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.