The Perfect Torah Versus The Evolving Torah, Essay 7 The Evolving Torah and Utopian Halacha

Nathan Lopes Cardozo

vrijdag 8 mei 2020

In the previous essays in this series, Yehuda DovBer Zirkind and I we delved into the teachings of the Mei Hashiloah on God, Torah and Halacha. In the final essay of this series we will come full circle and return to the beginning of our discussion about the evolving Torah and the quest for the perfect Torah of the future.

The premise of this entire series is that alongside the “perfect Torah” paradigm which views the Torah as a fixed and perfect Torah without any need for improvement or modification, there is another strand in Jewish thought which maintains that Torah and Halacha is less-than-perfect and is slowly evolving toward a more ideal and perfect state. This concept of Torah is a core component of the hashkafa (religious outlook) of Rabbi Cardozo (1) and other progressive Orthodox rabbis (2) and a guiding principle in their attitudes toward Halacha.

Rabbi Cardozo rails against what he terms a “defensive” and “waiting-mode” Halacha and calls for a “redemptive” and “prophetic” Halacha which is capable of moving Judaism forward. He passionately believes that the current reactionary halachic system must be replaced by a visionary halachic system. (3) In his presentation to the David Cardozo Academy Think Tank on the teachings of the Mei Hashiloah, Rabbi Cardozo spoke about the Mei Hashiloah’s vision of the Halacha of the future and his notion of Torah and Mitzvot as levushim (garments), which will be transcended in the messianic era. (4)

We will now continue this series with an exploration of various ways of conceptualizing and envisioning the Torah of the future. In addition, we will analyze the role that dreaming about a futuristic Torah and utopian Halacha plays in shaping the Halacha in the present.

The Abrogation of the Law in the Future

One paradigm that we already mentioned in this series is the opinion mentioned in the Talmud that mitzvot beteilot le-atid lavo (the commandments will be abolished in the future). (5) There is much discussion about the precise meaning and application of this concept. Another related concept is the notion that in the messianic era, a new Torah will be revealed, “A new Torah will emanate from Me.” (6) According to several opinions, the Torah of the future will be radically different from the Torah that we have today and many of the Mitzvot that are operative today will be abrogated in the future. (7)

The Primordial Torah and the Exiled Torah

A highly original view of the ideal Torah is the Kabbalistic concept of Torah ha-keduma (primordial Torah). (8) According to Ramban (Nachmanides), Moshe Rabeinu copied a primordial Torah that preceded the creation of the world. This Torah was written in letters of black on white fire. Unlike the current combination of letters which forms words containing narratives and law, the letter sequence of the primordial Torah is divided to form a chain of divine names. (9)

Other authorities expound the idea that Torah is rooted in a higher spiritual Torah that represents the mind of God but was garbed in the lowly physical garments of this materialistic world. (10) Given our current condition, the Mitzvot must be performed in an embodied, physical way. According to several Kabbalistic and Chassidic sources, in the future, when we will ascend to a higher spiritual level, the Mitzvot will similarly be performed on a spiritual plane in a manner totally different to what we are accustomed to today. The letters of the future Torah will be recombined to reveal the spiritual dimension of the Mitzvot. (11)

Moreover, The Kabbalist Rabbi Shlomo Elyashiv (1841-1926), also known as the Ba'al HaLeshem, propounds a radical idea that the Torah itself is in exile. The Torah we have today is a compromised Torah; it does not reflect the higher, pristine level of Torah that transcends the constraints of exile. In the age of redemption, the Torah itself will be redeemed from the shackles of exile. (12)

The Reestablishment of the Sanhedrin

The foregoing paradigm, based on Kabbalah and Jewish mysticism, envisions the Torah of the future as a spiritual manifestation of the divine light and hence the Mitzvot will also be elevated to a higher spiritual plane. There are, however, less rarefied and more pragmatic visions of what Halacha in the future will – and ought to – look like. These utopian visions are less concerned with the esoteric dimensions of Torah and more concerned with the tikkun (repair) of practical Halacha.

One strategy for implementing thoroughgoing changes in the Halacha is the reestablishment of the Sanhedrin (the Supreme Religious High Court of Israel). In fact, the hope for and feasibility of reinstating the Sanhedrin is something that has been hotly debated through various periods of Jewish history since the abolition of the Sanhedrin until the present day. (13) Once the Sanhedrin is renewed it will theoretically be possible to revise many laws in the Torah which are perceived as morally problematic. There are many people who pin their hopes on the future Sanhedrin for effecting wide-reaching changes that will eliminate the morally problematic aspects of contemporary Halacha.

Thus, the famous Rabbi Avraham Yitzchak Hacohen Kook (1865-1935) states: "… if a question arises about some law of the Torah, which ethical notions indicate should be understood in a different way, then truly, if the Great Court decides that this law pertains only to conditions which no longer exist, a source in the Torah will certainly be found for it. The conjunction of events [that prompted the new interpretation], with [the reinstatement of] the power of the courts and the interpretation of Torah is not a coincidence. They are rather signs of the light of the Torah and the truth of the Torah's Oral Law, for we are obligated to accept [the rulings] of the judge that will be in those days [a reference to Jeremiah 2:3] …" (14)

The Radical and Conservative Functions of Halachic Utopianism

The foregoing leads us to the question: what is the function that Halachic utopianism should play in the here-and-now? How can dreaming about a better halachic future help us in the present?

In a very insightful and illumination study, Professor Benjamin Brown from the Hebrew University in Jerusalem raises this question regarding the teachings of the Mei Hashiloah. (15) He asks: if the Mei Hashiloah did not intend to implement his radical views regarding Halacha in practice, but merely preached “theoretical” or “neutralized” antinomianism (as indeed Professor Brown argues), what significance, if any, does this idea hold for us living today in an unredeemed world?

In his article, Professor Brown argues, based on the work of other scholars, that dreaming about a Halachic utopia can serve two opposite functions: a “revolutionary” versus a “conservative” function. The radical function of utopian thinking is its ability to foment discontent with the status-quo and spark a revolution. Conversely, the conservative function of utopian thinking is its ability to provide a psychological coping mechanism to deal with a difficult situation in the present by providing hope for a brighter future. Throughout history, people have reacted differently to utopian visions. For example, within Judaism, the promise of a messianic utopia inspires some people to actively hasten the end of days, but it also has the opposite effect on others. Instead of inspiring revolution it can actually help maintain the status quo by deferring the realization of an anticipated utopia to a distant eschatological age.

The Midrash on the Mamzer: Conservative or Radical Utopian Thinking?

These two functions of utopian thinking can be applied to the dream of a halachic utopia. This will be demonstrated by an analysis of a Midrashic passage regarding the law of the mamzer.

In Kohelet it states: "So I returned and considered all the oppressions that are done under the sun and behold the tears of such as were oppressed. And they had no comforter, and on the side of their oppressors there was power, but they had no comforter." (16)

The Midrash comments: '“Behold the tears off the oppressed” – their fathers sinned, but what has this to do with these insulted ones? The father of this one went to a woman forbidden to him, but how did the child sin, and why does it concern him? “They have no comforter . . . but in the hands of the oppressors there is power” – these are the hands of the Great Sanhedrin, which moved against them with the authority of the Torah and removed them from the community, because it is written: “A mamzer shall not enter in the congregation of the Eternal One.” (17) “And there is none to comfort them” – therefore says the Holy One, blessed be He: “It is upon Me to comfort them . . .” As Zecharia prophesied, (18) “Behold I see them all like pure gold.” ' (19)

This statement made by Daniel the Tailor, an obscure figure, (20) expresses profound moral discontent with the Halacha. It is noteworthy that the Midrash records the objection of an unknown figure and not that of a prominent rabbinic sage. We can speculate that perhaps it may have been inconceivable or too dangerous for such a statement to be uttered by a member of the rabbinic establishment. Therefore it had to be uttered instead by a rabbinic outsider who felt oppressed by rabbinic authority. Furthermore, the midrash may be employing a subversive literary technique whereby they protest against the halachic system indirectly. Being that it cannot explicitly critique the very system they represent, it does so vicariously by raising the critique leveled by an outsider. (21)

The Midrash deals with Danial’s protest against the injustice of the mamzer law with a promise that although in the present reality we have to suffer the injustice of the law, in the future this problem will be solved. The Midrash cites the prophecy of Zecharia in support of the view that in the future God Himself will purify the mamzerim.

What is the midrash seeking to accomplish? Is it a cry to action or a call for patience? Does the promise of the future purification of the mamzerim intend to send a signal that we must do all we can to limit the applicability of the law today? Or is the Midrash trying to placate Daniel and perhaps even itself by saying, “yes Daniel, you’re right that the law is unfair, but there is nothing we can do about it! We can only wait for the day when God Himself will change the law”? According to the latter interpretation, the Midrash is actually imparting a more conservative message than the radical protest it is generally understood to convey.

The Midrash may be trying to temper the radical impulses of a Daniel and people like him by promising him that one day, when a perfect world order will reign, the negative effects of this law will be erased, but in the meantime, since we live in an imperfect world the law is still binding. Rather than offering a definitive interpretation of the Midrash, we are deliberately underscoring the hermeneutical ambiguities that this text presents. This highlights the paradoxical aspects of utopian Halachic thinking as will be outlined below.

Futuristic Halacha: Dream or Reality?

The foregoing analysis provides relevant insights for the role of utopian Halachic thinking regarding the contemporary halachic crisis. We believe that the more conservative voices within Orthodoxy will view all discussion of Halachic utopianism as something that is relegated to the Messianic Age. The function of Halachic utopianism according to this perspective is twofold: 1) to help alleviate some of the cognitive dissonance caused by the discrepancy between Halacha and morality by allowing people to indulge in the fantasy of a futuristic halachic utopia 2) to safeguard the integrity of the current Halachic system by deferring any possibility of change to a future that lies beyond our reach.

On the other hand, there are other more strident and revolutionary voices within Orthodoxy whose utopian Halachic thinking serves as a clarion call to action. Thus, while Yehudah DovBer believes that the Halachic desideratum expressed by Orthodox feminist Rabbanit Blu Greenberg, “where there is a rabbinic will, there is a halachic way” (22) should be viewed – at least in the current state of affairs – as an expression of utopian Halachic thinking rather than a statement of fact, nevertheless, Rabbi Cardozo believes that it should serve as a strong call and catalyst for Rabbinic action at the present moment and also to bring us one step closer to the utopian ideal.

We must also acknowledge the present-day limitations of achieving a total Halachic revolution and utopia. Sometimes halachic change is achieved best by means of evolution rather than revolution. In instances when radical change is impossible, the conservative function of utopian dreaming can serve us well. The imperfect reality of the present becomes more bearable when we able to dream about a brighter future. The main thing is that we don’t give up hope nor lose sight of the desired goal!

Indeed, as Halachically committed Jews, we often need to walk a tightrope between halachic preservation and innovation and maintain a fine balance between halachic conservatism and progressivism. Sometimes we need to declare that ke-shem she-mekablim sechar al ha-derisha kach mekablim sechar al ha-perisha (just as we receive reward for advancing novel interpretations, so too we receive reward for withdrawing (from this enterprise when necessary)). (23) Indeed, the capacity for dialectical thinking and living has always been a hallmark of Jewish experience. The ability to anticipate redemption while at the same time remaining firmly rooted within the present reality is an essential feature of Jewish existence.

The ideal Halachic utopia of our imagination falls short of the contemporary Halachic reality. But it is precisely the gap between the imagined utopia of tomorrow and the gritty reality of today which fuels our hope for a better future and pushes us to take small steps today to ensure that today’s dream becomes tomorrow’s reality.

(1) See Nathan Lopes Cardozo, Jewish Law as Rebellion (Jerusalem: Urim Publications, 2018), chap. 18, 19, 22, 27.

(2) Some of these rabbis include Rabbi Chaim Hirschensohn (1857-1935), whom we have already encountered in essay #2 in this series. Two of the more recent outspoken and controversial advocates of this approach are Rabbi Eliezer Berkovits (1908-1992) and Rabbi Emanuel Rackman (1910-2008).

On R. Berkovits, see Eliezer Berkovits, Ha-Halacha, Kocha ve-Tafkida (Jerusalem: Mossad HaRav Kook, 1981). Translated and abridged in English as Not in Heaven: The Nature and Function of Halacha (New York: Ktav, 1983); Ira Bedzow, Halakhic Man, Authentic Jew: Modern Expressions of Orthodox Thought from Rabbi Joseph B. Soloveitchik and Rabbi Eliezer Berkovits (Jerusalem: Urim, 2009); David Hazony, “Eliezer Berkovits and the Revival of Jewish Moral Thought”, Azure 11 (Summer 2001): 23-65; Shalom Carmy “Eliezer Berkovits’s Challenge to Contemporary Orthodoxy” Torah u-Madda Journal 12 (2004): 192-207; Jonathan Cohen, “Incompatible Parallels: Soloveitchik and Berkovits on Religious Experience, Commandment and the Dimension of History”, Modern Judaism 28, no. 2 (2008): 173–203; Rahel Berkovits, “Torat Hayyim: The Status of Women in the Thought of Eliezer Berkovits”, Shofar: an Interdisciplinary Journal of Jewish Studies 31, no. 4 (Summer 2013): 4-15; Marc B. Shapiro, “Rabbi Eliezer Berkovits's Halakic Vision for the Modern Age”, Ibid., 16-36; David Shatz, “Berkovits and the Priority of the Ethical”, Ibid., 85-102; Nadav Berman Shifman, “Pragmatism and Jewish Thought: Eliezer Berkovits’s Philosophy of Halakhic Fallibility”, Journal of Jewish Thought & Philosophy 27 (2019): 86-135; Gil Graff, “Halakhah as Torat Hayyim: The Values-Conscious Visions of Eliezer Berkovits and Emanuel Rackman”, Journal of Modern Jewish Studies 18, no. 3 (2019): 330-342. For a critique of Berkovits’ views, see Allan N. Nadler “Review Essay of Eliezer Berkovits’ Not in Heaven”, Tradition 21, no. 3 (Fall 1984): 91-97.

On R. Rackman, see Emanuel Rackman, Modern Halakhah for Our Time (Hoboken, NJ: Ktav, 1995); Idem, One Man’s Judaism (Jerusalem: Gefen, 2000); David Singer, “Emanuel Rackman: Gadfly of Modern Orthodoxy”, Modern Judaism 28, no. 2 (2008): 134-148; Lawrence Kaplan, “From Cooperation to Conflict: Rabbi Professor Emanuel Rackman, Rav Joseph B. Soloveitchik, and the Evolution of American Modern Orthodoxy”, Modern Judaism 30, no. 1 (2010): 46-68.

(3) See Nathan Lopes Cardozo, Jewish Law as Rebellion, chap. 2

(4) Mei Hashiloah, vol. 1, folios 51b-52a on Bamidbar 19:2; Ibid., folio 19 on Tractate Megila 12b; Ibid., vol. 2, p. 122 on Tractate Megila 12b.

(5) See Niddah 61b.

(6) Based on Yeshayahu 51:4. See Vayikra Rabba, Vilna ed. 13:3. See Moshe Idel, “‘Torah Hadashah’ – Messiah and the New Torah in Jewish Mysticism and Modern Scholarship”, Kabbalah: Journal for the Study of Jewish Mystical Texts 21 (2010): 57-109.

(7) For a comprehensive presentation of the various views on this topic, see Abraham Joshua Heschel, Torah min Hashamayim Ba-aspaklaria shel Ha-dorot (Theology of Ancient Judaism), Vol. 3 (Jerusalem: JTS, 1995), 54-81 (Hebrew); Marc B. Shapiro, The Limits of Orthodox Theology: Maimonides’ Thirteen Principles Reappraised (Oxford: Littman Library of Jewish Civilization, 2004), chap. 8.

(8) See R. Meir ben Ezekiel ibn Gabbai, Avodat Hakodesh, part 1, section 21; R. Yeshaya Horowitz, Shnei Luchot ha-Brit, part 2, Aseret Hadibrot on Tractate Shavuot, Torah Or 1.

(9) See the Ramban’s introduction to the Torah.

(10) Nathan Lopes Cardozo, The Torah as God’s Mind: A Kabbalistic Look into the Pentateuch (NY: Bep Ron, 1988).

(11) See Avraham Azulai, Chesed Le-Avraham (Amsterdam: Emanuel Atias, 1685), 2:11; 2:27. See also Gershom Scholem, On the Kabbalah and its Symbolism, trans. Ralph Manheim (New York, Schocken, 1969), 66 ff. See also the sources compiled here, and here.

(12) See Sefer Leshem Shevo v-Achloma, vol. 2, Sefer Ha-de'ah (Piotrków, 1912), 153a. This text appears in this source sheet #12.

(13) There is a vast literature on the topic of the Sanhedrin and the possibility of its renewal today. Recent attempts to reinstate the Sanhedrin has received much attention and generated many responses in the form of scholarly articles, media reports and blog posts. For a brief overview, see R. Moshe Tzuriel “Sanhedrin Achshav”, Techumin 18 (1998): 448–461, available online. For further reference, see the comprehensive bibliography listed in Prof. Nachum Rakover, Otzar Hamishpat s.v. Chidush Ha-Sanhedrin, available online, and these sources and this one.

(14) Igerot ha-Rayah (Jerusalem: Mossad HaRav Kook, 2006), Vol. 1, p. 103. The English translation appears in Tamar Ross, Expanding the Palace of Torah (Hanover: Brandeis University Press, 2004), 206. See also R. Avraham Yitzchak Hacohen Kook, Le-Nevuchei Hador (For the Perplexed of the Generation) ( Tel Aviv: Yediot Acharonot and Chemed Books, 2014), chap. 6 (1) and 13.

(15) Benjamin Brown, “Theoretical Antinomianism and the Conservative Function of Utopia: Rabbi Mordekhai Yosef of Izbica as a Case Study”, The Journal of Religion 99, no. 3 (July 2019): 312-340.

(16) Kohelet 4:1.

(17) Devarim 23:3.

(18) Zecharia 4:2.

(19) Kohelet Rabba, Vilna ed., 4:1, section 1. The view that in the future mamzerim will be purified accords with the opinion of R. Yose. See Kiddushin 72b and Tosefta Kiddushin 5:4. Note that R. Meir disagrees with R. Yose. See the interesting difference of opinion between Kiddushin 72b and Jerusalem Talmud Kiddushin 3:13, 64d as to whether the Halacha is according to R. Meir that mamzerim will not be purified in the messianic era or according to R. Yose that mamzerim will be purified in the messianic era. For a detailed study on this topic, see Nathan Lopes Cardozo, Jewish Law as Rebellion, chap. 27.

(20) The only other known statement from Daniel the tailor is cited in Bereshit Rabba, Vilna ed., 64:7. On the identity of Daniel the Tailor, see “Daniel Ḥayyata”, Encyclopaedia Judaica, ed. Michael Berenbaum and Fred Skolnik, 2nd ed. (Detroit: Macmillan Reference USA, 2007), 5:429; Louis Jacobs, A Tree of Life: Diversity, Flexibility, and Creativity in Jewish Law (London: Littman Library of Jewish Civilization, 2000), 247 n54.

(21) The arguments of the biblical figure of Korach are interpreted in the midrash as an expression discontent with the law and a protest against Halachic oppression. See Midrash Tehillim, Buber ed., 1:15. On the topic of raising voices of protest against God and Torah in rabbinic literature, see Dov Weiss, Pious Irreverence: Confronting God in Rabbinic Judaism (Philadelphia: University of Pennsylvania Press, 2017).

(22) See Blu Greenberg, On Women and Judaism: A View From Tradition (Philadelphia: Jewish Publication Society of America, 1981), 44.

(23) See Pesachim 22b; Kiddushin 57a; Bava Kama 41b; Bechorot 6b.

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