Rabbi Ethan Tucker on Halakhah

This year Mechon Hadar is sending out weekly shiurim from Rabbi Ethan Tucker that contain his polished and thought out ideas on halakhah.  They are on the verge of becoming a book, so this is the point to raise attentive questions. Below I will look at his thoughts sent out for the weeks of va-yera and bereshit. (Go read the rest of them- here and here.) The former is his manifesto that halakhah should not be a submission to the immoral and the latter is about the phenomena about social shifts. There is an ad-hoc addenda added about women rabbis. I will interview him in the spring; this is just some first thoughts of mine on these two talks.

Rabbi Ethan Tucker is rosh yeshiva at the non-denominational Mechon Hadar. Ethan was ordained by the Chief Rabbinate of Israel and earned a doctorate in Talmud and Rabbinics from the JTSA. Tucker studied at Yeshivat Maaleh Gilboa and Harvard College (B.A.).

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When Rabbi Ethan Tucker puts out a paper or gives a talk his arguments are cogent and well thought out, they are extensively researched and explained thoroughly.  Then they are honed through delivery and editing. Because of this, his works when they will be published will likely have a cross-denominational effect.

Tucker’s basis for all halakhah is that it is ethical and rational. “We don’t have the luxury of bifurcation. This is critical to what the religious world needs in the 21st century. We have to think, holistically and in an integrated way and with a passion, that the Torah speaks to us.”

Tucker starts his halakhic reasoning with the principle of the Dor Revi’i, R. Moshe Shmuel Glasner, Hungary, 19th-20th c., a source used by Rabbis Eliezer Berkovitz and Yehudah Amital for similar purposes.  Glasner wrote that “One’s Torah ethic cannot be seen as abominable by Enlightened people” in order to be seen as a wise nation and to be holy. Otherwise we make Torah “foolish and disgusting.” Glasner writes:

If one violates anything agreed upon as abominable by enlightened people—even if it is not explicitly forbidden by the Torah—he is worse than one who violates the laws of the Torah.

I say that anything that is revolting to enlightened Gentiles is forbidden to us, not just because of hilul hashem, but because of the command to be holy. Anything the violates the norms of enlightened human beings cannot be permitted to us, a holy nation; can there be anything forbidden for them but permitted to us? The Torah says that the nations are supposed to say: “What a great nation, with such just laws and statutes!” But if they are on a higher level than we in their laws and norms, they will say about us: “What a foolish and disgusting nation!”…

Anyone resistant to this point denigrates the honor of the Torah and leads others to say that we are a stupid and disgusting people instead of a wise and understanding one.

Tucker’s approach at this point in his editing seems to avoid Lithuanian abstractions in favor of telos and inclusiveness. It has echoes of Eliezer Berkowitz, Kibbutz Hadati and even Hirsch’s rational explanation for the commandments in Horeb.

The essay posted on va-Yera is his anthem that halakhah is not submission to non-ethical irrational system. Rather, it must be an ideal that we can believe in. His overarching contention is that the Kierkegaardian/Soloveitchikian/Leibowitzian reading of the Akeidah and its halakhic corollary is completely alien to Biblical and rabbinic thinking and is a product of relatively late modernity. The more critical issue is that for many who advocate submission,  Tucker astutely senses that it maybe “just deep cynicism and alienation masquerading as piety?”

For Tucker, there is too much Akedah submission thinking and not enough of Abraham’s sense of justice.  In the language of Plato’s Euthyphro, an arbitrary divine command does not make an action good, nor is it good because of human good. But as both Maharal  and Jonathan Sacks answered- God will and his goodness are inseparable in our religious lives. Tucker is not against sacrifice to do mizvot, Mesirat Nefesh, a binding covenant, or communitarian views, just against having to go against our sense of rationality and morality.

Surprisingly, yet a defining debate, Tucker criticized Rabbi David Hartman’s tension of seeing both submission and creativity in halakhah. Hartman advocates the need to stress the moral and creative in halakhah over the submission, as well as to find resources in the tradition for an expansive moral vision and a critique of the submission. But for Tucker, Hartman sidelines the fundamental issue. God is not, and cannot, be asking for immoral acts.

For those on the right within Orthodoxy who see halakhah as singularly based on submission, then you reject Tucker and submit to the halakhic system.

But what do are the liberal Orthodox answers to this tension? Among the answers circulating, we find: (1)Saying that yes indeed, halakhah has  immoral elements and requires a submission but we will be compassionate or Neo-Hasidic in order to soften the pain of submission. (2) Saying that one is open or progressive and needs to change the submissive law to make a concession to fit current perspectives. (3)Thinking of the halakhah as a defensive line and the rabbi as the running back carrying a leniency able to outrun the submission. (4) Showing compassion for the submission but saying that one cannot do anything because of public policy.(5) Acting from personal revelation, hearing the voice of God about what to do. None of these alternatives has been articulated as well as Tucker’s approach.

In general, Jewish practice is molded by three different forces: textual authority and exegesis, community needs and custom,  and authority of rabbis.  In these two lectures, Tucker’s approach is textual. In contrast, Centrism has settled into following authority and Gedolim (a generation ago it was textual), and the older Conservative movement was always peoplehood and the needs of the masses facing modernity.

So where does his egalitarianism fit in?  For Tucker, it is not a concession outside of the halakhah. For Tucker, issues of gender in Jewish practice should be evaluated in terms of textual sources and the data of life.  He thinks that we should be attempting to balance various challenges and engage the issue rather than focusing on boundaries and heresies on a specific policy question.  The reason to have a mehitzah is not because it is Orthodox, but because it minimizes kalut rosh.  The reason to oppose gender equality in the davening is because one thinks such opposition will safeguard kevod hatzibbur and/or because one substantively believes that women’s exemption from time-bound commandments has nothing to do with sociology.  Tucker writes that he does not expect everyone to agree on these issues, but I would like us to speak a shared language of Torah around them.

As a historian of Jewish thought, in some respects I can see Tucker’s  rejection of submission as the debate between Rashi and Maimonides. Rashi held that mizvot are “a yoke on our necks” to be done in submission, while Maimonides and much of the philosophic tradition sees mizvot as achieving ends and perfecting the individual.  However in the language of William James, some people are once born and others twice born and need a redemptive sacrificial act. The deeper issue is that many, if not most, attracted to the halakhic system specifically choose this regiment to get control of their secular lives, this includes baalei teshuvah seek meaning and moral order through submitting to fixed rules, Neo-Hasidiut that sees the outside world as a vail of falseness, and adolescent programs that cultivate enthusiasm where one submits. Tucker addresses a specific audience.

And I conclude with questions from the other direction: What of multiple post-modern selves than engage in various practices and cultural discussions even if they contradict and are incommensurate? Or if I frame a topic in terms of halakhic telos, what about all my non-halakhic truths and commitments?  Where does Aristotle, Cicero, Don DeLillo, and Joan Didion fit in? If we worry about human dignity- but what of our diverse views of rights in the 21st century?

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Below are selections from Vayera on submission, then sections from Bereshit on category shifts with an introduction. We conclude with a quick answer from Rabbi Tucker on the question  of week: women rabbis.

Parashat VaYera (selections)

The Akeidah – the story of the binding of Isaac – is one of the most central narratives and texts in the Jewish tradition…  As Jews, we invoke this chilling story of Avraham’s near sacrifice of his son with pride on a daily basis, as we contrast our human worthlessness with our covenantal worthiness.

One option is to view the Akeidah as a model for moral surrender. Perhaps the central point of the Akeidah is precisely this: Do not trust your moral instincts when confronted with what you understand to be a divine command. Indeed, God’s command to Avraham was, at least in human terms, immoral. Nonetheless, Avraham was willing to heed this command and thereby passed the test of the Akeidah.

You should be able to feel the power and allure of this approach. It seems to exude humility, an ethic of service and duty, piety and deference to God and the Jewish tradition. The “knight of faith”, as philosopher Søren Kierkegaard labels Avraham, is willing to doubt any personal conviction, no matter how deeply cherished, in favor of an authority whose thinking may be beyond their grasp.

The ramifications for halakhic thinking should be clear as well. One taking this position, would never question authoritative sources based on potentially flawed personal opinions. Indeed, how else could one imagine learning anything from the written and oral Torah? To truly learn, all of our preconceptions must be up for negotiation and reevaluation. Without the willingness to reject my assumptions in favor of a more sophisticated picture, I cannot truly be said to be engaging in anything resembling learning.

But this approach is also fraught with difficulties. Is there really that big a difference between proclaiming fealty to God and Torah despite its immorality and jettisoning its strictures because they are immoral? Or, in other words, is the supposedly humble approach of the Akeidah outlined here just deep cynicism and alienation masquerading as piety? And how long before submissive obedience steeped in alienation gives way to revolutionary rebellion?

If we only obey God because of God’s authority – and not because of deep identification with the message God delivers – why would we expect our long-term relationship with God to be any different than our relationship with Par’oh and other tyrants, whose repressive regimes we escaped at the first opportunity? This reading of the Akeidah is not only incomplete, in my view; it is religiously dangerous and irresponsible.

Another approach is outlined by R. David Hartman, which attempts to reconcile the Avraham of the Akeidah with the Abraham of Bereishit 18 – one of them submits to a morally atrocious action, the other will not stand by and let God violate the laws of justice by destroying S’dom if there are ten innocent people to be found therein. Hartman presents these two Avrahams as a religious dialogue, two approaches to our relationship with God at loggerheads with each other. Why are we choosing the Avraham of chapter 22 over chapter 18? Couldn’t we just as easily mute the voice of the Akeidah’s Avraham and amplify the one arguing with God about the fate of S’dom?

Hartman’s God longs for us to engage the divine command from where we sit as human beings, with ethical instincts of our own, and thus does not abusively demand that we self-negate in order to serve. Hartman emphasizes God’s partnership with humanity and sees engagement with conflicts between the divine will and human ethics as a joint endeavor spanning heaven and earth. The corollary approach to halakhah is thus a quest for human creativity to help God match the divine law to the moral needs and instincts of human beings.

Hartman was not primarily a halakhist himself, so the details here are few. But the thrust of the matter is that God wants human beings, when they find aspects of halakhah to be morally troubling, to use the language of the tradition to rearticulate its norms in a way that resolves the conflict. And this holds out hope that people will embrace this halakhah as willing servants of God rather than chafe at its sometimes apparently callous and inhuman demands.

But this approach only sidelines the problem, it does not eliminate it: Hartman’s Bereishit 22 still denies human ethics a place at the heart of the religious conversation. We can attempt to drown out that chapter with the louder voice of Bereishit 18. But to the extent that the Akeidah is not shouted down by other louder paradigms, the still small voice of Avraham at Moriah continues to beckon us to serve God in spite of our ethical selves. Once it is possible to say that God is entitled to turn us against our own ethical instincts because God knows better, how can we force God to limit this ethical override to a relatively small number of experiences? Aren’t we left with a God who is still abusive and unethical, just only some of the time?

To move forward to a solution that fits all the criteria laid out above, we need make only one simple assertion: Avraham would not have understood the command to sacrifice his son as immoral, because in the world in which he lived, child sacrifice was not immoral. Indeed, narrative (Shoftim 11:30-40, II Melakhim 3:26-27), prophetic (Mikhah 6:6-8), and even some legal (Shemot 22:28-29) passages in the Bible confirm this cultural and religious background.

In Avraham’s time, child sacrifice was different in degree, but not in kind, from other forms of material devotion to God. “To be sure, offering up one’s child was an infinitely more painful gift to one’s God than sacrificing the firstborn of one’s cattle or the tithing of one’s crops.” But at root, Avraham would not have been ethically scandalized by God’s request. At the Akeidah, Avraham “was being subjected to the most painful test possible, but he was not being asked to violate the moral law as he understood it.”

Kierkegaard’s ethical monster is only created by retrospectively writing the later (Rabbinic) rejection of child sacrifice into Avraham’s consciousness, and then lauding him for ignoring later ethical qualms. This disrespects Avraham, divides him against himself, and distorts his relationship with God. Instead, we should see Avraham as a holistic, ethical being willing to challenge God, and to serve God even when it is exceedingly difficult to do so.

This reading not only recaptures the ethical Avraham, but it redeems the narrative of the Akeidah as a central religious text that can motivate us in ongoing ways. The Akeidah stands as an eternal reminder of the periodic need to make very painful sacrifices to serve God and to do what we know needs to be done. Avraham lived in a world in which child sacrifice was an integral part of the religious framework of life. No man longed to sacrifice his firstborn, and yet he knew that doing so was an act of appropriate gratitude to God, who enabled him to have children in the first place, and that showing such devotion to God might also bend the divine will to do great things in the world.

Why can’t we embrace this in our own world? I think there are a few factors. We no longer have animal sacrifice as part of our lived experience and most Jews, I think it is fair to say, have doubts as to its efficacy were we to renew it. We also have a strong notion of individual rights and serious limitations on what parents are allowed to do to their children without their full consent. Against this backdrop, what was once seen as an act of holy sacrifice would today be rightly seen as a deranged act of murder.

Avraham would never have agreed to murder his son, just as he was horrified that God was set to murder the innocent people of S’dom. But human sacrifice was not murder to him, even if it seems so to us.

And yet, we have many analogues today to the sacrifice Avraham was ready to perform, and these are not in conflict with our broader ethical commitments. Who would think that the parents who sent their children to certain death on the beaches of Normandy were ethically lapsed? When we believe a cause is just and is of ultimate significance, the willingness to die – and even to put others at risk – is rightly understood as heroic, not immoral. No one who believes in a culture of life can celebrate such choices, but these painful choices are in fact part of the moral fabric of being committed to ideas and agendas that are larger than oneself.

It is in this spirit that Jews have invoked the Akeidah over the centuries. Those who risked teaching Torah in public under the Romans, those who died in martyrdom in the Crusades, those who invested their life’s resources and lived in poverty to give their children a Jewish education, and those who sacrificed home, hearth, and life to create the State of Israel all continue the tradition of Avraham at the Akeidah.

The consequences for how we approach halakhah are clear. God would not command Avraham – and does not command us – to do things that we understand to be immoral.

When we experience a gap between our understanding of the divine will and the ethical imperative, something is in need of fixing.

It is possible that our ethical instincts are wrong and must be refined. Alternatively, we may have incorrectly understood the divine will or incorrectly applied it to our lives. A deep process of learning and searching may be required to narrow that gap to zero, but eliminated it must be.

The process of halakhah can never end in a place where God and morality are in conflict and the job of the learner – and certainly the posek – is to understand how apparent conflicts are incomplete understandings.

Observing mitzvot is at times exceedingly hard and requires great sacrifice and investment. But the figure of Avraham, properly understood, provides no support for the notion that God’s command is ever meant to supersede our ethics. Mitzvot come to tame the id, not to override the superego.

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Editor Introduction – Category Shifts in Jewish Law and Practice

Tucker is against changing the halakhah based on contemporary values in which the halakhah loses its integrity. He is also against rejecting the law for a new law or making concessions for the needs of the current generation.

Rather, Tucker points out that the halakhah itself undergoes category shifts based on changes in realia and lived experience. This is a very long essay, but I gave excerpts from three of his examples. (1)When the Mishnah says not to wash clothes  in order not to looks one’s best, the Bavli took that to mean ironing. (2) A second case that he gives is the extension of allowing heating for a sick person to anyone who lives in a cold climate.  (3) And the third case I cite is the treating a deaf-mute as  a fully cognizant member of the congregation due to the invention of sign language and braille. R. Osher Weiss, the contemporary posek, is Tucker’s model. In the full essay he also deals with (4) women reclining during Passover sedarim, and (5) How the original Mishnaic laws of oven – tanur-kirah- have been expanded to our contemporary insolated gas stoves.

In each case, they are not making concessions, overriding rabbinic thinking, or saying the rabbinic categories are incorrect. They are consistent with the law as is commitment to the law but they shift in meaning over time based on facts on the ground.

Tucker focuses solely on the legal aspects, but there is a medieval discussion of this phenomenon of category shift, innovation, and change by Rabbenu Nissim, Albo, Maharal and others. Finally, since the reification of halakhah was dependent on the formalist and essentialism of Von Savigny, Hans Kelsen, and other, with Tucker’s turn away from abstraction– what does this relate to in an age of Dworken and Scalia?

Category Shifts in Jewish Law and Practice

Halakhah is, and always has been, about applying an eternal divine will to the shifting facts of life. The details of halakhic discourse focus not on philosophy, nor even primarily on state of mind, but on specific actions taken in response to our experience in the world. The goal of Jewish law is to filter and direct our lived experience.

Some of the most interesting material in halakhah relates to the tensions that emerge between the halakhic language of an earlier generation and the emerging halakhic facts of a subsequent one. How do legal authorities and communities respond to the changing significance of certain objects and actions over time and place, such that the performance of a given act in one context may achieve a specific goal, while it may fail to do so—or even act contrary to that goal in another context? I think it is fair to say that much of the energy in contemporary halakhic discussions is around precisely these sorts of questions.

[M]y goal is to explore a series of examples that demonstrate these challenges and to explore one solution for dealing with them. I call this solution a “category shift”: a claim that a certain object or action, which was once properly classified under one rabbinic category has now shifted categories and the applied law should look different. Rather than arguing for a change in the law in light of new circumstances, this approach claims that the new facts lead to a different application of the old, inherited categories. While exploring these examples, we will consider differences between various types of category shifts and analyze why some are more controversial than others.

(1)An Early Precedent: Laundry and Mourning

In Tractate Ta’anit, the Talmud discusses various laws related to Tish’a B’Av.  Mishnah Ta’anit 4:7​discusses a penumbra of prohibitions that extend beyond the fast day itself. Specifically, it forbids doing laundry during the week in which Tish’a B’Av falls… But then a Babylonian ​baraita ​on Ta’anit 29b glosses the Mishnah’s rule with the following phrase: “Our ironing (or pressing) is like their laundering.”  This is a classic example of what I am referring to as a “category shift.”

What is the basis for this shift? The Talmud does not explicate it, but the reason seems fairly obvious and is already hinted at by Rashi above. The quality of laundering—and therefore the perceived social significance of laundering a garment and wearing laundered garments—was different in Palestine and Babylonia. In Palestine, the water sources ran faster and were full of more abrasive minerals. Both of these factors lead to a superior laundering process. In Babylonia, the waters of the Tigris and the Euphrates—and especially the irrigation canals that branched off of them—were slow moving and brackish. Clothes may have made the man in

Babylonia, but laundering certainly did not, and there was thus no reason to forbid this in the day s surrounding Tish’a B’Av. However, there was a Babylonian cultural equivalent of laundering—pressing or ironing clothing. This then becomes forbidden as an expression of the underlying value the Mishnah seems to be getting at here: In the week leading up to Tish’a B’Av, don’t clean and care for your clothes in a way that make them look new and fresh again.

Let’s note two significant things about the dynamics here, one of them stabilizing and the other destabilizing. The stabilizing dynamic is that Jews from Palestine and Babylonia would both recognize one another’s practices surrounding  The destabilizing dynamic, of course, inheres in the baraita’s claim that “laundering” does not mean “laundering”, or more precisely, that does not mean laundering.

 (2)“Everyone is Sick”—Asking Gentiles to Heat Jewish Homes on Shabbat

Such an obviously different reality is in play when Jews relocate to Northern Europe from the Middle East. Another useful and dramatic example of a category shift relates to using Gentiles to light fires for Jews on Shabbat. The following two basic principles are established without dispute in the Talmud: First, Gentiles may not do forbidden labor on Shabbat for Jews, and if they do so, Jews may not benefit from those labors. Second, on Beitzah 22b, Ulla bdR. Ilai rules that one may instruct a Gentile to do anything on Shabbat—including Biblically­ forbidden labors—for the benefit of a sick Jew.

The category of sick can be thought of in two different ways. On a surface level, it would seem to refer to a small subset of the population that is in a hopefully temporary state of illness. It is an abnormal state, recognized by the physically healthy majority as aberrant. This reading makes it virtually unfathomable to use this legal category as a basis for allowing the entire Jewish population to adopt a general practice of instructing Gentiles to light fires on Shabbat on account of the cold. On the other hand, one might think of sick as a legal category that is simply a proxy for a standard of discomfort, the point at which one’s entire body is in distress and one can no longer enjoy Shabbat. R. Ya’akov of Orleans​  read the category this way; the Talmud simply did not require Jews to be that uncomfortable on Shabbat when Gentiles could be of assistance. In fact, being “strict” and applying the Talmud’s leniencies only to more generally sick people would distort the underlying value of that leniency, which involves ensuring, where possible, a certain level of comfort on Shabbat.

Responsa Maharam of Rothenberg IV:92, R. Meir of Rothenberg, Germany, 13thc. You asked about the Gentile women who heat up the furnace on Shabbat. In France, in the home of my teacher, they were lenient [to allow Jews to benefit from the heat], and my teacher said that R. Ya’akov of Orleans even gave permission to instruct a Gentile to light the fire under the permission to tell a Gentile to perform melakhah for a sick person, since we are all sick with respect to fire were we to sit in the freezing cold.

(3) Deaf­Mutes

Those who can neither speak nor hear are routinely exempted by Rabbinic sources from various obligations and banned from certain rituals.  This basic mode of thinking lays the groundwork for a potential category shift for deaf­mutes who learn sign language and receive a full education in schools designed to work around their handicaps. A category shift approach essentially says that such people, despite having a physical condition of being [deaf-mutes] inhabit the legal reality of the  [hearing] and follow the legal rules that are applied to the mentally competent. And so have held many later halakhic authorities with respect to contemporary deaf­mutes who can communicate through lip­reading sign language and writing. R. Markus Horovitz​, of 19th century Frankfurt, took this approach and thought that education in a school for deaf­mutes shifted the students’ legal category…

We find a poignant mixture of deep commitment to the category shift along with concern for stability and continuity in the writings of R. Osher Weiss ​(Israel, 20th­21st c.). In a teshuvah published online, he writes the following: His view is quoted in Responsa Shevet Sofer EH #21. If it were up to me, it would seem that all the earlier authorities spoke about their own time, when most of the deaf­mutes were indeed like the mentally incompetent. Only a few here and there succeeded in overcoming their handicap and to develop a full mental faculty. But in our own time, when a clear majority of deaf­mutes attain full mental ability and they function like anyone else with sign language and lip reading, their status should be that of fully mentally competent people. In the holy city of Jerusalem, we are privileged to have a kollel made entirely of deaf­mutes and they learn Talmudic sugyot in depth and with understanding. How far from reality to say that they have the status of mental incompetents!

But it seems that the essence of the halakhah here is that we should be strict in all directions. On the one hand, we should treat deaf­mutes as fully mentally capable and to obligate them in mitzvot. On the other hand, we should be strict in keeping with the halakhic tradition of past generations, given that this halakhah remains unclear and unresolved…

Editor- Female Clergy

Since this was the topic of discussion for many of my readers last week, this last section was added just this weekend.  Tucker’s ultimate statement is that the Rabbinic tradition was not talking about our women. Their women were functionally put in a set with slaves and children unable to make financial and social decisions, our women are law partners, head physicians in hospitals, and CEO’s.

What About Women Rabbi and Female Clergy?

Here we see in live and raw form many of the dynamics we have explored throughout this essay

On female clergy, I would say you can think of it two ways, one of which, for some people, is a bridge to the other.  I think the second is ultimately the way we need to go, even as the first model may be an important intermediary, transition step.

(1) Identify the role of rabbi a something that can be broken down into components, the most relevant of which never presented a gender problem. e. hora’ah, limmud, role modeling.  Sefer Hahinukh and other sources have already been marshaled to this cause.  Sure, edut, dayyanut, and various other public ritual functions might indeed be out of bounds, but the rabbinic role need not be constructed as including those.

(2) Say that it is inappropriate for anyone who cannot be a dayan to be a rabbi.  This was Lieberman’s claim, and I think it has a great deal of conceptual coherence.  But I would say, in keeping with my category shift analysis, that Hazal only disbarred from this role the sociological group of women  which refers to those with an XX chromosome who can be compared to slaves and children.  That group overlapped entirely with women in the classical, medieval and early modern worlds (arguably extending until 1974 in the US, when women could be denied a credit card without approval of a husband or father).

In the contemporary world (and more and more as we move forward), the halakhot that women shared in common with slaves  (will) no longer apply to contemporary women, who live in a different sociological category.  Following model 2 allows for a stricter standard of who qualifies as a rabbi, even as it takes gender out of the picture.  That is ultimately where I think we will go.

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