The Orthodox Ought to be Ashamed

I seem to recall somewhere in Rabbi Yom Tov Schwarz's magnificent Eyes to See, that he remarks that the Orthodox ought to be ashamed when they see non-Jews succeed morally where Jews have not. For example, he notes how New York, full of different ethnicities, has succeeded in crafting one public school system, whereas the Orthodox, ostensibly more unified in beliefs, have a myriad of private schools with competing ideologies. With Rabbi Schwarz's criticism in mind, read the following passage from William Tyndall's book The Obedience of a Christen man, and how Christen rulers ought to govern, wherein also (if thou mark diligently) thou shalt find eyes to percieve the crafty convience of all iugglers. (2 October 1528, online here and here). I have bolded the section I am interested in, and added [numbered] footnotes to indicate explanatory comments of my own:

Moses ( Deuteronomy 17) warneth judges to keep them upright, and to look on no man’s person; that is, that they prefer not the high before the low, the great before the small, the rich before poor; his acquaintance, friend, kinsman, countryman, or one of his own nation, before a stranger, a friend or an alien, yea, or one of their own faith before an infidel; but that they look on the cause only, to judge indifferently. For the room that they are in, and the law that they execute, are God’s; which, as he hath made all, and is God of all, and all are his sons, even so is he judge over all, and will have all judged by his law indifferently, and to have the right of his law, and will avenge the wrong done unto the Turk or Saracen. For though they be not under the everlasting testament of God in Christ, as few of us which are called Christian be[1], and even no more than to whom God hath sent his promises, and poured his Spirit into their hearts to believe them, and through faith graven lust in their hearts to fulfill the law of love; yet are they under the testament of the law natural, which is the law of every land made for the common wealth there, and for peace and unity, that one may live by another: in which laws the infidels, if they keep them, have promises of worldly things.[2] Whosoever, therefore, hindereth a very infidel from the right of that law, sinneth against God, and of him will God be avenged.

[1] "as few of us which are called Christian be" --- I may very well be mistaken, but I believe that many Protestants might possibly have been able to have greater tolerance for Jews than Catholics had had, because in their minds, the Catholics were idolaters and delinquent in Christian faith no less than Jews were. If anything, Catholics ought to have known better more than Jews. Therefore, the Protestants were able to have some degree of sympathy for the Jews. Now, Luther was nevertheless and inveterate enemy of the Jews and a notorious antisemite - he initially said that he could understand how Jews resisted conversion given Catholic "love" (i.e. pogroms and crusades), but once the Jews refused to convert to Catholicism, he railed that the Catholics had been right about the Jews all along - but as far as I can recall, he did not instigate any pogroms of the sort that Catholics were often guilty of. Calvinists were even more tolerant for Jews, especially because Calvin was more Hebrew Bible-oriented than Martin Luther. I quote The History of the Jews of the Netherlands (Littman Library), p. 58:

Calvin's positive attitude to the Hebrew Bible, no less than the idea of divine election [i.e. the politicized covenant / federalism that led ultimately to modern democracy - Michael Makovi] that plays so central a role in the Bible and in his own doctrine, opened the door for a symbolic identification with the Jews that would have been inconceivable to the Catholic, humanist, or Lutheran traditions, even though Calvin often tempered this identification with a disapproval of the blindness of the Jews that fluctuated between compassion, contempt, and animosity. There is no doubt, however, that Calvin never incited his disciples to hatred of the Jews. In his later sermons, we can even detect signs of a fuller appreciation of the similarities between the fate of the persecuted Reform Christians and that of contemporary Jewry. Ultimately, the inestimable value of Calvin's teachings lies in the self-criticism that enabled his followers to identify themselves with biblical or contemporary Jews; neither the most comfortable nor the least ambivalent angle from which to gain a new view of Jews and Judaism.

Ibid., pp. 160f.:

The many religious polemics written by Sephardi Jews during the seventeenth and eighteenth centuries reflect a variety of attitudes towards Christianity; from extreme and general hostility, seeing Christianity as an idolatrous faith, to drawing a distinction between 'idolatrous' Catholicism and Reform Christianity, which had restored the Bible's true meaning. But the fact that they preferred Reformed Christianity, mainly Calvinism, to Catholicism did not prevent Sephardi writers of apologetics from fiercely disputing the bases of Calvin's doctrine. The subject of predestination and of the reward of the righteous received special attention in their polemical writings. Nevertheless, even the sharpest Jewish critics of the time had a soft spot for the Dutch Calvinists. Thus Isaac Orobio de Castro said of the Dutch Republic, 'May our Lord God sustain these [United Dutch] Provinces and confer upon them a surfeit of divine blessings, so that the purity of their righteousness will ensure that no main is forced to resort to sticks and stones.' (Kaplan, From Christianity to Judaism, 252-62.) These words have a special significance when one recalls that they were not written for publication.

[2] "if they keep them, have promises of worldly things" --- Tyndall elsewhere explains in this book that moral and ethical works of love are a symptom and consequence of faith in G-d, but that faith alone brings salvation, and that as such, the benefit of moral deeds is only that it creates a comfortable life in this world. I.e., the motivation is purely utilitarian. RambaM in his Introduction to the Mishnah, Shemonah Peraqim, and Moreh Nevukhim evinces a similar belief; in the first-named work, for example, he says,

Common men exist for two reasons ; first. to do the work that is needed in the state in order that the actually intelligent man should be provided with all his wants and be able to pursue his studies; second, to accompany the wise lest they feel lonely, since the number of wise men is small.

His Shemonah Peraqim aims to show - according to Professor Lawrence Kaplan's magisterial essay An Introduction To Maimonides’ "Eight Chapters" - nothing less than that moral virtue leads to intellectual virtue, and that the latter alone brings salvation. The Kuzari evinces a similar attitude; in 2:46 the Haver asks (according to the new translation of Rabbi Dr. Korobkin),

Do you now think that closeness [to G-d] comes simply through humility, lowlines, and the like?

The Kuzari responds (2:47),

When coupled with righteous conduct, yes! So I believe and I've even read this in your Torah. It says, "What does the Lord your God ask of you except to fear [Him]?' [Devarim 10:12] and it says, 'What does God request from you except to do justice and love truth [and walk humbly with your God]?' [Michah 6:8] And there are many other similar citations

The Haver replies (2:48), in a manner highly reminiscent of RambaM and Tyndall that,

These and others like them are the rational laws. They are prerequisites – inherently and sequentially – to the Divine Torah. No community of people can function without these laws. Even a community of robbers cannot exist unless equity governs them; if not, their association could not continue. ... just as an individual cannot survive without natural activities such as eating and drinking, moving and resting, sleeping and waking. ... For the Divine laws cannot be fulfilled without the prior fulfillment of the civil and rational laws... How can one who does not uphold these essentials [viz. the rational laws] uphold sacrifices, the Sabbath, circumcision, and the like? … [T]hey [viz. the ritual laws] are the laws which distinguish the Jewish people, in that they are additions to the rational laws, and it was through this distinction that they achieved the advantage of Divinity [i.e. the Inyan haEloki].

Suffice it to say, all believing Jews should, I hope, object alike to this doctrine, whether it be of RambaM, the Kuzari, or Tyndall. Professor Harry Wolfson's Maimonides and Halevi: A Study in Typical Jewish Attitudes Towards Greek Philosophy in the Middle Ages" and Rabbi S. R. Hirsch's Nineteen Letters both quite rightly accuse RambaM of un-Jewish belief here, although they both strangely uphold the Kuzari as having more orthodox belief in this regard, which puzzles me. The Kuzari clearly believes that a Jew is "saved" by sacrificial offerings and the spirit of the Inyan ha-Eloki, which is more like RambaM's trust in the Active Intellect achieving salvation than a trust in moral behavior doing the same. The only difference I can see is that whereas the RambaM depends on belief achieving salvation via the Active Intellect - this being rather like Tyndall - by contrast, the Kuzari depends on sacramental and superstitious rituals (see Professor Menahem Kellner's Maimonides' Confrontation with Mysticism) to bring the Inyan ha-Eloki - this being rather like the Catholic notion decried by Tyndall that believes that superstitious rituals and sacraments will bring salvation. Tyndall is skeptical that any rituals are needed, but he says that if any are needed at all, let them at least be transparently explained to the laity as representing such-and-such cardinals of faith, with it being made clear that the faith itself, and not the ritual represented by it, alone brings salvation. This is very simply akin to the RambaM's view of ta'amei ha-mitzvot. So RambaM and Tyndall are clearly in one accord, and the Kuzari and the Catholics are clearly in one accord as well. According to Tyndall, the Catholics also believe that love of G-d (which both the Catholics and Tyndall anomalously conflate with moral deeds of love) will bring to faith in G-d, with the faith itself being that which saves. Tyndall agrees with the Catholics that faith in G-d alone saves, but he accuses the Catholics of pure idiocy in their belief that love leads to faith, whereas he believes that faith leads to love, as we see in the natural order of the world. But in neither of these two positions have we found the Jewish position that moral deeds in and of themselves, irrespective of belief, alone bring salvation.

Rabbi Elyakim Levanon of Elon Moreh Bans Women from Public Office: A Reply to Nurit Tsur of the Israel Women's Lobby

According to Rabbi bans women from public office on YNet,

Rabbi Elyakim Levanon, chief rabbi of the Elon Moreh settlement in Samaria, has prohibited female residents from running for the office of community secretary. ... "The first problem is giving women authority, and being a secretary means having authority," he wrote. "The second problem is mixing men and women. Secretary meetings are held at night and sometimes end very late. It is not proper to be in mixed company in such situations." The rabbi added that women who desired to affect public opinion should do so through their husbands. "Within the family certain debates are held and when opinions are united the husband presents the family's opinion," he wrote. "This is the proper way to prevent a situation in which the woman votes one way and her husband votes another."

To be sure, Rabbi Levanon's remarks were pathetic and pitiful, but this is too obvious, and so I hardly need to comment on them. However, I find someone else's comments to be problematic - indeed, pernicious even - and I feel they need some attention. We read,

Nurit Tsur, who heads the Israel Women's Lobby, said the rabbi's decision was anti-democratic and medieval. "Its place is in a halachic state and not a democratic one," she said.

The problem is that she has thereby drawn a distinction between what a halakhic state demands, and what a democratic one demands. Now, if sound scholarship demanded such a distinction, then all would be well and good. But if anything, sound scholarship militates against her statement. To oversimplify a complex phenomenon, it could be well said that modern Western democracy flowed more than anywhere else from Christian Hebraism. Whether we wish to speak of John Selden, Petrus Cuneaus, or John Calvin, the upshot is the same. Especially in Calvinist countries such as Britain, Holland, and Switzerland, new attention paid to the Tanakh resulted in concepts such as the rule-of-law, civil disobedience and rebellion against tyranny, separation-of-powers and checks-and-balances among government ministers and offices, and other such hallmarks of western democracy. (See Yoram Hazony's and "The Jewish Origins of the Western Disobedience Tradition", and see Fania Oz-Salzberger's "The Jewish Roots of Western Freedom".)

In fact, according to a recent book by Eric Nelson (see Yoram Hazony's detailed review here), even the concept of religious toleration resulted not from French Enlightenment, but rather, from Calvinist Reformation. Apparently, when the task of punishing purely religious offenses is taken from the church government (where it had been lodged under the Catholic concept of "two swords") and instead placed in the hands of the civil magistrate, the entire purpose of punishing religious offenses changes from punishing heresy and sin for its own sake (which would be the object under a Catholic church government), and instead, being placed with the civil magistrate, the task becomes only to preserve the public peace and tranquility and decorum. (I have recently read the sixth through ninth sermons in the second Decade of Bullinger, and the twentieth chapter of the fourth book of the Institutes of Calvin, and in both - especially in the former - it is made quite clear the purpose of punishing heresy and sin is not for the sake of ensuring the sinner goes to heaven, but rather, the object is only to protect society and prevent his pernicious influence from spreading. According to "Christianity in Nineteenth Century American Law" by Steven Alan Samson, we see this Calvinism even in nineteenth-century America where, prior to the passing of the 14th-Amendment, the states were free to regulate religion as they desired, as the 1st-Amendment only applied to the Federal Government. Now then, says Samson, many states found a Sunday blue law to be constitutional or not - based on the state constitution - based on whether the law required public observance of Sunday for the sake of the sinner's own moral and religious health, or for the sake of protecting society and public morality and decorum: the first reason would be unconstitutional, while the latter would be constitutional.) To be sure, the result is still a theocracy, but the government's task becomes not to punish heresy for its own sake, but only to punish heresy insofar as it affects the public peace and morality. Therefore, heretics and dissidents can be tolerated as long as their influence does not harm the society's moral sense at large. According to Eric Nelson, it is this which ultimately led to religious toleration, and its source, he says, was none other than the Tanakh, from which the Calvinists derived it.

The Protestant view of the civil government was basically the same as its view of the church government. Protestantism was primarily a political disagreement with Catholicism, and theological differences flowed from the initial political differences. I would like to note a few representative beliefs of Calvin's, and how I believe Judaism and democracy would agree with them:

1. Calvin believed that Scripture alone, and not tradition or reason, should govern (sola scriptura). This is similar to desiring a written constitution and strict-constructionism in a civil government, one of the central pillars of modern democracy - one which Israel, of course, fails to possess, making its status as a rule-of-law democracy rather dubious. I would also note that according to Jacob Katz, the Hirschians Jacob Rosenheim and Isaac Breuer desired that Agudat Yisrael would govern itself only according to the strict and explicit halakhah, and not according to Da'at Torah. See Katz's "DA'AT TORAH - The Unqualified Authority Claimed for Halachists". In other words, a Hirschian would see the Talmud and Shulhan Arukh as his written constitution(s) rather than the Tanakh, but the basic principle remains the same for the Hirschians as for the Calvinists. Also, I would note that according to Rabbi S. R. Hirsch's essay "Jewish Communal Life" in Judaism Eternal, the laity should learn Torah in order that he can question the rabbi when he appears to misrepresent the Torah, and this is similar to how the Protestants believed every man should be able to read the Bible for himself. By contrast, both the Da'at Torah Haredim and Ex Cathedra Catholics have the same authoritarian political ideology for their parts.)
   
2. Calvin believed that the laity should have power to elect their ministers, and he indicates this in his Ecclesiastical Ordinances, his constitution for the church government of Geneva. Rabbi S. R. Hirsch's essay "Jewish Communal Life" in Judaism Eternal (Soncino Press) emphasizes that a communal rabbi has only the authority granted him in his employment-contract by the citizens and parnasim (communal lay-officers) of the kehillah (community). Professor Menahem Friedman of Bar-Ilan would support Rabbi Hirsch's opinion.
   
3. Calvin believed that the church government should have a multiplicity of officers, each with their own sphere of power, and none of them hierarchically superior to any other. This is similar to separation of powers in a civil government.
   
4. Calvin believed that each church should be independent of each other, and should associate with each other in a fraternal, consensual manner, in which none is hierarchically superior to any other. This is similar to states' rights. Halakhah, I believe, would declare the same in its concept of minhag ha-maqom ("communal custom"), granting sovereignty to each geographic community to independently govern itself.
   
5. Calvin also argued against the vast Catholic bureaucracy, and also against the idea that priestly ordination was a sacrament and rendered a priest different in kind from a layman. According to Calvin - and Judaism, I believe - a rabbi is NOT a kohen, and a rabbi is more similar to a layman than to a special authority with unique powers. Also, Protestantism largely began with the idea that the Bible should be available in the vernacular, so that people could learn it on their own. (See the beginning of William Tyndall / Tyndale's "The Obedience of a Christen man, and how Christen rulers ought to govern, wherein also (if thou mark diligently) thou shalt find eyes to percieve the crafty convience of all iugglers.") This idea is a highly-charged political one, not a theological one. David W. Hall has elaborated on how Calvin's ecclesiology affected his civil politics; see "Calvin’s Principles of Government in the Venues of Church and State" in two parts (1) (2).

As for halakhah itself, I would say that Rabbi Benzion Uziel - whose opinions are surely as halakhic and Torah-based as those of anyone else - has already told us (in his teshuva on women's suffrage) that a woman is permitted to wield authority as long as she is accepted by the people. As I understand his opinion, Judaism is a democracy, and as the Torah says, the king must be chosen by the consent of the people. In fact, the Yerushalmi says that as long as King David ruled Yehudah from Hebron, he was not a king yet, and only when he became king of all Israel from Jerusalem was he halakhically a king, required to bring the corresponding sacrifice, because only at that later time had he been accepted by the people. (I am indebted to Rabbi Yuval Cherlow of Yeshivat Hesder Petah Tiqwa for showing me this source.) Therefore, being that Judaism is democratic, if the people refuse to accept a woman's rule, then her rule is illegitimate. Are the people sinning with their sexism and misogyny? To be sure, they certainly are. Nevertheless, because Judaism is a democracy, if the people refuse to accept her rule due to her being a woman, then their opinion is authoritative. The same reasoning applies to why converts are not allowed to wield authority. But nowadays, now that all intelligent and reasonable people have disavowed sexism and racism, they are now ready and prepared to accept women and converts as wielders of authority, and so the prohibition of granting authority to women and converts no longer applies. Rabbi Uziel said, regarding women's suffrage (here), that

[W]e find no clear ground to prohibit this, and it is inconceivable that women should be denied this personal right. For in these elections we elevate leaders upon us and empower our representatives to speak in our name, to organize the matters of our yishuv, and to levy taxes on our property. The women, whether directly or indirectly, accept the authority of these representatives and obey their public and national directives and laws. How then can one simultaneously 'pull the rope from both ends': lay upon them the duty to obey those elected by the people, yet deny them the right to vote in the elections?

Nurit Tsur, the subject of our polemic, said that, "Its place is in a halachic state and not a democratic one." But is Rabbi Benzion Uziel's opinion not halakhic enough for her? What fault did she find with him, that she saw fit to reject his halakhic opinion and instead posit that Judaism rejects women's suffrage and liberation and that only democracy can free them? Rabbi Uziel's opinion is both halakhic and democratic, and so I see no basis on which to posit a contradiction between halakhah and democracy, and this is only doubly so when we realize that modern democracy arose from Calvinistic Hebraic-theocracy. Furthermore, her opinion serves only to jettison any possibility of her victory. Her goal, I presume, is to convince the religious to become more egalitarian and open-minded. But if she posits a contradiction between Judaism and democracy, what does she think they will do when they are forced to choose? Of course they will reject democracy in lieu of Judaism, if they believe there is a contradiction! Instead, she must show them that Judaism and democracy are completely compatible, and that no choice need be made at all.

Rabbi S. R. Hirsch says, in "Religion Allied to Progress":

Now what is it that we want? Are the only alternatives either to abandon religion or to renounce all progress with all the glorious and noble gifts which civilisation and education offer mankind? Is the Jewish religion really of such a nature that its faithful adherents must be the enemies of civilisation and progress? . . . We declare before heaven and earth that if our religion demanded that we should renounce what is called civilisation and progress we would obey unquestioningly, because our religion is for us truly religion, the word of God before which every other consideration has to give way. We declare, equally, that we would prefer to be branded as fools and do without all the honour and glory that civilisation and progress might confer on us rather than be guilty of the conceited mock-wisdom which the spokesman of a religion allied to progress here displays. For behold whither a religion allied to progress leads! Behold how void it is of all piety and humanity and into what blunders the conceited, Torah-criticising spirit leads. Here you have a protagonist of this religion of progress. See how he dances on the graves of your forefathers, how he drags out their corpses from their graves, laughs in their faces and exclaims to you: 'Your fathers were crude and uncivilised; they deserved the contempt in which they were held. Follow me, so that you may become civilised and deserve respect!' Such is the craziness which grows on the tree of knowledge of this "religion allied to progress"! If our choice were only between such craziness and simple ignorance, again we say we would remain ignorant all our life-long rather than be thus godlessly educated even for one moment.

What Rabbi Hirsch has just said is exactly what goes through the minds of the religious when Nurit Tsur says "Its place is in a halachic state and not a democratic one." But Rabbi Hirsch continues:

There is, however, no such dilemma. Judaism never remained aloof from true civilisation and progress; in almost every era its adherents were fully abreast of contemporary learning and very often excelled their contemporaries. If in recent centuries German Jews remained more or less aloof from European civilisation the fault lay not in their religion but in the tyranny which confined them by force within the walls of their ghettoes and denied them intercourse with the outside world. And, thank goodness, even now our sons and daughters can compare favourably in cultural and moral worth with the children of those families who have forsaken the religion of their forefathers for the sake of imagined progress. They need not shun the light of publicity or the critical eye of their contemporaries. They have lost nothing in culture or refinement, even though they do not smoke their cigars on the Sabbath, even though they do not seek the pleasures of the table in foods forbidden by God, even though they do not desecrate the Sabbath for the sake of profit and enjoyment.

One final comment: I would note that Rabbi Benzion Uziel's teshuva on women's suffrage not only permits a woman to vote, but even to be a dayenet דינת and a malkah מלכה. I would note as a matter of historical interest, that whereas John Knox was stridently and vociferously opposed to women's political liberation (see his "The First Blast of the Trumpet Against the Monstrous Regiment of Women"), by contrast, Heinrich Bullinger, writing to Knox ("An Answer Given To A Certain Scotsman, In Reply To Some Questions Concerning The Kingdom Of Scotland And England"), was far more supportive of a woman's ability to hold to political authority, and he said that whether the woman turns out to be a Devorah or an Athaliah, either way, the Tanakh tells us which course of action to take. (Bullinger seems to have been far more willing to countenance violent revolution than Calvin.) Bullinger personally felt that women should not be rulers - as did Rabbi Uziel - but both Uziel and Bullinger nevertheless admitted that technically, women could rule, and that only moral considerations, not legal ones, were any impediments in their minds, and they admitted that a woman's authority would in fact be perfectly legitimate, whatever their personal feelings.

I suggest that she please revises her remarks about Judaism and democracy, at least if she has any hope of her views actually prevailing and improving Israeli society. Unless she wishes her opponents to spurn democracy in favor of Judaism, I suggest she posits that Judaism and democracy are in full accord with each other. And this view would not only be expedient and practical, but it would thank G-d be the honest and unabridged and unalloyed truth as well. Why tell the falsehood that Judaism and democracy contradict, when the opposite - that they are in full agreement - is not only expedient for her goals, but is even the truth as well?

Suspension of Reason and Conscience in Obedience to G-d

So I had a discussion with someone, and in order to illustrate what loyalty to the Torah means, he said that if you ever met a nice woman with her child, some marvelously nice and kind people, who then nonchalantly said they were Canaanites or `Amaleqites, you'd have to bury your conscience, apologize sincerely to them, and kill them on the spot. What can you do? Such nice and kind and wonderful people, but G-d's commands come first, after all.

So I cited RambaM in Hilkhot Melakhim 6:1, who, in turn citing Devarim 20:10, says you cannot wage even a milhemet mitzvah (obligatory war) on the seven nations and `Amaleq until you first proclaim peace. So I said to this fellow that in his effort to obey G-d and listen to G-d rather than his conscience - an admirable goal, to be sure - he'd actually have become a murderer according to the Torah.

The Yerushalmi tells us that Joshua sent three letters to the Canaanites, one offering them to accept the Noahide laws and live with us in peace, one offering them the option of leaving Israel, and the third resorting to a declaration of war if they refused the first two options. Evidently, even with the Canaanites, the option of accepting the Noahide laws and peace always existed. Indeed, is not Rahav a most superb example for us? Despite the fact that her entire society and city rejected peace and chose war, she herself chose the Noahide laws and peace, and Joshua not only accepted her, but even married her! So we see that even specific, individual Canaanites or Amaleqites could choose peace, even if all their neighbors chose otherwise. (The Torah truly does value the individual, after all.)

So back to our case of the nice Amaleqite mother, if my fundamentalist disputant had killed the nice woman and child, and the same man in a second alternate parallel dimension had let her live, thinking, "I don't know how or why to justify my failure to obey G-d's command to kill her, but I'm not killing her anyway, and please G-d, I'll find out how and why later", in that case, when both men would have read RambaM, the first would be mortified and the second gratified. In turns out that the second man, who held onto his reason and refused to obey what was ostensibly G-d's command, actually turned out to obey G-d more than the man who defenestrated his reason and conscience and attempted to obey G-d.

Of course, where Avraham acquiesces to G-d at the Aqeida (binding of Yitzhak for sacrifice) is a puzzle, since Avraham at Sodom had confronted G-d and asked "Will not the judge of all the earth do justly?". Rabbi Dr. Isidore Epstein in The Faith of Judaism has an interesting answer. He says that with the Aqeidah, the Torah uses the name Eloqim, whereas with Sodom and `Amorah, it uses Hashem. Rabbi Epstein uses the Kuzari-ian distinction between the far-away G-d of the philosophers and nature versus the intimate G-d of love and personality to explain why Avraham felt justified in arguing in one case and not the other. And of course, Avraham knew this was G-d talking to him, whereas the Torah doesn't inspire quite the same sense of immanence and immediacyin us, and I believe we are more justified in taking a shev v'al ta'aseh ("sit and do nothing") attitude when it doesn't comport with us, whereas Avraham could not make this excuse that G-d's command was not so immediate and striking.

The Midrash says that this was Avraham Avinu's hardest test because he had been preaching to everyone that human sacrifice is evil, and that now, he was to become a hypocrite and contradict everything he had already taught the heathens. According to the Midrash, it seems, Avraham did know that human sacrifice is wrong, and so the only reason he was willing to go through with the Aqeida was that G-d said so, and he knew that G-d had said so. The ethical dilemma for Avraham was just as clear to him as it is to us today - if not even clearer for him than for us - according to the Midrash.

Anyway, the way I figure it, here's what I'll do if someday I receive a prophecy from G-d to do something violent. The dialogue will go something like this, I figure:

G-d, could You please explain to me why I'm supposed to do this, and how it is justifiable, and how it doesn't contradict what else You've taught me? No, no, no, it's NOT that I'll only obey You if You can give me a good reason - of course not! It's just that if I obey You right now - which I surely will, of course - I won't understand why in the future I shouldn't continue to do violence. I mean, You've told me not to murder, etc., and now You're telling me to murder. Sure, I'll obey You now, but if I do so, I'll lose my ethical sense, and I won't understand why in the future I shouldn't murder anymore. G-d, RambaM tells me in Shemonah Peraqim that I shouldn't even desire to do a transgression of a mitzvah bein adam l'havero (interpersonal social mitzvah), that my own inner desire should eventually become one that conforms to Yours, without my having to consciously tell myself, 'I'd like to sin, but G-d forbids it.' (By contrast, of course, with a mitzvah bein adam la-maqom (a ritual mitzvah), I am to tell myself nothing other than that I'd love to do it were it not for G-d's command; I am to love pork and desist only because G-d says so.) But if I obey Your seemingly unjust command - which I certainly will obey You, of course! - then I will lose this inner ethical sense in my conscience, and I won't be able to obey You as well in the future anymore. So please G-d, tell me why I am to do this act of apparent injustice now, so that I understand why this doesn't contradict the general prohibition of injustice to which I will ordinarily be bound. I'll obey You now regardless of what You say, but I'm afraid that unless You tell me why I am to commit an act of injustice, that I'll continue to commit acts of injustice in the future.

Furthermore, G-d, the Torah teaches us that on one occasion, Avraham asked you, "Shall not the Judge of the earth do justly?", and yet on the other occasion, he acquiesced to You without question. Look, G-d, I cannot read Avraham's mind and know why he did what, and I certainly do not profess to have a perfect understanding of the Torah. So I'm not sure which example of Avraham's I am to follow. Now, You have commanded me to violate one of Your mitzvot, and safeq d'oraita l'humra ("in a case of doubt regarding a Torah mitzvah, take the more stringent option"), so if anything, I should be mahmir (strict) and follow the shev v'al ta'aseh ("sit and do nothing") approach and question you as Avraham did at Sodom, and not acquiesce as he did for the Aqeida. Look, G-d, I'm not a genius, so what do I know except to follow the examples You've recorded for me in Your Torah? I'm just trying to follow what You gave me.

Abortion and Child-Support: The Respective Prerogatives and Responsibilities of Men and Women

I've been wondering: if a woman has the power to control her own reproductive system and abort an embryo or fetus, then why is it that as soon as child-support comes into view, that suddenly she's only one of two parties, and the man is as responsible as her? If so, shouldn't he be able to veto her abortion? Alternatively, if she alone has the power of abortion, then she alone should have responsibility to pay for the child should she bear it to term. If the man cannot control what happens before birth, then he shouldn't be responsible for what happens after birth.

I would say that since abortion is the positive commission of a definite act, whereas lack of abortion is the default omission (שב ואל תעשה - "sit and do not act"), I'd say that lack of abortion is the default, and that to have an abortion requires special authority. If so, we have two possibilities in my opinion; either:

1. The woman has all the power and all the responsibility, and so she alone may abort, but she alone must pay financially for the child's upbringing, OR
2. The man and woman are viewed as two equally-responsible and complicit actors, and so both must pay for the child's upbringing, but at the same time, mutual and unanimous consent is required for abortion. Either one may abort the abortion, because refusal - i.e. lack of consent - on the part of either returns them to the basic, default state of absence of abortion.

My point is that you cannot have your cake and eat it too. You cannot give the women independence and sole responsibility when it suits her but make the man responsible when it suits her. That's tyranny. Either both are equal with power and responsibility, or the woman alone has power and responsibility. (I don't offer the possibility of the man alone having power and responsibility because he doesn't have a womb, and so to grant him alone power and responsibility over the womb is patently irrational and absurd.)

Rape and health-issues are of course something else, however. In cases of rape and threat to the woman's health, then the access to abortion must be absolute and sacrosanct, lodged solely with her and uninhibited. But here, I am discussing the result of consensual intercourse. In such a case, if you say the woman's body is her own and her reproductive faculties her own, then this must be absolute, and every stage of pregnancy - both before and after childbirth - must be considered hers and only hers. If she has absolute control over her body, then she also has absolute possession of the consequences which follow, viz. child-rearing and custody and support. But if the man must pay child-support, or if he is to have child-custody rights, then he has an equal part in the pre-childbirth stage, i.e. pregnancy itself and abortion.

"With great power comes great responsibility." You cannot say that a woman's body is her own unless you are willing to grant her not only prerogative but also responsibility. If she has the right to have sex with whomsoever she desires, and if her body is her own to use or dispose of or abstain from using as she will desire, then she must receive not only authority and prerogative and choice, but even responsibility to bear the consequences. You cannot give her these only when they suit her, but give them to the man when this suits her as well. Either the woman is absolutely in control of all authority and responsibility, or she shares both authority and responsibility with the man. If the man must pay for the born child, then this is tantamount to saying the woman's body is not only hers but his as well.

A woman's body belongs to her and to her alone. By the laws of nature, she and she alone is the gatekeeper to her own orifices. If she alone has the power to authorize sexual intercourse with her, and she alone has the power to authorize abortion, then she alone should have to bear the consequences of all this. For the man to be required to pay child-support is tantamount to saying that he owns a portion of the woman's body, which you may accept or reject according to your notions of egalitarianism and women's rights. My point is that everything must be consistent. But I personally prefer that the man lack all authority and responsibility, because this would thereby declare that a woman's body is hers and hers alone, whereas granting the man both power and responsibility would declare that the man is an equal shareholder in the woman's body, which is repugnant to me. But I would prefer even such a repugnant situation to what we have today, because even if this is morally repugnant, it is at least consistent and fair.

You might say that the man is half the cause of the baby's existence, and that therefore, he should pay half the consequences, i.e. child-support. This argument thankfully avoids saying that the woman's body partially belongs to the man. But even so, if we say that the product of sex is half the man's and that he is responsible to pay for half, then we should say that he holds half the authority to authorize an abortion, meaning that both his and her consents are both required - unanimously - in order to allow abortion. Again: authority on the one hand and responsibility on the other must be equal. If the man is equal to the woman in paying for the baby after delivery, then he should be equal to the woman in what happens to the baby before delivery.

I insist that the woman's body is her own, and that she ought to bear everything, both authority and responsibility. If she wishes otherwise, then she must sign a contract with the man stipulating conditions for the use of her orifices. If she insists he pay child-support, then there should be a contract signed by him declaring so. Say, that sounds a lot like marriage!

----------

One friend of mine, T. H., had a good reply to me:

Yeah, I also don't really get the question here. I'm not saying I accept the theory but it's internally coherent and it goes like this: Every man and woman has inherent responsibility for any children which he or she creates. He or she does not, however, have responsibility to or power over fetuses that bear his or her genetic material, as fetuses are not legal entities and therefore have no rights. Therefore, the only relevant right is the right of the woman to her body, which enables her to abort at will. Once the child enters the world, both parents assume full responsibility.

The key 'discriminatory' difference is that the man's ability to prevent the birth of the child, and thus to prevent his responsibilities from kicking in, is more limited than that of the woman. In essence, it exists only up to the point that he chooses to risk impregnation and then the question is out of his hands. The woman, on the other hand, continues to hold veto power over the birth of the child (and thus the duties she will bear thereafter). While perhaps this could be seen as unfair, it seems to logically result from biological differentiation. Morally speaking, the man chose to accept the risk of creating the child and the child is proximately caused by his actions, so I don't see a problem with assigning him duties just because there was another party who could have prevented the child but chose not to.

Or in 25 words or less, it's a bit of a raw deal, but he chose to knock her up.

I replied to her,

T[...], your view is completely logical and fair as far as it goes. You're right that perhaps nature is dictating our civil laws; women possess their wombs and so they alone exercise authority over them, but both men and women result in children being born, and so both have responsibility. This is indeed internally consistent.

But here's where we begin to see a problem:

Imagine the man is willing to have an abortion or to give the child up for adoption, thereby freeing himself (and the woman, by coincidence) from responsibility. The man has declared that he has no interest in maintaining a stake in this child, and he is willing to ensure it goes on to someone else who will in fact care for the baby. (Whether G-d in heaven or an adoptive parent.) If the man simply wanted to dump the child on a curb, then this would of course be invalid and unjust, but here, he actually does want to do something just and fair, and avoid his responsibility in a conscientious manner.

But the woman can then veto all this and insist that she wants to keep the baby - which is of course a reasonable desire, don't get me wrong - and that she insists the man help pay for the child. The man was willing to put the baby up for adoption and ensure it was well paid-for by someone else, but now the woman chooses to keep the baby for herself and yet force him to pay for it!

It is the above scenario which I find especially tyrannical, and which inspired my thinking on this entire subject in the first place. It is fundamentally unjust, I believe, for the woman to be able to coerce the man in this way. (Of course, it could also conceivably happen in reverse, with the man wanting to keep the baby and the woman wanting to put it up for adoption, and the man seeking child-support from the woman.)

I believe the above scenario adequately points out the hidden injustice in the present system. That's why I believe we should instead grant ALL power and ALL responsibility to the woman, so that she alone may choose whether to abort or put up for adoption or retain the baby, and she alone must bear the financial burden of whatever decision she makes.

Of course, women would be free to force any sexual partners to sign contracts with them. I see no reason why a woman should not present her partner with a written legal contract stipulating terms regarding any pregnancies to ensue.

Tired of Illiberal Modern Orthodox Rabbis

I really don't understand it; of all people, I'd expect Modern Orthodox individuals to be liberal, non-statist, and advocates of morality over the prerogatives of abused power and "might makes right". But alas...

The following are some brief comments of mine to The Jewish State, Religious Zionism, And The Limits Of Dissent by Rabbi Nathaniel Helfgot:

(Quotations of Rabbi Helfgot's begin ">>>".)

>>>This thought comes to mind as one considers the troubling instances (so far, thankfully, few in number) of religious soldiers in the IDF who have expressed public political statements while in uniform indicating that they will refuse orders issued by their commanders and the government to evacuate any Jewish communities in Judea and Samaria.

So now we’re criticizing IDF soldiers who both (1) hold by a democratic political theory, and (2) keep ein shaliah b’davar `averah? (Ein shaliah b’davar `averah is the Talmud's phrase for the command to disobey illegal orders, literally "there is no proxy in the case of sin", meaning you cannot say, "I was only a messenger (proxy) who was following orders", if those orders were the commission of a sin.) They’re obeying both the Torah and modern Western democracy, and this you bemoan?

As Benjamin Franklin and Thomas Jefferson both said,

Rebellion to tyrants is obedience to G-d.

As Martin Luther King, Jr. said,

One may well ask: ‘How can you advocate breaking some laws and obeying others?’ The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

And here, of course, the Talmud – saying ein shaliah b’davar `averah – agrees with the democratic concept of the rule-of-law, the idea that the government is accountable to the same moral laws as its citizens are, and that the citizens may call the government to account. But no, Rabbi Helfgot would have Jewish soldiers disobey both Judaism AND democracy together at once. For shame!

>>>These [situations where the IDF code of ethics mandates disobedience] refer to "blatantly illegal orders" such as a command to wantonly murder unarmed civilians. The situations that are being discussed in our context are clearly not such a case.

Speak for yourself. For yourself, expulsions from the West Bank are clearly not equivalent to murder, but for religious soldiers, this is not the case. For a religious soldier who believes in G-d, the same G-d who commanded not to murder an innocent Arab also commanded him not to steal land from a Jew. If you command the Jewish soldier to disobey G-d in one case, he will not understand why he cannot therefore disobey G-d in other cases as well. In Biblical times, the man who violated Shabbat – which testified to G-d’s having created the world – was liable to murder as well, for the same G-d who commanded Shabbat also commanded not to murder, and anyone who is liable to violate one is liable to violate the other (especially since Shabbat was a memorial to G-d Himself, and violation of Shabbat was itself nearly tantamount to committing idolatry, as Rabbis Immanuel Jakobovits and Shalom Carmy have noted). So too, the religious soldier who is told to disobey G-d today and evict Jews from their homes, will reason that similarly, he may disobey G-d tomorrow and murder innocent Arab civilians.

The Torah is one and indivisible. If you may obey the government and disobey G-d today, then why not tomorrow as well? As Rabbi S. R. Hirsch wryly notes, if you violate the fourth commandment (to keep Shabbat), then your son will violate the fifth (to honor his parents).

>>> ... that in the absence of a formal king, the power of kingship and sovereignty devolves back to the Jewish people as a whole.

So let us quote the Rambam, Hilkhot Melakhim 3:9:

...And it goes without saying that if the king decrees that a mitzvah should be violated, that his words should not be heeded.

>>> ... one would hope that rule of law would prevail.

Actually, the rule-of-law means that the government is accountable to uphold the law. The rule-of-law is the concept that lex, rex, that the law is king, instead of rex, lex, that the king is law. The rule-of-law is what empowers citizens to call their government to account when it fails to uphold the law. The rule-of-law empowers citizens and hamstrings the government, not the other way around.To quote Thomas Paine’s "Common Sense", one of the most influential political tracts in colonial America, expressing the best of federal and social-contract thinking:

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 Brute 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 as 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.

In other words, the rule-of-law limits the government and empowers the people, not vice versa. As Henry David Thoreau’s “Civil Disobedience” (which both Martin Luther King, Jr. and Mahatma Ghandi alike paid great homage to),

Witness the present Mexican war, the work of comparatively a few individuals using the standing government as their tool; for in the outset, the people would not have consented to this measure.

>>> Ultimately, however it is the democratically elected Israeli government that is the legal sovereign with the authority to make these difficult and wrenching calls.

Yes, the government is duly-elected, and yes, it was democratically-chosen by the people. But as Samuel Adams says in "The Rights of the Colonists", following John Locke,

All men have a right to remain in a state of nature [ = absence of government] as long as they please; and in case of intolerable oppression, civil or religious, to leave the society [ = government] they belong to, and enter into another. When men enter into society [ = government], it is by voluntary consent; and they have a right to demand and insist upon the performance of such conditions and previous limitations as form an equitable original compact [ = constitution, contract]. Every natural right not expressly given up, or, from the nature of a social compact [ = constitution, contract], necessarily ceded, remains.

In other words: men freely enter into a government, and they can stipulate the terms of that government’s rule. When the people are not satisfied with that government, they may leave it. The "Declaration of Independence" declares about as much, saying,

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends [the end being the securing of the right, this being the purpose for which the people instituted that government in the first place and gave it their consent and allegiance], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Rabbi Helfgot's views are thus fundamentally illiberal, and are opposed not only to Jewish tradition, but even to modern Western democratic theory. For some more Jewish and democratic views on civil disobedience, see
Dr. Yoram Hazony, "The Jewish Origins of the Western Disobedience Tradition" Azure No. 4 Summer 5758 / 1998, here.
Rabbi Professor David Golinkin, "The Jewish Attitude Towards Non-Violent Protest and Civil Disobedience", here.

Regarding Rabbi Helfgot's words on democratic election ("Ultimately, however it is the democratically elected Israeli government that is the legal sovereign with the authority..."), Hazony makes an especially poignant point:

What is the Jewish disobedience teaching which has had such a fantastic impact on the ideas of the Western democracies? It is my intention here to review those most fundamental things which many have apparently forgotten: That unqualified obedience to the state is the fundamentally pagan idea, the essential political teaching of the great idolatries of antiquity; that freedom of conscience and disobedience to unjust law are the core of the biblical political teaching, which arose as a rejection of pagan statism; and that the adoption of the Jewish disobedience teaching by the West—and the victory of the biblical principle of obedience to right over the pagan principle of obedience to the state—represents the highest triumph of the Jewish political idea in history, a triumph which allowed the West, the great bearer of this idea before humanity, to defeat the pagan Nazi state, not only militarily, but on the battlefield of ideas as well.

...

Mankind has seen no end of attempts to render human laws inviolable in principle, usually on the grounds that one process or another has produced them: There have been those who claimed that the laws of the state were legitimate and binding because the earthly ruler was a god; those who claimed that the laws of the state were legitimate and binding because the ruler was appointed by God; and those who claimed that the laws of the state were legitimate and binding because the ruler was a hereditary monarch. Today it is the fashion to claim that the laws of the state are legitimate and binding because its leaders were chosen in democratic elections. And while democratic governments may indeed be the best steward of right that men have yet devised, this fact no more makes them the final arbiter of right than did the similar popularity of now outmoded political regimes in ages past. Even in a democratic age, it remains the case that right action cannot be deduced solely from the decisions of the state. All governments are, after all, composed of men. And as such, they are bound to err, and sometimes terribly so.

Qidushe b'Tenai - Conditional Marriages to Avert the Agunah Situation

From Rabbi Emanuel Rackman's One Man's Judaism, (revised second edition; Gefen: 2000, page 403):

What pained me, however, was the fact that Rabbi [Yehiel Yaakov] Weinberg was very much in favor of relief for agunot by annulment, and for those about to marry, by the use of contracts for conditional marriages, which was the proposal of one of his disciples – if not his most famous one – the late Rabbi Eliezer Berkowitz [sic - should be vitz]. Rabbi Weinberg hoped other well-known scholars would agree with him; his modesty prevented him from going it alone.

His view would not only have solved the problems of these women whose husbands refuse them a religious divorce, but with Rabbi Berkowitz's proposals would have terminated altogether the incidence of the problem all over the world.

What a tragedy this is. Yet happily I learned that what he approved was followed in practice by many rabbis all over the world, and especially Sephardi rabbis, whose rabbinate was always more liberal in this area than Ashkenazi ones.

Yet why cannot modern agunot claim to be accorded Sephardi liberalism? Does the Torah or their ketubot bind them to the stringency of Ashkenazim? The stringency of most Orthodox rabbis is only alienating Jews and giving the Torah tradition a bad image. It is also decisive [sic?: divisive?].

May the memory of Rabbi Weinberg in the Yeshiva world he loved inspire penitence and induce much change of heart there.

But who were these Sephardim? I quote Rabbi Dr. Marc D. Angel, Voices in Exile: A Study in Sephardic Intellectual History:

I've also seen that Rabbi Dr. Michael J. Broyde, a student of Rabbi Rackman's (see On the Death of a Giant, obituary of Rabbi Rackman by Rabbi Broyde), also supports Rabbi Berkovits's proposal, citing in the name of Rabbi Weinberg. See "An Unsuccessful Defense of the Beit Din of Rabbi Emanuel Rackman: The Tears of The Oppressed by Aviad Hacohen" (review essay by Rabbi Broyde of Aviad Hacohen's The Tears of the Opressed). This essay is Rabbi Broyde's refuting a different (more controversial and ambitious) proposal of Rabbi Rackman's, before Rabbi Broyde offers his own proposal, namely the same Rabbi Weinberg-Berkovits proposal put forth above by Rabbi Rackman. (See also the follow-up response, with replies from the author of The Tears of the Oppressed, at http://www.edah.org/backend/JournalArticle/5_1_Continued.pdf)

To quote Rabbi Broyde:

There are many valid reasons why such a proposal has never been forthcoming and endorsed by significant segments of the rabbinic community, and I have elsewhere explained them.[50] Were such a proposal to be crafted and accepted by mainstream halakhic authorities, it would likely be formulated, I think, to combine three different mechanisms into a single document, and in a way that if any of them were halakhically valid, then the resulting get would be valid.[51] The three elements would be conditions applied to the marriage (tenai be-kiddushin),[52] authorization (harsha’ah) to give a get,[53] and broad communal ordinance to void a marriage (taqqanat haqahal).[54] Each of these avenues has significant halakhic support of both classical and modern posqim; consequently, a real case could be made that a single document that successfully incorporates all three elements would survive any be-di-`avad halakhic criticism, and the get issued as a result of such a document would be valid according to most authorities. Indeed, in the twentieth century alone, one can cite a list of luminary rabbinic authorities who have validated such agreements in one form or another, including Rabbi Yosef Eliyahu Henkin, Rabbi Isaac Herzog, Rabbi Jechiel Jacob Weinberg, and Rabbi Ovadia Yosef, as well as many others.[55] And no less an authority than Rama approved of conditional marriages (although maybe only in yibbum situations).[56]

[50] 50See Michael Broyde, Marriage, Divorce and the Abandoned Wife in Jewish Law: A Conceptual Approach to the Agunah Problems in America (Ktav, 2001).

[51] A suggested text for a document along these lines (shelo le-halakhah) can be found in Appendix A.

[52] See Rama, Even ha-Ezer 157:3; Terumat Ha-Deshen 223 and Bach, Even ha-Ezer 157. See also Teshuvot Rabbi Akiva Eiger 93; Chatam Sofer, Even ha-Ezer 111; Noda Be-Yehudah, = Even ha-Ezer 1:56 and Arukh ha-Shulchan, Even ha-Ezer 157:15, all of whom agree with Rama.

[53] Rabbi Yosef Eliyahu Henkin, Perushai Ibra 110-117. The section on sexuality prior to divorce not voiding the authorization can be found in Rabbi Yitzchak Isaac Herzog, Hechal Yitzchak, 2:41.

[54] Teshuvot Rashba 185, 1163. See Maharam Alshaker 48 who explicitly adopts this view. See also, Rabbi Ovadia Yosef, “Kol ha-Meqaddesh Ada`ata de-Rabbanan Meqaddesh,” Sinai 48 (1961), 186-193. See also Rabbi Jechiel Jacob Weinberg in Seridei Aish 1:90, 1:168 and Rabbi Weinberg’s introduction to Eliezer Berkowitz, Tenai be-Nisuin ve-Get.

[55] See above, notes 53 and 54.

[56] See Breitowitz, above note 49, at 59. [ = For an excellent survey, see Irving Breitowitz, Between Civil and Religious Law: The Plight of the Agunah in American Society (Greenwood Press, 1993).]

...

Appendix: Suggested Tripartite Document (Shelo le-Halakhah)

This document is to certify that on the [ordinal number] day of the month of [name of month], in the year [calendar year], in [location], [name of groom], the groom, and [name of bride], the bride, of their own free will and accord entered into the following agreement with respect to their intended marriage.

The groom made the following declaration to the bride under the huppah (wedding canopy):

“I will betroth and marry you according to the laws of Moses and the people of Israel, subject to the following conditions:

“If I return to live in our marital home with you present at least once every fifteen months until either you or I die, then our betrothal (kiddushin) and our marriage (nisu'in) shall remain valid and binding;

“But if I am absent from our joint marital home for fifteen months continuously for whatever reason, even by duress, then our betrothal (kiddushin) and our marriage (nisu'in) will have been null and void. Our conduct should be like unmarried people sharing a residence, and the blessings recited a nullity.

“I acknowledge that I have effected the above obligation by means of a qinyan (formal Jewish transaction) before a beit din hashuv (esteemed rabbinical court) as mandated by Jewish law. The above condition is made in accordance with the laws of the Torah, as derived from Numbers Chapter 32. Even a sexual relationship between us shall not void this condition. My wife shall be believed like one hundred witnesses to testify that I have never voided this condition.

“Should a Jewish divorce be required of me for whatever reason, I also appoint anyone who will see my signature on this form to act as scribe (sofer) to acquire pen, ink and feather for me and write a Get (a Jewish Document of Divorce), one or more, to divorce with it my wife, and he should write the Get lishmi, especially for me, ve-lishmah, especially for her, u'lesheim gerushin, and for the purpose of divorce. I herewith command any two witnesses who see my signature on this form to act as witnesses to the bill of divorce (Get) to sign as witnesses on the Get that the above-mentioned scribe will write. They should sign lishmi, especially for me, ve-lishmah, and especially for her, u'leshem gerushin, and for the purpose of divorce, to divorce with it my above mentioned wife. I herewith command anyone who sees my signature on this form to act as my agent to take the Get, after it is written and signed, and be my messenger to give it into the hands of my wife whenever he so wishes. His hand should be like my hand, his giving like my giving, his mouth like my mouth, and I give him authority to appoint another messenger in his place, and that messenger another messenger, one messenger after another, even to one hundred messengers, of his own free will, even to appoint someone not is his presence, until the Get, the document of divorce, reaches her hands, and as soon as the Get reaches her hands from his hands or from his messenger's hands, or from his messenger's messenger's hands, even to one hundred messengers, she shall be divorced by it from me and be allowed to any man. My permission is given to the rabbi in charge to make such changes in the writings of the names as he sees fit. I undertake with all seriousness, even with an oath of the Torah, that I will not nullify the effectiveness of the Get, the Jewish Document of Divorce, to divorce my wife or the power of the above-mentioned messenger to deliver it to my wife. And I nullify any kind of a statement that I may have made which could hurt the effectiveness of the Get to divorce my wife or the effectiveness of the above-mentioned messenger to deliver it to my wife. Even if my wife and I should continue to reside together after the providing of this authorization to divorce her, and even if we have a sexual relationship after this authorization to write, sign and deliver a Get, such a sexual relationship should not be construed as implicitly or explicitly nullifying this authorization to write, sign and deliver a Get. My wife shall be believed like one hundred witnesses to testify that I have not nullified my authorization to appoint the scribe to write the Get on my behalf, or the witnesses to sign the Get on my behalf or any messenger to deliver it to the hand of my wife.

“Furthermore I recognize that my wife has agreed to marry me only with the understanding that should she wish to be divorced that I would give a Get within fifteen months of her requesting such a bill of divorce. I recognize that should I decline to give such a Get for whatever reason (even a reason based on my duress), I have violated the agreement that is the predicate for our marriage, and I consent for our marriage to be labeled a nullity based on the decree of our community that all marriages ought to end with a Get given within fifteen months. We both belong to a community where the majority of the great rabbis and the batei din of that community have authorized the use of annulment in cases like this, and I accept the communal decree on this matter as binding upon me.

“Furthermore, should this agreement be deemed ineffective as a matter of halakhah (Jewish law) at any time, we would not have married at all.

“I announce now that no witness, including any future testimony I might provide, shall be believed to nullify this document or any provision herein.”

Signature of Groom _________________________

The bride replied to the groom:
“I consent to the conditions you have made and I accept the qinyan (formal Jewish transaction) in front of the beit din hashuv (esteemed rabbinical court).”

Signature of Bride _________________________

We the undersigned duly constituted beit din witnessed the oral statements and signatures of the groom and bride.
Rabbi ____________________________
Witness 1 ________________________
Witness 2 ________________________

Notice a few things about that prenuptial:

1. It says,

   We both belong to a community where the majority of the great rabbis and the batei din of that community have authorized the use of annulment in cases like this, and I accept the communal decree on this matter as binding upon me.

   That's the problem with the prenuptial: no matter how kosher your divorce is, if the community rejects it...sigh...
2. The conditions all result in the annulment of the Jewish divorce and delivery of the get, but say nothing about apportionment of property, or the like. Apparently, this prenuptial would allow you both to remarry while still allowing you to continue negotiating financial aspects of the divorce even after you have both begun living with other marital partners.
3. It says,

   Furthermore I recognize that my wife has agreed to marry me only with the understanding that should she wish to be divorced that I would give a Get within fifteen months of her requesting such a bill of divorce. I recognize that should I decline to give such a Get for whatever reason...

   The problem is that it says nothing about the wife being obligated to accept the get if the man wants the divorce. According to the taqana of Rabbenu Gershom, the woman must accept the get for the get to work, and therefore, a recalcitrant wife could chain her husband and make him an agun if she refused to receive the get. Hopefully, the condition about the marriage being void after fifteen months of non-cohabitation will suffice to protect men from recalcitrant wives, but still, I'd like to see a condition like,

   Furthermore my wife recognizes that she has agreed to marry me only with the understanding that should I wish to be divorced that she would accept a Get within fifteen months of my delivering such a bill of divorce. She recognizes that should she decline to receive such a Get for whatever reason...

The Utilitarian Threat to the Freedom of Speech

"Kagan: Speech is free if government decides it has more value than 'societal costs'"
By: Mark Tapscott:

Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs."
--- Elena Kagan (Nominatee of President Obama's for the Supreme Court)

This is why I'm a libertarian. Kagan said the above regarding a statute that made it unlawful to depict animal cruelty. According to Kagan, the First Amendment does not protect free speech because it is simply the right thing to do, period, because men "are endowed by their Creator with certain unalienable Rights". The previous would be deontological reasoning, based on what is inherently good and just, irrespective of the consequences. Rather, according to her, the First Amendment protects only those kinds of speech which the government wants to have protected. For her, the argument is purely utilitarian; free speech is protected as long as the government considers that speech valuable. But as soon as it decides that a certain kind of speech is not worth protecting, then it will no longer be protected.

But since the First Amendment is a limitation on the government (rather than on the individual citizen), i.e. specifying what the government must do and may not do, it is difficult to tell what value such a utilitarian (rather than deontological) right to free speech has. Essentially, she reads the First Amendment as saying, "The government is prohibited from restricting any speech unless the government deems it necessary (for the sake of society, etc.) to restrict that speech." Is this anything but a carte blanche?

Note that this has nothing to do with the famous example of yelling "fire" in a crowded theater, or making verbal threats to another individual, etc. Such are categorized as posing a "clear and present danger". At that point, the speech comes to resemble not so much speech as concrete action. Expressing an opinion that someone ought to die, and actually killing him, are obviously different in kind. Voicing an intention to kill someone is somewhere between the two, being somewhat speech-like and somewhat action-like. What the doctrine of "clear and present danger" says is that voicing an intention to kill someone is more similar to actually killing him than it is to expressing a vague and abstract opinion. Likewise, yelling "fire" in a theater actually causes material harm to others, whereas merely saying "I think there ought to be a fire here in this theater" does not pose a harm to others. According to Schenck v. United States (1919),

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. 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.

To make this point even more clear, the decision in Brandenburg v. Ohio (1969) said,

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

But people such as Kagan would prefer to ban any speech which is deemed harmful to society, based on who-knows-what kind of standards. Similarly, many Republicans wish to ban flag-burning, deeming it morally offensive, even though such burning poses no actual threat to anyone, i.e. even though it does not pose a "clear and present danger" nor does it incite to "imminent lawless action".

Cf. "Attack of the Utility Monsters: The New Threats to Free Speech" by Dr. Jason Kuznicki, where the author shows that the logic behind proposed hate-speech legislation and flag-burning legislation is that the pleasure of the racist or flag-burner is less than the pain of the recipient. This is a doubtful assumption - for who says the racist isn't getting more pleasure than his recipient is pain, and how do we measure pain and pleasure? - but more importantly, it is difficult to tell how the government has jurisdiction to regulate pain and pleasure anyway. And if burning a flag or spouting racist epithets is indeed offensive and causes pain, what if someone merely objectively reports on the racism or flag-burning of another? As Dr. Kuznicki points out, the audience will feel the same amount of pain and loss whether it is a racist spouting epithets or a newspaper reporting the racist epithets of another, and an audience will feel the same pain whether seeing someone burn a flag or seeing someone else objectively and dispassionately report the flag-burning performed by another. So where does it end? Would the newspaper be prohibited to air and article dispassionately discussing racism and flag-burning?

However, it may be unfair to criticize Kagan herself. According to "Kagan's First Amendment record causes concern" by David L. Hudson Jr.,

Kagan’s job as solicitor general is to advance the legal positions of the U.S. government, which often means defending the constitutionality of federal statutes from First Amendment challenge.

First Amendment advocates should consider the arguments Kagan advanced as solicitor general, but shouldn’t assume that she would hold such positions as a justice. The roles of advocate and judge are quite different.

"It's difficult, if not unfair, to judge someone on the basis of the positions he or she took as an advocate," said Robert Richards, director of the Pennsylvania Center for the First Amendment Center. "All attorneys are required to represent their sides zealously. It is more instructive to look at potential justices' speeches and writings to get a glimpse into their own ideologies, temperament and philosophy of jurisprudence."

In other words, Kagan was almost literally playing the "devil's advocate", justifying her client - the United States government, in this case - regardless of whether she agreed or disagreed with her own client. A murderer's attorney must defend the murderer, but this doesn't mean the attorney condones murder, obviously. Perhaps Kagan herself, then, doesn't have such objectionable views on the freedom of speech. Perhaps time will tell?

Women's Ordination, of Pulpits and Titles

In Setting The Record Straight: Rav Schachter's Comments At The RCA Convention by Rabbi Kenneth Brander, on the Hirhurim blog (I thank my friend Yitz Ritz for showing me this post), we read,

[H]e acknowledged that since the YU semichah program ordains many who are not going into the pulpit (education, chaplaincy, kashrut, kiruv, or professional fields outside the context of Jewish communal work) the Rav [Soloveitchik] was not concerned about the issues [ = prohibitions] of serarah [authority] for geirim [converts] entering the rabbinical school. Rav Schachter felt this was different for women where the entire purpose of ordination is to provide them with the credentials to be "pulpit rabbis".

In other words, for geirim, the prohibition for them to wield serarah is ignored and they are granted semikhah because geirim who are rabbis can serve in offices beside the pulpit and thus circumvent the prohibition of serarah. By contrast, according to Rabbi Schachter, women will occupy pulpits and only pulpits, and that is all they will do with their semikhah, and so we cannot grant semikhah.

But this is nonsense. Women want the title so that they can do whatever male rabbis do, whether that's to occupy a pulpit or to write books with the word "rabbi" on the cover. Women do not want the title simply so that they can occupy pulpits. After all, Esther Jungreis and Lynne Kaye are doing just fine with their pulpits even without formal titles. If all women wanted to do was occupy pulpits, then they could go right ahead even without formal ordination. I'd further note that the Hafetz Haim did not have formal ordination. Conversely, men can hold the title of "rabbi" irrespective of their occupations. The natural presumption is that anyone wishing for women's ordination is asking for the same ability. If the RCA thinks the argument is otherwise, the burden of proof is on them, and yet I've seen no such proof from them. Therefore, the natural presumption remains that the controversy is over women possessing the title even without occupying a pulpit.

The fact that the RCA said nothing against Esther Jungreis or Lynne Kaye - both of whom do occupy pulpits - but attacked Sara Hurewitz shows that the RCA's issue is not with pulpits per se, but purely with the title. The RCA couldn't care less what women do, as long as they don't have the title.

In short:
(1) Women have been agitating for the title of "rabbi" not so that they can occupy pulpits, but so that they can have the same title for men, and get the same "pay" (the honor of a title) for the same work. But what that work is, and whether it includes pulpits, is an entirely different question. Whether or not women will occupy pulpits, this is entirely distinct from the question of their possessing the title of "rabbi".
(2) As I said, whether or not women can occupy pulpits is separate from whether they are called "rabbi". Esther Jungreis and Lynne Kaye do not possess the title of "rabbi", and both are nevertheless occupying pulpits. The RCA seems to have no objection.

We thus see from the RCA's own actions that it does not mind women's occupying pulpits, but it does mind their being called "rabbi" even if they do not occupy pulpits. If the RCA had wanted to, they could have said that women may not occupy pulpits but that they may nevertheless hold the title of "rabbi" (or its equivalent) for non-pulpit purposes, just as many men already do today. But since the RCA did not do that, what that means is that the RCA is opposed to far more than just women holding pulpits. They are opposed to women carrying the title itself, irrespective of what they do with it. Ironically, the RCA has no problem with Esther Jungreis acting like a pulpit-rabbi, and yet it objects to a woman possessing the title even without acting like a pulpit-rabbi. If anything, the RCA seems to be more opposed to the title itself than to the office of pulpit; if anything, the RCA is more opposed to a woman with the title of "Rabbi" who works in business or secular education than a woman with the title of "Dr." or "Ms." who gives sermons and teaches Torah. So the RCA's own actions indicate they have no problem with women occupying pulpits as long as they lack the title, and that conversely, they oppose women having the title regardless of whether they occupy pulpits.

One aside: my entire post has been assuming, for the sake of argument, that women are in fact prohibited to wield authority, to possess serarah, but that they can still do other rabbinic tasks, exactly as with geirim. But the truth is that both geirim and women can wield serarah, if only the people democratically accept them and democratically wave the prohibition of serarah. Rabbi Benzion Uziel shows this in his teshuva on women's suffrage. It seems to me that this is because Judaism is a democracy. According to the Torah, a communal authority can wield power only if the people accept him. In times past, people were racist and sexist and rejected women and converts. They were not justified in this, but reality was reality and fact was fact, and if authority requires democratic consent, then women and converts were ineligible. Thank G-d, we have evolved since that time, and now that we accept women and converts as the equal citizens they in fact are, we are now ready to democratically accept them, all things being equal, i.e. assuming they are otherwise equal to the male non-converts they are running against.

Judaism, Democracy, and Health-Care Reform: Part 2

This post is a sequel to a previous one, here.

To that previous post, one friend replied, in a discussion on Facebook,

I've never been fond of the freedom to starve, and have been unimpressed with the majesty of the law which forbids rich and poor alike to sleep beneath bridges.

I replied,

[B]ut if you force the rich to provide for the poor - except in a small self-contained community with contractual by-laws as conditions for living there - how is it anything but a mitzvah ha-ba'ah b`averah [i.e. a sin done via a mitzvah, nullifying the value of the mitzvah]?

Another friend then replied there on Facebook,

The Torah requires that the rich provide for the poor, and allows communal authorities to force the rich to pay for communal needs. Do you have a problem with that?

I replied,

The Torah requires that the rich provide for the poor... --- Yes it does. The rich to pay for the poor by their own volition. The rich - not the government - have the mitzvah to provide for the poor.

and allows communal authorities to force the rich to pay ---- Yes, with emphasis on "communal". A traditional Jewish community - as Professor Menahem Friedman argues ad nauseum in his writings - was geographically-defined, including all of the Jewish individuals who happened to fall within its geographic domain, irrespective of ideology or observance. Such a Jewish community - otherwise known as a kehillah - was governed by parnasim, laymen appointed by the community's residents to govern the community as proxies, shelihim. These parnasim had only the authority granted them by the residents - and not one iota more - and they could be removed at will by the citizens, especially if they were considered to be derelict in their responsibilities toward the community. Rabbis were hired on contract, and they had only the abilities stipulated in their contracts. At the termination of the contract, the citizens could decide not to re-hire the rabbi, and of course, if he violated his contract at any time, he could be dealt with according to the terms of the contract touching on that contingency. Dayanim too were appointed by the citizens of the locale, with similar contractual obligations.

In short, what we see is that in a traditional Jewish community, the community was a tightly-interwoven entity, in that it constituted a geographic reality of people living and working together, an objective society with great ontological significance, hardly artificial at all. Furthermore, the officers of that community - rabbi, dayanim, and parnasim - all had contractual obligations towards the governed, and were held accountable to those terms.

And irrespective of those contracts, I invite you to imagine for a moment what would happen were that rabbi or those dayanim or those parnasim to abuse their power, even in a way not forbidden by their contracts: they'd face a revolt by the people. If the dayanim made a ruling which was widely seen as unjust, for example, then the people would simply ignore him.

On top of all that, if anyone disliked his community or its leaders - or its residents and his neighbors, for that matter - he could relocate himself to a different community. Thus, John Locke declares that a government may assume tacit consent of its citizens, because it can figure that if the citizens haven't moved, they must like the government's policies. But where the citizens cannot move, this assumption cannot be made. For example, the entirety of the American colonists were unable to leave the thirteen British colonies, and thus, the British could not assume tacit tacit, and Locke's theory did not apply in that case.

Those conditions are all taken for granted by the halakhah. Given such a community, then one may certainly coerce the rich to pay for the poor. Given that the community is a social reality, a real objective entity, and given that one's living there entails obligations to one's neighbors and given that a contractual obligation imposed on all residents is adherence to the minhag ha-maqom [i.e. local communal custom], therefore, one may coerce the rich.

Even then, however, a community was reluctant to use its powers. I quote Rabbi Dr. Marc D. Angel's book The Jews of Rhodes, p. 26:

One of the persistent and complex problems associated with haskamoth [communal ordinances, similar to taqanoth, except passed for social or economic reasons rather than religious ones, but with the same binding nature of a religious law as taqanoth] was the question of whether the majority the right to pass an ordinance over the objection of a dissenting minority of the community. Does the majority rule, or is unanimity imperative? Over the centuries this question evoked considerable rabbinic discussion.

It seems the Jews of Rhodes resolved this dilemma by distinguishing between different types of haskamoth. In matters involving an improvement that was needed for the general community, a majority was sufficient to enact a haskamah. But in matters involving taxation, a unanimous decision was required in order to protect individuals from a barrage of levies imposed on them by the majority of the community. In the final analysis, the situation surrounding each haskamah had to be carefully evaluated before determining whether a majority or unanimity was required for its adoption.

Rabbinic law allowed for the institution of herem, excommunication, in order to give communities power to enforce their laws. Yet, herem was more a threat than an actual procedure.

We see that the Jews of Rhodes were very reluctant to coerce the minority to pay taxes for the benefit of the poor, even given all that I have discussed above, regarding the nature of a kehillah. It seems the Jews of Rhodes did not want to be navalim birshut ha-torah ["scoundrels with the license of the Torah", according to the RambaN] and take advantage of their technical right to coerce the rich even for the sake of the poor.

Certainly, in America, the above conditions are not met. The entirety of the fifty states of America are not a geographically-defined self-contained community, and so one cannot speak of a minhag ha-maqom [i.e. communal custom] demanding that the rich abide by the communal by-laws demanding support for the poor.

One does not have the ability to relocate if he is displeased, because the federal government rules all fifty states equally. Were each state independent, then each state could assume tacit consent to its laws by all citizens, but this is not the case today, because the federal government has usurped so many prerogatives of the states.

And the people do not have the ability to rise in revolt and ignore the rulings of the government when they become tyrannical. To allow such a revolt, the Bill of Rights included the right to bear arms, guaranteeing that the government did not have a monopoly on force, but today, the people have been stripped of their weapons at the same time that the government has amassed its own.

[Y]ou are citing a halakhah that quite simply, does not apply anymore, at least not in the society that exists today. If you wish for that halakhah to apply again, and allow for coercion of the rich, then we must strengthen local communities and states at the expense of the federal government, and we must strengthen the enforcement of the Second Amendment.

Divorce – Men Hold All the Cards, or Rav Kook and the Progression of Knowledge and Evolution of Judaism in History

At In the Pink, there is an excellent post, Divorce – Men Hold All the Cards. I quote it in full:

I’m FFB [frum from birth], and lately have been analyzing Judaism’s approach and views of men and women. I used to believe that male vs female was just that we have DIFFERENT roles, not that men are placed more on a pedestal. However, recently, my friend went through a divorce and there were many issues where the [soon to be ex-husband] flexed his male muscles regarding holding back a Get [religious divorce]. It took her over 2 years to get it. Why is it that a man can keep a wife chained but not the other way around? Can someone please really explain this to me??

Rabbi Emanuel Rackman, in One Man’s Judaism explains, if I recall correctly, that quite simply, if the man is the one who must initiate the transaction to “purchase” a wife, then he must be the one to terminate the transaction as well.

I would personally explain this in Maimonidean / A. I. Kook fashion that when G-d gave the Torah, He had to give it in a way which man would understand, for “the Torah speaks in the language of men”. As Rabbi Rackman explains (ibid.), G-d chose to compromise wherever He could, and thus we see that the Torah grudgingly acknowledges and permits such things as polygamy, slavery, taking a woman captive in war (yafet toar), voluntary wars of conquest for spoils (milhemet reshut), etc.

Therefore, G-d also made men be in control of marriage, because that’s just the way things were back then.

But just as the Gemara says that yafet toar is a concession to ancient and primitive notions of morality, so too, says Rav Kook, it is our obligation to recover ourselves from other primitive notions which the Torah capitulated to.

Rabbi Rackman continues that only with idolatry did G-d refuse to compromise. But seeing as how we repeatedly sinned regarding idolatry, G-d wisely knew that in everything else, He had to compromise as much as He could, so that we’d at least keep some minimal acceptable standard, even if we didn’t keep His ideal.

What G-d did, however, was to encode into the Torah hints that would educate us. Luckily, over the centuries, we’ve learned that G-d’s ideal is not that men have multiple wives or slaves or take women captive in war, etc. According o Rav Kook, G-d teaches us through history, and G-d’s revelation was not only at Sinai, but also through the course of human history. At every point in history, says Rav Kook, we must examine the present zeitgeist and determine if it has anything to teach us about our interpretation of the Torah. We cannot change the Torah, but we can use history to help reveal things which were always in the Torah all along, but which we never realized before. Presumably, it is also not His ideal that men unilaterally control divorce. Therefore, many rabbis, especially Rabbis Yehiel Weinberg and Eliezer Berkovits, suggest prenuptial agreements stipulating contractual conditions for marriage, qidushei b’tenai. For example, the halakhah says you can say, “I marry you on condition that the sun shines tomorrow.” If the condition is met, you are married, but if it isn’t met, then retroactively, you were never married. The rabbis could all decide to refuse to marry anyone unless they stipulated something like, “I marry you on condition that you never make me an agunah.” Obviously, the terms would be more detailed than that, and more rigorous, but that’s the basic idea. What the RCA does instead is impose a financial penalty for recalcitrant husbands, which hopefully would achieve basically the same end.

I’ll note that Rav Kook is the father of the settler movement in Israel, and his influence is nothing less than extraordinary in Israel. His words may sound Conservative, but he is one of the most influential Orthodox rabbis in recent history.

For details on everything I’ve just said, see
(1) Rabbi Emanuel Rackman, One Man’s Judaism, here
(2) Professor Marc Shapiro’s article here, starting at “It is with regard to the issue of the mamzer that one can see manifested a point I have often thought about.”, until the end of the article.
(3) Dr. Pinchas Polonsky, Religious Zionism of Rav Kook, here

Let me add some more direct quotations from Rav Kook’s own writings:

Rav Kook’s letters, Igrot 478, (Translation from Tzvi Feldman, Rav A. Y. Kook – Selected Letters. Ma’aliot Publications of Yeshivat Birkat Moshe; Ma’aleh Adumim, Israel, 1986. pp. 17f.):

And if we find in the Torah certain things which other people think were based on the widely accepted notions of the distant past, but which are incompatible with the scientific knowledge of today, indeed, we do not know at all if today’s research is absolute truth, and even if it is true, certainly there is also some important and sacred objective for which certain matters [in the Torah] needed to be presented in the commonly accepted description and not the exact one, as is plain in the spiritual concepts and in certain foundations of practice, for “the Torah provided for man’s evil passions” or “to make [its words] intelligible” and upon all of them appears the living endearing divine wisdom.

Rav Kook’s Eder Hayakar, pp. 42-43 (Translation from Ben Zion Bokser, The Essential Writings of Abraham Isaac Kook (Amity House: Amity, New York, 1988.), p. 48, “Assyriology and the Bible”.):

As to the similarities in teaching [between the Torah and the Code of Hammurabi], it was already made clear in the days of Maimonides, and before him in the teachings of the Talmudic sages, that prophecy reckons with man’s nature, for it is its mission to raise his nature and his disposition by divine guidance, as is implied in the statement that “the commandments were only given so as to refine the nature of people” (Genesis Rabbah 44:1). Hence, whatever educational elements there were in before the giving of the Torah, which gained a following among the [Jewish] people and the world, if they only had a basis in morality and it was possible to raise them up to a high moral level – the Torah retained them.

From that above article of Professor Marc Shapiro’s, let me quote and translate three of Rav Kook’s statements:

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.

When natural morality (i.e. conscience) strengthens in the world – in whatever form – everyone is obligated to receive it into his ethos, from its source – i.e. its revelation in the world – and its details [of how this new notion of morality should affect observant Jews] will be explicated by the paths of the Torah. Then pure morality will arise into his hand, strong and purified.”

כל התורה הזאת של מלחמת רשות לא נאמרה כ”א לאנושיות שלא נגמרה בחינוך. … כל לב יבין על נקלה כי רק לאומה שלא באה לתכלית חינוך האנושי, או יחידים מהם, יהיה הכרח לדבר כנגד יצר הרע ע”י לקיחת יפת תואר בשביה באופן המדובר. ומזה נלמד שכשם שעלינו להתרומם מדין יפת תואר, כן נזכה להתרומם מעיקר החינוך של מלחמת רשות, ונכיר שכל כלי זיין אינו אלא לגנאי.

All these laws of voluntary wars of conquest for spoils (milhemet reshut) were given only for a mankind that had not progressed educationally. … Every heart will easily understand that only a nation that has not come to its conclusion of humanistic education – or individuals thereof – will require a concession to man’s carnal passions (yetzer hara), viz. taking a woman captive in war (yafet toar), as described in the Torah. And from this we will learn that just as we must rise beyond the law of yafet toar, so too we must rise beyond the educational principle of milhemet reshut, and we will learn that every tool of war is naught but disgrace.

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.

And if a question arises on some Torah law, that according to [new] ethical notions, it needs to be understand in another manner, then if indeed the Sanhedrin decides that this Torah law was said only regarding sociological conditions that are no longer extant, then surely they will find a source [for this new ethical notion] in the Torah.

According to RambaM, many of the mitzvot in the Torah are concessions to ancient pagan practices. As Professor Menachem Kellner notes in Maimonides' Confrontation With Mysticism, RambaM believes that had Avraham Avinu and the Jewish people lived somewhere else, where different pagan practices were the norm - say, if they were Navajo Indians - then the Torah would be different. G-d's ideals wouldn't change, but His response to man's life here on earth would be different. G-d's ideals are constant, but because He must communicate with man, His communication must change to fit man's life. Lo bashamayim hi.

Is it any wonder that RambaM's books were burned? And it's hilarious that the Haredim persecuted Rav Kook for his Zionism, when they could have found so much more.

*** Update: In this post, I was only addressing the fact that only the man has the power to initiate divorce. Anything else was beyond the purview of this post. However, a certain "Daniel Schwartz" here notes that according to the taqana of Rabbenu Gershom, a woman can refuse to accept a get (the Torah allows the man to unilaterally divorce her without her consent), and so she can also bind the man and make him an agun (masculine of agunah). My friend Jeff D. emailed me privately and told me that he himself is in exactly this situation at the present. All this was beyond the scope of my post, but it is worth pointing out briefly, all the same. Jeff pointed me to an article on Arutz Sheva showing that actually, there are more male agunim than female agunot! Also, I'd note that the same prenuptial contract that would protect women from men and becoming agunot could be expanded to protect men as well from women and becoming agunim (masculine of agunot).