In his Introduction to his Yad, his Compendium of Jewish law, Maimonides maintains that Halakhah is determined by the most reasoned, rational reading of the Oral Torah canonical library. This canon came to closure with the end of hora’ah, or Talmudic legislation, in the early 5th Century at the Babylonian academy of Rabina I and R. Ashi [bBava Metsi’a 86a]. Mr. Bennett’s position is based upon a rational reading of bYevamot 47a-b, where the following rules are memorialized: a kosher conversion minimally requires a rabbinical court of three religiously observant men to supervise the circumcision [for males], the conversion candidate’s acceptance of Halakhah as personally binding, and immersion in a kosher miqvah [the latter two apply both to women and men]. The conversion candidate is informed of some [i.e. not all] of the commandments. “Accepting the commandments” [qabbalat ‘0l malchut shamayim] does not mean that candidate agrees to be fully observant; it does mean that the new Jew consents to be governed by Jewish law. The Hebrew idiom should be rendered into English as “accepting the yoke of the commandments,” i.e. that the convert agrees to be bound by and accountable to all of the norms of Jewish law, the metaphor for which is “yoke.” And if the conversion court fails to inform the candidate of these details, and the candidate nevertheless accepts the yoke of the commandments, the conversion is still valid after the fact.
And once the conversion is ratified by a proper conversion court, which technically could include and consist of three religiously observant, non-rabbinic lay men, and the candidate does not observe Jewish law completely, or for that matter not at all, that conversion remains irrevocably kosher! Furthermore, at Pe’er ha-Dor n. 132, Maimonides advises a quickie pro forma conversion of a non-Jewish woman to a Jewish man avoid an intermarriage.
However, Rabbi Isaac Schmelkes [Responsum YD 2:100] made the astounding claim that non-observance subsequent to a conversion is evidence [a] that the declaration made before the conversion court was insincere and, [b] as a consequence, the conversion is fraudulent and retroactively invalid. Even though this unprecedented “opinion” stands in stark contrast to canonical Jewish law, this responsum has nevertheless been accepted to be normative by many Haredi authorities, including the Israeli Chief Rabbinate, now under Haredi control. R. Schmelkes’ responsum provides the “justification” for fully Halakhic conversions to be improperly rejected by the Israeli Chief Rabbinate. Today, the Chief Rabbinate is controlled by an anti-Zionist Haredi rabbinic elite that [a] is not bound by the Chief Rabbinate and [b] uses the Chief Rabbinate to rule Israel’s Jewish population. This Orthodoxy’s public rhetoric is couched in absolute, formalist declarations, but actual leadership style is charismatic and its operational methodology reflects Legal Realism. Legal Formalism limits the judges to interpret Jewish Law rationally, consistently, and logically. The Chief Rabbinate reaches its decisions charismatically and defends them with Legal Realism, which posits that the Law is what the judges say it is. The Chief Rabbinate’s charisma of office is supported by ad hoc apologetic, which will never deviate from the policy of the Haredi Great Rabbi elite. It is the Great Rabbis’ divinely inspired intuition regarding piety, policy, and propriety, not the reviewable logic of the Torah’s readable Law, that is the core of this particular Orthodoxy. The Haredi Great Rabbi does not make mistakes; God is said to protect him from error. Therefore, calling attention to what might seem to be a Great Rabbi’s error is the height of Halakhic hubris. However, Biblical thought maintains that the entire community as well as its elite may indeed be in error [Nu. 15:26], there is no mortal who does not sin [Ecc. 7:2] and, even if errors may be made by otherwise infallible Great Rabbis, calling attention to Rabbinic wrongdoing or Great Rabbi apparent misbehavior to account is  slanderous,  evil speech, and  disrespect for Jewish leaders, which is by definition sinful. However, Hebrew Scripture and the Oral Law do not regard the Great Rabbi to be infallible or immune to assessment. So when God’s honor is diminished by rabbinical error, it is God’s honor that prevails [Proverbs 21:30 and bBerachot 19b]. By presenting its elite to be virtually infallible and as carriers of sovereign immunity, an unstated Halakhah is hereby added to the Torah, that those on the top of the theological/political food chain are immune from assessment by those of lower standing on the religious hierarchy. The problem with this doctrine are [a] that no one, even the Holy One, is immune to challenge [see Gen. 18:24 and Nu. 16:22 where Abraham and Moses challenge God’s fairness]. If someone contradicts God’s law, they must be held to account, even if they claim to be divinely inspired prophets [Deut. 13:1-6] and even if God declares the claimant to be correct [bBava Mezi’a 59b].
By adopting a Legal Realism approach to Jewish law, the Haredi rabbinic elite proclaims itself to be immune to assessment, criticism, or accountability. Naftali Bennett may not be permitted to retain his Orthodox identity because, by dint of his challenge, he has expressed disregard for Orthodoxy’s true leaders and Torah spokespeople, whose charisma validates their intuition, authority, and infallibility claims. When a conflict arises between Talmudic law and historically conditioned, social and religious expectations, almost all Orthodox Jews will in practice observe the convention and disregard the law. For instance, relevant to this conversation is the unambiguous Torah law that requires the conscription of both men and women in times of defensive wars [bSota 44b]. Most Orthodox Jews are unaware that clapping and dancing on Jewish holy days is forbidden [bBetsa 30a], even though the Tosafot ruled that the law does not apply in his times. The Talmud here teaches the rabbis not to protest this violation; it is better to sin out ignorance than intentionally. But [a] the acts of clapping and dancing are called “mistake,” which cannot be read as a permissive license. Similarly, the Jewish community is required to nurture every kosher convert, for to do otherwise tempts otherwise good Jews to violate the very commitments they made. And when the Israeli Chief Rabbinate rejects conversions of Orthodox rabbis in good standing, whose converts are fully observant, without explanation, accountability or appeal, and when R. Isaac Schmelkes’ innovation carries more clout—and domination— than Maimonides’ conversion leniency precedent, the Chief Rabbinate has some explaining to do if it wishes to maintain the confidence of Orthodox Jews who follow Jewish law seriously, consistently, and with integrity.
According to Jewish law, the judgment call to accept a conversion resides in the office of the local rabbi. Allowing non-Zionist rabbis to rule on conversions based upon R. Schmelkes’ innovative suggestion [a] in violation of Oral Torah law [b] and ignoring the population that they are commissioned to serve, is a political error. Mr. Bennett wisely does not ask or worse, coerce Haredi rabbis to violate their conscience. But Zionists learn Torah and have Torah informed consciences, too. Haredi Orthodoxy has a right to its standards; and so do Religious Zionists. The ethical bottom line for Jewish Orthodoxy is located in the plain sense of the Oral Torah library and the norms derived therefrom, not the standing, intuition, or charisma of any authority, however great his reputation may be. For those who view Jewish life as a life style, culture convention, and social habit will define Halakhah as minhag Yisrael, what Orthodox Jews happen to do. According to this folk religion Orthodoxy, the kosher convert is required to adopt the behavior and beliefs of the living Orthodox community. Those conversion candidates who are unprepared to observe the “Judaism” of the Orthodox street are unwelcome in this iteration. The Torah was given to all Israel, the collective “us” of Deuteronomy 33:4, the plain sense legacy of the entire Jewish people from the moment of creation [bSanhedrin 91b]. After all, God’s Torah is a rule of rules, not rulers. At stake in this struggle is the definition of Orthodoxy’s ethos, enforceable norms, and justifying narrative. Is the “Torah” to be read, understood, filtered, and applied by a self-selecting elite that is accountable to itself, or is Torah a readable library according to which those in power may be held to account for the way they use their power by an informed, empowered public.
Ironically, the Haredi position allows for Halakhic change in order to prevent social change, which undermines traditional societies and its traditional leadership elite. Modern Orthodoxy is open to social change as long as Halakhah is not violated by the change. MK Bennett is only asking the Israeli Government to do what the Oral Torah requires; his Haredi detractors claim that Mr. Bennett does not have the right to read and understand Torah, much less the right to express an opinion regarding how Torah is to be applied. This inter-Orthodox conflict cannot be settled with dialogue or reason. Orthodox “modernists” apply human reason to identify canonical Jewish law requires, while those who speak for “Tradition” demand surrender to God by dutifully submitting to its leadership’s charisma, which supersedes the plain, human language sense of the Orthodoxy embedded in the canon that Orthodox “official religion” believes is God’s word.
Rabbi Alan Yuter was ordained by YU AND Israeli Chief Rabbinate. Ph.D. NYU in Hebrew literature. Made aliyah, awarded Yadin Yadin from Prof David Halivni and teaches at CJCUC, Ohr Torah's Institute for Jewish Christian relations.
Rabbi Yuter has been a Panelist for Jewish Values Online for several years, responding to questions. You can find his answers by visiting Jewish Values Online, selecting the ‘View all panelists’ link, and clicking his name. A link will appear with his bio to show all answers he has submitted.
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