National Scholar Updates

Sir Herbert Samuel, later Lord Samuel of Mount Carmel and Toxteth, was the first Jewish governor of Palestine since the fall of the Bar Kokhba regime some 1800 years earlier. In many respects, however, it was Nehemiah, rather than Bar Kokhba, who was Samuel’s ancient precursor. Bar Kokhba led an independent Jewish state, however short-lived it might have been. Nehemiah, on the other hand, was, like Samuel, a senior official in the administration of a major superpower, appointed by its ruler to govern the mixed population of one of its outlying possessions.

Nehemiah served as cupbearer to King Artaxerxes I, the absolute ruler of the Persian Empire. That he could taste non-kosher wine was a result of his official position; so, at least, was how the Rabbis of the Talmud justified what appeared to be a violation of Jewish law.[1] The cupbearer was a key advisor to the king; he was one of the most powerful men in the Empire. As a Jew, Nehemiah was especially valuable to Artaxerxes, since he posed no threat to the king’s person. Xerxes, the king’s father, had been murdered by Artabanus, the commander of the royal bodyguard. Artaxerxes himself had survived an assassination attempt by two other bodyguards, who, according to the Book of Esther, were Bigtan and Teresh. The Talmud asserts that the plot involved poisoning Xerxes’s food; the Aramaic Targum has them poisoning Esther’s wine and then stabbing Xerxes with a sword.[2] Nehemiah, the outsider with no pretensions to the throne, could be trusted not to adulterate the royal drink. Moreover, Nehemiah, precisely because he was not a Persian, could stand aloof from the intrigues that convulsed the Persian royal court, as they did all oriental despotisms. In this regard as well, it was easier for Nehemiah to win the king’s trust.

That a Jew could rise so high in the Persian Court was not as surprising as it might seem. The substantial Jewish community that descended from the exile to Babylonia had assimilated well into the Persian economy, becoming land holders and financiers, as well as tenant farmers. They also served in the Persian military, including its navy.[3] Jews also held senior positions in the Persian bureaucracy; one such individual was a Jew named Asaph, keeper of the king’s forests, a not unimportant post in those times. Presumably, those Jews like Nehemiah who did function as Persian officials needed to possess a degree of secular knowledge, at a minimum, the ability to speak Persian, the language of the royal court.

Despite, or perhaps because of, its having adapted so comfortably to the Persian environment, the Jewish community suffered from a trend toward intermarriage, foreshadowing a situation that continues to plague contemporary Jewry. Perhaps as a result of his awareness of the deleterious consequences of intermarriage in the Persian/Babylonian Jewish community, Nehemiah was strongly opposed to intermarriage. His opposition would manifest itself when he became Governor of Judah. 

Nehemiah appears to have been the scion of a prominent family, though in his eponymous Biblical book he only relates his father’s name. Unlike Ezra and many other Biblical figures, he does not give the names of his earlier forbears. The Midrash of the Ten Kings relates that Nehemiah was descended from the Davidic line of kings that ruled over ancient Judah. Another Talmudic assertion identifies him as the son of King Jeconiah, whom Nebuchadnezzar had exiled to Babylon. Various kabbalistic traditions claim that Nehemiah was actually the reincarnation of the child that had been born out of wedlock to David and Bathsheba; or that he was the reincarnation of Rabban Gamaliel, leader of the Sanhedrin, prince of Judah, and himself a scion of the kings of Judah. Whatever Nehemiah’s connection to the royal Judean house, it is clear that Nehemiah’s family was a prominent one. His father, Hakhaliah, appears to have been of Egyptian-Jewish background who together with his family moved to Jerusalem, where he and his wife were buried.  Nehemiah’s relative Hanani, whom he termed his brother, led the delegation to Susa from Judah (as the sub-province of the Persian province of Abar Nahara was called) that, upon Nehemiah’s request for news of the city and the Jewish community, relayed to him the sorry state of Jerusalem. Its walls had been breached; its gates had been burnt; and its residents lived in terror of the indigenous non-Jewish peoples, from whom they were subjected to frequent attacks.

The political context in which Herbert Samuel served his government was obviously very different from that of the Persian Court. Samuel was a minister in a democratic government, not in an absolute monarchy, where the shifting whims of the king often meant life or death for his courtiers. Again unlike Nehemiah, who served one king and had no true peers, Samuel interfaced with two Liberal Prime Ministers, Herbert H. Asquith, in whose cabinet he served with other ministers, and David Lloyd George, upon whose ascent to the prime ministership Samuel returned to the Parliamentary back benches. Even when serving in cabinet, Samuel’s relationship with Herbert Asquith was nothing like that of Nehemiah to Artaxerxes, whose confidant he was; Asquith certainly thought sufficiently highly of Samuel to appoint him Home Secretary, but he rose no further.

Herbert Louis Samuel’s background was neither a secret nor mystical. His family was among the most prominent in the Anglo-Jewish community. His father was a wealthy banker, who partnered with Samuel’s more famous uncle, Lord Swaythling, the one-time Liberal Member of Parliament known as Samuel Montagu, who had earlier changed his name from Montagu Samuel. Herbert’s brother, Sir Stuart Samuel, was also a prominent Liberal politician, who succeeded Swaythling as M.P. for Whitechapel and in 1917 was elected chairman of the Board of Deputies of British Jews.

The prominence of Samuel’s family was an indicator of how far the Jews of Britain had risen in the preceding hundred years. Having returned to England in 1656 to live openly as Jews, members of the community soon became prominent in British economic circles. Jews continued to suffer from a variety of discriminatory restrictions until the mid-nineteenth century, however, when a series of legislative acts enabled them to serve in Parliament, hold Cabinet positions, including Lord Chancellor, and attend the “ancient universities” of Oxford, Cambridge and Durham. Thus, just as the prosperous Jewish community served as a backdrop to Nehemiah’s position at court, so too did the increasingly wealthy and influential Jewish community bolster the prospects and status of Herbert Samuel and other Jews, who like him, had entered British politics. 

Samuel was not a particularly religious man, as Nehemiah certainly was. Nevertheless, Samuel was a traditional Jew. He kept a kosher home, maintained membership in his Orthodox synagogue, which his wife, Beatrice, and their children attended every Shabbat  (he attended on major festivals), and gave his children a religious upbringing.  Importantly, Samuel also shared Nehemiah’s abhorrence of intermarriage, considering a Jew who married out of his faith as a “renegade.”  When some of his grandchildren married non-Jews, he broke off contact with them until shortly before his passing.[4]

Most important, however, was the concern that Nehemiah and Herbert Samuel shared in common for their Jewish brethren, especially for those in Palestine. Both men, when serving as governors, also faced challenges not only from the majority indigenous peoples, but from elements in the Jewish community itself.

Finally, both men did not receive anything like the recognition they deserved for their efforts to better the lives of the Jewish people. Nehemiah was criticized in the Talmud for arrogating too much credit to himself.[5] For more than a millennium after it was written, his memoir was not treated as a separate book of the Tanach, the Biblical canon. For his part, Samuel to this day is seen by many of his co-religionists as a Jew who did offer sufficiently strong support for Zionist interests once he became Governor of Palestine. Only in the past few decades have historians reconsidered his position and recognize him for what he was:  a strong advocate for a Jewish National Home in Palestine, and ultimately for a Jewish state there. Indeed, as world Jewry commemorates the centenary of the 1917 Balfour Declaration, which codified the principle of a Jewish National Home, Samuel’s role in the formulation of that document should, like Nehemiah and his memoir, receive recognition that is long overdue. 

Nehemiah at Court

Nehemiah was deeply distressed when he was told about the state of affairs in Judah in general and Jerusalem in particular. He felt keenly for the community and for the country, even though he had chosen not to make Aliyah. Perhaps he had not done so because, like many wealthy and prominent Jews of later generations, he felt that he could be of more assistance to his brethren by remaining where he was. After all, Persia was the regional hegemon, and Judah was under its control.

Indeed, when Nehemiah inquired after what he termed “the remnant who survived the captivity,”[6] he was specifically referring to the lower economic and social classes of pre-exilic Judean society that the Babylonians had not even bothered to expel. That he did so was an indication of Nehemiah’s concern for those Jews less fortunate than himself, and his determination to better their lot. 

Nehemiah did not immediately petition Artaxerxes, although the king was known to have what Plutarch later described as “a gentle and noble spirit.”[7] Still Nehemiah recognized that timing was everything, and that if he caught the absolute monarch at a bad moment, not only would his petition be rejected, but his life could be in danger. Esther had recognized the same risk when she had responded to Mordecai’s request that she intercede with the king by pointing out that “if any person, man or woman, enters the king’s court without having been summoned, there is but one law for him—that he be put to death.”[8] Accordingly, Nehemiah spent several months in prayer and contemplation, and perhaps suffered from depression as well.

When Nehemiah finally did seek the king’s permission to travel to Judah, he did so in response to the latter’s concern that Nehemiah seemed out of sorts. But he also seized upon the fact that it was Persian New year, a time when the king was likely to grant requests put to him. To strengthen his appeal, Nehemiah enlisted the support of the queen, and, recognizing the Middle Eastern respect for ancestral tombs, astutely formulated his request in terms of his concern for the condition of his forebears’ graves.

Nehemiah did not mention Jerusalem at all. He was concerned that Artaxerxes, having recently put down a revolt by a local satrap (in which Jews might have participated), would not have been accepting of the notion of an emergent Jewish political entity. Persia tolerated other religions, including Judaism and its Temple in Jerusalem. Artaxerxes himself had authorized Ezra, some thirteen years earlier, to lead what was clearly a religious mission to Jerusalem. Nationalism was entirely different matter, however, and anything that smacked of establishing Jerusalem as the capital of an independent state was certain to provoke a hostile reaction from the king. 

In the event, Artaxerxes granted Nehemiah’s request for a leave of absence, after the latter uttered yet another prayer, this time a silent one. Seizing the moment, Nehemiah pressed his advantage and also requested permission to rebuild the city, again couching his request in terms of “the city of the graveyard of my ancestors.”[9] In so doing, Nehemiah no longer was merely advocating a policy; he was seeking to implement it himself.

Moreover, Nehemiah was fully aware of the fact that his request was consistent with Persian strategic policy. Having endured multiple revolts in Egypt, and faced with an ongoing threat from Greece, Persia’s superpower rival, Artaxerxes had begun to fortify towns in the western part of his empire. A fortified Jerusalem, under the guidance of his loyal cupbearer, dovetailed well with the king’s objectives in that part of his empire.

Artaxerxes therefore acceded to Nehemiah’s request. Not only did he issue him a laissez passer through the empire, but he ordered Asaph, the Jewish keeper of his forest, to provide Nehemiah with whatever supplies of wood that the latter required. In addition, and unlike Ezra, Nehemiah was accompanied by an armed guard, signifying that his entry into Judah was as a Persian official, not as a Jewish religious leader.

Nehemiah’s approach to the king, the nature of his proposal, and his official appointment, all foreshadowed to a great extent what Sir Herbert Samuel attempted to do more than two millennia later. And, like Nehemiah, Samuel’s efforts met with success, at least until he actually took office as Governor of Palestine.

Samuel in Cabinet

On October 28, 1914, Turkey bombed Russia’s Black Sea ports, thereby formally entering World War I. Less than two weeks later, on November 9th, Prime Minister Asquith announced that “the Turkish Empire has committed suicide.”[10] Later that month, Herbert Samuel, then serving in the cabinet as President of the Local Government Board, proposed to both Chancellor of the Exchequer David Lloyd George and Sir Edward Grey, the Foreign Secretary, the “establishment of as Jewish State in Palestine under Jewish protection.[11] The following month Samuel met with Chaim Weitzmann, at his request. Weitzmann came away convinced that Samuel was a supporter of the Zionist cause. Both Samuel’s proposal, and the meeting with Weitzmann marked a sea-change for Samuel, who had not been a Zionist, took little interest in Zionist matters, and came from a Jewish milieu that was at best apathetic and at worst hostile to the Zionist cause.[12]

In January 1915, anticipating the collapse of the Ottoman Empire, Samuel circulated two Cabinet memoranda urging British sponsorship of a Jewish entity in Palestine. He argued in his second memorandum entitled “The Future of Palestine” that “the course of events opens a prospect of change, at the end of the war, in the status of Palestine…A feeling is spreading that now, at last, some advance may be made…for the restoration of the Jews to the land to which they are attached by ties almost as ancient as history itself.”[13]

Samuel backtracked from his support of a sovereign Jewish state in Palestine; his proposal was now far more modest. He felt that the fact that the Jewish population was but a sixth of the land’s Arab inhabitants rendered “the time…not ripe for the establishment thereof an independent autonomous Jewish state.” Nevertheless, he “hoped…that Jewish immigration, carefully regulated, would be given preference so that in the course of time the Jewish people, grown into a majority and settled in the land, may be conceded a degree of self-government as the conditions of that day may justify.”

Finally, whereas Nehemiah implicitly recognized the strategic importance of Jerusalem to Artaxerxes and Persian security, Samuel was explicit about the benefits that control of Palestine, with support for a growing Jewish population, would confer on British strategic interests. Clearly assuming that the allies would defeat Turkey, and that Britain could seek to control Palestine, Samuel asserted that “from the standpoint of British interests there are several arguments for this policy.” These included “enabl[ing] England to fulfill in yet another sphere her historic part of civilizer of backward countries;….add[ing]…lustre…to the British Crown; ….obtain[ing] the compensations, which public opinion will demand, in Mesopotamia and Palestine;” and providing a buffer against the French in the Middle East.

Lastly, Samuel asserted that implementation of his proposal  would “win for England the lasting gratitude of the Jews throughout the world…In the United States…they would form the body of opinion whose bias…would be favourable to the British Empire.”[14] Indeed, at the time Samuel wrote his memorandum, British officials considered American Jewry to be pro-German, in no small part because the Central Powers were fighting anti-Semitic Russia.

Samuel’s memoranda, and his subsequent lobbying, whether out of Cabinet beginning in May 1915, during his relatively brief tenure as Chancellor of the Duchy of Lancaster later that year and then Home Secretary in 1916, or once again out of the Cabinet, may have helped sway the British Government. To the extent that his efforts met with success, however, it was his strategic arguments, rather than support for the Zionist cause, that resonated with Sir Mark Sykes, Britain’s Middle East negotiator—and co-author of the Sykes-Picot Treaty—and other British decision-makers. Britain feared a French presence abutting Egypt and the strategic Suez Canal; control of Palestine obviated that possibility.[15]  If support for a Jewish National Home, and the sympathy such a position generated among world Jewry, buttressed the British case in negotiations with France, so much the better.

Samuel’s support for the Zionist project did play a major role in the years 1915-20 in another respect, however. It was critical in gaining support for the cause among the Anglo-Jewish leadership, some of whom, like Claude Montefiore, President of the Anglo-Jewish Association, and Samuel’s nephew, Edwin Montagu, himself a member of the Cabinet under both Asquith and Lloyd George, were bitterly anti-Zionist. [16] Moreover, when the War Cabinet elected to consult Zionist leaders in the run-up to a decision as to whether to issue what became known as the Balfour Declaration, Samuel, now no longer in the Cabinet but clearly still influential, joined Weitzmann, Lord Rothschild, Chief Rabbi J.H. Hertz, and Nahum Sokolow in appearing before the cabinet to make the case for a declaration.

In many ways, the plea that the five men put forward was as crucial for the Jewish people in its time as Nehemiah’s request to Artaxerxes so many years before. And, like Nehemiah’s request, the Zionist entreaty met with success. On October 31, 1917, the War Cabinet decided to issue a declaration regarding the future status of Palestine; two days later, Foreign Secretary Arthur James Balfour relayed its contents to Baron Rothschild, for transmission to the Zionist Federation of Great Britain and Ireland.

Governing Judah; Governing Palestine

Once Nehemiah and Herbert Samuel assumed their respective roles as governor of the territory that the Persians called Judah and the British Palestine, the parallels between them faded away. For Nehemiah, providing for the military, economic, and social security of the small, weak Jewish community was paramount. For Samuel, it was the need to propitiate the Arab majority even as he supported the aspirations of the Jewish minority.

Nehemiah gave top priority to rebuilding and restoring the walls and gates of Jerusalem. He organized a militia to defend the city during its restoration, and subsequently maintained a force to deter any possible attacks from the indigenous peoples—Samaritans, Arabs and others—who rightly viewed Nehemiah and his Jewish supporters as a threat to their overlordship of the sub-satrapy of Judah. He followed these efforts by drawing up and implementing a plan to populate the near-empty city with Jews, based on a census that he organized.

The census revealed that there were many returnees who were undocumented; their names did not appear on the genealogical register. A significant proportion of these people claimed to be priests, yet their inability to substantiate their claim rendered them susceptible to exclusion from the Jewish community. In a move that should serve as a lesson for today, and that reflected both his political realism and his desire not to undermine communal unity, Nehemiah did not disqualify these families from the priesthood. Instead he barred them from partaking of sacrifices for the foreseeable future. He did not, however, prohibit them from eating teruma, the grain allotment reserved for priests, which could be eaten outside the Temple and, for that matter, outside Jerusalem. In effect, therefore, Nehemiah treated undocumented priests as priests with blemishes, who were permitted to eat teruma, whose pedigree was not challenged, but who could not partake of the sacrifices. It was a brilliant solution to a potentially explosive political problem.

Having dealt with repopulating the city, and with associated genealogical issues, Nehemiah undertook to inject the community with a new degree of religious fervor. He conducted special services to celebrate holidays, notably Sukkot and its successor holiday, Shemini Atzeret, that despite the presence of the Temple  had not been properly commemorated “since the days of Joshua bin Nun.”[17] Together with Ezra he led the community in two special days of prayer and fasting immediately after it had celebrated Shemini Atzeret.

Nehemiah was a proponent of economic and social reform within the Jewish community. He chastised the rich for exploiting the hardships of the poor, forcing the latter to sell their fields and, in the worst case, their children as slaves. He entertained, rather than dismissed, the protests of the community’s women, many of whom had been left to look after farms while their husbands were working to restore the city walls and gates or serving in the militia. Indeed, Nehemiah went even further; he had no issue with women working alongside the men in the completing the city’s restoration.

Nehemiah faced opposition from within the community as well as without. Leaders such as Eliashib the High Priest and Tobiah, a Jew who was an Ammonite official, had made common cause with the Sanballat and other indigenous leaders who resented Nehemiah as an interloper seeking to upend the ruling order. Nehemiah also had to cope with accusations both in Judah and at the Persian royal court that he was seeking to establish an independent Jewish polity with himself as king. Worse still, he was the target of assassination plots, which both his non-Jewish and Jewish opponents sought to carry out.

By means of shrewd political leadership, Nehemiah was able to outsmart his enemies. He elevated the status of the Levites, establishing them as a political counterweight to the priests, many of whom, like the High Priest Eliashib, were allied to the non-Jewish elites. His generous treatment of undocumented priests assured him of support from that segment of the population. His economic and social reforms won him the allegiance of the lower classes. Finally, he appointed his allies and kinsmen to govern Jerusalem's districts and to command the militia, the core of which was the force that had accompanied him from Persia.

At the same time, Nehemiah revived the morale of what had been a downtrodden, depressed and vulnerable Jewish community. By choreographing major quasi-religious ceremonies, one of which was led by Ezra, he stimulated both the people’s religious conscience and their long-dormant nationalist emotions. Moreover, by overseeing, and probably drafting, the first-ever Jewish constitution, perhaps the first such document anywhere, he codified the community's national and religious character.

The Amana, as it was called, bore the signatures of the polity’s leading citizens, not just its religious elite. The Amana was a secular document that nevertheless bound its signatories to a series of religious commitments. It sought to prevent intermarriage in the younger generation—Nehemiah deliberately did not attempt to break up mixed marriages that already existed. It adjured the community to avoid conducting business on Shabbat. It called for rigorous enforcement of the laws of Shemitta, the final year of the seven year cycle when the land was to lie fallow and debts were forgiven. It also dealt with non-ritualistic, practical issues, such as managing contributions for both theTemple ritual and its operations and maintenance. The Amana thereby reflected Nehemiah’s own predilection for blending religious rigor with practical concerns.

It should be recognized that Nehemiah had virtually total freedom of action when he arrived in Judah, at least insofar as Artaxerxes was concerned. This was not at all the case in April 1920 when Lloyd George appointed Samuel as High Commissioner of Palestine, which the League of Nations had designated to Britain as a Mandated territory.  To all appearances, the High Commissioner had all the powers of a colonial governor. Not surprisingly, many concluded that "Britain had assumed the role of Persia in Jewish history, Balfour of Cyrus [sic--actually Artaxerxes] and Samuel, prophet and courtier, Nehemiah."[18] Not long after he arrived in Palestine in June 1920, when he was welcomed by a seventeen-gun salute, Samuel walked two miles on Shabbat Nahamu from Government House to the Hurva synagogue. Called up to the Torah as Maftir, which he then followed by chanting Isaiah's stirring call to "comfort ye, comfort ye my people,"[19] Samuel only reinforced the impression among the Jewish community, both within Palestine and throughout the Diaspora that he was the "Nehemiah of our times.".

The reality was quite different, however.  Samuel was answerable to the British Colonial Office, itself subject to pressure from the local Arab population. He also was subordinate to a Cabinet not all of whose members liked the idea of a Jew governing Palestine. Samuel himself recognized the limitations of his position. He warned Lloyd George that his appointment "was open to the dangers that measures, which the non-Jewish population would accept from a British Christian governor, might be objected to if offered by a Jew."[20]

Samuel's warning was based on his first visit to Palestine in January 1920, when "the over-riding impression he received was of the strength and seriousness of Arab nationalist hostility to Zionism."[21] Initially, he pushed back against Arab critics whom he met on that trip and who warned of a "terrible revolution" if Zionist immigration were to continue. His rejoinder that "the Jews...have historic rights in the country,"[22] echoed Nehemiah's refrain to Sanballat and his supporters who opposed any change in the status quo that had enabled them to dominate Judah. Nevertheless, the depth of Arab hostility almost led Samuel to decline Lloyd George's offer of the governorship.

Once in office, Samuel confronted not only Arab hostility, but also opposition from the British military both in London within his own administration, from civilians within his administration, at times from the Colonial Office, and, after a brief honeymoon, from the Jewish community as well. The military leadership in Palestine, including General Allenby who had liberated the territory from the Turks, opposed the appointment of a Jew, whether Zionist or not, to be the civil head of the Mandate. Equally adamant was General Thwaites, Director of Military Intelligence, who returned to Britain from a visit to Palestine with the view that the governor should be a "good Christian."[23] Once Samuel took office, the military continued to lobby against him and to argue for "curbing" the Zionists; some officials were at least somewhat sympathetic to their view.[24] Though he generally had the support of the Colonial Office, Samuel found that his plans for integrating the "Jewish home" into the Arab Middle East by creating "a loose confederation of the Arab-speaking states" that included a Jewish Palestine were repeatedly rejected by the Colonial Office.[25] Similarly, the Colonial Office rebuffed Samuel's support of a 1924 request by Jewish leaders that the Government formally recognize the community as a religious national body.[26] Samuel was also undermined by some of his own staff. Ernest Richmond, who served as Samuel's chief advisor on Arab affairs, was viewed in Whitehall as a counterweight to the Zionist Organization. Indeed, one official described Richmond as not only "a declared enemy of the Zionist policy and almost as frankly declared an enemy of the Jewish policy of H.M.G.”[27]

At the same time, it was opposition from the Arabs of Palestine, not from the Colonial Office, that undermined Samuel's efforts to create a "constitutional government of partially representative character," which by definition would have granted official recognition of the Jewish community's role in the governance of the Mandate.[28] Samuel actively sought to win the support of the Arab population to no avail. In 1921, he pardoned Amin el-Husseini, who had been sentenced to ten years in prison after instigating the anti-Jewish Nebi Musa riots in April 1920 and was a leading opponent of Jewish immigration to Palestine. He supported el-Husseini appointment to succeed his elder brother as Mufti of Jerusalem in 1921. Two years later he resolved a major dispute between the Jewish and Arab communities by ruling in favor of Bedouin claims to state land between the Sea of Galilee and Beisan, which the Zionists had hoped to cultivate. Nevertheless, as early as March 1921, an Arab deputation met with the visiting Colonial Secretary, Winston Churchill, to protest against the Zionist enterprise. The following May, what began with an Arab attack on a Jewish hostel in Jaffa evolve into widespread attacks on Jewish settlements that were finally brought to an end when  the rioters were bombed by British aircraft.

Arab lobbying, like the riots, did not end in 1921. As the British Government wrestled with the question of how to give the Jewish and Arab communities some role in the governance of Palestine, the Arabs sought to reverse the Balfour Declaration. For example, when the Government met in the summer of 1923 to consider whether it should continue to adhere to the Declaration, an Arab delegation travelled to London to argue for its complete abrogation. It was a scene reminiscent of the efforts by paid lobbyists, including--according to the medieval commentator Rashi--a son of Haman, who sought to convince Artaxerxes both to put a halt to any construction in Jerusalem and to destroy the Temple.[29] Samuel actively sought to embed the Jewish community into the fabric of Palestine. It was during his tenure that Hebrew became the third official language of Palestine. This development hearkened back to Nehemiah’s command that Hebrew be the spoken language of Judah’s Jewish community. Again, like Nehemiah, Samuel employed his secular authority to promote religious leadership: the Chief Rabbinate was formally established during Samuel’s term of office. Finally, and critically, the annual rate of Jewish immigration continued to rise through 1925 when Samuel relinquished his post.

Nevertheless, just as he failed to assuage the Arabs of Palestine, Samuel also disappointed the Zionist leadership. Speaking of Samuel's appointment of the new Mufti, a bitter David Ben Gurion told the 1921 Zionist Congress, "we regarded him [Samuel] with reverence when he came...but what did he give us? Haj Amin El Husseini as Mufti of Jerusalem."[30] He upset the Zionists even more when he chose to suspend Jewish immigration after the 1921 riots (in which 47 Jews were killed and 146 wounded) in the face of Arab threats of more violence if immigration were to continue. He antagonized the Zionist leadership even more when in June 1921, he reinterpreted the Balfour Declaration by emphasizing that it did not mean the establishment of a Jewish government that might rule over the Arab majority.  Even though his suspension of immigration lasted only a few months Samuel was never again able to restore Zionist confidence in his leadership.

AFTERMATH: NEHEMIAH'S LEGACY; SAMUEL'S FRUSTRATION

Having served for twelve years as governor of Judah, Nehemiah was recalled to Susa. He left without much fanfare, perhaps because, despite all his efforts to strengthen the position of the Jewish community vis a vis its non-Jewish neighbors, many in that community may have harbored resentments of various kinds. Some may have opposed his strictures against intermarriage. The elites no doubt were angered by his social reforms. The indigenous population certainly was happy to see him go.

After an unspecified time in Susa, however, Nehemiah returned, only to find that in his absence, many of his reforms had been overturned. Eliashib, who was a relative of Tobiah, not only arrogated to himself rooms in the Temple, but assigned to Tobiah a large room that had been a Temple storehouse; he gave a room to Sanballat as well. By having so prominent a position in the Temple, Tobiah and Sanballat, Nehemiah's long-time nemeses, were in a position to rally the people against the governor's reforms and restore the status quo ante.

Nehemiah found that the Levites had once more been relegated to lower class status, having been deprived of the gifts mandated for them.  Worse still, he found that the people were once again violating Shabbat, either by working themselves, or by purchasing goods from non-Jewish vendors. Equally troubling was his realization that intermarriage was again rife throughout the community, with as many as half the children of mixed marriages speaking languages other than Hebrew.

Nehemiah, ever the man of action, responded quickly and forcefully. He drove Tobiah and Sanballat out of the Temple, purified their rooms, and restored the giving of the meal offering and frankincense that had fallen into abeyance when his opponents had moved in. He restored the Levites' privileges. He reinforced the holiness of Shabbat by shutting the city's gates Friday at sundown and by issuing decrees, in what came to be termed rabbinical legislation, that prevented both commercial transactions and the treading of winepresses on the day of rest. Finally, while retaining his policy of not breaking up families that included a non-Jewish spouse, he insisted that the children speak Hebrew (as opposed to Aramaic, the Yiddish or Ladino of the era) and that no further intermarriages would be tolerated. To enforce the latter edict, and to make an example of his determination to root out the problem, he first expelled a son of Eliashib, who had married a non-Jewish woman. He then turned on others who had already intermarried and "cursed them, flogged them tore out their hair and adjured them by God”[31] that neither their children, nor they, were to marry non-Jews.

Having reinforced his earlier mandates, Nehemiah ruled in Judah for a further unspecified period before returning to Persia to write his memoirs. Rabbinical annoyance at his plea to God to remember his good deeds led to his relegation to being merely an adjunct to Ezra, whom the rabbis of the Talmud venerated as saving the Torah and enacting a host of laws that prevail to this day.

Nehemiah's obscurity also continues to the present. It is indeed a shame that so few Jews, even Orthodox Jews well versed in Talmud, know little about this remarkable layman, who thousands of years ago embodied the combination of Torah and worldly experience. Indeed, by restoring the Jews' sense of identity and nationhood, in parallel with Ezra's religious leadership, Nehemiah is in fact a model for what both religious Zionism and Modern Orthodoxy are all about. HIs book remains required reading, and his role as a leading light of Jewish history will forever be secure.

Herbert Samuel's name is no longer as familiar to Jews as it was a century ago. Like Nehemiah, his role in Jewish history has been overshadowed by others. Having disappointed the Zionists while in office, he returned to England to hold various senior political positions, including a second stint as Home Secretary, and later leader of the Liberal Party from 1931-1935. Named a Viscount in 1936 after having lost his seat in Parliament the previous year, Samuel supported Chamberlain's appeasement policy and the Munich agreement on which it was based.

Nevertheless, Samuel became actively involved in helping Jews who were fleeing Europe when  the Nazis rose to power. He visited the US several times to establish an emergency fund and helped to raise 12 million pounds sterling, the equivalent of 546 million pounds today or $800 million at current rates. He also successfully lobbied the Home Office to ease visa regulations, which resulted in the admission of 10,000 Jewish children from Germany in a period of eight months. Finally, he lived long enough to see the creation of the State of Israel, which he supported,  and, despite the hostility of many Zionists, he maintained his friendship with Chaim  Weitzmann, who became Israel's first president. The Zionists saw him as "a false prophet,"[32] and by the time he died in 1963, at the age of 93, he was "a lonely figure." Like Nehemiah, he too deserves a far better place in Jewish memory than he has thus far received. And his son, the second Viscount, spoke Hebrew fluently--with an upper class English accent. Nehemiah would have been pleased.

[33]

The Balfour Declaration Changed How the Jews Viewed Themselves - Caroline B. Glick (Jerusalem Post)

• One hundred years ago, on November 2, 1917, Arthur Balfour, foreign secretary of Great Britain, issued the Balfour Declaration, announcing that the British Empire supported an end to the Jewish people's 1,800-year exile and its return as a free nation to its homeland - the Land of Israel. "His Majesty's government view with favor the establishment in Palestine of a national home for the Jewish people, and will use their best endeavors to facilitate the achievement of this object."
• The Palestine Arab leadership at the time rejected his statement. Shortly thereafter, the Arabs initiated a terrorist onslaught against the Jewish community in the Land of Israel that has continued, more or less without interruption, ever since. Indeed, the Palestinians have not moved an inch in a hundred years. PLO chief and PA Chairman Mahmoud Abbas now demands that Britain officially renounce the Balfour Declaration and apologize for having issued it.
• The Balfour Declaration did not change the way the world viewed the Jews, but it changed how the Jews viewed themselves. After 1,800 years of dispersion and hopelessness, here was the British Empire saying that the time had come for the Jews to reconstitute themselves as a free nation in their land.
• Until Great Britain announced it supported Zionism, the vast majority of Jews thought the national liberation movement was doomed to fail just like all of its messianic predecessors. Now, under the League of Nations Mandate, Jews were given an international charter for the reconstitution of their national homeland.
• Just as important, the Balfour Declaration ignited the imaginations and passions of Jews throughout the world. For the first time, Jews, dispersed throughout the nations, dared to believe that the reconstitution of Israel could happen in their lifetimes.

Thirty-five years ago, when I was an attending physician in my hospital’s intensive care unit, I started to ponder the ethical issues involved in the use—and misuse—of increasingly powerful medical technology. Twelve years before that, in 1968, during my internship, there were few end-of-life ethical conundrums: We treated every patient as aggressively as possible—always. Death was the enemy, and we employed every medical intervention to avoid the demise of our patients. Our technology was primitive by today’s standards, and we could not prolong the process of dying significantly.

A mere 10 years later, when I was an attending physician in the intensive care unit, medical technology had advanced greatly, and the lives of many ICU patients were saved by respirators, dialysis machines, and powerful new drugs. I soon realized, however, that there was a group of patients who could not be cured with these interventions, but whose dying was prolonged significantly—with much suffering for both them and their families.

I needed guidance in how to deal with these ethical dilemmas. As someone who took his Jewish religion seriously, I began reading articles and books on Jewish medical ethics. In the course of my readings, I came across a curious and powerful statement written some 800 years ago by a Jewish scholar from the Bavarian town of Regensberg, Rabbi Judah the Pious. He wrote in Sefer HaHassidim, The Book of the Righteous: “We do not compel a person not to die quickly.” What a strange but insightful statement, I thought. The rabbi gave an example: If a person is a goses and someone near his house is chopping wood so that his soul cannot depart, one should remove the woodchopper. One does not put salt on his tongue in order to prevent his death….”

In Jewish law, a goses is someone who is moribund, someone who is actively dying. In the thirteenth century, people had fixed ideas about events surrounding death and felt that loud noises or the pungent taste of salt could delay that final moment when the soul departed the body. Removing the woodchopper was viewed as removing an impediment to one’s peaceful death.

I learned from yet another source written a thousand years before Rabbi Judah the Pious the same principle: that one should remove an impediment to a peaceful death. In the Talmud, the story is told of the death in the third century of Rabbi Judah the Prince. He was the foremost Jewish sage of his era and was suffering with an intestinal disease. His disciples, overcome with the dread of losing their beloved teacher—but seemingly unaware of the degree of his suffering and of the hopelessness of his terminal illness—continued to pray for his recovery. It was only the rabbi’s housemaid, who, seeing his torment and the inevitability of his imminent death, was determined to silence the prayers of his followers, which she believed were preventing him from dying peacefully. She cleverly threw an earthenware vessel to the ground. The noise of the shattering vessel stunned the praying crowd so that they ceased their prayers for an instant, during which time Rabbi Judah’s soul departed. Just as in the case of the woodchopper, the handmaid acted to remove an impediment to a peaceful and quick death: in this case, the prayers of his students.

When, as a young ICU attending, I first read these sources, I was intrigued by the idea that the wise Jewish scholar of 800 years ago, who could never have dreamed of our medical technology, had ruled that one must remove an impediment to imminent death, and that a compassionate handmaid a thousand years earlier, had intuited the same humane principle.

In today’s ICUs, the woodchopper and the prayers of devout followers have been replaced by ventilators, dialysis machines, ventricular assist devices, and extra corporeal membrane oxygenators. Might not Rabbi Judah the Pious, rounding in our ICUs today, be dismayed at how often his introductory principle—“we do not compel a person not to die quickly”—was being routinely violated by our modern-day incarnations of the woodchopper? Whether because of the understandable grief of families unable to let go, or the injunctions of some rabbis that every moment of life must be preserved, or the poor judgment of physicians who do not recognize when the battle for life is lost, aren’t patients too often compelled “not to die quickly?”

Take the case of my patient Ben. When he was 88 years old, he came to see me for mild chest pain, and brought with him an x-ray that showed a mass in his lung. His daughters requested that I not share with their elderly and frail father my diagnostic impression of cancer. They were a deeply religious Jewish family, and it was their custom not to share bad news with elderly parents. Indeed, Ben was too frail, with heart and kidney disease, to undergo surgery, chemotherapy, or radiotherapy. He and his daughters had agreed, however, to a needle biopsy of the mass in view of the possibility that it might be a treatable non-cancerous process. Unfortunately, my fears were realized; the lesion was malignant. Ben was uninterested in the biopsy result, and he was sent home with medication for pain.

I had not heard from him for a year when he returned to my office, accompanied by his daughters. He looked thin, drawn, and breathless, but he maintained his sweet smile and greeted me warmly.

His pain was now worse, and he had developed a large collection of fluid in his chest cavity. It was clear that he was near death. Given the absence of therapeutic options, I suggested to his daughters that their father return home with hospice care, which would maximize his comfort and treat symptoms as they arose. His daughters consulted with their Orthodox rabbi, who stated that all measures be taken to keep Ben alive and comfortable as long as possible. Every moment of life was considered sacred, and if hospitalization could prolong his life, he should remain hospitalized and be treated aggressively. I offered the option of discharging Ben home with follow-up by home hospice, but the family declined. Rather than have his shortness of breath treated with as-needed doses of morphine at home under the supervision of a team of home hospice professionals, his family requested that he stay in the hospital and have a chest tube inserted to remove as much fluid as possible and thereby alleviate his breathlessness and probably prolong his life. When asked about his preferences, Ben deferred to his daughters.

A chest tube was placed, and although his breathing temporarily eased, Ben remained uncomfortable and quickly became weaker. Despite the chest tube, his breathing soon became more labored and I suggested to his daughters that he be allowed to pass away peacefully without placing a breathing tube in his throat—intubation—and connecting him to a respirator. After a long discussion among themselves and with their rabbi, it was concluded that since intubation would prolong Ben’s life somewhat, they felt religiously compelled to request ICU transfer and ventilator support. At this point, I tried once again to gently ascertain Ben’s wishes but whenever the discussion became too specific, his response was, “ask my daughters.”

As Ben’s breathing became more labored and it was clear that he would die imminently, he was transferred to the ICU, intubated, and connected to a respirator. As we were intubating Ben, the thought occurred to me that he was a goses and that we were ignoring Rabbi Judah the Pious’ admonition to avoid compelling a person “not to die quickly.” Ben was sedated for comfort and, despite the ventilator, died a day later. His family agreed at the last moment not to attempt cardiac resuscitation when his heart stopped beating.

Although one might criticize under these circumstances the rabbi’s decision to preserve Ben’s life as long as possible—while attending to his pain and shortness of breath—the importance of the concept of the sanctity of life in the Jewish religion cannot be overstated. Judaism is a religion that treasures every second of life. Although Judaism accepts the notion of a hereafter, the entire corpus of Jewish law and lore focuses on life in this world, and stresses the importance of sanctifying every moment of existence by carrying out good deeds, adhering to God’s laws, and deriving as much happiness and pleasure as possible within the bounds of halakha. If a person can be kept alive for one more day, that person might use that time to do a mitzvah reflect on life, do teshuvah (repentance), or pray to God.

I also feel that the Holocaust continues to have a significant impact on the way rabbis and Jewish laypeople think about the sanctity of life, especially when confronting end-of-life issues. Because a mere 70 years ago one out of every three Jewish men, women, and children on earth was murdered by the Nazis and their henchmen, the notion of the sanctity of life has been reinforced, leading many rabbis to ordain that every moment of life, even as life is ebbing, be preserved by whatever means possible.

Returning to the concept of a goses: Although the classical sources I quoted above admonish us not to prolong the dying process of a moribund person—“we do not compel a person not to die quickly”—there is a very important flip side to this ancient concept. The Talmud prohibits actions that are intended to hasten the death of a goses, “who is regarded as a living person in all respects.” The Talmud enumerates such prohibited actions. One may not move the patient, close his eyelids, or bind his jaws—actions that should not be carried out until after death. The goses was likened to a flickering candle that becomes extinguished with the slightest perturbation. Clearly, the rabbis warn physicians to beware of the temptation to extinguish the flickering candle of life by, for example, administering a higher dose of morphine than is necessary to alleviate suffering. When such drugs are used with the intent to hasten death, regardless of the humane motives of the physician or the family, this is clearly prohibited.

It is a delicate balancing act indeed: Just as Rabbi Judah the Pious and the Talmud would seem to sanction, if not require, intentionally removing impediments to a peaceful death of a goses in order to avoid prolonging the dying process, that same goses should not have his or her death intentionally hastened by actions of the physician or family. The laws pertaining to a goses would seem to indicate that there is a definite, if subtle, distinction in Judaism between an action to remove or withhold treatment that prevents a peaceful death, and an action with the intent of hastening death such as administering a drug to the patient to accomplish this goal. The tension between respecting the sanctity of life by prohibiting actions intended to hasten the death of a moribund patient, and alleviating suffering by permitting the removal of machines or medicines that are impediments to a peaceful death, is a frequent concern of every ICU physician. Thus, the concept of a goses developed centuries ago by Jewish scholars would appear to be relevant and useful even today in end-of-life situations.

Judaism’s stance on physician-assisted suicide is clear given its attitude toward a goses. If a physician may not do anything that will hasten the death of a moribund patient, one is obviously prohibited from prescribing a lethal dose of medication to allow a terminally ill patient who may still live for months, to commit suicide. The changing values of our society, which are increasingly accepting of physician assisted suicide—it is now legal in 6 states—are clearly contrary to the teachings of traditional Judaism.

Many Orthodox rabbis, and Ben’s rabbi must be counted among them, feel that medical technology has rendered the idea of a goses obsolete. After all, they reason, if some patients who were formerly considered moribund can now have their moment of death delayed by medical technology, or even reversed, how, then, can we decide who is a goses? Is the concept still relevant in our technologically sophisticated ICUs?

Perhaps because of my decades of exposure to the sometimes painful realities of patients dying in the ICU, I believe that the concept of a goses remains relevant even in our modern medical centers. In answer to those in the Orthodox community who feel that the concept of a goses is rendered irrelevant because of powerful life sustaining technology, I point to many ICU patients whose death would be imminent without life support, who are comatose or severely obtunded, who suffer pain and indignity, and who have no chance of leaving the hospital alive. Might not such a patient rightfully be called a goses, and should we not be allowed to remove medical impediments to a more peaceful death?

Rabbi Judah the Pious would no doubt insist that in assessing when a critically ill person crosses the line between possible survival and certain death, painstaking efforts must be made by physicians to ensure the accuracy of their prognoses. The concept of a goses is helpful only insofar as the physicians caring for such a patient are mindful of the sanctity of life and assume the awesome responsibility of making an accurate prognosis with humility and skill.

I believe that even today the concept of a goses offers a clear lesson for doctors, patients, and families. In the coming decades, America will face a an increasing number of end-of-life ethical issues as many aged baby boomers will have access to ever more sophisticated medical technology that can prolong life but will often prolong the dying process. The strains on our medical resources, especially in a country where 20 percent of its population dies in ICUs, will be great.

But resource allocation is not the only, nor the most important reason, why we should recognize the wisdom of considering certain dying patients as a goses and allow them a peaceful and dignified death. I have seen numerous examples of patients—Jewish and Gentile—whose final days, weeks, or even months have been marked by unresponsiveness, a hopeless prognosis for survival to discharge, but who have undergone repeated invasive procedures, resuscitations, and diagnostic tests that have served only to prolong the dying process and subject their body to grievous deformities and indignities. Very often, Orthodox families of such patients have suffered by witnessing what their loved ones have had to endure.

The choice is not between the false specter of so-called “death panels” eager to pull the plug on a patient, and those who would use technology to prolong the suffering of dying patients. There is a way to respect the sanctity of life of a goses, while withholding or removing impediments to a peaceful death. But this requires physicians with wisdom, expert clinical judgment, skills of communication, and sensitivity to the value of life and the concerns of families. It also requires sensitive guidance from spiritual leaders, who sometimes view death as an enemy, rather than inevitable, and who should heed the wisdom of Ecclesiates 3:1 that, “There is a time for everything and a season for every activity under heaven…a time to be born and a time to die…”.

Earlier this year, 7 highly respected rabbis authored a position paper on the ordination of women and on the possibility of women serving as clergy[i].  Individually and collectively, they represent great learning, personal piety, and years of leadership.  It would seem presumptuous for someone who will never achieve anything near their learning or stature to comment or critique.  However, no one person or group has a monopoly on facts and logic. And, as will be demonstrated, Torah learning sometimes is not the sole or even dominant factor in a person’s opinion on these issues.

• This paper addresses three issues that were highlighted in the OU paper:  the meaning of the concept of Mesorah and its use as an argument, the specific Halakhic arguments against women serving as clergy, and the issue of gender roles in the public square.

The authors of the OU paper depict the debate over ordination as one between those who value the Mesorah and those who are unduly influenced by ‘modern values.[ii]’  This paper will illustrate that ‘modern values’ are intrinsically neither good nor bad, and that our Mesorah has always incorporated ‘modern values’ that found resonance in the Mesorah.  Furthermore, according to great and highly respected Modern Orthodox authorities, a hallmark of Modern Orthodoxy is the willingness to acknowledge some ‘modern values’ as previously under-recognized religious values. 

The Halakhic arguments, both pro and con the ordination and rabbinical roles for women, are not simply differences of opinions, where one set of authorities takes one position, and other authorities take a different position.  The arguments against ordination essentially state a category or restriction, and then draw conclusions from that category.  This paper will demonstrate that the arguments suffer from one or more of the following problems:  they are based on wrong or at least unproven facts, the claimed conclusions do not follow logically from the premises, the Halachic reasoning is strained at best, the definitions of the categories or concepts lack specifics which allows the authors to escape in depth analysis, and there is great inconsistency in how the categories and restrictions are applied.  In summary, the arguments appear to be unconvincing when analyzed from the point of view of facts, logic, and consistency.

The final section addresses the broader concept of gender roles in the public square.  The authors of the paper state that historical gender differences in public service reflect the ethos of the Torah.   But they fail to acknowledge that while they specify historical gender differences in public service, what they are prohibiting in their paper is not public service by women, but leadership.  Most of the putative Halakhic bases for the restriction of women from the public restrict women from the public, and there is no differentiation between the secular public and the religious public.  In fact, appearing in the secular public has historically been considered worse than appearing in the Jewish communal public. The actual practice of the Modern Orthodox community does not demonstrate any prohibitions on women being in the public, nor prohibitions on women in secular leadership positions.  Therefore it is quite incoherent to claim that historical gender differences prohibit religious leadership, when the actual communal practice illustrates that the historical gender differences are not binding on the specific areas they were designed to address- the secular public square.    In addition, I suggest that there is a fundamental need to articulate an overarching idea of what is the mandated ideal- taking into account the sources, social history, and present reality. I further suggest that it will be quite difficult, if not impossible, for the opponents of ordination to formulate a coherent position that includes an honest assessment of Modern Orthodox practical reality, the Halakhic history and its surrounding cultural history, and their use of historical precedent to ban women in religious leadership positions.  And finally, I think that we all face the challenge of identifying exactly what is the Divinely mandated differences in gender in the public square, and if having those differences is a situation where we have to accept the yoke of Heaven, or if it is a moral good as well.

Much has been written regarding the ordination of women.  Some of the opponents have described it as being outside the pale of Orthodoxy.  Some have cited the position of a certain rabbi or groups of rabbis and insisted that only that particular position represents Orthodoxy.  This paper, while it includes discussions of particular Halakhic opinions, tries to refrain from valuing one opinion over another, and is concerned mostly with facts^[iii], logic and consistency.  I have taken the arguments presented in the OU paper and tried to identify underlying assumptions, identify ambiguous language, evaluate factual claims, and assess for consistency and coherence.  I obviously have an opinion^[iv], but I think the results of the analysis speak for themselves, and the conclusions are obvious.  At the least, I hope that this paper will stimulate a discussion that is less dogmatic and more focused on defining positions based on sources, facts, logic and consistency.

I.  Mesorah and the misuse of Mesorah

The term ‘Mesorah’ has been frequently invoked by the opponents of ordination for women.  We can broadly define it as the content of our tradition that is passed from one generation to another.  That tradition contains Mitzvot and opinion on the value of Mitzvot.  Frequently a situation occurs where one must choose between emphasizing one mitzvah or a different mitzvah.  Our Mesorah therefore contains not only the Mitzvot, but also attitudes or ‘values’ that help us choose between Mitzvot when they come into conflict.  One could cogently argue that the ‘values’ are in fact Mitzvot in and of themselves, but for the purpose of this discussion that is a distinction without a difference.  Ultimately what this analysis is concerned with is how, within the confines of our legal tradition, are values embraced or shunted to the side.

Change in the Mesorah

Mesorah can be viewed in a number of ways.  It can be viewed as a self-contained body of knowledge and values, unaffected by anything external.  This perhaps is the view of those who claim that the science of the Talmud is always correct, and that nothing in fact has changed since the time of the Talmud.  If one accepts the input of observation and scientific method, this view is demonstrably false.  For example, the Talmud expresses the beliefs that the sun revolved around the earth, and that babies born in the 8^th month were not viable, and these are demonstrably false.

Another option is to claim that the facts might change, but the values and relative weight given to values within our Mesorah are constant and eternal, unaffected by changes in time or culture.  Under this construct, all the values in the Mesorah are fixed and the values and relative weight are the same now as they were 2000 years ago.  This too, as will be demonstrated, is false.  The third model acknowledges the truth of history, and understands that some values have gained or lost weight over time, either intrinsically or in response to external input, whether it is science or surrounding culture.  Values from the outside world, sometimes termed ‘modern values’, are not automatically in conflict with the Mesorah.  In fact, modern values are intrinsically neither good nor bad.  Those that find resonance in the Mesorah are embraced, and those that do not are dismissed.  Similarly, it is a demonstrable fact that there are values within our Mesorah that were more embraced in the past, and are less embraced or sidelined in the present.

Examples of Change in values

The Talmud and early sources have specific attitudes towards and/or halakhic restrictions on women, slaves, the blind, the deaf/mute (chereish) and others.  For example, some of the Rabbis in the Talmud owned slaves.  It is hard to imagine the rabbis of today being in favor of owning slaves.  The moral values related to slavery clearly have changed.  As Rav Gamliel Shmalo wrote^[v]

“Our examination of the topic shows the varying degrees to which Orthodox thinkers acknowledge the moral values of their contemporary society and the different models with which they confront those values. Some are more apologetic, limiting biblical slavery so that it conforms to modern conceptions. Others assert that the Bible contains moral accommodations that society has transcended. Interestingly, even conservative thinkers—who justify slavery by pointing to the social, economic, moral, and spiritual benefits it gives to the weak and the vulgar—may have been moved by modern conceptions to justify slavery in accordance with those conceptions. Accepting that only a direct benefit to the slave himself could be an acceptable justification for enslavement, almost all would agree that the practical application of this once normative institution would be unthinkable today.”

In a similar vein, the exclusion of blemished Kohanim from service has gone from well accepted and unremarkable fact to a position that requires explanation and justification, if not some Halachic adjustment^[vi].

Another example is the deaf/mute.  The Talmud exempts the deaf/mute from all Mitzvot. In this day and age, many poskim hold that this is not the case^[vii].  According to R Moshe Taub^[viii]:

“The general consensus, and the general custom, is to allow a medaber (someone who speaks) to be called up to the Torah for an Aliyah (Torah blessings). Rabbi Feinstein allows even a true chereish to receive an Aliyah for his bar mitzvah or aufruf –so that he should not feel downgraded – and writes that in such a case the chereish should try to say the words as best he can, although such an Aliyah may not be from the main seven aliyot.”

Obviously there has been a change in the assessment of the capabilities of those who are hearing/speech impaired.  But the result is still a change in the Mesorah that has come about not only because of changes in our knowledge, but perhaps also, as illustrated by R. Moshe Feinstein above, by our sensitivity to those who are differently abled.  Furthermore, the changes came due to a re-evaluation triggered by outside influences- modern facts and modern values.

There have been changes with regard to women and education.  There are opinions in the Talmud opposing teaching women, and opinions in favor of teaching women.   R. Chaim Twerski wrote^[ix]:

“Two explanations are given to understand why the Talmud objected to teaching Gemara to women. The Rambam (Hilkhot Talmud Torah 1:13) states that most women, due to their mental weakness, would not understand the teachings correctly and would distort the Oral Law. A similar position is offered by the sages themselves, namely, that “women have light minds” (Shabbat 33b). Perhaps, Rambam interprets the words ke-ilu milamdah tiflot—“as if he teaches her lewdness”—as the result of their inability to comprehend the Torah leading to distorting the Oral Law.

Rambam’s assertion in interpreting “light mindedness” the way he did was most likely influenced by his observation of women in his time. Lack of education will deprive anyone of mental development. Today, however, we see no difference between men and women in their mental capacity.

The Talmud (Sotah 21b) offers another reason. It states in Mishlei (8:12): “I am wisdom and I reside with craftiness.” Accordingly, once wisdom enters the mind it is capable of being sly (or devious). Wisdom, then, is a double-edged sword. It can be used for good and also for evil. The absence of wisdom allows for the person to remain on the straight and narrow path. Alternatively, introducing wisdom allows for the opportunity to deviate with clever but wrongful reasoning. It can lead to sophistry, which corrupts the Torah and indeed the individual, as well (see also Maharil n.199).

This second reason is seemingly also invalid in contemporary times. Women are sophisticated today, and go through the same core secular curriculum as their male counterparts.”

Even this opponent of ordination for women is forced to acknowledge that the assumptions of the Talmud regarding women, similar to the Talmudic assumptions regarding the deaf/mute are not correct.  In a similar vein, the OU and the authors of the OU psak advocate for leadership by women and more public avenues for women to teach and lead.  This seems to track (albeit decades behind) with societal views of the roles of women in the public square.

Many more examples can be given in almost any sphere of life- some more halakhic, some more custom- foods, music, architecture, synagogue ritual( weekly speeches in the vernacular),  some are modes of governance(democracy by direct election of the people is not mentioned by the Talmud as a valued mode of governance), and more.  It seems very clear that our Mesorah, when faced with ‘modern values’, has incorporated those that found resonance.  Rather than something intrinsically bad, ‘modern values’ have been part of the engine of beneficial change.

Is change good and desirable?

One possible avenue is to believe that even though change has occurred, it is b’dieved- not the ideal- something that may need to be accepted but should not be celebrated or seen as a religious good.   On the contrary, R. Aharon Lichtenstein of blessed memory wrote^[x]:

“Nor should we be deterred by the illusion that we can find everything we need within our own tradition.  As Arnold insisted, one must seek “the best that has been thought and said in the world,” and if, in many areas, much of that best is of foreign origin, we should expand our horizons rather than exclude it.”

Similarly,   R. Nahum Rabinovitch wrote:^[xi] “Torah's method is to be a catalyst for the evolution of moral values in history, i.e. from polygamy to monogamy, from slavery to freedom, from war to peace, and from coercion to liberty.” 

For example, with regard to the abolishment of polygamy, R. Rabinovitch wrote:  “Certainly the Sages instituted such enactments – yet they did not draw them out of thin air, but advanced the values already determined by Scripture. In the biblical era, however, the time was not yet ripe, and people were not yet ready, for the full realization of that vision. Only over time, as a result of training in the life of Torah, were people's hearts made ready and did it become possible to draw closer to the goal established by the Torah.” 

Not only is it simply a fact that ‘modern values’ have been used to adjust the value judgment within the Mesorah, but it is an important and distinguishing hallmark of Modern Orthodoxy.  R. Walter Wurzburger^[xii] “revered …. As a public voice of his teacher R. Joseph Baer Soloveitchik”^[xiii], writes of Modern Orthodoxy: “What differentiates us from right-wing Orthodox is our acceptance….of the belief that some important modern values should be appropriated. We are inclined to stress human responsibility and activity rather than passive submission or fatalistic resignation to our condition... In contrast with the mentality prevailing during the premodern ‘age of faith’ which placed exclusive reliance upon God and denigrated the efficacy of human actions…the modern mind emphasizes man’s capacity to help determine the human condition…

“It must be realized that Orthodoxy nowadays contains two opposite approaches.  On the one extreme we have the position of the Hatam Sofer…any form of innovation, any concession to modernity…is the very antithesis of Torah.  On the other extreme we have the position of Rav Kook, who maintained…,Embrace the new by all means, but do so selectively.”

“…there is a great deal of positive value contained in modern attitudes of dignity, human understanding, and rationality….whenever the Torah is silent, we can embrace many modern values, because that is one of the ways in which God reveals himself[my emphasis]”

R. Wurzburger goes on to provide specific examples from the Meiri, the Maggid Mishnah and others who emphasize the contribution of modernity and human discernment to the values within the Mesorah.

With regard to women, R. Wurzburger writes: “today it is wrong for a married man to say “I’d like my wife to be totally ignorant.  After all, the Gemara says that the main function of the woman is to be attractive and produce a lot of children and to do weaving…” Although this was acceptable five hundred years ago, women must not be treated in this fashion in our times because they have different expectations today.  And those expectations can affect the psak as to what constitutes appropriate behavior.”

In conclusion, the historical record clearly illustrates that the values within the Mesorah have changed for the better in response to the encounter with Modern Values. It is incorrect to characterize modern values as wrong simply because they are modern.  Furthermore, at least according to a prominent student of R. Soloveitchik, a distinguishing feature of Modern Orthodoxy is the belief that some important modern values should be appropriated.

 The mistaken approach of the OU psak

 The beginning of the OU paper on ordination for women contains three erroneous fundamental assumptions which impact the entire paper.

The first paragraph of the OU ‘psak’ on the ordination of women states:   “some perceive limitations on women’s roles and titles as barriers to full involvement in the Orthodox community, while others view the lifting of traditional gender distinctions in ritual as representing a rejection of the Mesorah. This tension pits egalitarianism, a central value of modernity, against a time-honored tradition that clearly speaks of equally valued, yet different, roles for men and women.”

The first error is setting up a false conflict between the Mesorah and modernity.  They seem to imply that changing something because of a ‘modern value’ is intrinsically wrong, and that something that is a ‘modern value’ is always, at least potentially, in conflict with the Mesorah.  As demonstrated, this is an incorrect understanding of the history of the Mesorah and change.  ‘Modern values’ have frequently provided the impetus for religiously desirable change.

The second error is characterizing the desire to remove barriers as a manifestation of egalitarianism.  One would have hoped and expected that poskim writing a paper with potential far reaching consequences would have expended great effort to ascertain all the facts.  But it appears that they did not meet with any of the women obtaining semikhah nor any of their teachers.  So the authors do not have any firsthand knowledge of the motivation of the women seeking semikhah.  It is therefore grossly unfair and patronizing to ascribe motivations when the OU panel made no attempt to meet with any of the women involved.  They have only their own projections of what they think are the motivations of the women.  There is a less pejorative (at least in their eyes) alternative.  Writing regarding R. Eliezer Berkovits, R. Shalom Carmy states:  “(his) moral ends derive from internal Jewish sources….dissatisfaction with mainstream Halakhah regarding women is rooted, not in the pressures of contemporary egalitarianism, but in his judgment about biblical conceptions of justice[my emphasis].”^[xiv]  The motive for semikhah can and from my experience should be seen as an expression of Masoretic values and the desire for maximal participation within Halacha.

The third error is denigrating egalitarianism as something that is against the Mesorah.  The authors of the paper in fact state something quite egalitarian: “The Torah affirms the absolute equal value of men and women as individuals and as ovdei Hashem.”  This is not the view of the Talmud.  The Mishnah (Horiyot 13:1) states: “A man takes precedence over a woman, in matters concerning the saving of life…a Cohen takes precedence over a Levi….”  Clearly the lives are not of equal value in the eyes of the Talmud.  R. Avraham Steinberg notes: “although strict Jewish law seems to require one to follow the order of precedencies cited in the Mishnah, the general practice and custom is otherwise.”^[xv]  The authors of the paper have adopted modern egalitarianism in this instance and shunted to the side the values mentioned in the Mishnah.  Obviously erasing all differences between the genders, including those that are Halakhically mandated, is against Halakhah and tradition.  But if one stays within Halacha, is it against tradition?  In fact our history, as documented above, is one of gradually erasing differences and/or eliminating previously mandated restrictions.   Differences, or different restrictions, not because of specific Halacha but just for the sake of having differences, or based on now discredited beliefs regarding abilities, appears to be an ancient value, not a Traditional value. 

Beliefs and psak

‘Modern values’ and Mesorah are not the only influences on Halachic decisions.  The values one grows up with, modern or not, frequently have the most influence on what a person believes.  It seems accurate to state that those who grow up Chassidic usually remain Chassidic, while those who grow up more Mitnagdish usually remain so.  Obviously there are those who cross over, but growing up in a certain milieu is a reasonable indication of where one will end up.  Similarly, those growing up in Zionist families and schools usually remain Zionists, while those growing up anti-Zionist usually remain anti-Zionists.  It seems patently obvious that regarding these important issues and more, the study of mikra, Halakhah and precedent (what the authors of the OU paper describe as fundamental to one’s weltanschauung) are actually minor factors in a person’s weltanschauung.  A video circulated last year showed boys at a summer camp demonstrating against a car carrying a mock Prime Minister Netanyahu^[xvi].   I doubt that prior to that demonstration they had studied the sources of anti-Zionism in depth.  Being anti-Zionist is how they were raised, and when they reach the Gemara on the three oaths and other sources, their upbringing will inform their evaluation of the arguments.  If this were not so, one would expect large numbers of anti-Zionists and large numbers of Religious Zionists to cross over once they encountered the mikra, Halakhah and precedent in depth.  But they do not.  R. Wurzburger noted this as well.  He wrote: “our attitude towards formal psak cannot be completely insulated from our attitude toward the world at large…if I were to ask a she’elah…I would get completely different answers from Rav Aaron Lichtenstein than from the Rosh Yeshiva of Hevron or other right-wing yeshivot…exposure to various modern value systems obviously affects one’s way of responding to halakhic matters [my emphasis].”  I would add that being ingrained with pre-modern attitudes towards women and society also can affect one’s responses to halakhic matters.

A number of recent articles have highlighted the role existing beliefs play in opinions, and how these beliefs usually shape a person’s view of facts.  For example, parents who believed that vaccines caused autism were given large amounts of material illustrating the falsehood of that belief, but the information had little to no influence on their opinions.  If we translate this to the Halachic arena, it appears that pre-existing beliefs have significant impact on Halachic opinions and psak, regardless of the strength or weakness of the actual Halachic argument.

Impact of decisions

There are some issues where being more strict has little potential downside.  Being more machmir on kitniyot for example, leads to dietary changes for some, but would not be expected to impact someone’s life.  It may be reasonable in such an instance to lean away from leniency given the minimal potential impact.  On the other hand, the topic of women’s roles in society and any limitations on them directly impacts fully 50% of the population and indirectly many more.  Being more restrictive without appropriate justification, or out of the desire to avoid being wrong has a significant downside.  What is frequently lost in the discussion of women’s issues is the impact that each and every decision has on the women under consideration. 

Taking into account pre-existing beliefs

Given all of the above, how can/should one come to a position on the issues?  I think that most of the time there is no significant conflict of values.  But, when there is a perceived conflict between ancient values and modern values, how can one decide which should be emphasized within the Mesorah?  It is important for the advocates on all sides to try as best as possible to recognize and address their own potential biases.  But ultimately, the quality and persuasiveness of the Halachic arguments should help resolve which values to emphasize.   While the burden of proof for change is on those who advocate for the change, the argument of ‘it is modern values and against Mesorah’ has been shown to be invalid unless there is an illustration that it actually is against the Mesorah on a Halakhic basis.  And the Halakhic arguments presented in the paper are surprisingly weak (see the next section for a detailed analysis) considering the importance of both the topic and the authors.  Prof. Marc Shapiro, for example, wrote that most Orthodox rabbis would admit privately that there is nothing Halakhically problematic with ordination for women^[xvii].

Conclusion:  Timeless or Ancient?

The authors of the OU paper wrote:   “a commitment to follow the ethos of the Torah, in addition to the letter of the law, requires faith, commitment, and a willingness to embrace timeless principles - even when counter-cultural and incompatible with prevailing societal values.”

  I think everyone committed to Orthodox Judaism agrees with this statement.  The major issue is distinguishing between timeless values and ancient values.  As has been demonstrated, our Mesorah over time, consciously or unconsciously, has addressed the perceived conflict between ancient values and modern values.  Certainly there are modern values that have been appropriately rejected.  Frequently however, ancient values have been rejected or perhaps more accurately assigned a reduced role of importance.   And the modern values have been the impetus for the re-evaluation.  As discussed in the Part II, the Halakhic arguments, taken at face value, are in favor of ordination for women.  The values of eliminating unnecessary restrictions, encouraging full expression of potential to serve the community, fairness, and others also point towards ordination.  There are specific Halakhic restrictions in place governing the behavior of men and women.  The question that needs to be answered is:  What timeless principles (or values) are served by imposing restrictions on women that are not justified by a fair reading of the Halacha and the sources? Are they truly Timeless and justifiably dominant in our Mesorah, or just ancient?  We will return to this topic in section III.

II Halakhic analysis

The authors of the OU paper make an argument that our Mesorah, from a value point of view, is against the ordination of women.   Section I has refuted that claim and illustrated that:  the relative weight of values  within the Mesorah has changed over time, modern values are frequently the impetus for changing the balance of values within the Mesorah, the desire for ordination can be seen as an expression of Masoretic values, and even if we(baselessly) assign an egalitarian impulse to the desire for ordination, egalitarianism is valued in the Mesorah to the extent that the authors of the paper changed the valuation system found in the Mishnah to a more egalitarian one.  From a ‘value’ perspective then, it can be cogently argued that Masoretic values would favor ordination and clerical roles for women, assuming the Halakhah was not clearly against it.   So while the authors endeavor to enter the Halakhic discussion with a strong bias against ordination, this bias is based on an incorrect understanding of the history of Masoretic values. 

The arguments pro and con the ordination and rabbinical roles for women are not simply differences of opinions, where one set of authorities take one position, and other authorities take a different position.  The arguments against ordination essentially state a category or restriction, and then draw conclusions from that category.  But these arguments suffer from one or more of the following problems:  they are based on wrong or at least unproven facts, the claimed conclusions do not follow logically from the premises, the Halachic reasoning is strained at best, the definitions of the categories or concepts lack specifics which allows the authors to escape in depth analysis, and there is great inconsistency in how the categories and restrictions are applied.

The authors present four arguments:  the problem of serarah (authority), the issue of precedent, restrictions of semikhah, and modesty^[xviii].

Serarah

The authors, quoting the Sifre^[xix] and the Rambam, state that women are prohibited from positions of serarah.  They state that serarah is “formal communal authority” but do not give any specifics or further definition.  They then claim, without providing any documentation, that “rabbinical positions have been traditionally understood as paradigmatic of serarah^[xx]”, and conclude that these positions are restricted to men.

Before even beginning the analysis, it is important to note that one of the areas of imprecision is defining the term synagogue rabbi, or perhaps more accurately, the religious leader of a synagogue.  I am not aware of a claim that being a rabbi or having ordination is a prerequisite for being the religious leader of a synagogue.  The authors of the paper address both ordination and functioning as the religious leader of a synagogue.  These are not Halakhically identical to each other.  However, by failing to distinguish between the two, the authors are able to use potential arguments against one function to argue against the other one, when that argument clearly doesn’t apply.  They are using the ambiguity for their own advantage.  In this case, the authors claim, without providing any support, that rabbinical positions are those of serarah.  However, they don’t clarify if this refers to holding the title of rabbi, receiving ordination (and there are many types and categories of ordination), leading a congregation (whatever that entails and however that is defined), answering halakhic questions, or simply teaching.  

Addressing the specific argument, this point contains 2 claims and a conclusion.  Both of the claims need to be true for the conclusion to be valid:

1. Women are prohibited from positions of serarah
2. Rabbinical positions are position of serarah
3. Conclusion: women are prohibited from occupying rabbinical positions.

R. Aryeh Frimer^[xxi] documents many opinions that contradict the assumptions of the authors of the paper.  For example, R. Ben Tzion Uzziel, former chief rabbi of Israel, noted that the Rambam’s opinion with regard to halakhah in this regard is not routinely accepted, there are many Rishonim who disagree with the Rambam, and that the prohibition only applies to those appointed by the Sanhedrin. R. Moshe Feinstein^[xxii] illustrates that Rashi, Tosafot, the Rosh, the Ran, the Ramban and possibly the Rashba all disagree with the Rambam.  So there are many bases for concluding that women are indeed not prohibited from these sorts of positions.

Similarly, the definition of serarah needs to be examined.  The authors define it as ‘formal community authority’- and insist that rabbinical positions are those.  It is telling and perhaps ironic to note that 7 of the greatest rabbinical authorities in the United States authored a position paper forbidding a certain action, and, as far as I know, there has not been a single person who changed their actions because of that position.  There has not been, to my knowledge, a single woman who dropped out of rabbinical school because of the pronouncement.  In fact, the only enforcement, if there will be any, will come from the non-rabbinical Orthodox Union. 

R. Frimer documents the many authorities who note that positions of authority that are democratically elected(and synagogue rabbis are voted in by their boards, who in turn were voted on by the congregants, so it is a democratically controlled process) are not considered serarah.  Furthermore, great authorities stated specifically that rabbinic positions are NOT necessarily positions of serarah.   For example, the Rama (YD 245: 22) wrote:  “someone who holds himself as the Rabbi of the town, even if he holds himself as some sort of serarah, cannot be removed from his position…and his sons inherit….”.  It is clear that being the Rabbi and holding serarah are two separate issues (and note that the rabbinate is designated as life long and inherited).  The Chatam Sofer(OH 12) takes note of this difference and emphasizes that the Rama is discussing positions of serarah and not of rabbinate(although he acknowledges that there are some positions that combine the two).^[xxiii]

Perhaps the most problematic aspect of this prohibition of women from rabbinic positions is that of consistency.  The Rambam prohibited women from positions of authority because they were similar to royal positions.  Royal positions, according to the Rambam, were held lifelong, inherited by the children, and prohibited to women and converts.  In years past there were many responsa written on whether a rabbinical position had to be passed down to the children.  In some cases, it was ruled that the position was not one of serarah and therefore did not have to be inherited.  The point being that the Rambam did not define a category of positions of authority whose sole characteristic is that they were prohibited only to women.  The category had 4 characteristics.  The lifelong and hereditary aspects seem to have fallen away at the same time as general society moved away from similar appointments ^[xxiv](perhaps another example of how ‘modern values’ are being incorporated into the Mesorah).  R. Nachum Rabinovitch in fact wrote that the entire Maimonidean concept of kingship/serarah is inapplicable in this day and age.[xxv] Currently I am not aware of any positions in Modern Orthodoxy that are lifelong and inherited.  The OU does not seem to have a blanket restriction of converts holding rabbinical positions^[xxvi], and R. Schachter himself wrote that converts are allowed to receive semikhah, which is a rabbinical position.  R. Moshe Feinstein, while allowing women to hold positions of serarah in matters of great need, was very certain in his prohibition of converts from positions of serarah^[xxvii]  In order to be a coherent position, the authors need to address all those who do not accept the Rambam’s position(and indeed the Rambam’s position  is not codified in the Shulchan Aruch), define precisely what serarah is or isn’t^[xxviii], define exactly why a rabbinical position is one of serarah, and most importantly, address the tremendous inconsistencies in their position.  As written, it appears that they are going far out of their way both to prohibit women from serarah(and they certainly don’t appear to prohibit women from serving in other leadership positions in the community, both secular and religious^[xxix]), and to define the rabbinate as one of serarah, all the while ignoring the wider implications and inconsistencies of their position

R Nati Helfgot perhaps summed up the issue best when he wrote: 

“Other rabbinic scholars, however, have taken a much more limited reading of the Rambam and maintain that the definition of communal serarah (and thus the subsequent restriction) should be limited to those communal positions of authority that truly mimic the kingship model. In this paradigm only positions that are imposed on the populace with some absolute powers would fall under the Rambam’s categories of serarah. In this paradigm a rabbi of a synagogue who is hired by an election, and fired at the will of the congregation and board would clearly not fall into the category of some inappropriate position of authority even according to Maimonides. Other rabbinic scholars of note have also pointed to the concept of kaballah, of communal acceptance of a woman as obviating the restriction of the Rambam in the view of a number of rishonim. Many significant Modern-Orthodox poskim (though not all) have certainly taken that position over the last century on issues such as permitting women’s suffrage and election to serve in high office or as the president of a shul or a member of a religious council.  Indeed, to my knowledge, over the last decades a number of women have served in the position of president of their synagogues (a number affiliated with the Orthodox Union) without any formal objection.

       Mori verabi, Rav Aharon Lichtenstein, in a conversation with former students currently serving in the rabbinate and Jewish education, recently (December, 2009) discussed this halakhic issue. He pointedly noted that it is clear that the Dati-Leumi/Modern-Orthodox community and its rabbinic elite have clearly come down in favor of a more narrow reading of the Rambam’s restriction. He pointed to the fact that for the last two decades religious women have run as candidates of Dati-Leumi religious parties across the board, for Knesset, and some have served as members of parliament. In addition, a few have served as ministers in the coalition governments with the approval (despite an occasional rumble here and there) of the rabbinic leadership of those parties. These have included scholars such as R. Avraham Shapira zt”l, R. Mordechai Eliyahu (may he have a refuah shelimah), Rav Yaakov Ariel and others.

       R. Lichtenstein stated that clearly a member of parliament and certainly a government minister is often involved in coercive legislation or votes on budgets involving tens of millions of shekels or issues of war and peace. This position is clearly more of a serarah than any shul rabbi or president.  He thus felt that certainly in Israel, the Modern-Orthodox community has taken the position that the expansive reading of the Rambam, limiting women’s roles, is not the normative ruling.”^[xxx]

Precedent

The next issue is that of precedent.  This issue consists of a claim of fact- that the issue of ordination for women was considered and rejected in the past, and a claim of Halacha- that the absence of women’s ordination in the past is of great Halachic significance.

R. Jeffrey Fox^[xxxi] discussed the Halachic reasoning in great detail.  He points out that the claim directly contradicts the explicitly stated position in the Mishnah (Eduyot 2:2, Zevahim 12:4): “לא ראינו, אינו ראיה and R. Fox also illustrates that the basis for the Halachic claim not supported by an unbiased reading of the Halachic sources.

But perhaps even more problematic is the factual claim. The authors write: “We find it implausible to say that the question of female ordination has never presented itself throughout the history of our Mesorah.”

It would seem reasonable to expect that if a topic had been seriously considered and rejected on a communal level (in other words, not just one isolated person but the entire Jewish community), there would be some documentation of that.  However, the authors fail to bring any documentation for their assumption.  In fact, a comprehensive review of the entire topic of Semikhah^[xxxii] states: “A most interesting question which has not been explicitly discussed anywhere, is whether a woman is eligible to obtain Semikhah.”  An argument from silence is not usually considered a strong argument.  But in this case, the argument from silence is much stronger than the argument that semikhah for women was considered and rejected but absolutely no written trace of this is found, especially considering that tens of thousands of volumes of responsa have been written over the years and there is no sign of any discussion let alone rejection. 

Semikhah

The authors state:  “While contemporary semikhah differs from classic semikhah (as described in the Talmud) in many regards, it must, nevertheless, be viewed as an extension of the original institution of semikhah.  Parallels between the current and original forms of semikhah therefore, are relevant and valid. Various sources indicate that the classic semikhah involved, and in fact may have centered on, designating individuals to serve as court judges. Since the majority halakhic view is that only men are eligible to be ordained as judges, even contemporary ordination would be restricted to men.”

This claim consists of a number of parts, all of which have to be true in order for the conclusion to be true:

1. Women cannot be judges
2. Because women can’t be judges, they were not eligible for classic semikhah
3. The restrictions on classic semikhah apply to current semikhah
4. Therefore women cannot receive current semikhah

There actually is another crucial but unstated and unaddressed claim:

1. Semikhah is needed to be the religious leader of a synagogue

Whether women can or cannot be judges and whether the restriction was extended to semikhah is a vitally important issue but deserves a separate in depth discussion. 

The above point does not require discussion because it is very clear from the historical and Halakhic record that current semikhah is entirely unrelated to classic semikhah.  Perhaps more importantly, it is also very clear that community religious leaders functioned in all the capacities of ‘rabbis’ without any formal semikhah. 

The authors reference Shulchan Aruch YD 242^[xxxiii]. This siman discusses the relationship between student and teacher.  Some of the sections reference previous works which use the student/teacher relationship of classic semikhah to provide a basis for current student/teacher relationships.  Since there is a Halakhically mandated relationship between students and teachers as mentioned in the Gemara, it is reasonable and necessary to establish the parameters of what that relationship should be.  And, the only precedents for student/teacher relationships in Halakhah are those with respect to semikhah.  However, it is an unfounded leap in logic to claim that the adoption of some aspects of the student/teacher relationships implies the adoption of all the restrictions and practices of classic Semikhah.  Furthermore, they do not reference Section 14 which reads:  “the semikhah that we practice at this time is so that people will know that he has achieved instruction (higia l’hora’a) and that he is instructing with the permission of the Rav who gave him semikhah.  Therefore, if his Rav died, there is no need for semikhah.  And so it is with a talmid chaver as it is stated elsewhere, in a place there is no need for permission, there is no need for semicha…….in any event, in these days, it(semikhah) is only the granting of permission.”

The history of modern semikhah also  illustrates that not only is there no connection between ancient and modern semikhah, but that for long periods of time there were those who functioned as religious leaders and were recognized as such without semikhah. 

Dr. Irving Agus (history professor at Yeshiva University) wrote^[xxxiv]: “….we can see that there was no formal semikhah in the 13^th century in Ashkenaz, and that the student did not receive permission to give hora’ah or to judge, and there was not given to him any special semikhah as a posek or even in the laws of what is forbidden and permitted.”  Professor Leah Bornstein quotes^[xxxv] R. Yehuda Barziloni (from his book, “Sefer HaShtarot”) that the semikhah given in the 12^th century was: “... in remembrance of semikhah.  That is to say, a secular practice…..given only for the purpose of encouraging the learners.”  R. Yitzchak Abravanel, on reaching Italy from Spain wrote regarding the semikhah that was being given in Italy:  “I don’t know where it comes from for them to allow this, perhaps they were jealous of the non-Jews that are made ‘Doctor’, and they are doing likewise.”^[xxxvi]

The function of semikhah in this day and age is so that the public know that someone is capable, and that his/her teacher has given him/her permission to rule.  Importing the restrictions of classic semikhah appears to be a more modern invention.

In summary, even if one accepts that women are prohibited from receiving classic semikhah, the claim that women cannot receive contemporary semikhah is based on the now refuted claim that the prohibitions on classic semikhah apply to contemporary semikhah.  Furthermore, the authors are again inconsistent.  There were many conditions and restrictions on classic semikhah^[xxxvii] .  Yet it appears that the only condition that the authors have adopted from classic semikhah is the restriction on women, and none of the others.

Converts are also prohibited from receiving classic semikhah.  However, in a discussion of the parameters of converts judging other converts^[xxxviii], R. Herschel Schachter writes that according to some opinions: “  the establishment of a judgment in beit din is an act of serarah on the defendant according to Tosafot(and not according to Rashi), because there is a difference between giving instruction in what is permitted and forbidden(hora’at issur v’heter) and the judgment(psak) of the court(bet din), because instructing permitted/forbidden(even treifot and mar’ot of blood) the judgment is not related to any specific mikra b’prat, only that the Chacham is only giving his opinion in halakhah ha-mufshetet.  Which is not the case with beit din….which is an act of serarah.” 

Giving instruction in issur v’heter according to many is the essence of modern semikhah.  R. Schachter, when discussing converts, states specifically that this is not serarah.  Even giving judgment in court, according to some opinions, according to R. Schachter, is not serarah.  This appears to be quite inconsistent with the OU paper’s position on both serarah and semikhah, and provides yet another illustration of how it appears that some poskim define and apply basic halakhic concepts differently when women are involved. 

Modesty

The final major halakhic argument is that of modesty.  The authors write:  “the sanctity of the synagogue demands a particularly enhanced level of modesty - as illustrated by the requirement of a mechitzah. This elevated demand for the separation of genders is incompatible with a woman presiding over a male quorum.”  The reference for this is R. Schachter’s article ‘B’inyanei Beit ha’kenesset u’kedushato’.  Instead of reading the article as referenced^[xxxix], I suggest reading the original^[xl] which contains a final section (not found in the subsequent republication) which illustrates the disdain Rav Schachter has for those who disagree with him.

R. Schachter’s argument is based on an Aggada-regarding a woman Kimchit, all of whose sons served as Cohen Gadol. When asked, she attributed this to the fact that she kept her hair covered at all times even in the house.  Essentially, an Aggadah where a woman was rewarded^[xli] for going beyond the letter of the law in hair covering is being used as proof that a woman cannot receive semikhah and/or serve as the religious leader and/or rabbi of a synagogue.  The logical gulf is obvious, but some further analysis may be useful.

It is important to take into consideration the various types of tzniut- modesty.  There is sexual modesty, which understands that certain areas of both men and women’s bodies should be covered.  There is also the ‘hiding from the public’ modesty that R. Schachter mandates^[xlii].  Essentially R. Schachter states that all women in all circumstances are forbidden from appearing in public unless a man is not available to perform the task, or there are other mitigating circumstances. However, not only does the practice of the Modern Orthodox community not conform to this idea, it does not have to be seen as Halacha.  Addressing a text mandating that women not stand out in public, Rav Yehuda Henkin writes:^[xliii]  “ [these sources- in this case the text Oz v’Hadar Levushah by R. Yehoshua Falk] are as much about ideology and outlook as they are about Halachah.  This ideology prohibits a woman from standing out and from being outstanding. She must not act in a play, paint a mural, play an instrument or otherwise demonstrate special skills in front of men, lest she attract attention and her movements excite them(it is noted that the basis for the restrictions are perhaps somewhat different. Oz ve’hadar Levushah appears to be concerned solely with sexual excitement, while Rav Schachter claims that his concept goes beyond sexual excitement and is based on a fundamental demand by Halacha for privacy- but the result is the same).

Rav Henkin goes on to specifically state:  “But I think no such issur exists….according to this ideology, the one area in which a woman should strive to excel is that of tzniut itself…..a woman’s ultimate distinction is to be considered a tzanuah.”

Kimchit’s act was covering her hair, which in some situations is considered ervah.  So it is an act of going above and beyond in sexual modesty. 

There is a baseline of sexual tzniut for men and women, wherever they are.   One would assume that synagogues with appropriate mechitzah’s and properly dressed and acting men and women achieve that baseline.  And, the other sources brought by R. Schachter emphasize that it is good to be stringent that the baseline is maintained.  Just because a lack of tzniut seems to be a cause for the removal of the presence of the Shechinah, does not logically imply that more than mandatory tzniut will do more to bring the Shechinah.  And if a woman covering more than necessary is good, then men covering more than necessary would be equally good, since they both have baseline obligations of covering certain areas.   If men and women are appropriately dressed and on their respective side of the mechitzah during davening, it is hard to understand how a women ‘presiding’ over a male quorum is a problem of sexual tzniut.  And, if having a non-clergy female give a drasha is not a problem, then having a female clergy give a drasha should also not be a problem.

It is equally difficult to understand why the issue of women presiding over davening is selected as emblematic of problems with modesty.  There are many actually codified restrictions on men (SA EH 21) which could be enforced in the synagogue if more modesty was needed.  In other words, even accepting the assumption that supranormal tzniut is needed in a synagogue, the authors have not explained why they selected having a women preside (whatever that is defined to be, and certainly it is a problem that can be avoided simply by appointing someone else to ‘preside’- it does not have to be an intrinsic part of the rabbinic role- certainly shuls with multiple minyanim have minyanim where the rabbi does not ‘preside’) as being problematic.

R. Ben Tzion Uzziel identified and debunked what is perhaps the underlying assumption:  “It is common sense that in any serious meeting and meaningful conversation there is no question of lack of modesty…and sitting in the proximity [of women] when involved in communal affairs, which is work of holiness, does not lead to lightheartedness.  For all Israel are holy people, and her women are holy and are not to be suspect of breach of modesty and morality.”^[xliv]

Discussion

In science, the veracity of a theory is ascertained by how well it coheres with ideas of how things work, how well it explains known facts, and how well it predicts new findings.  In the Gemara, consistency is greatly valued, and inconsistency is a reason to reject a position.  In any disagreement regarding sources, some understandings of positions are clear, and some are forced.  Similarly some conclusions are logical from the premises, and some are leaps of faith. 

The authors of the OU paper presented 4 halakhic rationales.  For the argument of serarah, they had to prove that women indeed were prohibited from those positions, that the positions under consideration were those of serarah, and that their use and application of the concept and definition of the positions were consistent.  This paper has illustrated that the position that women are prohibited from serarah is far from universal, and, more importantly, it is very difficult to characterize the positions in question as those of serarah.  And, the prohibition is being applied quite stringently in the case of women, but not in other similar situations such as those of converts.

Similarly, the argument of semikhah required proof that women were prohibited from receiving ancient semikhah, this prohibition still applied even though ancient semikhah is universally acknowledged to have ceased in the time of the geonim, and that the construct was coherent and consistent.  We have shown that it is not clear that women were prohibited from receiving ancient semikhah, and more importantly, that even if there was a prohibition, there is no basis to the contention that it extends to modern semikhah.  Furthermore, it appears very incoherent and inconsistent since the only characteristic among many of ancient semikhah being brought forward is the prohibition of women.

The argument from precedent required proof that indeed the possibility of semikhah for women was considered and rejected, and that this previous rejection is adequate precedent.  We have shown that there is no evidence for the assumption, and that the halakhic methodology is not compelling.

The argument from modesty makes a huge logical jump from ”Kimchit was rewarded for covering all of her hair all the time” to “we should make sure we are modest in synagogue’ to ‘women can’t preside over services’ without proving the connection.  The argument also ignored many other, more halakhic ways to improve modesty in the synagogue, if indeed it was necessary.  Furthermore, presiding over services is not necessarily a key part of a rabbinic role, and disqualification from that would not at all imply disqualification from all the other rabbinic roles.

Perhaps the most distressing aspect of the teshuva is the lack of precision and clarity.  There is no precise definition of serarah, there is no precise definition of semikhah.  Furthermore, there are least four different categories that have been lumped together: formal semikhah for women, women giving hora’ah without formal semikhah, women holding the position of rabbinic leader of a synagogue, and a woman performing the functions of leader of the synagogue but without the formal title.  These distinctions are important, because certain halakhic restrictions might apply to one category but not others.  For example, halakhic restrictions on formal semikhah would not be applicable to the non-semikhah positions.

As a side issue, if the attempt to bar women from religious leadership is going to include the concept of Hora’ah, it needs to be defined.  It should be clear that modern hora’ah can be considered very different from ancient hora’ah.  As R. Lichtenstein wrote^[xlv]: “Now, however, the posek’s personal status has been vitiated, and with it, the standing of his decisions.  Now, he essentially serves as a reference guide, providing reliable information about what the tradition and its sources, properly understood and interpreted, state; but it is they, rather than he, that bind authoritatively.”

By lumping all the categories together, the OU panel was able to make it seem that Halachic objections to some of the categories apply to all of the categories, a position for which they do not provide any justifications.

They write:  “For the reasons stated above we believe that a woman should not be appointed to serve in a clergy position. This restriction applies both to the designation of a title for women that connotes the status of a clergy member, as well as to the appointment of women to perform clergy functions on a regular ongoing basis - even when not accompanied by a rabbinic type title.”

They then go on to list: “officiating at religiously significant life-cycle events, (e.g. brit milah, baby naming, bar mitzvah bat mitzvah, weddings and funerals),  the regular practice of delivering sermons from the pulpit during services, presiding over or “leading services” at a minyan and formally serving as the synagogue’s primary religious mentor, teacher, and spiritual guide. While a synagogue rabbi performs myriad functions, it is these common functions most often performed by a rabbi that characterize his role as the synagogue’s formal religious leader. The gamut of rabbinical responsibilities has evolved over time, adapting to the needs of each generation and locale. Nonetheless, the designated role of spiritual synagogue leader can be identified through the prevailing rabbinic duties.”

They have established a new and as far as I know unprecedented Halachic category of ‘things a synagogue rabbi does.’  Doing them is not serarah, does not require semikhah, is not subject to the precedent argument(as least not as presented, and to make it would be even more specious than the one presented), and is not necessarily a problem of tzniut.  On the basis of the arguments presented, there is absolutely no reason to restrict women from performing them.  Yet, all are prohibited.

The bulk of the OU paper is not focused on Halacha but on tradition.  It seems that the authors felt that female clergy violate the values of tradition.  They obviously had the Rabbinic will to ban women clergy.  And they constructed a Halachic way to ban women clergy.  But their halakhic arguments are based on wrong or unproven facts, faulty logic, fuzzy definitions, inconsistent application of rules, and forced arguments.

III what does God want from us in terms of gender in the public square?

The authors of the OU paper discuss Halakha, but appear to give equal if not greater weight to what can be called ‘meta-Halakhic’ or overarching Halakhic issues.  They present essentially two arguments: Mesorah(what we have been doing has weight independent of any basis), and the idea that there is a specific Halakhic value, more than just technical restrictions,  in gender restrictions in the public square.  Section I addressed the Mesorah argument.  There are three challenges facing the OU authors in making this second argument:

1. Articulating a coherent practical theory of gender in the public square- what is allowed, what isn’t, and why(more details below)
2. Articulating the principles that undergird the practical theory- what exactly is the basis for this mandate?
3. Articulating whether restrictions on gender are in the category of a moral good, or more of a yoke of Heaven that demands obedience.  In other words, is it our Halakhic obligation to increase restrictions, try to identify them without value judgements (as best as possible), or lessen them?

Is there a coherent theory for what is allowed and prohibited?

The first challenge may appear straightforward, but it is not.  The authors of the OU paper write:  “Gender differences have, historically, been particularly evident in the arena of public service. We believe that these distinctions are not merely a relic of times bygone; instead, they reflect a Torah ethos - a Mesorah - of different avenues and emphases by which men and women are to achieve identical goals - the service of G-d and the perpetuation of the Jewish people.”

While the authors here use the term ‘public service’, the content of the paper illustrates that they do not oppose women in public service.  They can be scholars, give classes, and appear in the public eye- without restriction as long as they are not considered clergy. What is problematic for their position is that the usual sources cited for restrictions on women are those that restrict women from the public square.  The authors appear to be using those sources and tradition, not to restrict women from the public square, but to prohibit women from occupying positions of leadership.

For example, R. Schachter’s concept of hiddenness requires women more than men to avoid being in public.   A woman can only be in public if a man is not available to perform the duty.  He applies this concept to everything, not just leadership positions and not just in the religious but in the secular realm as well.  Another vocal opponent of progress for women, R. Moshe Meiselman, also restricted women from the public square, based not on halachah but  on a Midrash^[xlvi].  It should be noted that this Midrash is focused on tzniut, does not address leadership, and does not mandate any Halachic restrictions.  Indeed, the authors of the OU paper do not bring any specific evidence that the distinctions of bygone times are in fact a Torah ethos and certainly no evidence that they restrict women’s leadership.

The phrase ‘kol kevuda bat melech’(Tehillim 45:14) has been used as a source ‘proving’ that women should be private and out of the public square.  It should be noted that the discussion stemming from this phrase is not about leadership, but the public square.   R. Eli Reif^[xlvii] illustrates that the use of this pasuk was NOT an imposition of restrictions, but a mechanism for women to choose, if they wished, not to violate societal norms.  And while there are those who use it to forbid^[xlviii], many modern poskim hold like R. Sha’ul Yisraeli^[xlix] who wrote: “in our generation, religious women work in various offices, hospitals, kindergartens and schools, and yet no one objects.”  The point is that a concept that was used in the Gemara to allow women the option of avoiding the public is used by some to forbid them from the public. 

This pasuk was used as a concept three times in the Talmud Bavli. An analysis of its use versus contemporary reality illustrates that it is a poor choice for those who want to use it as a source for binding restrictions in the modern age.  The Gemara in Shevuot considers that women might not appear in court because it was not the way of honorable women to do so. The pasuk of ‘kol kevuda’ is used as a proof text.  In modern times, Orthodox women work in courts, testify in courts, show up in court as lawyers, and even are judges.  If the use of kol kevuda in this instance was meant as a restriction of women from courts, it is being globally ignored.  Similarly the Gemara discusses whether Jewish (or Moabite) women did not go out to meet their counterparts, and the verse is used to posit that perhaps they did not go out due to modesty. Currently Orthodox women participate in welcoming committees, neighborhood events (with non-Jews), and again, it is hard to see this use as a basis for current restriction.  The third use of the verse involves a woman in a strange city who asks that her husband support her financially so that she will not have to go out to work for strangers.  The verse is used to support the contention that it is not honorable for a woman to have to go out and do so.  The Gemara in this instance rejects the claim, and the conclusion in the Gemara is that the husband does not have to support his wife; she is obligated to support herself, despite the possible detriment to her honor.  This discussion is in fact still employed in Jewish courts currently to deny some claims of alimony^[l].

What hopefully is clear is that it is not factually or logically compelling to use the concept of ‘kol kevuda bat melech’ as developed in the gemara as the basis for some sort of restriction or mandate for modern private behavior.  If the restriction doesn’t apply in the case of the original usage, it is hard to posit that it applies to any extended usages.  And even if we accept extensions of its usage to prohibit public appearances, it still does not impact on leadership.

Another potential source for restricting women from the public is the curses of Eve.  The Gemara in Eruvin^[li] notes that one of the curses of Eve is that she is imprisoned. R. Reif posits that the Rambam was referencing this when he stated that despite restricting women from going out more than a few times a month, she should not be a prisoner in her home.  However, there is no mandate to enforce a curse. As R. Herschel Schachter wrote (in reference to Zionism): “ Surely Judaism does not forbid the attempt to avoid or curtail a punishment from God.”^[lii]

Bereshit 1:28 and the attendant Midrash is a frequently cited source for gender roles.  This source impacts both on the practice and the theoretical underpinnings.  In Bereshit 1:28, God blesses the man and woman that he had just created and tells them to have dominion over the world.  It would appear from the pshat that both genders are obligated in conquering, and that is one opinion in the Midrash.  However, another opinion in Bereshit Rabba(8:12)(utilizing a difference in kri/ktiv) states that instead of the woman being commanded to conquer the world, the man is commanded to capture his wife so that she does not go out to the market, because all those who go out to the market in the end will go astray.  The proof provided is the incident of Dina, who the Torah tells us ‘went out.’  The Midrash therefore presents two options- women have the same obligation as men in conquering the world or, women do not have the same obligation as the men, and in fact are to be kept from the public square, by force if necessary.  The irony in the case of Dina, aside from the victim blaming, is that the problematic area is not the religious public square, but the secular public square. 

This distinction between the secular public square and the religious sphere deserves further analysis. Most of the usually quoted mandates for modest behavior appear to apply to the public square in general, not specifically to the religious square.  We have already pointed out that the mandates for modest behavior do not prohibit leadership any more than any other public activity.  The community has even embraced Jewish judges in the secular court system.  This is significant because the same Rambam, who prohibits women from serarah, also prohibits women from serving as judges in non-Jewish courts^[liii].  Yet, as far as I am aware, there is no opposition or opprobrium.

 There also does not appear to be a Halakhic basis for prohibiting religious leadership more than secular leadership. R. Aryeh Klapper pointed out^[liv]: “One might suggest that the prohibition (of serarah) applies specifically to positions of religious leadership.  But I can find no basis for this suggestion in the Rambam or any other Rishon…..” 

The reality of Modern Orthodox society is that women occupy public positions and positions of leadership in the secular sphere, without a peep of protest from Modern Orthodox religious authorities.  They occupy public positions in the religious community without significant protest.  Yet, sources that apply most specifically to secular public roles or even just appearing in the secular public square are being employed to prohibit women from religious leadership roles.  The gap in logic and consistency is clear.

As noted in part II, religious leaders in Israel have noted the inconsistency in prohibiting religious participation while encouraging secular participation.  Perhaps the overlap of religious and secular in Israel has made it clearer that there is no Halakhic or practical distinction between secular and religious leadership roles.  And, that there is no distinction between the secular and religious public square.  While some may still oppose ordination for women, more and more authorities in Israel have recognized that prohibiting women from leadership roles in the religious community while embracing those roles in the secular community is a logically untenable position.  Unfortunately many in the United States have yet to see the schizophrenic nature of the position.

Those in favor of ordination for women can formulate a logically coherent position:  Certainly there are Halakhically mandated differences between men and women.  However, many of the prohibitions codified in the past, such as the Rambam’s prohibition on going out of the house more than a few times a month, are culturally based, and not universally mandated.  Yes there is a mandate for all to act in a modest way, and there are Halakhic differences between men and women, but that does not prevent men or women from being in the public or acting in leadership roles.

Those opposed to ordination for women seem to have one of two options.  They can attempt to bolster their case that from a strictly Halakhic point of view it is prohibited.  As illustrated in part II, this appears to be a quite difficult task.  The other option is to make the case that extra-Halakhic restrictions on women are desirable and in fact mandatory.  The above discussion has illustrated how the use of the usual concepts to restrict women from leadership positions is entirely inconsistent with their usual understanding and inconsistent with Modern Orthodox practice.

Perhaps the underlying question behind this and similar discussions is:  What is the ideal?  Do the steps forward that women have made in being in public, having jobs outside the home, learning and teaching Torah, being able to vote etc., are these moving towards an ideal? Or are they unfortunate necessary concessions to the practicality of life?

What is the theoretical basis for a theory of restriction?

In addition to a practical theory that explains what is prohibited and what is not, it is necessary to explain the basis for those restrictions.  The authors of the OU paper write about a ‘Halakhic ethos’ and employ that ethos as part of their argument against ordination and other roles.  They also take note of ‘historical differences’ between genders.  But those in favor of maximally restricting roles for women need to take the facts into account.

Some of the facts are these:

1. The Gemara, midrash, and many other sources in the Mesorah contain many disparaging comments regarding women^[lv].  Do the opponents of ordination agree with these opinions? Are they the basis for the ‘historical differences’? If they don’t agree with the opinions, do any restrictions that flow from them change?
2. The Gemara and older sources were written in a pre-modern milieu where women were, completely unrelated to any religious prohibition, generally prohibited from leadership and from the public square. Did that cultural milieu impact on the ‘historical differences’? Now that the cultural milieu is different, how does that affect Halakhic or extra-Halakhic restrictions?
3. Modern Orthodox women do not appear to be restricted from secular leadership or from the secular public square, as noted in the first discussion. Are they in violation of the ‘Halakhic ethos’?

Furthermore, what the authors state regarding the timeless nature of gender roles  could have been and in fact  in some cases was written many times in the last few hundred years^[lvi]- in opposition to women working outside the home, women voting, women holding public positions, women learning Torah, and many more.  And the argument against women performing the particular activity was eventually rejected in many cases. So, in the absence of a supporting Halakhic mandate, simply pointing out a history of gender differences, without addressing the milieu of where they started and the history of how many of them have gone by the wayside,  is not a persuasive argument.   

As noted above, the Midrash Rabba on Bereshit presented two stark alternatives:  women have the same obligation as men in conquering the world, or, women do not have an obligation to conquer the world, and in addition, men are obligated to keep their wives inside.  Certainly it is possible to believe in the second option, and there are Orthodox communities who do so and enforce it maximally.  However, the practice of the Modern Orthodox community is consistent with the first- women have the same obligation to conquer.  If the OU panel is basing part of their opposition on this second world view, they should make it abundantly clear what their fundamental view actually is.  The community can then decide if they wish to accept that fundamental view, or look to poskim whose views are more in consonance with their practice and beliefs.  Ultimately, if an argument is going to be made that there is a theoretical basis for restrictions on women beyond the specific Halakhah, it is necessary to articulate the theory in a systematic and coherent fashion.  This, I think, so far is an unmet challenge.

What does God want?

The authors reference two ‘meta’ concepts- “Derakheha darkhei noam vekhol netivoteha shalom” and “v’asita hayashar vehatov”. We are commanded to do what is good and what is right.  Is it good to look for restrictions on women, converts, differently abled, and others? Is it a good to take a pasuk such as ‘kol kevuda’ or a concept such as ‘tzniut’ and manufacture restrictions? As noted above, neither R. Schachter nor R. Meiselman were able to find a Halakhic source for their restrictions, and need to import Halacha from Midrashim or creatively^[lvii]  re-interpret the concept of ‘v’halachta b’drechav’ in order to find a basis for the restrictions that they mandate.  In fact, in reviewing R. Getzel Ellinson’s three volumes on mitvzot regarding women^[lviii], I was not able to find any specific restriction on women in leadership nor appearing in public.   There are, to be sure, restrictions related to sexual issues (modesty, yichud, etc) or the relationship between husband and wife, which also, incidentally, apply at least in part to men as well.   But applying them to appearing in public and leadership is taking them completely out of context.  Is it good in God’s eyes to do this?

In discussing whether a convert can be a Rosh Yeshiva, R. Moshe Feinstein wrote “However, in practice you should know that that the mitzvah of “and you shall love the ger” requires us to bring them close and to be lenient regarding all these things.  Therefore, after great thought it appears that we need not consider such appointments in our time like appointments of serarah….”^[lix]  Similarly, R. Feinstein was concerned regarding the deaf/mute.  Why are we not similarly concerned regarding women?  The Torah mandates that there is one law that applies equally to the convert as well as to the native born.  The usual understanding has been that the convert might suffer discrimination.  Now, it appears the reverse is true.  The authors of the OU paper do not seem to have a problem with converts in leadership, but appear to be going out of their way to find arguments against women in leadership- not only for their own specific sphere, but for all of Orthodoxy.  They do not appear to be willing to even acknowledge that those who disagree have a legitimate opinion.  Do they think that imposing restrictions on women is doing the good and right?

For the history of Halakha, poskim, all of them men, have been considering the status and place of women in public and leadership.  Even prior to considering the specific Halakhic issues, they have, consciously or not, brought their pre-existing beliefs with them.  And their beliefs have colored their evaluation of the Halakhic arguments.  Obviously there are Halakhic parameters that cannot be breached.  But within those parameters, similar to Rav Moshe and the convert, there are situations where the beliefs mandate trying to find a way to allow an action.  My guess is that most if not everyone would think that finding a way for a differently abled person to participate in davening, for a deaf/mute to have an aliyyah, etc. if achievable within the system, is desirable.  As R. Moshe illustrated, and the OU authors specifically state, there are specific Halakhic arguments, and there are also more overarching Halakhic values that can influence the posek to lean one way or the other, obviously within the Halakhic system. 

Some have used the overarching value system to sideline the specific Halachic analysis.  For example, R. Herschel Schachter, by labelling any request for changes in the status of women as heresy^[lx], barely needs any other rationale to oppose changes.  The authors here use Mesorah and tzniut to influence the Halakhic balance.  This is not to claim that heresy, Mesorah and tzniut don’t have Halakhic weight.  But they are the Meta issues that have not been adequately addressed. 

As an example, there is a very cogent(and as demonstrated, much more compelling) technical Halakhic argument that can be made:  Rabbinic positions are not serarah and even if they are, we do not have to follow the position of the Rambam; aside from the name, there is no connection between ancient semicha and modern semicha; there is no recorded discussion of ordination for women and therefore there is no precedent against it; and appropriately dressed and acting men and women are not a violation of any issues of tzniut.  So the question that needs to be addressed is:  What are the negative consequences of ordaining women that the authors are so concerned about?  Is not eliminating non-mandated restrictions, similar to the other groups, something that should be considered laudatory and ‘good’?  Should we hunt for new restrictions because restricting women from the public or leadership as much as possible is a Halakhic value?  I think it is clear from the practice of the Modern Orthodox community in secular Public Square, and from the strides that have been made regarding the differently abled in the religious sphere, that we embrace the idea that minimizing restrictions is a Halakhic good.  So why has that not been extended to the Modern Orthodoxy religious sphere with regard to women?

Some poskim write about motivations- that women are motivated by ‘non-kosher’ desires to be just like men or to tear down Halakha.  It is somewhat ironic that those who demand that women be excluded from decision making also assume to know exactly what women are thinking and their motivations.  The situation could hardly be less fair, when those arrogating to themselves the right to decide refuse to even take steps to ascertain actual facts.  The use of motivation also allows poskim to skew the Halakhic calculation and/or avoid the Halachic discussion.

Consider a male Kohein who falls in love with a woman, and then discovers she is a divorcee.  One can claim that the Kohein’s desire to marry the woman is a desire to flout Halacha, he is a sinner, and the case is therefore closed.  One could also admire the love between two human beings while also noting the restriction on a Kohein marrying a divorcee.  In that case, one could examine all the facts and laws of the case and see if there was a Halakhically valid way to allow it- knowing that in some situations there might be, and in some situations the answer will be no.  But the no, in that case, is a no of sorrow and submission- submitting to the yoke of Heaven, while at the same time acknowledging the sorrow of the human beings whose love for each other will remain unfulfilled.  The comparison is actually not very good because while the Halakha regarding the restrictions on the Kohein are relatively clear, well sourced, and unambiguous, those restricting women from the public square, as discussed, are not.  But the point is that seeing the situation from the couple’s point of view, being sympathetic, and trying to find a solution that will work for them seems like a logical and reasonable approach- despite the specific Halakhic proscriptions on the books.  On the other hand, many and perhaps most of those opposed to women in public or leadership, do not give the women the same sympathetic hearing, and seem predisposed to say no and close the books.^[lxi]  The question that they need to answer is: Is this the path that reflects the good and the right? Is that the way of pleasantness?  The OU paper referenced the use of ‘deracheha darchei noam’ in two places; in one it is used to try to make sure a woman is not denigrated, and in the other, to make sure that we are not obligated to use a thorny branch for ritual purposes.  I think an honest appraisal of the meaning of these concepts, and how they have been used for other groups, leads to the conclusion that minimizing restrictions, as much as Halakhically possible, is the way of pleasantness.  Maximizing restrictions is oppression.

Conclusion

The arguments against ordination for women in the OU paper were:  Mesorah, Halakhah, and Halakhic ethos.  I think that I have adequately demonstrated that our Mesorah recognizes the contribution of modern values- and there is no reason for this case to be an exception.  The Halakhic arguments against ordination have been addressed in detail, and a more compelling argument in favor of ordination was made.  In the third section, I hope that I have raised to consciousness a perhaps under discussed topic:  What is the ideal?   Does God want us to have more or less restrictions on women?  What is “the good and right” with regard to this issue?  The answer, at least for the Modern Orthodox, is less restriction.

There is a cartoon where Bugs Bunny draws a line and dares Yosemite Sam to cross it^[lxii].   Yosemite Sam crosses it, and Bugs draws a new one.  As each line is crossed, a new one is made.  Ultimately Bugs draws a line at the edge of a cliff, and Sam falls off the cliff.     The progress that women have made over the years is similar in some ways.  Poskim have stated that women were prohibited from a certain action, making it seem that it was the line at the top of the cliff.  But then women did it, and it was not the cliff.   Women moved into the public job market, voted, held leadership positions in the secular world, learned Gemara, taught Shiurim, etc. and I think that the Modern Orthodox world as a whole would agree that we have benefited from crossing all these lines.  And in retrospect they shouldn’t have been lines to begin with.   Ordination for women is just another line being portrayed by some as a cliff.  But it is a non-existent cliff, and it should not even be a line.  That is not to say that there are Halakhic lines that cannot be crossed.  But as noted in section 2, there is no Halakhic line here. 

For some, the cliff model represents their approach to women’s issues in Halakha.  There is a safe area, and movement in a certain direction invokes possible danger.  They are concerned about a ‘slippery slope’ and getting ‘too close’ to the edge. What they may fail to realize is that there is Halakhic danger (certainly of a different sort) in all directions.  Prohibiting that which is allowed is also problematic.  Is it appropriate to place restrictions on 50% of the population which are not specifically Halakhically mandated?  Perhaps the better analogy is the mountain path with cliffs on both sides- finding the proper way forward while balancing the various Halakhic and Masoretic arguments- keeping in mind the effect each and every decision and pronouncement has on the people involved and the entire community.   There are Halakhic cliffs in pretty much all areas of life.  And we need to be cognizant of that.  But the knowledge that there is a cliff somewhere should not keep us doing what we know is right, good, and Halakhically appropriate.  The authors of the OU paper may feel that this issue represents the cliff.  I think that this paper has adequately refuted that view. I hope that those who disagree with what I have written will address the points and issues identified in this paper so that the discussion can focus on Halakhah, facts, logic, and consistency, rather than devolve into competing claims of authority.  And may all our disputes be for the sake of Heaven and for the sake of all of Klal Yisrael, women and men.

This paper has been written in memory of Batsheva Chaya bat Noam Yigal v’Rina.  Batsheva was a proud Orthodox Feminist who never shied away from making the point she knew was right, no matter what authority she faced.  I hope this paper is an adequate tribute to her.

I am grateful to those who reviewed and provided crucial feedback and comments.  I am also grateful to those with whom I have discussed these ideas and whose responses assisted me in making better arguments.  Full responsibility for the content is mine alone.  Translations from the Hebrew are mine unless otherwise noted

The oeuvre and the halakhic and ideational creativity of several Sephardic and Middle Eastern rabbis of recent centuries have attracted increasing attention in recent years. Great figures such as Rabbi Benzion Uziel, Rabbi Ḥaim David Halevy, Rabbi Ovadiah Yosef, and Rabbi Yosef Mesas have received much merited attention and analysis by scholars writing in Hebrew, in English, and sometimes in other languages. However, many other great scholars and halakhic decisors remain almost unknown to persons who are not in-depth devotees of the topic. In this article, I seek to briefly introduce the reader to seven such rabbis. For each I provide a concise biography, and a translation and analysis of an interesting passage from his halakhic writings. The order of presentation is roughly chronological.

Ḥayyim David Ḥazan

Accommodation (rather than exclusion) of marginal or problematic Jews, and the courage to make the independent and non-conventional halakhic decisions required for such accommodation, was a policy characteristic of many leading Sephardic/Middle Eastern rabbis in modern times. A powerful formulation of such policy considerations is found in the writings of Ḥayyim David Ḥazan. Rabbi H. D. Ḥazan served as Chief Rabbi of his native city Izmir from 1840 to 1855. In that year he moved to Jerusalem, and in 1861 was elected Rishon le-Tziyyon (Chief Rabbi of Jerusalem), a post he held until his death in 1869. He formulated a policy statement on response to the challenges of modernity in reaction to a halakhic drama that unfolded in the 1840s.

A Jewish Salonican fell in love with an attractive (Jewish) widow who had arrived from Western Europe, and under various pretexts divorced his wife with the intent of marrying that widow. The city's rabbis, seeking to block this union that they considered immoral, forbade them to marry and attempted to enforce this prohibition with the help of the Ottoman authorities. In response, the couple fled to the home of a European consul, asking for protection based on the capitulation treaties—and in the process converted to Christianity under auspices of the consul.[1] Subsequently, the couple fled to Izmir, and there asked local rabbis to enable them to marry. The Salonican rabbis sent letters requesting the rabbis of Izmir to support the ban, and several rabbis in Izmir felt obliged to concur. However, Rabbi Ḥayyim David Ḥazan argued that this manner of response was both mistaken and disastrous: Not only had the Salonican rabbis failed to prevent the couple from living together out of wedlock—their unrelenting policy had led the couple to convert out! He therefore encouraged the couple to desist from conversion and permitted them to marry in a Jewish ceremony and live as husband and wife. In the course of his responsum, Rabbi Ḥazan composed a statement outlining a general policy toward deviants from tradition that rabbis should follow in modern times:

In these days and in our times, the generation has declined. And as the number of heretics increased, so too have the rebels and the insubordinates multiplied. And each day is more accursed. And with regard to such a reality it was said: It is enough that we hold to the status quo…. Not in every era is it appropriate to declare ad hoc prohibitions, fences and restrictions. For it is to be feared that they will react by even greater rebellion. To the contrary: It is right and appropriate [under such circumstances] to waive rabbinic norms, and even to annul positive and negative commandments of the Torah […] as Maimonides of blessed memory wrote in Hilkhot Mamrim 2:5 .... I [therefore] declare, that it is right in the eyes of God to permit this man to marry her in accordance with the religion of Moses and Israel.[2]

In the past, it was common for rabbis to utilize coercive means to enforce their decisions. This was not only permitted by the gentile authorities but also recognized by the Jewish public as essentially legitimate. But times were changing. Options now existed for Jews to evade coercion. Moreover, more and more Jews were coming to regard such coercion as illegitimate, and were resisting imposition of rabbinic authority. Under these new circumstances, adherence to Jewish life and community was, at the bottom line, voluntary: Individuals who felt themselves pressured and targeted by the rabbis would not submit but rather respond with “greater rebellion.” It was up to the rabbis to decide which was their greater responsibility: getting their constituents to toe the straight and narrow line, or keeping their constituents within the community, even at the price of bending halakha to the utmost in order to be as inclusive as possible. Clearly, Rabbi Ḥayyim David Ḥazan advocated the second approach, and stated it forcefully in the paragraph above.

Another example of such an approach may be seen in the following example, from an interchange on matters of halakha between two great Baghdadi rabbis of modern times, Rabbi 'Abdallah Somekh and Rabbi Eliyahu Mani.

Rabbi 'Abdallah Somekh

Rabbi 'Abdallah Somekh was born in Baghdad in 1813 to a family that traced its lineage back to Nissi[m] ben Berechiah al-Nahrawani, scholar and poet of late-ninth- and early-tenth-century Iraq. Rabbi Somekh spent his whole life without leaving Iraq, passing away in Baghdad in 1889 at the age of 76.[3] During the second decade of his life, he learned directly from one of the greatest Torah scholars of the previous generation, Rabbi Ya’aqov Brabi Yoseph Harofeh.[4] He went on to spend several years in commerce, but when he was in his mid-20s (that is, in the second half of the 1830s), he decided to change course and to devote himself to the cultivation and guidance of the top graduates of the Baghdadi Talmud Torah schools, with the express purpose of cultivating the next generation of Torah scholars for Babylonian Jewry. In an obituary, Rabbi Shlomo Bekhor Ḥutsin wrote of Somekh:

He restored the crown of Torah in Bavel to its ancient glory, after it had been removed for hundreds of years, for he founded a great and spacious beit-midrash, raised up many disciples and imbued Israel with Torah. Almost all scholars and rabbis [currently] in Bavel, Persia, Medea, and India studied under him and drank from the well of living water that he created. And our brethren in these lands all refer to him as Istai, i.e., our teacher and master, just as Rabbi Judah the Prince [redactor of the Mishna] was called simply “our teacher.”[5]

Rabbi Eliyahu Suleiman Mani

Rabbi Eliyahu Suleiman Mani was born in Baghdad in 1818, studied in Beit Zilkha, and was one of Rabbi Somekh's most important students. In 1856 he emigrated to Eretz Israel and lived for two years in Jerusalem. He then moved to Hebron, where he was appointed Chief Rabbi in 1865, a post he held until his death in 1899. In addition to his erudition in Talmud, Rabbi Mani was deeply engaged in Kabbalah and was known for his ascetic piety. Rabbi Somekh knew him personally to be an outstanding and God-fearing scholar and Kabbalist. Rabbi Somekh was therefore shocked to hear from a reliable source in the Jewish-Iraqi community in India that Rabbi Mani had permitted the Jews of Bombay to transport objects in the public domain on Shabbat in ways that had been forbidden by the greatest Sephardic authorities, relying only upon a dissenting view held by Rabbi Moshe Pardo! Rabbi Somekh asked his beloved disciple:

We know you as one who takes halakhic decision-making very seriously. How is it then that you went against the opinion of the three great rabbis who wrote that our master [Rabbi Caro] considers such roads "public domain"?! How did you follow the [minority] decision of Rabbi Pardo against the opinion of our teacher and Rabbi Ḥayyim Yosef David Azulai of blessed memory, who expressly forbade traveling in a palanquin on Shabbat?![6]

Rabbi Mani responded that he, too, recognized that his decision was unconventional—but nevertheless was absolutely correct under the circumstances. Here is how he explained his considerations:   

Hear my words, and you will admit that truth is on my side: I saw that the Jews of Bombay each carry a parasol—without which it is impossible to walk the roads there for even one minute—and they all carry parasols on shabbat more than four ama in the public thoroughfares. They also carry with them snuff and handkerchiefs, which is forbidden by all opinions. If we rule that these roads are "public domain," then Bombay Jews would be actively breaking a rule for which the Torah punishment is death by stoning […] Therefore I relied on Rabbi Pardo, may God protect and save him, and on the European custom, and allowed them [travel by] the palanquin and the carrying [of objects for them] by a gentile; since if we declare these roads carmelit, this is allowed.

Rabbi Mani admits that from an academic, exegetical perspective, the correct conclusion is indeed that a street should be considered "public domain" if it is 16 ama or more in width. But the real-life implications of this decision for the reality before us would be that all of the Jews of Bombay, who every Shabbat carry many objects in the broad streets of Bombay, would be committing a transgression so severe that its punishment under original Torah law would be stoning.[7] This decision would therefore have terrible human and religious consequences as it would mean that all of the Jews of Bombay would be committing many sins of extreme religious severity just by the routine performance of activities each and every Shabbat! Rabbi Mani argued that a halakhic decision with such consequences would be in direct conflict with a decisor’s responsibility for the public—i.e., in the current context, his responsibility for the public's status in the eyes of God and in its own eyes. The exegetical preferability of the conventional, more severe approach must not be considered as an overriding factor. Rather, it is the decisor’s obligation to make a heroic effort to utilize less-trodden halakhic paths in order to formulate an alternate decision, one that would be acceptable from a public, religious and moral perspective.

Rabbi Moshe Pardo

The rabbi upon whom Rabbi Mani relied was Rabbi Moshe Pardo (1810–1888), who was born in Jerusalem, where he earned his Torah education and served as head of the rabbinical court. In 1870 he went to North Africa as an emissary, and on his way back from that mission was invited to serve as rabbi of Alexandria, a rapidly developing cosmopolitan port city with an increasingly varied Jewish population,[8] and filled that role from 1871 until his death.[9] A few months after arriving in Alexandria, Rabbi Pardo was asked about a Jewish man who had married a non-Jewish woman in a civil ceremony. The woman was pregnant, and the man asked whether, if his wife gave birth to a boy,

he would be permitted to circumcise his son. For this is an important commandment to him, even though he sinned and had intercourse with the daughter of an alien god, nonetheless he is a Jew and he wants his aforementioned son to be circumcised.[10]

After a detailed discussion, Rabbi Pardo rules that it is permissible and even a mitzvah to circumcise such a boy, despite his non-Jewish status. However, if he is born on Shabbat he cannot be circumcised on the eighth day, because circumcision of a non-Jew does not overrule Shabbat.[11] Rabbi Pardo then noted an alternate scenario that would make it possible to circumcise the child even if he were to be born on Shabbat:

In the case at hand, the mother herself wishes to become a Jewess. And clearly, if the mother should immerse herself and accept the commandments and become a Jewess, her fetus is like her and becomes fully Jewish, as explained in the Tur and the Shulḥan 'Arukh (268:6): “A pregnant woman who converts, her son does not need to be immersed.” If so, it is clear that he may be circumcised even on Shabbat, since he entered the Jewish people when his mother immersed. So in the case at hand, where the woman wishes to convert and immerse and to accept the commandments, certainly the child will be entirely kasher, and he is a ger tsedek.[12]

The Jewish father can thus prevent the public unpleasantness that might occur if his son (now in his Gentile spouse's womb) were to be born on Shabbat—by having the mother convert before giving birth. But are we allowed to convert this woman? Does the Shulḥan 'Arukh not rule, writes Rabbi Pardo, that if a woman wants to convert “they check if she has cast her eyes upon one of the youths of Israel” and if so the court will reject her, and indeed in the case under discussion the woman

[s]eeks to enter under the wings of the shekhina only out of love for her husband to whom she is married. If so, on what grounds can we accept her and have her immerse and accept the commandments and thereafter be considered a Jewess?[13]

A central argument that Rabbi Pardo presents in his responsum is that a situation in which a Jewish man is cohabiting with a Gentile woman should be considered “a time of exigency,” and under such circumstances it is halakhically right to convert his partner even if she is explicitly seeking giyyur only “for the sake of a man.” The reason for this is, that when making a decision on her conversion the rabbis are ipso facto determining the future of her Jewish partner; if we reject her, we are by that very act repulsing her partner—

a Jewish man who, out of fear of God['s retribution] for having relations with the daughter of a foreign god, has persuaded her to convert. We must not push away a Jewish man. We should employ any stratagem we can to draw him closer and not push him away. And no greater ''time of exigency' than this exists—as she is married to him and he cannot separate from her, and certainly would not obey us [if we reject her application to convert].

In the case before us, the woman's application for giyyur reveals her Jewish husband's internally conflicted state. On the one hand, he is deeply attached to his Gentile wife, and if we require him to separate from her he will not obey us. On the other hand, this relationship arouses in him pangs of conscience, because of which he has convinced her to convert. If we reject her—we will in effect be rejecting his wish to resolve the conflictual situation he is in, and he will become even further alienated from his Jewishness. Our obligation to save him should drive us to take every possible halakhic action in order to “draw him closer and not push him away;” the specific meaning of this in our case is, that we should convert his wife in order to save him from a life intermarriage leading ultimately to assimilation.

The halakhic course of action that Rabbi Pardo specifies relies upon identifying the situation before us as she'at haDeḥaq (a time of exigency), that is, a situation of severe stress that requires going beyond standard halakhic norms. To enable the application of a wider range of norms in situations of exigency, halakhic literature established the rule “she'at haDeḥaq kedi'avad damei” (a time of exigency is like an ex post facto situation).[14] This means that in stressful or extreme situations, one can follow halakhic norms whose usual application is only ex post facto.[15] Specifically, since ex post facto the validity of a Gentile's giyyur is not contingent upon the nature of her motivation, we should enable this woman to convert regardless of her specific motivation. By doing so, we are fulfilling our obligation toward our fellow Jew—her husband—which is: to take every possible halakhic action in order to “draw him closer and not push him away.” By accepting his wife (whose personal motivation is unworthy per se), we are saving him from a life of intermarriage leading ultimately to assimilation.

Rabbi Pardo cites several sources in support of his ruling. One of these is a fascinating case, clearly demonstrating that the two greatest rabbis of seventeenth-century Egypt advocated resolving intermarriage by converting the non-Jewish spouse and enabling the continuity of the existing family unit.[16] A shifḥa (non-Jewish female slave) belonging to “Reuven,” a resident of Egypt, was in another country, and Reuven ordered that she be transferred to him. On her way to Egypt, the ship was attacked by pirates, and she was captured. The pirates put her up for sale in a city that had a Jewish community, and in order to save herself from captivity she identified herself as a Jewess and was redeemed by the local Jewish community. Later on, she married a member of the community and they had children. When Reuven became aware of this, he turned to the rabbinic court in Egypt and informed them of this situation, declaring that he had despaired of his ownership of the shifḥa the moment he heard of her captivity. Now he asked the rabbinic court to chart a halakhic course of action that would bring about the best possible outcome for her, for her husband, and for her children:

He came to the rabbinic court and told the whole story and said: Know, gentlemen, that I have already given up on the value of this shifḥa and she is on her own. And I do not wish to cause the Jew who mistakenly married her to sin. See what ruling you can make for her so that she can be married in accordance with the religion of Israel, and no problem or stumbling block will be placed because of me before her husband and children.

Reuven is revealed here to be an honorable man who relinquishes any potential financial benefit that he might obtain from the situation that had developed. He understands that the Jew who married her did so mistakenly, after the captive shifḥa falsely presented herself as a Jewess. It nonetheless does not occur to him—nor to the rabbinic court—to accuse the woman of misleading the Jewish community into spending a considerable amount of money to redeem her from captivity, or for misleading her Jewish husband into marrying her while she was still a Gentile. It does not even occur to Reuven or to the rabbinic court that the situation should be resolved by cutting off the relationship between the (Gentile!) woman, her Jewish husband, and their (Gentile!) children. Quite the contrary: Reuven defines in advance the parameters of the suitable solution—enabling the couple and their children to continue their relationship in a halakhically viable way—even before he clarifies if this solution is possible. In other words, he assumes that since this is the suitable solution, then, once the rabbis recognize this to be the case they will certainly find the halakhic way to make it happen. And indeed, the two most senior Egyptian rabbis at that time—the rabbi of Cairo and the rabbi of Rashid—agreed. A thorough analysis of the mother's halakhic status after Reuven relinquished his ownership led them to conclude that she was no more a shifḥa but rather a free Gentile woman; therefore, it was possible and fitting to convert her and her children, and to continue their family life with the Jewish man whom she married:

She should be converted by a rabbinic court—and if a rabbinic court already converted her, what they have done is done and she is fully Jewish. And if they still have not converted her, they should convert her now while she is living with her husband. And if before it became known that the marriage was a mistake she became pregnant and gave birth, the wife and her children[17] have the status of full gentiles. They should be converted together, and she will remain with her husband.[18]

And Rabbi Pardo comments:

[They wrote that] even though she now is living with her husband she can convert, and they were not worried by the fact that she does so out of love for her Jewish husband. [And he concludes:] The same holds in this case (emphasis mine, Z. Z.)

In other words, the Egyptian halakhic scholars, Rabbi haLevi and Rabbi Gershon (as well as “Reuven,” who relinquished his rights over the shifḥa) identified the situation of the Jewish man and his Gentile wife as a “time of exigency.” They therefore applied ex post facto halakhic norms and refrained from concerning themselves with the woman's motivation. Moreover, identification of the situation as a “time of exigency” was done without taking into consideration the issue of guilt, that is: Who was responsible for creating this situation? Although the shifḥa knowingly misled the Jewish community and her Jewish husband, this did not prevent the rabbis from converting her and enabling her to continue living conjugally with her husband. Rabbi Pardo concludes that if this is what was decided in seventeenth-century Egypt, the same thing should be done in the case brought before him 200 years later: The Gentile woman and the children already born to her from her Jewish spouse should be converted, and they should continue living as before with their Jewish husband/father—but now they will all be Jews and this will be a “kasher” family unit.

This was not a one-time decision by Rabbi Pardo, but rather a policy he continued to follow also in later years. Rabbi Eliyahu Ḥazan, who served after Pardo as rabbi of Alexandria,[19] reports that he found documentation in the archive of the local rabbinate indicating that in the summer of 1876, a non-Jewish woman who had lived with a Jewish man for many years and given birth to several boys and girls, applied for giyyur. Not only did Rabbi Pardo accept her for conversion, but he also married her to her Jewish spouse on the very day she converted.[20] Obviously, Rabbi Pardo not only encouraged conversion as a response to intermarriage, he also waived the halakhic requirement for a period of discernment[21] before permitting the couple to marry. In the following section we shall see that Rabbi Eliyahu Ḥazan also considered it his responsibility to be inclusive and considerate toward Jews who were only marginally religious, even if that entailed changing synagogue praxis in a manner seemingly incompatible with the rulings of Rabbi Joseph Caro in the Shulḥan 'Arukh.

Rabbi Eliyahu Ḥazan

Eliyahu Ḥazan was born in Izmir, raised and educated in Jerusalem under the guidance of his grandfather Ḥayyim David Ḥazan,[22] and served as chief rabbi of Tripoli (Libya) between 1874 and 1888, then as chief rabbi of Alexandria (Egypt) from 1888 until his death in 1908. In those years, Alexandria was a thriving and prosperous city attracting people from North Africa, the Middle East, and Europe—including thousands of Jews, many with quite tenuous links to tradition. The heterogeneous character of Alexandria's Jewish community posed a variety of challenges for Rabbi Ḥazan. An illustration of this can be found in the considerations he employed with regard to the reciting of Kiddush in the synagogue.

Kiddush should be recited just before the Shabbat meal. In ancient times, Jewish communities hosted guests in rooms adjacent to the synagogue, and it was the practice to recite Kiddush on Sabbath eve in the synagogue for the benefit of those guests, who would then eat their Shabbat meal on the premises. However, in the sixteenth century, Rabbi Yosef Caro noted that circumstances had changed and the synagogue was no longer the site of anyone's meal, and ruled: "It is better to establish the custom NOT to recite Kiddush in the synagogue."[23] The general praxis of Sephardic rabbis is to defer to Rabbi Caro's authority; the synagogues of Egypt followed Rabbi Caro's ruling and refrained from performing the Kiddush ceremony.[24] However, shortly after taking up his post as rabbi of Alexandria, Rabbi Ḥazan learned from some of his congregants, that:

[M]any honorable speakers of foreign tongues who come to synagogue on the eves of the Sabbath and of the Festivals to hearken to the singing and the prayer subsequently return to their residences, and when they come to their homes they sit down to eat without making Kiddush. Some of them [do so because they] do not have kasher wine. And also, many of the folk today do not know how to pronounce even one word in the Holy Tongue.[25]

The term "speakers of foreign tongues" ('am lo'ez) refers here to European Jews living in Egypt. On the one hand, they attended synagogue services on Friday night, meaning that they were not radically estranged from Judaism. On the other hand, they did not recite Kiddush at their Shabbat table. Rabbi Ḥazan offers two explanations for this: They have no kasher wine and consider it better not to say Kiddush at all than to say it over such [non-kasher] wine; and/or they do not know any Hebrew and think that Kiddush can only be said in Hebrew. Neither of these reasons holds up from a halakhic perspective.[26] It thus seems likely that Rabbi Ḥazan wished to represent the subjective motivations of these Jews without attributing to them disrespect or disregard for the Kiddush ceremony. The information he received, characterizing them as individuals who care enough to attend synagogue services but who do not recite the Friday night Kiddush, led him to a halakhic re-assessment of the situation.

 Prima facie, Rabbi Ḥazan seemd to have no leeway: As a Sephardic rabbi, he should uphold Rabbi Caro's position that Kiddush not be recited in the synagogue. However, he noted, R. Caro's reasoning for desisting from the recital of Kiddush in synagogues was that times have changed, and travelers no longer eat in the synagogues following the service; obviously, he never in his worst dreams imagined that individuals might return home after services and not recite Kiddush at their Shabbat table. Rabbi Ḥazan considered it eminently reasonable that rather than following the “bottom line” of Rabbi Caro's ruling, he should follow R. Caro’s lead in responding to historical change! Thus, it was halakhically within bounds for him (Ḥazan) to reinstate the recital of Kiddush on account of changed social-cultural conditions:

It was good in my eyes to ordain that in the Eliyahu HaNavi and Menashe synagogues,[27] where these people attend services, Kiddush should be recited on Shabbat and holidays […] for it seems to me that it should be considered a mitzvah to institute the recital of Kiddush in the synagogue […] to enable the fulfillment of this commandment by a person who is unknowledgeable [in Hebrew] and by one who has no wine, and also to benefit those women (who have a biblical obligation to fulfill the mitzvah of Kiddush) who come to synagogue to hear Kiddush […] and so that the practice of Kiddush not be forgotten by these people, and, of course, by their young children.[28]

The issue of Kiddush in the synagogue thus reflects three elements that additional study shows is characteristic of Rabbi Eliyahu Ḥazan's halakhic decisions (and of other decisions by Sephardic/Middle Eastern rabbis in the modern era):

1. Expansion of the functions of the synagogue in order to fill a void created by the weakening of the cultural-religious function of the family and home;
2. Accommodation (rather than exclusion or disregard) of Jews of marginal communal status;
3. A willingness to make independent and original halakhic decisions, relying on minority opinions and going against the Shulhan 'Arukh and accepted custom—out of a deep conviction that in the present reality such rulings were necessary in order to implement the highest values of Judaism and Torah.

Another instance in which a leading Sephardic rabbi directly counters what had become conventional rabbinic theology and halakhic policy is found in the following section.

Rabbi Yaakov Moshe Toledano

            Rabbi Yaakov Moshe Toledano (1880–1960) was born in Tiberias, scion to an illustrious Sephardic family from Meknes (Morocco) and ultimately from pre-expulsion Toledo. From his early 20s, he combined rabbinic learning, public service, and historical and bibliographic interests.[29] During World War I, he (along with other Jews with French citizenship) was exiled to Corsica, where he served as rabbi; later he served as rabbi and dayyan in such diverse places as Tangiers, Cairo, and Alexandria. In 1942, he was chosen as Chief Rabbi of Tel Aviv, and for about a year before his decease served as Israel's Minister of Religious Affairs. As many other Sephardic members of the Old Yishuv, Rabbi Toledano held a very positive attitude toward the Zionist “New Yishuv,” and considered the anti-Zionist positions of many Ashkenazic rabbis of the Old Yishuv to be religiously misguided. The murder of his younger brother Meir at the hands of Arab rioters in Safed (1929) led him to compose a responsum on the halakhic duty of Jewish self-defense.[30] In this teshuva, he argued powerfully for the need to re-think what had been considered by many as halakhically taken for granted:

Many of our great rabbis, both in former generations and in current times, erred—and misguided the simple masses of our people—in the belief that as long as we are in this hard Exile we are forbidden to lift up our head. Rather, we are commanded to bow ourselves down before every tyrant and ruler, and to give our backs to the smiters and our cheeks to them that pluck off hair (Isaiah L:6); as if the blood of Israel had been forfeited, and as if He—blessed be He—had decreed that Jacob be given for a spoil and Israel to the robbers (Isaiah XLII:24). They thought, that the decree of Exile and servitude to the nations included slavery and lowliness, and that—as a matter of sanctifying the Name even at the price of one's life—a Jew must forfeit his life and surrender himself like a slave or prisoner of war to Israel's enemies, even in a situation in which it would have been possible to resist them and to retaliate in kind.

                        Let me, then, state outright, that—begging their pardon—they caused the loss of individual lives and of entire communities of the Jewish people, who in many instances might have saved themselves from death and destruction, had the leaders and rabbis of the generation instructed them that they were obligated to defend themselves against aggressors, according to the rule, “If a person comes to murder you—kill him first” (ha-Ba le-Horgekha—Hashkem le-Horgo).

Exile of the Jews from their homeland had indeed been ordained by God as a punishment for their sins. However, it was intended as a political punishment, i.e., rather than being ruled by themselves in the Land of Israel, the Jews were to be ruled by others in foreign lands. But this was not intended by God as a situation in which a Jew was obligated to refrain from defending himself if attacked. It was the rabbis—first of Ashkenaz and then of additional countries—who advocated such a distorted interpretation of God's will, and preached it to the Jewish masses. Many Jews who could have defended themselves against Gentile attackers therefore acquiesced passively to their own victimization—and the rabbis bore full responsibility for these terrible consequences. In contrast, writes Rabbi Toledano,

[... ] I praise the flowers of this new generation who “awoke and wakened” to revive oppressed hearts, to engirdle themselves with a courageous spirit, and to restore the crown of Israel's honor to its pristine glory. And it is with regard to this that the Bible says: "And I will give you a new heart, and instill in you a new spirit" (Ezekiel 36:26).

The flowers of the new generation are the Jewish youth of Mandatory Palestine who rejected the rabbinic passivity described above, and organized themselves to defend Jews from armed attacks. They were by and large not religiously observant—but Rabbi Toledano regards them as embodying the revival of Israel's spirit, prophesied by Ezekiel to occur at the time of redemption. Significantly, it was not the rabbis but the young non-traditional Jews who were in tune with the authentic values of Judaism. In the final section of this article, we will see another instance in which a great Sephardic halakhic scholar advocated a positive attitude toward the actions of the Zionist rebuilders of modern Israel, and also powerfully critiqued traditional rabbinic attitudes toward Jewish education for females.

Rabbi Matloub 'Abadi

In modern times, Sephardic rabbis did not reside only in Muslim Lands and in Israel. Thus, at the beginning of the twentieth century, a community of Jews hailing from Syria began to form in New York, and over time became a significant presence—especially in the Brooklyn area. Aleppo-born Rabbi Matloub 'Abadi (1889–1970) arrived in the United States in 1921, and was the greatest scholar of the Syrian-Jewish community in America. A slightly younger peer of Rabbi Toledano, his views with regard to the Zionist national project in the Land of Israel were also very positive. A fine example of this may be found in his address to the graduates of the Syrian community Talmud Torah in Brooklyn, on 7 Shevat 5699/ February 27, 1939:

Happy shall you be if you use this time for the good of the Land of Israel, the pride of our past and the luminescence of our future, to fulfill your duty toward it and to help it with all the means and the ways leading to rebuilding its ruins and making its settlement bloom. Remember our pledge to Zion on the rivers of Babylon and our aspiration and prayers to it over all generations. Do not be among those who falter behind its camps; be in the first ranks of its defenders and the fighters for its freedom, and take an important place among its loyal sons and builders.[31]

The Zionist character of these words is obvious and manifest. Attention should be paid also to the activist political-military element in Rabbi 'Abadi's words: The youth of the community are called not only to build the ruins and make the settlement bloom, and also not to content themselves with defense alone, but rather to be among "the fighters for [the country’s] freedom." In this context, it is relevant to note one of the great virtues of studying the Bible, according to Rabbi ‘Abadi:

Because of our sins we were exiled from our Land and lost our kingdom and our freedom, but we did not lose our Torah, the treasury of our delights and the source of our hope, which attests to our historical rights and to our original possession of them.[32]

The Torah, in addition to its importance as bearer of religious content and the norms binding the people of Israel, is thus also evidence of the “historical rights” of the people of Israel to the Land of Israel, which is one of the reasons it is important to nurture its study and strengthen the connection to it. The term “historical rights” is not one that stems from the halakhic or philosophical rabbinical lexicon but is rather part of the discourse of modern Zionism that is intended to anchor the justification of the Jewish national claim for political sovereignty over the Land of Israel.

That Rabbi ‘Abadi makes use of this term in his address to his students in early 1939 shows that this term was familiar and meaningful for them and that he felt comfortable using this term and utilizing it in order to explain and strengthen their attitude toward Torah and its study. Of course, Rabbi ‘Abadi did not believe that the Jewish connection to the Land should be based solely on historical right, just as he did not believe that the connection to the Torah is solely a national-cultural one. But it is clear that, according to his worldview, no contradiction exists between political Zionism and religious loyalty to Torah and to the Land of Israel; rather, they complete and strengthen each other.

Another similarity between Rabbi 'Abadi and Rabbi Toledano is their boldness in critiquing conventional rabbinic policy, when they were convinced that earlier generations held mistaken positions. Thus, another issue that Rabbi 'Abadi asked his students to champion (in addition to Zionism) was extending Jewish education to include girls, who had traditionally been excluded from such studies:

And may you succeed also in redeeming female captives! These are our daughters—the spine of the cultivation of the future generation—whose education we have disregarded. And to this day, only a very small percentage of them continue their Hebrew education. And most of them are similar, in adulthood, to Jews captured in infancy by Gentiles. May it be God’s will that you redeem them a full redemption.[33]

If these girls are captives, who are their captors? Clearly, these are the men, and especially the rabbis, the knights of the traditional cultural order, who fail to offer girls a formal Jewish education and thus deprive them of the freedom of knowledge. This despite the fact that the girls, when mothers, would be “the spine of the culture of the future generation”—powerful criticism, indeed, directed against the traditional leadership of Syrian Sephardic Jewry, from the mouth of the community’s most prominent scholar.[34]

Conclusion

It was my modest goal in this article to introduce to the readers some Sephardic rabbis of modern times with whom they may have been unacquainted, and while doing so, to provide examples of the value considerations and policies these rabbis employed in responding to challenges that modern developments posed to the continuity of Jewish life and Jewish community. It is my hope that these examples will encourage the reader to broaden and deepen his/her interest in the writings and creativity of Sephardic and Middle Eastern rabbis and to reflect upon the significance these values and policies may hold for current Jewish life.

To our members and friends,

Our New Year brings new opportunity for the National Scholar program, as our family has moved from New York City to Teaneck, New Jersey. I have been teaching classes in various communities in Bergen County and beyond, as we expand our horizons to the other side of the George Washington Bridge.

Over the summer, I gave several lecture series’ in Fort Lee, Teaneck, and Fair Lawn, New Jersey.

I also have begun doing work as the Tanakh Education Scholar at Yeshivat Ben Porat Yosef, in Paramus, New Jersey. This remarkable school blends the best of the Sephardic and Ashkenazic worlds together in many areas of Elementary and Middle School education. I am working with the faculty and administration in developing a new Tanakh curriculum that combines tradition and critical thinking to create students who are deeply religious, thinking individuals.

As National Scholar, I will continue to teach in communities across the country. Thus far, I am scheduled to be the scholar-in-residence in the following locations:

·         The Lincoln Park Jewish Center in Yonkers, New York for the High Holidays (September 20-23, 29-30).

·         Young Israel of Oak Park, Michigan, for the Shabbat of November 4.

·         Bais Torah and the Community Synagogue of Monsey, New York, for the Shabbat of November 18.

·         Baron Hirsch Synagogue in Memphis, Tennessee, for the Shabbat of February 10.

·         On Wednesday, September 27, from 1:00-2:15 pm, I will give a lecture on the Book of Jonah at Lamdeinu Teaneck, 1650 Queen Anne Road in Teaneck, New Jersey. To register please go to http://www.lamdeinu.org/

In addition to promoting our vision nation-wide through teaching, I have been sending copies of my book, Increasing Peace Through Balanced Torah Study. Conversations 27 (New York: Institute for Jewish Ideas and Ideals, 2017), to communities where I serve as scholar-in-residence. I am deeply grateful to the sponsors of that volume for making this wide distribution possible, thereby furthering our ability to reach thousands of people annually through the National Scholar program.

I currently am completing a new book of essays on Tanakh, which focuses on the interaction between tradition and contemporary academic Bible study. Thanks to several generous donations to the Institute, we will be distributing copies of these books to members of our University Network, so that we can provide further guidance in navigating the university experience through the lens of tradition.

If you would like to contribute to the distribution of this book to our University Network students, please contact me, [email protected]. There are still dedication opportunities possible, and your contribution will greatly help our ability to reach the hundreds of students in our Network. Thank you!

I now also am running the Institute’s University Network, and will provide separate updates on the great work of our Campus Fellows as the semester unfolds.

I thank you for your support and shared vision, and wish you and your families a Shanah Tovah.

Rabbi Hayyim Angel

National Scholar

Institute for Jewish Ideas and Ideals

Imagine this scenario. A person suffering in pain. Incurable. Depressed. Unable to eat. And the son or daughter attends synagogue every day praying that God should  send  this unfortunate person a refuah shelemah--a complete cure.

Here is the question: Should one pray to the Almighty to allow this person to continue to suffer, or rather should one pray for the beloved’s speedy death?

Is one allowed to pray for someone’s death?

The halakhic stand against euthanasia is well known, and this paper is not dealing with active interventions to hasten someone’s death.  But may  we cease asking for a full (miraculous) cure, and ask God to end the agony by ending the life of the dying person?

Our question is really not new. In fact, there has been a fair amount of halakhic discussion of the matter for the past two millennia, and some of the literature will be presented here.

I was alerted to this matter by a scholarly article by Loike and Tendler in Hakirah, vol 21; many  of  the sources are mentioned in that article.

Of course, when one is tending to a suffering incurable loved one, a person is always hopeful that God will send the cure, that the next medicine will do the trick, that the next doctor will have the magic bullet. One would never dream of praying for a relative’s death-certainly not while the patient is dependent on that person, and certainly not while one is in the thick of things.

But perhaps one must be urged  to think of the  patient’s situation and quality of life  in realistic terms, and perhaps true love of the patient should drive one to pray for an end of the beloved’s life.

In Bavli Nedarim 104a,  it is written:

“When R Dimi came from Israel (to Babylon) he said: Anyone who visits the ill causes that he will live and anyone who does not visit causes that he will die.” The Gemara asks: In what way are his actions the cause of that result? If we say that anyone who visits the ill pleads for mercy that he will live and anyone who does not visit the ill pleads for mercy that he will die, does it enter your mind that he will pray for mercy that he will die? Rather anyone who does not visit the ill does not pray for mercy for him, neither that he will live nor that he will die."

The Ran, Rabbenu Nissim  (14^th century,Spain) comments:

     “It seems to me that this is what is meant--there are times when one must pray for God’s mercy to let the sick person die, for example when the patient is suffering a great deal from his illness and it is not possible that he will live.

 In Bavli Ketubot 104a we read:

From this story, we see that the Rabbis were praying for a complete cure for this most important sage, but they were not taking his agony into consideration. It was his personal attendant who realized how he was suffering. She took the initiative to get the life-sustaining prayers of the sages to cease, and then her prayers for his death indeed were effective.

But let us go further. The case of Rabbi Yehuda HaNasi dealt with a person afflicted with a physical illness.

Below we shall read of Honi and his prayer to die because of his feelings of depression.

As a bit of background- Honi just returned from a 70 year Rip Van Winkle nap and:

B Taanit 23a

 Ḥoni went home and said to the members of the household: Is the son of Ḥoni HaMe’aggel alive? They said to him: His son is no longer with us, but his son’s son is alive. He said to them: I am Ḥoni HaMe’aggel. They did not believe him. He went to the study hall, where he heard the Sages say about one scholar: His halakhot are as enlightening and as clear as in the years of Ḥoni HaMe’aggel, for when Ḥoni HaMe’aggel would enter the study hall he would resolve for the Sages any difficulty they had. Ḥoni said to them: I am he, but they did not believe him and did not pay him proper respect. Ḥoni became very upset, prayed for mercy, and died. Rava said: This explains the folk saying that people say: Either friendship or death, as one who has no friends is better off dead.

Here  we see that Honi, because of a loss of status that caused much upset, prayed successfully for his  own death. And this was recorded with no objections in the Bavli Talmud.

In the following text, we see where a mental state and its subsequent behavioral  alterations  cause the community of Rabbis to pray for the death of a great sage.

B. Baba Metzia 84a:

Ultimately, Rabbi Shimon ben Lakish, Reish Lakish, died. Rabbi Yoḥanan was sorely pained over losing him. The Rabbis said: Who will go to calmRabbi Yoḥanan’s mind and comfort him over his loss? They said: Let Rabbi Elazar ben Pedat go, as his statements are sharp, i.e., he is clever and will be able to serve as a substitute for Reish Lakish.

Rabbi Elazar ben Pedat went and sat before Rabbi Yoḥanan. With regard to every matter that Rabbi Yoḥanan would say, Rabbi Elazar ben Pedat would say to him: There is a ruling which is taught in a baraita that supports youropinion. Rabbi Yoḥanan said to him: Are you comparable to the son of Lakish? In my discussions with the son of Lakish, when I would state a matter, he would raise twenty-four difficulties against me in an attempt to disprove my claim, and I would answer him with twenty-four answers, and the halakha by itself would become broadened and clarified. And yet you say to me: There is a ruling which is taught in a baraita that supports youropinion. Do I not know that what I say is good? Being rebutted by Reish Lakish served a purpose; your bringing proof to my statements does not.

 Rabbi Yoḥanan went around, rending his clothing, weeping and saying: Where are you, son of Lakish? Where are you, son of Lakish? Rabbi Yoḥanan screamed until his mind was taken from him, i.e., he went insane. The Rabbis prayed and requested for God to have mercy on him and take his soul, and Rabbi Yoḥanan died.

Note the final entry: the great R Yohanan, being bitterly depressed over the loss of his brother-in-law,friend, ,became so upset that eventually “ his mind was taken from him” At this juncture, with the severe loss of quality of life, with the Rabbis probably feeling that such behavior by a leader of the Jews was an embarrassment, they prayed for his death.

And the Bavli is not the only evidence of euthanistic prayer. In fact, in the example below, from the Yalkut Shimoni, we see that an action is actually taken, albeit indirectly, to hasten one’s death.

An incident occurred in which a very old lady appeared before R Yossi she said: “Rabbi, I have grown too old and now I live a miserable life. I have no taste and I wish to die.”

He said to her:” what daily (special) mizvah do you do?”

She answered:” I admit that even if I have matters that I really enjoy, I overlook them to arise early to attend prayers.”

He said: “Refrain from attending synagogue for three consecutive days.”

She did this for three days and on the third day she died.

From the above four citations we may note several criteria that caused the permitted euthanistic prayers.

R Judah was in extreme physical pain.

Honi was bitterly depressed over his loss of status.

Rabbi Yohanan became disoriented, if not senile or delusional.

And the senior citizen was just miserable about the “rust” of her golden years.

And in each case we see no objections to the wish for death.

There is an extensive discussion of the permissibility of euthanistic prayer in R. Obadiah Yosef’s Yalkut Yosef, Y.D.335. He cites, among others, the Arukh HaShulhan who permits such prayers for the incurable who is in pain. Rabbi Hayyim Palachi, Hikekei Lev I Y.D. 50 ruled that while it is permissible to pray for a suffering person’s death, the patients’ own immediate family should refrain from such prayers. (Rabbi Marc Angel has noted that it is appropriate to simply pray that the Almighty should have mercy on the suffering person, without specifically referring to death.)

During my four and a half decades of medical practice (ophthalmology) I met many patients who found their lives to be not worth living .Arthritis,visual loss, deafness, and many other  aspects of the golden years were just too much for them to bear. I would often dismiss them with a cliché, such as “but think of all the wonderful grandchildren that need you so”-but they rarely took such adages with any degree of consolation.

In the late 1970’s I examined an elderly nursing home patient first in her facility, and then, in order to better evaluate her, in my private office. She was poorly sighted, severely arthritic and just plain miserable. She had a moderate form of dry macular degeneration with significant visual loss. I felt that this would not progress much during the few years this patient had to live.

She asked: “So how bad are my eyes?”

I replied; “They will be good till 120.”

She looked at me with a chilling expression and seriously said: “If you curse me to 120, then I curse you to 150.”

The next time you make a prayer of refuah shelema  for your beloved, think if you are indeed making the correct prayer.

PS “Euthanistic Prayer” is a term coined by the author.

Over the years, I have received bitter notes from people who strongly object to synagogues charging high prices for seats during the High Holy Days. They have also expressed displeasure with the high cost of synagogue membership dues.

Shouldn’t all Jews who wish to pray be allowed to do so without having to pay premium prices? Does it seem ethical for synagogues to “sell seats” for Rosh Hashana and Yom Kippur? Doesn’t this process diminish the sanctity and idealism of synagogues?

Yes, these criticisms certainly seem valid. In an ideal world, synagogues would not “sell tickets” or charge expensive dues for membership.

But we do not live in an ideal world, at least not yet.

Synagogues need funds in order to maintain their buildings; to pay their rabbis and synagogue staff; to provide services to members and the community at large. Synagogues invariably operate with deficits, often very severe deficits. They depend almost entirely on the voluntary dues and contributions of members, but these dues and contributions fall short of the synagogues’ expenses.

How are synagogues to exist if they lack adequate financial support?

They can cut down on services; they can cut down on staff; they can cut salaries. Yes, but then they will be unable to be of maximum service to their constituents. People will complain that their synagogues do not provide them with enough services to warrant their support; so the synagogues will have even less income and provide even less services.

Synagogues can (and often do) depend on the generosity of a few wealthy individuals who contribute large amounts. Because of these generous contributions, people with lesser means are able to be members or attend services at relatively low cost to themselves. But synagogues cannot forever depend on a few philanthropists; they need a larger constituency of people who contribute as generously as their means allow.

Many people expect synagogues and rabbis to be available to them, but are not willing or able to contribute to maintain the synagogues. They expect that other people will do this for them.

I know from personal experience that many synagogues are quite sympathetic to those who are in financial straits; they provide membership at greatly reduced, or at no cost; they provide seats for the Holy Days at low, or no, cost.

I also know from personal experience that many synagogues are unhappy with those who have financial means, but who do not share in supporting synagogues through their membership dues and contributions. Some people will have no problem spending several hundred dollars for an evening out at a restaurant or for theater tickets, but will complain bitterly if the synagogue asks them for a few hundred dollars for a seat in the sanctuary for the holidays. Some people will spend thousands of dollars on vacations, summer homes etc.; but are offended if synagogues charge a few thousand dollars for dues.

In an ideal world, all Jews would support synagogues to the best of their ability. If this happened, there would be no synagogue deficits, no “selling tickets” for the Holy Days, and no expensive membership dues.

But we do not live in such an ideal world. Synagogues need financial solvency, and they spend a good deal of time and energy coming up with fund-raising strategies. It is a real pity that synagogues need to conduct “appeals,” and “seat sales” and other events to raise funds. It would be so much nicer if they simply had enough support from the community without needing such fund-raising tactics.

There are synagogues that provide free or low cost services for the High Holy Days. Most synagogues will make accommodations for those who cannot afford the cost of tickets. No one should feel precluded from praying in a synagogue on the High Holy Days, or any day of the year due to financial considerations.

As long as synagogues need to “sell tickets” for the High Holy Days, we know that the Messiah has not yet arrived. We know that our system is imperfect, even unpleasant. But the only way to move closer to the ideal is for each Jew to take personal responsibility for the maintenance and flourishing of our synagogues.

Halakhic Approaches of Two Modern Posekim

By Rabbi Marc D. Angel

In the introduction to his first volume of responsa, Rabbi Benzion Uziel described the goal and method of a halakhic decisor:

"The Talmudic judge or posek may not say to himself or to his questioner regarding a question which comes before him--let me look at the book and I will decide the law according to whatever is already printed in the book. This is not the method of those who give halakhic decisions (ba'alei hora'ah). Rather, his obligation is to search the source of the Halakhah, to clarify it, refine it, purify it, according to his relevant ideas, his proper logic and his straightforward reasoning, to judge a true judgment and to conclude the matter according to the Halakhah. . . . In all my responsa I have not attempted to be lenient nor to be strict from my own mind or inclination. Rather my intention and my goal were to search and find the truth."

Each posek of every generation attempts to establish the Halakhah according to its real truth. He attempts to understand it deeply and accurately, and to follow the sources wherever they may lead, regardless of his own inclination. Yet, a study of responsa literature reveals a variety of different styles, attitudes and decisions of posekim. Although halakhic decisors rely on the same classic rabbinic texts, they are influenced by the specific time and place in which they live, as well as by their own personal sensitivities and intellectual inclinations.

In this essay, I will focus on two great modern-day posekim, studying how they approach similar halakhic questions. Both are scholars of vast erudition, of wide influence; both have written and published many works. The two posekim to be discussed are Rabbi Moshe Feinstein and Rabbi Haim David Halevy.

Rabbi Moshe Feinstein, of blessed memory, must certainly be counted among the greatest rabbinic authorities of our generation. His volumes of responsa, Iggrot Moshe, are highly respected and widely studied. Rabbi Feinstein was raised and trained in Eastern Europe. When he came to New York, he continued the traditions which he learned from his father and teachers in Europe. He was part of the Yiddish-speaking Torah world.

Rabbi Haim David Halevy, of blessed memory, who served for many years as the Sephardic Chief Rabbi of Tel Aviv-Yafo, was born and raised in the Sephardic tradition. A student of the late Rabbi Uziel, Rabbi Halevy is part of the Sephardic Torah tradition which flourished in the Ottoman Empire.

Rabbi Feinstein was Ashkenazic, Yiddish-speaking, and lived in the Diaspora. Rabbi Halevy was Sephardic, Hebrew-speaking, and lived in Medinat Yisrael. A study of the halakhic decisions of these two men will shed light on the halakhic process. References in the text in the case of Rabbi Feinstein refer to Iggerot Moshe, and in the case of Rabbi Halevy refer to Aseh Lekha Rav, unless otherwise stated.

I would like to preface the analysis by saying that this article does not attempt to pit these two Torah luminaries against each other, nor to draw conclusions as to which follows a "better" method. Nor do I claim that this study is exhaustive, or that other examples than those which I cite could have been chosen. I offer this analysis as a study of contrasts in outlook and halakhic decision-making, fully aware that others might handle this topic differently.

THE WORLD OF TORAH AND THE OUTSIDE WORLD

In studying the volumes of Iggrot Moshe, one finds a spiritual world in which Torah study and observance are the central reality of life. Non-observant Jews, especially those who identify as Reform and Conservative (particularly Reform and Conservative rabbis), are often categorized as resha'im, wicked people, or koferim, deniers of the true faith. The non-Jewish world is essentially viewed as being hostile towards Jews. Foreign ideas are dangerous and corrosive to true Torah knowledge, Rabbi Feinstein records with pride that he is not influenced by foreign ideas. "My entire world view stems only from knowledge of Torah without any mixture of outside ideas (yediot hitsoniyyot), whose judgment is truth whether it is strict or lenient. Arguments derivcd from foreign outlooks or false opinions of the heart are nothing. . ." (Even ha- Ezer, 2:11).

The spiritual world reflected in the responsa of Rabbi Halevy is also one totally committed to Torah; and it is open and inviting, unafraid of others. One finds a profound tolerance for those who do not understand or observe Halakhah. There is a reluctance to categorize people as resha'im or koferim. Rabbi Halevy is open to wisdom from all sources, Jewish and non-Jewish. The responsa manifest a deep respect for the words of our sages, but also a flexibility in dealing with modern reality.

Let us turn to some specific examples. In one of his responsa (Yoreh De'ah 3:83), Rabbi Feinstein stresses the importance of learning Torah studies in the morning in yeshivot, relegating secular subjects to a time later in the day. This arrangement serves to highlight the importance of Torah studies, and to inculcate in the students the belief that the secular studies are not as important. Indeed, the main responsibility of a yeshiva is to teach Torah studies; secular studies are taught as a concession to the laws of the country. In another responsum (Yoreh De'ah 3:73), Rabbi Feinstein forbids teaching science from texts which deny that God created the world. If it is impossible to obtain science textbooks which conform to our religious belief, then the offensive pages in the textbooks should be torn out. Rabbi Feinstein rules that a teacher of Greek and Roman history may not read books written by ancient authors about their religions. But books written by authors who reject and scorn those religions and which point out their foolishness are not forbidden. If a teacher is required to teach about the religions of the Greeks and Romans, he should do so in such a way as to make it clear that he considers them to be foolishness and emptiness. There may even be a positive result of this teaching--namely that students will realize that religions which were once thought to be true by so many people are actually quite foolish. Therefore, they should not be surprised that many people today believe in religions which are essentially false and nonsensical (Yoreh De'ah 2:52). For Rabbi Feinstein, then, secular knowledge is not highly prized. Secular knowledge which contravenes religious teachings is dangerous, and should not be taught, or only be taught with derision.

A different attitude towards secular knowledge emerges from the responsa of Rabbi Halevy. Obviously, his main concern is also Torah study. Yet he recognizes the need for secular studies, and himself draws on sources other than rabbinical. He was asked by a religious student if it was permissible to study secular subjects (history, literature, etc.) on Shabbat in preparation for examinations. Rabbi Halevy cites rabbinic authorities who forbid secular studies on Shabbat, as well as those who permit such study on Shabbat. Rabbi Halevy suggests that it is better to sanctify the Sabbath day by studying holy texts rather than books of general wisdom. Nevertheless, not being allowed to study for examinations would cause the student suffering and anxiety. Therefore, we may rely on the opinion of the one who permits such study on Shabbat. "According to this, it is permissible to study general studies during the period of examinations, and the principle is that all your deeds should be for the sake of Heaven" (I :36).

When Rabbi Halevy was asked a question about transcendental meditation, he wrote a lengthy responsum in which he described its procedures (2:47). He consulted a student who was versed in the subject to discover exactly what it was. He also read up on the subject. Through his consultation and his reading, he determined that the initiation ceremony was idolatrous and that the mantras were the names of deities. If one could study the methods of transcendental meditation without going through the initiation procedure, there would be no halakhic objection. Nevertheless, Rabbi Halevy states that a person who lives a life of Torah and mitsvot should find sufficient spiritual satisfaction so as not to need to resort to transcendental meditation.

In another responsum (2:2) Rabbi Halevy deals with the question of life after death, drawing not only on the teachings of the Zohar and other classic Jewish sources, but also on the findings of contemporary researchers of the topic. He quotes the work of a psychiatrist from the University of Virginia along with Jewish classical texts.

Scattered throughout his writings are references to various “secular” thinkers including Socrates, Aristotle, Philo, Descartes, Hume, Schopenhauer and Einstein. He valued academic contributions to Torah studies. He recognized the importance of secular studies for students so that they could gain basic life skills to enable them to earn a living when they grew older. (1:36; 4:31; 4:46; 6:87; 8: short answers 54)

TRADITIONAL SOURCES AND CONTEMPORARY KNOWLEDGE

There are cases where halakhic practice has been long established; yet modern research and discoveries may call for a reevaluation of the halakhic practice. There sometimes arises a conflict between traditional practice and contemporary knowledge. An example in point is cigarette smoking. For many generations, halakhists did not forbid the smoking of cigarettes. With recent medical research, though, we have learned that cigarettes are in fact dangerous to health. Does the Halakhah continue to maintain the permissibility of smoking cigarettes, since they were not forbidden in the past? Or does the Halakhah take into consideration the new findings, and thus declare cigarettes forbidden?

Rabbi Feinstein (Yoreh De 'ah 2:49) states that since there is evidence of the danger to health caused by cigarettes, a person should certainly pay attention to this fact. Yet, he argues that one may not prohibit cigarette smoking on the basis of its health dangers, since so many people have smoked and do smoke, and since "the Lord protects the simple." In particular, writes Rabbi Feinstein, a number of Torah luminaries of past generations smoked, and a number of Torah sages in our own time also smoke. Therefore, it is obvious that Halakhah does not forbid cigarette smoking (see also Hoshen Mishpat 2:76).

Rabbi Halevy, on the other hand, rules that cigarette smoking is forbidden according to Halakhah (2: 1). The new evidence concerning health hazards of smoking is overwhelming and cannot be ignored. Rabbi Halevy argues that if the rabbis of the Talmud and the great posekim of earlier generations had known the scientific research which is available to us now, they certainly would have forbidden cigarette smoking. In another responsum (3:25), Rabbi Halevy deals with the case of a person who took a vow not to smoke, but now wants that vow to be annulled. He rules that one should not find a way to annul the vow, since smoking is itself a prohibited act. On the contrary, one should try to convince the person to uphold his vow, since this is in his own best interest (see also 6:58, 7:67).

Another example of traditional practice requiring reevaluation based on modern discoveries relates to kosher meat. According to Halakhah, one should not leave meat unsalted for three days, since the blood in the meat will become congealed and will not be drawn out by the salting process. If, however, the unsalted meat is soaked in water within three days, then it can remain another three days (less a half hour). This assumes that the water keeps the meat fresh, so that the blood will not congeal. Thus, traditional halakhic practice has been to soak unsalted meat at less than three-day intervals. The question arises: since we now have freezers, may we place unsalted meat in them and rely on the cold to preserve the freshness of the meat--thereby not requiring the meat to be soaked every three days? Rabbi Feinstein ruled that one should not rely on freezers, but should actually soak the meat at the regular required intervals. Although he agrees that according to logic, freezing the meat should be satisfactory, yet there are many who have required the soaking of the meat. Rabbi Feinstein rules that only after the fact, and only in case of great need, may one salt meat that has been frozen (and not soaked) for more than three days. Unsalted meat kept in a refrigerator is definitely prohibited if it remained without being soaked for three days (Yoreh De'ah 1:27; 2:42).

On the other hand, Rabbi Halevy rules that meat which was kept frozen in a freezer is permissible to be salted and cooked, even if it had not been soaked during the three-day period. This may even be done initially, "since our eyes see that meat found in a freezer--its blood does not become dry within it at all, and it is as fresh as the moment when it was placed into the freezer, and this is obvious and clear" (Mekor Hayyim, 5:26 I :26).

Both posekim deal with the issue of natural childbirth: is the husband permitted to be in the delivery room when his wife is giving birth to a child? Rabbi Feinstein states (Yoreh De 'ah 2:75) that he would not advise this practice to anyone who asked him. He believes that labor pains are great, and that the presence of the husband is not able to turn the wife's mind away from her suffering. Nevertheless, if a woman wants her husband present in the delivery room, there is no prohibition, as long as the husband stands at her head and behaves modestly. Rabbi Halevy (4:58) also expresses his generally negative attitude towards having the husband present during childbirth. Yet, he goes on to note that modern research has found that the husband's presence can indeed be helpful to his wife during delivery. Although this is a relatively new finding, and our mothers and grandmothers were perfectly able to have children without their husbands being present, it is possible that contemporary women may feel the absolute need for their husbands to be present during delivery, Without their husbands there, the women of today may feel that they will suffer greater pain and will be in greater danger. Therefore, for women who feel this way, Rabbi Halevy believes that the husbands should be present in the delivery room since this is a matter bordering on pikuah nefesh, saving another person's life.

WOMEN LEARNING TORAH

The question of the permissibility of teaching Torah to women is a pressing one in contemporary halakhic discussions. Rabbi Eliezer's statement that "whoever teaches his daughter Torah teaches her obscenity" (Sotah 20a) is well-known and often quoted. Maimonides, Hilkhot Talmud Torah, 1:13, rules that one should not teach Torah to girls, since women have limited intellectual ability. Halakhah has generally permitted women to study only the written Torah as well as those specific laws which they need to govern their own lives. Until modern times, it has generally been regarded as forbidden to teach women the Oral Torah. Rabbi Feinstein (Yoreh De 'ah 3:87) follows the classic halakhic position opposing the teaching of the Oral Torah to women. The administration and teachers of a certain religious school for girls wished to introduce the teaching of Mishnah. Rabbi Feinstein rules that this should not be done, since our sages have established the Halakhah that women should not be taught the Oral Torah. The only exception to this is the teaching of Pirkei Avot, since that work deals with ethical conduct and teaches proper behavior. But other tractates are certainly not to be taught.

Rabbi Halevy (2:52) cites the classic texts which forbid teaching Torah to women. However, he notes that our eyes see that women are in fact able to learn complicated subjects quite well. The original assumption that most women are not capable of learning Torah in a serious way is problematic, when we see how well women today are able to study many complex subjects on a very high and serious level. Rabbi Halevy posits that in olden times when women received no formal education, teaching them Torah--which is so sublime and elevated--was problematic. Girls simply did not receive the intellectual training to be able to handle the study of Torah in a proper fashion. However, since now girls do receive general education, the situation is different. Therefore, those girls who are able to handle general topics may also be taught Torah, including the Oral Torah. Older girls, who have already shown their academic ability in studying other topics, may be taught the Oral Torah, which is a source of life for all who engage in it.

RESPONSIBILITY OF TEACHING TORAH

Since Torah education is a primary value of Halakhah, the question arises whether Torah teachers have the right to go on strike if they are not satisfied with their remuneration. Rabbi Feinstein takes a dim view of such action. When asked whether a teacher was allowed to come to class late, arguing that since he was paid in such an unsatisfactory manner he was free to shorten the time of his instruction, Rabbi Feinstein rejected his claim (Yoreh De'ah 1:138). Indeed, a teacher of Torah is not allowed to waste even one minute of precious time that could be given to Torah education. In another case (Yoreh De 'ah 3:74), Rabbi Feinstein deals specifically with the question of a strike of Torah teachers who have not been paid on time. He rules that, in essence, a strike by Torah teachers is forbidden except in the most extreme circumstances, where the teachers are so worried about their income that they are unable to concentrate on their teaching. It would be a rare circumstance when a strike by Torah teachers would be halakhically justified. (See also Hoshen Mishpat 2:59.)

Rabbi Halevy (3:23) approaches the question from a different perspective. He argues that the ultimate responsibility of teaching children Torah does not rest on teachers, but on parents. The Torah places the obligation on parents; if they are not able or do not have the time to teach their children, then they may appoint teachers as their agents to do the actual teaching. Therefore, if Torah teachers are dissatisfied with their remuneration, they may decide to stop working as the agents of the parents. In that case, the responsibility reverts back to the parents themselves. Thus, if there is bittul Torah caused by a strike of teachers, then the responsibility is solely on the shoulders of the parents, not the teachers. If the parents are anxious that their children not lose time that should be devoted to studying Torah, then let the parents take off work and teach their own children. If they want the teachers to do this work, then they must pay a satisfactory wage. This position is further elaborated in another responsum (5:23).

CALLING NON-OBSERVANT JEWS TO THE TORAH

There are solid halakhic sources which would forbid calling non-observant Jews to the Torah. Since they desecrate the Sabbath or otherwise break the laws of the Torah publicly, they have forfeited their right to the honor of being called to the Torah during prayer services. Rabbi Feinstein (Orah Hayyim 3:12) explains that the blessing of koferim, scoffers, is no blessing and therefore one should not respond with Amen afterwards. This refers only to those who actually reject faith in God; but if a person transgresses the laws of the Torah, even the laws of Shabbat, without considering himself a heretic, then his blessing is valid and may be answered with Amen. Therefore, one should not call to the Torah anyone who is a kofer, even if he had been raised that way by his wicked parents. Since he does not believe in the sanctity of the Torah, his blessing is not valid and he should not be permitted to read from the Torah. Yet, if he believes in God and His Torah, though he commits sins, he may be called to the Torah. The authorities, though, should do as much as possible to diminish the opportunity for such people to be called. It would be preferable to arrange things so that only observant Jews would be called.

In another responsum (Orah Hayyim 2:73), Rabbi Feinstein rules on a case of a boy born of a Jewish mother who was married to a non-Jewish man, May this young man be called to the Torah on the day of his Bar Mitzvah? Rabbi Feinstein responds that even though the child is certainly Jewish according to Halakhah, since his mother continues to live in her wickedness, we should do all that we can not to call the boy to the Torah on his Bar Mitzvah and not to allow any celebration in the synagogue. Likewise, it would be well not to accept him as a student in the Talmud Torah. These measures are migdar milta--preventive measures to discourage others from following the mother's bad example. Once the mother separates from her non-Jewish husband, then the boy may be accepted into the Talmud Torah and may be called to the Torah and have a Bar Mitzvah celebration. If there is a suspicion that accepting the boy into the Talmud Torah would create a bad influence on other children, then the boy is forbidden to be accepted in the school by law, not just because of migdar milta.

 Rabbi Halevy (3:16) deals with a case of a Bar Mitzvah boy and his guests who came to the synagogue on Shabbat morning in a car. Since they have all violated Shabbat publicly, may the boy and his guests be called to the Torah? Rabbi Halevy notes that we live in a time when, unfortunately, the majority of our people do not observe the commandments. We should not push them away; on the contrary, it is incumbent upon us to bring them closer, to speak pleasantly to them, to show them the beauty of the ways of the Torah and commandments. Although in this case we clearly know that the boy and his guests have violated the Shabbat in public, nevertheless "in our generation, an orphan generation, it is proper to be lenient in such a case; and it is our obligation to bring closer, not to push away. And good God will forgive." Similarly, in another responsum (5:1) Rabbi Halevy rules that a Jew who violates Shabbat may be counted as part of a minyan, even though there are halakhic sources which would oppose this view. "It is obligatory upon us to find a way to be lenient." Our situation today is very different from the situation in which the Halakhah was first stated--when all Jews were observant of Shabbat. In those days, if a Jew transgressed the Shabbat in public, that was his way of showing disdain for the Torah. Today, however, even people who consider themselves "good Jews" transgress many Shabbat laws without even being aware of the implications of such transgressions. Although it would be preferable to have a minyan of properly observant Jews, a transgressor of Shabbat may be counted for a minyan if necessary.

THE RELIGIOUS SIGNIFICANCE OF THE STATE OF ISRAEL

Rabbis Feinstein and Halevy differ significantly in their understanding of the religious significance of Medinat Israel. On the question of whether aliyah is a positive commandment incumbent upon us, Rabbi Feinstein rules that it is a mitzvah--but not an obligatory mitsvah. That is to say, if one lives in Israel, then he is fulfilling a mitsvah; but there is no special mitsvah in our time for someone living outside of Israel to go to settle in Israel (Even ha-Ezer 1:102). In contrast. Rabbi Halevy rules that it is quite obvious that a person who is able to make aliyah to Israel, and has no serious obstacle which prevents him from making Aliyah, transgresses each day for living outside of Israel, for not fulfilling an obligatory positive commandment. He states that it is an accepted Halakhah that there is a mitsvah to settle in Israel in our own time, just as this mitsvah was operative in the past. Furthermore, in our time it is clear that the land of Israel is a center of Torah study and is an excellent place to raise children in the ways of Torah. There is no place in the world where it is easier to fulfill the Torah than in Israel. One with vision will understand that there is no spiritual future for Jews except in the land of Israel.

Rabbi Feinstein refers to those Zionists who established the Israeli flag, most of whom were not religious, as being resha'im (Orah Hayyim 1:46). Rabbi Halevy (1:3) recognizes that many of the founders of the modern state of Israel were not observant of Torah; nevertheless, he says, they played a vital role in the revival of the Jewish people. Many of the Torah-observant people of the last century were not receptive to working for and establishing a Jewish state. The Divine Providence called on the non-religious Jews to lead the way towards the redemption of Israel. Although they viewed themselves as nationalists, in fact they were tools in the hand of the Divine Providence which was moving the people of Israel to redemption. Rabbi Halevy's attitude thus ascribes a positive role to founders of Israel, even though many were not observant of Torah.

Rabbi Halevy writes at length and with great enthusiasm about the sanctity of Israel, and that the State of Israel represents the beginning of redemption (1:3). With the national revival of Israel, he believes that we should cut down on the chanting of elegies and dirges on the fast day of the 9th of Av. Although we must continue to observe the day in remembrance of past destructions and in awareness that complete redemption is not here, we should nevertheless also make some indication in our observance that we are in the process of redemption. We should not continue the same pattern that existed prior to the establishment of the state of Israel (4:34). Rabbi Halevy rules that we should emend the Nahem prayer, recited at Minhah of the 9th of Av. That prayer refers to Jerusalem as a city "destroyed, humiliated, and desolate without its children." The fact is that this description is no longer accurate. Jerusalem--while not fully restored--is not destroyed, nor humiliated, nor desolate of its children. How can we recite these words in our prayers to God when the words themselves are not true? He suggests that the text be emended to read that God should have compassion on the mourners of Zion and Jerusalem, the city which was destroyed, humiliated and desolate without its children. She sat with her head covered, etc. By placing the description in the past tense, we avoid speaking lies in our prayers to God. Rabbi Halevy was criticized for this emendation, but he responded forcefully and convincingly (2:36-39).

CONVERSION

There is a diversity of opinion among halakhic authorities on questions relating to conversion to Judaism. Rabbi Feinstein's responsa reflect considerable unhappiness with the contemporary situation. Since the preponderance of candidates for conversion are motivated by the desire to marry a Jewish partner, they are not usually committed to observing Halakhah completely. He explicitly states that he does not approve of conversion for the sake of marriage, and even though he does not prohibit this practice, he expresses strong disapproval (Yoreh De 'ah 1:159). In another responsum, Rabbi Feinstein discusses the case of a convert who did not observe the commandments after his conversion. Even if he had stated at the time of the conversion that he was going to accept the commandments, it is clear that he never intended to do so. Rabbi Feinstein states that a convert who did not accept the commandments is certainly not considered a convert at all, even post facto (Yoreh De'ah 1:157; see also Yoreh De'ah 3:106; Even ha-Ezer 1:27; Even ha-Ezer 4:16).

Rabbi Halevy deals with the question of receiving converts in two important responsa (l :23 and 3:29). He reviews the halakhic literature on the topic and concludes that the Halakhah of conversion is left to the discretion of the individual judges in each case. The Torah neither gave a commandment to convert non-Jews, nor did it give a commandment rejecting converts. The rabbis of each generation and in each situation were given the obligation of deciding whether to be lenient or strict in matters of conversion. The Torah wished that the mitsvah of accepting converts should always be considered as a hora 'at sha 'ah, with each judge deciding for himself whether to accept converts or not, depending on the specific conditions of his time and place. "Rabbinic courts which are lenient in conversion as well as those which are strict--all of them intend their actions for the sake of Heaven and work according to their pure understanding and conscience." Rabbi Halevy places the responsibility on the rabbis who accept converts to determine the sincerity of the desire to fulfill the commandments. There are public considerations as well as private considerations to be evaluated by the rabbis of the bet din.

CONCLUSION

 In considering various responsa of Rabbi Moshe Feinstein and Rabbi Haim David Halevy, we have seen differences in attitude and in halakhic rulings. Since the purpose of this article was not to go through all the proofs and arguments of these posekim, readers should not rely on this essay for actual pesak, but should rather study the sources themselves. Moreover, there are many areas which have not been discussed in this article and which deserve study: e.g., questions of medical ethics and attitudes on halakhic methodology. By studying the responsa of two great posekim, representatives of different halakhic traditions, we can gain a deeper appreciation of the vitality and strength of Halakhah. We may broaden our horizons of halakhic inquiry. We may find models of halakhic authority which can teach us, inspire us and guide us.

Sir Moses Montefiore Bart. was the most famous English Jew of his time, probably of all time. Passionate in his beliefs, both as a Jew and as an Englishman, he became a legend throughout the entire Jewish world in his own lifetime. He was respected by kings and potentates; and was venerated by impoverished Jews in the shtetls of Eastern Europe as well as in the mellahs of North Africa and the Middle East.

 He was born in 1784 and died in 1885, aged 100. As a young man, his uncle Moses Mocatta secured him a position as one of the only twelve brokers allowed to practise on the London Exchange. He married Judith Cohen, sister-in-law of Nathan Meyer Rothschild; and that connection helped him to make his fortune before the age of forty. Montefiore then retired from the Stock Exchange in order to devote the rest of his long life to the interests of poor and oppressed fellow Jews.

Sir Moses, who continued to sign cheques for charitable causes on his deathbed, came from an Italian Sephardi family. Married to an Ashkenazi wife, he was so firm a believer in the unity of the Jewish people that he endowed each couple who married in his synagogue with a gift of money – which sum was doubled for a “mixed marriage” between a Sephardi and an Ashkenazi.

His charities and benevolent foundations at home were on a large scale; and in visits to Palestine, Morocco, Rome, Russia and Turkey, he did what he could to relieve the persecution of Jews in those places. He was knighted by Queen Victoria in 1837 for these noble services; and was made a Baronet in 1846.

Sir Moses Montefiore’s love of Zion was demonstrated by his seven visits to the Holy Land, undertaken at a time when such journeys were difficult and dangerous: his first visit, during which he was able to spend only four days in Jerusalem, took ten months to complete. Sir Moses actively encouraged agriculture there and endowed hospitals and almshouses. The Spanish and Portuguese Jews’ Congregation of London still distributes funds bequeathed by Sir Moses for necessitous scholars in Jerusalem, Hebron, Safed and Tiberias.

The most famous of the many journeys Montefiore made abroad was that connected with the Damascus Affair. The pernicious slander that the Jews require the blood of a Christian for making their Passover matzah was revived in Damascus in 1840; and that resulted in a fierce persecution of the Jews of that city. Sir Moses, with the active support of Lord Palmerston, visited the Khedive of Egypt, where he refuted the allegations and managed to obtain the release of the imprisoned Jews. He also received a firman (royal order) from the Sultan of Turkey, guaranteeing protection to all the Jews in his dominions against similar charges.

On his return to London, Queen Victoria honoured Sir Moses by giving him the privilege of adding supporters (heraldic animals) to his coat of arms. Because of his passionate love of God and of Jerusalem he wrote in his diary:

The supporters I wish for are to exalt our holy religion by displaying Jerusalem in a more distinguished manner than I could otherwise have done.

He therefore added the Lion of Judah holding a banner bearing the word Jerusalem (in Hebrew letters) to his arms.

When in London, Sir Moses Montefiore worshipped at the Spanish and Portuguese Jews’ Synagogue in Bevis Marks, a congregation to which he was devoted and which he served for many years as President of its Board of Elders; it was natural therefore that he turned to the Elders later in life when when establishing his Endowment. In 1835 he was elected Sheriff of London and Middlesex, only the second Jew to occupy that position; and in 1837 he became President of the Board of Deputies of British Jews, a position he held for thirty-nine years.

Men who devote themselves to the help of their fellow men generally do so in one of two ways: they give either of their time or of their money. Sir Moses Montefiore was an outstanding example of a man who was able and willing to give both. That he did to such effect that his name is still remembered and revered by Jews all over the world today. Wherever in the world Jews were oppressed, there Sir Moses journeyed; and he visited the Khedive of Egypt, the Ottoman Sultan, the Pope, the Sultan of Morocco and the Czar of Russia amongst others in his efforts to alleviate the suffering of his fellow Jews.

 In addition to his work for oppressed Jews, Sir Moses also created a centre of Jewish life in Ramsgate, a fashionable seaside resort in the county of Kent. In 1833 Sir Moses opened his own synagogue in Ramsgate, close to his country house. The future Queen Victoria who took holidays in an adjacent house on Ramsgate’s East Cliff, was given a golden key to the gate between the two gardens to enable her to enjoy both. His house has long since disappeared; but his synagogue and the adjacent mausoleum in which he and his wife are buried still stand, carefully maintained by the trustees of his Endowment.

It is supposed that Sir Moses had directed that his papers should be destroyed after his death, for many were indeed burned then. A large number, now in the possession of the Montefiore Endowment, were rescued by Dr Louis Loewe, first Principal of the Judith Lady Montefiore College. Others papers were rescued by Rev. Herman Shandel, Hazan of the Ramsgate Synagogue, and passed on to his descendants: these, including letters and two of Lady Montefiore’s (unpublished) handwritten diaries, are in the Shandel/Lipson Collection in the library of the Oxford Centre for Hebrew and Jewish studies. Some papers that survived are also held by members of the Sebag-Montefiore family.