Sunday, March 25, 2007

Vayikra (Rashi)

For more teachings on this parsha, see the archives to this blog at March 2005.

“And God Called…”

This new book begins with a seemingly mundane verse stating that God called to Moses from the Tent of Meeting, followed by all the numerous laws, about sacrificial offerings and other matters related to the sanctuary, which he was told on that occasion. But let’s see how Rashi treats this verse:

Lev 1:1. “And he called unto Moses, and the Lord spoke to him from the Tent of Meeting, saying…”

Rashi: “And he called unto Moses.” All speech, and all saying, and all commandments, were preceded by calling: a language of affection, the language used by the ministering angels, as is said, “and they called to one another” (Isa 6:3). But God revealed Himself to the prophets of the pagan nations only in a passing way and in language of impurity, as is said “and God chanced upon Balaam” (Num 23:4).

Rashi begins here by noting that God called upon Moses: that the first step in all communication begins with calling, with addressing the other by name—“a language of affection.” Notwithstanding the practical purpose of this speech, namely, to convey various laws, God begins by addressing Moses, presumably in a personal way. Rashi is perhaps suggesting hat there is an echo here of all the other places in the Bible where God calls people by name: Abraham before the Akedah, Jacob, Moses at the burning bush, Samuel as yet a small child in Eli’s spartan dwelling place, Elijah… I find something rather Buberian here: beyond the actual words spoken, the important part of every meeting between two beings is the dialogue, the fact of being present and speaking to one another—perhaps like two lovers who meet after a separation. In ordinary human relations, too, calling by name is a sign of affection.

But it is also used to draw an important contrast: in a subtle play of language, the “call” to Moses (ויקרא) is contrasted with God’s manner of addressing Balaam, in a chance, by-the-way manner (ויקר). (But note: the root קרה is used, not only of chance events, but also of impurity; note the description of Amalek אשר קרך בדרך, “who met you/rendered you impure on the way.”

“And he called unto Moses.” The voice went and reached his ears, but all Israel did not hear it. Could it be that the calling was also for the pauses? The text says, “And he spoke.” The call was for speech, but not for pauses. And what purpose did the pauses serve? To give Moses a certain room to reflect between one portion and the next, or between one subject and another. All the more so an ordinary person learning from an ordinary person.

Rashi is trying to understand the nature of this Divine voice heard by Moses alone. But first he comments about the pauses, about which he offers some simple, practical wisdom. There is need to reflect, to think, to internalize the idea of each thing one learns, and not simply plow ahead. When I was in yeshiva I once had a hevruta who would read the text of an entire page of Talmud without interruption, in a few minutes. He had a brilliant, retentive, very fast mind—but our partnership didn’t last much more than a week.

“From the Tent of Meeting.” This teaches that the voice was interrupted and did not go outside the tent of Meeting. Might this be because the voice was low? The verse says, “the voice.” What is meant by “the voice”? This was the same voice as is explained in Psalms: “The voice of the Lord is in strength, the voice of the Lord is in grandeur. The voice of the Lord smashes the cedars” (Ps 29:3-4). If so, why does it say “from the Tent of Meeting.” To teach that the voice was interrupted. Similarly, “and the voice of the wings of the cherubim was heard as far as the outer courtyard” (Ezek 10:5). Could it be because the voice was low? The verse says, “like the voice of Almighty God when he spoke.” If so, why does it say “to the external outer courtyard.” That once it reached there it was cut off.

Here Rashi is dealing with the wondrous fact that God speaks to a human being—even if not in the dramatic epiphany at Sinai, even if to only one person, and even if to an individual on as sublime and elevated a spiritual level as Moses. Every aspect of Moses’ communication with God was somehow special, unique, noteworthy. Moses was a man whom we have already seen at the Golden Calf incident arguing and pleading with God, acting as intercessor on behalf of the people and, according to the midrash, ascended to the very heavens to bring down the Torah; a man who was at much at home with God, so to speak, as he was with the company of his fellow people. There was something extraordinary, exceptional, outside of the normal rules of nature, of acoustics, even, in the Divine speech. The voice heard by Moses in his private discourse with God was the same powerful voice which thundered at Sinai, or in the Flood scene portrayed in Psalm 29, or in Ezekiel’s vision.

“From the Tent of Meeting, saying.” Might it [the voice] have emanated from the entire house? The verse says, “from above the kaporeth” (Num 7:89). Might it have been above the entire kaporeth? The verse says “between the two cherubs” (ibid.).

“Saying.” Go and tell them words of comfort, words that “conquer” the heart. For your sake does He spoke with me, for we find that throughout the 38 years that Israel were in the desert as a people who were shunned, from the time of the spies on, the Divine speech was not heard by Moses. As is said, “when all the people of war had finished dying, the Lord spoke with me, saying” (Deut 2:15-16)—[only] then did the speech come to me. Something else: Go and say to them my words, and I will reply whether they receive it, as is said, “and Moses returned the people’s words [to God]” (Exod 19:8).

The central idea here is that even Moses, the man of God, was not spoken with for his own sake, but as the leader of the people and as the go-between between God and the people; in other words, as the bearer of a mission. There is in this idea a certain anti-mystical message, one opposed to private religious consciousness as an end in itself.

SUPPLEMENT: The Celebration of Marriage—and Its Obstacles

The midrash about the brass laver which we presented last week, quoted by Rashi on Exod 38:8, celebrates the importance of marriage, the union of man and woman, and the bearing of children, as something in which the Almighty himself rejoices. And yet, for many people, Jewish, halakhic marriage—the path towards marriage, and its registration and performance by the Rabbinic establishment here in Israel; and even more so, the path away from it, towards dissolution in the event of intolerable unbearable marital strife and incompatibility—is strewn with obstacles and difficulties.

One of the most painful problems in contemporary halakhah is the issue of agunot & mesuravei get—typically, of women whose husbands refuse to grant them a get, a divorce writ, despite the fact that the marriage has become, to all sides involved, a dead letter; where the couple is living separately, and are de facto as-if divorced. Recalcitrant husbands often openly use their superior bargaining position under Jewish law—in which the man’s consent is a sine qua non for divorce—to either extort money, or to sadistically torture their ex-wives.

Some months ago, in November 2006, a conference of leading rabbis from all over the world was supposed to have taken place here in Jerusalem, under the aegis of the Chief Rabbinate. At the last moment—literally, a day or two before its scheduled start—Chief Sephardi Rabbi Shlomo Amar, who had called this gathering, cancelled it. It was widely believed that the cancellation was the result of pressure from Haredi elements, including such leading poskim as Rav Eliashiv, who feared that the conference would entertain (note: discuss, not necessarily adopt!) solutions which some mahmirim considered invalid.

This was shocking for two reasons. First of all, it was as much as if to say that the Chief Rabbinate of the State of Israel—an institution in which religious Zionists like to take pride as the highest halakhic authority of the Jewish people, and which, with the rebirth of the State of Israel, was seen as a supreme, central religious authority which was to revitalize the halakhah—is nothing of the kind, but in practice has totally surrendered to the authority of the Haredi rabbis. If that is so, who needs them? Was not this move a declaration of moral bankruptcy?

Second, and far more serious, is the substantive issue: Isn’t the task of the rabbis, as Rav Soloveitchik puts it in Halakhic Man, “to save the oppressed from their oppressors, to right wrongs, to battle injustice”? Where is the Rabbinate’s sense of ethics, their human sensitivity to the plight of women who find themselves “chained” to husbands who exploit their power to extort money or to make them miserable, by preventing them from getting on with their lives? And what are halakhically-committed Jews with a certain minimum humane concern to think?

Then, just this past week, there was another troubling development in this same area. The committee for appointing dayyanim, which had not met for three years, appointed 15 new Rabbinic Court judges—all but three of them from the Haredi world, (six from the Ashkenazi orbit of Rav Eliashiv and six of them Sephardim, backed by Rav Ovadiah Yosef), who are expected to continue the strict approach observed thus far.

There is a crying need for reform on these issues, within the framework of halakhah, and it is possible. While this is hardly the forum to enter into a detailed examination of these questions, I would like to mention a few specific sources, so as to go beyond mere demagogic rhetoric.

Rambam mentions two halakhic rules which, if properly applied, could go a long way towards freeing women from husbands who utilize the system to abuse them. The first of these is the concept מאוס עלי (“he is disgusting to me”): that is, that if a woman declares that she has come to a pass where she finds her husband—specifically, the very idea of marital sex—repugnant, she is entitled to a divorce, albeit she does forfeit certain monetary rights. Rambam articulates the underlying moral principle here, in the words: “that she is not a captive, to be forced to submit to intercourse with a person she finds hateful” (Ishut 14.8; see b. Ketubot 63b).

The second concept is one that appears in the Talmud (Gittin 88b) and is codified in Rambam in Gerushin 2.20, which states כופין אותו עד שיאמר רוצה אני (“he is coerced until he says, ‘I want [to give the get]’”); that is, in that circumstance where the Court, after duly considering the entire marital situation of the couple, arrives at the conclusion that the husband must divorce his wife, they may use coercion (the example given in the sources is of actual physical force; today, various jurists have suggested fines, suspending the man’s driver’s license and/or passport, and even imprisonment) until he agrees. The Rambam discusses the paradox that, even though the consent to divorce is extracted under coercion, it is nevertheless considered an act of his own free will.

In both these cases, there are other rishonim who strongly dissent from Rambam’s position (particularly the Ba’alei ha-Tosafot, who are considered instrumental in establishing Ashkenazic halakhah). One objection raised to the use of coercion of the man to obtain a get is that this might be considered גט מעושה, a “manufactured / made divorce writ,” seen as especially problematic. But in fact the Shulhan Arukh codifies both views, leaving the issue undecided. This is the crux of the issue: the reluctance of the Haredi rabbis to even discuss the problem in an official forum, and to raise these controversial approaches as possible solutions to this thorny problem, stems from a certain reluctance, whenever there is a dispute among earlier authorities, to rule on the basis of the lenient opinion.

But all this applies, assuming other things are equal—that is, in the normal course of events. But there is a definite tendency within the halakhah—one might even say, a time-honored way of dealing with “special cases”—of relying upon the more lenient opinion among the classical authorities, when there are strong extenuating circumstances: “emergency circumstances” (שעת הדחק), “great need” (צורך גדול), “public need” (צורך רבים), “human dignity” (כבוד הבריות), or even “substantial monetary loss” (הפסד מרובה). The general rule is koah de-hetera adif, “the power of leniency is preferable”—meaning, a Torah sage who is able to legitimately ease the irksome burden imposed upon a human being by certain situations—needless to say, when there is a valid halakhic solution to the problem—is to be praised for doing so, for both his wisdom and for his human compassion. These principles are routinely used in the Shulhan Arukh, for example, in the areas of kashrut, in civil law, and in many other areas. There are even cases—e.g., the almost universally accepted practice of carrying objects on Shabbat in the streets of a city which has an eruv—based entirely on a lenient opinion among the rishonim, despite the fact that there is an equally venerable group of rishonim opposed, simply because most of the public would find it an unusual hardship to observe such a stricture; only the unusually pious, in certain circles, adhere to the stricter view. And here too, no less than in marital law, the issue at stake is one of a Torah law involving a sanction of karet—i.e., the most serious level of prohibition!

Surely these principles can be applied here! Indeed, in at least one aspect of marital law, Hazal did in fact promulgate a policy of great leniency, easing the requirements of testimony for an individual’s death (“even a single witness, even that of a woman, even that of a Gentile relating things in innocence/good faith”) so as to prevent the widow being left an agunah, unable to marry. Yet today we often find the halakhah being used by the husband to behave in cruel and sadistic ways: when it is clear beyond all doubt that the marriage is a dead letter, that the husband has no interest in restoring marital harmony, but is simply using his own superior position to “punish” his wife and to deprive her of the opportunity to enter into a new, potentially happier marital relationship. What could be a greater hillul hashem than such a situation? Moreover, knowing the reality of the current modern world, such a policy seems almost guaranteed to deepen the rift within the Jewish people. Again, I must stress that I am not proposing that the entire structure of halakhic marriage be revised from A to Z (as some have suggested), notwithstanding the asymmetry involved in the man being the one, at least formally, to both initiate and severe the marital bond. Rather, I call upon the halakhic authorities to utilize the precedents existing in the halakhah itself—from no less a figure than the Rambam, the “Great Eagle” of medieval Jewry—to rule on these matters in a more decent, humane way.

Why then are the Haredim so adamant on this issue? (1) First, because the area of marital law is viewed as a particularly sensitive one since, if one releases a woman from a marriage unhalakhically, she may retroactively be seen as still married to her first husband, her relations with her subsequent husband as adulterous, and her children from that union as mamzerim—illegitimate. Hence, there is, I believe, a genuine component of yirat shamayim here, in the reluctance to decide between the differing halakhic shitot, lest one somehow be proven to be “wrong.” (There are certain methodological, juridic, and even philosophical assumptions here that to my mind are questionable, relating to the nature of safek, uncertainty—but that’s another discussion.) (2) But second, there are also certain social pressures, if not actual fear of ostracism, at play. There is a kind of religious McCarthyism today in parts of the Orthodox world, in which anyone who proposes even the smallest change or deviation from the way things are done is likely to be labeled as “Reform” or “not really Orthodox.” This is a strange phenomenon, unique to the modern world, in which the existence of non-Orthodox movements somehow has led the Orthodox to associate any change or leniency, no matter how deeply rooted and authentic within the tradition, with “Reform.” Such fear of the opinion of others is surely a great sin, albeit understandable in terms of human nature. The story is told in the Talmud that Rabban Yohanan Ben Zakkai was visited by his disciples prior to his death, to ask for his blessing. He said: “May your fear of God be equal to your fear of men.” They asked him: “Is that all?” to which he responded: “That’s a great deal; know, that when a man sets out to perform a sin, he says to himself, ‘I hope no one sees me.’” (3) Finally, I suspect there is also a certain element of old-fashioned male chauvinism, of a tendency of the (male) dayyanim to identify with the husband in many cases, and a certain insensitivity towards the woman’s side, and her human rights. This may be rationalized, perhaps, in terms of genuine concern over the divorce rate—which everyone would agree is one of the rampant evils of modern society. But allowing the husband to cynically use the halakhah to cause his wife suffering, assuming the conditions mentioned earlier (total estrangement, no movement of any kind towards restoring harmony, etc.), is hardly a productive way to assure the health and welfare of the Jewish family.

A side comment. Rav Eliashiv and others of that school of thought are usually referred to as mahmirim—those who are strict in their interpretation of halakhah. But this description is in fact incorrect: they are strict about get me’useh, but are lenient about the wife’s (and often also: childrens’) financial rights. The same halakhah which governs the procedures for writing a get also governs the equitable division of property, the husband’s obligation to provide for the support of the woman and/or children, etc. By scrupulously avoiding the smallest hint of coercion on the husband, they are in effect allowing the husband to impose economic coercion (or, to use plain language: blackmail) upon the wife, and to deprive her of the rights to which she is entitled by the halakhah.

In point of fact, only rarely are there cut and dry cases of mahmir & meikel. A humra (stringency) in one place may often be a kula (leniency) in another. The story is told of a great rabbi (I forget whom) who was rather easy-going in applying the law permitting ill people to eat on Yom Kippur. How could he be so flippant regarding the holiness of this holiest of all days?, someone asked him. His answer was “I’m not lenient in Yom Kippur; I’m strict in pikuah nefesh (saving life).” This, I would assert, is the authentic spirit of halakhic thinking.

Sad to say, I fear that the Haredi and Rabbinic leadership has fallen into a kind of worship of the dead letter, rather than serving the living God, and responding in a timely way to the needs of the living community. (For further material on this subject see Rabbi Shlomo Riskin’s book [in English], Women and Jewish Divorce: The Rebellious Wife, the Agunah and the Right of Women to Initiate Divorce in Jewish Law. A Halakhic Solution [Hoboken: Ktav, 1989]).

Retroactive Nullification of Divorce

Another incident relating to this subject, equally distressing, was reported in the newspapers during the course of this past winter, not long after the cancellation of the planned agunah conference. A woman, whose husband had divorced her two years earlier, and who had meanwhile found a new life-partner, and was even pregnant by him and was planning to marry him, was suddenly told that her divorce had been declared null and void by the Rabbinic Court. It seems that the woman had attempted to reopen certain aspects of her financial agreements with her ex-husband in civil court. The nullification of the get was apparently taken by the rabbis in response to this action, their argument being that the get had retroactively become a get meuseh, a divorce given under coercion, because it was obtained under false pretenses: had the husband known that his ex-wife would reopen their financial agreement in the civil courts, where the atmosphere would be less favorable to himself, he would never have granted the divorce. Now, the fact that the rabbinic courts are not even-handed in their treatment of men and women but “everyone knows” they favor the husband is scandalous enough. But this move is shocking in that it potentially causes the unborn child to be declared a mamzer, an illegitimate child unable to marry virtually anyone. The rabbis seem to have chosen to use what might be called a “doomsday weapon,” forcing the woman to back down, over what is largely a struggle of prestige. But what is even stranger is that, to my mind, it goes directly against everything that Jewish law has to say about divorce: namely, that it is final, absolute, unambiguous, and separates the hitherto married couple from one another such that each party is absolutely free to continue their life, and enter into new marital relationships without hindrance. Indeed, this is the central premise of the well-known mishnah at Gittin 4.2:

Originally they would make a Court in another place and nullify it [i.e., the get, divorce writ]; Rabban Gamaliel the Elder made an edict that they not do so, because of tikkun olam.

This mishnah is the first in a long series of mishnayot in that chapter containing edicts on a variety of subjects concerned with tikkun olam (lit., “the fixing of the world,” i.e., the just and proper conduct of society). The basic concept is a simple and clear one: that certain matters, particularly relating to personal status, must be final and absolute. Once a woman is divorced she is divorced. For that reason, the convening of another court to (secretly?) nullify the divorce is intolerable. When I was divorced, the Mesader Gittin, Rav Eliezer Waldenberg—one of the outstanding poskim of our generation, a paragon of human sensitivity and understanding, who departed this world for the Heavenly Academy a few months ago—asked me if I had ever made a vow that any divorce I might give this woman would be null and void. Even thigh my answer was negative, they then proceeded to perform a nullification of the non-existent vow. This is a standard part of the divorce ritual, introduced to alleviate even the remote suspicion that the divorce might be non-absolute due to some hidden vow.

Why has this court behaved in a way diametrically opposed to this mishnah? The very possibility of such an action will make every divorced woman feel insecure: is her get really final? The woman here entered in good faith into a relationship with a new man, as a divorcee, and conceived a child. The nullification of her get sounds purely like a tactic in a battle over money. It’s possible that, in terms of contract law, the woman was in the wrong, backing out of a signed agreement; but it is equally likely that she felt that her husband was taking unfair advantage of his superior position in the Rabbinic Court. In either event, is she to be made retroactively into an adulterer and her unborn baby into a mamzer? Who has ever heard of such a thing? I don’t know what Rabban Gamaliel would have said, but I say that these rabbis, as learned and pious as they may be, are acting like the people of Shechem in Parshat Vayishlah (the Torah portion read at the time this incident was reported): treating a Jewish woman—our sister, in the collective sense—as a whore.

Giyyur Resolution

Another area in which the religious establishment seems to be behaving in contradiction to classical halakhah, in a manner strict to the point of insensitivity to those needing its services, is that of conversion to Judaism. This winter, a new law was proposed in the Knesset, with the support of all the religious parties, including Mafdal/Ihud-Leumi, to exclude all converts from the Law of Return. Here too, as in the cancellation of the conference on agunot, it seems that the Haredi rabbis took the lead, pressuring the Chief Rabbinate, which is an organ of the State, to come in line with them.

The aim of the law is to bypass the ongoing and often acrimonious debate between Orthodox and non-Orthodox groups over the definition of “Who is a Jew?” In the past, the religious parties tried to pass an amendment to the Law of Return stating that a Jew would be considered any one who was born to a Jewish mother or who had converted ka-halakhah—i.e., under Orthodox auspices. The Reform and Conservative groups, in the US and elsewhere, were understandably up in arms. The theory behind this new resolution (which, I am told, has fortunately little chance of being passed) is that, by eliminating all converts, they will bypass this controversy, and thereby unite Diaspora Jewry, since Conservative and Reform Jewry will no longer be discriminated against.

But those who proposed this law simply don’t understand the social reality and the probable reaction to it; in other words, they were simply stupid and uninformed in their sociological evaluation.

More important, such a law is totally against halakhah. Ka-ger kaezrah. “Like the resident, so shall be the proselyte.” A proselyte, once converted, is 100% like any other Jew. The basic concept is that giyyur (like divorce) affects a real, irreversible change in the status of the person involved. Even should a convert revert entirely to living as a non-Jew and to practicing his former religion, his halakhic status is that of a mumar Yisrael, an apostate Jew, and not that of a Gentile.

Unfortunately, all of this seems to express a negative attitude towards converts and conversion generally on the part of the Rabbinic establishment. Admittedly, many people may convert for reasons of marriage, but equally so, there are many sincerely pious, religiously–motivated converts. I am personally acquainted with several dozen such people; over the years, several of them have become my best friends on this earth, and it goes without saying that I can testify to their seriousness and sincerity. Given the limits of any individual’s circle of acquaintance, I can reasonably say that there are thousands of such people living among the Jewish people, each one of whom is gravely insulted by this proposed law. But one only needs to turn to Rambam’s Letter to Obadiah the Ger to see the authentic attitude of the great halakhists towards conversion:

As for your teacher answering you improperly, and shaming you and calling you a fool—he sinned grievously in this, and it seems to me that he did so by mistake; and it is fitting that he ask your pardon, even though you are his student. Let him then fast and weep and pray; perhaps God will forgive him… did he not know that the Torah admonishes us concerning “strangers” in thirty-six [different] passages? … Before concerning himself with the question of whether or not the Ishmaelites are idolators, he should have examined himself concerning his temper, which caused him to put a righteous proselyte to shame. …

And yet he called you a fool! Astounding! A person who left his father and his birthplace, his country and its power, understanding in his heart that he should go and attach himself to this people, who are today “an abominated nation” and “enslaved to rulers”; one who recognized the truth and righteousness of this people’s religion, and that all religions are taken from their religion … Shall such a person be called a fool? Heaven forbid! Not foolish has God called you, but enlightened, understanding and wise, walking upright, disciple of our father Abraham, who left his father and his kindred and inclined Godward. …

“To Your Tents, O Israel”

Having presented all these facts, what is to be done about all this? My sad conclusion is that, at this point in history, the Chief Rabbinate of Israel, as an institution, has shown its moral and halakhic bankruptcy. At one time, certainly when founded by Rav Kook, and under the leadership of such giants as Rav Herzog, Rav Unterman, and Rav Goren, all ztz”l, there was genuine hope that it might revitalize the halakhah, serving as a kind of religious counterpart to the renascence of the Jewish nation in the modern return to Zion. But, sadly, that is no longer the case—and the political constellation is such that, even if there are creative halakhic minds “out there” among the younger generation of rabbis, their chance of occupying high office in the Rabbinate or influencing maters in a positive way is virtually nil.

Hence, the only solution I see—and this will be extremely difficult to implement for all kinds of reasons, and would surely face formidable opposition on the part of the religious establishment—is to create a Movement for Independent Orthodoxy. This sounds like where it all started, with breakaway groups in 19th century Germany and Hungary, but in this case the platform would be, not separatism from the negative influence of modernism and Haskalah, but a liberal, humanistic, (words that cannot appear in the name of the movement, because it would be taken as suspect!) compassionate approach to halakhah. This movement would perform and register marriage, divorce, and conversion, but in a mentshliche way. Unlike Tzohar, it would charge for its services, because it would be completely independent of the official State Rabbinate, but at cost. It would be peopled by learned, broad-minded rabbis who understand the reality of contemporary Israeli society, most of whom would have other primary sources of income, but would offer a certain number of hours per week.

There is precedent for such a group: the Haredi community maintains its own batei din (Rabbinic courts), who function as autonomous registrars of marriage, divorce and conversion. What’s sauce for the goose ought to be sauce for the gander: in terms of principles of equity, it would be difficult for any court to deny the right of another Orthodox kehillah to have its own courts—although, nevertheless, things being what they are, it will be a long, difficult, and costly struggle. At this point, it is no more than a vision. I invite those who share this vision to contact me, and perhaps it may gradually become a reality.


Post a Comment

<< Home