I read with interest Dr./Ms.(?) Batya Kahana-Dror's "Violence is Not Grounds for Divorce" in Conversations 5 Autumn 2009/5770. However, while I agree with her overall sentiments and thesis, there is one particular theme, one that ran like a golden thread through her article, which particular discomforted me, viz. her consistent devaluing of halakhic Jewish values in favor of Western democratic values.
Actually, the theme with which I so vehemently disagree, she actually only gives expression to it twice, but as it appeared at the very beginning at again at the very end of the article, I feel it safe to conclude that the theme underlies her entire thesis. If I am in error, however, or if I have misunderstood her in any other way, I hereby ask the author's forgiveness in advance.
On page 91, she says, "...theocracy versus Western liberalism..." and again on the same page, "...the handling of issues of women's status by the rabbinical courts has sorely tested Jewish values against the liberal, democratic values of the State." And on page 104, "This [modern] stream of Orthodoxy...has to embrace halakha and its modern-day development against a backdrop of liberal Western values." (I have significantly abridged these quotations, and it may be assumed that anything I did not quote, I agreed with, and finding no fault with it, I saw no reason to quote it. It may bear mentioning that Kahana-Dror's thesis was that the Israeli Rabbinate has been abusing its power in order to impose its conservative and fundamentalist, and often misogynist, vision on Israeli society, especially in matters of marriage and divorce; I agree completely with her thesis. The difference between Kahana-Dror and myself, and the subject of this letter to the editor, is one of epistemology.)
As an aside, it is highly questionable whether the State of Israel is really very concerned with Western democratic values in the first place. Lecturer Raissa Epstein, in her appendix to Moshe Feiglin's Where There are No Men / Bimqom She'ein Adam shows that the political establishment of Israel relies on Marxist socialist concepts even as it abuses the terminology of Western democratic political theory to enrobe that Marxism. (Now queue a reference to Orwell's Newspeak in Nineteen-Eighty-Four.) One has not beholden tyranny until he is faced (as is documented by Feiglin, op. cit.) with a prosecuting attorney who successfully convinces an Israeli Supreme Court justice that civil non-violent disobedience is only legitimate in "unsavory regimes" like America, Britain, France, and China (with its Tiananmen Square), and not in a modern Western democratic nation like Israel. Similarly, according to MK Ophir Pines-Paz (Labor), "The rabbis' call [on soldiers] to refuse [IDF] military orders undermines Israeli democracy. This is dangerous incitement that is liable to break up the IDF. I call on [Yesha] settlement leaders to distance themselves from these rabbis' declaration. And I call on the attorney-general to open investigations against the rabbis for allegations of incitement." ("Rabbis: Soldiers must refuse IDF orders", Matthew Wagner, Jerusalem Post, 27 May 2009). Similarly, Kadima MK Nahman Shai, regarding soldiers refusing to follow orders to expel people from their homes (as in the Gaza Disengagement) said "In a democratic country, the army must not allow soldiers to take such a position." (Kadima MK: Put Soldiers in Their Place", Israel National News, http://www.israelnationalnews.com/News/Flash.aspx/173114). If Pines-Paz and Shai ever looked up Schenck v. United States (1919) and "clear and present danger", it could only be in order to find out what democracy said so that they could demand precisely the opposite in democracy's name. (In that case, it was ruled, "when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right." In other words, draft-dodging is a danger to democracy only in time of war. Additionally, it is interesting that regarding the Kafr Qasim incident in Israeli history, Judge Benjamin Halevy ruled as binding Israeli law the Talmudic principle of ein shaliah b'devar averah, saying, "The distinguishing mark of a manifestly illegal [military] order is that above such an order [from a military superior] should fly, like a black flag, a warning saying: 'Prohibited!'." So Pines-Paz and Shai are apparently ignorant of more than just democratic political theory.) So with all due respect, I find it rather questionable to attribute "Western democratic values" to Israeli society and law, but be that as it may, for all this is as an aside.
Frankly, I am extremely troubled and discomfited by her reliance on Western liberalism.
This is not to say that there is nothing of value in modern Western liberalism - G-d forbid! I myself having been planning to spend the coming summer vacation of mine studying Locke, Hobbes, the Federalist Papers, etc. in order to gain greater insight into the Tanakh's political theory. (It is well-known that the Renaissance/Enlightenment theorists of democracy, social-contract theory, etc. were quite often extremely Hebraic in their thought. But in the end, whatever I end up affirming for myself, it will be because the Tanakh said it, even if it required the helpful elucidation of Locke et. al; I will not be relying on Locke et. al. themselves. If there is anything true in the Declaration of Independence's statement that "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...", it is because our Torah already proclaimed, "ze sefer toldot adam". And so, when Rabbi Shlomo Riskin issued a halakhic ruling that one is obligated to violated Shabbat to save a gentile's life, he relied on the latter Torah principle, not the former Western value, and quite rightly so.
According to Rav Kook (Igrot vol 1., p. 103), ואם תפול שאלה על איזה משפט שבתורה, שלפי מושגי המוסר יהיה נראה שצריך להיות מובן באופן אחר, אז אם באמת ע"פ ב"ד הגדול יוחלט שזה המשפט לא נאמר כ"א באותם התנאים שכבר אינם, ודאי ימצא ע"ז מקור בתורה. (My own unprofessional translation: "And if a question arises on any given law of the Torah, that according to moral/ethical conceptions this law needs to be understood in another manner, then, if indeed according to the Beit Din ha-Gadol (i.e. the Sanhedrin) it will be decided that this law in question was stated only with regards to sociological conditions that are no longer extent, then indeed by means of this ruling a source in the Torah will be found for this moral/ethical conception.") And again, according to Rav Kook (Kevatzim mi-Ketav Yad Kodsho, vol. 2, p. 121, i,e, 4:16), כשהמוסר הטבעי מתגבר בעולם, באיזה צורה שתהיה, חייב כל אדם לקבל לתוכו אותו מממקורו, דהיינו מהתגלותו בעולם, ואת פרטיו יפלס על פי ארחות התורה. אז יעלה בידו המוסר הטהור אמיץ ומזוקק. (My own unprofessional translation: "When natural morality strengthens in the world, in whatever form it may, then everyone is obligated to incorporate this within his own ethos from its source, i.e. from its revelation in the world, and its details will be explicated via the paths of the Torah. Then pure morality will come into his hand, strong and purified.") See Professor Marc Shapiro, "Thoughts on "Confrontation" and Sundry Matters Part II" (The Tradition-Seforim Blog, http://seforim.traditiononline.org/index.cfm/2009/1/28/Marc-B-Shapiro-Thoughts-on-Confrontation--Sundry-Matters-Part-) for commentary on these passages. In particular, Professor Shapiro notes that "R. Kook is not speaking about apologetics here, but a revealing of Torah truth that was previously hidden. The truth is latent, and with the development of moral ideas, which is driven by God, the new insight in the Torah becomes apparent." Additionally, Professor Shapiro notes regarding Rabbi Norman Lamm that "He then develops the notion of a developing halakhic morality in which our evolving understanding of morality lead us back to the Torah 'to rediscover what was always there in the inner folds of the Biblical texts and halakhic traditions'". So it is very possible that new values and events in history will cause us to reevaluate and reexamine the Torah and its values, but in the end, it is always the Torah's values, never modern Western values, which impel and motivate us!
It could be fairly said that my own philosophy of the Oral Law - largely following Rambam, Rabbi Moshe Shmuel Glasner, and Rabbi Dr. Eliezer Berkovits - has very much in common with Conservative Jewish philosophy on that subject. But there is one portion of Conservative philosophy of the Oral Law with which I must very vehemently take issue with: Zecharias Frankel's reliance on the Volksgeist, not unlike Rabbi Dr. Solomon Schechter's concept of Catholic Israel. (See Rabbi Dr. Ismar Schorch, "Zacharias Frankel and the European Origins of Conservative Judaism." Judaism 30, Summer 1981, 344-354.) We cannot give this subject its proper attention here, but suffice it to say for now, the concepts of the Volksgeist and Catholic Israel mean that Jewish law is to be determined by what the laity desires. The laity may very well have been be limited to the observant laity (implicitly by Schecter and later explicitly by Rabbi Dr. Robert Gordis - see Evan Hoffman, "Factors of TraditionalismIn Conservative Jewish Law", JHI 9978, Doctoral Planning, Fall 2004, http://www.scribd.com/doc/17398726/Factors-of-Traditionalism-in-Conservative-Jew-Law-Evan-Hoffman, notes 50 and 96 and the body text relevant thereto), but the fact remains that ultimately, it is the laity's own desires, and not halakha, which is determinative. Is there really any epistemological difference between the laity's ruling based on its sensual desire for pork or intermarriage and based on a preference for extra/super-Torah Enlighenment values?
By contrast, David Hazony, in his introduction to Essential Essays on Judaism (ed. Hazony, Jerusalem: Shalem Press, 2002), "Eliezer Berkovits and the Revival of Jewish Moral Thought" (found also in Azure Summer 5761 / 2001 pp. 23-56), distinguishes the philosophy of Rabbi Dr. Eliezer Berkovits from Conservatism, saying
Yet there is a significant difference between Berkovits’ effort and that of these other scholars, which concerns the nature of the values which justify change. Underlying much of the argument of non-Orthodox scholars is an effort to justify change as part of an ongoing evolutionary process resulting from the continuous encounter between tradition and the evolving needs of the individual or society. In the words of Louis Jacobs, a prominent Conservative thinker: "The ultimate authority for determining which observances are binding upon the faithful Jew is the historical experience of the people of Israel"—meaning that history brings new situations before the Jewish people, and halacha must evolve accordingly. (Jacobs, Tree of Life, p. 230.) ... Robert Gordis, another leading scholar of the Conservative movement, expresses a similar belief when he writes that "tradition constitutes the thesis, contemporary life is the antithesis, and the resultant of these two factors becomes the new synthesis. The synthesis of one age then becomes the thesis of the next; the newly formulated content of tradition becomes the point of departure for the next stage." (Robert Gordis, "A Dynamic Halacha: Principles and Procedures of Jewish Law," Judaism 28:3, Summer 1979, p. 265.) In these and similar writings, the emphasis is upon change as a response to new challenges posed by the flow of history, with little attempt to spell out exactly what are the eternal values, if any, that the openness to change is ultimately intended to preserve. Change is a product of the fluid encounter between the Jewish people and history, and therefore it does not follow any clear pattern; it is as variegated as history itself. As a result, it often becomes difficult to tell from these writings whether the need for change is determined through reference to principles that are themselves found within the Jewish tradition, or whether it is derived from somewhere else. (See, for example, Zemer, Evolving Halacha, pp. 44-57.)
From Berkovits’ standpoint, this view is hard to reconcile with the moral message of the prophetic texts. These were clearly meant to deliver a message whose importance rested not in its success as a "synthesis" between the traditional and the contemporary, but precisely in its ability to transcend the changing attitudes of history. Indeed, according to the Talmud it was the criterion of eternal validity that determined whether a given text was included in the biblical canon in the first place. (Megila 14a.) Instead, Berkovits understands change in halacha to reflect the careful, incremental adjustment of legal means to further moral ends that are themselves intrinsic to Judaism and unchanging. These moral ends are not an external "antithesis" with which the tradition must come to terms by changing its internal content in keeping with them; they are themselves the moral core of the same revealed message from which the law receives its authority. ... Berkovits writes [commenting on the Kuzari, as noted by Hazony], "The rabbis in the Talmud were guided by the insight: God forbid that there should be anything in the application of the Tora to the actual life situation that is contrary to the principles of ethics. What are those principles? They are Tora principles, like 'And you shall do that which is right and good in the eyes of the Eternal'; or 'Her ways are ways of pleasantness, and all her paths are peace' or 'That you may walk in the way of good men, and keep the paths of the righteous'" (Berkovits, Not in Heaven, p. 19.) While the law may change, the values which underlie it do not; on the contrary, the purpose of change is to permit the continued advancement of the Bible’s eternally valid moral teaching under new conditions. This difference is felt in the way in which Berkovits levels his criticism of prevailing halachic practice. Berkovits believed that the halacha had ossified to the point of inflicting real damage on some of its own moral ends...
When calling for a reconsideration of the status of women in Jewish law, for example, Berkovits shies away from Enlightenment concepts such as liberty and equality, and instead invokes classical Jewish concepts such as human dignity, the protection of the innocent, and the covenantal symbolism which the institution of marriage is supposed to entail, in order to conclude that "we have reached a juncture at which the comprehensive ethos of the Tora itself strains against its formulation in specific laws." (Berkovits, Crisis and Faith, p. 121 [from "The Status of Woman Within Judaism" in his book Crisis and Faith, pp. 97-122].) In his theological writings, as well, Berkovits assumes that the Jewish tradition is driven by a set of moral values inherent to and derived solely from within that tradition. His Studies in Biblical Theology (1969) is an extensive and meticulous work dedicated to teasing out the essential moral principles of the Bible by analyzing its use of terms such as "holiness," "justice," and "truth." (Eliezer Berkovits, Man and God: Studies in Biblical Theology (Detroit: Wayne State, 1969).)
In this, Rabbi Berkovits would be similar, in my own opinion, to Rabbis Benzion Uziel and Haim David Halevi. Both were traditional Talmudists of the Judeo-Spanish school, neither ever attending university or having any reliance on Western values worth noting; as Rabbi Angel has put it to me, Rabbi Halevi was not a Modern Orthodox rabbi, but instead, he was simply a traditional rabbi of the old school, albeit with his head screwed on straight and with a loving heart in his breast. Nevertheless, Rabbi Halevi could say (Asei Lekha Rav 8:97, translated by Rabbi Marc Angel in "The Love of Israel as a Factor in Halakhic Decision-making in the works of Rabbi Benzion Uziel", Tradition 24:3, Spring 1989, pp. 1-20; cf. Rabbo Angel's Rabbi Haim David Halevi, Urim Publications, pp. 65f.), "The law came down on the side of the school of Hillel because its followers were sympathetic human beings, recognizing human frailty and the difficult challenges of life. They were sensitive to the human predicament and tended to be lenient in their rulings. ... Anyone who knew at first-hand our teacher, Rabbi Uziel of blessed memory, knows that his personality was stamped with the love of kindness and mercy to all people, and certainly to Jews, who are called children of God. It is not plausible that the heart that beat with pure love did not wield its influence on his general and halakhic thinking. I am witness that all his public service was deeply influenced by that love of Israel which infused him. ... How would it be possible that his halakhic thinking not be influenced in this direction?" According to Rabbi Halevi (Asei Lekha Rav, ibid.) and Rabbi Uziel (see Rabbi Angel's book, Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel, Jason Aronson), such leniency is possible, however, only where a true Talmudic basis exists. That is, one cannot just rule based on compassion and mercy alone. Rather, compassion and mercy provide the justification for ruling based on minority opinions, novel understandings, etc., but those minority opinions and novel understandings and such must have real firm Talmudic basis. Rabbi Berkovits would agree; morality plays a role in ruling halakhah, but it itself alone, without some sort of technical Talmudic basis, is insufficient. And yet, nothwithstanding his refusal to rule without a traditional Talmudic basis, notwithstanding his lack of any university education, etc., Rabbi Halevi is perhaps the Orthodox poseq most often and most respectfully cited by Reform and Conservative poseqim, due to the fact that very often, Rabbi Halevi's rulings fit with their agenda, and and even when they do not, the non-Orthodox so respect Rabbi Halevi's rulings that they cite him, even if only to ultimately disagree with them. (Johnny Solomon, "Rabbi Hayyim David Halevy as the Orthodox poseq for the non-orthodox", Presented at the Jewish Law Association Conference, Manchester. 23rd July 2008. I am indebted to its author for sending this article to me.)
I agreed with Dr./Ms.(?) Kahana-Dror's overall thesis, but her reliance on Western liberal values, and her setting them up in opposition or at least in contradistinction to Jewish Torah values, with preference given to the former, tremendously worried me. If it weren't for the fact that I agreed with her thesis already before reading what she wrote, I'd surely, I have no doubt, have disregarded her message as worthless heterodoxy, in that I would have dismissed her entire argument (against the misogny of the Israeli batei din) as stemming from irrelevant non-Torah considerations. And even if one disagrees with me, and holds that it is quite proper and decent to rely on Western values over Torah values, will this succeed in aiding our victory over the Haredim? Regardless of what truth dictates, one must nevertheless craft one's rhetoric in such a way as to garner the most support. Will using the terms of Western liberalism in our discourse really help us gain favor in the eyes of the Orthodox world?
 For a most arresting illustration, see Rabbi Dr. Isaac Herzog, "John Selden and Jewish Law" in Judaism: Law and Ethics - Essays by Chief Rabbi Isaac Herzog, selected by Chaim Herzog, London / Jerusalem / New York: The Soncino Press, 1974. More generally, see, among the many sources that could be adduced: Fania Oz-Salzberger, "The Jewish Roots of Western Freedom" (Azure, Summer 5762 / 2002); Yoram Hazony, "The Jewish Origins of the Western Disobedience Tradition" (Azure, Summer 5758 / 1998); Yoram Hazony, "Judaism and the Modern State" (Azure, Summer 5765, 2005); Rabbi Dr. Joshua Berman, "What Orthodoxy Can Gain From Academic Biblical Studies: The Torah as Political Theory" (The Seforim Blog, 29 September 2009, http://seforim.blogspot.com/2009/09/joshua-berman-what-orthodoxy-can-gain.html). Several books which I have not yet been able to acquire but which, as far as I can tell, would seem to bear on this subject would include: Rabbi Dr. Joshua Berman, Created Equal: How the Bible Broke with Ancient Political Thought (Oxford University Press, 2008); John Dunn, The Political Thought of John Locke: An Historical Account of the Argument of the "Two Treatises of Government" (Cambridge University Press); Political Hebraism: Judaic Sources in Early Modern Political Thought, ed. Gordon Schochet, Fania Oz-Salzberger, Meirav Jones (Jerusalem: Shalem Press, 2008); Petrus Cunaeus, The Hebrew Republic (trans. Peter Wyetzner with introduction by Arthur Eyffinger, Jerusalem Shalem Press, 2006); Rabbi Dr. Jose Faur, The Naked Crowd: The Jewish Alternative to Cunning Humanity (Derusha Publishing, 2009); Professor Eliezer Schweid, Democracy and the Halakhah (analyzing the thought of Rabbi Haim Hirschensohn, University Press of America with the Jerusalem Center for Public Affairs, 2002). See also Rabbi S. R. Hirsch, "Jewish Communal Life", in Judaism Eternal (trans. Dayan Isidore Grunfeld, London / Jerusalem / New York: Soncino Press); this entire essay's thesis is showing from Judaism's own sources (without recourse to any Western liberalism) that the Jewish lay masses must involve themselves intimately in all Jewish communal matters, both civic and legal. (How the Haredim - whose apodictic and authoritarian philosophy of Da'as Torah is similar to Catholicism's papal infallability and ex cathedra rulings - can claim Rabbi Hirsch as one of their own is one of the vagaries of history, the possibility of whose being comprehended is amply illustrated by H. P. Lovecraft's The Cthulhu Mythos. Additionally, a reference to Orwell's Nineteen-Eighty-Four is again apt, this time to Winston Smith's occupation of systematic historical revisionism. Indeed, as Rabbi Dr. Aharon Lichtenstein would heartily affirm, even non-Jewish fiction can aid in the understanding of Judaism.)
 Actually, not only does my philosophy have much in common with Conservatism's, but it largely agrees as well with Rabbi Avi Weiss's explication of the Oral Law and halakhah in his "Open Orthodoxy!", Judaism 46:4, Fall 1997, http://www.yctorah.org/downloads/articles/aw-open-orthodoxy.pdf). V'ha-meivinim yavinu.) When I read Rabbi Dr. Daniel Gordis's summary of Conservative philosophy on this subject ("Positive Historical Judaism Exhausted: Reflections on a Movement’s Future (Conservative Judaism)". Conservative Judaism, vol. XLVII no. 1, Fall 1994/5755. http://danielgordis.org/sitefiles/wp-content/uploads/2009/07/Positive-Historical-Judaism-Exhausted-Reflections-on-a-Movements-Future.pdf), I found very little significant to disagree with him on. (See my response to him at http://michaelmakovi.blogspot.com/2009/08/positive-historical-judaism-exhausted-r.html.