Reactions To Rabbi Gradofsky’s Response Regarding Telephonic Megillah Reading

Please note: This is the third in a series of three articles on this subject.  Please also see the original responsum by Rabbi Alan J. Yuter as well as this response by Rabbi Noah Gradofsky.

1. The greatest honor that a student can give his or her mentor is to become a colleague, sharing a passion for truth as an equal, and possessing the learning, courage, and integrity to seek the absolute “truth” as a finite, mortal human being in search of the Numinous Ding en sich, the “thing-in-itself,” to approximate as much as humanly possible God’s infinite perspective. In our UTJ community, the teacher invites the student to join the fraternity of seekers in a shared quest of learning Torah, to discover the revealed, revered, yet readable “word of the Lord.”
   This sensibility contrasts sharply with some other Orthodox voices that maintain that the Torah may be read and understood only by an elite that is endowed with the capacity to intuit divine intent. One is only entitled to learn Torah through the filter of an undefined protean “tradition,” which is only known to and may be transmitted by rabbis who are known to be “great.”  For this well-intentioned but in our view errant iteration of Orthodoxy, Torah learning strives to recover the theological and atextual narrative, the hashqafah, of the “Great Rabbi” who knowingly filters the sacred text for and to his compliant, client community. Our alternative approach takes God at God’s word, that the divine law is written in a readable and comprehensible human language, decodable with accessible and learnable philological and hermeneutic rules [Deut. 30:12], and that the socio-religious construction of reality that we find encoded in God’s Book is the “orthodoxy” prescribed in God’s Torah from Heaven.  This Torah, understood as “oracle” as well as “teaching,” reveals God’s law with its red lines in the sand. This Torah is a readable human language document that was given to us, all of us, the entire house of Israel [Deut. 33:4], with what R. David Halivni calls Judaism’s “predilection for a justified law.” Although we may be nearsighted, we are not color blind; we are both able and responsible to read, restore, and respect those religiously significant red lines.R. Gradofsky was once my student; he is now a learned colleague, with the integrity, empathy, and the wisdom to strike his own balance between the flexibility afforded by legal realism and the anchor offered by legal positivism. In our UTJ community, religious and moral values are not owned by any institutional franchise; they are memorialized in the Book of Books. I gratefully welcome R. Gradofsky’s thoughtful contribution, keen eye, probing curiosity, and unique, individual perspective. Following mAvot 4:1 and bMakkot 10a, it is now the teacher’s turn to be taught by the talmid/student who has taken his rightful place as a haver/colleague and partner in the shared search for the truths encoded in God’s readable Torah.
2. R. Gradofsky’s most important contribution to the telephonic Megillah reading conversation emerges from his own synthesis of legal positivism and legal realism. Read realistically, the written legal norm requires interpretation, which consists of a subjective attempt to isolate the relevant facts and identify the legal order’s relevant norms. One Yeshiva University Rosh Yeshiva argued that it is a heretical act of disrespect for a non-Great Rabbi to attribute motives or ideological motivations to a Great Rabbinic authority. We are told to assume that the rabbi divines, with divine help, divine intention. These rabbis claim sovereign immunity, possessing Da’asTorah, the ability to intuit God’s will.
   The claim that there are no rabbinic agendas is itself an agenda.  And the Legal Positivist will ask if there is an explicit Halakhic norm forbidding the making of this claim, especially if the claim is grounded in evidence. There is no Torah norm that frees authority figures from assessment and review. The UTJ, IRF, and the Israeli Beit Hillel and Tzohar modern Orthodox rabbinic organizations share a modern Orthodox agenda, to be as welcoming, accommodating, and including as possible given the Halakhic red lines that define the borders and shape of the religion encoded in God’s revealed, recorded words. This agenda is legitimate because it is “Orthodox,” in the sense of honoring and deferring to the Torah’s red lines. It is legitimate to debate the scope of those red lines based on the semantic sense of the legal norm’s formulation.Positivists will rightly argue among themselves about how the canon’s diction may be understood, what exactly the canon actually prescribes, and how the legal norm ought to be applied.  The Haredi narrative policy strives to protect the holy community with high walls to keep the infidel and religious infidelity out; the more cosmopolitan “modern” Orthodox narrative regards those excessively high social walls to be artificial barriers to Jewry’s accessing God’s word. The fence we erect around the Torah is designed to protect the Torah from contamination, not to make Judaism exclusive by keeping Jews outside of its embrace if they fail to observe non-mandatory popular religion rites like upsheren, kapporos, tashlich, sheitel, not listening to music on sefira, and the currently in-vogue male hat of pious choice, the shiny black Borsolino.R. Gradofsky rightly reminds us that legal positivism is not an exercise in juridic robotics; it is an appeal to the shared law that binds everyone, master and lay person alike, with a shared sense of what the rules of the Halakhic “game” actually are. For legal realists, the Torah covenant is filtered by the judge’s agenda, which determines what ought to be done. Within the parameters of the statutory norm’s semantic field, the learned Jew is authorized to implement her or his judicial agenda. The doctrines now popular in Orthodox culture are [a]we do not determine the law from the Talmud or Maimonides, [b] the Oral Torah rules need not be taken literally, and [c] in practice only the Great Rabbis have the right, ability, and authority to define Judaism’s rules and beliefs.
3. To the issue at hand, what is the legal status and propriety of a digital reading of the Esther Scroll on Purim, when there are legal and medical reasons to forbid leaving one’s residence in order to hear the Esther Scroll being read in the synagogue? mRosh ha-Shanah 3:7 rules that the shofar sound must be made by an adult Jewish male[1] who is obliged to hear the sound made by the shofar that he blows. The divide between R. Gradofsky and me revolves around our understandings of the semantic field that defines this Mishnaic norm.  My understanding of this Mishnah’s syntax is that the sound of the actual blown shofar must be heard in order to fulfill the sanctifying commandment. R. Gradofsky argues, if I understand his words correctly, [a] the word havara is subject to debate, and is therefore in the category of safeq, or doubt, and subject to a range of possible, even if less plausible, renderings, and [b] the world wide Coronavirus contagion is potentially lethal, placing the entire   human race under risk, often without jobs or  salaries, without basic social contact or mingling and often without food and pharmaceuticals.  The health danger itself provides warrant to waive rabbinic decrees. Here in Israel, the country is now in lockdown, people may leave their homes for food and medical visits, people lose income with no end time yet in sight, and are rightly concerned about their medical and financial health. Just as with Tosafot’s permitting the otherwise forbidden clapping and dancing on Jewish holidays during the Crusades, perhaps the emergency of the entire world being at war with a potentially lethal virus gave rise to an emergency that requires suspending the law.

4. This anomalous Tosafist leniency permitting holiday clapping and dancing makes sense, as well argued by R. Gradofsky, by invoking Maimonides, Mamrim 2:4, which authorizes the local, post-Rav Ashi community rabbi to uproot, in this context to suspend, i.e. not abolish, a Torah law in order to “return the masses to the [Torah] law.” According to Maimonides, this license is given to the individual, local rabbi, even if the rabbi in office at the moment is inferior to the former rabbis of yesteryear. No Beit Din short of the Beit Din ha-Gadol is either empowered or entitled to withdraw this license when it is invoked, including the Mo’etses Gedolei ha-Torah, the Agudas ha-Rabbonim, or the current Chief Rabbinate of Israel. We may not judge the Tosafot’s permitting clapping and dancing on holy days because we were not living in 12^th Century CE France and Germany, when entire Jewish communities were martyred for refusing baptism. mAvot 2:4 explicitly forbids by legal norm the judging of others until and unless one stands in their place, which of course cannot be done. Authentic Orthodox Judaism actually disapproves of being judgmental. That is why Jewish courts require six eyes, requiring a minimum of three different perspectives, a trinocularity unavailable to any one human being. Among his rules of judicial procedure, R. Ishmael first requires that one willingly forego the honor of sitting in judgment of others, which is not a good job for a Jewish young man.  A high-handed judge intoxicated with power is a fool, wicked, and arrogant.  One should avoid presiding as a single judge since there is only One judge Who sees all the infinite sides of the case, and that is God God-self [mAvot 4:7-8].
   Orthodox Jews may address questions to their leaders, like “why did you do that [I Kings 1:6 and Maimonides, De’ot 6:5].  On one hand, R. Feinstein is clearly not satisfied with the Tosafist overriding a clear and unambiguous rabbinic decree by permitting clapping and dancing on Jewish holy days; he  nevertheless does not sit in judgment of Tosafot because there is only One being Who alone is authorized to judge, as described at Deuteronomy 32:4-5.R. Gradofsky the legal realist advocates for the Jewish people by arguing that in the world war between Homo Sapiens and the Coronavirus, the international lockdown, financial hardship, and social dislocation can be both frustrating and maddening, generating a Halakhic emergency. Haman wanted to destroy all of Persia’s Jews; the Caronavirus happens to attack anyone and everyone whom it is able to infect. It is not pastorally helpful to upset the masses by telling them that, under current extreme circumstances, they have failed to fulfil their real religious obligations by hearing a digital reading of the Megillah.While I do not agree with this rendering, I understand and appreciate R. Gradofsky’s impulse for inclusive empathy, I am also required to read his position with empathy and good will.  In the contemporary Orthodox world, we sometimes call people heretics if they reach and teach doctrines with which we disagree. In the Mishnah cited above [mAvot 4:8], the judge is not entitled to insist that other rabbis must “accept my opinion” perhaps “because I am more smart, pious, modest, or worthy than anyone else.” Rabbis must be deliberate when judging [mAvot 1:1].  With the above citations we learn that modesty is not only about what women ought to cover; modesty is also about how powerful men ought not to be intoxicated by their power as they reveal their biases. On occasion, the judge—or rabbi—may need to be judged [Ruth Rabba 1:1]. This too is the Positive Jewish law.R. Gradofsky’s suggested reading is possible but to my finite eyes implausible. The judge can only see with the eyes that God has given [bBava Batra 131a and elsewhere]. In a shi’ur [Torah lesson] teaching rabbis and rabbis-in-training how to distinguish between menstrual blood, which is tinged red, and the blood of a wound, which is tinged brown, the polymath R. Moshe D. Tendler explained that the Torah is surrendered to the human eye, through which the world “out there” is filtered. One rabbi will may see a stain as brown and declare “permitted to her husband,” and another rabbi, with different eyes, will see that very same stain as red and then declare “forbidden to her husband.”When teaching this principle at the Hillel Yeshiva High School in Deal, New Jersey, I used a more prosaic example. I asked the students to imagine they were standing in the electronics section of the area’s Sears department store on a Sunday October afternoon. There are rows of shelves with TV screens showing the New York Jets, all dressed in green, being routed by their superior opponent. Not one TV telecasted the same hue of green as any other screen. Yet if we were in attendance at the stadium, we would see the green jerseys with our own eyes. Similarly, R. Tendler patiently yet precisely explained, whether a house is defiled or contaminated by tsara’at contagion depends upon the subjective eyes of the inspecting Kohen.

   Maimonides reminds us that the judge is to rule according to the conclusion that “the reason tilts” [Introduction to the Yad compendium], i.e. the most compelling, convincing, and reasonable view.  Note well that certainty is not required; people who on principle will never change their minds may not have minds to change. From the above, the judge and/or rabbi must realize that one might be wrong.  A het, usually translated “sin,” really means to “miss the target.” In Arabic, the word actually means “mistake,” and in American Hebrew speaking summer camps the Hebrew word for the baseball “swing and a miss” strike is hahta’ah, the bat having made the “mistake” of having missed hitting the pitched ball.  The default position for a faulty rabbinic ruling is “error,” not “apostasy” [Shulhan ‘Aruch Hoshen Mishpat 25 and 34].  Calling the dissenter a heretic is highly improper.  Views that are incorrect are mistaken, not evil. The positive Jewish norms are more than sufficient to address current realities and challenges.

   We must analyze the words of the canonical Oral Torah norm in order to identify exactly what the norm requires.  The idioms “miqra Megillah” and “qol shofar” both refer to producing of specific, discrete sounds, that is the human reading of the written Esther Scroll and hearing of the sound produced by the shofar being  blown.  These two idioms indicate that the respective reproducing of a shofar-like sound or a digital facsimile do not satisfy the respective Halakhic requirements. The actual sound must be made by the shofar itself, and not a copy of that sound, and an oral, calling out reading [miqra Megillah] of the Esther Scroll must be done by a person who is obliged to read the Scroll.  Other reproductions of the sounds simply do not fulfill the norm’s requirements; the human agency of the commanded Jew is a prerequisite for discharging the Halakhic obligation. Therefore, in the twin cases of Shofar and Megillah, the statute’s diction seems to require [a] the proper sounds be made [b] by a Jewish adult who is obliged to observe the commandment. Note well that legal positivism is not unaware of the ethical values encoded in the law; legal positivism realizes that one cannot parse the values the law prescribes unless the investigator avoids reading her or his biases and preferences into the law.

5. Jewish law’s “emergency clause,” hora’at sha’ah, memorialized by Maimonides at Mamrim 2:4, empowers the local rabbi to suspend—not abolish—any or every law other than those concerning bloodshed, apostasy, and sexual immorality, in order to “return the masses to [the observance of] the law.” If it is not possible to fulfill the law, no violation occurs in the event of unavoidable noncompliance [b’Avodah Zarah 54a].  By giving an errant impression that an internet Megillah reading satisfies the legal requirement, rabbis may mislead and confuse their communities. Waiving the requisite unmediated and direct human agency authorizes a misleading as well as an improper commandment blessing, like the Tosafist innovative ‘al mishm’a Megillah “blessing,” which is unattested in the Oral Law canon and overrides the Talmud’s authoritative determination that women’s  Megillah obligation is reading, i.e. miqra, and not merely hearing, i.e. mishm’a Megillah. After all, the Talmud’s rulings supersede all earlier Oral Torah documents and voices.  Reciting a faulty blessing would not, to my mind, move people to observe any commandment, and the unauthorized blessing recitation is, to boot, a violation of improperly and incorrectly invoking God’s holy Name. The Halakhic rule of thumb is that questionable blessings are to be avoided.  If we are uncertain that an act is a mitsva, we may not claim that the act is in fact a mitsva [See Deut. 4:2].

6. R. Gradofsky astutely raises an often cited, inadequately understood, and improperly applied principle of being someich, i.e. relying upon a Great Rabbi’s name and charismatic authority when one is unable to reach a satisfying or satisfactory conclusion with one’s own best efforts. A rabbi who is unable to determine which opinion, canonical source, or public policy course of action is objectively correct or at least most compelling will follow the reasoning of a sage whom she or he knows, whose orientation he or she shares, and in whom the inquiring rabbi has the comfort of confidence. This approach is not pesaq, rabbinic legal decision making. Authentic pesaq first presents the [a] the case’s given empirical facts, then [b] identifies  the relevant legal norms, [c] in order to insure  legal validity, the poseq     must ascertain that no violation of a higher grade norm occurs [unless there is a clear and present danger, hora’at sha’ah] when implementing the decision, and last, [d] determining that the client community is  both willing and able to accept the ruling.
   Great Rabbis may object to a ruling on policy grounds, including claiming that the ruling is unwise, but unless the Great Rabbis are able to demonstrate that the particular opinion violates devar Mishnah, or statutory Torah or rabbinic norm, that opinion remains legally valid.  For example, it is reported that Hillel accepted a convert who was at the moment of his conversion accepting the Written but not the Oral Law. The discretion to accept—or reject—a conversion candidate is given to the local rabbi by Jewish law.  No post-Talmudic court is legally authorized to alter this positive legal fact, including the Israeli Chief Rabbinate, the Agudas ha-Rabbonim, or Agudath Israel’s Council of Great Sages.  It is permitted to rely on the Talmud or, for that matter, on Maimonides’s [Responsum Pe’er ha-Dor n. 132], who recommends a very soft conversion to avoid an intermarriage.  One does not have to like, agree with, or implement Maimonides’s ruling; however, it may not be ignored, demeaned, denied, or suppressed. It is a matter of public record that the modern Haredi decisor, R. Hayyim Ozer Grodzinsky, also ruled leniently on this matter [Ahiezer 3:26:3].Now, relying on a Great Sage’s charisma is not a decision, i.e. a pesaq, and the rabbi who is someich, by relying on a Great Sage, withdraws from the conversation.  While the Great Sage is authorized to offer a learned opinion, he is not himself a source of norm creation. That prerogative belongs to the Beit Din ha-Gadol when it sits in session.  No Beit Din ha-Gadol has determined that R. Jacob Tam has an infallible knack of accurately intuiting God’s mind or that Maimonides is or is not a Halakhic Man. The fact that this or that post-Rav Ashi rabbinic opinion exists does not make that opinion valid [at bBava Metsi’a  86a it is reported that hora’ah, apodictic rabbinic legislation, lapsed with Ravina I and Rav Ashi]; legal validity is grounded in the proposed ruling not conflicting with higher grade Oral Torah norms.  For this reason, since a local custom is neither Torah nor Rabbinic law, it cannot be a commandment, even if it is an obligation.  Only commandments generate commandment blessings.We should not rely [be someich] on an opinion if we do not believe it to be correct, but it is permitted to defer to those whose learning and wisdom exceeds one’s own capacity.  Now, Tosafot to bMegillah 17b, s.v. kol ha-Torah  claims that there is a Torah obligation  to read parshat ‘Amaleq from a kosher Torah scroll, without either confirming citation  or convincing demonstration.  Why Ashkenazi Orthodoxy has adopted this odd, apodictic opinion over Nahmanides’s plain and common sense opinion that one must tell the Amaleq narrative, is not discussed, explained, or justified. Similarly, Nahmanides’s odd suggestion, also unattested in the Oral Torah canon, is the claim that the post-mortem remains of the righteous do not defile [see  his comment to Numbers 19:2].According to Leviticus 21:1, the dead defile without the Nahmanidian exception even being mentioned, much less entertained as plausible. These two opinions are accepted because of the charisma of their authors, not because a proof text was cited or a logical demonstration was offered.In order to insure and preserve its immunity from assessment, review, or accountability, Great Rabbis have conditioned the Orthodox rank and file to accept their institutional authority as if it is identical to Torah authority. The community is trained to view piety as the uncritical submission to its leadership’s directives. Individuals are instructed not to act upon their own moral instincts. Judging the Great Rabbi elite’s judges is for this iteration of Orthodoxy an injudicious if not disrespectful and therefore heretical act.  Leviticus 4:13 and Deuteronomy 13:1-6 and the prophetic precedents of holding the monarchy to account indicate that for the Torah covenant, God does nor claim sovereign immunity, rendering human political claims to sovereign immunity dubious if not ridiculous.  Every Biblical hero acted upon his and her moral conscience [see for example Genesis 18:25].

   In recent times,  this disposition of suppressing the individual’s sense of moral agency has protected sexual abusers by allowing  institutional charisma to supersede common sense, looking good before people trumping being good before God, and the laity being ordered  “do not go the authorities, you will bring shame upon our holy community.” But at Shulhan ‘Aruch Hoshen Mishpat 425:1 we are taught when there is sexual predatory behavior, we must turn to the civil authorities for relief. We may not hide the “shanda” [shameful scandal] from view. Just as God sees the sinning sexual predator, God also sees how the holy community deals with the predator as well as the victims.  Do we send the predator in jail or is the exploitive offender quietly shuttled to another unsuspecting venue?

   The difference between what the positive law demands and how the law is applied is the benchmark by which Jewish Orthodoxy will be judged, in this world and in the next. Is  Orthodox society a holy community or a nostalgic taste culture? The answer is found in the communal compliance to the Positive law. An Orthodoxy worthy of the name will nurture lay people with the faith and courage to ask their rabbis, “why do you not rule according to the Shulhan ‘Aruch statutory norm, why is common sense an uncommon occurrence, and why are we hiding the guilty and not protecting innocent victims?” The Legal Positivist will not be awed by personal charisma, but will defer to the law, following Proverbs 21:30.

   Being someich, relying on a Great Sage, is the local rabbi’s approach of last resort to difficult questions.  A poseq is one who demonstrates that the decision rendered is both valid, i.e. consistent with the hermeneutics of the Oral Torah, and wise, i.e. socially prudent and ethically appropriate to the immediate realities of the living community over which the rabbi presides.  Therefore, elying on an opinion because it advances the local rabbi’s ideology, agenda, or policy, is in my view improper. After all, it is the plain sense implication of the “official religion” legislated norm, not the human charismatic’s intuition, that for the “orthodox” religion encoded in the Oral Torah canon is the ultimate  source of Torah authority.

   How do we know that we may “rely” on Tosafot when Tosafot knows, with neo-gnostic certainty, that the Biblical ‘Amaleq pericope must, by Torah law, be read from a kosher Torah scroll, or relying on Nahmanides, that the remains of the righteous do not defile?  Once we rely on rabbinic charisma, [a] the textual Torah becomes unreadable and therefore irrelevant, [b] the locus of Torah authority is moved from the now no longer readable Torah words to the Great Rabbis’ intuitive charisma, which de-authorizes the plain sense of the canon and empowers the Great Rabbi to proclaim Torah truth in a prophetic, charismatic voice, a point of view that is not attested in the Torah canon.

7. In sum,

a. The words of the Oral Torah canon lead me to conclude that the commandments to perform a reading of the Esther Scroll and hear the sound of the shofar is the norm that the Tanna’im and Amora’im who formulated rabbinic law had legislated; they might testify that a minority view may be relied upon in exigent circumstances.  The legal fact is that the Megillah reading requires the immediate agency of someone commanded to make those sounds and this agency is essential to fulfilling the command. Once a minority view is formally rejected by the Beit Din ha-Gadol, its normativity lapses.

b. The Coronavirus emergency provides the context to justify suspending public, communal Jewish life and perhaps providing a Megillah reading over the radio, television, or the internet. But this alternative reading fails to fulfill the statutory requirements of a Halakhic reading.  I fail to see how claiming that this ersatz substitute for an undoable mitsvah, which by dint of its undoability is no longer a mitsvah,” brings people closer to the law. The law exempts people for not  doing  what it is not possible for  them to do; the deletion of the commandment blessing recognizes  the facts [a] that at this moment the Megillah mitsva is indeed undoable, [b] we are yearning for the time when the Megillah mitsva will again be  doable, and [c] by applying the rules regarding not  saying commandment blessing when the act   one is performing is not certainly a commandment [safeq berachot le-ha-qeil], we express our fidelity to  a Torah  that sanctifies, and empowers, like God at the moment of creation, with the Word, which sets one  free by keeping one honest to God, and to oneself.

[1] For Megillah, the Talmud clarifies at Arakhin 2b-3a that a woman is qualified to read Megillah.  C.f. Rashi ad. loc., Maimonides Megillah 1:2 and Maggid Mishneh thereon. Note R. Karo cites Maggid Mishneh at Beth Yoseph Orah Hayyim.

Please note: This is the third in a series of three articles on this subject.  Please also see the original responsum by Rabbi Alan J. Yuter as well as this response by Rabbi Noah Gradofsky.