Monthly Archives: September 2017

Here is the fifth response to my interview with Rabbi Ethan Tucker. The first response was  by Dr. Malka Simkovich, the second response was by Yoav Sorek, the third response was by Rabbi Ysoscher Katz, and the fourth response was by Rabbi Aryeh Klapper. Finally, we have a response by Rabbi Professor Yehudah Mirsky.

Yehudah Mirsky is Associate Professor of Near Eastern and Judaic Studies at Brandeis University, and is on the faculty of the university’s Schusterman Center for Israel Studies. He is the author of Rav Kook: Mystic in a Time of Revolution (Yale University Press, 2014) and tweets @YehudahMirsky. He appeared on this blog in fruitful interview on his Rav Kook biography.

Mirsky reminds us that halakhah is law, with its implicit sense of obligation, power structures, and connection to justice. He cites Robert Cover’s indelible point that as law, the law is violent. “Legal interpretation takes place on a field of pain and death.”  And those interpretations have consequences. As Cover notes: “When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.”

For Mirsky, the issues of synagogue inclusion are connected to the injustices of a system that is not responsive to agunot, tolerates get refusal, and is many times unjust to women appearing before the rabbinical court.  Our directive should be to avoid cruelty.

In addition,  Mirsky declares: Jewish marriage and divorce on the one hand, and Jewish prayer on the other, are intimately connected.” In Israel, the private and legal realms have become muddled so that there is coercion even in the voluntary private realms. While in the diaspora,  “policing the boundaries of marriage and divorce is for traditional rabbis, as it is for traditionalists in other religious traditions, almost the only power they have left.”  Mirsky lays down a gauntlet for the opponents of egalitarian prayer to explain “why non-egalitarian prayer does not contribute – wittingly or not- to the terrible cruelties that the institution of Jewish marriage has tragically come to inflict in our time. ” In short, choose kindness over cruelty.

Communal Prayer and the Meaning of Law and Dignity, or, Counting the Agunah who is Always in the Room

Yehudah Mirsky

As I once told Ethan Tucker, I regularly have a running conversation with him in my head – as he challenges us to think harder and more clearly about halakha with rare creativity and sensitivity. I haven’t yet had the chance to read the new book he’s written with Micha’el Rosenberg (indeed, Amazon has already run out of copies!), though I’m confident it is  an important intervention in contemporary discussions. My comments, then, are limited to his post at this blog,

Rabbi Tucker is admirably open about his position and presuppositions, and I will try to be here. My own practice, since the early ‘90s and the founding of the (sadly now late) Kehillat Orach Eliezer, is to belong to and participate in partnership and traditional egalitarian services as often as possible (and when those are unavailable I generally go to Orthodox services).  I am in very deep sympathy with his arguments and conclusions, but wish to suggest that the meaning of legal obligation and claims of human dignity he puts forward run even deeper than he suggests. There is, in other words, an elephant in the room, as I hope to make clear below.

His argument that “(w)e are not coming with an outside critique of halakhah.  Instead, we are trying to apply halakhah’s internal logic to a changing reality” is bracingly refreshing,. It offers a way out of regularly unsatisfying arguments over ‘meta-halakha’ and the like, which effectively lock participants into rigid positions of Legal Realism and Legal Formalism, neither of which do justice to the history and reality of halakha, or for that matter of most any legal culture.

In looking at the internal logic of the halakhah, he argues that gender was for Hazal, not about sheer biology, at least not when it came to communal prayer, but rather a proxy for other categories: honor and dignity, and maximal obligation in mitzvot. One of the many virtues of this approach is that it can make sense of why excluding women from communal prayer made sense for a long time, even if we conclude that it no longer does, as modernity has shifted the ground under so many things, to the point of creating Orthodoxy as a self-conscious ideology of resistance to change. (I’ve written at greater length about the socio-historical dimensions of Orthodoxy’s emergence and my understanding of the theological reach and limits of that emergence.)

In truth, gender does seem more essentialized than that in Rabbinic literature, certainly when it comes to theology and utterly when it comes to Kabbalah. Indeed, one way of framing the deepest divides between the Jewish philosophic and kabbalistic traditions is whether God can in any ways be discussed in terms of gender at all. 

Rabbi Tucker’s starting point of gender being, when it comes to prayer, not an immanent category but a proxy or signifier for issues of obligation and dignity is prima facie reasonable, and squarely within a formal-rational understanding of the halakhic process.

I will first say a brief word about the legal freight of the very term “obligation,” and then move to my core points, about the legal meaning of human dignity.

I suspect I am not alone in sensing that to many non-orthodox critics of Orthodox prayer (and of Orthodoxy in general) fail to understand that Orthodoxy, takes religion as law. Halakhah is for Orthodoxy as it was for pre-modern Judaism, as Prof. Gerald Blidstein so well put it, “the normative structure undergirding Jewish life in both its private and public dimensions.”  Because halakha is law, it has, or at least works towards, the internal morality and coherence of law. (Gerald J. Blidstein, “Halakhah – The Governing Norm,” Jewish Political Studies Review 8:2 (1996), 37).

In other words. someone who is not obligated in a mitzvah cannot help another person fulfill that obligation, the same way that under the laws of the United States the Postman can’t write you a parking ticket and you can’t be arrested by a diplomat from the State Department.  In this light, reckoning with degrees of male and female obligation, makes eminent legal sense.

For non-Orthodox Jews (and for many Orthodox laypeople too, one suspects), Judaism is not about law, but about “religion,” that distinctively modern Western notion that our relationship to transcendence is something that exists outside or alongside law, and takes shape under the rubrics of “community,” “ritual,” and “ethics” – all terms which, whatever their premodern antecedents, mean very different things now than they did in the many centuries when people’s primordial, civic and transcendent identities were knotted more tightly together. (I go into this a bit more here and with specific reference to Israel and Zionism here).

One of the myriad changes wrought by modernity and its disestablishment of organized Jewish community, is its changing the very existential stance and meaning of communal prayer, from something utterly continuous with the socio-political and legal life-world to a privatized space, standing as an alternative to the life-world shaped by law. Indeed, for those to whom Judaism means ethics and ritual, the exclusion of women, not to mention the fine distinctions of devarim she-bi-qedushah and eyno metzuveh ve-‘oseh, make little sense. But if halakha is law, then those distinctions make all the sense in the world.

Thus, a key claim of Orthodoxy, and indeed of the word halakha, whoever employs it, is that whatever else Torah is, it’s law. Indeed, in some ways Orthodoxy’s problem is that it sees halakha as law, but not all the way down. I say that because to take halakha seriously as law, means, at the very end of the day to see it as being about the legitimate use of force, or at the very least, of other means of coercion and social control. As my late teacher, Robert Cover put it in his less-well-known but important essay, “Violence and the Word”: “Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.”

The idea that a quorum of adult males constitutes the public and coercive face of community seems to me implicit in the very proof texts used to establish it, at BT Megillah 23b. The word edah is the very word used in Mishnah Sanhedrin 1:6 to establish the quorum necessary to inflict capital punishment. This linkage seems not merely semantic but essential.  Minyan is the public face of the community at prayer. Minyan is the public face of the community enforcing its boundaries.

Which brings us to the elephant in the room when it comes to the role of women and communal prayer and that is the structure of Jewish marriage.  If communal prayer is indeed communal, it is all about the community and its boundaries, and not only in public, in synagogue and on Shabbat mornings. Communal prayer is inextricably connected to Jewish marriage.

To disallow egalitarianism in the synagogue is to disallow it under the chuppah and ultimately in the beit din.  The most potent female figure in the moral universe of communal prayer is, to my mind, not the ba’alat tefillah or kriyah, but the agunah,  potential or actual. The way we structure our community in prayer will further chain her or help set her free.

In other words, the moral claims of egalitarian prayer arise not only from women’s legitimate concerns for spiritual self-expression, but from what is in many ways the only thing that matters, and that is the avoidance of man-made cruelty.

Now, part of being human means that we cannot ever fully be rid of our abilities to inflict cruelty on one another.  I regularly tell my students that I often hope that future generations will find it as hard to understand how we lived with our moral failings today as we find it hard to understand how people lived for so long with slavery.  Nevertheless, the humbling knowledge of our own inevitable moral inadequacy is no reason to give up trying to minimize as best we can the cruelties we can avoid. The attempt to avoid man-made cruelty in our processes of governance and law is itself the deepest meaning of human dignity, and whatever kavod ha-tzibur may be, the avoidance of organized cruelty is surely a part of it.

I freely declare that much of what has driven me to egalitarian services over the years is the recognition that at the very end of the day the system that excludes women from the public space and public speech-acts of communal prayer is the system that runs roughshod over them in court. And in matters of domestic relations regularly treats them with great cruelty.

Jewish marriage and divorce on the one hand, and Jewish prayer on the other, are intimately connected. The cord connecting the two is that both take the form of law. This relationship is regularly muddied in both Israel and the Diaspora, each for its own reasons.

A key feature of the State of Israel, and the source of many of its dilemmas, is its being a nation-state created to answer the problems of both sovereignty as well as the crisis of modern Jewish community. As a result, the lines between the state, as the monopolist of legitimate coercion, and community, as an essentially voluntary association, are regularly, and hopelessly, blurred. Rabbinic authorities regularly wield a coercive power to which much of the citizenry has hardly given informed consent.

(See on this Rivka Lubitch’s extraordinary new book recounting her nightmarish experiences as a to’enet rabbanit working with agunot, converts and others in Israel’s regularly Kafkaesque rabbinic courts. But is also certainly true in Diaspora communities, as many of us who have been involved in one agunah situation or other can attest. I do think pre-modern halakhists, for whom evidentiary issues predominated, were regularly more morally responsive to the dilemmas of igun, than their modern successors, but that is for another time.)

In the contemporary diaspora halakha is the circumscribed dance of a community nestled in the larger framework of the liberal state – indeed what makes today’s diaspora communities distinctly modern is precisely their lack of the corporate identity, and regularly coercive frame, of the pre-modern kehilla.

Diaspora communities are voluntary and their power of suasion is a mix of the social and the spiritual, therefore we can lose sight of the arenas in which coercion is still central to the enterprise. Indeed policing the boundaries of marriage and divorce is for traditional rabbis, as it is for traditionalists in other religious traditions, almost the only power they have left.  (I am indebted for this observation to Prof. Frank Vogel, formerly of Harvard Law School.)

Which is another way of saying that I understand why egalitarian prayer is genuinely and understandably threatening to many observant Jews. Especially when pursued – in partnership minyanim – by people who know what tradition is, who are committed to it, and who cannot simply be waved away as lukewarm Jews.  Because, indeed, once women are treated as equals in the form of communal structure of prayer they can only with much greater difficulty be unequal in the communal structure of law.

We are by now deeply inured to the privatized nature of prayer in the modern world, including its being encapsulated in this category called “ritual.” Prayer is of course ritual, as we understand it, and is deeply expressive, indeed the claims of self-expression regularly twist and press against the necessary conformities of public prayer. As Rav Soloveitchik so powerfully wrote so often, we regularly turn to prayer, and prayerful community, precisely as a haven from the relentless and regularly terrifying daily pursuit of getting and spending and accumulating power. (See, for instance, his essay, “Redemption, Prayer, Talmud Torah.” )

But in as much as prayer is about halakhic community it is also about power, much as we might wish it were not so.

I certainly don’t mean to argue that gender’s place in Judaism starts and ends with the problem of igun or that legal equality and its corollary of egalitarian prayer do or should exhaust the range of religious experience.

As I’ve written elsewhere, Maimonides call to imitatio dei itself implies a spectrum of religious life embracing both sides of the gender divide and going beyond them as well, though what I’ve called “a shtiebel of one’s own.”  But once the shtiebel is no longer just one’s own, but of the community, we must be aware of the ways we are talking about boundaries and power.

I see power at work in many places, but not anywhere and everywhere, nor do I think the power entirely defines and circumscribes the range of human action, choice and freedom. I am not a disciple of Michel Foucault, for whom power is so all-encompassing that escape is impossible. I do not believe escape is impossible and we can choose our lives. But in order to do so we need to understand the ways in which power shapes and determines our lives and especially our religious lives.

While I am very much in agreement with Rabbi Tucker, and see his overall project as a vital contribution to the renewal of Torah in our time, I urge on him, to be frank, a more suspicious hermeneutic of halakha, and not only because the texts we are studying have all been written by men.  I say this because Torah is too precious to be deformed and be made an instrument of cruelty as it has so often been, and is today, precisely through the renewal of Jewish sovereignty.

Rabbi Tucker’s powerfully attractive stance as a student and practitioner of halakha assumes someone who not only stands before law but also is analytically prior to the law, with their own moral and religious judgments.

I envision someone with commitments, including moral commitments, some of which are shaped by tradition, and some of which we come to by ourselves, given this historical moment in which we find ourselves caught up. Now one could assume human being are constructed entirely by the tradition.

Indeed, some forms of Orthodoxy have been very busy trying to construct that very kind of person, or at least the idea of that kind of person. But it is unclear if such a person actually exists. And even if such a person does exist, he or she must, when faced with the suffering of other human beings, make a decision.

Invariably a person must choose to be cruel or choose to be kind. The law we hope will guide us to choose kindness. At least not affirmatively to choose cruelty. Those are the stakes of egalitarian prayer – and the challenge for its opponents is to answer how and why non-egalitarian prayer does not contribute – wittingly or not- to the terrible cruelties that the institution of Jewish marriage has tragically come to inflict in our time.

Here is a fourth response to my interview with Rabbi Ethan Tucker. The first response was  by Dr. Malka Simkovich. The second response was by Yoav Sorek and the third response was by Rabbi Ysoscher Katz. The fourth response is by Rabbi Aryeh Klapper. I would have liked also responses from the left/progressive side or a non-polemical one from the Haredi right, but as of now it has not appeared.

Rabbi Aryeh Klapper is Dean of the Center for Modern Torah Leadership which organizes many programs including his long running Summer Beit Midrash Program. More of his articles and approaches to topics can be found at his website by topic from a pull down menu including the topics of : gender, halacha, and halakhah and public policy. Klapper’s approach is that of  treating the halakhah as a system of law and authority to which he applies his own talents of what the Talmud calls “up-rooter of mountains” (oker harim), the ability to interpret the text as clay in the hands of a potter.

Rabbi Klapper was part of the panel discussion and public conversation for the release of R. Ethan Tucker and R. Micha’el Rosenberg’s Gender Equality and Prayer in Jewish Law along with R. Judith Hauptman and R. Joanna Samuels. (June 13, 2017)- Full recording here.  Rabbi Klapper’s talk on that panel will be published in a forthcoming issue of the JOFA Journal.

Klapper’s reservations about Tucker’s approach revolve around his rejection of legal originalism or the quest for a stable original intention or the original reason for the command.  Klapper avoids originalism in the context of halakhah because he thinks that it weakens commitment to observance, as well as the fact that mitzvot are multivalent over times and places and that  mitzvot may have many reasons, or embody a balance of values.

Klapper’s own approach is to treat a particular law as a chok, a law without a reason, when it seems to present an irreconcilable conflict with our values, thereby creating space for practical solutions in the application of the law. He is worried  about disparaging those who have lived honestly without achieving such resolution of values and halakhah. Based on prior practice of the halakhah, he refers to the new approaches as “identitarian” rather than egalitarian.

Even though, he opened by stating that he was going to work within Rabbi Tucker’s need to reduce submission and tension, by the end of the response Klapper advocates living with tension and a less than ideal relationship, the same way we tolerate faults in spouses and friends.

At the end of the aforementioned panel at Hadar, Klapper mentioned that a legal authority has great power of interpretation but needs authority going so far as to say that a rabbi could permit swine flesh by interpretation. When asked: how could it be permitted? He answered: pigs were genetically very different than the chazirim mentioned by the Torah.  One could find distinctions in  morphology, behavior, social significance, etc.  In context, Klapper’s point was that without authority, anything is possible. For him, this was parallel to Rabbi Tucker’s move regarding women. It is all in the hands of the authority of those who accept the law as it is practiced. His answer was seemingly tongue in cheek or for the rhetorical effect, yet it shows how he approaches the issue differently than Rabbi Tucker’s earnest application of rabbinic values.

Are Rabbis Klapper and Tucker speaking to two different communities, two ends of the same community, or one single community? Does it even matter?

As a side point, Rabbi Klapper asked rhetorically in this response as an obvious incorrect approach “about limiting minyanim perhaps only to the wealthy, or the graduates of exclusive colleges.” However, in this entire thread of discussion from all the respondents there does seem to be unacknowledged issues of class and education that are worthy of exploring.

Rabbi Aryeh Klapper- Response to Rabbi Tucker

Rabbi Tucker’s humility is evident in his recommending me as a respondent despite, or because of, the “sharp critiques and criticisms” he thanks me for in the book’s Introduction.  I fear that I will not disappoint; but I want to preface my comments with as clear a statement as I can of personal appreciation.  No matter how strongly or deeply we disagree, it is a great pleasure and privilege to know him.

My focus here is not on the book, rather it will be on Rabbi Tucker’s treatment in his interview of the interrelationship among halakhah, autonomously derived values, and rationales for mitzvot.

I argue in response that the costs of his method should outweigh its gains even for those who fully agree with his values and fervently welcome his halakhic outcomes. Those costs are shown in least two areas.  First, in order to salvage contemporary halakhah for his values, he binds halakhah throughout history to an ethic of social exclusion.  Second, he radically devalues the lived experience of past and present observant Jewish women and men.

I will try to conduct the discussion on Rabbi Tucker’s terms, that is to say without any of what he describes as “bludgeoning our values with the formal discipline of submission”, or “hiding behind the Torah’s authority in order to dodge the conflict”, or “overruling a position with the force of more precedents on my side or with my presumed ethical superiority”, or even “valorizing the conflict between morality and Halakhah”.

This does not mean that I agree with these harsh characterizations.  Indeed, it seems to me that Rabbi Tucker’s concept of “making our ears into hoppers” should encourage a fuller and fairer hearing for the undeniable thick strands of our tradition that he portrays so unsympathetically.

Halakhah and Legitimization 

Please note that each of the core terms above in my preface- autonomously derived values, rationales for mitzvot, and halakhah –  should be more tightly defined.  We should really provide separate treatments of

1. values derived via practical reason, values derived by pure reason, and values derived by intuition;
2. rationales for specific Torah commandments (=taamei hamitzvot), rationales for halakhic principles, and rationales for halakhic details;
3. halakhah as a practical legitimization or delegitimator of human actions, and halakhah as a source of philosophic truth or inspiration etc.

However, for the purposes of this discussion, I insist only the distinction between halakhah in its role as the practical legitimator or delegitimator of human actions, and its other roles and purposes.  In this essay, the unqualified term “halakhah” will refer only to that first role of legitimation.  For example, it will not include the formal legal outcomes of discussions about the Laws of Meal Offerings, so long as those rulings have no practical contemporary legal effects.

Halakhah is a legal system that simultaneously claims Divine authority and at the same time recognizes its own fallibility. In other words, it acknowledges that the law is not always what it should be.  However, as within any legal system, an action’s legitimacy is determined by reference to the law as-it-is, not the law as-it-should-be.  This is so even if one agrees that the law should be changed by contemporary authorities.

Let us begin from halakhah’s explicit internal validation of autonomously derived values.

The Talmud derives that there are three sins that one must die rather than commit: avodah zarah, giluy arayot, and shefichat damim (Sanhedrin 74a). How does the Talmud derive these points?

Avodah zarah is derived from Deuteronomy 6:5: “You must love G-d with all your heart and nefesh” – even if He takes your nefesh/life.

Giluy arayot is derived from the explicit analogy between adulterous rape and blood shedding in Deut. 22:26.

What is the source for shefikhut damim/bloodshedding, so that it can become the basis for gilui arayot?  There is no Biblical source. There is only the argument, in Rava’s formulation: “What have you seen that makes your blood redder than his?!”.

Since the Torah’s analogy between gilui arayot and bloodshedding can be properly interpreted only on the basis of Rava’s reasoning, this passage not only validates autonomously derived values, it declares that Torah cannot be understood properly except in the context of such values.

Rava’s principle also appears to contradict Rabbi Akiva’s authoritative interpretation (Bava Metzia 62a) of Leviticus 25:36: “And your brother shall live with you” – your life precedes your brother’s.  The Talmud does not raise this issue, but all later halakhah is compelled to distinguish the cases.  But this distinction is beside the point; the fact that Rabbi Akiva is not used to delegitimate Rava demonstrates that autonomously derived values can even overcome a strong textual challenge, and compel a reconciliation between text and values.

Values

At the same time, how can we develop our values properly other than by studying Torah?  Do we not have the obligation to put Torah at the core in developing, refining, and sometimes reconstructing our moral intuition and reasoning?

Let us assume that we should resist the temptation to idealize this sometimes tempestuous dialectic between the study of Torah and values. Rather, we should instead try to harmonize halakhah and values.

The question is what we do in the interim, when we individually or collectively experience unresolved conflict between halakhah and our autonomously derived values.

The fully integrated religious life may be a noble aspiration, but there are many ways to go astray in the attempt. We should be very wary of personal claims to have achieved it (and also of daas Torah claims that others have achieved it).

We must be clear that genuine integration does not involve reducing halakhah to ethics.  There are legitimate grounds of autonomous value other than ethics, such as morality and holiness.  These can conflict with each other as well as with halakhah, therefore any halakhah may reflect a balance among those separate grounds of value.

Conflict between halakhah and values can happen either on the level of practical outcomes, or on the level of fundamental values.  In the former case, my values lead me to think that the halakhah as-it-is is wrong, even though it was instituted for proper purposes. The disparity is either because of a mistaken policy decision in the past or because circumstances have changed.  In the latter case, my values lead me to think that the values embodied by the halakhah were wrong from the start.

Rabbi Tucker argues that with regard to gender, he has no remaining conflicts on the second level – his values and those of the halakhah are in perfect accord.  Nor does he express interest in challenging the policy judgments of the past halakhic tradition.  He contends, however, that because of changed circumstances, the halakhah no longer properly expresses its own values, and therefore it must be adjusted.

But how can one reliably know what the halakhah’s values are, if its mandates no longer express them accurately?  Won’t you end up changing halakhah to match your preconceived notion of what its values should be?

Rabbi Tucker responds to this question by adopting an originalist approach to explaining mitzvot and halakhah.   He provides rationales that make sense in a speculative reconstruction of the spiritual, moral, and intellectual universe in which a specific obligation arose.

(He does not raise the thorny question of when a mitzvah is supposed to have arisen.  But it seems to me that an originalist approach must be very subject to the position one takes about the dating and composition of the Torah, and of the provenance of other elements of halakhah.)

Originalism 

I am not a fan of originalism in the context of halakhah, for four reasons.

My first ground is pragmatic.  In my experience, originalism tends to weaken rather than strengthen contemporary commitment to observance.

One lesson I learn from Maimonides’ efforts in the Guide of the Perplexed at providing originalist rationales is that they tend to make mitzvot feel obsolete.  Maimonides himself generally avoids using those rationales to frame specific halakhic rulings.  We should not model our tzitzit on the specific forms used by ancient idolatrous priests, even if we are convinced that tzitzit were initially intended by the Torah to visually mark us as “a kingdom of priests”.  Similarly, very few Jews feel religiously bound to eschew pork because pigs once carried trichinosis.

I have three other grounds for rejecting originalism in principle.

1) mitzvot may have different purposes in different times and places.

2) mitzvot may have many reasons, or embody a balance of values.  (For example: We wear tzitzit as did idolatrous priests, because we are a kingdom of priests, but we don’t wear shatnez, because – wait for it . . . that’s what idolatrous priests wore.)

3) mitzvot may accumulate meanings as a result of their practice over time.

I prefer to conceive of taamei hamitzvot in the following terms:

(1)   Each mitzvah or practice has a complex set of purposes

(2)   The specific forms of mitzvot often reflect a delicate balance among competing values (3)   Some purposes for some mitzvot will be relevant or intelligible only to some communities at certain points in history

Furthermore, when social change makes the generally accepted import of a mitzvah less intelligible, Halakhah and halakhic societies rarely react by changing the law.  Instead, our job is to infuse the sociologically antique meaning into the mitzvah.

Take shofar as an example. Many rationales have been offered over time for the mitzvah of shofar.  The two for which we have the best originalist evidence (i.e., clear parallels in Tanakh) are: (1)  To announce the coronation or at least arrival of a king  (2)  To raise an alarm.

I think it is clear that if the mitzvah were given today, with the same intent, we would use either a brass band or artillery to fulfill the former reason, as we do at the arrival of a president, and an air raid siren to fulfill the second reason.

Yet I presume that Rabbi Tucker agrees that one cannot fulfill the mitzvah today without an animal’s horn.  Why not?  The Torah says only “teruah”, and gives no explicit instructions about a specific instrument.  If one is not to resort to formalism, one must say that the ram’s horn has acquired a significance over time that is distinct from the originalist meaning.

Note also that if the mitzvah is intended to fulfill both originalist purposes, no contemporary practice could likely fulfill the obligation.  On a superficial level, this is because we do not use marching bands to raise alarms, or sirens to inaugurate presidents.  On a deeper level, this is because the president’s arrival does not arouse fear that we will soon be on trial for our lives.  Therefore, the two purposes are not compatible in contemporary semiotics, whereas they were once identical.

With this introduction, we can turn to the question of whether it remains true that only males can blow the ram’s horn in order for their fellows to fulfill the mitzvah of hearing it.  I think it is clear that the mode of analysis above creates a very strong predisposition against changing the law in this regard, even if the meaning of gender-distinction has changed in exactly the way that Rabbi Tucker postulates.  We would instead seek to carry out the mitzvah as before while preserving the historical significance of gender in our minds and souls, as we preserve the significance of animal horns.

This approach has the advantage of humility.  If we are wrong about the reason, we still preserve the formal practice, and sometimes our hearts are drawn after our actions.

Rabbi Tucker’s response must be that the cost is too great, because continuing the gender requirement for the shofar-blower offends his autonomously derived values in a way that using the horn of an animal does not.  So here, it is necessary to make our aspiration a reality, and move the halakhah to match our values.

I think we should be very conscious of three dangers in such efforts at integration of our values and the halakhah. Two of these are apparent and mirror images of each other.

(1) We might fall into self-fufillment and constantly see in Torah only a reflection of our own image.

(2) We might develop an akeidah complex, in which we think that the goals of serving G-d with all our heart and soul can be achieved only through submission to religious mandates that violate our moral reason and intuition.

Rabbi Tucker is aware of, but not cowed, by the first danger, and hyper-alert to the second. I think that Rabbi Tucker overreacts to the second risk.

My Opinion: chokifying and  respect for the past

I prefer two alternative approaches to his concern lest we overvalue submission.

First: one can preserve the conflict by assigning mitzvot to a category of laws with no humanly intelligible purpose (hukim), a “chokifying” of the mitzvah.  There is no reason to suspect that this will result in our preferring unintelligible mitzvot over the intelligible. This approach creates space for many less radical approaches to reconciling the halakhah that one practices with one’s values. (For more on his idea of chokifying, see here, here, and here).

Second: even if one holds that reconciliation is the ideal, that does not justify disparaging the profound religious experiences of those who live and have lived honestly without achieving such resolution.

Sacrifice and Conflict 

We should not go through life looking for ever-greater opportunities to offer our values up as a sacrifice to G-d, in order to ensure that our motives are purely submission to His service.  Rabbi Yisroel Salanter might have said: Each time we set out to sacrifice our own ruchniyus (spiritual needs or desires), we end up being sacrificing someone else’s gashmiyus (physical needs or desires).

But every serious observant Jew lives with some degree of conflict between their religion and their independent sense of right; we have all eaten from the Tree of Knowledge of Good and Evil.  G-d’s choice to express His Will in the form of law, and for that law to become a national-collective religious enterprise, means that there must be enormous value in obeying the system’s outputs even when one disagrees with them.

Another way to frame the issue is that the ideal Jew lives in a deep and joyous relationship with G-d and Torah.  Relationships build over a lifetime; joy does not require perfect agreement; and genuine relationships can require you to find meaning in things that fulfill your friend or spouse or parent’s values rather than your own, even when those choices are painful, and even though you surely do not seek them out.

It must be noted that this discourse is once again being conducted largely among men.  For those interested, a model of the discourse I think is needed can be found by reading my article on Tzeniut, found here, and then Miriam Gedwiser’s beautiful, powerful, and challenging response. The dedicated can go on to this longer article by Miriam Gedwiser.

3) A third danger, lying between the extremes of imposing self-values and submission to incorrect values, is that in the attempt to integrate values and halakhah, we may end up reading a hybrid morality into and then out of Torah that conforms neither to the text nor to our souls.  This risk inheres in all efforts at integration, but I think Rabbi Tucker’s method exacerbates it.

Rabbi Tucker’s method requires a contextual morality, and ironically ends up binding prior halakhah to a speculatively reconstructed premodern morality.  His readings of the Rebellious Son and the Akeidah leave room for the halakhic Jew to condone the execution of disobedient children (in cultures where parents are sort of like contemporary police), and perhaps even human sacrifice (in non-Jewish cultures which find human sacrifice meaningful).

More immediately, his halakhah prioritizes the dignity of ritual over the dignity of human beings.  He confirms that social inferiors should not be allowed to play prominent roles in public liturgy etc.; it is just that contemporary Orthodoxy has incorrectly identified women as a socially inferior class.  Perhaps only the wealthy, or the graduates of exclusive colleges, should count to Modern Orthodox minyanim today, albeit regardless of gender, because of kavod tzibbur.  This to me does not seem a moral improvement.

These difficulties seem endemic to the method.

Many of the issues raised here hark back to intense conversations Rabbi Tucker and I had twenty-five years ago at Harvard Hillel; some of them take me back even further, to conversations with my dear friend Rabbi Elisha Anscelovits when we were students at Yeshiva University.  I am glad that some elements of those conversations will now have a broader audience.

Other Gender Discussions with Rabbi Tucker

Readers may be interested in two efforts to share other elements of those conversations with Rabbi Tucker.

1) In a response to Rabbi Tucker’s article on Women and Tefillin several years ago, I took strong issue with his claim that women can be full citizens only in a halakhah that eliminates gender as a relevant category, and that past gender distinctions can only be understood in terms of women’s incomplete citizenship. I highlighted what seemed to me a failure to consider non-sexist rationales for specific halakhot:

“Failure to imagine the hava amina – to treat one’s own position as unproblematically peshitta (so obvious that it goes without saying) –  results in a vicious cycle: texts are read exclusively through the lens of ideology, and then cited as evidence for that same ideology”,

and a failure to respond religiously to the reality of gender differences:

“religion must take into account and ideally channel the differences between male and female experiences, rather than denying them”.

Raphael Magarik, (a student of both Rabbi Anscelovits and Rabbi Tucker at Yeshivat Maale Gilboa & Yeshivat Hadar, now a PhD Candidate in English, University of California, Berkeley)  critiqued my critique here, and I responded here.

2) My forthcoming review of Gender Equality and Prayer in Jewish Law (JOFA Journal) states that

The quality and humility of Rabbi Tucker and Rabbi Rosenberg’s work can serve as a model for private and public halakhic conversations about such issues.  But despite my deep personal appreciation of its authors, this book does not succeed in gaining practical halakhic legitimacy for gender-identical, or “identitarian,” prayer services.  

My central point is that the personal and communal authority to change halakhah to what it should be rests solely with those who accept the authority of halakhah as it is.

Nothing I have written here, or previously, is intended to deny the reality of the challenges Rabbi Tucker raises, or the value of his effort to create a systematic and authentically halakhic response.

We agree that a halakhic system, which speaks to only a minority of Jews, and commands the allegiance of even fewer, has failed, regardless of where one puts the blame.  We agree that the solution is not to abandon halakhah, but rather to seek to expand its constituency.  We agree that this requires thinking systematically about halakhah. These are no small things.

I look forward to his response, and to ongoing conversation, with gratitude and appreciation for the past, and in recognition of the ways in which my own thinking on these issues has been developed and deepened by engagement with Rabbi Tucker.

Here is a third response to my interview with Rabbi Ethan Tucker.  The first Response was by Dr. Malka Simkovich. The second response was by Yoav Sorek.  The third response is by Rabbi Ysoscher Katz, chair of Talmud at YCT and Rabbi/posek of the Prospect Heights Synagogue

Rabbi Ysoscher Katz received ordination from Rabbi Yechezkel Roth, dayan of UTA Satmer. Rabbi Katz studied in Brisk and in Yeshivat Beit Yosef, Navaradok for over ten years. He is head of Talmud study at YCT . For a full presentation of his views, see his statement called “Torat Chaim ve Ahavat Chesed” as well as here and here.

Rabbi Katz, while respecting the great learning and erudition of Rabbi Tucker, finds himself on the other side of a divide from the latter’s position. Katz rejects seeing Biblically mandated laws and concepts as subject to social and historical contextualization. For Katz, gender roles is part of the halakhic understanding of the Bible, In addition, Katz does not think we can ever extract the original value behind Jewish law in an act of retrieval of original values.  We only have the flexibility of the halakhic system with which to work.  Katz finds the concept of intuiting the divine moral direction, using the text as a moral compass, as, at best, conjecture. Finally as a coda, Katz declares that he is worried that changes weaken the integrity of the religious fabric that holds the community together. He is worried about questions of reverence and the community as being able to withstand challenges. Katz sees the embrace of progressive social idea predominately as a way of bring a religious message to a broader array of people.

Rabbi Ysoscher Katz’s Prospect Heights Shul recently hired a woman as “Rosh kehilla” Michal Kohane, a Maharat-in-training.

Demarcating God’s Presence and Interpreting His Words

Rabbi Ysoscher Katz

Rav Ethan is an important contemporary thinker and teacher of Torah. To use a common paraphrase of the gemara in Avodah Zara (5.): הוא הגבר אשר הקים עולה של תורה; Rav Ethan’s unique Torah is responsible for bringing many people closer to Torah and yiddishkeit. It is a real merit to dialogue with him.

Before I start, please allow me to mention two things:

• I do not represent any organization or institution. I speak only for myself.
• The interview provides tremendous insight into Rabbi Tucker’s thinking. I encourage the reader to also read the linked essays on women and tefilin and women as rabbis. They nicely compliment this interview. Combined, they provide a fuller understanding of Rav Ethan’s well thought out and beautifully articulated Halakhic philosophy, along with its theological underpinnings.

With that I will begin.

Even though some people conflate my approach with Rav Ethan’s, they are very different. While there is overlap in our respective philosophies, at a certain point our approaches diverge. My method exists on a continuum of what Modern Orthodox pesika has always done, but I am limited by the parameters of that philosophy. Rav Ethan traverses those parameters, suggesting an approach which is of a whole different magnitude.

Modern Orthodox psak is informed by a belief in a halakhic system that is in dialogue with contemporary norms. While poskim might differ on the specifics of that philosophy or how broadly to apply it, they all endorse the basic ethos of reconciliation, as best as possible, between these two value systems; halakhah and modernity.  Much of what Rav Ethan says in his book Gender Equality And Prayer In Jewish Law operates on that continuum. He too attempts to resolve the conflict between traditional exclusionary attitudes and modern notions of egalitarianism. However, in order for his argument to work perfectly, he ultimately needs to make a Halakhic leap from the outer limits of Modern Orthodox philosophy of psak towards a place where it, in my opinion, cannot go.

Egalitarianism

Rav Ethan needs to embrace a robust egalitarianism which encompasses the entire Halakhic corpus, one that believes that every gender based distinction in Halakhah is sociological, not biological. According to Rav Ethan, whenever we encounter a gender based distinction, in Chazal or the Torah, it is not about women per se, but instead is referring to someone who is part of a trio of individuals “known to be adjunct or second-class citizens in the larger Greco-Roman world in which the Sages lived” (the other two being minors and slaves). It is not gender essentialist and would therefore not apply to the women of our time.

Consequently, when the Mechilta says that women are exempt from wearing tefillin because the word בניכם (Devarim 11:19) means sons, not daughters, or when some poskim say that women do not count in a minyan because the word בני that is used in the context of devarim she’be’kedusha (Va’yikra 22:32), that distinction no longer applies. Similarly, when Chazal infer from the biblical gendered language used in the context of Jewish monarchy, שום תשים עליך מלך (Devarim 17:12), that a woman cannot serve as a queen (“מלך ולא מלכה”), that distinction also no longer applies today. Again, the origins of this gendered distinction was sociological; women at the time were “adjunct and second-class citizens.” Today’s women are culturally equal and accordingly not subject to the biblical exclusion.

While I am in agreement with Rav Ethan’s overall feminist critique of gendered observance, I am unable to accept his all-encompassing dismissal of the category of women in modern times. Instead I believe that we need to apply it in a more limited fashion. An egalitarian critique, in my opinion, is legitimately applied to de’rabanans, but de’oraita based distinctions, which are derived from the Torah’s gendered language (בניכם ולא בנותיכם, אנשים ולא נשים), are immune from such critique. When God makes those distinctions, it is perhaps capricious (descriptively speaking), but is certainly not discriminatory-in a moral sense. God’s words are eternal and transcend cultural influences or human values. To import a cultural based definition of women in the Rabbinic context to its appearance in the Torah is a conjectural leap. The latter’s speech is obviously informed by contemporary norms, the former’s is not, at least not according to conventions of traditional biblical theology.

Rav Ethen goes from women in Chazal, to gendered language in the Torah. While rabbinic women can easily be explained as referring to a sociological construct, it is much harder to make that claim about verses in the Torah where the gender-specific language is solidified in Midrash Halakhah.  These drashot, from a traditional perspective, are merely interpretive, revealing what the text means when God uttered those formulations.

While Rav Ethan indeed provides multiple proofs for the claim that rabbinic categories are culturally subjective, none of them, however, are categories with a specific basis in the Torah. (Rav Ethan, in his various writings, has employed different examples to prove his claim. He either mentions “nochri” “cheresh” (Gender Equality And Prayer In Jewish Law P. 145, n. 80) “the obligation to air out once a month found books,” (in the interview with Dr. Brill) or “the inability of women to offer things for sale at the market” (in the above linked essay on women as rabbis). The common denominator in these examples is that they are all rabbinc concepts or formulations, none of them is predicated on an explicit biblical formulation.  

Practically then, in the context of Jewish monarchy, according to the drash adopted by the Rambam, women are excluded, by divine decree (or perhaps even divine caprice or whim) from any authoritative position. Those terms (מלך ולא מלכה, or the comparable case of tefillin or minyan, where women are excluded because it saysבניכם  or בני respectively), uttered by God, are clearly about essentialist gender and not about a subjective social construct.  The Torah exists outside of a particular social construct. This, essentially is the idea behind concepts like גזירת הכתוב, לא דרשינן טעמא דקרא, or מה אעשה ואבי שבשמים גזר עלי. They imply that God’s commands can be capricious, and that we cannot know definitively the purpose, reason or intent of Biblical commands or their seemingly arbitrarily imposed boundaries, gendered or otherwise.

Can We Know the Divine Will?

Rav Ethan believes that mankind can (and is perhaps even obligated to) discern and fully comprehend the Divine will, to “know what God wants from us.” That ability is partially attainable because of the “kernel of prophecy” embedded in the “Halakhic instincts” of “the Jewish people.”

A corollary of this confidence in humanity’s ability to comprehend God’s inner workings is the assumption (attributed to my dear friend Rav Elisha Anscelovits) that we can definitively “identify what a mitzvah or practice is about, what are the values that are guiding it.” Rav Ethan consequently sees “as problematic an aversion to seeking out reasons for mitzvot.”

Beyond expressing discomfort with those who refuse to say definitively why God wants something, Rabbis Ethan and Elisha also reject the traditional notion that Halakhah is “like an electric fence.” They instead believe that its purpose is to function as a “compass.”

I am uncertain about the theological postulates which provide the framework for Rav Ethan’s Halakhic philosophy. The ability to negate biblical categories which are incompatible with contemporary norms is informed by a belief in our ability to “know what God wants” and that we can “identify what a mitzvah or practice is about, what are the values that are guiding it.” (Rav Ethan and Rav Elisha would argue that He is presumably guided by our value system and therefore “wants” a religious life that is universally egalitarian). I believe that such a level of certainty about the will of the ineffable is impossible.  We can be certain about what He wants us to do, but extrapolating from that what it is that He really wants, is at best conjectural.

The sources that express this unbridgeable gulf between His will and our capacity to decipher it are innumerable.  One, however, is particularly evocative. It expresses the idea with brevity and precision. Chazal tell us in masechet sukkah (5.)  that the Shekhinah perpetually hovers ten cubits above earth, never descending completely. The gap between God and mankind is indeed small and our charge is to continuously shrink it. Yet, despite our best efforts, Chazal tell us, the gap will never be completely closed.

While the statement is primarily mystical, its implication for psak is dipositive. There will always be a categorical difference that separates God from us, our values, and sociological categories. It is noteworthy that they use the Shekhinah aspect of the Divine. Shekhinah in kabbalah represents the immanent aspect of God, the one that interacts with our world. For them, even an immanent God remains somewhat aloof and unattainable. Denying the gap is akin to anthropomorphism. It sees God and mankind functioning on a level playing field. He is lowered to this world, made to conform to our moral and ethical constructs.

Parenthetically it is worth noting an informative similarity. Rav Ethan says that his belief in our ability to discern the divine will is informed by a modicum of contemporary prophecy. He believes that there are traces of “prophecy” in our “Halakhic instincts.” This notion has echoes in 11^th and 12^th century Ashkenazi poskim’s disproportionate reverence for minhag. The Rishonim’s exaggerated awe for their communities’ cotemporary practices, to the point where they have the ability to challenge the authority of codified Halakhah, is understood by many to be informed by a belief in the inherent sanctity of their community. Their martyrdom during the persecution of the Crusades sanctified their practices and intuitive behaviors, infusing them with the power to force the Rishonim to reevaluate assumed norms and established textual interpretations. Ultimately, those Rishonim, like Rav Ethan, attributed transcendental value to the practices and intuitions of the observant community.

The comparison is informative in the breach. While Rav Ethan allows the communal “prophecy” to challenge established norms which have their basis in the biblical texts, the Rishonim limited that power to the Rabbinic realm. Rabbeinu Tam and others in the group of Ashkenazi poskim who gave Halakhic credence to their contemporaries’ behavioral traditions, drew the line at biblical norms. Communal practices indeed have the power to make us reexamine assumed Rabbinic laws and requirements, but never where they allowed to upend established biblical norms.

(Another pillar of Rav Ethan (and Rav Elisha’s) Halakhic philosophy is the claim that the purpose of the Rabbinic project is to serve as a “compass,” not as a “fence.” It is my sense that such claim would be counterintuitive to most traditional learners. The general impression is the exact opposite, that they see their role as gatekeepers, not as guides. To fully explore this additional disagreement is beyond the scope of this essay. I hope to address it more in depth at a future time.)

Conclusion

Rejecting Rav Ethan’s two fundamental postulates makes it impossible for me to embrace his all-encompassing negation of gender differences, regardless if the source is biblical or rabbinic. I believe that certain gender-based Halakhic distinctions, because of their biblical origin, will (unfortunately) continue in perpetuity. It will, of course, always trouble us, but we will never be able to change that. Our religious mandate, instead, is to, subserviently, accept the burden of divine capriciousness. Rav Ethan’s attempt to alleviate that burden, cannot work because we disagree on the fundamentals.

Postscript on Community

Rav Ethan’s sefer highlighted for me an oft-repeated critique of the entire progressive enterprise. After 183 pages on the Halakhic legitimacy of a robust religious egalitarianism, he spends a scant two pages exploring its sociological implications. This discrepancy is not unique to Rav Ethan, it is true for all of us who are involved in this project. We pay insufficient attention to the socio-religious implications of such drastic changes, introduced at such a fast pace.

The modern religious landscape has been radically transformed in a mere fifty to sixty years. Such rapid change will obviously cause major socio-religious convulsions. We, therefore, need to remember that we are not just rabbis, responsible for our communities’ intellectual growth. Rather, we are also pastors who have been entrusted with our congregant’s spiritual wellbeing. We, therefore, cannot afford to merely focus on the intellectual aspects of the feminist critique, we also need to ensure that these changes are implemented with caution and sensitivity. These changes, if done wrongly, could potentially rent the religious fabric that sustains our communities.

Reverence for tradition is what scaffolds our communities’ infrastructure. When that is gone, the communal edifice falls apart, leaving our congregants exposed and religiously vulnerable. That is a price we currently cannot afford. Our immunity to the potent anti-religious elements that envelop us everywhere we turn are weak and depleted. It would be difficult to justify the progressive agenda if the end result of these changes is a depletion in our religious antibodies instead of an increase.

The real goal of this intellectually challenging and emotionally draining project, at least for me, is to provide an all-encompassing religious arena whereby everybody, regardless of their gender or sexual orientation, feels that they have optimal access to a robust and comprehensive spiritual life. For me, progressiveness is merely a platform which allows a broader array of people to grow religiously, and spiritually excel.

Last week, I posted a widely read and discussed interview with Rabbi Ethan Tucker. This week, I will be posting several diverse responses.  The first Response was by Dr. Malka Simkovich. Here is the second response by Yoav Sorek. Rather than just looking at technical details, Sorek thinks such decisions need to be grounded in bigger questions of family and society.

Yoav Sorek is the Editor in Chief of the Shiloach Journal of for Policy and Thought (Tikva Fund). He created the Musaf Shabbat section for the Makor Rishon newspaper and was its editor for seven years. He is the author of The Israeli Covenant (Hebrew) and has published numerous articles on Judaism, Zionism and public policy. He is a graduate of Mercaz yeshivas and holds a BA and MA from the Open University in Jewish History. . Yoav is currently pursuing doctoral studies at Ben Gurion University.

In theory, Sorek agrees with Tucker’s method and his conclusion, however is unsure on issues of whether the laws are based on discrimination and not a Jewish vision of the family. Sorek’s views of halakhah compared to others is shown on this report of a panel at Yeshivat Siach Yitzhak that he was on seven years ago in which he spoke alongside Rav Eliezer Melamed, Rav Baruch Gigi, Rav Shlomo Dichovsky and Rav Yair Dryfus. As reported by Tomer Persico. (article is in Hebrew), Sorek stood out on the panel for advocating changes to the halakhah to respond to the major changes of the last century. Halakhah, for Sorek, should not exclude the majority of the Jewish people. On the other hand, he is an active social conservative editing a Tikva Fund publication.

Beyond Technical Details:What about the Family?
Yoav Sorek

I cannot recall any previous experience in which I read a conversation about Halakha and enjoyed it so much. Reading Rabbi Tucker, on the background of the contemporary discourse of halakha, was extremely refreshing. His attitude is not only brilliantly articulated but first and foremost very precise, and deeply loyal to the essential basics of halakha. This is a manifesto of a real talmid hakham

He is a true Talmid Chachm – like the one he mentioned, Dor Revi’i (Rabbi Moshe Glasner, the great-grandson of the Hatam Sofer), of whom I am writing my PhD dissertation. Glasner is relevant in another aspect also: He was probably the first modern Jewish scholar to promote post-denominationalism. After defending the concept of Orthodox separatism in his middle days, he powerfully went beyond it in his last years – believing that when and where there is no danger of assimilation there is no justification to the creation of separate communities.

Nevertheless, as to the topic discussed in the interview, I don’t accept Tucker’s position easily.

I understand his case: when dealing with American Orthodox discourse, Tucker finds himself confronting Jews who believe morally in egalitarianism, but believe that the Halakha can’t adhere to it because of formal considerations. We believe in X, but we can’t touch the Halakha that says Y. Justly, Tucker argues against this approach, which turns the rich and meaningful halakhic tradition into a mere formalistic and stagnated position. Halakha should not challenge our moral believes; it should cultivate them.

As Tucker beautifully articulates, halakha should never be isolated from values. Learning halakha contains the mission of listening to the values that Jewish law echo – which can differ from that we collect from the surrounding zeitgeist. Nevertheless, maybe this is the case here. Maybe, the halakhic rulings cited by Tucker are not merely a reflection of the social and economic status of women in the age of the Sages, rather they contain values that we should learn from.

Tucker is so captured in his egalitarian approach, that he does not really consider its own biases. For Tucker, there are only two possible explanations to excluding women from the minyan: The first is their social status at ancient times, and the other is their “xx chromosomes” – a code that represents a discriminating approach. I believe that Tucker is right and that many of the halakhic rulings towards women are a function of their legal and economic status in ancient times; but I believe that this is not the full picture. Halakha thinks that men and women are not identical, and sees them as having different roles in a way that is essential for family and society. God could have created humanity as a single sex. He did not do so.

Where should we draw the line? Which rulings are based on social status and which have to do with the positive differences between men and women? I don’t know. I think this is one of the biggest challenges that are on the table of this generation’s sages. My personal tendency is to count women for minyan, and I think this will become natural; but I am not sure.

Take just one application: a minyan is not just an instrument to allow certain rituals; it is the core of a Jewish community, or edah in halakhic discourse. While we were counting only adult men, we needed ten Jewish household to create a community. If we will count the women also, then we can be satisfied by five. This is a huge change, which is far from being technical. By counting two adults in every family, we reconstruct the meaning of a Jewish family or household. If until now the family was treated up to now as an organic unit, it is now closer to be an umbrella of two adults who share some kids.

I acknowledge that this is the real world we live in. A world of individuals who share their lives, rather than the old world where the family was the basic unit of society. However, isn’t this change destructive to the concept of family? Is it not worth it to consider the that Jewish tradition conserves a different approach to family worth consideration? Do we accept automatically the attitude that treats traditional institutions as oppressive and ignore their benefits?

When we ask about egalitarianism and family, we should not just focus on the technical question of who will stay with the kids. This is not the point (and men can do stay with the kids just like women). The question is what is a family? Does it have any structure? Is there a “head of the family”? Is hierarchy only a bad word, which represents power – or is it also a key for responsibility, accountability and division of labor? These questions are hard to hear for a liberal ear geared toward egalitarianism. However, I think that when learning Torah we should be open for also for these questions.

Because of these considerations, I am not rushing to create egalitarian minyanim– although I can hardly question their halakhic legitimacy. I am afraid that we have not yet really thought through all of the consequences, and we never investigated the question of where differences are discriminating and where they are real and good. This is a huge challenge which I would like Rabbi Tucker, as well as other brave and devoted Torah scholars, to take upon themselves. I will be more than happy to take part.

Tucker’s attitude towards Halakha is loyal and precise, more classic than classic, in the best meaning of this term. Is he also ready to question his liberal egalitarian preconceptions?

Last week, I posted a widely read and discussed interview with Rabbi Ethan Tucker. This week, I will be posting several diverse responses.  Today’s response is by Dr. Malka Simkovich, who first points out a different set of Rabbinic texts than Tucker used, ones that talk about the family, mothers, and feminine qualities. She also points out the practical issues. Then she reaffirms the need for more female voices in the discussion.

Malka Z. Simkovich is the Crown-Ryan Chair of Jewish Studies and Director of the Catholic-Jewish Studies Program at Catholic Theological Union in Chicago. She earned a Ph.D. in Second Temple Judaism from Brandeis University. She has an M.A. degree in Hebrew Bible from Harvard University and a B.A. in Bible Studies and Music Theory from Stern College of Yeshiva University. Her research focuses on universalist Jewish literature that was written in the late Second Temple period. She recently published  The Making of Jewish Universalism: From Exile to Alexandria (Lexington Books, 2016). She is currently completing a book on Second Temple Judaism that will be published by the Jewish Publication Society.

This response is not about the distinction between leadership and minyan, rather seeks to open the discussion to a broader range of issues.  I note that this essay, in contrast to Tucker’s, speaks more of system then values, responsibility than what God wants, and more about the family and private space than ritual space.

What do Observant Jewish Women Want?

Malka Z. Simkovich

Rabbi Tucker’s arguments rest on his conviction that the essential biological difference between men and women did not interest the early rabbinic formulators of halakhic practice. According to Tucker, the rabbis did not see an innate difference between genders that led them to put foundational proscriptions for men and women into place. Instead, Tucker notes, halakha was once motivated by interests in preserving “class and power.” Now that women’s positions of class and power have changed, halakhic practice must change too.

The assumption that halakha was formulated based on interests in preserving class and power is where Tucker and I disagree, and this disagreement may have substantive ramifications. If Tucker is correct, then one may naturally (and correctly, I think) argue that we need to look within the halakhic system to make changes that accommodate the changes we have seen in women’s social standing. But I don’t think any of these categories—biology, class, or power— is the main driver of the halakhic system. I think the rabbis were more concerned with preserving a stable social organism that depended on a traditional family structure with a husband and wife at the core.

Innumerable statements in rabbinic literature testify to the rabbis’ sense of responsibility when it comes to protecting and nurturing familial stability. When the rabbis ruminate in Genesis Rabbah 17:2 on what living without a wife can be compared to, for example, they are not praising a wife as one would praise an obedient servant or dutiful employee. Rabbi Joshua’s statement that a man who has no wife “lives without goodness, assistance, blessing, or atonement,” or Rabbi Levi’s statement that a man who has no wife is “without life,” can certainly be read through feminist lens that highlight the male-centricity of the rabbinic psyche, which perceives the religious experience mainly through masculine lenses. But these statements should also be appreciated for how they underscore the rabbinic belief in the cosmic necessity of marriage, the foundational connection in the marital relationship that lays the groundwork for everything else that is blessed and good.

Even the mandate in Tanakh to honors one’s parents, which is so developed in rabbinic literature, has the familial ideal in mind.  When we are told in the Talmud (b. Kid. 31b) that Rabbi Tarfon bent down so that his mother would step on him to more easily get in and out of her bed. In the story, Rabbi Tarfon physically and psychologically lowers himself to honor his mother, to allow her the senior status that her motherhood invites–and demands. We are told in the same passage that when Rabbi Joseph heard his mother approaching, he would say to himself, “I will stand before the approaching Divine Presence.” What accounts for the extreme acts of respect that these rabbis paid their mothers? It seems that underlying the emphasis on preserving and honoring parents, especially mothers, is an acknowledgment that they have had a hand in the divine act of human creation. The very act of determining how family units should live and function, moreover, required the rabbis to acknowledge how vital women were to the social system that they were creating.

Much of halakha regards family law and is based on, or hopes for, community units that comprise family units which comprise individual units. When the family unit is threatened, the halakhic system is threatened. Demanding that both husband and wife participate equally in ritual law, therefore, may have been regarded as threatening to the family unit. I am not arguing that the concept of a stable family unit needs to remain static throughout the centuries, but noting that the ideal of familial stability motivated the rabbis.

Anyone who wonders whether the halakhic system rests on the ideal of a traditional family structure should ask a single or gay friend who affiliates with the orthodox community to relay their experience of seeking to participate in public ritual life. While many congregations are moving towards finding ways to include those who do not participate in a traditional family unit, most orthodox communities are not sensitive to how isolating it is to live as an orthodox Jew outside of a traditional family. Perhaps our goal, then, should be to ask whether we can change the concept of what a stable family unit looks like.

My second point regards Tucker’s argument that he is not seeking to change halakha, but trying to “apply halakhah’s internal logic to a changing reality.” I appreciate the effort to look for spaces in halakha for women to participate alongside men, should they choose to. As the years go by, attending synagogue becomes more of an outsider experience for me. The pain of being on the outside looking in grows more acute, rather than more faded. I want my daughters to have the opportunities to participate in ritual life that I do not have. I am wary, however, of innovators’ claim to be inheriting, rather than innovating.  Yet the rabbis, who revolutionized Jewish law and made it normative, claimed in the first chapter of Abot that they were simply inheritors of an ancient tradition and nothing more. I suppose that there is nothing more “rabbinic,” then, than making major changes and arguing that you’re not making any change at all. Still, I find the insistence that the halakhic system is being preserved here rather than being remodeled unsettling.

One final point. I follow discussions about women’s ritual participation on social media and in print with interest, but also with detached bewilderment. The majority of these discussions are occurring between men, despite the fact that we are fortunate today to have plenty of women who are knowledgeable in rabbinic literature. I suspect that despite their scholarship, many women scholars have not imbued themselves with the authority to engage in these conversations as overseers and protectors of the halakhic system. I’m afraid that the most important question, Freud’s question, gets overlooked in these discussions: What does a woman want?

Unfortunately, this question has already been answered in the Haredi community in a way to shut women out. I’ve been told myself multiple times that if women were obligated to attend minyan three times a day, they would not be able to fulfill this commandment. Women don’t want, so the argument goes, full ritual equity and obligation. Despite the problems with making such presumptions, we must take into account the following question: is your equality my equality? Or is it simply placing a major burden on women, who—let’s face it—are often mothers who are doing the majority of the carpooling, laundry, cooking, and cleaning?

Again, I refuse to use the above questions as a means to justify denying women opportunities. I believe that we should seek (and perhaps create) equality and opportunity within the halakhic system. But I also want to take a step back before we move forward. Has anyone asked women what they want? Certain aspects of equal ritual participation seem intuitive, at least to me. I would love to see women being more active as leaders in the ritual sphere. But I also know that some of my friends who “have it all”—my friends who have small children and big careers—are struggling to get everything done, and struggling to find gratification in every part of their fractured lives. Or maybe that’s just me.

My suggestion, therefore, is two-fold: first, we must put women at the foreground of these conversations. Second, we should increase communal and religious elasticity for both men and women by offering more space for men in the household sphere and more space for women in the public, ritual sphere. I emphasize that this space should be offered rather than required.

As a postscript, I will add that after writing the above comments, I made note of some responses to Tucker’s piece on Facebook.  I want to specifically address Sarah Rindner’s important point there that the experiential aspect of Judaism within the home has always been where women have shone as partners alongside men (and often, I would venture to add, more than partners). Rindner indicates that by emphasizing that Jewish women should practice Judaism alongside men in the public sphere, Tucker actually runs the ironic risk of erasing a particular space that has been made for women to function as educators and leaders. If I understand her correctly, I believe that Rindner’s point correlates with my argument above regarding the rabbinic concern for protecting the family unit.

While I am not certain that Ridner’s point was fully addressed by Rabbi Tucker, I was heartened to see that Tucker clarified in his response that the goal of his book is to “open up possibilities, [and not to] dictate anything to anyone who doesn’t want it.” If this is the case, then I assume he would agree that our priority must now be to bring women into the foreground of this conversation and consider what they actually want. We should also prepare ourselves for the consequences of offering these possibilities, which may be that observant Jewish communities will continue to grow more fractured and less cohesive, as men and women forge new paths in prayer worship which involve women in different ways and employ increasingly varied structures.

I am open to Tucker’s ideas, and appreciate that he is galvanizing an effort to formally include women into the sphere of public ritual. I especially appreciate and enthusiastically agree with his point that “the moment we isolate halakhah from values, the word of God from what we think is right…we create a halakhah that is amoral, valueless and all about discipline.” But I want to hear more from Rabbi Tucker and others about why equal ritual participation is a goal in itself. I would prefer to see equal religious gratification as a goal in itself. This gratification should be used as an umbrella category which can include equal ritual participation, but does not demand it.

Rabbi Ethan Tucker is President and Rosh Yeshiva at Mechon Hadar. Rabbi Tucker also directs Mechon Hadar’s Center for Jewish Law and Values. Rabbi Tucker studied at Yeshivat Maaleh Gilboa of the Kibbutz Hadati movement. Tucker was  ordained by the Chief Rabbinate of Israel. He earned a B.A. from Harvard College and a doctorate in  Rabbinics from the Jewish Theological Seminary.

Rabbi Tucker recently published together with Rabbi Micha’el Rosenberg a book on egalitarian prayer called  Gender Equality and Prayer in Jewish Law (Urim Press, 2017). The book starts with the assumption that gender equality has spread even among the religiously observant traditional communities necessitating  a need to re-examine old questions.  The book presents the wealth of Jewish legal material surrounding gender and prayer as a resource for grappling with these issues. The book presents the texts on both sides of the issues, letting the texts speak for themselves. The goal of the book is not to decide law as much as clearly analysis texts.As one Amazon reviewer, aptly evaluated the book: “Whether a reader agrees with the two rabbis who authored the book or not, he or she will find a wealth of information in the book that will prompt thought.”

The presentation of the texts in the book show the use of the scholarly approaches to Rabbinics as well as the many contemporary articles on the issue. However, one of the innovations of the book is the integration of these academic writings into the textual method of the Yeshiva allowing these ideas to enter the rabbinic study hall, the beit midrash.

This interview is on the broad theological premises of Rabbi Tucker’s approach allowing the reader to see his method, which focuses on values of the halakhah. His approach is to attempt to listen to what the tradition says and then to think about what tools we might have for responding to tensions between ourselves and the texts.  Tucker honestly wants to listen to the many voices in the texts and see where that takes him. Since the book does not advocate a specific halakhic position, he is free to show the complexity of the system.

In the book, Gender Equality and Prayer in Jewish Law as well as in the interview, Tucker opens up the possibility that the root of the obligation gap in rabbinic sources is in fact about social status in a society where women would be compared to slaves and minors. Today, in Tucker’s reading, the rabbis would not have made this comparison.

Tucker explicitly rejects approaching the Rabbinic texts with an agenda to find a leniency or starting with what one desires to prove before one starts. In addition, Tucker does not believe in the “adjustment of the law” as in liberal approaches.  In fact, he states that the entire language of “halakhic change” and “authority and innovation” as anathema to the project of the book. However as amply displayed in the interview below, this leads to a certain amount of passive voice of implying that choices need to be made, law has to be adjudicated, and decisions need to be made, but purposely without discussing how this relates to issues of authority and normative halakhah.

Noticeably, Tucker actually makes an argument about the rebellious son (Ben Sorer uMorer) that justifies the original law in its original context.  He rejects the idea that the rabbis saw some divine laws as  immoral and sought to marginalize them, as claimed by many liberal approaches.

During the 2015-2016 cycle of Torah readings, Rabbi Tucker sent out a phenomenal weekly Torah email, where he developed each week a different topic clearly showing his approach and explaining it fully,  The essays and the source sheets are available here. They are worth reading and I look forward to seeing those essays as a  book. The publication of these weekly classes will provide a seminal theology and theory of a halakhah concerned with values. I posted about some of these sheets when they came out. In contrast, this book on prayer is more of a hundred-page worksheet of sources, which only begins to touch on bigger questions and  without an explicit presentation of his theory.

At times, Rabbi Tucker’s approach can seen  to be addressing a specific audience with specific reactions to their prior teachers-especially on topics of submission, community, and rationality- offering a needed corrective. (For example, the era whose religious approach was already mediated by the modernism of Peter L Berger may not see the dichotomies the way he sees them). But for many, his is the voice that resonates with them as offering the answers to their religious quest. For those who want to see how Rabbi Tucker was presenting these ideas six years ago, see this write-up of his local talks, which gives the earlier kernel of these ideas.

The interview below is on his meta-halakhah, not his actual legal positions or on the way he understands specific texts.

1. What is new in the book about  Gender Equality and Prayer in Jewish Law  that is not already in the many volumes on the topic? (See appendix at end of interview for prior literature)

Well, the book indeed stands on the shoulders of prior efforts. I would say the original contribution of the book is twofold.

First, it brings together scattered discussions in one place.  The important book Women and Men in Communal Prayer—despite its title—focuses only on Torah reading.  The Frimers have addressed the topic of minyan over the years, but have mostly been focused on women’s prayer groups (that omit or modify parts of the service that require a quorum) and Torah reading.  The Conservative movement dealt with these various issues in a series of responsa over the years, but there was never a unified presentation of the whole.  We tried to unify the major discussions around prayer, Torah reading and minyan in one discussion.

Second, I think we are unusually transparent in our discussion, though that is obviously for the reader to decide.  Let’s not be coy—we obviously have a perspective on this topic.  Nonetheless, we didn’t want the book to be simply an advocate’s manual.  Rather, we wanted to lay out the issues at stake and to give credence to egalitarian & non-egalitarian positions and how they could be substantively, not just formally, grounded in the sources.  Earlier treatments of the topic, in our experience, are either advocacy pieces that are happy to ignore or steamroll over troubling evidence to the contrary, or seek to shoot down any legitimacy for an egalitarian position whatsoever.  We have tried to locate the underlying values in the texts we studied such that the debates over gender and prayer are actually substantive debates about gender and prayer rather than arguments about halakhic authority and formal precedent.

2)      Can you explain your basis for gender egalitarianism? 

I think one of the most interesting things about the book is how we often maintain two arguments in parallel for a gender-equal practice in the synagogue.  We are trying to listen to what the tradition says about gender and prayer and then to think about what tools we might have for responding to tensions between non-egalitarian ritual and our increasingly gender-equal reality.

We don’t have an agenda on this topic that stands independent of the rabbinic corpus and the halakhic tradition. In short, when you explore this topic you find that the halakhic tradition provides two main pathways for thinking about the significance of gender in the context of communal prayer: 1) notions of honor and dignity, 2) maximal obligation in mitzvot.

The honor/dignity frame turns us towards a discussion of what is now dignified in terms of gender norms and whether that is different from earlier points in time.  We make the case that those standards have shifted and thereby so has the halakhah, which is internally concerned with these sociological categories.  However, we also create space for those who claim these concerns have not shifted and that gender equal participation in communal prayer might continue to lower the dignity of the service.

Some sources point to an obligation gap in mitzvot as the source of gender hierarchy and exclusion in communal prayer.  We try both to show that this is only one branch of the tradition and need not box out the honor/dignity frame, while also taking it seriously as a legitimate and even somewhat compelling way of thinking about our topic.

In this context, we engage the possibility that the root of the obligation gap in rabbinic sources is in fact about social status (a bolder category than honor/dignity).  We argue that this too must be reevaluated in a society where women would never be compared to slaves and minors (as they have been, without angst or embarrassment, in most earlier patriarchal societies).

3)      How can the law be adjusted for gender egalitarianism?

This is perhaps the most important point in our approach to halakhah. We don’t really believe in the “adjustment of the law.”  In fact, that whole language of “halakhic change” and “authority and innovation” is somewhat anathema to the project of the book.  We are not coming with an outside critique of halakhah.  Instead, we are trying to apply halakhah’s internal logic to a changing reality.

Think of halakhah as an eternal light refracted through changing lenses of reality.  You place a light bulb on a roadway with a red lens and all drivers know to slam on the brakes.  Take the same light and put a green lens in front of it, and the same law-abiding drivers floor the gas pedal.  This is not a shifting law, but a shifting reality.  Our claim is that the halakhah never cared about biology per se when it came to public prayer.  Rather, gender was a proxy for other categories of significance, categories that are themselves grounded in social realities.  A shifting response to gender and prayer may then actually be a more faithful fidelity to the underlying values of the halakhah.

4)      How do shift in categories work, especially in regards to gender?

The notion of a category shift is that an object or type of person might signify one thing in the context of one reality and something entirely different in another.  Here are two examples: Mishnah Bava Metzia states that if you find someone’s lost sefer, you must read it or at least roll it once a month.  The commentators make clear that this is because scrolls, when left in one place for too long, begin to decay through trapped moisture and other materials.  Only by rolling them and getting air into them are they kept in good condition, and one who finds a lost object must keep it in good condition until it is returned to the owner.

By contrast, the same Mishnah says that one who finds a glass object should not even touch it, since doing so could only risk its fracture.  Now, in medieval and later times, the word sefer comes to refer not to a scroll, but to a codex.  Same word, similar cultural function of reading recorded information, but completely different technology.  If one were to apply the Mishnah’s rule of reading a lost sefer once a month to what we call a book, one would only weaken the binding!  Thus the sefer of today plausibly jumps from the “use it to keep it in good shape” category to the “don’t touch it!” category.  The value is the same: preserve the lost object for its owner, but that eternal value is filtered through shifting realities and language.

Another example: the heresh—a deaf person—is exempted from a range of mitzvah obligations and thus disqualified from performing various rituals for others.  But the Talmud already points out that these exemptions (and corollary disqualifications) only apply to a deaf-mute.  Even though a deaf person who can speak is commonly called a heresh, a speaking deaf person is not in the legal category of exemption.

The Talmud even backs this up with a textual basis/derivation: Much of the time when the term heresh appears in early sources, it is matched up with shoteh (a mentally incompetent person) and katan (a minor).  The Talmud argues that this juxtaposition is substantive: these three types of people are instantiations of the more general category of those who lack da’at, basic mental competence and responsibility for one’s actions.  By their speech, speaking deaf people reveal their mental competence and are thus plainly obligated in all mitzvot.  When we come to consider contemporary deaf-mutes who speak sign language, it is thus highly plausible—if not self-evident—to suggest that they possess da’at and thus shift categories from exempt to obligated.  Again, nothing has changed about the law—it was always about da’at and always will be—but the mapping of deaf-muteness onto lack of da’at has been destabilized and perhaps vitiated.

This is the same sort of process that can be argued for around gender.  In many areas of ritual law and practice, women are treated as exempt, marginal or excluded.  But they are almost always so classified along with slaves and minors.  This forces us to ask: what does the word ishah signify in those sources?  Is it a term pointing to those with a certain chromosomal and biological makeup?  Or is it one member of a set of three (women, slaves and minors) known to be adjuncts or second-class citizens in the larger Greco-Roman world in which the Sages lived?

Until recent decades, it was self-evident that those with XX chromosomes, as a class, were subordinate in all kinds of ways.  The category shift argument—proffered already several years ago by Rabbi Yoel bin Nun and developed further by me in a recent essay—suggests that the Sages’ original intent in these halakhot that speak about women, slaves and minors was never about biological sex per se, it was about class and power.  Now that those variables have shifted dramatically in our society, women shift from exempt to obligated.  The halakhah stays the same: those with power must subordinate themselves to serve God.  And this is the key point: according to the category shift argument, maintaining an exemption from mitzvot for contemporary women because of their biology actually risks failing to direct them to fulfill their Biblical obligations in a range of mitzvot!

5)      Can we have egalitarianism without adjuncts taking care of the family?

This is a great question, and I am frankly not sure what the answer is.  I have tried to play this out in an essay as well.

My general principles are as follows: 1) The nature of the Torah’s vision of mitzvot is democratic.  It is not a system where a select group of priests do the mitzvot; it is a vision of a mamlekhet kohanim.  We should therefore be generally biased towards more obligation not less.  And if the Torah assumes that people are meant to have children, it must be that care for a family can be fully integrated into an obligated life.  2) There is no question that mitzvot often require the support of others, or a kind of focus and presence that can be hard to attain unless someone else is creating that space for you, particularly in contexts where small children need to be cared for.  3) We can usually hit the right balance here by recognizing that most mitzvot can be performed by all without any real difficulty.  Let’s be honest: most positive mitzvot take a few seconds to perform and can be done even when caring for children.  We are mostly talking about the time consuming practices around public prayer and ritual.

A close look at rabbinic precedents on sharing obligations with more limited resources reveals some interesting models.  In some cases, balancing broad obligation was accomplished in shifts—the way all traditional communities handle the obligation of megillah, where there was never understood to a non-obligated class of adults.  In other cases, we find that participation can indeed be divided up, but the set of adjuncts is shifting, rather than permanent and essentialist.  For instance, even if all adults count in a minyan, they can’t all go at the same time.  [Truth be told, this was always understood in terms of the division between the older/retired/batlanim class and the working family units, but that is another story.]  But one can go while the other cares for the child, without making this essentially about gender.

I think this approach can get us where we need to go.  But we do need to have some culture shifting here, no question.

6)      What is unique in your method of learning? How can you look for a reason for a Tannaitic source or an early medieval commentary and then use the reason or value outside of its reception in the tradition?

Well, I don’t think we think of ourselves as using any sources outside of their reception in the tradition.

As we engage gender, we are trying to find reasons and values in our sources and to understand them.  We are actually deeply invested in understanding those sources within their reception in the tradition.  In fact, we probably make some of our readers uncomfortable when we seem to justify and explain why it might have made sense to exclude women from minyan!  We take seriously the notion that there have been and still are human societies where enfranchising women in a given activity is perceived as lowering the honor or seriousness of that activity.  While we might lament that, seek to change those realities or even preach against them, it might be that until we do, the halakhah’s concerns around honor indeed argue for a less than egalitarian regime.  We don’t think that is true of the world we are writing for, but this openness to multiple realities and to the underlying concerns of our sources is a feature of our work.

Our innovation, such as it is, is being willing to take that value-based consideration into what we see as a different reality.  But our fundamental claim—as is the claim of anyone engaged in traditional psak—is that if R. Tam or the Meiri or the Levush were to confront our reality, they would say exactly what we are saying.  (Provided, of course, that they agreed with our assessment of reality, which they might or might not have.)  So, to the extent there is something unique, it is maybe only in light of more recent tendencies towards a hyper-formalism in psak halakhahin the modern period.  But—using an example for those who have read the book—the way we talk about minyan and gender is virtually identical to how the Beit Yosef talks about a minor leading Arvit when he builds off of the Ra’avad’s value-based analysis of the Mishnah that seems to prohibit that.

7)      Are you uprooting the Shulkhan Arukh and Ahronim?

We are not interested in uprooting anything.  If we say a minyan can be gender blind, even though the Shulhan Arukh clearly does not, we are not uprooting the Shulhan Arukh.  We are claiming that when the Shulhan Arukh excludes women (along with slaves and minors) from minyan, he is not talking about biology, but is expressing, in shorthand, a value category that is either about social gravity or obligation in mitzvot (which is itself plausibly about social gravity of a higher order).

8)   How can our values influence our understanding of the tradition?

Another big question. My overarching approach is to insist that there is only one conversation: What does God want of me?  The moment we isolate halakhah from values, the word of God from what we think is right, we create religious and moral Frankensteins.  We create a halakhah that is amoral, valueless and all about discipline.  And we create a morality that is prone to being trapped in an echo chamber of self-righteousness.

A deep process of Talmud Torah is one in which two things happen in parallel:

(1) I listen deeply to the tradition and to what the tradition is saying and I challenge my preconceptions.  The values I came to the table with may only be a part of the story; they might even be wrong.  But I don’t bludgeon those values with the formal discipline of submission; instead I open myself up to being persuadedby the sources of our tradition.  This has to be an exercise in intellectual and moral curiosity and humility and is, to my mind, what any true learning is about.

(2) My deeply felt moral instincts come from somewhere, and when they stubbornly persist even in the face of honest listening to the tradition, they can be presumed to be of some worth. Our Sages said about the Jewish people: If they are not prophets, they are descended from prophets.  There is some kernel of prophecy that the Jewish people retain in their halakhic instincts even in our own time.  A true journey into the discourse of values and morality then searches the tradition for sources and perspectives that capture these values in the distinctive language of halakhah.  Sometimes a person can do this on their own, but usually they need a guide, someone who knows the territory of the rabbinic canon and who can show them the way.

The overarching goal is simple: the telos of the conversation is eliminating the perceived gap between morality and halakhah.  Angst about the conflict between the two is not to be valorized; it is an opportunity to strive for synthesis and resolution.

9)   You use the Dor Revi’i  to increase the role of ethics in our halakhic understanding. How?

The Dor Revi’i is a remarkable and fascinating Talmudic commentary by R. Moshe Glasner, the great-grandson of the Hatam Sofer.  He was an early 20^th century figure steeped in deep traditional learning and asking fundamental questions about Torah.  (He was also one of the early religious Zionists.)  He is, to my mind, one of the most powerful voices for insisting on a unified conversation that incorporates our internal normative Jewish tradition and the larger framework in which the Torah embeds that tradition: the human project of stewarding God’s physical and moral world.  You can read more about him here.  I think there are some who “disagree” with the Dor Revi’i who don’t understand him, taking him to mean that universal standards of morality always trump halakhah when the two come into conflict.  I think that is incorrect.  The Dor Revi’i would have defended circumcision tooth and nail, even if he lived in an environment hostile to it as a form of barabarism.  What he would have done, however, would be to argue for circumcision’s fundamental morality within the terms of an ethical discourse, bringing the Torah’s unique perspective to the conversation.  He would not have hidden behind the Torah’s authority in order to dodge the conflict.  That distinction is critical, in my view.

Others oppose his way of thinking because they have come to see a willingness to follow seemingly immoral halakhot as the acid test of true religious devotion.  I have written about this view in the context of the Akeidah.  I think it is a misreading of the Akeidah—Avraham would not have understood the command to sacrifice (not murder!) his son as unethical—and is a very dangerous blueprint for religious life.  It buys religious obedience in the short term at the expense of the proper internalization of the values of the tradition in the long term.  Rulers who ultimately rule based on power and authority are generally considered tyrants, whose rule we escape at the fist plausible opportunity.  I don’t (want to) relate to either God or the Torah in that way.

10)   How does the study of the rebellious son help us in this ethical quest?

The rebellious son is, in my mind, one of the most misread passages on this topic.  A number of contemporary scholars see it as a classic case of a Biblical law that the Rabbis found to be immoral.  They then set to work marginalizing the law and killing it through the death of a thousand qualifications.  The law is perceived as immoral because of its execution of a juvenile, its punishment of a disposition more than a crime already committed. The famous statement of at least one Sage that “the case of the rebellious son never came to pass and never will” is taken by some as a defiant program for eliminating this blight of unjustice on Jewish law.

I think this is all wrong, and my critique is great example of playing out the method I described above.  If we really listen, and I mean really listen, to the text and context here, I think we emerge with something quite different than the above reading.

First of all, it is noteworthy that I know of not a whimper in rabbinic sources about the law that says one executes a child for cursing their parents.  I think it is very difficult to claim that Hazal were bothered by the death penalty served up to the rebellious son; they are silent in too many other parallel places where improper use of words alone condemn a person to death.  We then have to be honest that we engage in this sort of “pre-crime” enforcement all the time in areas where we are worried the basic structure of society is at stake.  If you walk on to a plane with a firearm—even though you never picked it up, threatened anyone, much less fired it—you can be locked up for 20 years.  Further probing of context should lead us to recognize that the Torah is operating in a framework in which there is no strong central government, no meaningful monopoly on violence in the hands of the state and the death penalty is a basic tool of discipline in a more unruly and violent society.  A child disobeying a parent in earlier generations is more like the assassination of a police officer in our own than we might at first realize or be comfortable admitting.  All of these hard questions and openness to learning have to be a part of the process.

Second, we have to be careful not to project our own—reasonable and moral!—misgivings about applying this law today onto those of earlier times.  Indeed, a close reading of the passage where Hazal “eliminate” this law reveals nothing of the sort.  The Maharsha (R. Shmuel Edels, Poland, 16^th c.) has a great reading of that passage.  The Talmud’s formulation is: “Can it be that because this young man ate some meat and drank some wine that his father and mother will take him out to execute him?  Rather, this case never happened and never will.”  Maharsha notes the presence of the father and mother in this depiction; indeed, it is unusual that the Torah itself involves them in the due process required to execute the boy.  He sees the Talmud as noting that, once the father and mother need to sign off on the execution, there is no way any parents will actively participate in the execution of their own child.  This is not a moral critique of a law, rather a clear-eyed view of the reality of the law’s application. (In addition, perhaps the Torah’s sense that only a child whose parents have completely given up on him is really the sort of threat we should be dealing with in such an extreme way).  Beautifully, the Maharsha goes on to say that the law was nonetheless taught because of the deep values to be learned from it.  Adolescents can be dangerous and parenting is serious business.  Parents should approach their work as a life-and-death responsibility, because if their child indeed becomes a threat to society on their watch, they bear responsibility.

11)      What is the influence of your teachers at Yeshivat Kibbutz Hadati?

Rav Elisha Anscelovits taught us many things, but I will highlight two:  1) Never be afraid to try to identify what a mitzvah or practice is about, what are the values that are guiding it.  He goes further, which is essentially to reject as problematic an aversion to seeking out reasons for mitzvot.  When we both first encountered R. Elisha, we still had unreformed instincts to treat halakhah as a set of boundaries and rules, a kind of formalistic game, as opposed to a force for purpose and meaning.  R. Elisha helped us start treating halakhah less like an electric fence and more like a compass.  2) Never dismiss any source you come across.  Try to understand it on its own terms and generally don’t just overrule it with the force of more precedents on the other side or with your presumed ethical superiority.  If you really believe in the multivocality of halakhah, if you really take seriously the gemara’s injunction of aseh ozneka ka’afarkeset—make your ear like a hopper—then you have to account for all views that arise.  We hope that comes through in our effort to give full voice to the non-egalitarian sources we analyze throughout the book.

We also feel a great debt to Rabbi Bigman, not only for creating the yeshiva where we spent many years of happy study, but also for the wisdom he shared with us from his many years as a communal rav.  Rabbi Bigman’s psak is always so intrinsically humble and grounded in the facts of the people standing in front of him.  This book, by its nature, had to make general pronouncements.  But I hope we have done our teacher proud by trying to retain a humble tone that recognizes that any analysis of halakhic texts, no matter how correct, may also be bound to a certain audience with certain boundary conditions.

12)   How are you different than the Conservative Judiasm of the 1970’s and 1980’s whose egalitarianism declared women rabbis as obligated as men. And how are you different than Open Orthodoxy’s quest to read between the lines to create leniency?

Let me back up for a moment and acknowledge that none of the process we went through in this book would have been possible without those earlier iterations of the conversation.  Speaking personally, I am indebted to my rav hamuvhak, avi mori, R. Gordon Tucker, who not only taught me Torah from a young age but also went through his own journey on this topic.  He was educated and raised in observant, non-egalitarian environments in his youth and davened and practiced that way throughout college.  He arrived at JTS around the time when the issue of women’s ordination—and corollary ritual roles—was being taken up and he quickly became an advocate and a leader on that front.  It is hard to imagine how I could have arrived at my own thinking on this matter without his influence over the years.

But a closer look at the debates and arguments tossed around in the early 1980s in the Conservative movement around this topic did not really embrace an egalitarian regime of obligation.  Nor was it really a values-based discussion at all.  The most prominent papers written in favor of a more egalitarian approach were those of R. Mayer Rabinowitz, who argued that the widespread availability of siddurim rendered the formal requirements for the sheilah tzibbur obsolete, and that of R. Joel Roth, who suggested that women could electively obligate themselves in mitzvot.  These were what I would call classic workarounds: they took the exemption and exclusion of women for granted, but then pondered whether there was a way to end-run around it.  There was no claim that the underlying categories behind the gendered halakhot needed to be mapped differently onto contemporary women, much less that contemporary women might be fully obligated just by dint of their social status!  This, it seems to me, is one aspect of our own analysis that is dramatically different from those earlier efforts.

I can’t speak for Open Orthodoxy—I am not even sure what that delineates anymore—but I see what we are doing as part of a larger conversation about the interaction of a gender equal world with a rigorous commitment to and grounding in the halakhic canon.  I have heard a number of people say that they can buy the conclusions of part I of the book—full equality of leadership of the service—but not part II—full equality of citizenship through minyan.  I am not sure that is a truly principled distinction, it might just be the right next step for a whole set of communities.  I also think the category shift approach is still sinking in.  When I first taught it myself 15 years ago, I thought it was crazy and no one in the audience would buy it.  I now find that for more and more people it is the only intuitive way to think about it.  I think those of us who are honest here should recognize that there is a process at work on a spectrum.  My own bias is to see allies everywhere, not competitors or rivals.  We’ll see if I am naïve or prescient in the long run.

13)   At various points you have defined yourself in three different way: as following the 19^th century Rav Bamburger about keeping the community in tact as a whole, other times as non-denominational, and other times as kibbutz Hadati? How do these relate and how does it not matter?

I think these all tie together for me, and the unifying element is taking responsibility.  Rav Bamburger remains a powerful model for refusing to relinquish a covenantal vision for the entire Jewish community; that continues to motivate me in deep ways.  The most powerful (and perhaps scary) dimension of a multi-generational covenant is that it binds everyone.  That means that every Jew is the addressee of the Torah’s mitzvot, whether they acknowledge this or not.  And a key corollary of this: every Jew is the Torah’s constituent and the Torah is accountable to them.

In many ways, I see a non-denominationalism as the American-Jewish translation of that attitude.  Yes, many communities and even religious leaders might say that they have no interest in Torah or mitzvot, only peoplehood and Jewish identity.  But a covenantal vision of Torah doesn’t really have the luxury of simply letting people opt out and then reaping the rewards (such as they are) of a smaller, tamer, more monolithic constituency.  Instead, we must ask ourselves:  How do we create a vision for Torah and mitzvot that is not that of an interest group but of a vision for national destiny and purpose?  And that will also require some respectful persuading of fellow Jews as part of that process.

Kibbutz Hadati and the wing of religious Zionism it represents captures this as well: We have to take responsibility for the entire Jewish enterprise in the modern world and we must insist that secular politics alone cannot be the answer.  I think the most interesting parts of religious Zionism in Israel right now are asking how the instincts of many self-described secular Jews are woven into a covenantal framework for all Israelis.  See Yoav Sorek’s latest book, Haberit Hayisraelit for a great example of this sort of conversation.

I think these different strands also have in common a certain irresponsible disregard for realpolitik.  That is sometimes a weakness, but the payoff in the integrity of the larger project is worth it to me.

I always admired the works of the sociologist Peter Berger as a formulation of religious commitment under the conditions of modernity.  Berger died two months ago and deserves a Jewish retrospective. I wavered if I should write the respective, hoping that someone else would write it first.

However, one morning, a few years ago, I woke up to discover that Peter Berger, someone whom I only knew from afar, quoted one of my articles approvingly as a springboard to discuss contemporary issues. This compliment was the momentum that resolved my indecision.

Berger praised my article for its noting the greater Jewish openness to Christianity today and how the thinkers in the 1960’s “era of dialogue” did not actually know anything about Christianity. This is unlike today where there are Jews deeply knowledgeable about Christianity, and vice-versa.  Berger singles out my statement that differences internally between certain Jewish theological positions may be greater than between Jews and Christians of like mind.

However, Berger always elided the differences between Judaism and Christianity.  I always wondered about that. I knew that he came from a Jewish family that converted to Lutheranism in 1938 when he was nine years old. However, my big surprise discovered while writing this blog post is that his family survived the Holocaust by fleeing to British-mandate Palestine until 1946. How did he spend the years?  I wonder what occurred during those years. . Berger came of age as a Jewish refugee in mandate Palestine, meaning he certainly knew basic Jewish life and practices. Surprisingly, I have not found any popular or scholarly article discussing this aspect of his life.

UPDATE: I was notified by a colleague of Peter Berger’s who saw this post that he wrote an autobiography, which was only published in German Im Morgenlicht der Erinnerung: Eine Kindheit in turbulenter Zeit (2008)  There are only 8 libraries in US that have a copy of this rare volume, yet a full copy is available online. It has not been distributed and has not made it into the secondary literature. In the volume, Berger describes how his family converted to Anglicanism for potential visa and immigration opportunities They then fled to Haifa where they assumed they would quickly get a visa to the Americas, instead they were there for eight years. When he first arrived he went to a Jewish school that used Hebrew and uncomfortably wanted to call him Yakov. Berger claims his remembers little of this Hebrew. Originally, people did not know that his family was Christian, but when people found out they shunned the family. The family was aided by other Christian Jews who found his father a job and found schools for the young Peter. He went to a Swiss mission school that instructed in German and socialized the students in traditional Lutheranism including pious visits to the Christian sites in Jerusalem. There Berger adopted their German Lutheran piety as his own. Berger was later rejected from Haifa Reali High School because of his faith and instead attended an Anglican Secondary school.  Haifa is where he first encountered Bahai, the topic of his Ph.D. thesis. The book also describes his encounter with Zionism and with American Jewish congregations upon arrival in the US.

Berger correctly credited me with bringing the gap between “intellectual religion of the books and the lived religion of the pews,” as reflected in the Saadyah dyad in the title of this blog (intellectual beliefs and lived opinions). His reading of my article shows his insight into authors he never met. However, the attempt to hold both aspects at the same time is the hallmark of Berger’s own thought. In this review, I will deal only with his theology and not his sociology; his religious vision moving from critique of suburban religion to explaining the existential value in religion, to developing his own deeply committed religious humanism.

(This is a first draft of some first thoughts on his theology growing out of decades of teaching his work. The post is subject to change. If anyone has any further Jewish applications of his thought, then let me know. maybe I should do one of these for Derrida, Zygmunt Bauman, or Tzvetan Todorov)

Peter Berger was born in Vienna on March 17, 1929, arriving in the United States shortly after World War II ended. In 1950, he produced a thesis on Puerto Rican Protestants in East Harlem; for his doctorate four years later, he focused on the Bahai movement in Iran. Berger served in the Army for two years in the mid-1950s and taught at schools including Rutgers University and Boston College before landing at Boston University in 1981. Four years later, he founded that university’s Institute on Culture, Religion and World Affairs, where he served as director until 2009.

The Noise of Solemn Assemblies

Berger finished his PhD in 1954. Before he embarked on his steady stream of sociological works. He produced a youthful work in 1961 of his struggle between his committed belief in Lutheranism based on the philosophic works of Soren Kierkegaard, Karl Barth and Reinhold Niebuhr, which demanded full commitment to a higher revelation and the lightness of the typical suburban congregation. This 1961 jeremiad, The Noise of Solemn Assemblies: Christian Commitment and the Religious Establishment in America is the work I think of most often when looking at Modern Orthodoxy.

Taking his cue from Amos 5:21 “I hate all your show and pretense–the hypocrisy of your religious festivals and solemn assemblies, “Berger finds suburban religion as entirely this-worldly and social without a sense of the transcendental, more concerned with political and social identity, a hypocritical solemn assembly.

Berger saw religious institutions as dedicated to American culture, sensible, tolerant, far removed from the fierce piety of Kierkegaard. Years later, Berger himself admits: “It is hardly surprising that I had difficulties coming to terms with it.” The suburban congregation was not a locale for desperate leaps of faith, rather it was the worship of the goodness of America. He “was not prepared to worship it or to equate its morality with Christian faith.” Berger quotes his contemporary colleague John Murray Cuddihy who called it the “Protestant smile.” Put sociologically, he declared the principal function of these churches was to legitimate the middle-class culture of America, to certify that the latter was indeed “OK.” They condemned or sought to explain the deviants such as the divorced, the socially rebellious, or those who left the faith, but they avoided commenting on the religious nature of marriage, community, and faith.

This analysis is of the same cloth as that of his contemporary Rav Soloveitchik, who from 1956 -1970 also worked on the tension between the happy unreflective materialism of Adam I and the Kierkegaardian faith of Adam II, especially in his Lonely Man of Faith. Soloveitchik, like Berger, coming from his study of Buber, Barth, Brunner, had abstract ideas of the covenantal community, the covenetal nature of marriage, and of faith, but these ideas hit the wall of the actual suburban Jewish congregation. However, Soloveitchik ideally envisioned repentance (teshuva) and halakhic observance as overcoming this cultural religion bringing one to the transcendental, yet empirically most of those who followed him only produced a world of Adam I, happy congregations of the communal. Followers of Soloveitchik, not Soloveitchik himself, saw the very act of joining the solemn assembly of a modern Orthodox congregation and following its norms as somehow overcoming the lightness of modern religion. Berger, in contrast, provided the sharp and personally pained observations that transcendence was missing in the life of most congregants..

Berger encouraged us to look for “signals of transcendence,” moments that pointed to an “otherness which lurks behind the fragile structures of everyday life.” A Rumor of Angels 1969. Heschel, Soloveitchik, Buber, and most religious Existentialists offered similar advice.

In 1963, Berger published his classic Invitation to Sociology  presenting sociology as a form of humanism able to teach tolerance and compassion as well as an ethic of responsibility. Social thought sharpens our religious and theological thinking. Among Jewish thinkers, there were few that fit this plan except for   Will Herberg who was already creating a sociological theology in the 1950’s and Arnold Eisen in the 1990’s. Are there others?

The Sacred Canopy

His most famous work was The Sacred Canopy: Elements of a Sociological Theory of Religion (1967), a classic assigned in many university religion classes and which offers important insights into modern religion, especially the ideas of worldview, sacred canopy, plausibly structure. If you never read this work, then you should immediately do so.

For Berger, in the modern age we are constantly forced to choose how to interact with the world and shape it. We want our choices to be stable, but since society is always in a state of change, it does allow the stability. Religion’s main project is to create this sense of stable predictable order and to make all of us believe in it, although in fact it is always an illusion. More importantly, society wants us to believe that those choices are not really choices. Society wants us to act as if they are necessary and inevitable; as if they are an objective reality beyond our ability to change.

Religion is the means of objectifying a stable nomos based on a fixed pattern of the cosmos, society, or in the contemporary orthodox Jewish case, the halakhah. Berger calls the interaction by the term “externalization” and the creation of stable products as “objectivating,” which means teaching us (especially when we are children) to make the same choices repeatedly as we externalize ourselves.

The ultimate threat for the religious person, however, is to lose the nomos altogether and be plunged into the chaos of anomy. Therefore, whatever we practice today as Jews is generally presented as in continuity with the past, as outside of the rapid changes of history and society, and as inviolable. Religion denies reality beyond the nomos of the community. A group of people who maintain a body of knowledge, along with the institutions they have created, is called a “plausibility structure,” which according to Berger offers a sacred canopy for understanding our lives. The nomos will seem plausible as long as it is supported by a strong plausibility structure. Since society wants to maintain its nomos, it will try to exclude or destroy every alternative nomos. Hence, Jewish ideas such as tradition, peoplehood, and mesorah are essential to maintain the stability.

Three take-away ideas from Berger’s thought. The issue of plausibility structure and reason, the disbelief in the sacred canopy, and the nature of the structure itself.

The first is that according to Peter Berger people do not decide if a religious system is logical or if the dogmas make sense or if they can be defended. Rather, they decide if it offers a working sacred canopy providing a safe worldview that makes sense of their life. People become Evangelical or Orthodox because it offers a sacred canopy, a worldview to live within its system. Religious claims are not about whether its tenets are true or false, rather people adopt an entire sacred canopy, an entire system, if it makes sense and grounds the world they live within. Peter Berger discusses how Eastern European Jews who came to the United States lost their sacred canopy. The supernatural world of the shtetl made little sense in scientific and educated America. The American forms of Judaism had to create new sacred canopies with new plausibility structures.

By extension, when people leave Orthodoxy today, it is not because of a specific doctrine; rather the sacred canopy no longer corresponds to reality. It is not an issue of defending a specific doctrine or belief, nor is it a minor repair to an idea or practice. Rather, the entire canopy no longer works since it lost its plausibility. However, as long as it still works, then no specific problem necessary matters. Answering up questions on small points or defenses on a given topic of belief do not work since people choose an entire sacred canopy. As long as it works, then minor issues don’t matter and when it cracks then the entire canopy gets replaced.

Conversely, when someone does become orthodox, it is because the sacred canopy of the family values and Shabbat observant lifestyle makes sense as a way to create an ordered reality, not because of cogent doctrine.

Second, the moral qualities of a sacred canopy are deeply important. If clergy turn out to be involved in scandal and corruption, logically, that should not tell us anything about the truth or falsity of religious truth claims. However, emotionally most of us do judge a nomos by its plausibility structure, for they are the people who represent the nomos to the public. When the plausibility structure is called into question, this can lead to both denial and changes in the nomos. Nevertheless, for many in an open society, it leads to them finding a new nomos, a new sacred canopy- leaving their denomination. The similar moral issues of politics, child abuse, or economics can also lead to the shattering of the sacred canopy.

Third, despite  widespread  acceptance  of  Peter  Berger’s   cultural  framework,  theories  of Torah  u-Madda continue  to  use  nineteenth  century  understandings in which Judaism and the world around it are separate cultures.. For  example, many modern Orthodox authors assumes  culture is produced by the surrounding non-Jewish society, in that the cultural elements of philosophy, medicine, literature, or entertainment are outside Judaism. Modern Orthodox Jews can decide to accept  or  reject these eleemnts. In Peter  Berger’s  terms, we live  in  a  single  cultural worldview and create as much “sacred canopy” as needed to maintain the plausibility structure, the coherent nomos. The encounter with “western secular  culture”  is from  Berger’s  perspective  not  an encounter  with  an  outside body of knowledge, rather a  Jewish  plausibility  structure of Torah uMadda or Shadal’s Jewish humanism, or Israeli Religious Zionism. The acceptance of   secular studies , professional life, and  popular culture by Modern Orthodoxy is part of the construction of their sacred canopy of  Judaism. Berger  discusses explicitly the  Jewish  encounter  with  modernity  as  the  breaking  of the  Eastern  European  Jewish sacred  canopy  in  the  move  to America, and the subsequent need to reformulate a new Jewish sacred  canopy.  Hence, the secular studies in Modern Orthodox was itself part of its formulation.The current lack of a need for secular studies above a high school level or for career purposes is itself part of the construction of today’s Orthodoxy.

Berger’s view of religion is existential in that we each construct our own plausibility structure, our own sacred canopy and if we choose not to then it is an act of Existential bad faith, a lack of authenticity and not taking responsibility for choices. Even though he is a sociologist, he has little tolerance for those who just go with the flow of their friends and community.  Berger’s thought opens up the abyss between ideals and community, or between modern Orthodox (or any other movement’s) theology and the lightness of the community members.

The Heretical Imperative

The Heretical Imperative: Contemporary Possibilities of Religious Affirmation (1980) was his theology of humanism in an age of pluralism and choice. The book made a lasting impression on many as a clear theological definition of the modern believer as educated humanist.

The main thrust of the book is that we now live in an age of pluralism, in which modern people naturally question ideas and their sacred canopies and do not just accept them by fate. Today, we choose our sacred canopy. Berger reminds us that the original etymology of the heretical (hareisis) is “to choose.“ the taking of a choice. For Berger, the necessity of choice becomes the virtue of choice. Hence, the title means the imperative to choose. By “the heretical imperative”, Berger means this radical necessity to choose.

Berger discusses three possible responses to the modern religious crisis:

The first of these involves the reaffirmation of embattled tradition, or in other words neo-orthodoxy, especially the path of Karl Barth. One reaffirms the tradition as the one true tradition avoided the new condition. This approach is higher influential in Jewish Orthodoxy. Berger points out that neo-orthodoxy can never have the pristine innocence of simple orthodoxy.

The second possible response to the modern situation is “reductive,” best exemplified by Rudolf Bultmann. This approach allows one to create naturalistic and reforming versions of religion acquiescing to the modern condition, which for Berger entails excessive concessions to it. Many rabbis who turn Judaism into pop-psych, pop-culture, or social utility fall into this category even if they are observant.

The third and final possible response discussed by Berger, and for him the only valid one, is to be open to the human experience of faith. A religion that is open to the changes in society and knowledge and to the fact that we are choosing this affiliation. In many ways, it is a new form of humanistic religion.  Whereas, Shadal said nothing Jewish is foreign to me, implying that there is a fixed body of humanistic knowledge. For Berger, this need to be modified in that we are ever needing to confront the changes of society and ever widening circles of knowledge

Berger advocates a “mellow certainty,” a moderate position. A historically oriented approach within a tradition, with the understanding that one cannot simply swallow the tradition but has to enter into a reasonable dialogue with it.  We can associate this position with William James or Charles Taylor.

Elsewhere, he quotes his colleague Adam Seligman who uses the term “epistemological modesty.” Epistemological modesty means that you believe certain things, but you’re modest about these claims. You can be a believer and yet say, I’m not really sure. I think that is a fundamental fault line. For him this is the greater dividing line than between faiths, rather it is between those who pretend we are not making choices and those who are.

For Berger, the basic fault lines today are not between people with different beliefs but between people who hold these beliefs with an element of uncertainty and people who hold these beliefs with a pretense of certitude.  However, for him, it is not a pluralism as much as I make a decision based on what is known to me. Berger stated that modern individuals are, or ought to be free and are responsible for their own. An individual’s subjective experience of the world is “real” by definition and they possess certain rights over and against collectives.  (In contrast, postmodernists do not have individual subjectivity as much as a self that is constructed by situation and society.)

Berger’s stress on individual experience of choice is reflective of modern consciousness, which turns religion into a private act, essentially individualistic and experiential. Berger welcomes the pluralism of perspectives resulting from secularization. Since all thought, including modernity itself, is shaped by plausibility structures, no thought has a cognitive privilege with reference to any other thought. The theologian Van A. Harvey (1973) in an widely-read important review of Berger pointed out: “Berger’s own attempts at theology are a reflection of this crisis rather than a cure for it because his own theology itself has no norms or criteria that govern his statements. It simply is a reflection of his own personal sensibility.”

Berger emphasizes a middle approach that balances religious submission with an awareness of the modern condition, historicism, and contingency. He represents the modernist religious situation, especially the strategy of collective bargaining in which an “internal dialogue goes on within the believer, or within the community of believers.” The believer says to himself, “There is no way of holding on to the miracles, but we won’t give up on the revelation.”

Personably, Berger rejects the notion of a decisive revelation in Christianity but retain the notion of the Biblical God. He needed to maintain this pluralistic condition and found the negotiation that worked for him.   Or the observant Jew who may accept the State of Israel as messianic but not Chabad messianism, or she accepts the efficacy of prayer but not the Breslover conversation with God. It is a constant mediation and bargaining between the modernity and the belief.  (if one is actually interested in the Hasidut, then see my follow-up post on Berger and mysticism.)

Several modern Orthodox authors in the 1980’s and 1990’s used Berger’s qualities of the modern condition -autonomy, independence, and self-aware choice as their definition of Modern Orthodoxy. One author even directly associated the ideas of Peter Berger with Rav Soloveitchik. However, Berger’s approach is much more dynamic, individualistic, and accepting of the historical and social sciences. While, in my opinion, Rav Soloveithcik and Modern Orthodoxy was more Barthian, tradition bound, and collective. Even now, there is still a core of intellectual Modern Orthodoxy who understand Rav Soloveitchik’s Existentialism in Peter Berger terms, even acknowledging the influence of Berger’s definitions of modernity, autonomy, and pluralism on their Torah uMadda thinking, yet not seeing Berger’s differences from their perspective.

For example, as an existentialist, Berger places the legitimation of the community’s practices in personal choice, not denomination, gedolim, community, or tradition. If there is a tension between the tradition and the personal choice, then one must personally resolve the tension. However, a modern Orthodox author who finds a place for personal choice is their Orthodoxy is not the same as the fundamental sociological question of legitimization.

The tension of autonomy and tradition was a widely used phrase of 1990’s Modern Orthodoxy. The first Orthodox Forum was actually on personal autonomy and rabbinic tradition as a way of staking out a modernist claim. In the volume, Lawrence Kaplan advocated for greater autonomy and a virtue of individual decision-making. (Already a harbinger of things to come, one of the papers claimed that autonomy and creativity was to be limited to Roshei Yeshiva and Torah study). A similar question was asked in an Israeli volume  Between Authority and Autonomy in Jewish Tradition, eds. Avi Sagi & Zeev Safrai [Hebrew] (Tel Aviv: Hakibbutz Hameuhad, 1997) Twenty years later, a different Orthodox Forum returned to ask a new generation about autonomy.  Yet, individual autonomy and acting according to the dictates of their conscience is still used by older observers to discuss Modern Orthodoxy in recent discussions.

The question is who is observant and Orthodox with a vision closest to Berger’s vision. Are Shadal, Levinas, Benamozegh, Hartman, or Boyarin closer to Berger’s vision? The question today is if one were to follow Peter Berger, then can Torah be open in the same way to new horizons of knowledge, of secularism and of society? Can one combine Torah with the pluralistic condition including the critiques of history and sociology? If one is already a furnished soul possessing all of the answers via the tradition, then Berger would see it as a retreat from the modern condition. Or maybe there does not have a Jewish equivalent to Peter Berger. There are enough educated lay people in the Jewish congregations who feel close to Berger’s existentialism and his heretical imperative who just use his thought by which to process and conceptualize their Torah.

I was recently at a wedding in which the person sitting next to me, an educated committed open Modern Orthodox person, pondered how the modern Orthodox world wants their children open to the world but not too open. In terms of Peter Berger, we can see that statement as  showing simultaneously that education is the key to being socialized into a community with its given plausibility structure. Nevertheless, the education should only be pluralistic enough to function in the world and attain professional success, but it should not be too open so as to break the current plausibility structure.  The education should not remove the taken-for-granted certainty provided through socialization in school.  Hence, Jewish day schools have a crucial function to both give a plausibility structure and at the same time to prevent Berger’s pluralism.

Some fault Berger for not depicting Judaism correct in his books. However, it is less accurate to fault Berger for not doing justice to Judaism because he also he does not do full justice to Islam, Catholicism, or Asian religions. He does focus at all on institutions, tradition, ritual,  authority, or study; today he would be read in conjunction with Talal Asad and others who see religion as law and authority

Later Essays

His later essays fill out many other aspects of the theological positions make up Berger’s worldview, which combined both liberal and conservative elements.  He became one of the main intellectual figures in the neoconservative movement along with his friend and First Things founder Richard J. Neuhaus.

Among the many notable points of Berger’s later work is a sustained rejection of the sociological thesis of secularization; most recent obituaries mentioned this point. His earlier works followed the majority of sociologists and assumed that religion was in decline before secularism. By the 1990’s, Berger firmly rejected that position and believed that religion was not declining or dissolving into obscurity in an increasingly secular world. Rather, religion was holding fast and even growing in some places, offering an increasing number of ways for human beings to find solace in a frightening world.  Nevertheless, rather than a reaffirmation of tradition, for Berger “Modernity is not characterized by the absence of God,” he wrote in a 2008 essay for the journal First Things, “but by the presence of many gods.”He critiqued the Fundamentalist project of the University of Chicago and even the use of the word fundamentalist as created by people who have no sense of the actual beliefs of the people.

For Berger, religion is an enduring quality and is ever returning. He often repeated that he expected a great revival in secular Scandinavia since transcendence always returns. He noted often, that the more colorful eruptions of transcendence have occurred in those places where secularization has been most aggressively enforced.  The children of the most orthodox secularists and enlightened modern homes have children who become members of Iskcon or returnees to orthodoxy (baalei teshuva).

On the other hand, the formerly pious world of rural America, which were once a bastion of religious commitment, are now in decline as portrayed in the book Hillbilly Elegy. They are now a main group of the growing number of “Nones”, without religion. Their sacred canopy was lost, in that it no longer sheltered them in their current decline and hence they gave up religion. However, for Berger they are a group that is likely to return once there is a new religious configuration speaking to them.

Second, he rejected the widespread concern about a supposed rampant individualism in the U.S., or the prevalence of an “autonomous” self.  For him, “The assumption made by Robert Bellah and Putnam that community in America has been falling apart is empirically questionable. It’s amazing to what extent Americans do in fact participate in every kind of community you can imagine–and give money and time and so on.  I don’t think Americans are all that individualistic.”

Third, he thinks that the problem with liberal Protestantism in America is not that it has not been orthodox enough, but that it has lost a lot of religious substance through the psychologizing of religion, as a therapeutic agency, and through the politicizing of religion. From his point of view, those who make their religion about culture will eventually lose their members because do not need the congregation if it lacks religious substance.

Fourth already in the 1990’s, Berger noted that the United Sates was breaking into two middle classes, a bourgeoisie, centered in the business community and a new middle class, based on the production and distribution of symbolic knowledge, whose members are the increasingly large number of people occupied with education, media, therapy and social justice.  Many of these people are on payroll, employed in bureaucracies or dependent on state subsidies. The new middle-class culture understood itself as “emancipatory” or “liberating” as against the traditional bourgeois virtues, most visible in the areas of sexual .and gender behavior. For Berger, this creates two conflicting middle class approaches to religion. Many of the issues dividing Modern Orthodoxy can be linked to this distinction of two cultures.

A Weak Skeptical Pluralistic Faith

If Berger advocates a pluralistic softer faith, then how can one build institutions on such a fragile basis? According to his own theories, there is a sociological need for institutions to preserve the faith. Viable institutions require a strong foundation of taken-for-granted verities, which exude an air of self-assured certainty that the pluralistic lack. If one constructs institutions on the basis of skepticism will these institutions not be extraordinarily weak, associations of individuals with no deep commitment? Can such institutions survive?

According to Berger: Yes, such institutions may be “weak”; the commitment of their members may be rather unreliable; but, yes, they can survive—and sometimes they show a surprising vitality.

Can permanent reflection be institutionalized?” By “permanent reflection”, he meant precisely the sort of skepticism and self-questioning that is created when the world is no longer taken for granted. Yes, such institutions are possible, but they differ from the older institutions built on the foundation of taken-for-granted verities. Such institutions are, by definition, voluntary associations. The same voluntariness by which people choose to join them may later allow them to leave. In this sense, these institutions are “weak.”

According to Berger, one  can convey values to children without pretending a fanatical certitude about them. There is a viable middle ground between fanaticism and relativism, in which one can build a community of people who are neither fanatics nor relativists.

The reason for his conclusion as to why a moderate faith will survive is his personal theological belief that at the core of his Christian tradition is truth, and this truth will reassert itself in every conceivable contestation. To be sure, he acknowledges, that no one who honestly enters into such a contestation emerges the way one entered; if one did, the confrontation was probably less than honest. In the act of reflection, every honest individual must be totally open, and this also means open-ended. Berger’s faith allows him to affirm that the church will survive until the Lord returns.  Jews, on the popular level, usually dont have such confidence and predict the downfall and death of Torah unless one capitulates to ignoring the modern condition.

Seeking Certainty

Does everyone have this pluralism? Can people retreat back into the position of certainty? Berger acknowledges that some seek refuge in the certainty of institutions and the tradition. Others, seek for certainty on the basis of an absolute understanding of the biblical text.  And third, one can seek certainty on the basis of one’s own religious experience, especially in the ever present the American revival movements.

Nevertheless, Berger always assumed that pluralism was our modern condition. For Berger, to pretend that one has certainty, in most cases, is a self-delusion. He never fuller appreciated the return of Christian Evangelicals and Orthodox Judaism in the 1990’s and first decade of 21^st century who sought certainty, eternal values, textual and institutional absolutes.  (I posted a few years ago about how he was just discovering the paranoid style of contemporary Judaism, which focuses on the Holocaust.)

Some Centrist modern Orthodoxy authors decry the contemporary condition of pluralism and choice, a key feature of 20^th century modernism from Virginia Wolf and William James onward to the existentialists as what they polemically and pejoratively mislabel as post-modernism relativism.

When looking at 21^st century congregations, Berger saw that the face of suburban congregants “now has a set and sour mien, an expression of permanent outrage,” in which a Protestant scowl has replaced the Protestant smile. Feminism more than anything else has set this tone in recent years for the displeasure among believers. According to Berger, this grimly humorless ideology has established itself as an unquestioned orthodoxy throughout the mainline churches. They still do not have transcendence or a serious relationship with God, but they have replaced their pleasantness with disdain for others, especially on gender issues.

Berger’s student James Davison Hunter wrote the classic Culture Wars: The Struggle to Define America (1991), showing how the United States divided into conservatives and progressives, in which Evangelicals and Orthodox Jews are on one side and Liberal Christians and Jews are on another. In 1991, this was a new alliance limited to a few hot issues such as abortion. A quarter of a century later, a large plurality of Modern Orthodox has taken on much of the politics, values, theology, and style of the Evangelicals proving Hunter’s thesis.

In sum, Berger always held both his ideal belief in faith, piety, and personal commitment as a benchmark by which to judge sociological patterns. He was both a believing theologian and descriptive sociologist. As noted by many, the various positions Berger assumes and identifies are not always in perfect harmony with each other and sometimes they seem to operate at cross-purposes. Many faulted his sociology for having an implicit theology and conversely many faulted his theology for its sociological orientation.  Yet, this was the attraction of combining Existential theology with the lived religion of the pews useful for many clergy and religious thinkers to  make sense of the tensions of their religious communities.

To be continued with a follow-up post covering Peter Berger on Eastern Religions and Mysticism