March 17, 2010

With the dust settling (for the moment) over the issue of ordaining women, a question of a much more sweeping and urgent nature needs to be squarely addressed. The right-wing opponents of the RCA’s measured statement are demanding with one voice that the ordination of women expressly be labeled as “a breach of our mesorah (received tradition)”. Their claim is that it ultimately doesn’t matter whether bestowing the title “rabbi” upon a woman violates Halacha or not. Even if it does not, it is an act of near heresy, as it implicitly denies the validity of our received tradition which we believe originated at Sinai – a tradition which bans women from the rabbinate, or so their argument goes. This is the stance taken by Agudah, among others. Their argument is designed to be a debate-stopper. Such has always been the purpose of crying “heresy”.

But is their understanding of the term “mesorah” accurate? Let us for now leave the specific issue of women’s ordination aside (though to argue that we have a tradition barring women from the modern rabbinate is comparable to the argument, made nearly a century ago, that we have a tradition barring women from voting). Let’s focus only on the larger question: Do we believe that to change any long-standing Jewish practice is perforce to deny the validity – or even the existence of – a legally binding “mesorah”?
Or might the opposite be true? That to stubbornly insist on never changing long-standing practices is actually itself a departure from our received tradition? 

There is a constellation of points in Jewish Law and practice which when taken together form a striking pattern. Accepted, Biblically-sanctioned legal practices are sometimes understood as falling short of our religious ideals, and are then subject to formal or de facto change. One point in the pattern is the Talmud’s decision to label the “Law of the Captive Beauty” (D’varim 21) as being a concession to the dark side of human nature, the yetzer hara. Yes, the Torah permits the Israelite soldier to seize a beautiful woman whom he finds among the captives of war. But to rabbinic thinking, the fact that this is permissible doesn’t imply that it is a behavior that meets Judaism’s religious/ethical ideal. Our Sages explicitly label seizing a woman, even under these circumstances, as being a bad thing. It is something that a decent religious person does not do. Long-sanctioned legal tradition though it may be, the unmistakable conclusion is that as we progress in our ethical self-expectations, the “Law of the Captive beauty” is a practice that should not be perpetuated (and in fact would never be tolerated in a Jewish army today)
Take, as another example the fate, in rabbinic hands, of the Torah’s instruction that we take Canaanites as our slaves, and that we not to ever emancipate them. Indeed, Tanach attests to the established tradition of Israelites owning non-Israelite slaves, and presumably bequeathing them to their children. But to the rabbinic mind, this Biblical law was a concession to economic realities, not a reflection of our religious ideal. (See Sifra Behar, parsha 6). In light of the severe Biblical restrictions concerning owning and working an Israelite slave, the earliest generation of Jews simply needed an alternative. (In the words of the Sifra, “Since You prohibited all of these, what labor shall we use?!”)  But the Talmud attests in several places, that our sages had grown uncomfortable with this long-standing practice of permanent servitude. In fact by the time of the Hadrianic persecution, the practice of emancipating foreign slaves was so common among Jews that when the Romans charged R. Elazar ben Parta with the crime of observing Jewish Law, one of the charges leveled against him was “why did you emancipate your slave?” . This practice, Rashi comments, was widely regarded as “dat yehudit”, standard Jewish practice (Gemara and Rashi A.Z. 17a}

The traditions of warfare are yet another point in the pattern. The Midrash (Tanchuma 96:3, in the context of D’varim 20) portrays Moshe himself as rejecting the Biblical mode of warfare in which civilians are not always given the opportunity to escape. Moshe’s midrashic refusal to comply with God’s command to carry out just such a campaign, anticipates the halachik change to this effect. (See for example, Rambam’s Mishna Torah, Laws of Kings 6:1)

What these examples share is the fact that the stated law, the established practice, fell short of a religious/moral ideal that the Torah itself elsewhere expressed. The taking of women against their will is listed a sin of the generation of the flood. Our founding story revolves around the moral evil of forcing people to labor as slaves with no hope of freedom. Our progenitor Abraham’s greatest moment was the one when he insisted that one cannot kill the innocent along with the wicked.  And in each of the above cases, the legal tradition was ultimately modified.

These are but a few points in the pattern. Over time, our tradition has also effected changes in the areas of divorce, the taking of concubines, and the implementation of capital punishment, all with an eye toward the ideals the Torah elsewhere articulates. The underlying legal theory is the recognition that our people’s historical journey from the real to the ideal is a long one. As well as the recognition that the travelers with which we began our journey –  those who left Egypt – possessed but the most tenuous of grasps on what it was that God was envisioning. Rambam said it best. “Many things in our Law are due [to the fact] that a sudden transition from one opposite to another is impossible. And man, according to his nature, is not capable of abandoning suddenly all to which he was accustomed. (Guide, 3:32) As paraphrased by Rabbi Jonathan Sacks, “the Torah is a series of provisional enactments, tending toward the realization of an ideal society”.
It is unmistakable that our received tradition instructs us to continuously reflect upon our long-standing practices.  For the fact that a given practice is long-standing can point either to the conclusion that it is worthy and good, or to the conclusion that it is overdue for a reassessment, as it represents a premature plateauing in our constant ascent toward God’s ideal. To change is not to breach the mesorah. If anything, the opposite is true.

We have a received tradition regarding the means and the methods of change as well. The process is characterized by cautiousness and consensus-building, care and community. But we need to be wary of those who brandish the term “mesorah” as a weapon against any change that doesn’t suit their political tastes. They are abusing the term, and leading us backwards.