National Scholar Updates

 

 

Despite the rhetoric emanating from certain camps of Orthodox Judaism, studying secular knowledge lishmah—knowledge for knowledge’s sake—is a widely accepted notion among Jewish thinkers. In fact, virtually none of the great Jewish personalities who discuss the value of secular knowledge—from Rav Saadiah Gaon and Rambam to Rav Kook and Rav Soloveitchik—speak of its utilitarian value. Rambam does not praise Aristotle’s philosophy for its salary-increasing powers, nor does Rav Kook laud university studies because of their utility in getting into a good law school.

            Rav Samson Raphael Hirsch is a classic example of this knowledge-lishmah school of thought. Not only does he extol the spiritual value of secular studies, he explicitly derides those who see knowledge as a tool in advancing one’s career. Two quotations (many more can be adduced) from his essays should suffice to establish this point. In “The Relevance of Secular Studies,” Rav Hirsch writes:

[A]ny supporter of education and culture should deplore the fact that when these secular studies are evaluated in terms of their usefulness to the young, too much stress is often placed on so-called practical utility and necessity. Under such circumstances, the young are in danger of losing the pure joy of acquiring knowledge for its own sake, so that they will no longer take pleasure in the moral and spiritual benefits to be obtained by study.

 

            And in “The Joy of Learning,” Rav Hirsch has this to say:

[W]e forget that by hurrying to impose the yoke of the materialistic, or, as we like to put it euphemistically, the practical aims of life upon the dawn and springtime of childhood and early youth, we only deprive our children prematurely of the bloom of flowering youth and nip our children’s spiritual yearnings in the bud. Instead of encouraging our children to get wisdom for its own sake, we raise them to become only clever and shrewd, judging everything in the light of self-interest and respecting only those intellectual and spiritual pursuits that are likely to yield the highest dividends in terms of material gain. A generation raised on such a philosophy of life will never be able to experience that true joy of learning, which regards knowledge itself as the supreme reward.

 

            Rav Hirsch also stresses that educators must not give their students the impression that their secular studies are simply a necessary concession to modern times. Such an impression is both incorrect and harmful, for “[o]nly ideas rooted in genuine conviction will be received with enthusiasm. Products of compromise can expect no more than grudging acceptance forced by considerations of expediency.”

Thus far, Rav Hirsch merely emerges as another proponent—albeit an enthusiastic and vocal one—in the long line of Jewish thinkers who see inherent value in studying secular knowledge.

What distinguishes Rav Hirsch, however, and what makes him a fascinating case study is that more than once in his essays on education, he cites statements of Hazal, our Sages, regarding learning Torah lishmah to bolster his position that one should study secular knowledge lishmah.

For instance, in an essay discussing general—not specifically Torah—education, “Ethical Training in the Classroom,” Rav Hirsch cites Pirkei Avot 2:6, “v’lo am ha’arets hassid” and remarkably translates this aphorism as “[A]n uneducated man will not attain the moral grandeur of selfless devotion to duty.” Traditionally, the term am ha’arets applies to someone ignorant vis-à-vis Torah, not general, knowledge. And yet, Rav Hirsch either ignores or pretends not to know this.

Even if Rav Hirsch understands am ha’arets in a nontraditional sense, he also applies other statements of Hazal to secular knowledge that almost certainly apply exclusively to the study of Torah. For example, he cites Kiddushin 40b, “Limud gadol she-haLimud meivi lidei ma’aseh,” and translates this statement as “Knowledge has priority because only the right kind of knowledge can give rise to the right practice.” Two sentences later he paraphrases Pirkei Avot 4:7 as “[I]t was considered a desecration of knowledge and the striving after knowledge to use learning as a ‘crown of self-glorification’ or a ‘tool for making a living.’” Rav Hirsch applies these quotations to secular studies without even hinting that in their original context they refer specifically to the study of Torah.

Nor does Rav Hirsch limit himself to select quotations. In the same essay he makes this general statement about Hazal:

[O]ur Sages were enemies of ignorance. They regarded education, intellectual enlightenment, and the acquisition of knowledge as the first of all moral commandments. They viewed the dissemination of intellectual enlightenment among all classes of the population as the prime concern of the nation, and the training of a child’s mind as the first and most sacred duty of fatherhood. They considered it a matter of conscience for every Jewish father to see that his child should not remain a boor and am ha’arets; no Jewish child must be allowed to grow up as an ignorant, uneducated person.

 

            Frankly, this is staggering. Rav Hirsch talks of Hazal as enemies of ignorance, generally speaking, not as enemies of Torah ignorance—even though most of Hazal’s statements concerning education surely apply to Torah education only. Nor does Rav Hirsch apparently feel the need to explain himself (and an explanation is desperately needed, especially keeping in mind the vast difference between Torah study and other fields of knowledge in the minds of many Orthodox Jews). Rav Hirsch never says something to the effect of, “Although our Sages speak of Torah education, we can apply the principle behind their statements to other fields of study as well.”

            While Rav Hirsch’s employment of Hazal in speaking of secular knowledge is most pronounced in his essay, “Ethical Training in the Classroom,” he blurs the lines between Torah and secular knowledge in other essays as well. For example, in “Education in the Rabbinic Era,” which concerns the educational values of the mishnaic and talmudic sages, Rav Hirsch concludes by asking, “If the pure delight in knowledge for its own sake should, once again, become the common heritage of an entire nation, might it not contribute, in some fashion, to the uplifting, the healing, and the greater happiness of all mankind?” Again, Rav Hirsch speaks of “knowledge”—generically—even though the mishnaic and talmudic sages’ educational values concern Torah knowledge.

            In “Talmudic Judaism and Society,” Rav Hirsch, citing Shabbat 31a, writes that the second question Heaven asks a person after he or she dies is “[D]id you set aside a fixed time each day for continuing your studies?” The actual question, as found in the Talmud, is “Kavata itim laTorah?—Did you set aside fixed times for the study of Torah?” Rav Hirsch somehow morphs “Torah” into “studies.” Further blurring the lines, Rav Hirsch cites this statement of Hazal among a series of other talmudic statements, all of which concern generic knowledge, not Torah knowledge.

Finally, in “The Joy of Learning,” Rav Hirsch attempts to convince parents of the need to instill a love of learning in their children even though he describes his era as “so materialistic, and materialistic concerns are given such prominence…”. He contrasts his age’s attitude to knowledge with “the spirit of true scholarship, which, until very recently, was cherished by the members of the Jewish nation.” Of course, this “true scholarship” cherished by Jews was Torah scholarship. Indeed, in subsequent sentences in this essay Rav Hirsch writes specifically of “Jewish scholarship.” Nonetheless, Rav Hirsch is less than crystal clear in this essay when he employs, without qualification, the words “scholarship” and “knowledge.”

            With this fascinating discovery in hand, what now? How does one explain what appears to be an intriguing misuse of Hazal and Jewish history?

            My short answer to this dilemma is “I don’t know.” One can write this apparent distortion off to Rav Hirsch’s lifelong goal of winning hearts and minds to Orthodox Judaism. However, such an answer is less than satisfactory in that it assumes a certain dishonesty on Rav Hirsch’s part. Therefore, I offer the following possible explanation.

Rav Hirsch obviously knew that he took a logical jump in applying statements of Hazal regarding Torah study to the study of general knowledge. Nonetheless, he considered the step more of a logical “skip” than a logical “leap.” In other words, unlike the vast chasm many Orthodox Jews currently see between Torah and general knowledge, Rav Hirsch views the two fields of study as basically similar to one another. Both concern God’s wisdom. The student of Torah studies the Divine word and the student of nature, history, and the people in it studies the Divine design. Both are divinity students.

            Moreover, in his essays on education, Rav Hirsch repeatedly posits that discovering the laws governing nature should inspire people to search for the laws given to govern their lives—the moral law. In Rav Hirsch’s terminology, the laws of the Creator should lead people to the laws of the Lawgiver. And by “obeying this moral law of his own free choice, man joins the great chorus of creatures that serve God.”

If, then, the proper study of Torah, nature, and history (where one sees God’s guiding hand) are all closely intertwined with the study of God’s moral law, and if “[i]n the view of Judaism, truth is one and indivisible,” Rav Hirsch’s out-of-context utilization of Hazal’s educational statements becomes more understandable. In his mind, secular studies represent another path in one’s Divine service. If so, truly how can one misuse such knowledge as a “crown for self aggrandizement” or as “a tool for making a living”? May Hazal not have had these studies in mind when they argued, “lo am ha’arets hassid”? Jewish learning is, after all, in Rav Hirsch’s opinion, “so broad and universal in character that it happily welcomes any other fields of study that aspire toward an understanding of the realities of nature and history.” And if Hazal did not have such studies in mind, are the two not similar enough to, in good faith, apply a quotation said regarding Torah to general knowledge? Very likely, Rav Hirsch felt the answer to this question was an emphatic yes.  

 

 

 

The current world is one of information-overload and hyper-stimulation. In this increasingly changing and competitive world, the stakes are high. Being creative gives you the competitive advantage. The fastest and best innovators thrive and survive, and creativity is the key factor. In this article, I propose and will provide support for the argument that Jews historically have been highly creative, and that they are currently very creative in many endeavors.

Jews are creative and use their creativity to innovate and improve the world. The title of this journal is “Conversations,” discussions among people. The concept of conversation is an example of Jewish creative dialogue and learning. This article will examine how the practice of Judaism leads to high-order thinking and creativity. I will discuss the roles of prayer, Jewish education, and self-examination, as tools to become a better and more creative person. The final section of this article provides methods the reader can use to enhance creativity. Each person reading this article probably uses these methods to some degree already; but by articulating the strategies, readers can consciously apply them and enhance their work and personal lives.

 

Jews Beat the Odds in Terms of Achievement

 

I nostalgically recall the 1960s when I attended University of California at Berkeley. It was the end of my senior year, and I was having coffee with two Jewish friends with whom I had grown up. In fact, we three students were the only Jews in our public school class in Sacramento, California. We lived in the Jewish part of town and went to Hebrew School together. In those days Sacramento was a relatively small town, and the Jewish population was small as well. What are the odds of three students getting into and succeeding at one of the most challenging Universities in the United States? In Berkeley they do that thing with freshmen: “Look to the student on your left, and now look to your student on the right. Only one of you will graduate.” Fifty percent of freshman students flunked out before their junior year, and only about one-third of entering freshman graduated. Jews were only about 3 percent of the population of California, yet they far exceeded that percentage at UC Berkeley.

The 1960s was a time of change, and Berkeley students were leading this change. Jewish students were major players in the student movements. These movements were driven by social concerns such as free speech, antiwar efforts, equal rights, and unionization of farm workers. The leaders of the student movement as well as the student activists had vision and determination. They wanted a better world, and they would work toward changing the status quo to make a world that was as fair and just as possible. They were practicing Tikkun Olam. Many of the leaders of these student groups were Jewish, including Abbie Hoffman, Jerry Rubin, and Bettina Aptheker.¹

What was true in the 1960s and throughout Jewish history is still true today. Jews are creative and take the lead. Currently Israel, where Jews flourish and prosper, offers so many examples of creativity. Most significantly, Israel is a world leader in the high-tech industry, medicine, and military technology. This little country is in a very dangerous part of the world and has few natural resources. Yet this small Jewish country soars in the marketplace of the world.

The list of Jews and creativity would consume a complete article in itself. Therefore, I am going to choose just a few examples that illustrate Jews and creativity.

Military. In terms of military technology, Israel has developed the Iron Dome and the Eitan. The Iron Dome can intercept short range rockets, and the Eitan is a drone spy plane.

Medical. As for medical technology, my husband and I just benefited from Israel’s innovative and technologically advanced medical services. We were in Hashmona'im, a small Yishuv in the middle of the country. My husband went to the Urgent Care Center in Modiin, which uses the most current technology and Telehealth system.

High Tech. As for the high-tech industry, many of the major international high-tech companies have located in Israel because of the well-educated, highly competent, and intelligent workforce. For overall brain power, just look at the number of Jewish Nobel Prize winners for examples of Jewish outstanding achievement. The Jews have produced many great thinkers and world changers.

Jews can generate creative concepts, and translate them effectively into economic gain and professional achievements. They succeed in the current global market because they are able to produce a high rate of questions and ideas, they have the ability to overcome obstacles, and they have skill set to translate those ideas into marketable products that solve real-world problems. Creativity drives the engine in many areas such as the arts, writing, music as well as business and commerce to mention only a few spheres of interest. Personally, I have found that parenting and family matters benefit from creative thinking.

Jews are economic catalysts not only of the current millennia but throughout the ages. There are many examples where Jews have been invited into countries and usher in an economic Golden Age. When Jews are expelled, the country’s economy goes from boom to bust. Many times the Jews are invited back. Currently, Harbin, China is trying to attract Jews in hopes of regaining economic prosperity for their city. In the early 1900s, Jews were invited to come to Harbin. Jews came and with the Jews came economic prosperity. The Jews were forced to leave in the 1950s, and Harbin has experienced economic decline.²

Why are Jews high achievers and leaders? Lama lo! or in English, why not!

 

How Practicing Judaism Enhances Creative Thinking

 

The skill sets and brain power that Jews develop by practicing Judaism can be generalized to achievement in scientific, intellectual, artistic, and business scopes of practice. One of my professors at Teachers College, Columbia, Mel Alexanberg, described the shared cultural underpinnings of Jewish life as Jewish metacognition.³ Jews are exposed to a shared intellectual and value system, which are Torah and Talmud.

Jews have a dialogue with God. It is through speaking to God and debating God’s response that a moral, ethical, and survival system was and continues to be developed. Jews are the “People of the Book.” Books are words and words are symbols. Words have meanings, various meanings. Study Judaism and you are exploring multidimensional symbolic concepts. This includes multiples levels of ideas and information. There is thinking, exploring, and conceptualizing in an ever-evolving interaction of ideas and points of fact. Through this process, Jews developed a highly sophisticated strategy that involves complex reasoning.

Jewish education emphasizes asking questions, learning more, and then refining concepts and ideas. Jewish learning trains techniques in acquiring information, integrating the information, and generating new and innovative thought or concepts. Jews continue to refine their ideas by constructing new interpretations and theories. This is a continual process where existing information and theories inform emerging concepts.⁴

Throughout the centuries, yeshivot and synagogues have been centers where Jews immerse themselves in complicated interactive information systems and challenge the construction of these information systems, accessing their higher-order thinking. Jews are driven with a passion to question and then seek answers through studying the Torah.

Rabbi Marc Angel has often pointed out that “The Torah is an inexhaustible source of wisdom.”⁵ The fundamental basis of talmudic discourse is to question. Each Jew is free to develop his or her own unique multilevel information storage base, skill and mental proficiency to recall symbolic code, and apply and use that information. Each Jew develops innovative conceptual schema, and eventually, new realities. Jews are trained to suspend judgment and live with ambiguity as they think through their ideas and concepts. As time progresses, the examination of text and communicating with God through prayer establishes an ever-evolving value system. In my dissertation, I examined creativity in the Hassidic community in terms of an individual in interactions with mental stimulation, and related this interaction to creative productivity. I was able to document notable creativity in the Hassidic community.⁶

Jewish creative abilities skill sets learned through Judaism can be used in other areas of work. That is why Jewish scholars have soared in many business, academic, and artistic disciplines. Jews are exercising and building their mental capacity through studying Torah. Jews ask questions and wonder why. Jews construct complex mental systems which are reciprocal exchanges between the individual in interaction with environmental stimulation to solve real-world problems.

The next section describes strategies for enhancing creativity. These techniques are taught in traditional Jewish education.

 

Jewish Techniques for Enhancing Creativity

 

Immerse yourself . Jews immerse themselves in study. They ask questions. Succeeding in any intellectual frontier requires immersing yourself.

 

Throw yourself into your  work. Learn as much as possible. Always question. Access the most current information. Acquire as vast a body of facts and opinions that you can. All that you are learning is fascinating. At times you can feel overwhelmed with all the information. Learn to live with ambiguity. The process of generating order out of all the information leads to innovation. You know that you have immersed yourself in the problem when you are engrossed and totally consumed by the question.

 

Be passionate. Jews historically have been passionate and committed to their religion, to understanding God’s message. The world is fraught with many problems and difficulties. God asks that meaning be sought after through study of Torah and Talmud. Being passionate and intently committed to seeking meaning and truth in life can be applied to any other areas of study.

 

Take on the study of a topic that is compelling to you. You have strong and intense feelings. The topic cries out to you, and all kinds of question soar in your head as you seek a deeper understanding. There is a problem that can be solved, or just another step can be taken in solving a problem. You know that you are passionate when your mind drifts to the question, concept, problem, uncertainty, or difficulty. You are on a quest and feel a sense of being driven to learn more and more. You are on unconventional ground. You do not know the answers, and there is a thrill to the work. There are more questions than answers.

 

Attach yourself to a community. Jews build communities, and live and work together. Jews develop support systems and rules and principles which enhance their lives. Jews are always engaged in vibrant groups to learn and reexamine the religious texts. Each person sustains and builds their conceptual understanding by examining multiple and often contradictory concepts from others in the group, from revered wisdom of our sages, and from current thinkers. Jews are life-long learners; and when applied to other disciplines, leads to creativity in those disciplines.

 

Surround yourself with amazing people. Examine the work of people you admire, and have them review your work. Build your conceptual framework on the shoulders of giants in your area of study. Do not be afraid to hold contradictory theories in your brain at the same time. You know that you are part of a community of amazing people when these people stimulate your thinking. These amazing people have ideas and information that is helping you move your concept forward. When you are with these people in discussions, you feel your creative juices flow. These people do not have to agree with you. If fact, it is far more important that they challenge your thinking than rubber stamp your theory.

Often people are considered successful when they reinforce the status quo in their field. They do not challenge the accepted conceptia. Do not mistake success, such as fame and fortune, for innovation. Most of the time and most people doing creative work have a unique vision. This puts creative people outside the mainstream. Being outside the mainstream can be difficult. Do not measure your work in terms a yardstick from the mainstream. Rather, evaluate your work in terms of the amazing people that you have surrounded yourself with, and measure your success by accomplishing your goals. The best of all possible worlds is to have the support of amazing people, accomplish your goals, and become rich and famous.

 

Use your mind’s eye. Jews pray as part of their life. When Jews are praying, they are also imagining and envisioning. The Jewish experience is thinking of what I am now and what I can become, as I strive to be a better person in the image of God. Most significantly, Jews are seeking clarification and testing themselves as to the progress that they are making towards becoming a better person according to God’s guidance. Using your “mind’s eye” is necessary for novel ideas and innovative solutions.

You want to envision and imagine; and to do this, you use your mind’s eye. This well-honed skill is transferable to the development of innovative products and marketing. It is a process of taking complex situations and making sense out of them. Essentially, you are using your imagination to see the whole problem and the end resolution to the problem. Once you are able to envision, the abstract problem can be broken down into steps. Each mini-step resonates throughout the complex problem and has an impact. When using your mind’s eye, you can match the impact of the mini-step to the goal of solving the problem. You know that you are using your mind’s eye when each mini-step moves you closer to a solution to your problem. Or on careful examination, the mini-step created obstacles to your solving your problem. Every mistake or misdirection offers you the opportunity to rethink the problem and redesign your next step. It provides you with fuller information, more questions, and guides you on your next step. Each mistake is a gift.

 

Be aware/be in the moment. Praying is a conscious experience that makes actions intentional. When praying with intention, you are in the moment. Kavanah is praying with intention and being aware. You will be more creative in your work when you are aware, present, and in the moment. You should be consciously aware and use the information that you have to produce a clearer understanding of the concept that you are studying. You should be alert and have your mental faculties at their peak performance. All your actions are deliberate and cognizant. All the information that you have gathered facilitates your knowing as much information as possible. Your mind is aroused. It is a dynamic process. You are interacting with the information and using the feedback to refine your thinking. You are in the moment.

 

Be resilient. Jewish people have had to struggle to survive. They have had to be better than the average guy. Often they have had obstacles that would overwhelm others. Throughout history Jews have experienced misfortune and have recovered and persisted. Jews do not have a choice whether to be resilient. If they are not resilient, they will be destroyed. For periods of time, Jews have been relatively successful in many countries, which are known as Golden Ages. Then crash, the world comes down around them. Jewish history teaches a series of punishing events. Jews have a long memory of all the calamities, yet they pick themselves up and rebuild their lives. I have heard Jewish holidays described as a narrative: they tried to kill us, we won, and now let’s eat. In the face of overwhelming obstacles and repeated failures, the resilient people go forward and possibly achieve their goals. The choice is be resilient and possibly succeed, or give up and assure failure.

Resiliency is recovering from disappointment and managing frustration. Each failure provides the opportunity to recover and keep going. When treading on new ground, you may come to dead ends. Your strength to bounce back will help you keep going even when you are discouraged. Your will know that you are resilient when you are completely defeated, when you blunder and achieve disaster. Yet each obstacle only makes you more determined. You go back for a deeper understanding of what happened, and what went wrong. Despite the setbacks, you try something different. You are imagining a possible different outcome. If you experience only success, then you are not challenging yourself.

 

Conclusion

 

Again, I am brought back to the day I sat with my Jewish childhood friends having coffee in Berkeley 1968. Was it by chance that we all succeeded? No, it was not by chance because the Jewish rate of success challenges the probability it was simply by chance. Was it the Jewish education at Hebrew School, or living in a Jewish community, praying, Jewish family values, or our connection to our synagogue? The answer is all of the above and a resounding yes to the great achievements of the Jewish People. There is a shared metacognition. Jewish metacognition is a shared set of symbols, values, and thinking strategies, that trains creativity.

Take a moment. How has your practice of Judaism enhanced your creativity? In terms of the Jewish concept of always trying to improve yourself, what strategies can you use to be more creative? How does your experience with Jewish thought and creativity help you contribute to improving the world?

 

Notes

 

1. Mendes, P., ‘“We are all German Jews”: Exploring the Prominence of Jews in the New Left’,    Melilah 2009/3.

2. Hadassah Magazine February/March 2011, pp. 40-48.

3. Conversations with Mel Alexanberg. He was my dissertation advisor in the late 1970s.

4. Miran, MD, Miran E., & Chen, N., DESIGN OF LIVING SYSTEMS IN THE INFORMATION  AGE: Brain, Creativity and the Environment. Eds. Joseph Seckbach ORIGIN(S) OF DESIGN IN  NATURE: A Fresh, Interdisciplinary Look at How Design Emerges in Complex Systems,  Life [ODIN] volume to be published.

5. Angel, M. Angel for Shabbat, Institute for Jewish Ideas and Ideals, USA, 2010.

6. Miran, E. The Ecology of Creativity. Dissertation. Teachers College, Columbia,

 

Few would deny that what differentiates Orthodoxy as a standpoint is largely the boundaries it places. These boundaries are notably stricter and more delineated than those of the non-Orthodox movements. This is not to deny the role of beliefs, ideals, and other emphases in structuring Orthodox life; however, even these rely to some extent on a set of strong borders to preserve them.

            Borders are critical in defining identity. Orthodox Judaism’s relatively clear parameters can appear to good advantage, especially when placed against a background of Western culture, which arguably often fails its adherents, leaving them adrift in a sea of contradictory recommendations from scientific and cultural mavens. When one’s personal borders of behavior and creed are firmly established, one is freed from the need to constantly create and adjust them. One can then focus on creating the content rather than the vessel in which to hold it.

            In an ideal world, Orthodox parameters would serve to minimize confused wandering and searching. Furthermore, while some measure of dynamic dialogue is unavoidable as individuals change and grow, the overall picture would be one of a stable, rich lifestyle in which one’s religious, intellectual, and behavioral impulses are in synch, both within oneself and also vis-à-vis the surrounding community. And indeed, many are drawn to Orthodoxy precisely for this kind of clarity. Yet limits, boundaries, and borders may also be extremely stifling, and may in fact—especially when driven by fear rather than existing organically as part of a secure identity—overly curtail individual autonomy and choke off important spiritual and existential processes necessary to religious life.

            The Orthodox classroom or other study forum reflects the above truths. I’d like to explore briefly some of the boundaries—both of content and form—placed within the Orthodox classroom. Some of the questions to be dealt with include:

• In terms of content, what is studied and embraced as positive, and what is deemed inappropriate or dangerous and is kept out of the classroom, either by omission or by active suppression?
• In terms of form, in what fashion do the students learn? How much control does the teacher appropriate or relinquish, and how much autonomy and self-expression is granted to the students within the learning process?

            For the purposes of this discussion, I will borrow two categories applied by Dr. Marla Frankel (who in turn utilizes Professor Michael Rosenak’s educational terminology and theory) in her analysis of the work of Nehama Leibowitz z”l. An examination of Leibowitz’s work will demonstrate for us a model of a lesson that contains both openness and limits; and through it we can arrive at a general discussion of the limits of the Orthodox classroom.

            Frankel suggests that Leibowitz wore at least two teaching “hats,” and that this granted her a large measure of flexibility, a trait critical to good educating. The first “hat,” or role, is that of the facilitator. This kind of teacher steps back from the students, enables discussion, challenges them intellectually, and trains them in problem-solving. It is the process, not the solutions, that is important. The facilitator’s religious focus is on existential, emotional dimensions rather than on enforcing norms and laws. The second “hat” is that of the pedagogue. This type of teacher presents a discourse or lecture, using rhetorical and analytical skills to answer his or her own questions instead of letting the students answer them.

            In the first model, the individual student is important; in the second, it is the community and the content that matter as vehicles for belief and practice. These two broad roles (though obviously other models are possible) will help us organize what otherwise appears a confusing patchwork of contradictory elements in Leibowitz’s pedagogy, and to see that ultimately she implemented what may be termed “pluralism within limits.”

            This was true of both the content of Leibowitz’s classes and also their form. In terms of content, we see both the facilitator and the pedagogue in action. Leibowitz believed in offering a diversity of interpretation, and the method she invented of presenting different commentaries side-by-side was very much a facilitator’s technique. It activated the students—and also taught them that many options existed, and that their questions were not heretical. As Leibowitz states: “It is important to include this opinion too so that the students will not assume that Rashi’s explanation is the only one possible, and anyone who is bothered by it… is, so to speak, an utter heretic who has no part in the Torah of Moses.”

Overall Leibowitz’s method was pluralistic relative to her contemporaries and to the traditional approaches that preceded her. The Tosafists, for example, aimed to reconcile discrepancies, while Leibowitz loudly broadcasted them. When educators expressed to her their concern that students, especially children, could not easily grasp that multiple opinions may co-exist, she retorted: “We are not Catholics! We have no Pope to decide who is right!”

            Furthermore, Leibowitz opened up the limits of her classroom and writings to include non-Orthodox and non-Jewish sources in the study of Torah. These sources were not only used to bolster traditional sources (an agenda palatable to conservative elements, as it served to show “how correct our sources are”) but also to unearth new layers of the Torah. This was far more radical, implying that thinkers outside Orthodoxy can reveal dimensions in the Torah overlooked by traditional commentators. Leibowitz believed she could eat the “fruit” of these thinkers, while throwing away the “peel.”

            However, Leibowitz took the facilitator role only so far before putting on the pedagogue’s hat. The students were allowed to choose, but only from a certain range of sources selected by her. She placed constraints on the use of universal sources—worldly wisdom was not to be equated with Torah, and the non-Orthodox sources referred to always remained a precisely selected minority, approached with caution and never given the pride of place that the traditional commentators claimed.

            In terms of form, Leibowitz encouraged open discussion in her classroom. She paid personal attention to each student as far as she was able, and she was seen as an accessible teacher. She hated the idea of lecturing, believing that when the teacher talks too much it limits the interaction essential to learning. Instead, her lesson consisted largely of group discussion of a topic, with the teacher interspersing her comments and never talking for more than a couple of minutes at a time. Students forgot that they were being educated, as the discussion flowed as naturally as a conversation. Though not lacking in personal charisma, Leibowitz did not rely on it as the driving-force of the lesson. Rather, she chose questions that would open up discussions, and she deferred her own opinion until after the students had had a chance to reflect. In permitting such interactivity, she relinquished control to the students, functioning as a facilitator and anticipating contemporary trends to a certain extent.

            Today’s students are encouraged to express their opinions and to create personal connections to the subject matter, whereas the teacher’s role is to validate the students, not to critique them or guide them too strongly. Leibowitz’s lesson partly conformed to this model, in its encouraging of maximum participation and lively discussion. Ultimately, however, she kept a tight rein on what was considered the correct answer, using a formula of positive and negative reinforcements and not hesitating to announce “Bikhlal lo!” (“Totally incorrect!”) when she disagreed, an experience that could be mortifying for the student. Few educators in tune with today’s trends would read a student’s answers out in front of everyone and then declare, “That’s completely wrong!” She ran a strict classroom, not permitting the lesson to stray off on random tangents and insisting on punctuality and proper preparation. She expelled students who did not have a basic understanding of the material, or who arrived empty-handed, sans Tanakh. When two young yeshiva students admitted they had brought neither Tanakhs nor notebooks, Leibowitz announced to the roomful of students, “It’s the TV generation! They come to sit and watch!” Many found her harangues somewhat intimidating; some even left, never to return. In all this, she acted as the pedagogue; and some might even label Nehama’s style authoritarian, though she herself would be repulsed by such a term.                

            In her approach to the text, Leibowitz also demonstrated such mixed tendencies. While on the one hand she encouraged her students to read the text closely and directly, ultimately the commentators’ lead was to be followed when studying text critically, with the student’s own ideas in second place.

            Students’ responses to Leibowitz’s classroom varied, in line with the diverse elements mentioned above and with the students’ own personalities. For many, her teaching techniques were their first experience of the teacher as facilitator. The fact that her class was founded upon dialogue between commentators of different periods and spirited discussions between participants constituted a breath of fresh air. Unlike old-school lecturers, Leibowitz was open to diverse viewpoints in her lessons, and students were even allowed to contradict her, though not the text. She was interested in the individual student and in nurturing original thought; her aim was active learning.

            Yet she also firmly steered her class, rigorously training her students to approach the text correctly as she saw it. There were limits to her tolerance of critique of faith-based principles in her lesson. Those who studied with her remember occasions when students disagreed with her—and it was obvious to all present that such “insolence” was out of place. Leibowitz was controlling the class, and for a student to introduce some new agenda was completely inappropriate. Students were there to learn from the teacher, not to advance their own theories. She countered opposition with responses such as: “You didn’t understand,” “You need to learn more about this issue,” or “This is off the topic.” One student challenged: “But Nehama, aren’t there seventy facets to the Torah?” She replied, “Yes, but what you said is not one of them!”

            Many students liked the balance Leibowitz struck between her two roles. They enjoyed the discussion, while also appreciating her firm control of the class, which, by preventing too much digression, allowed mastery of a specific topic. She allowed arguments to continue for just so long, knowing exactly when to interrupt and return to the original point that she had made. For these students, what Leibowitz lost in openness of discussion, she gained in sharpening the student’s mind. With a firm hand, she invited them into a new way of looking at a text, beyond their existing opinions, and she restrained overimaginative students with unsupported interpretations. In her class, even highly opinionated and voluble people learned to defer to her in order to gain what she could give. One charismatic educational figure, today the director of several institutions, recalls, “She would tell me what she thought, and I learned to keep quiet.”

            But this policy frustrated those who wished to broaden the field of inquiry, or who thought along different lines than hers. A free-spirited person might feel uncomfortable in her class; individualistic or critical students might experience the classes as rigid, with her constant demand to justify oneself using strict and rational tools serving to cramp a looser, more associative relationship with the text. Leibowitz was also not (barring a couple of isolated statements, not backed up in practice) interested in personal and emotional reactions to the text. On the contrary, she believed that they interfered with correct interpretation: “When analyzing or interpreting a literary work… [there is a risk] that the interpreter will speak about himself… about his own elevation of spirit, about what is going on inside himself… instead of about the text.” She cared greatly about general relevance, but not about the personal relevance for each individual. Class time was reserved for the correct answers, of which Leibowitz had a very clear idea. Personal issues and questions, even those of existential urgency for the student, must be saved for outside the classroom walls.

            One last significant point to be made is the fact that Frankel, along with Erella Yedgar, discovered through careful analysis that the limits of Leibowitz’s classroom changed depending on the students. The more knowledgeable and committed students generally were allowed more leeway.

            The picture that emerges from all of the above is that of a complex approach, enabling Leibowitz to reach many different kinds of people simultaneously. It appears that Leibowitz achieved a good balance of elements in the classroom, creating openness and space and yet firmly setting limits so that various lines would not be crossed. She gave the impression of teaching from within a secure, non-defensive, open Orthodoxy (except perhaps when it came to biblical criticism and the historicizing of the Bible, around which she had extremely strong feelings that might lead to defensiveness); and that the limits she set were simply those of a teacher invested in guiding students to think in a certain way, rather than creating the free-for-all that sometimes passes for pluralism today.

            We must, however, be careful before applying the Leibowitz model as an ideal for contemporary Modern Orthodox education, so many decades after it was developed. In the hands of the wrong (read: insecure, unimaginative, or authoritarian) teachers, or as part of a rigid system—for example, as widely applied through the Israeli matriculation exam—there is a risk of it becoming dry and mechanical, with the more limiting and inflexible aspects dominant. Moreover, today’s educational mindset, in line with changes in general global sentiments, has shifted in the direction of the facilitator. Hence, the elements of the pedagogue in Leibowitz’s style run even more risk today of alienating creative and independent-minded students, who expect and desire to be allowed to express their opinions and have them considered with respect. For this reason, some of her students who continued her method in their own teaching chose to modify it and extend its limits; for example, allowing more direct access to text without mediation by commentaries.

            We can argue, on the other hand, that precisely because the world of education has shifted so far toward interactive discussion and away from making definitive statements, Leibowitz’s model of pluralism within limits has much to offer. Those educators for whom pluralism means never disagreeing with someone’s interpretation—however illogical or textually inconsistent—for fear of offending, would do well to take a leaf out of her book and learn to make firmer statements and guide toward a worldview. These, however, are often the problems of the non-Orthodox, while Orthodoxy by its nature risks the opposite, namely excessive ridigity and over-imposed limits.

            This article has not set the ideal borders for the Orthodox classroom; such an aim would be too ambitious—and also arrogant. This is a multi-faceted, ongoing discussion, and will vary from educator to educator, institution to institution, and sector to sector. My purpose has been to raise the issues and show some of the prices to be paid for moving too far in one direction or another; and to present at least one model that incorporates both poles, so that educators may work out for themselves what proportion of “facilitator” versus “pedagogue” role is worthwhile adopting in their own lessons. I would also challenge the educator to introspect and ascertain how many of the limits he or she imposes upon the classroom derive from personal fears (such as that of relinquishing control), and how many constitute a thought-out a priori model.

            On a final, personal note, as a product of an Ultra-Orthodox high school and some elite Modern Orthodox institutions of higher learning, I personally suffered greatly from the cramped limits of Orthodox classrooms. There was little space available for my questions and self-expression. My opinions were at best tolerated, rather than engaged or valued, and at worst seen as threatening, though they stemmed from an entirely genuine searching place. As for my creativity and imagination, it found no place at all. Many of the lessons strait-jacketed and silenced me rather than allowing me to emerge feeling more engaged, more connected, and more self-appreciating.

            As an educator, I have since tried to rectify this by engaging in open debates where I value my student’s opinions as a genuine source of wisdom for me. I try to engage with them with respect for their insights, while at the same time not abrogating the value due to my own knowledge. I have also adopted creative techniques that encourage self-expression and free the mind to go broader and deeper than is generally accepted in Orthodox circles. One example of the latter is Bibliodrama, a marvellous role-playing technique of “spontaneous midrash” that, when done correctly, with firm steering and with faithfulness to the text, can achieve superb results in terms of deepened identification with the Torah, without straying from what feels comfortable for an Orthodox population. Here, I aim to stretch the limits but not breach them—and I feel it is important to do so. I trust that this question of what the limits are, and when and how to expand them to their maximum, may spark discussion in the right quarters.

 

 

 

            I am a convert. There can be no question that I am halakhically Jewish, at least if you trust the Lubavitchers to know halakha. I am writing to protest the downright shameful treatment of converts by the Orthodox community, which so conveniently forgets the explicit commandment to not oppress the ger.

            First, let me state my background—though I will omit identifying details for reasons that will appear later. I was raised as a Christian in the Bible Belt to believe that the Bible was the word of God. Nobody explained to me why “God’s Word” did not include the laws in the first five books, which today are observed only by Jews. Due to my parents’ severe opposition, I could not do anything toward converting to Judaism until I went away to graduate school in a small college town.

This was more than 35 years ago. At that time, I took instruction from the only Orthodox rabbi in the state, who could be described as Modern Orthodox. In those days, I knew nothing of Modern/Hareidi distinctions among Orthodox Jews; in fact, there were no Hareidi Jews in my immediate vicinity. The Bet Din consisted of my rabbi; the only Conservative rabbi in that town (he was a Sabbath observer), and one other person. As I started meeting other Jews for the first time (I had had no significant social Jewish contact before my conversion), I started getting questions about this conversion. I had met a community of Lubavitchers by this time, and they decided that although they believed my conversion was valid, they would redo it just to remove all question. They even placed a call to New York and got a ruling that I should not say God’s name in the blessing for this re-run. This second conversion took place about a year and a half after my first conversion.

            I did not meet and marry my husband until nine years later. His entire family is Hareidi, and he is yeshiva-educated. We are Shomrei Shabbat but not “yeshivish,” and live in a small college town with a bare minyan for our Orthodox community. We have one child, a son, who is also Shomer Shabbat.

            The basic problem a convert faces in the Orthodox world stems from the following mind-set: If you observe one mitzvah more than I do you are a fanatic, and if you observe one mitzvah less you are an apikores, or heretic. This is hard a enough mind-set for a ba’al teshuva to navigate and to figure out what is essential halakha and what is less essential minhag, or custom—and even more so for the convert. If a convert is at all less stringent than the person he or she is speaking to, the logic seems to extend that the convert has not accepted all of the mitzvoth, and therefore the validity of the conversion is in question. I’ve even had an Orthodox rabbi say this to me in those very words!

I recall an occasion when I asked: Why, if there is one law for the convert and one who is born Jewish, that converts are automatically classed with prostitutes as people kohanim may not marry? That’s when I learned that questioning is not permitted. Another “learning experience” I had was when I became friendly with a young man—and our friendship was disapproved of by people in the community, who forced him to end the friendship. I obviously hadn’t accepted that the only permissible relationship between a man and a woman was marriage to that person, so therefore I wasn’t “really Jewish.” I even got into trouble when I expressed secular political views that differed from those of the person I was speaking with. I didn’t elevate “what’s good for the Jews” (including the State of Israel) over all other considerations. This showed that I had not really become part of the Jewish people, and therefore I wasn’t considered to be Jewish.

            My point is that the only way for a convert to be “accepted” is to become SuperJew: to be more stringent than anyone else, and to totally block out the former non-Jewish self. I have known of a few such people, though I have never become close enough to them to tell if this is real or an act they put on for self-preservation. Sorry, folks, I’m not SuperJew, nor are the vast majority of converts I have known—though they and I feel pressure to be so. If you can be “accepted” only by putting on an act, you’re not really accepted.

            In the culture in which I grew up, the cardinal sin is forgetting where you came from. I’ve often had Jews tell me that they assume I wouldn’t want my children to know my parents, and that since my parents are not halakhically my parents I owe them no obligation. I’m afraid that I’ve never bought that, and it has been the source of many problems. Does this mean I’m not really Jewish?

            And I wish I had a dollar for every remark I’ve heard made by Jews about “the goyim.” I can’t stand such remarks about me (I’m still the same person I was before) and my family and my former co-religionists (whom I do NOT consider to be idolaters!), and it’s no excuse that the speaker didn’t know my background. The Talmud (Sanhedrin 94a) recognizes that this is painful for the convert and explicitly forbids such comments lest the convert regret the conversion. Believe me, I’ve heard much worse about non-Jews from Jews than I’ve ever heard about Jews from non-Jews. I’m afraid that this does not exactly solidify my identification with the Jewish people, whom I encountered only after my conversion to the faith.

            The effect of all this on me (and I’ve only related a few examples) was very nearly to drive me away from Judaism. When people do things to you in the name of religion, it becomes hard to separate the people from the religion. In this case, it is also very hard to separate halakha from minhag. When a demand is made on you that you simply can’t fulfill, and you are told that this is an essential part of the package, how do you not then reject the whole package? I very nearly did. If there had been a way to undo my conversion, I might well have done it. But when I give my word, I keep it. I believed I was now obligated to observance and couldn’t get out of it. What really saved me Jewishly was that I was now living in my present small college town, where all Jews are accepted without question (because, for one thing, we can’t afford to be very particular). This tolerance allowed me the space to recover after my experiences with larger and more rigid Orthodox communities.

            Most of my problems of the sort I’ve described occurred before I got married. Since then, my husband’s yihus (religious lineage and connections) has largely protected me, coupled with the decision we made to hide my ancestry where at all possible. This started with my mother-in-law, a Polish immigrant who probably subscribed to the “can the leopard change its spots” view of non-Jews that I have also heard (primarily from members of her generation). She was deeply embarrassed about her son having non-Jewish in-laws, but she wanted her son to be happy. She solved the problem by pretending to everyone (and herself) that my parents were Jewish, and ordering us to say nothing to the contrary. She has been dead many years now, but my husband, with his greater knowledge of the Orthodox world, convinced me that it would be better for our son if my background still was not known. We have all become very good at giving the misleading impression that I was born Jewish, while at the same time not saying anything that isn’t true. I do not have sufficient Hebrew language skills to pass as someone who was born into a Jewish, religious home, but we allow the impression to exist that I am a ba’alat teshuva. Although our son knew my parents (now long-deceased), to outsiders we emphasize my husband’s family and de-emphasize mine. I am not comfortable having to deny who I am, and I hope that someday my son will decide that denying half his heritage is not good, but I’ve acquiesced because it’s best for him. If my status becomes known, he will be forever under the same cloud that I am. I wouldn’t wish my experience on anyone, especially my own son.

            My latest problem, which has reawakened all of these memories, is that my son has started looking for a shiddukh, a wife, in the Orthodox world. We recently had a very bad experience. The girl signaled interest on a computer site, knowing of my background. Her mother took over and forbade her to meet my son until I was investigated. The result was very unpleasant for me: the matchmaker, in the course of her Inquisition, persisted in thinking that it was for the sake of marriage, that the re-conversion was at my husband’s insistence (never mind that both conversions took place long before I met him), and even asked whether our son had conversion papers! Their rabbi then called us to explain that it was his synagogue’s policy to have copies of conversion papers on file, and asked us to send them. (All of this was before my son could even talk with the girl to see if the match was worth pursuing.) I was going to refuse unless the same demand was made of the other parents; before it came to this point, my son refused the match. He agreed with me that proof of my Jewishness should not be halakhically necessary (especially at this stage), since it was not in question that I had long been observant, and further, it sounded like a bad in-law situation. It still left me very upset. I don’t mind the asking itself as much as I do the unwillingness to accept my answers. I am hoping that in whatever shiddukh he makes, my background can remain hidden (except to the girl herself) until after the wedding, because I can foresee a repeat of this unpleasant suspicion directed at me and only me. I don’t know whether this will be possible.

            This brings me to one of my long-standing grudges. Converts are asked to show papers at every instance, from day school enrollment (either their own or their children’s) to weddings. The same is not asked of people who claim to be born Jewish. I resent being singled out for this suspicion. I don’t care how politely it is phrased or what reasons are given. (“Standard synagogue policy” certainly doesn’t cut it.) I find it offensive and discriminatory to constantly have to prove myself, to know that there will never be a time when I am simply accepted as a Jew without strings attached.  Perhaps the larger community is simply unaware of the impact this practice has on a convert’s feelings. But it’s past time that this was realized and these policies reexamined.

            These actions may actually violate an additional negative commandment, beyond oppressing the ger. Maimonides, when talking of “cheating with words,” gives an example of someone who tells a convert to “remember your origins.” He may have meant that someone who while in negotiations with a convert assumes a superior position because of his Jewish birth is cheating, by taking for himself something to which he isn’t entitled (since Jewishness should be equal for all Jews). These demands for proof of conversion in return for shiddukhim and Jewish education may qualify.

            I will now refuse to provide papers for any reason unless the same is required of non-converts as well. (I can tell you that my husband has no such paperwork to prove he is Jewish.) If one needs to be sure I am Jewish, one should apply the same criteria for people who claim to be born Jewish. To me (and my yeshiva-bred husband agrees), this discriminatory treatment is a clear violation of the commandment not to oppress the ger. One convert I know got so fed up with this practice that she tore up her papers. I haven’t dared go that far, but I’m sorely tempted. Whatever happened to the halakhic presumption that if you are observant of mitzvoth, you are Jewish? I’ve been Shomeret Shabbat for 35 years. Shouldn’t that suffice? (The yeshiva community actually may be better on this point than non-yeshiva people; my Hareidi sister-in-law and her husband immediately and totally accepted me with no questions asked.)

            I have been told that I should not feel offended by these procedures because, especially these days, people need to make sure that both parties to a Jewish marriage are Jewish. First, I don’t think anyone should tell me how to feel. The commandment not to oppress the ger only makes sense in light of the ger’s own feelings. Second, why are the same requirements not made of the parties who claim to be born Jewish? Ba’alei teshuva aren’t asked for papers; but even for them, isn’t it forbidden to shame a ba’al teshuva by reminding him or her of past non-observance? Third, I don’t think one should downgrade the explicit commandment not to oppress the ger.

            So what if an occasional mistake is made? I’m afraid that with my background I can’t consider this the worst thing that could happen. I can hardly take the position that any non-Jewish ancestry is a blot on the Jewish people. Actually, I believe there is an opinion that if it should transpire that a maternal ancestor wasn’t Jewish, it would not negate the Jewish status of observant mikva-going descendants. But if that doesn’t suffice, do a conversion to make sure—and I don’t mean making an already observant person start from scratch. This problem is fixable. Elijah the Prophet is going to have quite a job sorting us all out anyway; what’s a few more, especially when weighed against the commandment not to oppress the ger? Personally, I’d go with this Torah commandment as against concerns with the purity of the Jewish people. Unfortunately, however,  the Orthodox community seems to have taken the other position. I think a number of so-called religious Jews will have a few things to answer for on the Day of Judgment.

            The situation today is even worse than it was 35 years ago. With the Orthodoxy’s move toward the right, standards for converts have been raised. It is forbidden to refuse a sincere convert. In the effort to weed out the insincere, has the bar been raised so high as to also exclude many sincere converts? In my day, the “Big Three” mitzvoth were Shabbat, kashruth, and taharat haMishpahah (family purity); anything more was desirable but not a deal-breaker. It was not required that the convert know all of halakha. And at least where I did it, anyone who did not have a Jewish fiancé(e) was automatically accepted. In addition, if a problem was later discovered with the procedure, redoing it was no big deal. Now, to judge by the experience of newer converts in our community, one must have to commit to a higher level of observance and must live in a large Orthodox community (which, as a resident of a small community, I disagree with—it is quite possible to live halakhically without a lot of large local Jewish institutions). Additionally, there is a reluctance to simply redo questionable conversions. One Shomer Shabbat person in my community is in halakhic limbo with his questionable prior conversion, which nobody is willing to redo as long as he lives here. The point about questionable conversions that appears to be overlooked is that although the conversion may be invalid, it also may be valid. The current focus seems to be on the possible invalidity, with the result that these converts are treated as if the conversion never happened. What about the possibility that it may be valid? If it is, aren’t we committing several serious sins, from oppressing the ger to discouraging further observance?

            The religious leadership in the State of Israel adds to the problem by only accepting certain rabbis’ conversions. Where would that leave me? I doubt such a list even existed 35 years ago; if it did, I don’t know whether my rabbi would have been on it. Put it this way: My son knows it would be probably too complicated for him to consider making aliyah.

            Even outside the State of Israel, there is a problem with local autonomy. A conversion that is accepted in one community may not be accepted in another. One person in our community converted 50 years ago. No problems arose until now, when her daughter was refused membership in one European synagogue, and her grandchildren were denied a Jewish education in that community. Since the (Orthodox) converting rabbi has long been dead, he could not be asked for information. The daughter is accepted as Jewish in some Orthodox communities but not in others. What is a convert to do, especially when it is long enough after the fact that all witnesses have died?

I have read the Rabbinical Council of America’s new conversion policies, which are intended to address at least the uniformity problem. Aside from the fact that these policies are only prospective, I am afraid that in implementation they will be used to institutionalize a very high bar for converts and justify retroactive rejection of converts such as myself. I fear that the prescription that converts should tell their local rabbi of their status merely invites the sort of social problems I’ve described above, unless said rabbi is both trustworthy and sensitive (which, unfortunately, not all are).  We do, after all, know the halakhic implications of our own conversions! I for one (and I suspect others as well) prefer not to emerge from the closet now.

            It appears that no convert can ever be secure in his or her status as a Jew, no matter how much time has elapsed. Ignorance of the halakha involved, coupled with prejudice against non-Jews, makes it all too easy for a Jew to consider a convert to be insufficiently observant, hence non-Jewish, and to feel no qualms about expressing this. It should be absolutely forbidden for a Jew to raise this issue about a conversion once validly performed, and it also should be forbidden to reexamine decades-old conversions that were done by Orthodox rabbis. Otherwise, there will be literally no end to the suspicion surrounding a convert.

It may not be too farfetched to draw an analogy with the “purity of blood” concerns of Spanish Christians at the time of the Inquisition. “Old Christians” constantly suspected “New Christians” of being secret Jews, even if generations of the New Christian family had been devout Christians. This entailed serious social and political repercussions against the New Christians, who became a permanent and inferior social class. Only if one could prove “purity of blood,” that is, unadulterated Old Christian descent, could one rest easy. I am afraid that the present-day Orthodox Jewish social structure may be developing into a similar caste system, with converts at the bottom of the ladder and with decreasing possibilities of social integration. The tales I hear from outreach organizations about the problems ba’alei teshuva face in Orthodox communities indicate this—and, of course, converts have even lower status than ba’alei teshuva. Rambam would be appalled.

            When people ask to convert, they are warned about persecution from non-Jews. Nobody ever warns them about persecution from Jews. Perhaps this is simply not on the radar screen of conversion rabbis, very few of whom have ever experienced it themselves. However, this has been the experience of nearly every convert I know. Frankly, if I had known 40 years ago everything I know now, I doubt I would have found becoming Jewish to be worth the struggle, despite my theological convictions. Is this the message we want to give converts—that they will never be fully accepted by the Jewish community? I can never fully belong, nor can my son if the truth about me were made public. At least my child is a male, so the problem should die with him. As for me, there is nothing more that I need from the Jewish community. I only want to protect my son, who did not choose his situation, from having to go through the same experience. It is past time for someone to remind Jews that the commandment not to oppress the ger is still part of the Torah.

 

Violence Is Not Grounds for Divorce

by Batya Kahana-Dror

(Batya Kahana-Dror is an attorney at Mavoi Satum, an organization that assists agunot who have been denied a divorce (get) from their husbands. Mavoi Satum ("dead end") provides social and legal support as well as conducting lobbying efforts on behalf of agunot. This article was originally published in Hebrew in issue 46 of Eretz Aheret magazine, with the title "The Chief Rabbinate vs. the Jewish People.")

 

The approach to women's rights in the rabbinical courts today is pitting Jewish values against the democratic reality we live in. It is not a pretty picture. In the rabbinical courts the chasm between dayanim and litigants is widening. The dayanim, under the guise of democratic self-expression, refute civil law as an authoritative source, and litigants are helpless to act. The civil rights revolution has been bypassed.

The struggle of mesoravot get poses one of the greatest challenges to the religious legal system, a system that functions within a democratic reality. Points of contention include halakha versus civil law, rabbinical courts versus civil courts, theocracy versus Western liberalism, Jewish feminism versus spreading fundamentalism, and conservative, reactionary Orthodoxy versus modern liberal Orthodoxy. 

In the State of Israel, marriage and divorce between Jews is only performed, in accordance with religious law, by the Rabbinical Courts, under the authority granted by the Law of Jurisdiction in the Rabbinical Courts. In the last few decades, the handling of issues of women's status by the rabbinical courts has sorely tested Jewish values against the liberal, democratic values of the State. In the rabbinical courts, the chasm widens between the dayanim and those who stand before them, as the two sides do not speak the same language. The dayanim, using the facade of democratic discourse, refute civil law as a source of authority, and litigants are helpless. There is no synthesis between Orthodoxy and modernity that would provide a solution.

 

[H1] Human Rights and the Rabbinical Court

Human rights—such as the right of a person to his or her life, body, honor, property, freedom and privacy—have been determined by the Basic Law of Human Rights and Freedom. Concurrently, this law allows for legal restrictions on an individual's human rights in cases where the values of the State of Israel are challenged. Time and time again, the rabbinical courts create a schism between the halakha they believe they are applying and the values that the Basic Law represents.

This begs the question of whether the violation of a mesorevet get's rights is a case in which personal freedom is justly restricted, akin to that of a tax evader or the arrest of a criminal suspect. Is the violation of the rights of a mesorevet get, whose only crime is to ask for a divorce, a reasonable infringement, one that is deemed necessary by law? What is the benefit to the general public of a woman being denied the right to have children or being freed from a failed marriage? Is this the way to implement the Jewish values of the State of Israel?

For example, the rabbinical court in Tel Aviv granted a recalcitrant husband compensation of 60,000 NIS in exchange for his consent to grant a divorce. "The husband deserves compensation in return for his consent to grant a divorce against the position that he has expressed throughout the years" (six years). The Beit Din Hagadol [the religious supreme court] added that, "The husband had the halakhic right to continue being married. The husband agreed to abdicate this right in exchange for the right to sue for damages" ("HaDin ve-haDayan"—The Law and the Judge—edited by Dr. Amichai Redziner, published by the Rackman Center for the Status of Women, and Yad L'Isha, 4[8] and 11[10]). The court recognized the man's right to marriage and completely ignored the woman's right to freedom and her right to choose whether or not she wanted to live with this man. In addition, not only was this recognition of rights one-sided, but the court also violated the woman's basic economic rights in order to protect the man's right to be married.

In another example, the rabbinical court does not view "regular" violence—defined as “beatings that cannot kill”—as grounds for divorce. The Ashdod rabbinical court imprisoned a man because of violence and his refusal to grant a divorce. Yet the court differentiated between "regular beatings" which does not merit a hiyuv get [a rabbinical mandate to force the man to grant a divorce], and beatings that can kill, which does in fact merit a hiyuv get (see haDin ve-haDayan 4[3]).

In the opinion of the rabbinical court, it seems that "regular" beatings are something that a woman is capable of living with, and in any event, divorce should not be imposed because of it. An act that constitutes a criminal offense in the State of Israel does not constitute grounds for divorce in the rabbinical court.

 

[H1] "The Altar Sheds Tears..."

Like every legal system, halakha is naturally conservative by nature, and aspires to maintain ancient legal traditions. Since halakha is a religious legal system that considers itself to be of Divine origin, it is even more conservative than the secular legal system. Despite the fact that over the centuries there has been room for creating mechanisms for halakhic change and renewal (such as edicts, special rulings, needs of the day) nevertheless, objective circumstances prevented major halakhic renewal in Orthodox society, in particular over the past 200 years.

The ongoing changes in issues of personal status create a serious challenge for halakhic adjudication in the modern age. Even those who generally favor the approach of "sit and do nothing" cannot help but apply some minimal halakhic thought to modern-day situations. How much more so, religious judges in the State of Israel, whose authority rests on the principle "rise and act," must deal with the new reality in which most of the people in need of their services are not religiously observant.

The huge immigration to Israel and the establishment of the State raised expectations among certain sectors of the Orthodox community that there would be a religious, halakhic renewal with varied and broader interpretations of the Torah. However, this has not been the case. Although solutions to some halakhic issues such as kashruth and shemita were created, the scope of halakhic jurisdiction in Israel shrunk compared to its jurisdiction in the Diaspora. All civil and criminal legislation was given to the State, which rules according to civil law. Personal status remained in the hands of the religious judges, yet it was defined and placed under the auspices of the rabbinical court system by the State.

Over time, as a result of the increasing political power of the Hareidi sector, the rabbinical court took on the character of the Hareidi community, which succeeded in positioning its own people as dayanim, judges. Only the protest of women's organizations stirred the religious-Zionist public to act, but it was too little too late. This situation created a dearth of Modern Orthodox halakhic rulings that recognize women's suffering and women's rights. In practice, the religious-Zionist community accepted the authority of the rabbinical court and did not establish an alternative model of halakhic jurisdiction.

Why did the Modern Orthodox community accept this situation? First, the rabbinical court is a national entity working on behalf of the State of Israel. The Modern Orthodox sector is predominantly Zionist and thus maintains a loyal attitude toward State institutions even though the rabbinical courts do not represent State policy. An example of this attitude can be found in the actions of Zevulun Orlev and Rabbi Yitzhak Levy, Knesset members from the now defunct National Religious Party (NRP), who continue to introduce bills to expand the judicial power of the rabbinical courts—the same court that they claim does not have enough Modern Orthodox judges. Another reason is the religious-Zionist community's narrow focus on settlements. Finally, there is a fear of opening the door to Reform and Conservative Judaism.

Women's organizations filled this void. At first they concentrated on representing women seeking divorce whose rights were being compromised. Only later, after the magnitude of the injustice came to light, did they embark on a public campaign. The accessibility of halakhic knowledge coupled with the revolution in women's religious learning enabled women to promote halakhic solutions that the rabbinical courts chose to ignore. Orthodox women's groups started calling for change. The women themselves, most of whom belong to "Kolech," slowly adopted the feminist lexicon and became flag bearers of the struggle for women's equality in the rabbinical courts. Their positions caused a furor and their actions were viewed by the Hareidi and even the Modern Orthodox as undermining halakha. Women's organizations were trapped. Their members stopped believing in the rabbis and in their ability to institute change, but at the same time did not dare to take action without rabbinic consent (although the more radical among them claimed that a struggle that relies on rabbis actually empowers rabbis and thus makes the situation worse).

While expanding the struggle for women's rights, two steps were taken. The first was recruiting the civil courts, (whether through appeals to the Supreme Court or through lawsuits in the family court) claiming compensation for damages caused by the rabbinical court. The second step was investing more resources in bringing the issue into the public arena. Lawyers, religious pleaders, and social workers were joined by women campaigners who publicized the procedures of the rabbinical courts and worked to promote legislative change that would restrict the rabbinical courts' authority.

The fact that Orthodox women's organizations are leading the campaign has its disadvantages. First, the women's campaign is viewed in the religious world as a feminist issue and not in its broader context—as a struggle between liberal and conservative attitudes—and as such does not enjoy the support of most religious men, who tend to support the rabbis. Second, the push by Orthodox women is perceived by the general public as an internal religious issue and not as a battle against the violation of human rights, so the secular public and human rights organizations are barely involved in the campaign.

 

[H1] The Response of the Rabbinical Courts

The threat of reducing the judicial powers of the rabbinical courts, along with the growing opposition to court rulings that do not support Western liberal tenets, have led the rabbinical courts to issue more defensive and conservative rulings.

One example of this is the ruling by the Bet Din haGadol on an erroneous get. A get was cancelled as the rabbinical court decided that it was a "mistaken get" and insisted on arranging an additional get—regardless of the fact that the rabbinical court believed that there were enough halakhic options and explanations to view it as a valid get (HaDin ve-haDayan, 16th edition, 5 [17] 8). The rabbinical court clarified that "the rabbinical court does not rush to annul a get, and in fact this happens very rarely," but they added that they are annulling the get because "in this new reality, in which [the civil courts] want to bind the hands of the rabbinical courts so that they will be unable to continue to rule on agreements that they ratified [Sima Amir's appeal to the Supreme Court], and in which civil courts enjoy easily nullifying decisions of the rabbinical courts, this situation has the potential to cause serious harm...".

It is clear from the judges' language that they obviously weigh issues that have nothing to do with the specific case before them—considerations that take into account the erosion of their authority by the civil courts. Similar statements were made by the rabbinical courts with respect to the civil courts to explain the decision to become much more stringent in this particular case and invalidate the get: "The problem is that the civil courts created an opening for parents to sue on behalf of their children in order to evade the commitments of parents toward one another in their agreements, even though we are dealing with a case in which the parents themselves are suing. This trend distorts the law and the halakha and its only purpose is to undermine the authority of the rabbinical court and is exploited by family court judges."

 

[H1] Halakhic Pluralism

It is important to emphasize that pluralism does exist within halakha, both intellectually and in its practical application. It developed through the geographic dispersal of the Jews, and had evolved over time since its development in Mishnaic times. If we take into account the entirety of halakhic rulings and the span of literature connected to it, we can see that the dayanim have wide avenues to maneuver within halakha. In this respect, dayanim have a broader range of choices than civil judges who are limited to one legislative codex. As such, the dayan's beliefs and attitudes have a very significant and determining influence on his choices in his rulings.

The famous ruling of Maimonides states that, "If [a woman] says, “[my husband] is repulsive to me”... he is pressured until he gives it of his own will..." In other words, according to Maimonides, a woman who claims "he is repulsive to me" will be granted an immediate get by pressuring the husband. Rabbeinu Tam, who gave more weight to the fear of "forced get" over the principle of leniency, abolished this approach. However, of all the available halakhic rulings, the rabbinical courts chose to reinstate the halakha of the Maharashdam, Shemuel ben Moshe de Medina, who lived in Salonika in the sixteenth century. The rabbinical courts have accepted his position that one has to accept the husband's conditions if the court considers them reasonable, even when the husband has already been halakhically obligated or forced to grant the get. Consequently, the man's bargaining power is increased—even though he had significantly more power than the woman to begin with—as he is entitled to absolute free will during the divorce process.

In one case, the district rabbinical court decided not to discuss forcing the husband to grant his wife a get because he agreed to grant the get if she complied with a number of conditions. In this case, the rabbinical court listed what they considered to be reasonable conditions: "We want to clarify that the right to set conditions exists, not only in the financial realm, but also in the behavioral realm, for example, she will not be allowed to eat certain foods or wear certain items of clothing. Even the rabbinical court cannot force the woman to agree to these demands, but they are binding as conditions for a get and have to be implemented even in the situation where a husband has been obligated or forced to grant the get" (HaDin ve-haDayan, 7[5]). The rabbinical court thus sees as legitimate and even reasonable to violate the freedom of choice and the dignity of women by imposing the husband's conditions on her, even after the two are completely disconnected from one another, in order not to force the husband to give the get.

Reliance on this Maharashdam ruling with its current religious-court interpretation absolves the rabbinical court of all responsibility and abandons the woman to the husband's caprices. The rabbinical court thus reduces the woman's power and makes her efforts to obtain a hiyuv get from her husband irrelevant, since the hiyuv get loses its effectiveness if the husband's conditions have to be accepted. The use of the Maharashdam's halakha leads to unprecedented extortion of the woman, and legitimizes the phenomenon of get denial.

 

[H1] Between "Din Torah" and "Giving Advice"

In contrast to the Maharashdam's halakha, the judges have another, just as easily accessible ruling by Rabbi Haim Palachi (an adjudicator of Jewish Law who lived in Izmir in the nineteenth century). He ruled that in a case of a couple living apart for eighteen months, the husband has to be forced to give the get. This pragmatic ruling could have solved many cases of get denial, but for the most part this ruling is not used in the rabbinical courts. Furthermore, the court warned against applying Rabbi Palachi’s halakha: "It is not his intention to force the couple to divorce but is merely a piece of advice to adjudicators" (HaDin ve-haDayan, 18[8]). Redefining Rav Palachi's ruling as "a piece of advice" rather than "Torah law" suits the increasingly stringent bias in the rabbinical courts. The juxtaposition of these rulings—that of the Maharashdam versus that of Rav Palachi's—and the ways in which they are used or not used, epitomizes the ways in which dayanim make choices, the influence of a dayan's personal outlook on his rulings, and the outrageous situation in the rabbinical courts today. Another practice that is often used in many rabbinical courts today is to recommend that the couple come to an agreement instead of the court making a decision and imposing a get. This practice is upheld even in cases where it is clear that a couple will never be able to reach an agreement because the case has dragged on for many years. In this way the dayanim encourage the prolongation of proceedings and increase the possibilities of blackmail. To emphasize the philosophy behind these procedures, MK Moshe Gafni in the State Audit Commission stated: "There is a vested interest that the rulings should not be implemented. I said this in the legislative commission as well. The altar sheds tears for a man and a woman who separate". It seems clear that the rabbinical court has its own agenda, and is not at all concerned with the parties’ needs. There is a disregard for the wishes or the rights of an individual to divorce, as halakhic conservatism will always override those individual wishes.

 

[H1] Expansion of the Judicial Powers of the Rabbinical Courts

In a 2006 ruling (Supreme Court ruling 8638/03 Sima Amir vs the Higher Rabbinical Court in Jerusalem), the Supreme Court ruled that "legislative principles" dictate that the authority of the rabbinical courts to rule on plaintiffs outside of the issue of marriage and divorce needs to be legislatively effectuated. The Supreme Court thus explicitly determined that it is illegal for rabbinical courts to act as arbitrators with authority on civil matters and personal status disputes that erupted as a result of their own rulings.

As a result, Knesset members from the religious parties re-proposed a law to set this expansion of jurisdiction in law. A few months after this Supreme Court ruling, the new Kadima-led government was formed, based on a coalition agreement with Shas that included a commitment to legislate on the expansion of the rabbinical court authority. Until the Sima Amir Supreme Court ruling, and even afterwards (according to the State Comptroller), the rabbinical court acted as an arbitrator on all matters.

This practice demonstrates that the rabbinical courts see themselves as an independent judicial body with added authority—a judicial body that deviates from the mandate given it by the law (personal status) and converts itself into an autonomous body. This is similar, however inconceivable, to a case in which the Labor Courts, for example, might begin judging cases under the jurisdiction of the magistrates' court because they have declared themselves arbitrators. Moreover, the rabbinical courts did not distinguish between the authority they were given and the authority they simply took for themselves. When the dayanim would act as arbitrators, they would often use the rabbinical courtrooms and stationery with the State of Israel's letterhead. The hours they dedicated to arbitration were also considered part of their regular working hours.

The dayanim were also inclined to send refusal notices to parties who refused to appear before them—in direct defiance of the arbitration law that states that a condition granting authority to the arbitrator is consent of both sides—and in this way they expressed their view that the rabbinical court is in essence the defining authority for the religious community, with no need for that society's consensus. Incidentally, the Supreme Court ruling in the case of Joseph Katz put an end to these practices (Supreme Court ruling no. 95/3260, Joseph Katz vs. the Jerusalem District Rabbinical Court [4], 590).

The rabbinical court is trying to use the governmental authority it has been given over one specific matter in order to establish itself as a court that rules on Torah issues as well as civil matters, and to promote itself as a substitute to the Israeli Justice System. These ideas find expression in the ruling of the Jerusalem Religious District Court by which the  halakha forbidding litigation in courts also applies to litigation in the Israeli Civil Courts system "as it stands today" (file 38/2824, 11 [259]).

 The rabbinical courts do not allow room for error. This is a halakhic ruling of the rabbinical court in the State of Israel that takes on a role and authority that was not granted to it, and emphatically forbids one to be judged in the Israeli Court system "as it stands today." This attitude of the rabbinical courts also finds expression in the disapproval that judges convey toward women who have opened cases in the family courts, and in their support of the demand (usually from the husband) to transfer cases from the civil to the rabbinical courts, and even to reopen cases that have already been settled. Even graver are cases in which the wife presented a damages claim against the recalcitrant husband. In these situations, the women are subjected to threats by the dayanim who claim that they will not continue to judge the get cases until the women withdraw their damages claims.

In their campaign to expand their judicial authority, the rabbinical courts found a supportive argument from an unexpected source: postmodern theory on pluralistic systems of law, which recognizes the rights of religious sects to live and be judged according to their own beliefs. These postmodern Hareidi groups want to have their cake and eat it too. On the one hand, they hold on to their own mandatory role on all issues of personal status, and are unwilling to open another rabbinic court. They are also unwilling to forego their unequivocal authority on all issues related to divorce (Law of the Jurisdiction of Rabbinical Courts, section 3, marriage and divorce, 1953). On the other hand, they demand judicial pluralism for their own people, claiming, "There is nothing wrong with people wanting to live according to their beliefs and be judged by a different set of laws."

Leaving aside the inherent contradiction, I would like to focus on the issue of judicial pluralism. From the perspective of a democratic society, there are problematic issues in this approach: voluntarism and basic values. The nagging questions generally and in this specific case are: how to ensure that only those who want to be part of a separatist legal system will be included in it; how to ensure that neither social pressure nor any other pressure will cause people to seek out the rabbinical courts; and how to ensure that basic democratic values, such as human dignity and freedom (for example, the right not to be beaten), will be preserved.

Even those who support pluralism cannot ignore the fact that religious rulings as they are applied today in rabbinical courts often do not recognize phenomena that are considered criminal—such as violence, drugs, gambling, and more—as grounds for divorce.

 

[H1] "I Am Satisfied"

An important tool for establishing democratic norms in the rabbinical courts is assistance from the State Comptroller's Office and the Knesset Comptroller's Committee. In contrast to other courts, the religious courts "excel" in their high number of procedural and disciplinary irregularities.

The latest State Comptroller's report, published in May this year, paints a particularly distressing portrait: reports of breaches in 83 percent of the cases in Petach Tikva, and in 75 percent of the cases in Tel Aviv; reports of excessive foot-dragging and abuse of the law; 26 percent of hearings that took place in the absence of a full panel of dayanim (which causes delays in receiving a get); 257 cases of arbitration opened in direct contravention of a clear Supreme court ruling, (decision of Sima Amir, see above); irregularities in dayanim's attendance records; dayanim taking up residence outside their area of jurisdiction, which unequivocally violates the conditions of their contract— even after being issued warning letters regarding this practice. In addition to these facts and figures, the report creates a dismal picture regarding the attitude of the management of the rabbinical court toward civil law and the rule of law. The rabbinical courts and their judges do not view the State, the law, and the body that elects them—The Committee for Appointment of Dayanim—as a source of authority over them, despite the fact that, outwardly, they present themselves as a system willing to accept criticism and to correct any improprieties.

The common attitude in the rabbinical courts about the source of their authority is that Israeli law is man-made but the rabbinical courts rely on divine authority. Former Chief Rabbi Avraham Shapiro wrote, "Courts of law derive their authority from State law, they make their rulings based on the administration of the day, what the members of the elected house of government happen to legislate. By contrast, we, the judges of the rabbinical courts, rule with the power of the authority of the Torah for all of Israel, according to the laws of the Torah" (quoted by Judge Menachem Elon in "Jewish Law", Magnus, 5733/1973).

Particularly surprising was the position taken by the Chair of the State Comptroller's Committee, a member of the now defunct National Religious Party (NRP) that examined the report's findings. Besides the compliments he showered on the management of the rabbinical courts and on the Chief Rabbis for their streamlining and efforts at improvement, he expressed a clear discomfort with the content of the report to other participants in the meeting. It seemed that there was an incomprehensible gulf between the complacency felt at the meeting and the outrage felt by the public.

Religious Zionism and its Knesset representatives have adapted themselves to ultra-Orthodox practice, and not only in halakhic matters. They accept guidelines on a range of issues from rabbis—including from Chief Rabbi Shlomo Amar, a member of Shas, who himself is susceptible to the pressures of the ultra-Orthodox Lithuanian stream. The Chief Rabbis' office and the rabbinical courts, despite the fact that they are completely controlled by the ultra-Orthodox, are still supported by the religious Zionist camp, who views them as one of their own. Religious Zionist Knesset members and religious Zionism views the issue of State authority as a centerpiece of their ideology (even though after the disengagement from Gush Katif, an increasing number of voices within the Religious Zionist camp began challenging this assumption). The national religious public is still reluctant to openly come out against State institutions, even though it is clear to them that little if any national awareness exists in the present religious establishment. The national religious public is unwilling or unable to come out systematically and offer an alternative to the State establishment. Therefore, at the end of the State Comptroller's Committee meeting, Knesset member Orlev placed the primary blame for the problems in the rabbinical courts squarely on issues of funding and legislation, and concluded, "I am satisfied."

 

[H1] "It Is Not Your Responsibility to Finish the Work, But Neither Are You Free to Bypass It"

We have reached the peak of evading accountability. The conversion crisis exposed the differing approaches to conversion within Orthodoxy. The gap between the progressive approach and the more defensive, conservative approach within Orthodoxy has not been so clearly delineated in a long time. The public is beginning to gain an understanding about halakhic alternatives that are unavailable in today's religious establishment. The tensions between the religious legal system and the system that propounds equality and human rights are starting to show.

Two bills to improve the processes of conversion and divorce were recently proposed and then rejected. The laws intended to give communal rabbis the authority to convert potential individuals and correct the law on division of property. (This article was written in August, and since then the law on division of property before the giving of the get has passed after years of campaigning by groups such as ours.) When it comes to the injustices in the religious courts, not only does the political system avoid helping, but political pragmatism and coalition concerns overcome the need to resolve the problem of divorce in Israel. It seems that the apathy of the general public enables the emissaries of the law to displace this issue with their own political, economic and security interests

The inability to effect change has caused sectors of society to lose faith in the political system that tends to regularly cave in to ultra-Orthodox demands. This capitulation is not only politically motivated, but also emanates from the belief that ultra-Orthodox Jews are the true guardians of the Book, who see their unofficial role as maintaining the Jewish character of the State.

A Modern Orthodox alternative does not exist. The ultra-Orthodox have access to the State rabbinical courts as well as their own private courts. The Reform and Conservative movements have their own organizations. It is only the Modern Orthodox, national religious public that has no alternative. Since many traditional people identify with the national religious camp (that is, the synagogue they do attend is Orthodox), this is not a struggle between various factions, but rather the creation of an alternative that will serve a large portion of the Israeli public, and would therefore have tremendous societal importance.

The State's position, which disallows an alternative Orthodox voice, is leading us to disengagement. We have not yet healed from the wounds of the first disengagement, and we are on the brink of another huge rift in Israeli society. The degree of aversion to the religious establishment is only deepening, both in the national-religious and the secular population. The Israeli public finds it difficult to come to terms with the personal suffering caused by conservative and inflexible halakhic thinking. At the same time, the popularity of religious marriage ceremonies, which are not conducted by the rabbinical establishment, is rising among religious and secular couples- a clear show of distrust in the rabbinical establishment and the rabbinical courts.

It is up to the national religious community to publicly break away from the apologetic, defensive, conservative Orthodoxy of today, a break that would mean establishing a new Israeli Orthodox stream that would, among other things, establish its own religious courts.

Modern Orthodoxy must propose and build this alternative in an organized, systematic way. It must propose an alternative that includes broad halakhic thinking, which, while based on halakha, recognizes the greater good and modern day needs. It must propose an alternative that incorporates the knowledge acquired through the twenty-first century, including civil rights, changes in women's status, and public consensus, and seek to find solutions (including recognizing civil marriage) for the entire public.

This stream of Orthodoxy cannot define itself merely through Zionism and settlement of the land, but has to embrace halakha and its modern-day development against a backdrop of liberal Western values. It is not enough to create lenient rulings versus stringent rulings. A clear line must be drawn between halakha and its relationship to contemporary times and the society in which it operates.

The creation of an alternative religious establishment will integrate an additional halakhic outlook within the Jewish mainstream—one that has a body of followers among the religious and traditional sectors. Its institutions will return halakha to its essential dynamic state, reconnecting it to our everyday lives and at the same time reconnecting all of society to the essential character of the State of Israel as a Jewish state.

 

 

 

 

“It’s All Relative: The Contemporary Orthodox Jewish Family in America”

by Chaim I. Waxman

(Chaim I. Waxman is Professor Emeritus of Sociology and Jewish Studies, Rutgers University, and lives in Jerusalem. He specializes in the sociological study of Jews and Judaism, including, America’s Jews, Orthodox Jewry, Jewish identity and identification, Israeli society and culture, and Zionism. He is the author of numerous books and articles.)

 

I recently received an inquiry for an interview from a journalist who was writing a story about the Orthodox Jewish family. The interviewer assumed that Jews “used to live together in one place for generations in previous generations,” and was interested in “what changed and why.” Although I should be used to it by now, I am regularly struck both by the prevalent assumptions about the idyllic nature of the Jewish family in Eastern Europe and by the assumption that the imagined Eastern European Jewish family is the model of the “authentic” Jewish family.

All too frequently, discussions of “the Jewish family” are based on the assumption that there is one single model of that family and it is typically that of the stereotypical Jewish family in Eastern Europe. Actually, there is no one single model of the Jewish family. From as early as 598 b.c.e., Jews have been and continue to be “a nation spread out and separated among the nations.” In every society that they have dwelled, Jews acculturated to one degree or another and internalized cultural patterns from the larger society. That is a major source of the differences in the traditions of Ashkenazim, Sephardim, Jews from North Africa, Asia, and so forth, and between those of the various groups among all of them. Hence, the Polish Jewish family was different from the German Jewish family, the German was different from the Turkish, the Turkish from the Moroccan, and so forth. (This raises an interesting and important question that cannot be discussed here, as to whether one can speak of “Jewish culture” and even “Jewish identity” as if there are such things when there are actually different Jewish cultures and different Jewish identities.)

            One more point about many discussions of the Jewish family, is the tendency toward nostalgia, to romanticize “good old days” that, in many ways, as the late Prof. Nathan Goldberg would consistently remind his students at Yeshiva College, were actually not so good at all. Nor were most Jewish families there like the stereotypical large, extended family in which people married young, were cared for by parents and in-laws while they had many children, and all of the extended-family members lived near each other and shared warmth and bliss.

            Shaul Stampfer, for example, rejects the notion that the Eastern European family was patriarchal. As he convincingly demonstrates, women had active and independent roles in economic matters; very many if not most wives worked to help support their families; and wives made the most important daily decisions for the family, including what household items should be purchased; disciplining children; and finding spouses for the children (“How Jewish Society Adapted to Change in Male/Female Relationships in 19th / Early 20th Century Eastern Europe,” pp. 65–84 in Rivkah Blau, ed., Gender Relationships in Marriage and Out, Orthodox Forum 17 New York: Yeshiva University Press, 2007). He likewise shows that the age of marriage among Eastern European Jews rose during the nineteenth century, and rose even more significantly during the inter-war years of the twentieth century (“Marital Patterns in Interwar Poland” pp. 173–197 in Yisrael Gutman, ed., The Jews of Poland Between Two World Wars, Hanover, NH: University Press of New England/Brandeis University Press, 1989). If that is not enough, evidence also indicates that there was a high level of divorce in Eastern Europe traditional Jewish society.

That having been said, I turn now to the American Jewish family, in general, and the American Orthodox Jewish family, in particular. (I omit any discussion of the frequency and impact of intermarriage, as that topic is beyond the scope of this article.) Until recently, evidence indicated that, although Jewish men and women in the United States married somewhat later than non-Jews, this was not a reflection of a declining significance of marriage and family for Jews. Jews were more likely than non-Jews to eventually marry, less likely to divorce and remain divorced and, at almost every age, a lower percentage of Jews than non-Jews were either previously married or widowed. The most recent evidence questions whether the Jewish values of marriage and family remain as strong as they were. According to the 2008 Pew Forum on Religion and Public Life/U.S. Religious Landscape Survey, the gaps between Jews and Christian white Americans have narrowed and, in some cases, are non-existent. Thus, on the one hand, the percentage of people who are divorced/separated among Jews (9 percent) is lower than that of Mainline Protestants (12 percent), Evangelical Protestants (13 percent), and Catholics (10 percent). On the other hand, the percentage of married people among Jews is the same as for Mainline Protestants (57 percent), but lower than Catholics (58 percent) and Evangelicals (59 percent), and the rate of never-married among Jews (19 percent) is higher than that Mainline Protestants (15 percent) and Evangelical Protestants (14 percent) as well as Catholics (17 percent).

            At least since the nineteenth century, Jews in the United States have had lower birth rates than those of non-Jews. Jews marry later, want and expect fewer children, have the most favorable attitudes toward contraception, and have been its best practitioners. Data from various studies show that U.S. Jewish families today have fewer children than the minimum necessary to maintain group size, that is, zero population growth.

            That being said, it must be stressed that, primarily because they are such a small percentage of the U.S. population, most surveys of American Jews do not distinguish between the various wings or denominations within American Judaism and the American Jewish population, and there are almost certainly significant differences among them on all of these issues and more. Indeed, the Pew Religious Landscape Survey did indicate differences between Reform and Conservative Jews, and their data indicated a higher rate of marriage for Reform (61 percent) than for Conservative (53 percent) Jews, but higher divorced/separated rates for Reform (11 percent) than for Conservative (7 percent) Jews.

We have very limited data generally for Orthodox Jews in the United States because, among others, their numbers are so small, relatively, and many of them are reluctant to reply to surveys and interviews. The U.S. census is unhelpful in this respect because it has no religion question and, thus, we can’t even get data for American Jews in general from it, let alone for the Orthodox segment. The 2001 National Jewish Population Survey did contain a reasonable sample of Orthodox Jews, and those data indicate a significantly higher marriage rate, a lower divorced/separated rate, as well as a lower single/never married rate than those of Conservative and Reform Jews. Since Orthodox Jews marry at a higher rate and do so at a younger age, it is not surprising that they are more likely that the non-Orthodox to have children age 17 or younger living in the household. Over one-third (34 percent) of Orthodox Jews have a child living in the household, which is more than double the rate of the non-Orthodox. In terms of future denominational trends, it is especially notable that the Orthodox are considerably younger than the total American Jewish population; about 40 percent is comprised of children, as compared to 20 percent for the non-Orthodox. More than half (52 percent) of all American Orthodox Jews are younger than 45 years of age, as compared to 44 percent for the total American Jewish population. All of these figures reflect a continued strong emphasis on marriage and family formation among the Orthodox. Unquestionably, there has been an increase in divorce among the Orthodox. However, the absence of divorce, especially in previous decades, was not necessarily an indication of a stable and healthy marriage. In any event, the Orthodox divorce rate is still significantly lower than that of the non-Orthodox.

Needless to say, not all Orthodox Jews have strong marriage and family values, nor do they manifest them in the same way or even positively. We do not have hard data on spouse abuse for either the broader American Jewish community or for the Orthodox community, Modern or Hareidi and, in her study of responses to it in Hareidi communities, Roberta Rosenberg Farber (“The Programmatic Response of the Ultra-Orthodox American Jewish Community to Wife Abuse: Social Change Within a Traditional Religious Community,” Contemporary Jewry 26, 2006, pp. 114–157) reports of professionals who believe that spouse abuse is as common among Jews as it is in the general population. Likewise, with respect to sexual abuse within families, Michelle Friedman reported of her study of over 400 observant Orthodox women in the United States and Israel (“On Intimacy, Love, Kedushah and Sexuality: Reflections on the 5th Annual YCT Rabbinical School/Community Yom Iyyun in Conjunction with Congregation Ohab Zedek,” Milin Havivin 2, 2006, p. 187), “Sadly, we found the same statistics for sexual molestation and abuse of girls and teens as in the secular population.” Neither Farber and Friedman nor any other studies suggest that there has been an increase in either spousal or sexual abuse of minors within families among Orthodox Jews. What is significant here is that there is likewise no evidence of any decrease in either of these horrible sins.

            Be that as it may, there have clearly been American social and cultural changes, including technological changes, that have affected the Orthodox Jewish approach to family and family behavior. To begin with, sex is much more public than it was just several decades ago. Not only are words and scenes that were previously taboo on television now normal prime-time fare; the Internet has broken all barriers. There are no longer any taboos, and it is increasingly difficult not to be bombarded with pornography. Whatever one thinks of the freedoms of the press, the airwaves, and the web, they impact on religious behavior, especially for young adults. Some parents refuse to allow television and some refuse to allow the Internet into the home, while others implement various net filters, but none of these is fool-proof and nobody is immune. Of course, none of us was ever totally immune, and the Orthodox community is struggling to adapt as best as it can. It appears that the only ones who are talking publicly about the problem are those who have decided to completely ban the new technologies, but not too many appear to be following them.

One social pattern that is apparent, especially among the Modern Orthodox, is a growing tendency of later marriage. There has been a noticeable growth of singles communities such as the one in the Katamon neighborhood of Jerusalem (which is the subject of the popular Israeli television series, Serugim) and on Manhattan’s Upper West Side. These communities raise challenges even as they resolve others. Some twenty years ago, Calvin Goldscheider pointed to the rising Orthodox divorce rate and suggested that the primary challenge is the potential religious alienation of the divorced individuals that results from their not being in families. Likewise, he pointed to the growing pattern of later marriage as challenging in that it results in increasing numbers of Jews who are rejected due to their unmarried status and become religiously alienated (Calvin Goldscheider, “Family Changes and the Challenge to American Orthodoxy: The Implications of Recent Social Science Data,” Tradition 23:1 (Summer 1987), pp. 71–81). The new Orthodox singles communities undoubtedly serve as a buffer against the religious alienation upon which Goldscheider focused, but on the other hand they may be making it increasingly acceptable and less inconvenient to remain single longer. The growth of these singles communities potentially challenges the Orthodox growth rate, and, assuming that there has been no significant change in libido patterns—I know of no studies indicating any such change—challenges ritual observance with respect to a number of sexual matters.

Abstinence from all sexual activity prior to marriage has been a Jewish religious norm for at least the past 2,000 years, and presumably, it was always difficult. Anyone who says otherwise has forgotten what it was like to be a teenager. Also, as was indicated, late marriage is not new, nor are some of the religious challenges it presents. What has changed is the frequency and openness of male-female interaction and, perhaps even more significant, the religious, ethnic, and sexual statuses of the males and females in the interaction. Their increased social and cultural equality often removes social-psychological barriers that prevented the development of intimate interaction. Today, those barriers are no longer supported externally and, thus, there appear to have been changes even among the Orthodox.

During the 1960s, Rabbi Irving (“Yitz”) Greenberg was a very popular professor at Yeshiva College, and in an interview that appeared in the college newspaper, The Commentator, on April 28, 1966, he made some remarks that were interpreted by some as his advocating “a new value system and corresponding new halakhot about sex” for non-married as well as married men and women. This caused somewhat of a storm and, in the May 12^th issue, Greenberg wrote a lengthy letter to the editor in which he adamantly disavowed any such notion, clarified his views, and apologized for being insufficiently clear and precise in the interview. Despite his clarification, he was taken to task by Rabbi Aharon Lichtenstein in his lengthy letter to The Commentator, in the June 2^nd issue. (I thank Menachem Butler for providing me with copies of those letters. This episode and the much broader Greenberg-Lichtenstein debates are astutely recounted and analyzed in David Singer, “Debating Modern Orthodoxy at Yeshiva College: The Greenberg–Lichtenstein Exchange of 1966,” Modern Judaism 26:2 (May 2006), pp. 113–126.)

In their mid-1980s study of varieties of Orthodox Jews, sociologists Samuel C. Heilman and Steven M. Cohen (Cosmopolitans and Parochials: Modern Orthodox Jews in America, Chicago: University of Chicago Press, 1989, pp. 173–179) found, across the range of Orthodox people they studied, “younger respondents consistently reported more indulgent attitudes toward the practice of premarital sex than their older counterparts”; that almost a quarter of those they labeled as “centrists” (not to be confused with what scholars at Yeshiva University term “centrist”; see David Berger’s highly critical review of the Heilman-Cohen book, Modern Judaism 11:2, (May 1991), pp. 261–272) do not disapprove of sexual relations between couples who are dating seriously, and as many as 40 percent do not disapprove for those who are engaged to be married; and that among younger centrists, only about half disapproved sexual relations for those dating seriously, and less than half disapproved for engaged couples. Although these figures reflect attitudes, it is hard to imagine that there was a highly significant gap between attitudes and behavior. The popularity of the expression “tefilin date” also apparently reflected a reality of otherwise observant Orthodox Jews who spent the night with their dates but prayed wearing tefilin the following morning.

Most recently, Zvi Zohar (“Zugiyut al-pi haHalakha lelo hupa veKidushin,” Akdamot 17 (Shevat 5767), pp. 11–33) argued, based on the opinions of Nahmanides (1194–1270), Rabbi Abraham ben David (Rabad, 1125–1198), and Rabbi Shelomo ben Aderet (Rashba, 1235–1310), as well Rabbi Jacob Emden (1697–1776) that there is no prohibition against sexual relations without marriage so long as the relationship is not illicit, that is, it is consensual and monogamous, and the woman observes the laws of niddah and mikvah. His thesis was strongly rejected (in the same issue of Akdamot) by Rabbi Yehuda Herzl Henkin, Shemuel Ariel, Mikhal Tikochinsky, and Rachel Shprecher Frankel. Despite their rejections of its halakhic legitimacy, sexual relations among the unmarried was apparently perceived to be significant enough of a phenomenon in the Orthodox and traditional communities that the Ashkenazi Chief Rabbi, Yonah Metzger, issued a ban on allowing unmarried women to use mikvaot. The effectiveness of that ban is anyone’s guess.

Relatively recent technological developments have had significant impact on Jewish family life in that for the first time in history human beings can conveniently and effectively control reproduction. This has had major impact on attitudes toward sexual behavior, making it less threatening to the unmarried and those married who do not currently want to bear children. It also has fostered new medical techniques that enable previously infertile couples to bear children. With all of these developments, however, come a myriad of halakhic issues. One of the first and most controversial addressing the problem of infertility was that of artificial insemination.

Beginning in the late 1950s, concerning different types of artificial insemination—one in which the donor was Jewish, one in which he was not, and the third in which the husband was the donor—Rabbi Moshe Feinstein issued lenient rulings and was staunchly attacked by numerous opponents, including Rabbi Yoel Teitelbaum, the Satmar Rebbe. Since then, a body of literature has emerged not only on matters of fertility and halakha (see, for example, Richard V. Grazi, Overcoming Infertility: A Guide for Jewish Couples. New Milford, CT: Toby Press, 2005, and all of the sources to which he refers), but also on the much broader question of the role of the posek, including the extent to which his own perspectives and sentiments, as well as social and psychological forces, have a place in the process of halakhic determination. With respect to the specific issue at hand, in his Masters thesis analyzing Rabbi Feinstein’s method of ruling in a series questions related to childbearing (“Rabbi Moshe Feinstein’s Rulings Regarding Questions of Fertility, Contraception, and Abortion,” Talmud Department, Bar Ilan University, 5766 [Hebrew]), Baruch Finkelstein argues that R. Moshe’s lenient rulings on artificial insemination “were motivated by his compassion for the infertile woman.” Going further, in an address at a conference at the Ramban Synagogue in the Katamon neighborhood of Jerusalem, on the occasion of a the publication of a Hebrew translation of Richard Grazi’s book (Horut nikhsephet: Etgar haPiryon beMabat rephui veHilkhati. Jerusalem: Magid, 2009), Rabbi Benny Lau emphasized the impact of hashkafa on halakha, and he lauded the declaration by the rabbinic head of a leading fertility institute that, “There is no halakhic infertility,” and “We will go the entire route with this couple in order to resolve the problem,” as a leadership declaration. By contrast, in a review essay of the Grazi volume (“Technology in the Service of the First Mitzvah,” Ḥakirah, the Flatbush Journal of Jewish Law and Thought 6 (Summer 2008), pp. 259–267), Gideon Weitzman rejects the notion that compassion figured in to R. Moshe’s pesak halakha. He asserts that, for R. Moshe “and all other posekim,” it is halakha that influences their approach to ethical problems, rather than vice versa, and the halakhic decision is based on the careful analysis of the sources.

As indicated, the issue is much broader than that of infertility and artificial insemination. As I indicated elsewhere (“Toward a Sociology of Pesak,” in Moshe Z. Sokol, ed., Rabbinic Authority and Personal Autonomy” Orthodox Forum 1, Northvale, NJ: Jason Aronson, 1992, pp. 217–238), there are those who argue that “authentic” or “pure” pesika is that which is rendered by a posek in a computer-like manner, solely on the basis of characteristics inherent to the specific case involved and impervious to psychological and/or social forces, while others see a role for those forces in the halakhic decision-making process. Rabbi Joseph B. Soloveitchik, “the Rav,” seems to suggest an intermediary position when he wrote,

. . . the mutual connection between halakha and an event does not take place within the realm of pure halakha but rather within the depths of the soul of the halakhic man. The event is a psychological impetus, prodding pure thought into its track. However, once it begins to move in its specific track, it performs its movement not in surrender to the event, but rather in obedience to the normative-ideal unique to it. . . To what is this comparable? To a satellite that was launched into a particular orbit. Although the launching of the satellite into orbit is dependent on the force of the thrust, once the object arrived at its particular orbit, it begins to move with amazing precision according to the speed unique to that orbit, and the force of the thrust cannot increase or decrease it at all.

The Rav’s approach has echoes of Max Weber and his approach to the place of values in sociological research, namely, that the sociologists’ values surely influence the choice of subjects whom they study. However, once the research has begun, the rules of scientific research take over, and evaluation is made solely on the basis of the empirical evidence. Value neutrality, in the sense of excluding one’s own preconceived values in the subject of one’s studies, is a cardinal requirement. Of course, anyone who has studied the social sciences knows that the goal of value-neutrality is difficult, if not impossible, to achieve. We are, after all, human, and we are influenced in many ways of which we are unaware. Similarly, Rabbi Aharon Lichtenstein cites the Rav’s distinction between the “psychological impetus” and “pure thought” in the halakhic process and suggests, “It is a nice distinction, and I confess that I am not certain it can be readily sustained in practice.” (“The Human and Social Factor in Halakha,” Tradition 36:1 (Spring 2002), p. 12) it might be argued that Hazal recognized it’s unsustainability in practice, and therefore decreed that certain type of people, such as very old people, eunuchs, and the childless, should not be appointed as judges to a Sanhedrin. Maimonides (Hilkhot Sanhedrin 2:3) provides the reasons, namely, that very old people and eunuchs should not be appointed because they have a cruel streak, and the childless should not be appointed because the judge should be merciful. In other words, it was recognized that judges have an impact on “the orbit” of the law.

In an article published a year earlier, Rabbi Lichtenstein had already indicated the human element in the decision of the posek, and he averred that

A sensitive posek recognizes both the gravity of the personal situation and the seriousness of the halakhic factors. In one case, therefore, he may tend to view the points of contention in one way, while in a second case exhibiting slightly different details, he may tilt the decision on these points in the other direction. . . He might stretch the halakhic limits of leniency where serious domestic tragedy looms, or hold firm to the strict interpretation of the law when, as he reads the situation, the pressure for leniency stems from frivolous attitudes and reflects a debased moral compass. This approach is neither evasive nor discriminatory. The flexibility arises from a recognition that halakhic rulings are not, and should not be, the output of human microcomputers, but of thinking human beings; a recognition that these rulings must be applied to concrete situations with a bold effort to achieve the optimal moral and halakhic balance among the various factors. (Aharon Lichtenstein, “Abortion: A Halakhic Perspective,” Tradition 25:4 (Summer 1991, p. 12)

Abortion is another issue where the question of whether the perspectives of the posek have any influence on his halakhic decision-making came to the fore. To support his argument that a halakhic decision is immune to the perspectives of the posek, Gideon Weitzman (referred to above) cites as evidence R. Moshe’s pesak (Iggrot Moshe, Hoshen Mishpat 2 (1976), 69, p. 300), in which he rejects a more lenient pesak by Rabbi Eliezer Waldenberg (Tzitz Eliezer 9 (1967), 51:3, pp. 239–240) and prohibited an abortion for a women carrying a fetus with Tay-Sachs disease. “Can we possibly claim that Rav Feinstein did not have compassion on those unfortunate couples who are both carriers of Tay-Sachs?” Weitzman asks. To him, it is obvious compassion had nothing to do with R. Moshe’s rulings on abortion, artificial insemination, or any other issue. Interestingly, Rabbi Benny Lau cited the same halakhic decisions of R. Moshe as well as that of Rabbi Waldenberg and their respective arguments as proof that the perspective of the posek does influence his halakhic decision. He argued that the reason R. Moshe took such a strict stance on abortion was to counter what he perceived as the larger social and cultural patterns in which abortion was becoming too commonplace. Indeed, in the final paragraph, R. Moshe explicitly states that he wrote the entire responsum in light of “the huge breach in the world that the governments of many countries have allowed the killing of fetuses, including Israeli heads of state, and countless fetuses have already been killed, such that at this time there is a need to make a fence (safeguard) for the Torah . . .”. In other words, under other social conditions, he might have ruled differently.

In line with R. Moshe’s wishes, though more as a result of greatly improved and much more widely used contraception methods, the number of abortions worldwide has decreased during the past decade and more. However, abortion is readily available and used in Israel and, more to the point, it has increased in the religious community there. Over the past decade, awareness of the possibility of abortion has increased in the religious community. According to estimates by several medical professionals, religious women don’t speak of it publicly but at least 70 percent of the religious women do an ultrasound to detect Down syndrome and, if detected, at least 90 percent have an abortion. For more serious defects, where the fetus will not survive, even Hareidi women will abort. Also, not all religious women, Hareidi and not, seek rabbinic advice; some decide on their own, as has always been the case. The difference, according to the head of the ultrasound unit of Hadassah University’s Obstetrics and Gynecology Department, is that there has been a revolution in the medical knowledge of rabbis. They now understand the complexities better, are more sensitive to all of the issues, and are better able to help the pregnant woman decide to abort. Prof. Simcha Yagel claims that religious women cope better with that difficult decision because they have religious authority assisting them with it. (Yifat Ehrlich, “Beten Meleia,” Dyokan Magazine, Makor Rishon, May 8, 2009, pp. 10–14).

The Internet has had impact on the entire area of halakha and Jewish family life with the introduction, especially in Israel, of a relatively new phenomenon: Internet responsa. Indeed, it is an interesting question why the phenomenon is so prominent in Israel and yet is relatively absent elsewhere. Perhaps it has to do with the differences in the nature of the role of rabbi in Israel and elsewhere. Also, Israeli Orthodoxy is more pluralistic because of the much wider ethnic mix there and because of the non-denominational character of Israeli Judaism.

Be that as it may, in Israel the Internet has dramatically altered the role of the rabbi, in a number of vital ways. The anonymity of those engaged in the discussion allows people to ask very intimate and demanding questions that they might not have asked if their identity was known. In addition, the limits of the community that a rabbi serves have been expanded from finite physical boundaries to almost infinite virtual ones. Finally, for our purposes, the Internet provides greater public awareness of a particular rabbi’s decisions, which, on the one hand, makes him more vulnerable to criticism but also, on the other hand, enhances his stature as prominent rabbi.

An examination of topics covered in Internet responsa reveals that family and sexual issues play a major role among the questions raised. Thus, of the three volumes of such responsa by Rabbi Yuval Cherlow, the head of Yeshivat Hesder of Petah Tikva and the most prolific of the Internet rabbis, the largest volume, Reshu”t HaYahid, is wholly addressed to issues concerning modesty, couples and family. In published Internet responsa on the leading Internet site for the dati-leumi/Modern Orthodox communities, www.kipa.co.il, as well as on a range of other Jewish religious Internet sites and blogs, family issues are central. Among the issues discussed there are: early marriage—a concern especially for students in yeshivot hesder; singles; premarital sex; agunot whose spouses refuse to give them a get; gays and lesbians in the Orthodox community; and others.

An issue related to the artificial insemination matters that R. Moshe discussed (but not specifically discussed by him) is one that also addresses an aspect of the singles phenomenon, namely, voluntary single motherhood. One of the earliest sociological studies of the phenomenon (Jane D. Bock, “Doing The Right Thing? Single Mothers by Choice and the Struggle for Legitimacy,” Gender & Society 14:1 (February 2000), pp. 62–86) focused only on the Reform branch of Judaism and found it to be basically accepting. Since then, Conservative Judaism has become likewise increasingly accepting. Mainstream Orthodox Judaism opposes voluntary single motherhood on social policy, if not “pure” halakhic grounds, but it is gaining acceptance at least among some Modern Orthodox. Dvora Ross, herself a voluntary single mother, has not dispassionately reviewed the “pure” halakhic and social policy aspects and staunchly defends single motherhood (Dvora Ross, “Artificial Insemination in Single Women,” in Micah D. Halpern and Chana Safrai, eds., Jewish Legal Writings By Women Jerusalem: Urim, 1998, Hebrew Section, pp. 45–72). Most of the Orthodox criticism of Ross’ article is not on grounds of pure halakha but on the basis of the phenomenon’s negative consequences on the Jewish family unit (See for example, Rabbi Aharon Feldman’s scathing review-essay, “Halakhic Feminism or Feminist Halakha?” Tradition 33:2 (Winter 1999), pp. 61–79. The reference to Ross’ article is on p. 74). To many, as Rabbi Aharon Lichtenstein points out in his seminal essay on the role of social factors in halakha (cited above), such concerns are within the purview of the halakhist. Others, such as Rabbi David Stav, one of the heads of the Yeshivat Hesder of Petah Tikva, argues that the only halakhic issue is that the father’s identity is unknown and that might, conceivably, present a problem when the child wishes to marry. Other than that, “on the halakhic level, there is no argument between the posekim that there is no prohibition for a woman to become pregnant through artificial insemination…. This is not a halakhic question but one that is in the realm of social policy.” When weighing the anguish of single women who yearn to have children against the fear that women might not want to get married—and include the admittedly remote halakhic complication from not knowing the identity of the father—leaves Stav unable to decide. However, his colleague, Rabbi Yuval Cherlow, is reported to allow artificial insemination for single women who unsuccessfully sought to marry by the age of 37.

This issue is surely one of a group of contemporary issues in which the extent to which the halakha can remain in its own orbit and its unique speed without being the force of the thrust increasing or decreasing it, to use the Rav’s analogy, in cases that involve major cultural clashes, is somewhat dubious. We saw this with the issue of women’s prayer groups and the “pesak” of the “RIETS 5,” which was clearly much more about the role of women in society than about the laws of tefilla. The issue of voluntary single motherhood, likewise, is one that is controversial and emotionally charged in American society, in general. Even at the highest levels of analysis, there are some scholarly works that view it as very harmful to the children involved and, ultimately, society as a whole (See, for example, David Popenoe, Life Without Father: Compelling New Evidence that Fatherhood and Marriage Are Indispensable for the Good of Children and Society. Cambridge: Harvard University Press, 1999). There are other works (see, for example, Rosanna Hertz, Single by Chance, Mothers by Choice. New York, Oxford University Press, 2008) that present evidence indicating that although some women became mothers in a “radical” way, they were motivated by normative family values and aspirations, and their family lifestyles are actually very conventional. In terms of Orthodox voluntary single mothers, although the rabbis and others may debate the halakhic and meta-halakhic issues involved, the meager evidence available suggests that the many of the women involved are making their choices individually, without careful consideration of those issues.

Perhaps the most emotionally charged family and sexual issue of our time is homosexuality. In terms of its prevalence, recognizing the difficulty in determining rates due to the variety of definitions of homosexuality and the unwillingness of many people to offer information about their sexual behavior, the empirical evidence suggests that there has not been any significant increase in homosexuality in the past half-century and more. We have no studies of it prior to the 1940s, so we really do not know if there has been any increase in the behavior. Shaul Stampfer found hardly any references to it among Eastern European Jews during the nineteenth and twentieth centuries, but it is difficult to believe that the phenomenon was non-existent. In fact, it is reasonable to assume that there actually has not been any significant increase in homosexuality. Rather, the phenomenon is now much more open, primarily because of the rise in identity politics in Western society and culture during the 1960s and 1970s. On the other hand, perhaps it has actually increased because the tolerance of it allows those with surmountable homosexual tendencies to avoid undertaking the effort to change. (I thank Prof. Martin Lockshin for this suggestion.)

Judaism across the spectrum incorporated the biblical condemnation of homosexuality as an abomination (“to’eva”) and had, until recently, not only vehemently censured the act but ostracized the offenders as well. With the growing acceptance of homosexuality in the broader society, Reform Judaism was the first branch of American Judaism to alter its stance, when, on March 29, 2000, the Central Conference of American Rabbis (CCAR) overwhelmingly approved a resolution giving rabbis the option to preside at gay and lesbian commitment ceremonies. Not long afterward, the movement’s temple and synagogue organization, the Union of American Hebrew Congregations (now called the Union of Reform Judaism) called for full legal equality for homosexual couples, including legal recognition of their relationships. 

During that same period, on March 25, 1992, Conservative Judaism’s Committee on Jewish Law and Standards (CJLS) voted in favor of a lengthy responsum written by Rabbi Joel Roth that reiterated the traditional stance of homosexuality as an abomination. It also rejected castigations of some social activists who labeled the decisors as callous, and proclaimed, “It is possible for a decisor to be understanding, empathic, sensitive, caring, and without irrational fears, and yet conclude that the halakhic precedents are defensible, warranted, and compelling.” In a postscript, Roth went on to distinguish between halakha and civil law and, in the realm of the latter, saw “no justification for civil legislation proscribing such acts.” Thus, while the Rabbinical Assembly reaffirmed its traditional prescription for heterosexuality, it supported complete civil equality for homosexuals; deplored violence against them; reiterated that they

are welcome as members in their congregations; and called upon the entire movement to

increase “awareness, understanding and concern for our fellow Jews who are gay and lesbian.”

Awareness of homosexuality in the Orthodox community increased by the award-winning documentary, Trembling Before G-d (2001), which portrayed the conflicts experienced by Jewish gays and lesbians between their strong bonds with God and the Orthodox Jewish tradition, on the one hand, and Judaism’s very strong condemnation of homosexuality, on the other. A number of Orthodox rabbis, Hareidi as well as Modern Orthodox, have expressed compassion for individual homosexuals while, at the same time, affirming the condemnation of prohibited homosexual activity, and have urged that those violators not be shunned any more than are other sinners, such as Sabbath desecrators. Among the more Hareidi of those who profess compassion, one senses an outreach approach that aspires to enlist them in programs aimed at reorienting them from their homosexual tendencies (See, for example, Avi Shafran, “Dissembling Before G-d,” Jewish Journal of Greater Los Angeles, Feb. 21, 2002). There is much debate in society at-large as to the feasibility of such reorientation, based on the question as to whether homosexuality is hereditary or learned behavior.

For the Orthodox community in particular, the publication of Steven Greenberg’s Wrestling With God and Men: Homosexuality in the Jewish Tradition. Madison: University of Wisconsin Press, 2004) had the potential to create a real stir and perhaps even change some attitudes. Greenberg, after all, has ordination from the Rabbi Isaac Elchanan Theological Seminary of Yeshiva University, and considers himself as part of the Orthodox community. However, as Asher Lopatin elucidates in his extensive sympathetic yet forthright critique (“What Makes a Book Orthodox?” Edah Journal 4:2 (Kislev) 5765/2004), the book is not and will not be seen as an Orthodox work because the author is admittedly not fully committed to Orthodoxy; because its methodology and style are not those of Orthodox works; and it is insufficiently creative halakhically. That and the facts that it was published by a university press with limited distribution and, even more, that has an erotically suggestive painting on the cover, have made it a non-event in the public Orthodox community. How widely it was read under wraps in that community is anyone’s guess. Not surprisingly, Greenberg replied to Lopatin’s critique (Edah Journal 5:2 (Sivan) 5766/2006), stating that his intent

was not to settle the thorny halakhic issues, but to set the stage for richer halakhic engagements that in time will follow. It is my view that a full-fledged halakhic “solution” to the problem of homosexual relations is premature. . . .There is still too little understanding, let alone empathy, in the Orthodox community for the gay religious person and too much entrenched fear about the consequences of any partial, let alone full-fledged acceptance, of embarking on such a project.

If one were to assume from this that there has been little change in the Orthodox community, one would be very mistaken. There definitely has been change. There are now several openly gay Orthodox groups in Israel. One, Havruta, held its first anniversary event in Jerusalem recently, where the guest of honor was none other than Rabbi Yaakov Medan, who is one of the heads of Yeshivat Har Etzion. A number of other prominent Orthodox religious personalities participated as well (Yair Ettinger, “Of Pride and Prayer,” Haaretz, Feb. 26, 2009). Also, the second season of the Israeli television series, Serugim, will include homosexuals, and there are even several gay Hareidi web sites (such as Mendy’s Blog and Homo Hareidi).

            Does all of the change documented lend support to Blu Greenberg’s famous assertion that, “Where there's a rabbinic will there's a halakhic way?” As a historical statement it may. Orthodox Judaism is, by definition, conservative, and all conservative religious groups manifest stronger family values that the non-traditionals do. On the other hand, no group is immune to the broader social and cultural patterns, and their families of today are not quite what they were a half-century ago. However, if the assertion is taken to be a political call to action, none of what has been discussed should necessarily be taken as supporting that assertion. All too frequently, such calls backfire and lead to a reactionary impulse, because they are seen as undermining halakhic authority, and serve to make it even more difficult to achieve the very objective intended by the call. As several of the issues discussed above suggest, working with halakhic authorities, rather than attacking them, is much more productive.

            As the world shrinks—and technological innovations assure that it does—broader social and cultural patterns will change even more rapidly, and they will increasingly impinge on the Jewish family, including the Orthodox family. Nor is there anything novel about it. As R. Yehudah Hehִasid (c. 1150–1217), the author of the Sefer haHassidim, recognized centuries ago, “As is the custom of the gentiles, so are the customs of the Jews in most cases.” How Orthodoxy will respond to these new challenges is anyone’s guess. It is increasingly obvious that digging one’s heels in, furthering the “she’erit haPeleta” (“saving remnant”) approach, and trying to ignore the changes does not work, as a look at the rising divorce rates among the Orthodox, including Hareidim, indicate. Perhaps increasing numbers of Orthodox rabbis and other communal leaders will decide to learn more about the broader societal and cultural patterns, to work with experts in society-at-large, as well as with each other in attempts deal with the changes within a halakhic framework. The latter, of course, presents a formidable challenge of agreeing on an appropriate halakhic framework. One might be tempted to say that only Mashiah will be able to bring that about, but unless he arrives shortly, we may not be able to wait.

 

 

Amazingly, Jews have flourished for nearly

two thousand years in many different lands without having a

central authoritative institution of halakha. In spite of differences of custom

and emphasis which have arisen among different groups of

Jews, the essential unity of halakha was preserved. To this

day, every Jew who adheres to halakha shares in a truly

remarkable historic, religious, sociological, spiritual and national

enterprise.

 

Some individuals have called for

the establishment of a new Sanhedrin in our times. They

would like a revival of a central halakhic authority for the

Jewish people. The Sanhedrin would not only provide unity

in halakha, but would re-institute the original methodology

of the oral law--interpreting the Torah itself, applying the

law to life with the freedom to overrule precedents and previous

decisions.

 

One of those calling for a Sanhedrin was the Sephardic

Chief Rabbi of Israel, Rabbi BenzionUziel (1880-1953). In a

speech delivered on 12 Kislev 5697, he called for an authoritative

rabbinic body along the lines of the Great Court of

Jerusalem.[1]  He viewed this effort as a continuation of the

work of Rabbi Yohanan ben Zaccai, who had been instrumental

in establishing a quasi-Sanhedrin in Yavneh following the

destruction of Jerusalem by the Romans.

 

Rabbi Uziel believed it was the responsibility of the

rabbinate to work to achieve this goal. Rabbis are delegated

the responsibility of establishing mishpat, justice. This refers

not only to cases between contending individuals, but also to

public issues, questions of taxation and communal needs. By

working for a Sanhedrin, the rabbis will be working for a

unifying force in Jewish life. Rabbi Uziel argued that one who

simply knew how to rule on what is permitted and what is

forbidden ,or on who is guilty and who is innocent is not in the category of being a posek, a decisor

of halakha. This person is known as a talmid or talmid hakham,

 a student or a wise student. To be a posek, however,

involves having the power of the Great Court. Only the Sanhedrin

can serve as a real posek. "The responsibility of the

Sanhedrin was to clarify and distinguish between true interpretations

(which are true to the spirit of the Torah) and

casuistic interpretations (which are erroneous). "[2]

 

Rabbi Uziel writes that the posek draws conclusions

from the Torah and the words of the prophets, as well as from

the traditional oral law. "The posek in Israel is not bound by

precedents of the posek who precedes him. If he was,

this would lead to great damage, in that an accidental error

would be fixed as a permanent halakha even though it was

erroneous in its foundation. In order to avoid this harmful

eventuality, the authority of the Great Court was restricted

only to the time in which it sits on the chair of judgment. But

the decisions of the Great Court are not established as law and

do not obligate the judges who will come after them to judge

and to teach like them. "[3]

 

Rabbi Uziel was deeply impressed by the work of Moses

Maimonides and believed that he deserved the title posek.

Maimonides worked to make the laws of the Torah known to

the general public. In his comprehensive code of Jewish law,

Maimonides recorded the halakha anonymously, to signify

that it represents a consensus, not just the opinion of individuals.

He not only gathered his material from all rabbinic

literature, but he also derived benefit from the teachings of

non-Jewish thinkers. "In this matter, by the way, Maimonides

has informed us that in halakhic decisions one must

comprehend all things on the basis of their content and truth,

and not on the authority of their authors alone. Maimonides

taught a great principle: Accept the truth from those who

have stated it. "[4]

 

In order to restore a central authority for halakha, Rabbi

Uziel urged: "Let us arise and establish the Great Court in

Jerusalem not in order to judge cases of fines, or capital

cases and not in order to permit the firstborn because of its

blemish. Rather, let us do so in order to solve the questions of

life which confront us each day in our settlements and in our

world, and in order to create a beginning for our destined

redemption: 'And I will return your judges as in the beginning

and your advisers as formerly; for out of Zion will the

Torah proceed and the word of God ·from Jerusalem.' ''[5]

 

Until a Great Court is re-established in Jerusalem, the

halakha is taught by leading rabbinical sages who draw on

the vast rabbinic literature which has developed over the past

several thousand years. There are variations of opinion on

details of halakha; different sages rule differently: yet, the

halakhic process continues to provide the framework for

religious Jewish life. In order for a sage to be recognized as

authoritative, he must not only have great erudition; he must

not only be personally observant of halakha; he must also be

fully faithful to the idea that halakha is the expression of the

will of God to the Jewish people. Halakha, therefore, must

be taken seriously on its own terms.

 

A Sephardic Approach To Halakhah[6]

 

Without a Great Court in Jerusalem, it was only natural

that different approaches to halakha developed among various

Jewish communities during the past nearly two thousand

years. Customs and practices varied from place to place and

from time to time. Attitudes towards halakhic study also

differed. Certainly, the basic assumptions of the divinity of

the Torah and the authority of halakha were accepted: but

differences in style definitely did exist among religious Jewish

communities throughout the ages.

 

Two major streams of Jewish tradition are the Ashkenazic

and the Sepahardic. Ashkenazim (Ashkenaz means Germany

in Hebrew) primarily lived in Europe. In the Middle

Ages they were concentrated in France, Germany and Italy;

gradually, the centers of Ashkenazic Jewry shifted to Poland,

Russia and Eastern Europe in general. The common feature of

these communities is that they existed in Christian countries.

They were included within the orbit of Western civilization.

The Westernization of these communities was intensified

during the eighteenth and nineteenth centuries, when

European Jews were gaining rights of citizenship in the countries

in which they lived. The doors of Western civilization

opened to them as never before. Jews studied in European

universities; and they advanced in professional, cultural and political

life. Their struggles for civil rights were painful and not fully

successful. Anti-Jewish attitudes and actual violence against

Jews ultimately led many Ashkenazim to migrate to Israel,

the United States and other safe havens. The Nazi holocaust

during World War II decimated European Jewry, most of

which was of Ashkenazic background. Yet, Ashkenazic

Jewry today represents a large majority of world Jewry.

 

Ashkenazic numerical dominance has been matched by

its cultural hegemony as well. Certainly, for the past three

centuries and more, Ashkenazic rabbis have dominated halakha;

Ashkenazic thinkers have dominated Jewish philosophy;

Ashkenazic writers and artists have dominated Jewish

cultural life.

 

The Sephardic Jews (Sepharad refers to Spain in Hebrew)

enjoyed their period of dominance during the centuries

prior to the expulsion of Jews from Spain in 1492. The contributions

of Sephardim to all areas of Jewish scholarship and

thought as well as to science, medicine, and mathematics

were impressive, unequalled in the Jewish world. Even during

the century following the expulsion, Sephardic Jewry

maintained a dynamic spiritual and cultural life which influenced

world Jewry.

 

The considerable majority of Sephardim who left the

Iberian Peninsula settled in Muslim countries. Although Sephardim

also went to Italy, Holland. France and other Western

European locations, the much greater number flourished

in non-Western environments. The Ottoman Empire provided

haven for Sephardic refugees. Sephardic communities

developed throughout Turkey, the Balkan countries, the

Middle East and North Africa. Their experience was different

in many ways from that of the Ashkenazim of Europe. Indeed,

the two groups of Jews--those of Christian Europe and those

of the Muslim domains--lived in relative isolation from one another.

 

Although it is difficult to generalize about differences in

the realm of halakha, it may be argued that there were

different trends of halakhic thinking among the two groups,

just as there were differences in world views in general. It is

of interest to explore the Sephardic approach to halakha

since it may serve as an anodyne to the prevailing Ashkenazic

approach. Since Sephardim lived among non-Western

people, their perceptions and attitudes about Judaism may

serve as a counter-balance to the preponderant Westernization

of Judaism.

 

A people's attitudes are often conveyed through their

words and actions when they are not self-conscious about

being observed. They are implied in proverbs and songs, in

the way people dress, in their gestures, in the way they

express themselves. In order to comprehend a Sephardic

approach to halakha, one must attempt to grasp the undocumented,

non-explicit elements of Sephardic culture--elements

which are known from sharing a people's mentality.

.

One element which needs to be considered is joie de

vivre. While Sephardim living in Muslim lands over the past

centuries were generally quite observant of halakha,

their observance did not lead them to become somber or

overly serious. Pious Sephardim sang Judeo-Spanish love

ballads and drinking songs at family celebrations in a natural

way, without self-consciousness. Singing in a lighthearted

spirit, even at public gatherings, did not strike them as being

irreverent. Rather, the pleasures and aesthetics of this world

were viewed in a positive light.

 

Sephardic holiday celebrations and life cycle observances,

for example, were characterized by the preparation of

elaborate delicacies to eat, the singing of songs, and a general

spirit of gaiety and hospitality. Sephardim appreciated colorful

fabrics, fine embroidery, excellent craftsmanship in metals.

On every happy occasion there was bound to be the

fragrance of rose water, herbs, fresh fruits. All of these accoutrements--

song, food, fragrances, decorative materials--gave

the specific religious observance its distinctive quality.

These things were not peripheral to halakha, but gave

halakha its proper context: a context of love, happiness.

optimism.

 

This spirit carried itself even to the serious season of the

High Holy Days, when self-scrutiny and repentance were

expected. The travel account of Rabbi Simhah ben Joshua of

Zalozhtsy (1711-1768) sheds interesting light on this fact.[7]

He travelled to the Holy Land with a group of ascetic Hassidim

in1764, and the majority of his Jewish co-passengers

on the ship were Sephardim. The rabbi noted that "the Sephardim

awoke before daybreak to say penitential prayers in

a congregation as is their custom in the month of Elul." He

then added: "During the day they eat and rejoice and are

happy at heart." For Rabbi Simhah, this behavior may have seemed

paradoxical: but the Sephardim themselves did not even

realize that their behavior was in any way noteworthy. Their

unstated assumption was that eating, rejoicing and being

happy of heart were not in conflict with piety, even in the

serious season of penitential prayers.

 

Alan Watts has pointed out that in Western thought the

individual is "split." He is both himself and an observer of

himself. Western culture teaches us to analyze ourselves, to

see ourselves as though we are somehow outside of ourselves.

We are both subjects and objects. Carried to an extreme,

this way of viewing ourselves can be confusing and guilt inducing. It is as though we live our lives while seeing ourselves in a mirror. We are apt to become overly self-conscious, self-critical, and self-centered. Eastern culture, on the other hand, tends to be more holistic, less self-analytic.

People are taught to live naturally and easily, without objectifying

themselves overly much.

 

Watts has written: "The most spiritual people are the

most human. They are natural and easy in manner: they give

themselves no airs; they interest themselves in ordinary

every day matters and are not forever talking and thinking

about religion. For them there is no difference between spirituality

and usual life , and to their awakened insight the lives

of the most humdrum and earth-bound people are as much in

harmony with the infinite as their own."[8]

 

The Sephardim tended to have the Eastern, rather than

the Western, attitude on life. The halakha was observed

naturally and easily, as a vital part of life. Andre Chouraqui,

in his study of North African Jewry, has noted that the Jews of

the Maghreb were quite observant of halakha, yet  "the

Judaism of the most conservative of the Maghreb's Jews was

marked by a flexibility, a hospitality, a tolerance . .. " The

Jews of North Africa had a "touching generosity of spirit and

a profound respect for meditation."[9] These comments are

equally applicable to Sephardim throughout the Mediterranean

area.

 

These qualities were placed into halakhic terms by Rabbi

Hayyim Yosef David Azulai ( 1724-1806), one of the leading

Rabbinic figures of his time. He wrote that in matters of

halakha, Sephardic sages clung to the quality of hesed,

kindness, and tended to be lenient. Ashkenazim manifested

the quality of gevurah, heroism, and therefore tended to be

strict. Rabbi Azulai's statement--regardless of its objective truth--is

a profound indication of his own self-image. He and nu-

merous other Sephardic rabbis saw themselves as agents of

hesed. This self-image could not but influence the manner in

which they dealt with questions of halakha.  Hesed was not

merely a pleasant idea but a working principle.

 

 H. J. Zimmels, in his book Ashkenazim and Sephardim,

indicates that as a general rule Sephardim were more

lenient than Ashkenazim in their halakhic rulings.[10] He

suggests that the Ashkenazic inclination to stringency was

largely the result of centuries of persecution suffered by

German Jewry. It also stemmed from the doctrines of the

German Hassidim of the 12th and 13th centuries, who emphasized

strictness in religious observance. Groups of Ashkenazic

Jews imposed upon themselves greater stringencies

than the law demanded and, in time, many of these observances

became normative.

 

Rabbi Benzion Uziel offered an insight into the differences

between Sephardic and Ashkenazic sages. Sephardic

rabbis felt powerful enough in their opinion and authority to

annul customs which were not based on halakhic foundations.

In contrast, Ashkenazic rabbis tended to strengthen

customs and sought support for them even if they seemed

strange or without halakhic basis. The rabbis of France and

Germany had a negative opinion of the rabbis of Spain, feeling

that the Sephardic sages were too independent and irreverent

to tradition. On the other hand, the Sephardim felt

that their method was correct and were quite proud of promoting

it.[11]

 

Sephardic tradition stressed the idea that the halakha is

a practical guide to behavior. It is not a metaphysical system

set aside for an intellectual elite. On the contrary, each person

was entitled and obligated to understand what the halakha

requires. It is not surprising, therefore, that the classic codes

of Jewish law were produced in Sephardic communities.

Sephardic scholars studied texts with the goal of applying

them directly to actual situations: therefore, they had to

remain sensitive to the needs of people. This very sensitivity

helped maintain the quality of hesed in halakha.

 

When halakha is studied as an intellectual system divorced

from actual life situations, it may follow the dictates

of logic and intricate reasoning rather than the dictates of

human kindness. A legal conclusion might be reached in the

abstract and then be applied to human conditions as a derrick

operation from above. This approach is contrary to the overall

spirit of Sephardic halakhic thought.

 

Although it is incumbent upon each Jew to study Torah

and halakha, difficult questions and disputes cannot always

be solved by the individuals involved. Thus, over the past

centuries, Sephardic communities normally appointed a

chief rabbi, often referred to as haham, sage. He had the

final word in matters of halakha for his community. The

institution of haham  provided the Jews with a recognized

authority who could resolve their questions. When the Sephardim

of the Island of Rhodes wanted to appoint a chief

rabbi in the early 17th century, for example, they agreed that no one had

the right to contest the haham's rulings. "All which he will

decide will be correct and acceptable as the law which was

determined by the Court of Rabban Gamliel. . .. All which he

will decide ... will be correct and acceptable as a law of

God's Torah as it was given at Sinai."[12]

 

The Jews of Rhodes linked their haham's authority to

that of the powerful court of Rabban Gamliel and to the Torah

itself. Other Sephardic communities did likewise. This was a

way of restoring, at least on a communal level, the original

function of the Great Court in Jerusalem which, according to

Maimonides, was the essential institution of the halakha.

 

Rabbi Joseph Taitasak (16th century, Salonika) expressed

this idea clearly: "Know that each and every community has

authority over its members, for every community may legislate

in its city just as the Great Court could legislate for all

Israel."[13]

 

Law and Life

 

Since halakha is an all-encompassing guide to life

that describes what God wants us to do, it is essential that

we understand its role in our lives. Observing the mitzvoth is a

Jew's way of connecting with the eternal reality of

God. To treat halakha as a mechanical system of laws is to

miss its meaning and significance. Halakha provides the

framework for spiritual awareness, religious insight, and

even spontaneity.

 

At the root of halakha is the awareness that God is

overwhelmingly great and that human beings are overwhelmingly

limited. Humility is the hallmark of the truly

religious person. One must be receptive to the spirit of God

which flows through the halakha and  to the religious experience

that it generates.

 

A true sage must be humble; arrogance is a sign of not

understanding the real lesson of halakha. Solomon Schechter.

in his beautiful essay about the mystics of Safed of the

16th century, quotes Shlomel of Moravia who described the

scholars, saints and men of good deeds of Safed, indicating

that many of them were worthy of receiving the Divine Spirit.

"None among them is ashamed to go to the well and draw

water and carry home the pitcher on his shoulders, or go to

the market to buy bread, oil and vegetables. All the work in

the house is done by themselves.”[14] These sages followed the

model of Talmudic rabbis who also did not find it beneath

their dignity to work at menial tasks. Egotism and a sense of

inflated self-importance are contrary to the spirit of Jewish

religiosity.

 

It is interesting to note how this ideal has been somewhat

diminished among Western Jews. Isidore Epstein, in his

study of the responsa of Rabbi Simon Duran, displays a

Western bias when he writes that "the multifarious functions

of the rabbis [of North Africa] also testify to the low standards

of Jewish culture of North African Jewry. In adverting to

Jewish past and present day history, we cannot fail to notice

that wherever there is a strong, virile and advanced Jewish

life, there is the tendency to keep the rabbinical office distinct

from other callings: and the combination of rabbinical

charges with other functions is a sign of decadence and of

lack of appreciation of learning as such. North Africa in our

period exhibited that characteristic system of cultural decline.

There the rabbi was not ‘rabbi’ in the understood

sense of the word, but combined with that office the functions

of school teacher, slaughterer, and reader to the consequent

lowering in his prestige and rabbinical authoritv."[15]

 

Epstein's assumption that it is a sign of decadence when

rabbis assume responsibilities other than purely academic is

quite absurd. The contrary seems much truer. The Talmudic

sages assumed other responsibilities as did the outstanding

sages of the Sephardic world: and they did not feel demeaned

thereby. It is precisely when rabbis relegate to themselves

purely academic functions and when they consider it undignified

to meet other communal needs that egotism and

pettiness arise. It is actually to the credit of North African

Jewry and many other Sephardic communities as well, that

rabbis often served in practical capacities, participating more

fully in the life of their communities. This was not at all a

shame for them or a reflection of cultural decadence for the

communities.

 

Humility is a virtue which halakha fosters for sages and

laymen alike. Rabbi David Ibn Zimra (16th century) offered

an explanation of a rabbinic dictum that one is not supposed

to argue with the greatest of the judges who has made a ruling

on a legal question. Yet, what if that judge is wrong? Shouldn't the

lesser judges have the right and responsibility to dissent?

Rabbi David Ibn Zimra explains that the dictum was not

intended as a warning for the lesser judges but rather for the

greatest judge. The judge occupying the highest position

should not give his decision first because others will be afraid

to argue with him. His decision will intimidate the others.

Therefore, true justice demands that the greater judges withhold

their opinions until the lesser ones have had their say. In

this way, all opinions can be evaluated fairly and without intimidation

or arrogance.[16]

 

In a similar spirit, Rabbi Hayyim Yosef David Azulai

comments on a passage in the Ethics of the Fathers which

teaches that each person should prepare himself to study Torah

since it does not come to him as an inheritance. Rabbi Azulai

notes that each sage received his specific portion from Sinai

and therefore even a great sage needs to learn from others. No

scholar is self-sufficient, no sage inherits all wisdom. It is

necessary for everyone to be humble, to be open to the opinions

of others, to try to learn from everyone.[17]

 

Piety

 

Many wonderful and horrible things have been done in

the name of religion. George Bernard Shaw once wrote: "Beware

of a man whose God is in Heaven.''  It is difficult, perhaps

impossible, to have reasonable communication with

someone who feels that he knows Truth, that only he and

those who share his beliefs are absolutely right.

 

There have been great prophets, mystics and pietists

who have lived their lives in relationship with God. There

have also been inquisitors, murderers and arrogant criminals

who have thought that they acted according to the will of

God. If religion attracts the most sensitive and thoughtful

people, it also draws those who wish to seem important and

holy in the eyes of others, who use the cloak of religion to

hide their own egocentric purposes.

 

Since the Jewish religious tradition is deeply tied to

halakha, it is not surprising that there have been people who

have found their self-importance in legalism. There is a fine

line between pious devotion and misguided asceticism.

Rabbi Hayyim Yosef David Azulai has taught that one should

not follow unnecessary stringencies in law. Even in private,

one should not be overly stringent, unless he is motivated by

pure and humble piety.[18] Those who do accept additional

obligations upon themselves should not consider themselves

superior to others who do not accept such stringencies. A

truly pious person feels no need to compare his piety to that

of others; his life is lived in relationship to God; he lives with

humility and equanimity.

 

Jewish history has witnessed the honest spirituality of

innumerable pious men and women who have sincerely

served God through their observance of halakha. It has also

witnessed pietistic movements, where groups of people observed

Jewish law with intensity and introduced pious customs

into Jewish religious life. Such movements include the

German Hassidim of the 13th century; the Sephardic mystical

schools of the 16th century; the Hassidic movement of

the 18th century; the Musar movement of the 19th century.

These and other religious movements called on Jews to deepen

their religious experience by intensifying their observance

of halakha and by adopting additional pious practices.

 

Rabbi Moshe Cordovero of 16th century Safed, for example,

composed a list of rules for Jews to observe. The

following are some of his recommendations.[19]

One should not turn his heart from meditating on Torah

and holiness, so that his heart will constantly be a sanctuary

for the Divine Presence. He should never allow himself to

become angry. One should always be concerned about the

needs of his fellow beings and should behave kindly to them.

One should behave nicely, even with those who transgress

the laws of the Torah. One should not drink wine except on Shabbat and holy

days. One should pray with concentration. One should not

speak badly about any person or any other living creation of

God. One should never speak falsehood or even imply falsehood.

One should meet with a friend each Friday evening to

review what has occurred during the course of the past week.

One should recite the afternoon prayer with a prayer

shawl and tefillin. One should chant the Grace after Meals

aloud. Each night, one should sit on the ground and lament the

destruction of the Temple in Jerusalem, and should also cry

over his own sins which lengthen the time before our ultimate

redemption.

A person should avoid being part of four groups which

do not receive the Divine Presence: hypocrites, liars, idlers

and those who speak evil about others. One should give

charity each day in order to atone for his sins. One should pay

his pledges immediately and not postpone them. One should

confess his sins prior to eating and prior to going to sleep. A

person should fast as often as his health allows.

 

These rules, and other similar ones, stem from the overwhelming

desire of religiously sensitive people to serve God

in fullness. The more they can do, the closer they feel to the

Almighty. When their deeds are performed in the spirit of love

and selflessness, they are spiritually meaningful. The problem,

of course, is that these rules of piety may themselves

become merely mechanical observances.

 

The genius of halakha is that it provides Jews with a

medium for approaching God on a constant basis. Each law,

each observance is a link between the human and the Divine.

But the power of halakha cannot be appreciated without

spiritual sensitivity, openness and--above all--humility.

 

Saintliness

 

It is a rare experience to be in the presence of a truly saintly person who lives in a deep relationship

with God. We might describe such a person as having

wisdom, humility, inner peace, tranquility. The saintly person

lives life on a different plane from most other people.

One cannot attain saintliness as the result of following

any specific prescriptions. There are no schools to educate

and graduate saints. There are no rituals or techniques which,

if followed, will result automatically in the creation of a

genuinely pious person.

 

In describing the actions and observances of deeply pious

people, we only describe the evident and superficial

aspect of their lives. Their inner lives remain a secret to us.

We are intrigued with such people because we do not understand

their inner beings.

 

Following the external dictates of halakha does not

guarantee the quality of saintliness. Without mystical insight,

without an all-encompassing love, the practitioner of

halakha mimics saintliness. Halakha must be experienced

as a fulfillment of the will of God if it is to generate spirituality.

 

Modern Western society does not place a particularly

high premium on saintliness. Our society is achievement oriented,

pragmatic, material-centered. Even religion is profoundly

influenced by these values. Religious institutions

are concerned with perpetuating themselves-- raising money,

obtaining members, providing services. Prayer services

might pass for good (or not so good) theater. They may

provide parodies of prayer where people appear to be praying

while having no sense of the presence of God. It is difficult

to preach about God and mystical saintliness except to

unusual individuals.

 

The ideal of halakha is to create righteous, pious

people. Even those who may never attain this spiritual level

still need to know what the goal is.

 

In describing the religious life of North African Jewry,

Andre Chouraqui has noted that the Jews of the Maghreb

valued saintliness as the ultimate quality.[20]  They expected

that their rabbis be well-versed in Torah and rabbinic literature:

but more than this, they expected them to be able to pray

with sincerity and real devotion. By being in the presence of

saintly teachers, the average people could be raised in their

own spiritual life.

 

In summation, halakha is the ever-present link between

God and the Jewish people. Through observance of halakha

in the spirit of humility, the Jew has the opportunity to .live

life on a deep spiritual level.