In my talk at JOFA’s Fifth Annual International Conference on Feminism and Orthodoxy this year, I argued that there are certain basic underlying values that permeate halakha. Some may wish to regard them as meta-halakhic principles, but I believe them to be basic guidelines within normative halakha. One such guiding principle is that the Torah is a Torat Hayyim, a living Torah, meaning a livable system, as it says in Leviticus 18:5, “וחי בהם”(“…and he shall live by them”); moreover, the Torah’s “ways are the ways of pleasantness, and all her paths are peace” (Proverbs 3:17). This principle, intrinsic in rabbinic thinking, has determined the halakha in a great variety of legal contexts.
Thus, for example, the Sages, in clarifying what plants were to be used with the lulav (Lev. 23:40), rejected certain suggested identifications of plants that were prickly and spiky and would scratch the hands of whoever handled them, considering it not feasible that the Torah would demand the use of such plants since “her ways are the ways of pleasantness” (Sukkah 32b). Numerous examples of the use of this verse as a guiding principle are to be found in a variety of halakhic contexts throughout rabbinic literature. Indeed, in Gittin 59b, Abbaye expounds to Rav Yosef:
All the Torah is also mi-pnei darkei shalom, intended to engender peaceful relations, as it is written, “her ways are the ways of pleasantness, and her paths are the paths of peace.”
Perhaps this is one of the underlying, although unstated, reasons for the remarkably sensitive attitude of the Sages to the agunah issue. As the Rambam wrote in his Mishneh Torah Hilkhot Gerushin (13.29): “For the Sages directed us in this matter to be lenient and not to be stringent in order to free the agunah.” He continues:
Let it not be difficult in your eyes that the Sages freed such serious “ervah” (state of forbidden union) through the testimony of a woman or a slave or a bondwoman, or a gentile or on the basis of casual narrative (mesi’ah le-fi-tumo), or by hearsay, or based on a written document (u-mi-pi haketav) [all normally inadmissible as evidence D.S.] …[and this is]… in order that the daughters of Israel should not remain enchained (agunot).
The Sages showed similar compassion towards the “mamzer,” the illegitimate child, who through no fault of his own, is stigmatized by the halakha. They sought all manner of ways to alleviate his situation and remedy his status to permit him free union with whomsoever he wishes. Thus, according to Yevamot 80a, if a husband goes away leaving his wife alone for twelve months, and she gives birth at the end of this period, we assume that her pregnancy lasted twelve months rather than suspecting her of infidelity. And if this occurred even after twelve months, according to the author of Halakhot Gedolot, we posit that the husband returned secretly in the interim period and brought about his wife’s pregnancy, unless he makes a declaration to the contrary. So too, if a woman declares that her offspring is not of her husband, we do not accept her words, to rule the child as illegitimate (Yevamot 47b, Bava Batra 127a). And there is no such thing as an uncertain mamzer (safek mamzer). If there is an uncertainty as to his illegitimacy, he is not a mamzer (Kiddushin 76a).
Compassion and sensitivity are, then, the hallmarks of classical normative halakha, and that is why they were the catalysts for creative and innovative problem solving. In the words of the Rambam:
Thus you have learned that the laws of the Torah are not [intended to be] vindictive in [this] world, but [to display] mercy and charity and peace in [this] world (Hilkhot Shabbat 2:3).
Indeed this sensitivity expresses itself clearly in the halakhic use of the principle of “kevod ha-beriyot,” human dignity, that plays an important role in so many legal contexts. Again, in the words of the Rambam:
All these matters [are judged] according to how the judge views what is suitable for them and what the law requires. And overall, his deeds should be directed towards heaven, and let not human dignity be treated lightly in his eyes (Hilkhot Sanhedrin 24:10).
In my many years as an active congregational rabbi, this has become an ever more dominant element in my own halakhic thinking. I was deeply distressed when many years ago a friend told me the following tale. It was late afternoon on one of the minor fast-days. His wife, then in her sixth month of pregnancy, was feeling extremely weak and nauseous. He went to a prominent rabbi who lived close by and asked whether she was permitted to eat something or at least to drink some water. The rabbi noted that since the fast would be over in a couple of hours, she could wait till it ended. Shortly afterwards, she fainted and fell down. Fortunately she suffered no injury, and no damage was done. I was greatly angered at the rabbi whom I had no doubt had ruled incorrectly and not in accordance with the established halakha. Perhaps the husband had not explained himself sufficiently when he asked the question, but it is the duty of a rabbi to “interrogate” the questioner in order to get a full picture of the situation. The absence of any searching inquiry into the details of the case, the offhand reply, and most seriously, the lack of sensitivity to a pregnant woman’s plight, were, in my view, serious flaws in his halakhic praxis. Both the questioner and his wife were deeply religious people, as the rabbi well knew, and the question would not have been put to him had she not felt very unwell.
In later years I had many occasions to appear in rabbinical courts seeking to help litigants, bear witness, and smooth the way before the judges in complicated cases. Invariably, as we waited in the waiting-room to be called before the court, the usher would come in and shout out, “so and so for divorce proceedings,” “so and so for conversion” etc. This was not only the height of impropriety, but also, on occasions, deeply humiliating to the relevant parties. After a few such events, I wrote a letter to the then Chief Rabbi of Jerusalem, the late Rabbi Kolitz, a saintly man of deep Torah erudition and equally deep humanity, describing the situation, and demanding a change. Indeed, within a short while, new directives were given to the ushers, and such procedures were not repeated. But what still disturbed me greatly was the fact that an outsider—myself—had to be instrumental in bringing about this change. Why had not the rabbis and judges done this long before my intervention? Had halakhic thinking been accompanied by sensitivity to people’s feelings, such events would never have taken place.
More recently, I was approached by a young man for a loan from our synagogue gemach (free-loan society). “What happened? Why do you need a loan?” I asked him. “Well, I’m a ba’alteshuvah and recently moved into a new apartment. The previous occupants had been non-religious and probably placed both meat and milk on the marble kitchen counter. So I went to a rabbi to ask him how to make the kitchen kosher, and he told me I had to replace the counter completely. So I got a worker to do so, and when he ripped out the counter, many of the wall tiles behind it came off and cracked, and some of the pipes were broken. In the end I had to renovate much of the kitchen and found myself in considerable debt to the contractor, and I now need a loan to pay him off.” I thought to myself: Why did he not come to me? For there are three halakhic opinions as to the status of marble (or stoneware), and the one most commonly held is that stoneware does not absorb: consequently it did not become non-kosher though it had come into contact with both meat and milk. I personally would have taken the middle view, and, partly for educational reasons, and partly for psychological ones, advised him to “kasher” the counter by pouring boiling water over it, after cleaning it well with cleaning powder and not using it for twenty-four hours. This would satisfy his spiritual needs, without causing him unnecessary expenses, and be well in accordance with mainstream halakhic ruling.
Today the most stringent approach is, as it were, the easiest way out. It requires little thought and “you can’t go wrong,” or that is what some rabbis seem to think. In fact, they are quite mistaken. Causing financial loss unnecessarily, causing physical distress in cases not mandated by the halakha, and, albeit unwittingly, humiliating people, are all serious infractions of biblical law— issurei de-oraita.
These, and all too many additional examples that I could cite, have heightened my awareness of the urgent necessity for a much greater degree of sensitivity on the part of rabbis in all manner of interpersonal questions. Whether it be in cases of conversion, mamzerut, divorce, agunot or the other various areas of feminist concern, in all such cases, sensitivity and compassion must be the guideline directing the rabbi’s thought, urging him to find a humanitarian solution to the problem within the parameters of normative halakha. Thus when I was approached by a woman who had just lost her mother and wished to recite kaddish in synagogue, explaining that she was the only child of a sole Holocaust survivor, I readily acceded to her request relying, inter alia, on a ruling of the late R. Aaron Soloveitchik (Od Yisrael Yosef Beni Hai, Yeshivat Brisk 1993 p.101, sect. 32). Recently I was cautiously asked by an Orthodox family whether they could have a bat mitzvah celebration in their own house, with a service in which the bat mitzvah would read her portion from a Torah scroll within the framework of a family minyan. My reply was that there existed a halakhic precedent for such practice in Sefer ha-Battim of the great 13th century Spanish scholar R. David b. Samuel Kochavi (sect.6). The family was delighted that they could satisfy their desires, while keeping well within the parameters of classical halakha.
I believe that by making sensitivity and compassion the guidelines and by ruling in this manner, a posek (halakhic decisor) is following the mainstream of halakhic tradition, demonstrating the beauty of our religion and legal system, and sanctifying the name of God (mekadesh shem shomayim).