The blog is back. Stay tuned for many different books and some accounts of what I have been up to all these months.
I have a backlog of posts and books to get to. But we will start with a recent work on Jewish law and Talmud study by Rabbi Aryeh Klapper. The book’s own blurb states that halakhah is generated from the pressure of reality – ethics, autonomy, and equality- upon Jewish law, the way poetry is from the meeting of imagination and reality. Klapper wrote in the book blurb: “Wallace Stevens wrote that poetry is generated by the pressure of reality on imagination. Along the same lines, practical halakhah, at its best, is generated by the pressure of reality on the Torah. “Divine Will and Human Experience” illuminates every stage of that process in a wide variety of contexts and genres. Readers will find the halakhot of art and the art of halakhah.” With that grand of a pronouncement comparing halakhah to poetry, what’s not to love?
The book is by Rabbi Aryeh Klapper, and entitled Divine Will and Human Experience: Explorations of the Halakhic System and Its Values (Bookbaby Pennsauken, NJ 2022). Rabbi Aryeh Klapper is Dean of the Center for Modern Torah Leadership, Rosh Beit Midrash of its Summer Beit Midrash Program and a member of the Boston Beit Din. He previously served as Orthodox Adviser at Harvard Hillel, as Talmud Curriculum Chair at Maimonides High School, and as Instructor of Rabbinics and Medical Ethics at Gann Academy. In the words of Harvard Hillel Executive Director Dr. Bernard Steinberg, he is “provocative and evocative.”
We will interview the author and then have a few responses next week. (We can still use some gender parity so if you are interested in responding then email me).
You can sign up for his weekly Torah essays at http://www.torahleadership.org/weekly_dvar_torah.html and follow him on the podcast Taking Responsibility for Torah. 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. He was previously on the blog when he wrote a response to the legal approach of Rabbi Ethan Tucker of Hadar.
This book has been long in coming. Thirty years ago, the author expressed a strong desire to have ample time to write his envisioned commentary on tractate Sanhedrin. We waited. And we waited. Now, we finally have a volume of essays on different topics in his halakhic thinking which are only the tip of the iceberg of Klapper’s creative oral teaching. The book is more an emblematic store sign or conversely a streetlamp letting the world know that there is a valuable and unique store here. It will serve as an advertisement for his Summer Beit Midrash.
Klapper’s approach is to use halakhah to tackle issues in modern life and thought such as labor law, human rights, policy issues, and journalistic ethics.
The major thesis of the book is to demonstrate that Klapper advocates a commitment to halakhah and halakhic authority combined with a commitment to the ideal of autonomy, responsibility, human dignity, human freedom and human equality. In his view, the laity should that joint responsibility with Rabbinic authority over the shape of halakhah by raising the level of community discourse. Klapper, distinguishes Orthodox from non-Orthodox Jews by a willingness to abide by halakhah despite ethical qualms or plausible counterarguments. Parts of the book on conceptual essays on halakhah and parts are essays where he actually decides Jewish law. There are also some Biblical essays.
Klapper takes on the major issues of authority in law, ethics in law, and legal interpretation, but from a study hall (beit midrash) perspective. He does not directly grapple with Ronald Dworkin or John Rawls, or even with Rabbis Nachum Rabinovitch and Moshe Avigdor Amiel. In his teachings, Klapper opens the window and lets in the fresh air of big questions but without a need to be weighed down to produce a sustained conceptual exposition of halakhah. The questions alone combined with a sense of human dignity and autonomy are enough to create a thoughtful approach.
Unfortunately, the book needs better editing and a better consistent format and style sheet. But now that the ice has been broken and he published one volume, it would be nice if he now converts his classes to book form and publishes a volume of halakhic thoughts every two years.
1.Can you differentiate between practical and ideal halakhah?
Practical halakhah (halakhah lemaaseh) is about regulating and developing human beings, their relationship with each other, and their relationship with G-d.
Halakhah is not a “black box” of commands with no inherent purpose. It has substantive goals. Halakhic interpretations that advance those goals in one time and place may inhibit them in another. More commonly, changes in circumstances will over time make a static halakhah completely ineffectual and irrelevant. I think this is universally agreed. The debates are sometimes about who has the authority to make changes, and what mechanisms of change are legitimate; and sometimes those debates are smokescreens concealing disagreements about whether specific changes are desirable.
Ideal Halakhah is a separate endeavor to understand the mind of G-d. Rabbi Joseph Dov Soloveitchik described it as the equivalent of pure math or physics, while practical halakhah is engineering.
Both disciplines require conceptual construction and imagination. But these elements are of the essence of studying the ideal halakhah, and only tools with regard to developing the practical halakhah.
Ideal halakhah does not relate directly to human experience. Practical halakhah exists only in the context of human experience. For example: The ideal halakhah might demand the execution of murderers based on impeccably reliable eyewitness testimony. But human experience might indicate that no eyewitness testimony is impeccably reliable.
Because ideal halakhah influences practical halakhah, it is ethically incumbent on people engaged in scholarly conversation about ideal halakhah to consider what its practical effects might be.
2. Why do we learn purely theoretical halakhot?
The majority of Tannaim and Amoraim held that all areas of halakhah were intended practically. The famous statements that some halakhot “never were and never will be” are minority positions. There are no purely theoretical halakhot.
A halakhah’s lack of practical expression in a specific time and place may reflect cultural progress. Slavery is the usual example given. But the halakhot of slavery actually govern many aspects of employment law. We should make every effort to apply them in those contexts. For example, they may nullify most noncompete agreements, strongly resist a system of employer-based health insurance, and ban assignments and behaviors intended to assert dominance.
The choice to Interpret a halakhah out of practical existence usually reflects a past failure of interpretation. Consider for example the virtual elimination of the prohibition of ribbit (taking interest from fellow Jews or charging them interest) via the heter iska. [A heter iska is a halachically approved way of restructuring a loan or debt so that it becomes an investment instead of a loan] We should have ruled from the outset that a heter iska is valid only for loans that have a genuine commercial purpose.
We can learn a great deal from the reasons given in the masorah for and against interpreting a halakhah out of immediate existence, such as the debate among Tannaim about whether the death penalty should ever be imposed.
Other disputes about whether a halakhah should be given practical expression, such as those about the leprous house and the zav, remain mysterious to me. I also cannot presently give circumstances and interpretations which would make implementing the laws of the rebellious son (ben sorer umoreh) and the idolatrous city (ir hanidachat) acceptable. But that may just mean that I need to study them more.
3. In many chapters you set up questions and then you either do not like your given answer or leave the reader without an answer. Why? Why ask the question where you don’t like your own answer, and why include it in this book?
Students have the responsibility to challenge their teachers on values, especially when they are taught Torah that conflicts with their deepest intuitions about what G-d wants.
Teachers must welcome and engage genuinely with those challenges. This requires teachers to model uncertainty and discomfort in the context of unwavering commitment. That’s a primary reason I teach questions to which I don’t yet have satisfying answers.
I am proud and blessed to have generations of superb students who don’t hesitate to challenge me.
4. How free can a halakhic reader be with the text? What are the restraints? Is halakhah whatever a creative reader can make a text mean?
I don’t believe that halakhic readers are permitted to be “free” with texts, if freedom means consciously reshaping the text in their own image.
However, texts cannot defend themselves. The integrity of readers and audiences is the only practical restraint. Halakhah is whatever a creative reader can make a text mean to a sufficiently authoritative and committed audience. But the audience should not give any authority to readings that they cannot with integrity say are meanings of the texts.
Texts have a wide range of possible meanings, some more likely than others. Halakhah often allows or encourages giving authority to meanings that are not the most likely. One may adopt less likely readings in response to economic pressure, or to free an agunah, or when a different outcome would be ethically intolerable, etc. The canonical meaning of a text may also not be the same as its historically original meaning.
No human being’s decisions are based exclusively on their readings of texts. Any such claim betrays an extremely worrisome lack of self-knowledge.
But all of these assume that one is reading with integrity. There is no license to misread.
5. How do halakhah and ethics relate?
Deciding halakhah properly requires an ethical intuition independent of halakhah. This insight is at the heart of almost everything I write.
What I mean by “independent of halakhah” is that it doesn’t rely on mechanical halakhic reasoning, and is not based exclusively based on halakhic data. Ethics is a separate discipline whose outcomes are incorporated by halakhah.
Halakhah should be heavily influenced by ethics, but individuals are legally bound by halakhic outcomes that they consider unethical.
For example: Mechanical halakhic reasoning often concludes that the best course of action is to account for all prior halakhic positions rather than deciding among them. But this can yield a result that is ethically worse than any of the prior positions. For example: tagging someone as “maybe Jewish” leaves them unable to marry anyone, whereas definite Jews and non-Jews can each marry others of the same classification. An ethical posek will take great pains to resolve such uncertainties, especially in cases where conversion is not a live option,
Some ethical principles are epistemologically prior to halakhic reasoning. For example: The principle that one cannot kill an innocent person to save one’s own life is not derived from a Torah verse, but rather is a prerequisite for properly interpreting a Torah verse.
Other ethical principles are explicitly incorporated into halakhah reasoning. For example, there is a formal rule that the preservation of human dignity (kavod haberiyot)
overrides all Rabbinic and at least some Biblical prohibitions.
The legal definition of human dignity must be developed using both halakhic precedent and ethical intuition. Many ethical principles play that sort of complementary role in halakhah.
New circumstances often raise halakhic questions that can’t be answered on the basis of precedent. In those circumstances, one must resort either to “fulfilling all positions”, which is sometimes impossible and is often a worse option than adopting a position at random, or to making a decision based on broader values.
6) Where did your ethical intuition come from?
Ethical intuition comes from the totality of Torah and every aspect of the self, nature and nurture.
One experience that shaped mine was reading great non-Jewish books on my own as a child, on my own. In addition, I had to read everything my mother taught in college literature classes. Dickens, Hawthorne, Lofting, Plato – meeting these authors and their characters before my bar mitzvah made it impossible to believe the things my rebbeim would say about inherent differences between Jews and non-Jews. I also grew up in a family with so many brilliant women that claims about men’s intellectual superiority seemed absurd.
My elementary school started a special gemara class for three of the four top Mishnah students – of course excluding the girl. Star Trek (TOS) made me see the evil of the open, unapologetic and malignant racism in the Charedi summer camp that I otherwise loved. This was all before I met Dr. Will Lee, whose integrity, kindness, and curiosity about Torah was exemplar. This was all before I learned Tanakh in depth, and aggada, and Jewish philosophy.
My ethical intuition is often wrong. But my understanding of Torah is also often wrong. Rav Eliyahu Bloch of Telshe writes that one’s understanding of Torah, the world, and the self must be developed in equal depth so that you can check them against each other. I don’t understand why some rabbinic scholars (talmidei chakhamim) seem to believe themselves ethically infallible. I think that in Heaven (shomayim) their students will be held accountable for allowing such delusions, let alone for reinforcing them.
Halakhah as practiced is never perfect. One is entitled to say that a halakhah currently regarded as binding is wrong, intellectually or morally, and to hope for change.
7) Is ethics the only value framework other than halakhah that Jews must take into account?
No. Torah has a pluralistic axiology that considers ethics, morals, aesthetics, sanctity, and all other types of value. Making practical halakhic decisions ideally requires understanding each of these in their own terms.
8) Your cover has a sketch of Divine will as light refracted into freedom, dignity, responsibility, and equality. Your essays seem to make it more about the human element based on human responsiveness than divine light. What role does the divine play in your human constructions?
The primary data we have about Divine Will is a text that we must translate into norms.
The cover of my book, beautifully designed by Maximilian Hollander, shows Divine will refracting into the values of freedom, dignity, responsibility, and equality, rather than directly and exclusively generating the norms of halakhah. Halakhic decision making is not a matter of mechanical value-neutral reading of the Torah text, Values are central to halakhah, and sometimes prior to halakhah. One cannot properly understand Divine Will without translating it into broader values on the basis of human experience.
9) What happens when halakhah seems unethical or does not work for a person?
As in every political system, one can be ethically bound to respect the outcome of a communal decision process even when one finds that outcome to be substantively unethical. One should work to change halakhic outcomes that one considers unethical in a manner that maintains the overall legitimacy of halakhah.
Maimonides teaches that Divine Law, like the laws of Nature, is good for most people in most places most of the time. (Guide 3:34; cf. Hilkhot Mamrim 2:4, Eight Chapters Chapter 5).
A responsible halakhist recognizes that halakhah cannot avoid harming some people some of the time. He or she must try to find ways to minimize the harm and maximize the good, like scientists and engineers using their understanding of nature to build seawalls and irrigation systems without ending tsunamis. The analogy is imperfect but instructive.
Recognizing the inevitability of some harm does not suffice to explain the cases in which the Torah seems to directly flout the values I claim are central. For example, the Torah permits two kinds of slavery, and as halakhah is currently understood, not everyone is eligible to serve on the Sanhedrin.
Recognizing human responsibility for halakhah entails recognizing that we often fail at that responsibility. Practical halakhic decisions may reflect narrow perspectives, mechanical thinking, magical thinking, or ethical error. Such decisions nonetheless carry authority when made by people to whom the halakhic community gives authority. Challenging such decisions as incorrect, shallow, misguided, or worse does not necessarily entail seeing them as illegitimate. Denying them authority means that one’s preferred decisions will also be given no authority by those who disagree with them.
10) Why these four qualities: freedom, dignity, responsibility, and equality.
With regard to freedom:
G-d gave the Torah as a publicly accessible text written in human language, and declared that it was no longer in Heaven. Democratizing access to His will was a way to prevent it from becoming a source of power over others, i.e. to preserve religious autonomy.
Religious autonomy is a Torah ideal. Submission to another human being’s authority to interpret Torah, or to an institution’s, is often necessary and sometimes valorized. But the default must always be autonomy and spreading the knowledge that enables autonomy and widens circles of authority.
The ideal of religious autonomy means that Halakhic authorities should generally scaffold their replies so that questioners either make the final choice among the halakhically viable options or else realize the correct action on their own. Poskim should explain the grounds of their decisions clearly so that questioners can grow to make future decisions on their own. Chapters 14-19 of my book are an extended effort to model this sort of scaffolding and transparency.
Religious autonomy is just one of many kinds of freedom central to Torah. For example, the prohibition against slavery ramifies halakhically into a strong preference for human beings choosing their own work tasks and schedules. (The relationship and sometimes conflict between freedom-from and freedom-to is discussed in Chapter 1.)
11) What about Equality?
With regard to equality:
The Talmud (Pesachim 25b and parallels) teaches that commitment to the ontological equality of all human lives must precede Torah interpretation. It derives the Jewish obligation to die rather than commit roughly adultery or incest (gilui arayot)
from a verse that compares adulterous rape to murder – “because like a man rising against his fellow and murdering his life-spirit – so too this”. But what is the source for the obligation to die rather than commit murder? The Talmud answers that this is derived from reason: “What have you seen that makes your blood redder than his?!” The halakhic implications of the analogy in the verse are accessible only to interpreters who already acknowledge that principle.
Ontological equality is a fundamental principle with many halakhic ramifications. Chapter 6-8 discuss political equality; chapter 9 discusses economic equality; and chapters 8 and 26 address the explicit Biblical obligation for the law to treat converts and born Jews equally.
12) What about dignity?
With regard to dignity:
A sugya on Talmud Berakhot 19-20 discusses what to do when concern for human dignity (kavod haberiyot) conflicts with other halakhic obligations.
The opening statement of Rav Yehudah in the name of Rav seemingly restricts concern for human dignity to the gaps of halakhah. “One finding shatnez (mixed wool and linen) in their garment must remove it, even in the marketplace. Why? There is no value to human wisdom, sagacity, or discernment where they conflict with G-d’s will”. Ethical concerns have no weight against law. Going naked in public to avoid wearing shatnez is a paradigm case.
The Talmud then cites a series of apparent exceptions. It responds to each exception by saying “that kind of law is different”. The apparent upshot is that concern for human dignity can justify violating any Rabbinic prohibition actively, violating any Biblical prohibition passively, and violating any Biblical prohibition regarding money or property.
The Talmud thus establishes concern for human dignity as an ethical factor that should be raised to challenge the practical outcomes of formal halakhic reasoning.
Acknowledging exceptions undermines the false dichotomy that opens the sugya. Granting that “There is no value to human wisdom, sagacity, or discernment where they conflict with G-d’s will”, The real question is: when does G-d’s will obligate us to honor human dignity above (what would otherwise be) the law?
Possibly the job of a halakhic decisor is to make shatnez the exceptional case that preserves the rule, while discovering ways to prioritize human dignity in every practical case that arises. Chapter 22 discusses one aspect of this possibility.
Human dignity includes both natural and social dignity. I am also heavily influenced by Rabbi Yosef Dov Soloveitchik’s deep conviction that autonomy is an essential constituent of dignity. In a political context, equality is necessary for autonomy; and in a social context, equality may be necessary for dignity.
13) What about responsibility?
Human responsibility is a fundamental premise of Torah anthropology. We can be obligated, expected to fulfill our obligations, and held accountable for failing to fulfill them.
Jews are responsible for Torah. We construct our own obligations by interpreting Divine Will in the context of our experience. Halakhah requires constant attention, defense, repair, and adaptation.
Fulfilling that responsibility requires virtues such as courage, compassion, and integrity. Many of the book’s chapters are intended to model one or more of these virtues. They are particularly necessary when dealing with conflicts among recognized values, or between values and apparently established law.
The motto of the Center for Modern Torah Leadership is “Taking Responsibility for Torah”.
14) Can you unwind the intent of past legislators or the historical past in halakhah?
Halakhah is a quantum system – there is no halakhah in any specific situation until someone rules or acts to establish a ruling. There are only probabilities. Sometimes one is entitled to rule or act in accordance with a position that was extremely unlikely until that moment. People who rule on the basis of prior abstract certainty are doing it wrong. One can never say that a halakhic outcome is impossible, only that it is exceedingly unlikely.
Probability factors include how an outcome fits with texts, how past and present authorities have related to it, and how it fits with values.
The halakhic past was written by a committee whose members had different motivations, experiences, ideas, and intuitions. We can never know exactly what motivated even a consensus position – usually there were many and contradictory intentions.
Halakhah is a system whose parts affect each other. A posek might rule one way on the assumption that the psak on another issue would balance the effects of this psak. Halakhah might be subject to chaos theory or to a “butterfly effect”. Knowing how someone ruled in a past situation can’t give you absolute confidence as to how they would rule on the same abstract issue in different circumstances.
15) How does Halakhah relate to the Jewish collective?
G-d’s will is directed to the Jewish collective as well as to individuals. Communal Halakhah is the Jewish social contract.
Halakhah is the arena in which we decide how to distribute power within the community. We are responsible to interpret and administer it in a way that prevents people from seizing illegitimate power over the law, and from seizing disproportionate power within the law,
Halakhah is how we negotiate when to sacrifice the freedom-from of individuals in order to increase the freedom-to of the collective. Freedom-to in this context means the development of a sustainable moral and religious society, both to maximize the development of its members and to serve as a model for other communities.
Halakhic is how we approach the challenges faced by every society that assumes the ontological equality of all human beings and also values virtue and earned achievement.
Meeting these challenges without abandoning the ideal of autonomy requires a social contract whose meaning is determined by the people who are bound by it: “No taxation without representation”. All citizens should ideally have an equal say in the contract’s interpretation.
The straightforward solution is to make everyone equally eligible for positions of authority. In an as-yet unpublished article, I demonstrate that Rabbi Soloveitchik in his shiurim made room on principle for every Jew of appropriate character and learning to serve on the Sanhedrin for the purpose of determining the law, meaning that every Jew is equally eligible to have power over the legal meaning of Torah. This has here-and-now implications for both converts and women.
16) Are Jews and non-Jews equal? What of laws that imply inequality?
An acid test for the role that ethics plays in one’s halakhic thought is whether one applies the rhetorical question “what have you seen that makes your blood redder than his” to situations where only one party is Jewish. I apply it to such situations. I assume ontological equality.
I do not think one can give a general answer to “laws that imply inequality”. There are ethical grounds for distinguishing between citizens and non-citizens in some legal areas without contradicting ontological equality. I hope that some psakim currently accepted within halakhah will eventually be considered beyond the pale.
There is no obligation to believe that the halakhah as currently decided is perfect, only that it is binding. The Torah describes the sacrifice brought when the Sanhedrin errs, and no one has ever claimed that this sacrifice “never was and never will be”.
Legal rulings that discriminate against Gentiles in the civil sphere should be subject to strict legal scrutiny, especially in societies where Gentiles do not similarly discriminate against Jews. Everyone who lives by halakhah has the obligation to point out unjustifiably discriminatory psakim and seek to correct them.
I generally don’t see an ethical issue in laws that restrict Jewish rituals to Jews.
17) Why is long covid an interesting halakhic topic that took six chapters?
Long Covid exposed several important gaps and weaknesses in the standard halakhic treatments of health risks.
One such weakness is that the laws of pikuach nefesh are presented as “digital”; either a situation is life-threatening or it isn’t. An alternative approach would be to describe situations on an “analog” scale of more or less life-threatening. The digital model makes it very hard to respond cogently to new situations with many fundamental unknowns.
Gaps include how to classify long-term risks to longevity, and whether to classify various kinds of long-term disability risks as pikuach nefesh.
The woman who asked me the question wanted a public response because she felt that halakhah was failing people on this issue. My response was therefore also an opportunity to model in real time the values of transparency, respect for autonomy, and textual/legal integrity, along with compassion and creativity, that are critical to proper halakhic decisionmaking.
18 ) What is your ideal vision for the modern Orthodoxy community you live in as expressed in your summer beit midrash.
I want the Center for Modern Torah Leadership, my Summer Beit Midrash, to stand for these principles, which I hope are evident throughout my book:
- Not responding to ideas out of fear, no matter where they came from. Eagerly seeking to gain knowledge of the world and the self, and to bring that knowledge into Torah
- Recognizing that all human beings are created b’tzelem Elokim and therefore of equal ontological value
- Recognizing that men and women are equally entitled to full access to Divine Will
- Expanding our conception of Torah to include understanding and appreciation of the many kinds of value G-d has put in Creation, rather than using Torah as a way to deny value to everything else in Creation
- Understanding that the halakahic community is responsible for the content of the Torah it lives by; it’s not enough to obey whatever emerges
The Summer Beit Midrash is the opportunity to create a community that lives by these principles, during the program, among its alumni, and where those alumni have influence. The best moments are when we seem close to achieving that.
The Book of Doctrines and Opinions: 