The Mesorah and Her Alleged Heretics. Posted by Rabbi Yosef Kanefsky

 With the dust settling (for the moment) over the issue of ordaining women, a question of a much more sweeping and urgent nature needs to be squarely addressed. The right-wing opponents of the RCA’s measured statement are demanding with one voice that the ordination of women expressly be labeled as “a breach of our mesorah (received tradition)”. Their claim is that it ultimately doesn’t matter whether bestowing the title “rabbi” upon a woman violates Halacha or not. Even if it does not, it is an act of near heresy, as it implicitly denies the validity of our received tradition which we believe originated at Sinai – a tradition which bans women from the rabbinate, or so their argument goes. This is the stance taken by Agudah, among others. Their argument is designed to be a debate-stopper. Such has always been the purpose of crying “heresy”.

 But is their understanding of the term “mesorah” accurate? Let us for now leave the specific issue of women’s ordination aside (though to argue that we have a tradition barring women from the modern rabbinate is comparable to the argument, made nearly a century ago, that we have a tradition barring women from voting). Let’s focus only on the larger question: Do we believe that to change any long-standing Jewish practice is perforce to deny the validity – or even the existence of – a legally binding “mesorah”?

Or might the opposite be true? That to stubbornly insist on never changing long-standing practices is actually itself a departure from our received tradition? 

There is a constellation of points in Jewish Law and practice which when taken together form a striking pattern. Accepted, Biblically-sanctioned legal practices are sometimes understood as falling short of our religious ideals, and are then subject to formal or de facto change. One point in the pattern is the Talmud’s decision to label the “Law of the Captive Beauty” (D’varim 21) as being a concession to the dark side of human nature, the yetzer hara. Yes, the Torah permits the Israelite soldier to seize a beautiful woman whom he finds among the captives of war. But to rabbinic thinking, the fact that this is permissible doesn’t imply that it is a behavior that meets Judaism’s religious/ethical ideal. Our Sages explicitly label seizing a woman, even under these circumstances, as  being a bad thing. It is something that a decent religious person does not do. Long-sanctioned legal tradition though it may be, the unmistakable conclusion  is that as we progress in our ethical self-expectations, the “Law of the Captive beauty” is a practice that should not be perpetuated (and in fact would never be tolerated in a Jewish army today)

Take, as another example the fate, in rabbinic hands, of the Torah’s instruction that we take Canaanites as our slaves, and that we not to ever emancipate them. Indeed, Tanach attests to the established tradition of Israelites owning non-Israelite slaves, and presumably bequeathing them to their children. But to the rabbinic mind, this Biblical law was a concession to economic realities, not a reflection of our religious ideal. (See Sifra Behar, parsha 6). In light of the severe Biblical restrictions concerning owning and working an Israelite slave, the earliest generation of Jews simply needed an alternative. (In the words of the Sifra, “Since You prohibited all of these, what labor shall we use?!”)  But the Talmud attests in several places, that our sages had grown uncomfortable with this long-standing practice of permanent servitude. In fact by the time of the Hadrianic persecution, the practice of emancipating foreign slaves was so common among Jews that when the Romans charged R. Elazar ben Parta with the crime of observing Jewish Law, one of the charges leveled against him was “why did you emancipate your slave?” . This practice, Rashi comments, was widely regarded as “dat yehudit”, standard Jewish practice (Gemara and Rashi A.Z. 17a}

The traditions of warfare are yet another point in the pattern. The Midrash (Tanchuma 96:3, in the context of  D’varim 20) portrays Moshe himself as rejecting the Biblical mode of warfare in which civilians are not always given the opportunity to escape. Moshe’s midrashic refusal to comply with God’s command to carry out just such a campaign, anticipates the halachik change to this effect. (See for example, Rambam’s Mishna Torah, Laws of Kings 6:1)

What these examples share is the fact that the stated law, the established practice, fell short of a religious/moral ideal that the Torah itself elsewhere expressed. The taking of women against their will is listed a sin of the generation of the flood. Our founding story revolves around the moral evil of forcing people to labor as slaves with no hope of freedom. Our progenitor Abraham’s greatest moment was the one when he insisted that one cannot kill the innocent along with the wicked.  And in each of the above cases, the legal tradition was ultimately modified.

These are but a few points in the pattern. Over time, our tradition has also effected changes in the areas of divorce, the taking of concubines, and the implementation of capital punishment, all with an eye toward the ideals the Torah elsewhere articulates. The underlying legal theory is the recognition that our people’s historical journey from the real to the ideal is a long one. As well as the recognition that the travelers with which we began our journey –  those who left Egypt – possessed but the most tenuous of grasps on what it was that God was envisioning. Rambam said it best. “Many things in our Law are due [to the fact] that a sudden transition from one opposite to another is impossible. And man, according to his nature, is not capable of abandoning suddenly all to which he was accustomed. (Guide, 3:32) As paraphrased by Rabbi Jonathan Sacks, “the Torah is a series of provisional enactments, tending toward the realization of an ideal society”.

It is unmistakable that our received tradition instructs us to continuously reflect upon our long-standing practices.  For the fact that a given practice is long-standing can point either to the conclusion that it is worthy and good, or to the conclusion that it is overdue for a reassessment, as it represents a premature plateauing in our constant ascent toward God’s ideal. To change is not to breach the menorah. If anything, the opposite is true.

We have a received tradition regarding the means and the methods of change as well. The process is characterized by cautiousness and consensus-building, care and community. But we need to be wary of those who brandish the term “mesorah” as a weapon against any change that doesn’t suit their political tastes. They are abusing the term, and leading us backwards.

10 Responses to The Mesorah and Her Alleged Heretics. Posted by Rabbi Yosef Kanefsky

  1. David S says:

    Absolutely great post. To me more than anything else, the meta-halachik process has historically bent towards justice. If that is so, then God continues to be at work in the world.

  2. […] Yosef Kanefsky has a post at Morethodoxy, The Mesorah and Her Alleged Heretics. It is unmistakable that our received tradition instructs us to continuously reflect upon our […]

  3. Y Kohn says:

    “…They are abusing the term, and leading us backwards.”

    A give away to top all give-away’s. Orthodoxy by definition is to march “backwards” indeed! It is the epitome of reform that going forward is a goal in of itself.

    Yes Tze’i lach be’ikvei ha’tzon. is going and looking backwards!

  4. Milhouse says:

    What kind of nonsense are you preaching here? Your entire construction from the Sifra has no hands or feet; there is not the slightest hint of reluctance or compunction about owning slaves to be found there, or anywhere else in all the words of Chazal.

    You claim that Chazal ever advocated freeing slaves?! It’s a clear and undisputed halacha, which is binding to this day, that it is forbidden to free a slave, if not for the purpose of a mitzvah. (Rambam Avadim 9:7, Shulchan Aruch YD 267:79) So you found some obscure agadeta in AZ (for which you gave the wrong page reference, so clearly you never saw it inside); what does that prove? All it does is raise a question on the agadeta; it doesn’t change halacha pesukah.

    Further, since you’re so keen on bringing secular knowledge into halachic discussions, what does our knowledge of Roman history tell us about their attitude to the manumission of slaves? Is it at all likely that they would ban the practise as a Jewish one?!

  5. Yona says:

    Rabbi Kanefsky,
    I see the arguement that you are making here. I am on the fence about the issue, but lean towards agreeing with you. However, I do take issue with your analogies. I do not understand how they align with this scenario. the examples you use (Eisha Yefat Toar and Eved Canaani) are situations where the change was Shev V’Lo Taaseh, so that nothing was actively being done. Not only that, but these examples are clearly not the ideal as given by the Torah, but are permitted if we really have to do it. However, your opposition would not say that about ordaining female Rabbis. These ordinations are an active, rather than a passive change. Do you have any examples of more active changes that were undertaken?

    Perhaps another arguement, and one that I would like to ask your opposition, is wether this situation can be called Mesorah at all. Several years back nobody would have thought to ask if a woman could be a posek because it was not a possibility. Women were not educated properly, and the culture of the day would have thought of such things (even in secular circles) to be ridiculous. Therefore, it may not be mesorah any more than not using a computer or not driving a car would have been mesorah 150 years ago. In addition, the idea of mesorah itself includes women in leadership positions. The Zekainim handed the mesorah to the Naviim, which included Devorah (who sat as a judge) and Chuldah (who taught Torah publicly). Therefore, the Mesorah itself shows that woman may take religious leadership roles in the Jewish community.

    Therefore, while I am unconvinced that mesorah of the nature that is disputed may be changed as times change, I am equally unconvinced that there is any mesorah that proves that women cannot take leadership roles in the Jewish community.

  6. Am Ha'aretz says:

    Personally, I do not object to a qualified woman rabbi (raba). But on logical grounds, it is a lame argument to compare a secular political tradition with a religious tradition (voting compared to rabbi). The laws of one are fickle and democratic, unbound by tradition; the laws of the other are authoritarian and strictly controlled by tradition. Further, the appeal to religious ideals seduces me, but the examples offered for this argument deal with severe physical hardship. Perhaps there are stronger ones rooted in Torah and its offshoots.

    Regarding the “Raba” controversy, what seems seminal to help deciding on a position is Rabbi Jonathan Sacks’ essay “Creativity and Innovation in Halakhah.” (In Rabbinic Authority and Personal Autonomy. Ed. Moshe Sokol. Jason Aronson Inc.: Northvale, NJ & London, 1992, pp. 123-168.

    Using subtle conceptual tools, he analyzes the issues of what legitimates halakhic innovation, what is the role of precedent in halakhah, and how to understand the idea of lo-ba-shayim hi (the Torah is not in Heaven). He focuses on the JTS responsa regarding the sociopolitical status of women. His methodology seems profound, as he examines, e..g., the Rambam’s readings of a baraita and sugyah when codifying a general rule that permits an innovative ruling; or, e.g., how social change relates to the history of halakhah, or, e.g., the posek’s mind as it bears on legal philosophy (if at all).

    In an ideal world, learned rabbis would have time to meditate on this cautious essay, debate its component factors, and come to a decision about when and what to innovate.

  7. Susan Schneider says:

    Thank-you for an elegant and well -referenced response to our tradition’s ability to evolve and attain higher standards of morality. As a woman, I have hope that more than 50% of humanity will be sought out for their contributions to learning and judgements of law as well as representation.

  8. Pierre says:

    Regarding the example of slavery; as much as it was indeed a matter of servitude, was also for destitute non-Jews THE ONLY permanent refuge at a time when the world hadn’t been ethically “Judaized” by our presence (via Christianity and Islam), when certain norms of societal behavior hadn’t become widespread, when non-Jewish civic order often militated AGAINST support for the downtrodden. It ensured they had no peers or role models aside from those bound by Torah ethical and civil laws. Someone outside the civil structure in that day and age was prey to all manner of exploitation – except servitude in a Jewish home, where such exploitation was severely limited.
    But now that we are in a VERY Judaized world, a world that has changed significantly by our presence, in social order, politics, etc – what was once a profound ethical advance has become viewed as a backward tribal *obligation* to exploit and enslave others. For their times, such laws and models can be understood as the starting points of *processes*, not fixed and static legislative rulings unresponsive to new conditions. R. Nahum Rabinowitz in his piece “Way of Torah” from Edah Journal give other examples that do not presume certain Torah laws are innately unethical REQUIRING human revision, nor similarly PRESUMING they were Given to as innately fixed in form.

    We have similarly brought certain modes of thought into the world that were radically egalitarian for their time. The ancient world dehumanized women by putting them on pedestals as archetypes and exploited them horribly as chattel; yes, Judaism wasn’t then what we expect NOW, but for it’s time it made huge improvements. Torah presents REAL women as figures of influence, of role and responsibility – not abstract deities or non-human breeding machines.

    But now these relative improvements have fermented in the West into calls for egalitarianism AGAINST traditional Judaism! – it’s our new reality, one that we are partly responsible for – and also responsible TO. Observant Jews have to be responsible to the Jewish ‘now’, while being respectful and derivative of what was given “then”.

    It is deeply disingenuous to conceive of a community with authority figures of only one gender as *the only* model when much of the world has grown up and away from such thinking, due in good part to Jewish presence in it with their Torah, living it in their days.

  9. MIKE says:

    Rabbi,

    It is YOU who is sturbbonly insisting on never changing long standing practices. Indeed, the modern approach to mesorah entails that the mesorah is static, not dynamic, and that is what is neccessary to insure the continuation of our religion as we battle the negative forces of our society. Thus it is incumbent upon the RCA to come on board with the rest of torah true judaism and rebuke Rabbi Weiss for his attempt to introduce an innovation which can ultimately lead to the unravelling of the fabric of that which we hold dear, the torah and the mesorah.

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