Thoughts to Ponder: 683
This is the second part of Yehudah DovBer Zirkind’s essay on “The Perfect Torah vs. the Evolving Torah” -Thoughts on the Mei HaShiloach” based on my observations made at the Think Tank meeting of the David Cardozo Academy on January 29, 2020 in Jerusalem.
In the first part, we mentioned the enormous importance of the “Mei HaShiloach” for contemporary Jewry, traditional Judaism, and the State of Israel. We explained that there are two ways within Orthodoxy to see the Torah. The first sees the Torah as “perfect”—the Torah is “the truth, the whole truth and nothing but the truth.” This means that the commandments and the conventional halacha are as perfect as they can be, and that no halachic changes can be made concerning the commandments, even when they appear to be unjust and are not compatible with the moral spirit of the age. As such, any change is a serious violation of Torah-true principles.
At the other end of the spectrum, there is the “evolving Torah” approach within orthodoxy, which is just as authentic as the first approach and has many earlier authorities, such as Maimonides, and rabbinical sources to rely on. It believes that the Torah was given at a particular moment in time, and as such, while completey divine, often expresses ideas and commandments which were a compromise to human weakness (i.e. sacrifices and the permission to own slaves). These laws must be seen as “Torah tolerated’ rather than as “ideal” Torah laws. As such, the Sages of Israel were not only permitted to, but in fact obligated to “update” the Torah to higher, more ideal standards, depending on the moral and religious conditions of their days.
It is the last approach which I believe to be more correct, since it allows the halacha to respond to the constant changing conditions of the Jewish people and humankind. In this way the Torah and the halacha stay fresh and do not become defensive and stagnant. It is of utmost importance to realize that this approach is completely within the boundaries of Orthodoxy, and is in fact the only way to ensure that the Halacha will stay relevant to our lives in whatever century we live.
Yehudah DovBer Zirkind now continues to explain these ideas based on my comments and the writings of the chassidic master Rabbi Mordechai Yosef Leiner (1800-1854), the author of the “Mei HaShiloach”, one of the most original and daring thinkers within Orthodox Judaism. With thanks to Yehudah DovBer Zirkind.
Nathan lopes Cardozo
Rabbi Cardozo’s Thoughts on the Mei Hashiloach
The Eternal Torah vs. the Living Torah
In part 1 of this essay, we suggested that the different streams within Orthodox Judaism view the Torah in two fundamentally different ways, either based on a “Perfect Torah” model or “Evolving Torah” model. I would now like to discuss this issue from a slightly different angle, based on the dialectic between Torat Emet and Torat Chayim.
Torah is called both a Torat Emet (a true Torah) and Torat Chayim (a living Torah). Throughout the ages, halachic sages have struggled to maintain a delicate balance between their fidelity to the Torah as an eternally true and binding foundational text while at the same time ensuring that Torah would remain relevant and applicable in every age, despite the changes in human temperament and social conditions wrought by the vicissitudes of time.
Maintaining this balance has not always been easy. In times of great historic change and upheaval, when the integrity of Torah came under threat, the rabbis disagreed on the best approach. Thus, for example, in response to changes in halachic practice adopted by the Reform Movement, Rabbi Moshe Sofer (1762-1839), also known as the Chatam Sofer, famously said that “chadash asur min ha-torah” (innovation is prohibited according to the Torah). This approach insists that safeguarding the principle of Torat Emet takes precedence over the principle of Torat Chayim. Other Halachic authorities disagree. They feel that the best way to maintain the integrity of Torah in the face of challenges is not by highlighting its immutability, but by highlighting the inherent flexibility of Halacha to adapt to ever-changing circumstances. Thus, in contradistinction to the Chatam Sofer, Rabbi Avraham Yitzchak ha-Kohen Kook (1865-1935) famously quipped that “ha-yashan yitchadesh ve-hachadash yitkadesh” (the old shall become new and the new shall become holy).
One way of conceptualizing this dialectic between the eternal and circumstantial is by differentiating between Torah she-bichtav (the written Torah) and Torah she-b’al peh (the oral Torah). The fixed text of the written Torah represents the immutability of Torah principles (Torat Emet), whereas the dynamic method of interpretation contained within the oral Torah expresses the flexibility of the Halachic process (Torat Chayim).
However, a more radical way of understanding the dialectic between the absolute and conditional is by broadening this paradigm and applying it even to the Torah she-bichtav. As we have seen previously, there are authorities, such as the Rambam who maintain that even the written Torah itself contains not only elements of Torat Emet (eternal truths), but also elements of Torat Chayim (laws contingent upon historical circumstances which don’t necessarily reflect ideal Torah values). Hence, the process of interpretation is employed not only to make the Torah laws applicable in every generation, but more importantly, it allows the sages to revise laws which are the product of a morally inferior value system. This approach is the view which Rabbi Cardozo seeks to promote.
A Point of Departure
During the Think Tank session, Rabbi Cardozo presented his original thoughts on the Mei HaShiloach’s teachings. The members of the Think Tank subsequently engaged in a lively discussion and debate regarding the Mei HaShiloach’s ideas in general, and Rabbi Cardozo’s thoughts in particular.
At the outset of his presentation, Rabbi Cardozo noted that he does not limit himself to a strict reading of the Mei HaShiloach. Rather, he sees the Mei HaShiloach’s ideas as a point of departure—a kind of springboard—for an exploration of ideas that go beyond what the Mei HaShiloach originally intended or would agree to. In addition, Rabbi Cardozo explored these ideas in a uniquely “Cardozian” way, by placing them within the rubric of his own theological views about Torah. For example, he suggests that the morality of Torah sometimes reflects a basic level of morality suitable for the time it was given and does not necessarily reflect the highest moral ideals that the Torah itself aspires to. A related concept is Rabbi Cardozo’s “theology of the Halachic loophole,” i.e. that the phenomenon of Halachic fictions are not “bugs” in the halachic system which the rabbis exploit to circumvent the law; rather, they are features built in by design, which allow the rabbis to modify morally problematic or outdated laws. These legal mechanisms allow these modifications to be accomplished “by the book” in a manner that does not disregard accepted halachic procedures.
One of the main points Rabbi Cardozo discussed was the connection between the Mei HaShiloach’s ideas and his notion of Abrahamic Judaism and the pre-Matan Torah (giving of the Torah) performance of the mitzvot. Elsewhere, Rabbi Cardozo has written at great length about the “Beth Midrash of Avraham Avinu,” as an “incubation” or gestational period wherein the core spiritual values of Judaism were formed, before they were concretized as fixed commandments at Matan Torah.
Rabbi Cardozo has often called for the need to return to this stage of “embryonic Judaism” and reclaim its formative ethos in order to unfreeze the later codification of Judaism, which has led to its stagnation. Although the giving of the Torah has radically altered the course of Judaism and we cannot revert to a pre-Torah age; nevertheless, Rabbi Cardozo believes that the vision and spirit of this formative era, i.e. the vibrancy of an inchoate and incipient Judaism, or to borrow a metaphor from biology, a “stem cell” based Judaism, should be kept alive and maintained as a counterweight against the ethos of textual fixation and rigid Halachic codification which is so prevalent within the contemporary Orthodox Jewish world.
Rabbi Cardozo also mentioned an alternative paradigm of mitzvot before vs. after the chet ha-egel (sin of the Golden Calf) as the kind of mitzva observance that the Mei HaShiloach may have in mind. In support of these views, Rabbi Cardozo cited the views of the Chovot Halevavot by Rabbi Bachya ibn Paquda, who maintains that in the times of the Avot, due to the higher level of spirituality of that age, fewer mitzvot were required than after matan torah, and the Seforno who similarly maintains that prior to the chet ha-egel, fewer mitzvot were required than after the chet ha-egel, due to the innate sanctity of the Israelites prior to their corruption by sin.
We also discussed the opinion in the Talmud that mitzvot beteilot le-atid lavo (the commandments will be abolished in the future). There is much discussion about the precise meaning and application of this concept. Does it mean that the mitzvot will be completely annulled, or does it mean that there will be substantial modifications in the performance of mitzvot in the future? A related concept is the notion that in the messianic era, a new Torah will be revealed, “A new Torah will emanate from Me.”
According to some interpretations, the commandments themselves won’t be abolished; rather, the need for a heteronomous commandment will no longer be necessary, since these commandments will be performed out of an inherent identification with the divine will. Regardless of the final halachic ruling on these matters, Rabbi Cardozo highlighted these opinions to make the point that there are voices within the Jewish tradition who entertain the notion that (certain) commandments contained in the written Torah are time-bound and historically conditioned rather than eternally binding.
Returning to a Golden Age that Never Was
This notion of aspiring toward a time of greater spiritual purity or moral progress when specific mitzvot may be abolished due to different prevailing spiritual conditions, is discussed at length in broad range of Rabbinic sources.
It should be noted, however, that there are two ways of conceptualizing this change, either as a cyclical restoration or a process of linear progress:
- Cyclical restoration – a return to a previous golden age and retrieval of a “Lost Paradise.” Regardless of whether the era we invoke is Adam and Chava before they were expelled from Gan Eden; the patriarchal period prior to the enslavement in Egypt; the time of the giving of the Torah before the sin of the Golden Calf; the era before the destruction of the Temple; or the period before the codification of the Mishna and Talmud etc., the common motif shared by all these conceptions is an anticipated return to a blissful era which purportedly existed in the past. Even if this idealized golden age never actually existed as described, nevertheless, this traditional trope of yeridat ha-dorot (decline of the generations) has inspired Jews throughout the ages with a paradoxical form of nostalgic anticipation, whereby we yearn for a time in the future when we will return to an (imagined) past.
- Linear progress – a utopia which will only be realized in the future. According to this conception, at some point in history, the process of spiritual decline and deterioration will be suddenly reversed. A radical shift will occur, and the process of spiritual descent will be replaced with a leap of progress and spiritual ascent. According to this approach, this abrupt reversal will be triggered by a divine or spiritual intervention from without which will radically alter the course of history and usher in the eschatological age. Alternatively, there is a competing notion whereby we are progressing not only in terms of technological and scientific progress, but we are also experiencing an upswing in our moral sensibilities and expansion of spiritual consciousness. According to this approach, this change is already gradually taking place from within.
Similarly, it can be helpful to differentiate between two alternative views regarding the relationship of Halacha to time:
- The earlier the stage, the more spiritually advanced people were. Thus, the reason we have more mitzvot is due to a later decline. This is the view held by Rabenu Bachya and the Seforno.
- Society progresses over time. As mentioned previously, Rambam maintains that the time of Matan Torah reflects a more primitive state of development, and therefore certain commandments, such as sacrifices, where given as a concession to human weakness. This view suggests a gradual progression from more primitive forms of religiosity and spirituality to more sophisticated models.
Regardless of which notion we adopt, the general idea expressed by Rabbi Cardozo is that the Mei HaShiloach may have been aspiring toward a more spiritually advanced state when we won’t need to observe all the mitzvot. This idea warrants further discussion. We will continue this discussion next week.
 See Malachi 2:6 and numerous Torah texts.
 The words Torat Chayim are contained in the daily amida prayer and numerous Torah texts.
 Rabbi Moshe Sofer, Shut Chatam Sofer, vol. 1, Orach Chaim, no. 28; Ibid., no. 148; Ibid., no. 181; Ibid., vol. 2, Yoreh De’ah, no. 19; Ibid., vol. 3, Even ha-Ezer 1, no. 69; Ibid., no. 130; Ibid., vol. 4, Even ha-Ezer 2, no. 29; Shut Chatam Sofer, Kovetz Teshuvot, no. 58.
 One of the important advocates of this approach whose works have been recently rediscovered and analyzed is Rabbi Chaim Hirschensohn (1857-1935). See Rabbi Chaim Hirschensohn, Shut Malki ba-Kodesh, 6 volumes (Various locations, 1919-1928); Ibid., new edition of first two volumes of Malki ba-Kodesh, ed. David Zohar (Jerusalem: The Schechter Institute of Jewish Studies/Shalom Hartman Institute, 2006-2012); David Zohar, Jewish Commitment in a Modern World: R. Hayyim Hirschensohn and His Attitude Towards the Modern Era (Jerusalem: Shalom Hartman Institute, 2003) (Hebrew); Idem, “Rabbi Hayyim Hirschensohn – The Forgotten Sage Who Was Rediscovered,” Conversations 1 (2008): 56–62; Ari Ackerman, “Judging the Sinner Favorably: R. Hayyim Hirschensohn on the Need for Leniency in Halakhic Decision-Making,” Modern Judaism 22, no. 3 (2002): 261–280; Marc B. Shapiro, review of Jewish Commitment in a Modern World: Rabbi Hayyim Hirschensohn and His Attitude to Modernity, by David Zohar, Edah Journal 5, no. 1 (2005). My thanks to Prof. Yehuda Gellman for bringing this to my attention.
 Rabbi Avraham Yitzchak ha-Kohen Kook, Igrot ha-Rayah, vol. 1 (Jerusalem: Mossad HaRav Kook, 1985), 214 (letter no. 164).
 See R. Yosef Albo, Sefer ha-Ikarim 3:23; Maggid Mishne on Mishne Torah, Hilchot Shechenim 14:5; R. Moshe Shmuel Glasner, introduction to Dor Revi’i on Tractate Chulin.
 Rabbi Cardozo discusses this at great length in his book Jewish Law as Rebellion (Jerusalem: Urim Publications, 2018), chapter 27 entitled, “On the Law of the Mamzer: Between Fairness and Holiness in Halacha: Possible Solutions and Rabbinical Courage (The Theology of the Halachic Loophole and the Meaning of Torah From Heaven),” pp. 263-299. See also here: https://www.thetorah.com/article/the-deliberately-flawed-divine-torah, https://www.cardozoacademy.org/thoughts-to-ponder/deliberately-flawed-divine-torah/.
 See Jewish Law as Rebellion, 288-299.
 See Mishna Kiddushin 4:14, where the sages state that Avraham observed the commandments. Bereshit Rabba, Vilna ed., 79:6 states that Ya’akov kept Shabbat; Ibid., 92:4 states that Yosef kept Shabbat. On the topic of whether the Avot were considered Jews or Noachides, see Talmudic Encyclopedia, s.v. “Avot (ha-uma),” 1:36-37.
 See: https://www.cardozoacademy.org/the-beth-midrash-of-avraham-avinu/ and the 7 part article series here: https://www.cardozoacademy.org/?s=%22of+avraham+avinu%22.
 See Nathan Lopes Cardozo, Jewish Law as Rebellion (Jerusalem: Urim Publications, 2018), especially chapters 2 and 3. (An online version of chapter 2 is accessible at: https://www.cardozoacademy.org/thoughts-to-ponder/codifying-jewish-law-not-authentic/. An online version of chapter 3 is accessible at: https://www.cardozoacademy.org/thoughts-to-ponder/my-brother-and-the-kosher-wine-bottle-defensive-halacha-and-prophetic-halacha-ttp-407/).
 Chovot ha-Levavot, Sha’ar ha-Perishut, chap. 7.
 The Seforno discusses his general approach in considerable detail in the introduction to his commentary on the Torah and in numerous comments, see Seforno on Shemot 24:18; Ibid., 25:9; Vayikra 11:2; Ibid., 26:11; Bamidbar 3:7; Ibid., 15:3-4; Ibid., 28:6; Devarim 16:21.
 Rabbi Cardozo discusses the ideas of Rabbi Bachya ibn Paquda and Seforno in in his book Jewish Law as Rebellion (Jerusalem: Urim Publications, 2019), chapter 18 entitled, “Why the Kashrut Laws Were Given So Late,” pp. 201-218. Note: in Seforno’s commentary on Vayikra 11:2 he states that in the future (le-atid lavo) we will return to the state before the chet ha-egel.
 See Niddah 61b.
 See the references in footnotes nos. 18-19.
 Based on Yeshayahu 51:4. See Vayikra Rabba, Vilna ed. 13:3. See Moshe Idel, “’Torah Hadashah’ – Messiah and the New Torah in Jewish Mysticism and Modern Scholarship,” Kabbalah: Journal for the Study of Jewish Mystical Texts 21 (2010): 57-109.
 See the sources compiled in this source sheet: https://drive.google.com/open?id=1rkuUj_FrSmMNx_8Pk3h831b7n4GumjEB.
 For a comprehensive discussion and list of sources, see Abraham Joshua Heschel, Torah min Hashamayim Ba-aspaklaria shel Ha-dorot (Theology of Ancient Judaism), Vol. 3 (Jerusalem: JTS, 1995), 54-81 (Hebrew); Marc B. Shapiro, The Limits of Orthodox Theology: Maimonides’ Thirteen Principles Reappraised (Oxford: Littman Library of Jewish Civilization, 2004), chap. 8.
 It should be noted however that these two paradigms of linear progress and cyclical restoration are not mutually exclusive. Thus, even the Rambam invokes the paradigm of cyclical restoration and writes that Avraham Avinu sought to restore the pure belief in God and His unity which existed prior to the idolatrous distortions of the truth which began during the generation of Enosh. See Mishne Torah, Hilchot Avoda Zara, chap. 1.