Saturday, June 14, 2008

Halachic Choices

There's a well known, yet unpopular saying in the Orthodox world: "Where there's a rabbinic will, there's a halachic way." It's unpopular because it implies two very unpalatable things:

a) The halachic system itself doesn't rest upon any concrete and lasting principles; that they can be adjusted and modified to meet the popular demands of the day

b) That rabbis can essentially rule in whatever direction they want, and if they don't address certain issues, it's because they just don't care enough about the issue to deal with it

Strictly observant types consider this idea practically sacrilegious. I've always (well, in the past decade or so) believed the aphorism to be quite apt. Once upon a time I also found it to be offensive, but the more I learned about how things operate in the real world (as opposed to the idealized portrayals we are given in yeshiva), and the more I learned about Jewish history (and other areas of knowledge which the average yeshiva guy is ignorant of), the more I realized how true it was. There are so many examples of rabbis responding to cultural and societal needs, and bending the rules to meet the needs of the populace that it's hard to believe anyone can actually think otherwise. Whether it's pruzbul, or mechiras chometz, or eruv, or some previously forbidden activity now being permitted, or some previously permitted activity (or person, or idea, or practice) now being forbidden, the rules often change to suit the popular mood (or need). Sometimes it's just an original and novel heter, sometimes it's a convoluted workaround or legal ficiton, sometimes it's a reliance on an obscure opinion, but whatever methods they employ, it's just too common to deny that the unbending rules of halacha can be quite flexible when the right pressure is applied. Sometimes this flexibility can be used positively, like when it's used to help people out of overly burdensome situations (eruv and mechiras chometz). Other times, and this is what's most common nowadays, the strategy is employed less charitably, and we see it often used to impose stricter standards on the community.

In our contemporary era, one of the most egregious violations of justice that is allowed to be perpetrated in the name of halacha is the problem of the aguna - a woman whose husband will not grant a divorce and who (according to halacha) is forbidden to marry another. There have been countless efforts to address this problem, but overall none of them have seemed to make much headway. One of the solutions that I recall hearing about was to retroactively annul the marriage so that no divorce is even necessary, and the woman would then be free. There was, of course, much opposition to this proposal, with one of the objections to this solution being that it would then mean that the children of such a marriage would then be considered to have been born out of wedlock. In any case, like so many of the others plans, this idea was never implemented, and to this day very little has changed in regards to the general situation of agunos, with the rabbis continuing to insist that their hands are tied by the dictates of halacha.

I was recently reminded of this issue as I was reading the latest reports of the wholesale and retroactive nullification of thousands of Jewish converts by the beis din in Israel. For those who aren't up to date on the latest brouhaha, the Jerusalem Supreme Rabbinical Court (not to be confused with the Israeli Supreme Court) has nullified all the conversions from a particular rabbi, thereby revoking the Jewish status of all the people he has converted (and presumably also the children of the women he converted). Now, I'm not going to get into the ramifications and implications of this decision (there's been more than enough of that in the print and blog media), but I can't help comparing the two situations (aguna and conversion). They seem to be using the exact same methodology: retroactively declaring a halachically approved commitment null and void. In one situation, the rabbis don't want to employ the tactic even though it would have a positive result (the aguna being freed). In the other situation, they are willing to employ the strategy, even though it would have disastrous consequences for thousands of people.

To me, this discrepancy highlights a crucial element of what I find so troublesome about Chareidi Judaism. The goal for them is never about trying to improve things, to be inclusive, to create allowances, to use their talmudic ingenuity in order to produce something positive. It is instead always negatively oriented, to exclude people, to keep ideas out, to place further restrictions and create further divisions. I can't recall the last time I heard a p'sak which made me think, "Wow, halacha really enhances people's lives!"

That this attitude is so ingrained is disturbing enough, but what bothers me even more is when I see the law itself being used in exactly the opposite way which I think it was intended for. Sure, we can use our brilliant halachic minds to figure out a way to write out hundreds of sincere and committed Jews from the community, breaking up countless relationships, possibly delegitimizing their children, and causing untold heartache. But to use that very same logic to help out a suffering woman who is being tormented by a malicious bastard who is himself abusing the halachic system - no, that would be unacceptable according to halacha!


m-n said...

"There's a well known, yet unpopular saying in the Orthodox world: 'Where there's a rabbinic will, there's a halachic way.'"

The line comes from Blu Greenberg, "Orthodox" feminist. It was originally said in terms of the agunah problem.

A Reader said...

Rabbi Riskin made the exact same point, using the aguna issue as a contrast too.

Anonymous said...

Good post!

The more things change, the more they stay the same. The Jerusalem Talmud, Shabbat 1:4 tells a story of those times. The sages were meeting at the home of a prominent supporter, on the roof of his house. Beit Shammai appeared armed, murdered several members of Beit Hillel, and blocked the exit from the roof. No member of Beit Hillel was allowed to leave until he agreed to uphold the halakha of Beit Shammai, the minority. Beit Hillel – fearing for their lives – gave in. The sages then passed 18 gezerot (decrees) proposed by Beit Shammai. Most were aimed at separating Jews from Gentiles, and included kashrut gezerot that exist to this day. The Jerusalem Talmud calls this day the blackest day ever to befall the Jewish people.

Beit Shammai was traditionalist. Its halakhot (laws) were restrictive. Its worldview was anti-modern and anti-rational. We carry the effects of Beit Shammai's intransigence to this day.

If Beit Shammai had been met with arms, if Beit Shammai had been expelled from normative Judaism, our halakhot would be less strict and our reaction to the Gentile world – and its science – would be more open.

But on a Jerusalem day 1950 years ago, fanaticism won, crushing the democracy the sages used to guide the Jewish people in the process. The 18 gezerot were left in place – removing them meant more violence, more terror, more death.

With the destruction of the 2nd Temple, caused largely by the fractured polity of the Jewish people – it is not surprising that many zealots and sicariim appear to be from families associated with Beit Shammai – it became clear that Jewish unity must take precedence over doctrinal disputes. It was in that atmosphere that Eliezer ben Hyqanus was excommunicated and the mantra "The Torah is NOT in Heaven!" entered Jewish discourse as a response to his zealotry.

Fast forward almost 2000 years.

Today's rabbis are largely traditionalists. The historical lessons of the Beit Hillel / Beit Shammai dispute are largely lost on them. Today, unity means caving in to the most extremist of traditionalists' halakhic and theological views. Moderates are pushed out of the debate; liberals, out of Orthodoxy all together. Yosef Shalom Elyashiv and his supporters may not use arms to enforce their views – although threats and physical violence are not unheard of in that world – but their methods of operation mirror those of Beit Shammai, who 1950 years ago proved that in Judaism the sword is in fact more mighty than the pen, and terrorist acts and threats more persuasive than democracy and the rule of law.

Lubab No More said...

> I can't recall the last time I heard a p'sak which made me think, "Wow, halacha really enhances people's lives!"

I really like this thought. Good post.

ClooJew said...

It's unpopular, because, except for a small slice all the way to the left of the rabbinic pie, it's untrue.

And misleading women into thinking they are free, while their problems are just beginning is no service to them, and especially not to their children.

The concept of annulment is not new, but remains highly problematic. Obviously there are cases that might justify annulment, but, lulei demistafina, the notion that any husband who would deny his wife a get has retroactively undone the marriage is an argument that has been rejected by the majority of poskim, and not just the Chareidim. The widespread use of annulment will wreak havoc - not on the rabbis, but on the women they purportedly free.

Here's the problem. Woman takes the annulment, marries (not RE-marries, mind you), and has kids. Those kids will be considered mamzeirim by most authorities. How'd you like to send your kids to yeshiva with that stigma?

A woman who accepts this will be damaging her future children. She may be proud to be at the vanguard of this ill-fated movement, but I strongly doubt her children will be as sanguine.

David said...

> Here's the problem. Woman takes the annulment, marries (not RE-marries, mind you), and has kids. Those kids will be considered mamzeirim by most authorities. How'd you like to send your kids to yeshiva with that stigma?

You're only proving his point! Those authorities are choosing not to accept the annulment. They could if they want to. The kids are only being stigmatized because the rabbonim declare them so! They can just as well (and do often enough when it serves their purposes) come up with some heter to not consider the kids mamzeirim in that case.