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.

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