My Chareidi and Modern Orthodox Struggles Question 9, Part Two

Nathan Lopes Cardozo

vrijdag 3 mei 2019

Ten Questions for Rabbi Cardozo by Rav Ari Ze'ev Schwartz. For question 9, Part 1, see here: Thoughts to Ponder 638.

Question 9 (Part 2):
In the early part of your life, you spent 12 years studying at various ultra-Orthodox Chareidi yeshivot, beginning with Gateshead, and later on at Mirrer Yeshiva and other kollels in Yerushalayim. Eventually, you would leave that realm and enter the Modern Orthodox world, which fuses Torah with secular philosophy, psychology, academia, and non-Jewish religious texts.
Rav Shagar, who was a renowned Religious Zionist Rosh Yeshiva, encouraged his modern students to embrace what he called "the authentic Chareidi", the good qualities found in the ultra-Orthodox world – their passion and dedication to God.
Rav Cardozo, even though you eventually left the Chareidi world, would you agree with Rav Shagar's idea of the "authentic Chareidi", that there is something modern Jews can learn from the Chareidi world? Do you see any positive qualities and values that you learnt from your time spent in the Chareidi world?

Nathan Lopes Cardozo: As promised, I will add a few more observations concerning the Chareidi world and why, in spite of my admiration for its passion, commitment and strong attachment to spirituality – especially of the early Chassidic masters – I believe that it is out of tune with authentic Judaism and with the reality of what is happening in Israel and the larger Jewish world. It consequently misses many opportunities to make a significant contribution to the future of Judaism.

(As I mentioned before, this doesn't mean that I agree with Modern Orthodox's stand on all issues. It has its own problems, which are no less crucial and detrimental. Perhaps we can discuss this another time in greater length.)

It pains me greatly to write about this, especially because I know many Chareidim who are outstanding people with supreme integrity. Some are my closest friends. They are a constant inspiration and example to me. (The same is true about many of my Modern Orthodox and even secular friends.) Still, there are some very fundamental issues on which I cannot agree with them.

I don't think that the Chareidi world will ever agree with my positions and observations concerning its attitudes. And perhaps this is a good thing. I believe that its opposition to my suggestions needs to be heard and taken into account by all who fight for the future of Judaism. Not because Chareidi Judaism is right, but because opposition brings out certain elements that the other side may overlook, shows it its weak spots, and adds flavor to it, which it could not deliver on its own – aspects such as passion and deep commitment.

Still, it doesn't mean that it will ever become the genuine religious movement that Rav Shagar z"l dreamed of (and that I still dream of), unless it makes a 180-degree turn.

What's worse is the fact that the refusal to admit its failure to understand some basic dimensions of authentic Judaism will ultimately bring down the Israeli Chief Rabbinate, because the latter's current leadership has adopted the Chareidi point of view on many matters of weltanschauung and Halacha that are in total opposition to the nature of Judaism and to the very reason why the Chief Rabbinate was created – to serve the larger Jewish community. It wasn't meant to be the rabbinical authority for the Chareidi community, and by adopting the Chareidi point of view it has betrayed its own mission. In fact, the Chareidi world has never recognized the authority of the Chief Rabbinate and has strongly opposed it (sometimes for very good reasons). That it now gives more authenticity to this institution is not a good sign. It only means that the Chief Rabbinate has lost its way.

The Chief Rabbinate should adopt the views below which are also those of some of my colleagues, not only because these views are closer to authentic Judaism, but also because it is the only way to move Judaism forward in a modern Jewish State. Its refusal to do so has become a serious obstacle to religious growth in Israeli society. The fact that it publicly plays the Zionist card is, I believe, a kind of hypocrisy. In truth, it opposes the Religious Zionist weltanschauung. The only way to rectify this is by radically changing its mind, which the current Chief Rabbinate will never do. With all due respect I believe that it should step down; otherwise, it will be forced to do so and will be deeply humiliated. And if it does not realize this, it will continue to cause ongoing damage to Judaism, compromising it in the eyes of the majority of Israelis and alienating them from their Jewish religious roots. That there is greater interest in Judaism today among the Israeli population is not because of the Chief Rabbinate but in spite of it.

What the Chareidi leadership and the Israeli Chief Rabbinate seem to miss is that their halachic approach is built on a serious misunderstanding of how Halacha develops and has been constantly able to find ways to give halachic guidance in the new social reality especially within the Orthodox community.

Throughout many centuries, the Orthodox population made changes in their halachic observance due to new circumstances. This was very often not done or suggested by the rabbis, but rather initiated by the larger Orthodox community itself. The rabbis just followed suit. And they did it happily, because they realized that it was the lay people who had a much better insight in the conditions of the times than they did. Earlier halachic criteria could often no longer be met by the vast majority of Orthodox Jews, or they were counter-productive. Tosafot (12th-14th century), the main classical comprehensive commentary on the Talmud written by hundreds of sages, constantly justifies these changes by innovative halachic argumentation, but nearly always post facto. They had no option but to take that position; otherwise, Judaism would become more and more unpractical, irrelevant or unacceptable. (Only a few examples: Berachot 53b s.v.Viheytem, Betzah 30 a s.v.Tenan; Kiddushin 41a s.v.asur, Baba Kama 16a s.v.Tasim; Sanhedrin 59b, s.v.lekhol davar. See also the most remarkable responsum of Rabbi Yisrael Isserlein, 1390-1460, who justifies the saying of the evening prayers so early that it has no basis at all in halacha, Terumat HaDeshen, Responsum 1. There is a nearly infinite amount of literature on halachic responses to social change which stretches till our own days ! ) The fact that they were willing to do so showed their courage and simultaneously proved the enormous flexibility of Halacha, which allowed it to remain organic and alive and relevant.

In modern times, and especially today, we have seen enormous changes in halachic issues that were entirely unacceptable in earlier days. The famous example is the case of the Beit Yaakov movement – with its many seminaries for young Orthodox women – which was heavily attacked by the rabbinical establishment in the 19th and early 20th centuries but was eventually supported by the holy Chafetz Chaim, Rabbi Yisrael Meir HaKohen Kagan of Radin (1839-1933), one of the greatest halachic authorities of his day, who was in fact an arch-conservative. Sarah Shenirer (1883-1935), the initiator of this movement, realized that Jewish girls no longer got enough Jewish education at home and many started to leave the fold. It became clear that their general education far outdid their Jewish education, and that they were exposed to a new world of secularism. Sarah Shenirer was therefore inspired to establish these schools and seminaries. The Chafetz Chaim understood that he would not be able to stop this initiative. And so he not only allowed these seminaries to be established but encouraged them in every way possible. Today, this movement has been accepted by nearly all ultra-Orthodox communities, and nobody questions its validity or halachic justification. Still, this was not at all the accepted halachic position until that time. In fact, it was totally forbidden to teach women this high level and range of Torah. See, for example, the statement nashim da'atan kalot, (women minds are light hearted) (Shabbat 33b); also, Rambam's Hilchot Talmud Torah 1:13, where it states that "anyone who teaches his daughter Torah, it is as if he taught her tiflut [folly]." To put it differently, the Chafetz Chaim did not have the option of forbidding the Beit Yaakov movement. Had he done so, the Orthodox Jewish community would probably not have listened to him once Sarah Schenirer fought for it and showed its absolute necessity.

Closely related to this is the famous ruling by Rav Yosef Ber Soloveitchik (1903-1993) that women are allowed to (and even should) study Gemara. Here the case was even more symptomatic. Many women had already begun studying Gemara on their own, without anybody's permission. So it was not even an innovation or chidush by Rav Soloveitchik, but a capitulation to new circumstances (similar to Tosafot). What was new about it was that Rav Soloveitchik was prepared to support it after he realized that any opposition to it would backfire. Moreover, he himself saw the need for it. But by conventional Halacha, he had little to rely on as far as the accepted sources are concerned. But – and here lies the crux of the matter – he realized that his permission to do so was entirely within the spirit of Halacha, which incorporates many values outside "the letter of the law" and even in opposition to conventional Halacha.

What remains a puzzle is why Rav Soloveitchik didn't do something similar in the case of the Talmudic statement "tav lemeitav tan du mi-lemeitav armelu" (Kiddushin 7a; Yevamot 118b), which declares that a woman always prefers to be married, even with a totally unsuitable husband, than to be alone (since she would not prevail on her own.) Rav Soloveitchik declared this to be a "permanent ontological principle" that cannot be changed, even though today nearly no woman would agree to this statement in the Talmud. They would clearly argue that they can stand on their own feet and do not need a husband to provide for them, or to physically protect them. There is no doubt that the Talmud was speaking about women of the past and never meant this to be an ontological statement. If Rav Soloveitchik would have accepted this, he could have helped thousands of women. (See my book Jewish Law as Rebellion: A Plea for Religious Authenticity and Halachic Courage, Urim Publications, Jerusalem 2018, chapter 51.)

This brings us to our own times. All the strong halachic arguments for why women and men should not create or participate in partnership minyanim, and why women should not become rabbis, or even maharats (female leaders of Jewish law, spirituality, and Torah) in Orthodox communities, are probably all correct if one looks at the primary sources. But by now they are completely irrelevant. The reason is obvious. Modern Orthodox and sometimes even Chareidi women have gone forward without asking the rabbis. Because they are sufficiently well informed and know that there are other sources to back them up, or because the primary source deal with circumstance that no longer prevail, they won't accept them as binding. More and more women today are going to minyan on a daily basis. They are just as punctilious, if not more so, about tefillah b'zman (saying prayers on time) than their husbands are. Many learn Daf haYomi, a daily page of Talmud, before they go to work or start looking after their households. In several co-ed schools, the girls are obligated to participate in tefillah just as the boys are. They come to Friday night services, which was unheard of in my younger days in Europe. This has nothing to do with fixing Orthodoxy. It's simply the natural outcome of the times in which we live, when women everywhere have a great amount of impact on our society. They are able to become prime ministers, professors, and businesswomen with substantial economic power. So how can we want them to remain "secondary" members of the Jewish religious community? There is no halachic argument that can stop this. Whether it is a good development on all levels can be questioned, but there is no way to halt it. Any attempt to fight it will be a lost cause and an embarrassment.

What Halacha should do, and always has done in the past, is to accommodate the new circumstances, find halachic justifications for them, and move on.

It is a given that the issue of women's minyanim with Kaddish and Barchu will come up. When it does, and when Orthodox women will organize themselves to create these minyanim and find halachic sources for them (and they will!), halachic dispensations will be forthcoming until they will be accepted as much as the Beit Yaakov movement was many years ago.

Why make an issue out of all these changes when they only show a greater commitment of women towards Torah learning, prayer and Halachah? If this will bring the larger Jewish community closer to Judaism – and it no doubt will – we should be happy about it.

I would be thrilled if my daughters or granddaughters would put on tefillin as a personal commitment to Judaism. Or should I try to stop them and alienate them from Judaism that way ? Will I even have an option? We're not at all in a position to afford such luxuries.

To add a more personal component to all of this: I believe the world is constantly changing because this is the will of God. God doesn't want a static world. From the very beginning (as we notice already in the Creation chapter), we see an evolving world that is constantly on the move and trying to improve itself (with ups and downs). Matters need to change. That is a Divine given. So new conditions express God's will, and it follows that God wants the halacha to "change" accordingly.

Let me now refer to an earlier argument of mine, one for which I was heavily criticized as well as praised.

In fact, this case goes to the heart of the problem.

In Thoughts to Ponder 506 and 630, I argued that if there is even the slightest chance of reducing the possibility of people getting killed on the roads in Israel, we should allow the building of the Jerusalem-Tel Aviv railway and of the Ayalon Bridge on Shabbat so that we can complete these projects as quickly as possible. If there is even the smallest chance of danger to lives, the sooner the better. That is a halachic given.

But that was not the crux of my argument. My main point was that it is our duty to try to make sure not to lose the sanctity and importance of Shabbat while working on these projects. I therefore suggested that even at the actual location where the construction is taking place, we should create an atmosphere of Shabbat by making sure that there is a mobile synagogue where the workers can pray between shifts; that they have proper and tasteful Shabbat meals prepared according to the laws of Shabbat; that Kiddush is recited and Shabbat songs are sung, and even divrei Torah are shared. My opponents did not at all relate to this but just went into a rage against my suggestion that this is all a matter of pikuach nefesh (the preservation of human life). It was highly typical that they didn't at all relate to my main suggestion – a characteristic example of selective reading!

While I believe that this is a matter of sakanat nefashot (a danger to life), I would like to relate to this question on a level that is not the conventional understanding of sakanat nefashot as we know it from the classical sources. I do this for the sake of those who would claim that all this work can be done throughout the weeknights and there's no need to work on Shabbat. Whether this is true is questionable, for all sorts of technical reasons that are beyond the scope of this essay. (Much depends on which experts you're asking.)

So let's assume that it is not a matter of sakanat nefashot in the conventional sense of the word. Still, I would argue that it is permitted to do this work on Shabbat as long as we keep the spirit of Shabbat alive at the location, through a synagogue service and other various religious activities, as mentioned above.

There are several reasons for this. The State of Israel is incapable of running its course and being a modern Jewish State if it is constantly forced to hold back when it clashes with Halacha. It needs to move forward, succeed economically, and ensure that its citizens live a prosperous life in comfort and with at least some luxuries that the Western world is blessed with. Denying them this will lead to major protests, civil disobedience, and possibly a major clash between the religious and non-religious population, which could ultimately result in civil war. In a country that is constantly losing its daughters and sons in numerous wars – which in itself is a major price to pay – this could lead to a massive yerida to other countries and undermine Israel's security. The cases of the railway and the Ayalon Bridge are just very minor symptoms of a much larger problem: how to ensure that the State can properly develop, as all states need to do. Sure, one must limit work on Shabbat when it's not vital to the very existence of the State, and rules must be established to decide which types of work are crucial and require working on Shabbat, and which ones are not. And that can only be done by broad-minded halachic experts who work closely with governmental and other agencies. But that certain types of work will be necessary to do on Shabbat cannot be denied.

Furthermore, even the religious, including the Chareidi, world cannot sustain itself without certain laws of Shabbat being violated so that the State can move forward. Even when we ask non-Jews, mainly Arabs – which I am opposed to as long as there is no equal arrangement where Jews do work for the Muslim population on their rest day (The "Shabbes goy"/the "Friday yid") – it will always be necessary to have Jews present and actually do some work in order to make it happen. Besides electric companies, there are factories that will have to operate 24/7; otherwise, it will be impossible to sustain them or even be able to provide the services or items that they offer.

I believe that on the basis of the insights in Dor Revi'i (a classic commentary on Tractate Chulin), written by (Chareidi) Gaon Rabbi Moshe Shmuel Glasner (1856-1924), one can argue that these cases are instances of sakanat nefashot, although not in the classical sense of the word. It's a type of sakanat nefashot that doesn't cause the actual death of a person but rather the undermining and death of the State as a healthy society (See Peticha 26a).

One might argue that we shouldn't see a robust growing economy as the ultimate goal, and that Shabbat shouldn't be sacrificed for that. Shabbat, after all, is basically a protest against excessive consumerism and the need to constantly increase one's possessions as a way to happiness, which it's not. (See Erich Fromm's To Have or to Be, Harper & Row, 1976. But we cannot turn the clock back. Better to try to keep work on Shabbat under control instead of trying to abolish it entirely, which will never work.

While I believe that we should allow the building of the railway and the Ayalon Bridge, I oppose the opening of shops and malls on Shabbat (with some exceptions), because I don't believe that it's crucial to the well-being of the State. In fact, it may be detrimental. We need to convince people that consumerism can be destructive to their well-being. We must teach them that there are higher values in life than shopping. But this should be done by persuasion, not coercion. It must be presented in a way that will reveal to them the great message of Shabbat ,which is for their benefit and happiness; in other words, via national education.

And there's something else: Why not see the State of Israel as a ba'al(at) teshuva who is not yet ready to fully observe Shabbat and needs more time to work out all the issues? In that way, we reframe the transgression of Shabbat laws as part of a process instead of hard-core transgression. It will create a positive atmosphere, also between the religious and non-religious.

One can even give it a halachic status, called hora-at sha'ah (a temporary dispensation to violate Halacha in an emergency), which is a common concept in the Talmud. That would render the building of the railway and the Ayalon Bridge halachically justified so that Halacha, in principle, is not even violated. Sure, one can bring all sorts of halachic arguments that these cases do not fall under the strict definition of hora-at sha'ah. But that is missing the point. The facts on the ground make it abundantly clear that the work on these projects will continue, whether or not Halacha will permit it. So would it not be better to find a way to bring it into the framework of Halacha instead of having them clash?

More than that, we'll need to develop a halachic approach that deals with cases where the conventional halacha will be violated by a secular population and then try to rescue the halacha as much as possible. A kind of bedi'eved (after the fact) halacha, in case of emergency.

Once we do that, Israeli society will be deeply impressed with the halachic way of thinking and its application. It will not view the halacha as its adversary but as a welcome participant. This will create an entirely different atmosphere in Israeli society.

It is for these reasons that I believe that the Chareidi community, with its strong opposition to much of what I have stated above, does not understand the nature of Halacha and how it must be applied in modern Israeli society. At the same time, however, it's good to hear a strong, dissenting, and conventional voice. It keeps the more lenient approaches in check.

And I can forgive the Chareidim for this, since it's not they who officially deal with the State of Israel. But what is altogether unforgivable is that the Chief Rabbinate of Israel doesn't want to know of all this and thereby obstructs the positive development of Judaism and its status in the State of Israel. It is its very mission to solve these problems in ways that I indicated above. Not to do so is a dereliction of duty.

I'll stop here, though it means leaving out many matters that are just as crucial. I can think of the "slippery slope" argument against my suggestions, the question of whether to permit public transportation on Shabbat, as well as vital matters of morality, human conscience and Jewish significance where there are really no halachic sources to guide us.

We also need to discuss meta-halachic, ideological and philosophical issues, such as "You shall be holy" (Vayikra 19:2) and "You shall do what is upright and good in the eyes of God" (Devarim 6:18). But these are more or less ignored in the Chareidi world when dealing with halachic problems. The fact that we are called on to be "a light to the nations" makes our attitude toward non-Jews, the ultimate and crucial mitzva to make a kiddush Hashem wherever possible, etc., all closely bound together with the issues I brought up above.

Let me make one more deeply religious observation. Putting it in human terms, I often wonder how God perceives all this. Is it really His will that we clash with each other on these matters by quoting all sorts of halachic rulings and fighting about them, which ultimately undermines the whole purpose of Shabbat as being a day of tranquility and contemplation? God gave us these rules to increase our awareness of Him, but how often is He and His purpose for these laws taken into account when we fight each other over how to observe His Shabbat? Are we more afraid of the Shabbat laws than that we are in awe of Him?

No, this isn't coming from a Reform rabbi, but from a person who strongly believes in the uniqueness of Halacha, but also believes that all these laws are not just there to be observed but, above all, to transform us into greater and nobler Jews.

The denial of all these non-halachic issues in the Chareidi community, and the excessive emphasis on "pure Halacha" or, as Abraham Joshua Heschel called it, "Pan-Halacha," which we are now confronted with, have exacted a high price and brought insurmountable damage.

Still, I believe that the Chareidi community has much to offer in terms of commitment to and passion for Judaism. It could, however, do a much better job if it would adopt the observations above and become an exciting partner in the development of the State of Israel's Jewish religious character.

But we'll leave that for another time. and you, Rabbi Schwartz, need to remind me of that.

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