Libertarian Implications of Contemporary Realia
As many of you know, several Orthodox Jewish writers have come under fire for speaking ( or writing) their minds within the last year. Our good friend, Rabbi Jonathan Sacks received a lot of flack for some of his original ideas in his recent book, the Dignity of Difference. For better or worse, Rabbi Sacks relented to the criticism, making changes in the second edition that would avoid, according to him, his ideas being misunderstood. Also of note was R. Nosson Kamenetsky's book, the Making of a Gadol, which received a ban from leading rabbis here in Jerusalem and elsewhere. A very honest portrayal of Lithuanian rabbinic society, it has become somewhat of a bootleg bestseller in many circles, once R. Kamenetsky felt forced to take it off the market. And the list goes on. I imagine many of you have felt a gut revulsion to this type of censorship. While similarly inclined, I think the subject bears more objective treatment. As thinking Jews, we certainly cannot afford to take a liberal position for its own sake. Rather, we must examine the issue to see whether our initial gut reaction is correct or not.
When one Rosh Yeshiva I know first looked at the title of my talk, he asked me what I was planning to talk about. My initial response was, "Doesn't the sub-title, Libertarian Implications of Contemporary Realia, give it all away?" In fact, I was genuinely concerned that everyone in the audience would know my entire thesis before I even got up to speak. That being the case, I didn't really notice the blank look on the face of the Rosh Yeshiva. What he was too polite to tell me and I did not realize at the time, was that most people haven't the foggiest idea what realia is and certainly wouldn't recognize a libertarian, if one were staring at them in the face.
I realized most people did not know what realia meant when no less a standard of English language and style than the Jerusalem Post called several times to make sure we had not misspelled realism or reality. Taking my cue from the Post, I decided to look up the word realia in the dictionary. Just so you shouldn't feel bad, it was only on my fourth dictionary that I found a proper definition that would have helped you know what I am speaking about -- Macmillan defines realia as "real things, as the objects associated with everyday life in a culture, as distinguished from theories based on such things".
Luckily, most of you do know the word contemporary, meaning current. Therefore you probably were able to figure out that I will say, that something current (which I called realia) is going to have some impact on religious censorship. Those of you who really worked hard at deciphering my title may have even figured out that a libertarian is related to the word liberty and that somehow the current realia will imply or point in the direction of greater liberty or less religious censorship.
Before I explain my thesis, I feel it in order to start with a "kvetch". Listen, if you can't kvetch in a series called "Crisis in Judaism", when can you kvetch? So, here goes: One of the major problems today is that people often say things they don't really believe and believe things which they have not truly thought out. It may seem obvious, but it would greatly help Judaism if people thought more about what they say and examined more what they believe.
If I accomplish nothing else this evening, I would like people to realize that they do not believe two things which they may often say or at least think:
Number 1 -- I would like people to realize that they don't believe that censorship is always a bad thing.
Number 2 -- I would like people to realize that they don't believe that halacha does not change.
I will start with the former, namely that censorship can be good -- There are very few proponents of complete freedom of information, and for good reason. To take the most obvious illustration, I do not know of a single government that does not impose military censorship in times of war. Were a government to divulge its troop locations and distributions, not to mention its plans and strategy, it would certainly be putting many soldiers' lives in danger and possibly risk the entire outcome of the war. Lack of such censorship would be an inexcusable misuse of leadership.
In the previous example, the major reason information is being suppressed is so that it will not fall into the hands of a nation's adversary who will use it against that nation. However, a more far-reaching and, perhaps, more common rationale for censorship is to protect people within one's own nation or community from information that will be directly detrimental to them. Going back to the war scenario, U.S. policy during World War II was that movies shown in the US could not present a gory or otherwise discouraging portrayal of the war, as that would be detrimental to morale. Here, one is controlling information that will impact negatively upon one's own population. So too, in halacha, one may not inform a sick person of a relative's death, lest it aggravates that person's mental and physical condition. ( Y.D. 337 )
I think that most of us will agree that censorship in the examples mentioned is proper and desirable. I will not address who should be making the decisions of what to censor, nor will I discuss what constitutes legitimate criteria in determining such censorship. Obviously, these are both very important issues, but they are not the focus of my presentation tonight. That being said, it should now be clear that only an extremist will posit that censorship is never in order. Such extreme pursuit of individual rights is known as libertarianism.
As for the notion that halacha does not change -- in a polemical effort to create clear lines between Orthodoxy and other movements, we have created an intellectual Frankenstein. Anyone with any serious background in halacha will know that common practice of Judaism today is very different from what it was three thousand years ago and, to a lesser extent, even three hundred years ago. While Orthodoxy does maintain that we are extremely limited in new legislation since the close of the Talmud and even before, this does not make halacha static, any more than any other living legal code can be static. As with any code, new situations arise. Also as with any code, it must deal with a whole variety of technological, social and other historical changes that are the lot of mankind. In other words while we can not add even rabbinic laws, we will continue to adapt and interpret the laws as new situations arise. For those of you familiar with the American legal system, although Judaism may no longer have a legislative branch, it still has something that functions like a judicial branch. As you know the job of the courts in the U.S. is not only to adjucate cases, but to apply and interpret laws as well
To illustrate the absolute need for change in law, how many people in the audience are old enough to remember right and left turn hand signals? Going back in automotive history before the perfection of signal lights on the back of one's car, one had to stick one's hand out of the window to indicate if one was making a right or left hand turn. Once the realia had changed and such lights were perfected, what sense would it make to ask drivers to continue doing so? The technology had made this particular law obsolete. In this case we have referred to the signal lights on cars as the pertinent realia.
That halacha has to adapt to changing realia should be quite obvious. Still, the fact that it should be quite obvious, does not obviate the need to illustrate the point.
I will choose only a few examples. There are, however, countless instances of changes in halacha due to changes in realia. In fact, the word "ha'idna", which means nowadays, indicating a historical change in the halacha, is something that all students of Talmud and Halacha encounter on a regular basis.
In order to explain the first example, I want to know how many people here have fulfilled the Torah commandment of writing or purchasing your own Sefer Torah.
The truth is that, whether you know it or not, you probably have all fulfilled this mitzvah. Latter authorities give their stamp of approval to the position brought down by the Tur and Shulhan Arukh in the name of the Rosh (Y.D. 270) and by others in the name of the Geonim. This position is that the intended purpose of writing or commissioning someone to write a Sefer Torah was in order to facilitate individual Torah study, to allow one to study from it. Acquisition of s Sefer Torah was just a means to an end and, thus only relevant as long as it accomplished that end. Once people started studying exclusively from other books such as chum shim, gemaras and the like, the means metamorphisized into writing or purchasing such books. In other words, the mitzvah took on a different form. I have chosen this particular example because of its rather extreme reformulation of a Torah commandment. Yet, while this position expectedly caused some commotion (and one should see the Maharal in this respect), it is a position that Klal Yisrael has accepted as normative and finds a dominant role in the Achronim. To give a more recent and more famous example, changing realia is also at the bottom of R. Moshe Feinstein's famous teshuvot (Y.D. I, 46-49) permitting the use of milk processed by non-Jews. In these teshuvot, he understands that the prohibition is no longer relevant, in that governmental laws and inspection prevent the admixture of non-kosher milk into the milk supply and thus obviates the need for concern that we could be fooled by non-Jews into procuring non-kosher milk. Granted, Rav Moshe distinguishes between certain laws that can be obviated and others that cannot, as a result of the rabbinic dictum of "Lo plug", but such distinctions are not directly relevant to tonight's discussion.
The foregoing examples are primarily connected to changes in physical realia. Perhaps, even more interesting is the impact of changing social realia on halacha. An interesting example of such a halacha is the dispensation given by the Mishna for a new chatan not to say Kriat Shema. The logic is that since he is preoccupied with other matters, he will not be able to suitably concentrate on saying the Kriat Shema. While this is a clear cut halacha, Tosefot in the end of the second chapter of Berachot (along with R. Meir of Rothenburg) remove this dispensation, due to a historical deterioration in people's level of concentration. If we no can longer expect anyone to concentrate, than there is no meaningful difference between a chatan and anyone else. This position is adopted as normative halacha by the Shulhan Arukh who first brings down the pristine halacha of the mishna and then continues with the words of R. Meir of Rothenburg: V'hanei mili b'zman haRishonim, aval achshav she'gam shaar bnei adam ainom mikavanim k'rauy, gam ha'koneis et ha'betulah korei (this was only the case earlier but now it doesn't apply). The focus is on the word "achshav". Recognizing the fact that the dispensation not to say Kriat Shema is based on a historical assumption that no longer existed, various Rishonim followed by the Shulhan Arukh decided that this exemption is no longer applicable.
More recently, tucked away at the end of R. Shlomo Zalman Auerbach's Minchat Shlomo, Volume I (91:23), is an interesting little teshuva explaining why it might be permissible today for men to walk behind women. He is referring to a discussion in Even haEzer 21:1, where the Shulchan Arukh explains such a prohibition in the context of a man taking various precautions so as not to stare at a woman. In the teshuva, R. Shlomo Zalman suggests that the prohibition is rooted in a society where women were not commonly seen in the street and where a man would be embarrassed to stare at a woman if she were facing him. R Shlomo Zalman argues that neither of these conditions are true today. There are, he says, at least as many women in the public domain as men and passing one woman up, so as not to be behind her, just puts us behind another woman walking a few feet ahead. Furthermore, men who stare at women today would do it even if the women were facing them. As such, he allows a man to walk behind a woman for the sake of a mitzvah or, in typical R. Shlomo Zalman fashion, in situations where it is the polite thing to do -- really, take a look.
Now, on to the issue at hand.
I will focus on one specific area of censorship as a paradigm for this issue as a whole. I will focus on that which our sages called "halacha ve'ain morin ken" (a halacha which one should not teach) -- meaning that the ancillary damage caused by the likely popular misapplication of such a halacha outweighs the benefits of knowing it. In other words, these are halachot that were kept away from the masses for their own good.
By far the most famous example of such a halacha is identified with the story of Pinchas (see Sanhedrin 82a and the Rama in Hoshen Mishpat 425:5), the halacha of "HaBoel Aramit, kenaim pogim bo". (While the exact phrase, halacha ve'ain morin ken, is not used in this particular case but rather "Ha'ba limlech, ain morin lo", it is essentially the same concept.) Since it is a secret halacha, I will not translate it. Rather to illustrate my point, as you shall see, anyone who doesn't know what it means will immediately have the option of asking their neighbor.
(While you're asking your neighbor, I will digress to a story that this reminds me of: A new rabbi is hired by a community and all eagerly await his first drasha as their rabbi. The rabbi gets up and asks his new congregation, How many of you have read this week's parsha? Wanting to impress their rabbi, everyone in the entire shul raises their hand. The rabbi, looking somewhat surprised, says, well, if that is the case, then you don't need me to speak this morning and sits down. The following week, the rabbi gets up and asks the same question, How many of you have read the parsha this week? The congregation, wishing to avoid a repeat performance, all keep their hands down. The rabbi, looking disgusted, says, I am not prepared to teach you if no one prepares the Parsha, turns around and sits down. The following week, the congregation decides to organize itself in such a way that will meet the rabbi's apparent expectations. When the rabbi asks his by-now famous question, everyone whose last name is from A to L will raise their hands. Everyone else will keep their hands down. Sure enough that week, the rabbi asks his question, How many of you have read the parsha? The congregation is now evenly divided, half with their hands up and half with their hands down, certain that they will finally hear from their rabbi. The rabbi smiles approvingly and says, Great! Will those of you who learned the parsha kindly explain it to those that did not. He then turns around and sits down.)
The fact is that many and perhaps, most of you already knew this secret halacha of "HaBoel Aramis". Those of you who did not know it, have many opportunities to find out about it. If not from your neighbor tonight, books that you have at home or more knowledgeable acquaintances, one can always turn to the "omnipotent" internet and find out about this, or just about any other secret information that one desires. (When I think about the internet, I am reminded of the refrain from "Alice's Restaurant" - do some of your remember it -- You can get anything you want at Alice's Restaurant -- instead of Alice's Restaurant, it's the internet, with all of the same murky connotations)
The irony halacha ve'ain morin ken arose a couple years ago when I was teaching a somewhat more prosaic example of it in Masechet Beitza. Over there, the discussion has to do with sharpening knives in an unusual way (i.e. with a shinui) on Yom Tov. At the time, I was teaching a public shiur twice a week covering the entire tractate, to what one would consider the general public. There was no way to avoid it, black on white the gemara said, halacha veain morin ken, and as soon as my students read this piece, the cat was out of the bag. Now if these same students, the very type of people who one is not to instruct about such matters, would have come back to me and asked about sharpening knives I would have had great difficulty concealing the actual halacha. Moreover, what would their reaction be, if, as would likely be the case, they were able to catch me trying to misinform them?
It is my suggestion, however, that the cat was already out of the bag, before my students ever saw it on the daf. I will suggest that historical changes have made the notion of halacha veain morin ken no longer applicable. There are three significant historical changes that have made keeping such secrets untenable:
1) The first change is the writing down of torah shebe'al peh, which is later compounded by the wide accessibility of printed matter generated by the printing press. When the halacha was only taught orally, one could easily choose to whom to teach halachot and whom not to teach halachot. As all you spy book fans can attest, no good spy commits secret information to writing. All the more so if these writings, in our case the Talmud, are available to all. This by itself, however, is not enough of a change to invalidate the concept of halacha veain morin ken.
2) The second change has to do with recent educational trends that encourage the masses to involve themselves in sophisticated study of Talmud and Halacha. Historically, in the vast majority of Jewish societies, men like those who came to my Talmud class would have been woodcutters, storekeepers and even doctors, whose access to Talmudic texts, however, would be very limited. Talmud was reserved for the elite. Thus, while anyone could physically pick up and open Masechet Beitza, a common person would have been very unlikely to have done so. In our times, Talmud is being studied by wider and wider sections of the Jewish people. This issue, in fact, may be significant enough to put the concept of halacha ve'ain morin ken into serious question.
3) The third change which then becomes the straw, or in this case, the log that breaks the camel's back is mass access to the internet. Now, you don't even have to pick up the Talmud to have all sorts of Judaic information at your fingertips if you so desire. We underestimate the impact of the internet at our own risk.
In other words, any information that exists in the public domain becomes more and more difficult to conceal. Thus, censorship of anything but the most highly guarded secrets becomes highly impractical. I am not saying that Chazal erred in wanting to keep certain halachot secret. One of our religious credos is faith in the best judgment of Chazal and, as pointed out earlier, there are times when censorship is the best policy. I am simply saying that the underlying realia upon which Chazal based the idea of halacha veain morin ken are no longer present.
And so, if you didn't immediately figure out my thesis based on the subtitle, it should be clearer to you now. The realia that we are speaking about here are both technological -- mass access to almost unlimited amount of information -- and social -- greater educational exposure of Jewish laymen to sophisticated texts. The implications of these realia are that censorship of information will no longer be effective. As such, attempts at imposing new censorship or even maintaining old censorship may be as relevant as the old hand signals. Notice that I am not taking an intrinsically libertarian position, decrying censorship for it own sake. Rather, I am suggesting that we align ourselves with a libertarian position only in response to various realia that make censorship no longer practical.
The application obviously goes beyond "halacha ve'ain morin ken". To draw a more actual example, if one intends to whitewash the biography of a certain scholar or the history of a certain yeshiva, one must somehow destroy all truthful information that exists about said scholar or said yeshiva. Otherwise one runs the very likely risk of being caught distorting the truth. As such, doing so is not only impractical, it can often be counterproductive.
Incidentally, I don't think I'm the only one using "halacha veain morin ken" as a paradigm for wider application. Something one sees quite frequently in recent Ashkenazi poskim is a tendency to hide halacha out of fear that people will misunderstand it and go beyond the bounds of the permissible. Teaching Shmirat Shabbat k'hilchata a few years ago, I remember several cases where the main body of the book said asur and a careful reading of the footnotes said mutar.
Going back to our paradigm, we are still left with halachot that really can be misunderstood, and misunderstood to our detriment. If we can no longer repress knowledge of such halachot, we must do our best to make sure they are not misunderstood. Which leads me back to one of my favorite topics, Jewish Education. Jewish education will have to do a more comprehensive job. I believe we have no other choice. The same is true of mystical texts. Once people have exposure to mystical texts, we need to be sure that these texts are properly understood. Thus, the task of a censorship no longer practical must be taken over by a Jewish education more sophisticated than ever before..
On some level, moving from censorship to education positions us to properly compete in the free marketplace of ideas, that like it or not, we are all a part of. From a religious point of view, this forces our hand towards a "Dor deah" that can pave the way for messianic times.
Besides its topical nature, there is another reason that I chose to talk about the need to address censorship from a perspective that is in sync with changing realia. I see this issue as a symptom of an even greater problem. Even as I have hopefully approached the issue in a cogent and highly normative way, I do not expect my position to be articulated by our rabbinic leaders, much less to be accepted. by them. Ironically, we are witnessing an ossification of halacha, davka in a time period characterized by the most dramatic and rapid changes in human history. I am not, G-d forbid, claiming the existence of a malicious conspiracy. In some quarters, halachic stagnation comes from lack of exposure to modern society, in other quarters from fear of the instability that would be caused by the rapid change engendered by appropriate assessment of contemporary realia. Yet, such leadership is willy-nilly making the untenable myth that halacha doesn't change into an unfortunate and unprecedented reality.
While not malicious, the trend I described is quite pernicious. When we move away from the recognition of realia and its natural impact on halacha, we are not only moving away from reality. We are moving away from and, ultimately, denying truth. To use one of the examples above, if Tosefot and others are correct in their evaluation of the uniformly low state of concentration in post-Talmudic times, for a chatan not to read Kriyat Shema is denying the truth that he is not, in any way, effected in his ability to carry out this mitzvah. Not adapting the halacha would have resulted in a very destructive awareness that truth is not relevant to halacha. I think you will agree that having Judaism on one side of the equation and truth on the other is a very dangerous situation indeed..
In looking for recent models, one can look longingly to the Sreidei Esh, Rav Yechiel Yakov Weinberg. In one of his most famous teshuvot (II,8), he develops a convincing thesis for the need to be lenient about mixed youth groups, including mixed singing in postwar Western Europe. I recommend everyone reading the teshuva in its entirety, as is a masterful analysis of contemporary culture and the need to address such a culture in halacha. Among other important observations, Rav Weinberg lauds the Torah im Derech Eretz approach, which he laments was not present in Lithuania and Poland, as the rabbinic leadership there, "Lo yadu l'konein et hachinuch al pi tenaii hazman" ( Since they did not know how to organize Jewish education according to the conditions of the time).
Not long ago, a debate appeared in the media over whether Rav Weinberg could be considered Modern Orthodox. Such a debate misses the point. Grading him on a scorecard with the various positions that are associated with Modern Orthodoxy is truly not helpful. Rather, in placing R. Weinberg as a model, I am looking to someone who had the awareness and intellectual honesty to evaluate Modernity's impact on halacha.
Don't get me wrong. I am certainly not echoing the famous Orthodox feminist Blu Greenburg's famous, or infamous, words, that when there is a rabbinic will, there is a halachic way. I don't believe that's true. I am simply concerned about the lack of rabbinic will today to even entertain the halachic way.
(When I was learning for Smikha here in Yerushalayim, I remember being invited to my first Gemara rebbe's house for Shabbat. I was quite proud of how much I had accomplished since being under his tutelage and was eager to show him my abilities. I prepared what I considered to be a very sophisticated Beit haLevi on that week's parsha. That Shabbat, when I finished saying over the devar Torah, I looked at my rebbe for the approval I expected. Instead, he responded with two words -- so what! He went on to explain that the difference between his yeshiva, which was a mussar yeshiva, and Brisk, was that in his yeshiva, a dvar Torah could not just be an intellectual exercise, but rather had to have some practical conclusions that would help, in some way, to make one a better Jew.
So what! So what practical conclusions, if any, can we gain as a result of the preceding analysis. The decisions to censor various scholars, works or institutions probably doesn't effect many of the people in this room tonight. I remember, when Rav Schach was at his most militant, he inevitably censored the people that we thought were doing the most for Judaism - Rabbi Steinsaltz, Nechama Leibowitz, the Lubavitcher Rebbe and the list went on. It reached such Kafkaesque proportions, that being censored seemed to be the best indicator that you were an outstanding Jewish leader. As such, for many in the audience, like myself, such bans have little credibility. If anything, when something gets banned, we immediately run to buy it!
One conclusion we can suggest is to realize that the entire halachic enterprise is threatened when we avoid reality and truth. As a result, I think we should show greater willingness to stand up for truth. Many of us are far too indulgent of that which is false.
In my neighborhood, it is common practice to distort information about a family's personal standards or orientation, in order to get into certain schools. whose code is at odds with that of the home. In defense of such a practice, I heard of a parent declaring that when it comes to your children, you are willing to lie, cheat or steal.
I would like to make one thing clear: ONE CANNOT LIE, CHEAT OR STEAL FOR ONE'S CHILDREN, ONE CAN ONLY DO SUCH THINGS AGAINST ONE'S CHILDREN. No matter how wonderful and spiritual a school environment may be, any resulting spiritual benefits are completely undermined by lying to get in.
When we don't stand for that which is true, we often end up not standing for that which is morally correct either. Blurring distinctions between true and false is a very short step away form blurring distinctions between right and wrong. In a world more and more sophisticated, traditional Judaism can afford neither.
Another practical conclusion has to do with a certain discussion early on in the series. I think this conversation and its implications may provide us with an appropriate charge. Such a charge would make the Judaism in Crisis series the type of watershed that we are ultimately seeking . This individual is a rebbe at a Charedi yeshiva and displayed great courage in coming to one of our lectures, mentioning that his attendance could endanger his future employment at his yeshiva. He told me that our lectures were being heard by the wrong people. Recognizing that we are trying to engineer social change, he told me that you in the audience are not able to create that social change. He continued saying, that leadership is in the hands of the haredi yeshiva world. They are the ones setting the tone of contemporary Orthodoxy. While not meant as an attack, it behooves us to take this as an attack, nonetheless. Moreover, this is an attack that we must address soberly.
If tonight's analysis suggest that Judaism is taking a course that is more and more divorced not only from acknowledgement of realia, but also from reality and ultimately that which is at the center of the halacha -- morality and spirituality -- then we must all ask ourselves, what can I do about it? If our critic is correct, we must further ask ourselves , why is the impact of my opinion and action so limited? In other words, why are those of us who want to promote a more open self-aware vision of Orthodoxy not making a difference?
The main attack against a more open vision of Orthodoxy is that it doesn't work. It does not promote high levels of observance. It does not promote intensity of commitment. What it does do, is to allow for easier access to the paths of assimilation. These are convincing arguments and they have convinced many of our Orthodox brethren. These arguments are so convincing that in speaking with a major Modern Orthodox leader in the United States, he told me that he spends sleepless nights, wondering if he is not actually promoting a vision that pushes most people away from serious commitment.
Herein is the challenge: if we really believe that Judaism is in crisis, we must do something. Early on in this series, I quoted from R. Shimshon Raphael Hirsch comparing Judaism to a house on fire. I don't think that fire was ever completely put out. In our generation, the house sometimes looks intact (in fact, we have even done "shiputzim" and added on a floor or two). Upon more careful inspection, however, one realizes that a ferocious blaze is destroying the foundation. Once that foundation is destroyed, the house will cave in before anyone can even realize what is going on. A leadership that allows and perhaps sometimes even promotes cultural ignorance, petty corruption and intolerance can not help us.
We now have a choice - we can watch critically, wave our fingers at our brethren and smugly say, "I told you so" as things fall apart, or we can try to push ourselves to religious levels that will command respect, allowing us to push aside a leadership that is failing. If the Lithuanian yeshiva community has been able to usurp the direction of Orthodoxy, it is partly our fault. If we are not taken seriously, it is largely our fault. If we are to compete ideologically, we must also compete with their level of seriousness and commitment. We must also compete with their dedication to Torah study. As Rabbi Kooperman of Michlala once put it, we must be permeated by Torah and not just punctuated by it. If Torah is not the raison d'etre of our existence, we will be relegated to the position of helpless bystanders even as our diagnosis of the contemporary crisis is correct.
Friends, tonight we must throw our hats into the ring. When I say we, I am speaking not only to tonight's audience, but everyone who will subsequently see the video, hear the audio or read the written notes. I am actually speaking to all those who find common cause with our vision of an open, sophisticated and intellectually honest brand of Orthodoxy. For the sake of the holy Torah and for the sake of the future of the Jewish people, we must compete. With our daily actions, words and thoughts, we must show that an open Orthodoxy can work. With every ounce of our strength, we must show that an open Orthodoxy will work. I am convinced that, if we can do this, the tide will change and that we will be able to set the tone. A tone that will be consistent with contemporary realia and, accordingly, consistent with truth itself.