Rosh HaShana 5764 – 2003
It is recorded in the Mishna:
Moses received Torah at Sinai. He transmitted it to Joshua. Joshua to the Elders, the Elders to the Prophets, the Prophets to the members of the Great Assembly. They taught three things: Be careful in making a decision; rear many students; and build a סְיַג "fence" to protect Torah. (Avot 1:1)
This morning, I am going to give an unconventional but correct explanation of what the members of the Great Assembly might have meant by a "fence" to protect Torah, why this "fence" is a defining feature of classical Judaism, and why this "fence" is essential to the survival of the Jewish People.
I am not using the most common definition of siyag laTorah. Rather, the "fence" to the Torah means the teaching of the reasons for the law (as the term "siyag laTorah" is used in Mekhilta deRabbi Yishmael and elsewhere), which includes, but goes beyond, the concept of טעמי המצות ta`amei ha-mitzvot. The notion is very simple: If we understand the reason for a law or custom, what purpose it serves and how it came about, if we understand why we are supposed to do something, we are much more likely to do it, and to do it appropriately in varying circumstances.
Take the story making the rounds recently.
Two hunters are out in the woods when one of them collapses. He doesn’t seem to be breathing and his eyes are glazed. The other guy whips out his cellphone and calls 911. He gasps: "My friend is dead! What should I do?" The operator says: "Calm down, I can help. First, let’s make sure he’s dead." There is a silence, then a shot is heard. Back on the phone, the guy says: "OK, now what?"
Even if you follow all the directions geschribben in the Shulhan Arukh strictly, letter by letter, you are not performing the mitzvot as our sages intended unless you understand what you are doing and why you are doing it.
Our sages have taught that in order to perform a mitzva optimally, in most cases, one must do so conscientiously, that is, with kavana, with the intent of fulfilling the mitzva. If I light candles on Friday because there was a power outage, or because I am planning a romantic evening with Miriam, it is not the same as if I light the very same candles to sanctify the Shabbat. Intent does matter.
It is also a fundamental principle that obedience to the Almighty is an underlying reason for performing all of the mitzvot. And there are mitzvot (huqim) for which there is no apparent logical reason, such as the prohibition of shatnez or the prohibition against eating certain animals. We may not always know what the purpose is of a specific law. This, though, is not the same as understanding the reason why a particular mitva exists as it is, which is inherently through the crucible of our ancestors’ and our own experience and intellect.
What I am talking about goes beyond the simple notion of obedience. Sometimes it is not sufficient to simply know that something is a mitzva or a custom; it is necessary to understand why it is a mitzva or a custom.
An illustration: You would think there is a mitzva to eat chicken on Friday night, judging from the practice of many observant families. But actually, there is no mitzva to eat chicken on Shabbat. Rather, it is a mitzva to have "special foods" on Shabbat to make this holy day more enjoyable. For people in many lands in some eras, eating meat was considered a luxury. If a family could afford to eat a chicken once a week, it would be on Shabbat, and it was a big deal. Or as the Good Book says, "if a poor man eats a chicken, either the man is sick, or the chicken is sick." If they could not afford a chicken, they ate a shtekele fish.
But today chicken is cheap, meat is mundane. Unless you really like chicken, to fulfill the mitzva of making a Shabbat meal special in our day, you might have to eat Kosher Chinese.
To take a historical, but only slightly less trivial, example, we note that at the beginning of the twentieth century, the Conservative rabbinate was condemned for the radical innovation of presenting sermons in English, instead of Yiddish. The forces of religious reaction argued that their fathers, their fathers’ fathers, and their fathers’ fathers’ fathers taught Torah in Yiddish, and so we must as well. But the radical rabbis of the Conservative world believed that teaching Torah was not simply a ritual act, but rather was intended to convey information or possibly even inspire the listeners, and to do that, they had to speak in a language their listeners could understand.
There is a Biblical commandment called יבּום yibum or "Levirite marriage" whereby the brother or male next-of-kin of a married man who dies childless must marry his widow. The purpose of this rule is insure that the deceased’s property rights, some of which may be entwined with the widow, will remain within his tribe, and to insure that the widow has the support she needs. But over the years, the tribal territories were lost, women gained independent property rights, and polygamy was banned. There was really no compelling reason to uphold the practice of yibum. Even more, it turned out to be a very problematic practice, as you might imagine. In response to changing circumstances, our sages for all intents and purposes have banned the practice of Levirite marriage. That is, it is now essentially forbidden to uphold this Biblical commandment — and this, because our sages understood the reasons for the law.
A little closer to home, we note the presence of trees on our bima — well, actually plastic trees. There have been places and times when such items were forbidden in sanctuaries, because some societies worship trees as fetishes or icons. But we do not live in a society of tree-worshipers, and I do not believe that anyone would interpret the presence of a tree (or plastic tree) on the bima as anything more than a decoration. Now if these were pine trees decorated with green and red balls and strung with lights, it might be a different story. But these little guys are no threat to five thousand years of Jewish civilization.
Or take fasting on Yom Kippur. Let’s try multiple choice: Is the purpose of fasting on Yom Kippur (A) to create an atmosphere of solemnity, self-control, and spirituality to facilitate soul-searching and repentance; or (B) to weed out the weak and sickly among us. If you know the purpose of the fast, you are more likely to achieve its aims.
Many of you saw the recent story in the Connecticut Jewish Ledger about women and tefillin (in which our members Sarah Serkin and Miriam Benson were quoted). The ban on women wearing tefillin observed in some communities stems from the ruling of a medieval German rabbi. He observed that tefillin require a guf naqi — a clean body — and since generally women do not keep themselves clean, they should not wear tefillin. Note that he said "clean," not "pure," as it is well established that people in a state of ritually impurity (tum’a) must still wear tefillin.
I don’t know about medieval German Jewish women. Maybe some of the were really grubby. But generally in our day, common wisdom has it that women tend to be more fastidious about bodily cleanliness than men. Anecdotal evidence: The New York Times reported recently (23 September 2003, John O’Neil, "Hygiene: The Filthy Truth About the Hands”) that "in airport bathrooms … In five American cities, only 70 percent of men and 80 percent of women washed their hands." If it is demonstrable that women are at least as clean as men, then the ruling of that medieval German rabbi has no bearing on our community, and, as it turns out, there is no compelling reason for women not to wear tefillin, and there is abundant permission for them to do so from our sages from the Mishna, the Talmud, the Rishonim and the later major law codes.
I could go on and on — maybe I already have — citing examples of how understanding the reasons for our laws and customs is essential to their optimal application in our day. Beyond that, when we understand the reason for a mitzva, we might better understand the consequences of that mitzva, and we might be more motivated to perform it. You can say, "don’t touch that!" to a child, or "don’t touch that or you’ll burn your hand and it will hurt!"; I would suggest the second choice, which includes the reason, an understanding of the consequences, is more likely to be followed; it is more likely to produce "buy-in." Our sages called it a siyag LaTorah, a fence around the Torah, which protects the core values and objectives. It protects the Torah from becoming a meaningless and potentially dangerous book of irrational rules and rituals. And this siyag LaTorah is an essential and defining feature of classical Judaism.
The system of halakha — Jewish Law — incorporates the dialectic of tradition and change. Or said another way, change is part of tradition. I have cited many examples of this, and we could find hundreds if not thousands of examples. I stress that this is the norm, not the exception.
Creating a siyag LaTorah, then, sometimes requires changes in our practice. Change can be difficult for us sometimes. But it is part of our lives and our tradition.
In front of this building is a beautiful tree that blossoms in the Spring. I thank the people who planted it; it is so beautiful. Thirty years ago when it was planted, it was just a little sapling. Over the years it grew and grew. It is still the same tree that it was last year, and the year before. It is growing and changing, but it’s still the same tree.
That is why we say, "The Torah is a Tree of Life to those who grasp it" (Proverbs). It is a living tree, a giving tree, a growing tree, a tree of life and vitality and dynamism and change with deep roots that hold the tree firmly planted in the earth, sustaining the organism with pure waters.
An underlying purpose of the laws of the Torah is so that "you may live by them" (Lev. 18). The Torah is given to us in large part to help improve our lives, to advance human civilization, which is to do God’s work in this world. And so the broad picture is that our laws serve this core purpose.
For a society based on such a system to work, there are a number of requirements. One is that the law must be accessible to everyone, that the system and the logic behind it be available to everyone. This seems unremarkable to us as Jews, but keep in mind that this is not the case with some other major world religions or governments. It is the mark of the undemocratic government to conceal, obfuscate and mislead the public — and I don’t mean this as a swipe against any current or recent administration in Washington. The notion that the law and public policy and its basis must be accessible to all is a radically democratic ideal.
This points to one reason we read Torah publicly every week. In light of what I have said, it might seem strange that we read an ancient Hebrew text publicly, in its entirety, to a congregation comprising few who understand Biblical Hebrew. We read Torah publicly to make the point that this document and the laws and ideas it express belong to everyone; that rich and poor, king and pauper have equal claim to the law and its protection. This is in contrast to the notions of "divine right of kinds" or "executive privilege" to be above and beyond the law. This is the People’s Torah.
For a society based on an informed public, there must be some commitment to obedience of the law. Unfortunately, some in our area reason, erroneously, that "the purpose of stopping at a red light is to avoid getting hit by another vehicle or getting a ticket; and that if there is no other vehicle or police officer nearby, I don’t have to stop." There is a big danger of using our understanding of ta`amei ha-mitzvot, the reasons for laws, as a rationalization for disobedience. Fortunately, our sages noticed that, generally speaking, the more the public learns of our laws, the more deeply we are committed to observing them. In contrast, mere social practices that make no sense can often just as well be jettisoned — what our sages sometimes called "minhagei shtut, stupid customs."
Another requirement of a society based on this openness is that each person must be devoted to learning the laws of the Torah and their legal interpretations. This is why Talmud, and not Scripture, is the focus of adult study in the Seminaries and Yeshivot. This is why Talmud Torah, the mitzva of studying, is "keneged kulam, fundamental to all other observance" (Talmud B. Shabbat 127a). This is in part why our sages say that study is a form of worship equivalent to, or superior to, prayer. If we are to truly serve God, we have to understand what God wants of us.
Not everything has to be "rational," of course. Beauty, love, awe, and mystery are also part of our system. Much of our ritual is not rational taken in isolation but is part of a matrix of observances that poetically express and reinforce certain ideals and values. But the significant role of non-rational practices in our tradition should not be an excuse for obscurantism, superstition, tyranny or anachronism.
Today I have described siyag laTorah, creating a defence for the Torah through understanding the reasons for our laws and customs, as a defining feature of classical Judaism. I have suggested that without it, our heritage would become irrelevant or destructive. And I have indicated that an understand of the laws of our Torah sometimes requires us to change our practice, given changing circumstances.
Over the ages, many societies have built "fences," "Great Walls" and "security fences" in an attempt to protect themselves, often to little avail. Let us support this fence as an attempt to create a link of truth and reason to keep us together and protect our Torah values and laws.
Tomorrow, I intend to talk about a closely related core idea in Judaism: Free Discourse and the Search for Truth. We will see how this is a central feature of classical Judaism as well, and then suggest how these ideals might find expression in our Jewish and civil societies.
"The attraction of Judaism," the conversion candidate said, "is that you’re always asking questions, always discussion and debating." It is the ma nishtana of the Passover seder, the emphasis on questioning — and answering — that makes the Jewish world go ’round.
Classic Judaism insists on free discourse and open-mindedness, and the respect for the intellectual and religious integrity of each person, within broad limits, as essential to the search for truth.
Some religions or philosophies claim to have the truth. In contrast, ours is a religious philosophy that seeks truth. Not all modern expressions of Judaism share this outlook, but this outlook is a mainstream core idea in classical Judaism and in Judaism as we live it today. This is one of the reasons that I believe that the philosophy of Conservative Judaism is the most authentic expression of traditional Judaism; and it is in any case a reason that I believe that the philosophy of Conservative Judaism must be taught to insure the future of the Jewish People.
This morning I would like to reflect on why I believe open discussion, as part of our search for truth, is, and should continue to be, a defining characteristic of Judaism. At the outside, to be clear, I am not claiming that historically Judaism has in all times and places upheld the "right of free speech" and valued open inquiry. I am simply observing that the core philosophical outlook and values that support the notion of free speech and open inquiry are deeply imbedded in Jewish religious culture, and that we rightly draw from this well of thought and wisdom in implementing Judaism in our day.
The very structure of the Mishna, the Talmud, and even the law codes — the central rabbinic texts — embody this openness, this search for truth. While we must admit that sometimes the sages are sarcastic toward those whose opinions they don’t share, and indeed have been known to call the opinions of others "stupid" or "nonsensical," they have by-and-large upheld the right of their colleagues to express such opinions. The principle is that you can say or teach as you believe, as long as you follow the law as defined by the majority of the sages.
In the United States, the Supreme Court records dissenting or concurring opinions. This practice can be traced all the back to the earliest recordings of halakha, Jewish law.
The Mishna, the second-century compendium of law, itself records divergent opinions on law in many hundreds of cases. In masekhet Eduyot (1:5), it explains the purpose of recording opinions that did not become law.
I quote from the Mishna:
"Why do we record the opinion of an individual along with the majority, inasmuch as the law follows the majority? In case a court agrees with the opinion of the individual and relies on it…."
Some sages (e.g. Raavad) take this to mean that a later, higher court can rely on the viewpoint of the minority opinion in making its judgment. That is, a later court can use a previously rejected minority opinion as a source of authority for applying that previously rejected position in a present case.
But there is another viewpoint, expressed in the following paragraph of the Mishna (1:6):
Rabbi Yehuda said, "If so [i.e., if the law follows the majority viewpoint], why do we record the rejected opinion of the minority along with the majority? In case someone says, ‘Thus I have been taught! [that is, I have been taught according to the minority viewpoint]’ we can answer him, ‘You learned the opinion of so-and-so, [i.e., a minority opinion that was rejected].’"
That is, according to Rabbi Yehuda, the minority opinion is mentioned so that future generations will specifically know that it was in fact considered and rejected, and thus rejected for all time.
Not surprisingly, the Mishna records two conflicting opinions as to why the Mishna records conflicting opinions. What could be more Jewish? But we uphold the mainstream view, not shared by everyone, that the rejected opinion is cited because someday times may change and later courts may need to rely on it to decide a case.
Of course the same thing happens in American law when the Supreme Court, or another court, overturns a previous ruling. Just like in the Mishna. So we see, you don’t have to be Jewish to be Jewish, but it helps.
And I might add, sometimes American judges are a little harsh on their colleagues, just like in the Talmud. In one of the four dissenting opinions to Bush vs. Gore, the case that decided the 2000 presidential election, for example — not that I’m still sore about that one — the Justice (Ginsburg) does not end her compelling analysis with the usual "I respectfully dissent," but simply says "I dissent." Subtle, but biting.
As one American scholar, Zecharia Chafee of Harvard Law School, said in regard to the dissent in an earlier episode in American jurisprudence, "The majority opinions determined the cases, but these dissenting opinions will determine the minds of the future." (Morris B. Abram, "In Pursuit of Justice," 13 May 1996.)
The inclusion of the dissenting opinions in the record was considered an essential element of any Jewish legal text in the first millenium of the common era. But some eight hundred years ago, Moses Maimonides, the Rambam, broke the mold with the publication of his law code Mishne Torah. In his concise Hebrew, the Rambam systematized much of the known body of practical Jewish law into a law code that could serve as a quick reference guide to any student or judge. But unlike previous law books, this book did not include minority opinions, did not quote passages from the Talmud as its source of authority, did not present compelling argument. It simply said, "this is the law." And for that reason, the book was burned by Rambam’s contemporaries as a threat to the Jewish way of law and life. So we see, you don’t have to be a Bible-thumping fundamentalist to hold a book-burning, but it helps.
Subsequently, Rambam’s monumental work was rehabilitated and became widely accepted when other scholars appended the cross-references to the Talmud and footnotes to other opinions. I should admit that some historians might insist that it was probably one of Rambam’s other books that was actually burned, and maybe they only burned selected sections; but we can safely say that Rambam’s book got bad reviews in the weekly Pumpadita Review of Rabbinic Works, for the reasons I described.
The value placed on open discourse and respect for minority opinions is very much a manifestation of the classical (pardon the expression) liberal belief that truth is inherently more powerful than falsehood, and that truth can best be arrived at through an open process.
This belief in the power of truth is not readily verifiable through scientific analysis, and our own experience sometimes leads us to question it. But nevertheless, we hold it as an article of faith. The alternative would mean civilization is destined to dissolution.
In America today, as in every generation, the ideal of "freedom of expression" is under attack. Recently the New York Times reported that one senator said that President Bush’s Iraq policy was a "fraud" and on the Senate floor described "the policy as a ‘colossal failure’ unworthy of what he said was an $87 billion blank check…. [A Representative] accused [the senator] of uttering ‘hate speech’ and said he needed to apologize to the country for accusing Mr. Bush of what amounted to treason. Senate leaders said the criticism threatened the military’s mission."
(New York Times 24 September 2003)
Well, it’s a free country, and they can say that, just as long as they don’t actually charge anyone with treason for saying it. But anyone who is critical of the President’s policy is at risk of being called a traitor. If criticism of a war policy actually endangers the lives of American soldiers, then we really do have a problem. Sure, it is a touchy issue, but there has to be room for open debate and free expression. Presidents have to stop treating their own re-election as an ultimate matter of national security.
Years ago when I visited Malawi, a tiny benevolent dictatorship in Africa, I discovered at the airport what it means to not have free speech. In going through customs, they did not search me for weapons. They did not search me for drugs. They looked for printed material. They confiscated a week-old Zimbabwean newspaper. The university library could not stock the book The Green Revolution — a book about agriculture — because of the word "revolution" in its title. They say that when President Kennedy was assassinated, their nation newspaper reported that he had "died," but did not say how — they did not want anyone to get any ideas.
In our Jewish world, there was a debate in the Rabbinical Assembly, the global organization of 1,500 Conservative Rabbis, over whether it was permitted to discuss the question of ordaining openly gay or Lesbian rabbinical students. It was argued that merely discussing the topic was tantamount to suggesting that those proposing a more liberal approach might possibly be right, and for that reason, there could be no discussion. To his credit, Rabbi Joel Roth, usually thought of as one of the more conservative Conservative scholars, argued in favor of debating the question, perhaps as forcefully as he will argue against the proposed liberalization itself on its merits.
Sure, there are limits to free speech. But quietly saying "gay rights!" in a room full of rabbis should not be deemed a threat to public order or incitement to riot.
Within this sanctuary, a couple of times in the past year or two our member Dr. Paula Hyman has been courageous enough to speak out in favor of a liberal position on this issue, only to discover that it does not seem to be controversial in our congregation. Or maybe no one was listening. I thought it might be time for us to have the discussion, but maybe the time was five years ago and we’re past that; maybe it is time to do something.
And speaking of touchy issues, our Congregation has so far managed to hold a number of substantive forums on issues of Israel and the conflict with Palestinian Arabs without us breaking out into fisticuffs. It was nice to hear comments from members that they were proud to be part of a Congregation that can do this, and I share the sentiment. But of course, all this means is that we are able to discuss a controversial issue in a relatively civil manner, something that does not seem too much to ask. I don’t think we should knock ourselves out patting ourselves on the back.
There are limits to our discourse. Our rabbis included only the opinions of the other sages in the Mishna, not the opinions of the Saducees or Karaites who rejected the rabbinic approach altogether. The Rabbinical Assembly might debate some point of law or policy, but not whether Jesus or the Lubavitcher Rebbe was the moshiach. We need to set our own agenda, and not be distracted by destructive detours. As the Good Book says, "Do not answer a fool in accord with his folly, Else you will become like him" (Proverbs 26:4).
On the question of Israel, one can advocate violence but not genocide, accommodation but not suicide, and be part of our discussion at BEKI. We may not all agree on what are the acceptable limits to our discourse, but we might have to agree on the right and value of our own national survival, even if it is in Uganda instead of Judea.
When those door-to-door missionaries come to your house, ask them if their religion allows them to question its fundamental teachings. Ask them if they are allowed to disagree with the teachings of their religious leaders. If they aren’t allowed to question their own religious teachings, why should you entertain them questioning yours? When you hear what they have to say, you may have a deeper appreciation of your own heritage.
Open discussion is an important part of our religious culture. We are allowed to question. The alternatives to open discussion and truth-seeking are fundamentalism, obscurantism, totalitarianism, mechanical obedience to dogma. Certainty and overconfidence about anything produces bad results; open discussion is better as long as people are constructive and not whining.
As a Conservative rabbi, and a partisan, I am deeply aware of the divisions within our People and the dangers we face. I am humbled, though, in the realization that our next generations may either embrace or reject our religious movements, ideologies, political philosophies; and I can only hope that they will be able to sort it out and create a bright future for all humanity. It is my prayer that the work of this community will be of lasting value and will help create that better future.