Personal Conscience and Community Practice in Orthodoxy

In “Kaddish for a Parent – 11 Months or 12?” I address Rabbi Noah Gradofsky’s question as to whether one should say Kaddish for the loss of a parent for eleven or twelve months.  The question raises another issue: What is an informed, halakhically committed individual to do when her or his personal, informed conscience leads to prescriptive conclusions that conflict with popular Orthodox practice?

Institutional Orthodoxy discourages its members from adopting research-based, conscience-driven practices.  “Tradition” is often invoked but rarely defined.  We are never told when “Tradition” is what the Talmud prescribes and when it is what Jewry’s popular culture expects.  The Great Rabbis argue that rank and file rabbis, like the laity, do not have the right to an opinion.   We are told that we follow R. Isserles, “the” Mishnah Berurah, or “’The Poseqim,’” the great deciders. What Jewry is not authorized to do is to reach independent conclusions, however logical, coherent or convincing they may be.  This version of Orthodoxy conditions its clients not to read the Canon or reach a conclusion regarding its application. Instead, this Orthodoxy directs its client affiliates to be dutifully compliant; its leadership intuits God’s will intuitively and directly for its laity. This “social/political structure” nurtures Nietzsche’s Untermench, James’s sick soul, and Rabbi Soloveicthik’s conventional “Religious Man.”  This passive religious population does not tolerate religious seekers, spiritual searchers, or Jewish Studies experts who, by applying their philological toolbox, may offer a different, subversive, and alternative reading of what is mistaken to be God’s word and will, and do so convincingly.  For this iteration of Orthodoxy, just as Jewry is forbidden to question God’s commandments, Jewry may not show disrespect, especially by not deferring to “the” poseqim, whose sovereign immunity shields them from review or assessment, even against the benchmarks of the canon itself.  When confronted with charges of faculty sexual abuse of high school students, the Great Rabbis ruled that it is forbidden to turn to the police when sexual abuse occurs. This is not the uncontested rule of R. Isserles at Hoshen Mishpat 425:1, that requires referring incidents to the civil authorities when these life and morality endangering events happen. No one referenced this codified passage in the public discussion that came to my attention.

This Orthodoxy stresses conformity of ritual, socialization, dress, and ideology.  Its ideal members are by reflex conditioned to defer to their authority figures.  We are told that is “our custom” to not wear tefillin on the morning of the 9^th of Av and on Hol ha-Mo’ed.  This dispute is not about a custom, it is a legal opinion about a law: are tefillin required on these occasions or not?  The fact that we are permitted to write tefillin on Hol ha-Mo’ed, when professional writing is forbidden, is proof that that tefillin should be worn on Hol ha-Mo’ed.   While an onen, one whose relative has died but burial has not yet taken place, is exempt from tefillin, that situation does not apply on the 9^th of Av. Accordingly, this popular “practice” of delaying the donning of tefillin until the afternoon prayers is not a legally valid custom, even though it has been “accepted” by a well-intentioned but uninformed Orthodox laity that has been conditioned to regard the raising of these issues to be uncouth because it subverts the authority of the Great Rabbis.  The informed Orthodox conscience  is instructed to [a] defer to contemporary Great Rabbis, [b] not practice Orthodox protocols differently than one’s community, immodestly calling attention to oneself, [c] avoid expressions of self-importance, and [d] not act as if one is able to read, understand, and apply a Torah that must revered but may not read independently of the ideological narrative that the Great Rabbis impose.  Rather than misread the Torah based upon personal biases, faulty religious narratives, or modern Halakhic hubris, Jewry is hereby obliged to obey the pious, pure, divinely inspired, and virtually infallible Great Rabbis. We trust God by trusting this elite, the Great Rabbis whose apostolic authority insures their reliability. No one is able to know the Divine will which is available to no one but them.  One zealous advocate for this position argued that “Masorah is the uncodified part of Torah.”  This view is problematic because, as noted above, to be considered part of Torah, a work must receive approval from a Bet Din ha-Gadol. Torah Orthodoxy does not tolerate esoteric laws.

In my professional rabbinate, I presented both sides of this dispute to the congregation and established the custom of not establishing a fixed custom. The congregants were empowered to exercise their own judgment and conscience.  This is not an issue of family habit, but what Jewish law actually and objectively requires, based upon a plain sense, common sense, philological understanding of the Oral Torah Canon.  At stake in this dispute is the nature of the ideal Orthodox religious Jew; is she or he a thinking seeker or one who nullifies one’s conscience by paying dues and due deference to hierarchically superior institutional elites? Are Orthodox Jews infantilized adults who speak and act as children who follow their leaders blindly, or are they self-starting, initiative taking, moral agents who, having internalized Torah thinking, put away childish things by making their own moral judgment calls? Is Torah a world view to be internalized, or an indeterminate array of incoherent rules for which infantilization is the best way to insure formal compliance? The modern Orthodox rabbi will empower Jewry to choose one’s personal path in Torah; the Haredi Orthodox rabbi rightly regards the free choice to read and apply Torah to be a subversive challenge to Judaism’s traditional leadership, which claims to be able to “read between the Torah’s lines.” The Modern Orthodox rabbi defines Judaism by examining the plain sense of the canonical text; Haredi Orthodoxy [1] maintains that Torah texts are unreadable and then [2] declares that only its elite is capable of identifying, explicating, and prescribing what Judaism ought to be.  Ironically, the Modern Orthodox are legal formalists, for whom law is a system of organized norms, which command, forbid, and when silent, authorize, allow, and legitimate individual autonomy, discretion, and rights.  Legal formalism works perfectly for a revealed, Divine law, so errors and inconsistencies can be identified, and corrected. Haredi Orthodox rabbis are legal realists, according to which the Law is what the judges declare the Law to be.  The judges are always right, and virtually infallible, unlike God Who actually is infallible.  The legitimating test to which both Orthodox Judaisms should be put is their willingness to share their hermeneutic, the interpretive rules that they take to the Torah’s written words, with which the world was created in the beginning,  that word  that was given to us, Israel, from the moment of Sinai, and will be with us until eternity.

Which “Orthodoxy” is the one endorsed by the Possessor of the Great Name Who is praised when Qaddish is said?