Rav Hershel Schachter, the International Bet Din for Agunot, and the Politics of Rabbinic Authority

Rav Hershel Schachter, the International Bet Din for Agunot, and the Politics of Rabbinic Authority

Rav Hershel Schachter  (henceforth RHS) recently published a somewhat controversial letter, co-signed by several other rabbinic luminaries, regarding an international beit din (henceforth IBD) that has been attempting to resolve cases of agunot. The letter attacked the bet dins rulings quite strongly. In the first paragraph, RHS made it quite clear that he regarded the writings of the IBD as mistaken from beginning to end.It is clear that the IBDs rulings have fallen far short of RHShalakhic standards, though RHS provides no actual halakhic argumentation. This, however, is not what has made the letter controversial.

The letter has been controversial due to the nature of paragraphs following the first one. These paragraphs make it clear that regardless of the halakhic problems with the IBDs rulings, RHS sees a more fundamental problem with their project. Resolving cases of agunot involves highly sensitive socio-halakhic issues, and as such RHS says that they must be dealt with only by the greatest of authorities. Thus not only is the IBD ruling poorly, theyre not even qualified to rule at all.

This approach has caused many to term RHSletter political,which has itself caused pushback from people who insist that RHS is above petty power-plays. However, I would argue that politicalis in fact the correct term for the article, but that this should not be understood as a petty power-play[1]. Rather, it is likely an attempt to take what RHS sees as the best route, perhaps the only route, to resolving issues of agunot.

The first step necessary to understanding this is to realize that politicsessentially refers to issues of power and authority in a society. The most common manifestation of this is governance, but it has others. The second step is to understand the deep importance of politics to halakhah and the Jewish tradition. We will demonstrate this by examining two mishnayot from masekhet Rosh HaShanah.

The mishnayot at the end of the second perek of Rosh HaShanah discuss the sighting of the new moon and the establishing of the calendar, a matter of critical importance.

It once happened that two [witnesses] came and testified: We saw it in the morning [of the twenty-ninth] in the east, and in the evening [of the thirtieth] in the west. Said Rabbi Yohanan ben Nuri: [Its impossible for them to have seen the new moon in the morning, since the new moon is only visible in the west at evening, thus] they are false witnesses. However, when they came to Yavneh, Rabban Gamliel [who knew through astronomical calculations that the new moon should have been visible on the evening of the thirtieth] accepted their testimony. On another occasion two witnesses came and testified: We saw it in its expected time [on the night preceding the thirtieth] but on the night of its intercalation [the thirty-first] it was not seen, and Rabban Gamliel accepted their testimony. Said Rabbi Dosa ben Harkinas: They are false witnesses. How can they testify that a woman has given birth when on the next day her belly is still [swollen appearing to be] between her teeth? Rabbi Yehoshua said to him: I approve of your words. Rabban Gamliel sent him [Rabbi Yehoshua] a message: I decree upon you that you come to me with your staff and money on the day which according to you will be Yom Kippur. (Rosh HaShanah 2:8-9)

These mishnayot feature disagreements on matters of halakhah but no halakhic argumentation. They depict rabbis, who undoubtedly thought their opinions were halakhically correct while their oppositionswere not, making authoritative statements without explanation. This culminates in Rabban Gamliels command to Rabbi Yehoshua to come before him on the day that R. Yehoshua considered to be Yom Kippur, in violation of the sanctity of the day. The mishnayot then present two attempts to explain to R. Yehoshua why he should be ok with listening to Rabban Gamliel.

Rabbi Akivah went [to Rabbi Yehoshua] and found him in great distress [that he was ordered to violate the day that was Yom Kippur according to his calculation], he said to him, I can bring you proof that whatever Rabban Gamliel has done is valid for it says: The following are God’s appointed holy days that you will designate in their appointed times(Leviticus 23:4), whether they are designated in their proper time, or not at their proper time, I have no holy days save these.

Akivah presents a religious argument. God has stated that the dates of the holidays are not a matter of objective fact but of the decision of the Jews, and so R. Yehoshua is not violating any objective sanctity when going along with the official decision. While this is a good argument, R. Yehoshua appears to be unmoved, indicating that this does not get to the heart of his issue.

He [Rabbi Yehoshua] came to Rabbi Dosa ben Harkinas who said to him: If we question the ruling of the Bet Din of Rabban Gamliel we must question the ruling of every Bet Din from the times of Moshe up to the present day as it says: And Moshe ascended with Aharon Nadav and Avihu, and the seventy elders of Israel(Exodus 24:9). Why weren’t the names of the elders specified? To show that every group of three [sages], that form a Bet Din, is considered as the Bet Din of Moshe and Aharon [and that if one came to contest a verdict of a Bet Din saying, is this Bet Din authoritative as the Bet Din of Moshe and Aharon? We must say, that they are as prominent as those whose names were not mentioned.] He [Rabbi Yehoshua] took his staff and his money and went to Yavneh to Rabban Gamliel on the day of Yom Kippur according to his calculation. Rabban Gamliel rose and kissed him on his head and said to him: Come in peace my master and my disciple, my master in wisdom and my disciple because you have accepted my words.

Dosa Ben Harkinas presents a political argument. There are certain religious, halakhic, issues that are essentially political issues. The calendar is chief among these[2]. The dates of the holidays are a significant element in the unity and identity of the nation, and as such their establishment must be done by an authority of such political power so as to be unchallenged throughout the nation, as Moshe and aharon were unchallenged. This political arguments rings true in R. Yehoshuas ears and he submits to Rabban Gamliel.

RHS letter is strikingly reminiscent of these mishnayot. Though it is clear that he disagrees with the halakhic rulings of the IBD, he is more concerned for the political problems of the issue of agunot. If a woman is considered by some people to still be married and by some to have been freed, then some people will consider her able to remarry and some will not, and some will consider any children from a remarriage to be mamzerim and some will not. RHS therefore argues that no one but an unquestionable, across-the-board accepted author should be deciding issues of agunot. That way there will never be any question about these womens status. Just as Rabban Gamliel stated that R. Yehoshua had to submit to his authority regarding the calendar, RHS stated that the IBD has to submit to a greater halakhic authority regarding agunot (Notably, RHS at no point in the letter suggests that he himself is qualified to be the central authority on resolving cases of agunot).

All of that said, the fact that its so easy to draw analogy between a case from two thousand years ago to modern politics is telling. There are significant differences between todays society and that described in the Mishnah, and these differences might indicate that a different approach is necessary.

First off, people dont take to authority the same way. Autonomy and independence are hallmarks of our era. This doesnt mean that people wont accept authority, but they are much more reticent to accept it without justification. If RHSletter included his halakhic argumentation for his rejection of the IBD’s rulings, or even just his reasoning for his statement that only a universal authority can rule on agunot, people would have been a lot more likely to accept the letter.

Second, we havent had a central rabbinic authority for most of the last two millennia. We have had great rabbinic figures, but as time goes on they have been increasingly fewer and farther between. The argument that the resolution of agunot issues ought to be left to a central authority presupposes the existence of, or at least the potential for, a central authority that could ultimately prove to be untenable.

Finally, the importance of agunot issues cuts both ways. It can be a reason to be stringent, to make sure that everyone accepts every resolution. But that could lead to agunot being held hostage to potentially non-required stringencies. The need for universal acceptance requires either universal authority of a single standard or just universal acceptance of many standards. Which will ultimately be the proper direction is not for me to say.

UPDATE: Important and insightful points in the comments.

[1] This is not to say that no one has impugned RHSmotives in a more explicit manner. People have done so, and for these people I can provide no excuse or justification.

[2] See I Kings 12:26-33, and Abarbanel on verses 32-33.

Advertisements

Parashat Tetsaveh 5774 – The Tension Between Keva and Kavanah In The Mishkan

תָּמִיד לִפְנֵי יְ-הוָה לְדֹרֹתֵיכֶם

The parshiyot of the Mishkan are peppered with examples of repeated words and phrases. Some of there because lots of parts of the Mishkan are similar, so the instructions are repeated. For example, “According to all that I show thee” (Shemot 25:9, 40; 27:8), or “round about” (Ibid 25:11, 23, 34, 35; 27:17; 28:32, 33, 34; 29:16, 20; 30:3; 37:2, 10, 11, 12, 26; 38:16, 20, 31; 39:23, 25, 26; 40:8, 33). However, there are other words or phrases that are repeated not out of functional necessity, but because they are key concepts that help us hone in on the purpose and nature of the Mishkan. In Parashat Tetsaveh there are three such phrases that stand out in particular, that of “תמיד”, “לדורותיכם”, and “לפני י-הוה ”. The phrase “לדורותיכם” shows up only five times in context of the instructions for and building of the Mishkan (Shemot 29:42; 30:8, 10, 31; 31:13), but the majority of the times it shows up in the Torah, outside of these parshiyot, it is in the context of the Mishkan and its rituals. “תמיד” shows up eight times in context of building of and instructions for the Mishkan (Ibid. 25:30; 27:20; 28:29; 28:38; 29:28, 42; 30:8), but of the eighteen times it shows up in the Torah as a whole, only once (Devarim 11:12) is it not in regards to the Mishkan and the rituals related to it[1]. The phrase “לפני י-הוה” is certainly the most commonly found of the phrases, showing up a grand total of 147 times in the Torah, of which 18 are in the parshiyot of the Mishkan in Sefer Shemot (Ibid. ), and over a hundred of which deal with Mishkan (or the Bet HaMikdash) and its rituals. These ideas are very strong themes of the Mishkan, and their repetition is meant to highlight that. The question that leads to, however, is what are these themes, and what do they mean? One might suggest that perhaps the two more dominant themes, תמיד and לפני י-הוה, are a manifestation of what Heschel called the dichotomy of Keva (קבע) and Kavanah (כוונה), Fixed Practice and Personal Intention, respectively.

Things that are Keva are fixed. They do not change. This means things like the rules of Halakhah, like the words of Tefillah. These things are established. This has a lot of advantages. The idea of Keva creates unity. When everyone is doing or saying the same thing, that creates a community. A minyan can only pray together because they’re all saying the same thing. Keva also creates consistency. When you can change what you do on a daily basis, often you do, and your actions become subject to human whim. Often, they fall away and are forgotten altogether. Thus Keva also ensures continuity. But it also has downsides. Keva tends to quash individuality and spontaneity, it leaves no room for real religious emotion. All the members of a minyan should be saying the same words, but if they’re all thinking the same things then they aren’t really davening[2]. When things are repeated day after day they can become bland and meaningless. If the entirety of a mitzvah is the physical process, then it hasn’t changed or affected the person doing it the way it ought to have. This is where Kavanah comes in.

Kavanah means personal intention. Kavanah is the soul of Halakhah, the true spirit of Tefillah. It is the meaning and emotion with which a person can imbue actions and words. Kavanah allows for a personal element. It allows for the individual to express their self. It creates a sense of freshness and renewal. It is the honest and meaningful religious experience. But it, too, has downsides. When all that matters is personal intention, the result is a sort of religious anarchy, with everyone doing their own thing. When Kavanah is the decisive factor, then you don’t practice or pray on the days when you don’t have Kavanah, which tends to leads to less and less prayer and practice. Taken to an extreme, the ideal of Kavanah totally rejects taking any form of action, which is certainly not a tenable position within Judaism. Neither one can be rejected out of hand; the goal is a balance, a sense of polarity.

For something to be Tamid (תמיד) is for it be consistent, or in other words, established. All of the actions in the Mishkan that are described as Tamid are things that are done according to a regular fixed cycle. And what could be more of a religious experience than something that is Lifnei Hashem (לפני י-הוה)? Thus, based on the dichotomy of Tamid and Lifnei Hashem, we can see this tension of Keva and Kavanah even in the Mishkan. The problem with this, however, is that Lifnei Hashem does not necessarily denote a religious experience.

The phrase “Lifnei Hashem” is often applied to the same actions or rituals as the term “Tamid.” This could means that the two ideas exist in tension within the same act, but it could also imply that Lifnei Hashem simply does not contradict Tamid, and that’s how they can both be applied to the same act. This would mean that while Tamid is still Keva, Lifnei Hashem cannot be Kavanah.

Taking a step back, this seems almost obvious. The Torah does not often communicate the content of religious experiences. This makes sense as the Torah, generally speaking, is a manifestation of Keva. The Torah speaks to the entirety of the nation, creating principles and actions for the entire community of Israel. The Torah has a heavy emphasis on Law. This is where Rashi is coming from when he asks why the Torah doesn’t simply start with the first time Bnei Yisrael receive a mitzvah. When the Torah does communicate ideas related to the religious experience, it does so obliquely, through terse statements[3] or woven into narrative form[4]. It does not speak straight out or clearly about Kavanah. So what then is the meaning of Lifnei Hashem?

Lifnei Hashem is a quality of these actions performed in the Mishkan. This is because, in a sense, all actions performed in the Mishkan are Lifnei Hashem. The purpose of the Mishkan is that is is where Bnei Yisrael go to stand before and in relation to ‘א. That is where His presence dwells (Shemot 25:8, 29:45). However, this is not an inherent quality of the Mishkan. ‘א does not dwell there by necessity. Rather ‘א is present in the Mishkan in order to meet with us (Ibid. 25:22, 29:43). This is essentially arbitrary. ‘א is in the Mishkan because ‘א said so, and thus these Tamid actions are Lifnei Hashem, because ‘א said so.

What this means for our dichotomy of Tamid and Lifnei Hashem is that it is not a dichotomy at all. Both terms are descriptions of the action, one describing it’s physical performance and the other referring to its nature. Tamid refers to their form and Lifnei Hashem speaks about their meaning. While still seeming somewhat simple, this is actually a revolutionary idea. People tend to assume that any action done consistently has no religious value. That automated, instructed, actions can be religious is the modern mind at the very least unlikely. In a certain sense, Kavanah has won out over and completely dominated Kavanah. People understand the importance of the religious experience, to the point of dismissing and denigrating consistent actions. In the vessels and rituals of the Mishkan, ‘א tells us, quite radically, that a regularly performed ritual can by itself exist before ‘א.

“Since the destruction of the Beit HaMikdash, ‘א has no place in this world outside the 4 Amot of Halakha.”[5] The Halakha, the most archetypical example of Keva, is the replacement for the Mikdash in terms of the presence of ‘א. If you want to be Lifnei ‘א, you used to be able to just go to the Mikdash, or the Mishkan, and there you would stand before ‘א. Since the destruction of the Mikdash, ‘א is present in the acts and deeds of Halakha. Thus, even in the absence of Kavanah, Keva remains not just important, but as central to the life of Israel as the Mikdash once was. In the instructions for the Mishkan and it’s vessels, ‘א declares that it is through the specific actions that ‘א has lain before us that we relate to him. Despite the ultimate importance of personal intention and the religious experience, it is through Keva that we put ourselves in a relationship with ‘א.
[1] This example can also be read as being about the Mishkan, as it discusses the Land of Israel. Throughout the Torah, particularly in the second half of Sefer Vayikra, the terminology of the Mishkan is used in reference to Eretz Yisrael in order to create an equivalency there, an important underlying premise of Exile. For more on this, see the introductions to the Yale Anchor Bible Commentary: Leviticus, by Jacob Milgrom.

[2] This a general statement, but not an absolute one. Adding a personal prayer, said aloud, to the end of Shemoneh Esrei is not just allowed, it’s where Elohai Nitsor comes from.

[3] Classic examples include, “קְדֹשִׁים תִּהְיוּ כִּי קָדוֹשׁ אֲנִי יְ-הוָה אֱלֹהֵיכֶם”, “Ye shall be holy; for I the LORD your God am holy,” (Vayikra 19:2) and “וּבָחַרְתָּ בַּחַיִּים”, “therefore choose life,” (Devarim 30:19).

[4] This obviously includes everything before the first mitzvah is given, as per Rashi, but also such stories as the Blasphemer (Bamidbar 15), the Daughters of Tselophehad(Ibid. 27), and the Spies (Ibid. 13).

[5] Talmud Bavli Masekhet Berakhot 8a.

Parashat Yitro 5775 – When Judges are Priests: On the place of the Teachers in Relation to the Law

When Judges are Priests: On the place of the Teachers in relation to the Law

Leading up to the Revelation at Har Sinai, the people are commanded not to approach the mountain (Shemot 19:12-13). Bizarrely, right before the ten commandments, perhaps the most pivotal moment of  Sefer Shemot, Moshe is commanded to once again tell the people to stay away from the mountain (19:21-24). While superficially redundant, this second command differs from the first in that it refers not only to “the people” but also to “the priests that approach God” (19:22). This immediately presents a problem as the priests (כהנים) that the Torah normally speaks of, Aharon and his sons, have not been appointed yet, nor has the Mishkan, their place of work, been built yet, nor have the relevant laws even been given yet. Though there are multiple approaches within the traditional commentators when it comes to understanding this phrase, we will focus on the rather unique approach of R’ Hezekiah ben Manoah (more commonly known as the Hizkuni). In order to fully understanding why he chose the approach that he did, we will first look at some of the more common understandings, enabling us to appreciate the unique and powerful message of the Hizkuni’s approach.

The most common understanding of the “priests that approach God” is that they are the firstborns of the Israelite nation. This approach originates in the gemara (Bavli, Zevahim, 115b), and is taken by R’ Avraham Ibn Ezra, Rashi, Rashbam, and Rabbeinu Behaye, as well as being mentioned as a possibility in the Ohr HaHayyim and the more modern Daat Mikra commentary. This interpretation is based on a few factors. First is the dedication of the firstborns to ‘א in Shemot 13, as a consequence of ‘א saving them from the death of the firstborns in Egypt. Perhaps more crucial though is the replacement of the firstborns with the Leviim in Bamidbar 3 (mentioned again in Bamidbar 8). The Leviim are dedicated to the work of ‘א’s Sanctuary, the Mishkan (Bamidbar 18:6). This implies that, before they were replaced by the Leviim, the firstborns were in charge of the work of the mishkan. However, this approach suffers from several problems. First is the understanding of the phrase “that approach God.” Ibn Ezra mentions two understandings of this phrase. The first is that this “approach” is their position during the Revelation at Sinai, that the firstborns will be standing closer to the mountain than the rest of the Israelites, though still beyond the border mentioned in Shemot 19:12-13. The problem with this is that the context of the phrase “that approach God” is the command for the priests to stay beyond the fence, implying that for some reason the firstborn would think they do not need to stay beyond the border. Thus the command has to be in response to something that happened in the past that would give the priests this impression. This is presumably what motivates Ibn Ezra’s second understanding, that the “approach to God” described in this verse is a reference to the priests bringing sacrifices on the altar that Moshe built after the war with Amalek. While this is certainly possible, and the altar was built just two chapters previous to our verse making it somewhat contextual, it suffers from not being explicit in the text. Without any explicit textual mention of sacrifices being brought on the altar, it is more likely that the altar was built as a memorial and as an act of gratitude to ‘א, in the manner of the Avot (cf. Bereishit 12:7-8, 13:18, 33:20, 35:7). However the larger issue with understanding the “priests” as the firstborn is that when the sanctified firstborn are replaced, it is not by the priests, but by the Leviim, so to say that they are priests here in Shemot 19 would be a little strange.

Though mentioned by fewer commentators, there is an approach that avoids this issue. Both Rabbeinu Behaye and the Ohr HaHayyim mention the possibility that the “priests that approach God” of Shemot 19 are the sons of Aharon, who will in the future be appointed as priests. This however suffers from the same lack of precedent as the previous interpretation. Simply put, before Aharon’s sons are explicitly appointed as priests in Sefer Vayikra, they have no reason to think they should stand closer to the mountain than anyone else, and so it is unlikely that they would have to be told not to do so.

This brings us to the comment of the Hizkuni. The Hizkuni actually presents two possibilities. His first suggestion makes use of the initial understanding, that the priests are the firstborns, but changes it in a way that avoids the problematic lack of precedent. Hizkuni says that it was the 70 Elders that were firstborns.[1] This has the advantage of the firstborns approach in that they are sanctified to ‘א, but it also has an explicit textual precedent. In Shemot 18, the chapter immediately prior to the one we’re dealing with, the Elders eat a meal with Yitro and Moshe “before ‘א” (18:12). While the exact meaning of this phrase is unclear, it would seem to indicate a degree of closeness or familiarity with ‘א that would require them to be specifically told that they need to stay back. However, this approach can be understood in one of two ways. The first is that the “Elders” is essentially a subcategory of the “Firstborns.” While this is possible it is also somewhat strange, and not only because it is unlikely that every single one of the Elders was also a firstborn. More importantly, in this understanding the seventy Elders are firstborns, but there were plenty of other firstborns who aren’t in this category. Thus the fact that the Elders are firstborns would be merely coincidental, and it is strange that the Hizkuni would mention it. More likely is the second reading, that the Elders and the Firstborns are two separate but identical categories, both of which contributed to them being called “priests.” Thus both the sanctification to ‘א and the eating before Him are significant. This too however suffers from a strangeness, namely that not only would all of the Elders be firstborns, but that there would only be 70 firstborns in a group with 600,000 men. This is likely what prompted Hizkuni to offer his second, more original, understanding.

Hizkuni’s second suggestion is that the “priests that approach God” of Shemot 19:22 are the Judges and Officers appointed in Shemot 18. While his assigning of the term “priests” to the judges is quite original, this understanding has a certain logic to it, as Hizkuni explains. As support for this approach, Hizkuni quotes Devarim 1:17, “for the judgment is God’s.” Thus their very nature as judges has a certain logic to it. Meanwhile, Sefer Devarim also conflates the priests with the teachers of the Law (31:11, 33:10), a job specifically referenced in context of the appointment of the Judges in Shemot 18 (vss.16, 20). So while the priest would be the teachers once they get into the land, Hizkuni sees the teachers as the priests before the giving of the Torah. Their special positions as teachers and Judges makes them automatically closer to ‘א , not to mention it separates them from the rest of the people who they would have seen as students. This alone might have been reason enough for them to think that they should stand closer to the Revelation at Sinai, but, as Hizkuni points out, there is another reason for them to think that. The Revelation at Sinai is the revelation of the Law, and as those responsible for teaching and adjudicating that law, it is quite natural that they would have thought they should be closer. This would not have been a privilege, but a responsibility, to be as intimately involved in the giving of the law as possible. In this, however, they are rebuffed, as Moshe is specifically sent down to tell them that they are not separate, that the entire people is equal before the law. The only exception is Moshe (Aharon is included only in his capacity as Moshe’s spokesperson), who throughout Bnei Yisrael’s journey in the Wilderness receives the law via prophecy, while the judges in the desert and after Moshe’s death do not (I have written about this here). Thus, while the judges and teachers of the Law are close to ‘א, there is an important distance between them and the revelation of the Law.

The Hizkuni’s comment has an important lesson to teach us about the relationship between the people of Israel, rabbinic authority, and the Torah. We know from Devarim that, “Moses commanded us a law, an inheritance of the congregation of Yaakov” (33:4). The law was not given to its teachers, to the judges, but to the entirety of the people of Israel. Rabbinic authority is not inherent in the rabbis, but comes from their familiarity with the law; not from creating the law but from understanding it. Thus it is incumbent upon all of Israel, each and every one of us, to approach the Torah personally, not to depend upon rabbinic intermediaries. The Torah belongs to all of us, and we each have our own portion in it. It’s not enough to trust that someone knows the law, we have to understand and appreciate it ourselves.

[1] In this he combines Zevahim 115b with מכילתא בחדש פ״ד.