The Challenge of Halakhic Innovation

Meorot
A Forum of Modern Orthodox Discourse

Benjamin Lau
Bio: Rabbi Dr. Benjamin Lau is director of the Center for Judaism and
Society and the founder of the Institute for Social Justice, both at Beit
Morasha of Jerusalem. He is Rabbi of the Ramban synagogue in
Jerusalem, and author of a multi-volume Hebrew series, Hakhimim,
which was recently published in English as The Sages.

Abstract: This article defines a vision of halakhah and the rabbinate that
identifies with modern life and works to advance religious life within
Israel and Western societies. It argues for a halakhah and a rabbinate
that is sensitive to Kelal Yisrael, Zionism and Israeli democracy, the
interests of women, the handicapped and that can speak to all Jews. It
wishes to return Torah its original domain—every aspect of human life.
The author rejects the superiority of halakhic stringency and advocates
the use of hiddush to confront the realities of modern life, seeing the
former as traditional halakhic methodology.

Meorot 8
Tishrei 5771
© 2010

A Publication of
Yeshivat Chovevei Torah
Rabbinical School
 The Challenge of Halakhic Innovation*
Benjamin Lau

“Torah Blends Well With the Land”: Modernity as a Value in the World of Torah
This article1 is written following an extended broken out among various streams of Religious
series of attacks against the segment of the Zionism, and most recently the modern stream
religious community and its rabbinic leadership has been classified as ―neo-reformers.‖ Not
that identifies with modernity and works to content with that terminology, the (right wing)
advance halakhic life within the Israeli and advocates have sought to follow in the path of
Western context. We are aware of numerous the Hatam Sofer and Rabbi Samson Raphael
halakhic issues in need of attention and Hirsch. They rend not only their garments but
clarification. They pertain to all areas of life, also the national-religious camp, dividing those
private and public alike, and relate to matters considered faithful to the Torah from those
such as marital and family law, conversion and regarded as ―neo-reformers.‖ The call to do so
rights under the Law of Return, the aroused a substantial public outcry, but it did
withholding of divorce by recalcitrant not produce any probing analysis of the true
husbands and the policies of Israeli courts in divide between those who issued the call and
that regard, kashrut seen from the perspective the modern public that seeks and demands
of the broader community, principles of social renewal of the Torah. It is not enough to
justice and their realization in Jewish society convene a conference of reconciliation and
and questions of morality. Yet despite the declare our common commitment to the
pressing nature of these issues, every request Shulhan arukh. Such steps can promote popular
for halakhic innovation has been met with a social policies that preserve collegiality and
solid wall of resistance by the official Israeli maintain an educational system in which
Rabbinate, which believes that acquiescence in children from both the Haredi-nationalist
any proposed changes would open the door to (―Hardal; an abbreviation for haredi-le’umi) and
Reform. The constant concern about any modern streams learn together, but more than
openness to change is smothering the halakhah that is needed. What we truly must do is to
and choking off any development; and the formulate for our students and children a
policy of ―the new is forbidden by the position that advances our views as sound
Torah‖** is gaining control over the entire ideals (le-khatehilah) rather than merely as some
expanse of our religious life. after-the-fact compromise and that does not
obscure our own worldview.
We have long since gotten used to regular
invalidation by the Haredi public, which regards In the world of Torah, Rabbi Aaron
Religious Zionism as a spiritual enemy. In Lichtenstein is considered the clearest
recent years, however, a spiritual struggle has spokesman for the group seeking to advance

* This article originally appeared in Hebrew in Akdamot 23, Elul 5769 (2009). The controversy and importance of the issues
which it discusses have only increased in Israel and the United States since its original publication. Translation from the
Hebrew by Joel Linsider.—ed.
1. I would like to thank my wife Noa and my son Yedidiah who read and commented on an earlier version of the article.
** This slogan is a play on words, coined by the Hatam Sofer in his counter-revolution against early reform. He transformed
the halakhic ruling ―[consumption of] the new [season’s grain before the designated time] is forbidden by the Torah‖ into a
slogan opposing all innovation—―the new is forbidden by the Torah.‖—translator’s note.

Meorot 8 Tishrei 5771 Lau 2

the policies of the modern religious community life of integrity and energetic action within the
(sometimes referred to as ―centrist religious world.3 Their yeshiva, Yeshivat Har
Orthodoxy‖): Etzion, and those aligned with it have begun a
powerful process within the national-religious
Centrist Orthodoxy finds itself increasingly community—a revolutionary way of studying
under attack. While the possibility of attack Bible, a teacher training college affiliated with
from both right and left is endemic to the yeshiva, and hundreds of alumni engaged
centrism by virtue of its dual exposure, the in productive work of all sorts throughout
nature and extent of criticism varies. At Israel.4
present, I believe, particularly insofar as the
Right is concerned, it is perceived by Like every movement, the one we are
attackers and defenders alike as being discussing has strains that are more
particularly intensive, broad in scope, conservative and others that are more
covering a wide range of thought and innovative. To the yeshiva’s left, there arose a
activity, and penetrating in depth. It more radical movement of religious revival,
consists … of a radical critique, questioning centered on Rabbi David Hartman’s study hall,
the fundamental legitimacy and validity of which sought more forcefully to take on
the basic Centrist position.2 rabbinic authority and halakhic decision
making. Its integration of the academy—that
is, the university—into the world of Torah
We must formulate for our students and generated much opposition, including the
children a position that advances our views as issuance of bans and excommunications. As a
sound ideals. member of Bet Morasha of Jerusalem, an
institution marking almost twenty years since
its founding, I can say that that battle is now
The school led by R. Lichtenstein was almost over. Rabbis with academic training are
imported in part from the United States, where no longer an oddity and many, unafraid of
it had been led by his father-in-law, Rav Joseph what the academy has accomplished, have
B. Soloveitchik, of blessed memory. It is a sought to acquire the research tools that will
Judaism that will not forgo the slightest detail deepen their study of Torah. We are
of the halakhah but is unwilling to confine witnessing the slow but steady development of
God’s world to the proverbial four ells of the a stream within Judaism that is open and
halakhah. The bounty granted by God to the serious, diverse yet marching in one
world through human wisdom is meant to direction—returning the Torah from its exile
enrich Torah and elevate the religious and restoring it to its proper place in the broad
personality to greater spiritual heights. expanse of life.
Humanism improved mankind and revealed
the light hidden in all God’s creatures. In this article, I will first sketch in general
Together with Rabbi Lichtenstein, Rabbi terms the image of the halakhic decisor in
Yehuda Amital, z”tl, led his students to a moral modern society and then briefly describe the
life far removed from ―irksome religiosity,‖ a influence of modern society on halakhic

2. By His Light: Character and Values in the Service of God, based on addresses by Aharon Lichtenstein, adapted by Reuven
Ziegler (Alon Shevut: Yeshivat Har Etzion, 2002), p. 220.
3. Some of Rabbi Amital’s remarks are collected in Ve-ha-arets natan li-venei adam (Alon Shevut, 2005).
4. In fact, the teachings of Rabbi A. I. H. Kook had the potential to inspire a process of this sort (see, for example,
Benjamin Ish-Shalom, Ha-rav Quq—bein ratsiyolaizm le-mistiqah [Rabbi Kook – Between rationalism and mysticism]
[Tel-Aviv, 1990], p. 292). For various historical reasons, however, it is not Rabbi Kook’s teachings that are the key
factors behind this process today.

Meorot 8 Tishrei 5771 Lau 3

decision making. It goes without saying that reviews about the symptoms that are troubling
these subjects cannot be fully treated in one you. Equipped with that information, you go
short article, and I will be able to touch only to the doctor and ask his opinion. If you
on some highlights. With God’s help, the time prepared yourself properly, he will have no
and place to expand the discussion will come more information than you do, but he will
along. know how to analyze the sources you bring
with you. He will sort though those sources
1. Transparency and Trustworthiness as for you, recommending some and rejecting
Conditions for Transmitting Torah others. The sage’s strength lies not in his
information but in his analysis.
Within the halakhic world, there is a well
known tendency to react with suspicion and
antagonism to previously unfamiliar Judaism is marching in one direction—
innovations and lenient rulings. Something
unaccepted in the past is not greeted
returning the Torah from exile and restoring it
enthusiastically in the present. For many to its proper place in the expanse of life.
centuries, great Torah scholars were concerned
that transmitting Torah to the masses would So, too, in the world of halakhah. Knowledge
bring about a diminution in its status and lead has moved into the public domain. Everyone
to an unraveling of the halakhah through faulty can know everything. Halakhic sages must
interpretations. Even in talmudic times, we recognize that change and become advisors
find that the amora Rav would rule in accord and navigators on a sea of uncertainties. The
with the more lenient position when studying Torah’s truth is revealed in all its
with his students, but take the more stringent expansiveness. The rabbi is expected to know
position when delivering a discourse before the and present the various aspects of each issue
masses. Those who were learned possessed and not to conceal those aspects that are
the keys to halakhic ruling and to the inconsistent with his own point of view. If a
determination of what was permitted and what rabbi is untrue to the sources and reaches his
was forbidden, and they ran society from that decision without taking account of conflicting
position of power.5 views, he will be seen to be untrustworthy.
Five hundred years ago, the introduction of And a lack of trust between a rabbi and his
printing revolutionized the way halakhic community of questioners will drive a wedge
decisors thought about the significance of between that community and the Torah
knowledge as distinct from understanding. overall. Stating the truth, of course, does not
Today, once again, the internet revolution is require the decisor to remain neutral; his role
fundamentally changing the rules of the game. requires him to reach a decision one way or the
Data bases appear before our eyes at an other. But the decision must be reached
unimaginable pace. We are in the midst of a through disclosure, not concealment, of the
process that cannot be yet be fully analyzed alternatives.
and assessed. A person seated at home before
his computer can access, by the click of a Let me offer one example to explain the
mouse, all the information he needs to resolve phenomenon. A major transformation in Bnei
his questions. Anyone suffering from a Akiva involved the separation of boys and
medical problem is familiar with the process. girls. The change was instituted by Rabbi
―A wise man’s question is half the answer‖— Samuel Katz, who issued, in 1978, a pamphlet
by asking the right question, you can entitled ―Qedoshim tihyu‖ (You shall be holy).
instantaneously obtain a range of articles and The pamphlet includes a responsum by Rabbi
5. On this, see my article ―Aseh oznekha ke-afarkeset: ahrayut, tsenzurah ve-limmud ha-torah be-idan ma’agrei ha-meida
[Responsibility, censorship and Torah study in the age of data bases], Akdamot 14 (2004), pp. 155-174.
Meorot 8 Tishrei 5771 Lau 4
Shlomo Aviner regarding membership in a wall of halakhah. If the smallest opening were
mixed youth group. In his full responsum, allowed for the view of those who ruled
Rabbi Aviner cites sources in support of his leniently, they feared, the entire wall would be
firm conclusion that co-ed activities are breached. Rabbi Kook’s response deals with
absolutely forbidden. Amnon Shapira, of Tirat the substantive issue of how halakhic rulings
Zvi, undertook a critical reading of Rabbi are received by the community. Against the
Aviner’s responsum and demonstrated that the
sources were used very imprecisely, to put it
mildly. Rabbi Aviner’s stringent interpretation A rabbi who rules leniently or stringently
of the sources can lead to serious harm. He without taking account of conflicting views will
writes, for example, ―at work, too, there should be seen as untrustworthy.
be no mixing.‖ The source he cites for that
prohibition is a responsum by Radbaz, but an
examination of that responsum itself shows Haredi claim that this leniency would
that Radbaz was speaking of Jewish women undermine the entire wall, Rabbi Kook wrote
going to work as ―outside workers‖ in gentile as follows:
homes for days at a time. On that basis, Rabbi
Aviner drew his conclusion about working in I have already written to their Torah
the State of Israel.6 When a student discovers honors [an honorific term used for one’s
this sort of move, his faith in the rabbi’s interlocutors] that I well know the
decision making is undermined not only with character of our contemporaries. It is
respect to the ruling at hand but with respect precisely by seeing that we are willing to
to all others as well. Thirty years ago, Amnon permit whatever an in-depth reading of the
Shapira had an advantage over others, for he law makes permissible that they will
knew the sources and could check them one by understand that we are permitting it
one. Now, when everyone has access to the because of the truth of Torah, and many
Responsa Project data base and Google who adhere to Torah will come, with
provides answers to all imaginable questions, God’s help, to heed the words of halakhic
everyone can check every responsum and teachers. But if it is found that there are
examine its trustworthiness. A rabbi who rules things that the law itself would permit but
in an oversimplified way, whether strictly or that the rabbis leave as prohibited, showing
leniently, in a area of halakhic complexity will no concern about the resulting burdens
be caught as untrustworthy. and difficulties imposed on Jews, the result
will be, God forbid, a great desecration of
More than a century ago, in 1909, Rabbi Kook God’s name, as many of those who violate
of blessed memory noted the duty of halakhic halakhah will come to say of important
decisors to be trustworthy. He was writing in principles of Torah that if the rabbis
the context of a dispute with the rabbinic court wanted to permit them, they could do so;
of the Jerusalem Hasidim. Rabbi Kook had and the law will be perverted as a result. 8
certified as kosher for Passover a factory that
produced sesame oil,7 and the Jerusalem rabbis Rabbi Kook’s words should penetrate deep
argued that his permissive ruling damaged the into the consciousness of our halakhic

6. Rabbi Aviner’s responsum and Amnon Shapira’s comments were published by Bnei Akiva in a pamphlet entitled
Hevrah me`urevet bi-venei aqiva be-yameinu [Mixed groups in Bnei Akiva today] (Tevet 5741 [Winter 1980-1981]).
7. For a careful analysis of the dispute, see Haggai Ben-Artzi, ―Idiologiyah u-pesiqat halakhah [Ideology and halakhic
ruling], in Amihai Berholtz, ed., Masa el ha-halakhah [Journey to the halakhah] (Tel-Aviv, 2003), pp. 177-195.
8. Responsa Orah mishpat, 112.

Meorot 8 Tishrei 5771 Lau 5

 decisors. His novel point here is that the phenomenon not previously accepted by
―slippery slope‖ is a risk associated not only halakhists. One even finds earlier disputes
with lenient rulings but also with unnecessarily among decisors in which one side strives
harsh rulings that close the doors of possibility. mightily to rule with leniency while the
The rabbis of Jerusalem feared that opening a opposing side makes little if any effort on
door would undermine the entire building, but behalf of a strict ruling. One explanation for
Rabbi Kook, in a mirror image of their the new phenomenon is that offered by Rabbi
position, fears that excess stringency will David Siegel, a leading seventeenth-century
impair the relationship between Israel and its decisor and author of Turei zahav (Taz). At
Father in heaven. If Rabbi Kook could portray issue was whether the new season’s grain
the community of a century ago as (hadash) grown outside the Land of Israel could
understanding and knowledgeable, what should be consumed without regard to the timing
we say of our generation, exposed to all its data conditions applicable to hadash in the Land of
bases? Israel. The leading decisors of the
Mediterranean region had ruled strictly,
2. On the Poseq’s Sensitivity: “What If It forbidding hadash outside the Land of Israel as
Were Your Daughter?” a matter of biblical law (mi-de-orayeta); the
Ashkenazi decisors in northern Europe, in
The foregoing comments by Rabbi Kook contrast, sought a way to rule leniently.
contain an additional insight. He describes the
feelings of a person who comes to a rabbi with
a question and senses that the rabbi does not Applying excess stringency in the face of
share his sorrow and his pain. When a rabbi possible leniency is a recent phenomenon.
could have ruled permissively or at least
struggled with the issue but instead cuts
straight to an unambiguously strict ruling, a Historical and geographical analysis of the
desecration of God’s name results. A issue shows that only in Ashkenaz and in
considerate and lenient ruling can bind the Yemen did avoiding hadash pose existential
public to the Torah and bolster the observance problems; in Spain and other Mediterranean
of halakhah within Israel. Slanderers allege that lands, conditions made it easy to refrain from
many questioners are interested only in eating hadash. The Taz offers the following
attacking and annulling the Torah, but arrayed explanation for the strict Sefardi rulings:
against them are the myriads of Jews, at all ―Those decisors were not concerned about
times and all places, who demonstrate that hardship in this regard, for in their lands,
loyalty to the Torah is not impaired by the where the climate is warm, there was no
need for lenient and thoughtful halakhic hardship at all [in avoiding hadash].‖10
rulings. The examples are numerous and I
need not enumerate them here.9 In other words, the burden and hardship
associated with avoiding hadash did not affect
Applying excess stringency in the face of the communities in which the Sefardi rabbis
possible leniency is a relatively recent

9. Rabbi Prof. Daniel Sperber has treated the issue in his book, Darkah shel ha-halakhah [The way of halakhah]
(Jerusalem, 2007). Sperber there presents dozens of examples of a halakhic approach that is congenial to the questioner
and attentive to his distress.
10. Yoreh de`ah 293:4. I treated this question comprehensively in a study of hadash outside the Land of Israel. A
summary that that study appears in ―Masa be-aron ha-sefarim ha-hilkhati—gilgulei mitsvat hadash be-toledot ha-halakhah‖
[Journey through the halakhic library—the evolution of the commandment regarding hadash in the history of halakhah],
in Masa el ha-halakhah (above, n. 7), pp. 127-156.

Meorot 8 Tishrei 5771 Lau 6

worked; accordingly, they were under no impose all manner of stringencies, will react.
pressure to explore the issue thoroughly so as Rabbi Kook warns that leaving unneeded
to find possible ways of ruling leniently. But prohibitions in place or failing to permit what
all the decisors in those lands where leniency can be permitted causes a breach between the
was needed enlisted in the effort to help the public and its rabbis—a breach that cannot be
public and made every effort to relax the healed by speeches or bans. The public will
prohibition. understand that someone who ought to be
concerned about its welfare is disregarding it
and paying no heed to its pain.
Were they your daughters, would you demean
them in this way? One of my earliest experiences as rabbi of
Kibbutz Sa`ad involved the mehitsah in the
synagogue. My neighbor Gili Zevin wrote an
When an individual or a group sees that a article about the distress felt by a woman
decisor makes no effort to help deal with praying behind the mehitsah; the article was
sorrows and hardships, that individual or published in Amudim, the journal of the
group will lose faith in the entire halakhic religious kibbutz movement. A month later, a
apparatus. Every day we encounter intelligent response by the rabbi of one of the kibbutzim
and educated people who have run into a wall was published. Bearing the title ―Ha-
of resistance erected by rabbis who, in their ketza`aqatah (―Is it as she cries‖; the word
concern about slippery slopes, forbid what is alludes mockingly to the cry from Sodom that
permitted and pay no attention to the cries of God determines to investigate [Gen. 18:21]),
Jews and the difficulties they face. The gemara the response patronizingly and disparagingly
(BT Ketubbot 23a) tells of young Jewish women rejected what Gili had written. I will never
who had been taken captive and came to forget the harm caused by his words. Not
Nehardea with their captors. The amora every outcry warrants agreement, but there
Samuel struggled with the question of their usually is a duty to consider the pain that
marriageability, concerned that they might have causes it.
been defiled by their captors before coming
before him. Samuel’s father rebuked him for The gemara (BT Shabbat 55a) tells of a woman
his concern: ―Were they your daughters, would who came to Samuel in distress. He
you demean them in this way?‖ Those words disregarded her, and his student, Rabbi Judah,
should resonate inside the head of every questioned his doing so. Samuel replied that
decisor as he considers every question that the responsibility was not his but that of the
comes before him: ―If she were your daughter Exilarch. That would appear to end the story,
…‖ Everyone knows that a parent will make but another passage (BT Bava Batra 10b) cites a
every effort to help his child, overturning the tradition about the son of Rabbi Joshua ben
world if need be. Levi (the first generation of amora’im), who fell
If decisors appear to disregard people’s needs ill, died, and returned to life. His father asked
because they are preoccupied with their own him what he had seen while dead, and the son
―concerns,‖ they contribute thereby to a replied ―I saw a world turned upside down, the
growing sense of alienation and an ensuing exalted below and the lowly elevated.‖ Tosafot
movement away from the world of Torah. ad loc. says that the ge’onim had an oral
The truth of the Torah requires us to permit tradition, passed from rabbi to rabbi, ―that in
what can possibly be permitted and not to the upside-down world he had seen Samuel
worry about how extremists, who want to seated [as a student] before Rabbi Judah his
student, who had protested Samuel’s conduct.‖ clear the way for society. Sometimes, it is
One need not agree with a plea, but one may social processes that energize adherents of the
not close his ears to it. Torah to find new aspects of Torah—in accord
with halakhah.
3. Society Advancing Halakhic Thought:
the Attitude toward the Disabled Let me illustrate briefly. Some three hundred
fifty years ago, Rabbi Jacob Hagiz considered
Let me now turn to the second part of the the halakhic status of the deaf mute,
article, an effort to clarify the influence of particularly the question of whether the
modernity on the halakhah. An optimistic Sabbath might be desecrated to save his life. In
attitude about the development of the world his responsum, one can discern the distress of
and of man leads the modern decisor to be a great man who senses that the mute is
attentive to and participate in the process of possessed of the divine image yet is of
improvement being undergone by society uncertain halakhic status; numerous sources
overall. Not every step taken is praiseworthy, treat him as ―not a life.‖ His distress led him
of course, and there are times when society’s to pray that the mute not suffer a dangerous
movement seems more a retreat than an illness on the Sabbath, for people might be
advance. But there also are instances in which unwilling to desecrate the Sabbath in order to
the present is a clear improvement over the treat him. Some two hundred years later,
past, and the decisor in those instances must Rabbi Israel Meir Kagan of Radin (known as
react positively to the change and interpret the the Hafets Hayyim) read that responsum with
halakhah in accord with the new circumstances. surprise: ―I don’t know what it was that caused
the author of Halakhot qetanot [that is, Rabbi
Hagiz] to have doubts about whether to
The status of women is a leading case for desecrate [the Sabbath, if needed to treat his
attentiveness to changing reality. illness] or kill [to defend him from murderous
attack] on his behalf; and his words are hard to
understand.‖ But the Hafets Hayyim needn’t
One of the most prominent new features of
have been surprised: during the two centuries
today’s society is the discovery of ―the other.‖
that separated his time from that of Rabbi
Modern societies strive to include, as
Hagiz, the attitude toward the disabled had
comprehensively as possible, those who in the
undergone a revolutionary change. During the
past had been excluded from the social center:
nineteenth century, the abilities of deaf mutes
the once marginalized woman has become an
were discovered and schools for them began to
equal partner in all aspects of society, the
be opened. Great Torah scholars, among
person with physical or psychological
them Rabbi Hayyim of Sanz, were asked about
disabilities has gained equal rights and worth;
the status of the deaf in light of these changes,
people with special needs or unique
and their rulings effected a total change in their
circumstances are sounding their voices and
status. Rabbi Esriel Hildesheimer expressly
expect to be heard and understood. In all
addressed the issue in a responsum to the
these areas, contemporary adherents of the
rabbis of Germany:
Torah expect a response from their spiritual
leadership. If society in general is undergoing That was the perspective regarding deaf mutes
a revolution with respect to the disabled, we in those times, and it is so stated in medical
must find the light shed by Torah on those books of the period. Only later did they
very same issues. The Torah does not always change their minds and reach the conclusion

11. For Rabbi Hagiz’s responsum, see Responsa Halakhot qetanot, part 1. For the Hafets hayyim’s reaction, see Bi’ur
halakhah on sec. 329.
Meorot 8 Tishrei 5771 Lau 8
 that deaf mutes have mental capacity (though it synagogue,14 consideration of whether a
is difficult for them to express it), and that is mentally disabled boy may be called to the
certainly shown by experience today. And this Torah as a bar mitzvah, and other questions of
does not at all contradict the words of our that sort.15 Their common denominator is that
sages of blessed memory, for they were anyone who chooses to participate in modern
speaking of a mute for whom use of his mental life must leave no stone unturned in seeking
capacity was impossible.12 ways to integrate the Torah into it.

Modern thought demands in no uncertain 4. Modernity Moving the Decisor—the

terms that decisors recognize the Status of Women as a Leading Case for
transformation in the modern Western world, Attentiveness to a Changing Reality
which acknowledges the light cast by each
person simply by reason of being a person. To illustrate both parts of the article—
Anyone who deals with these issues sees the characterization of the modern decisor and
change the world has undergone between the modernity as a driver of halakhic decision
Middle Ages and now. The challenge is to making—let me consider the most prominent
reveal the Torah’s power with regard to the subject in modern halakhic decision making:
―other,‖ including those with disabilities. The the change in family structure in the wake of
standing of the human being, created in God’s the changed status of woman. When we
image, has been enhanced in modern times. examine the issues that occupied the attention
The responsa written over the past two of modern religious society during the 1960s
hundred years show a tension between the and 1970s, we find the most prominent
desire to preserve the halakhah as it existed and questions to involve the attitude toward
the desire to move it forward in view of the resident aliens, the attitude toward western
changes taking place in society.13 We find, for culture, and the place of the Sabbath in a
example, disagreement over whether a blind Jewish and democratic state. One issue clearly
person’s guide dog may be brought into a not on the agenda of the time was that of the

12. Responsa of Rabbi Esriel Hildesheimer, part 2, sec. 58. In that responsum, he sets forth the change in the attitude
toward the deaf of society overall and discusses the difference between those who are willing to recognize a changed
reality and those who entrench themselves in the understanding reflected in the Talmud.
13. See, for example, Rabbi Yuval Cherlow, Be-tsalmo—ha-adam ha-nivra be-tselem [In His image – Man created in God’s
image] (Jerusalem, 2009). In his introduction, Rabbi Cherlow describes the distress he feels because so many bearers of
the Torah’s banner are misdirected, disregarding the numerous elements of the divine image in man.
14. The dispute between Rabbi Feinstein and Rabbi Breisch regarding the entry into the synagogue of a blind person’s
guide dog offers an excellent example. Rabbi Feinstein works over the sources in order to prove that it is permitted.
Rabbi Breisch challenges his responsum, and in a formal sense, he is right. Rabbi Feinstein’s erudite acrobatics created an
unstable structure that can be easily toppled. But Rabbi Breisch’s responsum gives no recognition at all to the
psychological difference to a blind person between leading a guide dog and being led by another person. Rabbi Feinstein
shows the motivation to work through the Torah in order to blend it with the needs of society. Rabbi Feinstein’s
responsum appears in Iggerot mosheh, part 1, sec. 45; Rabbi Breishch’s responsum is in Helqat ya`akov, Orah hayyim, sec. 34.
15. Rabbi Shlomo Aviner, ―She’eilot be-inyanei yeladim im tismonet daun‖ [Questions regarding Down’s syndrome children],
Asiya 57-58 (1997), pp. 14-16.
16. This finding is supported by a review of the journal Mehalekhim of the Movement for Torah Judaism—the founding
movement of the Religious Academy in Israel—from 1966 to 1974. See, on that, my article ―Iyyun be-darkah shel ha-tenu`ah
le-yahadut shel ha-torah‖ [A study of the Movement for Torah Judaism], in Sefer zikkaron le-profesor ze’ev falk, zal [Memorial
volume for Prof. Zev Falk] (Jerusalem, 2005), pp. 371-384. In recent years, we have seen numerous questions related to
the family: deferral of pregnancy in the early years of a marriage; mature single women wanting to become pregnant by
artificial insemination, homosexuals wanting to be recognized ―out of the closet.‖ The diverse reactions to this complex
of issues demonstrate the gap between a modern halakhic position and conservative efforts to muzzle the forces said to
be seeking to demolish the Jewish home. Here, too, the rabbi has a duty to listen carefully to every question posed to
him.
Meorot 8 Tishrei 5771 Lau 9
status of women.16 During the past two by spiritual languor or flippancy but by great
decades, however, that topic became a central, seriousness and a true clash between
substantive issue one requiring comprehensive competing values. The general interest,
rethinking in many areas: the study of Torah, requiring concern for the nation, comes up
the domestic power structure, women’s roles in against an individual’s interests, legitimate on
prayer and public Torah reading, and the role both personal and Torah grounds: continued
of women as halakhic authorities. These Torah study, acquiring a trade, professional
questions flow from an across-the-board advancement, psychological tranquility, the
change in women’s status in society. Only ability to provide a suitable education for the
ninety years ago, Rabbi Kook and Rabbi Uziel children, and so on. If couples dealing with
could disagree on women’s suffrage; now, the issue find themselves confronting a solid
religious women run public and commercial wall of decisors who rule that nothing can
enterprises just as do men, without any justify deferral of childbearing, the halakhah
difference. In the world of Torah, however, the will become insignificant for them and they
topic is a flashpoint of disagreement. will stop posing questions to the rabbis. But if
Whenever a question arises related to a change they find an attentive and deliberative rabbi,
in women’s status, cries of ―reform‖ ring out one who studies, exerts himself, and strives to
from halakhic conservatives. Many rabbis see help them, they will build their home
external and alien tendencies, grounded in responsibly and will seek rabbinic advice on
feminism, in women’s demands for a changed how to conduct themselves in accordance with
position in religious life. But like all halakhic
issues, this one, too, has undergone a process
of ripening and internalization, and rabbis, like Working through the issue with them and
the general public, are becoming more striving to find a response to their question
accustomed to change. draws people closer to a life of Torah
As an example, let us consider the question of
family planning. Young couples might want to the halakhic tradition. Over the years, many
delay having children for any number of couples have come to me with questions along
reasons: allowing the wife to complete her these lines. This is not the place to go into my
higher education; a sense of insecurity policies regarding this sensitive issue, but I
(personal or economic) during the early stages have no doubt that the approach I’ve
of a marriage; various personal plans.17 As outlined—carefully listening to the couple,
much as thirty years ago, Rabbi Aharon working through the issue with them, and
Lichtenstein noted the frequency with which striving to find a response to their question
the issue was arising: ―Almost every halakhic within the world of halakhah—draws more
authority, whether [community] rabbi or Rosh people closer to a life of Torah.
Yeshivah, who maintains broad contact with
young couples about to marry or recently One of the leading rabbis within the group
married can attest to the frequency of inquires striving to be attentive to the public is Rabbi
in this area.‖18 Yuval Cherlow, an alumnus of Yeshivat Har
Etzion and the head of Yeshivat Petah Tiqvah.
Rabbi Lichtenstein writes of the seriousness He fights fearlessly to provide a hearing for the
and gravitas with which the question should be voices of the distressed; often, they are the
considered, for the questioners are moved not voices of women who feel that the world of

17. On this topic, see also Moshe Kahn’s article, ―The Halakhic Parameters of Delaying Procreation‖ in this edition of
Meorot—ed..
18. Rabbi Aharon Lichtenstein, ―Be-fetah ha-sha`ar‖ [Introduction], in Rabbi Elyakim Ellinson, ed., Tikhnun ha-
mishpahah u-meni`at heirayon [Family planning and birth control] (Tel-Aviv, 1977), p. 3.
Meorot 8 Tishrei 5771 Lau 10
Torah has no response to their problems. To he can always claim his father is a banker,
illustrate, let me cite a short passage from his from the sperm bank.19
discussion of a request by unmarried women to
become mothers through the use of donated
sperm. This is a sensitive issue, invoking All weaponry may be used, including
extremely delicate matters related to the transforming the permissible into the forbidden.
structure and meaning of the family, the
dismantling of the family in modern society,
and the need to be attentive to an individual’s The writer does not conceal his point of
pain. Most decisors to whom the question has departure: modernity is ―a harm.‖ And, in a
been posed have reacted in sweepingly negative manner typical of such writers, he distorts the
terms, concerned about the unraveling of halakhah, as I noted at the beginning of this
household and family. For example, Meir article. The sweeping determination that the
Halevi writes as follows: child born to this woman would be a shetuqi is
halakhically wrong, meant to amplify the sense
Among the harms wrought by liberal of prohibition and raise the solid wall even
modernization is our becoming overly higher. Five years ago, Rabbi Ovadia Yosef
technological, rationalist, and careerist. wrote a responsum about a single woman who
When a woman’s career plans call for bore a son with sperm from a sperm bank; she
bearing a child at the age of 35 to 40 as a later became religiously observant and asked
single mother, it suggests she was unable to that her son be declared fit to marry
form a healthy, solid bond of love and halakhically. In his responsum, Rabbi Ovadia
mutual support with a partner. How, then, Yosef reasons that because she was unmarried,
can that woman think for a moment that most men would have been halakhically
she will form a healthy, solid bond with a permitted to marry her, and the applicable
child? A child who, at least initially, will be halakhic presumption with respect to
extremely egoistic and egocentric, just like uncertainty therefore calls for treating the
every infant? Today there are as well many sperm as having come from a permissible
religious women who very much want to source. The offspring, accordingly, is not to be
bring children into the world and fulfill considered a ―shetuqi,‖ and had the offspring
their destined role a mother, yet they been a daughter, she would have been eligible
cannot find their match. What do they do? even to marry a kohen.20 For the writer of the
They go to the Puah Institute [a halakhic quoted article, however, halakhah does not
fertility clinic] and, turned away, look matter. He has a goal—waging war against the
elsewhere and receive authorization to go dismantling of the family—and in that war, all
to a gentile sperm bank in France or weaponry may be used, including
Germany, to avoid the risk of brother- transformation of the permissible into the
sister mamzerut in Israel.*** In this way, a forbidden. To very similar effect is the
child is born who lacks a father image; the treatment of the issue by Rabbi David
sages of blessed memory referred to him as Golinkin, head of the Law Committee of the
a shetuqi, for when he is asked who his Masorti Movement in Israel. Writing in 1988,
father is, he is silent [shoteq]. In such cases, long before the question emerged with its

***A mamzer is a child resulting from a forbidden union, as between brother and sister. Receiving sperm from an
anonymous Jewish donor entails a risk that the resulting child might grow up and unknowingly marry a genetic
sibling.—translator’s note.
19. From the ―opinion‖ section of the Arutz 7 website, 24 July 2003.
20. Responsa Yabi`a omer, part 10, Even ha-ezer, sec. 10. Needless to say, Rabbi Ovadia Yosef did not mean to
authorize, as a matter of principle (le-katehilah), the use of sperm donation by unmarried women. His responsum
dealt only after the fact (be-diavad) with a situation that had arisen.
Meorot 8 Tishrei 5771 Lau 11
current urgency, Rabbi Golinkin adopting a speaking of someone who has been unable
sweepingly negative stance, seeing no opening to marry despite doing all she could to try,
whatever to a permissive ruling. it would not be right to prevent her for
halakhic reasons from fulfilling her hope to
In his words: ―If we adopt the method of
have a child. That is so because the Torah
artificially inseminating single women with
itself describes a childless woman as feeling
donated sperm, we will seal the fate of the
that her life is not a life (―Give me children
Jewish family.‖21
or I die,‖ cries Rachel to Jacob) and the
In contrast to the foregoing approach, consider midrash notes that Jacob hurt Rachel with
Rabbi Cherlow’s words: his untoward and impatient response; it is
so because there is no express prohibition
When a woman reaches a state in which it on a woman bearing a child without a
is nearly certain that she will be unable to family structure; it is so because of the fact
establish a household in Israel even though that we must not go into the business of
she very much wants to and is willing to issuing ―licenses to become pregnant,‖
compromise to be able to do so, and, which is the way of the world that precedes
meanwhile, her biological clock is ticking the Torah and an essential aspect of human
and her chances of successfully bearing a existence; and it is so because of the fact
child are diminishing, and she very much that, at times, a mother who bears one
wants to have a child—in such a case, child of her own even without a father will
halakhic decisors face an extremely weighty raise that child with greater warmth and
question and they are divided on it. Some love than would be the case in a shaky
say that the woman should not treat her family that continues to bear children.22
desire to bear a child as counterbalancing
the importance of the sanctity of the I chose this example because it reveals the
Jewish family and the interest of the child halakhist’s ability to listen to people and share
in being born into a family with both their pain. Here, too, I want to avoid going
father and mother; and they see no way to into the ruling itself. Everyone understands
authorize such action [that is, artificial that Rabbi Cherlow is working within the
insemination with donated sperm]. halakhic field but choosing a way through it
Moreover, there is a general public interest that draws people to the Torah rather than
to be taken into account, namely the desire pushing them outside the gate. He sees the
to avoid the slippery slope toward single danger of the ―slippery slope‖ not only in
parenthood at ever earlier ages and a connection with the dismantling of the family
situation in which bearing a child in the but also in raising the wall of prohibition and
absence of a husband becomes a normative closing one’s ears to the distress of these
or even ideal possibility. Public women.
enactments to promote the sanctity of the
family in Israel sometimes foreclose 5. The “Power of Leniency” and the Duty
satisfying a person’s individual desire. On to all of Israel: The Controversy over
the other hand, some decisors take the “Kosharot”
view that, upon reaching the age where
one’s chances of becoming a parent are Let me conclude this discussion of modern
about to run out, and when we are halakhic decision making with an issue that is

21. Teshuvot va`ad ha-halakhah shel kenesset ha-rabbanim be-yisra’el [Responsa of the Law Committee of the Rabbinical
Assembly in Israel] vol. 3 (1988-1989), pp. 83-92.
22. From the website of Yeshivat Petah Tiqvah.

Meorot 8 Tishrei 5771 Lau 12

of interest beyond the modern community and supervisory system would forgo kashrut
touches on the life of anyone who feels some altogether rather than meet the Beit Yosef
responsibility for all of Israel and does not live standard. In consultation with his teacher and
a sectarian life. Many rabbis in the Haredi mentor, Rabbi Ovadia Yosef, Rabbi Amar
community see themselves as ―sacred decided to leave in place the existing
guardians,‖ standing on watch against any distinction between regular kashrut, which
infiltration of external winds into the world of applies the Rama’s standards and requires only
Torah-observant Judaism. They share the that the cooking fire be lit by a Jew, and
mindset of the passengers on Noah’s Ark, ―mehadrin‖ kashrut, which applies, among other
striving to save themselves from the waters of stringencies, that of the Beit Yosef with respect
corruption surging around them throughout to supervising gentile workers.23 Nevertheless,
the entire world. All their energy is as part of the Haredi tendencies now
concentrated on the effort to preserve and characterizing some streams within Religious
develop their minority group; the world Zionism, an organization called ―Kosharot‖ was
beyond is a threat but otherwise of no concern. formed and took the unprecedented step of
The ethos of religious Zionism was, for many issuing a report questioning the entire kashrut
years, just the opposite. Armed with great system in Jerusalem, hoping thereby to bolster
faith, the people of Bnei Akiva fostered the kashrut and transform it into ―mehadrin.‖ I see
idea of being fully integrated into all aspects of this as an example of the revolution taking
public life—culture, education, security, and place within Religious Zionism, which began as
industry. If Haredi Judaism can be compared an effort to undertake a duty to all Israel but
to the passengers on Noah’s Ark, Religious now, in a process of supposed ―spiritual
Zionism adopted the image of ―the children of strengthening‖ is becoming like one of the
Abraham our father,‖ acting with a sense of religious courts in the Haredi street.
―Go forth‖ (lekh lekha, God’s charge to
Abraham) to spread the great light of Torah as
it reveals itself in all fields of life. One area If Haredi Judaism is compared to the
that stands out here is that of the kashrut of passengers on Noah’s Ark, Religious Zionism
food. is “the children of Abraham.”
The Haredi approach to kashrut attempts to
meet the private needs of small groups by The process can be seen as well in the context
establishing an array of kashrut supervision of shemittah, (the agricultural sabbatical year,
agencies organized along sectarian lines. The when, to state the matter in very general terms,
Chief Rabbinate, in contrast, drew a line that land owned by Jews in the Land of Israel may
could encompass the largest possible number not be cultivated and other restrictions apply).
of producers and consumers; to do so, they Since the early days of Zionism, the restrictions
chose a policy of ruling leniently rather than that apply during the shemittah year and the
stringently. For example, when Rabbi Amar, demands of modern agriculture have been
later the Chief Rabbi, was serving as Rabbi of reconciled by a sale of land to a non-Jew (a
Tel-Aviv, he wanted to implement the kashrut process termed heter mekhirah). Recently
standards of the Beit Yosef, which required though, voices from within Religious Zionism
continuous supervision of work performed by have called for ―enhanced shemittah
gentiles. But it quickly became clear to him observance‖ and have undercut heter mekhirah.
that requiring every business owner to maintain The result, however, is an overall debasement
continuous supervision by a Jew would do of the sanctity of produce that grows during
more harm than good. Many business owners the shemittah year, for produce is sold in the
willing to be certified as kosher under a regular normal way with only a small packaging

Meorot 8 Tishrei 5771 Lau 13

notation that the product is subject to are introducing their teachers to the fruits of
shemittah-sanctity (see, for example, the wines academic research, and the cross-cultural
produced by Carmel Mizrahi). Thousands of encounter is producing an enriched world of
innocent Jews who are unaware of the Torah. That leadership is slowly making its
product’s shemittah-sanctity casually violate the way into the public marketplace, and the world
prohibition, a transgression that could have is coming to know a different kind of
been avoided through the use of heter mekhirah. rabbinate: one that is connected to and
integrated with the experience of life and
culture in their entirety. These encounters,
Religious Zionism is becoming like the may they increase, will bolster the standing of
religious courts on the Haredi street. the rabbis in the eyes of their communities and
the standing of Torah in practical, day-to-day
life.
Zionist halakhic decision making should be
guided by recognition of a duty to the public at 7. Concluding Note: Invalidating the
large and responsiveness to the needs of the Culture of Invalidation
majority. It should not be guided by an effort
to satisfy the will of marginal groups. Some time ago I officiated at a wedding at an
auditorium in the central part of Israel. It was
6. Modern Rabbinic Leadership a regular Israeli wedding, that of a secular
couple who wanted to be tied to their ancestral
Many in the Religious Zionist camp, in cities tradition and chose to be married according to
and settlements alike, identify with the the Law of Moses and Israel. They made no
principles of the modern stream of Torah- special requests and sought no innovations;
observant Jews and genuinely hope to see our they did not suggest that the bride give the
spiritual renewal; they conduct their personal groom a ring or that women recite the seven
and family lives in accord with those ideas. blessings. The ceremony was simple and fully
But they are often perplexed when their traditional. On my way to my car after the
children come home from our religious ceremony I was stopped by a man who
educational institutions spouting a new approached me cautiously:
―Torah‖—one that rejects culture, promotes
alienation from the values on which their ―Rabbi, may I ask you a question? Was that
homes are grounded, and warns of the dangers a Reform ceremony?‖
inherent in the openness that characterizes
those homes. A spiritual wedge is driven ―Why do you ask? It was an entirely
between the communities and a segment of the ordinary ceremony,‖ I replied.
educational system. The public that identifies
in its way of life with the ideas I have described ―But I understood everything that was said
does not forcefully demand spiritual leadership there; you spoke Israeli,‖ he answered.
suited to its way of life.
Much can be learned from this dialogue, but
Still, there is hope. A new generation of what I want to do here is call attention to the
spiritual leaders is emerging. Some of them are tragedy that has befallen religious Judaism. To
open to modern culture, drawing on it and be ―Orthodox‖ in the eyes of that secular
internalizing its positive aspects within their Israeli Jew, one must be incomprehensible,
spiritual world. Aggressive opposition to irrelevant, uncongenial. An ―Orthodox‖ Jew is
anything that smacks of the academy has expected to maintain, in thought, dress,
become a minority position within the Zionist language, and conduct, the ―original‖
spiritual leadership. More and more yeshivas Judaism—not a Judaism that speaks Israeli

Meorot 8 Tishrei 5771 Lau 14

Hebrew and is up-to-date in its involvement Nevertheless, Rabbi Ovadia Yosef reacted in
with practical life but a Judaism that preserves the following terms to publication of their
European synagogue life, the melodies of ascent to the Temple Mount:
grandpa’s house, the appearance of the shtetl.
… These rabbis of Yesha who publicized
That is Judaism.
this effort, do they want to be reformers?
Let them say that is what they want. It is a
Religious Zionism has long been a presence in stumbling block for the masses. We
all aspects of Israeli life, but it is not perceived commit enough sins; do we need to add to
as ―the real thing.‖ All of us know the Israel’s sins? There was some wise man
humorous line we have heard countless some seventy years ago (evidently
times—―the religious are thus and such … but reincarnated in the Yesha rabbis) who
you’re different.‖ Haredi Judaism, for its part, wanted to permit entry into the Temple
does all it can to reinforce that image. The Mount. The ga’on Rabbi Yosef Yedid
stigma and the reality are nicely connected. wanted to ban him for that until the matter
was suppressed, and the Land quieted
down ….24
Halakhic decision-making should be guided by
This, of course, is but one instance of an
a duty to the public at large and responsiveness overall program of invalidation. One could
to the needs of the majority. cite others—the invalidation of Rabbi
Druckman in the Haredi press by its refusal to
refer to him as ―Rabbi,‖ the struggle against
Haredi Judaism was openly hostile to Religious the appointment of Rabbi Ariel to the Chief
Zionism, seeing it as a threat to the existence Rabbinate, and many more. Were the trend
of Torah. Every innovation was cast as confined to relations between the Haredi
―reform.‖ The existence of various streams movement and the Religious-Zionist
within the nationalist-religious movement was movement, there would be less need to speak
of no interest to the Haredi leadership; the out. But I am writing here of internal
nationalist identity itself invalidates their invalidation within the Religious-Zionist camp.
standing. An example of the Haredi failure to That sort of invalidation has never drawn
distinguish between streams within Religious anyone closer to the world of Torah, has never
Zionism is provided by the attitude of Haredi curtailed assimilation, has never prevented
rabbis to the campaign to go up to the Temple groundless hatred; it is simply the introduction
Mount—a campaign led by the rabbis of Yesha of ―alien fire.‖ We may demand forcefully that
(an acronym for Yehudah-Shomron-Azza, that this corrosive trend be halted and that we
is, the West Bank and Gaza). Within the develop among us a culture in which parties to
nationalist-religious camp, these rabbis are disputes permit each other to sanctify their
classed as a group especially punctilious in its Creator, in a spirit of calm.
religious observance.

24. Discourse for Shabbat Mattot-Mas`ei, 1997, p. 21.

Meorot 8 Tishrei 5771 Lau 15