Categorized | Ask the Rabbi, Columnists

Ask the Rabbi

Posted on 09 December 2010 by admin

Dear Rabbi Fried,

I read with interest your recent “Ask the Rabbi” column [Nov. 25] responding to a questioner who referenced Rabbi Adam Raskin’s letter commenting on the subject of artificial insemination, which expressed a viewpoint different than that of yours. Dallas is fortunate to have many capable rabbis who can provide a variety of Jewish viewpoints on difficult issues with thoughtfulness, cogency and erudition.

I am writing to take issue with some language in your letter that I personally believe is loaded in a way designed to lend a degree of certitude to one viewpoint (in this case, the viewpoint described as Orthodox) that I don’t believe history or logic supports. At the end of his letter, you purport to convey the “timeless, unchanging and profound instructions” given by the Torah. Throughout my own personal journey to understand differing views within Judaism, I often heard the Orthodox viewpoint attempt to support its positions by invoking the notions of timelessness and constancy (“unchanging-ness”). Yet at the same time, I encountered many instances of just such changes within Orthodox thought, typically to accommodate exigencies of the times. Some of the more notable examples are the creation of the “hetter iska,” providing a work-around to the very clear prohibitions against lending money to fellow Jews while charging interest, and “hetter mechira,” the sale of Israeli farmland to a non-Jew in order to avoid the prohibition of working the land in Israel during the Shmittah year. In both cases, the practical problems facing Jews constrained to observe these prohibitions (against lending — and hence borrowing — with interest, or farming for an entire year) led to rabbinic loopholes to get around the problems. If these are not changes from prior law, and not only not timeless, but in fact brought about by the times themselves, I don’t know what is.

My issue is not with these particular laws and their revisions, but with the dubiousness of the claim by any stream of Judaism that their view is “timeless,” “unchanging,” “the same as it ever was” or any other such incantation that suggests that one viewpoint —Orthodoxy — is immune to the forces of change. In fact, I believe that change affects all religions, including Orthodox Judaism (I recently saw that the pope may be modifying the traditional Catholic view on condom use to avoid the spread of HIV, so it appears the phenomenon might be a universal one). My first-year contracts professor in law school referred to the Supreme Court’s invocation of stare decisis (the legal principle that later courts are beholden to prior decisions simply because they are indeed prior) as a form of mystification whereby courts could entrench society in the status quo by invoking the mantra that this is how it has always been done/decided. He pointed out how courts conveniently ignored stare decisis when they wanted the law to change, but invoked it when they did not.

There may be (and usually are) many reasons why invoking prior practice and decision is the proper, sensible and indeed the best resolution of even new, hard questions that arise. I am not advocating that change or turning traditional decisions upside-down is a good thing in all cases (or perhaps ever, though I doubt the latter). My issue is with the claim — which I simply believe cannot be substantiated, and frankly ought not to even be made in good faith by intellectually honest advocates — that a particular stream of Judaism’s laws and practices never changes, and that this resistance to change makes that viewpoint the “right” (or authentic) one.

I think it is essential that people who genuinely want to understand Jewish thought, law and history, examine critically any claim that one point of view is authoritative because it never changes and is the same today as it has been since Sinai. Once one gets past that (invalid) claim, I think the debate, whatever the subject, can then be examined on its merits. I also happen to believe that our religion will be stronger as a result, though I fully appreciate that many would argue exactly the contrary (i.e., once the religion admits change is possible, there may be no end to such change, with the religion becoming unrecognizable). The problem with the latter argument, however, it seems to me, is that the religion does change, and has changed. So, if the price of retaining tradition is to claim falsely that it is unchanging, I’d rather take my chances with a more forthright presentation of the process of halachah, tradition and change. I don’t believe that mystification, as my professor called it, is the right way to maintain those traditional practices.

Richard R.

Dear Richard,

Wow! That’s some question!

This is not, however, a new question, and has been raised by many for decades concerning myriad “changes” found in Jewish law which have been instituted in Talmudic times and after. You might rephrase the question this way: Maimonides, the classic Jewish scholar and philosopher, codified the 13 principles of core Jewish belief. One of those 13 is that the Torah is timeless and unchanging. Yet the same Maimonides, in his Code of Jewish Law (Sefer HaYad), codifies many of the type of “changes” you are referring to. Either he was not being intellectually honest, as you hint in your question, or we need to take a better look both at those changes and the meaning of Maimonides’ principle of a non-changing Torah.

Firstly, we need to distinguish between the actual concepts of the Torah (usually given in the form of a mitzvah), and the practical fulfillment of those concepts. Maimonides never claimed, and would never claim, that the practical fulfillment of the Torah is unchanging. Nothing would be further from the truth. The Talmud is filled with rabbinical enactments; some are stringencies and others are leniencies, in the way a particular mitzvah is observed. In that way the Torah is a living, breathing document.

What Maimonides’ precept means is that no mitzvah will ever change at its core. No situation or new moral standard will arise where we will say that the times dictate that, empirically, a mitzvah is no longer applicable. (This is unless, for technical reasons, it is impossible to fulfill a particular mitzvah: For example, the numerous laws of animal offerings cannot be fulfilled without the Temple in Jerusalem, which we simply don’t have. Laws that depend upon the land of Israel do not apply outside of Israel. For this reason, only 270 out of the 613 mitzvot actually apply to us in the Diaspora, lacking the technical ability to fulfill those other mitzvot. We await the time that we will, again, return to their fulfillment.)

As you pointed out, generational issues will engage the rabbis in the practical fulfillment of mitzvot. Take, for example, the famous ban of Rabbenu Gershom (10th century) forbidding men to marry more than one wife, despite the Torah’s allowance to marry many wives. Rabbenu Gershom never claimed to be “changing” the Torah’s allowance (in fact, he only issued his ban for 1,000 years; later authorities have upheld it). He, rather, established that the Jewish people are no longer on a level that marriage could succeed with multiple wives, and issued a rabbinic decree. The core concept has not changed and never will; the allowance will return if and when, such as in messianic times, they return to a higher level.

This applies to the hetter iska allowance of lending with usury by exercising an internal principle in the Torah where two investors can share in the profit of the investment. Again, the core prohibition of lending money with interest has not changed and is still fully on the books, unless this allowance is properly utilized. A dearth of sorely needed lending led the rabbis to rely upon this internal Torah concept of investment, affecting the application of the mitzvah, not its essence. The very sale itself shows a cognizance of the applicability of the mitzvah and its need to be reckoned with.

You will find this true with every example you may find in rabbinic literature. It applies to the sale of land in Israel as well, according to those authorities who accept that sale. They do not discount the Sabbatical year, only an application of it exercising an internal Torah principle that land owned by non-Jews is not affected by Shmittah.

This is in stark contrast to the application of the “change principle” used by Reform and, at times, Conservative Judaism. In those streams you will find a departure from what we have described. For example, the new norms of society could lead some strains to completely uproot or redefine a mitzvah to make it jive with those new morals. This is not a question of application, but of the core principle being compromised due to external principles.

Consequently, only in traditional or Orthodox Judaism can one discuss the “timeless nature of the Torah.” I see nothing “mystifying” about this: The very essence of Torah, which is, in a sense, “G-d’s Mind,” is as timeless as the G-d who revealed it. This is the meaning of Maimonides’ precept, in which he states clearly that this is an axiom of Judaism.

Rabbi Yerachmiel D. Fried, noted scholar and author of numerous works on Jewish law, philosophy and Talmud, is founder and dean of DATA, the Dallas Kollel. Questions can be sent to him at yfried@sbcglobal.net.

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