On Orthodox Regard for Non-observant Jews (Thoughts on Kashruth Certification Policies), and

on Sociology Leading to Polemicism in Halakhah (on German Neo-Orthodox Responses to

Reform and Haredi Responses to Modernity)
Michael Makovi

Part One - On Orthodox Regard for Non-observant Jews: Thoughts on Kashruth Certification
Policies

A portion of this essay was already published as “Thoughts on Kashruth Certification Policies”,
The Institute for Jewish Ideas and Ideals, http://www.jewishideas.org/articles/thoughts-kashruth-
certification-policies.

I.

In my naivete, I have only recently become aware that the Israeli Rabbanut offers
hashgahat kashrut (kosher certification) only for those establishments which are closed on
Shabbat. Any establishment which is open for Shabbat will be denied supervision, no matter how
kosher their food may in fact be.
This policy is based on the halakha that one may not benefit from forbidden labor that
was performed on Shabbat. Therefore, the Rabbanut denies kosher supervision to establishments
open on Shabbat, since any food cooked on Shabbat is forbidden according to hilkhot shabbat
(although not hilkhot kashrut). Additionally, a hekhsher, if present, is assumed to condone the
Shabbat violation.
(My friend Moshe Gluck pointed out that actually, some do consider the cooking of a
Shabbat violator to be bishul aku”m, the cooking of a gentile, whose cooking is forbidden under
hilkhot kashrut, in fact, forbidden all week long! However, here, I don't think we have any right
whatsoever to be strict on such matters; Rabbi Jacob Reischer justified great leniency in the laws
of treifot, saying, "It is fitting that all the Jewish people be unified in the matter of eating and
drinking so as not to cause in their own midst a rift like that which separates them from the others
[the Gentiles]; we should not multiply separate groups." (Yore Deah 58, quoted by Professor
Menachem Friedman in “Life Tradition and Book Tradition” and “The Market Model and
Religious Radicalism.”) Moreover, we see the Rabbinut is not being strict on this opinion (viz.
that the cooking of a Shabbat violator is forbidden to be eaten all week long as bishul aku”m)
anyway: even if the restaurant per se (qua restaurant) starts keeping Shabbat, in which case the
Rabbinut in fact will proffer hashgaha, nevertheless the employees will all still drive cars, smoke
cigarettes, call on their phones, watch TV, turn on lights in their own personal homes, etc. That is,
even if the restaurant per se qua restaurant is shomer shabbat and receives hashgahat kashrut
from the Rabbinut, nevertheless, the individual employees are still violating Shabbat. But if
they're violating Shabbat, then their cooking, according to the strict opinion, is bishul aku”m on
any day of the week, even if the restaurant closes on Shabbat and receives hashgaha. Since the
Rabbinut will in fact proffer hashgahat kashrut once the restaurant per se qua restaurant keeps
Shabbat, irrespective of its individual employees' Shabbat observance, we see the Rabbinut is not
concerned with this opinion that the cooking of a Shabbat violator is bishul aku”m.)
Such a policy is, I believe, unconscionable. First, who is forcing the Orthodox Jews to eat
at the establishment on Shabbat? If the food cooked is forbidden on Shabbat due to hilkhot
shabbat, so let the Orthodox Jews avoid the establishment on Shabbat, and dine there only on
weekdays!
But moreover, this policy unfortunately begrudges the non-observant populace of
whatever mitzvot they may consider doing. If supervision is denied, then the establishment will
likely reason that if they are not kosher anyway, they may as well serve truly non-kosher food. On
the other hand, if they are offered supervision, then they may strongly consider becoming truly
kosher, even if only for the decidedly not lishma reason of increasing business. But a mitzvah is a
mitzvah, and we should not deny non-observant Jews an incentive to become more observant in
any way they may, even if the motive be ulterior.
When I discussed this issue with a friend, he said that the hechsher on restaurants is not
done for the good of the non-observant restaurateurs but rather, for the good for the observant
clientèle; therefore, there is no sense - according to him - in our seeking to encourage kashrut
observance of non-observant restaurateurs, for the hechsher is not done for their benefit in the
first place. This view, I cannot understand. If a non-Jew wished to get his restaurant or product
certified as kosher, then we might say this, but we cannot possibly say this of a Jewish – albeit
non-observant – restaurateur. Rather, we should seek to encourage kashrut supervision of even
non-observant restaurateurs' venues. Whether we shall encourage by appealing to Jewish tradition
and spirituality, or by appealing to the business they will gain, either way, it is our duty to so
encourage. And if they will remain open on Shabbat, so be it; keeping one mitzvah and not
another is better than keeping neither mitzvot. (I am especially puzzled by this friend's view - his
parochial concern for the observant - as he has also criticized Rabbi Samson Raphael Hirsch for
lack of concern for the nonobservant. Even if this accusation is accurate, I do not understand the
apparent double-standard. Moreover, we shall later see that this accusation against Rav Hirsch is
entirely baseless.)
In his Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel,
Rabbi Marc Angel recounts that Rabbi Uziel, following his giving a speech in promotion of
Shabbat observance, prepared to board a taxicab. In those days, gas rationing meant that every
taxi driver had his own particular day off, with each driver's particular day marked on his
window. This particular cab which Rabbi Uziel was boarding had a particular weekday – maybe
Monday or Wednesday or some such - marked on his cab as his day off, meaning that he did drive
on Shabbat. Rabbi Uziel was questioned: he had just promoted Shabbat observance, and now he
would take a Shabbat-violator's taxi??!! Rabbi Uziel replied, “I don't boycott any Jew and deprive
him of his livelihood just because he violates Shabbat”. Rabbi Uziel would take any driver's taxi,
regardless of his personal Shabbat observance. We love every Jew, and so we wish for them all to
be Shabbat observers; but on the other hand, we love every Jew, and do not wish to deny them
livelihood nor cause them embarrassment, even if some of them violate Shabbat. In the case of
kashrut supervision, there is the further consideration that granting supervision, irrespective of
Shabbat violation, will serve as an incentive for Shabbat violators to at least keep one mitzvah,
namely kashrut.
Many have been perplexed by the statement from the Gemara which we read before
every chapter of Pirkei Avot, “Kol yisrael yesh lahem helek l'olam haba”, “Every Jew has a
portion in the World-to-Come...”. Do not “the righteous of all nations have a portion in the World-
to-Come”? What, then, is the hiddush (novelty) in saying that all Jews (with the exception of
certain heretics and sinners) have such a portion, when righteous gentiles as well (with similar
exceptions) have such a portion? This difficulty is beautifully solved by Rabbi Samson Raphael
Hirsch's in his commentary on this passage: he says that “Kol yisrael”, “All of Israel” is said not
in contradistinction to non-Jews, but rather, in contradistinction to those Jews who reject their
Jewishness, and spurn the title of “Jew”. In other words, gentiles are beyond the purview of this
statement; obviously, gentiles do have a portion in the World-to-Come like and alongside Jews,
but our present concern is not with Jews versus gentiles, but rather with self-identifying Jews
versus non-identifying Jew. I seem to recall that Rev. Abraham Cohen's Everyman's Talmud
interprets similarly. According to this, there is tremendous value in identifying as a Jew; even if
one is not observant; anything he does to retain his identity as a proud and consciously Jewish
Jew is something to be valued. Can we possibly begrudge any Jew any extra mitzvah, even one
done for materialistic motives? How can we deny kosher certification to Shabbat-violating
restaurants?
 II.

I do not condone the approach taken by Conservative Judaism to driving cars on Shabbat.
Halakhically, their reasoning is obviously fallacious; we cannot build the Mishkan on Shabbat,
but we can drive to synagogue on Shabbat??!! Moreover, the Conservative – so far as I know –
made no effort to convince their congregates to relocate themselves to live within walking
distance of a synagogue, or to found smaller neighborhood minyanim, or to become even
generally Shabbat observant. They ignored these proper responses and proceeded immediately to
a heter on driving on Shabbat. In fact, the congregates should have been told to stay home and
observe Shabbat with their family, and remain Jewish and observant even without ever attending
synagogue at all.
But now that the erroneous ruling has been made, I am willing to concede that perhaps,
based on what we saw from Rabbi Hirsch and Rev. A. Cohen above on the value of Jewish
identity, that for an individual Conservative Jew, if his Jewish identity truly does depend on his
going to synagogue on Shabbat via car, it is better for him to violate Shabbat and remain a Jew,
than it is for him to stay home and assimilate. Similarly, if a person can either assimilate into non-
Jewishness, or keep kosher by violating Shabbat, it is surely better for him to at least keep
kashrut, one mitzvah, even at the cost of another, viz. Shabbat. (This is assuming that prior to
keeping kashrut, one was keeping Shabbat, and keeping kashrut now requires a newfound
violation of Shabbat. In other words, Shabbat and kashrut are mutually exclusive; this is not a
likely scenario, but let us assume it for now, in order to make an a fortiori.)
For one, this situation would be an “eit la'asot lashem”, i.e. abrogating one law for the
sake of saving another law; one should violate Shabbat in order to save his overall Jewish
identity, if this is necessary. The Gemara tells us to save a person's life on Shabbat, by violating
Shabbat, in order that he keep many Shabbatot in the future. Following similar logic, we should
surely have him violate his own Shabbat himself in order that he keep many mitzvot in general. (I
said “The Gemara tells us save a person's life on Shabbat...” I have discovered many sources
applying this to Jews and non-Jews alike. In “Must read blog”, my friend Rael Levinsohn says,
“In particular see his [i.e. my, Michael Makovi's] post on Saving Gentiles on the Shabbat; it is the
most thorough collection of sources on this topic I have seen to date.”)
Moreover, we should realize that even though halakhically, Shabbat is more severe and
imperative than kashrut, nevertheless, many laypeople do not realize this. There are many who
would never dare consume pork, but who nevertheless violate Shabbat without compunction.
Professor Zvi Zohar, in his lecture, “The Role of Values and Outcome in the Halakhic Process:
The Sephardic Approach” makes this point. Professor Zohar discusses an actual halakhic situation
which faced Rabbi Joseph Messas in Algeria, She’elot uTeshuvot Mayyim Hayyim, vol. 1, #143,
in which the populace of his town strictly kept kosher, but did not observe the Shabbat. The
butchers even did not observe Shabbat, even as they did observe kashrut, and Rabbi Messas had
to find a way to declare the butchers trustworthy in kashrut, even though a Shabbat violator is
ordinarily considered untrustworthy. Had the butchers been declared untrustworthy, and their
meat non-kosher, the populace would have reasoned that if the kosher meat is really not kosher
anyway, they may as well eat true non-kosher food. Rabbi Messas had to avoid this, and so he
had to justify the trustworthiness of the Shabbat violating butchers, putting kashrut over Shabbat
observance. Rabbi Messas had to legitimize Shabbat violation in order to strengthen kashrut
observance, and his example is instructive for us.
Thus, peoples' non-halakhic psychological feelings – right or wrong – must be
considered, and sometimes, we must uphold a lesser halakha, and violate - or allow violation by
others of - a weightier and more severe halakha, solely because the lesser halakha actually – and
erroneously - carries more weight in people's eyes. If our goal is to save Orthodoxy, we must
appeal to the laity, and this means appealing even to their misconceptions. (Although, if at all
possible, we should obviously educate them and convince them to dispose of their
misconceptions.) For this reason, we very likely have an imperative to emphasize kashrut in
Israeli restaurants, even if this will apparently condone Shabbat desecration. For most individuals,
the kashrut of food is more “Jewish” than Shabbat observance, whether this is halakhically
correct or not. Therefore, if we wish to strengthen Jewish identity, we must emphasize and
concentrate attention on whichever mitzvah carries the most weight in people's eyes, even if
technically, more important mitzvot exist. Our goal is not yet to strengthen Jewish observance
across the board, but rather, our goal is to target and strengthen those particular aspects of Jewish
identity and observance which will ensure the greatest amount of stability and success in the
future.
This is not to suggest that I actually believe that granting hekhsherim to Shabbat-violating
restaurants will in fact appear to condone their Shabbat violation; I am only assuming that this is
true, for the sake of argument. Rather, surely everyone is aware that kashrut supervision only
attests to the ritual kashrut of the food itself, and not to anything else. In fact, in the case of
Agriprocessors, we see that the blatant and cruel mistreatment of workers and violation of Federal
law was no impediment to the ritual kashrut of the food itself, and everyone understands this, and
everyone understands what it says about Orthodoxy today - v'ha'meivinim yavinu. (In particular,
apposite the Agriprocessor's method of shackle-and-hoist, see Rabbi Yom Tov Schwarz's Eyes to
See pp. 115-117; I quote the passage in full in my “Eyes to See: Animals' Suffering”.) So in truth,
granting hekhserim to Shabbat-violating restaurants will not appear to condone their Shabbat-
violation in any case.
Now, in actual fact, as one of my rabbis pointed out, there are indeed certain immoral acts
which the presence of a hekhsher will appear to condone. To make an extreme example, if a
restaurant had racist white supremacy slogans posted all over its walls, then obviously no
hekhsher should be granted. Similarly, many today are claiming – rightly, in my opinion – that no
hekhsher should be granted to establishments that treat their workers wrongly; as Rabbi Hirsch
and his descendants – the Breuer rabbis – were wont to say, “Glatt kosher? Glatt yoshor!”.
(Yoshor is ethical propriety.) Of course, the line is gray; my rabbi said that his father-in-law, a
prominent Jews' College-educated Australian Modern Orthodox rabbi, refused to grant
certification to an establishment that hosted womens' stripping; he didn't want people to assume
the rabbis condoned this. But in the end, the fact is clear that technical food kashrut and various
non-kashrut-related infractions, ethical (such as violating workers rights) and ritual (such as
violating Shabbat) alike, of the restaurateurs have no connection, and but for the fear – sometimes
warranted and sometimes not - that patrons will wrongly assume that the rabbis condone the non-
kashrut infractions, there is no basis to draw such a connection. I believe we should indeed be
strict with moral infractions – and so treating workers improperly should result in a denial of
supervision – but in our case of Shabbat, I believe it clear that no one today will assume that the
rabbis condone the Shabbat violation. First, everyone knows how punctilious Orthodox Jews are
with Shabbat; the numerous protests in Israel regarding Shabbat violation leave no mistake in
anyone's mind. Second, Shabbat violation today has no moral sting to it today, and so it is not
something at the forefront of people's minds, which they are concerned about the rabbis'
condoning or condemning. This fact is lamentable, but a fact it remains; whereas in previous
times, violating Shabbat indicated a lack of belief in G-d – and thus a lack of basic moral
rectitude – today, violating Shabbat is seen merely as a violation of a technical ritual or ceremony,
with no ethical or moral ramifications. Rabbi Yaakov Ettlinger long ago said as such; people
today, he said, are wont to violate Shabbat and still consider themselves faithful Jews in good
standing, not only ethically but even religiously. These people, when they violate Shabbat, have
no intent in desecrating the Jewish religion or denying G-d, etc. This fact is lamentable – we
should rather wish people truly realized what Shabbat means – but a fact it remains; since
Shabbat is seen merely as a technical ceremony, people are not so concerned whether the rabbis
appear to condone it, and so they likely will not even care to notice whether the restaurant is
kosher despite violating Shabbat. On the other hand, ethical violations – thank G-d – are at the
forefront of people's minds, and a restaurant that is kosher despite mistreating its workers, rightly
and properly fills people with disgust.
Even if the restaurants were today keeping Shabbat and violating kashrut – which is not
the case – and moreover, if keeping kashrut meant violating Shabbat – which is not the case – it
would still be prudent for us to emphasize kashrut over Shabbat if kashrut carries more weight in
people's eyes as far as Jewish identity goes. And of course, in actuality, the Shabbat-violating
restaurants will violate Shabbat with or without hekhsherim, and granting the hekhsher will not
appear to condone their Shabbat-violation, so actually, this is not a question of upholding one
mitzvah by violating another. Similarly, for Rabbi Messas, the people and the butchers would
violate Shabbat whether or not the meat was kosher, so it was obvious that kashrut had to be
emphasized over Shabbat observance. Since, in reality, the restaurants violate Shabbat in any
case, how can we possibly tell them to violate kashrut as well, when we could have them keep
kashrut even as they continue to violate Shabbat? Should we begrudge them one mitzvah just
because they break another?

III.

On the topic of solicitude for the non-observant, it may be relevant here to also quote,
with some slight editing, what I wrote elsewhere, in reply to Lilit Marcus's “The Kotel and the
Wall”, regarding whether the Kotel should abide by Orthodox halakhic rules of sex-separation or
not. I'll try to avoid a debate as to whether the mehitzah is actually required by halakhah – let's
just, for now, assume it is - and I'll just say the following:
First, if the male side is exclusively male, and the female side exclusively female, I think
that it is difficult to say which side is the one being discriminated against, on these grounds alone.
Perhaps the men are the ones being discriminated against! However, we then realize that the
women are (as far as I know) not allowed to read from the Torah or sing as loudly as men. This,
and precisely this, is where the discrimination lies. Now, in a private synagogue, the congregation
can set whatever policies it desires, and women can simply choose not to frequent that
establishment, but in a place that is publicly owned by the Jewish people, I see no grounds
whatsoever to give preference to men, because the women own it no less than do the men, and the
women have as much say as the men do. If the sexes must be separated, so be it, but it should be
separate-but-equal; whatever the men are allowed to do, the women should be allowed to do as
well, without any limitation whatsoever. If the men are distracted by singing women, they can
1. Rely on the Orthodox-Jewish Turkish, Greek, Egyptian, Syrian, and Yemenite permission
 to listen to women sing; so far as I know, the only Orthodox rabbis who still uphold the
prohibition even today to listen to women sing, are Ashkenazim and Haredim; Sephardi
and Mizrahi Orthodox non-Haredi rabbis tend to be extremely lenient regarding this. See
Rabbi Marc D. Angel's Foundations of Sephardic Spirituality: The Inner Life of Jews of
the Ottoman Empire. There, on page 125, discussing the singing of Ladino (Judeo-
Spanish) romances, with their often emotional if not downright sensual lyrics, Rabbi
Angel says, inter alia,
Although there were religious pietists who objected to singing
love songs, the romances were very popular throughout all strata
of Sephardic society. Men and women often sang these songs
together. It was not unusual for women to sing solo parts in the
presence of men. People participated in the singing and enjoyed
the songs in a natural, easygoing way.
We then turn to footnote 6, marked at the end of this paragraph, and found on page 186; I quote
this in full:
I [Rabbi Angel] was raised in the Sephardic community of
Seattle, Washington, and well remember our many family
gatherings where romances were sung. Jews of great piety sang
right along with with those of lesser piety. I do not remember
anyone ever objecting to the singing of love songs by men and
women. In the early 1980s, Haham Dr. Solomon Gaon, himself a
Judeo-Spanish-speaking rabbi, taught classes in Sephardic
folklore at my Congregation Shearith Israel in New York City. I
well remember him singing love songs, enthusiastically and
nostalgically. Both of us participated in a program of Sephardic
culture sponsored by the Hebrew College of Boston. A female
soloist sang a selection of romances, after which Haham Gaon
not only applauded loudly but rose to speak in praise of the
singer for her beautiful rendition of the songs. [Emphasis mine.]
Haham Gaon, who served as chief rabbi of the Spanish and
Portuguese Congregations of England and as head of the
Sephardic Studies Program of Yeshiva University in New York,
was a very prominent Orthodox Sephardic rabbi and a man of
impeccable piety.
 See also Rabbi David Bigman's "A New Analysis of "Kol B'Isha Erva" and Rabbi
Avraham Shamma's "Kol b’Isha with a Current Perspective". Both of these two articles
deal extensively with the formal legal underpinnings of permitting men to listen to
women sing. But apposite Rabbi Angel's testimony regarding Haham Gaon, we might
quote a salient passage of Rabbi Shamma's:
From my childhood [under his parents, Syrian Orthodox-Jewish
emmigrants to Israel] until my adulthood I do not remember
closing my ears, nor was I instructed to do so, and I heard the
best music, both from the Orient and the West, even when
performed by female singers, and even at live performances.
Apparently, the principle is based on the fact that there is no
intent here for some forbidden pleasure. [People] have testified
to me that there were Torah-observant Jews at the performances
of the famous Egyptian singer, Umm Kulthum [considered by
some to be Egypt’s most famous and distinguished twentieth
century singer], and even more than that, they listened to her
songs and learned them well, even though some of the songs had
inappropriate words. Prayer leaders (among them scholars) used
her tunes [in the prayer services], until this day, with the
approval of halakhic authorities, who knew quite well the source
[of these tunes].
2. Wear earplugs;
3. Simply go somewhere else.
Alternatively, perhaps there should be a third section of the Kotel, a mixed-sex area. That
way, everyone could daven according to his or her own preferences. And if mixed-sex davening
violates halakhah, then we should realize two things:
1. It is the non-Orthodox daveners who will put themselves into this situation, by willingly
davening in the mixed area. There is a halakhic principle, "Let the wicked stew in their
juices", meaning that if sinners want to hurt themselves by sinning, and no one else, then
we let them. So if the non-Orthodox want to daven in the mixed-sex area, the Orthodox
have ample halakhic basis to let the non-Orthodox do so without interference. Even if
mixed-sex davening is prohibited, there is still a strong basis to permit it here.
2. Perhaps it is worthwhile to permit a relatively minor infraction - viz. mixed-sex davening
- if it will lead to greater unity in the Jewish world. Perhaps a small concession like this
 would go a long way towards mending some of the rifts in the fabric of Jewish
peoplehood.

IV.

We mentioned in passing Rabbi Hirsch's apparent disregard for non-observant Jews.

Many erroneously believe that Rabbi Hirsch's policy of Austritt, separation from the non-
Orthodox community, has its basis in a supposed rejection by Rabbi Hirsch of all non-Orthodox
individuals. Thus, Rabbi Howard I. Levine, in his “Enduring And Transitory Elements in the
Philosophy of Samson Raphael Hirsch” writes,
In Hirsch's thinking the relationship of the individual to his mission as an
Israelite is an all-or-none matter. Either you are completely committed to it and
are thereby part of it, or you are completely separate and cut off from it. He is
completely unsympathetic to those who have deviated from practical Judaism.
His practical policy of separation from the larger Jewish community which
included non-observant elements, is in full accord with his view of the mission of
the Jew. The individual must identify himself fully and actively with the mission
of Israel and the Law in its totality, in order to be considered part of Israel. There
must be a complete and absolute obedience to begin with.
But this is entirely false. Rabbi Shelomo Danziger, in his “Clarification of R. Hirsch's Concepts -
a Rejoinder” replies to Rabbi Levine, saying,
It is simply untrue that his [viz. Rabbi Hirsch's] policy of communal
separation was based on the fact that the larger community "included non-
observant elements." The By-Laws of K'hall Adath Jeshurun" of New York,
patterned on those of R. Hirsch's Frankfurt Community, provide that: "Any
Jewish person shall be eligible to apply for membership, unless, contrary to
Religious Law, said person shall not have been circumcised, and/or shall not be
willing to have his or her son(s) circumcised, and further, unless said person is
married contrary to the Jewish Law." It is only when speaking of offices of the
Congregation that the By-Laws provide: "Any person who carries on a business
on the Sabbath or Holy Days, or desecrates these days in any other way, any
person who has been proved to keep a trefah household or to be ochel trefah, or
who denies the fundamental principles of traditional Judaism shall be considered
unfit for any office, including, but not limited to, that of trustee." But he is fit for
 membership in the Community.
It was only when the official policy of a Jewish community was one of
non-observance or denial of the Torah that R. Hirsch demanded separation from
such an un-Jewish community. R. Hirsch insisted that the more we engage in
friendly relations with these persons, the more it behooves us to separate
completely from the communal system which is an organizational expression of
sectarianism and heresy. (Collected Writings, Vol IV, pp. 339-40.)
Similarly, Rabbi Dr. Yehuda (Leo) Levi, in “Rabbi Samson Raphael Hirsch – Myth and Fact”
writes,
Faced with the unbelieving Jews of his time, including Reform rabbis
and their followers (Rabbi Hirsch, Collected Writings 6:206-7.), he applied
Rambam's ruling concerning the descendants of the Karaite heretics. Rambam
declared that, because of their upbringing, they were to be considered as acting
under duress and therefore blameless; they were to be brought back to the
national fold and the Torah "by words of peace. " (Rambam, Hilkhot Mamrim
3:3.) This, declared Rabbi Hirsch, was the way to approach our wayward
brothers even today. (L. Levi, Tradition 9:3, pp. 95-102 (Fall 1967).)
But while he maintained peaceful and friendly intercourse with
individuals who had strayed, he did not go to the extent of compromising any of
the Torah's principles. Regarding these, he was absolutely firm, and, significantly,
this led to his rejecting any cooperation with organizations that challenged the
Torah's authority. In his opinion, an organization was defined not by its members,
but by its program. Thus, an organization might be heretical, and so would have
to be ostracized, even though all its members and leaders might be blameless and
were to be drawn close - as private individuals.
Rabbi Hirsch ruled that when a Jew is confronted with a choice of
joining or not joining a Reform congregation, he is forbidden to join, since such
voluntary joining is tantamount to legitimation. This principle was called Austritt
(secession), and it stands whether or not the Reform congregation provides for
the religious needs of Orthodox members, for it is based on the prohibition of
endorsing heresy, not on the likelihood of eventual interference with the
member's practice of Torah law. (Rabbi Hirsch cited in this context Rabbi
Tarfon's statement: "Even if a man is chasing after one to kill him, or a snake to
bite him, he may enter a house of idolatry (to save himself, but not a house of
 heretics J." (Coll. Writings 6:203, quoting Shabbat 116a.)
Rabbi Hirsch considered the Reform leaders to be heretics, saying (Letter to Solomon Trier in
Guttachten Uber die Bescheidung; English from “R' Shlomo Yehuda Rapoport (Shir), Champion
of Jewish Unity in the Modern Era”, by Chaim Landerer, p. 123; Hebrew from Shemesh Marpeh
as quoted by Landerer, ibid.),
The heart pours blood at the appearance of this complete breach in the sanctuary
of God; in the face of this gaping wound in the essence of Judaism. … For these
men because they have excluded themselves from the community, they have
renounced the principles of faith and are not counted among the congregation of
Israel.
‫ למראה הפצע הפעור בגוף היהדות … כי האנשים ההם‬,'‫הלב שותת דם למראה הקרע במקדש ה‬
‫לפי שהוציאו את עצמן מן הקהל כפרו בעיקר ואינם נמנים בתוך קהל ישראל‬
As Landerer explains (ibid. p. 122),
Hirsch expressed sorrow over the division that was forming within the Jewish
people. But he believed that the Reform, by their actions and statements, had
already separated themselves from the Jewish people.
But all the same, one must realize that almost the entire Hirschian corpus was written not only for
the sake of those who were already Orthodox, but even for those, or maybe even especially for
those, who were not Orthodox. His Nineteen Letters begins with a passionate letter from a
fictional Reform/Haskalah-oriented young man, detailing every grievance and complaint he has
against traditional Torah-Judaism, and the entire rest of the book is Rabbi Hirsch's pseudonymous
reply. His next book, Horeb, was dedicated and addressed to “Israel's thinking young men and
women”, with apparently no mention of whether these young people were Orthodox or not. We
can thus understand Landerer when he continues (ibid. p. 123),
Hirsch's battle was only with the ideologues of the Reform movement, whom he
considered the real heretics. Regarding those who unwittingly after the Reform,
Hirsch followed his teacher, the Aruch laNer, and ruled that these have the status
of Tinok Shenishboh (lit. a captured child. See Mishneh Torah, Mamerim 2:2-3)
and are thus not responsible for their actions, and all efforts should be made to
bring them closer to Orthodoxy.
Thus, whether or not Rabbi Hirsch's Austritt is still proper today, or even ever was in Rabbi
Hirsch's own time – this is a topic to which we shall return in a future essay - nevertheless, no one
can argue, as Rabbi Levine did, that Rabbi Hirsch's policy was motivated by a lack of
brotherhood and concern for non-observant Jews. Rabbis Danziger and Levi and (Rabbi? Mr.?)
Landerer quite correctly point out that Austritt applied to institutions and organizations and
ideologues, not to individual Reform laymen. Indeed, regarding none other than Rabbi Weinberg
– whose tolerance we have already seen, and which can be further seen in the incredible letters
written by him ("Scholars and Friends: Rabbi Jehiel Jacob Weinberg and Professor Samuel
Atlas") – Rabbi Simcha Krauss writes (“Between the Yeshiva World and Modern Orthodoxy: The
Life and Works of Rabbi Jehiel Jacob Weinberg, 1884–1966 by Marc B. Shapiro”),
His [Rabbi Weinberg's] attitude to Reform may be summed up by paraphrasing
Voltaire: “To Reform as Reform, nothing; to Reform as individuals, everything.”
Rabbi Hirsch's own approach toward non-observant Jews - as is exemplified in his Nineteen
Letters, which was written especially for non-Orthodox Jews - was the same as that of his teacher,
Rabbi Yaakov Ettlinger. In fact, Rabbi Ettlinger was the first to pioneer the classification of non-
observant Jews today as tinokot she'nishbu, Jews who are (metaphorically) taken captive by
gentiles as infants, who do not know any better. For more halakhic details on this policy, see:
• Rabbi Yehuda Amital, “A Torah Perspective on the Status of Secular Jews Today”;
• Rabbi Dov Linzer, “The Discourse of Halakhic Inclusiveness”;
• Rabbi Yom Tov Schwarz, Eyes to See, “Part VI: Relations with Non-Observant Jews”
(pp. 213-248), including chapters:
◦ 19: “Children of Non-Observant Jews are Considered Unintentional Sinners”, pp.
213-222;
◦ 20: “It is Forbidden to Hate the Non-Observant Jews of Our Time”, pp. 223-237;
◦ 21: “One Who Condemns the Non-Observant Jews of Our Time Brings Indictment
Against Himself”, pp. 238-248.
The titles of these chapters testify of course to their contents and Rabbi Schwarz's theses therein.
Some of the other sections, among others, include, “The Severity of Sins Committed Against
Another Person” and “Relations with Non-Jews”. Already on page 17, we read, “The distinctions
that are found in the Talmud are between a Jew and an akum (heathen), whose societal standards,
ethics and morality were so low as to be almost non-existent, and in no way has any bearing on
the non-Jews our time, as has already been noted by the Gedolei Ha'Aharonim (great halakhic
authorities of the recent past).” From this brief quotation, one can accurately gauge the spiritual
grandeur of this book. Rabbi Dr. David Berger, in his “Jews, Gentiles, and the Modern Egalitarian
Ethos: Some Tentative Thoughts” lists many recent gedolim who have ruled Meiri as halakha,
and apparently, we may add Rabbi Schwarz to the list. Rabbi Schwarz's analysis of contemporary
non-observant Jews is part of his address of failings he perceived in contemporary Orthodoxy,
based on that which he – by contrast - witnessed in pre-War Poland. That is, between pre-
Holocaust Poland and the modern era, Rabbi Schwarz perceived a serious rift in the social and
religious characteristics of Orthodox Judaism. This is a topic to which we shall return in the
future, in the previously promised sequel to this present essay.

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Jewcy). http://www.jewcy.com/post/kotel_and_wall#comment-33722.
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Shamma, Avraham. "Kol b’Isha with a Current Perspective". Kolech: Hebrew original:
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Weinberg, Yehiel Yaakov, "Scholars and Friends: Rabbi Jehiel Jacob Weinberg and Professor
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Zohar, Zvi.“The Role of Values and Outcome in the Halakhic Process: The Sephardic Approach”,
Merkaz Moreshet Yisrael, http://www.merkaz.com/lectures.htm
Part Two - Sociology Leading to Polemicism in Halakhah: on German Neo-Orthodox Responses
to Reform and Haredi Responses to Modernity

I.
In “The Uses of Tradition”, Professor Marc Shapiro notes,
The halakhist would never agree that he has taken liberties with the sources
because of religious or social pressures. However, the historian tries to explain
trends and understand why it is only in this particular generation that metzitza
[oral drawing of blood, one the steps in the process of circumcision] assumes
such central importance. Furthermore, as Bernard Bailyn has so correctly noted,
"the very possibility of historical explanation lies in the differences between the
perspective and range of knowledge of participants and those of the historian."
[Footnote: See Gordon S. Wood, "The Creative Imagination of Bernard Bailyn,"
in James A. Henretta,et al, eds., The Transformation of Early American History
(New York, 1991), p. 41. My thanks to Dr. Edward S. Shapiro for bringing this
valuable essay to my attention.] It is the historian who views the halakhist as
having been pressured by forces beyond him, and often not even apparent to him,
into a sometimes radical reinterpretation of sources, all in order to justify what in
his mind is essential to prevent the breakdown of traditional Judaism. … Unlike
the historian, the halakhist believes that every decision rendered has always been
inherent in the traditional texts, just waiting to be derived. Even when the
halakhist admits that he is stretching the sources in order to find some
justification for a questionable practice (limmud zekhut) - always a noble
endeavor - as long as sources can be found the halakhic system has not been
undermined in any way. This basic difference in outlook can be seen again and
again when comparing the approaches of the halakhic historian with that of the
posek and can be illustrated most vividly by looking at Haym Soloveitchik's
description of the Tosafist atttude towards martyrdom. [Footnote: "Religious law
and Change: The Medieval Ashkenazic Example," AJS Review 12 (1987), pp.
205-221.] According to Soloveitchik, professor at Yeshiva University's Bernard
Revel Graduate School, there were occasions when contemporary circumstances
led the Tosafists to create a new legal standard and in so doing were responsible
for a radical new development in halakha. Soloveitchik's method of describing
 halakhic development is shared by such leading scholars as Katz, Ephraim
Urbach, [Footnote: Katz, however, has called attention to a difference between
his approach and that of Urbach; see Halakhah ve-Kabbalah, pp. 344ff. Whereas
Urbach speaks of social conditions forcing the rishonim to issue real heterim
[novel leniencies], Katz views the rishonim as doing nothing more than providing
a halakhic imprimatur for what was already common practice. Soloveitchik's
approach is in line with that of Katz.] and Yitzhak Gilat, all of whom identify
with Orthodoxy, and it is this method which is rejected as factually incorrect, and
even heretical, by those who do not recognize any real history or sociology of
halakha. The dispute is, of course, not new and was one of the basic points of
disagreement between R. Samson Raphael Hirsch and R. Zechariah Frankel, and
to a lesser extent Hirsch and R. David Hoffmann. [Footnote: Yonah Emanuel, in
his review of Yitzhak Gilat's Perakim be-Hishtalshelut ha-Halakhah (Ramat
Gan, 1992), in Ha-Maayan 33 (Tishrei, 5753), pp. 42-49, correctly senses that
the latter's approach follows in the footsteps of Frankel, and therefore Emanuel
disqualifies his book from the realm of faithful Torah scholarship. Gilat, ibid.
(Tevet, 5753), pp. 51-57, replies to a number of Emanuel's specific points but
does not deny that his approach is similar to that of Frankel. The implication is
clear, namely, that the realm of faithful Torah scholarship is much wider than
what Emanuel believes it to be.]
As an aside, however, it appeared to me personally as I read Professor Shapiro's words,
that the academic historians might be missing another possibility. According to Katz et. al,
sociology and history often entirely forced the hands of the halakhists. I am inclined to disagree
with those scholars, or at least to humbly posit another possibility. For while I am sure that
history and sociology strongly influence the poseqim, I doubt that the poseqim are entirely
spellbound against their wills. More likely, I suspect, history and sociology strongly influence
them towards a certain tendency, but not inexorably. This may perhaps be the view of Professor
Urbach; while the other scholars see the poseqim merely as legitimating already extent
divergences from classical halakhah, Professor Urbach sees the poseqim as being necessitated by
history to issue real heterim – thus, the laity did not begin practicing the heter until after the
poseq issued it. I then saw that Rabbi Yitzchak Blau (“Orthodox Judaism”) makes a point almost
exactly the same as my own: he notes that Professor Jacob Katz posits that the Hazon Ish's
textuality is a sign of modern Haredi anti-traditional modernity, but that Professor Benjamin
Brown suggests that perhaps the Hazon Ish was simply influenced by a sincere internal and native
textual attitude akin to the Vilna Gaon's; the latter, like the Hazon Ish, also overruled minhagim
based on elite textualism. According to Professor Brown, the difference would be that whereas in
the Vilna Gaon's time the anti-traditional products of elite textualism were ignored by the
community, in the Hazon Ish's time, these same products were enthusiastically taken up by the
community. Rabbi Blau then states,
Brown’s point has widespread significance and should help correct a professional
bias found among historians. Some historians tend to explain almost all religious
decisions as responses to the problems of the day. They do not seriously entertain
the idea that internal religious ideas and ideals can exert impact, and in some
cases exclusive impact. This often leads to a distorted or limited analysis.
Christine Hayes has noted a parallel phenomenon in a different area of Jewish
Studies. One objective of her book is to “correct a tendency in some talmudic
scholarship to posit historical and extra-textual reasons for halakhic differences
between the two talmuds without first attending to a whole series of internal
reasons for difference.” An exclusive focus on rabbinic thinkers as responding to
foreign challenges obscures part of the picture.
In his Judaism: Law and Ethics, Rabbi Yitzhak (Isaac) Herzog offers many nuanced and
learned analyses of the relationship between Judaism and Hellenism in Israel (Palestine) during
the period spanning Alexander the Great's conquest until the compilation of the Mishnah by
Rabbi Yehuda ha-Nasi. In his“The Ban Pronounced Against Greek Wisdom”, we read (Judaism:
Law and Ethics, p. 191),
The the anti-Greek campaign discussed in my article must have been of a
qualified and considerably restricted nature, is likewise evidenced by the act that
… the ancient rabbis, in fact, despite the ban, long retained a great admiration for
the beauty and music of the Greek language.
And in his “Philosophy in the Talmud and Midrash”, we read (Judaism: Law and Ethics, pp.
96f.),
Generally speaking, the gentile philosopher is referred to in terms suggested of
esteem. … While the term ‫ חכם‬hakham – a wise man – is invariably applied to
distinguished savants, Jews or otherwise, ‫ – פילוסופים‬philosophers – is a word
restricted to non-Jews. The gentile thinker who, finding no satisfaction in the
idolatrous faith of his fathers, sought for light and truth in philosophy was
regarded with marked favour, but the son of Israel who turned to independent
metaphysical speculation for the solution of what Pascal calls 'the great questions'
 would be viewed as belonging to to those who had placed themselves outside the
pale of Judaism, ‫חיצונים‬, or sometimes ‫מינים‬.
Elsewhere – especially further in “Philosophy in the Talmud and Midrash”(pp. 103f.), and again
in “The Attitude of the Ancient Palestinian Teachers of the Torah Towards Greek Culture: 1”
(Judaism: Law and Ethics, pp. 197f.) - Rabbi Herzog shows exactly why the Palestinian rabbis
would have valued the contributions Hellenism offered while, all the same, feeling these
contributions were at best redundantly superfluous if not actually inferior to what Judaism already
offered. Additionally, as Rabbi Herzog notes (“The Attitude”, ibid., p. 197),
Hellenic culture in its Eastern garb did not, it should be borne in mind, always
place in the forefront the Platonic system of philosophy with its idealism, its
doctrine of the immortality of the soul, and its pure, lofty conception of God[; …
w]hat it often propagated instead was Epicureanism at its worst, a gross
materialism which was the negation of all spirituality, of a future life, of divine
providence, a system which set up base pleasure as the goal of life. Greek culture
in this shape was assuredly calculated to repel rather than attract the exponents of
Judaism in the Holy Land.
Based on all this, in the end, his final conclusion is very much a sociological-historical one: in
“The Attitude of the Ancient Palestinian Teachers of the Torah Towards Greek Culture: 3”, we
read (Judaism: Law and Ethics, p. 207),
[W]e would, I think, be fairly justified in assuming that in proportion as the
[Jewish assimilationist] Hellenists widened the breach between themselves and
their religion, the spiritual leaders of Judaea came to regard with a continually
increasing distrust and even aversion everything of Greek origin, irrespective of
its intrinsic value. [Emphasis added.] And this attitude would abide, one may
surmise, even long after Hellenism had been vanquished.
Based on Rabbi Herzog's analyses, it would appear to me that the Rabbis had a very conflicted
approach and attitude. They saw the damage done by Hellenism and saw how antithetical much
of Greek philosophy was to the Torah, but they couldn't help but admire the good qualities of
Hellenic intellectualism and aestheticism, and they wholly and unequivocally criticize a
discipline that, notwithstanding its disagreements with Torah and its occasional lapses from
aestheticism into gross coarse Epicurean sensual materialism, after all did rely on honest and
sincere application of the human intellect and scientific thought. Perhaps Rabbi S. R. Hirsch's
“Hellenism, Judaism, and Rome” is more than ahistorical expository homiletics?
But Rabbi Herzog's ultimate conclusion – viz. that “in proportion as the [Jewish
assimilationist] Hellenists widened the breach between themselves and their religion, the spiritual
leaders of Judaea came to regard with a continually increasing distrust and even aversion
everything of Greek origin, irrespective of its intrinsic value” [Emphasis added] – seems to jive
with Professor Shapiro's observation that “It is the historian who views the halakhist as having
been pressured by forces beyond him, and often not even apparent to him, into a sometimes
radical reinterpretation of sources, all in order to justify what in his mind is essential to prevent
the breakdown of traditional Judaism.”. If, as Professor Shapiro's quotation of Bailyn states, “the
very possibility of historical explanation lies in the differences between the perspective and range
of knowledge of participants and those of the historian.”, then not only do Rabbi Herzog and
Professor Shapiro take the route of historian, but so will – albeit without the benefit of any
scholarly or academic or historical training whatsoever - I in the following essay.

II.
In the previous essay, in discussing contemporary kashrut supervision vis a vis non-
observant restaurateurs, we discussed Rabbi Samson Raphael Hirsch's policy of Austritt, of
seceding from the non-Orthodox Jewish community. There, we showed that “[w]hether or not
Rabbi Hirsch's Austritt is still proper today, or even ever was in Rabbi Hirsch's own time[,] …
nevertheless...”, despite accusations to the contrary, this policy of Austritt had no basis in a lack of
concern for non-observant Jews. However, the question of “whether or not Rabbi Hirsch's Austritt
is still proper today, or even ever was in Rabbi Hirsch's own time” deserves its own
consideration.
In truth, one might personally disagree with some aspects of Rabbi Hirsch's Austritt
policy, at least in its implementation today. First, we must realize that in Rabbi Hirsch's day, the
battle between Orthodoxy and Reform was still being bitterly waged. Rabbi Leo Levi thus said,
“Rabbi Hirsch ruled that when a Jew is confronted with a choice of joining or not joining a
Reform congregation, he is forbidden to join, since such voluntary joining is tantamount to
legitimation.”, but it is not at all clear that this is always true today. Moreover, in Rabbi Hirsch's
own case, a Jew's membership in the greater Reform-aligned community resulted in his
membership dues being used to finance Reformist activities and propaganda; however valuable
Jewish unity may be, no one can accuse Rabbi Hirsch for being intolerant in having this financial
concern.
But as far as membership equally legitimation, today, everyone knows that Orthodoxy is
Orthodoxy and Reform is Reform, and no one will confuse Orthodox participation in non-
Orthodox organizations with condoning their non-Orthodoxy. If so, this means that while the
battle is still fresh, secession is necessary, but reintegration and reunification between the
Orthodox and non-Orthodox, on a communal and organization level even, is necessary once the
battle cools and the dust settles. In fact, as I was astounded and amazed to discover, none other
than the Hatam Sofer would seem to agree with me! In “R' Shlomo Yehuda Rapoport (Shir),
Champion of Jewish Unity in the Modern Era”, by Chaim Landerer, we read (p. 116),
David Guttmann [in a private communication] related an interesting conversation
between his father and R' Simcha Wasserman:
R' Wasserman said that during the early stages of Reform, the Chasam Sofer and
other contemporaries felt that a break was need, knowing full well that it was
“strong medicine.” Although it was needed for the patient they knew it would
have nefarious side-effects. It is like treating cancer with chemotherapy, which
then affects other areas. Once the patient is in remission, antidotes need to be
given to bring the patient back to normal. R' Simcha Wasserman said that the
Orthodox community administered the strong medicine during the times of the
Chasam Sofer, but now that the patient is in remission they refuse to treat the
patient with the antidote.
In a letter to Rabbi Alan Yuter, discussing Rabbi Hirsch's criticisms of Zecharia Frankel –
illegitimate criticisms of a fine rabbi, according to Rabbi Yuter – I said to Rabbi Yuter,
As for Rabbi Frankel['s Positive-Historical philosophy of Judaism (the
precursor of Conservative Judaism)]: from the excerpts Rav Hirsch brings in
Collected Writings, I see no problem with Frankel, given a suitable interpretation.
For example, when he says that the laws of zera'im must be old, given that the
mishnayot are anonymous, I would read Frankel as simply meaning that since
agriculture is relatively stable, all the various she'elot and hiddushim had been
resolved centuries earlier, and there were no more substantive machlokets to be
attributed to various authorities. That is, besides whatever was given concretely
at Sinai, there were also laws creatively derived by human insight (Rambam's
Introduction to the Mishnah), but which had largely been settled by the
Mishnah's time, without anymore controversy, and thus, anonymous.
Rav Hirsch himself admits (such as in his letter on aggadah) that there
are hiddushim and she'elot that necessitate an expansion of TSBP [i.e. Torah
She'b'al Peh, the Oral Law] beyond that given at Sinai. I wrote a letter to
KAJ/Breuer's asking how Rav Hirsch would respond to my own interpretation of
TSBP, which is basically a R' [Moshe Shmuel] Glasner / R' [Eliezer] Berkovits
one, emphasizing that the initial data is Sinaitic, and that humans developed it
from there, using our human subjectivity ("lo bashamayim hi"); also, as Rambam
says, there are laws which were not given at Sinai, but were rather derived by
creative midrash halakhah, which later sages can even overturn. Dr. Elliot Bondi
responded to me,
Everything you define as Torah she Ba'al peh fits the Hirschian
view of TSPB. The "lecture" as it were was given with all the
rules of exegesis mi Sinai and everything could be derived
further from that. Reflect carefully and it is clear.
So if I am correct in all this, it would appear that the dispute between
Rav Hirsch and Frankel is more apparent than real. I've seen disputes in my life,
vociferous and intensely heated ones even, in which it was obvious to me that the
antagonists really had nothing to argue about; only they misunderstood each
other as being opposed, when really, both agreed. This is tragic and lamentable,
but it happens. I presume something similar happened between Rabbis Hirsch
and Frankel.
...
As for Rabbi Hirsch['s Austritt], it seems to me that the answer is in the
sort of tsibur [community] that then existed. Today, the fault lines between
Orthodoxy and Reform/Conservative are drawn and stable, and we can be
congenial. But in Rav Hirsch's time, the Reformers sought to snuff Orthodoxy
out, even appealing to the secular government to intervene ("Religion Allied to
Progress"). And given that Reform was at the prime of its activity in terms of
bringing adherents to its flag, any compromise brooked by Orthodoxy would be
suicide by Orthodoxy. Only after the dust had settled and the lines been drawn,
could Orthodoxy and Reform coexist. So I feel that Austritt was proper in Rav
Hirsch's time and place, but not ours.
Also, regarding R' Shlomo Breuer's opposition to Mizrahi based on
Austritt, R' Moshe Shmuel Glasner (in haTzionut b'Ohr haEmuna) points out that
logically, Austritt should not apply to endeavors where the
R[eform]/C[onservative] and Orthodox have the same goal. [I.e., in Zionism,
both the Orthodox and non-Orthodox Zionists want national self-determination,
and so cooperation is valid. By contrast, in internal community affairs, where
Orthodoxy wants observance and Reform/Conservative does not share this
 commitment in the same way, the distinct and antithetical goals preclude
institutional cooperation.] R' Glasner is speaking against R' Breuer, and I'm not
sure whether he implicitly applies this criticism to R' Hirsch as well, or whether
he believes (rightly or wrongly) that R' Hirsch would agree with him. In any
case, I side with R' Glasner here. [See further in this present essay for quotation
of Rabbi Glasner's own words, and my own admittedly questionable exegesis
thereof, quite possibly not entirely in keeping with Rabbi Glasner's own personal
intent. I.e., I may have engaged in some post-modernism.]
Regarding my statement that “I've seen disputes in my life, vociferous and intensely heated ones
even, in which it was obvious to me that the antagonists really had nothing to argue about; only
they misunderstood each other as being opposed, when really, both agreed. This is tragic and
lamentable, but it happens.”, we might note that one developed subject in Chaim Landerer's “R'
Shlomo Yehuda Rapoport (Shir), Champion of Jewish Unity in the Modern Era”, is how Rabbi
Hirsch's dispute with Zecharias Frankel resulted in a grave misunderstanding between Rabbis
Hirsch and Rapoport. When Frankel made apparently heretical remarks on the Oral Law and
Rabbi Hirsch went on the offensive, Rabbi Rapoport tried to come between the two, asking Rabbi
Hirsch to hold off on his offensive, and asking Frankel to clarify his stance, confident that Frankel
would turn out to be not a heretic after all. However, not only did Frankel neglect to ever so
clarify himself, but worse, Rabbi Hirsch misunderstood Rabbi Rapoport to be defending Frankel's
heresy, lambasting Rabbi Rapoport for letting peace and friendship take precedence over the truth
in defense of his friend Frankel. In fact, Frankel criticized Rabbi Rapoport for being of the same
school of thought as Rabbi Hirsch and no different at all in matters of the Oral Law, in dogma and
criticism of heresy; apparently, Rabbis Hirsch and Rapoport did not disagree substantially in their
beliefs, and their dispute occurred only because Rabbi Hirsch misunderstood Rabbi Rapoport's
attempt at forestalling conflict and eliciting clarification (in the hopes that the conflict would be
ended as soon as matters were brought to light) as a partisan favoritism for Frankel.
However, while I still hold by the sociological interpretation of Rabbi Hirsch's conflict
with Frankel that I set forth to Rabbi Yuter, I should emphasize that since my conversation with
him, my position has gained some further nuances. Frankel had a notion of the Volksgeist,
followed by Schechter with his Catholic Israel, and this (these) concept(s) is (are) critical to the
philosophy of Positive-Historical / Conservative Judaism. It is precisely in the notion of the
Volksgeist / Catholic Israel that I personally find what is pernicious if not heretical in Positive-
Historical / Conservative Judaism. See Rabbi Dr. Ismar Schorch's “Zacharias Frankel and the
European Origins of Conservative Judaism” for an explanation of Frankel's philosophy of the
Volksgeist, and see Rabbi Dr. Daniel Gordis's “Positive Historical Judaism Exhausted: Reflections
on a Movement’s Future” for a trenchant and incisive criticism of this selfsame philosophy. An
additional difference between Hirsch and Frankel is evident, I believe, based on footnote 42 of
Rabbi Asher Benzion Buchman's “Rationality and Halacha: The Halacha L’Moshe MiSinai of
Treifos”. There, Rabbi Buchman says that the difference between Rambam and Rashba in tereifot
is not such much a different conception of how halakhah works, and it's not even primarily due to
their radical and far-reaching disagreement regarding naturalism and supernaturalism (for that,
see David Guttmann's “Avodah Zarah as Falsehood - Denial of Reality and Rejection of Science”
and Rabbi Buchman's “U-Madua Lo Yeresem”); rather, there's is a difference in how much
(quantitatively) of halakhah was revealed at Sinai. For Rambam, Sinai revealed a few general
principles that were left for humans to expand upon; for Rashba, revelation revealed far many
more details, leaving less for humans. I'd say that the disagreement between Hirsch and Frankel is
the same; both of them agree that new hiddushim (innovations in halakhah) can be made and new
facets of halakhah revealed over time, etc., but the question is one of quantity, of how much of
halakhah, how much (quantitatively) of the Talmud and Shulhan Arukh can be explained by
tanur akhnai and Moshe seeing Rabbi Akiva's lecture (standard proofs for how halakhah can
evolve over time). According to this, Hirsch, and Frankel are very much on the same page (except
for in sociology and the Volksgeist, as I have said previously), and have merely a quantitative
disagreement.
Returning to the polemical tendency I asserted in my conversation with Rabbi Yuter, that
led Rabbi Hirsch to denounce and excoriate Frankel based only on a polemical impulse: I was
delighted to see that Professor Marc Shapiro himself previously offered – with vastly more
evidence - the exact same sociological interpretation of Rabbi Hirsch's polemical dispute with
Frankel (although the interpretation of Rabbi Glasner remains solely my own, as far as I know):
in “Review Essay: Sociology and Halakha”, Shapiro notes that in their polemics and opposition
to the Reform movement, “the poskim saw themselves forced to take extraordinary measures in
order to combat the widening threat. These measures varied from country to country, yet the
principle that a posek may attempt to secure Orthodoxy by unprecedented stringencies was
accepted by all and could be supported by Talmudic citation.” Regarding such German Neo-
Orthodox rabbis as Rabbi S. R. Hirsch (1808-1888), Rabbi Esriel Hildesheimer (1820-1899),
Rabbi David Zvi Hoffmann (1843-1921) and Rabbi Yehiel Ya'akov Weinberg (1884-1966),
Shapiro notes,
[I]t is worthwhile to analyze a few responsa of R. Yehiel Ya'akov
Weinberg (1884-1966), the leading posek of the final generation of German
 Jewry, on some of the very same issues dealt with by...earlier German
respondents. Of course in most matters of Jewish law, and this includes matters
relating to Reform, Weinberg was in agreement with his predecessors [emphasis
added]. It is in those areas in which he disagrees where we can learn a great deal.
Shapiro explains how the passage of time changed the German Neo-Orthodox authorities'
approach towards non-Orthodox movements:
… [Rabbi Esriel] Hildesheimer...was still in a generation that had not
resigned itself to the continued existence of either the Reform movement or to
the so-called Positive-Historical school of Zechariah Frankel. In such an
environment, one in which heresy hunting was the rule and not the exception, it
is understandable that Hildesheimer should have adopted a very uncompromising
position regarding both of these developments. Indeed, the heat of the moment
was such that even had Hildesheimer wanted to, he probably would not have
been able to step back and look at things in a broader spectrum.
We see this particularly in the way he reacted to Frankel and his
seminary in Breslau. In Hildesheimer's day, it was no secret that the Breslau
school did not represent the same type of Judaism commonly identified with
Orthodoxy. Frankel himself was also suspect and had to fend off attacks on his
religiosity by Samson Raphael Hirsch, who viewed his works as heretical. The
air was very heated and people were being forced to declare their position on
various issues of belief. Hildesheimer came down firmly on the side of
Orthodoxy. In his mind, Frankel, Graetz, and other professors at Breslau were
heretics. Not only was Frankel a meshumad - which made him even worse than
an apikores - but it was perhaps even a mitzva to burn his book Darkhe
haMishna. Hildesheimer had the same view regarding the graduates of Frankel's
seminary. This harsh view was broadly shared among the German Orthodox.
Yet as time went on, some elements of German Orthodoxy were able to
take a more balanced look at both Frankel and his work. With this change, certain
segments of Orthodoxy, especially the Berlin variety, began to adopt a more
sympathetic approach to Frankel and the sort of scholarship he represented. …
With Weinberg,... not only was Frankel not a heretic, he was actually a good Jew.
Weinberg calls him Rabbi and on occasion affixes the phrase zikhrono livrakha
after his name; a sure sign of respect, and one that is notably missing when
Weinberg mentions Geiger. He cites the Darkhe haMishna throughout his works
 and considers this book to be a basic text and a forerunner for Hoffmann's later
studies of the Mishna. He also defends Frankel against Isaac Halevy's harsh
attacks throughout the latter's Dorot haRishonim attacks in the spirit of
Hildesheimer.
Having thus shown the contrast between Rabbis Hildesheimer and Weinberg in responding to
Frankel, Shapiro explains the cause for this contrast:
In general, Weinberg and Hildesheimer had very similar views and
certainly had the same ideas regarding what constituted the fundamentals of faith.
Still, the two came to different opinions regarding Frankel. Since both of them
had examined Frankel's writings and both of them had the same notions
regarding Orthodoxy [emphasis added], how then to explain the difference? I
would venture to say that the different eras were responsible for the change in
perspective. In Hildesheimer's day the issues raised by Frankel and the Breslau
seminary went to the heart of the definition of Orthodoxy. Hildesheimer felt
threatened and therefore it was natural for him to stress the differences he had
with Frankel. The atmosphere was such that it was very easy to call him a
heretic. (Weinberg actually suggests this reason with regard to Halevy's attitude
to Frankel; see Seride Esh, vol. 4, p. 228.)
In Weinberg's day, the atmosphere had calmed. The different segments of
German Judaism were each secure in their place. There was no apparent threat to
Orthodoxy from the Left. Only at this later date was it possible to take a close
and impartial look at Frankel. This Weinberg did, and what he discovered to his
satisfaction was that Frankel was not a heretic.
Shapiro proceeds to cite many other halakhic discussions in which later German Neo-Orthodox
authorities disagreed with their predecessors based on the contemporary sociological conditions
in general, and the need to distance oneself from Reform in particular. In general, the later
authorities were more tolerant and lenient, as they were able to take a calmer and more
dispassionate view of the issues, studying them more objectively and less polemically.
Based on the foregoing – i.e. sociology influencing pesak towards polemic - I might
personally be inclined to say that even if Rabbi Hirsch's policy of Austritt once applied
legitimately, this is not necessarily so anymore. In Rabbi Hirsch's own time, the Reform had
recently petitioned the German government to ban all Talmud study (see Rabbi Hirsch's essay
“Religion Allied to Progress”). The battle with Reform was still fresh, and a strict and vivid
demarcation needed to be made. But today, an Orthodox rabbi can join a non-Orthodox
organization, and no one will question the very real gulf between Orthodoxy and Reform. Rabbi
Levi (op. cit.) said, “Rabbi Hirsch ruled that when a Jew is confronted with a choice of joining or
not joining a Reform congregation, he is forbidden to join, since such voluntary joining is
tantamount to legitimation.”, but I am not sure this is true anymore.
Rabbi Levi (ibid.) also said, “In his opinion, an organization was defined not by its
members, but by its program. Thus, an organization might be heretical, and so would have to be
ostracized, even though all its members and leaders might be blameless and were to be drawn
close - as private individuals.” According to this, I would also limit the implementation of
Austritt, based on the given organization's platform. What I have in mind is exemplified in Rabbi
Moshe Shmuel Glasner's “Zionism in the Light of Faith” / “ha-Tzionut b'Ohr ha-Emuna”:
Or perhaps they [the Hungarian anti-Zionists] mean to say, in the slogan
of Hirsch "the people of the Torah," that your Orthodox organization, the Agudat
Yisrael, though it encompasses within it only a minority, has itself become the
Jewish people, because the others do not belong to the nation? I do not want to
ascribe such a foolish idea to your honor, because the doctrine of separation [i.e.
Austritt], as it has been understood and explained in a country [viz. Hungary] in
which there is both Orthodoxy and Neologism, cannot be compared to a doctrine
of separation within the entire Jewish people. [I.e., one cannot compare an
application of Austritt within one nation-state between two defined sectors of the
Jewish people, to an application of Austritt across the entire Jewish world.] For
that you and those who share your opinion, including the leading scholars of
Czechoslovakia, are too weak.
The [entire] nation [of Israel] cannot be separated and divided, for even
those who are not believers and are not pious are the children of Abraham, Isaac,
and Jacob. They will not be excluded from it. It is possible and necessary to
sacrifice everything for the sake of the survival of the Torah, but not [for the
sake of the people of] Israel itself. See Midrash Qohelet 1:
R. Shimon ben Yohai said: "It is written (Isaiah 65:22): 'for like
the days of a tree shall the days of my people be" and a tree
refers only to the Torah. And who was created for whom? The
Torah for Israel or Israel for the Torah? No, the Torah for Israel.
See also Tanna d'vei Eliyahu 14:
And he said to me: "My master, there are two things in
this world that I love unconditionally, Torah and Israel. But I
 don't know which one takes precedence."
I said to him: "My son, people are wont to say that the
Torah takes precedence, as it says (Proverbs 8:22) 'The L-rd
created me at the beginning of His work.' But I say that Israel
takes precedence, as it says (Jeremiah 2:3) 'Israel is holy to the
L-rd, the first fruits of his harvest.' It may be compared to a king
who had a wife and children in his home and he wrote a letter to
the place where his wife and children were residing. Thus, if it
were not for Israel, the world would not have been created and
the world would have been destroyed. It therefore says, 'Israel is
holy to the L-rd, the first fruits of his harvest.'"
So therefore the Torah was given for Israel and not Israel for the Torah.
I am not sure if the following is what Rabbi Glasner himself actually historically had in mind –
perhaps he is, like Rabbi Avraham Yitzhak Kook, emphasizing the grand metaphysical
importance of kelal yisrael (the people of Israel) in and of itself - but what this passage rather
made me realize is that whereas Austritt is perfectly legitimate when the goals and ideologies of
the parties are diametrically opposed and antithetical – for example, a Reform organization that
wishes, as in Rabbi Hirsch's time, to quell Orthodoxy - it (Austritt) is, on the other hand,
illegitimate when the practical goals and purposes of the parties are the same – for example, both
Orthodox Zionists and non-Orthodox Zionists equally wish for Jewish national self-determination
(even though they have very different ideas on what the nature of the state ought to be). When the
Torah (i.e. ideology) is at stake, Austritt is legitimate, but when the whole people of Israel as one
is concerned (i.e. when ideology is not determinative), Austritt is illegitimate. So even if Austritt
was legitimate within Germany, its application to Zionism and Mizrahi by the Agudat Yisrael was
not legitimate. We can make the same distinction today. Indeed, even according to the strict view
of Rabbi Soloveitchik's “Confrontation”, that one may have interfaith dialogue with Christians on
exclusively non-theological topics, one may nevertheless have interfaith dialogue with non-Jews.
Can we possibly permit such interfaith dialogue and yet prohibit Orthodox rabbis to join non-
Orthodox rabbinical organizations and conduct interdenominational dialogue??!! Are Reform
Jewish organizations today worse than non-Jewish organizations??!! All the more so this
argument applies for those more lenient voices which permit even theological interfaith dialogue,
contrary to Rabbi Soloveitchik's stricture.

III.
 In the previous essay, to which this present one is a sequel, we noted that “Rabbi [Yom
Tov] Schwarz's analysis of contemporary non-observant Jews [in Eyes to See] is part of his
address of failings he perceived in contemporary Orthodoxy, based on that which he – by contrast
- witnessed in pre-War Poland. That is, between pre-Holocaust Poland and the modern era, Rabbi
Schwarz perceived a serious rift in the social and religious characteristics of Orthodox Judaism.”
This deserves further consideration. According to Professor Menachem Friedman (“The Position
of Haredi Women in Israel”),
Haredi society is commonly, but erroneously, considered the heir apparent to the
traditional religious society that flourished in Eastern Europe until the Holocaust.
In actuality, although Haredim do believe themselves to be the sole legitimate
representatives of authentic Jewish tradition, the process of transition to a modern
welfare state engendered various substantive changes in their society.
Furthermore, Professor Marc Shapiro's discussion of sociology influencing pesak in German
Neo-Orthodoxy brings us to another crucial aspect of our contemporary reality: in another article
(“The Uses of Tradition”), Shapiro remarks on this same phenomenon – i.e. sociology
influencing pesak halakha towards a polemic tendency – in a different context, that of Eastern-
European-style Haredism.
First, we must realize: in a traditional society, any new innovation – whether towards
leniency or even stringency – is to be frowned up as bringing disrepute upon the ancestors,
impugning their piety and punctiliousness of observance. Professor Menachem Friedman quotes
("Life Tradition and Book Tradition") from a 1784 letter by Rabbi Abraham Katzenelbogen to
Rabbi Isaac Levi of Berdichev, in which the former speaks against changes towards stringency in
the ancestral tradition introduced by the Hasidim: “Should we find fault with our predecessors?”
Similarly, Friedman quotes ("Life Tradition and Book Tradition") Meiri's Magen Avot, in which
the Meiri criticizes new stringencies, saying,
It behooves all those who would challenge [previous practice with a new
stringency], to consider the fact that the practices of our ancient forebears and the
early sages, whose fingernails were superior to our bellies, were not devoid of
reason. It is preferable to attribute it to one's own lack of knowledge than to the
lack of knowledge on the part of our forefathers and the ancient sages.
As Friedman adds in this same connection in “The Market Model”, “From a sociological
perspective, the social sanction against the stringent is structurally similar to that applied to
religious deviants...”. Moreover, as Friedman notes (“The Market Model”), not only does
excessive stringency and piety impugn the ancestors and their tradition, but it is also socially
divisive. Society becomes divided into social castes of greater and lesser piety, and social
camaraderie and solidarity is threatened. This, of course, is the root of the prohibition “lo
titgodedu” (Deut. 14:1; lit. “Do not gash yourselves”), which the Talmud (Yevamot 13b) interprets
to mean that one may not form separate sects (“agudot agudot”) within one geographic locale.
(Thus, the entire concept of minhag avot is also revolutionary; traditionally, only minhag
ha-maqom - i.e. the customs of the geographic locale and its community – existed. Only with the
disruptions and dislocations of communities following the Spanish Expulsion did the concept
arise that two communities – each with its own minhag – could exist in one geographic location.
Minhag ha-maqom was thereby threatened, and the concept of minhag avot – following one's
ancestors regardless of one's actual present location – arose as a replacement. Rabbi David bar
Hayim of Machon Shilo in Jerusalem – preferring the traditional concept of minhag ha-maqom
over the newer concept of minhag avot – uses this distinction to permit Ashkenazim to consume
kitniot during Pesah. This subject of minhag dovetails into Friedman's distinction – to be
discussed further in the present essay – between traditional communities and voluntary
communities; the former are comprised of all the individuals in a given geographic locale –
regardless of their level of observance or ideology - whereas the latter are comprised of those
individuals who voluntary subscribe to a given ideology and its charismatic leader, and who
thereby constitute a community distinct even from others in the same geographic locale.)
Thus, any innovation - whether towards stringency or leniency - must be seen as truly
revolutionary and pernicious, by virtue of its social divisiveness and its implicit impugning the
ancestral tradition. So to return to Shapiro (“The Uses of Tradition”): regarding sociology
influencing Haredi pesak towards a polemical manner and stringent end, Shapiro notes,
Silber describes how the ultra-Orthodox were led to their stringent interpretations
and rulings as a means of holding the community together against the onslaught
of modernity, (the exact opposite approach of the German Neo-Orthodox). … In
other studies Katz argues that, in the absence of convincing halakhic sources with
which to refute the Reformers regarding issues such as yom tov sheni and
metzitza, the halakhists came up with novel ideas and sources, giving the
practices an entirely new basis and often classifying what used to be regarded as
a secondary detail, e. g. metzitza, as a central religious obligation.
According to Shapiro, Haredi stringency is due not only to the Hatam Sofer's aphorism, “hadash
assur min ha-torah” (innovation is ipso facto forbidden); it is also because the Haredim
intensified certain practices and beliefs in order to assert their distinctiveness and bolster their
self-identity. As Shapiro says elsewhere (“The Moroccan Rabbinic Conferences”),
 It is a truism that with the Emancipation and the rise of Reform and,
later, Conservative Judaism, options for halakhic flexibility became much more
limited. In the midst of a battle against the non-Orthodox movements, traditional
Judaism retreated into a conservative mold both as a means of distinguishing
itself from the non-Orthodox and out of a fear that in an era of halakhic crisis,
any liberality in halakhic decision-making could encourage non-Orthodox trends.
This latter sentiment was always on the minds of halakhists, even those who did
not adopt lock, stock, and barrel R. Moses Sofer's famous bon mot, "Anything
new is forbidden by the Torah."
The above description is accurate, however, only with regard to the
Ashkenazic world. The Sephardic world never had to contend with non-Orthodox
religious movements, and thus it was able to develop in a much more natural-one
might say organic-fashion. In particular, this was the case in Morocco, a
community that had a very old halakhic tradition and whose scholars produced
numerous works of responsa.1
Of course, then, the very effort by Eastern European and/or Haredi Jewry to reinforce tradition
with polemical stricture – in contrast to Moroccan organic traditionalism - was itself non-
traditional, for it lead to certain practices being emphasized in a way that they had not been
traditionally. Now, not every innovation is necessarily illegitimate; we argued above that even if
Rabbis Hirsch et. al. were influenced by sociology in their fight against Reform, this may have
been legitimate and authentic, in their day. But we must nevertheless be aware of innovation, so
that we can constantly reevaluate it and constantly redetermine anew whether it still is legitimate.
For example, assuming Austritt was once legitimate – I say this because in Rabbi Hirsch's own
time, Rabbi Seligman Baer Bamberger famously and vociferously disputed against Austritt's
legitimacy - then perhaps nevertheless it no longer is (my thesis above), or perhaps it even today
still is (such an argument against me, I would welcome). But the question must be asked,
whatever the conclusion turns out to be; innovation may or may not be legitimate, but either way,
innovation must be recognized unequivocally as such. Indeed, one cannot say that Austritt is not
revolutionary; Austritt actually constitutes the conscious creation of a selective voluntary
community, which Friedman distinguishes from the traditional community. This does not
necessarily undermine Austritt, but one must recognize that it is revolutionary, and continually
reevaluate its ongoing legitimacy. But Haredism claims hadash assur min ha-torah, and then

1 Apposite this quotation of Shapiro's, see the first several paragraphs of Rabbi Marc Angel's,
“Conversion to Judaism: Halakha, Hashkafa, and Historic Challenge”.
proceeds to pass its revolutions and innovations off as authentic historical tradition, akin to the
constant rewriting of history by protagonist Winston Smith in Orwell's Nineteen Eighty-Four.
Innovation may be legitimate, but historical revisionism is not.
Shapiro makes some further insights into the nature of Haredism (“The Uses of
Tradition”):
In his discussion of the origins of what is popularly known as ultra-
Orthodoxy, Silber conclusively shows that in many ways this community,
although claiming to be the guardian of tradition, actually presents an entirely
new outlook. This is a good illustration of G. K. Chesterton's well known
comment that it is really Orthodoxy which is "the natural foundation of
revolution and reform.” (Orthodoxy (Westport, Connecticut, 1974), p. 257.)
...
Kaplan's essay is followed by Menachem Friedman's "The Lost Kiddush
Cup," in which R. Karelitz also plays a great role. Friedman's concern is with the
larger measurements for religious requirements which, through R. Karelitz'
influence, have become standard for the haredi community. What is most
significant about this point is that the acceptance of these new measurements
required a rejection of many years of family tradition; a step made easier
following the destruction of the Holocaust. This illustrates once again how
Orthodoxy, rather than being merely the faithful guardian of the past, can also be
quite revolutionary and dynamic.
…
Basic to the studies of Katz and his students, in particular Moshe Samet,
is the awareness that Orthodoxy is not to be identified simply with loyalty to
tradition in the time-honored fashion. Rather, Orthodoxy refers to a self-
conscious adherence to tradition, in the context of large scale defections from this
tradition. As Katz points out, although the Orthodox, as opposed to the Neo-
Orthodox, portrayed themselves as nothing more than the guardians of traditional
life, this was not at all true since they were, in fact, responsible for many
innovations and also developed a new method of confronting the deviant trends
(cf the essays of Silber and Friedman, mentioned above).
Indeed, the role of the Holocaust in the rejection of family tradition is critical: the
dislocation of communities and families following the Haskala, and even more following the
Holocaust, allowed textualism to supplant mimesis (oral tradition) in Haredi Orthodoxy. To put
the matter bluntly, the Haskala and the Holocaust destroyed the social fabric of traditional
Orthodox Jewish life, paving the way for distortion during the attempt to reconstruct that lost
reality; mimesis and oral tradition were disrupted and mangled, and all that was left was the
halakhic literature. The contrast between traditional mimesis and new textualism pervades
Professor Haym Soloveitchik's “Rupture and Reconstruction: The Transformation of
Contemporary Orthodoxy”, and note the title of one of Friedman's essays: “Life Tradition and
Book Tradition in the Development of Ultra-Orthodox Judaism”; this development - the
replacement of traditional mimesis with innovative textualism - is crucial to the development of
Haredi Judaism. The chaos and disruption of the modern era – see Friedman's "The 'Family-
Community' Model in Haredi Society" for a vivid depiction of this and its effects - served to
undermine the transmission of family and community tradition, allowing elite textualism to
supplant these traditional mimetic sources.
The distinction between “self-conscious adherence to tradition” versus “loyalty to
tradition in the time-honored fashion” - “Basic to the studies of Katz...is the awareness that
Orthodoxy is not to be identified simply with loyalty to tradition in the time-honored fashion.
Rather, Orthodoxy refers to a self-conscious adherence to tradition, in the context of large scale
defections from this tradition” - is likewise trenchant and vital; Professor Jacob Katz (see
references in Blau, “Orthodox Judaism”), and Professor Haym Soloveitchik in his “Rupture and
Reconstruction”, note that authentic traditionalism is un-self-conscious, and is simply “what
people do” as a matter of course. As Rabbi Yehuda Amital says (Commitment and Complexity:
Jewish Wisdom in an Age of Upheaval, p. 48, quoted in Professor Marc Shapiro, “Responses to
Comments and Elaborations of Previous Posts III”),
We live in an era in which educated religious circles like to emphasize the
centrality of Halakha, and commitment to it, in Judaism. I can say that in my
youth in pre-Holocaust Hungary, I didn't hear people talking all the time about
“Halakha.” People conducted themselves In the tradition of their forefathers, and
where any halakhic problems arose, they consulted a rabbi. Reliance on Halakha
and unconditional commitment to it mean, for many people, a stable anchor
whose purpose is to maintain the purity of Judaism, even within the modern
world. To my mind, this excessive emphasis of Halakha has exacted a high cost.
The impression created is that there is nothing in Torah but that which exists in
Halakha, and that in any confrontation with the new problems that arise in
modern society, answers should be sought exclusively in books of Halakha.
Many of the fundamental values of the Torah which are based on the general
 commandments of “You shall be holy” (Vayikra 19:2) and “You shall do what is
upright and good in the eyes of God” (Devarim 6:18), which were not given
formal, operative formulation, have not only lost some of their status, but they
have also lost their validity in the eyes of a public that regards itself as committed
to Halakha.
By contrast with unreflective un-self-conscious matter-of-course traditionalism, as soon as
someone tries consciously to imitate a tradition, it is no longer traditional, because it is now
deliberate and intellectual and conscious; like a quantum superposition, measurement destroys the
phenomenon; only unreflective traditionalism is truly traditional. It can now become at best a
good imitation, at worst an exaggerated caricature. As modernism and secularization threatened
the traditional way of life, two camps formed within traditional Judaism (Friedman, “Life
Tradition and Book Tradition”): those who aspired to keep the halakhah but adapt it as much as
possible – i.e. within the bounds of legitimacy offered by halakhah – to modernity, and those who
desired to keep the halakhah exactly as it had always been kept, without regard for the realities of
life and modernity. But as Soloveitchik points out, the second group's attempt is flawed; any
attempt to consciously maintain traditionalism is flawed ipso facto, for true traditionalism is un-
self-conscious, natural, and organic. Whereas the first group sought to let Judaism flexibly adapt
according to its own ability and the limits as imposed by halakhah, the second group – the
forerunner of Haredism - sought to rigidly maintain halakhah inertly, consciously seeking to
remain exactly as they had always been – an attempt that is, by definition, guaranteed to fail.
Friedman, in "The Lost Kiddush Cup”, in "Haredim Confront the Modern City", in “Life
Tradition and Book Tradition”, and in “The Changing Role of the Community Rabbinate”, points
to another source of the Haredi anti-traditionalism: the higher yeshivot. In “The Lost Kiddush
Cup”, Friedman notes,
I content that from the outset, the higher yeshivas, as they developed in Lithuania
from the second half the nineteenth century, laid the foundation for Haredi
society as we know it today. ... Higher yeshivas of the Volozhin type developed
in Lithuania against the background of a religious, social, and political crisis. The
processes of modernization and secularization which engendered this crisis
shattered the traditional Jewish community ... One reaction to these processes
was the establishment of a new type of educational institution: the higher yeshiva
exemplified by Volozhin.
What is so novel and untraditional about the Volozhin-type yeshivot according to Friedman is that
traditionally, yeshivot were part of the community in which they were located; students learned
from the city's rabbi and associated with the inhabitants of that community. It cannot be
emphasized enough that the head of the yeshiva was also the communal rabbi; this meant the
yeshiva and its culture were one with the community. (Professor Friedman compares the rosh
yeshiva's independence and estrangement from the community as similar to that of the Hasidic
rebbe.) Additionally, the majority of any given yeshiva's students were natives of that region, and
only a minority were from out-of-town. And even the minority of foreign students lodged and ate
with local families, cementing their communal bond. But the Volozhin-type yeshivot created a
system in which students learned from a rabbi not associated with the community, and in which
the students were totally isolated from reality, from traditional communal living. Additionally, as
the yeshivot were established in small towns, away from the secular cities, the majority of the
students were foreigners, and as their numbers outstripped the ability of the community to host
them, they were lodged in dormitories or rented facilities, rather than with local families as had
been traditional. Professor Friedman, in “The Changing Role of the Community Rabbinate”
quotes Rabbi Meir Bar-Ilan (Berlin), the son of the Netziv of Volozhin (the rosh yeshiva), as
saying,
The relations between the yeshiva population and the townspeople in Volozhin
were neither bad nor good; there simply weren't any relations between them.
Similarly, Rabbi Blau (“Orthodox Judaism”) says,
Yoel Finkelman points out the differences between R. Aharon Kotler’s yeshiva in
Kletzk and that same leader’s yeshiva in Lakewood. Yeshiva students at the
former were well integrated with the local Jewish community as they boarded
with local Jews, discussed politics with them, and sometimes became interested
in the town’s young women. Lakewood students, by contrast, live in a dormitory
and have little to do with Lakewood’s Jews.
Thus, as Aharon Rose says, inter alia, in “The Haredim: A Defense” (a defense which, with all
due respect, did not convince me personally),
Menachem Friedman and Haym Soloveitchik regard the strictness imposed by
the Hazon Ish as a result of a literary tradition that developed in yeshivot that
were not tied to any particular Haredi community, and had thus cut themselves
off from the communal tradition and its customs.
And similarly, Rabbi Dr. Immanuel Jakobovits on this subject (“Rabbis and Deans”) notes that
traditionally, it was the local communal rabbi who alone exercised halakhic authority over the
communal. While he may consult other scholars greater than him, it was always the rabbi of the
local rabbinate, and not ivory-tower academic Talmudists who held ultimate authority. And
echoing Professor Friedman, Rabbi Jakobovits notes,
Such communal rabbis would often also establish local Yeshivot and preside over
them. In fact, the deans of all leading Yeshivot in the past [emphasis added – i.e.
not anymore] were the official rabbis of the local communities, such as the
MaHaRSHaL (Lublin), P'nei Yehoshua (Cracow), Noda Biyehudah (Prague), R.
Akiva Eger (Posen), R. Chaim (Volozin), Chatam Sofer (Pressburg), and more
recently the heads of such famous academies as Mir, Slobodka, Telz, Ponewez
and Lublin.2
And, of course, the students were also cut off from their families and their home traditions and
customs. In fact, the yeshivot actually replaced their families; the roshei yeshiva served in lieu of
fathers, and the yeshiva community in place of communal and familial institutions and
relationships; see Friedman's "The 'Family-Community' Model in Haredi Society". Students, cut
off from communal and familial customs and traditions, were instead entirely occupied with
halakhic texts, undisturbed by “real life” and how it affects halakha. Like those in a monastery,
the students lived in an ivory-tower, and could preoccupy themselves with texts, unconcerned
with how those texts affect or are affected by “life”.
As Professor Friedman says (“The Changing Role of the Community Rabbinate”),
Compared to the social involvement of the community yeshivah, the new type of
yeshivah can be described as a closed, quasi-monastic institution, which
knowingly or not cultivates a feeling of membership in an elite group.
And again (“Life Tradition and Book Tradition”),
Within the quasimonastic community [of the yeshivot], however, the
confrontation was a totally different than [than in traditional Jewish life]. From
the outset, the tradition embodied in the codes had the advantage: in the face of

2 Many of the yeshivot adduced by Rabbi Jakobovits as being local and communal would be
considered by Professor Friedman to be modern ivory-tower yeshivot disconnected from the
community. Especially, Volozhin for Professor Friedman is the paradigm for the modern
community-less yeshiva, whereas Rabbi Jakobovits considers Volozhin to be a local
communal yeshiva. Rabbi Jakobovits would seem to consider only modern Western post-war
yeshivot to be ivory-tower modern yeshivot, whereas Professor Friedman believes these
yeshivot to have arisen already in the nineteenth century. The present author is not sufficiently
adept in Jewish history to arbitrate, but it would appear that the basic point made by Rabbi
Jakobovits and Professor Friedman is the same, and its basic truth is not affected by the
disagreement over precisely which yeshivot fall into which category.
 the truth emanating from the codes, there was simply no social framework that
could be marshalled to come to the support of the ancestral tradition. In the
traditional community, if a young man reached the conclusion that this custom or
that halakhic norm did not measure up to the standard set by the codes, or if he
wished to adopt the more stringent alternative, he would immediately have found
himself in conflict with other members of his family and with his surroundings.
Within the confines of the yeshiva, however, both the familial framework and the
community experience became insignificant and unreal. The yeshiva, as a
quasimonastic community aliened from its environment and from economic and
social reality, knowingly nurtured the ongoing reexamination of behavior on the
basis of a confrontation with the codes and supported the choice of the more
stringent alternative.
Rabbi Jakobovits minces no words about this phenomenon of discounting the local community
rabbinate; after discussing Ben Gurion's attitude towards rabbis, and his preference for scholars of
Juedische Wissenschaft, Rabbi Jakobovits states (“Rabbis and Deans”),
Today this hostile attitude is betrayed in circles within the Yeshivah
“world” itself no less than [it is] by [the aforementioned] indifferent [non-
religious Ben Gurion-esque] laymen, with at least equally tragic and dangerous
results. Another threat to religious interests ensuing from the denigration of the
rabbinate and its usurpation by Torah scholars holding no rabbinical office is to
be found in the deviation from traditional halakhic methods and standards.3

3 Rabbi Jakobovits proceeds to criticize roshei yeshiva for relying on their own hiddushim,
instead of following the traditional method of relying on the precedents of rishonim and
aharonim. He states, “This process is altogether alien to the historic traditions in determining
the Halakhah. It often leads to verdicts quite out of harmony with the consensus established in
existing rabbinical writings.” Frankly, this accusation is beyond the present author's ken to
either give assent or critique. Nevertheless, the author is reminded of a discussion in Professor
Marc Shapiro's “The Brisker Method Reconsidered”; after discussing Rabbi Haim
Soloveitchik (the “Brisker Rav”)'s philosophy of “Torah lishmah” (i.e. pure theoretical study,
without any expectation or goal of practical application of that learning), Professor Shapiro
notes,
All this illustrates the difference between the theoretical halakha, the
ideal creation, in which all conclusions are possible, and the real halakha, in
which one must follow convention and accept the traditional methods of
 …
The Yeshivah dean is remote from the community and its problems; he
cannot enjoy the intimate, personal contact which a practicing [communal] rabbi
has with his members and their concerns. In nullifying the rabbinate, therefore,
one also eliminates the high regard for the Torah image in the community.
Whatever the cause for these unfortunate developments, it is the sacred duty of
our spiritual leaders to repair this breach and to restore the historic functions of
the rabbinate. … The repudiation of the [communal] rabbinate and its gradual
displacement by academic Talmudic scholars (now commonly referred to as the
Gedolei Ha-Dor or “Torah sages”) in the supreme leadership of the religious
community have shifted the center of gravity in the institutional structure of
religious Jewry from kehilot (congregations) to Yeshivot. The consequences of
this shift are now becoming increasingly manifest in a variety of ways.4

pesak. In theoretical halakha one can reject the Shulhan Arukh and its
commentators and establish the halakha based upon Maimonides alone or
upon an original understanding of a Talmudic passage. In the real world,
however, this approach is not possible.
4 Rabbi Jakobovits adds, “In the wake of the decline of the rabbinate has come the decline of
religious congregations, notably in Israel where the concept of a kehilah as a focal point of
religious activity and inspiration has all but disappeared completely.” Speaking from personal
experience, I can say that indeed, in the more established parts of Israel (Jerusalem, Tel Aviv,
etc., as opposed to Gush Emunim-type Yesha communities), the concept of a kehillah is nigh
non-existent – see Rabbi Dr. Seth (Avi) Kadish's “The Open Jewish Community”, “Rabbanut
Bli Ta'am”, and “Normal People in Normal Places” for an explanation of why this is so, and
how to correct this lamentable situation. Dr. Chaim I. Waxman, in “It's All Relative”, inter
alia discussing the phenomenon of Internet shu”tim in Israel, states, “The Internet has had an
impact on the entire area of halakha and Jewish family life with the introduction, especially in
Israel, of a relatively new phenomenon: Internet responsa. Indeed, it is an interesting question
why the phenomenon is so prominent in Israel and yet is relatively absent elsewhere. Perhaps
it has to do with the differences in the nature of the role of rabbi in Israel and elsewhere. Also,
Israeli Orthodoxy is more pluralistic because of the much wider ethnic mix there and because
of the non-denominational character of Israeli Judaism.” I am not sure, but perhaps his
reference to “the nature of the role of rabbi in Israel” is an allusion to lack of communal-
consciousness in Israel.
 All these departures from past traditions have had an impact on the latter-
day direction of halakhic trends, too. Apart from the variations in the treatment of
problems submitted to rabbinic judgment, as detailed by Rabbi Katzenelenbogen,
the nature of the problems dealt with has also been affected. Responsa by
Yeshivah deans or scholars not practicing as [communal] rabbis are mainly of a
personal, and often academic, character. They reflect largely the confined life and
concerns of students who, while close to their teachers, are often remote from the
perplexities troubling the wider community. This accounts for the relative
sparsity of responsa devoted to the great social, moral, intellectual and even
political challenges of our cataclysmic times.5 Active rabbis, exposed to all the
pressures and questionings of the society in which they live, are bound to cover a
much broader and far more practical range of questions in their responsa.

5 At a lecture I attended given by Rabbi David bar Hayim of Jerusalem, head of the beit din of
Machon Shilo in Jerusalem, someone asked Rabbi bar Hayim why the Haredim do not pasqen
on issues of army and warfare. Rabbi bar Hayim's answer was blunt and to the point: the
Haredim do not have sons serving in the army, and so questions of warfare – such as what to
do if a vital IDF anti-terror operation will unfortunately kill innocent civilians – do not
concern them.
Rabbi bar Hayim also discussed a rabbi he knows who, faced with such issues,
desperately tried to find an answer in the standard commentaries and codes, to no avail of
course. This rabbi answered in desperation, “The halakhah is that there is no halakhah, and
we must follow international law”. Rabbi bar Hayim stated that this answer is a travesty of
Torah. Rather, he said, the correct approach to take is that if the answer is not in the aharonim,
then check the rishonim; if not in the rishonim, then check the Talmud; if not in the Talmud,
then check the Tanakh. In other words, one cannot be stricken – and this is my own personal
paraphrase of Rabbi bar Hayim's words – by what Rabbi Dr. Eliezer Berkovits often referred
to as “Karaism of the Oral Law”. Rabbi Yuval Cherlow gives a weekly lecture in Yeshivat
Hesder Petah Tiqwa on “Hilkhot Medina”, on how halakhah may operate on a national level.
Rabbi Cherlow began his entire series by explaining at length that for him, it is impossible that
the halakhah does not have something to say on any and every issue; the challenge is to find
what the halakhah says about topics which poseqim have not dealt with for centuries. For
example, he said (off the top of his head, meant only as a basic illustration), a poseq may have
to determine based on Mesekhet Peah what the halakhah would say about a government's
obligation to notify potential (but unaware) welfare recipients of their eligibility.
 Moreover, judgments rendered in the isolation of Yeshivot can afford to be rigid,
if not if not dogmatic, in their reasoning. [Communal r]abbis, on the other hand,
must endeavor to vindicate their decisions before public opinion. They must also
take into account the ramifications and consequences of their ruling on relations
and attitudes within the larger community. They must have their feet planted
firmly on earth even if their heads reach to heaven in arriving at a verdict on
problems posed to them. The Torah, after all, is “a tree of life.” It can grow and
flourish only in a vibrant environment which is exposed to the manifold elements
and stress making up the reality of life and its problems.
Halakhic texts tend to be maximal, stating the ideal, and it is up to the rabbi to moderate
these ideals, as often, the reality of life cannot tolerate ideal halakha; traditionally, the ideal law
and the reality of practical life and common practice were engaged in a dialectical synthesis.
Soloveitchik (“Rupture and Reconstruction”) notes that the Arukh haShulhan – whose author was
a communal rabbi - like most traditional codifiers, often performed limud zekhut, putting the ideal
formal law aside in favor of justifying common practice. By contrast, the Mishnah Berurah –
whose author was a rosh ha-Yeshiva – tried to uphold the ideal formal law as found in the texts
with little regard for common practice, and tried to stringently uphold all the texts at once when
they conflicted. Friedman (“Haredim Confront the Modern City”) notes just how socially
subversive and elitist the yeshivot were:
Just as this yeshiva turned into the standard bearer of traditional piety, it provided
a solid base for the "revolt" of the religious elite against the traditional life of the
Orthodox community at large. The cloistered community of learned youth was in
fact build on the ruins of the traditional Ashkenazi community, which was no
longer able to ensure its own continuity [due to the dislocations of the modern
era]. Removing the young men from the authority of their parents, from contact
with everyday secular life, from involvement in the life of a larger community
with its compromises with reality ... fosters an ambiance of piety in which the
quest for religious wholeness must inevitably lead, consciously or unconsciously,
to an elitist sense of superiority over the ordinary "mass" of traditional Jews.
Thus, the rise of the Lithuanian yeshivot – in stark contrast to the claims of the Haredim – even
led to a cultish rejection of parental tradition and authority; as Professor Friedman says in “The
Changing Role of the Community Rabbinate”,
[H]ere [in Lithuanian Haredi communities] rebellion and tradition are in conflict.
Rebellion against the parent generation is, as mentioned, a central figure, and
 since members do not come from a specific community or Hasidic tradition, they
find a direct link to the past via a literary tradition in which strict halakhic
observance prevailed. Parental tradition, with the personal compromise that
inevitably accumulates in the course of its formation, is rejected. If there are
changes in behavior, thy will be only in the direction of greater stringency,
signifying for them yet another step along the way towards attaining the ideal
Jewish way of life.
We already saw from Rabbi Katzenelbogen's response to the Rabbi Levi Yitzhak of Berdichev
and the Hasidim (Professor Friedman; not Rabbi Jakobovits's reliance on Rabbi
Katzenelenbogen), and from the Meiri's Magen Avot, that any innovation – whether towards
stringency or leniency – is to be despised as not only socially divisive but also as implicitly
casting aspersions on the practices of the ancestors. This Haredi rebellion against tradition,
besides (in cult-like fashion) violating the fifth commandment of kivud av v'eim, is thus starkly
anti-traditional. And of course, given the Haredi claim of “hadash assur min ha-torah” (which
the traditional Orthodox never claimed), this rebellion against tradition by the Haredim is only the
more damning.
And this divorcement from the realities of life did more than merely stultify the quality of
religious learning and practice, and corrupt the traditional quality of halakhic Judaism. As
Professor Friedman says (“The Changing Role of the Community Rabbinate”),
It was in particular the most gifted, those who promised to become the 'great men
of Torah' of the future, who were drawn to that isolated, almost monastic world.
In the elitist community of the yeshivah the students could behave according to
higher-than-customary halakhic standards, in response to their religious
conscience. By comparison, the role of the traditional rabbi seemed to be
confining and limiting. It required constant involvement with humdrum daily
affairs, with quarrelsome householders, forceful community leaders, and
problems of difficult rulings, which often required a search for compromise that
was disturbing to religious conscience; this was so even in traditional
communities that had not been rocked by secularization. The communities could
hardly compete with the yeshivot for the most talented rabbinical candidates.
And likewise, Rabbi Jakobovits states (“Rabbis and Deans”),
One result [of the rise of voluntary communities and elitist academic roshei
yeshiva] is the attrition of the rabbinate. With its demotion and discreditation at
the hands of the Yeshivah "world," the scholastic caliber of the men attracted to it
 has steadily declined to a level of general mediocrity. By now there are very few
outstanding halakhic guides left in the active rabbinate.
Indeed, the yeshivot undermined traditional Jewish life. But whereas the yeshivot were
first established before the Holocaust, it was only after the Holocaust that the yeshivot
proliferated. For although yeshivot existed before the Holocaust, only a small number of students
learned in them, for economic reasons. But in the West and in Israel, the modern welfare state
enables entire communities of youth to remain in yeshivot for years on end, causing a dramatic
social upheaval. Whereas only a few elite students learned in Volozhin-type yeshivot before the
Holocaust, learning in these institutions is now almost universal. In the 1950s, just after the
Holocaust, parents first began send all their (male) children to the yeshivot, and thereby they
forfeited any personal role in their children's socialization; the children would be indoctrinated in
the yeshiva's system and textual traditions, and the parents' mimetic traditions of pre-Holocaust
Jewish life were lost.
The yeshivot proliferated only after the Holocaust, and yet many Haredim appeal to
prewar Eastern European Orthodoxy for legitimation, speaking of the gedolim and the yeshivot
and the yirat shamayim that was then present. But in reality, this image is a nostalgic historically
revisionist one; in reality, only a select few students learned in yeshivot, and most rabbis were city
rabbis, not roshei yeshiva. Most Orthodox Jews in prewar Eastern Europe were baale batim, not
talmidei hakhamim. Any appeal by Haredism to Eastern European Orthodoxy thereby reveals a
nostalgic and ahistorical understanding of what that prewar Orthodoxy was. And in an attempt to
live up to what they perceive – wrongly – to have been once, the Haredim exaggerate that
Orthodoxy, creating a caricature. Eastern European Orthodoxy certainly had its features that are
more in common with contemporary Haredism than with German or Sephardic Orthodoxy – the
appreciation for secular learning and mundane occupation, for example – but Haredism today is
an exaggerated distortion of Eastern European Orthodoxy, the grotesque result of taking
everything to the “nth degree”, based on nostalgia.
Another interesting example of historical revisionism and a-historical nostalgia plays a
vital role in the enabling of the contemporary yeshiva “learning” culture. In prewar Europe, any
Torah learning for women was absolutely unheard of, being considered completely contrary to the
Torah. Therefore, Professor Menachem Friedman in “Back to the Grandmother” notes,
[T]he idea of Jewish education for girls had in it an element of calling tradition
into question... The rabbis who gave her [viz. Sarah Schenierer, the founder of
the Beit Ya'akov school system for girls] their blessing, headed by the Belzer
Rebbe, Yisachar Dov Rokeah (1854-1927), must have had no idea how far the
 matter would go.
In fact, Professor Friedman is considerably understating how repulsive the concept of Torah
learning for women was. Dr. Laura Shaw Frank in “But We Are Guilty for Our Daughters”
recounts at length how lack of Torah learning for women in Cracow resulted in a massive and
incredibly demoralizing wave of conversion to Christianity by young Jewish women who had
grown up in strictly-observant Hasidic homes. At a rabbinic conference, when one lay leader
suggested instituting formal education, merely in the siddur and the laws of the Jewish home (i.e.,
only those matters of Judaism and Torah that were unquestionably relevant to women; apparently,
not even Tanakh or Pirkei Avot or Tehillim would have been taught!), one rabbi stood up and
responded to this paltry proposal, saying, “God forbid that we should educate girls in Torah!”.
And this in the face of massive waves of apostasy by these young women; the rabbis preferred
conversion to Christianity over the mere teaching of the siddur and the laws of the Jewish home!
Suffice it to say, any Torah education for women was controversial. (Secular education for the
women was not controversial at all. Dr. Frank notes that these same young women were quite
regularly receiving significant secular education, without any rabbinic oversight at all. She notes
that as far as the rabbis were concerned, as long as the women were not learning Torah, they
could learn whatever they wanted. Obviously, their significant secular education combined with
an absolute lack of Torah education was directly responsible for their apostasy.) But with the rise
of the state of Israel, this entire attitude was almost entirely forgotten. As Professor Friedman says
(“Back to the Grandmother”; cf. “The Position of Haredi Women in Israel”),
The ultra-Orthodox Jewish community in Israel, gave almost no thought to the
organized education of its daughters. ... The turning point came after the
establishment of the State of Israel, when the government assumed responsibility
for education, including the maintenance of the Beit Ya'akov and Talmud Torah
schools sponsored by Agudat Yisrael. Suddenly, because of the mass immigration
after the establishment of the State, the education system need a huge number of
new teachers. The graduates of the Beit Ya'akov schools found without difficulty
jobs with salaries guaranteed by the state or the local authorities. Work at the Beit
Ya'akov schools became an accepted standard in the ultra-Orthodox community.
Teaching in Beit Ya'akov schools provided a steady salary, and was almost as if a boon from
heaven for the Haredim. As Professor Friedman continues (“Back to the Grandmother”; cf. again
“The Position of Haredi Women in Israel”),
In order to realize this idea [of universal yeshiva lifestyle for men], the Hazon Ish
had to find for yeshiva students wives who would be willing to allow their
 husbands to study why they supported their families by working. The existence
of young women with regular jobs and relatively good and steady salaries fit the
Chazon Ish's vision almost as if created at his behest. … It is difficult to
exaggerate the significance of women working in schools. It constitutes the basis
of transformation of the entire ultra-Orthodox community in the Western world
into a “community of scholars.”
Thus, one instance of historical revisionism (or alternatively, one instance of conscious and
deliberate rebellion against tradition), viz. yeshiva-learning lifestyle, led to another, viz. women's
formal education, allowing these women to earn a steady wage and support their husbands'
lifestyles. And not only is the learning by women a violation of tradition, but their employment is
as well; as Professor Friedman notes in “The Position of Haredi Women in Israel”,
A Haredi Jew generally declares that, ideally, a woman's place is in the home,
citing the well-known verse from the Book of Psalms, which states that 'the glory
of the king's daughter is within' (Psalms 45:14). … The new function assumed by
Haredi women and the changes of division of labour between husband and wife
gave rise to a new source of conflict for which an appropriate solution must be
found. For example, a working woman has a more rigid schedule than her kollel
scholar husband, creating a new situation in which a husband often fulfills many
housekeeping and childrearing functions which are reserved exclusively for
women in traditional society. The role-reversing constitutes the potential source
of most interpersonal and ideological tensions.
Similarly, Rabbi Noah Gradofsky notes (“Being a Halachic Jew”),
It should by no means be presumed that Orthodox Judaism remained static
through these centuries. In fact, many view Orthodoxy as having become
increasingly fundamentalist in order to stave off the perceived threat of the liberal
forms of Judaism. It also is by no means true to say that Orthodoxy avoided all
forms of modernity. To be sure, it integrated a great deal of modernity into the
life of its constituencies (witness, for instance, the Orthodox groups in which
women are the primary breadwinners while the men study!).
Without the employment by Beit Ya'akov schools, the Haredi yeshiva-learning lifestyle might
never have been possible. (Paradoxically, as Professor Friedman notes in “The Position of Haredi
Women in Israel”, the very Beit Ya'akov women who possess significant secular educations and
serve as the interface between the Haredim and the secular society, they are largely responsible
for the continued success and welfare of the close-minded and insular Haredi yeshiva-learning
culture!) But the dual historical revisionism (viz. regarding women's learning and employment,
both being breaks with tradition) does not stop there! These young women were now taught to
desire to marry young men who would dedicate their years to yeshiva-learning; paralleling the
Yissachar-Zevulun relationship, the women would earn while the men would learn. About this,
Professor Friedman says (“Back to the Grandmother”),
This was a revolutionary idea. Ultra-Orthodox parents wanted their daughters to
marry ultra-religious boys with a profession who could support their families.
Torah study, in their eyes, was not an end in itself... [But h]er mother was, in the
daughter's eyes, part of the “generation of the desert,” overly influenced by
modernity. Fundamentally convinced that they were rebelling against the modern
world and adopting their grandmothers as models (when their grandmothers had
never in reality lived like this), the young generation of women typified the
modern world much more than their mothers did.
Thus, while the mothers – following their traditional ethos - insisted on their daughters finding
husbands who would work, their daughters – following a modern and untraditional notion that
was falsely depicted as being the way of their grandmothers – found husbands who would learn,
and enabled their learning by finding employment with the Beit Ya'akov system, and availing
themselves of State funding for those schools. (The rejection of the ways of their mothers, and the
urging to follow the invented and fallacious way of their grandmothers, indicates a decidedly
cultist phenomenon, which we will comment on later.)
Now, I am not claiming that this advances in Haredi-women's education are to be
criticized in and of themselves. But unlike the Haredim, I do not subscribe to hadash assur min
ha-torah, and so innovations – as long as they have some legitimate Torah basis – do not ipso
facto trouble me. But the Haredim stake their entire claim to legitimacy and authenticity on the
premise that they are faithfully adhering to prewar Eastern-European Jewish culture, without any
changes or innovations whatsoever. Therefore, if the Haredim deviate from anything that
characterized prewar Eastern-European Judaism, then they ipso facto lose all legitimacy and
authenticity, for they are contradicting their very axioms and identity. (Professor Lawrence
Kaplan makes a similar argument in “Rabbi Hutner”, to be quoted later in this essay.)
Additionally, even if innovations are legitimate – which the Haredim deny – even legitimate
innovations demand honesty and transparency. But not only do the Haredim innovate – violating
their very identity – but they furthermore engage in historical revisionism, denying this
innovations, only compounding their fundamental lack of legitimacy and authenticity.
Another factor in Haredism is the rise of what Friedman often calls “volunteer
communities”: following the dislocations and migrations that characterized the eras of the
Haskala and Holocaust, the new transplanted refugees and migrants formed new “volunteer
communities”. Professor Friedman describes the traditional community (“The Changing Role of
the Community Rabbinate”) saying,
The community was a quasi-sovereign-sovereign body, defined by clear
geographical lines distinguishing it from other Jewish groupings. Every Jew
living within its boundaries was a member of it, accepting the rabbi's authority in
all areas specified by his writ of appointment. The rabbinical writ of appointment
is a contract which clearly defines the relationship between the rabbi and the
community; it maintains a delicate balance between rights and obligations, which
allows for rational supervision of the rabbi's activities.
Traditional Jewish communities were heterogeneous and had to include everyone within a certain
geographic compass, thereby being forced, to one degree or another, to legitimize and
accommodate the varying practices, even of the “weak” and nominally observant. Thus, Professor
Friedman notes (“Halachic Rabbinic Authority in the Modern Open Society”),
[T]he traditional community, which by its very nature was quite heterogeneous,
since all were required to belong to it, had to take into account the "weak" (in
terms of their willingness to observe Jewish law in all its details) who came
under its aegis. Specifically because of its compulsory authority, it had to take
care not to establish strict norms that a portion, even a minority, of its members
could not uphold. The traditional community also had to ensure that it did not
grant legitimacy to stringencies that were a deviation from the hallowed
traditions of their forefathers, because this would have severely harmed the
religious perfection/integrity of the past generations that was a central principle
of the traditional community.… It therefore could not agree either to deviations
in the direction of leniency or to the adoption of stringent norms by a portion of
its members.
In “Life Tradition and Book Tradition”, Friedman illustrates the traditional community's concern
– in contrast to the selective voluntary community - for the weaker and less fastidious and
punctilious elements of the community:
A good example of this is the incident cited by R. Jacob Reischer (1719, Yoreh
De'ah, cap. 58). In one of the communities, the rabbis ruled that meat brought
from the smaller communities of the surrounding villages was not kosher because
the slaughterers in those places were thought not to know enough and/or not to be
 careful enough, by the stricter standards of the Jewish community. R. Reischer
unequivocally rejects this approach, but not because he considered those
slaughterers to be outstanding scholars. He admits that his position might be
considered "lenient," but he defends it on the basis of the principle of the
cohesion of the traditionally religious community, which might be adversely
affected by the disqualification of the village slaughterers. "It is fitting that all the
Jewish people be unified in the matter of eating and drinking so as not to cause in
their own midst a rift like that which separates them from the others [the
Gentiles]; we should not multiply separate groups." There is no doubt that R.
Reischer's approach represents a deeply rooted Jewish tradition.6
As Friedman shows at greater length in “The Market Model and Religious Radicalism”, Rabbi
Reischer was tremendously concerned for the social implications of a stricture. Making such a
distinction between two Jewish communities would create social divisiveness and animosity, and
threaten the unity of the Jewish people. Thus, to guarantee Jewish unity, all elements of the
community – both stronger and weaker alike in observance – had to be accounted for. As
Friedman notes,
A general ban officially laying blame on the residents of the medinah [i.e.
village] had the potential of arousing animosity and of undermining Jewish
solidarity, perhaps even the unity of the Jewish people. Preventing animosity is a
religious obligation that transcends even the suspicion of eating non-kosher meat.
By contrast, the new homogeneous volunteer communities included only those members who
identified with the chosen elitist ideology and practice, regardless of geographic considerations.
Unlike traditional communities, the new communities were defined by voluntary membership,
and not by geography, and therefore, these new elitist volunteer communities did not have to
reckon with those less observant or fundamentalist individuals, even if they shared a geographic
region. They did not need to have any solicitude for the weaker elements, as these elements were

6 This quotation of Friedman's is from “Life Tradition and Book Tradition”, but the statement
embedded therein from Rabbi Reischer, in quotation marks (“It is fitting...separate groups.”), I
have composed myself as a pastiche of two slightly variant translations by Friedman of this
same statement of Rabbi Reischer's; from “The Market Model and Religious Radicalism” I took
“It is fitting...[the Gentiles]”, and from “Life Tradition and Book Tradition” I took the
continuation “we should...groups.” The sense of the passage is unchanged, but I aesthetically
preferred different aspects of the different translations by Friedman of Rabbi Reischer's
statement, and so I made a pastiche.
ipso facto not even a part of the community per se to begin with, regardless of where they lived.
This was revolutionary and non-traditional, and the Hazon Ish played no small role in this, as
Friedman explains (“Halachic Rabbinic Authority in the Modern Open Society”):
[T]he Hazon Ish was the spiritual leader of a young and radical ultra-Orthodoxy
that found itself liberated, to a great degree, from the bonds of tradition.
Moreover, following the Holocaust and the establishment of the State of Israel,
the latter [ - viz. the Hazon Ish; “the former” would be ha-Yishuv ha-Yashan - ]
was given the opportunity to establish a new ultra-Orthodox society, the "society
of scholars," as a stringent and selective society. … The stringent voluntary
community...is, by its very definition, freed from any commitment to the "weak."
Nor does it possess a defined ancestral tradition to which it is committed. … This
could not have been realized in the past, due both to economic constraints and
(perhaps mainly) to the cultural and social restrictions that found expression in
the living tradition and structure of the traditional Jewish community.
And thus, Friedman concludes on these communities (“Life Tradition and Book Tradition”),
The stringent voluntary communities are in fact selective communities reflecting
an elitist approach and are reminiscent of the quasimonastic communities
described; the development of the former (haredi [volunary communities]) is
surely related to the renewal and development of the [elitist] quasimonastic
yeshivot in the West.
However, while Professor Friedman chiefly focuses on the role of the yeshivot in the rise
of the un-traditional voluntary community, he notes another influence as well: in “The Changing
Role of the Community Rabbinate”, we read,
The development of the Hasidic movement also gave rise to a new social
grouping - the Hasidic community, which also affected the status of the
community rabbinate. The Hasidic community (`edah) and the traditional
community (kehillah) are two different forms of social organization. The former
is based on free and voluntary membership and on a personal tie between the
hasid and the rebbe and is not necessarily related to a place of residence. The
second, as already indicated, is a formal framework having a clear geographical
definition, and it includes all those living within its geographical bounds. ... This
phenomenon - the development of a voluntary community and of a voluntary
community rabbinate - is perhaps the most significant feature of the rabbinate in
modern society.
We will see Hasidic influence again when discussing the rise of Da'at Torah, “the pronouncement
of the halachists ex cathedra, based simply upon the general prestige conferred on the halachists,
and therefore binding for religious Jewry” (Katz, “Da'at Torah”).
There is another important ramification in the distinction between traditional and
voluntary communities. We've already seen above mention of the “writ of appointment” which
spelled out precise contractual obligations between the community and its community rabbi. As
Friedman further notes ("Halachic Rabbinic Authority in the Modern Open Society"),
While the latter [viz. traditional communities] was marked by a balance between
the rabbi and the community's lay leaders, who were dependent on one another
and needed on another, the gadol of the stringent voluntary community is "freed"
from dependency on any organized body within the community. In effect, the
personality of the stringent community's leader cannot be separated from the
identity of the community and its self-definition.
Similarly, as we have already seen, Rabbi Jakobovits states (“Rabbis and Deans”),
Moreover, judgments rendered in the isolation of Yeshivot can afford to be rigid,
if not if not dogmatic, in their reasoning. [Communal r]abbis, on the other hand,
must endeavor to vindicate their decisions before public opinion. They must also
take into account the ramifications and consequences of their ruling on relations
and attitudes within the larger community.
In a traditional community, constituted geographically by the inhabitants of a given
locale, the community exists with or without its rabbi. The task of the rabbi, then, in such a
traditional community, explains Friedman ("Halachic Rabbinic Authority in the Modern Open
Society"), is to negotiate the community's response to new and changing conditions of modern
life; the more the rabbi successfully finds solutions, the more prestige he will gain. By contrast,
the voluntary community exists only by virtue of the rabbi and his ideology; therefore, any
solutions to new conditions and situations ipso facto constitute changes to his ideology and the
voluntary community's platform and program, and threaten its very existence. The voluntary
community exists only as long as its ideology and platform are intact, and so innovation is
forbidden. Moreover, the laity cannot question the gadol – he is beyond any censure or criticism
or oversight – because without the gadol, the community does not exist; verily, there is almost no
limit to his power. (Witness the rise of Da'at Torah.) By contrast, the traditional community is a
demographic and geographical reality, and so innovation and change do not threaten its existence,
as its existence is a physical reality, and the rabbi is very much accountable to his congregates, for
even without him, the community physically endures. Thus, the traditional community is more
independent of its rabbi, while the voluntary community grants almost limitless power and
influence to its “gadol”. However, on the other hand, Friedman, in “The Market Model” and in
discussion of American Orthodoxy in “The Changing Role of the Community Rabbinate”,
suggests the very opposite is true. In a traditional community, the rabbi is valued chiefly for his
scholarly and intellectual ability, not for his charisma, because members cannot enter or leave the
community without physically relocating themselves, and so it is irrelevant whether the rabbi can
attract new members to his banner by charisma and influence. By contrast, in a voluntary
community, where individuals have the choice of which community to belong to, the rabbi must
be a charismatic individuals capable of attracting new members and retaining the old; his
conviviality is thus more important than his scholarship. Thus, in the voluntary community, the
rabbi becomes subject to capitalistic market forces and beholden to the preferences of the laity; if
the laity becomes dissatisfied, they can leave and join a new community, whereas no such
possibility exists in the traditional community. Additionally, the rabbi is beholden to the
synagogue president and board, who often dispute the rabbi despite their inferior halakhic
knowledge. I am not sure how to reconcile these two diametrically opposed ramifications – i.e.
whether a voluntary community increases or decreases the rabbi's powers – but perhaps it
depends on which sort of voluntary community is being discussed. In a pluralistic American
society, for example, the Orthodox rabbi of a voluntary community must ensure that his
congregates remain with him rather than join another Orthodox community, or even a Reform or
Conservative one. By contrast, in a Haredi voluntary community, organized around ideology, the
community exists only by virtue of its rabbi's platform, and so without him, the community
ceases to exist. Thus, the “gadol” becomes the center, and the laity is beholden to him. Indeed, the
Haredim show little predilection to popularize themselves and attract new members via
compromise and leniency; they rather hold fast to their – often meaning their rabbi's - chosen
ideology, and spurn all those who do not wish to themselves adopt this ideology. In other words,
whether a voluntary community results in increased or decreased authority on the part of the rabbi
– either is possible – depends on what constitutes the community, what its “charter” or raison
d'etre is. I then saw that perhaps Professor Friedman alludes to just such a distinction as I have
just drawn: in “The Changing Role of the Community Rabbinate”, after discussing the Orthodox
synagogue congregation in pluralistic America, which subjects the rabbi to capitalistic forces and
demands charisma and conviviality of him, Professor Friedman then separately discusses the
Hasidic community. Crucially, he then proceeds to compare the two, saying,
The development and spread of voluntary selective communities of this sort in
the open society of the West is one of the paradoxical results of secularization.
 The very breakdown of the traditional community based on boundaries that
encompassed all the Jews residing within that geographical area, made it possible
to establish Reform, Conservative and Orthodox communities with the very
lowest common denominator of religious observance. However, it also enabled
those prepared to impose on themselves a much stricter standard of observance
than had been the norm in traditional society to organize within a framework
around a leadership they regarded as legitimate and which filled their needs. The
possibility of choosing their members accounts for the increase in recent years of
such selective elitist communities, which vary in degree of religious observance
and association with figures of religious authority.
In other words: in synagogue communities, competition between the various streams of Judaism
demands charisma of the rabbi, appeals to membership, and subjection to capitalistic forces,
thereby demanding satisfaction with the lowest common denominator, and weakening the
traditional halakhic powers of the rabbi. By contrast, in a Hasidic community (or in a Hasidized
Lithuanian Haredi community, in which the gadol and his Da'at Torah substitute for the rebbe),
the selectivity and elitism of the community strengthen the power of the gadol, for he alone
represents the community, and anyone differing with him is ipso facto rejected from the
community. But all this is only conjecture on my part; I am no scholar whatsoever, and I am
merely trying to reconcile what I have read in various essays of Professor Friedman's, without the
benefit of any personal qualification in this field.
And of course, in their preoccupation with traditional texts, the students of the yeshiva
were not only isolated from traditional life, but also from secular learning. The yeshivot did not
concern themselves with practical rabbinics – and they scorned and mocked the German
Hildesheimer seminary for indeed dealing with practical rabbinics - and not only did this mean
ignoring practical communal reality and mimetic tradition, but also it meant forgoing all practical
secular learning. Knowledge of how to operate in the modern world, whether to earn a living or to
be acquainted with the knowledge that mankind has increasingly been able to amass with the
passage of time, both are spurned. Whereas traditional Jewish scholars were well acquainted with
the science of their day, using it to understand the Torah and applying the Torah to that knowledge
– determining what is permissible and what is forbidden with regards to the new knowledge – the
yeshiva students occupied themselves exclusively with traditional Jewish texts, leading to a
distorted view of Judaism's approach towards knowledge that is not strictly “Torah.” This
distorted view of secular learning and mundane occupation had in fact already begun with the
ghettos and their deleterious and pernicious effect on the quality and perceived importance of
non-spiritual aspects of life, as Rabbi Dr. Eliezer Berkovits indicates in Judaism: Fossil or
Ferment? (p. 129):
A well-integrated culture he [viz. Toynbee] compares to to a flint, in which the
many constituent “flakes” have been “compacted by the age-long pressure of
enormous forces.” The nucleus of a culture may be its religion; the various
“flakes” which surround the nucleus are the economic, political, and cultural
planes of life. In the process of disintegration [in galut] the various flakes are
split away from the core one by one, until the religious nucleus is exposed. …
Jewry's exile is not a healthily integrated body social, nor could it ever be.
Judaism becomes stultified for lack of opportunity for “interpenetration” with the
economic, political, social, and cultural “flakes” which “a demonic flintknapper”
has forcibly broken away from it.
Regarding the traditional view of secular learning and mundane occupation, and the divergent
view fostered by the galut and the ghettos, Rabbi S. R. Hirsch says in “The Relation of General to
Specially Jewish Education”:
It was at the beginning of this century that the Jewish people, after
centuries of enforced seclusion and estrangement, came once more into contact
with non-Jewish culture. We say advisedly “once more” because this
estrangement was not inherent in the original nature of Judaism and did not result
necessarily from it, as is amply shown by the brilliant literary productions from
more fortunate times. [Presumably, Hirsch intends pre-Expulsion Spain.] … We
have to lament that the great Jewish scholars, in whom that age [of religious
upheaval in the wake of the Enlightenment and Emancipation] was by no means
poor, were prevented by seclusion to which the political situation of their people
had condemned them from themselves making a firsthand acquaintance with the
general cultural strivings of of the age. With their keen insight they would
quickly have greeted what was true and good in general culture as something
closely akin to the Jewish outlook, and they would have been the first to prepare
a home for it in their own circle. We have to lament that an opposition which
might find some justification in other denominations [viz. Christianity] was
carried over without more ado into the field of Judaism, without anyone asking
whether owing to the peculiar nature of the Jewish religion it did not here lose
much of its acuteness.
In fact, the attitude of Judaism to all other religious denominations and to
 all human searchings for knowledge in general is quite different from that of all
other religions. It is perhaps the only religion which does not say, extra me nulla
salus, which gladly welcomes every advance in enlightenment and virtue
wherever, and through whatever medium, it may be produced. Nay, more, it is
bidden to look forward to this continuous intellectual and moral improvement of
mankind, and its ever wider diffusion, by its own literature which so
prophetically illumines the course of history. It is perhaps the only religion the
adherents of which are taught to see a revelation of the Divine in the presence of
a man who is distinguished for knowledge and wisdom, no matter to what nation
or religion he belongs – just as they see it in the first light of morning, the
blossom of spring, the roar of the thunder, the flash of lightning, everything in
nature that is beautiful, elevated and mighty and that brings benefit and blessing
– and to greet the sight with a blessing to God “Who hat bestowed of His wisdom
on mortals”
But in contrast to this universalist pre-ghetto traditional Jewish view – one which was in fact
maintained by the Sephardim (see the many works of Rabbi Marc Angel for illustration) – the
Eastern European ghetto view, and even more the Haredi yeshiva view, made a caricature out
how traditional Judaism regarded knowledge that is not strictly “Torah.” The ghetto view – as
indicated by Rabbis Hirsch and Berkovits – was already a distorted view, but the yeshivot further
distorted what was already a pale form of authentic Judaism.
Friedman, in "Haredim Confront the Modern City" quotes from an Agudat Yisrael
journal:
The young man of faith seeks completeness ... ; he finds it within the walls of the
(holy) yeshivas. ... In his parents' home, as against this, he very often comes up
against contradictions ... and the entertainment of views that are tainted with
apostacy and atheism. ... The young man with faith today is entirely free of the
spell of the false solutions that previously held him in thrall.
This passage – found also, with greater elaboration in Friedman's "The 'Family-Community'
Model in Haredi Society" - evinces practices decidedly reminiscent of cults, viz. turning children
away from their parents, turning children away from the influence of their parents and their
parents' guidance and tradition, to replace it with the cult-leaders' own charismatic authority. The
first attack made by cults is on the fifth commandment to honor one's parents. In fact, the
yeshivot actually replaced the family and the community; in lieu of the influence of fathers and
mothers and relatives and neighbors, all with longstanding traditions and customs and lifestyles,
the students were shaped, indoctrinated, and socialized entirely by the charismatic yeshiva elites.
We above discussed the a-historical notion presented to Beit Ya'akov graduates that their
grandmothers – unlike their mothers – had married unemployed learners. Here too, we see the
same phenomenon of cults. Professor Friedman quotes (“Back to the Grandmothers”) Rabbi
Menachem Alberg from the daily Ha'Modia, 29 April 1982:
We must walk in the path fixed by our grandmothers. Our mothers, as much as
we love and value them, have absorbed too much the odor of European
culture. ... Our slogan must be: back to the grandmother. She will serve us as an
enlightening example on the paths we must follow. ... Only she knew with pure
intention to scorn the modern world and all its idolatry.
We see similar cultist tendencies in Professor Mark Steiner's, “The Transformation of
Contemporary Orthodoxy: Another View”:
The head of a famous haredi girls' seminary in Bnei Brak writes explicitly in a
book on hashkafa for the girls that although in the past, one could rely on the
traditions of one's kehila and rabbis, today, after Hitler, one can rely only on the
(uncorrupted) “gedolei Torah.” The much touted concept of Da'as Torah also
stems from this idea: no text can be interpreted by one not immersed in the spirit
of that text. In the language of philosophy, every "knowing that" presupposes
"knowing how." Only the uncorrupted gedolim, not rabbis, and certainly not one's
own parents, can be trusted to interpret Judaism consistently with the spirit of
Torah-according to this world view.
This dovetails into Steiner's summary of what has happened recently with Haredism:
Let me summarize my own description of how Orthodox Jewish practice has
changed recently. There has been a change: a change in the locus of authority.
The traditional kehila was no more, its potential leaders perceived as having sold
out to the New World or to Zionism. What was left, a tradition without any
religious legitimizing authority, was fragile and inherently unstable, susceptible
to massive defections to the left and to the right. Most, of course, left the fold.
[Thus, the modern era and its “isms” undermined the traditional community.]
Those truly interested in fulfilling God's Will had no choice but to turn to what
they considered to be the uncorrupted saving remnant, those talmidei hakhamim
they began to call "gedolim."
A key example which is used by almost everyone – but in particular see Friedman's “The
Lost Kiddush Cup” and “Life Tradition and Book Tradition in the Development of Ultra-
Orthodox Judaism” - is the transformation of the size of a kiddush cup. Traditionally, the kiddush
cup was veritably a symbol of Jewish tradition; fathers would transmit their cups to their favored
sons, and zeide would make kiddush for the whole family every Shabbat and at every Pesah seder.
The kiddush cup was the quintessential symbol of tradition, and reason would dictate that no
other custom's parameters and details could be more inviolate. And yet, the Hafetz Haim's own
grandchildren do not use his kiddush cup! Why; how can this be? In a society that professes
adherence and faithfulness to tradition, one should expect such a revolution to be impossible.
Indeed, in “Halachic Rabbinic Authority in the Modern Open Society”, Friedman says (all [] are
Friedman's, {} are mine),
A prime example of this {opposition to the new larger shiurim, on grounds of
tradition} appears in a passage by one of the leading rabbis of Izmir {, Turkey},
R. Hayyim Palaggi (Palache, 1788-1868). After discovering that according to one
view { - apparently either the Nodah b'Yehuda or the Hatam Sofer, discussed
previously by Friedman, but I am not sure - }, the measure of a revi'it is equal to
almost 40 dirham { - an Egyptian coin - }, in contrast to the ruling by
Maimonides of 27 dirham, P. Palaggi wrote:
In my humble opinion, the actual halacha, however, is that one
should act as everyone does, and in accordance with the
tradition of our forefathers. And so it was with our forefathers,
our masters, the great [and] holy rabbis, from ancient times and
yesteryear, all of whom established the measure of a revi'it as 27
dirham [as did Maimonides], [that is,] the measure of an average
person. [emphasis added]
So how could this change then occur? In “Life Tradition and Book Tradition in the Development
of Ultra-Orthodox Judaism”, Friedman explains,
It is not normally expected that such a change would take place within the
framework of a conservative society in which the living tradition, including
ceremonial objects, is passed on from father to son in an orderly fashion. The fact
that the shi'urim of the Hazon Ish became the established norm within such a
short period, and with regard to such a broad segment of the haredi community,
shows that the latter is indeed different in a number of respects from the
traditional religious community as it had developed in Eastern Europe up until
the late eighteenth and early nineteenth centuries.
And again (ibid.),
 Is it conceivable that within a geographically and historically continuous society,
characterized by direct contacts between several generations, in which ritual
objects are handed down from generation to generation, that one person (as great
a scholar as he might be) could arise and state that the accepted practices, relating
to central ceremonies, must be significantly changed, without causing a reaction
that would rock the society? The establishment of revised norms can only be
understood against the background of a breakdown in tradition, on the one hand,
and the emergence of a new generation, educated in [quasimonastic] total-like
institutions and directly involved [exclusively] with halakhic literature, on the
other[;] ... a new reality linked to past generations not through direct contact with
their life style but through their books.
If the shiurim of something as quintessentially traditional as the kiddush cup can change, there
can be no clearer sign that Haredism is not identical with traditional Torah Judaism. Because of
the dislocations of the modern era, families literally, physically lost their ancestral kiddush cups,
and could not longer be viscerally reminded of their tradition at every Shabbat table. Combine
this with elite textualism of apodictic “gedolim” and universal ivory-tower-yeshiva attendance,
and the the result is that new standards demand larger cups, new standards call for a larger revi'it
and a larger kezayit, etc. and the mimetic tradition – such as the fact that zeide's own cup is far
smaller than the new standard - is too weak to confront this new elite textualism. The kiddush cup
example is but one example of many, but it is a powerful one, and it amply illustrates the point –
Haredism is not to be blithely identified with traditional Torah Judaism – such an identification
ought to be classified as veritable canard!
The schism between traditional Orthodox and Haredism is exemplified powerfully in the
words of Rabbi Yehuda Amital (Commitment and Complexity: Jewish Wisdom in an Age of
Upheaval, p. 48, quoted in “Marc B. Shapiro - Responses to Comments and Elaborations of
Previous Posts III”):
We live in an era in which educated religious circles like to emphasize the
centrality of Halakha, and commitment to it, in Judaism. I can say that in my
youth in pre-Holocaust Hungary, I didn't hear people talking all the time about
"Halakha." People conducted themselves In the tradition of their forefathers, and
where any halakhic problems arose, they consulted a rabbi. Reliance on Halakha
and unconditional commitment to it mean, for many people, a stable anchor
whose purpose is to maintain the purity of Judaism, even within the modern
world. To my mind, this excessive emphasis of Halakha has exacted a high cost.
 The impression created is that there is nothing in Torah but that which exists in
Halakha, and that in any confrontation with the new problems that arise in
modern society, answers should be sought exclusively in books of Halakha.
Many of the fundamental values of the Torah which are based on the general
commandments of "You shall be holy" (Vayikra 19:2) and "You shall do what is
upright and good in the eyes of God" (Devarim 6:18), which were not given
formal, operative formulation, have not only lost some of their status, but they
have also lost their validity in the eyes of a public that regards itself as committed
to Halakha.
In summary: with the dislocations to traditional life caused by the modern era, the higher yeshivot
and the “gedolim” have replaced the traditional sources of Judaism, the mimetic tradition. Elite
yeshiva culture fosters an ivory-tower textualism disconnected from practicality and reality, while
elite yeshiva heads (the “gedolim”) replace parental and communal authority with their own,
even accusing the former of unreliability if not heresy – all the marks of a cult. The ghetto and
even more the yeshivot created a distorted view of secular learning and mundane material life.
Eastern European Orthodoxy, wrongly understood ahistorically due to nostalgia and “rose colored
glasses”, is wrongly appealed to to uphold Haredism, resulting in a caricatured and distorted
imitation of authentic prewar Eastern European Orthodoxy.
The problem that faces the Modern Orthodox world is well put by Friedman ("Halachic
Rabbinic Authority in the Modern Open Society"):
We may state that Orthodox society has acquired a hierarchical communal
structure, with the stringent voluntary communities perceived as more "religious"
and more "devoted to religion," with their rabbis being the "true" gedolei ha-
Torah.
In other words, the Haredim enjoy a hegemony; non-Haredim wrongly view the Haredi model as
the most authentically Orthodox one, and so the Haredim are able to impose their parochial
vision. Another problem is that those more tolerant and open-minded voices are precisely those
which will fail to sufficiently represent themselves vigorously and forcefully; it is the less tolerant
and the more parochial parties who will have the gumption and force of will to impose their view
on others. What Professor Daniel Elazar says regarding the Sephardim (“Can Sephardic Judaism
Be Reconstructed?”) applies to the Modern Orthodox as well:
The strengths of the Sephardic way are also its weaknesses, while the weaknesses
of the Ashkenazi way are also its strengths. If the strength of the Sephardic way
is in its willingness to try to cope with the world around it through interfacing
 rather than isolation and its reaching out to all Jews without breaking away from
tradition, those strengths also lead to its weaknesses in the tendency of
Sephardim not to take firm stands in defense of the maintenance of tradition, to
almost blow with the wind, as it were, rather than be willing to make the
necessary sacrifices in a world often hostile to tradition. By the same token, the
weakness of the Ashkenazi tradition makes them very strong, even fanatically
strong, in defending, adhering to, and trying to advance their position, whatever it
might be. Hence, they are better prepared to fight the fight against the
breakdowns of modernism than the Sephardim, one way or another, while the
Sephardim find it hard to stand up to those breakdowns and to the proposed
responses to them developed by the Ashkenazim. The tendency of the Sephardim
has been to simply give in when confronted with such iron-willed assertion of
what is right. It should be noted that this is true with regard to both the religious
and the Zionist socialist establishments in Israel where the majority of the
Sephardim found themselves after the break-up of the traditional Sephardic
world.
To return to Haredim, Friedman ("Halachic Rabbinic Authority in the Modern Open
Society") notes moreover that,
A traditional community is defined geographically and cannot be "left" unless
one moves to another city. In contrast, a voluntary community may be left if the
rulings of the rabbi are unacceptable to some of the community's members, with
these individuals continuing to live in the same city and even in the same
neighborhood. ... [A] small minority of those following stringent views, the
"God-fearing"..., enjoy prestige and power that enable them to determine
communal standards. In the modern reality, it is the stringent who are at the top
of the pyramid in terms of religious standing, and to a great degree they dictate to
the rabbi the parameters of his ruling.
Friedman illustrates how even such authoritative figures as the Hazon Ish are often forced to rule
stringently; the congregates ask their she'elot in such a way as to leave a stringent answer as the
only one, and moreover, if the rabbi does not answer strictly, congregates will leave his
community. The more strict congregates are perceived as being more pious, and so they also force
- by charisma and influence - everyone else to follow suit in stringency. In other words, those
individuals who appear more pious in their stringency, actually have a sort of veto power; they
can threaten to abandon the community if things do not go their way, and of course, the
abandonment of the community by its more pious members will do little to galvanize or inspire
the remaining members, and thus, the community will attempt to retain the mahmirim by
satisfying their desire for stringency. Within the Haredi voluntary communities, and even without
– i.e. in the Modern Orthodox communities – the Haredim constitute a hegemony, with the
Orthodox world feeling compelled to follow the mahmirim, who are apparently more pious and
G-d-fearing. This is the situation facing Modern Orthodoxy today, and it is this which threatens
its survival and continuity. If, as the foregoing has attempted to show, the Haredim lack historical
authenticity and legitimacy as the true representation of Torah Judaism, then Haredism's
hegemony can only be seen as threatening and disastrous to those committed to authentic Torah-
true Judaism.
This analysis has been perforce abbreviated and summarized extensively, and moreover, I
am no expert on these matters. My wish has only been to acquaint the reader with some of the
basics, and provide pointers for further learning. It is essential for us today to understand
Haredism and its history and sociology; if Modern Orthodoxy today sees itself as a grasshopper
in the eyes of the Haredim (David Balint, “The “Grasshopper Effect” and Other Defects in
Modern Orthodox Leadership”), and if Sephardi rabbis are today overawed into dressing like
Ashkenazim (Rabbi Marc Angel, “Sephardic Rabbis in Ashkenazic Garb!!!”), then the solution is
to understand what Haredism is, and to understand why it, in truth, has less legitimacy than most
realize in its aspiration and claim to represent authentic traditional Judaism. Friedman (“Life
Tradition and Book Tradition”) minces no words:
In my opinion the Eastern European, Ashkenazi character of haredi Jewry
remains questionable to this day.
Only by understanding Haredism's sociology and history can we understand its lack of
authenticity and legitimacy. Of course, this inevitably leads to the conclusion drawn by Professor
Chaim I. Waxman's study (“The Haredization of American Orthodox Jewry”):
If the modern Orthodox are to play any kind of a constructive role, that is, a role
in maintaining the basic unity of Jews and Judaism, they may have to seriously
consider an overt challenge to and, perhaps, even separation from haredi
Orthodoxy. That is not a step to be taken lightly. The step itself as well as the
critical needs of the hour require its careful consideration and deliberation.

IV.
A critical component of Haredism not dealt with by what has been cited from Professors
Haym Soloveitchik and Menachem Friedman is the concept of “Da'at (or Da'as) Torah”, whose
definition can range anywhere from reverence for the sages to attribution of something
approaching papal infallibility. In determining the authenticity of Haredism in general, it
behooves us to examine Da'at Torah in particular. The claims made on behalf of Da'at Torah, and
its centrality in Haredi philosophy, together make it essential to examine its veracity.
But first, we must realize one potential pitfall: as Professor Lawrence Kaplan says in
“Interview”,
Part of the problem in writing a critique of the concept of Daas Torah is that it is
a moving target; people keep on defining it differently. When people are
oftentimes defending it, they define it more modestly: it’s a limited notion, we’re
not saying the “gedolim” are infallible, maybe there’s a plurality of views that are
Daas Torah, but obviously rabbis should have some say on broader communal
issues, etc. There was an exchange [“Daat Torah”] in The Journal of Halacha
and Contemporary Society [45 (Spring 2003), 67-105; 46 (Fall 2003), 110-123],
between me and Rabbi Alfred Cohen -- where if I understood him correctly, he
proposed this type of scaled-down notion of Daas Torah. And if that is all that is
meant by it, I’m not sure if I would necessarily disagree that much. But what I
find is that when it’s actually used in the rhetoric of the Haredi world, it’s used to
make rather extreme claims. First of all, despite the idea of the plurality of Daas
Torah, it’s pretty clear to me that originally within the Agudah circles, it was used
to legitimate the Haredi world and to delegitimate the Modern Orthodox. …
Certainly there was no pluralism in Rav Shach's use of Daas Torah in his harsh
critique of Rav Soloveitchik [Michtavim U'Maamarim Mi'maran Ha'gaon Rabbi
Elazar Menachem Man Shach 4:320], and I think that’s the way it’s still
generally used. And the second thing is that it really is used to stifle dissent and
any type of criticism. I think the example of Rabbi Slifkin is the key example. …
My impression is that there are two levels. When they’re explaining the idea of
Daas Torah, they explain it in a more pluralistic way. But in practice, Rav
Elyashiv says something and everybody falls into place.
For example, according to Rabbi Avi Shafran (“What Da'at Torah Really Means”),
Da'at Torah is not some Jewish equivalent to the Catholic doctrine of papal
infallibility. Not only can rabbis make mistakes of judgment, there is an entire
tractate of the Talmud, Horiut, predicated on the assumption that they can, that
even the Sanhedrin is capable of erring, even in halachic matters. What Da'at
Torah means, simply put, is that those most imbued with Torah-knowledge and
 who have internalized a large degree of the perfection of values and refinement
of character that the Torah idealizes are thereby rendered particularly, indeed
extraordinarily, qualified to offer an authentic Jewish perspective on matters of
import to Jews - just as expert doctors are those most qualified (though still
fallible, to be sure) to offer medical advice. Jewish tradition refers to Torah
leaders as the “eyes of the community.” That is because they see things more
clearly than the rest of us. Not necessarily perfectly. And there are times when G-
d purposefully hides things from even His most accomplished disciples. But
more clearly all the same.
If this is all Da'at Torah means, then it is very doubtful whether anyone Modern Orthodox will
disagree with it. But as Professor Kaplan said, “When they’re explaining the idea of Daas Torah,
they explain it in a more pluralistic way. But in practice, Rav Elyashiv says something and
everybody falls into place.” This is not to say that Rabbi Avi Shafran himself is lying in what he
says; a reliable friend of mine told me about a private conversation he had with Rabbi Shafran,
and from what my friend told me, it would appear that Rabbi Shafran says nothing differently in
private conversation than what he was quoted above as saying. Furthermore, in this private
conversation, Rabbi Shafran said something to the effect that there is no official roster of gedolim,
and that it is therefore impossible to be sure who is and isn't a gadol. Therefore, said Rabbi
Shafran, reliance on the Moetzes Gedolei ha-Torah is pragmatic; it is extremely likely, he said,
but not guaranteed, that what so many gedolim say is true and reliable. But even if Rabbi Shafran
honestly believes everything he has been quoted as saying – which as far as I can tell, he does –
nevertheless, his minimalistic understanding of Da'at Torah does not seem to be that relied on in
practice by the majority of Haredim; as Professor Kaplan said about Rabbi Cohen, “he proposed
this type of scaled-down notion of Daas Torah. And if that is all that is meant by it, I’m not sure
if I would necessarily disagree that much. But what I find is that when it’s actually used in the
rhetoric of the Haredi world, it’s used to make rather extreme claims.” So in the following
analysis of Da'at Torah, what will be analyzed is not the minimalistic and pluralistic view of
Da'at Torah propounded by Rabbis Shafran and Cohen, but rather, it will be the more dogmatic
and uncompromising view of Da'at Torah that is seen in practice, especially by the gedolim
themselves.
According to Professor Lawrence Kaplan (“Daas Torah”),
[T]he proponents of Daas Torah have argued that it is in fact not a new concept
at all, but that it is identical with the fundamental notion of rabbinic authority as
that notion is to be found in the classical sources of Judaism. One proponent [viz.
 Rabbi Avi Shafran in “The Enigma of Moses Mendelssohn”] has gone so far as to
argue that if the concept of Daas Torah is not “mentioned per se in the Talmud,”
it is because it forms the entire basis of the Talmud's authority, because it is
“implicit in every line of every piece of every mesechta of the Talmud.”
This is no small claim, and it cannot go unexamined. Professor Kaplan quotes the Agudist Rabbi
Bernard Weinberger as saying in the Jewish Observer,
Gedolei Yisrael possess a special endowment or capacity to penetrate objective
reality, recognize the facts as they really are and apply the pertinent halakhic
principles. This endowment is a form of ruah ha-kodesh, as it were, bordering, if
only remotely, on the periphery of prophecy.
Again, this is no small claim, and it behooves us to examine its source and determine whether this
notion is attested to in historical Jewish tradition. “What are the roots of this concept in the
halakhic tradition? What is the source of the term itself? Does it have a firm base in the traditional
sources? Or is it really paradoxically enough, a modern notion?” (Kaplan, “Rabbi Isaac Hutner”).
In contrast to Rabbi Shafran's espousal of Da'at Torah as being traditional and axiomatic
in Judaism, Professor Marc Shapiro summarizes the concept saying (“The Uses of Tradition”),
[Jacob] Katz also illustrates the nineteenth [emphasis added] century
creation of what he terms ex cathedra rulings. That is, the halakhist, acting
through his charismatic personality, issues rulings on a wide range of communal
issues basing himself primarily on biblical passages and religious feelings rather
than halakhic sources. If a certain decision is perceived by the halakhist as
necessary to maintain the Torah community, he will reach it. The halakhist places
these new rulings at the very center of the religion, and one who violates them is
no longer to be regarded as a faithful Jew.
It seems clear that the method of decision-making Katz is describing is
fundamentally not really different than the contemporary [i.e. twentieth-century]
notion of Daat Torah. I thus do not accept the popular view that Daat Torah is a
twentieth [emphasis added] century concept.7 Even in pre-modern times one can

7 This paragraph is difficult to understand at first, and many have erred, including the present
author and various bloggers quoting this passage. Professor Shapiro is not arguing with
Professor Katz; he is rather arguing with the anonymous popular view. Katz dates Da'at Torah
to the nineteenth century, while Shapiro rejects a dating to the twentieth century. In other
words, Shapiro agrees with Katz's nineteenth-century dating, only he phrased his agreement as
a rejection of the contra-Katz view. The point that Katz and Shapiro are making is that even
 point to rabbis deciding communal matters based on non-halakhic points. What
this means is that the halakhist was intuitively convinced that his community
needed to adopt a certain approach and, lacking the precise halakhic sources,
supported his position by citing Bible, Midrash etc. By making a case without
traditional halakhic sources it is impossible for an opponent to marshal contrary
halakhic arguments. A ruling could be opposed, but not refuted. The only real
difference between the modern exponents of Daat Torah and the earlier
authorities seems to be that the earlier authorities felt the need to expound upon
their opinions with numerous Scriptural and Aggadic proofs. The modern
exponents of Daat Torah often feel no need to offer any justification of their
views and it is here where one finds their originality.
To summarize Professor Shapiro's position: according to Professor Jacob Katz, the phenomenon
of ex cathedra rulings (and thus Da'at Torah) arose in the nineteenth, not the twentieth century.
But in either case, the phenomenon remains noteworthy because pre-modern authorities felt a
responsibility to substantiate their viewpoints with Biblical and Midrashic – i.e., non-halakhic
philosophical, moralistic, and theological – proofs. By contrast, adherents of Da'at Torah feel free
to issue apodictic authoritarian statements without any attempt at proving their positions. This
difference is critical, and cuts to the very philosophical basis of Da'at Torah. In the words of
Professor Kaplan (“Rabbi Isaac Hutner”),
[T]he too casual use of the term [Da'at Torah] on the part of the Agudah and the
yeshivah world is often nothing more than an attempt to invest their own
particular, highly partisan, ideological position that represents only a limited
spectrum of legitimate Orthodox options, with quasi-divine status, brooking no
dissent. In this respect we may say that the notion of Daat Torah, with its
oracular nature, is radically opposed to the whole process of reasoned halakhic
pesak. While pesak always leaves room for more discussion, for further analysis,
and for responsible criticism, the whole purpose of Daat Torah is to close off and
suppress discussion. It enables one person or one group to impose, ex cathedra, a
personal, particular viewpoint on all persons or all groups-and no questions
asked!

though the term “Da'at Torah” was not used until the contemporary twentieth-century,
nevertheless, the phenomenon already existed previously in the nineteenth-century, albeit
without an associated terminology. We shall later see that Professor Lawrence Kaplan disputes
this conclusion.
And again in the words of Professor Kaplan from elsewhere (“Daas Torah”),
The methodology of halakhic pesak - even halakhic pesak involving questions of
hashkafah - with its citation and analysis of sources, use of argumentation, and
all the rest, acknowledges the possibility and more important, the legitimacy of
different viewpoints, based upon differing modes of argumentation, analysis, and
interpretation. Halakhic pesak allows for, nay, encourages, halakhic debates and
halakhic pluralism. An expression of Daas Torah, however, presents itself, sans
argumentation and analysis, as the authentic Torah viewpoint on the issue in
question, thus implicitly - and at times, explicitly - branding all other positions as
inauthentic and illegitimate. ... But more. ... For the difference between the two is
not just a matter of halakhic - and particularly hashkafic! - pluralism versus
halakhic - and hashkafic - uniformity. The difference also touches upon profound
epistemological and axiological matters. For whereas halakhic pesak allows for,
indeed encourages, reasoned debated and disagreement - within, of course, the
framework of the halakhic system - Daas Torah...requires the suppression of
one's own critical faculties and submission to the superior, if at times
incomprehensible, wisdom of the gadol. ... [T]he views of the gadol are true and
authentic, while my differing views are false and inauthentic. What is required of
me, then, is, again, intellectual submission and faith in the gadol and his superior
wisdom. This being the case, it follows that the ideology of Daas Torah is a
central, perhaps the central, element in the ethic of submission that characterizes
the rejectionist approach [towards modernity]. For at the heart of the rejectionist
approach is the view that unquestioning submission to authority, the authority of
halakhah, of the gadol, of God, is the highest religious value and one that is
absolutely opposed to the modern values of intellectual autonomy and self-
expression. ... [T]he disagreement over Daas Torah between the modern
Orthodox and the traditionalist Orthodox...is...symptomatic of a deeper division
between them, namely, the relative weights they assign to submission, authority,
and self-overcoming, on the one hand, and autonomy, independence, and self-
expression on the other. In a word, the debate over Daas Torah is ultimately a
debate over the ethic of submission, over what is the proper posture of the
halakhic Jew standing in the presence of God.
Indeed, Professor Kaplan (“Rabbi Isaac Hutner”) further quotes Rabbi Bernard Weinberger as
saying that we must “demonstrate (our) faith in gedolim and subdue (our) own alleged acumen in
behalf of the Godol's judgment of the facts”.
The political ramifications of such an authoritarian position demanding submission and
negation of one's critical faculties are astounding. In the words of Rabbi Alan Yuter (“The
Abortion Rhetoric”),
This version of Orthodox Judaism reflects the publicly proclaimed consensus of
those who are self-authorized, empowered, and emboldened to speak as
spokesmen (women have no voice in this Judaism) for Torah. The
pronouncements of this dialect of Orthodox culture are apodictic, dogmatic,
authoritative and authoritarian. For this Orthodox Judaism, conversation is
condemned as disrespectful to God because God's vicarious spokesmen alone are
authorized to speak-because they are intuitively endowed - on God's behalf.
Persuasion of peers is for this Orthodox Judaism pointless because those issuing
bold, culture conservative apodictic rulings are, by their own account, without
peer. … [G]reat rabbis may rule from intuition or “from the gut,” but most rabbis
may not even entertain the right to articulate a reasoned opinion. After all, these
second tier rabbis do not understand Torah deeply and intimately because they
(1) have not been vetted as great rabbis by the clique of great rabbis and (2) these
second rate Orthodox rabbis, by dint of their corrosive exposure to non-Jewish
and non-ultra-Orthodox culture, are presumably under the influence of un-Jewish
heretical ideas, ideologies, and sensibilities. Therefore, in order to be considered
to be legitimate Orthodox rabbis, second tier rabbis are required to defer to the
pious policies of the truly great rabbis, those untainted by secularity, and forgoing
the role of posek [religious authority] and assuming the role of police, who
deferentially and piously enforce the policies, positions, and proclamations of the
truly authentic great rabbis. To this view, citing relevant sources is insufficient,
and otherwise compelling logic is spiritually inadequate. Only those accepted as
great rabbis are authorized as Masoretic sages to preserve the ethic, ethos and
spirit of authentic Judaism. In this Judaism, authentic Torah opinion, Daas Torah,
resides primarily in the charismatic person, rather than in the canonical object, or
sacred text. In this Judaism, the sacred Torah serves as the rhetorical resource
trove which is sifted, shifted, and manipulated in order to justify the apodictic
rulings of the actual and ultimate source of living Torah, the inspired intuition of
great rabbis, the actual word of the Lord that applies in contemporary times. …
For the...[adherents of Da'at Torah], Halakha is not primarily what the Jew must
 do, it is the lomdus/conceptualism that the rabbinic elite imposes upon the canon
so that religious culture not change, the cohesiveness of Orthodox society not
become unglued, and its leadership status not be challenged. But lomdus, or
"learningness," is a term unattested in Israel's canonical library; it is an invented
culture construct created to empower an exclusive rabbinic elite to monopolize
the interpretive access to the canon in order to make theologically correct
normative judgments. … To this view, allowing access to parse the divine word is
a recipe for theological, communal, and sectarian anarchy.
And we already saw Professor Mark Steiner say (“The Transformation of Contemporary
Orthodoxy: Another View”),
The much touted concept of Da'as Torah also stems from this idea: no text can be
interpreted by one not immersed in the spirit of that text. In the language of
philosophy, every "knowing that" presupposes “knowing how.” Only the
uncorrupted gedolim, not rabbis, and certainly not one's own parents, can be
trusted to interpret Judaism consistently with the spirit of Torah-according to this
world view.
By contrast, if we follow the account of Rabbi Dr. Joshua Berman, it would seem that
Biblical Judaism would find Da'at Torah to be anathemas. According to Berman (“The Torah as
Political Theory”, all italics in the original),
The Torah achieves a dual accomplishment as it reconfigures theology in
a way that supports an egalitarian agenda: it articulates a portrait of the heavens
that strips earthly hierarchies of power of their sacral legitimation. Moreover, it
provides a theological grounding for the existence of a homogeneous nation of
equal citizens.
This is achieved through the Exodus and the revelation at Sinai - stories
that would have made a distinct and unusual impression on the ancient mind. The
ancients had no problem believing that the gods could split the seas, or descend
in fire upon a mountaintop. Yet the Exodus and Sinai stories required an
enormous stretch of the imagination, as they required listeners of subsequent
generations to believe in political events that were without precedent and utterly
improbable, even in mythic terms. Slaves had never been known to overthrow
their masters. Gods had never been known to speak to an entire people. In
propagating the story of an enslaved people simply upping and outing, however,
the Torah also pre-empted claims of election and immanent hierarchy within the
 Israelite nation. The Exodus story effectively disallowed any Israelite to lay
claim to elevated status. All Israelites emanate from the Exodus—a common,
seminal, liberating, but most importantly equalizing event.
Although the revelation at Sinai is usually conceived in religious terms,
its political implications are no less dramatic, and constitute the bedrock of the
egalitarian theology the Torah sought to adduce. Elsewhere, the gods
communicated only to the kings, and had no interest in the masses. But at Sinai,
God spoke only to the masses, without delineating any role whatever for kings,
and their attendant hierarchies. ... The theological breakthrough of the Hebrew
Torah the transformation of the status and standing of the masses, of the common
person, to a new height, and the elimination of nobles, royalty, and the like.
Furthermore, according to Berman,
In an age and place such as our own, where literacy is nearly ubiquitous, access
to texts of many kinds and the knowledge they bear is unfettered and, in theory,
available to all. But in the ancient world physical access to written texts and the
skills necessary to read them were everywhere highly restricted. The production
and use of texts in the cultures of the ancient Near East as well as of ancient
Greece were inextricably bound up with the formation of class distinctions: those
who could read and write were members of a trained scribal class who worked in
the service of the king. Writing originated in the ancient Near East as a
component of bureaucratic activity. Systems of writing were essential for the
administration of large states. The elite in these cultures had a vested interest in
the status quo, and had an interest in preventing others from gaining control of an
important means of communication. Far from being interested in its
simplification, scribes often chose to proliferate signs and values. Both cuneiform
writing in Mesopotamia and hieroglyphics in Egypt are systems of writing whose
signs and symbols run into the hundreds. The texts produced in Mesopotamia
were composed exclusively by scribes and exclusively for scribal use—
administrative or cultic, or in the training of yet other scribes.
The Cambridge anthropologist Jack Goody noted that a culture's
willingness to disseminate its religious literature inevitably reflects an emphasis
on the individual within that culture. The comment sheds light on the Torah’s
agenda to establish an ennobled egalitarian citizenry, as the Torah eagerly looks
to share the divine word with the people of Israel. Moses reads the divine word to
 the people at Sinai (Exodus 24:1-8). Periodically, the people are to gather at the
temple and hear public readings of the Torah (Deuteronomy 31:10-13). It is
telling that the Tanakh never depicts priests or scribes as jealous or protective of
their writing skills, as was common in neighboring cultures.
According to Berman, then, the Torah sought to make society egalitarian by denuding the kings of
Israel of the supposed parallel in the Heavenly monarchy (a parallel assumed universally in the
ancient Near East), by having the Sinaitic revelation addressed to all Jews equally without
exception, and by making reading available to all laypeople, rather than let it be the coveted
secret of a select cult. The political implications are self-evident, and could not more starkly
contrast with Da'at Torah. (It is of course ironic that the opinion of the Torah is diametrically
opposed to Da'at Torah; a reference to Orwell's Newspeak in Nineteen-Eighty-Four seems apt.)
Based on this, we can understand the opinions brought forth by Rabbi Marc Angel
(“Authority and Dissent”):
Diversity of opinion is a reality well recognized in Jewish tradition. The Talmud
(Berakhot 58a) records the ruling that one is required to make a blessing upon
seeing a huge crowd of Jews, praising God who is hakham harazim, who
understands the root and inner thoughts of each individual. “Their thoughts are
not alike and their appearance is not alike.” Just as no two faces are exactly the
same, so no two people think exactly the same. God created each individual to be
unique; He expected and wanted diversity of thought. The recognition that each
person thinks differently leads to a respect for the right of a person to express his
opinion. ... Rabbi Yehiel Michel Epstein, author of the Arukh ha-Shulhan, noted
that differences of opinion among our sages constitute the glory of the Torah.
“The entire Torah is called a song (shirah), and the glory of a song is when the
voices differ one from the other. This is the essence of its pleasantness.” (Arukh
Ha-Shulhan, introduction to Hoshen Mishpat.) ... Rabbi Yehiel Yaacov Weinberg
wrote ... “each Jew whose soul was at the revelation at Sinai received his portion
in Torah and in novellae of Torah. One should not quibble against this point.”
(Seridei Esh, vol. 3, Jerusalem, 5726, introduction.)
Rabbi Samson Raphael Hirsch, based on Rabbinic sources, presents his account of the authentic
post-Talmudic Jewish communal life with such an emphasis on personal autonomy,
independence, and dignity, that one wonders if it isn't rather John Locke writing.8 According to

8 By “John Locke” I mean those of his school in general; it is well-known that the
Enlightenment theorists of democratic social-contract theory, as followed by the Framers of
Rabbi Hirsch (“Jewish Communal Life”),
But Jewish communal life is not embodied in its representatives. It is not
presidents and committees, not Rabbis and preachers who make the community.
‫כי אם שמור תשמרון‬: “It is you, you who must congregate round the Torah as its
guardians” - so the Rabbis in Sifre proclaim to the people, the “laity,” to use the
favourite expression of our modern “theologians.” “Do not say, we have elders
for this, we have leaders and prophets. It is you, you who have to keep watch
over the Torah. The Torah which Moses brought down to us is the inheritance of
the community of Israel. You all stand before the Lord your God ‫כל איש ישראל‬,
the whole body of Jewish men, even the hewer of wood, and the drawer of water.
Were you not all to step forward for the preservation of the Torah, then the Torah
would perish.”
Hence the individual Jew has by no means completed his communal duty
with the contribution which he makes to the communal funds and with the voting
paper which he throws into the ballot box. If the men of your choice do not
promote the religious welfare of your community, if the mite which you give the
communal funds is not used for that purpose, if in spite of presidents and
committees, Rabbis and preachers, religion does not flourish in your community,
then you have not done your share; you have not done it until you have
ascertained why religious conditions are not satisfactory in your community, until
you have done your utmost to improve matters. Above in heaven nothing is
known of “laity” and “clergy.” But heaven knows of Jews and Jewesses, of a
“priestly community” for all the members of which have to render account for
the state of the sanctuary entrusted to them and are unable to transfer this great
responsibility to any other shoulders.
These are already incredible words; Rabbi Hirsch is granting, nay demanding oversight of Jewish
communal affairs – and religious affairs too even (mentioning “Rabbis and preachers”) to the
laity. But Rabbi Hirsch continues, noting as Rabbi Berman did the significance of Jewish
education:
The first and highest duty of the community, on which all others are based, is to

the United States Constitution, were highly Hebraic in their political thought. See Fania Oz-
Salzberger, “The Jewish Roots of Western Freedom” (Azure, Summer 5762 / 2002); Yoram
Hazony, “The Jewish Origins of the Western Disobedience Tradition” (Azure, Summer 5758 /
1998); Yoram Hazony, “Judaism and the Modern State” (Azure, Summer 5765, 2005).
 provide for the widest possible dissemination among the members of the
community of a knowledge of the teachings of the religion from the original
sources. For the Jewish sacred writings are by no means meant to be the private
property of a learned caste of theologians from which they can excerpt some
jejune articles of faith as bread of eternal life for the laity. The first sentence
which the child learns to stammer already teaches it that “the law given by Moses
is not the possession of a caste but the heritage of the whole community of
Jacob.” Every Jew must learn to draw the fresh draught of spiritual life from the
Hebrew Bible and the Rabbinical writings. The boy is conducted to them, the
youth must grow up in them, the man must derive from them light and strength
and courage for his active life, and it is they which must light the old man to his
bliss in the hereafter.
Lest the political implications of this educational endeavor not be immediately clear,
Rabbi Hirsch spells them out for us:
The center of gravity of the whole communal life lies not in the
Rabbinate nor in the governing body but in the community. All religious power
must issue from the community. The various offices have a meaning only in so
far as the holders are elected and authorized by the community, and only in so far
as they execute its will and “represent” it. And it is only the confidence of the
community which makes the scholar, the ‫חכם‬, into a ‫מומחה לרבים‬, a public
authority, a rabbi.
Among Jews there is no “hierarchical power” which might impose on the
community against its will or simply without its consent rules and regulations or
communal officials. ‫" אין מעמידים פרנס על הצבור אלא אם כן נמלכין בצבור‬No president
or leader may be set over the community without its consent having been
obtained.” So teach our “hierarchs”, the Rabbis (Berachoth 55), citing in proof
the appointment of Bezalel whom God first presented to Moses and then Moses
to the community with the words, ‫ ראה‬, ‫" ראו‬see,” as much as to say, “see and
judge for yourselves whether God has not designated him as worthy of the post
on account of his outstanding capabilities..” )Exodus 31.2; 35.30.)
The same Rabbis teach further: ‫כל גזרה שבית דין גוזרין על הצבור ולא קבלו רוב‬
(‫“ הצבור אליהן אינה גזרה )ירושלמי שבת פ"א ה'ד‬Every regulation made by the Beth
Din which has not been accepted by the majority of the community has no
binding force.” Eve the supreme religious authorities, the Sanhedrin and the Beth
 Din Haggadol, a Daniel and his colleagues, Shammai and Hillel and their synods,
made the permanently binding character of their regulations as part of the
religious law dependent on their acceptance by the majority of the whole Jewish
community. (Shabbat 14; Hullin, 6.)
…
Anything imposed from without did not count. Whatever had once been
stamped as a religious duty could not be other than something which their
ancestors had recognized as being consonant with the spirit of Judaism...
…
This conscious and spontaneous participation of all independent
members of the community both in the election of their representatives and
teachers and in the measures to be taken for the upholding and spreading of the
observance of the religious law, is the basic condition of Jewish communal life.
Through it, the community becomes truly the community of the God who
entrusted the holy treasure of His law not to the priests and levites alone but to
the whole of His community, and who again and again commanded that every
man in Israel should be summoned by name and numbered for the army which
was to be assembled around His law.
The more fully, therefore, the community itself performs its share in the
discharge of its own most holy duties, the more active its participation remains
even after it has elected its representatives and teachers and charged them to
carry out in its name a part of the task devolving on it, the more active and
flourishing will it be.
And in case by some amazing stroke of amnesia the reader forgets all that Rabbi Hirsch has said,
Rabbi Hirsch repeats himself at length later in the very same essay! Thus, he later says (again,
“Jewish Communal Life”),
We have already pointed out that one factor in the Jewish communal
organisation is its autonomy, the right of the members to self-determination in all
matters of Jewish communal religious life. We saw that the centre of power and
authority lay not in the Rabbi and the governing body but in the community. The
governing body and the Rabbi are created by the community, the governing body
acts only on the instructions of the community and the Rabbi is made into a
Rabbi only by the recognition of the community. And even when the governing
body and the Rabbi have had a portion of the communal authority delegated to
 them by the community, the latter has always to keep watch over the exercise of
this authority to see that it is in furtherance of sacred tasks of the community. As
we have seen, the authority of the Jewish religious community was so securely
guaranteed that even the highest national religious pundits made the binding
character of their ordinances depend on the acceptance of the nation.
Therefore, it immediately becomes clear to us why Torah knowledge must pervade the laity, why
the laity must be saturated with knowledge: so that the laity can oversee the rabbinate and ensure
that the rabbinate does not abuse its power or authority! This is astoundingly democratic. In
Rabbi Hirsch's words (ibid.),
If the knowledge of the Torah flourishes in the community, then a spirit
of joyful obedience, accompanied by the exercise of the most watchful
supervision, will pervade the community, at once stimulating and regulating the
whole organisation and keeping it in a thoroughly healthy state. … He [viz. the
layman] will follow the leaders and the Rabbi willingly so long as these make
demands of him only as servants and ministers of the Torah. But let a communal
leader lay a presumptuous hand on the smallest point of the sacred Torah, let a
Rabbi try to give one decision in opposition to the Torah, and the humblest
Jewish apprentice will refuse obedience to the leader, and the lowliest Jewish
shepherd or “weaver at the gate” will rebuke the Rabbi for his error or for
forgetfulness of his duty, and remind him that among Jews it is not the clerical
robe and trappings nor [rabbinical] diploma [i.e. semiha] and Government decree
that confer authority, that the word of the most celebrated Rabbi carries weight
only so long as it accords with the generally accepted religious law, and it is null
and void if it conflicts with the law sanctioned in Israel. ‫כל מקום שיש חילול השם אין‬
‫( חולקין כבוד לרב‬Berachot 19, etc.). Where it is a question of preserving the name
of God from profanation – and the name of God is profaned everywhere where
His law is scorned – and no respect is paid to the Rabbi. This was the first
teaching of those very Rabbis who claimed honour for themselves, but only so
long as their honour could be identified with ‫כבוד התורה‬, the honour of the Torah.
…
The strength of the Rabbi lay not in the knowledge of the Torah
possessed by him, but in that possessed by the people. … “Raise up many
pupils.” Spread far and wide the knowledge of the Torah among the people! Have
done with the control of the communities! Make yourselves superfluous among
 the people! See to it that the peasant behind the plough, the herdsman with his
cattle, the weaver at his loom can be your judges and masters, the critics of your
conduct and teaching...
It is impossible to reconcile these words of Rabbi Hirsch's with the concept of Da'at Torah.
Besides their incredible and astounding consonance with Western liberal social-contract theory,
the closest parallel these words would have in the world of Jewish philosophy would be to the
Positive-Historical/Conservative concepts of the Volksgeist and Catholic Israel! (See Rabbi Dr.
Ismar Schorch's “Zacharias Frankel and the European Origins of Conservative Judaism”.) Now,
elsewhere in “Jewish Communal Life”, Rabbi Hirsch elaborates at length on how the Torah is the
constitution of the Jewish nation, and that it alone provides basis and source for Jewish
communal conduct and law. If Jewish education for the laity is an imperative precisely and only
in order that the laity can ascertain when its leaders – civic and ecclesiastical – are keeping the
Torah properly, then it is obvious that however much power the laity has, that laity has power
only to enforce, not to abrogate the Torah, with the Torah's laws remaining absolutely sacrosanct.
Precisely in this would seem to lie the difference between Rabbi Hirsch's constitutional-
democratic view of Jewish authority, and the Frankel-Schechter concept of Volksgeist-Catholic
Israel; in the latter, whatever the laity does, one way or the other, whether upholding or violating
the Torah, is ipso facto the law.9 Nevertheless, one must be struck by the fact that this

9 Rabbi Solomon Schechter and Rabbi Dr. Robert Gordis respectively axiomatically and
explicitly limited Catholic Israel to the observant laity of Eastern-European that characterized
early twentieth-century Conservative Judaism; see Evan Hoffman, “Factors”, n. 50, 96.
However, this does not significantly affect the bold philosophical underpinnings of the
reliance on the Volksgeist and Catholic Israel, which Rabbi Hirsch would reject as heretical.
Apparently, the fatal flaw in Conservative philosophy was not evident until the Conservative
laity ceased to be dominated by observant Eastern European immigrants. See Hoffman for an
overview of how Conservative Judaism evolved from its observant and practically Orthodox
roots in the early twentieth-century, to what it is today.
I would add that many of the figures and institutions in early twentieth-century Orthodox,
such as Rabbis Sabato Morais and Henry Pereira Mendes and Congregation Shearith Israel,
were instrumental in forming and leading both JTS and the OU. And Rabbi Dr. J. H. Hertz, the
Orthodox chief rabbi of Brtain, consistently conflates “Positive-Historical” and “Orthodox” as
being identical, sometimes in the very same paragraph! (Early and Late, pp. 142, 182.) Based
on this, Harvey Meirovich claims (“Reclaiming Chief Rabbi Hertz as a Conservative Jew”)
that Rabbi Hertz was Conservative. However, I would dispute his claim, for I believe that
Conservative concept is the nearest Jewish equivalent of Rabbi Hirsch's view; Rabbi Hirsch
would stridently and vehemently denounce the Conservative concept as heresy (see the entirety of
Volume 5 of Collected Writings, where he does just this), but all the same, he would seem to
agree with this concept more than he would agree with Da'at Torah (both nevertheless being
heresy, of course).
According to Rabbi Yuter then (“The Abortion Rhetoric”),
The Judaism “of the canonical documents” is the alternative Orthodox Judaism

many of his criteria (an evolutionary, dynamic view of the Oral Law, doubting the reinstitution
of animal sacrifices in the Third Temple) would impugn many indisputably Orthodox rabbis.
Regarding an evolutionary and dynamic view of the Oral Law, not only do Rabbis Moshe
Shmuel Glasner, Dr. Eliezer Berkovits, and Tzadok ha-Kohen of Lublin hold (in one way or
another) such a view, but we might further adduce Rabbi Haim David Halevi, an indisputably
Orthodox rabbi of the traditional Judeo-Spanish school. He said (Asei Lekha Rav 8:97)
The law came down on the side of the school of Hillel because its
followers were sympathetic human beings, recognizing human frailty and the
difficult challenges of life. They were sensitive to the human predicament and
tended to be lenient in their rulings. ... Anyone who knew at first-hand our
teacher, Rabbi [Benzion] Uziel of blessed memory, knows that his personality
was stamped with the love of kindness and mercy to all people, and certainly
to Jews, who are called children of God. It is not plausible that the heart that
beat with pure love did not wield its influence on his general and halakhic
thinking. I am witness that all his public service was deeply influenced by that
love of Israel which infused him. ... How would it be possible that his
halakhic thinking not be influenced in this direction?
Similarly, Rabbi Halevi said (Asei Lekha Rav 7:54),
Whoever thinks that the halakha is frozen, and that we may not deviate
from it right or left, errs greatly. On the contrary, there is no flexibility like
that of the halakha… only by virtue of this flexibility were the Jewish people,
relying on numerous and useful innovations… able to walk in the path of the
Torah and its commandments for thousands of years. If the hakhamim of our
generation will have the courage to introduce halakhic innovations true to
Torah, with utter faithfulness to the body of Torah as written and received,
then the halakha will continue to be the path of the Jewish people until the last
generation
 that challenges the claims of the charisma-led [Da'at Torah-type] Orthodoxy
described above. … Modern Orthodoxy's adherents and advocates, this writer
included, believe that God is revealed in the sacred text as explained persuasively
by whoever makes the most reasonable, persuasive, and compelling reading of
that canon. Apodictic rulings, declaratory judgments, and ex cathedra decrees are
not recognized to be legitimate value statements according to the version of
Jewish Orthodoxy that is encoded in the Oral Torah canon. These apodictic
rulings may only issue with authority from a Sanhedrin sitting in plenum, but not
from post-Talmudic self-selective clerics sitting in clergy conclaves, whose
intuition is taken to represent God's will.
When this constitutional-democratic Judaism “of the canonical documents” is abandoned then, as
it is done by adherents of Da'at Torah, the result is that described by Rabbi Jakobovits (“Deans
and Rabbis”). What happens is that the laity surrenders leadership to the yeshiva elites, abdicating
its G-d-given democratic oversight over the rabbinate to the roshei yeshiva. In Rabbi Jakobovits's
words,
At the opposite pole on the axis of leadership - among the laiety - a similar loss
of Torah influence has resulted from the ascendancy of the Yeshivah over the
Kehillah as the basic unit in the religious structure of Jewish life. Despite the
phenomenal increase in the output of learned laymen, thanks to the growth of the
Yeshivah movement, the Torah element in communal and congregational

So a dynamic and evolutionary view of the Oral Law alone is insufficient to stamp one as
Conservative. As for the doubting of the reinstitution of the animal sacrifices, it is well-known
that Rabbi Avraham Yitzhak Kook also believed – in one way or another (see Professor Marc
Shapiro, The Limits of Orthodox Theology) - that the Third Temple would not contain animal
sacrifices. So Meirovich's criteria to establish Rabbi Hertz as Conservative are insufficient.
That said, the fact that the founders of JTS and the OU were often identical, the fact that Rabbi
Hertz could conflate “Positive-Historical” and “Orthodox”, and the fact that one could even
make a coherent and legitimate (if ultimately faulty) thesis that the Orthodox chief rabbi of
Britain was actually a Conservative, can only be highly significant for tracing the traditionalist
roots of Conservative Judaism. (I might add that even though Meirovich's thesis is ultimately a
failure in my eyes, nevertheless, the historical data he marshals is wonderful and enlightening,
shedding light on who and what Rabbi Hertz's influences were. Whether Rabbi Hertz was
Conservative or Orthodox is disputed, but the actual data itself that Meirovich adduces is, as
far as I know, incontrovertible and highly valuable.)
 leadership has, far from increasing commensurately, actually declined. For the
Yeshivot discourage the pursuit of communal responsibilities no less than the
choice of the rabbinate as a career, with the result that the Jewishly best educated
laymen gravitate to passivity in little shtibls rather than to activity, influence, and
leadership in important congregations and in the wider community. Communally
speaking, then, most Yeshivah products are lost, both as rabbis and as lay leaders.
But some will claim that the Mishnaic concept of “emunat hakhamim” is the basis for
Da'at Torah. That is, in the sixth chapter of Pirkei Avot, the baraita Qinyan Torah, we are taught
that one of the prerequisites for acquiring Torah is “emunat hakhamim”, “trust in the sages”. What
does this mean if not following Da'at Torah? As Rabbi Bernard Weinberger says, quoted by
Professor Kaplan (“Daas Torah”),
Gedolei Yisrael inherently ought to be the final and sole arbiters of all aspects of
Jewish communal policy and questions of hashkafah and ... even knowledgeable
rabbis who may differ with the gedolim on a particular issue must submit to the
superior wisdom of the gedolim and demonstrate Emunat Hakhamim.
In other words, the apodictic and authoritarian stance of the proponents of Da'at Torah, the
position requiring submission to the rabbis as the sole speakers for God and His Torah,
demanding suspension of all cognitive faculties and autonomous independent free-will and
critical-thinking skills, this entire position is justified by the concept of emunat hakhamim.
Additionally, as Professor Kaplan states,
It is especially worth noting how many of these statements blur Daas Torah with
kavod ha-Torah and kevod hakhamim. Thus, refusing to accept the Daas Torah
pronouncement of a particular gadol is equated with bizzayon ha-Torah and
bizzayon talmidei hakhamim.
The question then is: is faith in the sages to be equated with Da'at Torah, and is rejection of Da'at
Torah to be equated with scorning the Torah and its sages and withholding from them their due
honor? Rabbi Nachum Eliezer Rabinovitch, in “What is “Emunat Hakhamim”?” conclusively
shows that emunat hakhamim and Da'at Torah are not to be confused. Rabbi Rabinovitch first
notes that since this is a baraita and not a mishna, there are very few commentaries on what
emunat hakhamim means, and that we really cannot be sure just what its meaning is. Similarly,
Professor Kaplan notes that the phrase appears nowhere else in rabbinical literature, and that its
meaning is very obscure. In his words (“Interview”),
But it must be said that the phrase is very general; what it means is not so clear.
The meaning attributed to it by the exponents of Daas Torah seems to be a late
 nineteenth century development, imported from the Hasidic view of the Rebbe.
Therefore, he says, it is very suspect to rely on the phrase in the first place; he notes (“Daas
Torah”) that it may very well mean “emuna of the sages”, not “in”, and that it may very well refer
to having a sophisticated faith, a “wise-man's faith”, in contrast to a simplistic or naïve faith
(which would be Da'at Torah). But be all this as it may; let us suppose that emunat hakhamim
refers to having faith in the sages, and explore what this would mean. Rabbi Rabinovitch first
quotes the Tiferet Yisrael's explanation of the relevant baraita:
‫ אבל יאמין לחכמים‬.(‫ טו‬,‫ דזהו מדת "פתי יאמין לכל דבר" )משלי יד‬,‫שאינו מאמין לכל דבר ששומע‬
‫בחכמת התורה אפילו לא ישיגם בשכלו‬.
“Not that he believe everything he hears, for that would make him a ‘fool [who]
believes everything’ (Mishlei 14:15). Rather, he should believe those who are
wise with the wisdom of the Torah even if he cannot grasp [their logic] with his
own intellect.”
Rabbi Rabinovitch explains – in much greater depth than can be presented here – that emunat
hakhamim means that one trusts that the words of the sages are profound and are deserving of
intense toil and effort in order to appreciate them and understand them. This does not mean blind
unthinking trust (as in Da'at Torah), for, as Rabbi Rabinovitch says, “emunat hakhamim requires
us to clarify and elucidate his every word, and one who does not do so is simply a 'fool who
believes anything.'” Rather, it means confidence in the fact that if the sages' words appear empty
or foolish, without profound significance, then it is due to the lacking in one's own superficial
understanding. Rather than immediately trusting the words of the sages without investigation, and
rather than immediately rejecting their words as foolish, one will rather toil and labor to penetrate
the deeper meaning of their words. But even then, one may nevertheless disagree with the sages
once he has ascertained their intent, but even then, one will do so with awe and respect, and will
disagree only after ascertaining their intent and determining based on profound Torah analysis
that their opinion was faulty. Rabbi Rabinovitch quotes Rabbi Yehiel Yaakov Weinberg
(“Hidushei Ba’al Seridei Eish”) as substantiating this point. The same baraita which demands
emunat hakhamim also demands “pilpul hatalmidim” (deliberation amongst the students);
therefore, Rabbi Weinberg explains,
If one lacks faith [emuna] in the words of the hakhamim, he tends to
skim over them casually, and arrogantly dismisses them saying “The Sages just
didn’t understand.” The result is that such a person does not struggle to probe
beneath the surface and to confirm their words. In the end, it becomes clear that it
was he who erred, not they. Indeed, it is a characteristic of intelligence to believe
 that it is not they who err, Heaven forbid, but we, with our short-sightedness and
limited knowledge, who are mistaken.
However, to trust simplistically and not exert our minds with
investigative, concentrated thinking, to say blandly “They knew; we can rely on
them without thinking,” is also wrong.
Rather, one must challenge their words with any contradictions or
uncertainties, as if their author is one of us. Through this we arrive at a more
profound and analytic understanding. These two attributes, emunat hakhamim
together with unhampered pilpul, provide the path to acquiring the knowledge of
Torah.”
Furthermore, the concept of elu v'elu divrei elokim haim implies that there are multiple
ways of interpreting any issue, and that it is impossible for any one sage to incontrovertibly have
the only possible valid view. Therefore, having emuna in him cannot possibly mean to blindly
trust him, for he is a fallible human and there are other sages that disagree with him; not everyone
can be right! The very fact that different rabbis disagree legitimately about the meaning of the
Torah (elu v'elu) led Rabbi Yeshaya ha-Zaqen mi-Trani (Rid) to state (Teshuvot ha-Rid, Jerusalem
5735, beginning of siman 62, as quoted by Rabbi Rabinovitch),
But, if because of this [faith in the sages] we were to say that we may not
evaluate the words of our predecessors, then what should we do when they
themselves disagree; when one prohibits and the other permits? On whom do we
rely? Can mountains be measured on a scale to determine which is greater? Our
only option is to analyze what each has said, for “both are the words of the living
G-d” (Eruvin 13b). We must delve into their words and draw the appropriate
conclusion… the words of the wise men are of greater importance than the wise
men themselves. There has never been a Sage entirely free of error for there is no
perfect wisdom except G-d’s.”
Therefore, emunat hakhamim here then can only mean (to quote Rabbi Rabinovitch) that
even one who disagrees with a certain hakham still has emunat hakhamim that
the words of this hakham are not meaningless, Heaven forbid, and he works at
understanding the hakham’s imperatives and reasoning. … Emunat hakhamim is
not intended to prevent divergent opinions that come about due to alternate views
or to differing emphasis on certain points. Emunat hakhamin obligates one to
approach the words of all hakhamim with seriousness and to make an honest and
diligent attempt to understand them. To arrive at a clear halakhic conclusion
 requires great effort, and careful and thoughtful study of Torah. If at the end of
this process it is necessary to choose between differing opinions, emunat
hakhamim places upon the decider the weighty obligation to act according to
truth—to the degree that he is capable of perceiving it.
Alternatively, according to the interpretation of Rabbi Yehiel Michal Marpatchik of this
baraita, quoted by Rabbi Rabinovitch,
He does not argue on their words and their decisions simply to antagonize, but
rather to establish what is true and right for each time and place.
In other words, he does argue on their words, but rather than doing so to antagonize and self-
aggrandize, he does so to establish the truth. According to this understanding, emunat hakhamim
is closer to the concept of Torah lishmah, studying Torah out of wholesome and G-dly and
humble motives, than it is to the concept of Da'at Torah.
Rabbi Rabinovitch further notes that the distinction between prophet and sage implicitly
disproves the veracity of the Da'at Torah concept of emunat hakhamim. According to Rambam, a
prophet's words in all non-halakhic matters, divrei reshut, must be unquestioningly obeyed. By
contrast, if a prophet claims Heavenly authority for a halakhic ruling, he is to be executed. As for
sages, Rabbi Rabinovitch states,
The authority of a Sage is different. Although we are commanded to honor and
fear him, it is only because of his Torah knowledge, which can be evaluated with
straightforward logic. Unlike a prophet, a hakham is obligated to provide a
reason for what he says. Therefore even while the Sanhedrin...was in place, its
decisions were arrived at only after careful consideration of underlying reasons.
In other words, by dint of his very nature, a sage cannot be relied on unquestioningly. A prophet
in divrei reshut can claim authoritarian power and make apodictic demands, but a sage may never
do so; by his very nature as a non-prophet, he must provide logic and sources for his every
demand and claim. Rabbi Rabinovitch cites the Ba'al ha-Maor (on Sanhedrin, 12a of the Rif),
who discusses the fact that if a dayan makes an obviously erroneous ruling, erring on an explicit
mishna, the litigant who relies on the dayan cannot blame the dayan for his loss, for the litigant
himself should have known this explicit mishna. Based on this, Rabbi Rabinovitch states,
Yet, even when one asks a rav to rule for him and the rav renders a psak, he is
not relieved of his responsibility to understand the reasoning behind the psak. …
Thus, one who consults even an outstanding rav is considered negligent if he
does not attempt to clarify and confirm that the psak he received is indeed
correct. This is how great is each individual’s responsibility for his actions; this is
 how effectively he must clarify the correct ruling, as well as what Hashem
expects of him in each situation. … [E]ven when one does ask and seek advice,
he is not freed from the obligation to personally understand the halakhah so that
he is not like a blind person following one teacher or another.
Rabbi Rabinovitch concludes
Recently, some have begun applying the term “emunat hakhamim” to something
else entirely, something that Hazal never discussed—that hakhamim also have
prophetic authority in divrei reshut. We are not talking about asking advice of
those who are experienced and wise in Torah, whose righteousness, Torah
knowledge and brilliance provide good guidance and sound advice. It is surely
good for any person to seek advice from those who are greater and better than he.
But there is a difference between asking advice and taking personal responsibility
for one’s actions, and relying on others with absolutely no independent thought.
There are those who label such childish behavior as “emunat hakhamim” while in
reality it is a distortion of this great attribute. Instead of acquiring true Torah,
those who cling to this distorted “emunat hakhamim” distance themselves from
the light of the Torah and are ultimately incapable of distinguishing between right
and wrong.
Professor Kaplan adds,
Once again, it need not be said that this “strong” reading (or, better, creative
misreading) of Emunat Hakhamim fits perfectly with the ethic of submission of
the rejectionist Orthodox.
Others will justify Da'at Torah based on the mitzvah of lo tasur, the Biblical
commandment given in Deuteronomy 17:11 to follow the judicial verdict of the rabbis whether to
the left or to the right. This commandment is particularly keen for adherents of Da'at Torah
because Sifre rules (to use Kaplan's translation in “Daas Torah”), “Even if it appears to you that
they are telling you that right is left and left is right, listen to them.” But there is a difficulty for
the proponent of Da'at Torah (the following is based on Kaplan, “Daas Torah”, either
summarizing or quoting his words and translations): the Yerushalmi Horayot declares, “One
might think that if they tell you that right is left and left is right, you must listen to them.
Therefore, the verse tells us to go to the left or to the right [i.e. on one's own], until they tell you
that right is right and left is left.” Similarly, the Bavli Horayot rules that if a sage or student
capable of issuing rulings is convinced that the ruling is in error, he is forbidden to follow that
ruling on the basis of the mitzvah to obey the sages. Now, there are indeed many solutions to the
difficulty (elaborated at length in Kaplan). Some will simply say that the Sifre contradicts the
Bavli and Yerushalmi, while others will draw dialectical distinctions, such as whether one is a
layman or a scholar, or whether the supposedly erroneous ruling is in an explicit law (ta'ut
b'devar mishnah) or an error in subjective judgment (ta'ut b'shikul ha-da'at), or whether one has
yet confronted the court with his own opinion (i.e. one rejects the court's erroneous ruling until
one has a chance to offer one's own proofs to the court, but once one has done so, the court's
ruling must be following without exception). But no matter what solution one offers to this
difficulty, it is no longer possible to blithely claim that lo tasur is the basis for Da'at Torah. Da'at
Torah demands unquestioning obedience and full suspension of one's free will and cognition in
the face of the gedolim, while lo tasur (i.e. “do not depart” from their ruling) applies – according
to the various explanations – only to relatively unlearned laymen (and not to learned scholars), or
only after having a chance to confront the judge face-to-face (but not beforehand), or only when
the judge declares right is right and left is left (Bavli and Yerushalmi, assuming these simply
contradict Sifre's demand to follow the rabbis even when they declare left is right and right is
left), etc. It is no longer possible to unequivocally declare that without exception that one must
follow the words of the rabbis. And most importantly of all: the entire mitzvah of lo tasur applies
only to the rulings of the Sanhedrin! No matter how great the gedolim are, they are not sitting on
the Temple Mount!
Ramban regarding lo tasur and Kuzari regarding bal tosif (not to add onto or subtract
from the Torah) both come close to granting infallibility to the rabbis (see Kaplan), but this
cannot be confused with Da'at Torah, because both are dealing with the Sanhedrin; lo tasur
explicitly applies to the Sanhedrin, and the Kuzari is saying that one should not be afraid that the
rabbis of the Sanhedrin are guilty of bal tosif, for they have divine protection. Therefore, even if
Ramban and Kuzari come close to granting some sort of papal infallibility, their words can have
nothing to do with Da'at Torah. Personally, it appears to me that the entire existence of Mesekhet
Horayot, dealing entirely with issues of when the Sanhedrin errs, and particularly the specific
discussions of Bavli and Yerushalmi Horayot contra Sifre on disregarding the Sanhedrin when it
declares left to be right and right to be left, pose a serious difficulty to the Ramban and Kuzari.
How can Ramban and Kuzari claim protection from error when the two Talmuds seem to
predicate their entire discussions precisely on the very real possibility of error? According to
Rabbi David Samson's Torat Eretz Yisrael: The Teachings of HaRav Tzvi Yehuda HaCohen Kook,
quoted in The Mitzvah to Live in Eretz Yisrael (anonymous, pp. 204f.),
The question was often asked, how could Gedolei Israel make a mistake in such a
serious matter as the return of the Jewish nation to Israel? There is a prevalent
 myth in the Torah world today that holds Torah scholars infallible and claims that
their decisions are inspired by ruach hakodesh, which by definition must always
be right. This misconception is based more on fantasy than a knowledge of Torah
and a familiarization with Jewish tradition. The fourth chapter of Leviticus deals
with special kinds of sin offerings. … The tractate Horiot, explains this as a case
where, the majority of the Great Sanhedrin makes a mistake, and because of their
error in deciding the law, a majority of the congregation transgresses. Here, the
Torah itself recognizes the possibility of the majority of the Gedolim making a
mistake.
But be all this as it may; the fact remains that any infallibility possessed by anyone, if anyone at
all, is possessed only by members of the Sanhedrin, and not any contemporary rabbis making
apodictic claims in the name of Da'at Torah.
In Kaplan's “Daas Torah”, it is implied that the Sefer ha-Hinukh's view is a practical
pragmatic one, but it is in Kaplan's “Interview” that this point is made clear; in Professor Kaplan's
words (“Interview”),
The authority who seems to be the key figure for the exponents of Daas Torah is
the Sefer HaChinuch -- he’s the one who applies the Sifre generally to Chachmei
HaDor. But the Sefer HaChinuch’s view is more of a practical view; you have to
submit to the authority of Chachmei HaDor not because they necessarily have
such great understanding, but just because otherwise you’re going to have chaos
and anarchy. So it’s a more practical view.
So it may be, as Sefer ha-Hinukh argues, that it is pragmatically prudent and wise and/or
spiritually and religiously pious and proper to learn a lesson from this mitzvah and apply it even
to the contemporary sages not occupying the Sanhedrin, but it appears to me personally that this
is sort of an asmakhta, a mussar lesson, not an iron-clad commandment of Biblical force that one
is duty-bound to follow with the same rigor and obligation as the Biblical mitzvah of lo tasur.
Rather, it is up to the individual's own personal conscience to decide whether and when to follow
the Sefer ha-Hinukh's advice here. One may be a fool at times for disregarding the Sefer ha-
Hinukh and the contemporary rabbis, but one is neither a sinner violating an explicit mitzvah, nor
is one a heretic; one is simply an ignorant fool, pitiable but not sinful. And strikingly, Sefer ha-
Hinukh (who is followed to a great extent by Drashat ha-Ran), even while agreeing with Ramban
that one must follow the rabbis in order to prevent the Torah from being divided into many torot
(i.e schismatic denominationalism), differs with the Ramban and Kuzari on one crucial point: he
says “That is to say that even if they err about a particular matter it is better to suffer this
particular error...”; Sefer ha-Hinukh explicitly admits the possibility of error, but demures that it is
better for all to bear one error together than for everyone to part ways and each one follow his
own personal interpretation of the Torah, which would lead to denominationalism and schism.
Sefer ha-Hinukh and Drashot ha-Ran base themselves on the aggadah of the tanur akhnai, when
Rabbi Eliezer and the sages disputed, and G-d proclaimed that elu v'elu divrei elokim haim
(“These and those are the living words of G-d”), and that Rabbi Eliezer was the correct opinion,
but that the erring majority (contra Rabbi Eliezer) must be followed, because lo bashamaim hi
(“It is not in heaven”).
Now, one may argue: regardless of this dispute between Rambanand Sefer ha-Hinukhn
regarding fallibility, does not Sefer ha-Hinukh nevertheless argue that one should apply lo tasur
to the contemporary sages, erring or not? This is true, but as said, the rationale is pragmatic; the
primary explanation both these authorities for lo tasur is that it prevent schism and
denominational. As Sefer ha-Hinukh and Drashot ha-Ran say, for the sake of communal
uniformity, it is better for all to bear one error together than for everyone to follow his own view.
But recall that according to Professor Kaplan, one of the primary bases of Da'at Torah is that one
should submit himself, and therefore, the gadol offers no sources for his ruling. Professor Kaplan
quotes Rabbi Aryeh Tzevi Frommer, a Hasidic rabbinic scholar, as admitting the possibility of
error by the gedolim (like Sefer ha-Hinukh, contra Ramban), but saying “...we negate our views
when it is proper, even if it is against our intellect”. Rabbi Frommer proceeds to adduce the
Akeida as an example of such intellectual submission. But as Kaplan notes,
For Ramban and the Sefer ha-Hinukh, the rationale is the need for halakhic
uniformity, whereas for Rav Frommer, it is the need to demonstrate intellectual
and religious submission, to perform an akedah of the intellect, to declare “credo
quia absurdum est.” We can have no clearer example of the concept of Daas
Torah as an expression of the ethic of submission!
Kaplan summarizes saying,
To return, then, to the ideology of Daas Torah, we may say that his ideology
takes as its basis the position of the Sifre as formulated by Rashi (ignoring the
Yerushalmi Horayot and the various other sources which posit an obligation of
dissent under certain circumstances), understands the Sifre in light of the second
explanation of the Ramban in his Commentary on the Torah [where he says the
sages cannot err; the first explanation of Ramban is like the first part of Sefer ha-
Hinukh and Drashot ha-Ran, that lo tasur protects against schismatic
 denominationalism10], and then extends this protection from error to the
outstanding sages (gedolim) of contemporary times. … That the ideology of
Daas Torah, then, has a basis in and constitutes an extension of certain traditional
sources regarding lo tasur...yamin u-semol is clear; that it very carefully ignores
other sources and is a problematic extension of even the sources it relies on is
equally clear.
Witness how many questionable paths are taken and doubtful decisions made! Rashi following
Sifre is followed exclusively (follow the sages even when they say left is right), ignoring the
Ramban's discussion of Bavli and Yerushalmi Horayot (that one should dispute erroneous rulings
and follow them only when they say right is right); Ramban's second explanation (along with
Kuzari) regarding infallibility is relied on (and extended to contemporary sages, whereas Ramban
and Kuzari limited it to the Sanhedrin), ignoring the second part of Sefer ha-Hinukh and Drashot
ha-Ran who deny infallibility completely even for the Sanhedrin (and all the more for
contemporary sages); and Sefer ha-Hinukh's pragmatic advice is followed to extend lo tasur to
the contemporary sages even though the technical law limits lo tasur to the Sanhedrin's rulings.
And moreover, the Sefer ha-Hinukh's reasoning – to ensure uniformity and prevent chaos – is
replaced with an ethic of submission and akeida of the intellect. At best, this is a string of highly
questionable and controversial minority opinions, if even that; more likely, this ideology is a
completely a-historical anti-traditional rebellion against normative halakhic decision-making. As
Rabbi Jakobovits says (“Rabbis and Deans”),
Another threat to religious interests ensuing from the denigration of the rabbinate
and its usurpation by Torah scholars holding no rabbinical office is to be found in
the deviation from traditional halakhic methods and standards. While the classic
rabbinical solution to new religious problems always takes into account the
rulings and precedents set down in the later commentaries and responsa
(Acharonim) as well as the codes and early authorities (Rishonim), the Yeshivah
scholars often base their practical decisions on their own interpretation of the
original sources, without any reference to the intervening authorities. This
process is altogether alien to the historic traditions in determining the Halakhah.
It often leads to verdicts quite out of harmony with the consensus established in

10 To clarify: the first part of Ramban, the first part of Sefer ha-Hinukh, and the first part of
Drashot ha-Ran all agree, discussing denominationalism and the danger of the Torah
becoming many torot. It is the second part of Ramban – agreeing with Kuzari – which differs
with the second part of Sefer ha-Hinukh and Drashot ha-Ran, all on the issue of fallibility.
 existing rabbinical writings
One final source some will cite is d'kula bah (“everything is contained within it”, viz. the
Torah), at the end of Avot chapter 5. On this, Professor Kaplan says (“Interview”),
But from my reading of the sources...it seems to me that d'kula ba was
traditionally used not so much in the modern communal and political Daas Torah
sense – that is, d'kula ba gives the right to great rabbinic scholars to make
authoritative and final decisions on matters of policy. It was generally used in
more of a non-political sense, that is, you study the Torah and you get a great
insight into nature and reality and history. The one who first used de-kula ba in
the modern Daas Torah sense was Rav Elchanon Wasserman, I think at the
Agudah convention in 1937.
Quite simply, then, on very basic grounds of straightforward halakhic methodology, the
mitzvah of lo tasur is no basis for Da'at Torah. At best, Da'at Torah is one possible philosophy
among many other equally legitimate philosophies. Of course, that already would be an internal
contradiction; Da'at Torah, the sole and indisputable correct and legitimate explanation, is at best
one legitimate philosophy out of many legitimate philosophies! But it is more likely, of course,
that the egregious ignoring and denial of Bavli and Yerushalmi Horayot immediately indicts Da'at
Torah as being beyond the pale of legitimate Torah opinion.
What is especially interesting however, is that which Professor Kaplan notes: apparently
aware of the weakness of the sources for Da'at Torah, its own proponents never lay claim to it
when making ordinary halakhic rulings on mundane subjects! In “plain” halakhic debates, the
Da'at Torah rabbis use ordinary and straightforward and – most importantly – transparently cited
and defended arguments. It is only in hashkafic and communal matters that they issue apodictic
sourceless decrees and expect intellectual submission. That is, the proponents of Da'at Torah are
themselves aware that Da'at Torah has no basis in Torah, and thus, they only use it when they
have a political agenda, i.e. to ensure their hegemony in matters of belief and communal affairs,
using the proclamation of Da'at Torah to silence all debate. Thus, as Professor Ephraim Urbach
says, as quoted by Professor Kaplan (“Daas Torah”),
Daat Torah ideology has never been based upon authoritative halakhic sources,
and, as far as I know, recourse has never been made to it in halakhic debate.
If we are correct that emunat hakhamim is not to be equated with Da'at Torah – as Rabbi
Rabinovitch has shown – and if we are correct that lo tasur is no basis for Da'at Torah, and if we
are correct in following Rabbis Hirsch and Yuter in believing that the Torah is a constitutional
democracy demanding the full perspicacious participation of the laity, then whence has the
concept of Da'at Torah come? Professor Kaplan (“Daas Torah”), following Professor Gershon
Bacon, begins by noting how Agudat Yisrael originally began as a response to the secular and
non-Orthodox political parties. In order to combat these parties, the Agudah formed its own. But
this posed a grave existential question to the Agudah, viz. how was the Agudah distinct? Was it
only one party among many? In appropriating the tools of modernity to combat modernity, the
very identity and self-consciousness of the Agudah was threatened. In Professor Kaplan's words,
The Agudah, in its own self-perception, was not one party among many parties;
indeed, it was not really a political party, in the normal sense, at all. For at its
head stood the great rabbis of the era, as embodied in the institution of Moetzes
Gedolei ha-Torah, the Council of Torah Sages. The views of these Torah giants
on all issues, whether on more "narrowly" conceived religious and halakhic
issues or on “broader” communal and political issues, were authoritative and
binding for the Agudah and its followers. Their views were binding precisely
because these giants, as a result of their immersion in Torah, were, in all their
pronouncements, the authentic spokesmen for, the quintessential embodiment of,
the Jewish tradition. Their views, in a word, were Daas Torah, the authentic and
authoritative Torah viewpoint on the issues in question. Thus, the Agudah itself,
under the leadership of the Gedolim, was not just another political party, but the
[emphasis in original] authoritative spokesman for and representative of
traditional Judaism and the traditional Jewish community. Moreover, the Agudah
could counterpose its authentic rabbinic leadership to what it saw as the
inauthentic, indeed subversive, secular leadership of the other Jewish parties.
But then Kaplan proceeds to survey the historical statements of Da'at Torah, and he
shows that even if its roots are prewar, the concept really only came into its own after the
Holocaust. Therefore, even if – as is the opinion of Professor Bacon – its roots are prewar, its real
substantiation and manifestation are only later. What happened? Professor Kaplan quotes Rabbi
Yosef Avraham Wolf, who says “In a generation in which the structure of the holy communities
with their rabbis at their head is no longer found...we have no support except Emunat
Hakhamim. ...” In Kaplan's own words,
This leads one to believe that a key factor, if not the key factor, in the rise of the
ideology of Daas Torah was, as Rabbi Shubert Spero has suggested, the
breakdown of traditional Jewish communal structures, the concomitant
weakening of the power of communal rabbis and lay religious leaders, and the
emergence of the rashei yeshivah, with their Torah scholarship and personal
 charisma, to center stage. This process has, of course, been going on since the
nineteenth century, but it reached its climax only with the Second World War and
the destruction of of the great traditional Jewish communities of Eastern
Europe. ... We are suggesting, then, that the ideology of Daas Torah, in large
part, is intended to provide a basis for a new type of rabbinic authority, a type of
authority that can serve as a substitute for the traditional mechanisms...of
functioning Jewish communities.
This phenomenon will already be familiar to us from Professors Menachem Friedman and Haym
Soloveitchik, who showed that the post-Holocaust breakdown of the traditional Jewish
community led to the creation of Haredism in general. Kaplan proceeds to describe how Rabbi
Hayyim Ozer Grodzinski, a traditional communal rabbi in Vilna, was succeeded by the Hazon
Ish, who operated entirely outside ordinary communal frameworks, being neither a communal
rabbi nor even a rosh yeshivah. Kaplan sees this transfer of power as paradigmatic and
significant. Similarly, Kaplan notes that while the Vilna Gaon and Hazon Ish were both solitary
ivory-tower academics, the former, in his activities against the Hasidim, worked with the local
community rabbis and lay communal leaders. By contrast, the Hazon Ish spoke by himself,
without reliance on or cooperation with any traditional communal frameworks. Kaplan further
notes that whereas in previous generations issurim and bans were issued as being communal in
nature, bans today are issued by roshei yeshivah, with barely if any communal rabbis among
them. Compare what Professor Kaplan says about the Rashba and the Meiri:
Interestingly enough, when the greatest rabbinic scholar of the Meiri's day, the
Rashba, issued a ban against the study of philosophy by anyone under the age of
25, the Meiri did not submit himself to the “Daas Torah” of the Rashba, but
opposed the ban openly and forthrightly. For that matter, the Rashba himself did
not appeal to any notion of Daas Torah, but issued the ban in the name of and as
the rabbinic head of the Jewish community of Barcelona, and the ban was signed
by both the rabbinic and lay leaders of the community.
Likewise, in “Interview”, Professor Kaplan says,
Moreover, I acknowledged the traditional rabbinic authority accorded to
the rabbi who is the rav of the kehillah...where the rav of the kehillah, by virtue
of being rav of the kehillah, is granted a good deal of extra-halakhic authority on
general communal issues. But even with respect to the rav of a kehillah, it’s not
so clear – if you look at the Vaad Arba Aratzot, the laypeople oftentimes kept the
rabbis on a short leash. If you look at the community in Amsterdam, it was the
 lay figures who put Spinoza in Cherem. Not the rabbis. Even though there were
some prominent rabbis there at the time.
To repeat, a lot of times, even in term of rabbis of communities –
certainly in the Middle Ages and early modern times – lay leaders played quite a
great role. Now the Rashba, on the other hand –but again, he was the official
head of the community – obviously played a major role in the Maimonidean
Controversy. But it should be pointed out that other people weren’t afraid to
disagree with him, even though they admitted his preeminent stature. Other
figures weren’t afraid to take issue with him, obviously respectfully, but they
weren’t afraid to take issue with him.
In short, then, in previous times, before the dislocations of modernity (especially the
Holocaust) and the rise of Da'at Torah, it was communal rabbis, not ivory-tower academic roshei
yeshiva who held influence, and even then, the laypeople as well had significant power. To repeat
a quotation of Professor Steiner once more (“The Transformation of Contemporary Orthodoxy:
Another View”),
Let me summarize my own description of how Orthodox Jewish practice has
changed recently. There has been a change: a change in the locus of authority.
The traditional kehila was no more, its potential leaders perceived as having sold
out to the New World or to Zionism. What was left, a tradition without any
religious legitimizing authority, was fragile and inherently unstable, susceptible
to massive defections to the left and to the right. Most, of course, left the fold.
Those truly interested in fulfilling God's Will had no choice but to turn to what
they considered to be the uncorrupted saving remnant, those talmidei hakhamim
they began to call “gedolim.” … The much touted concept of Da'as Torah also
stems from this idea: no text can be interpreted by one not immersed in the spirit
of that text. In the language of philosophy, every "knowing that" presupposes
"knowing how." Only the uncorrupted gedolim, not rabbis, and certainly not one's
own parents, can be trusted to interpret Judaism consistently with the spirit of
Torah-according to this world view.
Professor Jacob Katz, however, takes a different tack, in his “Da'at Torah”. Citing
Professor Kaplan's “Da'at Torah”, Professor Katz says, “The questions which occupied the
scholars who studied this phenomenon were how and when this change in the term's meaning
occurred, and how it was justified, in view of its obvious deviation from the traditional role of the
halachist as a mere interpreter of the sources.” In other words: Professor Kaplan studied the use
of the actual term “Da'at Torah” itself, and found – like Professor Katz did as well – that it use in
its contemporary sense of ex cathedra apodictic rulings based on charisma began only following
the Holocaust and the breakdown of the traditional communities. Before that time, the term
“Da'at Torah” was used in a more innocuous form, and at best, only a few isolated and vague
statements of the Hafetz Haim and Rabbi Elhanan Wasserman had any explicit bearing – and
even then an unclear and disputed bearing – on the phenomenon of Da'at Torah (see Katz, “Daat
Torah”, in note 20 and the entire body-paragraph applying thereto). Therefore, Professor Kaplan
dates the phenomenon to the post-war period, but by contrast, Professor Katz (“Da'at Torah”,
defining Da'at Torah as, “the pronouncement of the halachists ex cathedra, based simply upon
the general prestige conferred on the halachists, and therefore binding for religious Jewry”) says,
My approach will be different [than Professor Kaplan's]. My leading question is:
What purpose does this peculiar use of the term serve? Obviously it is meant to
legitimize the halachist's functioning in capacities outside the realm of halachic
procedure. Knowing however, that social or political developments often make
their appearance long before an appropriate designation for them is produced, our
main interest is not in when the term da'at torah came to be employed in the new
meaning, but when the halachist began to function in this novel capacity.
Following his approach, he finds the phenomenon – but not the term itself – exhibited in the
formation of Agudat Yisrael. Whereas Professor Kaplan, searching for the term, found Da'at
Torah to be present only inchoate at that time, Professor Katz finds Da'at Torah to be positive and
definitively present at that inter-war time, even without the term itself:
Now the fact is that the new understanding of the term occurred to no one at that
time [of the founding of Agudat Yisrael]. Once it popped up in Israel in recent
decades, becoming the slogan legitimizing the rabbinic leadership of Agudat
Israel in this country [viz. Israel], historians tried to find its origin in the struggles
of the inter-war period, especially in Poland. But a closer examination reveals
that these are misinterpretations. The term is used, but in more conventional
meanings.
Thus, Professor Katz agrees with Professor Kaplan that the term - with its contemporary
denotation of ex cathedra rulings - is absent in the prewar period. But whereas Professor Kaplan
derives that therefore, the concept was absent as well, Professor Katz holds that the basic
phenomenon of ex cathedra rulings was present with Agudat Yisrael's founding, and also with the
struggles of the Hungarian Ultra-Orthodox against the Hungarian Neologs (Reformers). Professor
Marc Shapiro concurs with Professor Katz, saying in “The Uses of Tradition”,
 Katz also illustrates the nineteenth [emphasis added] century creation of what he
terms ex cathedra rulings. ... It seems clear that the method [emphasis added] of
decision-making Katz is describing is fundamentally not really different than the
contemporary [i.e. twentieth-century] notion [and term] of Daat Torah. I thus do
not accept the popular view that Daat Torah is a twentieth [emphasis added]
century concept [emphasis added].
Now, I am in no position to judge between these two authorities; I only wish to faithfully
document their respective positions, for the sake of accuracy. However, if I were to offer my own
opinion, I would probably agree with Professor Katz that it is logical that the phenomenon would
begin to exhibit itself before a term could be found, and that therefore, even if – as Katz and
Kaplan both agree- the term “Da'at Torah” being used in its contemporary sense is a strictly post-
Holocaust phenomenon, nevertheless, the phenomenon – as per Katz – is still pre-Holocaust. At
the same time, however, it also seems logical that the phenomenon's rate of occurrence would
increase with time; the phenomenon itself might have been less frequent before the Holocaust,
and have become more common and also more socially powerful, commensurate with the rise of
its associated term and the social force of that term – all this being an only somewhat faithful
adaption of Kaplan's thesis. But be all this as it may.
In any case, Professor Kaplan adds (“Daas Torah”), however, “I now suspect that I
followed Bacon too closely in situating the development of the concept of Daas Torah within the
context of the history of Agudas Yisrael and its rise as a political party.” To what he has
previously said, he thus adds (“Daas Torah”),
[T]he concept of Emunat Hakhamim becomes central in hasidic ideology where,
shifted away from the traditional rav, it becomes transmuted into belief in the
tzaddik. The tzaddik's word governs all the affairs of the community and all the
personal affairs of the members of the community, and belief in the tzaddik is a
religious value per se. In the twentieth century the role of the Lithuanian rav and,
even more so, the Lithuanian rosh yeshivah, perhaps as a result of the breakdown
of the traditional Jewish community, begin to resemble those of the hasidic
rebbes, and belief in the tzaddik, suitably modified and now projected onto both
rav, and again, even more so, rosh yeshivah, appears in the garb of Daas Torah.
However, the mitnagdic proponents of Daas Torah have concealed its immediate
origins in the hasidic concept of the tzaddik and instead have directly linked it
with the notion of Emunat Hakhamim.
And again (“Daas Torah”),
 [T]he concept of Daas Torah originated in hasidic circles in the late nineteenth
century in response to the decline of tradition and the rise of secularism in Jewish
life. ... Daas Torah, in its modern sense, originated in hasidic cirlcles in the late
nineteenth century. It soon spread to mitnagdic circles, taking root first in the
extremist haredi community of Jerusalem. Gradually it entered the more
mainstream separatist Orthodox circles of Agudas Yisrael, beginning [emphasis
in original] in the interwar period, but only coming fully into its own and
achieving dominance in the postwar era. ... Perhaps, then, the success of Daas
Torah within the mitnagdic “yeshivah” world should be seen as one example
among many of the “Hasidicization” of that world.
Professor Katz also sees a Hasidic component to Da'at Torah. After explaining the critical role
that Jacob Rosenheim and Rabbi Isaac Breuer – both staunch Hirschians – played in the
formation of Agudat Yisrael, and after noting their Hirschian conception of the preeminence and
sovereignty of the law qua law (i.e. transparent and legally-formulated, in contrast to Da'at
Torah), Katz says (“Daat Torah”),
Moreover, the composition of the [rabbinic] council [of Agudat Yisrael] deviated
from the original conception as presented by Rosenheim and Breuer. These two
German personages were fascinated by the great Talmudists of the Lithuanian
schools. The idea of halachic sovereignty made sense with their cooperation. But
in inter-war Poland, although it embraced some part of Lithuania as well, the
bulk of the Jewish population was of Hassidic background, and the Orthodox
among them were guided by the Hassidic rabbis. These, even if known as
outstanding halachists, derived their prestige from other qualities, such as their
personal or inherited dynastic religious charisma. Indeed, the Agudah achieved
its prominence in inter-war Poland due to the support of the head of the Ger
Hassidim, Abraham Mordechai Alter. True, Rabbi Haim Ozer Grodzinski from
Vilna also took a part in supporting the organization, but the bulk of the
community was of Hassidic background. Thus the whole idea of rabbinic
halachic sovereignty was obviously only a sham.
We've already seen that while Professor Menachem Friedman mostly emphasizes the role of the
Lithuanian yeshivot - with their textual elitism and divorcement from the community – in the rise
of Haredism. However, we saw that in “The Changing Role of the Community Rabbinate”, he
also allocates a role to hasidut; the Hasidic rebbe and his `edah were distinct from the communal
rabbi and his kehillah, and thus Hasidism helped give rise to the voluntary community. We've also
seen that Professor Kaplan distinguishes between Da'at Torah in hashqafic and political matters,
and clear-sighted and transparent rational ruling on conventional matters. Thus, we can
understand Professor Friedman's continuation in “The Changing Role of the Community
Rabbinate”, saying,
The Hasidic rebbe is a charismatic leader, who is not chosen or appointed on the
basis of objective criteria, like the community rabbi. His formal tie, as the rebbe
and shepherd of a flock of hasidim, is not to any particular geographically-
defined community, nor does his authority derive from some 'writ of
appointment'. Although hasidim take it for granted that their leader is a 'great
man of Torah', the decisions of the Hasidic rebbe need not pass the test of
criticism by other scholars as to whether they accord with the halakhic principles.
the popular saying, 'Don't contradict the rebbe's decision', epitomizes the
charismatic type of Hasidic leadership, as opposed to the more rational approach
which characterizes rabbinical leadership. Indeed, the Hasidic rebbe's major field
of activity generally differs from that of a rabbi. A rebbe is concerned with the
relations between his hasidim and God and acts in this realm as a kind of
'mediator'; a rabbi acts primarily in the ritual realm of mitzvot (religious
injunctions) and instructs his audience in fitting behavior in accord with the
halakhah. ... [T]here was a basic contradiction between a ruling on questions of
ritual or civil law, which was subject to criticism, and the decisions of a Hasidic
rebbe, which were final and unquestionable.
Professor Kaplan further notes (“Daas Torah”) that this Hasidic origin of Da'at Torah
only reinforces my central contention that the concept of Daas Torah is first and
foremost an expression of the ethic of submission. ... [I]t becomes clear that
Daas Torah is viewed, in hasidic sources, as a reenactment of the Akedah,
whereby the individual sacrifices his intellect on the altar of blind obedience to
the words of the sages.
And between the Hasidic and Agudist models of the origin and rise of Da'at Torah, Professor
Kaplan notes (“Daas Torah”) that the general principle remains the same:
[T]he notion of Daas Torah arises as a response to the varying challenges that the
modern world poses to the authority of the rabbinic tradition. In ... [the Hasidic
model, t]he concept of Daas Torah is put forward as part of the hasidic attempt to
affirm the essential heteronomy of the halakhic tradition in light of the dangers
that the modern emphasis on autonomy poses to the binding authority of rabbinic
 law. In [the Agudist model] ... the concept of Daas Torah emerges as part of the
attempt to bolster the political and communal authority of the spokesmen of the
rabbinic tradition in light of the ideological and political challenges posed to
those spokesmen by secular Jewish movements and parties. … Precisely these
manifold challenges to the authority of the rabbinic tradition, then, led many of
the defenders and exponents of that tradition to make extreme and far-reaching
theoretical claims on its behalf and, even more important, on their own behalf as
the authorized representatives of that tradition. In sociological terms, “Status
anxiety...increases the assertiveness of status claims” (International
Encyclopedia of the Social Sciences, vol. 15 [1968], 253).
Earlier, we stated that not every innovation is necessarily illegitimate, that even if Rabbi
Hirsch's Austritt was influenced by were influenced by subjective sociology, this may have been
legitimate and authentic, in his day. Nevertheless, we said, we must be aware of innovation, so
that we can constantly reevaluate it and constantly redetermine anew whether it still is legitimate.
Indeed, one cannot say that Austritt is not revolutionary; Austritt actually constitutes the
conscious creation of a selective voluntary community, which Friedman distinguishes from the
traditional community. This does not necessarily undermine Austritt, but one must recognize that
it is revolutionary, and continually reevaluate its ongoing legitimacy. But Haredism claims
hadash assur min ha-torah, and then proceeds to pass its revolutions and innovations off as
authentic historical tradition, akin to the constant rewriting of history by protagonist Winston
Smith in Orwell's Nineteen Eighty-Four. Innovation may be legitimate, but historical revisionism
is not. We made a similar argument in connection with the rise of the Beit Ya'akov school system,
which the Haredim depend on for their livelihood. I then saw that Professor Lawrence Kaplan
would seem to agree with me, both in his general attitude towards innovation, and in his specific
attitude towards Haredi traditionalism and innovation, specifically in connection with Da'at
Torah. Professor Kaplan states (“Rabbi Isaac Hutner”),
Let me make my own position clear. Since I do not accept the view of the Hatam
Sofer that hadash asur min ha-Torah (that is, that all new developments in the
area of religion are ipso facto forbidden by Jewish law), I do not view the fact
that Daat Torah is a modern concept as necessarily impugning its validity if it
could be shown that the concept, while modern, can be organically related to the
Jewish tradition. For me, the notion of Daat Torah is invalid primarily
because...its oracular nature seems opposed to the whole process of halakhic
pesak. Nevertheless, it strikes me as ironic that precisely the group that
 subscribes to the view hadash asur min ha-Torah is the group that subscribes to
the notion of Daat Torah. Certainly, as indicated, there is nothing in Orthodox
Judaism newer than Daat Torah!
In the interest of honesty, however, I should admit that I have seen another view which
challenges the entire preceding interpretation of Da'at Torah. Professor Menachem Kellner, in
“Maimonides Agonist: Disenchantment and Reenchantment in Modern Judaism”, writes,
For years I have been convinced that the notion of da'at torah was a haredi
innovation, a politically expedient if Jewishly questionable response to the
challenges of modernity. However, I have been forced to change some of my
cherished opinions. While it is clear that the term da'at torah is a late nineteenth-
century innovation, the notion actually reflects forces that existed earlier in
Judaism.
He introduces his discussion saying
In its narrowest form, the debate revolves around the question: what role do
prophets as such have in the halakhic process? ... But this debate reflects a much
deeper and more profound difference of opinion. For religious thinkers like
[Judah] Halevi [the author of the Kuzari], the issue is not only that prophets have
a role to play in the halakhic process, but that the very nature of halakhah makes
it necessary that prophecy play a role in its determination. For religious thinkers
like Maimonides, on the other hand, the nature of halakhah is such that prophets
as prophets are irrelevant to the process. This debate itself reflects an even deeper
one, about the nature of God's relationship to the created cosmos.
This leads Professor Kellner into a discussion of Maimonidean/rationalistic nominalism versus
Kuzarian/Qabalisti mysticism. Kellner summarizes this dispute, saying,
For Halevi, fulfilling the commandments actually does something in the world
and accomplishes something which cannot be accomplished in any other fashion.
... How and why does this work? For Halevi, the commandments of the Torah
reflect an antecedent reality, a kind of parallel universe of godliness and holiness
accessible only to a holy few. Halakhic distinctions for Halevi reflect a reality
which is really “out there,” an actual facet of the cosmos, even if it is a reality not
accessible to our senses. Holiness, for example, is something that actually inheres
in holy places, objects, people, and times. Were we able to invent a “holiness
counter” it would click every time its wand came near something holy, just as a
Geiger counter clicks in the presence of radioactivity. ... But Maimonides saw the
 commandments of the Torah as creating a social reality, not as reflecting anything
actually existing in the universe. Maimonides, as opposed to Halevi (and
Nahmanides), sees halakhah as constituting institutional, social reality, not as
reflecting an antecedent ontological reality. ... This reflects his perception of
halakhah as a system of rules imposed upon reality. In further opposition to what
I have been calling the Halevi--Nahmanides stance, Maimonides maintains that
ritual purity and impurity are not states of objects in the “real world,” but
descriptions of legal status only.
Having established this distinction, Professor Kellner clinches its association with Da'at Torah:
If [following Halevi] halakhah reflects an antecedent reality, a reality
which cannot be apprehended through normal tools of apprehension but only
through an “inner eye,” enriched in some fashion by contact with the divine in
some fashion, then people who can properly make halakhic decisions are people
endowed with a power of apprehension which rises above the natural. That being
the case, it makes sense to accept their leadership even in matters which many
might think lie outside the four cubits of the law. Halevi's insistence on blurring
the boundaries between halakhah and prophecy is thus seen as an outgrowth of
his philosophy of halakhah. Deciding halakhic matters is not simply a matter of
erudition, training, insight, and skill; it demands the ability to see things invisible
to others.
Maimonides, on the other hand, sees halakhah as a social institution,
ordained by God, of course, but an institution that creates social reality, not one
that reflects antecedent metaphysical reality. Since he holds that so much of
halakhah is historically contingent (i.e. it could have been otherwise), he could
not have held otherwise. For Maimonides, halakhah does not “work” in the way
in which it “works” for Halevi. Obedience to the commandments for Maimonides
is immensely important on all sorts of levels--personal, educational, moral,
social--but accomplishes nothing outside the psychosocial realm of identity and
community.
A good way to see the difference between Halevi and Maimonides is to
focus on the following question. Can a non-Jew (or, for that matter, a future
computer) determine halakhah? For Halevi the question is ridiculous. In order to
determine the law a person must be a Jew who has perfected his contact with the
inyan ha'elohi to the greatest extent possible. For Maimonides, the question is not
 ridiculous. I assume that for many reasons he would not want to see the halakhic
decision of a non-Jew as authoritative but he would have to invoke arguments
which do not reject the theoretical possibility of a non-Jew achieving sufficient
familiarity with halakhic texts and canons of reasoning to formulate decisions
which stand up to the most rigorous halakhic examination.
The modern doctrine of da'at torah is thus clearly Halevian and not
Maimonidean. For Halevi, in order properly to determine halakhah one must tap
into a kind of quasi-prophecy; for Maimonides, one must learn how to handle
halakhic texts and procedures properly. If halakhah creates institutional reality,
then, beyond technical competence (and, one hopes, personal integrity), the
charismatic or other qualities of the individual halakhist are irrelevant to
questions of authority; if, on the other hand, halakhah reflects antecedent
ontological reality, then the only competent halakhist is the one who can tap into
that reality, a function of divine inspiration, not personal ability or institutional
standing.
...
There is another point to be made here. Maimonides tells us what a law
is, and how one determines what a law is. There is a real sense in which he wants
to “rationalize” the whole process, excluding from it appeals to seyata
deshemayah ("help of heaven") or to ruah hakodesh (“holy spirit”). This, of
course, is threatening to people whose authority rests upon their access to such
sources. I do not mean to accuse anti-Maimonideans of playing Machiavellian
power politics, but it would be naive to ignore this aspect of the matter.
Given this reference to politics, Professor Kellner appropriately then launches into a discussion
highly reminiscent of Professor Kaplan's regarding the “ethic of submission”; Kellner says that
Maimonides's world is a “disenchanted” one,
a world in which Jews are called upon to fulfill the commandments, not because
failure to do so is metaphysically harmful, but because fulfilling them is the right
thing to do. By making demands, imposing challenges, Maimonidean Judaism
empowers Jews. Their fate is in their own hands, not in the hands of semi-divine
intermediaries or in the hands of a rabbinic elite.
The world favored by Maimonides' opponents, on the other hand, is an
“enchanted” world. Theirs is not a world that can be explained in terms of the
unvarying workings of divinely ordained laws of nature; it is not a world that can
 be rationally understood. It is a world in which the notion of miracle loses all
meaning, since everything that happens is a miracle. In such a world instructions
from God, and contact with the divine in general, must be mediated by a religious
elite who alone can see the true reality masked by nature. This is the opposite of
an empowering religion, since it takes their fate out of the hands of Jews, and, in
effect, puts it into the hands of rabbis. This is, in effect, the Jewish world we live
in.
If Professor Kellner is correct, then it is very difficult to claim Da'at Torah is illegitimate. After
all, as he states,
No observer familiar with Jewish Orthodoxy today can doubt that Halevi's view
of halakhah is paramount. It was adopted by the Zohar and its related literature
and spread from there into almost every nook and cranny of halakhic thinking.
Maimonides' attempt to move halakhah from the realm of prophetic inspiration to
the realm of institutions has not yet succeeded.
One may personally prefer Maimonidean Judaism (as Professor Kellner himself obviously does),
but one cannot claim that Kuzarian-Nachmanidean-Zoharian Judaism is any less legitimate, in
terms of historical and traditional basis and warrant.
However, I am personally inclined to argue that while the mystical mindset is an essential
component of Da'at Torah, the Haredim have taken this mystical mindset even further than
Kuzari et. al. would ever have allowed. The fact is that never before in Jewish tradition do we see
rabbis flying so loosely with their decrees and pronouncements; as Professor Shapiro says (“The
Uses of Tradition”):
Even in pre-modern times one can point to rabbis deciding communal matters
based on non-halakhic points. ... The only real difference between the modern
exponents of Daat Torah and the earlier authorities seems to be that the earlier
authorities felt the need to expound upon their opinions with numerous Scriptural
and Aggadic proofs. The modern exponents of Daat Torah often feel no need to
offer any justification of their views and it is here where one finds their
originality.
Therefore, I would personally argue that even if the mystical view is an important component of
Da'at Torah, nevertheless, the modern Haredi exponents of Da'at Torah have taken this mystical
concept further than it was ever meant to be. The mystics may – contra Maimonides – have made
arguments with recourse to ruah ha-kodesh, but they recognized that ruah ha-kodesh must be
accompanied with reasoned and transparent logic based firmly on established sources. They never
appealed to ruah ha-kodesh alone and let the matter rest there, without sources. Furthermore, as
Rabbi Marc Angel says (“Authority and Dissent”), “Rabbi [Hayyim] Palachi noted that even
though Maimonides certainly wrote with Divine inspiration, nevertheless many great sages of his
generation attacked him and criticized his work.” Therefore, I would personally argue that even if
the Haredim have taken the concept of ruah ha-kodesh and Kuzarian/Qabalistic mysticism to
their extreme logical conclusions, nevertheless, the Haredim are breaking with historic Jewish
tradition, for even the ancient mystics recognized that reason and logic had a legitimate and
essential role, even if they did not go so far as Maimonides. Defending the concept of Da'at
Torah against Professor Kaplan, Rabbi Alfred Cohen quotes many opinions (Rashba, Ritva, and
Maharal) who claim that the sage who is invested deeply in the Torah will merit ruah ha-kodesh
and siyata di'shemaya even in general matters not specifically related to mundane halakhic
decision-making. He thus writes (“Daat Torah”),
Written centuries ago, these opinions hardly constitute a “modern phenomenon”
reflective of a breakdown in traditional communal structures, and the
concomitant weakening of the influence of community rabbis and lay leaders.
However, Rabbi Cohen, I believe, is missing the point. Even if we side with these authorities who
hold like Kuzari against Maimonides, even so, it is one thing to say that the wise sage, being a
Torah scholar, has particular ability to offer profound advice on questions of pressing importance,
but it is something wholly else to claim that these opinions are “Da'at Torah”, i.e. the opinion of
the Torah, the only kosher and proper belief, the denial of which is heresy and scorning of the
sages. Perhaps Maimonides may go further than most, but even Kuzari et. al. agree that in the
end, the Torah scholar's ruah ha-kodesh and siyata di'shemaya merely assist him, but do not
replace profound and rigorous intellectual argument, to which any other scholar may disagree
provided sources and profound logic of his own. The Haredim may be able to offer the Kuzarian
opinion to buttress their claims of Da'at Torah, but their claim to be able to speak apodictically,
ex cathedra, with any disagreement being totally forbidden as heresy, this claim remains without
source in the Torah. To make my point clear, let us take a Da'at Torah-style quotation of Rabbi
Cohen's and see if it makes sense when put into the mouth of a sage of a previous generation.
Speaking about going to a certain rally in Washington, Rabbi Cohen says,
Since Rav Neuberger of Ner Yisrael Yeshiva was in favor of going, and he is
certainly an individual with impeccable credentials in the Torah world and,
furthermore, is recognized as exceptionally astute in dealing with political
matters, it is hard to understand how there could be a contrary opinion in the
Torah community.
Let us say that instead, we read,
Since Rambam said this act or matter (in any matter of halakhah from anywhere
in Shas) was kosher/treif/mutar/assur, and he is certainly an individual with
impeccable credentials in the Torah world and, furthermore, is recognized as
exceptionally astute in dealing with halakhic matters, it is hard to understand
how there could be a contrary opinion in the Torah community.
In one fell swoop, we have eliminated the opinion of every rabbi who ever disagreed with any
halakhah written in the Mishneh Torah! But no authority every said such a thing; neither Ramban
(Nachmanides) nor Rabbi Yosef Karo nor anyone else ever said that disagreement with Rambam
(Maimonides) is forbidden because of Rambam's Da'at Torah, even though surely Rambam
would be the most eminent authority in all of post-Talmudic history to be granted Da'at Torah!
But I am no expert in these matters, and I have offered the forgoing only as my personal
unlearned opinion, as an attempted reconciliation. My primary purpose was simply to be
intellectually honest and note that Professor Kellner offers a formidable opinion that if true,
would undermine the argument by Professor Kaplan that Da'at Torah is an unprecedented and
untraditional concept. (And in the interest of honesty, I am myself by-and-large a Maimonidean,
and so, like Professor Kellner, I am inclined to be biased against the Kuzari et. al., and to
diminish and obscure anything un-Maimonidean. Therefore, it is my personal inclination to
attempt to show that the Haredim do not have a traditional basis for Da'at Torah, i.e. to limit the
force of Kuzari et. al. and to claim that even according to Kuzari et. al. there is no basis for Da'at
Torah. The reader should bear all this in mind.)

V.
If I may offer my personal opinion on the subject of Haredism and Da'at Torah: the
reader should not mistake me for being opposed to religion or religious authority in general. I am
myself Orthodox, and a fundamentalist and conservative one at that. The difference between me
and the Haredim is not one of fundamentalism and conservatism, for I am as much these as they
are. The difference between me and then is that whereas they are right-wing in their positions, I
am a liberal. But my liberalism comes from a sense of fundamentalism and conservatism no less
staunch than that held by the Haredim.
In the end, then, my liberal positions are quite in consonance with those of Modern
Orthodoxy, and the left-wing of Modern Orthodoxy no less! But whereas many Modern Orthodox
Jews will appeal to Western values to uphold their liberalism, I myself will rather appeal to Torah
principles. David Hazony, in “Eliezer Berkovits and the Revival of Jewish Moral Thought",
distinguishes the philosophy of Rabbi Dr. Eliezer Berkovits from Conservatism, saying
Yet there is a significant difference between Berkovits’ effort and that of
these other scholars, which concerns the nature of the values which justify
change. Underlying much of the argument of non-Orthodox scholars is an effort
to justify change as part of an ongoing evolutionary process resulting from the
continuous encounter between tradition and the evolving needs of the individual
or society. In the words of Louis Jacobs, a prominent Conservative thinker: “The
ultimate authority for determining which observances are binding upon the
faithful Jew is the historical experience of the people of Israel”—meaning that
history brings new situations before the Jewish people, and halacha must evolve
accordingly. (Jacobs, Tree of Life, p. 230.) ... Robert Gordis, another leading
scholar of the Conservative movement, expresses a similar belief when he writes
that “tradition constitutes the thesis, contemporary life is the antithesis, and the
resultant of these two factors becomes the new synthesis. The synthesis of one
age then becomes the thesis of the next; the newly formulated content of tradition
becomes the point of departure for the next stage.” (Robert Gordis, “A Dynamic
Halacha: Principles and Procedures of Jewish Law,” Judaism 28:3, Summer
1979, p. 265.) In these and similar writings, the emphasis is upon change as a
response to new challenges posed by the flow of history, with little attempt to
spell out exactly what are the eternal values, if any, that the openness to change is
ultimately intended to preserve. Change is a product of the fluid encounter
between the Jewish people and history, and therefore it does not follow any clear
pattern; it is as variegated as history itself. As a result, it often becomes difficult
to tell from these writings whether the need for change is determined through
reference to principles that are themselves found within the Jewish tradition, or
whether it is derived from somewhere else. (See, for example, Zemer, Evolving
Halacha, pp. 44-57.)
From Berkovits’ standpoint, this view is hard to reconcile with the moral
message of the prophetic texts. These were clearly meant to deliver a message
whose importance rested not in its success as a “synthesis” between the
traditional and the contemporary, but precisely in its ability to transcend the
changing attitudes of history. Indeed, according to the Talmud it was the criterion
of eternal validity that determined whether a given text was included in the
biblical canon in the first place. (Megila 14a.) Instead, Berkovits understands
 change in halacha to reflect the careful, incremental adjustment of legal means to
further moral ends that are themselves intrinsic to Judaism and unchanging.
These moral ends are not an external “antithesis” with which the tradition must
come to terms by changing its internal content in keeping with them; they are
themselves the moral core of the same revealed message from which the law
receives its authority. ... Berkovits writes [commenting on the Kuzari, as noted by
Hazony], “The rabbis in the Talmud were guided by the insight: God forbid that
there should be anything in the application of the Tora to the actual life situation
that is contrary to the principles of ethics. What are those principles? They are
Tora principles, like 'And you shall do that which is right and good in the eyes of
the Eternal'; or 'Her ways are ways of pleasantness, and all her paths are peace' or
'That you may walk in the way of good men, and keep the paths of the righteous'”
(Berkovits, Not in Heaven, p. 19.) While the law may change, the values which
underlie it do not; on the contrary, the purpose of change is to permit the
continued advancement of the Bible’s eternally valid moral teaching under new
conditions. This difference is felt in the way in which Berkovits levels his
criticism of prevailing halachic practice. Berkovits believed that the halacha had
ossified to the point of inflicting real damage on some of its own moral ends...
When calling for a reconsideration of the status of women in Jewish law,
for example, Berkovits shies away from Enlightenment concepts such as liberty
and equality, and instead invokes classical Jewish concepts such as human
dignity, the protection of the innocent, and the covenantal symbolism which the
institution of marriage is supposed to entail, in order to conclude that “we have
reached a juncture at which the comprehensive ethos of the Tora itself strains
against its formulation in specific laws.” (Berkovits, Crisis and Faith, p. 121
[from "The Status of Woman Within Judaism" in his book Crisis and Faith, pp.
97-122].) In his theological writings, as well, Berkovits assumes that the Jewish
tradition is driven by a set of moral values inherent to and derived solely from
within that tradition. His Studies in Biblical Theology (1969) is an extensive and
meticulous work dedicated to teasing out the essential moral principles of the
Bible by analyzing its use of terms such as “holiness,” “justice,” and “truth.”
(Eliezer Berkovits, Man and God: Studies in Biblical Theology (Detroit: Wayne
State, 1969).)
Suffice it to say, I agree with Rabbi Berkovits in every way.
 Rabbi Berkovits's position would be similar, in my own opinion, to that of Rabbis
Benzion Uziel and Haim David Halevi. Both of the latter were traditional Talmudists of the
Judeo-Spanish school, neither ever attending university or having any reliance on Western values
worth noting; as Rabbi Marc Angel has put it to me in private conversation, Rabbi Halevi was not
a Modern Orthodox rabbi, but instead, he was simply a traditional rabbi of the old school, albeit
with his head screwed on straight and with a loving heart in his breast. Nevertheless, Rabbi
Halevi could say (Asei Lekha Rav 8:97),
The law came down on the side of the school of Hillel because its followers were
sympathetic human beings, recognizing human frailty and the difficult challenges
of life. They were sensitive to the human predicament and tended to be lenient in
their rulings. ... Anyone who knew at first-hand our teacher, Rabbi Uziel of
blessed memory, knows that his personality was stamped with the love of
kindness and mercy to all people, and certainly to Jews, who are called children
of God. It is not plausible that the heart that beat with pure love did not wield its
influence on his general and halakhic thinking. I am witness that all his public
service was deeply influenced by that love of Israel which infused him. ... How
would it be possible that his halakhic thinking not be influenced in this
direction?”
According to Rabbi Halevi (Asei Lekha Rav, ibid.) and Rabbi Uziel (see Rabbi Marc Angel's
book, Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel), such
leniency is possible, however, only where a true Talmudic basis exists. That is, one cannot just
rule based on compassion and mercy alone. Rather, compassion and mercy provide the
justification for ruling based on minority opinions, novel understandings, etc., but those minority
opinions and novel understandings and such must have real firm Talmudic basis. Rabbi Berkovits
would agree; morality plays a role in ruling halakhah, but it itself alone, without some sort of
technical Talmudic basis, is insufficient. And yet, notwithstanding his refusal to rule without a
traditional Talmudic basis, notwithstanding his lack of any university education, etc., Rabbi
Halevi is perhaps the Orthodox poseq most often and most respectfully cited by Reform and
Conservative poseqim, due to the fact that very often, Rabbi Halevi's rulings fit with their agenda,
and and even when they do not, the non-Orthodox so respect Rabbi Halevi's rulings that they cite
him, even if only to ultimately disagree with them (Johnny Solomon, “Rabbi Hayyim David
Halevy as the Orthodox poseq for the non-orthodox”).
It could be fairly said that my own philosophy of the Oral Law - largely following
Rambam, Rabbi Moshe Shmuel Glasner, and Rabbi Dr. Eliezer Berkovits - has very much in
common with Conservative Jewish philosophy on that subject, except for my rejection of the
reliance on the Volksgeist and the concept of Catholic Israel, as discussed previously. I would also
follow the philosophy of Rav Kook on the relationship of halakhah and history, which is very
similar to Conservative Judaism, except also critically different, in that it too, like Rabbi
Berkovits's, ultimately places the Torah and its values as supreme, and rejects that human desires
and opinions, unmoderated by the Torah, can supplant the Torah. According to Rav Kook (Igrot
vol 1., p. 103 – cited in Shapiro, “Thoughts on "Confrontation" and Sundry Matters Part II”),
‫ שלפי מושגי המוסר יהיה נראה שצריך להיות מובן‬, ‫ואם תפול שאלה על איזה משפט שבתורה‬
‫ אז אם באמת ע"פ ב"ד הגדול יוחלט שזה המשפט לא נאמר כ"א באותם התנאים שכבר‬,‫באופן אחר‬
‫ ודאי ימצא ע"ז מקור בתורה‬,‫אינם‬.
My own unprofessional translation:
And if a question arises on any given law of the Torah, that according to
moral/ethical conceptions this law needs to be understood in another manner,
then, if indeed according to the Beit Din ha-Gadol (i.e. the Sanhedrin) it will be
decided that this [Torah-]law in question was stated only with regards to
sociological conditions that are no longer extent, then indeed by means of this
ruling a source in the Torah will be found for this moral/ethical conception.
And again, according to Rav Kook (Kevatzim mi-Ketav Yad Kodsho, vol. 2, p. 121, i.e. 4:16 –
cited in Shapiro, “Thoughts on "Confrontation" and Sundry Matters Part II”),
, ‫ חייב כל אדם לקבל לתוכו אותו מממקורו‬, ‫ באיזה צורה שתהיה‬, ‫כשהמוסר הטבעי מתגבר בעולם‬
‫ אז יעלה בידו המוסר הטהור אמיץ‬. ‫ ואת פרטיו יפלס על פי ארחות התורה‬, ‫דהיינו מהתגלותו בעולם‬
‫ומזוקק‬.
My own unprofessional translation:
When natural morality strengthens in the world, in whatever form it may, then
everyone is obligated to incorporate this within his own ethos from its source, i.e.
from its revelation in the world, and its details will be explicated via the paths of
the Torah. Then pure morality will come into his hand, strong and purified.
See Professor Marc Shapiro's “Thoughts on "Confrontation" and Sundry Matters Part II” for
citation of and commentary on these passages. In particular, Professor Shapiro notes that
R. Kook is not speaking about apologetics here, but a revealing of Torah truth
that was previously hidden. The truth is latent, and with the development of
moral ideas, which is driven by God, the new insight in the Torah becomes
apparent.
Additionally, Professor Shapiro notes regarding Rabbi Norman Lamm that
 He then develops the notion of a developing halakhic morality in which our
evolving understanding of morality lead us back to the Torah “to rediscover what
was always there in the inner folds of the Biblical texts and halakhic traditions”.
So it is very possible that new values and events in history will cause us to reevaluate and
reexamine the Torah and its values, but in the end, it is always the Torah's values, never modern
Western values, which impel and motivate us!
Given all the forgoing, I am quite conservative in my epistemology, and as such, I would
completely disagree with Professor Jacob Katz when he says (“Daat Torah”),
Rabbis by the very nature of their position, are obliged to care for the interests of
religion. Whenever religious issues are on the agenda, their voice of course
carries its special weight, but when political power is given into their hands, they
are led to use this in securing religious interests, thus leading to a double
calamity. The process of political decision making is be perverted by allowing
religious considerations to influence it. At the same time, religion is discredited
by its resorting to means of a secular nature, lending weight to the objection that
it cannot stand on the appeal of its inherent values alone. I am afraid that this is at
present the situation in my country.
First, I find Professor Katz's view to be difficult to understand, even on its own terms. For
ontologically speaking, there is nothing to distinguish a rabbi from a layman. The rabbi may
know more than the layman, but their basic views can be quite similar. So what is the difference
between a rabbi holding political office, and a layman who completely agrees with the rabbi
occupying that same office? And what if the layman has the exact same amount of rabbinical
learning but has never formally received a rabbinical diploma (semiha) – is he still to be regarded
as a non-rabbi? Unless we forbid all religious individuals from holding political office – which
would be a travesty, a violation of Western liberal democracy even from a non-religious
standpoint- or unless we administer exams of rabbinical knowledge to all political candidates and
ban everyone with a certain score and above, i.e. only admit to political office those possessing a
certain requisite ignorance in rabbinical learning – which would again violate democracy - I see
no possible way of distinguish between rabbis and non-rabbis. But besides the fact that Professor
Katz's sentiments are impossible to be implemented in practice without violating democracy, I am
also opposed to them in theory. Being religiously conservative myself, I would myself like for
nothing more than to see religious Torah values carry political sway. The difference between me
and the Haredim would be in our respective interpretations of what authentic Judaism is. What
Rabbi Blau says (“Orthodox Judaism”) would exactly describe what I have been attempting to do
in this present essay:
[L]iberal Orthodox thinkers argue that the threat of modernity caused Orthodox
decisors to become overly rigid in their rulings. They contend that accepting
Katz’s conception of the historical development of Orthodoxy may enable
another, more fluid [Orthodox] model to emerge.
In other words: I believe the Haredi version of Judaism is false, from a Jewish perspective, based
on the historical studies of Professors Katz, Friedman, Soloveitchik, Kaplan, etc. But I am still
religiously conservative and fundamentalist, even if liberal, and I would completely desire an
Israeli theocracy in which Judaism and Torah are law.

VI.
We saw Professor Friedman's statement (“Life Tradition and Book Tradition”) that in his
“opinion the Eastern European, Ashkenazi character of haredi Jewry remains questionable to this
day”. And we might ask, what greater indictment to Haredi authenticity is there than the irony
“that precisely the group that subscribes to the view hadash asur min ha-Torah is the group that
subscribes to the notion of Daat Torah”? The inauthenticity of the Haredi approach may then lead
us to another question: just what is the proper role of Judaism in the State of Israel? (We thus
return to where we began, viz. kashrut certification for non-Shabbat-observing restaurants.) We
have not the space to delve deeply into this issue, but a few remarks are warranted.
Many are the voices who – justly, as we will have seen – call for a weakening of
Haredism in Israel. Haredi Judaism, they say, should not wield so much power in Israel. But what
is the alternative? One possibility is to make the government entirely secular, and allow any and
every institution to institute its own policies. For example, Reform Judaism could perform its
own marriages and divorces, while Orthodoxy would do its own, etc. But this would only be a
deepening of the phenomenon of “voluntary communities” (cf. Friedman), and this would only
make the State of Israel be still more non-traditional. Surely, the Jewish state should somehow be
Jewish!
Moreover, such a denominationally-based organization would be anathema to much of
Israel's population. As Rabbi Dr. Marc Angel explains, (“Religious Zionism and the Non-
Orthodox”),
... Whereas denominationalism within Judaism is a creation of European Jewry,
the majority of the Jewish population in Israel is composed of Jews of African
and Asian backgrounds. ... Now, some people want to introduce non-Orthodox
movements into Israeli life. No doubt, they will attempt to attract Jews of African
 and Asian backgrounds to these movements, just as all the other European-
oriented movements have tried to win them over. Yet, is it not morally
irresponsible and reprehensible to try to draw people away from their own
religious traditions? ... In contrast to the European and American experience, the
Sephardic communities in Moslem lands did not develop non-Orthodox
movements. Indeed, attempts to divide Sephardic communities on ideological
lines are antithetical to the Sephardic religious sensibility. There were, to be sure,
individual Sephardim who were not fully observant of halakhah and/or had their
doubts about the premises of traditional faith. Nevertheless, Sephardic
communities maintained reverence for tradition. Even when the societies in
which they lived began to westernize, and when more Sephardim moved away
from traditional observance -even then there was no attempt to organize non-
Orthodox movements or to establish non-Orthodox synagogues. The importation
of non-Orthodox movements into Israel, therefore, is something which should be
resented and repudiated by the vast majority of Israelis. These movements
represent the fears and insecurities of Jews in the Golah of Europe and
America. ... It is possible to combat the spread of non-Orthodox movements in
Israel not by head to head confrontation with them, but by making a case to
Israeli society that it is not desirable to import Diaspora ideologies which
developed due to Jewish weakness vis-a-vis the non-Jewish European and
American societies.
Similarly, Daniel J. Elazar says (“Religion in Israel: A Consensus for Jewish Tradition”),
[S]ince a majority are Sephardim and the Sephardi world never had a reformation
like the Ashkenazi world, where religious Jews divided themselves into three or
more denominations, even those who do not pretend to be Orthodox believe that
Jewish tradition itself should stand relatively unchanged and should not be
fragmented. They reserve for themselves the informal right to pick and choose,
but they want the formal religion to remain as is, as in the rest of the
Mediterranean world. ... All of this should help us understand why Reform and
Conservative Judaism have had so little impact in Israel and are not likely to
improve their position in the near future... The conventional explanation blames
the limited impact of these movements on the refusal of Israeli government to
recognize Reform and Conservative rabbis, for political reasons. Yet the real
answer lies in the overall Israeli outlook regarding Jewish religious practice. ...
 Reform, with its notions of voluntary individual religious choice, is simply
incomprehensible for them both in concept and design. For most Israelis, an
individual may choose what he or she will observe, but the religious tradition
itself is fixed by Divine law. This is the dominant view among the vast majority
of traditional Israelis and even among those who reject the tradition in their own
lives but have a certain view as to what real Judaism is. ... In short, most Israeli
Jews accept the legitimacy and support the maintenance of the continuity of
Jewish tradition, even though they may not care to observe every jot and tittle of
it. Nor would they change the forms of that tradition, which is what non-
Orthodox Judaism does to make the tradition more attractive to its potential
constituencies.
The Israeli attitude is thus in contrast to a Western European Protestant attitude; as Elazar
continues there, saying,
The ideas that lie behind Reform and Conservative Judaism can be traced back to
the Protestant Reformation, to a need that arose in Central and Western Europe
not only to purify the Church but to reconcile belief and practice in a way that
never found expression in Eastern Europe, the Mediterranean world, or the
Islamic world. In Eastern Europe and the Christian Mediterranean world, for the
average person, the emphasis was more on impressive church rituals and not on
personal piety or doctrine, while the Islamic world, like the Jewish, emphasizes
the communal, legal, and traditional character of religious behavior over matters
of individual attitudes. Thus, Northern European Protestantism influenced the
Jews in that part of the world to seek greater consistency in their religious lives,
something which became absolutely critical in the United States where anything
less is considered hypocrisy.
Elaborating on this point, Daniel J. Elazar notes (“Can Sephardic Judaism be Reconstructed?”)
that,
Sephardic Judaism as it developed in Spain was not like the "post-Reformation"
Judaism of modern Europe and the United States divided into Reform,
Conservative or Orthodox. First of all, it did not involve the kind of rupture with
tradition that characterized Reform. Nor did it turn tradition into something
frozen, or worse, reshaped by a deliberate ideology of rigidity, as did ultra-
Orthodoxy. Nor did it allow the kind of institutional divisions that ultimately led
to more deep-seated ruptures as with Conservatism. In part this was because
 medieval conditions were different from modern ones and in part because the
culture of the Mediterranean world is different from that of northern Europe. …
[T]he fact of Sephardic Jewry being Mediterranean played a very important role.
Thus we see today that in the Mediterranean countries the Protestant approach to
religion with its search for consistency between belief and action continues to do
poorly. As a rule, Mediterranean peoples believe that they must formally be
faithful to the traditions of their fathers although reserving to themselves the right
to determine how they individually will maintain those traditions. In
contemporary times, this has become the way in which many Sephardim conduct
their lives. Today there are more than a few Sephardim who eat every kind of
halakhic abomination while providing support for the most ultra-Orthodox
Sephardic yeshivot (rather than more "modern" institutions) and who regularly
visit (with checkbook in hand) wonder-working rabbis of the old school to obtain
their blessings.
Elazar offers (op. cit.) a practical example: Ashkenazim will tend to form different congregations
based on ideology and practice (for example, Hassidic and Litvish and Modern Orthodox and
Reform, etc. etc.), but
Contrast this with a typical Sephardic congregation. It will be composed of
people of all levels of observance, from black-hatted yeshiva students to people
who think of themselves as secular but enjoy attending services from time to
time. In the congregation all are equal. No one is asked how much or how little
he observes. Sephardim assume that all people want to be traditional, only some
people need greater degrees of help. That Sephardic attitude, which is typically
Mediterranean, runs against the grain of the Ashkenazi pattern where people have
to declare their religious ideology and form of religious behavior to fit into one
community or another within Orthodoxy as well as between Orthodox and non-
Orthodox.
These words, besides showing how ill-advised and pernicious it would be to import Reformism
into Israel, suggest a provocative alternative for the solution to our predicament in Israel. Elazar
further notes (ibid.),
[A]s modernization engulfed them, the Jewish religious leadership in Central and
Eastern Europe became either more radical or more conservative in their
approach to tradition, either seeing antinomian radical reform or refusing to
continence any new departures, even in interpretation. The religious leadership of
 the Sephardic world, on the other hand, particularly in North Africa and the
Balkans, developed a whole pattern of halakhic interpretation that moved far in
the direction to reconciling halakhah with modern technology and life down
through the nineteenth century.
We have already seen that according to Shapiro (“The Moroccan Rabbinic Conferences”) that
Sephardic Orthodoxy “was able to develop in a much more natural-one might say organic-
fashion” than Ashkenazi Orthodoxy. Angel and Elazar have pointed out one result of this, viz. that
in Sephardic Orthodoxy, the official leadership and communal organization could be Orthodox
even as individual members were free to be as religious or non-religious as they personally chose.
In this way, everyone was free to be as observant as he or she chose to be, and the official
Orthodox leadership catered to these non-religious elements, and sought to fully accommodate
them. I once heard Rabbi Angel – I forget whether the father (Marc) or the son (Hayyim) – speak
about a certain historical incident: Congregation Shearith Israel, the Spanish-Portuguese
congregation in NYC, was considering whether to become Orthodox or Conservative. The
congregation had been traditional since its founding in the 17th century – Sephardim know
nothing of sectarianism – but now this was sometime in the early 20th century, and the question
had to be considered. One member of the congregation, certain Benjamin Cardozo – then a young
man of some twenty or so years of age – stood up and gave an impassioned speech. He himself
was not traditional or observant, he said, but all the same, he continued, we have an obligation to
transmit authentic Judaism to our children. Any individual Jew can choose – as he himself
apparently had – not to be observant, but we must preserve Judaism itself, so that our children at
least have the authentic Judaism before them, whether to accept or reject.
By following this path today – as Rabbis Benzion Uziel and Yitzhak Herzog sought
during their tenures as Chief Sephardi and Ashkenazi Rabbis of Israel respectively (Angel,
Loving Truth and Peace) – Israel could have an officially Orthodox leadership and governance
even as it would fully and completely accommodate the non-Orthodox sectors of society.
Halakhically valid ways exist, for example, for marriage and divorce to be completely accessible
to all and completely free of sexual discrimination. Similarly, Sephardi rabbis -as shown by Rabbi
Marc Angel and Professor Zvi Zohar (see Makovi, “Laundry List of Sources Relating to Giyur”)
– were remarkably open to leniency in matters of conversion; such leniency today – also
suggested by Rabbi Dr. Eliezer Berkovits (“Conversion According to Halakhah”) - would allow
Israel to grant Orthodox Jewish status via Orthodox conversion to all those desirous of
Jewishness, even for those individual candidates who have no intention of being observant by
Orthodox standards.
 Therefore, if Haredi Judaism is inauthentic and intolerant and inflexible, the solution is
not to secularize Israel, but to find a way by which Israel can be Orthodox and yet fully
accommodate the non-Orthodox without any loss of personal freedom and autonomy. As Elazar
says (op. cit.) of the Sephardi form of Judaism,
One of the greatest, if not the greatest, contribution of Sephardic Jewry was its
approach to the theory and practice of Judaism. Iberian Jewry reworked the
Jewish materials it inherited from Eretz Israel, Babylonia and North Africa into
classical forms, thought through and organized systematically, whether in
halakhah, philosophy or mysticism, to offer a balanced theory and practice, not
given to excess, seriously Jewish, yet worldly and cosmopolitan. Classic
Sephardic Judaism was designed by men who lived in the larger world and were
active in its affairs, most of whom wanted a Judaism no less rigorous than their
Ashkenazi brethren in its essentials, but flexible in its interpretations and
applications. … The basic element of the Sephardic religious outlook embodied
in the halakhic decision-making of its religious leadership w[a]s that halakhah
should facilitate Jewish living in the world in which Jews found themselves, not
seek to separate the Jewish people from the external world per se. … Their
Judaism would play an isolating function only where critically necessary and not
prevent Jews from playing their role in what had been in Spain prior to 1391 a
multi-religious society.
Similarly, as Elazar notes elsewhere (“The Special Character of Sephardi Tolerance”),
Sephardim are noted for and pride themselves on being less fanatic than
Ashkenazim in virtually all matters, especially religion. They certainly are not
among the militant, black garbed Jews who throw stones at vehicles on the
Sabbath and refuse to serve in the army. Sephardim are often bewildered by the
Ashkenazic pursuit of humrot (new and more difficult halakhic refinements),
because they have traditionally sought to balance the requirements of observance
with those of living in order to achieve a form of religious expression that takes
into consideration the whole human being, to encourage and cultivate the range
of human attributes.
It is difficult for Sephardim to understand the isolationist trend that is
dominant among so many Orthodox Ashkenazim, who see the salvation of
Judaism only in separating it from those who do not meet current religious
standards, which seem to be always moving to the right. Sephardim see no hope
 or virtue in isolation; to them, the result is a warping of Jews and a distortion of
Judaism. Sephardim always have sought to balance their lives both as Jews and
as a part of a larger human society. Isolation is not and was not a Sephardic goal
-- that would have been a violation of their sense of proportion and balance.
Rather, they seek to accept involvement with the larger world and its challenges.
Historically, in the world in which most Sephardim lived, there was little
occupation and segregation between Jews and non-Jews and often little
residential segregation. Living and working together prevented the development
of an isolationist spirit.
Thus, according to Elazar, today
[w]hat is missing from the Jewish religious picture is an active, articulate
expression of the Sephardic way -- classic rather than romantic, Mediterranean
rather than Eastern European, cosmopolitan rather than parochial -- that has as its
goal the linkage of all this through a common religious framework and the
involvement of Jews in the world without sacrificing their Jewishness.
The Sephardic Orthodox model therefore offers a provocative possibility for the salvation and
redemption of Judaism; its open-minded and tolerant ethos would allow it to satisfactorily
encompass even those individuals who have no interest in punctilious Orthodox Jewish
observance.
Professor Zvi Zohar writes (“Loving Truth and Peace”),
For those who intuitively feel that the haredi path of insularity and humrot cannot
be the way of Judaism in our times, Sephardic tradition offers an invaluable
wealth of resources.
Or as Elazar notes (“The Special Character of Sephardi Tolerance”),
Sephardic interest in the arts and sciences in addition to the study of holy texts,
their interest in politics and large- scale commerce and not only in the narrow
cultivation of religious observance -- these are all aspects of the Sephardic
concern for the whole. The worst possible fate that could befall the Sephardim
and the Jewish people would be for us to lose this breadth and openness of spirit
to become isolated and segregated according to the present vogue. On the other
hand, this openness is one of the greatest contributions that we can give to the
contemporary Jewish world.
A beautiful vision of halakhic Judaism is put forth by Rabbi Dov Berkovits (“Eliezer Berkovits,
Evil Empires, and Zionism”):
 I think it safe to say that [my father] Eliezer Berkovits used the well-worn phrase
“halachic Judaism” in two revolutionary ways. First, though springing from the
fundamental commitments of Orthodoxy, halachic Judaism according to
Berkovits refers to a non-denominational, or better, a post-denominational,
Judaism whose ultimate concern is not with ideology, or even theology, but with
the living demands of the dynamic condition of the Jewish people. Second,
though deeply rooted in the wisdom of the Tora, the central aim of halachic
Judaism is not to formulate a defensive, traditionalist posture for the protection of
Tora from life, but rather to be a formative tool for the creative fashioning of
human realities.
This, then, indicates the task for us; as Elazar concludes (ibid.),
[I]t [is] possible to attract non-Sephardim, who are seeking a Judaism of that
kind, to the Sephardic way. Can it be done? Only if there is a major effort to
revive Sephardic halakhic interpretation, train Sephardic rabbinical leadership,
and present the Sephardic way as an equally valid expression of Judaism, one
that avoids Reformation-style schismatics and speaks on behalf of an organic
Judaism through which Jews as a group are linked to a common tradition, while
as individuals they make their own choices as to how to relate to and express that
tradition. … The revival of a living organic Judaism of this kind is the need of the
hour in Jewish life.

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