The world of Halacha (Jewish Law) is extraordinary. Anyone who has experienced up close the intricacy and intimacy of the Halachic process - and even one who has observed the process only from a distance - cannot but be dazzled by the creativity, compassion, and emotion inherent in halachic debate and development.
It is no wonder that for centuries Halacha has stood at the center of Jewish experience, influencing the important matters of the day, and in return, being influenced by them. Halacha's subject matter is at times saturated with enriched uranium, mixed with explosive and flammable materials, and replete with tensions such as love, jealousy, and hate. In short, halacha is a whole world of knowledge and wisdom fashioned by its surroundings and nurtured into vigorous trees of life.
Today, however, the world of Halachic psak (decision making) has sunk into deep crisis. There are those who compare contemporary halacha to a patient in a coma; others would say that halacha is in critical condition. This, because creative, audacious poskim have become a rarity; because halachic decisors find it easier to be strict, not boldly permissive, even when absolutely necessary; and because poskim, by and large, prefer to deal with exoteric, ritual minutiae and not the great, difficult issues of the day.
There is no dearth, G-d forbid, of Halachic decisions or published books on this matter. Recently, a 412 page (!) scholarly Halachic book was published which deals with the fascinating and critical question of what blessing to make over Bamba.** The day is probably not far off that we will see thick tomes that deal with the blessings over Bisli*** and Cheetos, and then the rabbinic literature will tackle all the rest of the snacks of the world, and all of Israel will bless, and be blessed by, the ‘Beneficiary Blessing.'
Let me make myself clear: I do not mean to demean the halachic process nor the importance of hilchot brachot. Without a doubt, the laws of blessings - all aspects, sections and subsections -- are important. Hilchot berachot is an integral part of our mesora, our heritage, and the halachic corpus. Even the matter of the blessing over Bamba can be interesting from a theoretical point of view, and may involve many fascinating issues.
Nevertheless, there seems to be a disproportionate amount of energy focused on topics like these, or similar obscure matters, where the halachic import is of secondary importance (safek berachot miderrabanan). It should also be noted that this matter has been discussed at length in many Halachic publications. In contrast, scarce and insufficient attention has been paid in the halachic literature to consequential and severe Torah prohibitions that deal with life and death issues such as ‘permitting a woman to the world,' laws pertaining to mamzerim (bastards), physical danger to peoples lives, and the honor and respect of people.
The gap that has been created, between the world of Halacha and the real-life challenges posed to the world of Halacha - cries out to the heavens for redress. It is intolerable. Examples of real-life issues that must be addressed include the issues of Agunot (a deserted wife) and women whose husbands has refused to grant them a get (a Halachic bill of divorce), organ transplants, the conversion of thousands of non-Jewish immigrants to Israel, and in many other areas that Halachic authorities have yet to sufficiently deal with.
We are still waiting, and hoping for, a learned individual to publish a Halachic composition that will deal in a serious manner with situations such as forcing a physically abusive husband, who is endangering the life of his wife, to provide her with a get ; or to create the proper construct which will provide practical solutions - not just more problems - for thousands of Agunot and women who have been refused a get, as their ‘biological clocks' continue to tick and they suffer daily, without anyone coming to their rescue.
The Halachic world sees the publication of hundreds of books on all sorts of topics and issues. Amongst these publications, you will find books that are hundreds of pages long, with thousands of subsections and references. However, often the actual worth and importance of these books is very little, and their relevance to the future of Am Yisrael is minor. Their "weight" in importance is often inversely proportional to the number of their pages and their weight in pounds.
What is the cause of this constant decline in the quality of Jewish law making? As is often the case, there is no clear-cut answer but rather a number of causes and reasons, some of which are ‘internal' - within the Halachic world and within the subjects that it deals with, while others are ‘external' - from the world outside of Halacha; some of these reasons are content-driven while others are purely technical. All of these causes contribute to the creation of this problem, and together they ensure its growth.
Amongst the ‘external' causes of this phenomenon is the ever-increasing ease of printing and distributing publications. In the past, a learned Halachic author would have to overcome many hurdles to publish a book. Two and three hundred years ago, the high expense and technical difficulty of publishing would ensure that many potential authors would be filtered through a bureaucratic process. Every scribble would not necessarily see the light of day or enter the pantheon of the Jewish literary world. Today we are witness to a very different situation in which any dabbler in the world of Halacha who possesses a personal computer, printer and a few dollars, can print and distribute his manuscript on the most arcane and unimportant issues.
Social phenomena (which we do not have the space to expand upon here) that raise the profile of every writer, and lead to an increasingly frantic pace of publishing of books which are not at all in demand, except by the publishers, bestow the title of ‘author' and lead to great fame for these individuals.
A completely unrelated reason is the world-wide decline in great leaders. This trend has found its way into all aspects of our lives. The state of Halachic literature very much mirrors the dearth of Halachic leadership in our time.
Unfortunately, most of the great halachic decisors of recent times have passed away - without real replacements. Rabbi Moshe Feinstein in the United States, Rabbi Shlomo Zalman Aeurbach, Rabbi Shlomo Goren, and Rabbi Eliezer Yehuda Waldenberg in Israel, all have passed away, leaving a huge void. (The last of these great halachic decisors is Rabbi Ovadia Yosef, may he live long and prosper). These wise men made significant contributions to the Halachic world each in their own way, style, and area of expertise. Their backgrounds were all very different, the positions they held varied greatly, their followers were extremely diverse, and they often disagreed about what the actual law should be. Nevertheless, there was a common denominators amongst these great Halachic minds: They were all knowledgeable about the various aspects of the Torah, they were full of sensitivity and compassion, and they were well aware of the realties facing ordinary people (and not only from second or third-hand sources). Most importantly, they were all original thinkers, with ‘broad shoulders,' who were willing to make courageous, difficult and daring decisions even when it was unpopular to do so.
This is not the case today. Today's so-called halachic decisors do not only have yirat shamayim (‘reverence of the heavens') but also yirat hora'ah (‘fear of deciding'), and especially a fear of appearing to be too lenient. It seems to have reached the point where it appears that whoever is most stringent receives the most respect.
Moreover, the movement in the religious world from leaders who are rabbis and rabbinic judges, to a leadership based on yeshiva heads (rashei yeshiva) has reduced the influence of those knowledgeable in Halacha and increased the stature of the ‘Torah Greats' who focus almost entirely on theoretical academic polemics in the Beit Midrash (study hall) and are almost completely cut off from the real world.
Furthermore, in past, great Halachic minds would append the Hebrew letter kuf, for katan (small), next to their names. This was not done out of some sense of false modesty, but as an honest expression of real humility.
These days, alas, it seems that we have traveled back in time to the Gaonic era. Every rabbi seems to be a Gaon (genius), with all the fame and glory that this entails, and anyone who knows a bit of Torah is automatically termed "Rabbeinu Hagadol" (‘Our Great Rabbi'), or ‘the Rabbi of All Those in Exile,' and similar grandiose, gratuitous and self-aggrandizing appellations. This cheapening of the title 'rabbi' reduces the influence of the real Torah greats and has created a situation where it is not only difficult to differentiate between azure and blue, but also between a lion and a fox, or a donkey and an ass. As one of the wise men of the past generation said: "In the past there were great rabbis with small hats. Today the hats are large and the rabbis small..."
It is important to note that there are exceptions to this general rule. There are still amongst us genuine rabbinic scholars, honest and brave, who work tirelessly to bring comfort to widows and orphans, and leave no stone unturned to find a just solution to the problems of Agunot, mamzerim, and other oppressed and downtrodden populations. Unfortunately, such rabbis are quickly disappearing, and their voices are being drowned out by the masses of machmirim (those who rule stringently). Yirat hora'ah rules the day, for fear of what others will say if one does not follow the same path as everyone else. There are few rabbis that know how to find - within the Halachic framework and according to its principles - a solution to every problem. On the other hand, there are many rabbis who seem to find a problem for every solution.
There is a story told about one of the sages in Jerusalem over fifty years ago who approached Rabbi Yehudah Leib Fishman (who eventually became Rabbi Maimon, the first Minister of Religious Affairs), the head of Mosad HaRav Kook, with a manuscript in hand. "I have written a 300 page book on ‘Numbing Livestock Before their Slaughter,' and I have left no source untouched." "Very nice," Rabbi Maimon nodded, "And what is your conclusion?" "After studying this topic thoroughly I have reached the conclusion that this act is prohibited," answered the author. "Prohibited, you say?" said Rabbi Maimon as he returned the manuscript to the excited author, "On every matter we say ‘prohibited, prohibited.' My grandmother also knew to say ‘prohibited.' For this one does not need to publish 300 pages, and I do not need to stuff another useless book into my already overflowing library...."
For those who say that "this metaphor is not relevant here!" I would retort, as our sages have said: Through this metaphor we can better understand the true meaning of the Torah. The words of Rabbi Maimon echo the age-old rabbinic adage that "the power of leniency is preferred." There is a general rule in the Torah, which was reaffirmed in the Talmud, and expanded on by Rashi: "All people - as opposed to a learned wise man who can rule leniently, can rule stringently even in seemingly lenient matters." What we are saying is that anyone, even if he is not anointed by the rabbis but only a common man, can say "prohibited, prohibited." Conversely, it takes hard work, creative solutions, and a lot of personal and Halachic bravery to find a way towards leniency. There is a reason that our sage did not speak of "leniency" but of "the power of leniency," to grant a leniency takes an inordinate amount of bravery.
Unfortunately, the idea yerit hora'ah is spreading like a wildfire through a field of dry brush. The prohibition of "lo tegoreru mipnei ish" ("do not fear any man") - one of the basic tenants of Halachic Torah - has become in many cases a meaningless rule. I have heard with my own ears many of the greatest Halachic minds of our time admitting, in closed forums, that if not for their own personal fears, they would personally advocate bold Halachic moves, which could potentially provide just solutions to pressing issues such as the problems of Agunot and women whose husbands have refused to grant them a get. It is hard to believe, but these men have stated that they are worried about their children finding a proper match (for marriage), about what will be said about them (and even more so, what will be written about them on the bulletin boards of Jerusalem and Bnei Brak), and in some extreme cases, fear of physical danger from extreme elements who believe that they have been personally appointed to protect the words of God.
Most rabbinic judges, both in Israel and in the Diaspora, seem to follow the lead of ‘Daat Torah' (‘THE Torah View'), meaning the opinion of one person, namely THE ‘Gadol Hador' (‘THE Great Mind of the Generation') or THE ‘Posek HaDor' (‘The Halachic Decisor of the Generation'). This notion is unparalleled in the history of Halacha. Under the cloak of ‘Emunat Chachamim' (‘Belief in the Rabbis') we are witnessing the dissolution of the independence and autonomy of Halachic decision-makers, an important idea in Halachic Judaism. This growing phenomenon is in danger of stifling any creative Halachic thinking and upending the whole Halachic decision-making process. Under such a system, there is no need for one to employ any discretion in their rulings, or in their explanations. It is enough to say this is what the Gadol HaDor has said, or this is the Daat Torah. It is absurd, but because of the prevalence of Daat Torah thinking, there has been a lessening of personal opinion and in the power of the actual Torah, and if there is no personal opinion - can there actually be real Torah?
A number of the Halachic decision-makers today do not judge each matter before them separately, and often do not pay enough attention to, nor respect, the people before them. The direct result of this situation is the human tragedy of large numbers of downtrodden people whose cries for a just Halachic resolution to their problems are left unanswered.
The existence of thousands of Agunot (despite the real Halachic problems that accompany this issue, which we should not belittle) is a mark of Cain on all those who work tirelessly for the world of Torah. Halacha that does not ‘holech' (move along) with life, is a Halacha which is unable to find a solution for thousands of those who have been wronged, and this casts a shadow on the idea of the Torah of Israel being ‘Torat Chayim' (Torah of Life) - a Torah that is the wellspring of life and provides solutions for the problems of people living life.
Of course, the study of this issue is not what is important, but rather deeds are. There have been a variety of solutions offered over the past few years to ease the suffering of Agunot and women who have been refused a get: forcing a get, a prenuptial agreement based on ‘mutual respect,' the use of civil suits against those who have refused to grant a get, probative marriage, the use of the tool of declaring marriages ‘unfulfilled bargains,' the annulments of nuptials, and many more. Each of these solutions have positive and negative aspects, but the application of some of these solutions to individual problems, and for some general matters, can perhaps release most of the Agunot from their chains.
It is important to note that that we are talking about Halachic solutions which have been codified in the Halachic traditions for hundreds of years, that the wise men of every generation, including some of the greatest amongst of them, have supported. The paralysis that has gripped many of the Halachic leaders of our time, and their refusal to follow in the footsteps of their predecessors, is a great tragedy. This reality has given a bad name to the Torah of Israel, which seems ineffective in dealing with these difficult situations that have desecrated the name of God.
The problems mentioned above are not created in the Beit Midrash, or in the studies of ‘Orech HaChaim' (‘The Way of Life'), ‘Yoreh De'ah' (‘Reverence of Wisdom'), the laws of the Sabbath, and the laws of Kashrut. Sometimes these problems, with increasing vigour, seem to be seeping into the Rabbinic Court System, and sullying its name amongst its ‘clients,' many of whom are not members of the religious community.
A few years ago I represented (and since I have ceased to do so) a couple who wished to divorce under the auspice of the state rabbinic court system. At the appointed time of 9:00 am, two rabbinic judges appeared (while the third joined the deliberations at 10:00 am), including one of the most respected rabbinic judges. The judges looked impressive with their long white beards, which mirrored their years of experience. All of them were steeped in Halachic learning.
Despite the fact that this particular couple had been separated for more than a year, and they had both voiced their preference to end their relationship, the judges attempted to investigate the details of their marriage, including the most intimate details. With dour, and even stern, looks on their faces the judges tried (out of a mistaken attempt to help) to convince the couple - who were shocked by the events unravelling in front of them - to become again young love-birds.
When the judges were finally convinces that in this instance the possibility of reconciliation did not exist - what should have been obvious to everyone from the start - the time arrived to draw up the get. The judges began to shift uncomfortably in their seats until one of them said: "We are sorry; we do not deal with this issue." For a moment I thought that did not hear him correctly. What other job do rabbinic judges have if not to deal with the issue of gets? "We're sorry," the judges repeated, "You have to see Rabbi Waldenberg at the High Rabbinic Court of Appeals. He will take care of this." After we left the courthouse, one of my colleagues informed me that this was a common occurrence in this court where the judges attempt to distance themselves from granting gets so as not to deal with the tricky Halachic situations of ‘bastards,' ‘forced gets,' and the ‘allowance of a married woman to the world.'
Once we approached Rabbi Waldenberg, may his name be blessed - who already at that point was in the later years of his life - it was apparent that we would be dealing with a completely different situation. He greeted the couple with a smile, and after gently expressing his sorrow at the dissolution of their marriage, he immediately began to draw up the get. Within an hour the couple had the get in their hands; after Rabbi Waldenberg had ensured that it was composed and presented according to the strictest rules of Halacha, all while all along keeping a kind look on his face. Despite the fact that Rabbi Waldenberg had already officially retired from the bench, he continued to come daily to the courthouse to solve the most difficult problems through his personal belief, and with honesty, and dignity. Even though he was well aware of the complicated issue of ‘allowing a married woman to the world,' he never thought to say "it is not my job to deal with the matters of divorce cases." The idea of sanctifying the name of God was no less important to Rabbi Waldenberg than what was said about him on the streets on Geula and Meah Shearim.
This story, perhaps, encapsulates the larger issue at stake here. A real Halachic leader needs not only to be wise, and have yirat shamayim, but also must be intelligent and clever, knowledgeable about the events of the world, have his feet firmly planted on the ground, sensitive to human suffering, and most importantly; brave and powerful.
It is apparent that Maimonides knew what he was doing when he listed, following in the steps of the sages, that amongst other qualities, judges must posses a love of the truth, love of God's creations, as well as compassion and bravery: "A court of three should posses seven qualities, and they are: wisdom, modesty, reverence, a hatred of wealth, a love of the truth, a love of God's creations, and good reputations. And how were they to love God's creations? At times when they are blessed, they should act with decent words and actions towards all of God's creations, and in general they should be brave men who work to save the exploited from being further oppressed."
How should a rabbinic judge come into such a state? In one of the Rashbatz's (Rabbi Shimon Ben Tzemach Doran, a 14th century scholar from Algeria) responsa the case was examined of a woman whose husband had made her life so unbearable that "she hated life," and learned members of her community scared her into thinking that if she would approach the rabbinic court her ketubah (marriage contract) would be nullified. After the Rashbatz ruled that the evil husband must be forced to grant a get, he rebuked those who cited ‘yirat hahora'ah' as a reason not force the husband, and he quoted a saying that should be posted above the entrance to all rabbinic academies and rabbinic courts: "If it were your daughter - would you still say this?" - meaning: If this suffering and downtrodden Aguna had been the daughter of one of the rabbinic judges, it can be assumed that they would not have rejected her unceremoniously and ruled so stringently where there was room for leniency! From this point forward, every judge should consider every petitioner that appears before him - and especially Agunot and women who have been refused a get whose cries for help are not being answered - and think of her as his own daughter, and to do all that is in his power to find a solution to her problem, even if this is to take great strength and bravery.
"Love of the truth," "love of God's creations," and a "brave heart to save the exploited from being further oppressed" - these ideas encompass the whole Torah. Conversely - they also explain and clarify the Torah. Will we know how to stand up to this challenge?