Tuesday, August 16, 2011

More on "Morethodoxy"

In a post earlier this week, I took issue with an author on the "Morethodoxy" website, Open Orthodox Rabbi Yosef Kanefsky. R' Kanefsky has been promoting the view that the blessing שלא עשני אשה , despite its basis in the Talmud and its unanimous acceptance in classic codes of Jewish law, should be eliminated because it clashes with modern sensibilities. In my response, I presented an ideological and methodological critique of the author's approach to halakhic source material in general.

R' Kanefsky has now followed up with a post in which he attempts to bring evidence for his claim that changes in situations and circumstances have precipitated changes in halakhic decisions and practice throughout history. In a comment on his post, I pointed out that no change has occurred in the circumstances in our case - the only change has been in the attitudes of people who have largely misunderstood, and therefore object to, the blessing in question.

Allow me to explain a bit further. Scientific advancement has caused change in halakhic practice, but not because the dictates of halakha have changed. On the contrary, the principles of Torah are eternal and not subject to alteration or evolution. The fact that, nowadays, an eight month old fetus is known to be viable, does not change the law of the Torah. The law is, and always was, that we can violate Shabbat in order to save a life. What has changed is our understanding of biology and the increased capacity of medical personnel to save lives, which has expanded the number of circumstances in which Shabbat can reasonably be violated. This has no relevance whatsoever to the proposal that we should erase a blessing from the prayerbook because a segment of the contemporary population that is unschooled in its meaning suddenly finds it offensive.   

The R' Kanefsky also makes reference to the institution of Prozbul, which is a mechanism by which the cancellation of loans in the Shemitta (Sabbatical Year) can be sidestepped.  I am sure that he is aware of the fact that this example is a favorite of Conservative rabbis who routinely use it to justify and legitimize the innovations they propose. Sadly, it is as irrelevant to his argument as it is to theirs.

As our Rishonim (Medieval Scholars) explain, Hillel worked within the principles of halakha to find a solution. He understood that Shemitta, in our time, is only a Rabbinic institution, and therefore found a Rabbinically sanctioned approach to resolve the problem. He didn't cancel out or eliminate any laws, Biblical or Rabbinic. He developed a solution within the system that is fully consistent with its principles and did not require tampering with or adjusting them. 

I would like to progress one step further and examine one of the specific proof texts R' Kanefsky marshals to support his argument. After all, he seems to be doing his best to root his position in traditional sources, and we should give him the benefit of the doubt on this score. Let's see if the source actually states or implies what he claims it does.

R' Kanefsky's post refers to a Tosafot in Masekhet Avodah Zara 15A as an example of halakha changing in response to the emergence of new circumstances. The Tosafot is grappling with an apparent conflict between the customary practice in their time and the law as established in the Talmud. Specifically, the Talmud prohibits the sale of certain kinds of livestock to idolaters. Tosafot observed that, contrary to this ruling, the sale of livestock to idolaters was commonplace in their day, and fully sanctioned by the Rabbinic authorities.

They answer that the Rabbinic prohibition on selling livestock to idolaters only applies to a time in which Jewish communities are independent, united and self-sustaining, such that one who needed to sell an animal could just as easily sell it to a fellow Jew as to an idolater. Nowadays, however, when Jews are interspersed among idolaters and share a common market with them, we have no choice but to sell livestock to idolaters in order to prevent financial loss.

R' Kanefsky wishes to argue, based upon this Tosafot, that the law changed when the circumstances changed. After all, it used to be forbidden for Jews to sell livestock to idolaters; now, given the fact that we coexist with them and would suffer financially otherwise, we are permitted to do so. We see, then, says R' Kanefsky, that the law must be updated to address contemporary needs.

The simplest objection to this line of reasoning is that it is not comparable to the case of שלא עשני אשה at all. The Tosafot do not say that because we are more sensitive to the feelings of the idolaters we must recalibrate our practice. They don't recommend that we sell livestock to idolaters because they will otherwise be offended in some way. But we can leave aside this important point of criticism for a moment and focus on what Tosafot are, indeed, teaching us. 

For once we analyze the Tosafot ourselves, we find that the interpretation of their words put forth by R' Kanefsky is fundamentally flawed. The Tosafot, in fact, are saying the opposite of what R' Kanefsky attributes to them. The Tosafot maintain that the law, as originally formulated by our Sages is still 100% valid and binding.

What they are proposing is that, from the outset, the Rabbis only meant to prohibit selling livestock to idolaters when the objective of the seller is to increase his revenue. The Rabbis of the Talmud, who promulgated this legislation, never intended for their prohibition to extend to situations in which financial loss would be incurred.Tosafot are not justifying a change in the law - they are clarifying what they believe to be the proper understanding of the law, which happens to account for the manner in which it was being observed (or, apparently, being neglected to some degree) in their time.

What is the proof that Tosafot uphold the Rabbinic legislation and are merely interpreting the originally intended parameters of the law? How do we know they are not discarding the law in the face of changed circumstances? The answer is the last line of the Tosafot, which R' Kanefsky does not address:

"Rabbenu Barukh ruled that, according to this, it is only in a situation where a Jew purchased a horse for his own use and then decides that he no longer needs it that he is allowed to sell it to an idolater, since otherwise he will incur a financial loss. He is not permitted to purchase horses with the express intent of reselling them in order to make money, since he has the option of not purchasing them to begin with and therefore not incurring any loss."

In other words, the law as stated in the Talmud never changed and is still in effect; its validity and binding status have not been diminished one iota by the changed circumstances. Yes, the Tosafot are interpreting the law in view of the evidence of the Rabbinically-endorsed precedent established in their communities, and they conclude that the law is applicable to a specific set of cases and not others.

But they are not suggesting, in any way, shape or form, that the law itself could or would ever be altered to meet the needs of their generation. Nor are they intimating that such an alteration of the law would be justified by changed circumstances; on the contrary, they realize that contemporary practice must be sanctioned by the law, and for this very reason they offer an interpretation of its parameters that is compatible with the custom of their communities.

In conclusion, it seems to me that R' Kanefsky is "using" sources to support his own methodology rather than studying them to discover the methodology of our Rabbis. Rather than grasp the true message of the Tosafot - that halakha cannot possibly be changed to satisfy our needs - he appears to recast the Tosafot in the image of Medieval Conservative Rabbis who consciously reshape halakha in accordance with their desires and sensibilities. It is unclear how he reconciles this view of the בעלי המסורה with the tenets of Orthodoxy.

This is a very poignant and noteworthy illustration of what is, in my opinion, one of the most worrisome elements of the Open Orthodox approach.

22 comments:

S. said...

>As our Rishonim (Medieval Scholars) explain, Hillel worked within the principles of halakha to find a solution. He understood that Shemitta, in our time, is only a Rabbinic institution, and therefore found a Rabbinically sanctioned approach to resolve the problem.

Hillel lived 100 years before the Hurban. So . . . ?

Moti said...

Hillel lived 100 years before the SECOND hurban, so what's your point? The ten northern tribes had already been exiled. There was no genuine sovereignty. Sh'mitta is d'oraita when rov yisrael al admatam. That hadn't been the reality (with all its halachic implications) for some time.

S. said...

The Aseret Hashvatim have nothing to do with it. There's zero evidence that Hillel "knew" that shmitta was derabbanan. Anyway shelo asani isha is derabbanan too.

Rabbi Joshua Maroof said...

S.,

To me, the Gemara and Rishonim are sufficient "evidence".

Anyway, the main point is that he worked within the system of halakha and its principles. He didn't say "shemitta doesn't fit well with our modern economy, it is too inconvenient, let's forget about it". That is analogous to what R Kanefsky is recommending vis a vis Shelo Asani Isha.

S. said...

>To me, the Gemara and Rishonim are sufficient "evidence".

It's a machloket if shmittah was derabbanan during Bayit Sheni (see Yerushalmi Shevi'it 10:2). It could be convenient to say that it was here because then it knocks the teeth out of the Conservative rabbis, but that doesn't dissolve the other view. Do you have an answer if it was d'orayta?

Besides, being lenient in a d'rabbanan isn't small potatoes. What are we talking about regarding shelo asani isha, is it a d'orayta?

>Anyway, the main point is that he worked within the system of halakha and its principles.

I got the main point, I commented on a side point. Prozbul is the bogieman of these discussions because, as you say, the Conservative Movement has been waving it for 100 years. Or 80 years, or whatever.

>He didn't say "shemitta doesn't fit well with our modern economy, it is too inconvenient, let's forget about it".

He was Hillel. He could have said the sky was red and we would all justify it. Really he could do it because he had the authority to do it, and that's most of it. Of course we don't say that Hillel acted unlawfully, but if authority wasn't the main thing, then we could say that had he not done it then maybe R. Shlomo Zalman Auerbach could have insituted prozbul using the same principles and mechanisms 20 years ago. But that's a joke. Of course he couldn't have. A major part of it was that Hillel was Hillel. Take heter mechira, which is obviously of a lower level since all agree that shmitta is drabbanan now. Some accepted that Rav Kook and R. Yitzchak Elchanan had the authority to do it. Others did not accept it. It's authority as much as it is the argument.

Secondly, I'm not sure what you mean. He didn't say "shemitta doesn't fit well with our modern economy" but he did say "shemitta doesn't fit well with borrowing and lending money."

>That is analogous to what R Kanefsky is recommending vis a vis Shelo Asani Isha.

As long as he argued it on grounds that had nothing to do with misogyny it would have been okay?

Rabbi Joshua Maroof said...

S.,

I am not especially interested in going through the sugya of prozbul in this comment thread.

The point I am making is that the traditional view of halakha is NOT as a collection of arbitrary pronouncements by rabbis who happened to be granted the authority to make them.

This is indeed the view of the Conservative Movement and of the academics and Open Orthodox rabbis, and simply "asserting" it as fact is begging the question.

Thus, we understand prozbul, one way or another, as a mechanism that operates within and in harmony with the principles of halakha, not as a random policy decision of Hillel. What the mechanism is can be debated, of course, but we proceed on the assumption that this is the framework in which Hillel promulgated his takkana.

You can't really compare this to someone who wishes to "delete" a halakha from the corpus because it contradicts his egalitarian sensibilities, whether it is a Conservative Rabbi permitting a Kohen to marry a divorcee or an Open Orthodox one eliminating shelo asani isha.

mevaseretzion said...

Thus, we understand prozbul, one way or another, as a mechanism that operates within and in harmony with the principles of halakha, not as a random policy decision of Hillel.

Perhaps the point is that there are plenty of things that can be justified or "loopholed" through a careful and still honest use of halachik principles. It is of much more importance what drives the decision to justify something. It is certainly not "random". What gives us the ideological imperative, and at what point do we take up the gauntlet, to make use of "daat yachid" or "shaat hadchak" to permit something that without pressing social need would never have become permitted (and the proof for this is that before the pressing social need, the takana was never legislated)? This is a valid question, and one without which the study of halakhic methodology is incomplete.

In terms of the discussion of d'orayta/d'rabbanan, Heter Iska finds a loophole to in essence permit a d'orayta.

chardal said...

What evidence is there that the "social justice" conserns of the time were not the PRIMARY motivations for the pruzbul?

As far as working "within the principles" of halacha. Hillel and Shamai are the ones from whom we derive those said principles. As S. pointed out above, no matter what Hillel would have said, it would have been formative of the way the rishonim understand the halachic system.

A more valuable discussion would be how and why meta-halachic considerations become the driving force behind normative psak. Not whether they can ever take such a role - which I think it is obvious that they can.

David Guttmann said...

I think S. touched on the basic point that R. Kanefsky misses. Sanhedrin can change their understanding of a Law if the majority does so see Mamrim 2:1. Hillel was the head of the Sanhedrin and could promulgate laws based on his understanding. we have no Sanhedrin so we are stuck with old law. The "old law" for us is established by the sealing of the Talmud by the Beit Din of Rav Ashi because that was the last time all Jewish scholars were gathered together and established law see Intro to MT.

David Guttmann said...

That is also why we cannot change certain laws even if scientific knowledge changes for example in the case of Treifot.

Where there is leeway is when comparing cases to law. But that is not our case here.

noam said...

I think that it would be useful to precisely identify exactly what is being claimed by each side. Assuming that shelo asani isha is a statement that being a man is better than being a woman(see R. Zev Farber's statement) the question is whether this is immutable religious condition or a reflection of regnant social reality. It if is a statement of religious fact, then indeed nothing has changed, and the only reason to change the bracha would be not to keep reminding women of their inferior status. It also would be necessary to acknowledge that indeed the status of women in our religion is inferior to men.
The other option is that it is a reflection of the social reality, and here the facts have indeed changed, and it therefore seems reasonable to change the bracha to reflect this change.

The usual comparisons to cohanim is somewhat weak. Cohanim make a positive bracha Asher kidshanu and v'tzivanu l'varech... The equivalent bracha would
be asher tzivanu laasot mitzvot shel gevarim.

Regarding science, the Gemara believes that eight month fetuses are not viable. Violating shabbat to take care of them is consistent with pikuach nefesh, but directly contradicts the gemaras understanding of the eight month fetus. Similarly, the case can be made that the social understanding of women in society is similarly flawed. Changing the bracha fulfills the obligation to praise God for what He has bestowed upon us, and acknowledges the present understanding. This obviously applies only if the bracha reflects a social condition, and not religious reality as above. But again if you are going to make a claim that the religious reality is that it is better to be a man, you should be willing to clearly state this belief, rather than try to wiggle out of it.

Rabbi Joshua Maroof said...

Chardal,

It wasn't one rabbi's feelings of empathy for the poor that motivated him to institute prozbul. It was a passuq in the Torah:

השמר לך פן יהיה זבר עם לבבך בליעל לאמר קרבה שנת השבע שנת השמיטה ורעה עינך באחיך האביון ולא תתן לו

Rabbi Joshua Maroof said...

David,

You preempted some of my response to S. - thanks for your comments.

Rabbi Joshua Maroof said...

Here is my response to R' Zev Farber (full disclosure - he and his wife are friends of mine from our teenage years):

I think you make some valid points here, particularly with regard to the views of women prevalent in antiquity.

This was a difference of opinion between Aristotle and Plato, as I am sure you already know, with the "empiricist" Aristotle subscribing to a belief in women's inferiority and the "idealist" Plato insisting on their equality to men.

As John Stuart Mill wisely observed, using empirical data to shed light on this question ends up being a flawed approach, since the empirical reality observed is, itself, conditioned by the cultural assumptions that have shaped the education (or non-education) of women. We wind up measuring what we ourselves have, to a great extent, produced, rather than the objective potential of men/women as it might exist from birth.

I do not disagree that the blessing implies that men are in a superior position. You are correct in noting that it would be absurd to conclude otherwise. But "superior position" does not mean "innate superiority".

Few people would disagree that, whether it be in secular or in religious society, men have a distinct advantage over women on numerous levels. Women receive lower salaries than men for the same work. They have to deal with the travails of childbearing and motherhood and to balance that with the demands of a career if they wish to enter the workforce. They endure enormous social pressures with regard to their appearance and weight. They are physically weaker and therefore more vulnerable. These are all facts on the ground that point to the "advantages" of being a man.

No woman should really be offended by these facts, because no one is suggesting that women are less equipped intellectually or morally than men. No one is suggesting they have less value, G-d forbid. But it is true that the biological, social and cultural differences between men and women confer some advantage to men.

Ignoring them, much like ignoring the implications of the blessing, would be disingenuous.

David Guttmann said...

I think the problem is not so much Shelo Assani Isha but hanoten Laya'ef Koach which is not in the Gemara. :-)

Rabbi Joshua Maroof said...

David,

You are right. The שלחן ערוך says to skip it.

mevaseretzion said...

>It wasn't one rabbi's feelings of empathy for the poor that motivated him to institute prozbul. It was a passuq in the Torah:

RJM, are you seriously bifarcating between the Torah's obvious empathy for the poor, and Hillel's interest that the rich not ignore this Torah prohibition of refusing to lend money to the poor? This is exactly the type of abstraction that removes the ethical component of the Torah's commands.

Either way, your comment is a red herring. The fact is that, whether it was Hillel's ethical harmony with the Torah's command or his dry insistence that the command be followed (without any regard for its empathetic origins), it caused him to take advantage of a loophole in the very law itself to in essence, put the law aside for meta-halachik principles. Isn't that true even according to you? Hillel saw two laws: 1)shemitat kesafim and 2) keep lending even as shemita approaches, and he saw that they had become mutually exclusive. He then made a value judgement as to which one to legalize away and which one to maintain, and he maintained the one with the most ethical weight. True, he did not simply "delete" the other, but he did in practice. The lessons of shemitat kesafim remain, but their practice is loopholed away.

He would never have done this had there been pressing social reason to do so. The proof is that the prosbol did not take shape until the laws of Shemitat Kesafim (wether d'oraita or d'rabanan) infringed upon the ethical command of ורעה עינך באחיך. The fact that Hillel acted in such a way demonstrates that it is within Rabbinic ability to navigate around laws when their observance would destroy the very purpose with which they were given. הפרו תורתיך, עת לעשות לה'.

So, while it is flippant perhaps to say, "shemitta doesn't fit well with our modern economy, it is too inconvenient, let's forget about it", it is true that Hillel found a way to make the laws of shemitat kesafim moot.

I am not making a judgement on שלא עשני אשה. I am however disagreeing with the simplified framework you present which ignores the tremendous ingenuity poskim throughout the generations have taken to allow the meta-principles of halacha to influence the way they derive and interpret the commands of the Torah.

Finally, this idea of "old laws" to which David refers is understandable, but as all of us here know, Shu"t literature is filled, positively filled, from Rishonim to Acharonim, with meta-principled psak. I doubt that I need to bring examples.

mevaseretzion said...

You may be interested in reading(if you have not already) Rabbi Eliezer Berkovits' ההלכה כוחה ותפקידה, or in English, Not in Heaven, in which he discusses precisely the points being raised in this thread.

Also, Rabbi D Sperber discusses this topic in דרכה של הלכה: קריאת נשים בתורה: פרקים במדניות פסיקה.

noam said...

Rabbi Maroof, you point out biological, social and cultural differences between men and women. The question is: why are men saying the bracha "shelo asani isha"? is it because we are stronger? earn more money? more respected? dont have to raise children? have more mitzvot? In thinking about whether it is appropriate to change the bracha, it is necessary to identify why it is being said in the first place. cultures can and do change. societies can and do change. If you are claiming that one reason not to change the bracha is that nothing has changed, then you saying that the reason the bracha is said is not based on culture or soceity, but based on biology or religion. Therefore, men are thanking God for being in 'a superior position' in our religion? because the biology of being a man is better than the biology of being a woman?

Are you willing to tell all the orthodox women in your life that men are in an immutable 'superior position' in relation to women vis a vis religion and/or biology?

by the way, there are those(Rav Aharon Feldman, Rosh Yeshiva of Ner Yisroel for one) who claim that women are not as intellectually capable(or, perhaps he claims they are differently capable) than men.

Mr. Cohen said...

If all Jews would follow the logic of Open Orthodox Rabbi Yosef Kanefsky, then they would eliminate Chanukah to avoid offending Greeks, eliminate Purim to avoid offending Persians and eliminate Pesach to avoid offending Egyptians.

This is no joke; I have actually met Greek people who are offended by Chanukah.

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