Kavod Habriot

Because the ability of kavod habriot to override a rabbinic decree - or at the very least compel a lenient reading of said decree - is an important part of Dr. Sperber's article, I thought I would bring in some background on the issue. I am basing myself off of "The Talmudic Argument" by Louis Jacobs, chapter 12 'Gadol Kavod Habriot: the law and regard for human dignity", pgs. 115-121, Cambridge University Press, 1984.

Brakhot, 19a-20b. 1. Rav Judah in the name of Rav: One who realizes he is wearing kilayim (Torah-forbidden mixture) must strip, even in the marketplace. B. Contradiction: According to a baraita, if a mourner follows an impure road, the accompanying party must continue to accompany him. Even kohanim must continue to follow him, despite the fact that this will cause them to violate the Biblical injunction against coming into contact with cemeteries (Leviticus 21:1. The reason for this is kavod habriot - human dignity. Presumably, in case A, since it would violate the person's human dignity to strip, human dignity should trump the Biblical injunction in that case as well. C. Resolution: The baraita is talking about beit hapras, the case of a path rabinically forbidden to kohanim, but allowed to them by the Torah. Thus, kavod habriot can trump rabbinic law, as it does in B, but can not trump Torah law, which is what's at stake in case A. D. A statement is brought from a baraita: "Great is kavod habriot for it pushes aside a negative precept of the Torah". E. This statement is explained as follows: The only negative precept that is pushed aside is that of "Do not turn aside" (Deutoronomy 17:11), which is the precept to not disobey the rabbis - ie, effectively, only negative rabbinic injunctions may be disobeyed on the grounds of human dignity. F. A Nazirite may contaminate himself to bury an unclaimed corpse in need of a burial, due to the human dignity of the deceased. A person may delay sacrificing the Paschal lamb or circumcising his son to bury the unclaimed corpse in need of a burial, for the same reason. All three instances (Nazirite contamination, delaying Paschal lamb, delaying circumcision) involve Torah commandments. G. The cases in F are different than case A: The cases in F allow one to refrain from doing a positive Torah commandment because of human dignity, but that does not mean one has permission to actively violate a negative Torah commandment for human dignity.

Dr. Jacobs sums up as follows: "An indirect offense, even if it is Biblical, and a Rabbinic offense, even if it is direct, may be set aside in order to safeguard human dignity." (119)

Aramaic version of daf available here: http://www.e-daf.com/index.asp

Thoughts on Orthodox Halacha, which will be called Halacha in the Note bc "Orthodox Halacha" gets annoying to write/read over and over

The US has a founding document - the Constitution - that was purposefully left amenable to change by its framers, through the possibility of a) amendments b) Supreme Court's ability to interpret document/uphold/strike down legislation c) vague phrasing of certain clauses. This is what makes the Constitution a living document. I accept upon myself the legal system set forth in this document, in order to be a part of American society. Thus, the Constitution is essentially an implied contract in which all members of American society agree to the laws, binding them to each other and to the Constitution. Anyone who breaks the law is in violation of this contract, and thus, expelled from society - i.e. sent to prison.

I am comfortable with this arrangement, because my voting rights allow me - however indirectly - to impact the terms of this contract, by voting for legislators who will propose or oppose certain laws, and presidents who will veto or pass certain bills, and appoint Supreme Court justices with certain jurisprudential theories.

Like Constitutional law, halacha is a living system, as well as a contract: The Sinai experience was essentially a contract between the Jewish people and God, in which they accepted His laws, and by doing so, bound themselves to each other as a civil society. Even if one were not to believe in the Sinai revelation however, one could view it as follows: Today, I, as a Jew, accept upon myself the halachik system, in order to be part of Jewish halachik society.

Once, halacha was a democracy, of sorts. This might sound odd, given that it was legislated by males, but the truth is, that often, a great rabbi will say, "X is the law, but our community does Y, and that is ok." Often, a rabbi will say that while the law should be X, he is ruling Y because of the specific needs of a certain community. As a matter of fact, most of Tosfot's philosophy was to look at the Talmud, look at how the Talmudic verdict differed from their own communities' practice, and then proceed to justify that practice. This is democracy, in the sense that the voice of the people not only was heard, but also shaped legal decision making and application of the law.

The greatest example of halacha as a democratic process is that of the tanur of achsenai, where the rabbinic majority's opinion is incorrect, but that is still the way the ruling goes, because it is halachik principle to follow the majority opinion - in it and of itself a democratic concept. There is also the much famed, "70 faces to the Torah' dictum, which allows for a plurality of opinion co-existing side by side.

Much of the recent tensions between halacha and society stem from the fact that, faced with a perceived threat from modernity and the need to clearly delineate its boundaries from other denominations, the rabbis stopped adopting halacha to society, as had been the practice for thousands of years, and instead started paskening strictly by the book, regardless of the needs of the community, even though this had (perhaps) never been done before. Now, instead of a plurality of equally viable options, there was an attempt to fulfill all of the opinions at once, thus homogenizing what had once been a beautifully diverse system.

The rabbis, in doing this, meant to preserve the halacha from destruction by means of modernity, assimilation, or the blurring of the lines between Orthodoxy and "less legitimate" denominations. They did not realize however, that in doing so, they were negating the democratic essence of halacha that has allowed it to function as an eitz chayim - a living tree - for all of these generations.

Much of the Orthodox community now is moving either towards the right or towards the left - both positions that eschew innovation - one by heading towards a Sofer-istic "Hadash assure min haTorah" way of life, the other, by not taking halacha seriously enough to need innovation - if you don't like something, simply discard it.

The true innovations in halacha tend to come either from movements within the Orthodox community that are reclaiming a democratic approach to Jewish law based on current communal need, or involved in an in-depth scholarly approach to Judaics that enables knowledgeable halachik reform, or from people using their knowledge to come up with a halacik lifestyle they are comfortable with, that falls within the rubric of Orthodoxy, but is not affiliated with a specific movement/hashkafa/rabbi/synagogue, etc. - i.e., not with any specific part of the official rabbinic halachik hegemony.

Ultimately, I believe that halacha will always be an etz chayim, because it comes from God, but I also think that the rabbinic establishment might want to consider going back to the Tosafists they so admire and taking them as an example (as Michale Broyde has done with his investigation on hair-covering, as Daniel Sperber has done), if they wish to remain relevant and retain their authority within the lay community.

Thanks to Rabbi Katz to giving me a Rabbi Hayim Soliveitchik article a while back that planted the seeds of these thoughts in my head.

Dr. Sperber: Part 3

Going over the table of contents in Dr. Sperber's book "The way of Halacha", published in Hebrew by Reuven Mass press in Jerusalem, it occurs to me that summarizing the book would be very difficult. I will however, attempt to outline the major points of the book that related to women's Torah reading:

1. Kavod hatzibur is a subjective, sociological term that can change with time. Congregations may also choose to engage in actions that violate their kavod; the kavod is theirs to give away. Furthermore, the formulation of the Talmud is that while it is not appropriate for women to read, it is technically permissible. There is precedent for allowing women to read from the Torah in situations where kavod did not apply - in family minyans in houses, for example, which are not a shul congregation.
2. There is a precedent of allowing women to touch korbanot on Yom Kippur, in order to provide them with "nachat ruach", relief, even though it is not ideal for them to touch the korbanot. This is analagous to Torah reading - perhaps it is not ideal for women to read, but one could say that in order to grant them nachat ruach they should be allowed to do so.
3. The concepts of kavod habriot, (human dignity), darchey noam (that the Torah is pleasant, and halacha should reflect that) and darchey shalom (ways of peace) can all be used as legitimate halachik reasons to allow women to read from the Torah. The reason they are legitimate is that there is halachik precedent of using these three considerations as reasons to allow certain things and to rule leniently in certain cases.

Links. Also, New York's Legalization of Gay Marriage = One More Reason New York Is So Much Better Than New Jersey

For anyone interested, there will be an LGBTQ trip to Israel sponsored by Keshet. Registration ends July 20: http://keshetonline.org/news/index.php/2011/06/15/lgbtq-trip-to-israel-register-by-july-20/

Also, the winner for the LGBTQ Jewish Children's Book Contest was announced:
http://keshetonline.org/news/index.php/2011/06/28/jewish-lgbt-childrens-book-contest-winnner-announced/

http://www.hineinithefilm.org/

http://www.thejewishweek.com/news/new_york/jewish_gays_celebrate_freedom
http://www.eshelonline.org/gay-orthodox-jews-see-growing-acceptance-in-israel

http://www.eshelonline.org/why-orthodox-jews-should-not-oppose-legalizing-same-sex-marriage

http://www.huffingtonpost.com/lee-jefferson/bible-gay-marriage_b_886102.html

Men, Public Ritual, and Empowerment

According to an article on Slate.com*, attendance by men is significantly declining in more "liberal", egalitarian branches of Judaism, as women's empowerment increases. There is now major fear about the men's future in the world of Jewish religion. This article reminded me of a recent Atlantic article** about how the general future for men looks bleak compared to women: declining college attendance and performance in school, increased social anxiety. Interestingly, while both of these articles point to men's disempowerment as a side-effect of women's empowerment, this disempowerment peacefully coexists with - or perhaps even exacerbates - sexism and mysogyny. I think these articles also speak to a failure of modern feminism, which has been so focused on educating and creating new roles for women, that it has forgotten that forging an equal society also means educating men, and reshaping their traditional roles as well. Feminism is sorely lacking when it comes to this point, and has yet to create a compelling vision for the new man - the one who can express more stereotypically "feminine traits", does not have to be the breadwinner, and is not sexist. Yet without such men, the gains of feminism will always be limited, since they will still be pushing up against a patriarchal society. Feminism has become so focused on women's rights that it has forgotten that these rights are part of the foundation for a more equal society that must include and embrace men, as well.

Many of my male friends feel lost - they still feel the pressure to do these strong, stereotypically masculine things - to be the primary bread-winner, to be good at sports, to be debonaire around women -but they feel very disempowered to perform the tasks society asks of them as men. This frustration results in anti-feminist sentiment, and sometimes even in mysogyny - or at the very least, to refusal to listen to feminist enlightenment about the latent sexism that is inherent in most of society and in the lives of many individuals.

All of this makes me wonder if Orthodox Judaism has something right when it comes to having male-only participation in public prayer ritual: Given that men are in a society where they expect themselves to act powerful, they are more likely to participate in a ritual that makes them feel empowered - an egalitarian setting where being male does not confer special privileges does not appeal to them, because in the rest of their lives being a male does entail such privileges, and thus, the egalitarian setting seems disempowering by contrast.

Studies repeatedly show*** that women tend to be more religious than men. This could mean that men need that extra incentive to show up - and empowerment, the feeling of comeradery with fellow men in a way that is both exclusive and competetive - can give them that, similar to the way that sports inculcates a feeling of comradery through competition and exclusiveness (since sports have traditionally been all-male, and even today, there are usually all-male sports settings). Praying publicly is not exactly a competetive sport, but it is certainly a type of performance that can allow one to "prove oneself", and public prayer space can be an important stage on which men can perform their masculinity.

Traditionally, women have also had exclusively female domains in which to perform their female identity, but such spheres have been in private, and usually the tasks through which one proved herself were domestic tasks, such as weaving - as illustrated by the tale of Arachnid.

This is not to say that men's greater role in public prayer is necessarily the ideal situation; rather it is a realistic reaction to the current flaws of society. As society becomes more egalitarian, the needs for inequality in public prayer may decrease or disappear. Perhaps this is what is meant by kavod hatzibur: In a congregation where men feel the need for their exclusive role in public ritual in order to maintain their dignity as men, then women may not violate that need. In congregations where men feel no such need however, women may participate and read from the Torah.****

The idea of Judaism realistically responding to a flawed society is not new: Chazal say that the concept of "eshet yefat toar" the set of halachot allowing the taking of a war captive as a wife, while severely limiting the circumstances and ways in which one may do so (essentially setting up safeguards to protect the captured woman) was a way to regulate an inevitable - yet undesirable - occurrance. In "The Guide to The Perplexed", Rambam says that the instiution of sacrifices was a response to a context in which the Jews were surrounded by idolatry and had a need for physical, tangible worship of an un-corporeal, intangible God.

Of course, there is a danger in that argument: One can see all of halacha as responding to flawed society, as being a legal system meant to improve the world and engage in tikun olam. One can then argue that since A has been fixed today, halachas about A no longer apply (example: pork, trichonosis). As a matter of fact, this is the general danger in looking for "taamey hamitzvot", logical reasons behind the mitzvot. Chazal however, while claiming that eshet yefat toar was not ideal, despite their writing when Israel was no longer waging wars, did not uproot those laws. Rambam, while writing of sacrifices as un-ideal, still wrote and codified the laws of sacrifices in his halachik legal work, "Yad Hachazaka". Thus, suspecting a reason behind a certain set of laws does not allow one to change the law itself in response to that suspicion. The law remains untouched and unmutable, and is, if nothing else, a tradition that reminds us of the types of society faced by our ancestors, in its response to the needs of those societies.

The law must remain relevant to our society today, as well - and it does so. For while the law can not be changed based on outside logic, it may be changed using its own internal logic - that is, using a list of arguments that have previously been used in halachik discourse, as well as texts from the halachik cannon, one may come up with new rulings - just as, in American legal law, using previous case rulings, as well as logic used in various legal cases and rulings, and texts in the legal cannon, one may come up with new rulings. These rulings however, must be made from within the legal system, and not because of the imposition of an outside value. Thus, feminism can not be a reason for changing a halacha. However, if there is a halachik value (ie kavod habriot - human dignity) that has previously been used to overturn rabbinic law (and there is, in the Talmud) then one may -with caution - use that value to overturn a rabbinic law today - if there is no such precedent, one can not. Thus, women may read from the Torah because the prohibition against their doing so is a rabbinic law, and violates their kavod habriot, which trumps the prohibition. This is also a slippery slope however, because what if I decide that waiting between meat and milk violates my kavod habriot? That is why there must be an objective legal body making these decisions as opposed to individuals merely throwing away whatever they feel violates their dignity.

Nevertheless, the same book by Dr. Sperber that allows women to read from the Torah because of kavod habriot, does not enable them to be counted as part of a minyan, even though that is only a rabbinic halacha and should technically be trumped by kavod habriot as well. I don't know why this is, but would like to posit a theory: Dr. Sperber is careful to combine the kavod habriot argument with other halachik arguments, because -especially today, when a changing world makes changing law so tempting, and when our generation does not have the same authority as previous generations - changing halacha must be done with caution. Therefore, sometimes, especially when it comes to changing something so foundational to the daily life of the observant Jew, it is not enough to have one halachik argument in favor of the change, but one must have two arguments, or one extremely, extremely, strong argument - just as, in order for a law to be overturned by the Supreme Court, the Supreme Court will generally have a very, very good reason - or a combination of smaller reasons - in order to do so. The default position should be one of stasis: A law is innocent until proven otherwise. In the case of public Torah reading, the Talmud says that essentially women may read, however they should not, because of kavod hatzbiur (according to Dr. Sperber's interpretation). In the case of minyan, there is no precedent for women counting for minyan - there is no argument about it, because there isn't even one dissenting opinion that says they may count.*****

The fact that for centuries rabbis did not go around merely saying "kavod habriot trumps this halacha" every time a halacha caused discomfort for their community is an implicit argument against using kavod habriot as the only grounds for uprooting a halacha, though this implicit tradition is counter-balanced by the tradition of saying "The halacha does X, but our community does Y and that's ok", or "The halacha is X, but that would be too hard for our community, so I will rule Y, even though it's not ideal"- which goes back to halacha's realistic response to an imperfect world. Today, rabbis do not engage in this tradition, perhaps because in a globalized world, rabbis are often ruling not for a smaller community of which they have in intimate knowledge, but for a wider community and individuals across the globe.

* http://www.slate.com/id/2297575/

** http://www.theatlantic.com/magazine/archive/2010/07/the-end-of-men/8135/

*** At least in the US - I have not read about other countries, specifically.

**** Dr. Daniel Sperber, in his book "Darcha shel Halakha", said congregations, while having the right to kavod hatzibur, may give up on that right, the same way that a parent may give up on their right to certain aspects of kibud av vaem and allow their child to do things that technically violated the parent's right to kibud.

***** There is however, a passage in the Talmud stating that if there are only nine men for minyan, a woman may be the tenth man, as may a male minor holding a Torah scroll.