The Ideal Torah Versus the Evolving Torah Thoughts on the Mei Hashiloah and the Halacha Part 2

Nathan Lopes Cardozo

vrijdag 28 februari 2020

Dear Friends, Shalom uvracha. this is the second part of Yehudah DovBer Zirkind’s essay on “The Perfect Torah vs the Evolving Torah” / “Thoughts on the Mei Hashiloah”, based on my observations made at the Think Tank meeting of the David Cardozo Academy on January 29, 2020 in Jerushalayim.

In the first part (TTP 682) we mentioned the enormous importance of the “Mei Hashiloah” for contemporary Jewry and traditional Judaism and the state of Israel. we explained that there are two ways within orthodoxy how to see the Torah: on the one hand as a “perfect Torah” which contains the idea that the Torah is “the truth, the whole truth and nothing but the truth”, which means that the commandments and the conventional halacha are as perfect as they can be and that no halachic changes can be made concerning the commanments even when they appear to be unjust and are not compatible with the moral spirit of any age. As such any change is a serious violation of Torah-true principles.

On the other side of the spectrum we find the “evolving Torah” approach within orthodoxy, which is as authentic as the first approach and has many earlier authorities, such as Maimonides, and rabbinical sources to rely on. it believes that the Torah was given at a particular moment in time and as such, while completey divine, often expresses ideas and commandments which were a compromise to human weakness (i.e. sacrifices and the permission to have slaves). These laws must be seen as “Torah tolerated’ but not as “ideal” Torah laws. As such the sages of Israel were not only permitted but in fact obligated to “update” the Torah to higher, more ideal standards depending on the moral and religious conditions of their days. it is the last approach which I believe to be the more correct one, since it allows the halacha to be able to respond to the constant changing conditions of the Jewish people and mankind. In this way the Torah and the halacha stay fresh, do not become defensive and stagnant. it is of outmost importance to realize that this approach is completely within the boundaries of orthodoxy and in fact the only way in which we can make sure that the halacha will stay relevant to our lives in whatever century we live.

Yehudah Berdov Zirkind now continues to explain these ideas based on my comments and the writings of the chassidic master Rabbi Mordechai Yosef Leiner ( 1800-1854), the author of the “Mei Hashiloah”, one of the most original and daring thinkers within orthodox Judaism. With thanks to Yehudah BerDov Zirkind,

Nathan Lopes Cardozo

Rabbi Cardozo’s Presentation to the Think Tank

During the Think Tank session, Rabbi Cardozo presented his thoughts on the Mei Hashiloah’s teachings. The members of the Think Tank then engaged in a lively discussion and debate regarding the Mei Hashiloah’s ideas in general, and Rabbi Cardozo’s thoughts in particular.

One of the main points Rabbi Cardozo discussed was the issue of what it means to be Jewish and keep Torah and Mitzvot before Matan Torah (the giving of the Torah). (1) Elsewhere, Rabbi Cardozo has written in great length about the “Beth Midrash of Avraham Avinu,” as an “incubation” or gestational period in which the core spiritual values of Judaism were formed, before they became concretized at Matan Torah. (2)

Rabbi Cardozo has often called for the need to return to this stage of “embryonic Judaism” and reclaim its formative ethos in order to unfreeze the later codification of Judaism, which has led to its stagnation. (3) The need to return to the original, pristine state of Judaism before it was corrupted by ossification and fossilization is one of the leitmotifs of Rabbi Cardozo’s writing.

A Point of Departure

At the outset of his presentation, Rabbi Cardozo noted that he does not limit himself to a strict reading of the Mei Hashiloah. Rather, he sees the Mei Hashiloah’s ideas as a point of departure – a kind of springboard – for an exploration of ideas that go beyond what the Mei Hashiloah originally intended or would agree to. In addition, Rabbi Cardozo explores these ideas in a uniquely “Cardozian” way, by placing them within the rubric of his own theological views about Torah. For example, he suggests that the morality of Torah sometimes reflects a basic level of morality suitable for the time it was given, and does not necessarily reflect the highest moral ideals that the Torah itself aspires to. (4) Rabbi Cardozo has also articulated his “theology of the Halachic loophole”, i.e. the notion that the seemingly dubious legal tactics and Halachic legal fictions by which the rabbis change Halacha are not morally questionable maneuvers. On the contrary, they are deliberate measures that are built into the halachic system to allow the rabbis to deal with those morally problematic laws that ought to be changed on moral grounds. These legal fictions allow such alterations to be accomplished “by the book” in a manner that does not completely disregard accepted legal procedures. (5)

The Ideal Torah

Rabbi Cardozo views the Mei Hashiloah’s ideas in the context of the pre-Matan Torah performance of the Mitzvot, or the paradigm of before vs after the חטא העגל (sin of the Golden Calf) as the kind of Shemirat Hamitzvot that the Mei Hashiloah has in mind. In support of this view, Rabbi Cardozo referred to the Chovot Halevavot by Rabbi Bachya ibn Paquda, who maintains that in the times of the Avot fewer mitzvot were required than after Matan Torah (6) and to the Seforno, (7) who maintains that prior to the chet ha-egel, fewer mitzvot were required than after the chet ha-egel. (8)

Rabbi Cardozo also discussed the sugya of מצוות בטלות לעתיד לבוא (the commandments will be abolished in the eschatological era). Does this mean that the mitzvot will be completely annulled, or might it mean that – as is happening today – there will be substantial modifications in the performance of mitzvot in the messianic era? A related concept is the notion that in the messianic era, a new Torah will be revealed: תורה חדשה מאתי תצא. (A new Torah will emanate from Me). (9)

According to some interpretations, the commandments themselves won’t be abolished; rather the need for a heteronomous commandment will no longer be necessary, as these commandments will be performed out of an innate sense of morality or identification with the divine will. (10)

Returning to a Golden Age that Never Was

This notion of aspiring to a time of greater spiritual purity or moral progress, in which specific Halachot may be abolished or altered because of different prevailing spiritual conditions, is discussed at length in broad range of Rabbinic sources. (11)

It should be noted, however, that there are two ways of conceptualizing this change:
A) As a return to a previous era, before “Paradise Lost”. Whether the era we invoke is Adam and Chava before they were expelled from Gan Even; the Avot before שיעבוד מצרים (slavery in Egypt); at מתן תורה before חטא העגל (before the sin of the Golden Calf); before the destruction of the Temple; or before the codification of the Mishna or Talmud et cetera. The common motif is a return to a “pristine” reality which purportedly existed in the past. Even if this golden age never actually existed in the past, (12) nevertheless, this traditional trope of ירידת הדורות (Decline of the Generations), has inspired Jews throughout the ages with a paradoxical form of (imaginary) nostalgic anticipation, whereby Jews yearn for a time in the future when they will return to an (imaginary) past.

B) As a utopia which will only be realized in the future. According to this narrative, at some point in history, the process of spiritual decline and deterioration will be suddenly reversed. A radical shift will occur, and the process of spiritual descent will be replaced with a leap of progress and spiritual ascent. According to this approach, the reversal will be more abrupt or “apocalyptic” in nature and will be triggered by a divine or spiritual intervention from without which will radically alter the course of history and usher in the eschatological age. Alternatively, there is a competing narrative whereby we are progressing not only in terms of technological and scientific progress, but we are also experiencing an upswing in our moral sensibilities and expansion of spiritual consciousness. According to this approach, this change is already underway from within.

Similarly, it can be helpful to differentiate between two alternative views regarding the relationship of Halachah to time:
A) The earlier the age, the more advanced. Thus, the reason we have more Mitzvot is because of greater corruption. This seems to be the view held by Rabenu Bachya and the Seforno.

B) Society grows better over time. For example, the Rambam holds that the time of Matan Torah reflects a more primitive state of development, and that certain commandments, such as sacrifices, where given as a concession to human weakness.

Regardless of which narrative we adopt, the general idea expressed by Rabbi Cardozo is that the Mei Hashiloah may have been aspiring to a spiritually advanced state when we won’t need all the mitzvot. This idea warrants further discussion.

(1) See Mishna Kiddushin 4:14, where the sages state that Avraham observed the commandments. Bereshit Rabba, Vilna ed., 79:6 states that Ya’akov kept Shabbat; Ibid., 92:4 states that Yosef kept Shabbat. For a discussion on the topic of whether the Avot were considered Jews or Noachides, see Talmudic Encyclopedia, s.v. “Avot (ha-uma)”, 1:36–37. For several studies on this topic, see the following online shiurim and essays on this topic: this one, and this one and here.

(2) Concerning this read and the seven part article series here.

(3) See Nathan Lopes Cardozo, Jewish Law as Rebellion (Jerusalem: Urim Publications, 2019), especially chapters 2 and 3. (An online version of chapter 2 is accessible here. An online version of chapter 3 is accessible here.)

(4) Rabbi Cardozo discusses this at great length in his book Jewish Law as Rebellion (Jerusalem: Urim Publications, 2019), chapter 27 entitled, “On the Law of the Mamzer: Between Fairness and Holiness in Halacha: Possible Solutions and Rabbinical Courage (The Theology of the Halachic Loophole and the Meaning of Torah From Heaven)”, pp. 263-299. See also here, and here.

(5) See Jewish Law as Rebellion, 288-299.

(6) See source sheet #4.

(7) Seforno discusses his general approach in considerable detail in the introduction to his commentary to the Torah and in numerous comments, see, Seforno on Shemot 24:18; Vayikra 11:2; 26:11; Bamidbar 3:7, 15:3-4; 28:6; Devarim 16:21. See source sheet #5.

(8) Rabbi Cardozo discusses the ideas of Rabbi Bachya ibn Paquda and Seforno in in his book Jewish Law as Rebellion (Jerusalem: Urim Publications, 2019), chapter 18 entitled, “Why the Kashrut Laws Were Given So Late”, pp. 201-218.

Note: that in the Seforno’s commentary on Vayikra 11:2 he states that in the future לעתיד לבא we will return to our state before חטא העגל.

(9) Based on Yeshayahu 51:4. See Vayikra Rabba, Vilna ed. 13:3. See also this midrash, and the following text, and this one.

(10) See the sources compiled in this source sheet.

(11) For a comprehensive discussion and list of sources, see Abraham Joshua Heschel, ‘Torah min Hashamayim Ba-aspaklaria shel Hadorot’ (Theology of Ancient Judaism), Vol. 3 (Jerusalem: JTS, 1995), 54-81 (Hebrew).

(12) I don’t know, for example, whether during the Second Temple Period, Jews were really on a higher spiritual level than after the destruction.

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