National Scholar Updates

Orthodox Jews like to claim that they adhere to an unchanging tradition of laws and beliefs. Based on this understanding, it becomes possible to decide who "is in" and who "is out;" that is, who is part of the Orthodox camp and who must be placed in a different denomination. The term "Orthodox" itself, which is not part of traditional Jewish vocabulary but actually comes from the Christian lexicon, was adopted in order to distinguish different types of Jews. Yet what exactly defines so-called Orthodoxy is not so easy to pin down.

To illustrate the problem, let me give a few examples. When I was younger everyone knew that according to Orthodoxy, Jews were not permitted to ascend the Temple mount. Yet today many Orthodox Jews do precisely that, encouraged by great rabbis. A generation ago, the notion that women could read the Torah or get aliyot in an Orthodox synagogue would have been laughed at. In fact, it was precisely because of this that some women came up with the idea of a women's prayer group, at which women would be permitted to read the Torah. Yet today we have Orthodox minyanim in which women are, in fact, called to the Torah. When I was younger it was axiomatic that Orthodoxy could not accept women rabbis. Every Orthodox Jew knew that this was an impossibility. Seeing all the changes that have occurred in my lifetime, I don't think that I am going out on too much of a limb to predict that it will not be long before we have Orthodox women rabbis.

The reality is that Orthodoxy is not so much a concept as a social construct. With this understanding, it should not be surprising that what the Torah-true population regard as unacceptable in one era, could very well be regarded differently among at least some of this population at another time. It is vital to bear this in mind when considering the works of R. Joseph Messas (1892-1974). Messas served as a rabbi in Tlemcen, Algeria and Meknes, Morocco, and at the end of his life as Sephardic chief rabbi of Haifa. Although well known in the North African community, this very original thinker has only recently begun to catch the interest of both the broader Orthodox world as well as the scholarly community. Moshe Bar-Asher, Zvi Zohar, Avinoam Rosenack, David Biton, and Iti Moreyosef are among those who have written on different aspects of Messas' writings and worldview. From the rabbinic world, R. Zekhariah Zermati has recently published a collection of Messas' halakhic rulings, what he terms a Kitzur Shulhan Arukh. Even the Orthodox feminists have found what to be attracted to in Messas, as he provides the first testimony to women's prayer groups, complete with Torah reading and the donning of tefillin (Nahalat Avot, vol. 5, part 2, p. 268). He also shows great appreciation for women's learning, going so far as to sympathetically recount the stories of two women who declined marriage so that that they could devote themselves to Torah study.[1]

In order not to repeat what others have said, let me focus on the area of halakha, which is where I think one finds Messas' greatest significance. While Messas showed originality in every area he dealt with-and I don't think there was another North African rabbi who came close to his intellectual versatility-to apply this originality in matters of practical halakha required both a clear vision as well as an enormous amount of self-confidence. Messas was blessed with both of these qualities.

Some of his rulings are so far removed from the mainstream of halakhic thought that many might be tempted to regard him as outside the realm of Orthodoxy. Yet Messas was a central figure in the Moroccan Torah world and, as noted above, later served as chief rabbi of Haifa. His responsa are found in the writings of a number of his contemporaries, and his works continue to be widely cited by Sephardic halakhists. He is a good example of just how diverse Torah-true Judaism can be, especially when it is not confronted by non-Orthodox movements and thus not required to create artificial boundaries through denominational labels.

Messas grew up in Morocco where he absorbed the best of the Moroccan rabbinic tradition. This meant that he devoted himself not only to Talmud and halakha, but was also at home in philosophy, Jewish history (in particular the history of Moroccan Jewry), parshanut, and anything else that can be regarded as part of the traditional Jewish library. His three volume Otzar ha-Mikhtavim, recently reprinted, shows his great breadth of knowledge. In many ways, Messas is the Sephardic counterpart to R. Hayyim Hirschensohn. Both were incredibly original in their halakhic writings. They were also willing to investigate how much halakha could be adapted in order to take into account the realities of the modern world, when commitment to Jewish law is not absolute, even among those who identify with traditional Jewish values.

An example of this is seen in Messas' experience in Tlemcen. He arrived in the city in 1924 and found that although there was proper shehitah, the kosher butcher shops were all open on the Sabbath. At this time, there wasn't yet a system of mashgihim who would testify to the kashrut of an establishment. Instead, all of Morocco followed the old approach of relying on the personal religious observance of the butchers. This practice was based on the assumption that if you could eat in someone's house without questioning if the food was kosher, you could also purchase from his shop. Yet this principle only applies to observant Jews, and in this case the butchers were all public Sabbath violators. According to Jewish law, these people simply did not have the religious credibility that observant Jews need from their butchers.

At first glance, there appears to be no avoiding the conclusion that since the butchers were not religiously reliable, observant Jews were obligated to give up meat. (As Messas explains, it proved impossible to open a shomer Shabbat store to sell the meat.) Yet was this the only possible conclusion? Messas recognized the many problems that would arise if he declared the butchers not kosher, not least of which would be that many people would simply ignore his declaration, thus destroying any communal standards of kashrut observance. He was also concerned for the honor of his community, which was, as he tells us, being portrayed as a place where everyone ate non-kosher. He therefore offered a radical halakhic justification for the status quo. He argued that since, according to one approach in the medieval authorities, the butchers were not violating any biblical commands which in Temple days would be regarded as a capital offense, they could still be regarded as trustworthy with regard to the meat they prepared and sold. He also offered other reasons why the local butchers, despite being Sabbath violators, could be believed in matters of kashrut. Messas surely knew that he was going out on a limb with this ruling, but under the circumstances he believed that it was the only proper halakhic answer, one that dealt with the reality he was confronted with (Mayim Hayyim 1:143).

While in earlier times it was obvious that one must avoid patronizing non-shomer Shabbat butchers, Messas felt that in his era, when so many were not observant, it was important to find a leniency. This is just one of many examples where Messas shows how dynamic halakhic decision-making can be, and how it can lead to some surprising conclusions. In this particular case it was very hard for those outside of his community to agree with his conclusions. Yet as R. Nathan Neta Leiter wrote to Messas, after expressing his disagreement: "I can find one justification for you, and that is what our Sages said, ‘Don't judge your fellow until you are in his place,' and I do not know the nature of your country" (Tziyun le-Nefesh Hayah, no. 29).
This trend of Messas is seen in other responsa as well. His most famous halakhic ruling is that in an era when women generally go about with uncovered hair, it is no longer regarded as nakedness. As such, it is entirely permissible today for married women not to cover their hair (Otzar ha-Mikhtavim, vol. 3, no. 1884, Mayim Hayyim, vol. 2, Orah Hayyim no. 110). He defended this opinion at length, and a well-known Moroccan halakhist from the subsequent generation, R. Moshe Malka, later chief rabbi of Petah Tikvah, expressed complete agreement with Messas' view (Ve-Heshiv Moshe, nos. 33-34).

The approach of limud zekhut, that is, of finding justification for the practices of the masses, has a long history in Judaism. It is this approach that Messas adopts in his responsa on women uncovering their hair. Since, as he tells us, the wives of pious people do this, there was a great motivation to find it halakhically permissible.

There has always been a tension between the desire to follow the halakha as found in the books, and the competing desire to justify widespread behavior. I am not talking about justifying those who have abandoned Tradition. Rather, I am referring to the practices of the traditional community, which in the Sephardic world encompassed a much wider range of observance in modern times than that of the Ashkenazic world. In much of the Ashkenazic world those who didn't choose to be observant moved over to one of the other denominations. Lacking such denominations in the Sephardic world, the less observant found their place in the traditional community. As such, rabbis like Messas felt a sense of responsibility for these Jews. They would often bend over backwards in attempting to justify their practices, all in order that others not see them, and they not see themselves, as rejecting Jewish tradition. Some would say that Messas bent so much that he even fell backwards. This is what R. Matzliah Mazuz and R. Ovadiah Yosef had in mind when they wrote that one cannot rely on the rulings of Messas (Ish Matzliah, vol. 1, Orah Hayyim, nos. 3, 32; Yabia Omer, vol. 7, Orah Hayyim no. 44:3). Yet R. Moshe Malka states that anyone who speaks this way "will have to render an account." In other words, he has sinned against a learned and righteous man (Ve-Heshiv Moshe, no. 49).

The most radical of Messas' attempts at limud zekhut also relates to Sabbath observance. This time, however, the issue was that people were carrying on the Sabbath. This was not something new, even for otherwise traditional Jews. At that time, most cities in the world did not have an eruv, and plenty of people would carry, especially small items such as keys, as well as push baby carriages. In their minds, this was very different from driving a car or opening their stores.

Rather than regard the carrying as just another sin, Messas attempts an amazing justification, which he tells us was also shared by R. Hayyim Beliah (1832-1919), who had also served as rabbi of Tlemcen. He argued that there is no need for an eruv in order to be able to carry on Shabbat. To say that this is a radical position is an understatement, since the laws of eruv are found in all the standard codes from medieval times until Messas' day, and no one had ever suggested such a thing. In the words of R. Shalom Messas, R. Joseph Messas' younger cousin, this view is nothing less than "bal yeraeh u-val yematze" (Tevuot Shemesh, Orah Hayyim, p. 167).

Yet Messas was not one to be frightened by originality, and was thus willing to offer an incredible justification of the masses' carrying on the Sabbath. He pointed out that our cities do not have the status of a public thoroughfare (reshut ha-rabim), in which carrying is biblically forbidden. Rather, they are to be regarded as a karmelit, whose status is between that of a private dwelling and a public thoroughfare. The rabbis forbid carrying in a karmelit because of fear that one would be led to also carry in a reshut ha-rabim. But today, when we don't have such large areas that qualify as reshut ha-rabim, the decree against carrying in a karmelit is no longer applicable.

While the logic makes good sense, one must agree with R. Shalom Messas that this opinion is without any real basis. After all, beginning in medieval times, many halakhists agreed that there are almost no places that are to be regarded as reshut ha-rabim, yet they all assumed that there is still a prohibition to carry in a karmelit. Yet as a limud zekhut, Messas thought that his approach was compelling. (Prof. Moshe Bar Asher has a copy of Messas' manuscript responsum which he hopes to publish. Messas' arguments can be seen in R. Shalom Messas, Tevuot Shemesh, Orah Hayyim, no. 65).

In another responsum, Messas did not go so far as advocating complete abolishment of the restrictions against carrying on the Sabbath. However, using the same logic we have seen, he declared that there is no longer any need to be concerned with an eruv hatzerot, which allows one to carry in a jointly owned courtyard. The only reason carrying is forbidden in such a courtyard is due to a rabbinic decree designed to prevent people from mistakenly concluding that just as it is permitted to carry from their home into the joint courtyard, so too they can carry into a reshut ha-rabim. It is the eruv hatzerot that changes the status of a joint courtyard to a single domain, allowing one to carry in it. Messas argued that since we no longer have any real reshut ha-rabim, the reason for the decree of an eruv hatzerot is no longer applicable, and thus one is permitted to carry on Shabbat in a joint courtyard (Mayim Hayyim, vol. 2, Orah Hayyim, no. 110).

Another example of a rabbinic decree that he thought was no longer relevant today, and which could therefore be ignored, was that of bishul akum (food cooked by non-Jews). This was a decree in order to prevent assimilation, but (reflecting his time and place) Messas argued that there is very little assimilation, and what there is does not come about because of eating non-Jewish cooking. Based upon the reason given for this decree by the early authorities, he infers that there is no reason for the rabbis to continue to insist upon it. Along the same lines, he defends drinking alcohol which contains wine that had been handled by Muslims. He quotes a responsum by an earlier Moroccan rabbi who even permitted drinking the wine itself-Messas didn't go this far-and who had justified this decision as follows: "There is no unity [of God] like the unity found in Islam, therefore one who forbids them to handle [wine] turns holy into profane by regarding worshippers of God as worshippers of idols, God forbid" (Otzar ha-Mikhtavim, vol. 1, nos. 454, 462, Mayim Hayyim, vol. 2, Yoreh Deah, no. 66).

Normally the rule is that even if the reason for a rabbinic decree is no longer applicable, the decree still stands. This would seem to undermine Messas' approach with regard to non-Jews' cooking and wine. Yet Messas' view was that this principle only applies where there is a fear that the original reason could be relevant in the future. Yet since there is no reason to think that idolatry will once again return to the civilized world, therefore this issue is no different from the talmudic prohibition against drinking from uncovered water. Since there is no longer a fear of poisonous snakes leaving their venom in this water, there is no prohibition to drink from it. Messas cites this example and applies its logic to the cases he deals with (Otzar ha-Mikhtavim, vol. 1, no. 454).

Often Messas' halakhic decisions can find support in earlier sources, but will be incomprehensible to many because of the meta-halakhic concerns that have affected the halakhic process. For example, he permits having a cemetery for all religions if the Jewish graves are kept separate by 4 cubits (Mayim Hayyim, vol. 2, Yoreh Deah, no. 106:1). He was asked if it is permitted to view the dead and to put flowers on the coffin. A posek in Europe would not even consider such questions, because it is obvious that viewing the dead and placing flowers on a coffin are non-Jewish practices. Yet was this always the case? Messas notes that in ancient days the dead were viewed, and the reasons why this was banned are no longer applicable. Therefore, he holds that there is no problem with having an open casket. Similarly, the custom of putting flowers on the coffin is also an ancient Jewish practice, and Messas adds that the flowers help in instilling belief in the resurrection of the dead (Mayim Hayyim, vol. 2, Yoreh Deah, no. 106:3-4).

Based upon what I have written, some readers might conclude that Messas was not a serious halakhist. Yet nothing could be further from the truth. His commitment to the halakhic process in all of its parameters was no different from any of his more "conventional" colleagues, and he was a venerated member of the Moroccan rabbinic elite. It is just that he saw halakha as able to respond to the contemporary reality in a way that others did not. It is true that he came to many lenient, even radical conclusions. Not for naught was he known as Yosef ha-Matir (Joseph the lenient), a play on the expression Yosef ha-Mashbir.[2] Yet the majority of his responsa show nothing out of the ordinary, and are exactly what one would expect from a posek. In fact, in a number of responsa Messas even rules le-humra in cases where other poskim were able to find grounds for leniency. For example, when asked about a mehitsah, he states that it should be constructed so that the men cannot see the women at all (Mayim Hayyim, vol. 2 Orah Hayyim, no. 140).

From our standpoint, the halakhic rulings of Messas are not of much practical significance. As has been the fate of many other poskim, the rabbinic community did not accord him the sort of significance that allows his rulings to exercise much influence after his passing. Yet the life and works of R. Joseph Messas remain of great importance for another reason. He showed that traditional Judaism can encompass a great diversity of thought, and that even in matters of halakha, often thought to be the most "closed" of all Jewish disciplines, there is a myriad of interpretive possibilities to which we can avail ourselves.

[1] See Zvi Zohar, "Kol haOseket beTorah liShmah Zokhah liDvarim Harbeh," Peamim 82 (2000), pp. 150-162.

[2] See Harvey E. Goldberg, "Sephardi Rabbinic Openness in 19th Century Tripoli", in Jack Wertheimer, ed., "Jewish Religious Leadership: Image and Reality" (New York, 2004), p. 699.

In his book, The Perspective of Civilization, Fernand Braudel utilizes a concept that he calls “world-time.” Braudel notes that at any given point in history, all societies are not at the same level of advancement. The leading countries exist in world-time; that is, their level of advancement is correlated to the actual date in history.

However, there also are countries and civilizations which are far behind world-time, whose way of life may be centuries or even millennia behind the advanced societies. While the advanced technological countries exist in world-time, underdeveloped countries lag generations behind; some societies are still living as their ancestors did centuries ago. In short, everyone in the world may be living at the same chronological date, but different societies may be far from each other in terms of world-time.

Braudel's analysis also can be extended to the way people think. Even though people may be alive at the same time, their patterns of thinking may be separated by generations or even centuries. The characteristic of Modern Orthodoxy is that it is modern, that it is correlated to the contemporary world-time. Being part of contemporary world-time, it draws on the teachings of modern scholarship, it is open to modern philosophy and literature, and it relates Jewish law to contemporary world realities.

On the other hand, “non-modern” Orthodoxy does not operate in the present world-time. Its way of thinking and dealing with contemporary reality are pre-modern, generations behind contemporary world-time.

The differences between so-called right-wing Orthodoxy and Modern Orthodoxy are not differences in sincerity or in authentic commitment. Rather, the differences stem from different world views, from living in different world-times.

A Modern Orthodox Jew does not wish to think like a medieval rabbi, even though he wishes to fully understand what the medieval rabbi wrote and believed. The Modern Orthodox Jew wishes to draw on the wisdom of the past, not to be part of the past.

The philosophy of Modern Orthodoxy is not at all new. Rather, it is a basic feature of Jewish thought throughout the centuries. In matters of halakha, for example, it is axiomatic that contemporary authorities are obligated to evaluate halakhic questions from their own immediate perspective, rather than to rely exclusively on the opinions of rabbis of previous generations. The well-known phrase that “Yiftah in his generation is like Shemuel in his generation” (Rosh haShanah 25b) expresses the need to rely on contemporary authorities, even if they are not of the stature of the authorities of previous generations. We are obligated to be “Modern Orthodox,” to recognize present reality and to participate in contemporary world-time.

One of the weaknesses of contemporary Orthodoxy is that it is not “modern” in the sense just discussed. There is a prevailing attitude that teaches us to revere the opinions of the sages of previous generations, and to defer to those contemporary sages who occupy a world-time contemporary with those sages.

Who are the sages of the present world-time, who absorb the contemporary reality, the contemporary ways of thinking and analyzing? To be Modern Orthodox Jews means to accept our limitations, but it also means that we must accept our responsibility to judge according to what our own eyes see, according to our own understanding. It means to have the self-respect to accept that responsibility.

Modern Orthodoxy and pre-Modern Orthodoxy do not engage in meaningful dialogue because they operate in separate world-times. The sages of each generation are influenced by the social and political realities of their time. If many of our sages in the past believed in demons and witches, if they thought that the sun revolved around the earth, or if they assigned inferior status to women and slaves—we can understand that they were part of a world that accepted these notions. We do not show disrespect for them by understanding the context in which they lived and thought. On the contrary, we are able to understand their words better, and thus we may determine how they may or may not be applied to our own contemporary situation. It is not disrespectful to our sages if we disagree with their understanding of physics, psychology, sociology, or politics. On the contrary, it would be foolish not to draw on the advances in these fields that have been made throughout the generations, including those of our own time.

There is no sense in forcing ourselves into an earlier world-time in order to mold our ways of thinking into harmony with modes of thought of sages who lived several hundred or even several thousand years ago.

One of the nagging problems that bothers many thoughtful Orthodox Jews is how Orthodoxy has become increasingly authoritarian and obscurantist—how it has seemed to lock itself into a pre-modern worldview. There is a palpable drive to conformity—in dress, in thought, in behavior. Independent thinking—especially if inspired by “secular” wisdom—is discouraged or forbidden. It is as though people wish to pretend that findings of modern science may be casually dismissed; that women and men of today must think and act as they did in pre-modern times; that Orthodox life demands a strongly negative posture vis a vis modernity.

Thinking Jews should be standing up for a genuine modern Orthodoxy that insists on functioning in contemporary world-time. While facing modernity has its real challenges, not facing modernity will lead Orthodoxy into a cult-like existence-- out of touch with reality, out of touch with the needs of thinking and feeling human beings…out of touch with Torah itself.

Introduction

One of the overarching goals of the Torah is to refine people’s moral character. Many laws and narratives overtly focus on morality, and many others inveigh against the immorality and amorality of paganism. The biblical prophets place consistency between observance of God’s ritual and moral laws at the very heart of their message.

Rabbi Saadyah Gaon insists that God chooses only good things to command. He rejects the position of the medieval Islamic school of Ash‘ariyya, which maintained that whatever God commands is by definition good.^[1]

Similarly, Rambam asserts that every commandment teaches justice and noble qualities, or corrects philosophical errors (Guide 3:27). Rambam cites God’s desire to have all the nations of the world perceive the moral superiority of the Torah:

Observe them faithfully, for that will be proof of your wisdom and discernment to other peoples, who on hearing of all these laws will say, “Surely, that great nation is a wise and discerning people.” For what great nation is there that has a god so close at hand as is the Lord our God whenever we call upon Him? Or what great nation has laws and rules as perfect as all this Teaching that I set before you this day? (Deuteronomy 4:6–8)

Many other Jewish thinkers likewise adopt the position that the Torah promotes the highest moral values.

In recent generations, this position has been augmented with the discovery of many ancient Near Eastern laws and narratives. Leading scholars of the twentieth century demonstrated how the Torah promotes moral values vastly superior to those of the prevailing cultures of that day.^[2] Contemporary writers also have demonstrated the extent to which the Torah’s values have exerted a decisive influence on contemporary Western morality.^[3]

Contemporary readers, though, confront a troubling question. Does the Torah promote the highest morality? Several commandments appear to conflict with modern moral sentiments. Although there might not be unanimity on what contemporary moral sentiments are or should be, we can point to several areas that have attracted serious attention among traditional thinkers.

For example, the Torah permits slavery and polygamy. It permits the blood relatives of one who is killed accidentally to kill the manslayer without trial if he or she fails to reach, or subsequently leaves, a City of Refuge. The Torah commands the total eradication of the Canaanites and Amalekites. Granting that both societies were depraved and evil, and that these laws are not applicable today, God’s stark commandment to kill men, women, and children remains in the Torah. There is a clash between the Torah’s severe prohibition of homosexual relations and the sentiments of many people today. While the sacrificial order of the Temple raises different issues, it also is difficult for many in the modern era to fathom.

Over the past two centuries, Jewish thinkers have engaged in a thoughtful conversation about these and related issues. Some of these discussions have roots in ancient and medieval thought, but these questions have received far more attention in the modern era, driven at least in part by humanistic values.

Rabbi Yaakov Medan, one of the Roshei Yeshiva at Yeshivat Har Etzion, rejects the dangerous fundamentalist approach that we must blindly draw our morality from Tanakh without further inquiry. He also rejects the position of Professor Yeshayahu Leibowitz (1903–1994), who insisted that there is no connection between God and morality, and that Jews simply must obey God’s laws. Rabbi Medan states that there are two basic approaches for those who believe that the divinely revealed Torah is moral: (1) Apologetics, reconciling what we see in the text with our moral sentiments. This approach is dishonest, as it imposes the will of the reader onto the text. (2) Attempting to understand God’s word on its own terms, while simultaneously retaining our own moral sense. God is beyond our comprehension, but we never stop struggling with these complex moral issues.^[4]

In this essay, I adopt the latter view of Rabbi Medan. Although it is impossible to be objective, it appears that the evidence supports the notion of an evolutionary morality regarding certain tolerated practices. At the same time, the Torah’s mandatory commandments may reflect realities of its ancient setting, but remain eternally binding as God’s word. In the latter case, there is room for evolving interpretations of the law.

Ancient and Medieval Precedents

Talmud

            The Torah gives laws pertaining to a “beautiful captive” (yefat to’ar) taken in battle (Deuteronomy 21:10–14). Commentators debate the plain meaning of the biblical text. Some maintain that an Israelite soldier may have one-time sexual relations with her immediately at wartime (Rambam, Hilkhot Melakhim 8:2–7, Abarbanel), while others insist that the soldier first must wait 30 days and then decide if he still wants to marry her (Ibn Ezra, Ramban). The Talmud supports the former view, and therefore the one-time sexual union with the captive is permissible in halakhah. Why would God allow this act, instead of prohibiting it outright? The Talmud answers:

With respect to the first intercourse there is universal agreement that it is permitted, since the Torah only provided for man’s evil passions. (Kiddushin 21b)

In this approach, God would have outlawed this sexual union, but knew that many ancient soldiers would violate the prohibition. Therefore, God chose the lesser of the two evils and permitted but discouraged the act by focusing on the humanity and humiliation of the captive. God thus legislated for a flawed human reality, provided a realistic law and circumscribed it, and simultaneously taught the ideal value and mode of conduct, that no soldier ever should perform this act.

Rambam

Rambam maintains that God revealed many laws to wean the Israelites away from pagan culture to the service of God (Guide 3:29). Having spent so long in pagan Egypt, the Israelites had a strong predilection to offer animal sacrifices. God recognized this propensity and therefore instituted animal sacrifices. God further prescribed specific boundaries for this form of worship by insisting that animals could be sacrificed only in authorized shrines such as the Tabernacle or later the Temple. Prayer and contemplation, which are higher forms of serving God, thereby were encouraged as substitutes for animal sacrifices (Guide 3:32).

Ramban (on Leviticus 1:9) attacks Rambam on this assertion: “Behold, these words are worthless; they make a big breach, raise big questions, and pollute the table of God.” He maintains that the Temple, sacrifices, and related laws are ideal means of communing with God, and not concessions to the ancient Israelites’ historical setting. ^[5]

In addition, Rambam’s view raised the fundamental question: Now that we have become more sophisticated, what would be the relevance of these ritual commandments in our times? Living in the nineteenth century, Rabbi Samson Raphael Hirsch lamented the terrible misapplication of Rambam’s thought among assimilating German Jews. Many were using Rambam’s logic in the Guide as precedent for abandoning other ritual commandments as well.^[6] Rambam himself was concerned with the possibility of the masses’ losing respect for many commandments if their reasons were revealed (Guide 3:26).^[7]

Elsewhere in his writings, Rambam stresses the value of animal sacrifices, considering them among the commandments that we cannot fully understand (Hebrew hukkim, Hilkhot Me’ilah 8:8). He maintains that in the messianic future, sacrifices will be restored with the rebuilding of the Temple (Hilkhot Melakhim 11:1). More broadly, Rambam maintains that all of the Torah’s commandments are eternal, including into the messianic era (ninth principle of faith; cf. Guide 2:39; 3:34).^[8] Rambam’s placing sacrifices in their historical setting, then, never renders them obsolete as laws.

To summarize, the Talmud discusses an instance where the Torah tolerates behavior as a concession to human weakness. Instead of outlawing the undesirable behavior, it circumscribes the action and makes it clear that one ideally should not do it at all. In Rambam’s explanation of the rationale behind the Temple and sacrifices, the eternal observance of the commandments is absolute regardless of the time-bound aspect of the Torah responding to its ancient pagan setting. God developed an evolutionary educational program to teach Israel certain religious ideals over time.

Regarding conventions that the Torah permits, one may pit the Torah’s ideal values against ancient social reality and explain that the Torah created an evolutionary program with the goal of eliminating certain practices that were too difficult to abolish at the time of God’s revelation of the Torah to Moses. With mandatory commandments, we may change our interpretations, but not the commandments themselves.

We now turn to a few examples where modern thinkers interpret certain tolerated practices of the Torah as parts of the Torah’s evolutionary educational program for Israel and for humanity.

Less-than-Ideal Actions Tolerated by the Torah

Polygamy

            The Torah permits polygamy; yet one may argue that this permission was a concession to ancient reality and is distant from the Torah’s ideal of monogamous relationships.

            The Torah introduces the concept of a loving monogamous marriage at the very beginning of human existence:

And the Lord God fashioned the rib that He had taken from the man into a woman; and He brought her to the man. Then the man said, “This one at last is bone of my bones and flesh of my flesh. This one shall be called Woman, for from man was she taken.” Hence a man leaves his father and mother and clings to his wife, so that they become one flesh. (Genesis 2:22–24)

Biblical narratives that involve polygamy such as Abraham-Sarah-Hagar, Jacob-Rachel-Leah, and Elkanah-Hannah-Peninah invariably yield tension in the household. Tellingly, the biblical word for wife-in-law is tzarah, tormentor (I Samuel 1:6; Leviticus 18:18).

            Given the Torah’s ideal portrayal of a monogamous marriage in Eden, its negative portrayal of polygamy, and the fact that there is no mandatory commandment for a man to marry more than one wife, we may consider polygamy an institution that the Torah tolerated as a concession to ancient reality. A monogamous society is the Torah’s ideal from its inception. The Torah set out its ideal values so that one day, they could be realized and polygamy would be abolished.

Blood Vengeance

            The Torah permits a close relative to kill an accidental manslayer without trial. The manslayer must escape to the City of Refuge and remain inside that city for safety (Numbers 35:9–34; Deuteronomy 19:1–13).

            The nineteenth-century commentator, Rabbi Samuel David Luzzatto (Shadal on Numbers 35:12) asks: Why does the Torah not simply outlaw vigilante justice and leave the matter to the courts? He suggests that the Torah presents a weaning process. In the ancient world, people would have felt like they did not love their deceased relative if they would refrain from killing the accidental manslayer. Many therefore would violate the Torah and kill the manslayer anyway. Acknowledging that reality, the Torah circumscribes blood vengeance by protecting the accidental manslayer and emphasizing his or her innocent blood. Ideally, the relatives should not engage in blood vengeance.

            Professor Nehama Leibowitz (1905–1997) agrees with Shadal, and adds that the Torah succeeded in its evolutionary educational program. The talmudic Sages refer to going to the Cities of Refuge as “exile” (Mishnah Makkot 2:1), replacing the Torah’s usage of the term “to flee” (Exodus 21:13; Numbers 35:15; Deuteronomy 19:5). Professor Leibowitz suggests that this change in terminology stems from the fact that the Torah eradicated the urge for blood vengeance. No longer did accidental manslayers “flee” the blood relatives out of fear being killed, but instead went into “exile” as a consequence of the Torah’s legislation.^[9]

Slavery

            The Torah’s legislation regarding slavery is vastly more humane than any other form of slavery in the ancient world.^[10] And yet, why does the Torah permit slavery at all? Several contemporary rabbinic thinkers, including Rabbis Norman Lamm and Nahum Rabinovitch, discuss this phenomenon and reach similar conclusions.^[11] The following is a brief amalgam of their views.

            The ultimate goal of the Torah is for humanity to realize that slavery is wrong, and should be abolished. From Creation, the Torah teaches that all people are equal. All people derive from the same ancestry, and are created in God’s image. However, humanity went astray. Men subjugated one another and distinguished between slaves and masters. When God revealed the Torah to Moses, the world economy depended on slavery, so the Torah could not realistically outlaw slavery. Rather, it taught society to advance step by step, until the goal of the elimination of slavery could be fully achieved. 

            Many laws remind Israel to care for the downtrodden of society, since the Israelites were slaves in Egypt. Shabbat gives a taste of the ideal world, where slaves rest also. While tolerating slavery, the Torah revolutionized the institution. It set a floor that prevented descent to the vile abuses practiced by other nations. Its ultimate goal is that over time, people should question why we have slaves at all. The abolition of slavery in most of the world today is a realization of the ideals taught by the Torah.

            To summarize, God responded to a flawed human reality by revealing laws that outlawed many ancient practices immediately, while tolerating and modifying/restricting other undesirable practices with the goal of eliminating them over time. In an ideal world, God would not have permitted soldiers to take beautiful captives, polygamy, blood vengeance, or slavery. God tolerated these practices as concessions to ancient reality, and simultaneously taught ideal morality so that Israel and humanity could evolve and abolish these practices over time. The fact that many people today consider these practices morally unacceptable is a tribute to the success of the Torah’s long term educational vision of ideal divine law.

Conflicts between Mandatory Commandments and Contemporary Moral Sentiments

Sacrifices and Other Temple Rituals

            As discussed above, Rambam viewed the Temple and its sacrifices as a necessary aspect of God’s evolutionary approach to reaching the ideal society. Ancient Israelites were unable to receive a religious system devoid of a Temple and its sacrificial rites. Yet, Rambam also wrote that the Temple will be rebuilt and sacrifices restored in the messianic era (Hilkhot Melakhim 11:1). This position is no different from Rambam’s suggestion that the prohibition of cooking a kid in its mother’s milk also served to wean Israel away from pagan practices (Guide 3:48), yet those laws are fully applicable for all time.

            Beyond Rambam’s general view on the eternality of the Torah’s commandments, Professor Menachem Kellner offers additional reasons why the restoration of sacrifices is critical for Rambam’s position on the messianic era. Rambam’s messianism is non-supernatural, and idolatry is an ever-present threat even in the messianic era. Therefore, sacrifices are necessary to continue to wean humanity away from the immorality and foolishness of paganism. Additionally, the messianic era is restorative, returning all institutions from the time of David and Solomon to their former glory. The reinstitution of the Temple, sacrifices, and the Sabbatical and Jubilee years are central to that vision.^[12]

            Professor Micah Goodman adds that Rambam maintains that Abraham’s religion without commandments failed to preserve his philosophical monotheism for the long term among his descendants (Hilkhot Avodat Kokhavim 1:1–3). Absent rituals, God’s ideal religious values cannot endure in society. Rituals that uphold group identity and reinforce its core principles are required for long-term survival and religious flourishing (cf. Guide 2:31).^[13]

            Despite what appears to be Rambam’s position, some extend Rambam’s approach and conclude that there will not be sacrifice in the messianic future. One contemporary thinker who has expressed his struggle from different perspectives is Rabbi Nathan Lopes Cardozo. In one article, he concludes that were God to reveal the Torah today, it would not include laws of slavery or sacrifices:

[N]ot only would the laws concerning sacrifices and slavery be totally abolished once the people outgrew the need for them, but they would actually not have appeared in the biblical text had it been revealed at a much later stage in Jewish history.^[14]

Rabbi Cardozo makes no distinction between the Torah’s toleration of slavery, which is not commanded; and sacrifices, which are mandatory commandments. He does not address Rambam’s other writings that insist on the eternality of all of the Torah’s commandments or that the sacrificial order will be restored in the messianic era. Rabbi Cardozo’s leap from tolerated practices to mandatory commandments appears to go beyond the evidence in the Torah and in Rambam’s writings.

            In a different essay,^[15] Rabbi Cardozo restates his position that the Torah contains concessions to human weakness, and sets out an evolutionary road toward higher forms of worship. What of Rambam’s ruling that the sacrifices will be restored in the messianic era? Rabbi Cardozo submits, “I believe he thus expresses his doubt that the ought-to-be of Judaism will ever become a reality in this world.”^[16] This position resonates with the view of Professor Kellner stated above, that Rambam maintains that the idolatrous urge will remain even in the messianic era so sacrifices will be necessary to counter that urge.

            To summarize, Rambam maintains that the laws of the Torah are eternal, and that the Temple and sacrifices will be restored in the messianic future. The law remains unchanged, but the religious meaning one ascribes to the commandments can change. When the messianic era arrives, we will be in a better position to judge what actually will happen.^[17]

Homosexuality

            A similar approach can apply to the Torah’s unequivocal prohibition against male homosexual relations. The prohibition is unchangeable, but there has been a meaningful evolution within rabbinic responses in certain sectors of the contemporary Orthodox community. While there remains a wide range of opinion and approach within the Orthodox rabbinate and community, it is encouraging to see these more inclusive positions.^[18]

War Against Canaan

            Granting that the Canaanites and Amalekites were depraved and evil, the Torah’s command to exterminate their populations, men, women, and children, remains stark. A full discussion of this issue goes beyond the parameters of this essay. It is noteworthy that of our medieval commentators, only Rabbenu Bahya (14th century) raised the moral question of the Torah’s command to kill even the children. His answers likely would not satisfy modern sentiments: It was a divine decree; once God decrees their doom they are considered as dead; they no doubt will grow up to be like their parents. Like amputating a limb to save the body, the elimination of Canaanites and Amalekites was good for humanity.^[19]

It is not until the 20th century that rabbinic thinkers began to address this moral question more systematically.^[20]  Rabbi Abraham Isaac Kook (1865–1935) maintains that this commandment was restricted to the biblical period, and reflects ancient conventions of warfare. If Israel did not eliminate the Canaanites and Amalekites, they would regroup and attack Israel. The only way to stop enemies in an immoral world is to subdue them completely. As the moral expectations of the world regarding war improve, Israel must follow the highest moral standards and not apply the rules of the war against Canaanites and Amalekites (Iggerot HaRei’ah 1:89).

Rabbi Kook thus understands the parameters of the Torah’s commandment as God’s concession to the moral limitations and reality of the ancient world. The Oral Law enables later generations to improve moral standards, rather than remaining fixated on the ancient standards of war and applying them in later periods.^[21]

Rambam vs. Abarbanel on Monarchy

We have discussed the distinction between less-than-ideal non-mandatory practices that the Torah tolerated versus commandments where interpretations change while the law is eternal. One debate that proves this rule is the disagreement between Rambam and Abarbanel regarding monarchy (Deuteronomy 17:14–20).

Rambam considers monarchy to be a positive commandment (Hilkhot Melakhim 1:1–2). Abarbanel rejects Rambam’s view based on several textual considerations and maintains that although monarchy is permitted if requested, it is viewed negatively by the Torah. Abarbanel likens monarchy to the laws of the “beautiful captive” (Deuteronomy 21:10–14) where the Torah tolerates certain less-than-ideal actions to forestall worse eventualities. He invokes the talmudic principle discussed earlier in this essay, “the Torah states this in consideration of the evil inclination” (Kiddushin 21b).^[22]

Monarchy reflected the prevalent form of government in Israel’s ancient setting. The Torah and the people in Samuel’s time explicitly state that Israel wanted a king “as do all the nations” (Deuteronomy 17:14; I Samuel 8:5). For Rambam, however, the Torah commands this form of government so it transcends that ancient setting and is mandatory whenever it is politically feasible. For Abarbanel, monarchy is a tolerated negative practice until such time as people develop alternative forms of government.^[23]

Conclusion

            The prophets and ancient and medieval rabbinic thinkers recognized the centrality of ethics in the Torah’s vision and law. In the modern era, many traditional thinkers perceived a growing gap between the morality of some of the Torah’s laws and the ideal morals of Western humanism.

            The talmudic analysis of the beautiful captive (Kiddushin 21b) provides the precedent for later thinkers to conclude that certain elements in the Torah tolerate a less-than-ideal reality as a concession to ancient mores. Rambam’s discussion of the Temple and sacrifices provides the precedent for later thinkers to distinguish between practices that the Torah tolerates as a concession, while simultaneously providing its ideal vision so that over time the Jewish people and all humanity can move closer to the ideal morality of the Torah.

            For matters that the Torah tolerates but does not command, such as polygamy, blood vengeance, and slavery, one may ascertain a gap between the Torah’s tolerance and its ideal to abolish these practices. For mandatory commandments, such as a Temple and sacrifices and the prohibition against male homosexual relations, the laws are eternal but there remains room for different interpretations of these commandments so that our attitudes and religious-moral experience can evolve with time.

            This essay outlines several areas that have drawn the attention of modern thinkers. These discussions are a healthy and vital aspect of our relationship with God and our desire to live in accordance with the Torah’s ideal moral values.

            The world has a long way to go to realize the messianic ideal. We pray for a growing embodiment of the Torah’s ideals: A loving faithful marriage as the central bond for raising a family and transmitting religious values; a universal commitment to law and justice; a realization that all human beings are created in God’s image, with no racism, sexism, or other forms of discrimination; a universal desire to connect to God through living a life of holiness; and a world where all evil is eliminated, and humanity serves God and lives ideal moral lives.

Notes