Rebbe, the Messiah and the Scandal of Orthodox Indifference (London and Portland: Litman Library, 2001) 131-132. But no supreme court of Israel validated Maimonides’ thirteen principles of faith to legal doctrine. There is no collective “we” that accepted Maimonidean theology, nor was there any collective authorized to accept Maimonidean theology as binding on all Israel. At Shabbat 19:8, Maimonides rules that a woman may wear a wig in an unenclosed courtyard [where there is no eruv]. Given that Maimonides, or for that matter R. Soloveitchik, did not approve of the Tosafist eruv, the selective cherry-picking of Maimonidean opinion comports well with the intuitive doctrine “that which is permissible to me is not permissible to you.” With this method, the intuition of the great rabbi and not the text of the canon is ultimately normative.

Albo’s view of dogma – and he was a biblical literalist – is more moderate and tolerant than most contemporary Orthodox thinkers. I was once chided for advocating the Maimonidean position on divine corporeality because such advocacy would indeed render Rashi a heretic, a socially untenable position. My well-intentioned and well-meaning interlocutor assumed that I even had Rashi in mind; only subsequently did I become aware of and became convinced by R. Slifkin’s careful and more crucially, honest research that determined based on the evidence that Rashi was a corporealist.

Applying the Maimonidean methodology to Maimonides’ own rulings, we find that:

  • The Targumim of Jonathan and Onqolos are indeed anti-anthropomorphic.
  • The rabbis did not however explicitly promulgate a normative doctrine regarding the incorporeality of God.
  • The God of Hebrew Scripture’s early books often portrays God corporeality.
  • Dogmatic Judaism begins in post-canonical medieval, and not rabbinic times.
  • There is no law legislated in the Oral Torah on this matter.       The principle that a negative command violation that does not entail a physical act is not subject to lashes [Deut. 25:2-3], and only one worthy of ashes is considered to be wicked. From here and Kalla Rabbati 5:1, we see that Oral Torah “Orthodoxy” is in reality Orthoprax.

I believe that Chabad Messianism to be in error, but that it may not be classified as heresy. Those who believe that the Rebbe is a divinity are indeed heretics. I avoid purchasing Chabad meat not because of its tolerating Messianic error, but because Chabad’s “enhanced” kashrut standards implicitly supersedes and demean the Oral Torah’s standards that are canonically attested and socially accepted by mainstream Orthodox Jews. This Chabad standard is a communally divisive and socially corrosive policy that conditions the community to regard Chabad Judaism to be “more Orthodox” than others within Orthodoxy. Note well that deviationism on the Left is considered to be intolerably terrible, like R. Lookstein’s entering a church, but Chabad, because of its self-projected Orthodox “image,” gets a pass, as correctly and courageously noted by Berger, 138-9.

Rabbi Berger’s principled stand corroborates our findings; Orthodoxy’s official religion, ‘Torah,’ and mimetic culture religion, are two very different religions. The former is cited selectively by great rabbis blessed with sacred intuition in order to delegitimize deviants who look to the revealed Oral Torah canon rather than to them for guidance.

Praying to angels

According to the canonical bHullin 40a, making offerings to the archangel Michael is zivhe metim, an act of avoda zara, of unauthorized and false religion. Yet the mimetic Orthodox culture religion recites the idiom barechuni le-shalom, “bless me in peace,” and the Malbim to I Samuel 2 argues that one may not argue that it is theologically improper to pray to angels. Popular religion pseudo-Orthodox street culture religion makes the following misplaced points:

  • we are smaller, of lower stature, and less worthy than our ancestors.
  • our great rabbis are so great and so much higher on the Torah food chain that we lesser lights dare not subject their words to our critical review on the basis of our own flawed, feeble, foibled faith.
  • If a great rabbi said something, he must be assumed to be correct.
  • It is rude, arrogant, and disrespectful to impute error to great rabbis. We must view them – and obey them – as if they are infallible.

These four points may be parried by the following official religion Halakhic retorts:

  • Deuteronomy 13:1-3 affirms the obligation [not the right!] to challenge the false prophet. The Jew owns the Torah and the right to read and apply it. [Deuteronomy 33:4]. The Jew praises God for the gift of fact gathering or knowledge, in Hebrew, da’at, and understanding the difference between the facts, in Hebrew, Any Jew who has these gifts is authorized to use them, as did Abraham who challenged God regarding the ethics of destroying Sodom. [Gen. 18:25]
  • Absent an explicit rule in the oral Torah canon forbidding judging rabbinic comments against the benchmarks of reason or a reasonable reading of the canon, that claim, that criticism of the authority is illegitimate is, by dint of its being an unsourced, unattested, and therefore non-existent norm, is itself an egregiously illegitimate opinion, which violates Deut 4:2, adding to and disfiguring the Torah. For example, the claim that cigarette smoking cannot be forbidden because great rabbis smoke is an illegitimate opinion. The actions of “great” rabbis only count when there is no statute to the contrary regarding their behavior and preserving one’s health is a Scriptural mandate [Deut. 4:15].
  • If Samuel in his day was the moral and religious authority equivalent of Jeptath in his, and if Jewish law may not be reformed or reconstructed because of “progress,” then God’s revealed statutes are codes and maps whereby the judges worthy of judgment are held to account. [bRosh Hashanah 25b].
  • Law is determined by the Court’s legislation and reasoned argument. If we justify praying to angels in the face of bHullin 40a, why do we castigate R. Lookstein? On one hand, we indeed have the obligation to honor God more than people[Proverbs 21:30]; on the other hand, we should take our words and monotheism more seriously than we do. This being said, I suspect that people who recite “barechuni le-shalom” are not taking their words literally. According to Jewish legal doctrine, we accord the “other” the benefit of the doubt [mAvot 1:6]. It is therefore rude to Jews and arrogant to God to disallow all Israel to holding its leaders to review against the public benchmarks of the Written and Torah law.

If it is permitted to Maimonides and Rabbi Abraham b. David to argue over God’s corporeality, then it is our right to do so as well in our time. My own, personal resolution of the issue is that:

  • Maimonides view, that God is incorporeal, is correct and those who held that God may appear in bodily form, like Rashi and the Tosafist R. Moses Taqu, are in theological error. In 12th and 13th Century France, everyone believed that God had a body.
  • However, [a] since there are many Scriptural passages that can be read as advocated divine corporeality, [b] the Oral Torah rabbis do not seem to have legislated a theological norm outlawing the doctrine, and since everyone not Jewish in Catholic Spain and France from 1000-1300 CE believed that God must be conceived corporeally, this doctrinal error is an instance of ones, the coercion of environmental circumstance, making Maimonides’ view that such a belief is heresy a radical and unnecessary if not understandable overstatement.
  • And if we feel compelled to justify rabbis who believe that God is corporeal or that we may pray to angels—an act that is illegal and heretical if one directs one’s devotions to an angel or a deceased saintly person, then we should accept with equanimity Rabbi Lookstein’s entering a Church. In Yonoson Rosenblum Rabbi Sherer: the paramount Torah spokesmen of our era (Brooklyn: Masorh, 2009), it is reported that R. Ahron Kotler told R Sherer to shave his beard and to wear leather shoes when appearing before President John F. Kennedy on the Fast of Av. R. Kotler’s directive flies in the face of mTaanit 4:7, that forbids shaving during the week of the Ninth of Av. If R. Kotler’s dispensation is proper for R. Sherer, then R .Lookstein did nothing wrong; and if R. Lookstein acted wrongly, [a] should R. Sherer be censured and [b] would the Rabbinical Council leadership have the nerve, audacity, or courage to censure Rabbi Kotler for deviating from the letter of Oral Torah law? In Jewish law, there is but one law for all Jews. The doctrine “that which is permissible to me is not permissible to you” is, noted above, unattested in the Oral Law.
  • The Rabbinical Council of America’s condemnation of Rabbi Lookstein is to my mind an illegitimate non-halakhic act, for two compelling reasons:
    • By being silent or justifying praying to angels, what if taken literally would be a biblical offense, and attacking R. Lookstein for entering a Church, a rabbinic offense for which license may be situationally justified, the Rabbinical Council is applying – and confusing – parochial policy with pure law. The Rabbinical Council talks the “talk” of Torah tradition but prescribes the folk religion of the Orthodox street. To paraphrase the patriarch Jacob, “the rhetoric sounds Orthodox, but the hands’ on religion is the sociology of Jewry’s parochial practice,” the theoretical God calls from Sinai, but the real commander is the reconstructed projection of the people, an unorthodox doctrine indeed that finds its origins Emile Durkheim and Mordecai Kaplan. After all, who in the Rabbinical Council would dare challenge R. Kotler’s command to Moshe Sherer to be clean shaven on the Ninth of Av?

The Paradigm for the limits of opinion legitimacy in the Codes: The Case of Praying to Angels

Jewish law defines a wicked person [rasha] to be ineligible to serve as a halakhic witness. Unless one’s deeds reach the threshold whereby the perpetrator is considered to be wicked, the wrong being performed does not disqualify the person of the perpetrator. According to Exodus 23:1, one “may not place one’s hand [ = legal capacity = serve as an accomplice] with a wicked person [rasha] to be a violent [ = an improper, an illegal] witness.”

As noted above, Deuteronomy 25:2 defines the case where “if the wicked person is worthy of lashes,” indicating that lashes are administered when expiating the sin the wicked person’s bad behavior. [bSanhedrin 10a, bMakkot 2b]

The definition of “wicked person” is supplied by the Oral Torah canon. bSanhedrin 27a reports that Rava taught “rasha, de-hamas baeinan,” the wicked person is one whose actions reach the threshold of hamas, violence. Taking interest on a loan from a Jew, a negative command [Exodus 22:24], renders the perpetrator, the taker of interest, a wicked person, as well. [bSanhedrin 25a]

In his legal compendium, Maimonides explicates the canonical material with an aim to clarify the legal norms encoded in those materials. He issues the following rulings:

  • if one knows that a person is a wicked fellow, one may not knowingly serve as a witness with that person, even if the judges are unaware of that person’s wickedness.
  • The Biblical threshold of wickedness is reached when one performs an act the penalty for which is malqut [=lashes]
  • Therefore, violating a law the punishment for which according to the Torah is lashes, renders the perpetrator a bad Jew, a wicked person, and therefore ineligible to serve as witness according to Torah law.
  • Violating a rabbinic rule renders the perpetrator ineligible to be a witness according to the rabbinic understanding of Torah law.
  • These violations must be performed with intent; the acts, in order to disqualify the perpetrator from being a kosher witness and Jew with proper bona fides, are to undertaken due to weakness—he/she feels compelled to commit the wrong or she/he does the act out of spite, rejecting thereby by the wrongful gesture the binding force of Torah law as a discrete legal order [Maimonides, ‘Edut 10:1-3]

The relevant rules are summarized in Shulhan Aruch Hoshen Mishpat 34:

  • a biblically designated wicked person is adjudged guilty of violating a biblical law, the expiative punishment is at least biblically mandated lashes, be the wrongdoing false testimony, selling non-kosher meat as kosher, theft, robbery, taking interest on a loan from a Jew
  • the intent behind the wrong must be present-sinning out of weakness or spite
  • those who wrongly understand the law, as those who incorrectly believe that Jews may bury the dead on the first festival day—the obligation to bury falls on the second diaspora festival day, which for the burial of the dead, a biblical requirement—renders the second festival the legal equivalent of a secular day.
  • Similarly, taking interest wrongly, to support error, does not disqualify the perpetrators because their error is unwitting. Furthermore, the violated norm must be known as a law and was nevertheless willfully violated.
  • Isserles glosses a biblical violation that does not require lashes disqualifies the perpetrator according to rabbinic law. I have not found an Oral Torah source for this claim.
  • Violating a rabbinic law renders one to be ineligible to testify according to rabbinic law, which requires “publication,” or an announcement [hachraza] that the offending individual is no longer eligible to serve as a witness according to rabbinic law.

Therefore, on the basis of the conceptual, legal compendia,

  • when in heat of the moment, one may forget a law—as in the case of Rabbi Lieberman’s insulting Prof. Levine.
  • Rashi honestly believed in divine corporeality, it would be obscene if not absurd to regard Rashi as outside the theological pale for holding this position, especially in his culture context. Recalling that Rashi was a pashtan, a literalist, literal readings are valid according to his own exegetical system.
  • Even if Rabbi Lookstein had erred in entering a church, his alleged error could be justified, making criticism of him illegitimate. In my view entering a church is a violation of rabbinic law that is no worse than clapping on Shabbat [bBetsa 30a]. Oral Torah Orthodoxy does not authorize the cherry-picking of norms; the charismatic Orthodoxy that rules on the basis of intuition regards the Halakhic trove to be indeterminate, and cited selectively as a rhetorical support for its intuitive instincts. While the Orthodox public is told that Halakhah is law, the fact that logical readings of the Law, when made by other than great rabbis endowed with charismatic intuition, are to be dismissed. For charismatic Orthodoxy, Jewish decision making is agenda driven and not principle driven.

Rabbi Moshe Feinstein’s theory of Halakhic legitimacy

What is particularly problematic is the responsum of the late, pious, Rabbi Moses Feinstein: [Iggarot Moshe Orah Hayyim 5:43]. Official religion Judaism as defined by Jewish law forbids praying to any being other than God, as noted above at bHullin 40a, which outlaws praying to angels, and Deuteronomy 18:11, which outlaws praying to the souls of the dearly departed. R. Feinstein argues that there is precedent for praying to angels in the piyyut/liturgical poetry ritual. In his contemporary classic, Ish Hahalakhah [Halakhic Man], Rabbi Joseph B Soloveitchik argues that the Ashkenazi Rabbi Asher is correct, that piyyutim ought to be recited, and Maimonides, who is not favorably disposed to liturgical poetry [a] is wrong and [b] is not considered by him to be an prototypically ideal “Halakhic Man.” Although the bHullin 40a passage is part of the official Oral Law canon, the poetry and its theology, are not. R. Feinstein argues that the authors of the piyyut liturgy were “gedolei Yisroel,” “the great one’s of Israel,” a term that as we contend confers upon its bearer the valence of implicit covenantal canonicity to whom ideological privilege is attached and to whom criticism or challenge, even from canonical texts, is disrespectful, irreverent, and therefore heretical. Opinions of gedolei Yisrael are legitimate, regardless of what is written in the canonical text/tome because these rabbis provide walking updates of God’s never changing will. Ever the master of writing in an implicitly evocative literary code, R. Feinstein writes that the “the great one’s of Israel,”tiqqenu ve-hinhigu” i.e.,enacted and initiated the practice, of reciting this liturgical literature. The attentive reader immediately recognizes R. Feinstein’s absolutely brilliant rhetorical tour de force. The idiom “tiqqenu ve-hinhigu” is Maimonides’ formulation at Introduction to the Mishnah Torah, who is cited as a support for R. Feinstein’s view, even though R. Feinstein endorses a position and hermeneutic that Maimonides explicitly rejects. R. Feinstein will never threaten Orthodox mimetic usage by challenging the popular practice to plead to spirits with piyyut prayer poetry. For R. Feinstein, those who are lenient, allowing praying to angels, is that these angels “must” have been conduits of sacred energy appointed by God to carry prayers to God, and to this view, there is no prohibition regarding praying to angels or, for that matter, to the souls of deceased people. Indeed, R. Feinstein suggests that the post-mortem souls of the dearly departed are more effective emissaries because, unlike angels, the dearly departed remember and understand the angst of the human condition. According to this view, the Torah’s God is not really omniscient and requires the special prayer pleaders to serve as appropriate and expertly efficient intermediaries and advocates for the departed.

Feinstein’s modern concept of “great one of Israel,” or godol, represents [a] a personal version of Judaism and [b] a version of Judaism that has its roots in medieval times. Iggarot Moshe Orah Hayyim [henceforth IMOH] 5:10 permits the use of non-Jewish names not because the canon does not record a prohibition [mEduyyot 2:2] but because gedolim were given non-Jewish names. IMOH 5:24 reports that a gadol—but not any rabbi, may disagree with another gadol. Since Rabbi Elijah Kramer of Vilna, a.k.a. the ga’on, the “genius” or “excellence,” was accepted as great, he was allowed to issue independent rulings and reasonings. In point of fact, R. Kramer argued is position from the perspectives of a philological and reasoned reading of the canon, and did not believe that he needed permission to argue the case that he felt was true. According to Oral Torah Orthodoxy, it is the rule of the Court [Bet Din ha-Gadol] and not the rule of the great rabbi, even if that great rabbi is R. Eliezer the Great, and even if his view is confirmed by an oracle. For a precedent for R. Feinstein’s Orthodoxy, see R. Moses Isserles’ Introduction to his Shulhan ‘Aruch glosses, where he affirms that the opinions of great men like Rabbis Jacob Tam and Eliezer b. Joel are by definition normative.

This debate is also found in Bet Yosef Hoshen Mishpat 25. R. Caro contends that one errs by issuing rulings that contradict the textual canon, or devar Mishnah, which for R. Caro [a mystic] and his legal mentor, Maimonides [a rationalist] agree is the Talmud of Babylon. Maimonides most strident critic, R. Abraham b. David, disagrees and argues that one may not deviate from past culture and that canonicity resides in the great person, presumably if not modestly himself. After all, R. Abraham “knows” that Maimonides is theologically incorrect for believing that those who believe that God having a body are heretics because “greater and better” rabbis than Maimonides, by dint of his own divinely assisted intuition makes them “greater and better,” believed that God does have a body.

In IMYD 3:131, R. Feinstein appears at first glance to decline to rule on the Sabbatical year requirement to allow the Land of Israel to lie fallow, and he avoids discussing the merits of the case. However, he refers and defers to the Israeli Brisker Rov Soloveitchik and Rabbi Abraham Karelitz, who live in Israel, who rule restrictively regarding the Sabbatical year in Israel, and happen, like R. Feinstein, to be sympathetic to if not members of Agudas Yisroel, a non-Zionist Orthodox group. Rabbi Abraham Kook, who ruled leniently on the Sabbatical year produce, and who was chief rabbi and who authored the lenient ruling on the Sabbatical that appears in Responsa Mishpat Kohen, n. 71, had a different view. See also n. 73 and 74, where R. Kook invokes the hora’at sha’ah principle in order to rule leniently. Other than in emergency ruling, R. Kook’s positions reflect the standard and not very lenient rulings of his Eastern European traditions. But for our purposes, R. Kook is for R. Feinstein not a canonical sage or godol worthy of having opinion, given this citation that does not even address R. Kook’s innovation on its conceptual merits.

IMYD 4:35 expresses R. Feinstein’s approval of gedolei Torah who learn only Torah over those who also engage in secular learning. At first glance, this statement is odd because his son-in-law, R. Moshe D. Tendler, has a Ph.D. in and is a professor of Biology. IMOH 2:18 legitimates the opinion of latter day saintly gedolim, who permit a minor to count in a prayer quorum, against the plain sense of the Talmud [bMegillah 23b] that requires that the prayer quorum be [1] ten [2] adult [3] male [3] Israelites. In other words, the greatness of the person holding the minority view is sufficient to regard that view as valid. For Oral Torah Orthodoxy, the fact that the view was rejected makes that position invalid until and unless a later, legitimate norm creating body reverses the decision by legislation. IMOH 2:102 argues that the custom regarding the recitation of tal u-matar in the Holy Land depends upon the authority of R. Kramer [the Ger”a] and R. Sheneor Zalman of Liady, but avoids discussing the merits of their views, following R. Abraham b. David, for whom canonicity resides in rabbinic charisma and not in rabbinic competence. IMOH 3:63 allows peanut usage and peanut oil on Passover because there were places in Europe where the practice obtained and there were at that time gedolim who were lenient. Again it is culture and charisma, not statute or reasoning, that for R. Feinstein determines proper Orthodox usage. In a short responsum outlawing the use of a microphone on Shabbat and even on Yom Tov [when the transfer of fire is permitted, conceding for the sake of argument, that electricity really is fire according to Biblical law] [IMOH 4:84], R. Feinstein makes the following claims:

  • the Haredi Agudas ha-Rabbonim [who promote themselves as great rabbis] said so.
  • even without hearing the reasons, rabbis who are hachamim [real scholars] must be obeyed.
  • those who permit the microphone are acting improperly because the great rabbis disapproved of the practice.

On one hand, R. Feinstein claims that congregants of an Orthodox synagogue that uses a microphone are acting improperly, [IMOH 4:91.6] but at IMYD 2:5, R. Feinstein concedes that an otherwise Orthodox ritual slaughterer who uses a microphone is a partial heretic, and must be accepted only with great reservations. Given that

  • Minhat Shelomo [Auerbach] 1:9 takes a much more lenient position,
  • The Aruch ha-Shulhan [Bet Vaad le-Hachamim, 1903, in D. Eisenstein, Otsar Dinim u-Minhagim (Tel Aviv: Shilo, 1975), 151, rules leniently regarding electricity on Shabbat,
  • The classical quasi canonical legal codes are really only compendia—no Sanhedrin or Bet Din ha-Gadol has ever approved of any post-Talmudic collection. Therefore, opinions recorded in these posts-Talmudic compendia historically have been subject to challenge, review, and on occasion, rejection.
  • One is disqualified as a witness by knowingly violating an explicit canonical Torah or rule.
  • Therefore, R. Feinstein seems to be articulating a legal world view but in fact consistently invokes a culture ideology that views the gedolim to be canonically vetted authority people who have assumed the authority to create new, post-Talmudic, binding rabbinic laws.

IMHM 2:76 rules that benei Torah “ought not to smoke” cigarettes because of a doubt regarding putting their lives in danger. Doubtful danger involves an absolute violation, and not a mere disapproval. IMYD 3:35 outlaws smoking marijuana and hashish because these drugs destroys the body; in point of fact, R. Feinstein’s ruling seems to reflect a culture antipathy to countercultural, libertine rebellion. In this case, R. Feinstein condemns what he takes to be an inappropriate appetite release, but not does not do so when dealing with rabbis, the Orthodox culture elite [a] who on one hand smoke and [b] by dint of their “greatness,” are immune from scrutiny, review, or criticism. In IMYD 2:49, R. Feinstein argues

  • that as a consequence of potentiality of illness, it is proper – but not mandatory – to avoid smoking cigarettes.
  • since many people smoke, one may not claim that smoking is forbidden. The people cannot be wrong. For God’s opinion, see Leviticus 4:13.
  • great rabbis [gedolei Torah] of previous generations and of the current generation do smoke. Implied in this statement is the unstated but implied doctrine that the behavior of great rabbis is its inherently and unquestionably valid.

These three claims confirm the following implicit doctrines:

  • according to official religion Jewish law, one is required to avoid doing activities that make one ill [Deut. 4:15 as understood at bBerachot 32b]; for R. Feinstein, Halakhic normitivity also resides in the community and its leaders.
  • the acts of the majority of a culture or a community are for R. Feinstein self-validating; according to official religion Orthodoxy, the flood generation and the ten spies were wrongful majorities because their actions violated God’s rule, which is defined by the legislated norm and not by what people do.
  • Real gedolim may never be taken to be wrong, for R. Feinstein. However, the facts that Rabban Gamaliel was disposed and R. Eliezer b Hyrcanus was excommunicated indicate that for the canonical, textual version of Orthodox Judaism, no person is above the law, no sovereign enjoys legal immunity, and no rabbi, or for that matter, no Sanhedrin, is beyond review based upon the meaning of the words recorded in Israel’s readable religious library.

When Rabbi Natan Slifkin wrote in Ḥakirah, the Flatbush Journal of Jewish Law and Thought, that Rashi believed that God has a body, complaints were to be heard. What did Rabbi Slifkin, a Haredi rabbi with Haredi sensibilities and blessed [or cursed] with a probing, curious mind, write that was deemed to be so improper?

  • Slifkin wrote that he does not read the Genesis creation account literally, and by accepting “evolution” to be empirically true, he denies the divinity of the Torah as understood by the great rabbis. Great rabbis disagree with R. Slifkin, so he “must” be wrong, and therefore both heretical and arrogant, violating the unwritten and not codified 614th commandment, “thou shalt not think!”
  • Maimonides wrote that we may not believe that God has a body. To believe that the Deity has a body sounds Christian, pagan, and heretical. It defies comprehension that Rashi would accept a doctrine that Maimonides would regard to be heretical.
  • Since Rashi would not, could not, and therefore did not really claim that God really had/has/and forever will have a body, R. Slifkin’s findings make no claim regarding Rashi but his words reveal a great deal about modernity’s version of charismatic Orthodoxy, religious subversion, and why real enfranchised, institutional Orthodoxy is so critical of critical thinking and so jealous regarding its social prerogatives. Therefore, Slifkin must be delegitimized with the following claims:
    • Slifkin chose to find data that could be spinned negatively regarding the holy, sacred, learned, venerable classical commentator who was obviously inspired by the Holy Spirit.
    • Slifkin did not clear his findings with gedolei Yisrael, the first, last, and only arbiters of religious truth, Orthodox authenticity, and the moral authority to read, understand, comment upon and properly apply God’s word.
    • Slifkin assumes, narcissistically and with arrogance, that his reading actually carries religious significance, he wrongfully assumes that he, by dint of his puny mind, actually has a real right to an opinion, especially an opinion that undermines the authority of the rabbis who really do possess both Torah intuition and canonical authority.
  • Slifkin’s findings reveal the real divide between the two contending versions of Jewish Orthodoxy. Slifkin maintains that religious authority resides in the sacred text; his detractors deem that authority to be present in the sacred person, the sacred sage. Recalling R. Abraham b. David’s rude attack on Maimonides for arguing that believing that God has a body is a heresy, invoking the claim that there are “greater and better” rabbis than Maimonides who maintained such a doctrine. In Bet Yosef Hoshen Mishpat 25:1, R. Abraham b. David stresses that religion is derived from the persons of Israel’s ancestors, the venerable greats of generations past; alternatively, R. Caro [and this writer] define “Tradition” to be the content of the sacred canon, which ended, at least for Maimonides and R. Caro, with the Talmud of Rabina I and Rav Ashi. Especially intriguing is the pained and poignant gloss of the Kesef Mishna¸ ad. loc., s.v. Ha-‘Omer:
    • How can the holy mouth of R. Abraham ben David utter the unseemly saying that “bigger and better” greats than Maimonides believed that God has a body? This question goes unanswered because asking the question is at best socially inappropriate.
    • While Maimonides may indeed theologically correct, that believing that God possesses a body is theologically an error, maintaining that such a wrong belief is minnut, the rankest of heresies, seems excessive only because the canonical trove does not outlaw this belief.

This ideological conflict also defines the Orthodox ideological quandary. On one hand, Maimonides appears to be logical, textual, and correct. R. Abraham b. David has what is taken to be a “holy mouth” but argues, on the basis of intuitive, charismatic assertion, that “bigger and better” authorities than Maimonides deemed divine incarnation to be an acceptable doctrine. R. Abraham b. David is actually consistent to his system. Only holy mouths of the great rabbis who, by means of their being holy people, are able to engage in Toraitic divination. R. Abraham b. David’s unabashed rudeness toward Maimonides’ person would be intolerable unless R. Abraham b. David is himself a “greater and better” rabbi who, unlike the Biblical loses, may not subject to review. Recall that Maimonides is for R. Soloveitchik the intuitive Nahmanidean not a Halakhic Man; Maimonides did not regard charismatic intuition to be a source of God’s word, unlike Rabbis Feinstein, R. Abraham b. David, and Nahmanides [to Leviticus 19:2 and Deut. 30:12, where Repentance is not in Heaven [i.e. accessible and doable] but Torah, the word of the Lord, must be divined by human divines because unlike repentance, it remains in Heaven for great rabbis to decode]. It is assumed that if Rashi maintained this or that view, the view must by definition be deemed to be legitimate because Rashi the sacred person maintained the view.

Kesef Mishnah’s resolution, that believing that God has a body is a wrong, mistaken, but nevertheless innocent belief, resonates to me. Maimonides’ own position is consistent nevertheless. If God assumes a human form, then a human, a “bigger and better” godol, or great man may presume to assume God’s voice and declare God’s will with his own embodied “holy mouth.” For Maimonides, any incarnation doctrine is theologically ominous because it is also politically dangerous. On a folk religion level, an anthropomorphic deity is more imminent and therefore more accessible to the client community. Speaking as the spokesman for folk religion Orthodoxy, R. Abraham b. David’s peerless “holy mouth” may not be challenged, so Rashi’s standing, saintliness, and authority may similarly not be subject to peer review. When humans are not subject to review, the tyrant may assume divinity. For an unchallenged ruler, [a] the ends justify the means because [b] in the end, the ruler is mean.

It is suggested that latter day rabbis cannot judge historically earlier great rabbis who, by dint of their antiquity, carry greater sanctity and correctness than rabbis in our corrupted present. There are two caveats to this claim. [a] Since we do not inhabit the universe of our ancestors, we do not stand in their place, and for this reason alone we may not stand in judgment of them [mAvot 2:4]. [b] Those identifying with the R. Abraham b. David school maintain that we may not judge early authorities at all; they are early and great, we are late and by definition deficient. They have holy mouths, we do not. [c] And since latter day great rabbis received the “Tradition” from the previous generation, they possess the authority of apostolic succession.

Slifkin’s “heresy”/choice is his examining of the record and confronting the anomaly well identified by the Kesef Mishnah; the official and actual Orthodox Judaisms are thus, upon inspection and reflection, not really congruent—or for that matter even compatible. That Rashi maintains a belief that contradicts Maimonides, that corporeality can be an accepted theological view, may be negotiated. Praying to angels, as in the penitential Machnise Rahamim and the Sabbath eve’s Shalom Aleichem, which finds its celebrants asking angels “barechuni le-shalom, that angels be entreated to bless humans, a singularly divine prerogative in the Jewish official religion theological system, is to say the least problematic. Rabbi Moses Feinstein, IMOH 5:43, sensitively affirms both Orthodox Judaisms when dealing with talking/praying to spirits other than God:

  1. some permit and some claim that it is forbidden to ask the dear departed to “put in a good word” before God. [Shach Yoreh Deah 179:15]
  2. there is a similar debate regarding the Machnise Rahamim prayer [in the Ashkenazi penitential prayers]
  3. while not citing bHullin 40a, which would yield a severe canonical outlawing of the practice if taken at face value, which would by implication also impugn the bona fides of the composers and reciters of piyyut, i.e. post-canonical medieval Hebrew liturgical poetry, R. Feinstein reasons that
    1. the writers of piyyut were also gedolei Yisrael, great rabbis in Israel whose very identity confirms their charismatic legitimacy
    2. nevertheless, R. Moses Sofer [Orah Hayyim 166] cites R. Lowe of Prague who would not say the prayer [see also Tsits Eliezer Waldenberg, Orah Hayyim 4:48]
    3. Since some say the prayer and others do not, there is a debate regarding what R. Feinstein takes to be two legitimate, contending positions.
  4. Lowe would neither say the prayer nor stop the congregation form saying the prayer, implying that there is really no prohibition regarding its recital.
  5. Feinstein recalls that the Gaon R. Elijah Kramer of Vilna did not say the prayer, nor did his student. R. Hayyim, who also avoided saying barechuni le-shalom on Shabbat.
  6. those who permit the practice “reason” that angels were created by God to be intercessors before God [seniors, sanegorim]. There is no evidence supporting this doctrine in the canonical Oral Law.
  7. while R. Feinstein does not cite a justificatory canonical source for his conjectured claim, there is also no address on his part to bHullin 40a, which outlaws any cult directed to angels.
  8. at his responsum IMYD 2:49, R. Feinstein refuses to forbid smoking cigarettes in part because great rabbis of the past and [the then] current generation did smoke, and failed to cite Deuteronomy 4:15 , “watch your lives,” and its canonical exposition, bBerachot 32b and Mechilta de-Rashb”i , be-Shallah, 9, s.v., az nivhalu, which requires that one act in fashions that preserve one’s life.
  9. In conclusion, we see that R. Feinstein regards both Orthodox Judaisms as binding and covenantal, that of Maran Caro and Maimonides, who see Judaism as a legal order, and R. Abraham b. David’s Orthodoxy, that assigns canonicity to the actual practice of great rabbis. By failing to cite the negative norms forbidding cult other than to God and preserving one’s life, while according a practice canonical normativity in spite of the suppressed canonical record and because great rabbis do this or that, R. Feinstein reveals that for him Orthodoxy is projected to be the religion of the text canon but in fact is at the same moment the “old time religion” preserved, edited, and transmitted from generation to generation, from godol to godol, whose life is defined dogmatically as the living will of God in the living flesh. This “old time religion” Tradition is “good enough for him” as he subjectively—or charismatically—determines when sacred text trumps popular usage and when it does not.

The cookie cutter Orthodoxy of Rabbi Gil Student

1. Dogma and How to Read the Bible

Rabbi Gil Student is a serious, learned, centrist Orthodox blogger, opinionated, and popular theologian. His opinions reflect the actual folk religion of non-Haredi Orthodoxy, whose platform is dogma, dialogue is restricted to pre-approved insiders—ideas that to his determination undermine Torah are not considered or published, and Halakhic praxis is determined by the accepted great rabbi consensus, not by a reasoned or defended exegesis. His views are important, they set culture parameters regarding what is a legitimate opinion, and he is as yet not been subject to academic review.

Student’s 10/2/10 blog makes the following points: 

  • “The book [James Kugel, [How to Read The Bible] is a popular and widely available manifesto of a belief that Prof. Kugel has previously taught in his very popular Harvard class: the conclusions of modern Bible scholarship are incompatible with traditional Judaism. [as defined by the religious elite of Yeshiva University].
  • His views were so well known that he was mentioned in a pamphlet about the religious dangers to Orthodox students at secular colleges.
  • In this book, Kugel goes through a large portion of the stories in the Hebrew Bible and explains them according to the “ancient interpreters”, generally Apocryphal, Christian and pre-Rabbinic (Second Temple era) explanations, and modern critical scholarship.
  • He seems to give more credence to the latter, which led me to wonder why he bothered to include the ancient interpreters but exclude all explanations from the Middle Ages and beyond.
  • The texts that make up the Bible were originally composed under whatever circumstances they were composed. What made them the Bible, however, was their definitive reinterpretation.
  • the general theme of the Bible is serving God, which is a Divine message even if most of the Bible itself is not (p. 685):
  • In Judaism… Scripture is, and always has been, in Judaism is the beginning of a manual entitled To Serve God, a manual whose trajectory has always led from the prophet to the interpreter and from the divine to the merely human.
  • Even if one observes Jewish ritual according to Orthodox standards, one cannot be accurately called Orthodox if one does not accept certain basic beliefs, Torah from Sinai being one of them. Kugel’s suggested approaches go beyond the Conservative belief of Torah from Heaven but not Sinai …That isn’t Orthodox by any stretch of the imagination.
  • I’m not saying that there should be any practical repercussion to Prof. Kugel or that people should start picketing his home or banning his book. I’m just suggesting that, in the interest of honest reporting, he should write a letter to the NY Times and explain that the beliefs about the Bible suggested in his book are distinctly non-Orthodox.

And in the YU Commentator 8/12/2009, Student affirms that

  • “I believe that Jewish Studies in Yeshiva University should be taught [or lectured] by people full of not only knowledge but also Yiras Shamayim [fear of heaven, i.e. the theologically approved and vetted ideology] … Studying Jewish Studies is in many ways a fulfillment of the mitzvah to learn Torah and should be treated as the religious experience that we expect it to be.”
  • When asked about the importance of diversity of discourse, Rabbi Student said, ‘Our religious outlook certainly includes the existence of multiple, valid views under the rubric of Eilu Va-Eilu. However, they must still be within the framework of Orthodox beliefs and not attempt to undermine Divrei Elokim Chayim.’
  • Rabbi Jeremy Wieder, REITS Rosh Yeshiva, voiced disapproval of the event: ‘Based upon what [Dr. Kugel] has written, he is not Orthodox even if he may be Orthoprax because his stated beliefs are clearly in contradiction with Chazal regarding matters of basic Jewish theology…for YU to invite a speaker who purports to be Orthodox runs the danger of sending the wrong message about what we believe.’ In this vein, Rabbi Wieder would be concerned less by the potentially heretical topic of a lecture then by the individual delivering it: ‘I would be more comfortable with someone from JTS where the speaker is clearly not speaking from an Orthodox vantage point.’

While Rabbis Weider and Student reflect a legitimate opinion regarding revelation, their claim that other opinions are illegitimate is itself illegitimate. Consider that:

  1. R. Hirsch, Nineteen Letters, 18th Letter, derides Maimonides for stressing doctrine as if doctrine for him is not law. On one hand, Hirsch was not criticized for degrading Maimonides because of Maimonides’ stress on doctrine, but took umbrage with R. Zecharia Frankel’s Darkei ha-Mishnah.
  2. On one hand, in matters of Jewish law, we are told that we do not decide Jewish law based upon Maimonides’ rulings, but we are manipulated to take Maimonides as the only word in Jewish theology. Thus, R. David Berger’s The Rebbe The Messiah and the Scandal of Orthodox Indifference, 1-2, assumes that Maimonides’ view that the Messiah will come and cannot be the to date late Rabbi Menachem Schneerson. However, Maimonides, following the Talmud [Shabbat 64b] outlaws the woman’s wig on Shabbat and Rabbi Schneerson, privileging the Zohar over the Talmud, actually requires the married women’s modesty wig, an even greater deflection from the Oral Torah canon. There is a popular rumor that R. Joseph Soloveitchik also disapproved of the female wig, which is nevertheless a popular, if incorrect, badge social Orthodox identity. In this charismatic Orthodoxy, the elite rabbinic consensus is the real religion benchmark of normativity; therefore, great rabbis cite selectively and suppress selectively so the public believes that it obeys a textual law. Calling attention to inconsistencies, incongruencies, and contradictions shows disrespect for God’s agents and therefore, to God as well.
  3. When proclaiming Moshe qibbel Tora mi-Sinai, to mean that Moses received the Torah at Sinai, as if the passage recorded the determinative he, this also being the misleading Hirschian rendering of the Haredi ArtScroll commentary and translations, we see why cookie cutter franchise Orthodoxy also disdains Hebrew grammar study. One cannot argue with facts in the same way one argues with opinions. The Mishnah’s real meaning is that “Moses received an [sans determinative] oracle/Torah [Hebrew root is yrh/y] at Sinai, refers ring to a first installment of what at that moment was then still an Oral Torah with the Covenant being written on stone, not parchment.
  4. According to the Torah document’s internal testimony, Exodus 40:16 reports that the tabernacle was erected at the beginning of the second year after the Exodus and the Sinaitic theophany , and God called to Moses at the beginning of Leviticus at the beginning of the second year, again not at Sinai. According to Numbers 1:1, the narration ensues from the second month of the second month from the exodus, and as above not at Sinai. According to Deuteronomy 1:3, Moses’ eloquent [he was as a novice tongue tied, Exodus 4:10] valedictory speech is delivered in the 40th year, in the 11th month, from the exodus, and yet again not at Sinai. Given Isaiah 2:3, there is something called “Torah” that is [a] the word of the Lord, [b] post-Sinaitic, and [c] post-Pentateuch as well. This post-Pentateuchal Torah is authorized at Deut. 17:10-11.
  5. According to Rabbi Joseph Albo, one must believe that God is real, that God commands, and that God holds humankind accountable. The actual, mandated doctrine is the scientifically irrefutable doctrine of Torah min ha-shamayim, which affirms no more and no less than God is the ultimate Author of the Torah. This minimal, legislated dogmatic theology is based upon mSanhedrin 10:1, where Oral Torah law forbids the verbal articulation of unbelief that [a] there is a/the God [b] Who from Heaven gave the Torah and [c] will resurrect the dead.
  6. Israel is contract or covenant bound by prescriptive norms, not rabbinic descriptions. Thus without an explicit norm mandating this or that belief, canonical Orthodoxy offers, like ancient Israel, a religion of deed rather than creedal doctrine, the protests of politically enfranchised Orthodox rabbis not withstanding. And by being revealed in the Torah, God the Narrator empowers His empowered readers to judge the world—and even the rabbinic elite—against the Torah’s accessible, plain sense exoteric text. Therefore, if we need not agree with Maimonides in a matter of law based upon the most logical read of the sacred canon [that the married woman’s wig is not permitted to be worn, minimally on the Shabbat], then disqualifying the bona fides of very good Jews like Prof. James Kugel because of the idiosyncratic burden we place on the “Torah from Heaven” and “Torah from Sinai” idioms. The moral valence of the “Torah from Sinai” idiom is that God began to give the Torah from the moment of Sinai onward; the religious force of the “Torah from Heaven” idiom is that the Torah text in our possession, regardless of the repair state preserved by scribes, [a] is God’s word, wish, and will, [b] is not to be manipulated, selectively misread, or determined to be readable only to an elite because God in Heaven is watching, listening, hearing, and holding the Torah’s readers and all creation to account.
  7. Rabbi Abraham Ibn ‘Azra writes, in his introduction to Exodus, that while the Halakha must obeyed, there is freedom of exegetic inquiry. At the beginning of his commentary to Deuteronomy, Ibn ‘Azra even suggests that there are post-Mosaic glosses to the Mosaic Torah. The learned and wise Dr. Moses Bernstein of YU’s Bible faculty privately conceded to me that Ibn ‘Azra is correct, but he nevertheless rejects the “Higher” or Source Criticism [that Kugel concedes has real merit]. According to mori rabbi [whose penchant for truth was happily addressed above], Prof. Baruch Levine impishly quipped to me , “can a woman be only 1% pregnant?”
  8. Absent a clearly defined, explicit norm—as opposed to a descriptive opinion attributed to an individual rabbi—recorded in the Oral Torah, the “Orthodoxy” of Oral Torah Judaism freedom authorizes unfettered speculative doctrinal opinion. Demeaning a view as heretical—as opposed to being in error—without identifying and demonstrating the explicit norm in the Oral Torah that is being violated is an invasive act that violates the three sins of [1] slander, [2] adding a norm to Torah, and [3] misrepresenting God, all of which are Jewishly illegitimate positions. Jewry is bound by Talmudic law [Halakhah], not Talmudic descriptive opinion [‘Aggada].
  9. Rabbi Student is not a biblical literalist, as evidenced by his appropriate modern Orthodox endorsement of R. Slifkin. He seems to reject both the findings of the Lower [text] as well as Higher [source] Criticism as well. The criterion for this selective judgment is unclear. One Yeshiva University ordainee close to the UTJ chided me for not endorsing biblical literalism since I advocate, as evidenced by this paper, positivism, legal literalism, or formalism. If we are forbidden to believe that God has a body, and God is described as having a hand, face, and ear, and since the Bible describes itself as poetry and not as historical narrative prose, [Deuteronomy 31:19], just perhaps the Torah does tolerate but does not require biblical narrative literalism, at least for those who are drawn that perspective, so the narratives may be taken to be sources of value that explain the meaning of the law. Like the other great narratives of antiquity, the Egyptian Book of the Dead/Coffin Texts, the Baal Epic, Gilgamesh, Adapa, Enuma Elish, the Illiad, Odyssey, and the Theogony of Hesiod, perhaps we should read the Torah as an ideological alternative to paganism in all of their varieties. We recall that Thorkild Jacobsen contrasted the Israelite kingship of God with the ubiquitous pagan notion that the human king is a also presented as a more than human “god.” When we require others to read the word of God as we believe it should but cannot demonstrate, we unwittingly usurp the prerogative of the Torah’s ultimate Author Who Orthodox Jews also believe is the world’s ultimate Auditor.

Prof. James Kugel sees the Torah as a Jewish coffee table book, the religious reading and meaning[s] of which is the intersection of the Divine call and human response. The reader necessarily brings her/his life and culture baggage, what Marcel Foucault calls episteme, to any reading, and the history of the reading is a benchmark whereby historically accepted dogma and the world inhabited by the reader intersect.

The above being said, I would hope that the Higher Criticism deconstruction not blind the reader to the world and word of God, the textus receptus of the canonical Torah Whose ultimate Author is “our Rock, perfect in the plurality of His work,” but whose human transmitters have transmitted a maculate record of Tradition. R. Weider’s position accurately reflects the historical Orthodox attitude; but the actual norms, or legislated norms of the Oral Torah, trump popular opinion, mental habit, and elite religion intuition precisely because [a] these norms alone carry the valence of Revelation that R. Weider so passionately affirms and [b] post-Talmudic opinion may not override legislated Talmudic law. And we do not disqualify observant Jews for not conforming to Maimonides’ suggested, contested, and post-canonical thirteen faith requirements.

Weider also seems concerned with the marketing of the institutional Orthodox franchise. He is not fearful of heresy; he only wants heresy to be clearly labeled and appropriately avoided. What R. Weider cannot accept is an Orthodoxy that is measured by the commands of its canon and not the intuitions and mental habits of yesteryear. Normative Jewish legitimacy for R. Weider and R. Student is in part determined by the collective conscience of the affiliating community, and not that sacred, readable library that has God as its ultimate Author and phonetics, morphology and syntax as its working hermeneutic.

2. What is Traditional about the Orthodox Tradition of R. Gil Student?

On his blog of Thursday, June 18, 2009, R. Student cites with reverential assent a summary, compiled by R. Elyakim Konigsberg, of R. Joseph B. Soloveitchik’s position regarding matters of Jewish law, from transcribed lectures. The content of the post was confirmed by an oral communication from R. Stuart Grant, who was present for these lectures. The content and claims of the lecture are:

  1. Rabbi Student’s apt observation that “if women may not be ritual slaughterers, they may not be rabbis. In his words, It seems clear to me that if a woman may not be appointed a slaughterer, as the Rema rules, then she may also not be appointed a rabbi.”
  2. The Shulchan Arukh (Yoreh De’ah 1:1) writes: “Anyone can slaughter [animals] ab initio, even women.”
  3. The Rema adds that we should not allow women to slaughter since the custom is that they do not. This is the view of the Agur brought [sic. Better, “cited.”] in the Beis Yosef (ad loc.) that since the custom is that women do not slaughter, therefore they are not allowed to do so because “the custom overrides the law.” [my emphasis]
  4. Click here to read moreThe Beis Yosef already questioned this view: It would be understandable if women had wanted to slaughter but they were never allowed to do it — then we could bring proof from these actions that the custom is that they may not slaughter. But since this is not the case and all we know is that, in practice, women did not slaughter, what is the proof? We say in general that “not seeing is not a proof” — the fact that we have not seen women slaughterers does not necessarily mean that they may not. [see mEduyyot 2:2, a law must be explicitly legislated and not surmised from usage]
  5. The Shakh (ad loc., no. 1) answers that perhaps the Agur shares the view of the Maharik, that regarding customs we do say “not seeing is a proof.” Therefore, the fact that we have not seen women slaughterers is sufficient to prove that the custom is that they may not.
  6. Based on this position of the Maharik, we can explain other customs brought down by the Rema.
    1. The Rema writes in the laws of mourning (Yoreh De’ah 381:1) that even though the rule is that washing your face, hands and legs in warm water and torso in cold water is only prohibited during the first week of mourning,
      1. the custom in his time was to refrain for the entire first thirty days of mourning –
      2. “And you should not deviate from the custom because it is ancient and was established by elders.”
    2. The Rema (Yoreh De’ah 389:3) also wrote that the rule is that you may not wear Shabbos clothes during the first thirty days of mourning even when mourning for a parent, but the custom is to refrain for the entire twelve months of mourning for a parent.
  7. These two customs are perplexing
    1. because how can we establish a custom by refraining from doing something [that is by Talmudic law required?]
    2. Don’t we say that “not seeing not a proof”?
    3. We have to say that the Rema follows the Maharik, that refraining does not show a tradition regarding a law and certainly does not establish the rule when there is no opinion corresponding to that practice. But it does serve to establish and create a custom that we are obligated to follow.
  8. We can add another reason why we should not allow women to serve as slaughterers.
    1. The Rema (Yoreh De’ah 1:1) wrote that we should only rely on the presumption that most people who slaughter are experts post facto, but ab initio we should check someone who comes to slaughter to see if he knows the laws.
    2. Because of this, the Rema continues, our practice is not to allow someone to slaughter unless he receives authorization (kabbalah) from a scholar, and the scholar will not give him authorization until he has shown that he knows the laws of slaughtering and how to do it.
    3. Since the custom is to receive authorization from a scholar, we do not need to check every person who comes to slaughter because we can assume that most people who come to slaughter have received authorization from a scholar.
    4. It seems that since our custom is to receive authorization from a scholar in order to slaughter, therefore slaughtering is no longer merely a matter of permitted or forbidden food matter that anyone can do but has become an appointed communal position.
    5. For this reason, we do not allow women to slaughter based on the Rambam (Mishneh Torah, Hilkhos Melakhim 1:5),
      1. who wrote that we do not appoint a woman to a communal position.
      2. Since a woman may not be appointed to a communal position, and slaughtering has become a communal position,
  • therefore it seems that a woman may similarly not be appointed to be a town slaughterer.
  1. Since women may not serve as slaughterers because they may not be appointed to communal positions, it makes sense that they may not slaughter for other people which would be a communal appointment. But they may slaughter for themselves, which is not considered a communal appointment.
  2. in Yevamos (45b) that a convert may not be appointed to a communal position (see this post: link). Since a freed slave is a convert, how can he slaughter if that is considered a communal position? We have to say that really a convert may be appointed to a communal position, but not a position of communal authority over Jews — and it is for this reason that he may judge fellow convert (Yevamos 102a).
  3. Therefore, since slaughtering is not a position of authority, a convert may be appointed to be a slaughterer.
  • However, a woman is excluded from all appointments, even those with no authority, and therefore she may not be appointed a slaughterer.”

 

  1. the faith of Orthodoxy vs. the franchise of Reconstructodoxy

 

  1. According to R. Student, our “tradition,” i.e., the Ashkenazi Orthodox Jewish religion, which is more restrictive than the Oral Law official religion, invests the culture driven “tradition” with a religious valence sufficient to override the Oral Torah tradition. Specifically, in the name of “Tradition,” women are banned from slaughtering even though the canonical Tradition, i.e. the Tradition that God is taken to be the ultimate Author, provides license. The Talmudic tradition that provides a license for women to slaughter animals, which is confirmed by Shulhan ‘Aruch YD 1:1, is nevertheless withdrawn because the allowance has not been observed in Ashkenazi communities for generations. Neither the Talmud nor Maimonides speak of Ashkenazi or Sefardi “tradition.” In other words, if the Written Torah was not given in J, E, D, and P versions, then the Oral Torah was not given in Oriental, Ashkenazi, Yemenite or Sefardic versions, either. By allowing post-Talmudic culture tradition to supersede, override, and thereby to overrule the canonical “Tradition,” we create a Judaism whose rhetoric stresses correct doctrine, or is “Orthodox,” but controls the naked crowd by reconstructing the Judaism of “Tradition” into a political instrument of political social control. In the Greek Orthodox Church, “Tradition” is the unchanging culture of a sacred past; in Oral Torah Orthodoxy, Tradition is the Oral Torah that sanctifies by empowering the individual and the community to be active, initiativing Jews. The former religion demands submission, the latter religion requires religious activism, advocacy, and initiative. The notion that what was done in the past is what must be done in the present is Jewishly incorrect [Lamentations 5:7]. Torah law must be obeyed, social inertia is inert, not holy. In order to forbid in the present what the Oral Torah permits, the individual Jew has a right to better answers than [a] “your ancestors did not do it, why should you,” [b] “because the latter day rabbi said so,” or [c] “if you are really a good Jew, you would not agitate, aggravate, or advocate for change.”
  2. According to Ashkenazi Orthodoxy, a custom may indeed, even without a Sanhedrin, override an Oral Torah law. By authorizing innovative post-Talmudic “blessings, such as ha-meqaddesh et shemo be-rabbim and she’asani kirtsono, ha-notein le-‘ayef koach, and the ‘al mishm’a as opposed to miqra megillah blessings, unorthodox community folkways have over time superseded covenant law. In this version of Orthodoxy, communal restrictions carry the valence of law and willy nilly abrogate the logical, authentically Traditional, canonical license of Oral Torah law. Some within Orthodoxy systematically deny the women rights authorized by the Oral Torah—by not requiring the after meal women’s zimmun and reclining at the seder by “important women”—and then appeal to a “Tradition” that is no more than sexist popular usage. This alternative Tradition is similar to but incongruent with the Tradition of the Oral Law as it has been preserved over history.
  3. Rabbi Shabbati Cohen understands “custom” to refer to what Jews do; this opinion is dubious because it is unattested in Oral Torah teaching. “Official religion” Jewish law does not provide for a prohibition unless there is extant, reviewable statutory data, lo ra’inu lo re’aya [we have not seen the act being practiced, it therefore “must” be forbidden] being a canonically indisputable rule of legitimating recognition, and since most Orthodox Jews have not seen women engaged in slaughtering, following R. Shabbatai Cohen, Ashkenazic communal policy does not permit women to slaughter in everyday life street culture. And this culture “tradition” has assumed the moral force to override the Oral Law Tradition, which for Orthodox Jews is God’s word, which as noted explicitly permits women to slaughter! We find here a deliberate social pattern restricting women’s roles, rights, and rites, with ad hoc rhetoric being mustered to change the norm called “custom” from “local edict” to “long time accepted practice.
  4. The claim that women may not be leaders, grafted upon innovation that a ritual slaughterer is a leader, i.e. holding a position of esteem and prestige, when unpackaged, exposes a radically untraditional definition of Tradition. Sifre Deuteronomy 157 rules that woman may not be appointed to the office of king; the non-canonical, and therefore not binding as a matter of law, Midrash Tanna’im 17 rules that women may not be entrusted with any leadership office. By outlawing scientific text criticism, the reformation of the canon by an aggressively zealous—and sexist– glossator may nevertheless reform Jewish law. By designating a ritual slaughterer as a “leader” and by reifying communal taste into a canonical norm, this Judaism sanctifies its memory of the past, but not the religion of Oral Torah. Judaism cannot be understood correctly if its canonical sources are read wrongly. Those who oppose lower, i.e. textual criticism fear a Jewry hat able to be intelligent, creative decision makers [see Numbers 11:29, where Moses welcomes a symphony of different creative voices].
  5. The decision of Rabbis Avi Weiss and Daniel Sperber to ordain Mrs. Sarah Horowitz is not inconsistent with the Tradition of the literary Oral Law canon, because it does not violate any clearly stated Oral Torah norm. But this Oral Torah literary canon has been superseded and reformed by the “tradition” of Orthodox culture and its canonical people. According to German and Eastern European Judaisms, in both Reform and Orthodox versions, the canon of custom and culture carries more weight than the canonical text Tradition, which, at least for the Orthodox, is ultimately Authored by God. Since—for this version of Orthodoxy– women may not leaders, i.e., hold a bold, threatening authority over men, R. Student’s apt analogy is Since women may not be ritual slaughterers because they may not exercise authority over men, women may not be rabbis because his rabbi exercises authority, power, and honor. Since a plain sense read of the sources yields both observations and conclusions that deviate with post-Talmudic Ashkenazi Orthodoxy, this reading and the modern Orthodox advocates of Oral Law are dismissed by R. Student as “post- Orthodox.” The implied but strikingly sectarian doctrine of the “post-Orthodoxy” dismissive designation is that for R. Student and his teachers, God’s will is not manifest in a philological–and debatable public reading of the canon, but in that reading of the canon that validates conventional, “traditional” culture as it explained by a self-appointed rabbinic elite. In R. Student’s Orthodoxy, obeying God correctly requires more—and less—than fidelity to the Sinai covenant; the truly devoted Orthodox adherent must also defer to, believe in, and identify with that social construction of Orthodoxy outlined above, which is to our view mislabed as “Tradition.”

 

  1. The parameters of legitimate Halakhic discourse: a study of Rabbi Student’s book review of “Conservative Rabbi Wayne Allen, the inappropriately named Perspectives on Jewish Law and Contemporary Issues,” posted Thursday, January 28, 2010.” R. Student finds the title inappropriate, possibly because the author is a “Conservative” rabbi. In point of fact, the author was ordained at the JTSA, affiliates as a Traditional rather than as a Conservative rabbi, and his erudition far exceeds that of his reviewer. R. Student’s review is surprisingly fair and balanced:

 

Like any such collection, the essays [of R. Allen’s book] vary in length, depth and approach. However, I generally found them to be excellent. I always consider a good sign of intellectual honesty when you cannot generally predict what conclusion a writer will have to a halakhic question… That is not what I expected from a Conservative rabbi.

Ever faithful to the franchise model of Orthodox Judaism, it is the conclusions that are reached rather than the method or mindset that are taken to the issues and questions that concern R. Student. Hence his summary:Click here to read moreEvE

  • Can [sic. Better, “may”] a Non-Jew serve in a synagogue choir? Discouraged
  • Can cantors repeat words and phrases in the liturgy? Yes as long as it doesn’t distort the meaning
  • Can you add the names of the Matriarchs into the Amidah? No
  • Can women lead Pesukei De-Zimra? No
  • Should mourners leave the synagogue for Yizkor during the first year? No
  • Can you convert a lesbian to Judaism? No
  • Can a Non-Jew serve as a pallbearer? Yes
  • Can a pregnant woman go to a cemetery? Yes unless parents object.
  • Can a mourner lead prayers on Shabbos and Yom Tov? Yes
  • Does a married woman need to cover her hair? No
  • Can an active homosexual be ordained as a rabbi? No
  • Can the kesubah of a non-virgin say besulta (virgin)? As long as she was never married before
  • Can you give an employee a negative evaluation? Yes
  • Is there a concept of clergy confidentiality in Judaism? No

While conceding R. Allen’s learned competence and sincere commitment to Judaism, R. Student finds invaliding “post-Orthodox” flaws in Rabbi Allen’s approach:

 

  • The author feels free to use any relevant source…from academics, Reform scholars, Modern Orthodox journals, Charedi responsa and everything in between. His breadth is quite impressive.
  •  He also utilizes a good deal of secular sources to establish the reality.
  • He treats all sources equally, regardless of the stature of the author. –[my emphasis].
  • this leads to results that I think are somewhat humorous, such as carefully analyzing and inferring from the words of R. Hayyim Halevy Donin and R. Maurice Lamm as if they were the Shakh and the Taz.

After outlining what he takes to be the facts of R. Allen’s narrative, R. Student first outlines his objections, and then justifies his position:

 

  • I find this [approach applied by Rabbi Allen to be] objectionable.
  • In general, I believe that you have to take into account the stature of a work’s author.
  • I also believe that halakhic responsa operate within a closed system. Articles can quote anyone and offer a wide variety of views. Responsa, however, have a time-honored style and tradition. [my emphasis]
  • There is no room in responsa for non-traditional scholars. R. Amram Gaon writes in a responsum that scholars who do not act appropriately should not be mentioned in the beis midrash.
  • I think that this also applies to being mentioned in responsa. They have no place in the give-and-take of halakhah.
  • The author also rejects mystical and non-rational practices regardless of how common and well-established they are. He is also quick to reject and dismiss customs that he considers mistaken.
  • On the other hand, there are reasons why this collection of responsa is not Post-Orthodox. The author does not take advantage of historical methodologies. He does recognize historical progression of views — who said what and when — but he does not conduct any sociological or historical-critical analyses. He also does not utilize Talmudic criticism.
  • he is coming from the wrong direction to be Post-Orthodox. He is not someone who is experimentally deviating from Orthodoxy based on his personal religious agenda. Rather, he is coming from the Conservative side, deviating towards Orthodoxy. Will the two paths meet or have they already crossed and traveled past each other?

 

  1. Student’s use of the first person singular reflects the proclamational apodictic style that reflects the power assumed by the charismatic Rosh Yeshiva. His “knowledge” is Gnostic; it is intuitively derived. The way the Rosh Yeshiva speaks to his students is the way the student speaks to his audience, as the oracle of divine knowledge but not as the persuading teacher who, with the student, decodes the text to discover truth. His objections to R. Allen’s work, which were summarized accurately and respectfully, are based upon his culture rather than the Oral Torah canon.

By claiming that Judaism is “closed system” and “time honored tradition,” R. Student indeed reifies his parochializing version of Judaism into the Orthodox Judaism of the historical record. In order to clarify the peshat/grammatical sense of Scripture, Rabbi Hai Gaon consulted with the Syriac catholicus. [Sirat R. Hai; see Steinschneider, Die Arabische Literatur, § 85], we are to accept truth if true, regardless of the source, [Maimonides, Introduction to Eight Chapters], and R. Moses Isserles, the same authority who ruled to override the ritual license that the Oral Torah granted to women and that a custom may override a statutory Oral Torah norm, in Responsum 7 R. Isserles justifies the application of Aristotle for the finding of truth. Apparently, what is permitted to R. Isserles is not permitted to R. Allen. Furthermore, R. Student complains that R. Allen “rejects mystical and non-rational practices regardless of how common and well-established they are.” For the Torah’s view regarding “common and well-established” practices that are presented as if they are Torah when they are not, we recall Leviticus 4:13 and Deuteronomy 4:2. Torah is “the word of the Lord [Isaiah 2:3], not the “common and well-established” practices of men [or women]. Mysticism and non-rational practices not legislated as mandatory are at best “acceptable,” their being “common” and “well-established” is, for R. Student, a more proper source of normativity than philosophical relativism. R. Allen is praised because he does not resort to Talmud criticism. In R. Moshe Bleich’s landmark essay, “The Role of Manuscripts in Halakhic Decision-Making: Hazon Ish, his Precursors and Contemporaries,” published in a vetted, refereed journal, called by of all names, Tradition 27:2 (Winter 1993), indicates that while the Hazon Ish would not rely on manuscripts for determining a normative basis for the law, Maimonides indeed relied upon the best manuscripts of rabbinic literature available to him. For the former sage, what is done is what ought to be done; and it is this mystical, non-rational ideology animates popular religion Orthodoxy, including the Judaism of R. Gil Student. For the latter sage, Maimonides, truth is empirical but not imperial; accurate manuscripts are required because if God’s actual words are recorded in sacred texts and what the words mean determine what Jews ought to do. If we take God seriously, we need to read accurate texts correctly, in order to render appropriately accurate rulings. However, for the non-rational mystic, for whom “Tradition” is a closed unreadable system, the citation of inconvenient facts that contradict Orthodox street religion is “post” or non-Orthodox, critical thinking is itself worthy of criticism because for R. Student’s Orthodoxy truth resides in the charisma of the right reverend rabbis, and not in rightly reasoned rational readings. Accurate texts are not only unnecessary, since Torah authority resides in the person of important people, giving deference to the “stature of the work’s author,” philologically accurate readings threaten the mystical, comfortable, non-rational authority of rabbis to use religious language in order to manipulate religious behavior by usurping the religious power that is invested in the exoteric religious text. Since R. Student’s religion does not issue rulings according to Rabina and R. Ashi’s Talmud or Maimonides’ Compendium, the stature heretofore referred is political and not intellectual, authoritarian but not authoritative, social and not religious.

For R. Student, R. Allen is moving from the heresy of Conservative Judaism to the “truth” of Orthodox Judaisim as he understands it, but by ordaining a woman rabbi, a practice accepted in Liberal streams but not by Orthodoxy, Rabbis Sperber and Weiss are said to reject the religion of “Tradition” and the ruling of R. Isserles, that a woman may not rule or possess authority, and therefore are “post-Orthodox” because they reject a ruling of R. Isserles, which to his view is canonical for Ashkenazi Jewry. By R. Student’s definition and disposition, Rabbis Isserles and Hai Gaon provide precedent for an open responsa writing genre and Rabbi Abraham ibn ‘Azra is a heretical Bible critic.

Like his Rashei Yeshiva teachers, R. Student speaks ex cathedra; his Judaism is defined by proclamation rather than by persuasion or demonstration. It is the stature of the sage and not the cogency of the claim that is for him normative. By defining believing, behaving, and belonging observant Jews as “post-Orthodox,” R. Student invents norms not in attested in the rabbinic canon, [a] it is “improper” to cite non-religious authorities], [b] he presumes to know how the Torah was composed [written by Moses at Sinai, in spite of explicit claims made by the Torah’s Author in the Torah itself], and [c] that Tradition is defined by people of stature and not by the philological sense of what for Orthodox Judaism ought to be taken to be God’s inerrant word.

Rabbi Student’s treatment of R. Allen is respectful and decent. R. Student is a man of conscience and considerable, if not critical, academic Jewish learning. However, he has been conditioned by his community and its conventions to define his particular Judaism as “the” Judaism that alone is Orthodox. By viewing authentic Judaism’s more informed alternatives as post and therefore not really Orthodox, and defending his reading the alternative outside Orthodoxy’s legitimate pale by selecting specific post-canonical views and assigning to those views canonical valence, R. Student advocates a Judaism whose “god” is culture, whose tradition is convention, and for which God’s word is mediated by the canonical person but not in the readable record of the canonical library.

In our view, R. Student’s Judaism is founded upon non-canonical assumptions because his normative benchmark for deviance is the Orthodox institutional franchise, not the actual, textual contours of Orthodoxy’s sacred canon. While his opinions are, in part, in error and therefore from our point of view inaccurate, he tries to be informed, he is widely – and – wildly read, he is a believing, behaving, and belonging Jew. His challenge is powerful; modern/open/liberal Orthodox Judaism have found in this thoughtful opinionator a worthy critic. May we be worthy of and rise to the challenge.

In sum, we find that:

  1. Any rabbinic opinion that is consistent with the legislated norms of the Oral Torah are valid.
  2. Talmudic narrative, Aggada, is descriptive and subjective. Only statements formulated as legal norms, Halakhah, are normative and rise to the threshold of binding law.
  3. Great rabbis are authorized to offer persuasively convincing interpretations.
  4. If we believe that an opinion is unwise, we may argue our point reasonably and respectfully.
  5. If we are convinced that a ruling is incorrect, we must identify the norm being violated.
  6. The Torah is the possession of all Israel, and the image of God is implanted in all humankind.

God is king in Israel. Any great person who is too high to be held to account, is too low a person to be considered to be a great person.

Enjoying UTJ Viewpoints?

UTJ relies on your support to promote an open-minded approach to Torah rooted in classical sources and informed by modern scholarship. Please consider making a generous donation to support our efforts.

Donate Now