Da’at Torah of the Community Rabbi and Women Who March to the Beat of Their Own Drum

Jewish law requires that you always speak politely, decently, reflectively, and respectfully when advocating your position.  In De’ot 5, Maimonides records the rules that, to his view, oblige the talmid hacham, the person who is guided by the Hachham, the classical Jewish sage. These people’s behavior must always be fine and refined, because they represent by their persons the authentic Torah ethos. If only to maintain your own moral authority, you must always be proper when in dialogue with those who think differently.

 

First, no canonical Oral Torah source appeals to, or for that matter recognizes  Da’at Torah, or hora’ah, apodictically declared but otherwise undefended legal decisions, to be legitimate, credible, or in any way binding.  In The Politics of Tradition: Agudat Israel in Poland 1916-1939 (Jerusalem: Magnes, 1996), Prof. Gershon Bacon exposes the recent vintage of the Da’at Torah idiom, according to which both Orthodox laity and rabbinic establishment are obliged to accept and defer to the Great Rabbis’ Da’at Torah authority because of the charisma, “Tradition,” and intellect of the Great Rabbis. This innovative Da’at Torah doctrine justifies a self-selecting rabbinic elite to rule over Orthodox Jewry with sovereign immunity but without accountability.

The Oral Torah [bHullin 90b] does distinguish between Da’at Toratenu, the actual Torah position on a given issue, and Da’at nota, the ruling that finite human reason suggests [See Introduction to Iggarot Moshe Feinstein]. According to Jewish law, Da’at Torah is not the divinely inspired, intuitively reached ruling grounded in the virtually infallible insight of the charismatic leader, the Great Sage.  It is the demonstrated, justified claim that best follows from the Written and Oral Torah information, that carries the day in Halakhic discourse. Judaism always affirms a “predilection for a justified law,” as Rabbi David Weiss Halivni put it in his book Midrash, Mishnah, and Gemara.

To what may the recent vintage Da’at Torah doctrine be compared, if taken to its logical extreme?  The Saudis had first announced that Saudi journalist Jamal Khashoggi was “accidentally” killed during an “innocent” interrogation in Turkey, undertaken by a squad of fifteen Saudi security agents.  Khashoggi was a Saudi citizen, killed at the Saudi embassy, which is by international law sovereign Saudi territory. Khashoggi’s “crime” was the “treason” of speaking ill against the Saudi State, which just happens to be the private property of the “Royal Family.” The Saudi state maintains the legal right to judge its citizens on its own sovereign territory.  Then we find two asylum seeking Saudi sisters dead in the Hudson River between New York and New Jersey.  For Saudi totalitarianism and for Machiavelli, the “Law” is identical to the pleasure of the Prince, the Sovereign who is immune to legal challenge.  Criticism of the power person expresses “disrespect,” which is heresy in religion and treason in politics. Similarly, it is the height of hubris for an Orthodox layperson or, for that matter, rank and file rabbi, to dare to suggest a considered opinion, because Da’at Torah Orthodoxy is not based upon a revealed and readable Oral Torah canon. This Orthodoxy’s Jewish “law” is based on the divinely inspired, Torah informed intuition possessed by the Great Rabbi, who alone is able to read, understand, define, and apply Torah and “Tradition.”

 

Second, you should stress that Torah is observed by a community living according to Torah’s accessible, readable rules.  For the tyrant, Law is what the power people say it is. In the Jewish legal compendia and responsa literature, we fail to find appeals to Da’at Torah. The authority to issue hora’ah legislation lapsed with the passing of the Amora’im, Ravina I and Rav Ashi [bBava Mezi’a  86a].  According to the plain sense of the Torah canon, God speaks to all Israel through medium of Torah text, not the charisma, intuition, or privileged inspiration of any elite other than the Rabbinic Beit Din ha-Gadol when its members are sitting in formal plenum.      Applying the legal hermeneutic of H.L.A. Hart, The Concept of Law, we find  that the Halakhah records “rules of obligation,” which are what Judaism calls “mitsvot,”  or commands. These rules are the “positive,” or “to do,” and negative, or “not to do” Halakhic regulations. Where and when there is neither a “to do” or “not to so” obligation on textual record, the act is permitted, authorized, or allowed to be performed. There are also “rules of recognition” which determine if a claim made counts as a legal norm, an “ought to do” or “ought not to do” rule of the Halakhic order.  Since the Torah is not in heaven [Deut. 30:12] and is written in understandable human language [bBerachot 31b and elsewhere], the Torah is readable, understandable, and available to and may be possessed by all Israel [Deut. 33:4]. Just as the individual Israelite is authorized, empowered, and obliged to identify and then judge the false prophet or dream dreamer who distorts Torah Law [Deut. 13:1-6], the individual Israelite, including you, is empowered to hold those in leadership positions to account based upon accessible, Oral Torah benchmarks.  Authentic Da’at Torah opinions are those values that are memorialized in Israel’s Written and Oral Law canon, the only benchmark by which post-Talmudic rabbis’ rulings may properly be assessed [Proverbs 21:30, which teaches that God’s word and will as recorded in the canon trumps all other concerns, and bBerachot 19b, where we  learn that God’s will  and word enshrines human dignity is a Divine concern].  Since God does not claim sovereign immunity for God’s Self in the Halakhic legal order, the Great Rabbis’ Da’at Torah claim is an unattested, and on that ground an illegitimate rule of Halakhic recognition, which has no place in authentic, Orthodox Halakhic discourse. Appeals to oracular Halakhah are unorthodox in, and of, the extreme.

 

Third, your community Rabbi is actually technically correct when he disallows women to dance with the Torah on Simhat Torah. According to bBetsa 30a, neither men nor women may dance or clap on Simhat Torah, or for that matter, on any Jewish holy day.  Nevertheless, the Muncatzer Rabbi Eluzer Shapira argues, like the Tosafists [at bBetsa 30a], that the law forbidding holy day clapping and dancing no longer applies in contemporary times [Responsa  Minchas Eluzer 1:29].   R. Shapira argues that the prohibition of clapping and dancing on Simhat Torah is only a shevut prohibition, a negative rabbinic Shabbat decree.  And since the clapping and dancing are expressions of the required holy day joy, holy day clapping and dancing are authorized to override the Talmudic statutory restriction. R. Shapira’s decisions are usually restrictively hyper-conservative, rejecting any and every concession to secular modernity. But because the holy day clapping and dancing reform has been “accepted” by R. Shapira’s pious—and parochial—constituency, this curious conflict between Orthodoxy’s actual practice and Orthodoxy’s textual Torah must be harmonized by creative reinterpretation and charismatic declaration.  In order to present himself in everyday life as an authentic Traditionalist who preserves the sacred past in modernity’s secular present, R. Shapira actually adopts the mindset of the Hungarian Neolog Reformers he loves to hate, that the Halakhah is subject to change if the change is accepted and adopted by the sacred community and approved by the Great Rabbis who are able to read the mind of God. [See Balaam’s claim at Numbers 24:16, where the Torah’s Narrator mocks Balaam’s Da’at Torah claim as the prophet who cannot see the angel that his donkey is able to see]. Since the Great Rabbi is able to read God’s mind, appeals to Torah text by rabbis who are not great, and unable to read God’s mind, are inadmissible.

R. Moshe Feinstein’s lenient ruling allowing holy day clapping and dancing [Iggarot Moshe Orah Hayyim 2:100] is a far more nuanced, sophisticated, and thoughtful theological-political argument. The stated Oral Law reason for the clapping and dancing prohibition is that someone may be tempted to repair musical instruments when the clapping and/or dancing takes place. And Tosafot rules that since the Jewry of Tosafist times is no longer expert in repairing musical instruments, the Oral Law decree no longer applies in their circumstances. This “reasoning” provides, at least to R. Feinstein’s satisfaction, adequate grounds for leniency. However, the First Violin in the Jerusalem Symphony Orchestra directs the orchestra to tune, or to put its musical instruments into repair before the concert begins. So it appears that in our contemporary times, artists who play their instruments are also able to repair them to some degree. But in his important responsum on Feminism [Iggarot Moshe Orah Hayyim 4:49], R. Feinstein argues that Orthodox feminists should not rebel against the ways culturally compliant women have always behaved over the generations. These women may not appeal to the Oral Torah license to adopt practices required of men because these leniencies have been outlawed by post-Talmudic Great Rabbis [e.g. women’s right to wear tefillin, tallit, reading and not merely hearing the Esther Scroll on Purim, and performing kosher slaughter]. Ironically, the laws of the canonical Talmud are in fact subject to change, while the rulings of latter day rabbis may not be subject to the same review. For this iteration of Orthodoxy, the Oral Torah Law may only be defined by the Great Rabbi’s intuitive sense of propriety, and not by the logic of the legal norm. One may not rely upon a ruling that follows from a plain sense reading of Oral Law legislation [m’Eduyyot 1:5 and elsewhere].  On one hand, R. Feinstein relies, albeit with discomfort, upon Tosafot, to permit holy day clapping and restrictions l women’s access to certain public rituals.  R. Feinstein is more prepared to ignore a formal Oral Law statute, which Orthodox Judaism believes reflects God’s will [Deut. 17:8-12], than he is willing to overrule post-canonical, popular, restrictive, innovative medieval opinions as well as the contemporary expectations that those medieval opinions and conventions have generated.

The meta-Halakhic motifs that underlie R. Feinstein’s decisions are [1] a firm commitment to maintain Orthodox Street Culture’s sense of continuity, social stability, and religious authenticity, [2]  sustaining Orthodoxy’s ability to live within the American polity while  not participating in the American culture of the “good time”  [e.g. not observing Thanksgiving], and [3] preserving the authority—and standing—of Great Rabbi rabbinic leaders’  who are the unquestionable, and unchallengeable  leaders of Orthodox Jewry.   R. Feinstein assumes—or conjectures—that the holy day clapping and dancing restriction was not really accepted by all Israel, and for that reason may be regarded as a legitimate practice.  He adds that it would be proper for all the Great Rabbis of our age to reconsider the clapping and dancing restriction, apparently even though this  synod will not be as great as the court of Ravina I and Rav Ashi.  R. Feinstein concedes that [a] Tosafot’s permissive “reasoning” is “unclear,” a euphemistic synonym for “inconsistent,” [b] and in an incredible display of intellectual integrity, he suggests that religiously scrupulous individuals would do well to not rely on this particular, problematic Tosafist leniency. R. Feinstein is both pastorally appropriate, avoiding confusing the masses with troubling doubts and inconsistencies of Great Rabbis who should not, to his view, be subject to review, yet he does not sanitize the Tosafist opinion, which is both part of and inconsistent with the canonical Halakhic record.  What remains “unclear” is the Halakhic rule of legal recognition which authorizes the Tosafot’s rejection of a clear, unambiguous Rabbinic statute.  R. Feinstein’s claim that while the Talmud was accepted by all Israel, the clapping/dancing restriction was apparently not accepted by world Jewry because it was not observed by all Israel, is suggested but not demonstrated; the observation of almost universal noncompliance is not really evidence because no “traditional” Judaism remained Orthodox if it rejected the canonicity of Talmudic legislation.  In fact, the suggestion that noncompliance with the dancing/clapping registration demonstrates its lack of authority is rejected by Abaye at bBetsah 30a.  Actually, a lay person who relies on the Tosafist ruling is not a conscious sinner or heretic, but merely in error [Shulhan ‘Aruch 25 and 34].  While R. Feinstein’s official religion affirms that the Oral Law is inviolate, his real religion tolerates popular religion deviations if they are “accepted” by Orthodox Street Culture and do not dissipate the community’s “thick culture” otherness from the American commitment to individualism, freedom, and autonomy.

Although R. Feinstein references Halakhic sources, like R.  Shapira, he also legitimates and endorses Halakhically problematic practices that do not threaten Orthodox Street Culture’s sense of popular propriety. He also forbids changes in protocols which do not violate Talmudic law if they offend the feelings, taste, and the socially conditioned expectations of the Orthodox faithful.  R. Feinstein opposes changing those post-Talmudic practices that violate social Orthodoxy’s patriarchal, Street Culture ethos. However, he tolerates those “acceptable sins” that the community of the committed no longer considers to be relevant in contemporary times.

According to R. Feinstein, the faithful’s behavior and the Great Rabbis’ authority may not be questioned, assessed, or reviewed.  But the canonical Leviticus 4:13, Deuteronomy 13:1-6, Proverbs 21:30, and Lamentations  5:7 all teach that the entire community may indeed be  error. Each and every Israelite is expected and authorized to know the Law with sufficient fluency and acuity to identify and challenge false prophets and charismatic dreamers, God’s will as it is memorialized in the canon trumps the honor due to rabbis, even if they are Great Rabbis.  There is no magic wand that insures that our parents, the transmitters of Street Culture “Judaism,” are always interpreting Torah correctly.  R. Feinstein’s rules of recognition, that neither the Orthodox community nor its Rabbinate, may be subject to review  [http://new.ohr.edu/this_week/insights_into_halacha/5032], seem to be contradicted by the Biblical passages cited above and as well as mHorayyot 1, where the canonical Oral Torah indeed entertains the possibility that the entire people as well as its leaders may indeed be in error [Numbers 15:26]. The claim advanced by some parochial Orthodox voices, that the Great Rabbis’ divinely inspired intuition is necessary, sufficient, and singularly authorized  to define “Tradition,”  the “’uncodified’ part of Torah” [http://www.cross-currents.com/archives/2013/07/18/from-openness-to-heresy/], is unattested in and therefore is neither a rule of recognition of nor a rule of obligation recorded in the library that the canon regards to be “Orthodox.”

 

Fourth, at https://forward.com/schmooze/420031/orthodox-bride-haredi-wedding-drums-bnei-brak/, Avital Chizhik-Goldschmidt reports that the Haredi rabbinic leadership of Bnei Brak was scandalized by the breach of “modesty” created when a “spunky Orthodox bride” decided to play the drums at her wedding, with the permission of the orchestra.  The orchestra dutifully apologized for the offense, writing that it is an orchestra that “works out of a mission to make people happy on the day that matters most to them, above all an orchestra that listens to daas Torah [literally, “knowledge of Torah,” meaning, rabbinic authorities].” If one commits to the Haredi rabbinate’s right to determine subjective, “uncodified,” restrictive modesty standards, one has that right.  However, note that:

• There is no law forbidding women from playing a musical instrument or speaking in public. See Judges 5:1. The claim that women speaking or taking any action in public is not appropriate is highly problematic because it reifies men’s taste into female obligation.
• How do these rabbis know that a woman playing drums is not appropriate?
• As reported, these rabbis apparently believed it would have been appropriate to turn the electricity off in the wedding hall thus arresting the bride and groom’s celebration of their wedding and possibly turning the situation into a horrible embarrassment to this young woman.
• Rav Aha danced with the bride on his shoulders because that intergender physical contact was innocent and therefore licit. See See bKetubbot 17a.
• If Benei Brak brides want to be “strict” about a halakhic issue, they should avoid the highly problematic women’s wig, also known as the “sheitel,” which is  banned at bShabbat 64b. See also Rabbi Ovadia Yosef’s objection to women’s wigs at https://www.youtube.com/watch?v=m5WRdWWDG3g, whose words  are directed  to both Sefardim and Ashkenazim. In point of fact, by not forbidding the wig, B’nai Berak’s Haredi rabbis reformulate binding Jewish law into a dress code uniform that celebrates social identity, communal solidarity, and insider membership status, which are presented  as expressions of modesty, humility, and submission to God and His spokesmen, the Haredi Great Rabbis.
• In many Haredi circles it has become common to omit the names of brides and mothers from, among other things, wedding invitations. The notion that mentioning a woman’s name is immodest is not recorded in the Oral Law. Beruria and Yalta are mentioned by name at bPesahim 82b and bNiddah 20b respectively. And they were even learned in Torah, which is permitted to women according  to tBerachot 2:12!  Last I checked, the Bavli and the Tosefta are no less reliable Tradition [qabalah ne’emenet] than are Benei Beraq’s Haredi rabbis.
• It appears that these rabbis found the bride’s actions problematic because it attracted attention from and, heaven forefend, appreciation of, the adoring crowd, in violation of the Haredi expectation of female modesty. However, in point of fact, the Talmud teaches that men are obligated to take note of the bride on her wedding day and to praise her appearance! [bKetubbot 16b-17a]
• We would do well to recall that Scripture’s only call to modesty is Micah 6:8, which is directed toward the Israelite male. Perhaps we would have higher modesty standards if pious men spent less time imagining, fretting, and obsessing over how the human female appears, sounds, and comports herself in public.

 

Fifth, your community Rabbi is incorrect when he claims that Torah study sessions require gender segregation. This claim requires demonstration, not proclamation.  A community rabbi has the right to suggest that the community adopt a gender segregation policy, which the community may or may not choose to adopt. In order to require gender segregation for Torah classes as a matter of binding Jewish Law, the Rabbi must identify the Oral Torah citation that memorialized this norm.  There are co-ed Orthodox schools, Bar Ilan University not only offers coeducational learning, men as well as women may study Torah together, and many “Modern Orthodox” synagogues do allow mixed gender activity outside of formal prayer settings. Yeshiva University’s Bernard Revel Graduate School of Judaic Studies and R. Joseph B. Soloveitchik’s unmistakably Orthodox Maimonides Day School in Boston offer Talmud instruction to mixed gender classes. I am not suggesting that gender segregation for Torah study is necessarily improper or situationally inappropriate. I am claiming that unless one references an Oral Torah norm requiring gender segregation, communities have a right to disagree on the matter and determine their own by-laws, customs, protocols, and religious identity. Orthodoxy’s unity is expressed by its commitment to the Oral Torah’s culture defining enactments, decrees, and customary usages; its diversity reflects the legitimate alternatives that are, because they do not violate Talmudic Oral Torah norms, legitimate, accessible options.

 

In conclusion,

1. It is by Law preferable that a woman be allowed to hold and to march with the Torah on Simhat Torah—precisely because there is no canonical restriction for the practice—than for a man to dance with the Torah on Simhat Torah, which is considered by the Oral Torah to be a violation, casuistry to the contrary notwithstanding. Authentic Jewish “Tradition” is what the Oral Torah Halakhah actually requires and not merely what is expected and accepted by Orthodox Street Culture convention.
2. Mistakes and errors can and do occur in public Jewish life [Lev. 4:13]. We must realize that we may be in error, and we must always be open to learning and changing our practice if Torah logic and norms so require. People who refuse to change their minds often do not have minds to change.
3. When disallowing holy day clapping and dancing, the Oral Torah rabbis also legislated the profoundly wise, responsible, and reasonable rule of rabbinic thumb, it is “better to allow some one sin in error than to act with willful disregard for the Masoretic mandate.” The Oral Torah advises Orthodox rabbis not to stress certain restrictions if they believe that their direction will be ignored. Jewish Law requires that Jewry avoid insulting, hurting, or embarrassing others. Before correcting others, Orthodoxy would do well to prescribe models of propriety [bBava Mezi’a 107b]. Not every issue needs to be made, not every ritual argument has to be won, not every wrong has to be righted. The Oral Torah considers communal tranquility a goal more worthy than ritual precision and virtuosity.
4. It may be suggested that permitting women to do what by law is permitted, but is by convention forbidden, young people will reject the “Tradition” that really counts, the folkways of our pious ancestors. But God gave a perfect Torah to all Israel, not a “life style” of patriarchal predilections, nostalgic folkways, or ancestral habits.  Commandments sanctify those who fulfill them. Israel must obey its Law, which are not necessarily the good old ways, of the good old days, as defined by an unaccountable elite of good old rabbis. By appealing to the Da’at Torah of Great Rabbis who are not sitting in the Sanhedrin, we ignore the Da’at Torah of the Torah’s Author, which is the only Da’at Torah that really counts.  If the community Rabbi insists upon his right to issue undefended, intuitively conceived, Halakhic declarations, we remind him, and ourselves, that if we do not pay attention to oracles, what in Hebrew is called “bat qol,” we do not pay attention to him, who unlike R. Eliezer the Great, did not report that he was informed of God’s will by means of a bat qol.  By forbidding only what by law is forbidden and only requiring what by law is required, we permit, authorize, and allow that which is not by statute forbidden.  If we are honest to God and to ourselves, our children will trust us to tell them the truth about Torah. Authentic Da’at of Torah is located in the best reading of the sacred library, not in the charismatic intuition of any individual, no matter how great, smart, or inspiring s/he might be.  By invoking the Da’at Torah idiom, your community rabbi violates two legitimating rules of recognition: [a]  the adding  of an unauthorized rule of Jewish Law, that the Great Rabbi is authorized to intuit God’s will  without presenting a convincing demonstration,  and [b] ruling by  intimidation [bRosh ha-Shanah 17a]. Outside of the synagogue prayers, where gender segregation was, at the dawn of Jewish modernity, practiced by all observant Jewish communities, and on those grounds alone is proper practice, there is no statutory obligation for gender segregation encoded in the Oral Torah Canon.  The da’at, or opinion of the Rabbi is his legitimate, personal opinion, but it may not be presented as if it is the Torah’s Author’s opinion.  It is proper to challenge the Rabbi to provide the canonical source for his view, if it is done with respect for Torah and the Rabbi’s person and office.  True scholars increase tranquility and not contention. Rabbis not sitting in the Supreme Court/Beit Din ha-Gadol, are not authorized to legislate laws that bind all Israel. Recognizing this limitation is an indication of wisdom.
5. Therefore, as long as the Talmudic statute is upheld, different rabbis and communities have the right, and responsibility, to express their own identities, sensibilities, and characters, on condition that Talmudic Law remains invioate. Orthodox “religious pluralism” refers to that range of opinion that is consistent with the letter of Talmudic law. Within these parameters, changes in practice, like allowing mixed gender classes and women holding the Torah, may be adopted by Orthodox communities.  The normative Orthodox “Tradition” is not the nostalgic yearning for the reconstruction of an ideal, “remembered” past that perhaps never was; it is confronting the real world present with a Torah of norms, values, and empowering approach to law that does not suffer or tolerate human autocracy.  At stake in this dispute is determining whether Judaism is a religion of submission to authority people, whose narrative is normative but whose Law is unreadable, or whether Judaism is a civilization of Law that obliges and defines leaders and led alike, where those who lead may be assessed and are held to account by those whom they lead. Both Hebrew Scripture and the Oral Torah present Torah as a rule of law and not as a rule of rulers.  Those who claim that the Torah is understandable only by themselves render the Torah unreadable and themselves unreliable, and unorthodox. After all, the entire Torah was given to all Israel [Deut. 33:4].