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.
Orthodox Judaism’s diversity reveals several different, robust communities of religious Jews who take their religion very seriously. Although Reconstructionist, Reform and Conservative affiliates usually “purchase” a Jewish identity with their membership dues, they usually fail to create communities with thick Jewish cultures, they are suffering declining rather than growing demographics, and their children do not rush to identify with their parents’ denominational preference.
Orthodoxy is winning the battle for Diaspora Jewish identity by default. Official religion Orthodoxy claims that it is the Judaism that was initiated at Mt. Sinai and is lived authentically by and on the contemporary Orthodox street. On one hand, Orthodox life is lived with and among other Orthodox Jews, so Jewish social contact with non-Orthodox Jews rarely takes place in non-Orthodox religious settings. The cost of Orthodox life, which requires private school education, socialization, and indoctrination, strongly discriminates against those with limited commitments—or cash.
Furthermore, contemporary Orthodox culture and classical “Orthodox” Judaism, the anachronistic name that I assign to the religion that is encoded in the Rabbinic religious literary canon, are two different albeit overlapping Judaisms. Institutional Orthodoxy projects a religion obsessed with accepted and expected public ritual displays and it demands an unquestioning commitment to its leadership’s charismatic authority. Torah’s Orthodoxy requires fidelity to a law that is readable, understandable, rational, and is also a map by which the people in power may themselves be held to account. In order to deny the validity—or possibility— of assessing contemporary Orthodox religious leadership, the laws of the Torah system are subject to strategic reconstruction. Below are examples of this reconstruction project.
In many contemporary Orthodox synagogues, latter day saintly rabbis remind their congregants that it is improper to talk between the reciting of the shofar commandment blessing and the concluding 100th shofar blast. According to Oral Torah law, we make nine blasts to fulfill Torah law, three sets of a broken blast surrounded by teqi’ah blasts. Since we are uncertain whether the required broken blast is a shevarim or a teru’ah, we blow three sets of shevarim teruah, shevarim, and teru’ah, with surrounding teqi’ah blasts, to cover every possible permutation.
By Rabbinic law, in order to avoid the possibility that we miss the correct order, we blow the shofar 30 times and not just 9. During these 30 blasts, talking is indeed improper [Maimonides, Shofar 3:11]. Rabbi Isaiah Horowitz [Shnei Luhot ha-Berit Rosh ha-Shanah Ner Mitsva 17] argues that the exceptionally scrupulous will blow 100 blasts. Note well that R. Horowitz himself concedes that this innovation is not obligatory. Once the required 30 blasts are completed, the Rosh Hashanah shofar obligation has been discharged and there is no possibility of a hefseq, or improper interruption occurring. Furthermore, if we really were required by Oral Torah law to blow 100 blasts without interruption, we would blow all of the blasts at one time. The recitation of Hinneni and piyyutim are by law [a] not required to be recited and [b] would themselves be interruptions if no talking is permitted for the 100 shofar blasts. In order to make this point, that the individual is only required to hear 30 blasts without interruption, I did not deliver my Rosh Hashanah sermon before shofar blowing, but afterward, just before Hinneni. Since there is no obligation to blow 100 blasts, there can be no interruption during the final 70 blasts, as they are in any case mandatory. We are not permitted to misinform people to behave in a fashion not required by the law.
When preparing young men for their bar mitsva, I asked and taught them to wear tallit as well as tefillin, when they came of age. Some irate parents informed me that “their ‘tradition’ is that the Jewish male must wait until marriage to wear the tallit.” I explained that the mitsvot become obligations at bar mitsva. The original Ashkenazi view, like the Sefardic view to this day, is to wear the tallit when one reaches bar mitsva age, and the reason many people wrongfully postpone the observance of this rite is based on Derashot ha-Maharil, who formulates a midrash Halakhah, that the Torah juxtaposes the tsitsit/tassel requirement with a particular marriage law [Deut. 22:12-13] in order to justify postponing the commandment’s observance. However, Rabbi Meir Kagan astutely observes that the fact that the Torah juxtaposes the commandment of marriage to the tsitsit commandment is insufficient to justify Maharil’s unauthorized postponing of the commandment observance [Mishnah Berurah 17:10]. Maharil’s suggestion is accepted uncritically by most of the Ashkenazi Orthodox street as if it were Torah law, when it is an anomaly at best and denial of a Torah law at worst. I was informed by a Haredi Rosh Yeshiva “we do not follow this opinion of the Mishnah Berurah,” but he would not explain why R. Kagan’s view is rejected on and by the Orthodox street. Since he sported a black fedora, beard, pe’ot [ritual sidelocks that testify to its wearers’ exemplary piety], as well as the rabbinic caftan called “kapoteh,” and I do not, he was assumed to be correct, and I, not being “blessed” with a beard, black fedora, pe’ot, or kapoteh, could not possibly be Halakhically correct. After all, he sported the semiotics of the “frum look,” which is based on mimicking, conforming, and submitting to the kingdom, power, and glory of the Great Rabbis. Logic is unwelcome in this version of Orthodox discourse and the independent exercise of a knowledge informed conscience is somehow seen to be subversive. Street culture Orthodoxy is about being acceptable to one’s peers, not one’s learning, conscience, or even a personal, passionate sense of what God requires of Jewry. This Orthodoxy demands submission, and the exercise of an alternative religious conscience is seen as subversion.
According to Oral Torah law, grammatically parsed and literally applied, the mitsva of Seder night bitter herbs/maror may not be performed with roots. mPesahim 2:6 allows the maror commandment to be fulfilled with both the leaves as well as the stem of the vegetable, precluding fulfilling the command with roots, including the horseradish root. The rabbinic “authorities” who choose to ignore this Oral Torah law are in philological, and therefore Halakhic error. At https://jewishaction.com/religion/shabbat-holidays/passover/whats-truth-using-horseradish-maror/, R. Ari Zivitovsky correctly observes that horseradish cannot possibly fit the Mishnah’s list of maror vegetables. But one pious modern Orthodox lady recently told me that “her family always used chrain [Yiddish for horseradish] for the maror mitsva and this practice is her family’s ‘tradition.’” Popular usage is in error if and when it misstates what the authentic Tradition, i.e. the Oral Law as it evolved to the time of Ravina I and Rav Ashi, which was the last Bet Din ha-Gadol authorized to issue apodictic legislation [bBava Metsi’a 86a], really requires. If an Orthodox rabbi senses that his spiritual charges “cannot handle the truth,” the rabbi is permitted to remain silent [bBetsa 30a]. The context of this rule is that while Oral Torah law disallows clapping and dancing on Holy Days, it was felt that only “a few good men” will heed the instruction and rabbinic capital should not be squandered over trivial issues. If the community rabbi believes that his ruling will not enjoy compliance, he is authorized to be silent. Better people sin in uninformed error than willfully rebel against the law. Actually, Lakewood Yeshiva’s R. Aharon Kotler’s preferring iceberg lettuce to fulfill the maror mitsva is a much more compelling and convincing opinion, because lettuce, the bPesahim 39a’s hassa, is clearly cognate to the Arabic hass, the Arabic word for lettuce.
Zivitovsky’s conclusion illustrates Orthodoxy’s contemporary Halakhic problematic reconstruction:
There are sufficient grounds for doubting horseradish’s inclusion in the Mishnaic list. Furthermore, even if we were to concede that tamcha refers to horseradish, it is still listed after lettuce and endives in the presumed order of preference. Moreover, horseradish is sharp not bitter, and its root—rather than its leaves—are eaten. Despite all this, family customs should not quickly be abandoned, and horseradish has a long-standing place at the Seder. There may even be reasons to prefer horseradish to lettuce (e.g. difficulty of cleaning lettuce of bugs), but given a choice that does not tamper with a family tradition, it would seem that on Seder night horseradish may be the choice condiment to go with gefilte fish but not to fulfill the mitzvah of maror.
Zivitovsky’s research leaves in its wake the following troubling conclusions: [a] horseradish may not be construed as timcha, one of the Mishnah’s exemplars of maror, because it is neither stem nor leaf, [b] reciting a commandment blessing for eating maror and then eating horseradish with the misguided intention to observe the commandment not only does not discharge one’s religious obligation to eat maror, but also violates the Oral Torah rule regarding reciting improper benedictions. [c] Zivitovsky’s suggestion that family traditions should not be abandoned is also very problematic. Jewish law recognizes minhagei maqom [mPesahim 4:1], not unvetted customs of non-scholarly—or even scholarly—families, as a Halakhic category. One Yeshiva University Rosh Yeshiva told me that maror is timcha; this suggestion is, as demonstrated above, clearly untenable. Like the Eastern European practice of delaying wearing the tallit until marriage is an improper practice, as demonstrated by R. Kagan —using horseradish as maror is not a justifiable or legitimate custom. The Oral Torah canon is for authentic Orthodoxy inviolate, and the maror mitsva cannot be properly observed by consuming a vegetable’s root. The fact that otherwise pious Orthodox Jews and even learned rabbis ruled leniently does not change God’s law. Leviticus 4:13 and Lamentations 5:7 remind us that neither one’s nation nor one’s ancestors are by dint of their identity infallible. The entire community can be wrong [Numbers 15:26]. While Orthodoxy’s professed “official religion” benchmark is the Sinaitic Torah law, its “real religion” is mimetic “tradition,” reifying and reconstructing the descriptive “way we remembered we were” into the prescriptive, nostalgic “way we ought to be” in our present time. “Tradition” is no longer the rules of behavioral obligation and the hermeneutic rules that define recognizable, legitimate Halakhic legal claims. For example, every semicha student “knows” that Oral Torah Orthodoxy rejects the argument from silence, that the absence of legal evidence should not be construed to be evidence of legal absence [m’Eduyyot 2:2]. For example, the that fact that we have not seen women slaughter animals may not be taken to be evidence that women may not slaughter animals – “official religion” Oral Torah Orthodoxy explicitly permitted women to preform kosher slaughter [mHullin 1:1] long before the advent of Feminism or the Ashkenazi Orthodoxy that withdrew this Oral Torah license because “it was the custom to not permit women to perform ritual slaughter” [R. Isserles’ gloss to Shulhan Yoreh De’ah 1:1], allowing mimetic culture “tradition” to override the canonical Oral Torah Tradition.
At stake in this conflict is whether Halakhah is a public and accessible law or the indeterminate rhetorical trove to which charismatic rabbis selectively refer in order to proclaim a non-contestable, apodictic, oracular norm. In other words, is the rabbi bound by the law or is the rabbi himself the law that binds?
There has been significant criticism of some modern Orthodox rabbis who do not to say the “Who has not made me a woman” morning benediction. I do say the benediction because Oral Torah Orthodoxy as I understand it so requires, it is recorded in the canon of Judaism’s “old time religion” and that “is good enough for me.” But referring to such dissenting rabbis as heretics is also improper. The Rabbis who oppose deleting the “Who has not made me a woman” benediction have no problem insisting [a] that the preliminary morning blessings be publicly recited in the synagogue in women’s presence, itself a deviation from the Oral Law requirement that these blessings may be recited only when the acts to which they refer are executed, [b] that women praise God “Who has made me according to His will,” a Talmudically unattested and therefore legally illegitimate, sexist “benediction” first referenced in Abudarham, and [c] the blessing “who has not made me an ignorant person” [she-lo ‘asani Vor][tBerachot 6:18] is also deleted. If this latter benediction may, as in current, accepted practice, be deleted, the recital of the non-canonical “Who has made me according to His will” malediction is a far greater violation, deviation, and break with Oral Torah “Tradition.”
pBerachot 7:3 and bYoma 69b[1] report that the prophet Jeremiah was unwilling to proclaim God to be awesome because the First Temple was destroyed. Some might foolishly argue that what is permitted to Jeremiah is not permitted to contemporary Jewish plebes, like ourselves, who are not permitted to hold personal opinions. Although Jeremiah was a prophet and I suspect that most of us today are not, Jeremiah and we are bound by the exact same rules and are assessed by the Lawgiver by very same Torah benchmarks.
Finally, Abraham had the moral audacity—and religious probity—to challenge God, “will the Judge of all the world not dispense justice,” Who “will judge the judges” if needed [Ruth Rabbah 1:1], and challenge would-be prophets and dreamers who falsely claim that God’s word was given to them [Deut. 13:1-6].
First, it is permissible to disagree with the Sages. However, one must obey their rulings when they are issued by the Bet Din ha-Gadol, the Halakhic Supreme Court. So when R. Joshua appeared in the Academy on the day that to his account was the Day of Atonement, walking stick and wallet in hand, as demanded by Rabban Gamaliel, he did nothing wrong at all. One commits the offense of being a zaqen mamreh, a rebellious judge, when a judge who is authorized to issue hora’ah, apodictic legal decrees, rules [a] that the Bet Din ha-Gadol sitting in plenary session erred and [b] one should follow in practice his alternative, dissenting, rejected minority opinion [bSanhedrin 14b]. There is no statute forbidding the expression of conscientious objection. Since God never claims sovereign immunity for Godself, latter day saintly rabbis may not claim that immunity for themselves, either.
When some Great Rabbis argue, as does Mishnas Rabbi Aharon Kotler 3:153-155, that disagreeing with the Great Rabbis’ intuitive opinion, that Torah law may be intuited by himself, that Orthodox rabbis who meet with non-Orthodox streams’ rabbis are “counterfeiters of Torah” and “haters of God,” they too are subject to review. Any 11th grade yeshiva history student knows that the ancient Great Sanhedrin included both Oral Torah Pharisees as well as Oral Torah denying Sadducees as members, Alexandra Solomne was a female monarch approved by the Pharisees as the legitimate monarch, and the Pharisees, as noted above, did not outlaw political dissent as heresy [mAvot 4:8] or demand that anyone’s oracular demand be accepted uncritically [bBava Mezia 59b] without review. Accordingly, contemporary Great Rabbis formulate narratives that inform their nomos, their approach to Jewish law. Like Greek drama, where the audience hears but may not participate in a dialogue, and the written word cannot, indeed may not be parsed, many contemporary Orthodox Great Rabbis imply, like Nahmanides to Deuteronomy 30:12, that Israel’s constitutional library is neither readable nor understandable and is applicable only by them. For Nahmanides, the principle that is not in Heaven is repentance; the Nahmanidean Torah remains in Heaven for the Great Rabbi to explain. This opinion is incompatible with the canonical bBava Metsi’a 59b, where it affirmed that it is God’s Torah that, once given to Israel, is no longer in Heaven.
For folk religion Orthodoxy, valid opinions are not and may not be determined by reasoned hermeneutics; they must be approved by the Great Rabbis. No modern Orthodox rabbi possesses the standing to have an opinion because his or her “modernity” corrupts and disqualifies them as authentic Orthodox Jewish leaders. Therefore, it might be appropriate to violate a particular statute, like reciting a commandment blessing for maror by eating horse- radish if Great Rabbis, Jewry’s official mediators of “Tradition” in both its social and legal iterations, give their approval.
These Great Rabbis do not tolerate dissent with their intuitive, divinely inspired, ideological Narrative, also known as hashqofeh, or world view. R. Elya Svei called the modern Orthodox Rabbi Norman Lamm an “enemy of God,” [http://research.policyarchive.org/18230.pdf], the very same invective idiom employed by his own main mentor, R. Kotler. By slandering R. Lamm, R. Svei committed an act of bizzui talmid hakham, the disparaging of an otherwise learned and observant Orthodox Jew without convening a bet din that would investigate the facts, hear what R. Lamm has to say in his defense, and explain what public Halakhah memorialized in the Oral Torah canon was knowingly and brazenly violated by R. Lamm. R. Svei’s disparaging denigration nullifies the bona fides of the slanderer [bSanhedrin 99b] according to official religion Orthodox Jewish law. The failure of Haredi Orthodoxy to judge its judges [Ruth Rabba 1:1] or charismatic leaders [Deuteronomy 13:1-6] renders its claim to exemplify “Torah Judaism” to be dubious indeed. There is after all only One Judge Who is entitled to judge alone without the parties’ consent [mAvot 4:8], and this Judge isn’t R. Svei. We recall that the great Rabban Gamaliel was deposed for treating R. Joshua with less than the requisite respect. Ironically, R. Lamm’s immensely learned colleague, R. Herschel Schachter, applied R. Kotler’s “counterfeiting of Torah” idiom to outlaw women’s prayer groups, [a] which happen to violate no explicit Oral Torah norm that R. Schachter cites, [b] which enjoys some pre-modern precedent, and [c] which asserts the undocumented privilege of the Great Sage to invent a legal rule of recognition that would the Great Sage to forbid otherwise permitted acts that violate his inspired sense of religious propriety, that challenge the social ethos, here called Masora, of the Orthodox Street [Nefesh ha-Rav, p. 33].
Official religion Orthodoxy is bound by the Orthodox “Book,” the actual norms memorialized in the Oral Torah canon; real religion Orthodoxy is the Judaism of the Orthodox “Look,” the sacred semiotics of socially accepted gestures of studied parochial “otherness,” signified by beards, black hats, felt or cloth skullcaps, ear locks, and kapotehs. None of these ritual accessories are mandated formal Jewish Law, and mMo’ed Qatan 3:1 even permits shaving on the intermediate festival day for those men for whom circumstances prevented them from shaving before the holiday began. But reciting blessings undocumented in the Oral Torah, pretending that horseradish is maror by prefacing its consumption with a faulty commandment blessing, and misguiding women to proclaim they accept their substandard female station violate explicit Oral Torah norms. Sanctity for the Orthodoxy of the Jewish “Look” is celebrated by its countercultural otherness; for the Orthodoxy of the Jewish “Book,” sanctity is generated by conformity to the Oral Law. These are two competing, robust contenders for the mantle of authentic “Orthodoxy.” Which Orthodoxy will observe all of the Torah’s rules, advance its vision in conformity with those rules, or reconstruct and misrepresent the rules in order to prevail over their competition? The people of Israel and the God of Israel are the referees. The conflict will be for the sake of Heaven if and only if the conflict takes place according to the rules recorded in the Torah that is from but no longer in Heaven. Hillel’s view prevailed over Shammai’s because his deportment was more pleasant. Contemporary Orthodoxy will be judged by its manners regarding dissent. Rabbis do have the right to be wrong; they do not have a right to be rude [Maimonides, De’ot. 5:1].
[1] Hahkam Isaac Sassoon discusses bYoma 69b at pages xxxiii-xxxvi of Siddur Alats Libi.
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Educated and first ordained at the Jewish Theological Seminary of America, Rabbi Alan J. Yuter earned additional ordinations from Yeshiva University, supervised by Rav Moshe D. Tendler, and the Israeli Chief Rav Mordecai Eliahu. He further received Yadin Yadin from Rav David Weiss Halivni and earned a PhD in modern Hebrew Literature from New York University.
A founding member of the UTJ, Rabbi Yuter served as a faculty member at the UTJ’s rabbinical school and has held multiple pulpits, including extended stints in Springfield, NJ, and Baltimore, MD.
Rabbi Yuter is a prolific writer on ritual and philosophical issues, underpinnings of halakha, Biblical criticism, and much more. His essays can be found on UTJ’s Viewpoints . He is also a frequent contributor for The Institute of Jewish Ideas and Ideals.
In addition to his activities with the UTJ, Rabbi Yuter teaches at Torat Reva in Jerusalem and is associated with the Center for Jewish-Christian Understanding, affiliated with Ohr Torah Stone in Efrat.
Rabbi Yuter and his wife Linda reside in Israel.