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Diversity Within Halacha: Rejecting the Need to Jettison the Entire Halachic System by Rabbi Lopatin

by Rabbi Asher Lopatin

February 13, 2012 | 8:34 pm

Rabbi Shaul Magid’s “Open Letter to Rabbi Dov Linzer on Modesty and Jewish Law” tries to limit Rabbi Linzer’s attempt to defend all of genuine Jewish law and tradition from being the basis for the radicalism that we are witnessing in Beit Shemesh, Meah She’arim and other places.  “What anyone claims as the position of the Talmud is false by definition,” he writes.  Clearly Rabbi Linzer can only stake out “a Talmudic position and not the Talmudic opinion.”  I agree with his point that no one, and no one source,  can speak for all of Judaism.

Nevertheless, after making his point, Rabbi Magid then attempts to do exactly what he criticizes Rabbi Dov Linzer of doing: painting all of Jewish law and tradition with a single monochrome brush.  Whereas Rabbi Magid accuses Rabbi Linzer of defending all of Jewish law - and showing how progressive it is - by a single quote from on passage of the Talmud, Magid tries to show how the Jewish legal system as a whole, as we know it today, “serve[s] as the foundation of the problem” and that the “key authoritative texts of the tradition” have given rise to misogyny and bias against women.  If Rabbi Magid were following his own arguments consistently - and I support his argument - he would have to admit that Jewish law and Jewish sources are diverse and not monolithic.  Just as some authorities could bring proof to refute Rabbi Linzer’s declaration that “The Talmud says (to men): It’s your problem, Sir [if the women are not dressed in the way you would want them to dress]; not theirs.”, likewise, Rabbi Linzer and those Modern Orthodox who support his view can bring real sources through the generations that would support his arguments. 

Rabbi Magid tries to show that there are no nuances or disagreements in traditional sources regarding mehitza, prohibition on hearing a woman’s voice or even women saying Kaddish.  While there certainly are sources which claim the purpose of a mechitza (separation in a synagogue between men and women) is for the men not see the women, Maimonides, in his key halachic work, the Yad Hachazaka, specifically rejects the idea of seeing, and writes that the purpose is merely to separate, not to hide the women.  There are traditional Jewish sources which challenge any prohibitions on a woman’s voice, except if it sexually intended, and Chavot Yair, four centuries ago, dismissed any halachic prohibition on women saying Kaddish.  Modern Orthodox women cover their hair today because they are following what the Talmud calls “Jewish tradition” through the millennia, not because men might be attracted to women’s hair.  That was established a century ago by the Lithuanian author of the Aruch HaShulchan.  Even chareidi women who wear gorgeous, natural hair wigs, are not doing so to reduce sexual attraction.

Rabbi Magid can claim that these sources are minority sources, or contrived, but the history of halacha is filled with minority opinions that come to dominate.  Just consider Maimonides trying to claim that the scores of anthropomorphic descriptions of God in the Torah and the Talmud are merely metaphors!  Do we really believe this?  Well, Orthodoxy does, whether it was contrived to fit Judaism into Greek thought or not.  When the Tosafists of the 12th century saw women shaking lulav or saying blessings over hearing the shofar, they found internal halachic justification for such behavior, without the need to reject the halachic system. 

Modern Orthodoxy might not be the only way, and the Ultra-Orthodox view of women and modesty may indeed be able to find sources in the halachic tradition.  However, Rabbi Linzer, and those of us in the Modern Orthodox world who support his enlightened view of relations between men and women, do not need to jettison the traditional halachic system to find a better, and, in our own mind, a more Torah true attitude.  From Maimonides to the Tosefists to the Chavot Yair till today, rabbis will struggle to understand what the halacha and the Talmud is really saying.  They will end up with diverse understandings based on who they are, where they are living, and which values they are sensitized to.  But this diversity is not false or disingenuous : it is the way the halachic system was designed to work to allow us to meet the challenges of every generation.  Rabbi Linzer’s take on modesty and men’s responsibility is a Torah-true outcome of that process, which can find real halachic sources from the Talmud till today.

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