Rupture and Reconstruction - a critic

I must admit that my expectations from the famous Jewish scholar and son of Rabbi Soloveichik were high and, as usual unfortunately, I was deeply disappointed by the shallowness of his analysis, arguments and remarks, the lack of comparison to earlier sources… to say it short the mediocrity of this much-quoted article.

A day before reading it, I happened to be in Amsterdam and visited the Jewish quarter with a guide. It was, to be honest, a goyish tour (the guide was himself a goy) and he described the community as liberal, «non-orthodox » since it was very open to outside culture, and its members spoke many languages and were well integrated into society. I immediately thought this was misrepresenting the past of Jewish communities. There was nothing like religious segmentation (the Karaite sect is a different issue) between Reform, Liberal, Conservative and Orthodox. Indeed, it was just a religious-national community within which people were more or less stringent about religious matters. One of the many examples of this is the fact that Jews in France and Germany neglected the mitzvoth of tefilin (as written in Smag Positive Commandment 3 and other authors in his time)1. Moreover, some communities throughout history were also well integrated while maintaining a high level of religious practice and study such as Andalusia of the Golden Age and Italy of the Renaissance.

I think all that is pretty evident for every person immersed in Jewish literature and history.

Nevertheless, the fact is that our author presents a « new paradigm » of Judaism based on written texts and Judaism based on tradition and custom. According to me, it is not precise, I would have presented it as a Judaism as binding law versus Judaism as a way of life.

Secondly, the author seems to see the shift from the « traditional way » to the new « orthodox way » in the person of the Hafetz Haim. This idea is astounding to say the least. Discussions about the relations between law derived from the Talmud and contemporary customs and practices are as old as Rabbinic Judaism. Even a Talmudic neophyte knows that in many if not most instances, there was a commonly accepted practice but that did not bother the Tannaim to discuss about the law and ask for a change in practice. A dozen times, it is reported in Tannaitic sources that « at first [this was the practice] » till a later Tanna came and changed the halakha2. Later Tannaim even disagreed with the opinions and testimony of people who lived in the time of the Temple.3

The author continues and seems to assume that justifying customs which appear to contradict the Talmudic law or abolishing it in favor of the law is something new (Gra and from him on). This is utterly false. Open the fist page of the Talmud and read the first Tosafot, then read Tosafot on Megillah 30a (Lemahar Karinan…) and you will see it clearly: nothing new.

The concept of minhag ta’ut is not a modern haredi invention either. It appears in the writings of the Rambam, Rabbi Yosef Karo and other preeminent halakhic authorities and community leaders.4

To substantiate his claim, the author takes two examples. One only is really pertinent to our subject and it is the consumption of fish on Shabbat. The author could have picked many other examples like wearing hats on shabbat5 or bathing in non-kosher mikvah6.

I would like to begin by saying that lack of evidence is not evidence and all the more so knowing bigger problems were to be dealt with and the halakhic principle ״מוטב שיהיו שוגגין ואל יהיו מזידין… ודוקא שאינו מפורש בתורה אעפ״י שהוא דאורייתא״.7

Furthermore, it is not unknown that even religious, God fearing Jews did even more reprehensible things like marrying their daughters to amei haaretz, openly non-religious and often violent Jews (I witnessed it myself and see Piskei Teshuvah Yoreh Deah 194).

If Beit Shamai said of Rabban Yohanan HaHorani and of Beit Hillel that they never fulfilled the mitsvah of sukkah (Mishna Sukkah 2:7), I don’t see a problem saying that a great part of God-fearing Jews who probably weren’t expert in halakha were wrong about this practice.8

Finally, I would like to address the proposition of Judaism as a way of life, a set of norms and practices which are not bound to the « written word ».

I got the impression, honestly, that the author tends to present it as the old, traditional, the most authentic way of Judaism. This is in fact the main shortcoming and the failure of this text and we will try in the end of this paragraph to explain this move from the old ways to halakhic rigor.

One cannot begin but by the particularity of Judaism which is based on a Written and and Oral Torah. Given that the relation between those two Torot is complex (and it is a euphemism), we won’t be able to expose it ; however, we will stress briefly the religious problems it causes and see its consequences for our subject.

It cannot be denied that in matters of law, the Oral Torah has the last word and that in cases of contradiction, the Written word will have to be reinterpreted in light of the Oral law. Moreover, the authority given to the Judges, the Priests and their successors is not sufficiently explicit and explained in the Written Torah to justify contradicting it and even within the Oral Torah it is not clear how things are supposed to work. To summarize « הלכה עוקרת/עוקבת מקרא »: « the Oral law uproots the Written word ». Now, let’s see what what we get (in some instances) if « minhag uproots the Oral law »: The Written Torah says A, the Oral Torah says B and the minhag is C. As anyone can quickly understand, it undermines the status of the Oral law and delegitimize the whole idea of a divine law and halakhic authority.

The author also assumes that halakhic rigor leads to humrot while sometimes it is the contrary, for according to minhag women weren’t allowed to go to jewish schools (everywhere) and synagogues (in Arab countries), religious people were very strict about sexual matters and so on.

Minhagim can be misleading since one doesn’t the reason behind and it is undeniable that some were and are blameworthy and an unnecessary burden.9

For myself, I think the vivification of halakhic studies was caused by a number of factors, among which:

.Globalization, the mix between communities which are no longer excluded from the rest of the world. Israel has an important role in this process.

.Pursuit of truth, authenticity and rationalism: as said above, minhag is perceived as a marginal element, of human value, uncontrolled and sometimes linked to superstitions.

Judaism is nowadays practiced by choice. Knowing that Jewish law is very heavy on the individual, it could not remain a matter of tradition. People who choose to live according to Judaism want to do it the right way.

.New situations and problems: mass immigration, the Jewish State, assimilation

Additional remarks:

.The books cited were published by haredi publishers.

.No evidence, testimony whatsoever that Modern Orthodoxy has undergone a revolution.10

.The publication of halakhic opuses on one specific subject is also new in the haredi world.

.I don’t understand why he needed the approbations and advices from so many scholars.

.The presence of baalei teshuvah in the Modern Orthodox world is not null. The author doesn’t take the trouble to bring statistics.

Notes

1 For a list of various cases of negligence/disregard of certain mitzvoth in Jewish communities, see: https://rationalbelief.org.il/ראש-חודש-כסליו-זריזים-מקדימים-לניפוץ-מ/#_ftnref1

2 Mishna Bikkurim 3:7, Sukkah 3:12, Gittin 4:2, Arakhin 9:4, Tevul Yom Tov 4:5; Tosefta Demai 1:2, Pesahim 1:7, etc.

3 For an exhaustive overview of the subject, see Torah Shebealpeh, Inbal, p.54-60

4 See Hilkhot Issurei Biah 11:14-15, Orah Hayim Shulhan Arukh chapter 605 and Orah Hayim Tur 182:7. See also Ibn Ezra on Numbers 15:39 and Tosfot Yom Tov on Baba Metsia 9:1.

5 Justifications given by R. Elikan:

(1) cf. resp. Radbaz, vol. II, §77 ; H'azon Ovadia (Yossef), Shabat, vol. V, p. 322-328 ; Menouh'at Ahava (Levy), chap. 23, al. 13 ; resp. Shoalin veDorshin (Schlesinger), vol. V, §23 and in his book "Yom Shabaton", vol. I, §57

(2) cf. resp. Noda BiYehdoua (Mahad. Tanyana), end of §30 ; Yeshouot Yaakov (Orenstein), OH 315, s.k. 3 ; resp. Maharshedam OH §4 ; resp. Mih'tam LeDavid (Pardo) OH §1.

(3) cf. Ktzot HaShoulh'an OH 120, Badei HaShoulh'an, s.k. 1 ; Shemirat Shabat Kehilh'ata, chap. 24, n. 21 ; cf. also TaZ OH 315, s.k. 8 et 301, s.k. 27 ; Sh. Ar. HaRav (H'abad) OH 301, al. 48-49 ; Shoulh'an Atzei Shitim §3 HaBoneh veHaSoter, footnote ; resp. Pnei Yehoshoua §16 ; Mishna Beroura OH 301, s.k. 152 and Piskei Teshouvot OH 315, §17 ; Ashrei HaIsh, vol. I, p. 260 in the name of rav Elyashiv ; Orh'ot Shabat, vol. I, chap. 9, p. 321-323.

6 Rambam Teshuvot /Iggerot … and Hilkhot Issurei Biah 11:14-15

7 Orah Hayim 608:2 Rema

8 By the way, I don't think this is a good example since there are good reasons to allow taking out fish bones. See Pninei Halacha Shabbat 11:9 footnote 10.

9 We are aware that rabbinic authorities considered minhag as binding even if it seems to contradict halakha, according to the principle: minhag israel torah hu or minhag avoteinu torah hu ('Hidushei haRamban on Pesa'him 7b, Tosefot 20b ד״ה ונפסל, see also Minhag Ashkenaz ha-Kadmon: An Assessment in Collected Essays II, H. Soloveitchik, page 49), kol hamon/harabim kekol shaday (Nahalat Avot on Pirkei Avot 3:9 and Midrash Shmuel on 3:10). The issue of “Halakha and Minhag“ deserves a serious study, not a one like that article. (The curious reader should compare Ramban's words on Pesa'him 7b to what he writes in his Mil'hemet Hashem on Beitzah 5a.)

10 In fact, Modern Orthodoxy still shares some features with the old traditional society. See: https://seforimblog.com/2016/06/engaged-couples-and-more/