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"Jewish halakhic decisions," says Rabbi Prof. Daniel Sperber, "tended throughout most of the generations to be user-friendly. There are impressive examples in halakhic history of the willingness of poskim (arbiters of Jewish law) to allow the taking of interest or to prevent the cancellation of debts in order to make economic life possible; to allow the sale of chametz on Pesach and a heter mechira (permission to sell land to a non-Jew) during the sabbatical year to prevent losses; even to impose severe sanctions on those who refused to grant a get (a religious divorce) or to release agunot (chained women, whose husbands cannot or will not grant them a divorce) under lenient conditions. Only in recent generations has pesika (issuing a halakhic ruling) become extreme and increasingly stringent."

This argument is not new, of course. For many years it was voiced by Conservative and Reform Jews, women's organizations and ordinary liberal religious Jews. The innovation lies in the speaker, his background and the knowledge that he brings to his argument. An Israel Prize laureate for his talmudic research, Sperber is president of the Institute of Advanced Torah Studies at Bar-Ilan University. A reknowned scholar of Jewish law and the Talmud, he also is the rabbi of a congregation the neighborhood where he lives in Jerusalem, the Jewish Quarter of the Old City.

In two books recently published in Hebrew by Reuben Mass "Darka shel Halakha" (The Path of Halakha) and "Netivot Pesika" (Modes of Decision), Sperber spells out his arguments against the halakhic decision-making of recent generations; he says it is characterized mainly by disregard for the personal situation of the person requesting the ruling and an absence of humane consideration for the applicant's suffering and dignity in favor of comprehensive decisions designed for a general public and tending to be stringent.

He traces the origin of the problem, as did many of his respected predecessors (chiefly historian Jacob Katz) to the extreme reaction of religious society in Europe to the phenomenon of Reform and the Haskala (Jewish Enlightenment movement). Since Reform Jews wanted to innovate, traditional Jews had to refrain from any innovation. This extreme position was reflected symbolically by the famous statement by the Hatam Sofer, the leader of the ultra-Orthodox community in Hungary in the 19th century, who declared that hadash (the new) is "forbidden by the Torah." (This was a paraphrase of a Jewish law in Temple times forbidding the eating of the new grain crop before the ceremony marking the Counting of the Omer). In short, any attempt at innovation regarding a specific custom was enough to invalidate it, even if there is no halakhic prohibition.

The Hatam Sofer influenced poskim and communities all over Europe, and the situation reached the absurd, according to Sperber: "Recently a book was published about the customs of the Mattersdorf community [in Hungary- Y.S.] in the mid-19th century. And it turns out that in this community the rabbis refused to allow a heater into the study hall and consequently it was so cold that most members of the community refrained from coming to the synagogue in the winter, and there's evidence that those who came had icicles running down from their beards, only because 'our forefathers did not have heaters.' In that same community they also avoided placing benches in the synagogue, and elderly people were forced to stand during the entire prayer service, for the same reason that 'Hadash is forbidden by the Torah.'"

Even major poskim, experts in the halakhic tradition, avoided innovation to the point of absurdity. Sperber tells of the testimony of the son of the Hafetz Haim (Rabbi Yisrael Hacohen of Radin, the main Ashkenazi posek of modern times) regarding his father, who refrained from introducing electricity into the synagogue, even on weekdays, because of the innovation it represented.

Ivory tower phenomenon

The second and more recent cause of extremism, says Sperber, is the central role that the large yeshivas and their heads began to assume in the Ashkenazi (European) halakhic world: "In the past it was common for the pesika to be issued in each community by the local rabbi. The rabbi was familiar with the nature of the community, its ability to observe various stringencies and the needs of the people, and therefore the decisions suited the community. The moment that the yeshiva heads became the main poskim the rulings became 'academic,' issued from an ivory tower, unconnected to the actual situation of the public, and in any case also tending to be stringent."

Incidentally, he points out, because the two phenomena - Reform Judaism and the large yeshivas - were not found in Sephardic Judaism (in southern Europe, North Africa and the Middle East), the phenomenon of halakhic extremism was avoided there.

In "Darka shel Halakha," Sperber deals particularly with what he considers a central example of "unfriendly" pesika: the subject of Torah reading by women. A priori, the Talmud determines that there is no problem with women being called up to the Torah, and only when it came to reading from the Torah "the Sages said that they shouldn't read because of the dignity of the public"; the most common interpretation of this explanation is that this could humiliate those men who didn't know how to read from the Torah.

For most of Jewish history the ruling did not even come up for discussion because the women didn't see themselves as candidates for reading from the Torah. But in recent decades feminism has also affected the desire of religious women to be full partners in religious life, including reading from the Torah. Sperber is convinced, and that is also what he rules, that they should be allowed to do so, adopting an approach of "friendly" pesika:

"First of all, today most religious men who come to the synagogue know how to read from the Torah, so, in any case, they should not be insulted by a woman reading. Second, just as there is concern for a public that is insulted when women read, another public can also "forgo its dignity' and decide that it is not insulted by this reading. And primarily - in contrast to the value of 'the dignity of the public' - preference should be given to the universal value of human dignity, because the moment women feel insulted by not being allowed to read, this insult is more important."

In the second book Sperber discusses another major problem that he sees as an obstacle to the poskim - the absence of sufficient scientific knowledge. He is referring mainly to their ignorance of the academic field of Jewish studies, which causes them to be unfamiliar with sources discovered in recent generations or differences of opinion between versions of various manuscripts, which could influence the pesika. As a basic example of that he mentions that Rabbi Yosef Caro, the compiler of the Shulkhan Arukh, which from the time it was written in the 16th century up to the present, has been considered the central book of halakha in the Jewish world, made his halakhic decisions by following the majority opinion in three previous books of halakha with which he was familiar: those of Maimonides, the Rif (Rabbi Yitzhak Alfasi) and the Rosh (Rabbi Asher ben Yehiel). "But in recent generations," says Sperber, "many halakhic sources that were totally unfamiliar to the author of the Shulkhan Arukh have been discovered, for example extensive halakhic literature from Provence. This literature could change the entire balance of majority and minority opinion in halakha, but the poskim will not allow any expression of that. The Hazon Ish [a central posek who lived in Israel in the 20th century -Y.S.] even said there is no need to take this literature into consideration, because apparently it was determined from above that this literature would not be discovered before the halakhic tradition was consolidated. Incidentally, Shas spiritual leader Rabbi Ovadia Yosef is actually willing to rely on the new literature, and in several places he rules contrary to the Shulkhan Arukh, in accordance with new sources that have been discovered."

Occasionally, it must be admitted, unfamiliarity with the various sources actually causes lenient halakhic rulings. For example, Sperber brings the famous case of the permission given by Rabbi Avraham Kook to sell the lands of the country during the sabbatical year. This permission was based, among other things, on previous poskim who ruled that there is no prohibition against selling land from Eretz Israel to goyim in our time, because the prohibition written in the Torah on this matter relates only to idol worshipers, and today's Arabs are not considered as such.

But manuscripts discovered in recent decades reveal that these quotes stemmed from censorship imposed by Christian rulers on the original pesika, which actually prohibited the sale of land from Eretz Israel to all the goyim, and not only to idol worshipers.

In the test of results, Sperber is not afraid of the practical significance of his discovery, "because there are enough other ways and reasons to allow the sale," but the basic principle is important.