Understanding Orthodox Halachic Innovation: Rabbi Lopatin’s Tribute to Rav Hershel Schachter, shli”ta

Rabbi Shai Held, Rosh HaYeshiva of Yeshivat Hadar in New York,  recently wrote an Op Ed critical of Rav Hershel Schachter’s position prohibiting the ordination of women as rabbis.  Rabbi Schachter, perhaps the preeminent Rosh Yeshiva at Yeshiva University and a student of Rav Soloveitchik, zt”l, was one of many speakers at the recent Rabbinical Council of America convention where the issue of women rabbis in Orthodoxy – and, women’s roles in Orthodox Jewish communal leadership in general – was discussed and eventually voted on.  Rabbi Held mentioned, accurately, that Rav Schachter put the ordination of women in the category of “yehareg ve’al ya’avor” – those things that a person has to give up his or her life for rather that doing them.  Rav Schachter further invoked the ruling of his rebbe, Rav Yosef Dov Soloveitchik, that it was halachically impermissible for a woman to be a rabbi.  Many of the speakers at the convention, some of whom are poskim, halachic decisors like Rav Schachter is, disagreed with this understanding of the scope or application of Jewish law.  Moreover, even Rav Schachter, to the best of my understanding,  is in favor of women’s Torah learning and teaching on the communal level;  everyone at the convention, including Rav Schachter, would agree with Rabbi Held’s view that, “one of the crucial mandates of the hour is to create more opportunities and contexts [within halacha (ed.)]for women’s voices to be heard in Jewish life.”

Where I want to strenuously, and lovingly, disagree with Rabbi Held is in his implication throughout his Op Ed that Rav Schachter, and those of his ilk, are against “chidush bahalacha”, new, innovative ways of understanding the classic texts and traditions.  Nothing could be farther from the truth, especially since Rav Schachter’s speech at the conference delved specifically into the requirement  of every contemporary halachic decisor to examine the tradition and the text based on his (or her) own understanding: “l’fi r’ot eini hadayan” – according to the way the judge – of any era –sees it.  Rav Schachter spoke eloquently and passionately of how all the rules which seem to prohibit a lesser and later court from ruling against a greater and more numerous earlier court did not apply to understanding halacha, but, rather, only to rescinding a “takana” an edict.  When it comes to understanding the infinite word of God, especially in the world of Halacha, Rav Schachter proved beyond a shadow of a doubt that that understanding cannot  be based on “status quo”, as Rabbi Held claims, but, rather, by the most contemporary understanding of the halachic decisor who is examining it.

Rav Schachter gave as examples of this new and fresh approach that is required in learning and issuing halachic rulings, Rav Moshe Feinstein of the 20th century and the Vilna Gaon, the great Lithuanian decisor of the 18th century.  The Vilna Gaon regularly disagreed with Rishonim and Gaonim, authorities of the centuries and millennium before him.  He had no choice: he had to be honest, and if he felt they didn’t read the tradition and the texts (Talmud and Midrash) correctly, he had to disagree with them.  When it came to Rav Moshe Feinstein, Rav Schachter said that Rav Moshe, zt”l, wasn’t even so familiar with many of the opinions of the Acharonim, the big names of the three or four centuries before him,  and that he didn’t feel a loss: It’s always interesting for a halachic decisor to see what others are thinking,  but in the end of the day it doesn’t matter: halachic decisions are not just copied from the past, they are based on the latest, freshest thinking of the individual halachic authority.  Independence and, yes, innovation, where it is called for to bring out the truth of the Torah, are the hallmarks of the Orthodox halachic process, and from what Rav Schechter said at the RCA convention, he was their biggest advocate.

In fact, even though, in general, the authorities of the Gemarra (Amoraim) committed themselves not to take on the understandings of their predecessors, the authorities  of the Mishna (Tanaim), Rav Schachter showed how in some ways the great Amora Rav actually did disagree with Tanaim, as an Amora, not under the guise of a Tana himself, though he is sometimes called a Tana.  The great halachic and aggadic authority, the Netziv (19th century), Rosh Yeshiva of the storied Volozyn yeshiva developed this concept of “chidush bahalacha” – innovation in the halacha – long before any of the later authorities that Rabbi Held quotes, and Rav Schachter is squarely in the tradition of the Netziv, having studied with Rav Soloveitchik, himself a scion of the Volozyn tradition.

The very idea of ordaining women being “yehareg ve’al ya’avor (die rather than violate)” is based on an innovative understanding of the law in the Talmud of “arkesa d’mesana” – “laces (?)of the shoes”.  Rav Schachter explained this Talmudic concept in his talk that even the smallest infraction can become “yehareg ve’al ya’avor” – even how you tie your shoe – if it is in the context of “she’at hashmad” – a time when Jews are being persecuted for keeping Judaism, even down to the smallest detail like how Jews tie their shoes.  The innovative read on this Talmudic concept was pioneered by Rav Schachter’s teacher, Rav Soloveitchik, in taking on what the Rav saw as the “she’at hashmad” in the and ‘50’s and ‘60’s, when the Conservative and Reform movements’ popularity in Jewish circles created an atmosphere of pressure on Orthodox Jews to compromise their halacha and conform to Reform and Conservative styles of Jewish worship.  Thus, even davening in a Reform or Conservative synagogue, with mixed seating and other infractions of halacha (in the eyes of Orthodoxy), while not normally seen as a central violation meriting “yehareg ve’al ya’avor”, in the context of the social pressures and climate of the ‘50’s and ‘60’s were classified by the Rav as “yehareg ve’al ya’avor”.  Wow!  While we may recoil from this ruling, to use Rabbi Held’s term, it is certainly an innovative and revolutionary way of viewing a two thousand year old halacha from the Talmud.  Rav Schachter continues in Rav Soloveitchik’s innovative interpretation, by seeing the act of ordaining women rabbis as Orthodox Jews knuckling under pressure from a climate of feminism in society and amongst the other movements of Judaism.

Orthodoxy believes in a divine, infinite and eternal Torah that was revealed to Moshe at Sinai and through the 40 years in the wilderness.  To understand that Torah properly, requires each Torah scholar and halachic authority, in every generation, such as Rav Schachter, to think for themselves, to figure out what God told us, to understand the texts of our tradition in a way that feels true to the person reading them.  The halachic process, within the theological underpinnings of Orthodox Judaism, thrives on new understandings of the ancient texts and traditions; these new and innovative understandings, “chidushei halacha” are  celebrated as the contribution of each individual mind, in every era, to give us a better understanding of what God commanded Moses and the Children of Israel in the written and oral law so many years ago.  It is ever fresh, ever eternal, and ever open to debate and new challenges.     RAL

19 Responses to Understanding Orthodox Halachic Innovation: Rabbi Lopatin’s Tribute to Rav Hershel Schachter, shli”ta

  1. […] the Jewish Week, Halacha and Innovation Are Not Mutually Exclusive. I recommend reading it and also this response to Rabbi Held’s piece by Rabbi Asher Lopatin at […]

  2. David Wolkenfeld says:

    I do not remember RHS claiming that Rav Soloveitchik used language of yehareg v’al ya’avor in reference to non-Orthodox worship (although he famously wrote that it was better to forgo tekiat shofar rather than hear it in a Conservative synagogue with mixed seating). I have other reactions to what your essay but I wanted to offer at least that small correction.
    kol tuv,

  3. Anony says:

    Innovation in interpretation designed to prevent innovation in practice is the most profound form of manipulation and deception…

  4. Elana says:

    Rabbi Lopatin,
    With all due respect…. give me a break!

    Only someone well-trained in convoluted halakhic logic can possibly argue that Schachter was being innovative.

    I don’t know why you feel the need to defend someone who, no matter how you try and twist it, is vehemently and unequivocally opposed to a modern approach towards women’s scholarship and leadership.

    Rabbi Lopatin, I am very, very unimpressed.

    It makes me wonder about your plans for a supposedly “open” and “pluralistic” community in Israel’s south. Open by Schachter’s standards? Hmmm…..

    I was hoping you would actually be a welcome voice of change, but all I see here is same-old-same-old. Old thinking in a young man. Very unimpressive.


    • Asher Lopatin says:

      Sorry. Visit is in Beer Sheva and check out pluralism first hand. Starting next August.

      Shalom and best wishes,

      Rabbi Asher Lopatin

  5. Shlomo says:

    RAL, your invocation of “shaat hashemad” as the basis for R’ Shachter’s argument really takes all the force out of that argument. One would naturally think from the phrase “yaharog veal yaavor” that ordaining a female rabbi is a terrible crime, comparable to murder, adultery or idolatry. Instead, you compare female ordination to the “crime” of tying your right shoelace before your left one. In other words, there is absolutely nothing wrong with female ordination as long as it is not instituted due to outside pressure. Given that nowadays Conservative and Reform look more to Orthodoxy for ideas than vice versa, and that the major voices pushing for female rabbis right now are all within Orthodoxy, the argument of outside pressure appears quite weak.

    • Asher Lopatin says:

      I agree with you, but Rav Schachter thinks that Reform and Conservative are still big threats. Remember, he grew up in the ’50’s when Orthodoxy felt it was under attack.

      Shalom and best wishes,

      Rabbi Asher Lopatin

  6. Rav Lopatin, are you saying that Rav Schachter overused hiddush? Or, as I read your concluding paragraph, simply using hiddush to the extent that he might; which is a pretty great extent?

    Also, from that concluding paragraph, are you intimating that there are other poskim who are using hiddush legitimately in order to establish a woman rav/rabbah?

    • Asher Lopatin says:

      Yes, there are poskim who accept women rabbis halachically. There should be an article coming out soon.

      Shalom and best wishes,

      Rabbi Asher Lopatin

  7. That certain Rabbi’s think the issue of recognizing women as Rabbi’s is one they should die for before accepting … is so sadly an indication of distorted values. It’s okay to disagree, but to so polarize an issue is beyond credible belief.

    It reminds of the scene at the gates of Hell where recent arrivals are waiting and comparing notes.

    “I’m here because I killed three people during a robbery” said one.

    For me, I got caught for multiple rapes.

    Not to be out-done, the third confesses to swindling investors out of millions of dollars.

    Finally, the Jew on the bench meekly announces that he’s there because his Rabbi was a woman.


  8. Anonymous says:

    R. Held never claims R. Schachter would categorically oppose hiddushim, only that he delegitimates the hiddushim he disagrees with. To understand R. Schachter’s argument as l’ma’aseh, rather than one of pure rhetoric, is even more disturbing than the alternative. I deeply hope, R. Lopatin, that you do not sign on to R. Schachter’s analysis of the situation, despite your defense of his position here.

  9. anonymous says:

    R. Held never claims R. Schachter would categorically oppose hiddushim, only that he delegitimates the hiddushim he disagrees with. To understand R. Schachter’s argument as l’ma’aseh, rather than one of pure rhetoric, is even more disturbing than the alternative. I deeply hope, R. Lopatin, that you do not sign on to R. Schachter’s analysis of the situation, despite your defense of his position here.

  10. Warren says:

    I’d like to read what R’ Soloveitchik said about the 50’s and 60’s being “she’at hashmad” and so “yehareg ve’al ya’avor” cam into play. Where can I find it?


    • Asher Lopatin says:

      I’m working on it…

      Shalom and best wishes,

      Rabbi Asher Lopatin

    • Josh says:

      I was looking up something else and found this excellent article and interesting comment thread. I would like to heartily thank Rav Lopatin for a very respectful and intelligent response to Rav Huld and, even more so, to Rav Shachter. Kol hakavod for demonstrating respect and understanding for l’shaym shomayim differences even in instances where one does not agree with a particular halachik or hashkafic approach.

      One source for the Rav’s “yehareg ve’al ya’avor” argument as regards innovation from non-Torah centered values (as was believed to be one of the central issues with the feminist and egalitarian approaches of the Reform and Conservatism movement) can be found in Baruch Litvin’s (ed) “The Sanctity of the Synagogue: The Case for Mechitzah-Separation Between Men and Women in the Synagogue-Based on Jewish Law, History and Philosophy” republished by Ktav in 1987 (I think). I have a 1970’s edition. The Rav gave testimony in court on this issue (involving a law-suit between the rav of a shul and the lay leadership who wishes to remove the mechitza). Rav Soloveitchik, ZT”L, invoked “yehareg ve’al ya’avor” to defend mechitzah to the hilt.

      Kol tuv,

  11. Ben Zion says:

    The great halachic and aggadic authority, the Netziv (19th century), Rosh Yeshiva of the storied Volozyn yeshiva developed this concept of “chidush bahalacha”

    Where & how does the Netziv say this? If you are referring to Ha’amek Davar, Devarim 4:6, you are incorrectly reading and translating the word “lishnos” which means “to review,” as “lishanos, to change.”

    • Asher Lopatin says:

      I’m referring to the Netziv at the beginning of Tetzaveh – and many other places. Any place dealing with the menorah.

      Shalom and best wishes

      Rabbi Asher Lopatin

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