Ki Teitsei (Torah)

“When You Go Out to War…”

A Hasidic homily connects the titles of the Torah portions read during the month of Elul with the theme of that month, of spiritual searching self-examination and renewal. Re’eh: “See…”—Take a good look at the state of your mind, soul and actions. Shoftim ve -shotrim: “You shall place judges and police at every gate…” Be vigilant about what comes in and out of every aperture of your body—eyes, ears, and especially mouth. Ki Tetzei: “When you go out to war”—You must wage war against your Evil Impulse. Ki Tavo: “When you come into the land…” If you do all these things, then you shall come into the Land of the Living. And finally, Atem Nitzavim: “You are standing this day before the Lord your God”—you stand ready to receive His kingship on Rosh Hashana.

With only some homiletic license, one could say that the opening section of this week’s portion (Deut 21:10-14) in fact speaks of the war against the Evil Urge as much as any other. As we mentioned earlier, much of this parsha (over 50% of its verses) deals with a wide variety of aspects of family and sexuality: divorce; levirate marriage; rape of a betrothed virgin; claims against the virginity of a bride; bans against various national and other groups entering (i.e., marrying) into the congregation; cross-dressing; etc. It starts with the most chaotic, uncontrollable aspects of sexuality—the law of the Yefat To’ar, the beautiful enemy woman. (That this portion is not a direct sequel to the laws of war in Chapter 20 is suggested by the placing of extraneous material in 21:1-9 between the two blocs of war material, thereby requiring the repetition of the introductory phrase “when you go out to war.”

This section portrays a situation in which a man goes to war, sees an attractive woman among the enemy captives, and desires her. He is allowed to take her home, but the Torah requires a series of acts—that she shave her hair, grow her nails long, weep for her home and parents, in the process making herself generally disheveled—and only then, if he still desires her, may he marry her. The implication is that all this will dissuade him.

The consensus of Rabbinic tradition is that all this takes place after he has already had sex with her once (whether by rape or otherwise) near the battlefield. The assumption, which seems to me to be borne out by much of human experience, is that his initial desire is likely to be well-nigh uncontrollable; only after the intensity of his lust has been dulled somewhat by this initial intercourse is he at all susceptible to being influenced by other, more rational considerations. There seems to be a frank acknowledgement that this is how soldiers may behave in such situations; the reality, albeit far from ideal fact (matzuy, lo ha-ratzuy), is that under such circumstances the Yetzer ha-Ra, the “Evil Impulse,” cannot be fully curbed. In such a situation of warfare, of extreme fear, with death hovering wherever one turns, tension finds outlet in almost barbaric, very direct physical behavior. (The halakha also allows the eating of non-kosher meat in this situation.)

All this is very problematic to our refined, modern, Western morality (or is it a hypocritical Puritanism, which does not like to look at unpleasant realities too directly?). What is left out here is the woman’s humanity, her own wishes; she is very much an object to be taken at will. There seems to be an acceptance of war as a kind of moral holiday. The Torah sees this as something that can only be dealt with retroactively: “making the best of a bad deal.”

“Every love that is dependent upon some thing…”

Continuing the theme of family and sexuality, a passage in Sefat Emet I came across some weeks ago reminded me of the mishnah in Avot 5.20: “Every love that is dependent upon some thing shall in the end be negated. And every love that is not dependent upon some external thing is everlasting.” The examples given are, respectively, the love (or lust) of Amnon for Tamar, and that of David and Jonathan.

The story of Amnon and Tamar, related in 2 Samuel 13, is psychologically a very interesting chapter. Amnon desires his half-sister Tamar, but does not dare do anything to her; so, like a true romantic hero of one of the Schubert leider the Israeli radio is fond of broadcasting all the time, he languishes all day long with unrequited passion. One day a “clever” friend convinces him to take action. He feigns illness, telling his servants that she must serve him food with her own hands. While she is preparing him some pancakes, he propositions her; she protests, saying “shall you behave like a scoundrel?” (vv. 12-13). Once they are alone he grabs her and has his way with her; immediately thereafter, he finds her repulsive: “And he felt a great hatred for her, greater than the love with which he had loved her” and sends her away in shame and disgrace. The picture in vv. 17-19 is especially vivid and true to life: he orders the servant to turn her out and lock the door; she puts ashes on her head, tears her fancy striped robe [like that of Joseph], and walks back and forth holding her hands on her head and crying out. It seems clear that this “hatred” was a projection of his own self-loathing, his sense of shame at himself for having betrayed his better self (the pure-minded, decent young man we first met in verse 2 could not conceive of doing such things), and his awareness that his much-vaunted “love” was no more than lust and desire, spent in a single sex act. (This is also, I believe, the origin of the stigma attached to prostitution.)

The question that occurred to me is: why is the counter-example one of love between two men? (And, despite the homophilic dispensation of the past 20 years, the reading of these two as homosexual does not ring true. It seems clear to me that 2 Sam 1:26 “You were very pleasant to me; your live was more wondrous to me than the love of women,” is speaking of non-sexual, comradely love.)

The mishnah could have chosen to use, say, the example of Rachel & Yaakov. There too we find a portrayal of intense love, of the man doing heroic acts for love—beginning with rolling the enormous stone off the mouth of the well (Gen 29:10), to working seven years for her, “and they were like only a few days in his eyes, because of his great love for her” (v. 20). This love did not dissipate after the first tumble in bed, but endured throughout life, and beyond. Her premature death was the great tragedy of his life, one of the first biographical facts he tells his two grandchildren upon meeting them (Gen 48:7); he clearly looked back at her with longing so long as he himself lived. (The Rav once spoke of the opening word of the Kinot for Tisha b’Av , Shavat, suru meni sham’u okhray, translating Shavat as “It is finished.” He commented that there are times in life when events occur that are so traumatic, that life itself loses its savor thereafter. One goes on living, but as if there is a stone inside oneself. I felt that the sub-text he was speaking of was the loss of own wife, as the seismic split in his own life. So Jacob must have felt when Rachel died.).

But to return to our mishnah: Why not give an example of a positive example of love of man and woman, in which companionship, friendship, a shared life project, and eroticism all join in an organic whole? Is there an underlying fear here of the explosive power of sexuality, even within the pure and holy form of marriage? There is something here suggestive of the dichotomy of eros and charitas in Christian thought. Or is the sensibility of Hazal simply one for which sexual love is not necessarily the most significant relationship in life, as it is generally taken to be in our society? Indeed, in the Bible the most central relationship seems to be that between fathers and sons, to which, in later Judaism, is added that of rebbe and talmid. I once read an essay by a mid-century literary critic (perhaps Lionel Trilling) who said that the great theme of literature is that of fathers and sons: e.g., as in the bildungsroman, in which the young man rebels against his father, and eventually comes full circle to confront him, and form a new, mature relationship—hopefully, one of mutual respect and love.

Where does male camaraderie and peer friendship, fit into this scheme? A thought: David was of course Tamar and Amnon’s own father. Perhaps we are meant to contrast his friendship with Jonathan with the tragic results of Amnon’s friendship with the clever but evil scheming Yonadav ben Shim’ah. The latter touched off the series of bloody events that eventually destroyed both Amnon and Avshalom, and left David as a feeble and tragic figure, left to weep and bemoan the shambles of his family.

All this requires much further thought. It may well be that the centrality of romantic love, as a freely-willed, individual choice, and the down-playing of family links—specifically, of fathers and sons—is one of the important roots of our highly individualistic society, for good and for ill.

What is the larger message that I derive from all this? That one must learn how to see Torah, not only as a system of rules and regulations, but as providing one with a perspective enabling one to go outside of his own society: to challenge the conventions and ideas of the so called avant-garde, to look at life in a broader way. Paradoxically, that which is most “conservative” may give one the courage to be most radical, as the zeitgeist can be a very tyrannical and demanding master.

My model is not a separatist one. I see Judaism as adopting and adapting many of the literary, cultural, legal and other forms from all of the cultures that it has encountered and with which it has entered into contact—from the ancient world, through the Greco-Roman world and Medieval Europe, to the “high modernity” (to coin a term) of 19th century Germany, and to the United States. Through all this, it has exercised a certain selection, on the basis of—I hesitate to use the much-abused term “essence of Judaism”—but a certain unique perspective, sensibility, spirit, and covenant consciousness.

Postscript: After preparing the above two sections independently, I discovered an interesting connection between the law of the Yefat To’ar and the story of Amnon and Tamar: namely, that Hazal see Tamar as the daughter of a yefat to’ar: David took her mother, Maacah daughter of Talmai, as a captive woman in one of his battles. This resolves the knotty problem of why the account in 2 Sam is not troubled by the incestuous aspects of this incident, Tamar even telling Amnon not to rape her, because her father would certainly let him have her as his wife were he but to ask (v. 13). The Talmud explains that, as the daughter of a yefat to’ar, she was technically not considered David’s offspring (Sanhedrin 21a; cf. Rambam, Melakhim 8.2 ff., and Radbaz and Kesef Mishneh there; this fact is in turn used in support of the legitimacy of initial intercourse before the warrior brings her home, etc., an idea not required by the simple sense of the verses). Otherwise, one is forced to the historical-critical theory that the law against incest with half-siblings was not yet in force at that time, a solution posing deep faith-theological problems.

“When a man takes a wife… and hates her… and sends her away…”

The widespread incidence of divorce, a subject which is treated briefly during the course of our portion (24:1-4), is one of the striking features of contemporary society. Having myself undergone this painful and soul-wrenching experience, I bring a personal interest to this difficult subject. During the long years when I deliberated whether or not to seek a divorce, I sought guidelines in the Torah and the Jewish tradition for my own existential dilemma.

I encountered a certain difficulty in this quest. Gittin, the Talmudic tractate devoted to divorce, is primarily concerned with technical matters: how the divorce writ is to be written, the proper procedure for its writing and delivery, the testimony of the witnesses to its writing, etc. Similarly, the financial aspects of divorce—property rights and obligations of the two parties, etc.—are treated extensively in Ketubot. Material dealing explicitly with the moral issues involved in the decision to divorce is relatively sparse, appearing only on the final page of Gittin (90a-b); in the sugyot of moredet, dat Moshe and Dat Yehudit in the fifth and seventh chapters of Ketubot (72a-b; 62a-63b); and in isolated obiter dicta of the Sages. A thorough philosophical-halakhic analysis study of this subject, which will attempt to arrive at the underpinnings of these laws and to reconstruct the world-view underlying the details of these laws, is a desideratum. I believe that, properly understood, this subject is of relevance not only to the divorced and the divorcing, but to anyone interested in Jewish marriage; divorce, as its dissolution, teaches us something significant about the nature of marriage itself.

For the moment, I shall limit myself to a few insights about the final mishnah in Gittin (10.9). The Mishnah cites three opinions on the grounds for divorce: Beit Shammai limits divorce to the case of ervat davar, “an unseemly thing”—i.e., marital unfaithfulness on the part of the wife; Beit Hillel states that a man may divorce his wife “even if she burnt his food.” Rabbi Akiva is even more liberal: “even if he found another more beautiful than her.”

To my mind, these three approaches are rooted in three conceptions of marriage. The first view sees the essential purpose of marriage as the creation of legitimate progeny: the fulfillment of the commandment, “be fruitful and multiply.” Hence, anything short of adultery, representing a fundamental breach in the marital framework (as well as opening the possibility of another man’s progeny being passed off as the husband’s) remains tolerable within marriage. Beit Hillel’s view is more pragmatic: the woman’s principle practical duty within marriage is the running of the household (duties stipulated in detail in Mishnah Ketubot and elsewhere). Should she fail to perform her duties properly, she may be sent away (somewhat like an employee fired for failure to fulfill his job description?). In both these cases, the understanding of marriage is largely programmatic, functional. Rabbi Akiva’s view, by contrast, is rooted in a much more subjective understanding of marriage: the fulfillment of the subjective needs of the partners, which by definition are almost entirely dependent upon the person’s own feelings and sense of satisfaction from marriage. Here the standard is not objective, and certainly not practical, but closer to what we would call romantic (and remember that it was Rabbi Akiva who described the Song of Songs as the “holy of holies” of all the books of Scripture).

Perhaps the bottom line, then, is that such an intensely personal decision as divorce, touching upon every aspect of an individual’s life (the bitterness generated by a profoundly unhappy marital situation can poison every other life activity) cannot be found in the Shulhan Arukh in any simple way, but must be sought in ones heart. At best, examination of halakha can alert one to those reasons that are flippant.

Two points seem to be missing here. First, the interest of the children: how does one responsibly balance the inevitable harm and suffering that divorce brings upon innocent children against the considerations in its favor? I have not found this issue addressed in any obvious way by the sugyot. Second, the reasons for divorce are all (or almost all) phrased from the standpoint of the man—not surprisingly, given that the formal initiation of Jewish divorce is in the hands of the man. (Needless to say, the knotty problem of the agunah, the “chained wife,” is a major issue in this context). What considerations justify divorce from the woman’s viewpoint? And, given the skewed nature of Jewish divorce, what indirect mechanisms exist enabling the woman to nevertheless initiate divorce and how, under modern conditions, may they be made more effective?

Another, totally different, perspective on this issue. If we believe that on some level God matches each person with their destined mate (his/her zivvug or, in Yiddish, beshert), how can divorce be possible at all? More important, why is it so common today? One of the most interesting answers I have heard is that one of the underlying Divine purposes in bringing two individuals together is tikkun hamiddot (“character correction”): that is, Divine Providence throws us together with a particular person in order to create a situation in which we are forced, in order to make the marriage work, to correct our own character flaws. In this view, divorce results when one or both partners are unwilling to make the necessary changes, to engage in self-confrontation, etc. These may involve subtle shortcomings, or gross faults. Certainly, there are cases where one can’t fault a person for leaving a marriage. The most obvious example is that of the wife beater: he clearly requires tikkun, but beyond a certain point no sane woman will stay around, literally risking her neck, on the off chance that she will help him to correct his character.

On Feminist Theology

One of the much-discussed topics today in intellectual circles, both Christian and Jewish, is what is known called “feminist theology”—the attempt to rethink basic religious issues in light of the new feminist sensibility. This is expressed, among other things, in a flood of books analyzing Biblical and other sources relating to sexuality, the family, etc., in light of this new perspective.

My friend Alifa Saadya, one of the most brilliant women I know, summarized many of the salient issues in the following personal communication. Inter alia, she said:

… men rarely thought of women as having any brains at all, and so men defined what spirituality was supposed to be, and what morality was supposed to be, with no thought at all to what women’s spiritual experience might be. In particular, the hard work of childcare and the service to husbands and fathers and brothers seemed to indicate that women didn’t have time for lofty intellectual and spiritual pursuits anyway. Most women were illiterate, and had few if any outlets into “culture.” Throughout the history of women’s religious life (i.e., nuns), whenever women would develop a rule for their communities, some man—priest or bishop or whatever—would find it necessary to intervene and modify it so that it came more into line with what men thought spiritual development should be. Women in different ages have mightily objected to this interference, too.

So, it seems to me that men addressing moral issues realized that sexual sins are very disruptive to society, and worse yet, the men found themselves in a quandary, because their own male sexuality is so up front and obvious, and it interferes with what they define as “spiritual.” Thus, instead of seeing arousal as a natural process that you can either get mentally involved with and pursue to its climax, or else push aside as circumstances demand, they tended to look rather accusingly at women as temptresses—the root cause of that physiological reaction—rather than seeing it as merely a natural function of the body with elements of choice involved and themselves in charge of making the choices.

In a slightly different mode, Mark Kirschbaum, in an essay “Towards a Theology of the Feminine in Judaism” (Radical Readings, Ekev and Tisha b’Av), wrote the following:

While many of the halakhic hurdles that prevent full participation by Jewish women in Jewish life can be overcome by proper analysis of the texts, there is not yet an adequate theology of the specifically feminine in Judaism to provide meaning to the contemporary observant woman. For many years, I have been attempting to conceptualize just such a theology, without recourse to an essentialist argument, or one that derives from male defined gender roles. The problem with many of these approaches is that these definitions tend to be extensions of an exclusionary approach, as pointed out by Genevieve Lloyd in her study of the concept of reason… [and by Alcoff]: “Feminists have argued that these concepts of reason and knowledge, as well as those of man, history, and power, are reflections of gendered practices passing as universal ones.”

The Sefat Emet explains… much of what is critical and difficult in Judaism is a direct result of the errors of Man at that critical, almost mythical time of the Exodus, and that had they listened to the women, we would have an entirely different history and experience. This, I believe, is alluded to by the term used for dancing, holot, [derived] from the word mahol…. circle imagery is specifically used to point to a mathematical equality among all the participants, as the radius of a circle from any point at the circumference is the same. This Torah of the Messianic time is what the women allude to in their dance, the dance of those not tinged by the sins of the golden calf and the spies.

… just what does/would this feminine Torah contain? Is it some more innate and direct connection and consciousness of God’s will? Can this be connected to a reversal of the privileging of reason vs. sense (that is, reason and empirical evidence, as symbolized by the “need to know” of the spies episode, were destructive, whereas the more “feminine” sensitivity was closer to God’s will)?

Michael Kagan concludes his comments on Tisha b’Av, in his Sefer Hakavvanot, by noting that:

After evening prayers the blessing for the New Moon is customarily said. It should have been declared the previous Saturday night but is delayed. The Moon is female energy and is blessed as the healing of the Wild Male energy of the day…. Tu B’Av (the Fifteenth of Av) is the traditional day of love. It comes as a direct consequence of Tisha B’Av. It is a full moon—the female energy of compassion now fully flows. The anger of the Father has dissipated and healing of the relationship can now begin.

And Martin Lee, a friend from the Yakar learning community and a reader of these pages, commenting on a question I asked in another context, wrote:

… Precisely because the nature of man (vs. woman) is to relate to law, judgement, awe and fear more easily than we relate to love, kindness, compassion, and mercy—that we need to pray. Woman—at least in the archetypal and more usual case—relates to compassion, mercy and kindness as a more natural extension of her nature. Thus, men may have a greater need of the spiritual depths of prayer to achieve what perhaps comes easier to women.

Taking all of these comments together, we find several motifs that repeat themselves: that woman has a certain innate spirituality, that has traditionally been suppressed or forced into its own channels by traditional patriarchal culture; that it relates to compassion, is closer to direct, natural human emotion and humanity as opposed to the more structured and rule-oriented spirituality of men; that it stems from woman’s biological experience as mother and her traditional role as caregiver; etc. Kirschbaum’s formulation about “the reversal of the privileging of reason vs. sense” has much to recommend it. There is something too exclusively male in the very core of the sensibility of Judaism as we know it; something hard and harsh in the halakhic way of thinking (particular since halakhah has become hardened into an ideology called Orthodoxy, in reaction to the Enlightenment), too easily caught up in objective parameters and limits, that may as a result be too insensitive both to spiritual leanings and to human needs. Clearly, the call for an infusion of feminine, and feminist, sensibility into Jewish religious life, is an idea whose time has come.

This idea (if not the feminist critique thereof) is in fact suggested by the well-known midrash on the verse: “’Thus shall you say (tomar) to the house of Jacob, and speak (tagaid) to the children of Israel’ (Exod 19:3): Say to the women [referred to as Beit Ya’akov] through soft speech [amirah]; but to the men, speak in a manner tough as sinews [giddim]” (Rashi ad loc., quoting Mekhilta and Shabbat 87a). Men are seen as thinking in tough-minded, objective, depersonal concepts; women, in more personal, emotional, “softer” categories.

This difference in sensibility was epitomized, for me, in the following experience. Many years ago I visited the home of a Lithuanian Talmudic scholar of the old school. In the course of a discussion of the teachings of Rabbi Nahman of Bretslav, which greatly interested me at the time, he asked rhetorically: “What ideas did he innovate? What new ideas did he bring into the world? One idea you mentioned already appears in Hovot ha-Levavot; the second is found in the Kuzari; the third so-called innovation is in the Maharal of Prague.” At this point his wife interrupted: “When I read Rabbi Nahman it makes me feel frum (pious).” (Interestingly, Rav Soloveitchik has applied aspects of this male-female dichotomy to the difference in spiritual temperament between Mitnaggedism and Hasidism, as in his eulogy of the Talner Rebbe.)

Traditionally, Judaism has shown a clear preference for the masculine mode of thinking and being in the world. Women followed the orders given them by their men-folk, and alongside this had a certain semi-underground spiritual tradition of their own, passed down orally and by memesis from mother to daughter: certain ways of observing things; tehinot (women’s prayers, mostly in Yiddish or other vernaculars); etc. During the early years of the nascent Jewish feminist movement much emphasis was placed on women doing things hitherto thought of as exclusively “masculine,” such as studying Talmud, wearing tallit and even tefillin, etc. But over the years, there have also been voices calling for women to discover their own unique modes of spirituality within the tradition, and perhaps to share these with the public of both sexes. Already twenty-five years ago Rochelle Furstenberg issued a call for a renewal of the “more emotional, more amorphous (and perhaps freer) spiritual life traditionally assigned to women…” rather than “the exclusive supremacy of the Halachic or ‘normative’ ideal in the Jewish religion .”

The point of all this is not that women should retreat to a realm of vague, cloudy emotion and intuitive “spirituality,” abandoning reason, study and the quest for Jewish erudition and intellectual attainment. Rather, in addition to these things, women, and the “feminine spirit” (including, if you will, the anima, or female alter-ego within each man), have a valuable contribution to make in softening and humanizing the harshness of our post-modern, technological, overly rationalized, hyper- competitive culture. The Torah, as studied in the yeshivot, and in the universities, does not seem to be succeeding in doing this. In my parents’ day, the zeitgeist was one that saw science and reason as bringing the salvation of humanity; the greatest dangers lurked in the irrational ideologies of Nazism, with its emphasis on archaic national myths; their heroes were such thorough-going rationalists as Bertrand Russell, John Dewey, and Morris Raphael Cohen (of New York’s Columbia University), and of course Albert Einstein, with his vaguely deistic humanism. Today, the situation is completely reversed.

But this movement is not an unmixed blessing. An interesting recent example of the application of Jewish feminist thinking is the novel The Red Tent by Anita Diamant (New York: Picador USA/ St, Martins Press, 1997). This book is a fictional reconstruction of the life of Jacob’s extended family, first in Mesopotamia with Laban, and later in Canaan, as shown from the perspective of a woman: Jacob’s daughter Dinah; it presents itself as a kind of “new midrash.” Certainly, the book is well and sensitively written, imaginative, and holds the reader’s interest. It posits the existence of an entire world of women’s secrets, passed on in the red tent of the title, where the women spend their menstrual periods together every New Moon. Dinah is not raped, but falls passionately in love with Shalem, the prince of Shechem; after her brothers massacre him, along with his family and the entire town, she totally cuts herself off from her family, ending up in Egypt, bears Shalem’s child, works as a highly skilled midwife, remarries in midlife, and encounters Joseph again, and even briefly sees Judah at Jacob’s deathbed.

But beyond its literary charm, the book has a definite theological message, that is two-pronged. One aspect involves a critique of the hardness and harshness of Jewish monotheism, whose severity is seen as connected with its masculinity. The God of Jacob, in the eyes of the women of the red tent, is one who makes cruel and uncompromising demands—epitomized in the circumcision of infant males. Second, the women are shown as having their own polytheistic world of gentle, loving, helpful earth goddesses, whom Dinah sometimes invokes at difficult deliveries; Rachel is shown as stealing the teraphim from Laban because she really believes in their power. Needless to say, this aspect is more than disturbing.

I cannot speak about Diamant specifically, but there are many New Age movements abroad in the land that are dangerously close to a resurgence of paganism. Not a few of these are connected with the rediscovery by women of their “own” goddesses. (Ha-Aretz recently described some neo-pagan womens’ rituals not dissimilar from those described here—and their counterpart certainly exist in the USA and Europe as well.) These movements stem from a genuine need and thirst for something vital and meaningful in life, against the general emotional and spiritual aridity of our technological and alienated society, the pressures of careers that dominate more and more of life, etc. One is reluctant to condemn these life-giving movements wholesale, but there is certainly much room for caution, and not automatically affirming every quirk performed in the name of women’s spirituality.

Perhaps I should add that, in general, we live in an age of great ambiguity about sex roles and sexuality per se. This ambiguity, raised in our portion, Ki Tetsei at 22:5, in the context of cross-dressing, is very much part of our culture. Sex changes have become a semi-acceptable social phenomenon; transsexual singer Danna International enjoyed a modest fame as an Israeli culture hero; in such films as Boys Don’t Cry sexually confused characters are portrayed in moving, sympathetic terms. How to deal with all this is a very large issue. One is torn between empathy for the human pain and suffering undergone by such people, and the Torah’s round condemnation of such practices as uprooting one of the fundamental distinctions in human life. Again, I believe that all these aspects of the sexual malaise of our day—the epidemic of divorce; the ambiguity of sexual identity for many; the revolution in sexual mores since the ‘60s; feminism and the confusion in relations between the sexes—are all ultimately interrelated, having their root in a deep cultural crisis for which there are no easy solutions.

Ki Teitsei (Haftarot)

“Sing o Barren”

The haftarah for Ki Tetsei is the same as that for Noah, or at least to its first ten verses (Isaiah 54:1-10; some read 54:1-55:5 for Noah), which we discussed in brief at the time. Its use there is based, both on the presence of a verse alluding to the Flood (“Is this not like the waters of Noah to me?”; 54:9) and a certain thematic parallel to the “inner drama” expressed in the flood, so to speak, of Divine anger and reconciliation. God was furious at and disappointed in mankind, punished them with near total destruction, but then turned to a new covenant, expressed in the symbol of the rainbow, involving acceptance of the human race with all its moral frailties.

Here, the haftarah is read in the context of the backwards-and-forwards dynamics of anger and reconciliation between God and Israel. Thus, we find here words of comfort to Israel, acknowledging that “in a small moment I abandoned you, but with great mercy shall I gather you in; in a moment of anger I hid my face from you, but with eternal love I shall show you mercy…” (vv. 7-8).

Prominent here are images of expansion and growth. Israel is likened to a barren, disconsolate woman, who shall yet shout for joy when she shall enlarge her tent and stretch out its curtains. From desolation and abandonment, she shall yet realize the blessing, “You will spread forth right and left, and your seed shall inherit many nations, and inhabit abandoned cities” (v. 3), with God Himself acting, so to speak, as her husband. What is significant here is not only the renewal of the covenant with God, or even the assurances of continued presence in the land, but the fact of simple physical expansion, of proliferation in numbers. The blessings to the patriarchs, “Your seed shall be like the stars of the sky… and like the sand of the sea,” are here reconfirmed.

We live in a strange period of time, an age full of paradoxes. Values that were seen in the past as self-evident are today subject to stringent criticism. Thus, we find a tendency today among certain liberal circles to play down the importance of the wish for demographic multiplication, or even to see such wishes as “atavistic,” if not chauvinistic, racist, and downright dangerous to the future of the human race. True, there is admittedly tremendous population growth today that taxes the resources of the earth, creating threats of starvation and malnutrition in much of the globe. It was this that prompted the emergence of the Zero Population Growth movement some years ago. However, in broad circles in Europe and America one encounters people who scorn the desire for biological continuity, and have no or excessively small families. We thus find the individualistic values of the European humanistic tradition carried to extreme and even absurd lengths.

In any event, such a drive, fulfilled within reason, is the very stuff and substance of any nation’s existence—certainly of one like the Jewish nation, which has known threats of decimation: both recently, in the horrors of the Holocaust, as well as at various other earlier times in the history of the Galut. Evidently, during the Babylonian exile, too, there was a certain sense of being threatened by demographic extinction. The numbers given in the book of Nehemiah, where the heads of the clans who returned to Zion can be listed by name in a page or two, speaks eloquently for the small size of the Jewish core group in those days.

In Jewish tradition, banei hayyei umezonai—offspring, life (i.e., health), and livelihood—are often listed as the three essential basic blessings in life, a kind of shorthand for the central concerns of personal petitional prayer. Biological continuity is a basic existential concern; barrenness is seen as one of the worst misfortunes, on an individual as on a communal level. Sarah, the other matriarchs, Hannah, all prayed for offspring; indeed, Hannah’s prayer for a child is seen as the archetype for all prayer (we will return to this subject before Rosh Hashana).

On the other hand, two chapters further along, Isaiah offers comfort to the eunuch, who thinks he is a “dry tree,” assuring him that he too has an important role, and will enjoy a memorial “better than sons and daughters” (56:3-4). Children, physical continuity, is a profound blessing, but an individual’s worth and value is ultimately determined by his own deeds and actions.

(Note: In the Italian rite, the haftarah for this Shabbat is 1 Samuel 17:1-37, describing the war against the Philistines, picking up on the subject of the opening section of the Torah portion.)

Ki Teitsei (Midrash)

Are Mitzvot for the Birds? (Yahrzeit Shiur)

In loving memory of my father, William Chipman (Avigdor ben ha-Rav Simhah Eliyahu), who departed this world on 10 Elul 5744 (6 September 1984).

Pardon the flippancy, but I couldn’t resist the double-entendre—and, as we shall see later, it is also a serious question. This week’s Torah portion contains a potpourri of a wide variety of mitzvot involving all aspects of life, including the one known as shiluah haken: if one chances upon a bird’s nest while walking along the road, and wishes to take the eggs or chicks, one must first send away the mother bird, presumably to avoid her experiencing the pain of seeing her young being snatched away before her eyes (Deut 22:6-7). Interestingly, this brief and rather marginal passage—and one, I imagine, seldom encountered in real life—is subject to extensive treatment both in the midrash (six of the fourteen in the Midrash Rabbah take it as their starting point) and in the commentators. We shall begin at the beginning, with Deuteronomy Rabbah 6.1 (unlike our usual practice, as there is much material, we shall not quote the midrashim in full). The first part of this midrash discuses the laws of circumcision, stating that the reason we wait until the eighth day to circumcise an infant is so that it will have a certain minimal strength, and not be an absolute newborn still “recovering” from the birth. It then continues:

.And just as the Holy One blessed be He’s mercies are upon man, so are they upon the beast. From whence? As it says, “and from the eighth day on [it shall be accepted as a sacrifice]” [Lev 22:27; i.e., the newborn calf or lamb may not be taken from its mother immediately after birth to be offered as a sacrifice]. And not only that, but the Holy One blessed be He said: “it and its son shall not be slaughtered on the same day” [ibid., v. 28]. And just as the Holy One blessed be He extended His mercy to the beast, so were His mercies upon the birds. From whence? As is said: “when a bird’s nest occurs before you on the road” [Deut 22:6].

To translate our title question into a conceptual one: Are those mitzvot which seem to express compassion for living things, such as birds, in fact enacted for that reason, do they serve another purpose, or are they perhaps totally arbitrary? The answer of this midrash seems clearcut: God, the Creator of All, of the entire cosmic order—man, beast, bird, fish, insect, down to the smallest gnat and worm—in fact extends His love to all these. The proof: the Torah contains various mitzvot which reflect compassion and sensitivity to the mother instincts even of these dumb creatures.

This is in striking contrast to a Talmudic discussion, based on the mishnah in Berakhot 5.3:

He who says: “Your mercies extend to the bird’s nest”; “May Your name be remembered for the good”; [or] “We thank You, we thank You,” is to be silenced.

This mishnah refers to a prayer leader who uses certain improper phrases in his prayer. One must remember that in ancient times the synagogue liturgy had not yet been crystallized, and certainly not yet written in a set form, as it is today; the shaliah tzibbur, the “representative of the congregation” who recited the prayers aloud, was only guided by a rough outline of the blessings that made up the Amidah, the central public Prayer. These three phrases are seen as symptomatic of various types of heresy, or improper belief; not only are they not to be recited but, at least according to some views, even the individual saying them is disqualified from serving as prayer leader. The Talmud on this passage (Berakhot 33b) discusses why:

One can understand [why one may not say] Modim Modim, because it is as if he recognizes two dominions [in heaven]; and “for good may Your name be mentioned,” because it implies that [we thank Him] for the good and not for the evil. And Our Rabbis have taught, “One is obligated to bless over the bad just as one blesses over the good” [m. Berakhot 9.5]. But for what a reason [may one not say] “Your mercies extend to the bird’s nest”? Two amoraim from the West [i.e., the Land of Israel], namely, Rabbi Yossi bar Abin and Rabbi Yossi bar Zebada, disagreed about this. One said, because he casts jealousy among the creatures; and the other said, because he makes the qualities [middot; or mitzvot, “commandments”: the latter reading is implied by Rashi, and is plausible in terms of orthography] of the Holy One blessed be He to be mercy, and they are naught but edicts.

The first answer, “because he casts jealousy among the creatures,” is that this prayer implies that God somehow shows preference to the birds above other parts of His creation. This answer is not elaborated, and need not concern us further.

That one that passed [before the ark] in the presence of Rabbah, and said [in his prayer]: You had mercy upon the bird’s nest, have mercy and pity upon us. Rabbah said: How well does that young man of the Rabbis know to beseech His Maker! Abbaye said to him: Have not [our Rabbis] taught that one is to silence him?! Rabbah [did so] in order to sharpen Abbaye’s wits [i.e., it was meant ironically or provocatively].

The second answer is diametrically opposed to the midrash just quoted, and places a strong emphasis on Divine authority: on the idea that all mitzvot are ultimately hukim, Divine edicts, and may not be viewed as expressing what we would construe as humane or humanistic values. Like the Creator Himself, so to speak, the Torah is utterly transcendent and beyond human comprehension. “My thoughts are not your thoughts, nor are My ways your ways” [Isa 55:8]. In this view, it is forbidden to attribute any particular reason, such as Divine compassion, to any particular mitzvah. The mitzvot must be performed because they represent the Divine Will: Period. “Ours is not to reason why, ours is but to do or die.” Or even a stance not too far distant from the Medieval Christian “Credo qua absurdum est”—“I believe because it is absurd.” Indeed, Rashi on this passage quotes the same phrase as he uses in Parshat Hukkat (Num 19:2), that the hukkim are those things for which “Satan and the nations of the world” ridicule the Jewish religion. As I discussed this issue at some length in HY I: Hukkat, I will not repeat it here in detail. I will suffice with recalling Rambam’s approach to this as presented at the end of Sefer ha-Avodah (Hilkhot Me’ilah 8.8): namely, that our observance of the mitzvot may not be made dependent upon our understanding the reason for them; nevertheless, all of the mitzvot do in fact have a reason, and it is not only permissible, but desirable that a person attempt to understand them, each one according to his own ability. But more on this below.

A second theological “loop” relating to shiluah haken deals with the issue of the reward for fulfillment of the mitzvot. Deuteronomy Rabbah 6.2:

This is what Scripture said: “The path of life do not weigh; its ways wander, and know it not” [Prov 5:6]… Rabbi Abba bar Kahana said: the Holy One blessed be He said, You should not sit and weigh the commandments of the Torah, as is said: “and he weighs in a scale the mountains” [Isa 40:12; this verse is cited simply to explain the meaning of the Hebrew word peles in the previous verse]. Do not say: Since this mitzvah is an important one, I shall do it, because its reward is great. And since that mitzvah is insignificant, I shall not do it. What did the Holy One blessed be He do? He did not reveal to people the reward of each mitzvah, so that they might perform all the mitzvot in innocence [or, “in good faith”; tom].

The reference to “in innocence” means, in contrast to doing the mitzvot in order to receive a reward (as in Antignos’s well-known dictum in Avot 1.3); that is, the ideal is to perform the mitzvot without any ulterior motive, out of love of God. An experimental psychologist would say: this world is set up as a double-blind test. No one knows what God’s rules are, so people have no option but to take all the mitzvot seriously and to do them all as best they can.

The midrash continues with a parable about a king who hired workers to do various jobs in his garden, deliberately refraining from telling them how much money each one will get, so that all of the tasks will be done properly. It then continues:

Thus, the Holy One blessed be He did not reveal the reward of the mitzvot, except for two mitzvot: the weightiest of all, and the lightest of all. Regarding honoring ones father and mother, which is the weightiest one, its reward is length of days, as is said, “Honor your father and mother […] that your days may be long” [Exod 20:12]. And the lightest of all, which is the sending away of the bird, what is its reward? Length of days, as is said “You shall surely send away the mother… and your days shall be long” [Deut 22:7]. This is: “When you chance upon a bird’s nest…”

The presentation here is straightforward and matter-of-fact, without any hint of the problematics involved in the issue of Divine recompense. These are raised, quoting the same verses about length of days, in a rather interesting Talmudic sugya concerning the reward for the mitzvah. Kiddushin 39b:

Mishnah. Whoever does one mitzvah, good is done to him, and his days are lengthened, and he inherits the earth. And whoever does not do one mitzvah, good is not done to him, and his days are not made long, and he does not inherit the earth.

The mishnah seems to present a simple, this-worldly picture of direct reward and punishment for the mitzvah, much like that presented in most places in the Bible. The first part of the discussion in the gemara focuses on the phrase “one mitzvah,” offering various suggestions for its interpretation. It then turns to make the statement that all of the above is based on the (non-biblical) assumption, that recompense for a person’s behavior is not in fact in this world, but in the World to Come:

… This is according to Rabbi Yaakov, who said that “there is no reward for the mitzvot in this world.” For they taught in a baraita: Rabbi Yaakov said, There is no mitzvah written in the entire Torah, whose reward is recorded alongside it, where the resurrection of the dead is not dependent upon it. Concerning honoring one’s father and mother, it is written: “that you may enjoy length of days, and that it be well with you” [Deut 5:16]. Concerning the sending away of the bird, it is written: “that it may be well with you, and that you may enjoy length of days” [Deut 22:7].

Rabbi Yaakov’s basic argument, perhaps inelegantly phrased that “the resurrection of the dead is dependent upon it,” is that the only coherent way of understanding such verses as these is that they refer to some form of life after death, as he explains through the following story:

Behold, one whose father told him to go up to the tower and to bring him chicks, and he sent away the mother bird and took the nestlings, and on his return he fell and died. Where are his good days, and where is his length of days?! Rather, “that it may be well with you”—in the world that is altogether good; “and that you may enjoy length of days”—in the world that is altogether long.

It’s not clear whether this story actually happened, or whether it was a hypothetical case constructed to make the obvious point that “bad things happen to good people.” In any event, it could have happened. Various alternative explanations are entertained by the gemara: that things never actually happened this way—but R. Yaakov claims to have been an eyewitness to this incident; perhaps the person was guilty of evil thoughts—but God does not hold people accountable for their thoughts; or perhaps the thoughts were of idolatry, in which case thoughts are taken seriously. There is also a discussion of this in light of the notion that those going to perform a mitzvah are not harmed; the possibility is also raised that perhaps the ladder was unsafe, and Divine protection does not extend to patently unsafe situations. The interesting part, to my mind, is the conclusion, where it mentions that this selfsame situation was the cause of Elisha ben Abuyah, the one time sage turned arch-heretic of Talmudic tradition (later known as Aheir, “the Other”), leaving the path of religion:

Rav Yosef said: If only Aheir had expounded that verse in the same way as Rabbi Yaakov bar Bartha, he would not have sinned. And what happened to Aheir? There are those who say, he saw a thing such as this, and there are those who say: He saw the tongue of Hutzpit the Meturgamen being dragged through the street by a pig. He said, Shall the mouth that spewed forth pearls shall lick the dust? So he went and sinned.

Whether it was the son being killed in the very midst of performing a mitzvah for which we are assured long life, or the sight of one of the saintly, learned martyrs of the Hadrianic persecution not only being killed, but his body being desecrated in the most disgraceful way, the core problem that vexed Elisha ben Abuyah was that of theodicy: that is, the justification of God‘s ways in the world, and the irresolvable contradiction between the claims of faith that this is a just world, and the harsh reality of the righteous undergoing excruciating suffering. For our present purposes, we shall leave aside the substantive issue, the merits of the various theological solutions, and the exacerbation of the dilemma in our own age by the Holocaust, etc. Experience seems to show that these issues, more than any other, are the cause of many people losing their faith. Intensely personal questions—the loss of a child; the premature death of a love one; sudden, unnatural death by accident or terrorism; painful illness, suffering, and disabilities; the question “Why me and mine?” and “How could God do this to me?”—seem to be those which must often lead to a person abandoning or at least strongly questioning his ancestral faith. Abstract, universal solutions, whether of a philosophical or mystical coloration, seem to provide succor to only a small minority; for most people, even in our sophisticated “post-modern” age, the immediate existential questions remain utmost.

Rabbi Yaakov’s innovation (was he really the first one to postulate such a fundamental idea?) was in postponing or moving the fulfillment of God’s justice to the Next World—to an Afterlife, to the Eschaton, perhaps to the time of the resurrection of the dead. Rav Yosef says that if Aheir (or any other person troubled by this problem) would have known this doctrine, he never would have turned heretic, but could have continued to believe in God, in His providence and justice, and in His Torah. From the perspective of the 21st century, such a view somehow seems naive.

We now turn from the midrashim and other Rabbinic material to the classic medieval commentators. Ramban, in particular, makes these verses the occasion for a lengthy philosophical discussion on the issue of the rationale for the mitzvot. His discussion consist of two parts. In the first part, he summarizes Maimonides’ approach, as found in Guide for the Perplexed III.48. The Rambam states there quite categorically and simply, that the view that there is no reason for the mitzvot but that they are pure expressions of Divine will, is one of two schools. The other school of thought, to which he adheres, claims that they do have rationales, and that all of them are intended for the societal benefit and ethical refinement of the human being.

Ramban then presents his own view, which is related but similar. He explains that those who says that there is no “rationale”—that the mitzvot are “not compassion, but edicts”—do not mean that they are arbitrary, but that God derives no benefit from the mitzvot, but rather they are designed to train human beings in the proper path. Their aim is didactic, to “purify the creatures.” Thus, shiluah haken is not intended to benefit the bird, as part of God’s creation, or as some species with whose welfare God is especially concerned, but rather to implant, or reinforce, the characteristic of mercy and compassion within the human heart. A subtle, but important distinction. (He also harmonizes all of the different Rabbinic dicta into one integrated picture, unlike Maimonides, who frankly acknowledges the existence of differing, even conflicting, schools of thought within Judaism.)

The Ramban concludes with a nice Kabbalistic “plum,” based upon Sefer Habahir §§104-105. “Send away the mother”—i.e., the Divine attribute of Binah, known as “Mother,” which is beyond the understanding of human beings. “And the son”—i.e., the seven lower sefirot, symbolized by the days of Sukkot or the days of the week, “you may take to yourselves.” That is, even in the esoteric teachings of the Kabbalah, there is a clearcut demarcation between those realms of Divinity in Itself that lie beyond our ken, and the seven lower Sefirot, the symbols of Divine emanation and interaction with the world, which are a proper and legitimate concern for human study and speculation (thus Recanati).

Can we draw any general conclusions from this survey of midrashim whose only common denominator seems to be their relation to the obligation to send away the mother bird? These passages place in sharp relief an ongoing debate within Judaism concerning the appropriate balance between a more authoritarian and a more rationalistic approach to the mitzvot; between fideism and what might be called religious humanism; between a naive belief in Divine justice, and a willingness to examine the hard questions about theodicy.

At root, these are all aspects of the old debate between reason and religion. Does faith mean that one must, so to speak, leave ones mind in the cloak room when you enter the synagogue, surrendering completely to the emotional experience of faith and granting blind obedience to the authority of the Torah and its spokesmen, or is one permitted to exercise ones human capabilities and critical faculties, both intellectual and moral, in an active interplay with the words of the Torah and the teachings of the tradition? In brief, are human-guided values at all valid in a religious setting? There are many voices today within the religious world that posit a sharp dichotomy between fallible human values and the eternal truths of Torah. The late Prof. Yeshayahu Leibowitz (whose yahrzeit also falls this week, one day after my father’s), although very much at home and deeply involved in the secular world, drew a sharp demarcation between human values and religion, which he defines as concerned exclusively with the service of God (he constantly invoked the paradigm of the Akedah). Similar voices are, of course, ubiquitous in positions emanating from the official Orthodox and Ultra-Orthodox world.

Some might even take this position to the extreme of saying that such considerations as lifnim mishurat hadin, i.e., going beyond the letter of the law (which we touched upon, albeit not by name, in last week’s discussion of justice and righteousness) or kevod haberi’ot (human dignity) are somehow alien, illegitimate concepts in a pan-halakhic framework, except where the Sages of old already explicitly invoked them. Rav Kook, of course, presented the opposite position: he constantly spoke of integration and harmonization of Torah with the best fruits of the human spirit. If our interpretation of Torah is incompatible with the highest, deepest longings of the human soul, he held, this is a sure sign that something is out of kilter.

An essay on this subject by Rav Aharon Lichtenstein, written nearly a quarter century ago, places the high road of Judaism squarely within the tradition of religious humanism. In his Renaissance-like balance and breadth of vision, he serves as a much needed corrective to Leibowitz. He describes Judaism as equally distant from secular humanism, in which man is the measure of all things, and from the medieval ethic of asceticism and renunciation, which sees man only in his creatureliness. To the contrary, religion—man’s creation in the image of God—serves as the very source of human dignity and value, allowing for his creativity and freedom. The halakhist sees this world as the primary arena for human activity; human welfare and community are among its central concerns. But, unlike the secular humanist, man does not in principle enjoy moral autonomy; life, responsibly lived, requires moral and religious decisions, but the source of the values which guide those decisions are not those of his own reason, but ultimately that of Torah.

* * * * *

I wish to conclude with a few remarks about my father, in whose honor this essay was written. The issues discussed here—the role of both reason and humanism within a religious weltanschauung—relate to central concerns in his own life. I am deeply indebted to him for the emphasis on reason, on the careful and thorough exercise of the intellect, which have remained important themes in my own life. He was likewise a man of deep sympathy for the downtrodden, and of passionate concern for social change—again, the role of compassion, of humane feeling as motifs within Torah, are important issues in the above discussion.

Possibly his outstanding characteristic was a certain modesty, if not a basic shyness and reticence. But this did not mean that there were not things in which he believed passionately, to which he was deeply committed, and in whose sake he acted. In his youth, like many of his generation, he was deeply influenced by the spirit of science and of philosophical rationalism. He often spoke of the influence of Prof. Morris Raphael Cohen, with whom he studied at City College, as a major influence on his development. He grew up in an age of optimism, of belief that human reason could solve most of mankind’s problems.

Together with that, he was passionately committed to radical social change. As part of the generation that lived through the Great Depression, he was disappointed in the American dream. Having come into man’s estate during the decade of the ‘30’s, he was not among those who bought into American dream of individual success as the be-all and end-all of life. He was also very cognizant of the presence of anti-Semitism in America, whether the virulent strain of a Father Coughlin, or the polite, hypocritical anti-Semitism of the WASP and Irish establishment in the New York City school system. He became a socialist: he worked to build a strong Teacher’s Union, and was involved in the third party campaign of Henry Wallace in 1948—a commitment for which he paid a heavy price in terms of blocking his career. Among his cultural icons, alongside the mathematical and scientific figures of Bertrand Russell and Albert Einstein and the rational philosopher Morris Raphael Cohen, were Paul Robeson, who combined his musical genius and unforgettable voice with a commitment to the struggle for social justice for all.

Dad underwent a great change in the early ‘50s’. A combination of factors—the atmosphere of political terror and inquisition created by McCarthy; the creation of the State of Israel; and the fortuitous visit to America in 1954 of a halutz, Zev Silberman of Kibbutz Ginegar, brother of our next-door neighbor in Queens, which led to a life-long friendship and catalyzed a dormant curiosity about Zionism—all catalyzed a lengthy process of return to Judaism and Zionism that culminated in my parents’ aliyah to Israel upon my father’s retirement in 1973.

During this same period my parents bought and rebuilt a summer home in rural Vermont. I remember my father spending long summer days in back-breaking physical labor, working on various aspects of this project. His love of the outdoors, which was such a contrast to our life in the city, somehow suited his quiet, inward- turned nature. He was also an avid reader: from the ‘50’s on, he began studying Hebrew, he and my mother participating in weekly classes at the Histadrut Ivrit of Manhattan, and he diligently reading the American Hebrew weekly Hadoar; in later years, he undertook several formidable reading projects, mostly in Jewish history and related areas.

After the Kaddish year for his mother in 1964, he began to return to religious practice which, like most of his generation, he had rejected in his youth. In conversations with my brother David, we have sometimes discussed the question of his world-view. Do what extent was his return sentimental, based on memories of childhood, and to what extent did it represent a change in his world-view and the adoption of a religious belief system? And how did all this relate to his ongoing belief in the centrality of science and reason? None of us can know the soul of another person, even of ones closest relative; hence, these questions must remain unanswered.

Ki Teitsei - Yahrzeit Shiur (2003)

Homosexuality and the Zeitgeist

This week’s Torah portion contains a large number of laws concerned with family and sexuality. One such verse, “There shall be no harlot [or: female cultic prostitute; qedesha] from the daughters of Israel, nor a sodomite [or: male cultic prostitute; qadesh] from the sons of Israel“ (Deut 23:18), refers to two distinct subjects. I will not enter here into the complexities of its hermeneutics: Rashi, Ramban, and Targum Onkelos offer three completely divergent interpretations, not to mention modern historically oriented scholarship. In any event, Rashi, and much of the halakhic tradition, see these phrases as referring, respectively, to either prostitution or to any heterosexual activity outside of marriage, and to homosexuality. These are both controversial issues in contemporary culture, about which there has been great change during the past half century; I have much to say about both these issues, much of which may be politically incorrect and go against the stream of current opinion. For reasons of space, and of the time available to me, the discussion of premarital sex, which is in some ways a far more complex and nuanced issue, shall be postponed for another time.

This past summer, there was a flurry of controversy in the Christian world, specifically in America, over the confirmation by the General Convention of the Episcopalian Church of Rev. Canon Gene Robinson as Bishop of New Hampshire, the first openly homosexual cleric to be appointed to such a high office. This appointment was seen as a symbolically significant expression of attitude towards homosexuality of this small church, which is identified with America’s traditional social elite. Coming as it did in the wake of a Supreme Court decision decriminalizing homosexual acts, as well as lively discussion of renewed prospects for the legalization of homosexual marriage in one or another of the fifty states (following its legalization in one of the Canadian provinces), it was an occasion for renewed and lively debate on this issue.

Although we as Jews of course have no direct interest in internal Christian affairs, and certainly not in matters of church personnel, the discussion was illuminating, throwing light on the general mood in the US and beyond, and I found that some of the arguments raised struck a sympathetic chord in me. I happened at the time to be visiting the United States, in Minneapolis, where the convention took place, and took the opportunity to read some of the arguments pro and con in the op-ed section of the Minneapolis Star-Tribune (August 10, 2003). An article by theologian Katherine Kersten argued that the decision rejected the ”three historic bulwarks of Episcopal Church doctrine—Scripture, tradition, and reason” in favor of the new doctrine of “inclusion and affirmation”—in simple terms, accepting everyone and helping them to feel good about themselves. These words caught my attention. Conservatives on sexual and family matters are generally thought of as fundamentalist, whose arguments are based upon a literal reading and acceptance of the Bible. It was not surprising to see an invocation of Scripture and tradition (in much the same spirit as an Orthodox Jew would turn, first of all, to Leviticus 18:22 and 20:13, to our above-mentioned verse, and the various Mishnaic and Talmudic statements that flesh out these verses into practical halakha), but I was curious to see in what way she saw this decision as flying in the face of reason. Kersten goes on to argue that:

The new gospel subordinates thinking to “feelings.”… approval of homosexual acts renders the church’s multifaceted doctrine on marriage and sexuality largely incoherent. ([One thinker] has described same-sex unions as “relationships in search of a theology”)… Instead [of doctrinal consistency], [inclusion’s disciples] are content to proclaim vaguely that “God is doing something new.”… The gospel of inclusion preaches a reconstructed, therapeutic Jesus, who accepts us exactly as we are… [It] has little place for repentance or transformation…. Adherents… offer arguments like this: “The Church should bless same-sex partnerships so everyone feels included.”… “God is love. He doesn’t care about the gender of the people we love.”

In brief, she presents here an incisive diagnosis of the new zeitgeist, which she characterizes as a kind of mushy, all accepting approach that seems reluctant if not downright afraid to draw any negative judgments. If “I’m OK, you’re OK,” no matter what we do, what need is there for introspection, rendering of self-account, personal change—all those themes that are so central to us as Jews davka in this season?

Beyond saying a hearty “Amen” to Ms. Kersten’s account, I would like to add a few brief comments.

1) First, some theological comments. Regarding the Jewish interpretation of the “’one flesh’ union of man and woman“ mentioned by Kersten: Rashi on that verse (Gen 2:24) understands the phrase “they shall be as one flesh” to refer, not to physical union in the act of coition, but to the flesh of the child that will ultimately be born to that union. I consider this a very important comment of Rashi, one emblematic of an entire world-view.

To elaborate: a corollary of our believe in the Creation is a teleological, purposeful conception of the universe, and of those phenomena within it—including sex. God created sexuality, making it such a powerful drive, bringing such intense pleasure, and one which also has the power to confuse even the most intelligent people and lead them to do all sorts of unreasonable and foolish things, because of the ultimate telos of “lo tohu beraha”—“He did not create [the universe] to be desolate; to be inhabited He shaped it“ (Isa 45:18). That is, the ultimate purpose of sexuality is to assure the habitation of the earth by human beings, mammals, birds, fish, reptiles, and whoever or whatever else reproduces sexually. The pleasure involved, fascinating and attractive as it may be to us, is no more than a by-product or a means to that end, and not the end itself.

Hence, to reject homosexuality as a “normal” choice, and to refuse to be swept up in the view that “freedom of sexual orientation” is a part of the universal rights of man, is part of an affirmation of Ma’aseh Bereshit, of our faith in the Creation of the Universe by God which, as innumerable rishonim have noted, is one of the central pillars of our faith, the reason for many mitzvot, etc.

An interesting tannaitic midrash that refers to homosexuality is found in the Talmudic discussion of the seven Noachide commandments. As is known, the Noachide codex is a kind of natural law, a kind of rudimentary code of norms and morality for all human beings, one of whose clauses is “sexual licentiousness.” At Sanhedrin 58a, the Talmud elaborates the specific laws forbidden sexual relations: namely, a truncated table of incest (i.e., barring matrilineal relations alone), homosexuality, adultery, and bestiality. This is in turn based upon a word-by-word exegesis of Gen 2:24: “Therefore a man shall leave his father and mother, and he shall attach to his wife and they shall be one flesh.” The Gemara interprets the phrase “’and he shall attach [vedavak]’—and not to another man.” Rashi explains this derash as follows: that the mutual giving and receiving of pleasure in heterosexual intercourse (albeit not always realized in practice - JC) is a powerful bond binding man and woman together. In homosexual relations, by contrast, the giving of pleasure is sequential—first one, then the other. The implication, as I read this, is that there is something artificial and contrived in homosexual love-making.

If the opponents of total “liberalism” on this matter were to articulate some of the theological ideas underling their position, perhaps they would sound less like yahoos and would be less subject to the charges of bigotry and know-nothingness with which the opposing camp charges them.

2) Having said that, I want to make clear that I do not in any way advocate discrimination against homosexuals in any civil realm. The above is to be understood strictly in terms of religious teaching.

A few years ago (see HY I: Kedoshim) we addressed the far-reaching change in Western culture over the past two or three decades regarding the issue of homosexuality. At that time, we summarized what we consider to be the proper approach as one which balances human love, acceptance and empathy for the homosexual, with insistence upon the ongoing validity and force of the Torah prohibition against homosexual acts. It is in this light that I would advocate some mechanism for civil recognition of the joint fiscal and property rights and partnership rights of homosexuals, similar to that granted in some places to common-law unions—so long as it’s not called marriage. I believe that such a position can even be justified halakhically, using what might be called a narrow construction, on the grounds that, as the civic, financial and legal aspects of such partnership are not dependent upon the sexual aspect of the relationship, one is not strictly speaking condoning or advocating any forbidden act (albeit some might admittedly find this argument somewhat disingenuous).

Given the reality in which Jews live at present, in both Israel and the Western democracies, it is important to draw a distinction between the functions of civil law and those of religion. It is the task of civil law to regulate relations among people in the polis, in a manner enforceable by sanctions; religion provides a teaching of the meaning of human life, of morality, of the path leading towards a holy life, but its power should ultimately come from inner faith, from inner suasion and voluntary acceptance of its teaching, rather than from any concrete power of enforcement.

3) In public discourse around this issue, I find the so-called liberal, pro-gay-agenda camp, guilty of two serious sins. The one is against its own declared commitment to openness, pluralism, tolerance of different viewpoints, etc.; the other, against intellectual honesty. It is by now a commonplace that, as soon as the discussion turns to some tenet of PC orthodoxy, these groups can be as vituperative and nasty as the worst bigot on the other side of the road, imputing the darkest motivations to their opponents, rather than engaging in reasonable, substantive discussion of the issues. I find it very strange that so-called liberals, whom one would expect to be staunch advocates of democracy and free discussion, are the strongest backers of a kind of McCarthyism, of intellectual bullying, creating an atmosphere in which open discussion of an entire host of issues has become taboo.

This is also the case of those voices implying that there is somehow something wrong in religion teaching that homosexuality is wrong, improper, etc., and that this somehow violates the civic rights of individuals. This is a kind of intellectual bullying that fails to accept understand the concept of the free market place of ideas, as well as the distinction I drew above as to the proper separation of realms, in modern open society, between civil law and religious teaching.

4) The second “sin,” that of intellectual dishonesty, concerns the widespread belief that science “proves” that homosexuality is inborn and genetically predetermined. As an ex-yeshiva bakhur, I decided to examine this claim in the traditional way: “Let us take the book and see.” In this case, the relevant text is a study of D. F. Swaab, L. J. G. Gooren, and M. A. Hofman, “The human hypothalamus in relation to gender and sexual orientation,” published in Proceedings of the 17th International Summer School of Brain Research (Progress in Brain Research, 13 [The Human Hypothalamus in Health and Disease]; Amsterdam, etc: Elsevier, 1992), pp. 205-219; especially, the section entitled “the human hypothalamus, sexual orientation and gender identity,” pp. 210-215.

This portion of the paper describes a study of the structure of the anterior hypothalamus of 34 subjects: 18 of unknown sexual orientation, 10 homosexuals who had died of AIDS, and 6 heterosexual AIDS victims. (Since brain research, by its nature, must be performed on cadavers, the availability of subjects whose bodies are in a non-demented condition, is largely a matter of hit and miss, dependent upon what cadavers happen to be available.) One of the major findings of the study (again, based on a total of 10 homosexual males) is “that the SCN [suprachiasmatic nucleus] in homosexuals contain 2.1 twice as many cells as those of the reference group.” (p. 211) The possibility that this is a result, and not a cause, of homosexual behavior is deemed “very unlikely,” because “nerve cells of the SCN are post-mititic [i.e., don’t change in a flexible way] from a few years of age onwards.” The alternative, more likely explanation for this phenomenon is the possibility that it relates to a difference in interaction with sex hormones during development, or that both it and hormonal variants are caused by some unknown third factor. The possibility that the enlarged SCN may be related to the level of sexual activity generally rather than to homosexuality is also considered, but is seen as not supported by the data here.

But this is a far cry from establishing causality:

The relationship between a large SCN and homosexuality is unexpected and, for the time being, difficult to interpret. The relationship need not be causal in the sense that it is a necessary and sufficient condition for developing a homosexual orientation. It is imperative to study more material before definite conclusions can be drawn. (p. 213)

The size and cell number of the human SDN in adulthood is influenced by sex hormones in development … In conclusion; differences in size and cell number have been reported in a number of hypothalamic nuclei in relation to sexual orientation and gender. However, the functional implications of the findings are far from clear as yet. (p. 215)

In brief: the widely held claim that homosexuality—all homosexuality—is predetermined by genetic factors, and that by implication is both impossible to change and outside of the individual’s volitional control, is far from proven. The authors of this paper repeatedly stress the inconclusive nature of the findings, and that the causality is still far from being understood. No definitive claim is made for the statistical significance of the findings, either, the sample being rather small—ten homosexual cadavers, in all. They also stress that this is preliminary data, and that “more data have to be collected to confirm this observation.”

In brief, the entire case for the inevitability and unalterable nature of homosexuality for those who are “born that way,” which would insist upon changing the attitudes and views toward homosexuality of an entire civilization—implying that those who fail to do so are unscientific and primitive—is based upon a total of ten bodies, about which we know, beyond the minimum fact of their sexual orientation and the abnormality of their SCN, virtually nothing.

Ki Teitsei (Hasidism)

On the Beautiful Enemy Woman

This week’s Torah portion contains a veritable potpourri of miscellaneous laws on a variety of different subjects, including many matters of family, sexuality, etc. One of the most perplexing of and seemingly paradoxical of these is the very first one in the parasha, that known as Eshet Yefat Toar, the “beautiful captive woman” for whom a soldier lusts when seeing her among the captives in time of war (Deut 21:10-14). The law states that he may have sex with her once, in the heat of passion, on the battlefield (thus, at least, per Rambam); take her home with him; and he must then allow her to mourn for her own family for one month, shaving her head and growing her nails long, after which time he may marry her. This law is described by Rashi as making a certain concession to human lusts, in light of their enormous power, based upon the rather realistic appraisal that, were the Torah not to allow such behavior, soldiers would probably act thus anyway. The Sefat Emet tries to explain this idea: Ki Tetzei, 5631, s.v. be-Rashi:

Rashi [at Deut 21:11] said: “The Torah only addressed itself to the Evil Urge.” But wouldn’t it have been better not to give this power to the Evil Urge, to turn it towards this? But rather, the very fact that Scripture permitted this [causes] the person not to be attached to and chained to the Other Side by that act. As is explained in Tanya, the word issur (“prohibition”) is etymologically based on the fact that it ties or chains [osser] a person to the power of the Other Side that is present in the prohibited act.

Was it Shakespeare who said that , “Nothing is good or bad, but thinking makes it so”? In other words, the destructive effect on the human personality by performing a negative act is caused, not so much by the act itself, but by the psychological attitude toward them. Indeed, it is known that the attraction of certain sexual acts is not so much the actual desire, as the taboo itself: the fact that “I am now doing a forbidden act.” In modern times, many authors and film makers have explored the attraction of perversity to a certain type of personality; there is a tendency in certain sub-cultures of Western culture, especially some of those that consider themselves “avant garde,” to seek increasingly perverse acts. As the thrill of breaking one taboo wears off, another more daring and more outlandish needs to be found to take its place (e.g., snuff films). The Gerer Rebbe seems to have understood this.

And this is what Scripture tells him: that the fact that in the end he will come to hate her [Rashi, ibid., based on the proximity to the “hated wife” in v. 15], is itself the “permission” [i.e., releasing, untying]. And the whole difference between a permitted act [and a forbidden one] is that [in the former] a person can attach himself to the holy vitality present in that thing, and not to the corporeal aspect.

And in the midrash [on the verse], “They are a charming garland for your head [leroshekha]” [Prov 1:9]—to your time of ‘poverty’ [i.e., old age: rashiyutekha]. [Wherever a person goes the mitzvot accompany him; he builds] a house, [he makes] a parapet; a garment, he makes fringes, etc.” [Deut. Rab. 6.3]; see there. That is, that the Torah and mitzvot connect and attach a person to God, may He be blessed, that by his doing the act for the sake of Heaven, he can also attach the aspect of doing itself to God, may He be blessed, through the light of Torah that is present in the act of mitzvah. And in every permitted thing, there is also a mitzvah—that it be for the sake of heaven, or the positive or negative commandments of “you shall be holy,” “and you shall not go astray after your hearts,” etc.

The other side of the coin is the power of good deeds to bring a person closer to a life of spirituality, and even to God Himself—an idea repeated frequently in Hasidut. The midrash quoted in this paragraph, likewise taken from this week’s parsha, describes how mitzvot accompany a person everywhere he goes, even in such mundane acts as building a house or wearing clothes. Moreover, even where there is no specific mitzvah at hand, even ordinary acts contain the potential to serve as a focus for one of the general, constant mitzvot, as mentioned—to act for the sake of Heaven, to be holy, etc. (the idea of avodah begashmiut, as we have discussed often in previous pages).

Are God’s Attributes Mercy?

A second mitzvah on which much ink has been spilled is kan tzippor, the law of the “bird’s nest”—that is, that upon passing a bird’s nest, if one wishes to take the eggs or chicks, one must first send away the mother (Deut 22:6-7). This, alongside the law of the red heifer (Num 19), is one of the central texts invoked in the age-old Jewish discussion as to whether or not human beings are allowed to attempt to understand the reason for the mitzvot (see our discussion of this in HY I: Hukkat and especially the lengthy Yahrzeit shiur on this subject last year, HY III: Ki Tetzei; on the ambivalent role of the intellect, cf. HY I: Shelah, Korah). Can human beings comprehend the reason for the mitzvot? Or are they to be seen as arbitrary, to be accepted with a kind of blind faith? Is there something impious about even suggesting that a given mitzvah is an expression of God’s mercies, as implied by the text discussed below? This latter statement bothers the Sefat Emet, once again in his sermons for 5631, s.v. Bamidrash:

In the Midrash on the mitzvah of the bird’s nest. It appears that even though in truth it is an expression of God’s compassion, nevertheless a person should not perform the mitzvah except because it is the edict of the Omnipresent. And this is what is meant by “One [i.e., a prayer leader] who says, ‘Your compassion extends to the bird’s nest [is to be silenced]” [m. Berakhot 5.3]. That is, a person should not speak thus, even though the thing is true, because man’s apprehension does not extend to the edicts of God, in the sense of compassion, but only to their being edicts, like a servant who carries out his master’s words, as above. And, in a parenthetical comment (whose position I have slightly altered for easier understanding), the Sefat Emet adds:

And I was asked about this regarding the wording of the Talmud, “because he makes the attributes of the Holy One blessed be He mercy, and they are naught but edicts” [ad loc. 33b]. And I answered that the meaning of “His attributes” [midotav] is “measure”—that is, the manner in which God contracted His will in Torah and mitzvot, so that it might be available to man in such a manner that he may be able to perform the Divine will in practice. Similarly, the meaning of the term gezerah (edict) according to the Holy Zohar is derived from the word “a piece” or “part”—that is, something cut or torn away from the innerness of the Torah; and this is not by compassion. But the source of the mitzvot is in heaven, in God who is filled with compassion. And this is what is meant by “the attributes [measures] of the Holy One blessed be He.“

Here, he provides the theological underpinning for this distinction. God’s “attributes” do not refer, as usually thought, to how or what God is in Himself, but rather to the “measure” by which he “cuts” or “tailors” the Torah to man’s measure—i.e., what man is capable of comprehending or performing in practice. This is an elegant solution to the problem, that redirects many problems about the mitzvot of the Torah from the issue of God’s mercy, righteousness, etc, to that of how He adopted His self to the limited, small world in which we human beings find ourselves.

Ki Teitsei (Rambam)

Thoughts on Teshuvah

The following passage appears after Rambam discusses the quality of the Ten Days of Penitence as a time uniquely suited to teshuvah, and especially the property of Yom Kippur as a “time of teshuvah for all,” marked by a universal confession of sin, repeated several times during the course of the Holy Day. In the concluding section of Hilkhot Teshuvah 2.8, he writes:

8. … Sins which a person had confessed on this Yom Kippur, he should repeat and confess again on a subsequent Yom Kippur, even though he has remained steadfast in his repentance. As is said, “For I know my transgressions, and my sin is always before me” [Ps 51: 5]

This passage is rather puzzling, for just a few lines earlier, in §5, he states that those sins which are not known publicly, but are between the individual and God, ought to be confessed quietly, to God alone, citing another verse from the Psalms, “Happy is he whose transgression is lifted, whose sin is covered” [Ps 32:1]. This would seem to suggest that, in general, it is a good thing for sins to be hidden or “covered.”

The halakhah here is based upon a debate in the Talmud, Yoma 86b:

Our Rabbis taught: Sins that a person confessed on this Yom Kippur, he ought not to confess on a subsequent Yom Kippur; but if he repeated them, he needs to confess them the following Yom Kippur; and if he did not repeat them, yet nevertheless confessed them, concerning such a one Scripture says, “like a dog that returns to his vomit, so is a fool that repeats his folly” [Prov 26:11]. Rabbi Eliezer ben Yaakov said: All the more so is he praiseworthy, as is said, “For I know my transgressions, and my sin is always before me” [Ps 51:5].

Rather, to what does the verse “like a dog that returns to its vomit” refer? As in the teaching of Rab Huna. Rav Huna said: Once a person has performed a sin and repeated it, it becomes permitted to him. Can one imagine that it is really permitted to him? Rather, that it becomes to him as if it is permitted….

A few explanatory comments about the text: (1) The question, “to what does so-and-so think this verse refers?” is a very common one in the Talmud. The operating assumption is that every sage has the entire Bible literally at his fingertips, has thought about the exegetical problems involved in any given verse, and thus has one or another explanation for any given verse. If he rejects the interpretation offered by A, he must have another explanation for that same verse. (2) Rav Huna’s idea that if one repeats a given sin several times “it becomes permitted to him” is of course intended ironically, and reflects a common enough observation about human nature: once a person has gotten into the habit of performing a given action a few times, even if it runs counter to a value system to which he is ostensibly committed, he stops thinking about it, and it becomes automatic. Subjectively, it is as if it has become permitted—which of course in no way alters the objective legal status of that act. (3) Already in Talmudic times Yom Kippur was the main time for confession of sins—notwithstanding the “occasional” confession described by Rambam in Teshuvah 1.1: that is, a confession of one specific sin made at the time that the person realizes he has done wrong and decides to abandon a specific act. But unlike the formulaic Confession familiar to us, the Yom Kippur Confession seems to have consisted of a confession of those sins that the person had actually done. Hence, the question with which our sugya opens: if he had already confessed a given sin (and not committed it again), should he or should he not confess it the next year, and subsequent years?

The former view, that of the Rabbis, states that a person should not be preoccupied with his sins. Confessing the same sin year after year, no matter how serious it might have been, is indicative of a guilt-ridden soul. Moreover, it suggests that the person feels, even after having “done teshuvah,” that he is still identified with the sin, that it is somehow still part of him, that he can never achieve the sense of innocence of the person who has never sinned, who has always lived a clean and upright life, who has never strayed from the straight and narrow path.

The Rabbis, against this almost morbid preoccupation with past transgressions, seem to counsel an upbeat, sunny, optimistic approach to life. It is as if they say: of course one makes mistakes in life, everyone has weaknesses, and one must certainly undergo a process of repentance, even of penitence, in which one uproots whatever faults led to the sin, confessing it sincerely and contritely to one’s Maker—but then one moves on and goes on living in a positive way, cheerfully doing mitzvot and studying Torah and helping others as much as one can. If one has truly and genuinely repented, then one is in fact a different person, one is no longer the same person who committed one or another sin. Teshuvah—as Rav Soloveitchik constantly reminds us in his writings on the subject—is a process of psychological re-creation, of remaking oneself.

Moreover, mentally returning to one’s former transgressions serves no useful purpose. Sin is likened to filth—not only was it filth in action, in the doing, but the very thought of the sin, in dredging up the memory, is so-to-speak filth in thought. Indeed, one might add: the person returning, in supposedly pious fashion, to confess his past sins, may consciously or unconsciously be getting a certain vicarious “charge” from recalling the pleasure he got from committing the sin—so that the very act of confession may actually become a stumbling block, perhaps leading him to repeat the sin at a later point—and such things are far from unknown in human life.

By contrast, the latter view, that of R. Eliezer b. Yaakov, takes a darker, more pessimistic view of human nature. The person who confesses the same sin over and over again, year after year, may tell himself something like the following: I committed adultery (or any other grave sin) so-and-so many years ago; I have thus far avoided repeating this sin by assiduously avoiding opportunities for temptation; or I may have learned how to marshal my will-power in a way that prevents me from falling; or I may have changed my life situation so as to make the sin less necessary or tempting (or all three). But I know myself: the roots of the sin, the psychological desire for illicit pleasure, is still there, lurking deep within the recesses of my soul. And, at a weak moment, they may yet come unbidden to the fore and once again be translated into action. “Do not be certain of yourself till your dying day,” our Sages say in Pirkei Avot. The spiritual exercise of reciting the Confession over this sin every year (presumably, our sugya is concerned with serious sins, not with forgetting to say Borei Nefashot or missing morning minyan once in a while) is part of an ongoing, life-long project of teshuvah; hopefully, the very possibility of repeating the sin gradually becomes more unlikely, as I gradually build up, so to speak, spiritual antibodies to it.

As far as teshuvah is concerned, one might say that R. Eliezer b. Yaakov is closer to the everyday assumptions of “the world”—to the reality that most people, in most cases, in most times and places, do not in fact undergo radical, total life changes. I once heard a shiur from Rav Yehudah Amital, of Yeshivat Har Etzion, in which he stated that the notion of teshuvah is a radical “hiddush”—a conceptual innovation that flies in the face of the assumptions of most of world literature. The tragic view of man —from the Greeks, through Shakespeare and down to Dostoyevsky and beyond—sees man as a prisoner of his destiny. If not “predestination” in the theological sense, in which free will is non-existent, then certainly subject to a kind of psychological determinism—that a person’s character is pretty much fixed, and sooner or later the faults in his character will lead him to act out whatever “destiny” has in store for him.

That even Judaism places certain limits on the power of teshuvah is indicated, on the level of the implied philosophy of the halakhah, by the fact that there are certain sins whose commission affect an individual’s status in a permanent way: a kohen who has killed another person, even inadvertently, cannot never again recite the Priestly Blessing; a woman who has committed certain kinds of sexual sins is debarred from certain marriages, no matter how chaste and modest she may become; and so on.

As for the dispute between the Rabbis and R. Eliezer b. Yaakov and the Rabbis, and the “optimistic” or “pessimistic” view regarding the human being’s capacity for change: on one level, the issue seems more a matter of temperament than one that can be resolved in any clearcut way. What William James calls “the religion of healthy-mindedness” and that if the “sick soul” exist in Judaism as surely as they do in other traditions. They have little to do with dogma or belief, and everything to do with psychology.

Another example of the manner in which different attitudes towards guilt pouring over into halakhic expressions appears in Mishnah Keritut 6.3. The Mishnah mentions a certain pious men named Bava ben Buti who was accustomed to bringing an asham taluy—a sacrifice ordinarily brought only when a person had substantive reason to think that he had committed a certain violation, but was not certain—every day of his life: “perhaps I have sinned unwittingly.” If the Sages would have let him do so, he would even have done so on the day after Yom Kippur, notwithstanding the atoning powers of that day. The Rabbis objected to this exaggerated concern with guilt, and conclude the mishnah with a reminder that the asham taluy is only to be brought when halakhically required.

Why then did Rambam, in the end, decide in favor of R. Eliezer b. Yaakov’s view? Was he “sick-minded” or darkly pessimistic about human nature? Or was he simply a realist, a pragmatic person, who suspected that the type of searing, radical teshuvah in which a person changes his life from top to bottom is rare thing; that, in the words of one of today’s pop-psychologist TV guru, “past behavior is the best predictor of future behavior”; and that repeated confession of sins, even if long gone, might be one weapon in an arsenal of measures to prevent their recurrence in the future.

Shoftim (Torah)

“Justice Justice shall thou pursue”

This portion, in general, is concerned with the basic social institutions of a Torah-governed state: the monarchy; a system of courts, with judges and magistrates, and a high court located in the Temple precincts; the priesthood, with its prerogatives; prophets. Thus, the various realms: religious, judicial, prophetic-charismatic, and executive, while functioning independently, interact and reinforce one another in various ways. Thus far, the first half of the portion (16:18-18:22).

The latter half of the portion details miscellaneous institutions and laws relating to special situations: the cities of refuge for inadvertent manslaughter; laws of testimony and conniving witnesses; laws of warfare: the mustering, and opportunity for those with some unfinished business in civilian life to go home (there was no standing army; rather, the entire populace was marshalled in times of need), the procedure involved in attacking an enemy city; the rule against cutting down fruit trees (the phrase in 20:19, ki ha-adam etz ha-sadeh, “for is the tree a man?”, often misunderstood as drawing a poetic analogy between the man and tree, means the exact opposite); and the case of a slain corpse found in an open spot, and the concomitant ceremony of expiation.

The phrase appearing in the third verse, tzedek tzedek tirdof, “Justice justice shall you pursue, that you may live and inherit the land…” (16:20), has been considered by some as a kind of byword of Judaism. Some years ago a French Jewish thinker (I think his name was Henri Baruch) wrote a book entitled Zedeq, presenting his philosophy of Judaism as being based upon this principle. But, precisely because its truth is so self-evident and obvious, justice can easily be seen as a banal cliche.

Perhaps one might best read these three verses in reverse order: the pursuit of justice as the broad, overriding principle; “Do not slant or bias justice / do not favor persons / do not take a bribe”—the practical application of justice; “magistrates and officers you shall set up in all your gates”—i.e., the institutional measures needed to accomplish this axiom.

The middle verse, “do not slant justice,” is the heart of the matter. Justice is first and foremost directed towards the other: the more alien, the more bizarre, weird, peculiar, different the other seems, the more imperative the call for justice. For that reason it is so difficult. It is easy to demand justice for oneself, for those similar to oneself, for those you can identify with. The sense of “us” and “them” can function as a bribe, as something blinding one to seeing the other, as surely as a thick wad of bills.

Israeli society is being rent apart today, by each camp demonizing the other. Two weeks ago the Friday supplement of Ha’aretz newspaper featured a lead story about the “hatred of Shas” as a unifying factor among the secular, educated, Ashkenazic, generally successful elites. On the other side, there is no need to elaborate on the demonizing, hate-filled language found among the Shas cadres, in Rav Ovadiah’s sermons, nor of the ugly, sometimes lethal violence that it can unleash. What is somewhat surprising is that the “enlightened “ secularists, who supposedly know something about sociology and history and anthropology and psychology, seem to be equally close-minded about the newly-found religious fervor and ethnic pride of Shas—or, indeed, about much of the revival of interest in religion these days. Seeing the humanity of the other—unless he happens to belong to one of the minorities which the “bon-ton” and socio-political orthodoxy of the liberals designate as worthy of respect and caring—is a little bit more difficult.

Prophecy and Charisma

In 18:9-22, a contrast is drawn between prophecy and various kinds of magic and other pagan practices. What is the difference between the two? As we mentioned in our discussion of Balaam, a magician or wizard is essentially concerned with control over the cosmos, by manipulating unseen forces. Prophetic charisma comes from a sense of submission to God, to a higher force—he acts as a mouthpiece for the Almighty and, ideally, has long since completely transcended his own ego. Prophecy, according to the Rambam, does not suddenly set on an ordinary person, but requires years of discipline and training: the prerequisites include a high level of Torah knowledge, intellectual and ethical perfection, years of meditation and withdrawal from society, etc. Only then, should God choose, does He cause His spirit to rest on that person (see Yesodei Hatorah, Ch. 7).

Moses’ position, which is invoked here as archetypal for future prophets (vv. 15, 18) involves a double aspect. He was avi hanevi’im, “the father of the prophets,” and Moshe Rabbenu, “Moses our teacher.” He embodied within his own personality the two types of hakham and navi, sage and prophet. On the one hand, he fulfilled a charismatic, perhaps even ecstatic role, as a sort of conduit for the divine energy; as one who was somehow more than human. Mysterious, removed, remote from ordinary human concerns—as is perhaps symbolized by the light shining from his face. On the other hand, he was the first teacher of Torah: sobre, balanced, judicial, performing a quintessentially rational role—understanding, teaching, elucidating an exoteric teaching, which was in principle available to all. This duality has to a certain measure followed the Jewish people down through the ages. What, after all, was the essence of the polemic between Hasidism and Mitnaggedism, if not the old debate between hakham and navi: between the charismatic, ecstatic leaders who stormed the heavens, as against sobre, learned, text-centered teachers. The difference is embodied in their celebration of Shabbat: the Hasidic tisch, filled with Kabbalistic ceremony pregnant with mystical meaning, and the spare Shabbat ritual of the Litvak, who may barely sing Zemirot, and will sit down with his students straight after Friday night dinner to study intricate halakhic texts like Ketzot ha-Hoshen or Shav Shematta. Or, as Rav Soloveitchik once expressed it, it may be summed up in the difference between Bameh Madlikin and Kegavna (a chapter from Mishnah, as against a passage from the Zohar, used to conclude Kabbalat Shabbat in the two different traditions).

“According to the Torah which they teach you”

When I was a child we were taught in grammar school about the “elastic clause” in the American Constitution: that clause that stated that, in addition to the specific authorities Congress was given to make laws in specific areas, it was entitled to make any other “laws that shall be necessary and proper for carrying into execution the foregoing powers….” (Article I, §8.18). We were taught that this, in effect, gave Congress to right to make any laws that might be required for unforeseen, future circumstances.

Deut 17:8-13 is, so to speak, the “elastic clause” of the Torah. It stipulates that any matter that is “too difficult for you” shall be brought to the “Levite priests or the judge who shall be in those days” (read: Sanhedrin; great talmidei hakhamim of each generation; etc.) and that “according to the Torah/teaching which they tell you… you shall do; do not turn from the thing they shall tell you, neither right nor left” (v. 11). This verse is taken by the tradition (together with such a verse as Exod 24:12) as providing the basis for the concept of Oral Torah.

The notion of Oral Torah is a central one in Judaism, whose importance it is impossible to exaggerate. Judaism as we know it is in effect the Oral Torah: the Mishnah, the two Talmuds, Midrashim, the rishonim (classical Medieval authorities), and aharonim (authorities from about 1500 on), in all their voluminous works of commentary, codification, responsa, etc. are the many faces of the Oral Torah. Acceptance of the Oral Torah, however this may be understood precisely, is a sine qua non of Jewish religious and halakhic commitment. Criticism is often lodged against traditional Jewish practice by assorted outsiders to the tradition—neophytes to Judaism, Christians, Reformers of various types—that one or another halakhic institution or practice is distant from the written word of the Torah.

But the truth is that the major institutions of Jewish law stand virtually on their own. Entire tractates of the Talmud are based upon brief paragraphs in the written Torah (e.g., in next week’s portion, Gittin and Yevamot, divorce and levirite marriage, are based upon 24:1-2 and 25:5-9, respectively), a single verse (as in the case of the laws of the Sukkah); or even a few words. Thus, the entire institution of shehitah—the ritual slaughter of livestock in a particular manner—is derived from the three words “ve-zavahta… ka’asher tzivitikha, “and you shall offer / slaughter as I commanded you” in last weeks portion (Deut 12:21). The related subject of terafot, with its numerous categories of organic defects that render an animal unfit for consumption, is based upon a single verse in Exod 22:30. Still other subject areas are characterized by the Talmud as “mountains hanging by a thread” or even as “suspended in midair.”

Indeed, the late Yeshayahu Leibovitz celebrated this fact, commenting that the Written Torah is itself a function of Oral Torah; that is, that the Bible as such derives its sanctity from the Oral Torah (and indeed, several border-line books are admitted on the basis of m. Yadayim 3.5, while the order of the canon as a whole is discussed and fixed in b. Baba Batra 14b).

On another level, one of the major functions of Rabbinic literature, and especially of the midrash (whether the tannaitic midrashim, or the snipets of exegetical discussion included here, there and everywhere throughout the length and breadth of the Talmud), is to bridge the gap between Written and Oral Torah. Rabbinic midrash, using various hermeneutic tools that form part of the tradition, demonstrates that the roots of the Oral Law lie in the written text (see on this David Halivni Weiss’s book Midrash, Mishnah, Gemara).

There is much misunderstanding as to just what is meant by this. Traditional Judaism contains two main schools of thought regarding this point. One view maintains that virtually everything in the Oral tradition was given to Moses at Sinai, and that the vast oral tradition was passed down through the generations from teacher to disciple, until it was ultimately set down in writing over a century after the destruction of the Second Temple. This view, which finds its definitive expression in the Iggeret (Epistle) of Rabbenu Sherira Gaon, takes literally the dictum that “everything a veteran student/disciple (talmid vatik) shall innovate in the future, was given to Moses at Sinai.”

An alternative view is that of Maimonides, for whom those things passed down directly by tradition is but one of several components of the Oral Law; much of its creation is attributed to later generations. He maintains that a relatively small number of traditions were specifically given to Moses at Sinai (Halakha le-Moshe mi-Sinai) alongside the written Torah, together with certain interpretations of the verses of the Torah; much of the Oral Torah was essentially created by the Sages, through a combination of application of hermeneutics, and the own legislative and juridical authority vested in them. He describes the Great Court in Jerusalem as “the root of the Oral Law and the pillar of teaching, from whom law and statutes issue forth to all Israel” (Mamrim 1.1; cf. Talmud Torah 1.12; and his general introduction to the Mishnah—Hakdamah le-Seder Zera’im). This latter approach seems to coincide more with common sense and the historical evidence, besides putting far less strain on the credulity of the believer. (See Yaakov Blidstein’s excellent article on the differing approaches of the Rambam and Rav Sherira Gaon.)

Interestingly, this concept of Oral Torah as essentially a field for human creativity is one that appears in numerous passages in the Sefat Emet. He constantly speaks of the task of Hiddushei Torah, of new and creative insights into Torah resulting from human spiritual and intellectual input. He often draws an analogy between the dynamic of Written and Oral Torah, to that between Shabbat and week days.

In any event, one might designate this legal theory as “legal traditionalism”—that is, it really doesn’t matter whether a given point in Jewish law was literally given by God to Moses at Sinai or not. Rather, Sinai represents the starting point for the legal tradition, which was developed, elaborated, refined, added to, etc., etc. by the Jewish people throughout the generations—what the Rav called the Masorah community. Such approach is diametrically opposed to that of the school of Kelson et al, which places strong emphasis on the “positive source” of a given legal system, being much concerned by the precise formal status of each law.

Paradoxically, this approach, which more frankly acknowledges the central role of human initiative in creating the halakhah, actually leads to a very traditional approach to halakhah. One often hears the criticism, among many religious people, that “we don’t need to observe such-and-such a law because it’s only a minhag.” (Interestingly, this approach was first propounded in modern times by Rabbi Samson Raphael Hirsch, the father of German Neo-Orthodoxy, of separatism as an Orthodox communal ideology (austritzgemeinde), and of modern style Orthodox ideological polemics. Hirsch wished to draw a sharp line between the requirements of halakhah as defined in strictly legal terms, and the “accretion” of custom that was added over the centuries.) If, however, the Oral Law is seen as an ongoing creative process, whose authority ultimately rests within the Jewish people itself, then custom too, while of lesser formal stature than Torah or Rabbinic law, is nevertheless a valid source of law, and must be treated with all due seriousness. This is conveyed in the Talmudic dictum, “Israel, if they are not prophets, are at least the sons of prophets” (Pesahim 66a). That is to say, there is a certain healthy religious intuition implanted in the people as a whole, that assures that customs adopted by the Jewish community at large are in line with the spirit of the tradition.

The second issue related to Oral Torah is the nature of Rabbinic authority. It is in this connection that the phrase from our portion, lo tasur yamin usmol, “you shall not turn deviate to the right or to the left,” is most often invoked, being used to justify the yeshiva ideology of implicit obedience to da’at Torah (“the opinion of Torah”) and gedolei hador (“the [Torah] giants of the generation”). But this verse is in fact given two diametrically opposed interpretations, in the Sifrei and in the Palestinian Talmud. The former, indeed, reads the verse as implying “even if they tell you that right is left and left is right, you must heed them.” In short, something tantamount to a Jewish counterpart to papal infallibility (lehavdil). On the other hand, the Yerushalmi in tractate Horayot reads it “if they tell you that right is right and left is left.” But—and here one is left to draw the obvious conclusion—if they teach something that is patently, self-evidently absurd, at a certain point the individual may and indeed must exert his own God-given intelligence and common sense.

A similar tension exists between the laws of the zaken mamreh (Sanhedrin Ch. 6), stipulating that an elder who openly defies the authority of the Bet Din is subject to the death penalty (based on 17:12-13 here); and the concept articulated in Horayot, that a hakham she-higi’a lahora’ah, a sage who relies on his own understanding and knowledge, cannot blindly follow what he knows to be a wrong ruling of the Sanhedrin.

These are highly complex and sensitive issues, and in this context I can barely touch their surface. A vast literature, much of it quite polemical on one side or another, has been produced on this subject in recent years. It is this issue that lies at the center of the ideological battles within contemporary Orthodoxy. Needless to say, the problem is much exacerbated by the fact that the so-called gedolim also issue pronouncements on issues of Jewish public policy and, in Israel, are deeply involved in political parties, elevating to the level of Torah obedience mundane tactical partisan decisions.

Reflections on Halakhah and Ideology

The following is a slightly edited version of a posting I made not long ago to “Women’s Tefillah Network,” a discussion group in which I participate occasionally. The discussion began on the issue of mehitzah and the manner in which this is represented by many leading rabbis, but extended to larger issues of halakhah, authority vs. Autonomy, and the role played by ideological considerations in the halakhic process. I thought this both of interest to readers of Hitzei Yehonatan, and relevant to Parshat Shoftim, with its passage on the Sanhedrin and the verse “you shall turn neither left nor right.”

A number of participants in this discussion drew a sharp distinction between halakhah and “public policy,” and sociological, political, etc. considerations. I would argue that these are themselves an integral part of the halakhic process. In the case of almost every major halakhic controversy—for example: over the issue of shemitah in Eretz Yisrael; Hallel on Yom ha-Atzmaut; the status of non-Shomer Shabbat Jews vis-à-vis minyan; contemporary women’s issue, whether of mehitzah, women’s prayer groups, reading the Torah; strict vs. lenient approaches to conversion of individuals who are likely to be non-observant; or even the recent front-page controversy about religious soldiers refusing orders to remove settlers—and the list goes on and on—the alignment of rabbis and poskim on one side or the other can almost always be predicted on the basis of their ideology and general orientation. Does this mean that their claim to be ruling on the basis of halakhah is sham, or that this is in fact part of the halakhic process? Is there in fact such a thing as “pure” halakhah? And if anything of an ideological coloration is eliminated from this category, doesn’t one end up reducing the demands of halakhah to relative trivialities?

This brings us to what is perhaps a more basic question: is the halakhic process a quest for a single “Platonic” truth (to put it in anthropomorphic terms, how would God pasken were you to ask Him?), or is it a dynamic human process, in which authority is granted to rabbis as leaders within a human community? (“It is not in Heaven” [see Baba Metzi’a 59b] is part of this conception). Yochanan Silman, Professor Emeritus in Jewish Philosophy from Bar Ilan University, has written some interesting things on this in recent years, most notably in a book entitled Kol Gadol velo yasaf (“A Great Voice that Did Not Cease”). He asks the question: is the Torah “perfect” or “being ever-perfected”—that is, is it static or dynamic—and concludes that both models exist within the Jewish tradition.

Another question raised was whether there is a sharp dichotomy between halakhah and aggadah. I think that Yeshayahu Leibowitz, whose lifework was of great value in debunking certain pernicious and foolish myths, also did much harm in his implication that “Judaism = halakhah” and that the entire realm of aggadah is totally non-obligatory, and anyone can basically think whatever they want. I understand why he did this: namely, to counter the concrete messianism of the ultra-nationalist, Merkaz Harav school; the aggadah he had most in mind were the aggadot to which Rambam in Melakhim 12.2, dealing mostly with messianic speculation (see HY V: Vayehi). But the consequence of this position has been for people to adopt a position that separates halakhah from everything else in Judaism, making it into a kind of pure, objective science. I consider this to be a very bad model.

In recent years I have myself written two lengthy halakhic studies—one on the ordination of women, published in the Second Kolekh Conference Volume (To be A Jewish Woman, II, Jerusalem, 2003, English section: 9-24), and one on premarital sex (unpublished; HY V: Vayeshev, Mishpatim, Vayakhel). In both cases, these studies were divided into two main sections, in terms of formal structure: presentation and analysis of Talmudic and classic halakhic sources, followed by a discussion of “meta-halakhic” or “public policy” issues. In the case of the study on premarital sex, I stated explicitly that my methodology was the following, which is really very traditional: where there is a mahloket rishonim (dispute of the major medieval authorities) at the core of the issue (as is probably ultimately the case in most major halakhic issues) the tendency is to be strict, unless one can present some compelling reason to choose a lenient position. Thus, in many such cases one finds the Ram”a and other commentators on the Shulhan Arukh invoking such things as hefsed merubeh, tzorekh gadol, tzorekh rabbim (monetary loss, urgent need, communal need), etc. I suggested that, if other psychological, sociological, etc. factors could be shown to come into play on a given issue, they might be invoked in analogous fashion. In other words: where the halakhic sources are inconclusive one way or another, leaving one in a kind of “tie” (teko), these so-called extra-halakhic considerations may turn out to be decisive in ruling one way or another.

A major part of the study of conversion by Zvi Zohar and Avi Sagi (Giyyur u-zehut Yehudit) consists of selections from responsa by poskim of the past century or two who, in order to justify accepting converts whose motives seem questionable, and thus unacceptable by a simple reading of the beraita in Yevamot and the codified halakhah, invoke arguments having to do with the needs of the Jewish people at this juncture in time. That is, structurally speaking, this is precisely the model I’ve suggested combining “halakhic” and “meta-halakhic” factors.

Some years ago there as an exchange between David Hartman and Haym Soloveitchik about the proper understanding of Maimonides’ Epistle on Martyrdom (Iggeret Hashemad), which revolved around precisely this issue (it was published in the Hartman-Halkin book on Rambam’s Epistles and Soloveitchik’s paper in the Joseph Lookstein Festschrift; and later on in Hebrew in, I think, Mehqerei Yerushalayim): namely, was Rambam’s advocacy of a lenient attitude towards the forced apostates in North Africa based on halakhah or rhetoric? Or, what is the nature of halakhah?

A good example of the diametrically opposite position is that of Alan Yuter, who was mentioned during the course of the discussion as someone who follows the halakhah “by the book… with sometimes strange results.” I first encountered Yuter’s name over 20 years ago, when an article of his on the precise issue with which this thread started was published in Judaism, entitled “Mehitzah, Midrash and Modernity.” He criticizes both Rav Moshe Feinstein and Rav Soloveitchik for using non-halakhic methodology to score an ideological victory. His claim was rooted in the claim that the halakhah ought be understood as a system of “positive law”—a concept taken from the juristic philosopher Hans Kelsen—in which everything follows from first principles and from a “primary source of the law.”

The bottom line in all this is that, in my view, so-called extra-halakhic considerations are in fact an integral part of the halakhic process. The problem is that in our world we live in an anomalous situation, where on the one hand there is no central halakhic authority (and it’s probably good that this is so), but on the other hand, many people invoke the authority of X, Y, or Z as the gadol hador (“great man of the generation”—i.e., leading halakhic authority) to hit others over the head, so to speak, with their putative authority. People like us are at a loss how to deal with many halakhic issues, with or without quotes, that offend both our ethical sense and our common sense. There is no simple formulaic answer: the attempt to invoke an exact quasi-scientific model of halakhah, as some people try to do, doesn’t work and is not really true to the real nature of the halakhah. So I’m not sure what we can do but to try to “muddle through,” not expecting to find absolute truth in halakhic rulings, but knowing that , in the pluralistic halakhic universe, there is support for positions that seem more reasonable. There must be, since part of our faith is that the Torah is a “Torat Hayyim.”

Rabbinic Authority and Human Compassion

This week’s parashah contains what I once referred to as the “elastic clause” of the Torah: Deuteronomy 17:11, which states that one must do “according to the Torah that they [i.e., the judges of the Great Court] teach you… you shall not deviate from that which they tell you either right or left.” That is, the interpretations and edicts of the duly constituted Torah Sages becomes The authoritative Torah. Yeshayahu Leibowitz, often considered an iconoclast, was on this point very “orthodox,” formulating this point very strongly. He stated that the Jewish Torah, the teaching of Judaism, is essentially Rabbinic Torah, so that that the Written Torah itself, the canon of Tanakh, is so only because the Rabbis tell us so in the Talmud.

We live in an age of much confusion, or perhaps self-deception, on these points. One often hears people saying that “Such-and-such is only a minhag (custom)” or “Such-and-such is only a Rabbinic edict,” as if that somehow made the practice in question somehow less binding or its observance less important. There are some who argue in favor of restoring the original, pristine Torah law, and dropping off all the “accretions” of later centuries (a tendency already advocated in the nineteenth century by the impeccably Orthodox Rabbi Samson Raphael Hirsch). A guest at our Passover table this past year told us that everyone at the Seder he’d attended the night before wanted either to have fowl declared pareve (neutral), or fish fleishikh (meaty); the anomaly whereby the rules of meat and milk applied neither to mammals alone, nor to all kinds of flesh, disturbed them, flying in the face of their sense of logic. Our guest wanted to ban the eating of eggs with fowl, on the basis of homological reasoning (i.e., functional parallel). Passover seems to be a time when such feelings surface, probably because of the practical difficulties involved for Ashkenazim in observing the traditional but arbitrary-seeming prohibition of kitniyot (legumes), while other equally pious Jews of Sephardic origin are able to buy food in the typical Israeli supermarket without needing to read the fine print on each and every package.

In any event, what we have in these and other such cases (the retention of the second day of festivals in the Diaspora is another case in point) is a head-on conflict between our own rationality and traditional halakhot. Obeying things that are based upon arcane, archaic, or possibly no reason at all, runs in the face of our insistence, as moderns, upon our human autonomy. Why bother to preserve these things, which are clearly not “Torah from heaven” by even the most Orthodox definition?

My own answer to this is rooted in the idea of the continuity of tradition as a value in its own right. Rav Soloveitchik often referred to the idea of the “Masorah community.” The validation of the Torah comes, not directly from Sinai, but through the transmission of the tradition via generations of Jews who, within the confines and clear boundaries of the halakhic process, living in organic community, enriched and interpreted and added to this thing we call Judaism. It may be that some customs will gradually die: for example, as marriages between Sephardim and Ashkenazim become increasingly common, the sharp demarcation between the two groups, and of their practice, will inevitably fade. A certain abbreviation of the Mahzor for the Days of Awes has occurred in the past generation or two (note the piyyutim relegated to the back pages or with grey background in both Rinat Yisrael and Koren. vs. the old Birnbaum Mahzor). But a tour-de-force, in which centuries-old practice will suddenly be abolished by some supreme caucus of “The Rabbis,” is not in the cards. And I, as one who loves the old-fashioned, traditional ways, celebrate this slow-moving aspect of halakhic growth. Let the energy of halakhic innovation and creativity be focused on those areas where it is urgently needed, involving concrete suffering of real human beings, such as the problems of divorce and iggun (“deserted” or “anchored” wives), and no on whether or not we need do without rice seven or eight days a year.

This issue brings to mind an interesting Talmudic story. The incident of the “oven of Akhnai” (Bava Metzia 59b; see my discussion in see HY III: Devarim-Tisha b’Av and Nitzavim) is often cited as an example of the autonomous authority of the Rabbis. In this story, the majority of Rabbis argue a certain technical point of halakhah with Rabbi Eliezer. The latter invokes a series of supernatural miracles to prove his point, but the Rabbis reject them, stating categorically: “It is not in heaven.” The idea implied is that properly constituted religious authority, who represent Klal Yisrael, somehow determine halakhah independent of God Himself! This is a bold theological idea, often invoked by those who call for greater human initiative in modernizing halakhah.

But the sequel to the story, while less familiar, is just as interesting. In essence, R. Eliezer, R. Joshua’s opposite number, remains adamant in his refusal to bow to the authority of his colleagues, remaining certain of his own truth, until in the end they are forced to place him under the ban (nidduy). The story of what then happens consists of three scenes:

1) R. Akiva goes to tell him of his colleagues decision. He is sent, specifically, because he knew how to speak gently, with sensitivity to the other. He wrapped himself in black and sat some distance away. When R. Eliezer asked him about the meaning of this strange behavior, he said “It seems that your friends are keeping their distance from you.” He understands the hint, and they weep together. This is a poignant story, suggestive of the tension between the need to assert the authority of the Court, and the principle that there is such a thing as a binding decision in halakhah, and a sensitivity to the personal tragedy of the rebellious individual who, when all is said and done, is a great scholar, who cannot but listen to his own inner voice.

2) We see Rabban Gamaliel (II), the Nasi or leading sage of the day, whoe authority underlay the ban on R. Eliezer, returning on a ship. They encounter a fierce storm, with enormous waves that threaten to capsize the ship. Rabban Gamaliel immediately understands that all this is happening because of R. Eliezer; that is, that God Himself somehow remains sympathetic to R. Eliezer. Immediately R. Gamaliel declares that “I am not doing this for myself, nor for the sake of my father’s house, but for Your sake, O God, that there not be controversy within Israel.” At once, somewhat reminiscently of the Jonah story, the waves stop.

3) Most poignant of all: R. Eliezer’s wife, Imma Shalom (a symbolic, and under the circumstances rather ironic name), was also the sister of Rabban Gamaliel: an awkward place in the middle of these two titans. She knew the power of prayer, and specifically the power of the supplicatory prayer known as Tahanun. Because she suspected that her husband would pray for her own brother’s death, she always made sure that her husband would never say Tahanun, as presumably such a prayer would be answered. (How did he do this? Did she physically restrain him? Are we to assume that he didn’t he go to shul, or was even forced to pray at home because of the ban on him?)

In any event, one day she missed him: perhaps she mistakenly thought it was Rosh Hodesh, when one does not recite Tahanun, miscalculating the schedule of “full” and “deficient” months (i.e., 30 or 29 days), or perhaps a beggar appeared at the door at the propitious moment. She rushes back, sees that her husband has already managed to say Tahanun, and shouts, “Gevalt! You’ve just killed my brother!” The next moment we hear the shofar sounding from Rabban Gamaliel’s house, announcing that the great man has indeed died. “How did you know?,” R Eliezer asks her. “Because I have a tradition that the Holy One blessed be He has promised that “all gates are closed, apart from the gate of oppression” [i.e., that God always sets right injustices done to the oppressed). In this case, the distress is not monetary or physical, but psychological and social harm. Even though the Rabbis were justified in the action they took, as a necessary measure in defense of the rule of one halakhah in the Jewish people, and God Himself declared earlier “My children have been victorious over Me,” He nevertheless listens to the cry of R. Eliezer, and cannot turn away his prayer.

A Postscript on Rabbinic Authority and Human Compassion

One of the “problems” with Hitzei Yehonatan is that, at times, after writing something and sending it out on Friday, I think about it more over Shabbat, discuss it at my Shabbat table, or maybe even teach a shiur (lesson) about it, so that by Havdalah time I have a host of new insights and the matter seems far clearer in my mind—at which point I feel the inadequacy of what I sent out on Friday, and am tempted to share my new understanding with my readers.

This happened two weeks ago. The more I reflected upon it, the stronger seemed the dissonance between the first half of the “Oven of Akhnai” story and the sequel about R. Eliezer. If the Rabbis were in fact right, and “the Torah is not in heaven,” and by implication R. Eliezer was in the wrong, why then did God perform miracles for him and listen to his prayer, even to the point of killing Rabban Gamaliel?

Moreover, the idea that, in the end, dissident rabbis must come into line with the rulings of the Great Sanhedrin, is a basic one. A famous mishnah in Rosh Hashana (2.9-10) relates how Rabbi Dosa ben Horkanos, along with Rabbi Joshua, were convinced that Rabban Gamaliel had accepted patently erroneous testimony about the new moon, as a result of which the entire calendar, including the date of Yom Kippur, the holiest day of the year, was askew. Yet when Rabban Gamaliel ordered Rabbi Joshua to perform a public act of acquiescence to his decision—“I order you to come before me carrying your walking stick and money bag on the day that Yom Kippur falls according to your calculation”—so as to avoid a split within the people, he agreed. The story ends with Rabban Gamaliel kissing him on his head and saying, “Come in peace, my master and disciple! My master in wisdom; my disciple in that you accepted my words.”

Rabbi Eliezer did not behave in such a fashion. There are two ways of reading the account of what happened to him. One is the “standard” peshat which, as implied by the wording of my heading, is concerned with the tension between halakhic authority and human compassion: both are important Jewish values, which somehow need to be upheld even when they conflict with one another. “The gates of tears” or “the gates of oppression [i.e., of Divine empathy for the oppressed] are never closed.” Indeed, a structural analysis of our sugya supports this line of argument: the initial subject of this Talmudic unit, beginning with the mishnah at Bava Metzia 58b (=4.10) is ona’at devarim, “oppression via speech,” i.e., causing pain or suffering to others by speech. Our story is brought here for the sake of its conclusion, which illustrates that point; the profound issues of the nature of halakhic authority raised along the way are in a sense no more than digressions. Yet if the Sages were right, and they were justified in placing R. Eliezer in nidduy or even herem, what “oppression” was there here, especially in light of the fact that it was done as tactfully as possible, dispatching the kindly and sensitive Rabbi Akiva to deliver the message? The only answer I can think of is that ona’at devarim may occur without any guilt or wrongdoing. God hears those that suffer; He is sensitive to human tears, whatever their cause. There was an inevitable human tragedy here: Rabbi Eliezer, a great sage, one of the most brilliant minds of his generation, who only yesterday had enjoyed the respect and even reverence of his colleagues and neighbors, is suddenly subjected to the ban, to total exclusion from the society of his fellow sages and his fellow Jews. Even if he brought his punishment upon himself by his “rebellion” against proper authority, God sympathizes with his pain.

The second reading is more theological. Throughout our story, God supported R. Eliezer’s position in this controversy: it was He who caused the carob tree to move, the river to run backwards, the walls of the Study House to tremble, and Who sent the Heavenly voice. True, He smiled and said, “My children have overcome Me”—but He continued to support R. Eliezer’s position. Hence, I would draw a distinction between what might be called “operative halakhah” and “Platonic halakhah.” On the human level, human beings have been given the right and duty to rule in halakhic matters, by means of such institutions as the Sanhedrin, and perhaps other courts and the bearers of the chain of tradition in later generations. What they rule is binding and is incumbent upon every Jew: the day that they declare to be Yom Kippur or Pesah becomes so, with the sanctity of the festival and all that implies, even if their calculations turn out to be wrong. But on another level, there is such a thing as the absolute, metaphysical truth of Torah, which is an embodiment of the Word and possibly even of the Essence of the Holy One blessed be He; in a certain sense, the halakhic process is an attempt by human beings to discern or approximate this truth. Because society needs clear, definite norms, and matters of law cannot be left wholly open-ended, the rules of pesak state that, even if they do not succeed in doing so, what they decide is nevertheless valid and juridically binding—but the “heavenly” truth of Torah remains, and the Almighty may dissent from the earthly court.

This view has profound philosophical implications. What is truth? What are the theological underpinnings of societal norms? Is the Torah ultimately given over to human beings, or is it a metaphysical entity? These questions underlie many of the disputes in Jewish thought, both past and present, and volumes have been written on them. This issue remains undecided in halakhah as well. On the one hand, the halakhah learns (from Deut 17:12) of the institution of the zaken mamreh—a sage who, after refusing to accept a given ruling of the Great Court, is subject to the gravest sanctions. On the other hand, a mishnah in Horayot discusses the case of one who knows the Sanhedrin has in fact voted wrongly, yet nevertheless follows their ruling out of duty and obedience, as being required to bring a sacrifice in his own right (m. Horayot 1.1b)—implying that that he is in fact duty bound to follow his conscience, and that the individual’s intellectual understanding, if he is certain enough of the truth of his line of reasoning, may in some cases reign supreme! Indeed, at times we encounter an intellectual giant who insists on his own opinion, his own analysis. We expect him to hold fast to his insight, and not to fold even if the court votes so. The issue of individual dissent vs. social cohesion is a weighty one, to which there is no clearcut, single answer. (Incidentally, it is also a great American tradition—that of the “majority of one,” to quote the title of I. F. Stone’s maverick weekly political newsletter, in which he always spoke his own truth.)

Finally, there is another level on which we may attempt to understand peshat: namely, can there be a symbolic reading of the substance of the dispute concerning Tanur shel Akhnai per se? What were the underlying concepts in the dispute between R. Eliezer and the other Sages? According to Rav Adin Steinsaltz, the Kabbalah states that, as the oven was coiled around and around like a snake, metaphysically the root of the dispute somehow relates to the primordial Serpent, the source of all evil. Or, on another level, one may ask: What constitutes a unity? The Akhnai oven was made of a series of layers of baked clay, the material normally used to make ovens in those days, interrupted by sand—something impermanent, tenuous, shifting. But the whole looked like, and functioned as, one unit. What, then, is a unity?