Jewish Political Studies Review 13:3-4 (Fall 2001)
Hora'at Sha'ah: The Emergency Principle in Jewish Law and a Contemporary Application
Alan J. Yuter
This essay deals with the emergency principle in Jewish law, which suspends the normative positive statute when, if implemented, the consequences would undermine the Jewish polity. After explicating the emergency principle as defined by Maimonides, other instances of the principle are examined. In conclusion, the relevance of the emergency principle to lenient conversion standards in contemporary Israel is suggested.
The Case of Pikuah Nefesh
Jewish law provides that any and all laws of the Torah, except three, must be violated in order to save a Jewish life. According to Scripture, "You [= the Israelite bound by the covenant] must obey my edicts and judgments which are to be done by man and [you] shall live by them, I am the Lord." 1 Rashi understands the command to "live by them" to refer to the commandments, the reward for the observance of which is the life in the hereafter. After all, the Lord may be trusted to provide the appropriate reward to the faithful.2
Applying his penchant for scriptural peshat, or plain philological meaning, Rashbam contends that by observing the law, one is promised a long earthly life, while disobedience causes one's days to be cut short.3 Rashbam's view reflects a literal rather than midrashic reading of Scripture, according to which a long life in this world is the apparent reward for observing the commandments.4
Rashi, like Maimonides,5 adopts the rabbinic understanding that takes these idioms to refer to the eternity6 to come. Talmudic law requires that one violate the Sabbath in order to save a Jewish life,7 arguing that the command "to live by them," i.e., the commandments, requires that one not forfeit one's life in order to zealously but inappropriately privilege lower-grade norms.8
The talmudic court requires that in the cases of false religion,9 sexual wrongs, and murder, one must be willing to suffer death rather than commit these offenses.10 Failure to forfeit one's life when called upon to violate these three exceptionally grievous wrongs is also a violation of God's law.11The common doctrine in these three exceptions to the general rule that forbids martyrdom is Judaism's understanding of the infinite value of human life, since the human being is created in the image of God12 which, at least for Maimonides,13 is the ability to think. By applying one's thinking to debase the image of God in the "other," who also possesses this image of God, one diminishes the image of God in oneself.
This image of God is our own sense of subjecthood. The outside world is the world of "objects." To love our neighbor as ourselves14 is to act toward the other as a subject and not as an object. By subjecting an "other" to an illicit sexual approach or to take the life of an "other" without authorization of the law, one violates one's own subjective personhood beyond recognition.
For Maimonides, avoda zarah, usually translated as idolatry, is the ideology whereby scoundrels in power manipulate the masses into subjects for exploitation.15 Since the telos of Torah observance is to invest sanctity, or qedusha, which will empower its bearer to earn 'olam ha-ba, the eternity to come, one must preserve one's life in order to observe the salvific law. Only in those instances when the image of God will be violated is the Jew required to surrender one's life as a martyr.
The Conditions of Hora'at Sha'ah
Just as Jewish law requires the suspension of every law in the Torah except the norms prohibiting murder, sexual offenses, and false religion, in order to preserve individual Jewish life, Jewish law also provides for its own temporary suspension in order to preserve collective Jewish life. Tsebi Hirsch Chayes' treatment of this theme16 concludes with the proposition that while the Torah is eternal, Israel is enjoined to do what it must to insure that eternality. If a specific norm required by the Torah creates consequences that endanger the Jewish polity, these norms may be suspended but not abrogated.17 For Menahem Elon, the hora'at sha'ah idiom refers to temporary, ad hoc emergency legislation18 grounded in specific social and religious realities at a given time, and in response to specific circumstances, and these temporary rulings may even become a permanent part of standard Jewish law.19
According to Torah law, one is not permitted to make sacrificial offerings to the Lord except in Jerusalem.20 According to the oral Torah canon, this law is in force only after the erection of the Bet ha-Miqdash, the Solomonic Temple.21 On one hand, the license to render an offering outside of Jerusalem is derived from the prophetic narrative in which Manoah actually renders an occasional offering, with Divine approval.22 On the other hand, Elijah offers a sacrifice to the Lord on Mt. Carmel,23 in violation of the explicit Deuteronomic norm forbidding such cultic offerings in all but the one chosen cult site. Furthermore, Torah law also forbids obeying the prophet who issues an order to violate Torah law.24 Nevertheless, in this instance, Elijah was not considered to be in violation of Torah law because his ruling was taken to be an emergency measure25 and not an abrogation of God's law.
This passage provides the legal "precedent" for a prophet to declare a temporary suspension of a biblical norm, that no sacrificial cult take place outside of the Jerusalem temple once this temple is constructed, in order to combat the clear and present danger of Jezebel's successful importation and imposition of the Phoenician Baal cult upon the already religiously syncretistic Northern Israelite Kingdom.26
Talmudic literature applies the emergency principle to explain apparent deviations from Torah statute. According to the rabbinic understanding of biblical law, a criminal must be warned that the act about to be committed is indeed a wrong which carries a specific sanction or penalty that will befall the offending forewarned culprit. The gatherer of wood27 was not clearly warned either of his offense or its consequential penalty because Moses himself was unsure how to dispose of the case.28 Rabbi Judah ruled that the death penalty that was imposed upon the Sabbath wood gatherer must have been an instance of an emergency ruling.29 Similarly, the allowance of a communal sin offering to be offered in the time of Ezra the Scribe30 for the deceased intentionally sinful generation of Zedekiah was justified as an emergency measure, or hora'at sha'ah,31 because intentional sins may not be expiated by offerings.
The Emergency Principle in Maimonides' Writing
The emergency principle's most complete formulation is Maimonidean:32
The court has the power to suspend even these rules33 for a term34 even if it is lesser35 than the earlier court, for these [rabbinic] decrees must not be more rigorous [in their application] than Torah law. Any court has the authority to suspend the law36 in an emergency. How so? A court that determines37 that to strengthen the law/religion and to make a fence so that the masses38 do not violate Torah law, has the authority to flog [offenders] without warrant authorized by positive law. But they do not establish this [deflection] from positive statute in permanence39 and do not declare that such and such is the law. And similarly, if they [the members of the court] determine to nullify [le-batel] a positive commandment or to transgress a negative commandment in order to cause the masses to return to law/religion or to prevent the majority of Israel from stumbling [i.e., sinning] in other [similarly serious] matters, [the court] does so [suspend the positive law]. For just as the doctor amputates a limb or foot in order that a patient survive, similarly, the court rules at any time to transgress a few commandments for a term in order that the masses may one day return and fulfill [all] the commandments. Thus, any court may rule, at any time [zeman min ha-zemanim], to violate some commandments temporarily, in order to sustain them all [i.e., all of the commandments], as was commanded40 by the early sages, violate one Sabbath so that one may observe many Sabbaths.41
This critical passage may be read in two ways. It may be argued that since for Maimonides, all post-talmudic courts carry equal weight,42 the idiom "lesser than the earlier court" refers to post-talmudic courts, whose jurisdiction, unlike the Great Sanhedrin, does not extend to the entire Jewish polity, but are nevertheless authorized to issue hora'at sha'ah rulings.
Alternatively, since Maimonides records this ruling in Hilkhot Mamrim, or laws of legal rebels, which deals with the zaqen mamreh, the ordained sage who issues a practical ruling in defiance of the Sanhedrin,43 the license to suspend the law might apply only to a Sanhedrin where an ordained sage may sit, but not to an individual court, or bet din shel yahid.
In point of fact, Maimonides applies this rule when he strays from the talmudic statute, and since he believes that every post-talmudic rabbi possesses an equal legal authority, every post-talmudic rabbi is authorized, by dint of his office, to issue emergency rulings.
According to talmudic law, it is forbidden to speculate when the end of days, or eschatological time, will occur.44 Sa'adia Gaon engaged in precisely this speculation45 which, following the Talmud, Maimonides regards as improper. Since Maimonides objects to this speculation when done with specificity,46 Maimonides justifies Saadia, who engaged in this speculation out of a sense of pastoral urgency.
On one hand, Jewish law requires that the hazan, or prayer leader, repeat the 'amida,47 the standard set formal benedictions recited three times a day and four times when an additional prayer is mandated. After noting that people, including scholars, were talking during this mandated repetition, behaving poorly, and leaving the synagogue during the prayers, Maimonides ruled that the 'amida should not be repeated in his community.48 His son, Abraham b. ha-Rambam,49 testified that his father indeed instituted this practice in Egypt.
O. Yosef reports that "all authorities concede that, according to rabbinic enactment and the Geonim, it is proper that the community pray silently and afterwards [led by the prayer leader] out loud. And this is indeed the universal practice except in Egypt, whose practice followed Maimonides' ruling. In any case, Maimonides only issued his ruling for his time and place because of the local circumstance, and this is clear given his idiom, be-zemanenu, in our time."50 Yosef paraphrases the Maimonidean idiom zeman min ha-zemanim, at any time,51 indicating by his paraphrase of the principle he cites that he regards Maimonides' view to be normative.
Maimonides opposes the popular but illegitimate changes in the standard liturgy made by hazanim in his community during the Sabbath evening prayer because one may not deviate from the prayer formulae instituted by the sages.52 However, (a) if the change is not consequential, and (b) if correcting the incorrect but popular practice causes communal dissension, the consequence of communal disruption is a greater concern than otherwise appropriate liturgical reform.53
A woman who survives two husbands carries the halakhic status of a qatlanit, whom talmudic law forbids to remarry for a third time.54 In spite of this explicit talmudic restriction, Maimonides permits this woman to marry in order that she be supported by a husband.55 Maimonides emphasizes that his dispensation is a consequence of this woman's actual life needs, i.e., she requires a husband for support.
The hora'at sha'ah principle is a matter of judicial discretion, on one hand, and a potentially slippery slope leading to the disintegration of the legal order, on the other. A legal order that is no longer effective or obeyed also forfeits its validity.56 Consequently, Maimonides insists that a court that invokes the hora'at sha'ah principle twice ought not to rush to do so a third time,57 most likely because frequent appeals to hora'at sha'ah undermine the integrity of the legal order by introducing the slippery slope that slides into legal disintegration.
Like Maimonides, Yosef Caro believes that hora'at sha'ah suspensions of law are not restricted to the Great Sanhedrin: "Any court, even if not ordained in Israel [which is the historically valid ordination], should it see that the people are sinning wantonly,58 they rule on matters capital or financial, applying all forms of sanctions, even without conclusive testimony....And this applies with [the consent of] the gadol or the shev'a tovei ha-'ir."59
The notion of a gadol appears as a legal doctrine in Tosafot.60 For Y. Caro, the idiom probably is an equivalent of bet din shel yahid, or a local rabbi invested by the community with the political power to apply Jewish law. In his gloss, Isserles adds that this custom of acting she-lo ka-din is a matter of custom, and is occasioned by the needs of the moment (sha'ah). In an even more far-reaching claim, he contends that this local body possesses an authority akin to the beit din ha-gadol.61 Now, if the local custom is equivalent to the authority of the Sanhedrin, the emergency rule becomes obsolete since the "custom of Israel is Torah," and with changes in custom, the Torah itself to this view undergoes alteration. In his discussion of women slaughtering animals, Isserles reports62 the view of Shelomo b. Adret that "it appears to me that the conjecture of the Geonim is Torah"63 regarding the inspection required of individuals engaged in slaughtering.
Once latter-day rabbis assert the de facto authority of the Supreme Court of Israel, whose ad hoc rulings are called "Torah" and are taken to be implicitly canonical,64 hora'at sha'ah becomes an anachronism because canonical people, by dint of their inspired intuition and political office, may reform the laws as they see fit. If the locus of authority shifts from the canonical organ (the Sanhedrin)65 and canonical text (the Talmud and midreshei halakhah) to the canonical sage, the intuition of the sage supersedes the living canonical text. Thus, the right to apply the emergency principle is limited to canonical people, and not to the local rabbi.66
According to those who extend talmudic authority to post-talmudic great rabbis, post-talmudic great rabbis possess the political power to issue radical rulings, even against the plain sense of canonical texts. Maimonides regards the canonical texts to be a normative canon rather than formative canon,67 and he maintains that rabbinic authority is based on jurisdiction with its authorization to apply discretion, and not to charisma or intuition, which localizes authority in the great sage.
The Emergency Principle in Halakhic Writing
However one understands the legal ground for flexibility in emergency situations, all authorities agree that this discretionary authority does not reside in the Sanhedrin alone. According to Yosef Colon, a court must not embarrass or punish a rabbi or elder accused of rendering an immodest woman pregnant. For Colon, only the "seven good people of the city," or Jewish community council with the consent of the gadol, may invoke hora'at sha'ah. He rules that an example should not be made of one individual with the invocation of hora'at sha'ah. It is only the great rabbi who has the authority to punish "not in accordance with Torah" in whom this authority is invested, and not in each and every rabbi.68 Furthermore, the "seven good people of the city" is a political rather than religious organ and its powers are clearly political. On the other hand, Yehudah Ayyash rules that in an instance of moral breakdown, the sage is empowered with judicial discretion based on the hora'at sha'ah doctrine formulated by Maimonides.69 The authorization to invoke hora'at sha'ah resides neither in the exclusive authority of the great rabbi nor the political power of a secular council of rich, powerful elders.
Moses Sofer was once confronted with a conflict between judicial propriety and communal expectation. On one hand, the gomel blessing ought to be recited during a daily minyan of ten, with two rabbis in the assembly. According to the letter of the law,70 there would be no infraction were the blessing recited at night. However, Ashkenazic usage71 restricts this practice, and requires that the blessing be recited only when the Torah is read. Sofer concedes that "this occurrence happened also to me, and I recited the blessing at that time, but was in fear and was trembling greatly in order not to publicly permit this very strange usage and not treat minhagei Yisrael lightly. Therefore, when I recited the blessing I said "know this gentlemen"72 that what I do now is a hora'at sha'ah."73
In an age of reform, fidelity to accepted forms of practice is a critical strategy for maintaining the continuity of the Orthodox religious sensibility.74 Since not reciting the blessing would be communally disruptive, Sofer applied the hora'at sha'ah principle75 in order to avoid communal discontent, on one hand, while affirming the authenticity of the normative practice, on the other hand.
In recent times, Abraham Isaac Kook's dispensation regarding sh'mita "is in point of fact because of the great pressure of the moment, and as a hora'at sha'ah," so as not to destroy the Jewish agricultural enterprise.76 Elsewhere, Kook rules, consistent with historical Ashkenazic usage, that "according to the essential law, without hora'at sha'ah [legislation] by a great and pious individual [adam gadol ve-hasid] one would have to be willing to surrender one's life in time of persecution [she'at gezeirah]."77 The realities that must be in place for the hora'at sha'ah declaration to be made are similar to Maimonides' ruling of Hilkhot Mamrim 2:4: "The hora'at sha'ah ruling [is made] only when it is necessary to violate Torah law in order to save the entire Jewish people [klal Yisrael]."78
With a far-reaching flourish, Kook extends this principle beyond the parameters of the talmudic precedent: "The monarchy, in its role of communal leadership...stand in the place of the king.79 In any case, the rule of the king [and his privileges] apply for all time and in every generation in their jurisdictions [gedolei ha-aratsot] to punish and [even] to execute on the basis of [the] hora'at sha'ah [principle]."80
Kook's claim that contemporary Jewish leadership's authority is equal to the Davidic king may be so de facto, but probably not de jure. This is due to an explicit ruling in Judaism's canonical writing. Scripture declares that "you [the Israelite collective] must surely appoint over yourself a king."81This passage was taken by the rabbinic tradition to be a positive Torah commandment.82
Nevertheless, this explicit canonical statement was dismissed by Don Isaac Abravanel.83 In any case, the doctrine of hora'at sha'ah would suffice to invest the contemporary Israeli polity's political sovereignty with those of the monarchy. Kook believes that the authority of judicial sovereignty applies in modernity as well as in antiquity on the basis of the Scripture which places the source of appeal with "the judge who will be [in office and in power] in those days."84 But the very next verse limits the application of this authority to the court sitting in plenum to "the place where the Lord will choose,"85 indicating that de jure authority resides only in the Great Sanhedrin.
The principle of hora'at sha'ah also appears in the responsa of Moshe Feinstein. By convention, s'lihot are not to be recited before midnight.86 It cannot be claimed that it is forbidden to recite s'lihot before midnight because there is no canonical requirement altogether requiring their recitation. Nevertheless, the popular tradition does not permit the recitation of s'lihot earlier than midnight.87 Recognizing (a) that according to the letter of the law there is no objective restriction, (b) that the popular usage, grounded in the mystical tradition, should not be summarily rejected, and (c) by not permitting the early reciting of s'lihot people will not leave their homes, Feinstein permits the recitation of s'lihot early in the evening as a hora'at sha'ah.
In response to Moshe Sofer's insistence that one ought not to pray in a synagogue where the bima, or prayer platform, is not in the center,88 Feinstein affirms that although one ought not to deviate from the "minhag of our region" and that the prayer platform ought to be in the center of the synagogue, the misplacement of the prayer platform does not render the synagogue invalid or illegitimate.89 Sofer's attachment to traditional folkways is, for Feinstein, a hora'at sha'ah or politically-driven response to the challenges of reform.90
Feinstein also observes that the appointment of Abtaliyon, a descendant of Sennacarib,91 conflicts with the requirement that Israel's monarchy and all positions of leadership must descend from Israelite stock.92 It is suggested that this appointment was also a hora'at sha'ah.93
Menahem Elon summarizes the classical position, that a custom or convention of business usage is sufficient to override talmudic law.94 Laws regarding fiscal matters were legislated95 with the understanding that they could be overridden as economic conventions, which are not under Jewish control, change.
When dealing with rituals, which are internal Jewish matters, the talmudic canon does not provide for customs, which are lower-grade norms, to override legislated rabbinic law, which are higher-grade legal norms. On one hand, Ra'avad believes, unlike Maimonides, that a custom may indeed abrogate a rabbinic law,96 and this view is seconded by Joseph Colon.97 On the other hand, the Asheri98 dismisses such customs, as do Tsemach Duran,99 Isaac Perfet,100 and Binyamin Ze'ev.101 For those sages who believe that a custom may override the law, the political judgment is made that normativity resides in the living community.
This view, that a post-talmudic local custom may indeed override an explicit positive talmudic statute, does not, in our view, reflect the Judaism of the canonical rabbinical documents, and for those who believe that in ritual matters a custom may not override rabbinic law, the emergency principle, hora'at sha'ah, is invoked on the basis of ad hoc policy.
The Test Case in Our Time: The
The principle of hora'at sha'ah is, as has been demonstrated, an accepted norm in the classical halakhic legal order. Given the intermarriage rates in the diaspora and the requests for conversion to Judaism in Israel occasioned by the massive immigration from the former Soviet Union, the applicability of the principle and precedent of hora'at sha'ah may not be easily ignored.
On one hand, Orthodox Judaism claims to represent the eternal Jewish ideals recorded in the dual Torah Covenant. On the other hand, Orthodox Jewish leaders regularly apply a sectarian policy of maintaining the thick culture of their community and only accept as converts to Judaism those who will adopt the beliefs and practices of their contemporary Orthodoxy. In haredi, or parochial, sectarian Orthodoxy, the more authentic voices are those that are more strict, sacrificing, fervent, more legitimate, and ultimately "more Orthodox."
In its classical formulation, it is not the strictness but the precision of the ruling or policy that determines validity.102 However, J. David Bleich103 presents what he takes to be "the" Orthodox consensus, which carries de facto validity in his writing, regarding halakhic conversions: "In the demands which it makes upon the proselyte, Judaism is uncompromising. Judaism is not merely a faith-community; its adherents are bound by a rigorous and demanding code of law governing every aspect of life. Commitment must be total. To be accepted as a member of the community of Israel the convert must not only subscribe to the beliefs of Judaism but must willingly agree to observe its precepts. Should the candidate refuse to accept any detail of this code, his conversion is ipso facto invalid."104
The realities of intermarriage and applications for conversion, with pressure for relaxed standards, threaten the integrity and "the very identity of the Jewish people."105 Nehemiah argues that conversions based on ulterior motives are invalid, while the sages do accept these conversions to be valid after the fact.106 Echoing the view of the sages, Maimonides' code formulation requires that candidates for conversion must be examined in order to ascertain their sincerity; insincere conversions are, after the fact, also invalid and improper.107 Bleich then cites, with implicit approval,108 the view of Meshullam Roth who insists that the conversion court must be "virtually certain" that the candidate will be fully observant of "the Sabbath, family purity, and the dietary code."109 Conceding that some Orthodox authorities understand "conversion for the sake of heaven" with "considerable leeway,"110 Bleich maintains that most authorities oppose granting this leeway.111 He cites as an instance of one who allows leeway the view of Mendel Kirshbaum, who claims that non-Orthodox clergy will perform the conversions if Orthodox rabbis do not, and greater damage will result.112 In response, Bleich cites the view of Ya'aqob M. Breish, who argues that everyone knows that a Reform rabbi's conversion is a nullity, such a "conversion" is invalid, and the Orthodox rabbis who sanction such "conversions" commit a prohibited act.113 Bleich seems to imply but does not explain why Breish's view is exegetically more convincing than Kirschbaum's.
Bleich also cites the case of David Hoffmann, who permits the conversion of a non-Jew who intends to marry a kohen, in spite of the fact that this union is itself a prohibited act,114 and in turn indicates that the perspective candidate is not sincerely accepting the binding obligation of the commandments. In dismissing Hoffmann's reasoning, Bleich characterizes Hoffmann's ruling as "radical," and by implication outside of the normative consensus and therefore wrong.115 Bleich adds that Hoffmann "offers no supporting evidence for this innovative view."116 By "evidence," Bleich probably means talmudic text.117 A close reading of Hoffmann's responsa yields a reading at variance with Bleich's. Hoffmann contends that a kohen living intimately with a non-Jewish woman is worse than a faulty conversion. The case at hand is not the le-chatchila, or best case scenario, but one in which, on policy grounds, the rabbis want to limit the severity of sin.118 Hoffmann adds that he does not permit siddur qiddushin for a kohen and giyyoret in this instance because this would be a prohibited act on the part of the officiating rabbi,119 and concludes that one should remind the couple to observe the niddah rules. It seems that a couple willing to live together as husband and wife without conversion is hardly likely to observe the family purity rules, and this comment ought not to be taken seriously.
Furthermore, Hoffmann's concern for an anti-Semitic backlash in a Germany that had emancipated the Jews, albeit grudgingly, should lead the twentieth century reader to appreciate the duress or hora'at sha'ah realities under which this responsum was issued.
Bleich describes M. Feinstein's unequivocal rejection of nonobservant converts in Luban120 as well as his more conciliatory disapproval written twenty-one years later in America,121 indicating the impact of social realities and policy on the implementation of what are presented as fixed and final legal rules.
As noted above, Bleich regards Hoffmann's view as innovative. Bleich also characterizes Ben Zion Uzziel's lenient ruling on abortion122 as original.123 Now, Uzziel also ruled leniently on the conversion issue.124 Bleich is very aware of the line of argument advanced by Uzziel and Hoffmann when he concedes that "it is an axiomatic principle of Halakhah that each case in which a question arises must be decided in light of its own particular ramifications....The preponderance of halakhic opinion...is that such conversions [for marriage and convenience] are null and void."125 This "consensus" seems to be intended to intimidate those decisors who might not concur. Still, Bleich never degrades the bona fides of those Orthodox authorities with whom he disagrees, even when their reasoning defies his logic.126 Bleich invests the parochial Orthodox consensus with virtual if not explicit canonicity, so that "innovative," "radical" views which deviate from this consensus may be denied de facto legitimacy.
Uzziel's lenient ruling regarding the rigor of commitment required of a candidate for conversion is itself based on a responsum which addresses rabbinic policy in a case where a Jewish man has "hired" a non-Jewish maid who is attractive (yefat to'ar) and he does with her as he pleases (ha-yashar be-'enav ya'aseh).127 Maimonides rules that the ideal (statute) law requires that the women be immediately expelled.128 Noting the rhetoric of the questioner, Maimonides then adds that the Torah is addressing human passion (ki lo dibberah Torah ella ke-neged ha-yetser),129 which is the oral Torah's response to the written Torah's account of the captive woman. Recognizing that this situation is not ideal, the court must proactively and coercively intervene, to the extent that it is empowered, to enforce the consort's expulsion,130 or failing that end, the woman must be manumitted in order that a halakhic marriage may be arranged. This ruling is based on the Mishnah131 according to which the separated couple is forbidden to marry, but if a marriage does take place, the couple, now united as halakhic husband and wife, are not in technical violation and need not be separated.132
The reason that Maimonides ruled leniently is taqqanat ha-shavim, in order to facilitate the rehabilitation of those who have deviated from Torah norms.133 Maimonides then cites the Scripture, "it is a time to take action for the Lord, that Your Torah [law] [ought to be] be nullified,"134 which is taken by Israel's sages to imply that there are emergency situations when the law must be suspended so that the community bound by the law may survive.135 Here Maimonides explicitly invokes the emergency doctrine and applies it himself, indicating that (1) the authority for such invocation lies not in the greatness of the rabbi but in his political office, and (2) preventing an intermarriage of an individual provides sufficient warrant for such invocation. Unaddressed by Bleich are the principles applied by Maimonides in this lenient ruling.
According to Maimonides, the consequences of intermarriage are so dire that the minor infraction of a less than perfect conversion takes place in order to avoid the intermarriage scenario. While the infraction of cohabiting with a non-Jew is less grave136 than having sexual relations with an Israelite menstruent,137 which is the likely case if a marriage between the former slave and her master be arranged, Maimonides ignores the immediate law and addresses the consequences of intermarriage, which endangers Jewish continuity.138 Maimonides rarely cites reasons for talmudic or biblical rulings. Here, however, after ruling that the intermarriage infraction is not the occasional liaison but living together as if married,139 Maimonides uncharacteristically adds: "Even though this crime is not a capital crime punished by the court, it should not be light in your eyes, because this [infraction] has greater deleterious consequences [hefsed] that are not present in all of the other forbidden liaisons. The male offspring from incest is still a Jew, even if he is illegitimate, while the male offspring from a non-Jewish woman is not his [Jewish] son. This issue [of intermarriage] brings us to cleave to the pagans whom the Holy One blessed be He has separated us from them and [by engaging in this infraction of intermarriage] we turn from the Lord and are unfaithful to Him."140 Since Maimonides believes that legal rules may be suspended when their implementation undermines Jewry's integrity and continuity, and given his formulation that a law may be suspended in order to "return people to religion/law,"141 his leniency in this case is consistent with his mind, method, and tradition.
The most recent edition of Responsa Pe'er ha-Dor available was published by the Machon Or ha-Mizrah (1994)142 by David, the son of Ovadia Yosef. One year later (1995), Ovadia Yosef published Yabi'a 'Omer VIII, where he rules, like Pe'er ha-Dor, that conversions in this instance are permitted, and one must rule appropriately in emergency situations.143
Uzziel explicitly cites Maimonides' ruling, Hoffmann applies it, while others ignore it. hora'at sha'ah legislation must not be construed as be-di'avad, after the fact, or "easy way out" legislation. The decisor must assess the realities of the case, and rule appropriately to the case before him. Code law and responsa/case law are not the same. When code law is applied mechanically and appropriately in emergency situations, the decisor is responding formally but inappropriately to the realities that are his job to assess and address.144
Professor Aaron Kirschenbaum suggests that the principle of "equity" provides "the inner mechanism of the law that makes of flexibility in its interpretation and application."145 Adopting Aristotle's notion that a law may be defective because of its generality,146 Kirschenbaum views equity to be the "inner mechanism" whereby the law modifies itself in order to remain faithful to itself." He outlines three approaches to the "uncovering of what [is assumed] was always there"148 present in the law. According to Kirschenbaum, who advocates what he calls the explicative approach, the human authority person "explicate(s) the true intention of the divine Legislator."149 A third view, for Kirschenbaum, is the accumulative approach, or "ongoing revelation."150 The authentic rabbi would be, for Kirschenbaum, the embodiment of "the living Word,"151 because he either reveals by explication or affirms by cultural convention which, with time, assumes the psychological propriety of revelation.
The talmudic canon does not authorize ongoing revelation. If it did, then one cannot dismiss Hoffmann's view on conversion as "radical" or "innovative." Kirschenbaum regards the doctrine of Emunat Hachamim to be "refreshing,"152 but he does not provide a legal rule of recognition which authorizes some but not all rabbis to issue these restorative rulings.
Kirschenbaum's concern for "equity," which to his view restores the ideal law, ought not to be construed as hora'at sha'ah. The talmudic rabbis were not affirming a "continuous revelation." For Kirschenbaum, there is no need for emergency legislation because the law is no more or less than what the communally recognized sage declares is the law. As the classically defined legal organ,153 the talmudic court sitting in plenum constituted the singular legal organ authorized to legislate universal Jewish law. The sages did not claim to read the mind of God because the Torah is "not in heaven."154 Maimonides explicitly rejects the claim that a prophet may derive the law by intuiting Divine intent,155 while he concedes that the prophet, like the sage, is authorized to legislate in emergency situations, i.e., le-fi sha'ah.156 Kirschenbaum's contention that there is an ongoing revelation and that God's mind may be divined by those blessed with this ongoing intuitional revelation reflects a hermeneutic and political system strikingly different than that of the rabbinic sages. Ironically, this intuitional approach is not used to expand the law, but to restrict the law's application if the consequence violates popular cultural tradition. The claim that individual rabbis possess superlegal authority actually renders the hora'at sha'ah principle null.
According to Norman Cantor: "The law, it was claimed, originally resided in the Roman people, but the so-called lex regia, the royal law, the people surrendered their legislative power to the wise and beneficent emperor. The aim of the law is the achievement of equity, or justice, and to attain it, the court may alter or suspend the prevailing statues in a particular case and proceed to decide the issue by abstract ethical principles....The jurists are supposed to be learned and experienced men, above corruption and even above sentiment. Their power is derived from their position as representatives of the emperor, the "living law," who appoints them."157
Christian, Roman, and pagan law demand that subjects surrender themselves to the legal person, who will determine when, where, and how the law is to be applied. For the pagan, law is an instrument of power. In Judaism, law is a condition of power and no one is above the law. While the Jewish king is bound by the law, the pagan king is the law. Only when the implementation of the law will undermine the society bound by the law may the law be suspended - not evolved or abrogated - by the law. The Da'as Torah restoration of equity and true intent of the Divine legislator allows elite policy to override law when the elite believes that the emperor, or in the Jewish instance the great rabbi or gadol ha-dor, believes that the integrity of the culture will be compromised if Jewish law is not applied restrictively.158 Judaism's canonical version maintains that Divine intent is recorded in the written and oral Torah, and is not expressed in the intuition of any individual, while others159 invoke and affirm intuition as a source of authority, even though canonical Judaism does not recognize this intuition as a source of law. When Jesus concedes that the right of divorce is recorded in the Torah, he also claims that the rule was authored by Moses - and not by God,160160 and with his "divine" intuition, abrogated a God-given law. The cultural ethos within Orthodoxy that Bleich affirms as normative is best explained by the Marxist theory of reification. According to Marx, commodities have social value in the intercourse of social exchange.161 To this reading, what is taken to be divine intent or the spirit of the law is the reified culture created by the community's impositions of its culture on the legal texts in order to live with its sensibilities.162
The popular approach, affirmed by Bleich, is stated clearly and boldly by Yaakov Avigdor. He cites the Shulhan Aruch, which rules that conversions for marriage may not be accepted,163 and even though the conversion is valid after the fact, the conversion remains a forbidden act. Avigdor claims that the authority of the contemporary rabbinate164 is only an extension of the talmudic court, and just as the talmudic court insisted on conversion with total commitment, contemporary courts may not knowingly accept converts without virtual certainty of total commitment to full religious Orthodox observance. Without this certainty, contemporary rabbinic courts are not, to his view, authorized agents to apply discretion to accept converts who might be less than fully committed to full Orthodox practice and belief.165 Since contemporary rabbis are not validly ordained [semuchin], any applied discretion is an illegitimate extension of judicial authority. In point of fact, Avigdor's claim that post-talmudic rabbis are not authorized to exercise discretion is a very innovative position.
For Avigdor, requests for conversions in response to intermarriages must be rejected. Children who were circumcised and who were given a Jewish consciousness and who speak Yiddish are to be accepted as candidates for conversion.166 He does not cite, much less addresses, Maimonides' ruling in Pe'er ha-Dor which, in fairness, may not have been in his possession. But he was certainly aware of Hoffmann's and Chayyim Oizer's responsa, neither of whom expressed, or for that matter anticipated, Avigdor's167 claim that the lack of "traditional" ordination on the part of contemporary rabbis invalidates rabbinic discretion. I suspect that Avigdor's halakhic rhetoric is really a political gesture designed to distance the parochial or sectarian Orthodox community from contamination by contact with non-Orthodox culture.
In the scientific literature on the sociology of religious communities, a distinction is made between churches and sects. Churches limit tension with their environment, while sects emphasize tension with their environments. When a religious body has no beliefs or practices setting it apart from its environment, no tension will exist.168 Churches are religious bodies in a relatively low state of tension with their environments. Sects are religious bodies with a relatively high state of tension with their environments.169 Haredi Orthodoxy, which is most adament in opposing relaxed conversion standards, fits the sectarian model. According to one haredi testimony cited by Samuel C. Heilman, "I would define myself in terms of dikduk [scrupulousness] in mitsvas [religious commandments and observances]....We look to be machmir [strict] when we can....We eat shmura matsah when our parents just ate regular matsa. We eat glatt kosher when in the old days they were happy to eat any kosher....We don't make compromises anymore."170
A rosh yeshiva interviewed by Heilman claimed that exposure to secularity is, by definition, contaminating because it diminishes the soldiers' commitment to Judaism.171 "It is the so-called "centrist," or "modern" Orthodox who are firmly attached to the parochialities of Orthodoxy without being remote from or untouched by more cosmopolitan connections, to most dramatically display the character of modern Jewish Orthodoxy."172
When this author published, in a popular Jewish newspaper,173a supportive response to the Ne'eman Commission's proposal for relaxed conversion standards in Israel that would include non-Orthodox rabbinic participation, a leading Orthodox decisor challenged the integrity of my position in a private communication, and ultimately my own integrity as a Jew. This leading decisor did not address Maimonides' doctrine of hora'at sha'ah, according to which it might be argued that it is better to accept the wrong of a flawed but valid conversion than to suffer the deleterious consequences of intermarriage. The argument that the liaison between a Jewish male and a non-Jewish woman is less grave a wrong than the sexual act with a Jewish menstruent ignores the fact that a Jewish family line will be lost to the Jewish people. This scenario is precisely the case of Maimonides' dispensation for the conversion of a Jewish man's non-Jewish consort. If non-Orthodox rabbis perform conversion rituals without any commitment to commandedness on the part of the officiating rabbis,174 then non-Jews will enter the Jewish community under the illusion that they are Jews.
This scenario must be avoided at all cost, unless Orthodoxy views itself as a sect and not as a church and has decided to view the not yet Orthodox only as a pool for potential converts and philanthropic largesse. While a decisor has a right to reject the Maimonidean dispensation regarding hora'at sha'ah in general and this application of the hora'at sha'ah doctrine in particular, integrity requires that the positions be examined and evaluated in open, public discussion, without suppression. When the integrity of the Jewish people is at stake, the rule of hora'at sha'ah must be invoked. The well known narrative regarding the Temple's destruction provides a clear canonical statement that the physical, material, and spiritual health of Jews and the Jewish polity require the suspension of Jewish law.175 A host inadvertently invited his enemy, Bar Qamtsa, instead of his friend, Qamtsa, to a party. The ungracious host would not allow his enemy to remain at the party, and had him expelled. The great rabbis who were present said nothing regarding the altercation. Consequently, the vengeful and furious Bar Qamtsa told the Romans that "the Jews are in rebellion." Ever zealous of judicial procedure, in ironic dissimilarity to the rabbis, the Romans demanded proof in support of the allegation.
Realizing that the cultic discipline of Roman pagans is less rigorous than Jewish law, Bar Qamtsa "informed" the Romans that the Jews would no longer honor the offerings sent by the Romans to the Jerusalem Temple. In addition, Bar Qamtsa himself inflicted a lip blemish on the animal that for the Romans would not disqualify the animal and would therefore go unnoticed, but would, according to halakhah, be a disqualifying blemish. After inspecting the animal and finding the blemish, the rabbis were in a quandary. The rabbis thought to make the offering anyway, because of shalom malkhut, or political necessity, which is itself a variant of the hora'at sha'ah principle. However, the taboo of offering a blemished animal was psychologically too offensive to be entertained by Zechariah b. Avqulus.176
The informant, Bar Qamtsa, should not be assassinated because the inflicting of a blemish on a sacred animal is not a capital offense. The Talmud concludes, with ironic sarcasm, that rabbinic "piety" was responsible for the Temple's ultimate destruction. In Torah law, rites are commandments of the Commander, and not magical cult fraught with enchantments. When lives are in danger, even the sanctuary must be violated, as demanded by Jewish law. This narrative underscores the critical lesson that case law and code law are not identical. When there are no extenuating circumstances, code law is always normative. If, however, the consequences of obeying the code law threaten the physical or spiritual integrity of the Jewish polity, then hora'at sha'ah legislation is mandated, not as a relaxation of the law but as its appropriate and necessary application in extreme circumstances.
Jewish law is not sectarian. Sinning Jews remain Jews.177 God alone is the ultimate judge of actions, beliefs, and character.178 Keeping Jews within the community is a more pressing end than ritual observance. Just as one Shabbat must be violated in order that many Shabbatot may be properly observed, a person who leaves the Jewish community is an irretrievable loss to the Jewish community. The Maimonidean approach allows a relaxation of standards in order to preserve the integrity of the Jewish people in the Jewish state which must function as a church and not a sect. As long as technically correct standards for conversion are observed, current emergency realities require relaxed standards. Those who view Israel's polity as a church, which is open to all whom the legal order technically defines as a member, will apply the legal organs179 authorized by the polity's Torah to nullify preexisting law when necessary180 in order to preserve the demographic integrity of that polity. Since it is forbidden to distance oneself from the community,181 reconstructing Judaism as a sect which removes itself from the community as opposed to a church which embraces the entire community actually reforms the halakhic tradition.182 The designation of a given Jewish community, or "Israel,"183 and the elite that is empowered to make these judgments, are ultimately determined by political rather than legal considerations.184
A disagreement undertaken for the sake of Heaven is, for the sages, destined to endure.185 Since the Ne'eman Commission and the Israeli army conversion court apply relaxed conversion standards, this essay's polemic might incorrectly be seen as a mere theoretical exercise. By empowering Orthodox Judaism to remain a "church," as required by its canonical, foundation documents, and by preventing Judaism from being reformed into a sect, Orthodoxy might conserve canonical Judaism's original construction of reality. The hora'at sha'ah principle is eloquent testimony that the Sages did not view Judaism as a sect because its concern was for the integrity of the polity and not the sectarian salvation of the elect.
* * *
1. Lev. 18:5.
2. Rashi, ad loc.
3. Rashbam, ad loc.
4. Deuteronomy 11:21 and 22:6-7.
5. Hilkhot Teshuba 8:4, where Maimonides lists some of the idioms which refer to the eternity to come. I suspect that for Maimonides, this idiom would be a metaphor that refers to eternity, which is the biblical sense of 'olam.
6. The Hebrew word 'olam means "eternity" as well as "world." See mSan 10:1, and the proof text from Isaiah 60:21 is cited to show that the word 'olam here means the former and not world. See also Tiferet Yisrael to this Mishnah. bHullin 142 end, indicates the empirical view that it does not appear that retribution in fact does take place in this world. For an excellent survey of the rabbinic views on this subject, see Yaakov Elman, "The Contribution of Rabbinic Thought to a Theology of Misfortune," ed., Shalom Carmy, Jewish Perspectives on the Experience of Suffering (Northvale, NJ: Jason Aronson, 1999), pp. 155-213, for sources and discussion.
7. bYoma 85b and bSan 74a.
8. Maimonides regards the surrender of oneself to martyrdom when not required by Jewish law to be a most grievous offense. Hilkhot Yesodei ha-Torah 5:1 and Hilkhot Shabbat 2:4. See also Iggeret ha-Shmad (Jerusalem: Rav Kook, 1987), pp. 56-60.
9. Avoda Zarah literally means "hated" service, or service unauthorized by God. This was the sin of Nadav and Avihu (Leviticus 10:1). This service was hated because it was invented and unauthorized, and is therefore false religion. Likewise, the Hebrew root nkr not only means foreign, but as in the Akkadian nakarum, hated. See Psalms 137:3-4, how can we sing the Lord's song on a foreign or, given the context, hated land.
10. bSan 74a.
11. Hilkhot Yesodei ha-Torah 5:2.
12. Gen. 1:27.
13. Moreh Nebuchim 1:1.
14. Lev. 19:18.
15. Hilkhot Avoda Zara 1:1-2. Similarly, if a wicked ruler asks a Jew to violate any Jewish usage as a public demonstration of covenantal infidelity, the Jew is likewise obliged to surrender to martyrdom (Hilkhot Yesodei ha-Torah 5:3). By denying the Torah's force, one is denying God by obeying a human who commands the denial of God. This offense is identical to avoda zarah, which is hated, invented, and therefore false religion. See also the discussion in Jose Faur, 'Iyyunim be-Mishne Torah le-ha-Rambam (Jerusalem: Rav Kook, 1978), pp. 237-238.
16. Tsebi Hirsch Chayes, "Torat ha-Nevi'im" in Kol Kitvei Maharits Chayes (Jerusalem: Divrei Hachamim, 1958), vol. I, chap. 3, pp. 23-28.
17. Chayes enumerates what he takes to be nine biblical instances of this principle at supra., 27-28. Chayes assumes the Orthodox doctrine that the Pentateuch came to closure in the time of Moses, and possibly Joshua. Since the instances mentioned above all deal with acts forbidden by Moses' Torah, it is posited that these acts were driven by emergency circumstances. Critical scholars will contend that the normative Pentateuchal material is actually later than the life situation of the historical narratives and reflect a later stage in the evolution of Israelite religion.
18. Menahem Elon, Ha-Mishpat ha-'Ivri (Jerusalem: Magnes, 1973), p. 2:437.
19. Supra. , 2:238.
20. Deuteronomy 12:13-14.
21. bZevahim 119b, Maimonides, Hilkhot bet ha-Behira 1:3.
22. Judges 13:19.
23. I Kings 18:34-38. I suspect that the rabbis used this narrative as an asmachta, or rhetorical support precedent for the hora'at sha'ah principle. The rabbis took the idiom "you shall live by them" not only to be a directive to live according to the law, but also as a precedent that the Torah is a life-preferring law. Elijah's hora'at sha'ah act was the slaughter alone. The fire that came down from heaven is a reflection of the fact that what was to initiate the Israelite cult was to come from Heaven, and not human agency. The human agency of Nadav and Avihu was precisely the offending act that rendered their fire a hated fire, or eish zarah. Leviticus 9 outlines the cultic order of the day with the leitmotif phrase, "as the Lord commanded," and that a fire would descend from heaven (v. 24). Nadav and Avihu did not act "as the Lord commanded," but instead offered their own fire. It is in this narrative complex that intuition, however intensely felt, is denied normative value. Even a prophet may not claim that the inspiration to abrogate a law is valid, unless there is a clear and present reason why a law may be suspended for the moment.
24. Deuteronomy 13:16 refers to a "prophet" who urges the Israelites to engage in hated or unauthorized worship, which may never be done, even in the case of emergency. Deuteronomy 18:18-22 only authorizes the prophet to express in human language what God has required. Maimonides explains that the prophet is not permitted to invent or promulgate laws with the claim that he is in possession of a new or continuing revelation or the institution of a new religion or law. The prophet only takes Divine reminders to the people to obey oral law (Hilkhot Yesodei ha-Torah 9:1-4). However, in emergency situations, the prophet may rule that one suspend the law for the moment (le-fe sha'ah) but not uproot, or abrogate ('aqar) the law.
25. bYebamot 90b.
26. Encyclopaedia ha-Talmudit 8:512-515. Several examples cited here are also examined by Chayes. Of interest in this study is not the rabbinic resolution of apparently conflicting scriptural voices and traditions, but rabbinic Judaism's exploiting this exegetical problem to affirm the authority and to create the legal instrument for the court to suspend Jewish law on policy grounds. The court is permitted to uproot Torah law even if its authority and jurisdiction is deficient relative to its predecessors and the court ought to do so in times of crisis (she-at ha-dohaq) (8:25-26).
27. Numbers 15:32-33.
28. Numbers 15:34-35.
29. hora'at sha'ah hayeta, bSan 80b. For a law to be "law," it must, for Hans Kelsen, Pure Theory of Law, trans. Max Knight (Berkeley: University of California Press, 1978), be a coercive order (p. 33), the violation of which brings, in principle, sanctions (pp. 41-42).
30. Ezra 3:12-13.
31. bHorayot 6a.
32. Hilkhot Mamrim 2:4.
33. Normally, a court may not overrule a restrictive fence around the law enacted by a previous court if that court's decree was (a) preventative and (b) accepted by all Israel (Hilkhot Mamrim 2:3). And these otherwise non-reversible laws may, in case of emergency, be suspended.
34. In context, this means that the court is not abrogating Torah law, which is not within its power, but is suspending Torah law application for a term to be determined.
35. In number and/or learning than the earlier court. The court's authority rests in its plenum, not its people. From this idiom, it is apparent that Maimonides did not accept the doctrine of yeridat ha-dorot, or the diminution of the generations. See the discussion of Jose Faur, Golden Doves with Silver Dots (Bloomington: Indiana University Press, 1986), pp. 146-147, Menachem Kellner, Maimonides on the Decline of the Generations (Albany: SUNY Press, 1996); and Norman Lamm, Torah Umaddda: The Encounter between Religious Learning and Worldly Knowledge in the Jewish Tradition (Northvale, NJ: Jason Aronson, 1990), pp. 86-87. Because of "yeridat ha-dorot, an irreversible degeneration of the generations of intellect and spirit" (p. 86), it is maintained by some that the worldly models of Jewish antiquity, which addressed the cognate culture of their times, no longer provide a "usable past" for a secular present. When the sages teach that Jepthath, who was clearly inferior to Samuel, had similar authority in his time as Samuel, in spite of Judges 11:30, where he invokes a vow that resulted in the demise of his daughter (bRosh ha-Shanah 25b), they are denying the doctrine of the decline of generations.
36. Maimonides uses the idiom la'aqor here to indicate that the principle is valid and powerful, but adds the words hora'at sha'ah, for the moment, so that the abrogation be taken as temporary and not as an undermining of Torah law.
37. Hebrew, ra'u, is being rendered as ra'uy, as is seen or ought to be, or as fitting. The Aramaic cognate would be de-hazi. "Determination" would be to act as befits the situation.
38. In an oral communication, Joshua D. Yuter observed that the principle of returning the masses to religion is applied by Maimonides to individuals, in spite of the fact that in the Code, Maimonides refers to the masses.
39. Hebrew idiom, le-dorot, for generations, for to do so would be to change the changeless Torah.
40. I am rendering the root amr as command, following the Aramaic amar and Arabic amara. The oral Torah is given as a command. This usage also appears in biblical Hebrew, Psalms 33:9, ki hu amar va-yehi, tsivva va-ya'amod.
41. As in bYoma 85b and bSan 74a. In bSan 46a, it is reported that Shimon b. Shetah had eighty women killed she-lo ka-din, without adhering to the restraints of judicial procedure, and Eliezer b. Ya'aqov, in a beraita, reports a tradition (sham'ati) that the court flogs and punishes on occasion without adhering to legal niceties. Judicial intent is not to dispense with the law, but to insure compliance with the law. The reasoning is similar to the formal statute of hora'at sha'ah. The Talmud ad loc. reports that a man rode a horse on Shabbat and was stoned, and a man publicly engaged in sexual relations with his wife and was flogged. In order to strengthen communal discipline during the Greek period in Palestine and morality during Roman rule, the sages needed to enforce communal discipline and suspended the rights that Jewish law normally accords wrongdoers. In Hilkhot Sanhedrin 24:4, Maimonides codifies this ruling by affirming that the court has a right to flog those not legally liable for flogging and to execute those not legally liable to be executed in order to make a fence around the Torah, according "to what they deem to be appropriate, all as emergency legislation [i.e., hora'at sha'ah] and not as a fixed permanent law." Maimonides then cites the two precedents mentioned in the Talmud, ad loc. See also Responsa Hayyim be-Yad, n. 98. See also Responsa Avnei Neizer YD, n. 312, who outlines the parameters of hora'at sha'ah. For example, the principle is applied to punish offenders in terms of fines in exceptional circumstances, but not to pervert the normal procedures of Torah justice. While Shimon b. Shetah was pedantic to follow the rules of judicial procedure (mAbot 1:9, bSan 37b, and tSan 6:6), and even had his own son executed on the basis of perjured testimony (bSan 6:3), he nevertheless executed eighty witches in Ashkelon (mSan 6:4 and Maimonides, Hilkhot Sanhedrin 24:4). Were he to spare his son Shimon, he would also undermine the legal order. But were he not to execute the witches, he would allow the faith of the masses in monotheism to be undermined. hora'at sha'ah legislation focuses not only on the needs of the individual in talmudic Judaism, for if it did, Shimon b. Shetah, who lived a century before the destruction of 70 CE, would have spared his son.
42. Introduction to the Yad. This idiom means a reasonable tilt in favor of a position the logic of which cannot be proven logically but nevertheless appears to be conclusive. See also Hilkhot Yesodei ha-Torah 5:7, Hilkhot Zechiyya u-Mattana 6:14, and Hilkhot Sanhedrin 24:1 and 3, where the judge is obliged to apply his sense of what is reasonable. In an exceptionally enlightening lecture to the Rabbinical Council of America on May 31, 2000, Aharon Lichtenstein called the listeners' attention to Maimonides, Hilkhot Gerushin 13:29, where Maimonides rules that one relies on two witnesses when the facts could not otherwise be ascertained. But when facts may be ascertained and one is certain of the actual facticity of an occurrence, i.e., the death of the husband, the judge is required to apply common sense.
43. bSan 56b and Hilkhot Mamrim 3:5. This reading was suggested to me by my revered teacher, Prof. Jose Faur.
44. bSan 97b.
45. Emunot ve-De'ot 8.
46. Iggeret Teiman, in Iggarot ha-Rambam (Jerusalem: Rav Kook, 1987), pp. 151-152.
47. bRosh ha-Shanah 33a.
48. Maimonides, Responsa, n. 256, Blau edition, pp. 474-475.
49. Cited in Ma'aseh Roqeah 1a, in Ovadia Yosef, Yehavveh Da'at 5:12. For R. Abraham b. ha-Rambam's explicit endorsement of post-talmudic hora'at sha'ah, see Responsa, n. 15.
50. Yehavveh Da'at 5:12
51. Hilkhot Mamrim 2:4
52. bBerachot 40b.
53. Maimonides, Responsa, n. 181, Blau, pp. 329-330.
54. bYebamot 84b.
55. Responsa Ri Migash, n. 103. Although Maimonides' tradition was transmitted through the school of Ri Migash, and Ri Migash rules that one is not permitted to violate rabbinic rules even when the reason for the rule does not apply, and Maimonides accepts this principle, Maimonides rules against Ri Migash because of the emergency nature of the case before him. See also Responsa of Rishba attributed to Ramban, n. 119, 121, Responsa of Rishba, 3:384, and Responsa of Rivash, n. 241.
56. Kelsen, p. 211.
57. Hilkhot Mamrim 2:8. In the Conservative Jewish community, the frequent breaks with classical Jewish law have undermined the sense of its binding quality. In Emet ve-Emunah: Statement of Principles of Conservative Judaism (New York: JTSA, Rabbinical Assembly, United Synagogue of America, Women's League for Conservative Judaism, and Federation of Jewish Men's Clubs, 1990), "for many Conservative Jews, Halakhah is indispensable first and foremost because it is what the Jewish community understands God's will to be. Moreover, it is a concrete expression of our ongoing encounter with God....The sanctity and authority of Halakhah attaches to the body of law, not to each law separately, [sic] for throughout Jewish history Halakhah has been subject to change" (pp. 21-22). The authors do not claim that God gave the law or that the law binds. They express their equivocation in descriptive rather than prescriptive voice, and by affirming that the laws changed, they make the implicit claim that because changes in usage occurred in the past, the changes they advocate are ipso facto valid. This assumption rests on the notion that the only normative force in their Judaism is the normative habit of the community, and not the command of the Commander.
58. The Tur, ad loc., adds she-hu tsorech sha'ah, as required by the circumstances of the moment.
59. Shulhan Aruch Hoshen Mishpat 2. See also Teshubot ha-Mahariq, n. 188.
60. See Tosafot to bBerachot 31b, where the gadol ha-dor is everyone's mentor (s.v. moreh halakhah). For Maimonides, it is the first among equals in the Sanhedrin. See Introduction to the Code. The notion that the great rabbis of our time possess the authority of the Sanhedrin is imputed to the Brisker Rabbi. See Jewish Observer 15:10 (1981):30. In his important essay opposing feminist tendencies within Orthodoxy, Herschel Schechter offers twelve reasons why feminist liturgical changes must be rejected, and then adds that "it is known that two great sages of our generation, to whose discipline we are bound, our teacher the genius Joseph B. Soloveitchik and our teacher the great Rabbi Moshe Feinstein, both vigorously opposed all of these matters [feminist liturgical change]." Be-'Iqvei ha-Tson: Berurei Halakhah (Jerusalem: Bet Midrash of Flatbush Press, 5757), p. 36. In his Nefesh ha-Rav (Jerusalem: Reishit Yerushalayim, 5754), p. 7, Schechter the student must submit to the teacher, which is the necessary condition for the metaphysical connection for tradition to be transmitted (p. 54). He refers to the carriers of tradition as ba'alei ha-mesorah (p. 13). To this view, there is indeed a doctrine of continuous revelation. Schechter concedes, on one hand, "that the law is not frozen" (p. 26), yet it is "forbidden to change customs" (p. 31). The authority for halakhic change seems to reside in the intuition of the gedolei ha-dor, and not in the people.
61. Rema to Shulhan Aruch Hoshen Mishpat 2.
62. Rema to Shulhan Aruch Yoreh De'ah 1:1.
63. Responsa of Rishba 1:242.
64. Isaiah 2:3.
65. See Kelsen, pp. 150-158.
66. In a lecture to the Rabbinical Council of America, Schechter suggested that community rabbis are no longer poseqim, or decisors, but are policemen, whose job it is to enforce the rulings of the great rabbis.
67. The elites of post-talmudic Judaism who claim to be the heir of rabbinic Judaism treat the rabbinic canon as formative, or as a rhetorical resource, and make the political implied statement that they continue the tradition of the canon. For those who make the claim that the talmudic canon is closed, the text itself obliges. See Moshe Halbertal, People of the Book: Canon, Meaning, and Authority (Cambridge, 1997), p. 3.
68. Teshuvot ha-Mahariq, n. 32. In terms current in the contemporary Orthodox academy, the locus of authority shifts from the heftsa of canonical text to the gavra, or person of canonical stature.
69. Teshubot Bet Yehuda Hoshen Mishpat 1. Yair Bacharach concedes that in principle an abortion might be permitted in a certain instance, but public policy considerations rendered, at his discretion, the abortion to be contextually improper. Responsa Havvot Yair, n. 31.
70. bBerachot 54b.
71. Tosafot and Rosh, ad loc.
72. The Hebrew formula de'u na rabbotai is the formula used in the nullification of vows, and customs are taken by many authorities to be the virtual equivalent of vows.
73. Responsa Hatam Sofer 1:51.
74. Hilkhot Yesodei ha-Torah 1:3, rules that one must be willing to die rather than violate any law whatsoever if the authorities are trying to undermine Torah law. Therefore, Sofer's treatment of custom as if it were statutory law must be understood in historical context. In Ashkenazic culture, which puts a higher premium on custom than does Sephardic culture, a fixed practice becomes virtually canonical. See Israel Ta Shema, Minhag Ashkenaz ha-Qadmo (Jerusalem: Magnes, 5754), pp. 35-42.
75. In an oral communication, my teacher, colleague, and friend, Elazar M. Teitz, rabbi of Elizabeth, New Jersey, suggested that the blessing recitation in this instance would be a be-di'avad rather than hora'at sha'ah ruling because the letter of the law, 'iqqar ha-din, would not be violated.
76. Responsa Mishpat Kohen, n. 71. See also n. 73 and 74, where Kook invokes the hora'at sha'ah principle.
77. Responsa Mishpetei Kohen, n. 143. Unlike Maimonides' application of she'at gezeira in Hilkhot Yesodei ha-Torah 5:3, when the oppressor attempts to undermine Jewish religious commitment, the shemita context is economic and clearly within the hora'at sha'ah rubric.
78. Responsa Mishpetei Kohen, n. 143. Other than in emergency ruling, Kook's positions reflect the standard and not very lenient rulings of his Eastern European traditions.
79. See Meiri to bSan 52b. I suspect that the doctrine that the state stands in place of the king is de facto, and not de jure. Should this doctrine be taken de jure, it would undermine the Jewish doctrine of mashiach, or anointed king of Israel.
80. Mishpetei Kohen, n. 144. Eliezer Waldenberg concedes that the authority to make these enactments exists, but only rabbis of piety as well as wisdom may invoke these rulings. This reservation is dissimilar to Maimonides' concern for the slippery slope, as in Hilkhot Mamrim 2:8, because Maimonides believes that the authority resides in any court. Rather, Waldenberg's view is closer to the position that only the gadol ha-dor, whomever that may be, may invoke this principle (Tsits Eliezer 6:42). Like Kook, Waldenberg affirms that the shemita dispensation was enacted by all our great rabbis, and not as an abrogation of the law but as a hora'at sha'ah (Tsits Eliezer 4:10 ).
81. Deuteronomy 17:15.
82. Sifre 67 and 157. On the basis of this Sifre, Maimonides paraphrases the former source in his code, Melachim 1:1.
83. See his commentary to Deuteronomy 17:14 and I Sam 8:4. See also Aristotle, Politics III x.6 and the discussion of Ben Zion Netanyahu, Don Isaac Abravanel: Statesman and Philosopher (Philadelphia: Jewish Publication Society, 1968), pp. 173-180.
84. Deuteronomy 17:9. Curiously, Kook chose not to apply hora'at sha'ah legislation to the conversion issue. See 'Ezrat Kohen 18.
85. Deuteronomy 17:10.
86. R. Isaac Luria, Sha'ar ha-kavvanot 52:4; and Moshe Zakuto, Responsa, n. 30.
87. See Responsa Yehavveh Da'at, n. 1:46.
88. Responsa Hatam Sofer, OH, n. 28.
89. While not insisting that the prayer platform be in the center of the synagogue, Feinstein's view regarding the necessity of the partition segregating the sexes was adamant. See Responsa Iggarot Moshe, OH, n 1:39.
90. Responsa Iggarot Moshe, OH, n. 2:42.
91. bGittin 57b, bSan 96b.
92. bQiddushin 76b, in its comment on Deut. 17:15, which is the requirement to appoint a king, only rules that the king have Jewish pedigree. Sifre 157 states that the appoint must be a man, and not a woman. Maimonides cites this Sifre in Hilkhot Melachim 1:5, where he adds that all leadership positions, and not just the king's throne, belongs to men. I have been unable to find any statement in canonical rabbinic literature that legislates this sentiment, which Maimonides adds to the original Sifre ruling as though it is a canonical statement. Feinstein permits a woman to serve as a kashrut supervisor precisely because the Maimonidean gloss to the canonical Sifre is not itself canonical. See Iggarot Moshe Yoreh Deah 2:44.
93. Responsa Iggarot Moshe YD, n. 4:26. See, however, Ben Zion Uzziel, Pisqei Uzziel, n. 43. In an oral communication, Joshua D. Yuter observed that getting the best person for the office to serve the Jewish people which would serve to return the masses to the law, fits the Maimondean requirement for invoking the hora'at sha'ah principle.
94. bBaba Mezia 38a. See Responsa Binyamin Ze'ev 361.
95. Elon, 3:737.
96. Gloss to Maimonides, Ma'aser Sheni 1:3.
97. Responsa, Mahariq, 102, requires the custom of "old timers," or great sages of hoary antiquity. As noted above, in Teshuvot ha-Mahariq, n. 32, Colon protects the honor of the rabbi who dishonored a woman by making her pregnant. A custom of a latter day rabbi may, for Colon, override a canonical statute because the rabbi is a canonical person. See also Moses Isserlein, Responsa Terumat ha-Deshen 1:342.
98. Responsa 55:10.
99. Responsa Yachin u-Bo'az 1:118.
100. Responsa Rivash 105. For Rivash and others, a custom may tip the scales in ritual matters only when the law is unclear, but when the law is clear, a custom lacks this authority. Perhaps this ruling is underlain by the principle that doubts in rabbinic law may be resolved with leniency, allowing local usage to fill a gap in the law.
101. Responsa Binyamin Zeev Mattatia 1:361, who makes the very explicit point that only in monetary matters does the rule "a custom overrides a law" apply.
102. Sara Epstein Weinstein's Piety and Fanaticism: Rabbinic Criticism of Religious Stringency (Northvale, NJ: Jason Aronson, 1997), originally conceived as a Ph.D. dissertation at New York University, summarizes and then defines how the Judaism of the Dual Torah opposed excessive ritual piety as misplaced at best and arrogant at worst. The author's research was occasioned by "the atmosphere of extreme stringency that prevails within today's Orthodox Jewish community" (p. 3).
103. J. David Bleich, "The Conversion Crisis," in his Contemporary Halakhic Problems (New York: KTAV, 1977), vol. 1, pp. 270-298.
104. Ibid. , p. 271.
106. bYebamot 24b, cited in Bleich, p. 272.
107. Hilkhot Issurei Bi'ah 13:14-15.
108. Bleich adds that "Rabbi Roth's description is an accurate characterization of those proselytes who undertake conversion in order to facilitate marriage to a Jewish spouse" (Bleich, p. 275).
109. Kol Mevasser 2:8.
110. Bleich, loc. cit. These authorities are luminaries no less than Solomon Kluger, Tuv Ta'am ve-Da'at 1:30; Eliezer Deutch, Peri ha-Sadeh 2:3; Ya'aqob Weinberg, Seridei Eysh 3:50; and Chayyim Oizer Grodzinski, Ahiezer 3:28. R. Bleich later calls attention to Chayyim Oizer's distinction between acceptance and observance of the commandments (Ahiezer 3:26, cited in Bleich, p. 281). Chayyim Oizer's approach does not differ materially from Kirshbaum's, but since the former is a canonical sage, his lenient ruling is not discussed. Since Kirschbaum is not known as a canonical sage, it is not impudent to call his ruling and, by implication, himself, into question in Bleich's Judaism.
111. Moshe Feinstein, Iggrot Moshe Eben ha-Ezer 2:4, and Azriel Hildesheimer, Teshuvot Rabbi Azriel 234, who refuses to recognize the intervention of a Reform rabbi as a normative consideration.
112. Menahem Meshiv 42.
113. Helqat Ya'aqob 1:13.
114. bQiddushin 21b.
115. There is a tendency to identify the authentic law with that which is most generally accepted. While according to legal theory, Hoffmann's view is not explicitly described as outside the pale, the fact that it is presented as "radical" is a code word indicating that "insiders" to Torah will view the ruling to be outside the pale of normative application.
116. Bleich, p. 277. Emphasis mine. Since Bleich's Orthodoxy eschews innovation, Bleich uses this idiom as a code word rendering the decision of an acceptable authority unacceptable.
117. However, if Bleich believed that the norms explicitly encoded in the talmudic text are universally and uniformly binding, he would also oppose the dispensation for dancing and clapping on the Sabbath. See bBetsa 30a. The Tosafitic dispensation, ad loc., while historically authentic, does not fit within the canons of talmudic law. See Responsa Nodeh bi-Yehuda, 2nd ed., OH, 49. See also the deft treatment in Responsa Iggarot Moshe, OH, 2:100, in which Moshe avoids criticizing the usage of otherwise Orthodox Jews, but makes it plain that such dancing is in stark violation of Jewish law. See also Bleich's comments on shaving on the intermediate days of the festivals, in Contemporary Halakhic Problems, pp. 48-53. The Talmud rules that one does not shave on the intermediate day of the festival "lest he enter the festival disheveled" (bMo'ed Qatan 13b). Bleich cites Jacob Tam, who is cited in Tur, OH, 531, who rules that if one shaved before the festival, then the restriction no longer applies. If, however, talmudic law is inviolate, then the law applies even if the reason for promulgation does not. In his treatment of women lighting Sabbath candles, and the late Lubavitcher Rebbe M.M. Schneerson's ruling that all women should recite the blessing, the commandment falls on the house, or for the Rema, household, and not the individual. Schneersons' view is clearly not normative, but Bleich treats his position very delicately. Contemporary Halakhic Problems II (New York: KTAV, 1983), pp. 6-12.
118. From perspective of pure law, this reasoning is unconvincing. Engaging in sexual relations with a non-Jewish woman, while biblically forbidden, is a simple lav, or negative command. Deuteronomy 7:3, bAvoda Zarah 36b, Maimonides, Hilkhot Issurei Bi'ah 12:1. If however, the non-Jewish woman undergoes a conversion, becoming thereby Jewish, all of Jewish law would at that instant be binding on her. And at that moment, the biblical prohibition of engaging in a sexual act with a menstruant would apply. See Leviticus 18:19 and mKereitot 1:1, which lists such an act as the highest grade of prohibition, even more grievous than intermarriage. Bleich cites, but does not examine, Maimonides' responsum in Pe'er ha-Dor, n. 132, to which we will return, below.
119. Leviticus 19:14, TB Pesahim 22b, TB Mo'ed Qatan 5a, 17a, and B. Mezia 75b. See also Ahiezer 3:72.
120. Iggarot Moshe Yoreh De'ah 1:157, dated 1929.
121. Ibid., 160. Feinstein adds that in America, people are so non-observant and ignorant that they may, in good faith, have accepted the commandments as they know them, however inadequate that knowledge might be. This reasoning is not unlike Ahiezer 3:26.
122. Mishpetei Uzziel Hoshen Mishpat 3:46 and Pisqei Uzziel, n. 51-52.
123. Bleich, p. 365.
124. Mishpetei Uzziel Eben ha-Ezer 18 and Pisqei Uzziel, n. 59-67. For an excellent explication of Uzziel's method and mind in general, see Marc D. Angel, Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uzziel (Northvale, NJ: Jason Aronson,1999). See also Marc Angel, "Another Halakhic Approach to Conversions," Tradition 12 (Spring/Summer 1972):107-113, for a study of Uzziel's treatment of this issue.
125. Bleich, p. 295.
126. See the summary of Goren's remarks reported in weekend supplement to Hatzofe, 15 Sivan 5730, in Bleich, pp. 293-294. Goren's position is that the Palestinian tradition was lenient and the Babylonian tradition was stringent with regard to accepting converts, arguing that conversions in Israel are by definition "for the sake of Heaven." Bleich astutely refers to the Seidman case, in which the conversion candidate was living, and intended to continue to live on a non-religious kibbutz, which would hardly qualify as a situation that may be construed as "for the sake of heaven." Mrs. Seidman's intended was a kohen, which would be forbidden to her in marriage (Leviticus 21:7, bQiddushin 45a, and Maimonides, Hilkhot Ishut 1:7. When Palestinian and Babylonian rulings conflict, the law follows the Babylonian ruling, based on the rulings of Rabina and Rab Ashi, the last ultimate decisors of talmudic law (bBaba Mezia 86a). The rulings of Rabbis Hoffmann, Grodzinki, Kluger, Uzziel, and Isaac Unterman in No'am 14 (5731), cited in Bleich, p. 294, n. 61, all deal with hora'at sha'ah realities.
127. The learned questioner deftly and aptly alludes to the biblical rule of the captive non-Jewish woman whose presence elicits illicit lust on the part of the Jewish warrior, and the Torah, recognizing the realities of passion, reluctantly allows the woman to be converted and married to her conqueror (Deuteronomy 21:11). The idiom yashar be-'enav ya'aseh appears in Deuteronomy 12:8, describing the lawlessness of the wilderness sojourn, and the reality of lawlessness before there was a monarchy in Israel (Judges 17:6 and 21:25). The prophetic narrator in Judges exploits the Mosaic idiom, in the Torah book that commands that a king be anointed, to describe the anarchy that obtained in pre-monarchical Israel (Deuteronomy 17:15).
128. Tsarich le-garesha mi-yad. Since the women is not Jewish, there is no qiddishin, and therefore no need for a get, divorce, or gerushin. I therefore render the root GRSh according to its lexicon sense of expel.
129. bQiddushin 21b.
130. Maimonides' idiom le-garesh et ha-ammah ha-zot, alludes to Sarah's demand that the Egyptian woman, not mentioned here by name, be expelled (Genesis 21:10).
131. bYebamot 24b. The citation in Ovadia Yosef's edition, 21b, is a misprint.
132. When living together derech hatnut, as man and wife, as Jew and non-Jew, the living together is a continuous act of sin. The rabbinic violation of marrying after their separation and conversion of the woman remains a forbidden act, but, once done, will not bring the court to separate the violating couple because the couple is no longer in continuous public violation of Torah norms.
133. bBaba Qama 66b, Maimonidies, Hilkhot Gezela ve-Abeida 1:5 and 2:2, 6, 8, and discussion in Pe'er ha-Dor, n. 132.
134. Psalms 119:126. While the historical plain sense of the passage presents a call for the faithful to stand for God's law because the others, the unfaithful lawbreakers, have nullified the Torah, the rabbinic derashah in bBerachot 54a, 63a, 69a, bGittin 69a, bTemura 14b, and bTammid 27b, take the passage to mean that the law may be suspended in emergencies. See Responsa Heichal Yitzkak Orah Hayyim 1:20.
135. The rationale is very similar to the case, cited above, of the qatlanit. Responsa, n. 181.
136. To be explained, below.
137. Leviticus 18:19 and Hilkhot Issurei Bi'ah 4:1-2.
138. Deuteronomy 7:3 and bAvodah Zara 36b.
139. Maimonides, Hilkhot Issurei Bi'ah 12:2. This union is not a marriage, ishut, but akin to marriage, derech ishut.
140. Hilkhot Issurei Bi'ah 12:7-8.
141. Hilkhot Mamrim 2:4.
142. Jerusalem 5754.
143. Yabi'a 'Omer 8 YD 24, 33-34.
144. See Jonathan Sacks, "Creativity and Innovation in Halakhah," in Moshe Z. Sokol, ed., Rabbinic Authority and Personal Autonomy (Northvale, NJ: Jason Aronson,1992), who argues the principle, "the judge must rule on the basis of what his eyes see" (bNiddah 20b, bSan 6b, and bBaba Batra 130b), p. 130. Sacks takes this passage to mean that the decisor is not bound to an uncritical or "overly stringent" reading of precedent as found in the latter day authorities. He then cites the Maharal, Netivot 'Olam. Netiv Torah 15, who rules that one should base the law on the Talmud (p. 131). Sacks then credits his teacher, Nahum Rabinovitch, an Ashkenazic Maimonidean. The implication is that the trajectory of Jewish religious decision-making has made post-talmudic precedent de facto normative. But ultimately, talmudic law is binding, and not the ad hoc rulings of local customs. The assumptions made by Rabbi Sacks, Rabinovitch, and ultimately this essay, is the Maimonidean model that Judaism is a law with rules. The fact that a rabbi ruled in a certain way does not restrict the sage in any age to confront anew the ancient sources. Moshe Feinstein conceded as much in his introduction to Iggarot Moshe, Orah Hayyim I (Introduction, 3-4). It should be noted that Feinstein is, in practice, much more tied to precedent.
145. Aaron Kirschenbaum, "Subjectivity in Rabbinic Decision Making," in Sokol, p. 61.
146. Aristotle, Nicomachean Ethics, 1137625, cited in Kirschenbaum, p. 62.
147. Kirschenbaum, p. 63.
148. Ibid., p. 64.
149. Ibid. It should be noted that God's mind is not given to explications, but God's Torah text is. The thrust of the Ochnai oven legend is that even in the unlikeliest of scenarios whereby God actually informs an individual rabbi with a divinely definitive endorsement of a legal intuition, the intuition, the endorsement, and the rulings are still invalid. See bBaba Mezia 59b and my "Legal Positivism and Contemporary Legal Discourse," Jewish Law Annual 6 (1987), republished in Martin P. Golding, ed., Jewish Law and Legal Theory (New York: NYU Press, 1993), pp. 162-163, n. 51.
150. Ibid. , p. 66.
151. Ibid. , p. 86. This idiom sounds uncomfortably close to John 1:1 and the doctrine of incarnation and the mystical assignation of flesh to God, as evidenced by the mystical name of God, Diakarnosa. This insight was provided by Prof. Jose Faur in an oral communication.
152. Ibid., p. 90. Professor Kirschenbaum was my first graduate professor of Jewish law at the Jewish Theological Seminary in 1969. Both of us left the Conservative community, but each of us took two very different mindsets from that world. The notion of continuous revelation, which ultimately leads to no criteria for revelation, was taken by Kirschenbaum. The historical, philological parsing of the texts of revelation, which are the repository for the sources of law, is what is required to understand the will of the Lawgiver. For Kirschenbaum, the ultimate authority is the legal person. For the Maimonidean approach that Kirschenbaum rejects, authority resides in the legal norm encoded in the canonical text that is not in heaven but is open to all to parse, evaluate, and apply. In this regard, his approach is similar to Colon's.
153. Deuteronomy 17:11-12, bSan 87a, Maimonides, Hilkhot Mamrim 1:1-2, Jose Faur, 'Iyyunim be-Mishnah Torah le-ha-Rambam (Jerusalem: Rav Kook, 1978), pp. 19-24, and especially the succinct summary on p. 25. That Torah was (a) the world of the Lord, and (b) emanating from Jerusalem, is evidenced by Isaiah 2:3.
154. Deuteronomy 30:12, bEruvin 55a, bBaba Mezia 59b.
155. Hilkhot Yesodei ha-Torah 9:1.
156. Ibid., 9:4.
157. Norman Cantor, The Civilization of the Middle Ages: The Life and Death of a Civilization (New York: HarperCollins, 1993), p. 309.
158. A survey of the idiom daas Torah in R Feinstein's Responsa indicates that for Feinstein, daas Torah refers to communal religious policy, not statutory law. See Gershon Bacon, "Da'at Torah ve-Hevlei Mashiah," Tarbiz, 52:3 (1983):497-508; and Alan J. Yuter, "Positivist Rhetoric and its Functions in Haredi Orthodoxy," Jewish Political Studies Review, 8:1&2 (Spring 1996):127-188. See a contrary view in Berel Wein, "Daas Torah: An Ancient Definition of Authority and Responsibility in Jewish Life," Jewish Observer, 27:7 (1994). Note that Wein shamelessly cites Joseph Soloveitchik as an advocate of Daas Torah in a eulogy for Chaim Oizer when he knows full well that this was not Soloveitchik's mature position (p. 7). Wein claims that the doctrine is old when, in point of fact, it marks a fundamental deviation from Judaism's canonical statement because it is precisely this contrived doctrine that "authorizes" the shift from canonical text to canonical person.
159. The intuitional view is articulated by M. Twersky, grandson of J. Soloveitchik, in "A Glimpse of the Rav," Tradition, 30:3 (Summer 1996), who advocates this position eloquently. For Twersky, the proofs offered by R. Tam (of the Tosafot school) do not derive from "textual analysis, rather it flows from his Torah intuition" (p. 82). "Gedolei Torah (great charismatic authorities) who will take their place in the chain of Masorah [tradition]...possess a sharply honed Torah intuition" (p. 93), and he claims that his grandfather possessed "a 'visionary soul' and 'mystical intuition'" (p. 95).
160. Matthew 19:1-9 and the Marcean source, Mark 10:1-10. Jesus apparently "knew" the reason that moved Moses to altar God's law, because of the hardness of the Israelite heart. See Maimonides, Hilkhot Teshuva 3:8, where Maimonides defines as a kofer ba-Torah one who claims that it was Moses and not God who made a particular statement in the Torah.
161. Karl Marx, Capital: A Critical Analysis of Capitalist Production, ed., Frederick Engels (New York: International Publishers, 1967), pp. 86-87.
162. This phenomenon was noted, in different ways, by Joseph B. Soloveitchik, in his "Shenei Sugei Masoret" (two types of tradition), in Shiurim le-Zecher Abba Mori (Jerusalem: Akiva Yosef, 1993), and his son, Haym Soloveitchik, "Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy," Tradition, 28:4 (Summer 1994). For H. Soloveitchik, Orthodoxy has become too textual, and does not rely on mimetic culture (p. 71). He then astutely notes that "few texts are self-explanatory, submission meant obedience to their interpreters" (p. 96). What authentic Orthodox culture ought to be is determined by those who vie for control of its mimetic culture. His father believes that the book tradition and the culture tradition are both obligatory. This culture tradition or mimetic culture is, at best, a reification of the Law. When a simple reading of the texts yields an understanding that violates clear and unambiguous Torah law, Torah law is rejected and mimetic culture is affirmed as Torah. See TB Sota and Maimonides, Hilkhot Melachim 7:4, which require women to serve in war in defense of Jews living in the Holy Land. On the other hand, see Hazon Ish, Iggarot I, no. 111, pp. 122-123; "Voluntary National Service for Girls: Compromise of a Nation's Purity," Jewish Observer 4 (1971), p. 21; and Alfred Cohen, "Drafting Women for the Army," Journal of Halacha and Contemporary Society 16 (Fall 1988):26-43, who believes that the great rabbis have a right to suspend a literal reading of the law if the application violates mimetic culture sensibilities. These parochial Orthodox rabbis invoke da'as Torah, and not hora'at sha'ah, to justify their views.
The notion, to my mind and to the mind of Maimonides, that a custom created by the masses may override a talmudic law, is closer to the thought of Mordecai Kaplan's Reconstructionism than covenantal Judaism. That mimetic culture exists is, of course, a reality. Its normative valence needs to be defined before it is arbitrarily invoked as a value to be applied. According to Stuart Grant, an Orthodox rabbi and professional therapist, most Orthodox Jews observe what they do not because of a conscious decision to obey God's law, but because they do rites that identify them within a subgroup of the Orthodox community that provides them with identity (oral communication).
163. Shulhan Aruch Yoreh De'ah 288:2; 12.
164. Maimonides' bet din shel yahid. Introduction to the Yad denies this claim. It is ironic that some Orthodox rabbis are legal literalists when it suits their sense of culture, but, as in the case of women serving in the army, their culture suspends the law.
165. Ya'aqov Avigdor, "be-'Inyan Gerut," Hadarom 68-69 (Elul 5759): 6.
166. Avigdor is apparently referring to giving a Jewish consciousness to the children, or toda'ah yehudit. However, the use of Yiddish is not a canonical Jewish value, but it is a culture value. According to the oral Torah understanding of the written Torah, Torah is to be taught in leshon ha-Qodesh. See Sifre 46.
167. Parochializing innovations are pious because they are socially "more" Orthodox. Lenient "innovations" undermine the "otherness" of Orthodoxy and are therefore discouraged. See note 168, below.
168. This description fits non-Orthodox Jewish groups, for whom tension with the environment will impact negatively on community and congregational billing units. Haredi Judaism, as described by Samuel C. Heilman, Defenders of the Faith (New York: Schocken, 1992), sees its culture ideal "to be set apart from mainstream culture and remain steeped in Jewish texts and ways." This culture stands in opposition to "all that constitutes the modern Jewish condition" (p. 37). There has been little discussion regarding the fidelity of Haredi Judaism to the letter of Jewish law when its ethos and the halakhah are in conflict. See Joseph B. Soloveitchik, "Shenei Sugei Masoret," Shiurim le-Zecher Avi Mori (Jerusalem: Akiva Yosef, 5743), pp. 220-239, and Hayim Soloveitchik, "Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy," Tradition, 28:4 (1994), pp. 64-130. According to the former essay, two senses of tradition exist, and both are normative. According to the latter essay, Hayim Soloveitchik tries to address the fact that book culture, social culture, and Orthodox thought are occasionally very different dialects of culture. The premise which biases this paper is the notion that book culture, i.e., the dialect of culture encoded in canonical Jewish Oral Torah writing, is the "tradition" that is ultimately binding. Folk or mimetic culture is neither revelational nor covenantal.
169. Roger Finke and Rodney Stark, The Churching of America 1776-1990 (New Brunswick, NJ: Rutgers University Press, 1992), pp. 40-41. The authors are applying the principles of Richard H. Neibuhr, The Sources of Denominationalism (New York: Holt, 1929).
170. Heilman, p. 227. The preference for Yiddish over Hebrew is a parochialism that violates Jewish law. Jewish law, as noted above, requires the use of Hebrew in religious study, but so-called ultra-Orthodoxy avoids Hebrew speech in its educational system. Israel Eichler, the editor of ha-Mahaneh ha-Haredi, argues that he cannot serve in the Israeli army because "the army is a force that pulls people away from their being Jewish" (p. 102). According to bSotah 44b, there is no provision for conscientious objection to serving in the Israeli army. In "Of Criticism, Compromise, and Constructive Action," Rabbi Moshe Shemuel Shapiro reports that, at the Third International Conference of Agudas Yisroel, Isaac Zev Soloveitchik claimed that the Moetzes Gedolei ha-Torah is the "beis din of kelal Yisroel," and that "there is simply no middle ground" on such issues as the drafting of women (into the Israeli army). Here, too, there is no confrontation with the canonical sources cited above. If Haredi Orthodoxy's leaders are indeed the beis din of all Israel, they would have the right to overrule those Jewish laws that offend their reified cultural sensibilities. In order to deny the right of every Jew access to canonical texts, canonical people assert canonicity to their personal intuitions in order to supercede canonical rabbinic texts. See also bRH 14b, and Sara Epstein Weinstein, pp. 145-164, who argues that behavior that distances the individual from society was not approved by the sages. Furthermore, the sages maintained that a Jew remains a Jew, bSan 44a, and the prohibition of segregation from the community, bAbot 2:4, bTaanit 11a, and Maimonides, Hilkhot Teshuva 4:2.
171. Heilman, p. 270.
172. Samuel C. Heilman and Steven M. Cohen, Cosmopolitans and Parochials: Modern Orthodox Jews in America (Chicago: University of Chicago Press, 1989), p. 208.
173. "There is a Way, There is a Solution" (an analysis of the Ne'eman Report), in Jewish Post and Opinion, February 11, 1998, pp. 1, 8-10.
174. According to Solomon Schechter, "its [the Historical School's] attitude towards religion may be defined as an enlightened skepticism with a staunch conservatism which is not even wholly devoid of a certain mystical touch....It is not the mere revealed Bible that is of first importance to the Jew, but the Bible as it repeats itself in history, in other words, as it is interpreted by Tradition....The interpretation of Scripture of the Secondary Meaning is mainly a product of changing historical influences, it follows that the center of authority is actually removed from the Bible and placed in some living body....This living body, however, is not represented by any section of the nation, or any corporate priesthood, or Rabbihood, but by the collective conscience of Catholic Israel as embodied by the Universal Synagogue." Studies in Judaism. First Series (Philadelphia: Jewish Publication Society of America, 1915), p. xvii. In Schechter's system, there is no command and there is no Commander. See also Neil Gillman, Sacred Fragments: Recovering Theology for the Modern Jew (Philadelphia: Jewish Publication Society, 1990), p. 54, where the author describes Judaism as a myth that is broken. For Gillman, there are living myths that work, dead myths that do not work, and the current Jewish myth is a construction of reality that one takes to by a myth, a human, invented construction of reality that is "broken." See Sifre Zuta 10:33, where it is taught that the shards of the original tablets of the law, broken by Moses, are also placed in the holy ark. Gillman cleverly and deftly defines the tradition as a sacred fragment, or a "broken myth," or world construction that the secular minded but spiritually inclined Jew knows is no more than a myth.
175. bGittin 55b-56a.
176. My friend, teacher, and colleague, Rabbi Ya'aqov Love of Passaic, New Jersey, called my attention to the variant tradition in Lamentations Rabbah 4:3 where Zechariah ben Avqulus would not protest the insult to the guest, but would protest the defilement of the altar.
177. "Even though one sins, one remains a Jew" (bSan 44a).
178. mAbot 4:8.
179. Kelsen, pp. 150-151.
180. Supra., pp. 276-278.
181. mAbot 2:4, Maimonides, Teshuva 3:11.
182. See Maimonides, De'ot 6:1. A. Soloveitchik's rejection of the learned, observant Conservative scholar, most likely the late Saul Lieberman, because of his theologically faulty affiliation, is an instance of reconstructing a Jewish law vision of the community from a church model to a sectarian one. For A. Soloveitchik, the view of Resh Laqish, that wicked colleagues invalidates one's bona fides, is adopted over and above the view of Yohanan, who rejects this view and whose view is accepted as normative. See Aron Soloveitichik, Be-'Inyan Qeddushin Shomeronim, ha-Pardes (Marcheshvan 5747), 18. See bSan 26a. Were A. Soloveitchik's position, which is based on a misplaced application of Laqish's rejected view, indeed normative, it would have been cited as normative in the medieval halakhic literature, which it was not. The need to establish a sectarian rejection of non-Orthodoxy is, for Soloveitchik, a sufficient ground to misrepresent the legal order.
183. Jacob Neusner has argued that there are many "Judaisms," or systems of Jewish religion created by Jews. Specifically, Neusner believes that the Judaism of the dual Torah died with the death of religion as being self-evidently true after the Enlightenment, and modern Jews have invented, to his view, eight different Judaisms, the theological myths of which are outlined in his Death and Birth of Judaism (New York: Basic Books, 1987), pp. 4-5, 179-186.
184. For Kelsen, p. 194, norms originate in authority, with the highest or most important norm being presupposed because it is not created (p. 195), and commands that one obey the specific constitution under discussion. Now for J. Soloveitchik, "no effort is made by Halakhah to limit the authority of a Rebbe, as is the case with political officials." Abraham Besdin, Reflections of the Rav: Lessons in Jewish Thought Adopted from Lectures of Rabbi Joseph B. Soloveitchik (Jerusalem: Torah Education, 1979), p. 134. Since Soloveitchik shared the copyright of the volume (p. 5), he approved of the citation made in his name. On one hand, Soloveitchik claims that the teacher's authority is not "imposed" (p. 135). Accepting the authority of the Rebbe as the transmitter of tradition is the condition for membership in the community, which is both coercive and political.
185. mAbot 5:17.
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