Havid Ner-David and the Democratic Nature of Judaism

Shimshonit has a very interesting a book review of Rabbi Dr. Haviva Ner-David’s Life On the Fringes.

In the comments there, an ongoing discussion is occurring, and I reproduce here some of my comments there:

Inter alia, Shimshonit discusses Ner-David's discussion with Rabbi Seth Farber, writing,

After describing her vision of where Orthodoxy might go to allow greater participation by women, she asks Rabbi Farber directly, "Why, if there is no halakhic barrier to women becoming rabbis, are Orthodox rabbis today denying women the right to become rabbis? Why are you against giving s’micha to women who study the same texts as male rabbinical candidates?" Rabbi Farber answers that authority, not a piece of paper, makes someone a leader, and that women must first gain that authority and respect. He tells Ner-David that she is doing a disservice to the Orthodox feminist movement by seeking smicha now, and that in doing so she deflects attention away from the really important issues and giving the opposition easy ammunition to discount the cause. I’m sure many people would agree with Rabbi Farber, and it gives Ner-David pause as well. But on considering this point, I must say I am still not convinced. Does he suggest that women are not currently deserving of respect and authority?

I don’t think that’s what Rabbi Farber meant, that women are not deserving of respect.

Rabbi S. R. Hirsch argues at length, in his essay “Jewish Communal Life” that Jewish polity is essentially democratic, and that a rabbi is a rabbi only because the community appointed him to be one. A rabbi is hired on contract by the community, and in that respect, he is subservient to them. Historically, most Jewish communal affairs were conducted not by the rabbi, but by the parnasim, by the Jewish lay officials of the community. The rabbi was consulted on an ad-hoc basis, and sometimes, he had to ratify any proposals, but for the most part, it was the parnasim, not the rabbi, who were in charge.

Furthermore, any halakhic rulings made by the rabbi had authority only insofar as they agreed with the Torah. The rabbi had no intrinsic authority; his authority was only to correctly declare what the Torah already said. Therefore, says Rabbi Hirsch, laymen must learn Torah so that they can second-guess their rabbis and disobey them at the proper times.

On top of that, says Rabbi Hirsch, we have the principle that a taqana or gezera is binding only if the people accept it. To quote RambaM, Hilkhot Mamrim, 2:6-7 (as translated by Professor Marc Shapiro’s book review of, Jewish Commitment in a Modern World: Rabbi Hayyim Hirschenson and His Attitude to Modernity (Hebrew) by David Zohar):

If the court has issued a decree in the belief that the majority of the community could endure it, and after the enactment thereof the people made light of it and it was not accepted by the majority, the decree is void and the court is denied the right to coerce the people to abide by it. If after a decree had been promulgated, the court was of the opinion that it was universally accepted by Israel and nothing was done about it for years, and after the lapse of a long period a later court investigates the doings of Israel and finds that the decree is not generally accepted, the latter court, even if it be inferior to the former in wisdom and number, is authorized to abrogate it.

The Kesef Mishnah is not sure whether the later court must investigate whether the decree was not accepted at the time of its promulgation, or whether it is enough to find that the present and contemporary generation has not accepted it. (Rabbi Hirschensohn took the second approach, and Professor Shapiro shows that Rav Kook did as well.) Either way, the basic principle stands, that the rabbis have no intrinsic authority to make decrees, unless the people ratify those decrees.

This is all a basic application of the fact that for Jew, the Torah alone is law. No man can take the place of G-d and His law. We have a principle that ein shaliah b’davar `averah, that we must disobey illegal orders. We have an entire mesekhet Horayot to tell us what to do when the Sanhedrin errs.

Hakham Jose Faur is prominent for emphasizing this democratic and "Higher Law" aspect of Judaism. (Hakham Faur is a strict Maimonidean, going so far as to declare Qabala to be not merely wrong, but criminal. He grew up in the Syrian community in Argentina, and on the advice of the Syrian community in New York City and Rabbi David de Sola Pool of the Spanish-Portuguese congregation in New York City, Hakham Faur taught as a professor at JTS. He left when JTS began ordaining women, and he sued for a breach-of-contract, arguing that by choosing to ordain women via an administrative decision, rather than having the Talmudic scholars find a halakhic way to ordain them, JTS was, he said, not only denying women their due rights in halakhah – if any would in fact be found by those Talmudic scholars – but was also violating the terms of his contract with them – presumably because JTS was supposed to be a Jewish institution and function in a Jewish, i.e. halakhic, manner – and forcing him to resign his position as professor.)

Speaking about the "slippery slope" of permitting women to read from the megillah, a follower of Hakham Faur’s, Hakham Aaron Haleva, writes,

I fail to comprehend "slippery slope."

The Law is what it is, and it is not always the same as what Jews (especially ones who do not first study the Law) imagine it is.

If women may read the meghilla, then they may (as R. Ovadia Yosef has pointed out). If they may read the Sefer [Torah], then they may. If they cannot serve as hazzan, then they may not.

All of these issues are well defined and precisely known by anyone who reads the Law (and not somebody’s report of the Law).

The "slippery slope" idea only has any significance if a "rabbi" has authority to make new law. So then — the thinking goes – if the "rabbi" "allows" women to read the meghilla in public to a mixed minyan, next he may "allow" a woman to pray Musaf (what a crying shame that would be, anyway, no?). What women cannot do is truly well defined, and there is nothing to be afraid of in letting them do what they are allowed to do, which is also very well defined and very well known or knowable.

Once again, this "slippery slope" mindset I find to be acutely non-Jewish. Unlike all other religions where the "clergy" have authority, in Judaism the Law has the only authority. The Law is actually the sovereign. A hakham has relevance only insofar as he can guide you to what the Law is.

If the very Sanhedrin is moreh [teaches] that X is the Law, and you happen to know that this is hora’ath ta’uth [an erroneous ruling], and really Y is the Law, then you may not listen to them, and you must not follow them. No other nation on Earth ever had such a rule, or such a culture where the People were the true repository of the Law.

Imagine! The Tora expicitly tells you NOT to listen to the rabbis in certain cases. I.e., when they are wrong, as you see it (provided you have sufficient knowledge to make the call). Rebel against the authorities — why that sounds like insurrection and blasphemy!

Wait — isn’t that just like the Maccabees rebelling against the corrupt kohanim in Jerusalem? Isn’t that something we **celebrate** ? Didn’t God himself even send a sign that He approved, with the oil and all?

(or was that just the same corrupt rabbis some 200 years later simply ripping off a pagan Roman holiday? In a time when nobody in Israel or Babylon had anything good to say about Rome("malkhuth harish’a" ["kingdom of evil"]) or its culture.)

We should try to preserve this very unique value. It is what makes Am Yisra’el truly a "horizontal society." The only one that ever existed. I do not see that it still exists very much, though. It is also what allows free thinking men to reject the "Jewish Scholars" (our modern day "authorities" — at least for the "Modern Orthodox" types) when they are wrong.

In a horizontal society it is not who you know, but only what you know. Good practice and training for "olam shekullo emeth [a world that is wholly truth]."

Regarding women’s suffrage and holding positions of civil authority, Rabbi Benzion Uziel, in his teshuva on the subject proves from the example of Devorah, and rabbinic commentaries thereon, that women are permitted to hold authority. The issue, he says, is that Sifrei says that a king must be man, not a woman. Rabbi Uziel responds that because of the halakhah that a king must be accepted by the people in order to have authority, therefore, he says, a king of Israel had to be a man, in order to ensure that he would be accepted by the people. (I’ll add that Rabb Yuval Cherlow cited the Yerushalmi as saying that as long as King David was king over Yehuda from Hevron, he was not yet a king, until he reigned over all the tribes, because a king must be accepted by all the people.) The way I read Rabbi Uziel is like this: people are sexist: tough; deal with it. The whole nation must accept the king. Back when, if the king were a woman, then the whole nation would not have accepted her. This is unfair, but it is life, and it is what comes with Judaism’s being a democracy. A king requires consent-of-the-governed under the social-contract, and if the men all deny their consent to a woman and demand a male king, then what can we do?

So to return to Rabbi Farber: I believe he is right, at least theoretically. A rabbi must be accepted by the people, and not merely have a piece of paper. Therefore, it is not enough to give Ner-David semikhah, for she must also have authority granted by the people. This is unfair, but it is life. It is what comes with being a Jewish clergywoman rather than a clergywoman of a hierarchical, authoritarian religion.

Now, that does not mean I necessarily agree with Rabbi Farber in practice. I would argue that giving women semikhah would help individual communities choose female rabbis for themselves, even if they are in the minority. Give a woman semikhah, I say, and let everyone do with her whatever they will, and accept her as their rabbi if they want to. But Rabbi Farber’s words do have some truth in them.

Personally, all of this fits in very well with my own libertarianism. In fact, every time I’d pontificate on some political issue, expressing my own libertarian views, my friend would remark that I’d get along great with Hakham Faur. In any case, I cannot help but quote Thomas Paine’s "Common Sense":

But where says some is the king of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.

Likewise, James Otis’s "Rights of British Colonies Asserted":

The parliament cannot make 2 and 2, 5; Omnipotency cannot do it. The supreme power in a state, is jus dicere only;—jus dare, strictly speaking, belongs alone to God. Parliaments are in all cases to declare what is parliament that makes it so: There must be in every instance, a higher authority, viz. GOD. Should an act of parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void.

Honestly, I do not know why so many Modern Orthodox are leftists in politics. For me, Modern Orthodox Judaism and libertarian politics go hand-in-hand as mates that G-d created – quite literally – to be partners.

II.

In the comments, Shimshonit adds,

The risk of having women participate more is that men will show up less. A friend who is a sociologist at Brandeis said once that if the boys aren’t in charge, they don’t show up. I think some of the Protestant denominations, in ordaining women, have dwindled in their male membership tally. If that were to happen, that could well be the highest cost to Orthodoxy of ordaining women.

...

I take that risk very seriously. Women in my shul in Newton, Mass., were accused of splitting the congregation by holding a women’s Shacharit service twice a year. And you’ve seen what happens if they’re allowed to participate WITH the men. Who’s to blame for splitting the congregation if the men stay home? Probably the women again. Blame in itself doesn’t bother me; women are accused of much worse than that. But I don’t like the idea of the kahal being dissolved like that. It does, indeed, stink.

The view of these men, that’s disgusting. You don’t let them (the women) leave, and then, when they stay, you put them into a second-class situation?! You cannot have it both ways. You cannot both heavily regulate an institution, and forbid members to leave. (Don’t get me started on Lincoln and the Civil War.)

Either you let women leave the kehillah and start their own, or else you make them equal within the male’s kehillah. If halakhah forbids the latter, then by extension, I believe, it mandates the former.

And who says the men’s kehillah is the "real" one, and that anyone who leaves it is poresh min ha-tzibur (an antisocial separatist)? If the men’s kehillah is the "real" kehilah for everyone, then women must be made equal within it. And if according to halakhah, women cannot be made equal within it, then it is a blatant lie to say that it is everyone’s kehillah. And if so, why should women be forced to belong to a kehillah that isn’t theirs? How can women be accused of splitting the congregation when they were never bona-fide, enfranchised members of it in the first place?

You know what it’s like? It’s like getting a man addicted to drugs so as to ensure yourself a customer. The men blackmail the women – with the threat of their being no longer observant and in G-d’s good graces – into remaining with a congregation that they aren’t really members of. They tell the women that if they leave, then they are no longer observant, and that they are responsible for destroying the religiosity of the men to boot. Is it any wonder these men frown on women’s Torah learning? After all, the Catholics banned English translations of the Bible, and likewise, women who are learned in Torah are a threat to the men’s political hegemony.

So, I say, tough on them (the men). Should wives bear the sins of the husbands? If the men are so petty as to leave when women enter the congregation, or to feel slighted when women start their own independent congregations, then fine, let them rot.

Furthermore, as it stands right now, the men show up and the women don’t. (I’m oversimplifying.) If having the women show up means the men won’t, well, then we’ll still be at 50%. As far as I’m concerned, men and women are equally Jewish, and 100% of one half is worth as much as much as 100% of the other.

On top of all that, who says a female rabbi has to be a congregational rabbi? Is every man with semikhah a pulpit rabbi? No, so why cannot we grant semikhah to women and tell them (on the honor system) not to become pulpit rabbis? So anyone who says that women cannot be rabbis because it’ll cause the men to leave, or because women should not be pulpit rabbis, is clearly either very myopic and uncreative, or else is completely disingenuous and would actually like to forbid women even if there were no sound reason whatsoever.

I’ll add this: as I noted, no taqana or gezera is binding unless the Jewish people accepts it. So let’s suppose that men accepted it upon themselves not to let women count in their minyanim. Very well. But I ask: did women ever accept upon themselves not to be allowed to count in a women’s-only minyan? Did women ever accept upon themselves to allow only a minyan of men to say Qadish and Qedushah? Even if the halakhah says only a minyan of men may say those, I ask: did the women ever aspect this decree upon themselves?