A Fixed Torah, A Flexible Torah: Grasping the One Without Letting Go of the Other

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by R. Gidon Rothstein

Coming up on ten years ago, I published We’re Missing the Point (a book championed by my host here, R. Gil Student; he was the reason OU Press published it for me). I was trying to make two points, each true despite being at seeming tension with each other.

On the one hand, I intended to name aspects of Judaism I believed I could point to elements within Orthodox Judaism everyone in the system would recognize as more central than others, more essential to service of Gd, and therefore to be emphasized in presentations of Orthodoxy, in families, schools, shuls, or wherever. (I say intended because had I succeeded, the book would have produced a groundswell of change, and it did not; clearly I did not prove my point in a way others found inescapable.)

In the second part of the book, I showed other areas of an Orthodox Jewish life where Gd requires us to make choices about how we shape our religious lives, choices not determined by traditional sources, left to some extent to each individual Jew. I argued that families, schools, shuls, or wherever should be working to ready us to make good such choices.

Perhaps as evidence of my naivete, I was surprised to find people who read the book focused on one half or other. Some were happy or had their interest piqued by the first half, the idea there are central and centrally important aspects of an Orthodox life, and seemed to dismiss the second half as a curiosity. Others did the reverse.

It’s not easy to think dialectically, to see both of two ideas that do not sit comfortably with each other. For that example, some people like to know exactly what they should be doing, prefer to have their religion totally laid out for them, others like the freedom to shape their world. When the Torah in fact tells us each is appropriate in the right situation, I think almost all of us struggle with the half not in our usual wheelhouse.

But as Kohelet 7;18 says, in many situations, it is good to grasp one side while also not letting go of the other.

A New Dialectic To Explore

I’m ready to begin to take on another of those tensions. It is well-known that Orthodox Jews believe the Torah given at Sinai will never be changed or abrogated. Rambam says it in the introduction to Helek, where he first laid out his Principles of Faith, has anyone who denies the idea among those who forfeit their share in the World to Come in Laws of Repentance, and it is overall a generally well-accepted principle. (Some thinkers did argue for the theoretical possibility otherwise, such as R. Yosef Albo, but I believe they are a sufficiently small minority we can leave a discussion of them for those who operate more academically.)

Looking a little more closely at the issue, though, we see the claim is most clearly true about the text of the Torah; we received that Torah once, and nothing that comes later will remove or negate those words. Matters complicate when we look at how tradition understood the meaning of those words and how they apply in our lives, where they obligate us to act or refrain from acting.  There, as I intend to show, there is much more room for change than we might realize.

It leads me down the road I hope to travel for the next while, seeking aspects of Torah observance that are indeed permanent, fixed, would be part of any Judaism of any era, regardless of what the Torah scholars of a particular era think. As we pick out that kernel within many of the mitzvot, we will also see how much room there is for change, where any generation of Torah scholars might add to or dispense with what previous generations had understood to be halachah, obligatory law.

To be clear: I do not mean rebels to the system will just decide they want to keep a different Judaism, like the Sadducees, Karaites, Sabbateans, etc. I mean the recognized Torah scholars of a generation, particularly when we—Gd willing soon—have a restored Sanhedrin have more room to alter the system than I have heard people pause to consider.

For this time and next, I want to show how that could happen, the mechanisms of change, and then start looking for those parts of mitzvot where such change is in fact precluded. I will show why it’s not so easy to do, in two parts.

One more caveat, sorry: I do not intend in anything I write here to advocate for or against change. What I hope to contribute is making the parameters a little clearer, by showing parts of Torah that seem most immune to change (although, by implication, I will be showing places where rules we think of as clearly the way Gd wants something to be more susceptible to a Sanhedrin deciding something else was true).

An Eternal Torah?

Niddah 61b records R. Yosef’s assertion mitzvot will be nullified le-atid lavo, in the World to Come (a time when the dead will have been resurrected). Theoretically, that would mean there will be a time the Torah as a whole will no longer be obligatory. Since the time after tehiyyat ha-metim is seen as a whole new world in multiple ways, I am not going to engage that topic here because it addresses a very different reality from our own.

First, it is not clear we accept his idea. Even among those who do accept it, some ratify it while re-reading batel, nullified or inoperable, to mean something other than what it most simply does. Then, we would have to consider whether and when we think le-atid lavo will be. For Rambam, for example, the resurrection will occur some significant time after Mashiach comes, after the Sanhedrin is restored, and Temple rebuilt.

If so, there is a lot of future left where we can discuss much less sweeping and yet more practically realizable changes. For a first example, Gd left room for Jewish leaders to decide some parts of Torah did not have to be observed in certain times, place, or situation, as a matter of hora’at sha’ah.

“Momentary” Rulings

The most famous (and paradigmatic) instance was Eliyahu on Mount Carmel, a story told in I Melachim 18. To prove the prophets of Ba’al have no substance behind their claims, he challenges them to a contest, to see who can elicit fire from heaven, as a sign of Gd (or their gods, as if that were a possibility) accepting an offering. (When he won, the Jews said the words we say at the end of every Yom Kippur, Hashem hu ha-Elokim, Gd is the only Gd.)

Problem is, a Mishnah in Zevahim 112b tells us from the time the Beit Ha-Mikdash was built, Jewish sacrifice anywhere else in the world became prohibited. How could Eliyahu have done it? The answer is hora’at sha’ah, a temporary abrogation of Jewish law. In Eliyahu’s case, it might have been a function of prophecy, but Tosafot in Yevamot (and others) assume Eliyahu did not have a specific prophecy to do so, was qualified to make such decisions himself. Most crucially, it is seen as true of batei din as well, particularly the Sanhedrin.

The line between hora’at sha’ah and our next category (yesh koah) is somewhat vague. If we maintain them as completely different, it is only as a matter of hora’at sha’ah that rabbis can ask or command Jews to take action that is against halachah. For a famous example, Gittin 60a tells us the idea of writing down aspects of the Oral Law (for us, all of Talmudic literature and its associated Midrashim, like the Sifra and Sifrei) was because people could no longer memorize it, and it was putting into practice et la’asot la-Shem, heferu ToratechaTehillim 119;126’s comment that sometimes the service of Gd necessitates violating the Torah.

[For all we call it a hora’at sha’ah, or an et la’asot, a time to do for Gd, note that this one has lasted since the time of the Gemara. How long an hora’at sha’ah can last is an open question, as far as I know, but not crucial to what I am hoping for us to study.]

What we know is that in certain circumstances, prophets or national courts can allow breaking the Torah in the name of a greater overall good. Importantly, one exception is idolatry; if a prophet or court tells Jews to worship any power other than Gd, even temporarily, regardless of how good a reason they give, we are not to listen (and if the prophet claims Gd told him/her this is what we should do, s/he has made clear the falsity of his/her status, and is put to death).

Note already that any hora’at sha’ah or et la’asot does not pretend that the action is what Gd commanded, it is a response to a special need, a violation of the system seen as helping the system. But it leaves Torah intact in its theory.

Suspending Parts of Torah Law

Other times, courts will be oker et ha-Torah, literally uproot the Torah [I believe some sources see this as the same as the previous categoriesand some see them as separate. I am, as I said, omitting these details because they are not my main concern]. The power is more clearly theirs when they tell Jews shev ve’al ta’asehnot to do something. This is referred to as yesh koah be-yad Hacham la’akor davar min ha-Torah, the Sages have the legal power to uproot aspects of Torah law with a call to refrain from action.

We all know, for example, that we do not blow shofar when Rosh HaShanah is Shabbat, because of a rabbinic decree Jews have observed for centuries. There is discussion and debate about whether the courts can do this with a call to action, be-kum ve-aseh, as well. (That’s not quite right; there are clearly instances rabbinic law tells us to act in ways that violate the Torah, for various reasons. The debate is about whether those are really shev ve-al ta’aseh or kum ve-aseh, but again I’m not wading into those waters.)

There are also limits to this. For example, Taz Orah Hayyim 588;5 noted Hazal cannot be oker le-gamrei, completely uproot a Biblical obligation. For Rosh HaShanah, for example, shofar blowing takes place in all years, ruling out only the day of Shabbat (even in those years, we have a second day on which we blow). Taz also claimed, more controversially, Hazal did not have the power to uproot or suspend what the Torah explicitly permitted.

Crucially to my concerns, in all these cases, the prophet or rabbis must make clear what they are doing, say explicitly, “the Torah says this, I/we are saying act contrary to it for now, or for an extended time.” Next time, I’m going to look at a passage in Rambam (well-accepted) where he lays out ways Hazal can legitimately change our understanding of the Torah itself, to see where it leaves us in our search for the fixed and the flexible.

What I hope I have shown this time is that even if the Torah were fixed in stone, means the exact same in all generations, each generation’s observance might have twists, based on its court’s (or prophet’s) decisions about where the times call for exceptions, brief or long.

Next time, changes the system itself allows for qualified Torah scholars.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America. He also serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

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