The Perfect Torah Versus the Evolving Torah, Essay 6 Halacha, Morality and the Will of God

Nathan Lopes Cardozo

vrijdag 1 mei 2020

Reflections on the Mei HaShiloah, by Yehudah BehrDov Zirkind, based on the observations by Nathan Lopes Cardozo.

In the previous essay we discussed the Mei Hashiloah’s radical suggestion that God’s will and Halacha are not always identical. He even formulates a dichotomy between following the general rules of Halacha as exemplified by the archetype of Yosef versus seeking direct illumination from God as exemplified by the archetype of Yehuda. The halachic personality consults the external compass of Halacha for guidance, whereas the religious personality will follow an internal compass which, in rare individuals of great stature and spiritual attainment, is synchronized with the divine will.

In this essay I would like to move away from a theoretical analysis of the Mei Hashiloah’s ideas and focus on some practical implications and applications of his ideas within the realm of practical Halacha. However, before I do so, I wish to state several caveats: 1) I’m not claiming that the following ideas necessarily represent a correct interpretation of the Mei Hashiloah’s ideas or that he would agree with any of the positions delineated below 2) I’m not claiming that my arguments are valid within the standard parameters of halachic discourse. In other words, I don’t expect these arguments to be advanced within a classic halachic teshuva (responsum) 3) The following suggestions are in no way intended as definitive statements or halachic rulings; rather, I am raising difficult questions that I believe need to be seriously considered. Finally, I embark on this discussion with utmost seriousness and yir’at shamayim (awe of Heaven).

The thoughts expressed below are the musings of someone who has grappled deeply with these issues. I’m fully aware that I’m pushing the envelope and that certain people might deem some of these ideas completely beyond the pale of Orthodox thought; nevertheless, I believe that the dilemma articulated here is one that is shared by many people. At the very least, I feel that this acute dilemma needs to be confronted and addressed in a courageous and honest way.

This dilemma that faces us is how to relate to Halacha as the will of God, especially when it clashes head-on with our inner religious convictions about what God wants of us. Stated simply, what ought we to do when the Halacha instructs us to violate our religious convictions and moral principles?

Our halachic complacency is shattered, and our religious equilibrium is shaken, when confronted with acute moral dilemmas stemming from conflicts between halacha and our innate sense of morality. (1) Some of the most prominent cases where a dissonance between Halacha and morality is felt are issues concerning the changing roles of women, the aguna problem, social equality, sexual and gender identity, and other issues. The profound dissonance between what our innate sense of morality tells us to do versus what Halacha tells us to do in these instances, leads many people to question whether these halachot truly reflect God’s immutable will for all time or whether these laws were historically conditioned and should therefore be revised.

It is important to realize the enormity of this issue. These conflicts should not merely be dismissed as an extraneous concern arising from the confrontation between two competing sets of values, i.e. internal religious values versus external secular values; rather, religious individuals perceive this conflict as an internal division formed at the very core of their religious commitment. The very same religious commitment that upholds the Halacha as the Word of God, also rejects these laws as inconsistent with the Will of God (based on the inner prophetic voice and internal conviction that these laws violate God’s justice and morality). This modern day Akeda trial plagues the religious conscience of many people who sincerely wish to heed God’s call, yet are pitted against two contradictory voices, each one demanding total allegiance in the name of God.

Indeed, the Jewish tradition itself is replete with examples of people who confronted God and argued with Him about the morality of His own edicts and laws. Thus, for example, Avraham Avinu argued against God’s decision to destroy Sodom with righteous indignation “Shall not the Judge of all the earth deal justly?” (2) Likewise, the Torah relates in Parashat Shemini, that on the day that Nadav and Avihu, the sons of Aaron the High Priest, died, the priests did not follow the proper procedures which Moshe had instructed them regarding the sin offering. This enraged Moshe; whereupon Aron responded, “Had I eaten sin offering today, would the Lord have approved? And when Moses heard this, he approved” (3) These verses indicate that the Torah reckons with human judgment as a way of discerning right from wrong and determining which actions would find favor in the eyes of God.

While it may run against the grain of conventional piety to question whether a specific Halacha reflects the ultimate will of God for all time, many searching religious Jews when confronted with halachot that oppose their most deeply held religious sensibilities about the morality of God cry out in righteous indignation “Is this something that the Lord would approve?” Would the implementation of this Halacha in today’s day and age truly find favor in the eyes of God?

Indeed, there are many rabbis and sincerely observant people who precisely because of their deeply religious feelings are perturbed about the perceived immorality of certain halachot. It cannot be denied, for example, that among the Orthodox Jews who are in favor of expanding the role of women within Judaism, there are those who advocate these changes not merely because they were contaminated by the bug of Western humanism and want to conform to the spirit of the age. On the contrary, they are motivated by a deep moral and religious conviction that promoting greater gender equality is not only a value in the eyes of man, but is also a value that, to the best of their understanding, would find more favor in the eyes of God than a more hierarchical and exclusionary approach. (4)

The Mei Hashiloah’s ideas are directly relevant to these issues. Although he does not specifically address the tension between Halacha and morality, nevertheless, his insights about the possible discrepancy between the depth of God’s will versus codified Halacha provides a useful paradigm for addressing the dilemma of Halacha, morality, and God’s justice. Unlike the Yosef archetype who can take comfort in obeying the Halacha under all circumstances because Halacha represents the ultimate religious commitment, the Yehuda archetype cannot afford the luxury of taking comfort in the certainties of Halacha, because obeying the rules by the book may turn out to be an infraction of God’s true will and a chilul hashem, a violation of His Holy Name.

As we have seen in the first essay, the Rambam and other Jewish thinkers maintain that certain laws in the Torah were historically conditioned and commanded by God as a compromise to human weakness. Is it then possible to take this a step farther and claim à la the Mei Hashiloah that these laws do not reflect the true depths of God’s will for today? Moreover, if someone does indeed possess this inner conviction is s/he allowed or even mandated to violate Halacha in these circumstances? This is not a typical Orthodox Halachic she’ilo (inquiry) that is usually addressed to a halachic authority; however, whether or not this question is deemed “kosher” by the conventional rabbinical establishment, it is still an urgent question that must be asked and addressed.

The Mei Hashiloah and the Ordination of Women Rabbi

A practical example of the application of the Mei Hashiloah’s approach relates to the ordination of female rabbis. Rabbi Hertzl Hefter, an Orthodox rabbi residing in Israel and a scholar of the Mei Heshiloah’s thought, explained that he decided to ordain women based on the teachings of the Mei Hashiloah and other thinkers. In his view, these thinkers assert the that voice of human conscience may itself be a form of divine revelation. (5) He proposes a new theology with far reaching Halachic implications: “Humans are created in God’s image, which means that human consciousness is the instrument of divine revelation. Since God is revealed through human consciousness, our refined moral convictions and religious sensibilities may be considered a form of divine revelation.” (6)

Rabbi Hefter applies his theology to the case of the ordination of women: “Semikha for women is an instance of where the tradition comes into conflict with deeply held convictions. These convictions, having been tested through the mettle of “clarification”, need to be brought in dialogue with the tradition and in this case determine the normative behavior.” (7)

Whether or not the Mei Hashiloah himself would have concurred with Rabbi Hefter’s decision to grant *women Semikha is not our main concern. The main point I which to demonstrate is how one Orthodox rabbi invokes the Mei Hashiloah’s theological paradigms in order to determine practical Halachic decisions.*

The Conscientious Objector to Halacha

Thus far we dealt with the application of the Mei Hashiloah’s insights on a communal level in terms of issuing halachic rulings which affect the community at large, such as the ordination of female rabbis. But how should these conflicts be handled on an individual level? I’d like to raise the question whether based on the Mei Hashiloah’s ideas, a person may or even must violate Halacha when it clashes with their own personal sense of what God wants from them. To put it differently, can there be any religious legitimacy to the notion of being a conscientious objector to the Halacha (in specific instances)? Can violating the Halacha for the sake of God be regarded as an act of religious piety?

The acute nature of this dilemma is the clash between one’s personal moral and religious convictions with prescribed Halacha. At this stage, a person cannot rely on the sole guidance of the Shulchan Aruch or a Halachic authority, because the Halacha itself is being challenged. This is an agonizing personal decision that someone has to make. During this moment of truth, one must stand alone in the presence of God without the aid of the Halacha and take a leap of faith. The famous Danish philosopher and theologian Søren Kierkegaard (1813-1855) describes the Akeda as “the teleological suspension of the ethical.” A conscientious objector to the Halacha for religious reasons might feel that at times they need to engage in the “theological suspension of the halachic.”

I’m not claiming that the notion of a conscientious objector to Halacha is halachically legitimate or acceptable by normative Orthodox standards. I’m merely asking a question that I believe needs to be raised.

It must be emphasized that the very consideration of the notion of a conscientious objector to the Halacha on moral and religious grounds requires extreme caution. One has to be extremely careful when trying to discern God’s will to make sure that s/he is free of all personal prejudices, biases, and agendas. One can easily be misled into mistaking one’s own personal bias or the contemporary moral zeitgeist and conflating it with the divine will. For example, in the challenging case of expanding the roles of women within Orthodoxy, one can easily conflate a secular feminist agenda with a religiously driven quest for equality. Extreme humility is required during these moments of truth when performing a moral reckoning before God. Indeed, the Mei Hashiloah writes that only after freeing oneself from all personal biases and nullifying their ego in the presence of God is a person capable of discerning God’s true will.

Above all, one must avoid the pitfall of trying to rationalize and justify their transgression of Halacha with the “pious” excuse of holy sinning. The yetser hara (Evil Inclination) can easily tempt one to sin and also provide a ready-made heter (legal dispensation) to do so under the guise of pious transgression.

As the case of Sabbateanism and other heretical and antinomian religious movements have taught us, the possibility of egregious sinners deluding themselves and trying to convince others that they are pious saints is an ever-present threat. Nevertheless, I believe that an honest engagement with the Mei Hashiloah’s ideas requires us to confront the dilemma of what we ought to do when we experience a conflict between the dictates of Halacha and the voice of our religiously informed moral conscience. I’m leaving this as an open question for my readers to contemplate without stating at this moment any definitive position on this serious issue.

(1) There is a vast literature devoted to this subject. It is beyond the scope of this essay to provide a comprehensive bibliography of relevant sources. R. Aharon Lichtenstein, “Does Tradition Recognize an Ethic Independent of Halakha?,” in Marvin Fox ed., Modern Jewish Ethics: Theory and Practice (Columbus: Ohio State University Press, 1975), 62-88; reprinted in R. Aharon Lichtenstein, Leaves of Faith: The World of Jewish Living (Jersey City: KTAV Publishing House, 2004), 33-56; Avi Sagi, Judaism: Between Religion and Morality (Tel Aviv: Hakibbutz Hameuchad, 1998) [in Hebrew]; Michael J. Harris, Divine Command Ethics: Jewish and Christian Perspectives (London: Routledge, 2015); Shira Weiss, Ethical Ambiguity in the Hebrew Bible: Philosophical Analysis of Scriptural Narrative (Cambridge: Cambridge University Press, 2018); Moshe Halbertal and Donniel Hartman, Judaism and the Challenges of Modern Life (London: Continuum, 2009); David Hartman and Charlie Buckholtz, The God Who Hates Lies: Confronting & Rethinking Jewish Tradition (Woodstock, VT: Jewish Lights Publishing, 2014); Donniel Hartman, Putting God Second: How to Save Religion from Itself (Boston: Beacon Press, 2016).

(2) Bereishit 18:25.

(3) Vayikra 10:19-20.

(4) Bereishit 18:25.

(5) Vayikra 10:19-20.

(6) It also cannot be denied that the internalization of liberal values may also shape one’s religious sensibilities. People can easily fall into the trap of conflating their moral conscience which is shaped by the moral zeitgeist with their perception of God’s ultimate will. Thus, there is no guarantee that one’s own moral compass is a reliable guide for discerning God’s will. However, my argument in this essay is based on the premise that moral considerations do play a role in Halacha and in interpreting God’s will.

(7) R. Yoel Bin Nun articulates a similar idea in his analysis of the writings of Rav Kook. See Yoel Bin-Nun, The Double Source of Human Inspiration and Authority in the Philosophy of Rav A.I.H. Kook (Tel Aviv: Hakibbutz Hameuchad, 2014), chap. 5.

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