Category: Halakhah


First developed in the 1990s in an attempt to protect women from becoming agunot, halachic prenuptial agreements stipulate that the couple in a dissolving marriage must come before a predetermined court of Jewish law. If the man refuses to provide the get, he must continue to support her, typically in the range of $150 per day — an agreement enforceable in civil court.

Yet while halachic prenuptial agreements have been touted as a solution to the agunah problem, they have hardly been a panacea — because many are reluctant to sign them in the first place.

“Those who are most likely to need to use it are least likely to sign it,” said Rabbi Jeremy Stern, director of the Organization for the Resolution of Agunot, or ORA, which says it deals with more than 150 cases of agunot per year.

The problem is unique to the Orthodox world, because non-Orthodox movements have rejected or found ways around traditional rules that give husbands practically all the leverage. And, frustratingly for advocates on behalf of agunot, most Orthodox couples hail from segments of the community that aren’t interested in halachic prenups.

“The problem is in the black-hat and haredi community, where they don’t have prenups or rabbis don’t agree to enforce the idea of having a prenup,” said Stanley Goodman, director of an organization known as GET – Getting Equal Treatment.

Talia Lavin, “‘The Prenup is Not Foolproof’”, The Jewish Week (6 December 2013), 14.

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Judy Heicklen, president of the Jewish Orthodox Feminist Alliance, … says a Jewish legal solution must be found to obviate the need for enforcement in civil court.

“The prenup is not foolproof,” she said. “And on a philosophical level, we would hope that the halacha would be strong enough to find a solution within halacha and not have to rely on secular authorities to solve a human suffering issue that we should be able to solve within our own legal system.”

Talia Lavin, “‘The Prenup is Not Foolproof’”, The Jewish Week (6 December 2013), 17.

God proclaims, “I will utterly annihilate Amalek from under heaven.” We meet Amalek again later in the Torah, where God commands the Jewish people to kill the entire tribe of Amalek: “When the Lord your God grants you safety from your enemies around you… completely destroy the memory of Amalek from under heaven” [Deut. 25:19]. And the imperative to annihilate Amalek refers not only to the tribe’s male combatants, but also to innocent Amalekite women and children: “Attack Amalek and destroy all that belongs to him. Spare no one, but kill men and women, infants and sucklings, oxen and sheep, camels and assess alike!” [I Samuel 15:3].

This biblical imperative became codified Jewish law, as did the commandment to exterminate all members of the seven Canaanite nations: “You shall not let a soul remain alive” [Deut. 20:16]. Not relegated to ancient history, these commandments apply in principle forever — even today.

The call to kill all members of the Amalekite and Canaanite nations violates the norms of a moral, just war, which dictate that innocent civilians cannot be legitimate targets. And as a people, we know tragic horror of genocide that seeks to exterminate all people of a group or the same genetic background.

Could the Jewish people ever become “a holy people” when obeying the commandments to commit genocide against the Amalekites and Canaanites?

This troubles us moderns, but it also vexed the Talmudic and medieval rabbinic authorities. None of them could live with the Torah commanding Jews to act immorally, and they showed remarkable creativity in shaping the correct way for us to understand these imperatives.

These rabbis believed that the entire Torah text was Divine, but they did not hesitate to engage in bold interpretation. Because they had keen moral sensitivities, the rabbis of the Talmud solved the problem of Jews killing innocent Amalekites or Canaanites by declaring that the ancient Assyrian ruler Sennacherib “co-mingled the nations that he vanquished” [Yadayim 4:4/Berachot 28a]. If so, it is impossible to identify anyone positively as a Canaanite or Amalekite. This effectively rendered the problematic commandments inoperative, telling Jews not to act according to their plain meaning.

Rabbi Dr. Eugene Korn, “The Angst Over Annihilating Amalek”, The Jewish Week (10 January 2014), 45.

When talking about the halakhic process – for people who want to talk about individuation or about finding your own way – there is room, but it’s not a matter of איש הישר בעיניו יעשה. That doesn’t end well for the Jewish people. People did what is right in their own eyes – that’s how the book of Judges ends, after the whole narrative of the פלגש בגבעה – the concubine who was raped to death and her dismembered corpse is mailed across the country en route to a civil war. That’s not a matter of just people doing what they want, it’s איש הישר בעיניו יעשה – you have people who thought they were doing what was the right thing. People do a lot of evil thinking they’re doing the right thing. And it’s a huge problem when dealing with subjective morality.

Rabbi Josh Yuter, “Halakhic Process 26 – R. David Hartman and Religious Individualism”, Yutopia Podcast #121 (3 November 2013).

This evolution of customs may seem surprising to a society which is not at all accustomed to changes and evolution. In our everyday life, we have the impression that Jewish traditions are immutable. Even in issues where an adaptation is desired by a significant part of the community, change seems impossible and scholarly rabbinical initiatives remain theoretical, without practical consequence.

Nevertheless given the breadth of Jewish history we must acknowledge that changes occur periodically without us really knowing exactly when and how.

J. Jean Ajdler, “The Order of Lighting the Hanukkah Candles: The Evolution of a Custom and the Influence of the Publication of the Shulhan Arukh”, Hakirah 7 (Winter 2009), 225.

There are rabbis – even Orthodox rabbis, on the left – who will tout and focus on this sense of individualism, as part of their halakhah. Or, to put it another way, they may apply Rabbi Avi Weiss’ method, but focus more on the individualism of themselves and put much of themselves into the halakhic process, by which they will impose on other people. It’s a reason why you have to be somewhat careful when you have reliance on religious values on moral intuition of pretty much anyone for this very reason, because אין לדבר סוף.

Rabbi Josh Yuter, “Halakhic Process 26 – R. David Hartman and Religious Individualism”, Yutopia Podcast #121 (3 November 2013).

A lot of people selectively cite sources. People who try to come up with grand theories of Judaism: the theories tend to be based on one or two sources to the exclusion of everything that contradicts it. We saw some examples of Rabbi Avi Weiss doing that, too. In particular, saying “We follow the tradition of Rav Kook” except for the parts you don’t like. Here [with Rabbi David Hartman], his primary foundation paradigm is Abraham’s argument with God. But ignoring everything else. It’s a blind spot that people have. And I think everyone has that blind spot. The question is “What do you do with it when confronted with things that conflict?” Hartman already admitted that when you come across a text that conflicts with your moral sensibility, you reinterpret that text to fit your moral sensibility, as opposed to using conflicting texts to, maybe, refine a better, more nuanced halakhic sensitivity. Grand theories are where, I think, people get in trouble. When you say “This is the core thing of Judaism”, but what about all these other things in the Torah that don’t fit? “Ah, we’ll reinterpret it to make it fit”, but then you’re not really following God as much as following either yourself or what you think God really meant. Both of which are incredibly presumptuous.

Rabbi Josh Yuter, “Halakhic Process 26 – R. David Hartman and Religious Individualism”, Yutopia Podcast #121 (3 November 2013).

For Maimonides, he acknowledged that the authority that he had to write the Mishneh Torah wasn’t from himself, it was really from the Talmud; in that, according to the language of the Rambam, you follow מי שהדעת נוטה – whomever convinces you the best.

By what does it mean the best? Having the best read of the Talmudic law; such that, if you have a better read of the Gemara than the Rambam, then you can disagree with the Rambam. Or, to put it another way, you can follow the halakhic system and method of Rambam to disagree with Rambam on a specific issue; meaning Rambam can write something is Jewish law – you can go back to the Gemara and say “Excuse me, Mr. Rambam, that’s not what the Gemara says.” or “We have a better text.” And, that way, even if people say, “Oh, aren’t you arguing with the Rambam?”, the answer is yes and no: you’re following the method, which is a lot more important than the details of the person, the individual.

So, Maimonides derived whatever authority he had only based on the Talmud, itself.

Rabbi Josh Yuter, “Halakhic Process 27 – Summary and Conclusions”, Yutopia Podcast #123 (10 November 2013).

The lighting of Hanukkah candles is undoubtedly one of the most widespread and certainly the most recognized custom among the Jewish people.

Nevertheless most Jews are unaware that the ritual of the lighting and, more precisely, the order in which Hanukkah candles are lit, underwent an evolution over many centuries and that the order which has been adopted by the overwhelming majority of Jewish people was initially a marginal rite originating in France.

The emergence of the French rite was the result of an extraordinary combination of circumstances, including: the importance and prominence of R. Joseph Colon; the adoption of his ruling by R. Joseph Caro in Beit Yoseph and then in Shulhan Arukh; and the adoption of this rite by the Ari and his followers. The successful spread of Hassidism also contributed to the general acceptance of this rite in Eastern Europe, where other traditional rites still prevailed.

Today an overwhelming majority of Jews follow the French rite, while concurrently, the French Siddur, once considered as important as the German Siddur of Rhineland, died out completely and can only be found in rare books and manuscripts.

J. Jean Ajdler, “The Order of Lighting the Hanukkah Candles: The Evolution of a Custom and the Influence of the Publication of the Shulhan Arukh”, Hakirah 7 (Winter 2009), 205.

Of course, the ultimate pesak is not bound to the peshat of any one Amora, even when we decide according to his view. A sugya can combine the views of one Amora with the principles of another in order to apply the halakhah in question to various situations. It is up to the poskei ha-dor to determine the relevant halakhah for their time. That is why halakhah ke-batra’ei, the halakhah follows the later opinion (within the limits of Masorah, of course). But if Talmud Torah is pursued with the proper derekh, or, more precisely, with one or more of the proper derakhim, then, as Rav Hutner זצוק”ל pointed out, the result is “a positive creation of new Torah values.”

Yaakov Elman, “Rava as Mara de-Atra in Mahoza”, Hakirah 11 (Spring 2011), 64-65.