Rabbinic Ordination and Halakhic Authority

by R. Yaakov Ariel

This book review appears in Hebrew on R. Ya’akov Ariel’s website, dated 23 Shevat, 5771. It is presented here in translation with permission, although the translation has not been reviewed. -ed.

The title “Rabbi,” to our regret, has been eroded in our generation. Any young yeshiva student who has passed a test on the laws of Kashrut, Shabbat and a few other subjects holds the title “rabbi.” There are some who haven’t passed standardized-state tests, but who are recognized as “rabbis” anyway.  (And indeed, we should praise the testing system of the Chief Rabbinate which has raised the pride of Torah amongst the Jewish people). And the general public which is not familiar with the world of Torah – some of them may give the title “rabbi” to an activist who wears a kippah and who once studied in a yeshiva, even though he never took any tests at all. The time for reckoning on this topic has come. Not everyone who wants to take the title may do so. In the outside world a person cannot use a title unless he is fit to hold that title based on accepted criteria. It is impossible that there should be anarchy regarding the title “rabbi.” This painful subject must be dealt with extensively at another opportunity.

In this essay we want to discuss a characteristic that cannot be determined by tests but which is an absolute, essential requirement for anyone wishing to be called “rabbi” and to be a part of the transmission of the Tradition from Matan Torah until our day and to the future generations who will come after us.

We will discuss this characteristic by looking closely at the book Life on the Fringes: A Feminist Journey Toward Traditional Rabbinic Ordination by Chaviva Ner David. This book is by a woman who sees herself as the first candidate for rabbinic ordination in Israel. The question, can a woman be a decisor of Jewish Law (poseket), a Rabbah or Rabbanit is outside the scope of this article. Here we will deal with a different, fundamental problem which is relevant also to men who may seek rabbinic ordination, who, though they may be learned and even authors of books, are lacking in an essential quality.

This book, written in English (the author currently lives and works in Israel), testifies to the origin and background of the author: from America. And as is well known, many of the trends which start in America make their way shortly to Israel. In her book she reveals many private details (too many for my taste) about her personal life, her doubts, her experiences, her struggles and ambitions and we can see from them her militant feminist and Torah-alien attitudes.

In her book she wants to convince us that there is no difference between men and women. She wants to show that a woman can also look at the halakhic sources and decide the halakhah according to her understanding and therefore to receive rabbinic ordination. She convinced me of the opposite – that she is not worthy of ordination. However, not due to her being a woman, but due to her character. Even if she were a man who thought he is worthy of ordination just so he can uproot the authority of halakhah, he would not be worthy of ordination.

The Obligation of Women in Tzitzit

The title of the book alludes to the mitzvah of Tzitzit (fringes). The author sees in the fulfillment of this mitzvah an opening for the equality of the genders. According to Jewish Law women are exempt from this commandment. However, a woman can volunteer to perform a time-bound positive commandment, and according to the Rema, to even make a blessing over that mitzvah. Nevertheless, tzitzit and tefillin are exceptions. Tzitzit because of yuhara (arrogance) and tefillin because of the need to maintain a clean body.

The author does not agree with this ruling. She believes that if many women wear tzitzit it will no longer be an issue of arrogance and if women accept upon themselves, in an obligatory fashion, to wear tefillin, they will also accept upon themselves the responsibility to maintain a clean body. However, currently this is not the general norm, so the problem remains even according to her assumptions. All the more so, because the fundamental halakhah that women are exempt from these commandments will never change. The author does not consider this. According to her, and here is the main point of her whole approach, the essential assumption of halakhah that women are exempt from positive time-bound commandments needs to change. A woman is no longer tied to her home as she was in the past. She controls her own time and therefore the well-known explanation of the Avudraham that women are exempt from positive time-bound commandments has no validity in our days.

Regarding this we raise the following issues:

1. As is well-known, we do not decide halakhah based on homiletical reasons offered to explain that halakhah.
    
2. The assumption that women today are different from women of the past is partially correct but it flows from a cultural worldview external to the Torah. True, women today are free from many of the domestic obligations of the past, but even today, any woman taking care of children is not free to go off to perform a time-bound commandment.
    
3. The assumption that taking care of children is of lower spiritual significance that putting on tefillin, for example, flows from a cultural worldview that sees personal advancement of the individual as more important and more spiritual than family responsibility. This is fundamental: the modern woman who sees herself as equal to a man in every sphere has difficultly digesting the idea that her unique roles (pregnancy, nursing, maternal warmth–which will forever be exclusive to women and for which no masculine equivalent will ever be found) are of equal and perhaps even greater value than the roles of a man.
    
4. This modern, individualistic vision does not recognize that the family as a whole fulfills the mitzvot, some through the man, some through the woman and some through both. The demand here is individualistic–that each person must fulfill all the commandments. Against the background of this individualistic approach any difference in the treatment of a man and woman is seen as discrimination.

Equality of the Genders

The trait which characterizes all these people who clamor for women’s ordination is that they give primary consideration to attitudes that are alien to Torah and which stand in opposition to the worldview of Judaism. And so it is with this book. The impression one gets from the words of this author is that the drive to wear tzitzit and put on tefillin is the cultural ambition to be equal to men. For this reason she believes that every woman must cover her head (not just married women!); because it’s impossible that men must cover their heads, but not women. To make this argument, she takes an unusual “halakhic” approach that married women today do not need to cover their hair. For the same reason, a woman must learn Torah, according to her, not because women today must nourish their spiritual characters, rather essentially in order to be similar to men in all things. And so too, to get aliyot, to serve as prayer-leaders, rabbis etc. Equality is the point of departure for the entire book. The experience of equality is what brought her back to Judaism after a crisis in her youth.

From this point of departure she allows herself to critique Chazal and the halakhic decisors (poskim) who do not think like her. According to her, the halakhah must “change” in accord with her approach instead of her demanding from herself to match up her attitudes with the stance of halakhah. She makes no distinction between the principles of halakhah and its applications. As long as she does not internalize this fundamental, she will not be able to study Torah sincerely and certainly not to decide matters of Jewish Law. The applications change according to the change of circumstances, but not the principles. These shall remain for eternity.

There’s no doubt that the status of women has changed. Indeed, things that were accepted in the past are no longer always applicable in our days. A very illustrative example is the ruling of the Chafetz Chaim to obligate women today to learn Torah. The Chafetz Chaim did not change the principle of the halakhah, God forbid. The fundamental exemption of women from learning Torah is still in force until this very day. The heavy responsibility to grow in Torah to the level of the Gra, for instance, is not placed upon a woman. This mitzvah remains voluntary for women for eternity. Nevertheless, we have to recognize that the cultural circumstances have changed and created a new situation in which the counsel of the poskim that women should not learn Torah (out of concern that she will trivialize the words of the Torah, as the Rambam wrote) is no longer applicable. On the contrary, in order to keep women from triviality they are obligated today to learn Torah.  To my regret this book is likely to only reinforce those who think that the situation has not changed to allow women to learn Torah.

The God of Equality

From in between the lines emerges a theological argument that since God is the God of righteousness and justice, He is ostensibly also the God of equality. He is interested, so to speak, in equality according to the concept as it is in style widely throughout the secular Western culture. Therefore He is interested, it seems, that halakhah should be changed in accordance with this worldview of equality. Her assumption is that equality means the absolute identicalness of the genders. And this identicalness that is between the genders corresponds to justice. Therefore we can assume that His will, may He be blessed, is to equate women to men in all areas of life, including the fulfillment of the commandments. It is unnecessary to point out that this sort of theology cannot change, even one iota, the principles of the halakhah. Anyone who doesn’t understand this cannot be called “Rabbi.”

Let us proceed now with the assumption that her argument is rooted in true sincerity. However, from someone who wishes to be a “Rabbanit” a more serious and deeper approach is required to subjects of religion. According to the worldview of Judaism, the justice of equality is not necessarily that there should be identicalness. Sometimes, on the contrary, correct equality requires affirmative action that is not identicalness. It makes possible the equality of opportunity but not the equality of identicalness. Divine justice created a colorful world that has in it men and women, Jews and non-Jews, kohanim and levi’im, healthy and disabled, all with different and multifaceted capabilities. This justice required us to make possible the equality of opportunity for everyone created in the image of God. However, it is also incumbent upon us to recognize the difference between individuals.

In the realm of gender, there are biological and mental differences that are not given to change. Justice requires that in order to give a woman equal opportunity for her talents and natural inclinations that we should exempt her from social obligations (for instance, the responsibility of supporting a family, drafting her into the army etc.) and also a portion of the commandments. On each individual, different missions are placed in accord with their missions and talents. The division in roles brings to the world a greater justice than identical roles.

Elsewhere I wrote at length to prove that the Torah does not come to crush the justified feeling of human autonomy. Indeed anytime injustice is caused to a woman we should stand up against it and alleviate her distress. However, is the placing of different roles in accord with different genders an objective injustice? Or is it an imagined injustice based on misguided premises? Here we need to ask the fundamental question: are we to establish equality based on the measurements in fashion and subjugate the halakhah to our concepts? Or are we to raise ourselves up to the level of the halakhah?

We understand the distress of the author who doesn’t understand why women are prevented from testifying in court. Indeed we don’t know why women are unfit for giving testimony. Different explanations have been given, for instance: a lack of trustworthiness or an excessive emotionality–which are not satisfying to our intelligence. It is possible that it was to withhold judicial status required for giving testimony. Family members are unfit to give testimony against their relatives, even though there is no rational explanation. Even Moshe and Aharon were invalid as witnesses.

However, here is the true test of a believer in the Torah of Hashem: does he accept the authority of the Torah or does he subjugate the Torah to his human understanding and curse and rage against his King and God? Is someone who doesn’t understand the human logic behind the mitzvah of the red heifer allowed to enter the Temple without being purified by it first?

Experience or Halakhah

An additional point is the invalid approach to mitzvah fulfillment: as if it does not first and foremost express the complete acceptance of God’s authority, but rather sees in the mitzvot only a tool to satisfy himself with spiritual experiences.

The author describes with excitement how her daily prayers were elevated as a result of wearing tallit and tefillin. And from then on they were recited with greater intent. I don’t doubt that it is true. Tefillin can sanctify a person and elevate them to a higher level. However, we can ask, on Yom Kippur when our prayers are even more elevated, should we wear tefillin? Are the prayers on the night of Rosh Hashanah not said with the greatest intensity although we do not wear a tallit? Can it not happen that women, without tallit and tefillin, could pray with greater intent than men? Who is greater than Chana, whose prayer serves as an example for all our prayers until this day? Did she need a tallit and tefillin so that her prayer would be accepted?

The point of departure is: is the fulfillment of the commandments a halakhic or experiential matter? R. Yehudah HaLevi, the great poet, placed Judaism on the foundation of the experiential, yet, continually emphasized that a mitzvah has value only when it is fulfilled according to the Halakhah. Someone who is not commanded but volunteers is not equivalent to one who performs a mitzvah as an obligation. Women can volunteer and thereby connect to a mitzvah (especially according to the Rema, that they may make the blessing), however this is not a necessary condition. The connection of women to Torah can come through other avenues that are not less of value than mitzvot, about which the poskim do not agree that women should perform them.

The chapter that describes the experience of immersing in a mikvah is very emotional and touches the heart. However, we must point out that immersion is Halakhah just like every other mitzvah and not just an experience. According to Halakhah, a mikvah purifies even without any real intent. And the same applies to other mitzvot. Therefore we express doubts regarding her critique of immersing in a Jerusalem mikvah versus a Washington mikvah. By her own testimony, in the Washington mikvah the immersion was with serenity as she introspected and then came out the mikvah with a feeling of true renewal and elevated purity. In holy Jerusalem, on the other hand, the immersion was rushed with no personal preparation and without any spiritual elevation.

I have to point out that her description of immersion in Jerusalem is a perversion of the reality, perhaps due to her preconceived notions. Immersion in Israel is also done serenely and women are given the opportunity to prepare themselves spiritually and experientially for this important moment. The pace of only fifteen minutes for immersion, including preparations, that the author describes is certainly invalid halakhically and I know of no mikvah that operates like that. Perhaps there was a problem in the mikvah that day. If so, she should have considered the circumstances and matched her personal preparations to the objective conditions. A soldier who is rushed to have an emergency, abridged Seder merits an elevated spiritual experience no less than a civilian who sits calmly until the time for morning Keriat Shema; perhaps even more so. Experience has to conform to halakhah, not halakhah to experience.

Selective Halakhah

And additional expression of not accepting the authority of the Oral Torah is the taking of a selective approach to fulfilling halakhah. Even in this book, the author does not hide her position. Halakhot that find favor in her eyes merit a glorious fulfillment above what is required. On the other hand, halakhot that are not her personal taste, merit critique and even not to be fulfilled. “Bal tosif” from this side and “bal tigra” from the other. As a woman it is natural that she will have greater interest in those halakhot that concern women. She writes at length on the topic of the separation during the time of a woman’s impurity. She encourages these rules only because they intensify the the experience of a renewed reunion. Therefore those separations that do not answer this assumption are not to be fulfilled.

There is particular anger against the separations imposed at the time of birth. She asks: is there concern for prohibited cohabitation at this time? And she concludes that the practical halakhah (!) is that there is not justification for separation at this time. However, she cites immanent halakhic considerations like if the women needs personal support specifically at this great and difficult time; a factor that the poskim are concerned with to a degree. However, her basic arguments rely on the requirement for the husband to be involved in the birthing process. Equality requires that the husband, who cannot experience birth physically, at least participate in it with his wife by being present and assisting. The impression created by reading this book is that the author finds it difficult to accept the idea that men and women are biologically different and therefore different in their roles and natures. She subjugates the halakhah to her worldview.

To her mind, the voice of a woman is not “ervah” today (how have things changed in our day in this regard?). She “permits” immersing in a mikvah during the day, relying on her assumption that the there has been a change in the family structure and a daughter does not know when her mother immerses. (In contradiction to her point she tells a story of taking her daughter with her to the mikvah!). So too she “permits,” fundamentally, immersion without first counting seven clean days and only prefers to keep this halakhah because the origin of this halakhah is that Jewish women accepted this upon themselves.  Since this halakhah gained authority through women, we should encourage it; not because it’s the halakhah in Shulchan Arukh, but out of solidarity with women. She also critiques the “Halakhah le-Moshe mi-Sinai” regarding the eleven days between periods because we now know that a woman’s period is closer to a month.

Halakhah and Family

As already stated, we see an approach of people who wish to subjugate the halakhah to changing human fashion. This invalid approach is expressed in other areas, like with regard to homosexuality. Since the current trend in society is to regard this abomination as a natural phenomenon, the halakhah must change; this is the approach of this book too. The author presents many “leniencies” to give legitimacy to same-sex partnerships and ignores that a same-sex union cannot build a normal family. It cannot lead to pregnancy and cannot raise children like the rest of the world. Her point of departure is the widespread current, modern social trend that families are not necessarily built on continuity and responsibility for the next generation, rather only on the enjoyment and happiness of the two people who want to live in partnership. This worldview of individualism lays down a foundation upon which the ideas of her book are based.

From the basis of that point of departure, individualism and equality,  she criticizes the entire structure of the Jewish family according to the Torah. According to the Torah’s approach, the household stands at the center, not the individual people who make it up. The man is obligated to set up a family and maintain it. The woman is not obligated to have children or support the family financially. Her role is greater and more difficult: to give birth and to raise the children as long as they need her. Therefore, the man initiates marriage, not the woman.

This approach is not acceptable to the author, who follows her philosophy of individualism. According to her the family is a partnership between two parties. To critique the halakhah she presents it in a perverted manner. She relies on one place in the Mishnah where marriage is described as an “acquisition” in order to argue that according to halakhah a woman is the property of her husband like a slave or an animal or land or chattle (this definition exists in Islam, as is well known, not to compare). Since slavery has vanished from the world, so too this form of acquisition needs to change. She suggests different, alternative forms of a marriage ceremony, by which a man and women together orchestrate a kind of partnership contract between them.

It does not need to be pointed out that there is a perversion here–whether intentional or unintentional–of the concept of halakhic marriage. Anyone who knows halakah well knows that a woman is not the property of her husband. Only one form of creating the husband-wife bond is superficially similar to an acquisition, so to speak. The entire Talmud and commentaries are filled with this and we don’t need to specify them here, for there are many. For someone aspiring to be a “Rabbanit,” a greater responsibility is required in understanding the halakhic sources and using them. But even more, it is required to have a responsibility to be obedient to the halakhah. Human fashions cannot cause a change in the basic approach of the Torah to the structure of the family.

The author deals broadly with the tragic topic of get refusal. As in known, there are circumstances that are often the opposite, of men unable to give a get, but in such cases there is an answer, even if it is unusual and rare. Utilizing her approach to marriage as a contract of partners, she derives the “solution” to the problem of agunot. She suggests changing marriage in accord with the Laws of Moses and Israel to a new institution: concubinage and similar ideas, which are not acceptable in the halakhic framework. She admits that this solution removes the sanctity of the institution of marriage, but the problems of unusual, specific cases are greater in her eyes than the sanctity and permanence of the Jewish family of the entire nation for all generations. There is no doubt that a solution is needed to help in these tragic cases, and the sages of Israel always look for solutions and implement them. However, uprooting the entire halakhic framework and structure of the Jewish family, which is also the most logical and advanced structure, would be a heavy price to pay.

A Posek “Throwing Off the Yoke of Halakhah”

In one place the author sharply presents the internal contradiction between the pretension of being a “posek”  and her relationship to halakhah. She tells that at one feminist conference she met a young woman interested in becoming a poseket. However, she was at a good age for having children and was afraid that childbearing would interfere with her continual advancement in learning. Her answer to the woman was: “Your body is your own. You don’t have to bring rabbis into your personal issues.”

The essential aspiration to be a posek raises questions.Where do we see in the world of the yeshiva a young man who is interested in becoming a posek? Deciding Jewish Law is an outgrowth of continual learning to the point that a person feels that he has accomplished enough to issue rulings in halakhah. In general, students of Torah try to refrain from deciding halakhic matters. The ambition to be a “poseket” testifies that her Torah learning is for ulterior motives.

Moreover, how is it possible that someone who aspires to become a posek does not accept upon herself the authority of halakhah? But this author goes further. She sees in the involvement of poskim in personal matters a subjugation to some external force, which in her view is like idolatry!, to use her language. (And she can’t resist bringing up the assassination of Yitzchak Rabin. Reliance on the decisions of rabbis caused, according to her, the abominable murder. Allow us to point out that, on the contrary, the opposite is true. Had the murderer asked a rabbi there would have been no murder. As is well known, he stated that he did not see any need to rely on the decision of a rabbi in this area).

We have to clarify until what point a person must seek out the Torah view on each area that arises in life and when he should rely on his own consideration. As is known, Chassidim are more excessive in taking counsel from their Admorim in contrast to other communities and their rabbis, even if they also allow themselves a degree of personal decision making. However, if even with regard to purely halakhic questions, a person does not find a need to ask a rabbi, then what is the need for female posekot? According to her the halakhah does not represent the word of God; it just explains the sources. Only a prophet expresses the word of God.

With all due respect, a prophet is not ordained to express the will of God in halakhic matters, only in matters of prophecy and temporary rulings. “A prophet may not innovate a new law after the giving of the Torah.” A prophet is not authorized to decide halakhah for all generations. “The Torah is not in heaven.” Specifically in the area of halakhah the Torah forbids the prophet from expressing the word of God. The word of God in the area of halakhah is given to the understanding of the sages of the Torah who explain the Torah using their human reasoning, following the general principles which the halakhah established. This is the true will of God in the area of halakhah. That is the how Hashem gave Moshe the Torah–on the condition that the sages of Israel should explain it. And He accepted the decisions of Chazal, as is demonstrated in the story of “The oven of Achnai” in which the halakhah was decided against the heavenly voice and the Holy One, blessed is He accepted it, saying, “My children have beat me. My children have beat me.” The interpretation of the authentic sages of Israel is the word of God on the condition that they see themselves as a direct continuation of the Torah from Sinai, without change or exchange, and that their fear of Heaven precedes their wisdom.

Authority and Ordination

The author quotes someone who said to her: why do you need ordination? In any case, if someone relies on you, you don’t need ordination and if someone does not, ordination won’t help. However, she is still interested in ordination anyway, because of the principle of equality and because she thinks that as a “rabbanit” it will be easier for her to break through the framework of halakhah, like a Trojan Horse. She sees in ordination, essentially, power. And this is a mistake.

The truth is that men also don’t need ordination to decide halakhah. If he knows the halakhah, he doesn’t need ordination and if he doesn’t, it will not help him. I don’t know if all the great posekim had formal ordination: the Rambam, the Vilna Gaon, and in recent generations the Chafetz Chaim, the Chazon Ish and R. Shlomo Zalman Auerbach. They didn’t serve in the rabbinate and yet their decisions were accepted by the Jewish people. Their authority did not flow from ordination. The need for ordination is only where a scholar is not well known and needs proof that one can rely on his knowledge.

If a man tries to uproot the authority of halakhah, his ordination does not help him. Ordination comes to express the direct continuation of the halakhah from Sinai until the end of time. Every student is ordained by his mentor who is in turn ordained by his mentor until Joshua and Moses. Only someone who joins in this continuity can take his place in building the edifice of halakhah. There is nothing fundamental that prevents a woman from being part of this continuity of the transmission of the Oral Torah. The most obvious example is the wife of the Sema who ruled on many halakhot that were eventually accepted by the great posekim. Her being a woman did not take away from nor give greater weight to her decision, just her logical arguments which were tied to the transmission and continuity of the halakhah. Ordination does not create authority. Only recognition of authority gives the ordination standing.

As we said originally, this problem is not specific to women. A man with such an approach to halakhah is also not worthy of authority because the whole approach of trying to uproot the authority of halakhah and not guarding its continuity. A necessary condition of anyone being granted ordination is to continue in faithfulness and in transmission of the Tradition which began from Moses who ordained his student Joshua. “Moses received the Torah from Sinai and transmitted it to Joshua, and Joshua to the Elders, and the Elders to the Prophets, and the Prophets transmitted it to the Men of the Great Assembly.” And from there it continued to be transmitted for generations until our days. Only this worldview gives an ordained rabbi his authority to render halakhic decision to the Jewish people.