National Scholar Updates

An Orthodox colleague recently created a controversy after writing a blog post explaining why he no longer recites the blessing shelo asani isha - thanking God for not creating him as a woman. Several Orthodox rabbis criticized this position for various reasons with one even questioning the author's right to call himself "Orthodox," ostensibly for deviating from the traditional liturgy through his omission. In the grand scheme of Orthodox Jewish history this rabbi's personal choice is relatively trivial. However, in the subsequent squabbling over one rabbi's legitimacy, the Orthodox rabbinate inadvertently exposes the inherent cognitive dissonance prevalent in the contemporary Orthodox community.

Contemporary Orthodox Judaism tends to resist innovation and change as a matter of principle. Preserving the authentic tradition is the highest priority, especially when faced with potentially corrupting external influences. For just one example, when confronted with the question of mixed seating in the synagogues, R. Joseph B. Soloveitchik exhorted the Rabbinical Council of America to "be ready to fight for an undiluted Halachah which is often not in the vogue."¹ The problem of course is that Jewish history is replete with exactly such instances when common Jewish practice has changed, either through adapting existing practice or introducing new innovations.

Consider one such example from the liturgy. In the section of morning blessings, the same part of the service which includes shelo asani isha - virtually all sidduim contain the blessing ha-notein la'ya'ef koach - blessing God for giving strength to the weak. R. Yosef Karo (1488-1575) opposed not only the recitation of this blessing (O.H. 46:6), but the legitimacy of its very existence stating, "since it is not mentioned in the Talmud, I do not know how this person had permission to create it" (Beit Yosef O.H. 46:6). The difference between omitting a blessing and reciting an unauthorized one is substantial; in the former one only does not fulfill a rabbinic obligation (T. Berachot 6:18) but in the latter instance one violates a biblical prohibition of taking God's name in vain (Shemot 20:6, B. Berachot 33a). And yet for contemporary Judaism, one such liturgical change is accepted if not required, while the other is deemed unorthodox.

The methods of how Orthodox Judaism selectively incorporates or rejects changes is beyond the scope of this essay. However, there is a more fundamental question which can be extremely uncomfortable for most traditional Orthodox Jews: are the boundaries and definitions for acceptable Orthodox Judaism objective or subjective? Based on the sanctimony emanating from Orthodox Judaism it would be reasonable to assume the former. But if there are objective criteria for Orthodox Judaism, then this criteria must not only be defined and defended explicitly, but more importantly applied consistently to every instance. This would mean that even well established "traditional" opinions or rabbis who violate this criteria would have to be held accountable to this standard, and perhaps be reconsidered as beyond the scope of Orthodox Judaism.

On the other hand, if the criteria for Orthodox Judaism is subjective, meaning it is a floating target meant to include or exclude as a need arises, then Orthodox Judaism is as arbitrary as the other denominations which they criticize. Despite the rhetoric of preserving Torah, if the criteria is subjective, then Orthodox Judaism is so only because its adherents say so.

To paraphrase John Adams, the question which Orthodox Jews must inevitably confront is if it is a religion of laws or of men. If the former, then the laws must be applied universally to exclude that which violates it and to accept that which falls within its range of acceptability, regardless of a an individual's stature or affiliation. But if Orthodox Judaism is primarily defined by its community, then the arbitrariness would be justified, albeit at the expense of its alleged adherence to being shomerei Torah.

This question must be addressed by anyone who ventures into the debate as to what qualifies as "Orthodox Judaism." But from my own experience I have found that the Law provides its own answer and the Men provide theirs.

1. Soloveitchik, Joseph B. "Message to a Rabbinic Convention." The Sanctity of the Synagogue The Case for Mechitzah: Separation Between Men and Women in the Synagogue Ed. Baruch Litvin Ktav 1987. p. 109

When we moved to Israel 30 years ago we sacrificed a number of things: living space (we exchanged a two-story home on a large plot of land for an apartment in a 10-story building) and the excellent, affordable, and personal medical care to which middle-class Americans had then grown accustomed. We also lost Sundays as days off.

What we gained made this all worthwhile: a sense of purpose, a sense of being part of something important that was bigger than ourselves, and, we thought, the opportunity finally to be part of the mainstream.

How did things work out? Rather differently than expected. Israel has grown much more prosperous over the years (if we did not mind the commute, we could sell our large apartment in Haifa and move to a lovely home in the Galilee); medical care here has improved dramatically, while the level of care for middle-class Americans has gone down and the price has gone up, both dramatically. Jewish education here remains problematic, but it is certainly not bankrupting parents, as it is in North America. The five-day week has reached Israel (when it was first proposed to the late Levi Eshkol he is reputed to have said: “First let’s see if we can get people to work for four days, before stretching it to five.”)—with Fridays replacing America’s Sundays as part of the weekend.

Two things particularly surprised us: we raised children with Israeli manners, and we certainly did not become part of the mainstream. Both of us grew up in rabbinical homes, with fathers active in Mizrahi and both fathers and mothers deeply involved in Jewish education, seeing all of the Jewish people as their responsibility. We assumed that we would find like-minded communities here in Israel. That did not turn out to be the case. Over the years we have lived here, the National Religious Party (Mafdal), the Israeli branch of the World Mizrahi, engaged in a long drawn-out act of suicide. No longer seeing itself as appealing to and seeking to represent all Jews, Ashkenazi and Sefardi, dati and non-dati, it first turned itself into the party of Orthodox Zionists, and, after the rise of Shas, into a party of Orthodox Ashkenazi Zionists; it then turned its gaze even further inward and turned itself into the party of the Orthodox Ashkenazi Zionist Settlers. It has now transmogrified into the extreme right-wing “Bayit Yehudi” party with three members of K’nesset (one of whom we know personally and admire as an individual), two of whom basically speak to each other only through the third.

One of us was here in 1967 as a volunteer on a border kibbutz before, during, and after the war and we both initially shared the widespread enthusiasm for settling the territories occupied during the war. After moving here in 1980, we more and more came to realize the folly of seeking to hold on to the “Greater Land of Israel” and drifted leftward politically, putting us out of synch with our neighbors, with most of our friends from synagogue, and, significantly, with the B’nei Akiva youth movement, to which our children belonged. Israel is a society of clearly defined groupings, with clear labels. We often had the sense that in the eyes of many of our fellow synagogue-goers, political “deviance” was a reflection of religious “deviance.” So much for becoming part of the mainstream!

Another issue that distanced us ideologically (if rarely personally) from our friends and neighbors was our growing discomfort with what is usually referred to as “religious coercion.” We very much enjoyed living in a Jewish State that was Jewish not only by virtue of the majority of its populace, but also because traditional Jewish holidays were national holidays and the public square used to be recognizably Jewish. It is not important in this context to point fingers of blame for this, but in our 30 years here the public square in Israel has grown ever more secular, ever more distanced from its Jewish roots, just as the religiously observant have largely retreated into self-made ghettos. From our perspective, attempts to force Judaism down the throats of Israelis have boomeranged. Whether that is indeed the cause or not is less important than the fact that the public face of Israel has changed beyond recognition in our years here.

Let us give one example of this phenomenon. When we moved here, our synagogue had a second minyan for kol nidre for our non-observant neighbors, and the entire neighborhood congregated around the synagogue, even if they did not come in. Nowadays, there is no second kol nidre minyan, no one hangs around the synagogue, and although most secular Israelis fast and do not drive on Yom Kippur (out of vestigial cultural identification), since the roads are almost entirely empty, they are taken over by kids on bikes and roller blades. That is the Yom Kippur these children will remember when they grow up: fancy bikes and empty roads as opposed to empty stomachs.

To simplify a very complicated process, over the years that we have lived here, Israel has become more and more like America (for good and for ill), and as it has grown ever more American, one might think that the ideological rationale for living here has grown weaker (after all, we came here to participate in the process of building a recognizably Jewish—culturally, not necessarily halakhically— nation, not an imitation North America). That our ideological Zionism has not become attenuated is, largely—it is odd to say—thanks to hatred of Israel in so-called progressive circles around the world. To our surprise, Li-heyot am hofshi beArtseinu—to be a free nation in our land—remains HaTikvah, the not-yet- realized hope, of the Zionist movement. Thirty years ago it seemed that the hope had been realized; over the last decade it has become clear that our hopeful dream is a nightmare for wide swaths of “enlightened” opinion around the world (and in “elite” circles in Israel). Suddenly, once again, to be a Zionist is to be a revolutionary, to go against the current.

Another surprise: Israel was meant to cure anti-Semitism; sadly, it has not. Only 60 years after the Holocaust, our generation is once again called upon to defend the right of Jews to live and to live as a free nation in its own homeland.

Living in Israel is once again more than simply making a living in Hebrew. We are challenged to show that the dream is worthwhile and attainable. For people like us, that makes living in Israel even more compelling than it was 30 years ago when we made aliya.

A Ladder upon the Earth, Whose Top Reaches the Heavens[1]

In this article I will attempt to analyze the halakhic approach of Rabbi Joseph B. Soloveitchik, and to compare and contrast it with two other models of halakhic thought—those of Rabbi Abraham Issac haCohen Kook and Rabbi Isaac Hutner. The central question at the core of these different halakhic approaches is the relationship between halakha and reality; that is, the relationship between the legal source material of preceding generations and the human concerns that arise from the specific question that a posek (halakhic arbiter) is asked. A central prism through which these various approaches may be best understood is their alternative theories of mahloket (talmudic dispute)—a central characteristic of the oral tradition. Over the course of this study, we will explore the way each approach understands the balance between halakha and reality, as well as its relationship to the nature of mahloket.

Rabbi Soloveitchik—Divine Law

In the eulogy for his uncle, Rav Velvele of Brisk (Rabbi Isaac Zev Soloveitchik), ‘Ma Dodekh Mi Dod,’ Rabbi Joseph B. Soloveitchik describes the role reality should play on halakhic pesak through a parable. He compares the real-life circumstances, the difficulties and needs of the individual who asks a halakhic question, to a rocket that launches a satellite into its orbit.   

The halakhic process can be compared to a satellite that enters a particular orbit. The satellite’s entry into orbit depends on its thrust at takeoff. However, once in orbit, it begins to travel with amazing precision according to the specific parameters of its particular orbital path. At this point, its original thrust cannot affect it in the least.[2]

Indeed the rocket propels the satellite into its trajectory; however, once it enters its orbit it continues to travel by the laws of physics. The same is true for the process of pesikah (halakhic decision-making):

The case is the psychological prompt that pushes pure thought into its path. However, once on its path, it [pure thought] pays no deference to the particular case, but operates by its own unique ideal-normative categories.[3]

Even though the posek is dependent upon a question from reality, the process of pesikah itself, the search for an answer to the halakhic question, must be separated from the reality in which the question was asked. The premise of halakhic decision-making is that halakha is based on a set of absolute a priori principles, and as such has no direct or necessary connection with reality. The posek’s role is uncovering the halakhic truth by way of a predetermined course controlled by the principles of the halakhic process.

Professor Avi Sagi summarizes this outlook:

Apparently the closed nature of the system is determined from the fact that it operates as a legal system drawn from predetermined postulates and that it derives its conclusions in consonance with a system of objective rules. Halakha is therefore similar to a deductive system whose fundamental assumptions are the content given from Sinai and its principles are the a priori legal system that also was given at Sinai. The system develops from its own internal axioms on the basis of its own rules, and not on other external factors. Rav Soloveitchik is in fact aware that halakhic ruling is done in relation to the questions that reality itself raises. However, in his opinion, reality is not a component within the halakhic decision itself, rather, it is the motive driving the sages of the halakha to activate the system.[4]

This attitude toward halakhic decision-making greatly influences the place of, and the need for, creativity when making a pesak. It seems to me that Rav Soloveitchik does not deny the fact that pesikat halakha is a process in which the posek compares and connects different sources. For him it is a process through which he creates and adapts halakha to reality and to the new halakhic question that has been asked. Even so, the room for creativity is limited by the predetermined rules that he strives to uphold. In the end, creativity then becomes just a servant to the quest to reveal the halakhic truth. Reality is only an instrument through which the posek is launched into his logical, mathematic-like calculations.

Rabbi Soloveitchik’s fundamental aim is to disconnect halakha from reality and to limit external influences on the halakhic decision-making process.

Why does Rabbi Soliveichik oppose the influence of external realities on pesikah, as described so eloquently in the parable of the rocket? Rav Soloveitchik’s position was expressed on the background of the Haskalah and the historical approach of Zecharia Frankel, which later became the foundation of the Conservative movement. The historical school held that halakha needs to be analyzed through sociological and historical factors to uncover the close connection between these factors and the posek, and the pesikah itself. Emphasizing the influence of the historical reality on pesikah permits one to claim that a certain pesak that was appropriate to an earlier era, is no longer relevant.[5] Since these movements were understood as a threat to Orthodoxy, it seems that Rav Soloveitchik attempted to create a structure of pure halakha, transcending social, cultural, or historical context in order to protect against a complete abrogation of halakha. He therefore strove to disassociate any connection between the halakha and the reality of the questioner.

It seems to me that it is difficult to reconcile Rav Soloveitchik’s attempt to disassociate reality from the halakhic process with the tradition’s attitudes toward halakhic dispute. There are many examples in the tradition of two authorities who faced similar realities and yet came to different and even opposite conclusions. How are we to understand the essence of talmudic dispute and the question of “halakhic truth” that arises from this phenomenon?

The talmudic tradition asserts that in cases of dispute “both these and those are the words of the living God.”[6] This statement can be explained in two ways.[7] The first understands that indeed there are two truths. Both sides of the dispute are actually one hundred percent right. Alternatively, some suggest that there is only one absolutely true halakha that the posek tries with all his might to arrive at and uncover, but there is no guarantee that he will indeed succeed. One side of the dispute is mistaken but nevertheless is afforded the designation of “words of the living God” because of its positive motivation and aspiration to arrive at the truth.

Reconciling either of these understandings of halakhic truth with Rav Soloveitchik’s approach of disassociating reality from halakhic process proves difficult. Let us assume for the moment that Rav Soloveitchik does not accept the literal understanding of “these and those” but opts for the more figurative explanation. This is an approach that claims that the legitimacy of each side lies in its aspiration for truth, not necessarily having reached the absolute truth. Both sides are “the words of the living God,” because both sides are striving for divine truth. The process of searching and striving itself is the divine truth. If we return to the parable of the rocket, there is no guarantee that the posek indeed will manage to enter the proper orbit. It may be that the satellite will never make it into the proper orbit, or maybe at some point it will leave the orbit, and then the gravitational force will overtake the centrifugal force, and the satellite will fall.

The difficulty with this approach is that we are then forced to concede that at least one of the opinions is wrong. One of the posekim did not manage to launch the rocket into the right orbit. This explanation depletes Rav Soloveitchik’s approach of its great strength. He tried to create a paradigm of a priori halakhic truth, and thereby to disassociate halakhic truth from the chains of reality. The moment we acknowledge that posekim may be wrong, we have brought into the process of pesikah the problem of human imperfection with all its ramifications. There may indeed be a “halakhic truth,” but if we never know if we’ve reached it (for the aspiration for truth with no guarantee of its realization is equally applicable in the case of an individual posek as for the body of halakhic disputes), in the end the earthly reality and the human situation prevail over this truth and halakhic decision-making is ultimately dependent on them.

On the other hand, it may be possible to claim that Rav Soloveitchik accepts the other explanation of the nature of dispute in which indeed there are multiple truths. Thus, we can claim that there are a number of different “orbits” that the posek can enter. Each one of them is true in a certain way and provides alternative correct answers to any question that arises.

Yet, it seems that this explanation of dispute is also difficult to reconcile with Rav Soloveitchik’s approach as it provides an opening for the influence of reality on the posek. Ostensibly, reality is only the rocket that causes the take-off,  so how could it influence an entry into an alternative orbit? For every question are there a number of rockets? And even if there indeed are a number of “correct” answers for each question, have we not lost the benefit that we wanted to reap from disassociating halakha from reality? How is the posek to decide among the various options? In the end, there is no escape from the responsibility of the posek to take into account the circumstances and to decide which of the halakhic options best fits them. Indeed, there are multiple mathematic laws that allow for different solutions. Perhaps the axioms themselves don’t change but only their application; be that as it may, this does not remove the central role given to reality itself.

Despite these difficulties in reconciling the nature of rabbinic dispute with his theory of pesikah, it is clear that Rav Soloveitchik prefers that the halakha construct reality, and not vice versa. Halakha is to have the upper hand over reality since it is pure and impervious to human, earthly factors.

Rav Soloveitchik’s approach is best understood in light of his Brisker background. He was completely entrenched in the Bet Midrash, and there seems to be a correlation between his talmudic and his halakhic approaches.

Many of the latter Ashkenazic talmudic authorities spoke of an abstract halakhic world, and attempted to explain disputes in an abstract fashion through the creation of a priori definitions and distinctions that were to be applied to various positions. The most notable among them were the Rogetchover (Rav Yosef Rozin), Rav Yitzchak Yaakov Reines, and Rav Chaim of Brisk. The Rogetchover adopted the philosophic language of the Rambam’s Guide for the Perplexed,[8] Rav Reines spoke using terminology borrowed from the science of Physics,[9] and Rav Chaim adopted terminology from the halakhic literature. In contrast with the first two thinkers, who used terminology foreign to the halakhic discourse, Rav Chaim used notions that were already familiar to the students of halakha, such as shenei dinim, heftza, and gavra (two laws, the object, and the person). He emphasized these concepts and attributed to them major significance, and through them he analyzed the entire halakhic system. He managed to transform the talmudic discussion into an abstract philosophical discussion without resorting to external terminology.[10] You do not need a background from other fields in order to understand his philosophical distinctions, and it seems that for this reason his method caught on in the world of yeshivot. The possibility of analyzing the talmudic discussion in an abstract philosophical manner gave students a sense of elation. Indeed, many times the Brisker method of study is absolutely compelling. Talmudic controversies can be understood as disputes over philosophical principles of a transcendental ideal realm, transforming the halakhic discourse of the Gemara into a debate over ideal principles from which the halakha is drawn.

The advantage of this method is that talmudic study becomes a fascinating philosophical discussion. But it has three significant drawbacks: The first disadvantage, which is recognized in the yeshiva world, is that sometimes its innovative insights simply do not fit the text; the text is exploited to make the abstraction attributed to it. The second problem is that despite the initial interest that such study creates, at some point all the talmudic passages begin to sound alike. There are predetermined arguments the student anticipates. Patterns of thought are repeated until almost all the halakhic discussion is given over to this type of analysis. For each question that arises there is a prepackaged answer. The third problem is the loss of the learner's awareness that the halakhic discussion almost always addresses a human, down-to-earth reality. The sages who dealt with the issues throughout the ages were intimately connected to reality. The discussions in the Talmud are often tied into the experiences, culture, and conceptions of justice of the individuals making their case. The rapid leap to abstraction loses the appreciation for the complexities and alternative explanations of the subject at hand.[11]

We see, therefore, how Rabbi Soloveitchik’s halakhic approach is created from two main focal points. One is the Brisker talmudic approach and the second is the Orthodox need to give a clear answer to antinomian tendencies in the other streams of Judaism. Of course both of these focal points do not stand in isolation from each other, but rather are interconnected to each other. Thus one could speculate that the Brisker method itself grew in part from the need for an Orthodox response to the more liberal forms of Judaism, but this is not for our discussion here.

This presentation of the Brisker background of Rabbi Soloveitchik allows us to focus on one of its substantial dangers. Presenting halakha as disconnected from reality allows for disregard of the circumstances in which a question was posed and a limiting of the options available to halakhic arbiter. In my humble opinion, pesikah is a process in which the posek, sincerely attentive to reality and the human needs arising from it, uses the full gamut of halakhic tools before him to address the question that has arisen. Creativity is at the heart of pesikah, and it allows the posek to connect the sources to reality. Reality is a significant and central factor in the ruling itself and not just a catalyst for the beginning the process.  

Rav Kook: Jewish Law as a Human Creation

In the beginning of his work Lights of the Torah, Rav Kook describes the difference between the Written Torah and the Oral Torah. He says that Divine Law is the Written Torah, and that the Oral Law is a human creation.

We accept the written Torah through the most transcendent channel in our soul... It is not the spirit of the nation that wrought this great light but the spirit of God, the creator of all…

With the oral Torah we descend into more mundane life. We sense that we are receiving the divine light through another channel in the soul, a channel that is closer to earthly life…[12]

However, elsewhere, Rav Kook stresses that Oral Torah is not like any other human creation:

Oral Torah in ensconced in the very nation's character, which found its blessing through Divine revelation of the Written Torah…[13]

Unlike the parable of the satellite of Rabbi Soloveitchik, Rabbi Kook compares the oral tradition to the sail of a ship filled by the wind of the Written Torah—the law of Moses given through the illuminating crystal ball of prophecy. Its dynamism, its direction, and its originality flow from the unique and even divine nation and therein lies its singularity among all other human creations.

From the universal spirit of God, the transcendent spirit of prophecy which creates the eternal Torah of life, comes a spirit of interpretation tucked away in the depths of the soul of the people, revealed in its favorite sons; from its penetrating gaze comes the great riches of the Oral Torah and all its wealth, all its genius and the foundation of its acclimatization to life, and its strength to master life and defeat that which is ugly and degraded in it.[14]

The emphasis is not on a certain quality of the nation that is revealed in the Oral Torah, but rather its ability to create the Oral Law. This capability is an essential and unique feature of the nation

That which Israel has the capacity to create, that is oral Torah...[15]

You can liken the approach of Rav Kook to the difference between a painting by Rembrandt and a painting done by a high school student. Indeed both are human creations, but the difference is that for the artist there is inspiration, some inner aesthetic sense through which he/she is able to create works above and beyond the ability of other people. With regard to the Torah, this uniqueness is with the people Israel. Thus Rav Kook presents a model through which the oral tradition, including the process of pesak, is on the one hand a human process, but on the other this 'humanity' is vested with a special position stemming from its status as the chosen people.

We saw in Rav Soloveitchik that halakha is basically a divine fixed system of rules, and its study and even pesikah are influenced by its nature. In contrast, for Rav Kook all of the Oral Torah, including the halakha, is a human creation based on the divine Written Torah. If Rav Soloveitchik understands reality as a stimulus to search for the absolute divine truth, for Rav Kook halakha is a human creation of a nation endowed with a special genius for the creation of an oral Torah out of its historical experience.

Such an approach, that sees the essence of halakha as a creation flowing from the nation, can be found in the thought of Ahad Ha'am. In his article "Torah of the Heart,” he talks about the heart that beats through halakha over the generations. Although he had an ambivalent attitude toward tradition, he nevertheless anticipated a renaissance of Jewish law. He felt that there was narrowing of halakha in his generation, but looked forward to the day that the Jewish heart would beat again and create halakhot in an appropriate fashion. His approach can be best understood through his presentation of the talmudic determination that the statement “eye for an eye” should be understood as monetary compensation:

…If the heart in its development reached the understanding that “an eye for an eye” is an unacceptable cruelty for a cultured nation, and the heart was still at that time the absolute authority—then it is clear that the other source of authority, scripture, could not mean anything else, and there is no doubt, therefore, that “an eye for an eye” means monetary compensation.[16]

Rav Kook echoes Achad Ha’am in his attribution of halakha as an amazing human creation of the Jewish people; yet, there is a certain difference between them. Achad Ha’am writes critically of the state of halakha in his time. He laments that halakha has deteriorated, and he therefore calls for a halakhic renaissance.[17] Against this, Rav Kook writes in a gentler fashion. He does not believe that at some point in the development of the oral tradition the system broke down; rather, he accepts the Oral Torah of the generations as is and marvels at its beauty.

One could ask about Rav Kook's approach, what is the relationship between the Oral Torah of the current generation and previous generations? Is one to accept the creation of every generation as legitimate? What is the value of the current generation’s creation in light of the beauty and validity of the work previously existing for many generations, which is also a manifestation of all the special character of Israel from time immemorial? It seems that in some sense Rav Kook loses the ability to critically evaluate the sources of Oral Torah. If halakha is a masterpiece, can one suggest that it is not appropriate for a certain reality? And what happens in a generation where the national spirit turns in a negative direction that one should oppose? It seems that the critical sense is something fundamental to Oral Torah that expresses itself through the talmudic tradition of dispute. Oral Torah is not a unified harmonious creation but rather a compilation of numerous positions that disagreed and critiqued each other.

It should be noted that the theoretical differences between Rav Kook and Rav Soloveitchik do not affect their actual halakhic decision-making. On the one hand, from an examination of Rav Kook's response, he seems very similar to other posekim. There seems to be little direct influence on his pesak from his conception of Oral Torah. On the other hand, from testimony about Rav Soloveitchik’s rulings in the Boston community and at Yeshiva University, it appears that he was flexible and especially attentive to reality. Nevertheless, in the next generation the influence of Rav Soloveitchik’s understanding of the process of halakhic decision-making becomes recognizable. Posekim emanating from his circles tend to discuss little of the character of the circumstances and its complexity, and jump too quickly to apply a priori halakhic concepts. The idea that halakha is something transcendent and pure, affects all of the Orthodox circles in America—and a portion of the Conservative movement as well. The most striking point is that the posek generally does not deal with reality itself, but only with the reality as compared to the transcendent Law; i.e., how the transcendent law applies to the reality before him.

Rav Hutner—Halakha as a Conversation between Heaven and Earth

In contradistinction to Rav Soloveitchik and Rav Kook, who ignore the dimension of time in the transmission of Torah from generation to generation, Rav Yitzchak Hutner emphasizes the process of the transmission of the Torah received at Sinai from generation to generation. His approach is expressed in a number of places in his series of books on the holidays entitled Pahad Yitzchak, but the core of his understanding of halakha can be found in essays 1 and 3 of his volume on Hanukkah.

In essay 1, he presents an idea that there is something unique about the style of the Oral Torah that is indicative of its essence. He expresses this idea in his usual fashion through a spectacular homiletic in which he goes through various sources and explains them in creative ways.

Rav Hutner bases his approach on three sources. The first is a Tosafot in Tractate Gittin from which he learns that the translation of the Oral Torah into foreign languages would cause the Jewish people to lose its uniqueness:

The Midrash states: "they will be considered foreign" for the gentiles wrote (translated) the Torah. If all of the Torah had been written down for Israel, the gentiles would have written (translated) all of it. Therefore, the Merciful one said, "I will write for him most of the Torah, for what I wrote for them, is considered foreign, since foreigners copied it.[18]

In this puzzling midrash, the Sages say that God intentionally refrained from writing the Oral Torah in order to prevent non-Jews from translating it. Were they to acquire it through translation, Israel would lose its uniqueness. The rabbis of the midrash claim that God knew that non-Jews would translate the Torah and therefore commanded that the Oral Torah should not be written. For the purpose of Israel maintaining its uniqueness, the Oral Torah was not written. Rav Hutner connects this midrash to the statement of Rabbi Yohanan who says that the essence of the chosenness of Israel is the Oral Torah:

R. Yohanan said: God only made a covenant with Israel for the sake of the matters that were transmitted orally.[19]

The third source for Rav Hutner is the Vilna Gaon's commentary on the blessings of the Torah:

“Who chose us from all the nations,” “who gave us his Torah” ... “who gives the Torah.” He wrote in the abovementioned book of the GR”A (The Gaon Rabbi Eliyahu of Vilna) that this blessing has three parts corresponding to the three times Israel accepted the Torah: When God said "you shall be my treasured possession" (Exodus 19:5), they accepted all the commandments, and the second time, at the revelation of Sinai, and third, when Moses made the covenant. Thus, all three occasions are referenced in this blessing: "who chose us" refers to "you shall be my treasured possession," "who gave us his Torah" refers to the revelation at Sinai when they received the Torah from God, and "who gives the Torah" with the definite article, refers to the Oral Torah which they received from Moses orally. Therefore, it is written in present tense, "who gives" because knowledge of the Oral Torah constantly renews knowledge.[20]

Despite the emphasis of the GR”A that the Oral Torah is the third link in the threefold giving of the Torah, Rav Hutner processes his words against their simple meaning and claims that the essence of the Oral Torah predates the chosenness of Israel and the giving of the Torah. The uniqueness of Israel, as expressed in God's proclamation that Israel will be “treasured to Me,” is dependent on the Oral Torah being unique to the nation, but had the Oral Torah been translated, Israel's uniqueness, and treasured status would be abrogated retroactively.

In this surprising explanation, Rav Hutner further claims that this fundamental aspect, which is part of the nature of the Oral Torah, already existed before the giving of the Torah, during the period of the Patriarchs, and before the content of the Oral Torah was revealed.

And because the covenant includes the repudiation of writing down the oral tradition, it follows that the prohibition of, "you are not permitted to write down the teachings of the Oral Torah" precedes all the specific prohibitions of the Torah, and moreover, it precedes the very event of the revelation of Torah.[21]

This is astonishing! On the one hand, this fundamental predates even the giving of the Torah, but on the other hand it is embodied specifically in the Oral Torah. This begs the question, what is this foundation and what is the significance of the fact that it was established before the giving of the Torah? It appears that Rav Hutner was not referring to any halakhic content that was given at Sinai but rather to something more essential and fundamental.

We will put aside for the moment the question of what this fundamental is, and turn to essay number three on Hanukkah. In this essay, Rav Hutner claims that ever since the Torah was given at Sinai, parts of it were forgotten from generation to generation. But God actually rejoices over this loss because in its wake, people attempt to restore the Torah which causes it to expand. How is it that forgetfulness causes an expansion of Torah? On the simplest level, the logical arguments through which we succeed in regaining the lost halakha is the Torah that is reproduced.

We learn from here a wonderful novel idea that it is possible for the Torah to grow in consequence of it being forgotten to the extent that it is possible to receive congratulations for forgetting Torah. See that the Sages state that three hundred halakhot were forgotten in the days of mourning for Moses, but were restored by Otniel ben Kenaz through his casuistry. The logical arguments and the restoration of halakhot, these are the words of Torah that expand only through the forgetting of Torah.[22]

Moreover, in radical way, the pilpul (logical argumentation) causes the creation of totally new halakhic positions. It is possible that the Sages did not “succeed” in their attempt to discover the original halakha that was since forgotten. We see that there are arguments regarding the correct halakha, and this indicates multiple reconstructions of the halakha by various Sages. This point is expressed in the ability of a rabbinic court to rely on a minority opinion that was rejected in the past and rule accordingly, a fact that indicates its legitimacy:

The even bigger novel insight that flows from this understanding is that Oral Torah’s extraordinary strength is more evident in cases of difference of opinion than in cases of unanimity. For embedded within the statement “these and those are the words of the living God” is the principle that even an opinion that was rejected by halakha is a legitimate Torah opinion.

…And if a latter vote is taken and they decide to accept the previously rejected opinion, from then on, the halakha genuinely changes.[23]

What is the content of those halakhot that were regenerated in the wake of forgetfulness, and what is the relationship between them and the original, forgotten halakhot? Rav Hutner suggests that “new Torah values” that may even be contrary to the original values are created.

The war of Torah (the creation of disputed positions) is not simply another characteristic of Torah study. Rather the war of Torah is a positive creation of new Torah values that would not otherwise be found in the words of Torah themselves.

The advantage of forgetfulness is the creation of new opinions that would not have been created otherwise. When the sages of Torah accept an opinion that was rejected in the past, it becomes the halakhic precedent. In extreme circumstances it is possible that a halakha will be accepted that expresses the very opposite of the original halakha, and nevertheless, it will become the true and accepted halakha. This process is not a negative one, but on the contrary, it receives God’s approbation who declares, “Yasher Koach (congratulations) that you broke them.” It seems that Rav Hutner understood how radical his words were, and therefore he emphasized:

The approach rejected from Halakha remains a legitimate Torah opinion, as long as it is said within the boundaries of the discourse of the Oral Torah.[24]

It is possible to understand the forgetting that Rav Hutner speaks of in a straightforward fashion—that in the past we knew what to do in a particular situation, but today we don't anymore. Yet it seems clear that Rav Hutner refers to not only the forgetting of technical halakhic details, but also to a more essential forgetting. Throughout the article, he claims that forgetfulness is an ongoing phenomenon of the Oral Torah and continues even after the writing of the Oral Torah that ostensibly prevents technical forgetfulness. Therefore we need to expand the notion of forgetfulness to include situations in which the reality has changed and we find it difficult to apply the previous halakhic precedent as it stands. A hint to this idea can be found in his quotation from Nachmanides where he says that “it is known that not all minds will be in agreement over how to address new situations.”[25] According to Nachmanides, halakhic disputes are the result of attempts by imperfect sages to apply the divine Torah to new realities.

Rav Hutner speaks about forgetfulness in its usual sense, but he is also referring to something similar to, yet beyond forgetting—that is the quandary that we experience when upon first glance we do not know how to apply the halakha in a given reality. He calls it “darkness-forgetfulness,” where the darkness is a type of confusion: when we don't know what to do; we feel as if we are standing in the dark.

It is from this perspective of forgetting that one should understand the reconstruction of lost halakha. This is a process in which the posek tries to apply anew the halakha to reality. He tries to compare the situation at hand to a myriad of sources, to innovate out of those sources and thereby resolve the difficulty. The halakhic sources reach us through a long tradition, whose origin can be traced to the acceptance of the Torah at Sinai and afterwards through the cycles of forgetfulness and restoration of these sources. The posek continues to engage in a conversation with the sources, through which he formulates his new ruling. These rulings are the essential and main benefits of forgetfulness that forces the posek to create and innovate.

What is the deeper significance of a conversation with things that were revealed at Sinai and what is the importance of entering into this conversation? To understand this point we will return to essay number one and to the “secret fundemental” that still needs to be uncovered.

I suggested as a solution to the puzzle of essay 1 that the foundation (or “secret”) of the Oral Torah is the dialogue and give and take that the posek establishes between the present situation and past sources. This process is like a tug-of-war between the posek and those sources. The Aramaic words shakla vetarya, translated as give-and-take, are the talmudic terminology for this process of matching the sources to the reality. This same phrase is also used as the term for bargaining. There is a process of bargaining between the human needs on the one hand and the authority of the sources on the other. Sometimes we submit before the authority of the source, but other times we reinterpret a source so that our conclusion will fit with the given reality. In essay 3, Rav Hutner emphasizes over and again the “battle of Torah,” and it seems that he is referring specifically to the talmudic dialogue, of which an essential part is argument and constant debate.

This grand conversation predates the giving of the Torah and it is, in essence, the ethos that our forefathers bequeathed to us for all future generations. The Patriarchs engaged in dialogue with God Himself for the welfare of His creations. An outstanding example of this is the conversation between Abraham and God before the destruction of Sodom. The interchange between Abraham and God could very well be described as bargaining; while God suggests he will utterly destroy Sodom, Abraham bargains suggesting that God should save the city if 50, then 45, then 40, etc., righteous individuals can be found. We can say that Abraham may have been the first to engage in “shakla vetarya” with the divine word. Perhaps this is an indication of the aspect of Oral Torah that predates its giving that Rav Hutner was referring to. But it is not just Abraham who looks to engage God in dialogue. It seems that God is anticipating and encouraging just this type of engagement. God asks, “Shall I conceal from Abraham what I am about to do?”[26] He continues, “for I have come to know him because he will instruct his sons and household after him to guard the way of the Lord to do righteousness and justice.”[27] From a simple reading of the text it seems that God expected Abraham to argue with Him. God revealed His plan to Abraham specifically because He knew that Abraham instructs his household to do “righteousness and justice” and thus will not let Him destroy Sodom. So in addition to the ethos that Abraham creates when he stands before God in argument, God too creates this ethos and expects it from Abraham.

Like our Patriarchs, we, in every generation, stand before the formal commandment of God and adopt the ethos of dialogue in the story of Sodom, a dialogue that seeks the welfare of humanity. We stand before the divine commandment and declare that it is up to us to try to interpret it in a way that is attentive to reality and human adversity. It is incumbent upon us to engage in this give and take for the welfare of all creatures. God encourages this dialogue. Through the story of Sodom, God explains to us how to accept His Torah.[28]

This intimate conversation that is maintained between Israel and God is the unique aspect of the Oral Torah. Its uniqueness stems from its intimacy—there is much love and intimacy in true debate.[29] The acceptance of the Torah is indeed absolute, a complete commitment. Yet at the same time, it is like a student’s acceptance of his teacher’s wisdom. The student poses difficult questions, engages in a give and take that creates an intimate relationship.

In other words, when a posek tries to restore what was at Sinai, he tries to restore what should have been. Sometimes he’s not quite sure what was said at Sinai and stands bewildered by the simple application of the words that were said to the given reality. But he knows what should have been said at Sinai based on the principle of “to guard the way of the Lord to do righteousness and justice.” Indeed, this principle speaks of interpersonal commandments; yet it is also applicable to commandments between humans and God.[30]

Halakha is an attempt to make a better world of human relations and the relations between God and humanity. Were we to try to create such a world from whole cloth, we would lose out on two accounts: first we would lose the intensity of the ethical activity and the religious adherence that stems from halakhic commitment; additionally, we would lose out on the intimacy of the dialogue with God. This dialogue is also a conversation with all those who previously engaged God in conversation. A chain of generations is in dialogue with the divine command as we attempt to apply it to reality—each generation with its own circumstances—in the best way possible.

This conversation is important, not for that sake of the debate itself, but for the attainment of love through dialogue and exchange. The joy in a shared creation is what brings love. The deep meaning of learning Torah is the conversation with God. Sometimes this conversation is not direct, but through the Torah of one who dealt with an issue in a previous generation. Nevertheless, through this conversation we feel an intimacy with God in all of His glory. The result of this intimacy is a halakha that fits the reality, is attentive, and desires to “guard the way of the Lord to do righteousness and justice.”

Against the polar opposite approaches of Rav Soloveitchik and Rav Kook—a completely heavenly halakha or a halakha that is a wholly human creation—we can view the approach of Rav Hutner as the “middle road” that creates a dialogue between the approaches, between heaven and earth, in order to find the best way to maintain the divine command in the current reality.

“Imagination is more important than knowledge.”

—Albert Einstein

“Pyramids, cathedrals, and rockets exist not because of geometric theories of structures or thermodynamics, but because they were first a picture—literally a vision in the minds of those who built them.”

—Historian Eugene Ferguson

Introduction

Art education is rarely prioritized in Jewish Day School curricula. A double curriculum of secular and religious studies often leaves little time for subjects whose importance is “still questioned.” Even in the best of secular schools, art education often survives, but only on a year-to-year basis with the constant threat of being slashed. If not for the monitoring by the education watchdogs and the relentless hard work of art advocates, there would be many artless schools in America and even more artless Jewish Day Schools.

The fact that art is offered in some schools and not others is nothing new. Many administrators or school boards have considered an art program “glorified busywork” and do not really understand the nature of art and its value to society. While no one group can be blamed for this misunderstanding, arguably most everyone who is against art programs rarely cares enough to give the matter of art education serious thought. As a result, the average Jewish Day School graduate, like most secular school graduates, is probably a victim of a passive attitude toward art education that often translates into no art classes being offered. There is a sad irony in this situation because the arts have always played a major role in Judaism. In this essay, therefore, I will argue that it is essential to have an art program in a Jewish Day School, and present ideas for what I think a rich art curriculum should consist of, taking into account limits on time that result from a “double curriculum.”

Before I talk about art education in a Jewish Day School setting, it is important to define what art is. It is commonly held that the definition of art has changed many times since the cave paintings were first created 40,000 years ago. It started with “art is magic,” then moved to “art is beauty and emotion,” then to “art is the artist’s view of the world,” and on and on and on. Each culture has defined art in its own way, depending on the time, the place, and the people who made it. But what is art today, in the twenty-first century, postmodern era? The present accepted definition is, “art is when a person takes any material or substance and uses it to make a statement.” Today, one can take paint, stone, clay, food, newspaper, scraps of metal, wire, cloth, vinyl, egg crates, rubber, or film and use them to make a statement. Anyone who has visited a museum of modern art anywhere in the Western world can attest to the variety of materials being used in unique ways. Like the paintings of the past, postmodern art of the twenty-first century challenges the viewer to think about and analyze what the artist is trying to say. But it may be more demanding than paintings of the past because the viewer may not readily understand the language of an artist who, for instance, uses a few tree branches to make a point.

What distinguishes art from science is that art and creativity are timeless. Science is like a ladder—each year humanity builds upon what it knows and what it has achieved to move forward and upward. When humanity makes progress in science, it usually replaces old techniques and old insights with new ones. Art is only somewhat similar, in that while artists employ techniques that build upon those of their predecessors, viewers do not cease appreciating and finding beauty in what came before. Cave paintings are just as fantastic to behold as a Michelangelo statue, or a Picasso painting, or an Andy Warhol silkscreen of a soup can, or a Frank Gehry piece of architecture. Someone might prefer one style over another, but each is still relevant today and can be appreciated. So with this in mind, why is it important to teach art in school?

Why Is an Art Education Important for Every Child?

Many people do not accept art as an important element in their lives or in the general education of their children. Therefore, there are numerous schools that lack art education, even in the richest and most progressive states.  I am fortunate to teach at a school whose headmaster and administrators value art education, but within many Jewish Day Schools across the country art education is often missing from their curricula. This is always an unfortunate state of affairs, and with budget cutbacks and financial restraints, the problem will only get worse. Therefore it is important to outline a few reasons why every child should have the opportunity of an art education throughout his or her years in school.

I use the term art education to mean a curriculum that combines the teaching of art appreciation and theory with the instruction of hands-on projects—seeing and doing. There are several reasons children benefit from this type of art education. Most broadly, art education can help nurture creativity and critical thinking, which are necessary to excel in a range of disciplines. If people stopped creating or thinking critically, progress in many fields—medicine, engineering, science, or literature would cease. At the same time, art education can encourage healthy risk-taking so that children become comfortable with stepping out of their “comfort zone,” and gain confidence in trying new projects. This ability to come to terms with risk-taking, and sometimes experiencing and recovering from failure, is an important skill-set to learn. Parents who therefore dream of their children becoming doctors or engineers or lawyers should consider that the skills taught in art education can be useful, and critical to, a variety of professional careers.

Aside from benefiting their future professional lives, art education both deepens and broadens children’s understanding of the world around them. Students who take art classes are not only able to appreciate art in museums, they are able comprehend and value the different cultures they come in contact with on a daily basis. Students equipped with this skill are more able to navigate through an increasingly multicultural world and interact intelligently with people of different backgrounds and faiths.

Finally, art education can help improve children’s academic performance. Making art is a uniquely human activity and the making and appreciating art marks an important stage in human intellectual development. In addition, research shows a correlation between studying art and academic achievement. For instance, art education correlated with higher SAT scores, and some studies show that students perform 30 percent better in business when they have taken art classes.[1]

Why Is an Art Education Especially Important in the Jewish Day School Setting?

To make connections.

We marvel at modern-day communication tools; the iPhone, the Internet, Skype, wi-fi, and the digital camera have all facilitated communication and the sharing of ideas. We can be in touch with people living anywhere in the world in a matter of a few seconds. But of course we cannot call or email people who lived years ago. Art is different, as it can put us in touch with civilizations and people that lived thousands of years ago. Art is the voice of what occurred.

Jewish Day School students are especially vested in history, so they can use art to better appreciate their Jewish cultural heritage and see how their forefathers and foremothers lived, as well as get a sense of the other civilizations of the ancient world. The art tells the story. Whether it is an ancient menorah, a ceramic jar, an Assyrian animal carving, an Egyptian tomb painting, a Babylonian ziggurat, or a Greek mosaic, art puts the viewer in direct contact with the past.

To nourish the soul.

How might a student feel when at the Kotel for the first time, or when he or she learns about the horrors of the Holocaust? The history and stories of the Jewish people can certainly open profound as well as unsettling emotions and feelings. In an art class, students can express their feelings and emotions and make a statement through the visual arts.  It is a place where they can incubate their thoughts without the pressure of a test. They can get lost in thought as they make a clay bowl; as they feel the wet clay slip through their fingers, they can find themselves. But it is where they can also explore their values and create a visual image that is reflective of their beliefs and concerns. For example, they can design a poster to express the injustice of the kidnapped soldier Gilad Shalit.  Nourishing the soul of a Jewish child has to include the arts as a way of integrating the life cycles, the emotions, the battlefields of Jewish history, and the spiritual meaning of our traditions. It is especially important and is a way of staying connected to Israel as well as the outside world.

To learn respect.

The world is filled with human rights violations, prejudice, discrimination, gender inequality, anti-Semitism, ethnic hatred, and war.  Art curricula can enlighten students both about their own culture, as well as the cultures of the world around them. The advantages of a Jewish education are enormous. But there is a downside to it. Day School students often grow up in an environment that is just like theirs, and they often miss the opportunity to mingle freely with kids from other backgrounds and lifestyles. An art program is a great way to learn about other cultures. This is increasingly important because Jewish people play on the world stage, and so it is essential that they be comfortable with other cultures for business, in politics, and for pleasure. For example, doing a Chinese landscape painting and along the way understanding the origin of this style of painting can help a Jewish Day School student learn about the symbolic meaning of the style and the culture within which it developed. Instead of laughing, which kids normally do when they see something that is bizarre or strange to them, if they have knowledge of what they are looking at, they can begin to respect different cultures. In the end, they will respect themselves as well for being culturally literate. Museum visits with observations and explanations are therefore very important. Worksheets, writing and sketching in the museum are wonderful ways to get children to ask about what they see.

To develop an interest in the aesthetic dimension of life.

Somehow a sense of aesthetics sometimes gets lost in the observant Jewish family tradition. Why? Does a sukkah have to be pre-fab and made of plastic? Does everyone’s wedding invitation have to look similar? Can a menorah be made from copper plumbing parts or fire bricks?  Judaica that is creative not only brings a smile to everyone’s face, but also can make them think more about the mitzvah. Holidays and semahot become more exciting and inspire more reflection when the Judaica is unique. Why does creativity tend to get lost in the tradition? This issue is something that I never quite understood, but is certainly a valid argument for a substantial art program in the Day School setting. There are endless possibilities for new and different ideas while keeping with tradition.

To take risks.

To become a creative person, one has to take risks, come up with new ideas, and have the tenacity to follow through with the creative process. In Jewish Day Schools, taking risks, or trying something different, is often avoided. More broadly, thinking and problem solving is becoming easier to avoid in the age of computer technology. It’s just easier to Google your way from start to finish. What is getting lost, therefore, is the teaching of problem solving and imparting the confidence in students to take risks. It is an especially important skill to have the courage to create something, change it, revise it, critique it and work with it. It doesn’t happen instantly. You have to work it through. That is the nature of the creative process. And you might get a great idea that just doesn’t pan out and that is okay too! It is just as important to learn from mistakes.

A Proposed Art Curriculum in the Jewish Day School

Ideally, if Day School art educators work together, a seamless art curriculum could be developed that would run from grades K–12 and that follows state standard guidelines.

Knowledge and skills would be built on prior experience, but would be revisited allowing for mastery. This is called a spiraling approach. Kids need to be re-exposed to the information and the experience for education and confidence building to work best.  The following are proposed standards, which are based, in part, on some baseline standards set by New York State:

Standard 1: Students should participate in the arts and make works of art that explore different kinds of subject matter, topics, themes, and metaphors. Students will understand and use sensory elements, organizational design principles, and expressive images to communicate their own ideas in works of art.

Standard 2: Students should know and use a variety of visual art materials, techniques, and processes and become aware of the many options and careers in the arts.

Standard 3: Students should respond critically to works of art connecting the individual work to aspects of human thought. They will learn to reflect on, interpret, and evaluate works of art using the language of art criticism.

Standard 4: Students should develop an understanding of the personal and cultural forces that shape artistic communications and how the arts shape the diverse cultures of past and present society. They will explore art and artifacts from world cultures and discover the roles that art plays in the lives of a given time and place. They will use art to understand the social, cultural, and environmental dimensions of human society.

With these standards as a guide and with the limited amount of time for art classes, I would propose the following:

K–2^nd grade: An introduction to the different art materials and techniques, such as painting, sculpting, and printmaking. The emphasis should be on experimentation and exploration. Children should begin to feel confident with the materials. There should be a focus on Jewish themes, such as the holidays. Examples: a clay hannukiyah or a tzedaka box.

3^rd–5^th grade: An introduction to the elements of art, which are line, shape, form, color, value, texture, and space. Basic observational drawing skills and modeling skills should be introduced, as well as an introduction to the work of various artists.  Jewish themes should be used whenever possible. Examples: scenes of Israel painted in acrylic paint on canvas, three-dimensional soft sculpture.

6^th–8^th grade: Design principles should be introduced, such as balance, movement, rhythm, contrast, emphasis, pattern, unity, proportion, and variety. This is the language and grammar of art. Students in middle school should be given the opportunity to delve deeper into the art and culture of other lands as well as learn about the art of the Western world. An overview of the art movements as well as a close study of one of the artists should be explored. Examples: Chinese hand scrolls, hard-edge paintings, Picasso cubist portraits, pop-art paintings, the mosaic and South American rain sticks.

9^th–12^th grade: One unit of art is needed for a high school diploma and the choice is one of the four arts, which include dance, music, drama, or the visual arts. Students who choose fine arts should create a collection of artworks in a variety of media, based on assignments that encourage them to explore various ideas and viewpoints. Teachers should use rubrics for evaluation. College portfolios should be prepared for those students seeking admission to university art schools. Examples of projects: graphic design, lithography, computer graphics, poster design, and experimental sculpture.

Conclusion: To the Source

The center of our Jewish spirituality was the Holy Temple and from the beautiful biblical descriptions we know that there was an emphasis on aesthetics.  As it’s mentioned in the Torah, “Let them make a Holy Shrine that I may dwell amidst them” (Exodus 25:8). The descriptions in this part of the text tell us that the Israelites procured such materials as gold and silver along with fine artisanship, such as weaving, dyeing, and the setting of jewels. The Torah prescribes in detail all the fine materials to be used to build the Temple including the specific measurements and amounts. One could only imagine how beautiful it all was—a true work of art.

In the time of the Temple, Judaism’s expression of faith was fundamentally connected to the arts. And so it should be today as well. There is a concept in Judaism of “hidddur mitzvah”—beautifying the mitzvah. It is praiseworthy to not just fulfill the commandment, but to embellish the mitzvah with additional beauty, so as to express our love and respect for it. It is our responsibility as a community to continue that aesthetic journey with our children so that they may express their faith and so that they can appreciate and participate in the arts throughout their lives. After all, out of the Jewish Day School might come a great architect, industrial designer, fine artist, art teacher, graphic designer, interior designer, curator, art conservationist, art historian, commercial artist, fashion designer, frequent museum visitor, or art collector. Hopefully all of our children armed with a good art education in their Day School years will become lifelong participants in the creative process as well as the future caretakers of all of humanity’s artistic treasures. 

The purpose of this essay is twofold. First, it will highlight an example of a lenient halakhic practice in America that had gained widespread acceptance among the Orthodox Jewish community throughout the first half of 20th century, and the subsequent opposition to this practice by leading Orthodox authorities in the 1950s who successfully challenged its legality, to the point where today it is generally considered beyond the bounds of accepted halakha. Second, it will focus on a critical juncture in American Orthodox Jewish history when a noticeable shift occurred in the paradigm of halakhic authority, from initially residing primarily within the domain of the community rabbi into the hands of the country’s leading gedolei hador and rashei yeshiva. The effects of this shift have laid the groundwork for a current trend in America that increasingly favors the authority of gedolim and rashei yeshiva over the local Orthodox rabbi.

A backdrop to our analysis is an examination of the circumstances surrounding the controversy that erupted over the kashrut of the Seattle mikveh in the 1950s. This little known story, long ago forgotten by but a very few, represents a vivid moment in the history of the American Jewish experience when the forces of these two aforementioned sources of authority collided with one another. The in-depth, technical halakhic questions involved in using municipal city water to fill a mikveh are beyond the scope of this essay.
The article will provide a historical overview, as well as a general summary of the relevant halakhic issues.

Historical Background

In the late 1800s and early 1900s, a massive wave of migration brought hundreds of thousands of European Jewish immigrants and refugees to American shores. These new arrivals quickly spread out to localities throughout the continent and established Jewish communities in American and Canadian cities that hitherto had no sizeable Jewish presence. In 1877, a survey published in the Jewish Encyclopedia identified 24 American cities with Jewish populations of 1,000 or more. By 1905, that number grew to 70. In 1918, the Bureau of Jewish Statistics and Research revealed that this number had skyrocketed to include 161 cities. With the creation of these new centers of Jewish life came the need to establish cultural and religious communal service institutions, among which included the building of mikva’ot, or ritual baths . The burden of navigating the complex halakhic factors that determined the validity of these newly built mikva’ot rested upon the pioneering rabbis of these communities.

Among the issues that were often debated was the question of whether or not a mikveh could be filled with water from a municipal water system. Using tap water, if deemed permissible, would be the easiest and most cost effective method to fill a mikveh. Chief among the concerns regarding the use of city water is the requirement that mikveh water cannot be she’uvin, or contained in a vessel, and that it’s conveyance cannot be carried out via tefisat yad adam, or direct human involvement.

While the original source of a municipal water system, be it a river, natural spring or a reservoir, may not pose a problem in and of itself, it is the conveyance through the various receptacles contained in the system that creates the challenges for its use in filling a mikveh. Specifically, the various pipes, pumps, holding tanks, and meters of a water system all pose concerns that may potentially invalidate a mikveh. We should note that many of today’s widely accepted mikva’ot do contain she’uvin water that is validated either through the method of hashakah (connection), where a rain water pool is connected through a hole in a wall with an adjacent she’uvin pool, or through a process called hamshacha (allowing the she’uvin water to flow along the ground). However, these two methods are only effective provided that she’uvin water did not comprise the majority of the total water in a mikveh at the time the mikveh is initially filled. But the question addressed in these early years was whether or not municipal city water was considered she’uvin to begin with, such that the aforementioned hashaka/ hamshacha methods were rendered unnecessary.

In the late 19th century, Rabbi Yehiel Michel Epstein (1829-1908), author of Arukh Hashulhan, declared unequivocally that water supplied from a system of pipes that channel water from a river to houses throughout a city can be used for a mikveh, provided that either the tube that feeds into the mikveh is affixed to the ground, or that the final three handbredths of that tube where it pours into the cistern is made out of a material that is not succeptible to tumah, such as wood. In 1912, the first comprehensive treatment of the subject as it applied to a 20th century municipal water system was written by Rabbi Israel Hayim Daiches, of Leeds, UK. His book Mikveh Yisrael - An Halachic Discourse regarding the Fitness for Use of Ritual Baths Supplied by Modern Water-Works , contains a 31 page analysis explaining why a mikveh can be filled exclusively with water from the tap.

In America, the practice of using municipal city water to fill a mikveh evidently became very pervasive. Thus, for example, in 1957, Rabbi Isaac Esrig (Etrog) wrote that the majority of mikva’ot in the US were filled in this manner, where the rabbis who supervised the construction of such mikva’ot relied on legitimate opinions that allowed it. Indeed, early American halakhists had written about the prevalence and permissibility of this practice. Among these included some leading American rabbis of the early 20th Century: Rabbi Zvi Hirsch Grodzinski of Omaha, NE, Rabbi David Miller of Oakland, CA, and Rabbi Yehuda Yudel Rosenberg, of Montreal .

Early Seattle Mikveh

Soon after his appointment in 1905 as rabbi of Congregation Bikur Cholim, Seattle’s first orthodox synagogue, Rabbi Gedalyah Halpern oversaw the construction of the community’s mikveh and permitted the use of municipal city water to fill its cistern. In 1909, a prominent rabbi from St. Louis, R’ Zecharia Yosef Rosenfeld, took issue with the permissibility of using city water for a mikveh and sent a letter to R’ Halpern stating that, in his opinion, it was disqualified. Instead, he suggested that R’ Halpern utilize a method proposed by Rabbi David Friedman of Karlin (1828-1917) of transporting snow into the cistern and allowing it to melt into water . R’ Halpern sent back a rebuttal to R’ Rosenfeld defending his ruling and stating that, in any case, the relative lack of snow in Seattle precluded his ability to use Rabbi Friedman’s method even if he had wished to do so. Thereupon R’ Halpern asked Rabbi Hayim Jacob Widrewitz of New York for his opinion. Rabbi Widrewitz had served as rabbi in Moscow before immigrating to America in 1892, where he was unofficially deemed “Chief Rabbi of America”, and was considered among the more prominent halakhic authorities in America at that time. His expertise in the laws of mikva’ot was evident in that he oversaw the reconstruction of the mikveh in the Russian village of Lubavitch in 1883-1884. He wrote back a letter supporting R’ Halpern’s opinion, as did another eminent posek from New York, Rabbi Aaron Gordon. The entire exchange of letters was reprinted later in R’ Halpern’s Sefer Mei Gava.

Rabbi Nissan Telushkin and Sefer Taharat Hamayim

Of all available sources that discuss the matter, perhaps no other authority before or since more thoroughly analyzed the issue of utilizing city water for a mikveh, both from a halakhic and a technical perspective, than Rabbi Nissan Telushkin of East New York (1881-1970). His book on the laws of mikva’ot, Sefer Taharat Hamayim, demonstrated his proficiency of these laws, and it seems that the great Torah giants of his generation, including Rabbi Moshe Feinstein, consulted him when the kashrut of mikva’ot were called into question. His writeup on the subject first appeared as an article in the January 1937 issue of the Torah journal Hamsiloh (Hamesilah), of which he was the editor. Using the New York City water system as a basis for his analysis, he consulted with hydraulic engineers from the NYC Dept. of Water Supply to gain a good understanding of the mechanics involved in the transportation of water through the system and the potential halakhic problems they might pose in the construction of a mikveh.

In his treatment, Rabbi Telushkin first described in detail the workings of the NYC water supply system. He then identified four potential areas of concern with the use of city water:

1) The pipes: The concerns with the pipes are broken down into four subdivisions: a) the water might be conveyed through material that is succeptable to tum’ah, b) the pipes might be curved in certain locations, rendering them into a bet kibbul (receptacle), c) the valves affixed to the pipes might render the pipes into a keli (vessel) and thus succeptible to tum’ah, d) since the valves are made to be opened and closed, there might be a problem of tefisat yad adam, namely that the conveyance of the water is carried out through human intervention.

2) The pumps: Two different types of pumps exist in the NYC water system: a) centrifugal, b) suction lift. The concern with both is the human intervention involved.

3) Underground pressurized holding tanks: Rabbi Telushkin identified three such tanks in the NYC water system, that served the neighborhoods of Forest Hills, Riverdale and the Highland Park section of East New York. He conceded that mikva’ot should not be filled with water fed from such tanks and even listed the streets that marked the borders between where city water was fed from these tanks and those from water from upstate reservoirs.

4) Water meters used to measure water flow and the potential that they may be considered kelim (vessels) that are succeptable to tu’mah.

Using a vast array of halakhic sources, Rabbi Telushkin systematically explained why none of these potential concerns, with the exception of the underground tanks, pose a problem when filling a mikveh. He concluded that, in practice, a mikveh can be constructed in such a manner; but he included some caveats and recommendations for those who wished to do so.

We thus far have pointed to the writings and approbations (see accompanying endnotes to the above sources) of at least a dozen of the most highly regarded halakhic authorities in America prior to WWII, who all signed on to the permissibility of using tap water for a mikveh. In addition, we have seen evidence that indeed most mikva’ot in America were originally constructed in this manner. But all that was about to change with the arrival of a new wave of Torah scholars to America, after World War II. Among these latter immigrants, no person was more responsible for abolishing the utilization of city water to fill a mikveh than Rabbi Chanania Yomtov Lipa Deutsch.

The Helmetzer Rebbe

Rabbi C.Y.L. Deutsch, commonly known as the Helmetzer Rebbe, was affiliated with the Satmar Hassidic sect and had been serving as rabbi of Helmetz, Hungary in the years following WWII. An erudite scholar, he had a particular expertise in the laws of mikva’ot. Upon arriving in the US in 1949, he established a congregation and bet midrash in Cleveland, OH and shortly thereafter went on a veritable campaign by touring Jewish communities around the country and identifying community mikva’ot that he deemed were not in accordance with halakha.

He sought to convince those communities to make improvements that would bring their mikva’ot in line with higher standards of kashrut. By 1954, he had repaired or helped build more than 40 mikva’ot. By 1956 it was reported that he had helped repair or construct 59 mikva’ot. By the end of his life in 1990, that number grew to nearly 200 mikva’ot throughout Europe, North and South America, Australia, and South Africa.

One of the issues he railed against was the practice of using municipal city water to fill mikva’ot. Eventually he went on to write his 20 volume magnum opus called Taharat Yom Tov. In volumes 6 and 7 of this work, which he published in 1954 and 1955, respectively, he devoted many pages to argue for the disqualification of city water mikva’ot and compiled a robust list of letters from leading Torah sages who agreed with him. This list included letters from the Satmar Rebbe - R’ Yoel Teitlebaum, Rabbi Eliezer Silver, president of the Agudat Harabonim, Rabbi Eliyahu Meir Bloch, rosh yeshiva of Telshe Yeshiva in Cleveland, as well as a half dozen others.

Any mikveh that was deemed to require reconstruction, and in many cases outright replacement, undoubtedly created financial burdens on the Jewish community in which the mikveh was located, where its members would then have to find a way to raise money for these improvements. Nevertheless, in most instances, the rabbinate of the cities in which R’ Deutsch identified mikva’ot that he considered problematic embraced this challenge and were willing to make the necessary repairs to deem them worthy of his approval. The reasoning for this attitude, in my opinion, was twofold. Either the rabbinate of a particular community lacked the knowledge, wherewithal or will to openly oppose an expert in the laws of mikva’ot such as R’ Deutsch, or they sincerely believed that in any area of kashrut affecting the entire community, one must strive for the strictest position. Since these community services are designed to cater to members that include an array of levels of observance, one must strive to accommodate even the most stringent opinions. With the exception of the handful of cities with large Jewish populations, the community mikveh was the only one available (often for hundreds of miles around), and thus represented the sole option for the residents of a given town. Over the span of his career, R’ Deutsch travelled to hundreds of Jewish communities to inspect and recommend upgrades to their mikva’ot.

Rabbi Baruch Shapiro and the Seattle Mikveh

As previously mentioned, Seattle had been one of those cities where the rabbinate, headed by Rabbi Baruch Shapiro , permitted city water for their mikveh. The community mikveh at the time was located in a private house on East 18th Avenue between Alder and Spruce Streets. In early 1957, R’ Deutsch was invited by individuals in the Seattle community to inspect their mikveh. When R’ Deutsch discovered that it was filled with tap water, he promptly appealed to R’ Shapiro to fix the mikveh. However, in spite of this, R’ Shapiro refused to accede to any changes to the mikveh. For his part, R’ Deutsch produced a collection of approbations from leading halakhic authorities of the time who stated their objections to city water mikva’ot including those of the Satmar Rebbe, and Rabbi Eliezer Silver. But Rabbi Shapiro still refused.

At this point, Rabbi Deutsch turned to his colleague and friend, Rabbi Meir Amsel of Brooklyn, editor and publisher of the widely read monthly Torah journal Hama’or. Early on, Rabbi Amsel was an ardent supporter of the Helmetzer Rebbe and he frequently included some details of the Helmezer’s travels and efforts in fixing mikva’ot in the pages of his journal. Perhaps a threat to publicize the matter might persuade Rabbi Shapiro to give in. Rabbi Amsel enthusiastically obliged and placed the issue as the lead item in the June 1957 edition of Hama’or. Without revealing any names or localities, Rabbi Amsel penned an article entitled, “Regarding the Disqualification of Mikva’ot Constructed with Water Pipes (Wasserleitung)”. The article begins:

In recent times, Orthodox Jews here began to devote themselves to building ritual baths throughout the United States, and here and there they settled and established mikva’ot that were majestic and beautiful. One cannot deny that there were times when circumstances required that they could not build mikva’ot based upon accepted halakha and traditions. And so they built what they could, in many instances, according to novel leniencies of rabbis who were not experts in these matters. In particular, a great misfortune has occurred in that many congregations were lenient in building their mikva’ot using municipal water pipes…

Let us pay tribute to Rabbi Chanania Yomtov Lipa Deutsch, the Helmetzer Rebbe of Cleveland, who has devoted his time and his life to this important cause, with the support of the great Torah sages here. He is one of a kind throughout the US, and he has no peer in his holy work of fixing and building mikva’ot throughout America and Canada, even in the very remote [communities]. He has already compiled a list of almost sixty mikva’ot that were built or fixed as a result of his efforts. In particular, the aforementioned rabbi concentrated his efforts on fixing mikva’ot from water pipes, a fundamental disqualification. He has already collected responsa from our greatest sages who have unanimously offered the opinion that these types of mikva’ot are disqualified and that it is forbidden to immerse in them…

Then, in a veiled reference to Rabbi Shapiro, he writes:

To our great chagrin there still exist some rabbis who are stubborn, whose nature prevents them from admitting the clear truth of the matter. They care not about peace and truth – to fix their flawed mikva’ot, despite the fact that the great Rabbi Aaron Kotler has already proved in his letter that we published in Hama’or that the prohibition of slander does not apply in these types of efforts to rectify. And all those who quickly do so have removed from themselves the great liability of causing the public to sin…

Rabbi Amsel proceeded to republish the letters of contemporary Torah sages that originally appeared in R’ Deutsch’s Taharat Yom Tov, who all ruled against the use of municipal water for a mikveh. At the end of the article he writes:

We are confident that those who read these fiery words... of our contemporary sages, will be moved to abandon their stubbornness and work immediately toward fixing their mikva’ot according to the law...

But far from capitulating, Rabbi Shapiro remained adamant. On August 8, 1957, he sent a letter to Rabbi Amsel explaining why he was well within halakha to maintain his mikveh as-is without any modifications.

In the October 1957 edition of Hama’or, Rabbi Amsel ran an angry article under the heading, “An Open Letter Initially Intended to be Confidential – Regarding the Disqualified Mikveh in Seattle”, which was filled with heated words and sarcastic insults toward his opponent. In submitting his letter to Hama’or, Rabbi Shapiro had hoped that he would have been given the fair opportunity to have his message published in full. Instead, Rabbi Amsel published only a small excerpt, and attached a long tirade offering his own version of facts. Rabbi Amsel writes:

In recent years, many God-fearing yeshiva students have joined the community in Seattle and are sickened on account of their disqualified mikveh. So they arranged to bring out Rabbi C.Y.T.L. Deutsch, the Helmetzer Rebbe of Cleveland, about whom all the great rabbis and hassidic leaders agree is currently the foremost expert in building mikva’ot and in family purity laws. In particular, Rabbi G[ersion] Appel expressed his desire to fix the mikveh, since it is located in his synagogue, and he wished to see the mikveh brought in line with all the halakhic improvements and stringencies. However, the grand rabbi there, who is the elder sage of his group, made up his mind to not allow any improvements to the mikveh, since in his mind there is no one more scholarly and God-fearing than he, and what was done has been done, and no one has the right to question his character and decisions. Based on what we have been told, Rabbi Appel turned to the president of the Agudath Harabbanim, the famed Rabbi Eliezer Silver, and asked him whether the mikveh should be fixed. Rabbi Silver adamantly and emphatically ordered that the mikveh be fixed immediately. However, out fear of Rabbi Shapiro, nothing has been done till now.

Rabbi Amsel then published in full his reply to Rabbi Shapiro’s letter, from which we get a glimpse of the outline of the arguments Rabbi Shapiro set forth as follows:

1) There are many great authorities who allow a mikveh to be built in such a fashion, and as such the leniency has solid grounding in halakha.
2) There are other stringencies held by authorities to which few if any mikva’ot currently conform. If we were to account for all these stringencies, then one would be forced to disqualify most mikva’ot.
3) Over the years, there have been hundreds of thousands of God-fearing Jews who have used these types of mikva’ot, so to claim that they are disqualified constitutes slander against these people.
4) Likewise, many rabbis approved of these mikva’ot, and so to claim that they are disqualified constitutes slander against them.
5) Using the more lenient standards for building a mikveh will lead to a greater level of observance of family purity laws.

Rabbi Amsel’s letter, dated August 19, 1957, included a point-by-point rebuttal to Rabbi Shapiro’s letter, and the article ended by reiterating that the matter would never have entered the public arena were it not for the fact that Rabbi Shapiro had forced his hand, and that he still expressed hope that Rabbi Shapiro would change his mind.

In the following issue of Hama’or , an irate Rabbi Gersion Appel, rabbi of Bikur Cholim, the congregation under whose auspices the care and upkeep of the mikveh fell, submitted a letter, dated Dec. 3, 1957 to clear up some misinformation presented in the previous issue. First, he wanted to make clear that he was not the one who invited the Helmetzer Rebbe to inspect the Seattle mikveh. Also, the mikveh was not located in R. Appel’s synagogue, as misstated by R’ Amsel. Though he did agree that making improvements to the mikveh might be a good thing, the Seattle rabbinate had a competent leader in Rabbi Shapiro who gave his stamp of approval upon the mikveh for more than 30 years, and there was no justification to saying that it is disqualified. Moreover, many of Europe’s great rashei yeshiva passed through Seattle by way of the Far East during and after WWII, often staying over for weeks at a time, and none of them said anything against the mikveh. Rabbi Appel bemoaned the fact that R’ Amsel had decided to go public with the matter, and that any such improvements to the mikveh that are warranted should have been handled outside of the public arena. He ended by pointing out the damage that R’ Amsel had caused to the overall reputation of the Seattle Jewish community, and hoped that R’ Amsel might clarify the matter for his readership.

In response, Rabbi Amsel claimed that it was not he but Rabbi Shapiro who had first attempted to go public with the issue by forwarding his letter to other Jewish publications (all of which refused to print his letter). Furthermore, he never intended to sully the reputation of an entire community, but was rather motivated by a sincere attempt to correct what in his mind was halakhically wrong. He did not understand why Rabbi Shapiro, though well intentioned, remained so stubborn and defiant, in light of all the great authorities who came out against him and he closed by expressing hope that R’ Shapiro might yet change his mind.

The February 1958 edition of Hama’or included a letter from Rabbi Shapiro, which this time Rabbi Amsel decided to publish in full. Rabbi Shapiro reiterated some of the arguments he presented in his first letter, and provided a brief history of the mikveh situation in Seattle. He had arrived in the city after Rabbi Halpern had already built the community mikveh using city water with the blessings of Rabbis Widrewitz and Gordon. Years later, when the mikveh was in need of repair, he spent much time delving into the laws of mikva’ot together with the members of his chevre shas study group, and they all concluded unanimously that, given the specific situation in Seattle, it was permitted to use tap water. They had in fact considered building a rain water mikveh, but discovered that the rain water in Seattle when collected emitted a foul odor, and it would be objectionable to the women to immerse themselves in such water.

Rabbi Shapiro then made a point that, in my opinion, defined the basis of his general outlook toward deciding halakha, and was the central doctrine that set him apart from his opponents:

I have delved into the depths - the depths of halakha. I have weighed it with scales , and I have agreed with the words of those who permit it. Indeed, those who forbid it are shield-bearers (i.e. great debaters) and certainly God-fearing. However those who permit it are ones about whom it is said, “Great is one who benefits from his toil” (Berakhot 8a) - this is one who toils and dwells in the depths of halakha, and emerges that the thing is permitted, and partakes of it. He is “greater than one who fears Heaven” - this is one who is afraid that perhaps there is a possibility that it is prohibited, and refrains from partaking of it. “Who is a wise scholar? He who sees something that is seemingly not kosher, something that others would deem as not kosher. But because of his deep analysis, he concludes that it is kosher. This is a wise scholar.” Come and see how great is “ko’ah de’hetera” (the power of leniency). The Maharsha (Rabbi Samuel Eidels, 1555-1631) on Hulin 44b interprets the following pasuk in this manner: “Fortunate are those who fear God” - this applies to one who is presented with something of questionable kosher status, and is stringent. However, “For you shall eat the toil of your hands” - this applies (only) to one who exerts himself and emerges with the conclusion that it is permitted. This is a person who merits two worlds.

Then, after having taken offense by what he perceived to be Rabbi Amsel’s lack of respect for him and a complete unawareness of who he was, Rabbi Shapiro sheepishly provided excerpts of congratulatory letters from leading rabbis around the country who had heaped praise upon him, after he had been appointed rabbi of the Herzl Congregation in 1923. These included letters from Rabbi Elchanan Zvi Guterman, Chief Rabbi of Scranton, PA , Rabbi Yehuda Leib Levin of Detroit, MI , Rabbi Dr. Bernard Revel, and Rabbi Eliezer Silver, president of the Agudat Harabonim .

Rabbi Amsel responded by stating that he held nothing but high regard for Rabbi Shapiro, which made it all the more troubling why he remained obstinate. The bottom line was that the overwhelming weight of opinions on the matter disqualified city water for mikva’ot. He then offered a point by point refutation of the arguments presented by Rabbi Shapiro.

After the exchange, Rabbi Shapiro, exasperated and bitter over the negative publicity directed against him, finally acceded to renovating the mikveh. In a letter to the Helmetzer Rebbe signed by “The Avrechim (yeshiva students) of Seattle and environs”, dated March 18, it was announced that the Seattle rabbinate agreed to upgrade the mikveh according to the specifications laid out by him. A wealthy patron of the community had stepped up and offered to cover the requisite expense and two recent yeshiva graduates who were in the construction business accepted the task of making the necessary renovations. Then in 1963, a new rain water mikveh was built next to the Bikur Cholim synagogue and the Helmetzer made a follow-up trip to Seattle to inspect and give his stamp of approval for it. However, the community’s use of this new mikveh was short lived, since by 1970, Bikur Cholim was the last remaining Orthodox synagogue to migrate away from the Seattle’s Central District to the Seward Park neighborhood, where the current mikveh continues to serve the needs of its community.

Discussion

The Seattle mikveh controversy was a symptom of the changing times of the American rabbinate in the mid-20th century. It was around this time that dozens of Jewish communities abandoned their use of city water for their mikva’ot. However, it was in Seattle where two forces, the waning authority of the local rabbi and the emerging authority of the nation’s gedolim, came to a head.

From the inception of an organized Orthodox union in the US, it was generally accepted that the autonomous authority of the congregational rabbi would be respected. When the convention of the very first Union of Orthodox Jewish Congregations in the US was held on June 8, 1898, with Rev. Dr. H. Pereira Mendes—spiritual leader of the Spanish and Porguese Synagogue of New York City-- as president, among the principles adopted by its members was “to strengthen congregational life, but not to interfere in congregational autonomy” (emphasis added).

In the beginning of the 20th century, the model for most of the rabbis that served these early American Orthodox communities was that of a learned man in all areas of halakha, a jack of all trades who set kashrut standards, wrote gittin, was the town mohel, built mikva’ot, etc. He was more than likely European-born and European-trained. Moreover, the hierarchical structure for halakhic authority in the US was very loose or non-existent in those early years. Universally or even widely recognized final arbiters in halakha (leaders of the stature of a Rabbi Moshe Feinstein, for example) were not found on the American Orthodox scene. The rashei yeshiva and mentors of these early rabbis often resided thousands of miles away in Europe and were thus not always easily accessible to field questions of their former students. In times when they were able to do so, they were not always tuned in to the specific circumstances of the case at hand, nor of the state of affairs of the community in question, factors that might possibly affect the outcome of a decision. As a result, the final halakhic authority, whether by right or by default, rested upon the local rabbi.

Over the years, as more and more home-grown American students assumed positions in the rabbinate, these rabbis tended to compartmentalize their talents. Rabbis who were equipped to evaluate all areas of halakha became less and less common. For the more complicated halakhic matters that were beyond the scope of their expertise, they deferred their halakhic decisions to their rashei yeshivot and highly acclaimed gedolei Yisrael, who resided outside of their community. Modes of communication were improved and the length of time in which rabbinic authorities could consult with one another was vastly shortened. Thus, this new group of Torah leaders slowly began to supplant the local rabbi as the final authority in halakha. This more centralized model of authority provided an advantage as well as a disadvantage in evaluating questions posed in local communities. On the one hand the gadol might bring to the fore a higher level of erudition and analysis to the specific matter at hand. But on the other hand, only the local rabbi was privy to all the minutiae and subtle particulars of the case and was personally acquainted with the parties affected by the outcome of the decision. Therefore no one was more uniquely suited than he to decide the matter, from his vantage point.

In my opinion, this last point is one that should have played a major role in determining the validity of the Seattle mikveh. The outcome of the issue was very dependent on a detailed understanding of the specific water system in question. Were there any pumps or holding tanks that might pose a problem? Did the conveyance of water in the system involve direct human intervention? It is clear from the available literature that those authorities who came out against the Seattle mikveh (and all other such mikva’ot) in the 1950s did so, not because they paid close attention to the specifics of its municipal water system, but because they wished to unilaterally do away with the practice for all communities in all situations. Though it is now very difficult to turn back the clock and analyze the specific features of the Seattle water system as it existed in the 1950s, we do know that it was a) a gravity based system that b) was fed, at least from the watershed to the reservoirs, by a series of woodstave pipes, both factors that would mitigate some of the concerns raised about a city water system.

Furthermore, Rabbi Shapiro was a leader who by no means favored a liberal attitude toward observance of Jewish law. To the contrary, he belonged to the traditional camp of Orthodox Jewry and was a champion of strict adherence to halakha. In 1929, when his synagogue voted to remove its mechitza, he promptly resigned and formed a new congregation that was called “Machzikay Hadath” (Upholders of the Faith) with the members who remained loyal to him. Nevertheless, his guiding principle in rendering halakhic decisions was “ko’ah de’hetera” – a penchant toward leniency that was grounded upon a solid footing in traditional halakhic sources.

In the end, the opponents of city water mikva’ot have succeeded in completely doing away with a practice that, was once ubiquitous upon the American landscape.

I had the honor of spending the weekend of March 16-18, 2012 with the community of Amsterdam’s famous Portuguese Synagogue, Talmud Torah. I was invited to install their new Haham, Dayyan Pinchas Toledano. The Portuguese Synagogue in Amsterdam is the “mother” Congregation of my own Congregation Shearith Israel, the Spanish and Portuguese Synagogue of New York City, founded in 1654. Our two Congregations share over 350 years of historical association and both maintain the Western Sephardic minhag. The installation of Haham Toledano underscored the historic connection of our Congregations, as well as the long-standing personal respect and friendship which Haham Toledano and I have shared over the years.

The Portuguese Synagogue of Amsterdam, dedicated in 1675, is one of the glories of the Jewish people. It is a grand building, remarkably beautiful and impressive. It has seating for nearly 3000 people. In recent years, it has been restored to its pristine beauty.

When one enters the Portuguese Synagogue of Amsterdam, one enters Jewish history. The Sephardic community of Amsterdam was established by ex-conversos who fled the fires and persecutions of the Spanish and Portuguese Inquisitions in order to return to Judaism. When they built the Esnoga, they were making a statement: we have survived the flames of the Inquisition, we are thriving, we are committed to the future of Judaism, our grand synagogue building is a testimony to our strength and our love of Torah, we have overcome adversity and we look to the future with optimism and confidence.

The Sephardic community of Amsterdam boasted world-class Hahamim, thinkers, writers, poets. It produced notable traders and merchant princes; during the 17th century, its adventurous members travelled to the New World to establish communities in South America, the Caribbean, and in North America. Over the years, the Portuguese Synagogue of Amsterdam continued to house a vital, dynamic and creative Jewish community.

During the early1940s, the Jews of the Netherlands became victims of the Nazi onslaught. Jews were rounded up, deported to concentration camps, and murdered in large numbers. I was told that 90% of the members of the Portuguese Synagogue were murdered during the Holocaust. This proud and mighty community—born in the flames of the Inquisition—was disastrously stricken.

But a remnant survived. With pride and tenacity, the community has worked to restore its magnificent synagogue building; to revitalize its spiritual life; to revive the spirit of courage and faith that has characterized the community for the past four centuries. It has appointed an illustrious Haham, Dayyan Toledano, to provide religious guidance and inspiration. Its lay leadership is dedicated, hard-working, tenacious, and hospitable.

When I prayed in the Esnoga, I felt that I heard the voices of the ghosts of past generations—all those good, pious souls who sacrificed so much for Judaism, who worked so hard for the Jewish community and the Jewish People. It was a haunting, ineffably moving experience for me.

When I left Amsterdam to return to New York, my thoughts lingered on the glories and tragedies of the Portuguese Synagogue. I felt a surge of spiritual uplift from the beautiful Shabbat I had spent in the Esnoga, and the magnificent ceremony of installation of Haham Toledano on Sunday, attended by four hundred of the city’s Jewish community. I felt hope and optimism that the community will gain strength and spiritual vitality in the months and years ahead, and restore glory to Kahal Kadosh Talmud Torah.

Od Avinu Hai. Am Yisrael Hai.

I.

The topic of kol ishah, the halakhic prohibition on men from listening to a woman's singing voice, is obviously a matter of concern for religiously observant Jews. Yet, there are various interpretations as to what exactly constitutes the prohibition. The present essay aims to clarify the prohibition, demonstrating that it is far less restrictive than is commonly believed.

Rabbi Eliezer Waldenberg ruled that it is permissible for a man to hear a recording of a female singer when the singer is not visible to the listener. Rabbi Yosef Eliyahu Henkin held similarly. Rabbis J. David Bleich and Haim David Halevi indicated that the use of electronics for the audio alone does not mitigate the prohibition; the listener must not be able to see the singer at all. Rabbi Ovadia Yosef and Rabbi Haim David Halevi both ruled that electronic recordings mitigate the prohibition only if the listener has never once glimpsed the woman singer, and Rabbi Yosef applied this even after the woman singer is deceased. Going still further, Rabbi Yaakov Breish, Rabbi Shmuel Wosner, and Rabbi Binyamin Silber all ruled that even audio-only electronic recordings of women may not be listened to, with no mitigations or leniencies whatsoever. According to them, listening to a woman sing is simply prohibited. Rabbi Menashe Klein disagreed with Rabbis Breish, Wosner, and Silber, and argued that electronic records are not the woman's "real" voice, and that listening to recordings ought to be permitted. Even he, however, stated that it is "distasteful" to rely in practice on the leniency."[1]

All these recent authorities took it for granted that listening to women sing is categorically forbidden for men, and that only select and specific factors may mitigate this otherwise absolute prohibition. It is understandable, then, that so many Orthodox laymen assume that men listening to women sing is categorically forbidden. It is taken as almost axiomatic that kol ishah is strictly and absolutely forbidden; few if any compromises are brooked, and leniencies are offered reluctantly if at all.

II.

However, the preceding understanding is in need of careful anaylsis. On three separate occasions in the Talmud (Berakhot 24a, Kidushin 70a, and Sota 48a), statements are made about the sexual (`erva -or peritzuta) nature of a woman's voice. The one which will concern us is the primary one, in Berakhot 24a, where we read,

"Shemuel said: The voice of a woman is nakedness ( kol b'isha `erva) as it says (Song of Songs 2:14) 'for your voice is sweet and your countenance comely.'"

This passage occurs during a discussion of reciting Shema in the presence of `erva. One might interpret Shemuel as continuing that discussion, or as beginning a new one about just what is `erva irrespective of Shema. As is apparent from the discussion, a woman's exposed handbreadth (tefah) is forbidden to be seen during Shema, while her little finger (etzba ketana) is forbidden to be gazed upon with sexual intent at all times. Thus, kol ishah must be like either of these two paradigms. There is a range of authorities on either side of this dispute, but the Rambam and Tur-Shulhan Arukh rule that kol ishah is a general prohibition, not linked to Shema. This is thus the practical halakha to be taken for granted in this essay. It is an undeniably clear principle that gazing upon a woman's little finger is prohibited only where there is sexual pleasure, as is shown in Avodah Zara 20a-b. If kol ishah is like a little finger, then the implications are obvious. (Also note that Shemuel says only kol, "voice", with no mention of singing per se.)

It was my friend Dowid Mosha who first pointed out to me that kol ishah's being a general prohibition is actually potentially a leniency, not a stricture. He quoted the Rambam, Hilkhot Issurei Biah 21:2, which says [2],  "And he who looks at even the little finger of a woman to take pleasure in it is like one who looks at her private parts, and even to hear a voice of an erva or to see her hair is forbidden."

As Dowid then explained, "it is apparent that the focus is on the intent and the result. If an individual wishes to be aroused, is likely to be aroused, or is aroused inadvertently, then he or she must take the necessary measures to protect themselves." Rambam equates looking at a woman's etzba ketana, her little finger, with hearing the voice of a woman. And there is no prohibition of gazing at a woman's finger per se; the prohibition is only when one so gazes specifically for the sake of sexual pleasure.

Furthermore, Rambam speaks of scrutinizing (mistakel) her little finger (etzba ketana) with intent to take pleasure in it (v'nitkaven leihanot). He uses the word mistakel, which carries the implication of intense scrutiny, as opposed to the word ro'eh, which would imply simple ordinary sight. According to Rambam, the prohibition surrounding etzba ketana is that a man is forbidden to intensely scrutinize (mistakel) a woman's little finger with the express intention of deriving sexual pleasure thereby (v'nitkaven leihanot). Since Rambam links this discussion of etzba ketana with kol ishah, it seems apparent, as Dowid expressed, that kol ishah is likewise prohibited only when there is sexual pleasure involved.

Similarly, the Tur (Even ha-`Ezer 21), writing about different tzeniut-related prohibitions, relates them all to shema yavo l'harher bah, "lest he come to reflect (or muse) [sexually] on her". Regarding etzba ketana and kol ishah specifically, the Tur quotes the Rambam nearly word-for-word, as does the Shulhan Arukh (Even ha-`Ezer 21:1). It is clear that the Rambam and the Tur-Shulhan Arukh held that kol ishah is like etzba ketana, meaning that to listen to a woman's voice is prohibited in the same way that it is forbidden to scrutinize (mistakel - not to merely see, ro'eh) upon her finger in order to take sexual pleasure (v'nitkaven leihanot). And thus, Rabbi David Bigman rules:

"From the equation of the prohibitions regarding voice and hair to the general prohibition of looking [i.e. mistakel at an etzba ketana], we can infer that their presence does not necessarily imply sexual stimulation - rather, what is problematic is the inappropriate interaction with them by the looker or the listener. ... There is no prohibition whatsoever of innocent singing; rather, only singing intended for sexual stimulation, or flirtatious singing, is forbidden. ... The prohibition applies only to listening in a manner similar to looking at a woman for sexual pleasure."

Rabbi Avraham Shammah lists several grounds for leniency in kol ishah, indicating that "the essential one, in my opinion, is that the prohibition is specifically for one who intends to enjoy a forbidden pleasure."

Rabbi Yehiel Yaakov Weinberg (Seridei Esh 2:8) defended the German-Jewish custom of mixed-sex zemirot, as well mixed sex Jewish youth groups (similar to Benei Akiva and NCSY).[3] He interpreted the Rambam that the prohibited form of "gazing" and listening is only that which entails sexual pleasure. Rabbi Weinberg also relied on the Sedei Hemed (section Kuf, kelal 42), who ruled that a man's listening to a woman sing funeral dirges does not violate kol ishah, as no sexual pleasure is entailed in such songs. The Sedei Hemed was relying on the Divrei Heifetz (113b), who "stated that as long as a woman is not singing sensual love songs, and as long as a man does not intend to derive pleasure from her voice, there is no prohibition, such as if she is singing praises to God for a miracle, or is singing a lullaby to a baby, or is wailing at a funeral." [4] Rabbi Weinberg also cited the Sefer ha-Eshkol (Hilkhot Tefillah sec. 4 or 7), that listening to a woman sing is prohibited only where there is sexual pleasure. Rabbi Weinberg reasoned that if the Sedei Hemed could permit funeral dirges due to their lacking sexual pleasure, then he could permit Shabbat zemirot on the same grounds. It is obvious that we today can likewise permit by the same logic any song which does not lead to sexual thoughts. Thus, this interpretation that kol ishah is like etzba ketana, i.e. permitted where sexual pleasure is absent, is not only apparent from the simple meaning of Rambam's words, but is also endorsed by Rabbi Yehiel Weinberg.

Rabbi Weinberg also relied on the opinion of the Ritva and Rema, "that all is for the sake of heaven" (to be discussed later in this essay). In general, if one knows that he himself is capable of a certain act without incurring sexual thoughts, then this act becomes permitted for him.

III.

Some may react to this interpretation as brilliant casuistry, but nevertheless reject it as being against traditional Jewish practice and belief. It behooves us, then, to see whether this lenient understanding of kol ishah could stand up to non-textual (mimetic) traditional Jewish behavior and practice.

In Rabbi Dr. Marc D. Angel's Foundations of Sephardic Spirituality: The Inner Life of Jews of the Ottoman Empire, we find an amazing piece of testimony. There, on page 125, discussing the singing of Ladino (Judeo-Spanish) romances (ballads), with their often emotional if not downright sensual lyrics, Rabbi Angel says, inter alia:

"Although there were religious pietists who objected to singing love songs, the romances were very popular throughout all strata of Sephardic society. Men and women often sang these songs together. It was not unusual for women to sing solo parts in the presence of men. [Emphasis added.] People participated in the singing and enjoyed the songs in a natural, easygoing way."

Rabbi Angel offers personal testimony in note 6:
"I [Rabbi Angel] was raised in the Sephardic community of Seattle, Washington, and well remember our many family gatherings where romances were sung. Jews of great piety sang right along with those of lesser piety. I do not remember anyone ever objecting to the singing of love songs by men and women. In the early 1980s, Haham Dr. Solomon Gaon, himself a Judeo-Spanish-speaking rabbi, taught classes in Sephardic folklore at my Congregation Shearith Israel in New York City. I well remember him singing love songs, enthusiastically and nostalgically. Both of us participated in a program of Sephardic culture sponsored by the Hebrew College of Boston. A female soloist sang a selection of romances, after which Haham Gaon not only applauded loudly but rose to speak in praise of the singer for her beautiful rendition of the songs. Haham Gaon, who served as chief rabbi of the Spanish and Portuguese Congregations of England and as head of the Sephardic Studies Program of Yeshiva University in New York, was a very prominent Orthodox Sephardic rabbi and a man of impeccable piety."

Rabbi Shammah similarly testifies:
"I did not grow up hareidi, and I was not educated according to hareidi principles. From my childhood [under his parents, traditional immigrants from Syria to Israel] until my adulthood I do not remember closing my ears, nor was I instructed to do so, and I heard the best music, both from the Orient and the West, even when performed by female singers, and even at live performances. Apparently, the principle is based on the fact that there is no intent here for some forbidden pleasure. [People] have testified to me that there were Torah-observant Jews at the performances of the famous Egyptian singer, Umm Kulthum [considered by some to be Egypt's most famous and distinguished twentieth-century singer], and even more than that, they listened to her songs and learned them well, even though some of the songs had inappropriate words. Prayer leaders (among them scholars) used her tunes [in the prayer services], until this day, with the approval of halakhic authorities, who knew quite well the source [of these tunes]."

There is also firm evidence that Cochini Jewry (the Jews of Kerala, the southwest coast of India), known to be dedicated to Torah and traditional religious observance,[5] allowed women to sing in the presence of men (Wikipedia, "Cochin Jews"). According to K. Pradeep:
"Here, unlike other Orthodox communities, the Jews did not follow the Talmudic injunction against women singing in public. For centuries, the Cochin Jewish women have been singing Jewish songs in Malayalam. There was a rich tradition of women's liturgical music sung on public occasions - weddings, circumcisions and holidays. ... The social life of the Jewish community in Kerala had centered on rituals in the synagogue and festive meals at home. The women sang during these celebrations."

Similarly, according to Martine Chemana, in her article "Women Sing, Men Listen", notes:
"... On the religious level, even though their participation in rituals remained marginal, in the space reserved for them they held a complementary role in the singing of liturgical texts. ... Originally, the opportunities for performances were, as said earlier, during family celebrations associated with ceremonies which preceded and marked weddings, which in the past lasted as long as 2 weeks; name-giving for newborns (akin to Hindu custom); berit-milah; bar mitzvah; before or after religious holidays and festivals such as Passover, Purim, Hanukkah, Succoth, Simhat-Tora; related to the construction or inauguration of synagogues.... The Malayalam songs are thus only performed by women, but the men who listen to them also know the songs, as was evidenced during the memorization process. The men who were present remembered the words or the tunes when the women had forgotten them. The Cochini women also take part in liturgical singing in Hebrew in the synagogue - as I was able to hear in the Cochin synagogue during Yom Kippur in September 2001... In Cochin, apart from folk songs, some women also take part in the chanting of liturgy. Women from Yemen also sing during wedding ceremonies."

Barbara C. Johnson's description in "Cochin: Jewish Women's Music" is very much the same:
"Though Malayalam Jewish songs have always belonged to the women, men in their community often heard them performed in Kerala ... At times they sang for all-female events, such as a women's party for the bride, but generally they performed in mixed gatherings, where the men of the community listened respectfully. ... In Kerala, Jewish women sang in Hebrew together with men, joining in full voice to sing piyyutim in the synagogue, at the Shabbat family table and at community-wide gatherings to celebrate holidays and life cycle events. In contrast to many other traditional Jewish communities, it was not their custom to prohibit men from hearing women's voices raised in song."

We have already discussed the German Neo-Orthodox practice of women singing zemirot in the presence of men. However, our previous discussion was around the technical halakhic justification; let us now examine the general sociological and historical details. According to Professor Mordechai Breuer's Modernity Within Tradition (p. 6):

"Rabbi Yehiel Jacob Weinberg (1885-1966) tells the following story on that subject [in Shu"t Seridei Eish]: arriving in Berlin from Lithuania in 1914, he noticed that, in Orthodox families, men and women sang the table hymns [zemirot] together at Sabbath meals, even though, according to religious regulations, men were forbidden to listen to the singing of women. When he expressed his astonishment about that, it was explained to him that leading Orthodox rabbis had sanctioned such conduct on the basis of halakhic considerations. In some families, domestic singing was even led by the women, a practice that, at times, embarrassed a guest who was unaccustomed to it. Such a lack of restraint was permitted - mainly in the family circle - but was often censured when efforts were made to apply it to society at large."

But the footnote to that final sentence reads (ibid., p. 411):
"However, see Jeschurun (1885), 18:11, for a report of a public function at the Orthodox school in Frankfurt am Main [Rabbi Hirsch's community] at which a teenager from the girls' Lyzeum [the girls' section of the Orthodox day school founded by Rabbi Hirsch] sang in the presence of a crowded audience."

Further, in Modernity Within Tradition, we read (p. 150):
"Attendance at the theater, the opera, the concert hall, and even the cabaret was no longer a rarity among Orthodox families after the end of the century. In 1882 the Jüdische Presse already carried a rather long, well-disposed review about Saint-Saëns's opera Samson and Delilah. ... The Israelit praised an observant female opera singer as well as a strictly observant male concert vocalist. Social evenings in Orthodox organizations of various kinds featured stage performances or music. In 1906 the board of the Jewish youth group Livyath Hen [Wreath of Grace] in Mainz sent out invitations to a talk by Rabbi Dr. J. Bondi that was followed by evening entertainment consisting of music, a comedy (played by a lady and three men), a vocal quartet, and singing by five ladies and four men."

Even though neither Rabbi Hirsch nor any other rabbis attended the opera (contrary to the regnant "common knowledge") [6], it appears that plenty of German Neo-Orthodox Jews did. It appears quite safe to say that to one degree or another, German Neo-Orthodoxy sanctioned men listening to women singers.
According to our evidence, then, it was considered natural and acceptable by traditional Jews that men hear women sing, in the Judeo-Spanish lands (Turkey, the Balkans, Greece, etc.), in Egypt, Syria, Germany, and Cochin (India). Thus, aside from textual authority in the traditional halakhic literature, we find that we also have the support of traditional Jewish practice for our lenient interpretation. This may not be the interpretation of the majority of historical Jewish communities and traditions; what is clear, however, is that both a significant textual basis for leniency exists in the primary halakhic sources, and that a number of significant and important Jewish communities relied on this leniency in practice.

IV.

Until now, we have explained the matter from one perspective, by showing that according to the Rambam (whom the Shulhan Arukh accepts as the primary law) kol ishah is prohibited like etzba ketana, i.e. only where there is sexual pleasure involved. But we may investigate the matter from another direction, and come to the same conclusion.

Rabbi David Bigman quotes the Maharshal (Yam Shel Shelomo, Kidushin 4:25 no. 4) as saying:
"... And we do not hold according to Rabbi Eliyahu Mizrahi, who forbids talking to women, even to ask her where her husband is, ... and the ruling that one does not use a woman at all, adult or child, we shall write, God willing, ... that nowadays we rely on the opinion opposed to Shemuel, who said that ‘everything done for Heaven's sake is permitted.'"

This statement by the Maharshal has a storied history, and deserves greater elaboration than is possible here. [7] Briefly put, in the Gemara, there are several stories of rabbis who seem to have committed various infractions of the laws of tzeniut, explaining to others that for individuals of their level of piety, the women were like geese or wooden beams, i.e. not sexually enticing, and that "all is for the sake of heaven" (ha-kol le-shem shamayim). Sefer ha-Hinukh (188) says that no one today may apply these rationalizations for himself, but by contrast, the Tosafist Rabbi Yitzhak of Corbeil in Sefer Mitzvot Katan (30) and Ritva (end of Kidushin) hold that if any individual knows himself to be capable of looking at women without impure thoughts, then he is permitted to so do. In the Ritva's words:
"... and so is the law that everything is according to what a person knows about himself, if it is appropriate for him to maintain a distance [from women] because of his sexual urges, he should do so, ... while if he knows that his sexual urges submit to him and are under his control ... he is permitted to look and to speak with a woman who is forbidden to him and to ask the well-being of another man's wife ..."
Rabbi Hai Gaon expressed similar logic, as Rabbi Henkin shows ("Hirhur and Community Norms"). Most importantly, the Maharshal, relying on the Ritva, says in his Yam Shel Shlomo (Kidushin, 4:25 no. 4), that
"Everything depends on what a person sees, and [if he] controls his impulses and can overcome them he is permitted to speak to and look at an erva and inquire about her welfare. The whole world relies on this [emphasis added] in using the services of, and speaking to, and looking at, women."

What is particularly noteworthy about this Maharshal is that whereas Rav Hai Gaon and the Semak and Ritva spoke of individuals who know themselves, the Maharshal speaks of "the whole world", i.e. an entire community or society being collectively inured to women. The Maharshal is following Tosafot in Kidushin 82a:
"On ‘all is for the sake of heaven' [i.e. the justification these rabbis in the Gemara offered for their apparently immodest acts] we rely nowadays [in] that we make use of the services of women."

Tosafot speaks of "we"; like Maharshal, Tosafot is going beyond the individuals spoken of by the Semak and Ritva, and instead speaking about an entire society. Additionally, the Ramah (Even ha-Ezer 21:5) follows Tosafot [8], and the Levush (the Maharshal's student) and Arukh ha-Shulhan both rely on this "whole world" extension made by the Maharshal and Tosafot. [9] The upshot is that apparently immodest acts are permitted if the individual knows himself (Rav Hai Gaon, Ritva and Semaq) or his society (Maharshal, Tosafot) to be on the level that he will not have impure thoughts. This provides us a basis to permit kol ishah, along with any other particular acts which were once considered sexually immodest, but which we today know we are inured to. Whether listening to women sing, or shaking their hands, or anything else, the permission is hereby granted as long as we know that we are truly able to engage in these acts without impure thoughts.

We still need to explain why the Maharshal did not apply kol ishah to a woman's speaking voice. The phrase kol ishah literally indicates a woman's voice, and not her singing voice per se. As we see from the Maharshal, other rabbis (Rabbi Eliyahu Mizrahi) indeed held that speaking to women in general was prohibited, and the Rambam [10] and Sefer ha-Hasidim (sec. 313) held similarly. [11] Why, then, does the Maharshal interpret kol ishah as being limited to singing? And why did other authorities also limit kol ishah to song?

The significance of this point should not understated. Countless Orthodox authorities take it for granted that kol ishah is limited to singing. But many early authorities did in fact include speech in the prohibited category of kol ishah. Rabbi Saul Berman makes a similar complaint, arguing that the Aharonim forgot what the real reasoning behind kol ishah was, and turned it into a blanket prohibition. Because of this, the Aharonim took one position of some Rishonim for granted, viz. that kol ishah is limited to singing. Why?

One could offer a historical-sociological-psychological argument that Maharshal was limited and influenced by his own practical experience, and this argument has indeed been put forth before. The Rashba (Hidushei ha-Rashba, Berakhot 24) says [12], regarding the handbreadth of a woman being `erva during the recitation of the Shema, that,
"the Raavad of blessed memory explained that it is possible that this refers to a normally covered part of her body ... but her face and hands and feet and the non-singing voice of her speech, and her hair that comes out of her braid that is not covered, one need not worry about these as he is used to them and not disturbed."

In other words, a "handbreadth" (which according to the Talmud is prohibited only during Shema, whereas an etzba ketana is prohibited at all times) means not that just any handbreadth-sized area of the woman's body is erva, but that only an area that is normally concealed is erva.[13]  According to the Ra'avad, then, "the non-singing voice of her speech" is not erva because it is not normally "concealed", because it is ordinarily "exposed", so to speak. Since her speaking voice is ordinarily heard, her speaking voice is like her face or her hands, and only her singing voice is seldom heard, making normally concealed and thus erva. The Ra'ayvah (Berakhot 76) [14] voices what could be said to exemplify a general Ashkenazi approach:
"All the things mentioned above as sexually stimulating are only to be treated as such when they are not customarily exposed, but [for example, with regard to] an unmarried woman whose hair is customarily exposed [15], we need have no concern, for there is no arousal, as with regard to her voice, for one who is accustomed to hearing it.

Based on this, Maharshal dismissed the possibility that kol ishah prohibited mere speech; such speech is customarily uncovered, as it were, and only song is customarily concealed.

But all this provides a basis for leniency as well: if, in the times of the Ra'avad and Maharshal, a woman's singing voice was seldom heard and was thus like the concealed parts of her body, perhaps today, her singing voice is not seldom heard, making it no longer "concealed". Perhaps today, her singing voice, being commonly heard (at least on the radio), is just like her speaking voice, i.e. like an ordinarily-exposed part of her body, like the face or hands, and subject to fewer (if any) prohibitions.

And in fact, Rabbi Joshua Falk (Perisha on the Tur, Even ha-`Ezer 21:2) stated precisely the Maharshal-ian habituation thesis with regard to kol ishah![16]  Rabbi Falk introduces the concept of regilut, "regularity", as relevant to kol ishah. Apparently, any voice to which one is accustomed is no longer prohibited by kol ishah. According to the Ramah (Shulhan Arukh, Orah Haim, 75:3), "a voice to which one is accustomed is not considered erva." [17] Also, the Ramah (ibid. Even ha-`Ezer 21:5) held that "all is for the sake of heaven." [18]

Let us consider another halakha relating to male/female relationships, to see how halakhot "change" based on changed circumstances. Rabbi Shammah notes that according to Mishnah Kidushin 4:13, a male bachelor may not teach children, and women may not teach children at all. The Gemara explains (82a), that these prohibitions stem from fears of sexual impropriety i.e. that the teacher (either an unmarried man, or any woman, married or not) will become engaged in forbidden relations with the childrens' parents. Rambam (Hilkhot Issurei Biah 22:13 and Hilkhot Talmud Torah 2:4) and the Shulhan Arukh (Yoreh Deah 245:20-21 and Even ha-Ezer 22:20) both rule in this way. Rabbi Shammah exclaims that no one even attempts to keep these laws anymore! Furthermore, the Shulhan Arukh issues a stern warning (Even ha-Ezer 21:1) to "keep very far from women", and it prohibits a man to walk behind a woman in the marketplace. Rabbi Shammah points out that those who strictly forbid kol ishah are never as strict regarding mixing in the marketplace. Even the Hareidim go to shopping centers and markets frequented by men and women!

Since we see that religious authorities no longer uphold the prohibition for male bachelors and women to be schoolteachers, or for men walking behind women in the marketplace, then why cannot we apply the same leniency to kol ishah? Rabbi Shammah caustically remarks on the hypocrisy of those who are lenient in some areas but stringent in others. According to Rabbi Shammah:
"... It seems to me, and this should be said as a generalization, that what is being considered is not really a matter of [women's] modesty. Rather, halakha is being used as a religious marker. That is to say, in a situation where it is quite impossible to be stringent, such as distancing oneself from women very, very much, people aren't careful. But it is very easy to be stringent in forbidding hearing a woman's voice, while - in the best case - the added value of an internal sense of religiosity is great. In a less positive light, it is a minute effort for a huge return of being able to externally demonstrate one's religiosity. This phenomenon, that generally is quite widespread, is worthy of penetrating criticism, and the words of the prophets are brimming with such [criticism]."

Rabbi Shammah cites the Ritva and Maharshal which we discussed earlier, viz. regarding how being inured and habituated to women and resistance to having sexual thoughts permits certain otherwise immodest activities. Rabbi Shammah continues, and notes that Rabbi Ovadia Yosef, following the Levush (who in turn followed the Maharshal), also permits many examples of what was once a violation of tzeniut but which is nowadays customary and ordinary. Rabbi Shammah notes that Rabbi Yosef rejected applying this logic to kol ishah. But, as Rabbi Shammah continues, we have nevertheless learned the relevant basic principles, and we may apply them to kol ishah, even if Rabbi Yosef himself did not.

V.

Until now, we have been discussing what we have been calling a "leniency," i.e. the permission for men to listen to women sing based on the fact that kol ishah is prohibited only where sexual pleasure is entailed. However, we must emphasize that this leniency is not absolute; kol ishah is in fact prohibited where sexual pleasure is present. Rabbi Shammah says:
"... the wise person... should know that no two situations are exactly alike and therefore should use good judgment with integrity and honesty, because the essence of these laws is not to observe them literally and formally, but rather their purpose is to improve society."
This is not an absolute heter; but a conditional heter, based on what one knows he or she is capable of.

Similarly, according to Rabbi Bigman:...
"It is permitted to be lenient with regard to listening to the voice of a woman singing when there is a clear sense that the listening is innocent and the singing is innocent. Such an assessment is dependent on five conditions: 1. Context and appropriate atmosphere, 2.The lyrics of the song, 3. The musical style, 4. Dress, 5. Body language. ... do not make concessions of the refined foundations of Torah culture, and do not cooperate with the vulgar, commercialized aspects of the culture surrounding us."

VI.

Since kol ishah is forbidden only if it causes immoral sexual pleasure, shouldn't women be forbidden to hear kol ish if mens' singing gives them improper pleasure? Rabbi Bigman states: [19]
"In an approach that is not accepted as halakha, the Sefer Hahasidim (614) held that there is a parallel prohibition on women to listen to the voices of men. Even though this is not practiced halakha, it is ideal to pay attention to the five conditions I have outlined even in the case of a man singing in the presence of women."

According to Rabbi Bigman, anything sexually immodest is forbidden, regardless of which sex is singing and which is listening. Similarly, in a personal communication I had with Rabbi Marc Angel, it was axiomatic to Rabbi Angel that "by logical extension, male singers who intend to be erotically stimulating to females should also be prohibited from singing in the presence of women." If the halakha speaks only of men listening to women singing, it is likely that this is only because that was the most common situation of sexual immodesty.

When one becomes sympathetic to the feelings of women [20], something else will become apparent. As Rabbi Angel said to me in the course of his advising me on this present essay, "If males are stimulated by hearing women singing zemiroth or anything else, then this is the male's problem, and the male should leave the premises. The burden of responsibility devolves on the listener, not the singer. ... It's the responsibility of listeners to know what they can or can't handle; the burden of responsibility is not on the singers." Similarly, Rabbi Shammah said, "Even more, this formulation does not attempt to 'defend the purity of men' at the cost of hiding the women and covering them."

VII.

According to Rabbi Cherney:
"In our own generation, R. Ovadia Yosef has expressed the opinion that ‘you should not let your heart seize the argument that nowadays, since we are accustomed to the voices of women, we need not be concerned that [the voice arouses lewd thoughts], for we may not say these things out of our own understanding if it is not mentioned by the authorities.' (Responsa Yabia Omer vol. 1 sec. 6.) ... In conclusion, we should view this prohibition of the sages as well as others of its genre as protection against a breakdown of sanctity, a measure incumbent upon us as sincerely observant Jews."

According to Rabbi Howard Jachter:
"Both Rav Ovadia Yosef (ibid. [ Yabia Omer 1:6]) and Rav Yehuda Henkin (Teshuvot Bnei Banim 3:127) reject the claim that this prohibition [of kol ishah] does not apply today since men nowadays are accustomed to hear a woman's voice. These authorities explain that since the Gemara and Shulhan Arukh codify this prohibition, we do not enjoy the right to abolish it. The Gemara and its commentaries do not even hint at a possibility that this prohibition might not apply if men become habituated to hearing a woman's voice. Thus, all recognized Posekim agree that the prohibition of kol ishah applies today."

But we have shown that one may disagree with this conclusion. Rabbi Bigman states:
"There is no prohibition whatsoever of innocent singing; rather, only singing intended for sexual stimulation, or flirtatious singing, is forbidden. Although this distinction is not explicit in the early rabbinic sources, it closely fits the character of the prohibition as described in different contexts in the Talmud and the Rishonim, and it is supported by the language of the Rambam, the Tur, and the Shulhan Arukh."
Although Rabbis Ovadia Yosef and Yehuda Herzl Henkin are correct that the prohibition of kol ishah is binding according to the literature, yet leniencies are implicit in sources such as Rambam and the Tur-Shulhan Arukh. In fact, these leniencies were already drawn upon by rabbinic authorities, whether to permit speaking to a woman (Maharshal, classifying only singing as kol ishah) or to permit funeral dirges and mixed-sex zemirot (Rabbi Yehiel Weinberg, Sedei Hemed, Divrei Heifetz). The problem is exactly that which Rabbi Saul Berman expressed: [21]

"For the Aharonim... kol b'ishah ervah is a declaration that a woman's singing voice, under all circumstances, is to be considered a form of nudity. In light of this proposition, it is understandable that the Aharonim virtually totally discard the limiting principle of accustomedness which the Rishonim used so extensively. [Rabbi Berman cites aforementioned Ra'avyah, Rashba/Ra'avad, Ritvah, Maharshal, and Ramah.] ...The importance of this position [of Rabbi Weinberg] lies in the fact that it constitutes a major departure from the treatment of a woman's singing voice as a form of [absolute inherent] nudity. It reinstates the tradition of the Rishonim, that the ban on a woman's voice is functionally motivated and is related to the likelihood of its resulting in illicit sexual activity."

Works Cited:

Angel, Marc. Foundations of Sephardic Spirituality: The Inner Life of Jews of the Ottoman Empire. Jewish Lights Publishing, 2006.

Berman, Saul. “Kol `Isha”, in Rabbi Joseph H. Lookstein Memorial Volume, ed. Leo Landman. New York: Ktav Publishing, Inc., 1980. <http://www.edah.org/docs/Kol%20Isha.pdf&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDDJ8ptI&gt;.)
But see also the criticism on Rabbi Berman's article:
1) Henkin, Yehuda Herzl. “Kol Isha Reviewed,” in in Equality Lost, Jerusalem: Urim Publications, 1999/5759. <http://www.lookstein.org/articles/kol_isha.pdf&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDDXtQ2x&gt;.)
2) Student, Gil. “Kol Isha,” Hirhurim (blog). 5 May 2004. <http://hirhurim.blogspot.com/2004/05/kol-ishah.html&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDDkmeSX&gt;.)
3) Student, Gil. “Kol Isha III,” Hirhurim (blog)., 6 May 2004. <http://hirhurim.blogspot.com/2004/05/kol-ishah-iii.html&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDDn7X32&gt;.)

Bigman, David.
1) Cyberdov: Life in Riverdale, NY (Blog), 9 August 2008. (Hebrew original.) <http://www.dovweinstock.com/blog/kol-beisha-erva-hebrew&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDECU7zp&gt;.)
2) “A New Analysis of 'Kol B'Isha Erva'.” trans. Yedidya Schwartz. (English translation.)
2a) The Institute for Jewish Ideas and Ideals, 4 February 2009; <http://www.jewishideas.org/rabbi-david-bigman/new-analysis-kol-bisha-erva&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDEQ7KeW&gt;.)
2b) Torah in Motion, 8 April 2008; <http://www.torahinmotion.org/virtproglib/e-tim/download/Bigman_Kol%20BIsha%20_translation-FINAL.doc&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDEZOJgS&gt;.)
2c) Cyberdov: Life in Riverdale, NY (Blog), 4 August 2008. <http://www.dovweinstock.com/blog/kol-beisha-erva-english&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDENpfDi&gt;.)
(The Torah in Motion and Cyberdov editions have fuller footnotes than the Jewish Ideas edition.)

Breuer, Mordechai. Modernity Within Tradition: The Social History of Orthodox Jewry in Imperial Germany, trans. Elizabeth Petuchowski from Jüdische Orthodoxie im Deutschen Reich. Oxford, New York: Columbia University Press, 1992.

Broyde, Michael. “Hair Covering and Jewish Law: Biblical and Objective (Dat Moshe) or Rabbinic and Subjective (Dat Yehudit)?” Tradition 42:3, 2009. <http://traditiononline.org/news/_pdfs/0095-0180.pdf&gt; Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDEqZZzK&gt;.)

Chemana, Martine. “Women sing, men listen: Malayalam folksongs of the Cochini, the Jewish Community of Kerala, in India and in Israel,” trans. from “Les femmes chantent, les hommes écoutent. Chants en malayalam (pattu-kal) des Kochini, communautés juives du Kerala, en Inde et en Israël,” in Bulletin du Centre de recherche français de Jérusalem, November 2002. English: <http://bcrfj.revues.org/index942.html&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDEyqa90&gt;.) French: <http://bcrfj.revues.org/index752.html&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDFSw8NF&gt;.)

Cherney, Ben. “Kol Isha.” JHCS 10, pp. 57–75. <http://www.jofa.org/pdf/Batch%201/0099.pdf&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDFMA910&gt;.)

“Cochin Jews.” Wikipedia, The Free Encyclopedia, page version ID 340155258, last revised 26 January 2010 16:37 UTC. <http://en.wikipedia.org/w/index.php?title=Cochin_Jews&oldid=340376341&gt;

Henkin, Yehuda-Herzl. “Hirhur and Community Norms,” in Equality Lost, Jerusalem: Urim Publications, 1999/5759. <http://bermanshul.org/frimer/SpireBW200_1S021.pdf&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDFozhSx&gt;.)

Henkin, Yehuda-Herzl. “Contemporary Tseni’ut”, Tradition 37:3, 2003.

Jachter, Howard. “The Parameters of Kol Isha.” Rabbi Jachter's Halacha Files (and other Halachic compositions): A Student Publication of the Isaac and Mara Benmergui Torah Academy of Bergen County. <http://www.koltorah.org/ravj/The%20Parameters%20of%20Kol%20Isha.htm&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDFwVBR4&gt;.)

Johnson, Barbara C. “Cochin: Jewish Women's Music.” Jewish Women: A Comprehensive Historical Encyclopedia. 1 March 2009. Jewish Women's Archive. <http://jwa.org/encyclopedia/article/cochin-jewish-womens-music&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDG5jhqu&gt;.)

Pradeep, K. “Musical Heritage,” The Hindu (“Online edition of India's National Newspaper”), 15 May 2005. <http://www.thehindu.com/thehindu/mag/2005/05/15/stories/2005051500300400.htm&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDGDaI4s&gt;.)

Shammah, Avraham,
1) Article in Kolekh. 16 January, 2007 <http://www.kolech.org.il/show.asp?id=25318&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDGc9o7G&gt;.)
2) Author's response to criticisms to the first article. Kolekh. 27 January, 2007. <http://www.kolech.org.il/show.asp?id=25484&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDGjN3e9&gt;.)
3) Both of the preceding Hebrew articles are translated together by Debby Koren as “Kol b’Isha with a Current Perspective: A halakhic opinion offered by Rabbi Avraham Shammah.” <http://www.jofa.org/pdf/uploaded/1529-GHKB8620.pdf&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDGN2Q9L&gt;.)

Shapiro, Marc. “Another Example of 'Minhag America'.” Judaism, 39:2, 1990, pp. 148-154. <http://www.jofa.org/pdf/Batch%201/0060.pdf&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDGuCCz9&gt;.)

Shapiro, Marc. “Obituary: Professor Mordechai Breuer zt”l.” The Seforim Blog, 11 June 2007. <http://seforim.blogspot.com/2007/06/marc-b-shapiro-obituary-for-prof.html&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDH2gcZT&gt;.)

Student, Gil. “Sources Regarding Kol Isha.” <http://www.aishdas.org/student/kolisha.html&gt; (Archived 1 Feb 2010 by WebCite® at <http://www.webcitation.org/5nDH7Hi7X&gt;.)

Endnotes:

1.   Precise citations, as well as more thorough discussion, of all these authorities is found in Jachter.  Berman and Cherney also offer detailed discussion of Aharonim.

2. Translation according to Rabbi Bigman.

3. Nearly every recent secondary source on kol ishah discusses Rabbi Weinberg, but the most thorough discussions are in Berman (pp. 63f. on pp. 10f. of the PDF), Cherney (p. 69 on p. 7 of the PDF), Jachter, and Shammah (pp. 5-9).

4. Quoted from Koren's footnote 21 in Rabbi Shammah’s article.

5. See Wikipedia, “Cochin Jews,” s. v. "The Jewish Encyclopedia states,..." In the specific revision of that article cited in this essay (viz. 340155258), that entire paragraph in Wikipedia was written by myself, under the Wikipedia pseudonym “Sevendust62”.

6.Professor Marc Shapiro, “Obituary: Professor Mordechai Breuer zt”l”. 7. For thorough discussion, see especially Henkin, “Hirhur and Community Norms” and idem. “Contemporary Tseni’ut,” sec. “C. The Sugyot in Kiddushin and Sota”, pp. 25ff. Also, Berman (p. 53 on p. 5 of the PDF; n. 89 on p. 62 on p. 10 of the PDF), Cherney (pp. 73f. on pp. 9f. of the PDF), and Shammah (pp. 4f., 11-13.).  

8. Cherney, op. cit.

 9.   Henkin, op. cit. 10. Blau (Jerusalem: 1960), vol. 2, pp. 398-400, no. 224, as cited by Berman (p. 53 on p. 5 of the PDF, p. 56 on p. 7 of the PDF) and Cherney (p. 60 on p. 3 of the PDF), and Bigman (n. 9).

11. Berman (op. cit.) and Cherney (op. cit.).

12.Quoted from Rabbi Bigman.

13.  Cf. Bigman (n. 9) and Shapiro “Another Example of 'Minhag America'” (p. 152 on p. 5 of the PDF) for quotations from the Beit Yosef and Tur (respectively) elaborating on customary concealment and exposure. This principle, of permitting the exposure (and sight) of what is customarily exposed, and prohibiting the exposure of what is customarily concealed, applies throughout the laws of tzniut, as do the principles of hirhur and hana'ah. Cf. n. 15 below on hair-covering.

14. Quoted by Berman (pp. 48f. on p. 3 of the PDF) and Bigman (last two sentences of the lengthy quotation ending with the anchor for n. 28), and paraphrased by the Maharam Alashkar, as quoted in turn by Shammah (p. 11).

15. The approach this entire essay takes on kol isha, could be applied to other areas of tzniut (cf. n. 13 above), including hair-covering, both of married and unmarried women. See Shapiro “Another Example of 'Minhag America'” and Broyde "Hair Covering and Jewish Law." However, the Arukh ha-Shulhan would reject this; see Shapiro (pp. 149-150 on pp. 2-3 of the PDF) and Henkin "Hirhur and Community Norms:" (p. 82 on p. 2 of the PDF). 

16. Cherney, p. 61 on p. 3 of the PDF.

17. Cherney, ibid.

18. Cherney, p. 74 on p. 10 of the PDF. 19. Cf. Berman, bottom p. 53 on p. 5 of the PDF, s.v. “A further fascinating...”; and Shammah p. 4, s.v. “It was my intent...”.

20.Much of Rabbi Weinberg's responsum deals with the personal subjective feelings of women - Rabbi Weinberg ruled leniently largely because he knew the women would be insulted and slighted if he ruled strictly; and Rabbi Shammah devotes particular attention to this aspect of Rabbi Weinberg's responsum. See also Chemana and Johnson, who note that the Cochini Jews were not only lenient in kol isha, but that also, they offered an education to women equal to that availed men.

21. Pf. 62f. on p. 10 of the PDF.

Post-Publication Addendum (4 Feb 2010):

In note 15, I remark that the leniency on kol isha can be applied to
other areas of tzniut, such as hair-covering. I found an additional
reference, an article by Rabbi Irving Greenberg making the same
argument, only in the opposite direction. I.e., the article shows
leniency in hair-covering and applies this to kol isha. Rabbi
Greenberg is also concerned with the dignity of women (cf. n. 20).

Dr. Charlie Hall of the Albert Einstein School of Medicine of Yeshiva
University told me that Rabbi Joseph Soloveitchik held that the
prohibition of kol isha applied only in situations that would engender
improper thoughts. Dr. Hall told me that Rabbi Soloveitchik attended
the opera, and considered it to be “advanced culture”, and that far
from being prohibited (for containing kol isha), that its attendance
was actually to be encouraged. He added that Yeshiva University holds
an annual opera fundraiser.

I found that Rabbi Aaron Rakeffet-Rothkoff of Yeshiva University gives

as kol isha only "sexual" or "sultry" singing.

Urim and Tumim
We live in times when the demands on intellectual conformity are increasing to the point where to challenge is to offend and to think in an unusual way is to court charges of heresy. This article is an invented midrash that presents uncertainty in a positive rather than a negative light.

One of the challenges in a modern world is how to make sense or find meaning in what look, on the surface to be primitive phenomena in the Torah. The central artifact, the Tabernacle, as described in detail in Exodus, is full of what look like syncretistic devices. The winged cherubs bring to mind the Assyrian winged animals or kings where wings bestow a supernatural quality to the subjects. The intricate and multi layered priestly garments appear to be based on earlier models. Uniquely, the Name of God upon various elements of the High Priest’s dress is what makes them specifically Jewish. And the Urim and Tumim, on his breastplate that were the ancient mechanism for consulting God, look very much like ancient oracles, auspices, lotteries that relied either on looking into entrails or leaves, casting dice or bones or priests or prophets speaking from trances or combining letters.

If we follow Rashi in his commentary on Exodus 31.18 that there is no necessary chronological order to the Torah and building the Tabernacle was a response to the Golden Calf, then it is possible to think of building a sanctuary as a post-factum decision, a response to a perceived need, rather than an a priori necessity. This might be one explanation of the adaptation of other motifs.

And in a similar vein, the phrase ‘the Torah speaks in human language’ as the Talmud says 30 times, or ‘the Torah spoke symbolically’ implies addressing an audience appropriately for its time and in ways that might be accessible appropriately for different intellects and temperaments. Of course one would need to distinguish between a legal instruction and a narrative that is intended to convey value and ideology.

The Divinity of Torah (or its Genius) lies in that it does indeed lend itself to constant re-interpretation and sophisticated ideas as well as very basic ones. But then the challenge is to know what interpretations are authentic and which are not. Different religions, let alone commentators within the same one, can look at a text and learn very different lessons from it. And although we have the principles of Rebbi Yishmael for deducing biblical laws, no such formula exists for confining interpretations of text and Midrash.

No one had more courage than Maimonides in trying to reconcile loyalty to ancient texts with current philosophical rationalism. So when we look at the sacrificial system or the contents of the Tabernacle, we can take a Maimonidean approach that he himself uses in ‘The Guide to the Perplexed’ and say they were temporary artifacts of a transitional stage from paganism to monotheism. Or we can agree with Philo of Alexandria that they were symbols. Amongst our post Talmudic ‘canonical’ texts, no book uses more symbolism or metaphors than the Zohar

It the use of metaphor and language that I want to explore in relation to the Urim and Tumim which as the Midrash says are named for ‘The Lights’ that illuminate that which is ‘Sealed.’ Commentators are divided as to how they actually worked. Hardly surprising since they disappeared during the First Temple times and were never replaced.

The Urim and the Tumim in public.

In Exodus 28 where the priestly clothes are described it says simply that “Aaron shall bear the names of the people of Israel in the breastplate of judgment upon his heart, when he goes in to the holy place, for a memorial before the Lord continually. And you shall put in the breastplate of judgment, the Urim and the Tumim; and they shall be upon Aaron’s heart, when he goes in before the Lord and Aaron shall bear the judgment of the people of Israel upon his heart before the Lord continually. And you shall make the robe of the ephod all of blue.”

On the face of it the Urim and Tumim seem to be the Twelve Stones mentioned specifically as inserted into the breastplate the ‘Choshen Mishpat’, the ‘breastplate of judgment’ and inscribed with the names of the tribes. They were worn over the Ephod, the outer gown that the priests wore.

Leviticus 8.8 says “And he put the breastplate on him; also he put on the breastplate the Urim and the Tumim.” The Urim and Tumim are placed on top or in the breastplate and indeed the breastplate was designed to have a fold. This is why some commentators think the Urim were some document placed within the breastplate.

Under what circumstances are they consulted? In Numbers 27.18“And the Lord said to Moses, Take Joshua the son of Nun, a man in whom is spirit, and lay your hand upon him; And set him before Elazar the priest, and before all the congregation; and give him a charge in their sight. And you shall put some of your honor upon him, that all the congregation of the people of Israel may be obedient. And he shall stand before Elazar the priest, who shall ask counsel for him according to the judgment of Urim before the Lord; at his word shall they go out, and at his word they shall come in, both he, and all the people of Israel with him, all the congregation.”

Moses does not appear to have had need of the Urim for he was in direct contact with God. But Joshua, the succeeding ‘secular’ leader did, and he consulted the oracle through the Priests.

The Urim are mentioned in passing by Moses on his deathbed as the mark of piety in the priesthood. And Samuel adds the Urim to a list of ways of Divine communication in addition to dreams and prophets.

In 1 Samuel 33.8 Kind David consults the High Priest and asks him to consult the Ephod. But why does the text imply it is the Ephod that needs consulting? Unless focusing specifically on the ephod is simply a way of describing the ‘fully equipped’ High Priest. When David much earlier, escaping Saul, visited the priests’ city of Nov and asked for food and weapons he is referred to the sword hidden behind the Ephod 1 Samuel 21 10. So the Ephod in David’s time seemed to be more than just a tunic.

This is all we have from the Bible apart from Ezra and Nehemiah’ desire to see the Urim reinstated. But in fact they never were. No wonder the later commentaries are so varied. In the Talmud the tradition was that a request would be submitted, such as ‘should we go to war’ ( Yoma 73b) and letters would light up giving the response which only the High Priest could decipher and according to tradition sometimes got wrong. The Talmud also suggests the etymological significance as Urim, lighting the way through the correct advice and Tumim, the completion of the Process. It is the Zohar that characteristically suggests a Male Female duality in the two words and associates them with the creation.

The Urim and Tumim in private.

There is altogether a very different dimension to the Urim and Tumim. Judaism, in common with many other traditions, contains the comparison, contrast and duality between public and private. There have always been the public spaces, Sinai, the Tabernacle, the Temple and the Synagogue. They stand for and emphasize the significance of and responsibility for community and people. Public is of course the opposite of private, the opposite of the personal. Yet at the core of religion is the personal encounter with God, the entirely subjective experience of God, according to mystics and intellectual recognition according to the rationalists. There exists constant tension between the two, the need for privacy and the need for the public and Torah requires us to do both and find time for both.

In Deuteronomy 33.8 Moses in his farewell speech turns to the tribe of Levi and says “ Your Tumim and your Urim are the sign of ( or help you become) a pious person.” This, in common with much of the last statements of Moses is poetry and contains a message that is not a legal one. In analyzing the qualities of the different tribes Moses, like Jacob before him, looks for a crucial characteristic for better or for worse that both defines the tribe and represents either a positive or a negative feature of the people in general.

Levi here of course includes the Priests as well as the Levites but notice too the inversion. Here the Tumim come before the Urim. The character of simplicity, goodness, Tam as used of Yaakov, is the inherited quality but it needs to be qualifies by the light of understanding. This balance between the passion of Pinchas and the sober responsibility of inherited Priesthood is a reiterated theme going back to the Rape of Dinah and Yaakov’s declaration that Shimon and Levi have to be separated ( Genesis 49.5). The Urim and Tumim therefore become symbols of ‘civilization’ of reining in unbridled passion and channeling it into kindness, mercy and consideration which should (in theory of course, it rarely was in reality) the ideal of the priest and the communal leader. On a personal as well as a communal level, the Urim and Tumim were designed to show the right way to live, to resolve conflicts and bring about resolution.

The unspecified nature of the Urim and the fact of their disappearance so early in the history of the Judaism, lent them a certain romantic aura. But if Judaism has survived for so long without them, the interesting question is what they came to signify in the religious tradition. And there is surprisingly little written about them.

The idea that one seeks, looks for resolution can be taken to be a command to conform, obey and suppress. But it can equally be an obligation to search, to discover and if possible to resolve. Is resolution the ideal state? To help clarify this problem I suggest we can make a connection between another well-known and obscure pair, Tohu VaVohu in Genesis 1.

Tohu Vavohu

At first sound Tohu seems to mirror Tumim. But whereas Tumim resonates with completion, Tohu is closer to ‘lost’ or ‘uncertain.’ Yet there is symmetry in the pairs of words. Urim, meaning light or enlightenment leads to the resolution or completion of a question or course of action, Tumim. Tohu also implies confusion, uncertainty that may eventually be resolved through something internal; Vohu can be inverted to read Hu Bo, 'It is in it.' Chaos has the means within it of being turned into constructive matter. This reversal of letters is a common device used in rabbinic literature. For example the letters of Shamayim, ‘Heavens’ are divided to read sham mayim, there is water ( Chagigah ch.12a) or in the Zohar they are juxtaposed to read Miy or Mah Sham, Who or what is there. On the other hand Vohu (Hu VO) implies there is something there. In both cases there uncertainty leads to resolution.

What is more, the main reference to Tohu VaVohu in the Talmud comes in tractate Chagigah which of course is the tractate that devotes most space to mysticism including the famous adventure of the four rabbis in the ‘Orchard.’
“Rab Judah further said that Rab said: Ten things were created the first day, and they are as follows: heaven and earth, Tohu [chaos], Vohu [desolation], light and darkness, wind and water, the measure of day and the measure of night.

Heaven and earth, for it is written: In the beginning God created heaven and earth. Tohu and Vohu, for it is written: And the earth was Tohu and Bohu. Light and darkness: darkness, for it is written: And darkness was upon the face of the deep; light, for it is written: And God said, Let there be light. Wind and water, for it is written: And the wind of God hovered over the face of the waters. The measure of day and the measure of night, for it is written: And there was evening and there was morning, one day.

It is taught: Tohu is a green line that encompasses the whole world, out of which darkness proceeds, for it is said: He made darkness His hiding-place round about Him. Bohu, this means the slimy stones that are sunk in the deep, out of which the waters proceed, for it is said: And he shall stretch over it the line of confusion [Tohu] and the plummet of emptiness.” Chagigah 12a

The essential characteristic of a mystical approach is that objects in the material world are not as they seem. Hence of course Rebi Akivah’s advice in Chagigah 14b to the other three explorers of the Pardess, not to say that the pure marble stones were water. Appearances are deceptive. In other words Tohu VaVohu can be considered a mystical element as much as a physical one.

Chaos is in effect a necessary stage in the process of achieving order and content. In Genesis 37.15 Joseph, looking for his brothers, seeking direction, is lost in the field ‘ToEh basadeh’ when a man, or rather as Rashi suggests, an angel, directs him to his fate. Although it is not etymologically correct to make any association between ‘Toeh’ and ‘Tohu’ because Tohu is spelt with a Tav, Hey, Vav whereas Toeh is a Tav, an Ayin and a Hey, still there is an unmistakable association of sounds that would strike one living in an oral world. As in Exodus 23 with the obligation to return a stray animal, the word Toeh does not really translate lost so much as confused. Joseph is led from a state of confusion to one of resolution even if in the short term it seems to his detriment, as he himself says much later, “What you thought would turn out badly, God intended for good.”I can think of no clearer a statement that God’s way of looking at mankind and His plan for it, is unique and not necessarily in accordance with human thought processes. When we consult a Divine oracle it is precisely to seek a resolution that escapes us humans. The chaos of the world in its early stages, with uncertainty as to how it will develop is mirrored in the state that exists before we consult the Urim and Tumim.

The Tabernacle

The Tabernacle, the Mishkan, is another example of the Hidden and the Revealed. If God is everywhere what is the point of suggesting that He dwells in one specific place, even if that place is constantly on the move? And why is the Tabernacle divided up into three spaces, where everyone can go, where only priests can go and where only the High Priest can go? There are well known themes that several Jewish and non-Jewish commentators have pointed out relating both to the symmetry between the spaces on Noah’s Ark and the Tabernacle and more relevantly the levels on Sinai , Moses at the top, the Priests and the Elders in the Middle and the people at the foot. Mary Douglas ( Leviticus as Literature) also points out the parallel of how the animal parts of sacrifices are placed on the altar.

The importance of the curtains as indicators of Holy Space and the ‘space’ around and in the Holy of Holies signify space open and space closed, space accessible and space inaccessible. What appears to the naked human eye is superficial and not spiritual reality. The priests perform sacrifices as mediators between the people and God but priests are not always right (as in the case of Nadav and Avihu and later Eli’s family). Indeed the history of the Jewish people is proof if needed that humans no matter what their level of holy service or apparent dedication to religious ideals, consistently fail to live up to them on a personal level and equally, make the wrong decisions for the people.

The message that the Mishkan is giving seems to me to be twofold. God is indeed everywhere and nowhere specifically. This no doubt is why later the rabbis chose to use the term MAKOM, a place, everyplace, to describe God once the association with the Land had been interrupted. It is possible also why they preferred to use Ribbono Shel Olam ( Master of the Universe) and Hakadosh Baruch Hu ( the Holy One Blessed is He) precisely because of their universalism and also I should add to compensate for the exile of God and the loss of His Holy Name after the Temple was destroyed and High priests killed.

The Mishkan in the desert was also graced by the presence of the Pillar of Fire and the Pillar of Cloud. It was the visible presence, even if symbolically, of God that Moses required of God after the Golden Calf episode as the condition of his continuing to lead the people. But that presence did not guarantee that the people would respond correctly or appropriately. All the outward manifestations of God fail to achieve the desired goal.

The Mishkan symbolizes the failure of humans to understand the appropriate relationship. The same must be said for the Urim and Tumim. Anything that passes through the human mind is in danger of being distorted.

We humans seem to need and like certainty. It is I believe a natural weakness and the more complex and stressful life becomes the more we require stability and familiarity as well as needing quasi-parental security. But over time a new feature emerged to replace the Mishkan and then the Temple and that was study, derisha. Study required questioning and dialectic. Study required asking ‘Questions’ and sometimes leaving things unresolved, ‘Teyku.’

The antithesis of the human attempt to resolve uncertainty intellectually is ‘luck.’ Luck resolves, explains in ways we cannot understand and absolves us from eve trying. But that is a subject for another occasion.

Conclusion

In every aspect of Jewish thought and experience, under the overarching Unity of God, there is constructive dualism , Rational and Mystical, Priest and Prophet, God of a people and God of the Universe, Holy Land and the Globe, Holy( restricted) space and popular space, National and International, Male and Female, Human and Animal. This is most developed conceptually in the mystical idea of the Sefirot. Dualism provides options but also offers uncertainty.
The Urim and Tumim are the attempt to provide certainty in a world of Tohu VaVohu that can only be resolved by the direct relationship between Humans and God. In the early biblical period the function of the oracle was a necessary transition from the Pagan to the Monotheistic. In the end history, so to speak, decides what is effective and what is not, what remains in practice and what does not. Whereas the halachic process provides the human systemic way of progressing (Lo BaShamayim Hee, Not in Heaven ) to meet new circumstances, so history, Divine Intervention, such as the Exodus or the destruction of Jerusalem and its Temples, offers a different way forward. This explains the disappearance of Tohu VaVohu as much as the disappearance of the Urim and Tumim. Yet the narrative needs to remind us that ‘chaos’ and ‘confusion’ are indeed part of the Divinely ordained world we inhabit and trying to find certainty, predictions and forecasts instead of simply following the behavioral directions, might not be the way God wants us to live. Exploring the universe and the world of ideas is altogether a different matter. As the Mishnah in Chagigah also asserts, it may not be for everyone but it is the most legitimate way of progressing.

Review
By Israel Drazin

Maimonides
Essential Teachings on Jewish Faith & Ethics
The Book of Knowledge & the Thirteen Principles of Faith
Annotated & Explained
By Rabbi Marc D. Angel, PhD
Skylight Illuminations, 2012, 177 pages

There are divergent interpretations of the brilliant sage Moses Maimonides (1138-1204). Some scholars, such as Leo Strauss of the University of Chicago, are convinced that Maimonides wrote for two audiences, intellectuals and the general population, and that he frequently hid his true views from the non-intellectuals, convinced that the more philosophically-minded could mine what he wrote and understand what he really thought. Others, such as Menachem Kellner of the University of Haifa, believe that this is not true. Maimonides meant what he wrote and did not hide ideas so as not to disturb the common people or say things just to make people feel better. Rabbi Marc Angel, the founder and director of the Institute for Jewish Ideas and Ideals (jewishideas.org) takes the latter approach and presents it well.

He includes his English translations of texts from Maimonides’ Book of Knowledge and from his famous Thirteen Principles of Judaism. He chose these two sources because they give a clear presentation of Maimonides’ teachings on morality, ethics, Torah study, idolatry, and the principles of Judaism. He places Maimonides’ words on the right side of the book, puts numbers where there are ideas he wants to explain, and he explains them on the left side.

For example, he quotes Maimonides’ teaching about when Jews should give up their lives for Judaism on the right and gives historical examples on the left. Similarly, he mentions Maimonides view that prophets must be philosophers on the right and explains on the left that people do not have to accept his view and gives his opinion why. Also, he quotes Maimonides that righteous people do more than what the law requires and deviate from the middle path on the right and describes the higher standard on the left. His explanations are clear and he frequently refers to other books that help clarify and supplement Maimonides’ thoughts, including other books that Maimonides composed.

Rabbi Angel starts his book with a thirty page introduction that introduces Maimonides, his history, and writings to the reader. He tells readers that Maimonides was both a rabbi and a philosopher, and how he attempted to harmonize these two worldviews. He describes the Book of Knowledge and the Thirteen Principles. He points out that Maimonides insisted that religion must have a sound intellectual foundation. “His approach (to religion) allows a person (of every religion) to be religious without turning off his or her brain.” He tells readers that Maimonides emphasized knowledge of God, rather than simple belief in God.

Rabbi Angel informs us that Maimonides felt strongly that there is no ontological distinction between Jews and other human beings; humans are humans. The Torah emphasizes this message when it states 36 times that we should love the stranger. Non-Jews know things Jews don’t know and everyone should learn from everyone else; the truth is the truth no matter what its source. One cannot be a true Torah scholar without deriving wisdom from all sources. Righteous non-Jews have a place in the world to come.

The book is filled with Rabbi Angel’s insightful interpretation of Maimonides and this great sage’s important teachings, such as the following: Maimonides believed in miracles, “but God does so very rarely.” People should not be ascetic, such as fasting when not required to do so. Contrary to the thinking of some ultra-Orthodox, Maimonides stressed that Torah scholars should work for a living and not depend on the charity of others.

In summary, readers will gain much by reading this book because Maimonides was the greatest sage since the biblical Moses and Rabbi Angel gives us a good explanation of his views.

Rabbi Marc D. Angel has come out with a new book, published by Skylight Illuminations, a division of Jewish Lights Publishers. Entitled: "Maimonides: Essential Teachings on Jewish Faith and Ethics," the book includes an introduction to Maimonides' religious philosophy; an English translation of most of Maimonides' Book of Knowledge and his 13 Principles of Faith; and a running commentary by Rabbi Angel. This book allows the reader not only to learn about Maimonides, but to study his essential teachings in his own words (translated into English).

The book is available through the online store at jewishideas.org Bulk rates are available by contacting [email protected] The book is valuable not only for personal study, but for group discussions and adult education classes.

In this accessible examination of Maimonides’s theological and philosophical teachings, Rabbi Angel opens up for us Maimonides’ views on the nature of God, providence, prophecy, free will, human nature, repentance and more. He explores basic concepts of faith that Maimonides posits must serve as the basis for proper religious life. He also examines Maimonides’ insights on reward and punishment, messianic days, the world to come and other tenets of Jewish faith.

“An invaluable new translation ... a valuable overview of Maimonides’s theological thought [and] a very helpful, lucid commentary that makes the work accessible.”
—Dr. Howard Wettstein, editor, Midwest Studies in Philosophy; professor of philosophy, University of California

"Accessible and authoritative....Gracefully traces the contours of Maimonides' attempt to liberate Judaism from particularism and obscurantism. A wonderful and refreshing achievement."
--Dr. Menachem Kellner, Department of Jewish History and Thought, University of Haifa