What I have to say may well surprise many who know me as a halakhic feminist. Over the past 33 years, I have been involved in numerous ways—both in theory and practice, in lecture and in print—with various aspects of the “Women and Halakha” issue. Many of the innovations that are taken for granted today, including women’s prayer groups, megillah readings, hakafot, recitation of birkhat ha-gomel and Mourner’s Kaddish, waiting for ten men and ten women before reciting barekhu, women on shul boards, and gemara shiurim for women, were already put in place at Harvard-Radcliffe Hillel in the early Seventies during my tenure as Orthodox rabbinic advisor. And many of these same innovations have been implemented at the Tiphereth Moshe Synagogue in Rehovot, where I have been active since 1974.
When I first embarked on this venture, into what was then—to a large degree—uncharted waters, I did so with a sense of confidence and commitment. I was confident in the inherent viability of the halakhic process and committed to the religious value of the greater involvement for women in Jewish ritual life. And I remain committed to these values to this day. But to be honest, after more than three decades as a halakhic feminist, I am now deeply perturbed. People who have read my articles know that they are firmly rooted in the writings and analysis of a large cadre of rabbinic authorities and scholars. The area of “Women and Halakha,” like any Torah endeavor, has to be treated seriously (be-koved rosh) and carefully analyzed with the rigor of classic halakhic methodology. Unfortunately, I sense today that my concern for the integrity of halakha is not necessarily shared by many in the Orthodox feminist movement.
The title of this paper is “Feminist Innovations in Orthodoxy Today: Is Everything in Halakha—Halakhic?” With your permission, I would like to sharpen the question: “What criteria should be used by centrist Orthodoxy for judging and perhaps setting limits on innovative behavior?” I believe that there are three decisive factors by which innovations need to be judged, and these are: halakhic validity, motivation and public policy considerations. While each deserves lengthy development, the shortness of this essay allows me to only focus on the first.
My position may be summarized as follows: The modern Orthodox community should not support innovations which are of seriously questionable halakhic validity; without halakha as our anchor, we will lose our direction and raison d’etre. Positions do not ipso facto become halakhically sound— simply because they are couched in halakhic terminology or posited by a person entitled “Rabbi.” Let me now expand upon these ideas.
Given that we are talking about a Torah-committed Jewry, we are dealing with a community whose actions should be bound and, therefore, judged by halakha. But as Hamlet says, “Ay, there’s the rub!” For it is critical that we understand what this central term “halakha” has traditionally meant, and how this understanding has recently come under attack.
In the absence of prophecy, we have no direct way of knowing what God’s will is. Classical Orthodoxy maintains, however, that the Divine Law-Giver gave us the tools to indirectly discover His will via the halakhic process. The latter is a person’s attempt at discovering the Divine will—the retzon haBoreh. The greater the scholar, the more adept at utilizing the process, the closer he or she will come to accurately revealing what God wants of us in a particular situation. Such outstanding scholars are called poskim (halakhic decisors). If one is not a posek and is incapable of utilizing the system, then one needs to turn to someone who is for such guidance. Not every rabbi is a posek: as in any field of scholarship, only those learned in the field are qualified to recognize the true expert and genius.
“Without halakha as our anchor, we will lose our direction and raison d’etre.”
The halakhic system and process yields the pesak halakha (halakhic decision) which is considered by tradition to be the closest human beings can come to approximating the Divine will. The utilization of the rules of pesak, as well as their application to a particular case, is based upon intellectual analysis. In addition, relevant precedent needs to be scrutinized. Admittedly, since we are dealing with human beings, what one considers to be “the proper” understanding of the rules and precedent is often a matter of discretion and subjective preference. One cannot always prove that one’s analysis or interpretation is the absolutely correct peshat (meaning of the text). Nonetheless, the analysis and understanding is always subject to peer review by other talmidei hakhamim and can be either confirmed or rejected—as with any academic discipline. In this context, the consensus view of the poskim (rov poskim) is often invoked as an indication that a certain approach or result is the more compelling view—even though majority is not always an absolute arbiter or guarantor for absolute truth.
But the most important element of pesak is intellectual honesty. As noted above, this process focuses on the rules and analysis. The pesak is the result of this analysis—wherever the chips may fall. As Hayyim Soloveitchik (AJS Review, 12:2, 1987) has written: “If law is conceived of, as religious law must be, as a revelation of the divine will, then any attempt to align that will with human wants, any attempt to have reality control rather than to be itself controlled by the divine norm, is an act of blasphemy and is inconceivable to a God-fearing man.” Within such a framework there should be few, if any, conscious and deliberately predetermined goals. The goals should not precede the pesak, but rather should become evident after the fact. Similarly, Rabbi Joseph B. Soloveitchik repeatedly noted that Jewish philosophy derives its legitimacy and validity from halakha, and not vice versa.
All agree that there is nothing improper about difficult life experiences motivating one to ask tough questions. The objection is to having these factors predetermine the answer! Indeed, Rav Lichtenstein (Tradition, 36:1, 2002) cites Rav Joseph B. Soloveitchik zt”l as maintaining that: “commiseration is acknowledged as a legitimate factor stimulating the posek’s quest for a solution, but it is barred as a component of the halakhic process proper, once that has been set in motion.” In addition, a talmid hakham needs to examine himself and his situation candidly, to ascertain that whatever cultural forces [he] perhaps absorbs, are filtered through the prism of his Torah personality—and do not simply seep through the pores of his semi-conscious being.
(For reasons beyond the scope of this piece, the only clear exceptions to these guidelines are situations of iggun and mamzerut. Here the halakha instructs the posek to be lenient, if at all possible. But these are the exceptions that merely prove the rule).
Recently, however, a new non-traditional approach has begun to emerge. This approach maintains that the halakhic rules are merely a means to an end. The ends are overarching religious goals that are independent of—and complementary to—the rules. One must first and foremost determine what these religious goals are— e.g., spirituality, closeness to God, kindness, family harmony, dignity, kevod ha-beriyot, etc. These goals are determined not by means of the halakhic process, but independently of it—utilizing the entire corpus of Jewish law and lore—as well as one’s cultural and communal values and creed (e.g., equality and autonomy). If the result of the halakhic process squares with one’s religious goals—fine. What however if it does not?
I see at least two approaches taking hold. The more radical view is prepared to reinterpret sources and “bend” the rules to yield a result that conforms to the desired goals. Now, there has always been room for hiddush (innovation) in halakha; but, as Hayyim Soloveitchik notes, it was subject to the posek’s honest belief and intellectual integrity that he had discovered a new correct understanding of the source. With the new contemporary approach I am describing here, striving to be loyal to the sources is not an imperative. As long as one can find some interpretation which neutralizes the problematic source or rule— dayeinu. In the hierarchy of determinative factors of pesak, argues this radical view, the religious goal often supercedes rules, text or precedent.
There is a more conservative variant of this approach that will look for a respected opinion in tradition which squares with the predetermined goal. And it will latch on to this position, even if it is a minority view or one that has been rejected in the past. The fact is that the Hazon Ish, and many of the Lithuanian school, would adopt a minority view halakha le-ma’aseh (in a particular practical case)—but only, if they were convinced—based upon expertise in learning and a breadth of knowledge—that it was intellectually the correct one—emet le-amitah. The approach I am describing, however, adopts the minority view not because of its intellectual correctness, but rather because “it gets you where you want to go.”
There are many religious feminist writers who clearly share my concern regarding halakhic validity. Their writings are well documented, and their analysis sound and rooted. Their outstanding scholarship has uncovered hitherto unknown sources in the halakhic literature which they have applied sensitively and creatively.
Unfortunately, examples of both the radical and more conservative variants of the non-traditional approach abound, as well. (Cases in point are the repeated attempts to include women in the minyan and serving as prayer leaders for devarim she-bi-kedusha, from which they are exempt.) Both variants claim to be halakhic— because they have utilized some source or another in halakha to buttress their position. However, as noted above, this is clearly at odds with traditional and classical methodology. For the classicists, this new approach draws the bulls-eye after shooting the arrows!
Modern Orthodoxy should welcome diversity and flexibility—but any innovations must be halakhically well-founded and solidly-based. For as Prof. Yeshayahu Leibowitz would challenge, we must always ask ourselves whether we are in reality serving the Divine will or our own.