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.
“Modern” Orthodox Israeli Jews expect their young women as well as their young men to enlist in National Service or in Tzaha”l, the Israel Defense Force. This practice is seen by many serious Orthodox Jews to be on the margin, if not outside, the pale of Orthodoxy’s acceptable boundaries. After all, the Hazon Ish, the great Haredi Rabbi Abraham Karelitz, declared that young Jewish women may not leave the protective cocoon of hearth, home, and the environment of holy control, and Jewish men must be permitted to remain in the Yeshiva, where their world view, ideology, and culture Narrative are celebrated and reinforced.
How one resolves this tension, whether to serve in the Israeli army or not, has become an indicator of one’s Orthodox identity. Three topics need to be examined in order to understand this issue:
Contrary to popular opinion, Jewish military service is mandatory when Jewry is confronted with wars of Jewish national defense, or Mitsva wars. bSota 44b proclaims that for defensive wars, both men and women are to be conscripted. Accordingly, it would seem that according to Oral Torah Jewish Law, military service is mandatory. And if such service is indeed mandatory, how can it be that this service is discouraged or forbidden by prominent Orthodox rabbis? On one hand, women are forbidden to wsear weaponry [bNazir 59a], but Jewry nevertheless had women warriors, on the other. Curiously, the canonical bSota 44b source is rarely if ever cited, much less discussed, when dealing with this controversial conversation. People’s opinions on this issue almost always reflect the views of their peers and social circle [Maimonides, De’ot 6:1], and are rarely based upon a reasoned, reasonable reading and socially appropriate application of the canonical Jewish tradition.
Israel’s “religion,” its contract with God, is called “Torah.” This Torah is from but no longer in Heaven. “Torah from Heaven” means that the Torah accurately and perfectly reports the will of God, this Divine will is to be taken seriously, and compliance with Torah’s norms is mandatory. This doctrine does not suggest that the entire Torah was given at Sinai. According to the Written Torah’s report, the Torah was actually committed to writing by Moses before his death, as reported at Deuteronomy 31:9. By committing this Torah to writing, it is no longer in Heaven. Consequently, this Torah does not tolerate secret, hidden, or mystical laws [Deut. 28:28]. This Written Torah does authorize the Supreme Court called the Beit Din ha-Gadol to develop and legislate laws that carry Torah authority [Deuteronomy 17:8-11]. The “Torah from Heaven” doctrine means that the Torah that we possess today is [a] Divinely authentic, [b] it is read with a human, common sense application of the Oral Torah’s now public interpretative rules, and [c] Jewish law commands, forbids, and when silent permits, authorizes, and empowers both individual and communal autonomy. Torah and Rabbinic laws are inviolate; however, the usages, habits, etiquette, values and folkways of Jewish social culture are subject to change because they are accessories to and not norms of God’s covenanted Torah. Unless the Talmud formulates its position in the diction of a legal norm, the Talmud’s statements are advisory, but not always universally legally binding. Maimonides declares that Israel is obliged to observe the enactments, negative decrees, and customs memorialized in the Torah canon; no serious Orthodox Jew insists upon being treated according to the norms of Talmudic medicine.
Since Torah’s rules are revealed, public, and knowable, no body and nobody other than the currently defunct Bet Din ha-Gadol, possesses a privileged understanding of Torah’s words. Since God’s Torah does not grant to Godself sovereign immunity – it is permissible, because at no place in the Torah canon is it forbidden, to argue with God. This is why Abraham, Moses, David, Jeremiah, and Job all challenge God without Divine disapproval. No person, intuition, institution, other than the Torah authorized Bet Din ha-Gadol has the standing to speak on God’s behalf regarding what God relly requires. Only the most reasonable – and convincing – reading of the Oral Law canon is legally binding [bHullin 90b].
R. Abraham Karelitz among others, opposed women serving in the Israeli army. Concerns of morality, modesty, and Masorah, i.e. “Tradition,” are cited. But the canonical bSota 44b goes unaddressed by R. Karelitz [Letters 1:113] and no conversation, or calling attention to the disconnect between what the canon seems to say and what R. Karelitz claims it says, is tolerated by this particular Orthodox culture. For R. Karelitz, “Tradition” and Halakhah do not only refer to the Oral Torah Laws that came to closure with the Talmud of Rav Ashi [bBaba Mezi’a 86a]; “Tradition” is also the inherited living culture of the Orthodox Jewish street over which the great rabbi rules without election, accountability, or for that matter, review. For R. Karelitz, Halakhah is both the de jure word of God as well as the de facto conventions—and innovations–of his own human culture, and is based upon a subjective, and infallible, intuition. So when human culture and Jewry’s sacred, no longer in Heaven textual Tradition conflict, everyday Orthodox Jewish life expectations invariably trump recorded Torah principle. No questions regarding the conflict between conventional Orthodox propriety and covenantal Orthodox obligations are allowed. Exposing the gap between Orthodox Jewish Law and actual Orthodox practice undermines the rabbinically fostered faith in the virtual rabbinic infallibility that that elements within Orthodoxy have claimed. This conflict is not uncommon in modernity’s Orthodoxy. The same proto-Haredi R. Moses Sofer, best known for proclaiming that “innovation is forbidden by the Torah” [Responsa Orah Hayyim 28 and Yoreh De’ah 19, which is a word play on m’Orlah 3:9] also ruled that a “custom may override a law.” [Orah Hayyim 36, s.v. ha-omnam] In “official religion” Jewish law, customs are human conventions, but rabbinic laws enjoy an element of Torah sanctity [Deuteronomy 17:11 and Isaiah 2:3]. One would think, as Maimonides maintains [Introduction to the Yad], that universally accepted Rabbinic legislation carries greater legal valence than local customs, R. Sofer’s Othodoxy, like R. Karelitz’s, is both socially conservative and legally radical. In order to preserve Orthodox religious culture in an age of secularizing change and challenge, the Torah’s legal definitions actually undergo reconstruction and reformulation. To this view, bold barriers need to be put in place in order to keep modernity’s malignant secularity out of the Orthodox Jewish communal orbit. After all, they contend, not every act that is permitted in theory is necessarily appropriate, prudent, or practical for implementation. Accordingly, social religious policy dictates that it is better to erect clear and unmistakable boundaries that distinguish between the Torah true Orthodox and the sectarian, contending, competing “others,” be they apostate Jews or Gentiles, even if these boundary markers are not mandated by Halakhah.
Jewish law does permit the erecting of fences around the Torah law [mAvot 1:1]. Viewing its culture as if it is Torah incarnate, keeping the troubling waters of modernity, secularity, and heresy—here referring to those with the temerity to reject the personal authority of the great sage–off of the Orthodox social street. Orthodoxy’s social policy is thus one of studied, social “otherness.” And Jewish legal theory must be modified in order to deflect the more dangerous challenge of Jewish social change. In order to encourage communal compliance with Orthodox social policy, post-Talmudic customs are often hyperbolically presented to be Rabbinic or Torah law. There is a popular, but misleading idiom, “the customs of Israel are Torah.” But according to official religion Orthodoxy, Torah is the “word of the Lord,” while customs are recognized to be human conventions. Consequently, Maimonides maintained that commandment blessings are not to be said before the performance of customs because those acts, however worthy they may be, are not commandments of the Covenant. Hence, parochial Orthodox legal theory undergoes reconstruction and reformulation in order to conserve a Jewish culture that claims to be “Orthodox,” the God-given “Judaism” that does not change.
According to the Oral Torah’s Orthodoxy, i.e. the “Judaism” encoded in the classical Rabbinic library, laws explicitly command, forbid and, when silent, permit autonomous choice. But according to Haredi and even some elements of modern Orthodoxy, Judaism’s holy texts are not really readable by anyone other than by parochial Orthodoxy’s own rabbinic elite. For this Orthodoxy, the great rabbi’s divinely inspired intuition determines propriety [Psalms 25:14], so his personal charismatic authority must be accepted as if it too is Torah incarnate. If the Torah’s canonical library is really unreadable, that is it cannot and may not be meaningfully read without the legitimating, filtering narrative of parochial Orthodoxy’s rabbinic elte. While Judaism’s sacred texts are made available for popular review, these texts may not be explained or applied by anyone other than by its own rabbinic elite, whose rulings are not subject to peer review because the the elite is without peer.
Alternatively, others within modern Orthodoxy sees Jewish Law to be both code and map. As noted above, if the Law does not forbid an act, that act is not only not forbidden, that act is permitted and may be put into practice. And when Jewish law commands an act, that act becomes mandatory. According to Orthodox Oral Torah legal principle, not even the eminent R. Karelitz is authorized to overrule an explicit Oral Torah obligation. Yet with regard to the military conscription of Orthodox men and women, R. Karelitz appears to do exactly that.
For both modern Orthodox street culture and Haredi Orthodoxies, Halakhah is functionally the way the community happens to live its Judaism. “Tradition” has come to refer to two very distinct cultures, the Oral Torah that Moses received at Sinai [mAvot 1:1] and the culture that is lived by Orthodox Jewish adherents. Ever fearful of cultural dilution, some Orthodox regard “change” to be synonymous with “Reform,” “modern” is an antonym for “religion,” and Halakhah in practice is not only law, it is also the way that Orthodox life is lived in everyday life. Since belonging is evidence for believing, many parochial Orthodox Jews look over their shoulders in order to discover what their Orthodox street culture requires of them; they rarely review their canonical compendia for guidance, especially when the sacred canon contradicts accepted convention. It rarely occurs to either the communal rabbi or layperson to revisit the Oral Torah canon in order to discover what God’s actually requires of them in Israel’s sacred library. After all, great rabbis regularly remind their communities that “the law does not follow the Talmud” and “the law does not follow Maimonides[‘s legal compendium].” The law follows the intuitive charisma of “authoritative rabbis and poskim,” not the rational read of the Oral Torah canon.
Rabbis serving in the pulpit and Religious Studies teachers in Orthodox Jewish parochial schools are instructed to regard their mission to be the transmission of “Tradition,” here the living religion of the Orthodox street, to the next generation. They do not and indeed may not encourage the student in school, the Jew in the pew, or for that matter, duly ordained rabbis whose ordination certificate testifies to their competence, to weigh Halakhic alternatives, compare and contrast competing religious claims, or to evaluate contemporary rabbinic policy against the benchmarks of explicit Oral Torah norms. Instead, student, congregant, and communal rabbi are all asked to dutifully submit without question to communal standards; neither student, congregant, nor rabbi are ever exposed to the rules by which Orthodoxy’s contemporary standards come into being, fall into disuse, or are assessed for their validity. Instead of offering a public benchmark for assessment, honor is regularly given to those who submit to authority and consume the goodies and services that make the social Orthodox cafeteria of market commodities a good business and to those affluent fellows whose largesse pays for institutional – and rabbinic – salaries. Simply put, no Jew who is not a member of the parochial Orthodox elite is allowed to have, or even express, an independent, personal opinion.
For many within Orthodoxy, women’s prayer groups are disallowed not because an identifiable, specific Halakhic rule is violated by these groups’ activities; these rogue assemblages violate the decrees, policies, and authority of the great rabbis as well as conditioned taste of the folk religion Orthodox street. The very movement toward Orthodox egalitarianism, even though no legal norm is violated by that movement, is [a] a break with the“Tradition” of conditioned expectations and [b] the ethic of submission that feeds those expectations. One leading rabbi called women’s prayer groups “ziyyuf ha-Torah,” i.e. “counterfeiting Torah.” Women’s prayer groups are now more problematic than the socially accepted but Halakhically dubious Ashkenazi Simhat Torah innovations [liturgical Torah reading at night, indeterminate aliyyot to the Torah, the irreverent mood of the day]. Canonical Jewish Law forbids clapping and dancing on Shabbat and Yom Tov [bBetsa 30a], yet this rule is waived by Tosafot [ad. loc.] on the grounds that the reason for that law no longer applies in post-Talmudic Northwestern Europe. These practices are far more dubious than women praying amongst themselves without pretending that they are forming a prayer quorum.
The Simhat Torah innovations have largely gone unchallenged. Indeed, the same R. Sofer who innovated the rule that the Torah outlaws innovation has no problem with the innovative Simhat Torah nighttime Torah reading [Responsum 1:51, s.v. Elya Rabba]. Popular culture Orthodoxy views Orthodox Feminism adversarially because this Feminism’s unwillingness to submit to Orthodoxy’s authority figures. This insistence on the right to permit what the Oral Torah fails to forbid renders Feminist Orthodoxy’s claims unworthy of consideration or address. Over the post-Talmudic centuries, women’s aliyyot, tefillin, tallet, the woman’s obligation to say zimmun [“inviting” a group of three people to say the after-meal blessings], reciting the thank-you blessing [ha-gomeil] after having emerged from designated states of danger, access to the kosher slaughter rite, reclining at the Seder, reciting the Scroll of Esther, and reciting Qiddush and Havdalah have been at times denied to women, even though there are no Oral Torah restrictions regarding women performing these rites. According to Oral Law Tradition, women are permitted to perform acts which when preformed by men are full fledged mitsvot, for nahat ru’ah, in order to allow women to feel good by enjoying the experience of ritual inclusion. The medieval Ashkenazi culture Tradition denied women the rights afforded to them by the selectively cited but in fact suppressed canonical Tradition, the Tradition of that Orthodoxy that traces its origins to Sinai’s Covenant.
By innovating a doctrine called ziyyuf ha-Torah, a rule recently introduced into Jewish religious discourse that empowers the great rabbi to outlaw otherwise permitted acts that violate popular religion Orthodoxy’s social taste. But this curious innovation also violates Deuteronomy 13:1-6, which denies the right to add to or to subtract form the Torah inventory of rules to anyone and everyone, even someone who claims to be divinely inspired. While it may be proper to forbid what is permitted on policy grounds, it is quite another matter [a] to present a restrictive innovation as if it were a canonical Tradition and [b] to forbid in practice what the canon requires, as in the case of the universal conscription of women and men in wars fought in defensive of the Jewish State.
For street culture Orthodoxy, in both its Modern Orthodox and Haredi versions, conformity to community standards is the way in which one proclaims one’s religious identity, membership, and good standing within the Orthodox social community. For many within Orthodoxy, married women must wear wigs, men are expected to wear their ritual tassels outside of their trousers, and in modern Orthodox settings, laypeople are encouraged to express inner piety by adopting aspects of Haredi dress fashion [most notably the black fedora], communicate using nostalgic Yiddish expressions, and men are expected to don head-coverings at all times. In other words, Orthodox adherents are asked to celebrate their religious identity by wearing that identity on their persons, expressing that identity with their speech, and living its calendar conspicuously and at all times.
We are told that men ought to wear black clothing as a statement of personal modesty, mourning for the fallen Temple, proclaimed religious piety, most critically, membership in the sacred community. However, the canonical bMoed Qatan 17a only recommends this somber attire when their libido and behavior are out of control. While it is true that Orthodox married Jewish women are instructed to cover their heads, the fact that there are authorities who rule otherwise [R. Joseph Mesas, Responsa Mayim Hayyim 2:110] has been effectively suppressed, yet the fact that women’s wigs may actually be Halakhically unacceptable is rarely but ever even discussed (see bShabbat 64b and Rabbi Ovadia Yosef).
Yeshiva students are often encouraged or required by their teachers to wear their tsitsit/ritual tassels outside of their trousers. After all, they are told that the Written Torah [Numbers 15:39] commands that one “see them,” i.e. those ritual tassels. But the Torah only requires that those tassels be placed upon one’s outer garment, and not that the tsitsit be visible for all to see. [See Deuteronomy 22:12 and R. Ovadia Yosef, Yehavveh Da’at 2:1]. In other words, people are socially encouraged to showcase what is recommended as ritual expertise and virtuosity when, upon reflection, no ritually commanded act is actually performed by this public display of ritual identity piety proclamation. The public display of ritual “virtuosity” is encouraged by many rabbinic leaders, giving lay people a social means to conform to elite religion expectations, and to confirm that elite’s leadership office. The “modesty” that this public piety proclamation entails usually goes unaddressed.
There are also modern Orthodox Jews for whom Halakhah really is Law. These modern Orthodox adherents proclaim that God’s will is expressed in the most socially appropriate, reasoned reading of the religious sacred canon. Instead of invoking a “Tradition” of culture conservatism, of claiming that innovation is forbidden and may be considered to be counterfeiting Torah, the committed modern Orthodox adherent will ask [a] what Oral Torah legal norm is violated by any proposed innovation, and only then [b] if no Oral Torah norm is violated, is the proposed change wise, constructive, and situationally appropriate. Since post-Talmudic rabbis are not authorized to innovate new apodictic laws that are binding on all Israel without a Bet Din ha-Gadol’s now unavailable vetting approval, claims that changes in usage by definition counterfeit “Tradition” are themselves religiously counterfeit.
Therefore, when some within Orthodoxy forbid Yeshiva men and women from performing Israeli army or National Service, they are forced need to deny the legitimacy of the Jewish state and nationalist, Zionist enterprise. Only if the Jewish state is Jewishly legitimate may its military defense be deemed to be Halakhically defensible. This otherwise illegitimate Jewish state remains a legitimate source of funding that feeds Haredi society.
But modern Orthodoxy, for whom Zionism is part of Judaism, this conflict between Judaism as social culture and Torah law, becomes more acute. If Halakhah is “the way we are which is not subject to review,” it cannot be the word of God; if Halakhah is Law, which is composed of “ought” statements called “norms,” Halakhah “is the way we ought to be.” Being “modern” is a challenge, but it is also a blessing. Being Modern Orthodox empowers its adherents to re-read the Torah again, through modern eyes, as if for the first time. In this way, it is possible to distinguish between the folkways of yesteryear and the enduring Divine mandate in the condition of modernity.
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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.