Rabbi Aryeh Klapper responds to Rabbi Ethan Tucker

Here is a fourth response to my interview with Rabbi Ethan Tucker. The first response was  by Dr. Malka Simkovich. The second response was by Yoav Sorek and the third response was by Rabbi Ysoscher Katz. The fourth response is by Rabbi Aryeh Klapper. I would have liked also responses from the left/progressive side or a non-polemical one from the Haredi right, but as of now it has not appeared.

Rabbi Aryeh Klapper is Dean of the Center for Modern Torah Leadership which organizes many programs including his long running Summer Beit Midrash Program. More of his articles and approaches to topics can be found at his website by topic from a pull down menu including the topics of : gender, halacha, and halakhah and public policy. Klapper’s approach is that of  treating the halakhah as a system of law and authority to which he applies his own talents of what the Talmud calls “up-rooter of mountains” (oker harim), the ability to interpret the text as clay in the hands of a potter.

Rabbi-Aryeh-Klapper

Rabbi Klapper was part of the panel discussion and public conversation for the release of R. Ethan Tucker and R. Micha’el Rosenberg’s Gender Equality and Prayer in Jewish Law along with R. Judith Hauptman and R. Joanna Samuels. (June 13, 2017)- Full recording here.  Rabbi Klapper’s talk on that panel will be published in a forthcoming issue of the JOFA Journal.

Klapper’s reservations about Tucker’s approach revolve around his rejection of legal originalism or the quest for a stable original intention or the original reason for the command.  Klapper avoids originalism in the context of halakhah because he thinks that it weakens commitment to observance, as well as the fact that mitzvot are multivalent over times and places and that  mitzvot may have many reasons, or embody a balance of values.

Klapper’s own approach is to treat a particulalaw as a chok, a law without a reason, when it seems to present an irreconcilable conflict with our values, thereby creating space for practical solutions in the application of the law. He is worried  about disparaging those who have lived honestly without achieving such resolution of values and halakhah. Based on prior practice of the halakhah, he refers to the new approaches as “identitarian” rather than egalitarian.

Even though, he opened by stating that he was going to work within Rabbi Tucker’s need to reduce submission and tension, by the end of the response Klapper advocates living with tension and a less than ideal relationship, the same way we tolerate faults in spouses and friends.

At the end of the aforementioned panel at Hadar, Klapper mentioned that a legal authority has great power of interpretation but needs authority going so far as to say that a rabbi could permit swine flesh by interpretation. When asked: how could it be permitted? He answered: pigs were genetically very different than the chazirim mentioned by the Torah.  One could find distinctions in  morphology, behavior, social significance, etc.  In context, Klapper’s point was that without authority, anything is possible. For him, this was parallel to Rabbi Tucker’s move regarding women. It is all in the hands of the authority of those who accept the law as it is practiced. His answer was seemingly tongue in cheek or for the rhetorical effect, yet it shows how he approaches the issue differently than Rabbi Tucker’s earnest application of rabbinic values.

Are Rabbis Klapper and Tucker speaking to two different communities, two ends of the same community, or one single community? Does it even matter?

As a side point, Rabbi Klapper asked rhetorically in this response as an obvious incorrect approach “about limiting minyanim perhaps only to the wealthy, or the graduates of exclusive colleges.” However, in this entire thread of discussion from all the respondents there does seem to be unacknowledged issues of class and education that are worthy of exploring.

Rabbi Aryeh Klapper- Response to Rabbi Tucker

Rabbi Tucker’s humility is evident in his recommending me as a respondent despite, or because of, the “sharp critiques and criticisms” he thanks me for in the book’s Introduction.  I fear that I will not disappoint; but I want to preface my comments with as clear a statement as I can of personal appreciation.  No matter how strongly or deeply we disagree, it is a great pleasure and privilege to know him.

My focus here is not on the book, rather it will be on Rabbi Tucker’s treatment in his interview of the interrelationship among halakhah, autonomously derived values, and rationales for mitzvot.

I argue in response that the costs of his method should outweigh its gains even for those who fully agree with his values and fervently welcome his halakhic outcomes. Those costs are shown in least two areas.  First, in order to salvage contemporary halakhah for his values, he binds halakhah throughout history to an ethic of social exclusion.  Second, he radically devalues the lived experience of past and present observant Jewish women and men.

I will try to conduct the discussion on Rabbi Tucker’s terms, that is to say without any of what he describes as “bludgeoning our values with the formal discipline of submission”, or “hiding behind the Torah’s authority in order to dodge the conflict”, or “overruling a position with the force of more precedents on my side or with my presumed ethical superiority”, or even “valorizing the conflict between morality and Halakhah”.

This does not mean that I agree with these harsh characterizations.  Indeed, it seems to me that Rabbi Tucker’s concept of “making our ears into hoppers” should encourage a fuller and fairer hearing for the undeniable thick strands of our tradition that he portrays so unsympathetically.

Halakhah and Legitimization 

Please note that each of the core terms above in my preface- autonomously derived values, rationales for mitzvot, and halakhah –  should be more tightly defined.  We should really provide separate treatments of

  1. values derived via practical reason, values derived by pure reason, and values derived by intuition;
  2. rationales for specific Torah commandments (=taamei hamitzvot), rationales for halakhic principles, and rationales for halakhic details;
  3. halakhah as a practical legitimization or delegitimator of human actions, and halakhah as a source of philosophic truth or inspiration etc.

However, for the purposes of this discussion, I insist only the distinction between halakhah in its role as the practical legitimator or delegitimator of human actions, and its other roles and purposes.  In this essay, the unqualified term “halakhah” will refer only to that first role of legitimation.  For example, it will not include the formal legal outcomes of discussions about the Laws of Meal Offerings, so long as those rulings have no practical contemporary legal effects.

Halakhah is a legal system that simultaneously claims Divine authority and at the same time recognizes its own fallibility. In other words, it acknowledges that the law is not always what it should be.  However, as within any legal system, an action’s legitimacy is determined by reference to the law as-it-is, not the law as-it-should-be.  This is so even if one agrees that the law should be changed by contemporary authorities.

Let us begin from halakhah’s explicit internal validation of autonomously derived values.

The Talmud derives that there are three sins that one must die rather than commit: avodah zarah, giluy arayot, and shefichat damim (Sanhedrin 74a). How does the Talmud derive these points?

Avodah zarah is derived from Deuteronomy 6:5: “You must love G-d with all your heart and nefesh” – even if He takes your nefesh/life.

Giluy arayot is derived from the explicit analogy between adulterous rape and blood shedding in Deut. 22:26.

What is the source for shefikhut damim/bloodshedding, so that it can become the basis for gilui arayot?  There is no Biblical source. There is only the argument, in Rava’s formulation: “What have you seen that makes your blood redder than his?!”.

Since the Torah’s analogy between gilui arayot and bloodshedding can be properly interpreted only on the basis of Rava’s reasoning, this passage not only validates autonomously derived values, it declares that Torah cannot be understood properly except in the context of such values.

Rava’s principle also appears to contradict Rabbi Akiva’s authoritative interpretation (Bava Metzia 62a) of Leviticus 25:36: “And your brother shall live with you” – your life precedes your brother’s.  The Talmud does not raise this issue, but all later halakhah is compelled to distinguish the cases.  But this distinction is beside the point; the fact that Rabbi Akiva is not used to delegitimate Rava demonstrates that autonomously derived values can even overcome a strong textual challenge, and compel a reconciliation between text and values.

Values

At the same time, how can we develop our values properly other than by studying Torah?  Do we not have the obligation to put Torah at the core in developing, refining, and sometimes reconstructing our moral intuition and reasoning?

Let us assume that we should resist the temptation to idealize this sometimes tempestuous dialectic between the study of Torah and values. Rather, we should instead try to harmonize halakhah and values.

The question is what we do in the interim, when we individually or collectively experience unresolved conflict between halakhah and our autonomously derived values.

The fully integrated religious life may be a noble aspiration, but there are many ways to go astray in the attempt. We should be very wary of personal claims to have achieved it (and also of daas Torah claims that others have achieved it).

We must be clear that genuine integration does not involve reducing halakhah to ethics.  There are legitimate grounds of autonomous value other than ethics, such as morality and holiness.  These can conflict with each other as well as with halakhah, therefore any halakhah may reflect a balance among those separate grounds of value.

Conflict between halakhah and values can happen either on the level of practical outcomes, or on the level of fundamental values.  In the former case, my values lead me to think that the halakhah as-it-is is wrong, even though it was instituted for proper purposes. The disparity is either because of a mistaken policy decision in the past or because circumstances have changed.  In the latter case, my values lead me to think that the values embodied by the halakhah were wrong from the start.

Rabbi Tucker argues that with regard to gender, he has no remaining conflicts on the second level – his values and those of the halakhah are in perfect accord.  Nor does he express interest in challenging the policy judgments of the past halakhic tradition.  He contends, however, that because of changed circumstances, the halakhah no longer properly expresses its own values, and therefore it must be adjusted.

But how can one reliably know what the halakhah’s values are, if its mandates no longer express them accurately?  Won’t you end up changing halakhah to match your preconceived notion of what its values should be?

Rabbi Tucker responds to this question by adopting an originalist approach to explaining mitzvot and halakhah.   He provides rationales that make sense in a speculative reconstruction of the spiritual, moral, and intellectual universe in which a specific obligation arose.

(He does not raise the thorny question of when a mitzvah is supposed to have arisen.  But it seems to me that an originalist approach must be very subject to the position one takes about the dating and composition of the Torah, and of the provenance of other elements of halakhah.)

Originalism 

I am not a fan of originalism in the context of halakhah, for four reasons.

My first ground is pragmatic.  In my experience, originalism tends to weaken rather than strengthen contemporary commitment to observance.

One lesson I learn from Maimonides’ efforts in the Guide of the Perplexed at providing originalist rationales is that they tend to make mitzvot feel obsolete.  Maimonides himself generally avoids using those rationales to frame specific halakhic rulings.  We should not model our tzitzit on the specific forms used by ancient idolatrous priests, even if we are convinced that tzitzit were initially intended by the Torah to visually mark us as “a kingdom of priests”.  Similarly, very few Jews feel religiously bound to eschew pork because pigs once carried trichinosis.

I have three other grounds for rejecting originalism in principle.

1) mitzvot may have different purposes in different times and places.

2) mitzvot may have many reasons, or embody a balance of values.  (For example: We wear tzitzit as did idolatrous priests, because we are a kingdom of priests, but we don’t wear shatnez, because – wait for it . . . that’s what idolatrous priests wore.)

3) mitzvot may accumulate meanings as a result of their practice over time.

I prefer to conceive of taamei hamitzvot in the following terms:

(1)   Each mitzvah or practice has a complex set of purposes

(2)   The specific forms of mitzvot often reflect a delicate balance among competing values (3)   Some purposes for some mitzvot will be relevant or intelligible only to some communities at certain points in history

Furthermore, when social change makes the generally accepted import of a mitzvah less intelligible, Halakhah and halakhic societies rarely react by changing the law.  Instead, our job is to infuse the sociologically antique meaning into the mitzvah.

Take shofar as an example. Many rationales have been offered over time for the mitzvah of shofar.  The two for which we have the best originalist evidence (i.e., clear parallels in Tanakh) are: (1)  To announce the coronation or at least arrival of a king  (2)  To raise an alarm.

I think it is clear that if the mitzvah were given today, with the same intent, we would use either a brass band or artillery to fulfill the former reason, as we do at the arrival of a president, and an air raid siren to fulfill the second reason.

Yet I presume that Rabbi Tucker agrees that one cannot fulfill the mitzvah today without an animal’s horn.  Why not?  The Torah says only “teruah”, and gives no explicit instructions about a specific instrument.  If one is not to resort to formalism, one must say that the ram’s horn has acquired a significance over time that is distinct from the originalist meaning.

Note also that if the mitzvah is intended to fulfill both originalist purposes, no contemporary practice could likely fulfill the obligation.  On a superficial level, this is because we do not use marching bands to raise alarms, or sirens to inaugurate presidents.  On a deeper level, this is because the president’s arrival does not arouse fear that we will soon be on trial for our lives.  Therefore, the two purposes are not compatible in contemporary semiotics, whereas they were once identical.

With this introduction, we can turn to the question of whether it remains true that only males can blow the ram’s horn in order for their fellows to fulfill the mitzvah of hearing it.  I think it is clear that the mode of analysis above creates a very strong predisposition against changing the law in this regard, even if the meaning of gender-distinction has changed in exactly the way that Rabbi Tucker postulates.  We would instead seek to carry out the mitzvah as before while preserving the historical significance of gender in our minds and souls, as we preserve the significance of animal horns.

This approach has the advantage of humility.  If we are wrong about the reason, we still preserve the formal practice, and sometimes our hearts are drawn after our actions.

Rabbi Tucker’s response must be that the cost is too great, because continuing the gender requirement for the shofar-blower offends his autonomously derived values in a way that using the horn of an animal does not.  So here, it is necessary to make our aspiration a reality, and move the halakhah to match our values.

I think we should be very conscious of three dangers in such efforts at integration of our values and the halakhah. Two of these are apparent and mirror images of each other.

(1) We might fall into self-fufillment and constantly see in Torah only a reflection of our own image.

(2) We might develop an akeidah complex, in which we think that the goals of serving G-d with all our heart and soul can be achieved only through submission to religious mandates that violate our moral reason and intuition.

Rabbi Tucker is aware of, but not cowed, by the first danger, and hyper-alert to the second. I think that Rabbi Tucker overreacts to the second risk.

My Opinion: chokifying and  respect for the past

I prefer two alternative approaches to his concern lest we overvalue submission.

First: one can preserve the conflict by assigning mitzvot to a category of laws with no humanly intelligible purpose (hukim), a “chokifying” of the mitzvah.  There is no reason to suspect that this will result in our preferring unintelligible mitzvot over the intelligible. This approach creates space for many less radical approaches to reconciling the halakhah that one practices with one’s values. (For more on his idea of chokifying, see here, here, and here).

Second: even if one holds that reconciliation is the ideal, that does not justify disparaging the profound religious experiences of those who live and have lived honestly without achieving such resolution.

Sacrifice and Conflict 

We should not go through life looking for ever-greater opportunities to offer our values up as a sacrifice to G-d, in order to ensure that our motives are purely submission to His service.  Rabbi Yisroel Salanter might have said: Each time we set out to sacrifice our own ruchniyus (spiritual needs or desires), we end up being sacrificing someone else’s gashmiyus (physical needs or desires).

But every serious observant Jew lives with some degree of conflict between their religion and their independent sense of right; we have all eaten from the Tree of Knowledge of Good and Evil.  G-d’s choice to express His Will in the form of law, and for that law to become a national-collective religious enterprise, means that there must be enormous value in obeying the system’s outputs even when one disagrees with them.

Another way to frame the issue is that the ideal Jew lives in a deep and joyous relationship with G-d and Torah.  Relationships build over a lifetime; joy does not require perfect agreement; and genuine relationships can require you to find meaning in things that fulfill your friend or spouse or parent’s values rather than your own, even when those choices are painful, and even though you surely do not seek them out.

It must be noted that this discourse is once again being conducted largely among men.  For those interested, a model of the discourse I think is needed can be found by reading my article on Tzeniut, found here, and then Miriam Gedwiser’s beautiful, powerful, and challenging response. The dedicated can go on to this longer article by Miriam Gedwiser.

3) A third danger, lying between the extremes of imposing self-values and submission to incorrect values, is that in the attempt to integrate values and halakhah, we may end up reading a hybrid morality into and then out of Torah that conforms neither to the text nor to our souls.  This risk inheres in all efforts at integration, but I think Rabbi Tucker’s method exacerbates it.

Rabbi Tucker’s method requires a contextual morality, and ironically ends up binding prior halakhah to a speculatively reconstructed premodern morality.  His readings of the Rebellious Son and the Akeidah leave room for the halakhic Jew to condone the execution of disobedient children (in cultures where parents are sort of like contemporary police), and perhaps even human sacrifice (in non-Jewish cultures which find human sacrifice meaningful).

More immediately, his halakhah prioritizes the dignity of ritual over the dignity of human beings.  He confirms that social inferiors should not be allowed to play prominent roles in public liturgy etc.; it is just that contemporary Orthodoxy has incorrectly identified women as a socially inferior class.  Perhaps only the wealthy, or the graduates of exclusive colleges, should count to Modern Orthodox minyanim today, albeit regardless of gender, because of kavod tzibbur.  This to me does not seem a moral improvement.

These difficulties seem endemic to the method.

Many of the issues raised here hark back to intense conversations Rabbi Tucker and I had twenty-five years ago at Harvard Hillel; some of them take me back even further, to conversations with my dear friend Rabbi Elisha Anscelovits when we were students at Yeshiva University.  I am glad that some elements of those conversations will now have a broader audience.

Other Gender Discussions with Rabbi Tucker

Readers may be interested in two efforts to share other elements of those conversations with Rabbi Tucker.

1) In a response to Rabbi Tucker’s article on Women and Tefillin several years ago, I took strong issue with his claim that women can be full citizens only in a halakhah that eliminates gender as a relevant category, and that past gender distinctions can only be understood in terms of women’s incomplete citizenship. I highlighted what seemed to me a failure to consider non-sexist rationales for specific halakhot:

“Failure to imagine the hava amina – to treat one’s own position as unproblematically peshitta (so obvious that it goes without saying) –  results in a vicious cycle: texts are read exclusively through the lens of ideology, and then cited as evidence for that same ideology”,

and a failure to respond religiously to the reality of gender differences:

“religion must take into account and ideally channel the differences between male and female experiences, rather than denying them”.

Raphael Magarik, (a student of both Rabbi Anscelovits and Rabbi Tucker at Yeshivat Maale Gilboa & Yeshivat Hadar, now a PhD Candidate in English, University of California, Berkeley)  critiqued my critique here, and I responded here.

2) My forthcoming review of Gender Equality and Prayer in Jewish Law (JOFA Journal) states that

The quality and humility of Rabbi Tucker and Rabbi Rosenberg’s work can serve as a model for private and public halakhic conversations about such issues.  But despite my deep personal appreciation of its authors, this book does not succeed in gaining practical halakhic legitimacy for gender-identical, or “identitarian,” prayer services.  

My central point is that the personal and communal authority to change halakhah to what it should be rests solely with those who accept the authority of halakhah as it is.

Nothing I have written here, or previously, is intended to deny the reality of the challenges Rabbi Tucker raises, or the value of his effort to create a systematic and authentically halakhic response.

We agree that a halakhic system, which speaks to only a minority of Jews, and commands the allegiance of even fewer, has failed, regardless of where one puts the blame.  We agree that the solution is not to abandon halakhah, but rather to seek to expand its constituency.  We agree that this requires thinking systematically about halakhah. These are no small things.

I look forward to his response, and to ongoing conversation, with gratitude and appreciation for the past, and in recognition of the ways in which my own thinking on these issues has been developed and deepened by engagement with Rabbi Tucker.

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