Balancing Simplicity and Authenticity

This post is in response to R’ Nathan Lopez Cordozo’s “On the Nature and Future of Halakha in Relation to Autonomous Religiosity” on the Institute for Jewish Ideas and Ideals web site.

First to quote some points with which I firmly agree:

I teach Jewish Philosophy. I am confronted daily with countless young Jews who search for an authentic Jewish religious way of life, but are unable to find spiritual satisfaction in the prevalent halakhic system as practiced today in most Ultra or Modern-Orthodox communities. For many of them, typical halakhic life is not synonymous with genuine religiosity. They feel that halakha has become too monotonous, too standardized and too external for them to experience the presence of God on a day-to-day basis. Beyond “observance”, they look for holiness and meaning. Many of them feel there is too much formalism in the halakhic system, and not enough internal meaning; too much obedience and not enough room for the individualistic soul, or for religious spontaneity.

A careful read of modern Jewish Orthodox literature reveals that many authors misunderstand the nature of Jewish law. Much of this literature is dedicated to extreme and obsessive codification, which goes hand in hand with a desire to “fix” halakha once and for all. The laws of muktzeh, tevilath kelim, tzeniut and many others are codified in much greater detail than ever before. These works have become the standard by which the young growing observant community lives its life. When studying them one wonders whether our forefathers were ever really observant, since such compendia were never available to them and they could never have known all the minutiae presented today to the observant Jew. Over the years we have embalmed Judaism while claiming it is alive because it continues to maintain its external shape.

The majority of halakhic literature today is streamlined, allowing little room for halakhic flexibility and for the spiritual need for novelty. For the most part, the reader is encouraged to follow the most stringent view without asking whether this will actually help her or him in their Avodath Ha-Borei (service of the Almighty) according to her or his distinct personality. The song of the halakha, its spirit and mission are entirely lost in this type of literature. When the student looks beyond these works seeking music, he is often confronted with a dogmatic approach to Judaism which entirely misses the mark. We are plagued by over-codification and dogmatization.

Another obsessive attempt which contrasts the very nature of Judaism is the attempt to codify Jewish beliefs. Jewish beliefs are constantly dogmatized and halakhicized by rabbinic authorities, and anyone who does not accept these rigid beliefs is no longer considered to be a real religious Jew. A spirit of finalization has taken over Judaism.

An easy example is a comparison of R’ Maurice Lamm’s “The Jewish Way in Death and Mourning” with a more recent guide for the aveil, such as ArtScroll’s “Mourning in Halachah”. The former weaves together halakhah, agadah, and the experience of the mourner in the current generation.

However, I feel that R’ Cardozo, in his battle against ossification, errs too far on the other side. I do not know if it’s his actual position, the article appears to say that he is intentionally being provocative in order to spark a dialog:

Surely there are many arguments which can be brought against the contents of this essay, some of which I can point to myself. However, the purpose of this essay is to get people thinking, not to claim the definitive truth of my observations and suggestions.

I am fully aware that the views expressed may not be palatable to most bona fide and respected poskim. My analysis and suggestions will probably not carry their approval. I hope only to act as a catalyst in the hope that some halakhic authorities and Jewish thinkers will take my suggestions seriously and be prepared to discuss them. They are nothing more than thoughts which came to mind when contemplating and discussing these issues with students.

That said, he ties the current spate of quickie guides for the sound-bite generation, “just give me the bottom line” to the objections against codification in the days of the rishonim.

Over the last five hundred years, famous rabbinic leaders have called to limit the overwhelming authority of Rabbi Josef Karo’s Shulhan Arukh and Maimonides’ Mishneh Torah. They felt that these works do not reflect authentic Judaism and its halakhic tradition. The reason is obvious. Both these great codes of Jewish Law are very un-Jewish in spirit. They present halakha in ways which oppose the heart and soul of the Talmud, and therefore of Judaism itself. They deprived Judaism of its multifaceted halakhic tradition and its inherent music. It is not the works themselves which are the problem but the ideology which they represent: The ethos of codifying and finalizing Jewish Law.

Halakha is the practical upshot of un-finalized beliefs, a practical way of life while remaining in theological suspense. In matters of the spirit and the quest to find God, it is not possible to come to final conclusions. The quest for God must remain open-ended to enable the human spirit to find its way through trial and discovery. As such, Judaism has no catechism. It has an inherent aversion to dogma. Although it includes strong beliefs, they are not susceptible to formulation in any kind of authoritative system. It is up to the Talmudic scholar to choose between many opinions, for they are all authentic. They are part of God’s Torah, and even opposing opinions “are all from one Shepherd” (Hagiga 3b).

Three early authorities were deeply concerned about this development: Rabbi Shelomo Luria, known as Maharshal (1510-1573); Rabbi Yehudah Low ben Betzalel, known as the Maharal of Prague (1520-1609); and Rabbi Haim Ben Betzalel (1530-1588), brother of the Maharal. Each in his own way attacked the Mishneh Torah and the Shulhan Arukh, claiming they were anti-Talmudic and therefore anti-halakhic. Maharshal accused Maimonides of acting “as if (he) received it (the Mishneh Torah) directly from Moshe at Mount Sinai who received it directly from Heaven, offering no proof …” (Yam shel Shelomo, Introduction to Bava Kama). Directing his attack to Rabbi Joseph Karo’s Shulhan Arukh in which the author follows the majority opinion of three authorities (Rif, Rosh and Maimonides), Maharshal asked how the author had the right to do so. Did Rabbi Joseph Karo receive such a tradition going back to the days of the sages? (ibid)

Maharshal goes on to state that the Shulhan Arukh’s entire enterprise is dangerous. Those who study it will come to believe that what Rabbi Joseph Karo wrote has finality…

R’ Cardozo, by going further than most of his audience would be (and I will argue below — should be) willing to, loses that audience with respect to the primary problem. The same flaw can be found in Rav Gidon Rothstein’s response to the article, “Halacha and Autonomous Religiosity: What’s the Problem?” on the RCA‘s blog, Text and Texture. In response to an article which suggests too much fluidity in halakhah, he posits a more rigid definition of halakhah than commonly accepted.

As to Talmudic times, the Tosefta in Sotah 14;9, cited in Sanhedrin 98b, blames the multiplicity of debates on students’ failure to study properly, hardly an encomium for diversity of opinion in the halachic world; turning to elu va-elu itself, while Kabbalists did, indeed, find an interpretation in which it meant that all those opinions were right, most rishonim (and R. Moshe Feinstein, in his introduction to Iggerot Moshe) understand the phrase as allowing us to tolerate a wrong opinion as long as it was reached through valid process.  Indeed, the general understanding of the mitzvah to follow majority rule—and the largely-ignored obligation of lo titgodedu, not to have Jewish communities be split by multiple forms of practice– seems to prefer avoiding precisely the kinds of splits R. Cardozo wants to uphold as an ideal.

And in a response to a comment on that blog entry, R’ Rothstein adds, “…it seems to me that Elu Va-Elu was taken in a completely different direction from about the 15th century on, a guess that ties in to my PhD dissertation and my feelings about detours of Jewish thought, but that’s not for here…”

However, as we saw in the past, the notion that halakhah contains “49 ways to declare [something] impure and 49 ways to declare [it] pure” is a more clear-cut source for plurality than the talmud about eilu va’eilu“. For sources in the gemara, Rashi, the Ran (who was a rationalist, not a Qabbalist), and numerous other pre-15th cent. CE baalei mesorah, please see my summary of articles on the subject by R’ Moshe Halbertal (“Controversy in Halacha“) and R’ Michael Rosensweig (“Elu Va-Elu Divre Elokim Hayyim: Halakhic Pluralism And Theories Of Controversy“).

I also find an interesting point of commonality between the two positions. R’ Marc Angel questions the binding nature of evolution to halakhah since the gemara. R’ Gidon Rothstein questions the significance of the evolution of aggadita since the rishonim. Both are therefore calling for some sort of roll back to what they believe to be an earlier state that was more to their liking. (And neither describe the past as I would.)

To present my own take on the subject…

I think there is a major failing in his essay in not clearly distinguishing between codification and the need for codification. When we say that Rebbe’s decision to codify the mishnah was an instance of overturning a specific law for the sake of the whole (“eis la’asos Lashem, heifeiru Sorasekha — it’s time to do for G-d, overturn Your Torah”), we’re clearly saying the situation was a step down. BUT, that doesn’t mean that codifying — whether the Medrashei Halakhah completed before Rebbe’s day, his completion of the Mishnah, the Tosefta, the Talmuds, the Beha”g, the Rif, the Rambam, the Tur, the Shulchan Arukh, the Rama, the Levush, the Shulchan Arukh haRav, the Chayei Adam, the Qitzur, the Arukh haShulchan, the Mishnah Berurah, the Ben Ish Hai, etc, etc, etc.. were themselves a bad idea. It is sad when we reach an impasse that requires a new round of codification. But when we do need it, producing a code is the right response. It is not codification itself which is ill, and until we repair the cause for the need, the progressive codification is still necessary.

The formula the Rambam uses to describe the what gave the Talmud Bavli its binding nature is that it was accepted by “all of Israel”. Not in every one of its rulings, but as the point of origin for further study. And today, across the gamut, semichah studies center around the Shulchan Arukh (with the exception of Bal’adi Teimanim who center their pisqa on the Rambam). The same mechanism which gives the gemara the authority R’ Cardozo attributes to it gives the Shulchan Arukh its authority.
Someone who davens from R’ Saadia Gaon’s (much shorter) siddur, omitting things said by all our communities for centuries, or to take a real case, from Nusach Eretz Yisrael as found in the Cairo Geniza, isn’t following the halachic process. The plurality caused by having a distinctly oral and fluid tradition is part of a stream down time; by leaving that stream, that dialog down the generations, one abandoned the core of Judaism.

Orthodox Jews today are under the impression that the job of religion is to provide answers; and moreso, easy-to-understand answers that can resolve life’s dilemmas in one sitting — all tied up with a nice bow.

In reality, life’s problems are hard. Let me give a story from personal experience. Someone close to me is a baalas teshuvah. The only one in her family in a few generations to embrace observance. And she, like most baalei teshuvah, was presented a worldview in which, if you just believe enough, the only airplane one would miss is the one that was going to crash. (Many of you are familiar with this genre of story that I’m trying to portray.) But she, alone among all her siblings and cousins, went through the crashing pain of losing a daughter. So, where is the “better life” the kiruv professionals led her to expect? Life is not simple, and we do ourselves a disservice pretending it is.

Religion’s job isn’t to resolve life’s struggles, but to give us a meaningful way to grapple with them. Whether we’re talking about our perspective on life, or about pesaq halakhah.

Quick and cut-and-dry one-size-fits-all rulings isn’t how halakhah is supposed to work. While I’m arguing that a ruling that “all of Israel” accepts is binding, we have gone well beyond that with the current proliferation of English halachic guides. There is a feel to the give-and-take of halakhah, to its responses to the costs to the individual, to their personal talents and emotional proclivities, where they stand spiritually, the challenges and gifts Hashem placed in their path, and how they view life, that one really not only needs a human halachic decisor, but preferably one who knows the asker and can help them coordinate a spiritual journey through life.

There is enough room among decisions which have so far not reached universal consenus (“nishpasheit bekhol Yisrael“) nor canonized as the person’s inviolate minhag (eg: qitniyos) to address the contemporary Orthodox Jew’s need for a meaninful spiritual life through a synthesis of religion (aish) and rite (das).


40 thoughts on “Balancing Simplicity and Authenticity

  1. Thank you – I desparately needed this turn of phrase while working with kiruv rechokim, kiruv kirovim, and myself (I don’t know if I’ll ever fit in to only one of those two groups).

    //Religion’s job isn’t to resolve life’s struggles, but to give us a meaningful way to grapple with them.

  2. Oddly, you are the rabbi I most often quote (or at least paraphrase) on the topic of the adaptability of halacha. The one I cite most is:

    Once an answer has been found and agreed to for a question of halacha, that answer may not change. However, the question itself often changes, and the new change may have a new answer.

    You also once said something like
    By keeping all our minhagim, even obsolete ones, we provide reassurance to future generations that we have kept up the mesorah. If we don’t even discard an obsolete custom, what are the chances we have discarded an actual halacha?

    I’m less satisified with this second comment than I once was, since it is clear to me we have discarded many minhagim.

    BTW, it was very nice to meet you at the Hirhurim get together last night.

    • Yes, it was nice to meet you too.

      I think it’s because I argue against rigidity at the expense of spirituality that I feel a need to defend the limits of that change.

      There is only one post in this blog (so far) in which I intentionally negative. I did a series on change in halakhah, and felt that I couldn’t do the topic justice without contrasting valid halachic change from Conservative Judaism’s legal methodology.

      • Part I (halakhah as a collection of rules of thumb, combined with weighing pros and cons),
      • Interlude (on C),
      • Part II (the nature of those pros and cons, and how different communities stress different factors),
      • Addenda (3 issues that came up during the Avodah discussion that led to the other posts).
      • At a later time, I wrote this piece about the flow of halachic thought (in contrast to classical and postmodern academic understandings). It has much to do with why I am afraid that when R’ Cardozo went from questioning the use of contemporary populist guides to questioning the role of rishonim‘s codes, he left a fundamental of O behind. This also relates to my reluctance to jettison even the oddest of minhagim. It’s one thing if they die a natural death. But to consciously assess an accepted minhag means leaving the stream of Torah’s evolution, it risks creating a disjoin between the evolution of the Jewish people and our historical
      • The notion you cited, that sometimes an accepted pesaq “changes” because the reality changed in some fundamental way, is the centerpiece idea in this earlier post.
  3. I do not agree that Machon Shilo’s HaRav David Bar-Hayim deviates from the halachic process.
    His model which inspired his shittah was the Gra. His innovations are not stam for the sake of arriving at a pre-determined result, but aim to bring Jews back to a more authentic way of practicing Judaism.

    • Chaim,

      I don’t think you read my post closely, or perhaps expected a particular kind of objection before completing it and never noticed it wasn’t actually made. I didn’t say anything about pre-determined results. I wrote about standing outside the flow of mesorah and assessing it for changes.

      The entire Maaseh Rav lists 250 changes, most of them quibbles nusach and its grammar, that the Vilna Gaon did himself privately and his students decided, after his death, to follow. One might then question whether the students acted correctly, by taking a personal practice and turning it into a communal norm. But even divorced from the Gra — I have to acknowledge those students have pretty broad shoulders of their own to rely upon. Just R’ Chaim Volozhiner alone invented what is likely the most pervasive stream of Orthodox thought today.

      However, you’re ignoring that this is the same Vilna Gaon who objected to the wholesale change of nusach that the Chassidim made. As well as writing a peirush on the very same Shulchan Arukh people make such a big deal of the relatively few times he diverges from.

      As I wrote in the aforementioned series on how halakhah is decided, halakhah boils down to rules of thumb that do end up bending when they conflict. It’s one thing to point to an example of someone who valued textual authenticity more than most, and therefore his minhag Yisrael rule was often the one that was bent. It’s another to say that minhag Yisrael as established in the Golah is meaningless, and the rule is altogether abrogated — for a reason that is itself a minority opinion. Rav Kook, who developed the notion of Torat EY, didn’t translate the notion into practice. Does R’ Bar-Hayyim discuss why?

      Saying a rule is soft and non-algorithmic is different than saying it does not exist. The Gaon felt that Chassidim went beyond where weighing the limits of halachic considerations can take you. Obviously, I’m guessing what would happen in the case of an anachronism, but every indication is that the Gra, like R’ Kook, would not have endorsed the direction in which R’ David Bar-Hayyim took their ideas.

      As I put it in my post, we may not have accepted the Shulchan Arukh as halakhah, but it did become the yardstick from which one measures pesaq. One has to have ever-stronger reasons for divergence when getting further from the SA’s rulings. The past’s voice in the present doesn’t silence all dissent, but it does exist. R’ Bar-Hayyim seeks to moot large chunk of that discussion through time.

      -micha

  4. “Someone who davens from R’ Saadia Gaon’s (much shorter) siddur, omitting things said by all our communities for centuries, or to take a real case, from Nusach Eretz Yisrael as found in the Cairo Geniza, isn’t following the halachic process. ”

    With all due respect Rabbi, what you say here is preposterous. Even if a posek disagrees with the idea or the practice in question and advises people from his own understanding to adopt the “standard custom” or what people are doing today, it is simply inaccurate to say that doing such a thing is assur in any way shape or form. The Rambam writes that the nusach tefillah has legitimacy even in of itself (we describe God in the davening!) because it is based on nevuah. The more ancient nusah is actually more closely connected with the original formulation of actual prophets. And the additions that came over the ages, while certainly acceptable within the “halachic system” are simply not based on nevuah. I’m simply bringing a specific example, but even if one has a differing hashkafa from the Rambam about tefillah, how can one say that adopting an ancient nusah, or incorporating aspects of the nusah of Rashi for example, is assur in halacha? Where is the issur? Is there a halacha in the gemara that says that all must agree to the hashkafa-of-the-halachic-system you are presenting here, rabbi, and as a consequence of that, any practice (however we deem it so) which takes one beyond its bounds is therefore forbidden?

    • I hope my reply to Chaim’s comments address Student V’s as well. Once something is fully accepted by “all of Israel”, one can’t unwind the clock. That IS rejection of Torah sheBaal Peh. See the Rambam’s introduction, and his explanation of why Rav Ashi and Ravina end the period of hora’ah. TSBP is a dialog down the ages, not a scientific determination of some objective truth. You can’t moot out 1500 years of those changes and still call it the Oral tradition.

      -micha

  5. Abandoning the core of Judaism would be to reject the mitzvoth and certain ikkarim of faith, or to reject the Oral law, etc. I don’t see how adopting the Saadiah Gaon’s nusah tefillah could possibly fit the bill of rejecting the core of Judaism. According to whose formulation would that be a definition of a rejection of the core of Judaism?

  6. Can you tell me when everyone – no, actually please tell me when ANYONE – “accepted” that it was assur to daven certain nuschaoth? I think you are citing a historical event that never happened. Furthermore, you are extending Rambam’s principle to something he certainly was not speaking about. But aside from that, what you suggest never happened.

  7. Student V: In your polemic, you shift topic. And I therefore don’t think discussing this with you has any value — you are too committed to your viewpoint to hear the possibility that someone might have honest objection to it.

    However, I have a reluctance to simply leave my reply there, as a third party who reads this exchange might misconstrue me as giving up because I lack a reply. So, to explain:

    I wrote of agreement to a given norm, not agreement to ban breaking that norm.

    In this case, we have certain accepted nusachos. Let’s say Sepharad, Ashkenaz, Edot haMizrach and the Bal’adi Tachlil agree on 80% of the text of the siddur. That alone makes saying something else for that 80% very problematic.

    One doesn’t have to agree the alternative is assur, one simply has to agree on what the norm is.

    And what I write above is overly limited. There are problems with abandoning one’s minhag avos, particularly in the current era where our new locales have not yet developed their own minhagei hamaqom. It is non-trivial for an Ashkenazi to decide to “go Sepharadi” in the pesiqa he follows. However, this raises a whole second can of worms, one I didn’t raise until now. So let’s just leave it to a discussion of nispasheit bekhol Yisrael and the 80% of the siddur all established edot agree upon.

    -micha

  8. “Student V: In your polemic, you shift topic. And I therefore don’t think discussing this with you has any value — you are too committed to your viewpoint to hear the possibility that someone might have honest objection to it.”

    I did not shift topic, I responded directly to what you said in post #8. I am not writing a polemic. You are presenting a hashkafic view of the halacha or the halachic system and you are presenting it with advice or judgments attached to it under the veneer of halachic authority. If it is halachic authority, you need a makor (source). I mean, at least one. If anyone is writing a polemic here, it is you, as you exclude a certain kehilla from halachic Judaism on a flimsy basis, but your statement goes even beyond that. You have assured the Saadiah Gaon as well. You don’t even try to present a makor, you simply resort to more argument from authority. But authority in Judaism, especially halachic authority, is based on sources. This is a sad exchange and a sad experience for me because I respect you rabbi and like what you have to say. But this exchange makes me question your intellectual honesty if you are going to throw accusations at me for asking simple questions. As this is another example, it seems that people get very defensive when they speak about nusah. Why is that?

  9. And since it is in fact you who has changed the subject, I’m going to give another chance to address the issues without personal accusations or insults but addressing the facts instead. I’ll say again: From my understanding, abandoning the core of Judaism would be to reject the mitzvoth and certain ikkarim of faith, or to reject the Oral law, etc. I don’t see how adopting the Saadiah Gaon’s nusah tefillah could possibly fit the bill of rejecting the core of Judaism. And now the key question: According to whose formulation would that be a definition of a rejection of the core of Judaism?

    To be explicit, I am asking you for source(s).

  10. You redefine terms. I am writing about the Rambam’s introduction to Mishneh Torah, where he writes that the authority of Talmud Bavli comes from its acceptance across the Jewish People. That’s not an aggadic model of how halakhah ought to work, nor is it my own. It draws directly from what he writes Hilkhos Mamrim ch. 2.

    Similarly, there is a line between rishonim and acharonim, evidenced most obviously by the use of those terms in halachic works produced by every kehillah. R’ JB Soloveitchik attributes it to the same effect — that just as the Talmud Bavli was accepted across Israel as either as law or the baseline from which you must justify your divergences, so too did the acceptance of the Shulchan Arukh and Rama create a hierarchy between rishonim (potential justifications) and acharonim (not). The same notion is in the Igeros Moshe, YD 1:101.

    But the authority of a text isn’t at the core of our discussion. It’s the power of acceptance — whether of the aforementioned texts, or of core parts of nusach hatefillah.

    The Rambam does not require a commonly accepted position that some ruling, e.g. Nusach EY, is wrong. Just that an alternative became commonly accepted. Asking where that ban came from when I never insisted there was a ban overtly decreed is the shift I wrote about earlier.

    That is how halakhah works — you can’t ignore accepted rulings. Rav Saadia’s siddur was once a viable halachic position, but time has moved on.

    Such a rule does not exclude kehillos, as they build from accepted ruling to accepted ruling; they evolve halakhah as per the age-old process. It does exclude innovators who look at the process from the outside and change it on a meta-level.

    I mentioned this Rambam in both the original post and the comment you noted, #8. The Rambam also invokes this idea in explaining why someone can’t say “since the gemara considers maariv to a be reshus, I can skip it if I so choose.” In asking for my source, you’re just requesting that I cite it a third time. I also just now happened to come across the idea in the Mordechai’s dismissal of the prohibition of pas palter (AZ 830) because it didn’t gain that acceptance.

    Asking some friends brought me to the Magid Mishnah (Shabbos 5:1), who explicitly invokes this notion with respect to the nusach in Seder Rav Amram Gaon; the instance is the berakhah for neir Shabbos. “Kach kasuv beSeder Rav Amram vekhein hiskimu kol ha’acharonim z”l.”

    -micha

      • You’re giving texts authority in an of themselves. However, what lends authority to a text is the Jewish People’s acceptance of that text. See the introduction to the Yad, par. 35, where the Rambam explains that this is the source of the gemara’s authority: “הוֹאִיל וְכָל אוֹתָן הַדְּבָרִים שֶׁבַּתַּלְמוּד הִסְכִּימוּ עֲלֵיהֶם כָּל יִשְׂרָאֵל…”

        R’ Saadia Gaon’s siddur is therefore a no starter. No community accepted it. Including the fact that my own ancestral community did not. (Given that none of us today live in communities with consistent pesqim and minhagim, we have to turn back to the last paternal ancestor who did.)

        R’ Amram Gaon’s siddur is what we do actually follow. To the extent that we know what he wrote. But still, even if we found the original manuscript and determined which of our nusachos are originl on each point of contension, it wouldn’t make a difference, because we never accepted those parts.

  11. “Asking where that ban came from when I never insisted there was a ban overtly decreed is the shift I wrote about earlier.”

    You said: “Once something is fully accepted by “all of Israel”, one can’t unwind the clock.”

    I said in response: “Can you tell me when everyone – no, actually please tell me when ANYONE – “accepted” that it was assur to daven certain nuschaoth?”

    Now you are simply using semantics to accuse me of changing the subject. You are explaining your statement in another format, yet my question applies equally to it. You are basically saying that by virtue of certain nuschaoth becoming common, and others going out of use (for a multitude of reasons including the Crusades and Muhammadan conquest which of course have nothing to do with halachic decision-making on the topic), there is a de facto “ban” on old nuschaoth that are no longer common. A “ban” is just a synonym or another expression for saying that the old nuschaoth are Assur, which IS what you are asserting here. But you really have no basis to say this, whereas, we do consider (hypothetical) non-Talmudic halachic guides irrelevant once the Talmud became the guiding force in halacha – and this is what Rambam expresses. So why do you equate nusah with the Talmud? You are basically equating an ancient nusah to using an alternative non-Talmudic corpus or karaite ruling as a halachic guide. That is not an honest comparison.

    Indeed, the Jewish people accepted a certain core format of the nusah tefilla as composed by Anshe Knesseth Hagedola and refined subsequently, but this core expressed itself in multiple acceptable formats as is clear to anyone. Over time, certain formats became more popular, new formats were invented (ie nusah Sefarad, nusah Ari, etc), and other formats became less commonly used. The core is what was “accepted” to the exclusion of some other core not based on nevuah, or invented wholecloth, but why do you suggest older formats are no longer valid? For this you have not provided a basis in halacha and the non-existing parallel with what the Rambam says in the hakdama about the Talmud does not address the issue. You are comparing apples and oranges. And again you do not have a source in halacha. You are imposing a preconceived hashkafic notion onto the halacha. If you just call it what it is, opinion, and nothing else, I respect an opinion. But you present this under the guise of halacha.

    These nuschaoth all gained acceptance including the Saadiah Gaon’s and including Nusah Eretz Yisrael which was in use historically up to the 1100’s, from what I’ve read. YOU are now trying to undo history by telling me that subsequent events retract their acceptance. And btw, your basic list of 4 nuschaoth that you list as being “acceptable” and common currently-used nuschaoth needs to be greatly expanded, but that is besides the point.

    “That is how halakhah works — you can’t ignore accepted RULINGS. Rav Saadia’s siddur was once a viable halachic position, but time has moved on.” (emphasis added)

    You do not cite a ruling. Where is the halachic ruling that it is no longer acceptable? Clearly it was “accepted” as a nusah in his day. So when did it become assur? This is the halachic source I’ve been waiting for all along. Furthermore, Saadiah Gaon’s nusach is not a “halachic position” – it is a composition of tefilla based on what is required in halacha and the core set out by those who came before him and on which all nuschaoth are based.

    “The Rambam also invokes this idea in explaining why someone can’t say “since the gemara considers maariv to a be reshus, I can skip it if I so choose.””

    It’s amazing to me that you cite post-Talmudic, unsourced, naturally developing (as opposed to decided upon) historical developments as being completely equal in stature and authority to Talmudic halachic decisions.

    “But the authority of a text isn’t at the core of our discussion. It’s the power of acceptance — whether of the aforementioned texts, or of core parts of nusach hatefillah.”

    The core parts are obviously not altered in nusah Saadiah Gaon or nusah Eretz Yisrael since these are ancient nuschaoth. They are alternative formats of the same core. Just like nusah sefardi, nusah ashkenaz, etc etc.

  12. I would think that in the modern era there is a real problem with halacha advancing in the kind of unconscious natural fashion that you describe. That worked well in situations where communities were isolated from one another, local rabbinic authorities had significant respect and influence, and information flow was limited. Today many changes made by a kehilla are known instantly world wide, the baal habatim usually look to distant rashei yeshivas rather than to local authority, and the zeitgeist requires us to pretend that no change has been made.

    Moving off of nusach hatefilla for a moment, another of Rabbi David Bar Hayim’s rulings is that in the coherent kehilla-in-the-make of Eretz Yisrael the minhag of kitnyot should be abolished. This is part of his project to have a unified halacha of Eretz Yisrael, as distinct from the current reality of having many communities keep their minhagim from Europe. Does this count in your mind as conscious innovation? If more and more Israeli Ashkenazim simply stop keeping the custom of kitnyot, without referencing a particular psak allowing it, would that fit your definition of organic growth better?

  13. Student V: The siddur is far more standardized than the framework established by Anshei Keneses haGedolah and elaborated by the sanhedrin in Teveria. Every extant traditional siddur (in contrast to someone’s 20th or 21st cent CE invention based on processes I am excluding) “like nusach Sefaradi, nusach Ashkenaz, etc, etc” (and Italki, and Greek, and anything else beyond the four I named) is a derivative of Rav Amram Gaon’s. By the Rambam’s rule for what makes a position immutable hora’ah, that range of liturgy is binding. In that case, the Rambam was after that universality was reached, which is why we see the Tachlil used by Bal’adi Teimanim is also a derivative of Seder Rav Amram Gaon. No one today (that I know of) has a different set of Birkhos Qeri’as Shema for Friday night (just to give one example from Rav Saadia Gaon).

    However, the rule would still hold after his death. Including the fact that every semichah student (other than Bal’adim) center their studies on the Shulchan Arukh and its “armor bearers” because it too gained that acceptance. The very same rule which you’re using to divide Talmudic statements from “post-Talmudic, unsourced, naturally developing (as opposed to decided upon) historical developments” holds for those post-Talmudic rulings. The Rambam spells out the mechanism for the Talmud’s authority; if it applies again after the Talmud Bavli, so too would the authority.

    Yes, I buttress this idea by giving an aggadic way of relating to it. The notion that Torah sheBe’al Peh inherently has the properties and dynamicity of any other Orality. And this means that how our understanding of Rav Meir’s position (e.g.) evolved over time through the amoraim, savoraim, geonim, rishonim, acharonim, and whatever you wish to call the post-Shoah / contemporary generations is actually more binding than what Rav Meir’s position actually was. The evolution of ideas is part of the process, and a “return” to how you reconstruct some earlier and rejected idea could be Talmud Torah, but it’s not law.

    But this is post-facto explanation to add meaning for those who follow the halachic ruling about legal mechanism. Not the motivation for my position. The motivation is simply that the idea articulated by the Rambam in his introduction and in Mamrim ch. 2 does describe de facto how other rishonim and how acharonim work within established post-talmudic precedent.

    As for your: “for a multitude of reasons including the Crusades and Muhammadan conquest which of course have nothing to do with halachic decision-making on the topic”… You are explicitly unwinding history, despite your weak argument trying to project the charge back. If we as a people were shaped by those experiences, should our path for redeeming ourselves be similarly changed as well? “Of course”? Provide sources.

    I’ll provide a counterexample. Zevachim 61b doesn’t end with “but since the change-over in how nisuch hamayim was done was only due to galus bavel, we should have switched back”.

    -micha

  14. RLL:

    Yes, RDbH’s position on minhagim is different in kind than his position on pesaq. Yes, there are new, post-WWII, qehilos in the making, and they will have new minhagim. But if there was ever an argument for practice being a natural evolution, though, I would think that we could all agree that by definition this is true of minhag.

    I’m also not arguing for Schechterian “Catholic Israel” defining halakhah without any need for compliance to formally developed legal thought. I’ve been emphasizing the role of acceptance because that is where I believe “Student V” and I differ. But it’s possible for the accepted practice to be objectively wrong and need repair.

    In other words, if we use the words of the (by now hacnkeyed for these conversations) bas qol, “eilu va’eilu divrei E-lokim Chaim” is a determination that can only be made by formal ruling. However, “vehalakhah keBeis Hillel” is a factor of majority. And in fact, we only listen to that bas qol because it was confirming the majority. That’s how this gemara differs from the tanur shel achnai, where we follow the majority rather than the miraculously confirmed position. And majority refers to both decisors and followers, as we see from commentaries on Edios 1:5 who understand the requirement that an overruling court must be greater in “wisdom and number” as referring to number of followers, not members.

    BTW, problems caused by a broken zeitgeist may cause difficulty in halachic process, but that just demonstrates how broken it is. However, I disagree that this poses a sociological problem. In theory, the pretense that there never was change would favor evolution over someone rethinking the ruling — or to actually speak about our case, rethinking the process by which the ruling was reached. However, that’s not what’s happening. Rather, we see the revival of dead opinions as long as both opinions could be followed — ie chumeros. Due to the timidity of post-war poseqim, they lack the self-asuredness to apply halachic process, and instead use the rules of doubt resolution. And thus “we really ought to be concerned for the opinion of Rabbi Ploni.”

    -micha

  15. Our sages had to reduce the Oral Torah to writing and derive detailed formal codes from it because of real-life situations that threatened the survival of our Mesorah.

    Am I right in assuming that a key aspect of the messianic era will be a return from Plan B back to Plan A? Prior to that, who exactly can have the perspective and authority to make such a thing happen on a global scale?

  16. I think both fit the same overall plan. Whether the commonly accepted ruling is in a code or not, if we had wiser sages with greater acceptance, they could overturn it. One would need a formal Sanhedrin to overrule another formal Sanhedrin, but I don’t think we would if the discussion is a code that was “agreed upon by all of Israel like law made by a Sanhedrin” (as the Rambam describes the Talmud Bavli).

    That said, I agree that it would likely take the messianic era to get everyone to agree to an authority. Also, while we accumulate knowledge, we’re losing wisdom from one generation to the next. “Reishis chokhmah yir’as Hashem” — not lomdus. We may need the return of Eliyahu in order to take care of the “greater in wisdom” part. So while we don’t in principle need a Sanhedrin to return to the authority of the generation after the collapse of the last Sanhedrin — and thus having the authority even overruling shas, never mind the rishonim — in practice I don’t see it happening before we actually have one.

    -micha

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  18. It is important to note that Rav David Bar-Hayim’s shitta does not ignore precedent-his shitta takes into account opinions of great scholars of previous generations, but when he is certain of the correctness of his position then he will not feel bound by what he understands as clearly incorrect views.

  19. Here there is a conflict of hashkafic visions.

    One view (Micha) calls for status quo orthodoxy along the lines of the traditional diaspora distinctions btwn ethnicities and their customs and halachot.

    The other view (Rav Bar Haim) calls for an “orthodox” reformation, unlike non-orthodox Reform and Conservative, with an eye towards “objective truth” and unity of the jewish people.

    It doesn’t seem to me that either view is right or wrong. The question is: what will work better?

    • Zohar:

      I am arguing that there is no “objective truth” issue here — halakhah is a legal process, not a truth-seeking system. To think there is a truth ought there to be sought defies the entire point of their being an Oral Torah.

      I do think there will be a minhag Eretz Yisrael, or perhaps regional minhagim in different parts of Eretz Yisrael, one day. (The notion of how/if differences will continue in a world of telecommunications is a complex one, and one I won’t hazard a guess about.) But any reformation is based on a conceptual error. Law has rules of authority, among them precedent. It’s only in the rare (if you have the requisite emunas chakhamim you must believe it’s rare) error where a precedent is set that is neither “these” nor “those” of the “words of the Living G-d” where there is room for such methodology. Our following Beis Hillel is based on history — which opinion was held by those who showed more respect, and by the non-elitist school that therefore had more students and adherents. Nothing about that relates to which is more likely to have found “objective truth”.

      Chaim writes, “I… Rav David Bar-Hayim’s shitta does not ignore precedent-his shitta takes into account opinions of great scholars of previous generations, but when he is certain of the correctness of his position then he will not feel bound by what he understands as clearly incorrect views.

      You are correct that saying “ignores” is overstatement. However, he clearly defies the rules of precedent when he looks at long accepted rulings as things he could not feel bound by. But again, if you mistake law for science, why should precedent matter altogether?

      -micha

  20. “The very same rule which you’re using to divide Talmudic statements from “post-Talmudic, unsourced, naturally developing (as opposed to decided upon) historical developments” holds for those post-Talmudic rulings. The Rambam spells out the mechanism for the Talmud’s authority; if it applies again after the Talmud Bavli, so too would the authority.”

    The reason you say this is because you fail to make a distinction between the Shas and any other “development” (no matter how minor or localized) in history. Is not the Chasimat Hashas a unique transformational event set apart in history and different from all future subsequent developments, and with unique level of authority unequaled until the day an actual Sanhedrin is re-established? If not, I would like to know from where you derive your opinion.

    Just as an aside, you seem to ignore that certain kehillot historically made a point of NOT accepting the Shulhan Aruch as their guide, even though you consistently mention them parenthetically as the “exception” to your “rule.” This does not have implications necessarily for those people who do consider it their guide, but it certainly logically explodes your point as you express it here when making a parallel from the Talmud to the Shulhan Aruch. Are you now going to say that Judaism is a diluted form of democracy where “majority of kehillot” rules? Why do the “Bal’adim” not count in this context, in your opinion? They are certainly not Karaim.

    “Yes, I buttress this idea by giving an aggadic way of relating to it. The notion that Torah sheBe’al Peh inherently has the properties and dynamicity of any other Orality. And this means that how our understanding of Rav Meir’s position (e.g.) evolved over time through the amoraim, savoraim, geonim, rishonim, acharonim, and whatever you wish to call the post-Shoah / contemporary generations is actually more binding than what Rav Meir’s position actually was. The evolution of ideas is part of the process, and a “return” to how you reconstruct some earlier and rejected idea could be Talmud Torah, but it’s not law.”

    Your example is once again a non-sequitor because an opinion rejected by the Shas is not the same thing as a nusah tefilla that went out of style long after what we can call “post-Shas.”

    “As for your: “for a multitude of reasons including the Crusades and Muhammadan conquest which of course have nothing to do with halachic decision-making on the topic”… You are explicitly unwinding history, despite your weak argument trying to project the charge back. If we as a people were shaped by those experiences, should our path for redeeming ourselves be similarly changed as well? “Of course”? Provide sources.”

    The Muhammadan conquest and the Crusades are historical fact. They took place. That they directly impacted the unwinding of the existing Eretz Yisrael kehillot and their practices, that they wiped out significant numbers of these people and their scholars, is also historical fact. What supports my supposition that halachic decision-making was not reliant on these events? Because just as I have asked for this source and you continually fail to provide it, never has there been a source either preserved orally or in writing, saying anything along the lines of “Because Muhammad’s marauders and the Pope’s idolators have wiped out our communities, it is now forbidden to return to the nusah we once used.” The customs simply died out naturally and with the encouragement of foreign scholars who wished to impose their own customs. That does not make them assur. Discussing whether a return to an old nusah is or is not necessarily “a path for redeeming ourselves” is a hashkafic discussion, which I personally think is certainly up for debate. But I am disputing your assertion that it is a halachically unviable decision/action, not (at least not right now because I don’t think you’ve spoken at length about this) your opinion of whether it is necessary, important, or useful to us. The hashkafic discussion of whether something is “necessary” is only a tangent question which comes after we have decided if something is mutar or assur, and you are asserting the thing is assur.

    “I’ll provide a counterexample. Zevachim 61b doesn’t end with “but since the change-over in how nisuch hamayim was done was only due to galus bavel, we should have switched back”. ”

    Do you really think this is applicable to our discussion?

  21. I also would like to know what “rulings” Rabbi Bar Hayim is ignoring by adopting nusah Eretz Yisrael. This is getting really comical. Can you cite a ruling or you’re just going to keep citing a Rambam that is speaking about something else and which you make an analogy to every single case under the sun? Can you cite ANY halachic authorities who at least made the same parallel as you are making? Maybe that can be a starting point. So far we really have nil.

  22. Rav Ovadia Yosef doesn’t allow switching nusachos, aside from Ashkenazim in Israel switching to the Sefaradi of R’ Yosef Caro, who he holds sets minhag Eretz Yisrael. Rav Moshe Feinstein only allows switching of nusachos for Chassidim who wish to switch back to the original nusach Ashkenaz. Rav Kook only allowed davening in a haavarah other than the one of your immediate ancestors if you were too immersed in the Israeli havarah to use the traditional one consistently — bedi’evad (“bedi’avad”, for the pedantic) consitency was better than upholding one’s nusach.

    I already pointed to posqim who applied the Rambam’s logic to the subsequent acceptance of the Shulchan Arukh. I have no idea what you’re asking me again.

    Zevachim 71b is to galus bavel as upholding the currently accepted pesaqim is to galus Edom. So yes, I do think it’s applicable.

    But we’re not having a discussion, because you are to offended by my accusation of heresy to bother processing what I’m writing.

    -micha

  23. RLL:

    You wrote, a while back: “Oddly, you are the rabbi I most often quote (or at least paraphrase) on the topic of the adaptability of halacha.

    My first reply was: “I think it’s because I argue against rigidity at the expense of spirituality that I feel a need to defend the limits of that change.

    I think, though, that my stance can be stated more strongly. I believe that halakhah is a law-making process based on rules of thumb, a heuristic (wiki: experience-based techniques that help in problem solving, learning and discovery). Not a truth-finding mission, with one right answer. Which is why the Sanhedrin valued people who could see the truth in both sides of the matter (“49 ways to declare impure, and 49 ways to declare pure”) — it is only such people who can weigh the pros and cons of each, and come to the optimal solution for who we are.

    In terms of contemporary halakhah, I’m afraid that the replacement of a relationship with a poseiq by self-study in quick halachic guides, or the Mishnah Berurah, has replaced that “optimal for who we are” in favor of simplicity. Thus the title of this blog entry “Balancing Authenticity and Simplicity”. Therefore I argue for more openness.

    But the flipside is that, assuming the heuristic process was actually followed, the ruling is correct. Finding meta-reasons why we should change that ruling, rather than following the process and building further from its current set of conclusions, is thus to my mind also not mesorah. And not just to my mind, it’s the implied position of every institution that bases their ordination program on the Shulchan Arukh and its armor bearers.

    -micha

  24. “I already pointed to posqim who applied the Rambam’s logic to the subsequent acceptance of the Shulchan Arukh. I have no idea what you’re asking me again.”

    Quite simple. You’re applying the Rambam’s logic to NUSAH, not to Shulhan Aruch (even though you did cite some who make a parallel with Shulhan Aruch – of course not everyone does – but this is not relevant here). I was asking for precedent for making the parallel YOU are making, not the very different parallel that others have made. You are saying that the nusah falls under the same categorization as the hasimat haShas and, now, according to some opinions, Shulhan Aruch as well. I find it hard to believe you really equate those two with “standard nusah,” whatever you imagine it to be.

    It’s also peculiar that you cite Rav Moshe Feinstein because he encourages Chassidim to adopt their “original” nusah – Nusah Ashkenaz – instead of the much newer nusah sefarad, and so he serves as a precedent for adopting an ancient nusah in lieu of what is currently practiced, common, or what the chassid’s father used. Why didn’t Rav Moshe Feinstein simply say that since Nusah Ashkenaz went out of style and out of use in your particular family, it is now assur for you to “re-adopt” an ancient nusah such as that?

    As for being offended about accusations of heresy – You don’t see a problem in jumping to label people and attack with a foregone conclusion that they’re heretical regardless of the sources?

  25. Does anyone today not use a descendent of R’ Amram Gaon’s siddur? Same rule — nispashet bekhol Yisrael.

    Unlike to existing nusachos.

    Also, Rav Moshe doesn’t encourage the chassid to switch back to Nusach Ashkenaz. He permits. But in any case, that’s not an example of nispasheit. That’s how halakhah works.

    Last I didn’t accuse you of heresy — I accused you of hearing such an accusation in what I wrote, and getting too defensive to argue cogently. Use a word search on the page — I didn’t actually make such an accusation. I do think this notion of looking for what you think it “truth” rather than allowing the law to evolve naturally is not just a different derekh, but outside of how halakhah works, though. Wrong, not just different.

    -micha

  26. Bob,

    That’s a great question. Unfortunately, it’s over my head. Would require a good deal of research and thought, and I’m not sufficiently motivated to try. I’m sorry. But if someone else has thoughts, I am curious enough to want to know the results of someone else’s efforts.

    Gemar chasimah tovah,
    -micha

  27. Since you pressed, here’s my off-the-cuff impression… I think they’re near opposites.

    This current school is trying to minimize how binding halakhah is by reducing the set of authorities, and simplifying halakhah by making those remaining authorities far more binding than they really are.

    The Historical school tried to minimize halakhah by reducing the old books to the products of historical forces that no long apply.

    So, Bresclau tried to minimize the importance of Shas, while these Qaraites of Shas, or of the Rambam, increase the code’s importance — and assuming the ability to declare open season on everything not in it. Breslau erred on the side of the deconstructionists (taking the text in terms of my encounter with it), and this new phenomenon is erring on the side of the classical academic (thinking that original intent is more important than legal process).

    -micha

  28. In general, the motivating negi’os are the same, and thus so is the goal.
    But the philosophies are very different.

    Also, it makes a difference who you are speaking of. R’ Bar Haim doesn’t want latitude for its own sake, he is motivated by a Zionism that plays down everything that happened since the Yerushalmi so that galus can become “hayinu kekholmim”. R’ Marc Angel is more like the first chassid to clap his hands while singing on Shabbos — he is looking for ways to help the spiritual seeker find practices that help rather than get in his way. Then there are the majority, who are looking for ways to minimize the discord between where their parishioners want to be and observance. Perhaps dressed up in “we need to stop this irrational spread of chumrah-itis”, a reaction to that action.

    History remembers the Historical School as entirely the latter. I don’t know if that’s true. It is true of many of the others playing this game today.

  29. “I didn’t actually make such an accusation. ”

    Oh, come on.

    You said this: “Someone who davens from R’ Saadia Gaon’s (much shorter) siddur, omitting things said by all our communities for centuries, or to take a real case, from Nusach Eretz Yisrael as found in the Cairo Geniza, isn’t following the halachic process. The plurality caused by having a distinctly oral and fluid tradition is part of a stream down time; by leaving that stream, that dialog down the generations, one abandoned the core of Judaism.”

    I’ll highlight – “Someone who davens from R’ Saadia Gaon’s (much shorter) siddur, [etc] …isn’t following the halachic process…[and] abandoned the core of Judaism.”

    You are certainly accusing such people of abandoning the core of Judaism. And I don’t know how you define heresy or how to compare it with the notion of “not following the halachic process,” but would, in your mind, ‘not following halacha’ be better or worse than heresy? To me, I think both are pretty negative, loaded, and serious accusations to be making against any Jews. But to base it on a philosophical pilpul of a Rambam with no explicit source backing it up appears to be agenda-driven and not intellectually honest. Don’t worry, you don’t hurt my feelings, although indeed I am sensitive to this because I think it’s a big problem today (and a growing problem) when rabbis are slinging around accusations on other Jews of discarding halacha and the core of Judaism with flimsy (or no) basis or because of political interests, opinions, etc. We have seen very fine Jews in our day getting their books banned for ideas that are not against halacha.

  30. It is you who decided that “core of Judaism”, in terms of the limits of the halachic process, is a kefirah or apiqursus issue.

    Nor is this an empty ad hominem — I defined what I believe the limits of halachic process are, and why someone who would use R’ Saadia’s siddur, or to be more pointed about it R’ Ben Haim’s reconstruction of Nusach EY from snippets in the Cairo Genizah plus tidbits and hints in Chazal defies those limits. I don’t even think there are people actually davening R’ Saadia Gaon’s nusach; it’s a hypothetical.

    If you believe I’m wrong, the meaningful response is to explain why you believe it’s okay to overturn universal acceptance of Rav Amram Gaon’s siddur. And does this justification allow someone to rely on R’ Yossi haGelili and mix poultry with milk?

    Rather than arguing for a different notion of halachic process, one that allows reopening closed questions and yet not invite total anarchy, you responded to the ad hominem as though it was just about tarring people black, painting a scarlet “A” and other forms of “slinging mud” or intellectual dishonesty. I didn’t sling mud; I level-headedly (I thought) defined what I believe to be the limits of Orthodox halakhah. Certainly as it is reflected in the Tur, the Beis Yoseif, and any survey of shu”t.

    -micha

And your thoughts...?