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Michael Makovi responds to R. Michael Broyde

Michael Makovi has written a response to R. Michael Broyde’s critique of Tzvi Zohar and Avi Sagi’s book on conversion. I strongly recommend Makovi’s post for anyone who is remotely interested in the topic.

13 Responses to “Michael Makovi responds to R. Michael Broyde”

  1. 1
    adderabbi:

    I read the review on your recommendation, and I must say that I was underwhelmed.
    Using a “rupture and Reconstruction” type argument on a case that a) has always been in the hands of the beit din and not something that was given over to family custom, b) as R. Herzog pointed out in several places, conversion nowadays is quite different from conversion in the past, as being Jewish and being halakhically observant have been decoupled, and c) for every R’ D.Z. Hoffmann and R. Uziel there was a R. Shlomo Kluger, R. Chaim Ozer, or R. Moshe Feinstein whose positions on the issue were to clearly mandate Kabbalat Ol Mitzvot.
    The personal stories are always nice and full of feeling, but tend to obscure the main point.

  2. 2
    Menachem Mendel:

    If a posek has two traditions before them, one lenient and one stricter, if one chooses the stricter opinion it is not because that is the only halakhically valid option, rather it is because for some reason they want to be stricter, which maybe in their eyes equals more halakhically valid. I think that there are plenty of authorities which offer validation of a lenient opinion on conversion, if one chooses to be mahmir, let them admit it.

    Sagi and Zohar do not say that there is no kabbalat mitzvot, they just disagree with Broyde as to what that means. Jeff Woolf even admits here that there is very little if any discussion of kabbalat mitzvot, but his argumentum ex silentio isn’t very convincing. When the Rambam paskened (Teshuvot ha-Rambam, par. 211) that a man could marry his non-Jewish servant with whom he is suspected of having relations and who claims to have converted, was it ideal? Not all, but the Rambam admits that the smaller sin is better than the bigger sin.

    I would agree that the “Rupture and Reconstruction” analogy may not be 100% accurate, but the claim that R. Broyde is ignoring rabbis who have paskened more leniently is a legitimate criticism.

  3. 3
    Menachem Mendel:

    One last thing which is maybe the main thing.

    “The personal stories are always nice and full of feeling, but tend to obscure the main point.”

    The lives of flesh and blood people are exactly what this is all about. The critique by Broyde an Kadosh is more about halakhic policy and less about the academic meaning of Talmudic texts. Ignoring the people who are affected by this policy is central to the question at hand. There are plenty of reasons and sources which justify leniency (and the opposite) and rabbis can choose to either accept them, maybe even with some discomfort, or reject them.

  4. 4
    Michael Makovi:

    Menachem Mendel said (to pastiche his two comments):

    “If a posek has two traditions before them, one lenient and one stricter, if one chooses the stricter opinion it is not because that is the only halakhically valid option, rather it is because for some reason they want to be stricter, which maybe in their eyes equals more halakhically valid. I think that there are plenty of authorities which offer validation of a lenient opinion on conversion, if one chooses to be mahmir, let them admit it. … The lives of flesh and blood people are exactly what this is all about. The critique by Broyde an Kadosh is more about halakhic policy and less about the academic meaning of Talmudic texts. Ignoring the people who are affected by this policy is central to the question at hand.”

    EXACTLY

    I personally love the way Rabbi Alan Yuter frames debates of this sort: he distinguishes between (1) the baseline technical halakhah, and (2) the subjective policy issues. The problem, he says, with poseqim, is that they let (2) obscure (1). To apply this to our present case: according to the baseline technical halakhah, the conversion of a non-observant candidate is kosher, period. A dayan may be as strict as he wants, but he must admit that this is his own policy, and not the halakhah. And if a lenient dayan performs a conversion, the strict dayan may not annul the lenient dayan’s conversion. Halakhah and policy must be kept separate.

    In our case: since the halakhah permits the conversion of non-observant candidates, the only question is: should we utilize this leniency or not? The whole question is policy.

    Rabbi Haim David Halevi in fact already said this. I forget where (Rabbi Marc Angel cites it somewhere), but Rabbi Halevi basically said: the laws of conversion are vague so that a dayan can do whatever he personally thinks is proper in the present case at hand.

  5. 5
    Menachem Mendel:

    For the autonomy of a Beit Din regarding conversion see Beit Yosef, YD 268.

    “Rabbi Broyde says he agrees that conversion without #3 is possible”

    Does “possible” mean that members of the RCA or R. Broyde won’t question a rabbi and their conversions who does a conversion when it is fairly clear that the convert will not be very observant?

  6. 6
    adderabbi:

    I don’t disagree that there is more than one tradition of giyur. But the existence of a permissive (I hesitate to use the term ‘lenient’ here) tradition does not constitute a argument that said tradition is either correct or worthy of being adopted. Exactly as you pointed out, “Ein le-dayan ela mah she-einav ro’ot.” (Please recall that I was one of the first and most thorough of the critics of the Rabbanut when they started calling American conversions into question. You can click on the ‘giyur’ tab of my blog and see quite a few posts, that cover most of these arguments and sources.) And I simply cannot justify, on any level, conversions when it is clear that there is no sincere commitment to observance. This is a gut feeling, that just so happens to be corroborated by the majority of 20th century poskim (again, R. Herzog points out that prior to the 20th century, when Jewishness implied Jewish observance, this issue was never really addressed).
    Regarding the personal stories, my argument is that they do not constitute halakhic reasoning. I am not suggesting, and if you read the said posts you would see that I am quite consistent on this matter, that the beit din should not look at or be sensitive to the individual. I think that bureaucracy is the greatest bane of contemporary giyur. I am merely stating that a sob story does not constitute a halakhic argument. Sure there are cases when one’s lifelong Jewish identity comes into clash with halakhic Jewishness. Mr. Makovi’s case is not the first and won’t be the last. I’ve worked out my own approach for dealing with that in a sensitive manner, but which does not entail accepting the position of R. Uziel et. al.
    I’m not so beneficent regarding the Rabbanut, but I do not think that R. Broiyde, or R.. Mopshe FEinstein for that matter, “ignored” the individual.

  7. 7
    Menachem Mendel:

    I know that you have been a vocal critique of the most recent rabbanut conversion-related issues and you should be applauded for that, hopefully something will change in that matter. A sob story is not a halakhic argument, but halakhah is not paskened in a vacuum and I don’t believe that there is any such thing as “pure” halakhah that has no relation to the specific circumstances. See Rav Moshe when he discourages people from relying upon his pesak and says that he was paskening for a specific case. I guess that the difference may come down to what is a “sincere commitment to observance.” Studies have shown that when the spouse converts this influences the Jewish connection of the children and my experience is that in today’s world when somebody is willing to convert that is a pretty big deal and rabbis should be willing to push the envelope very far in order to try and welcome them as Jews into the community.

  8. 8
    Michael Makovi:

    Furthermore, as Rabbi Yehuda Herzl Henkin notes in his article in Hakira: in Israel, the majority is Jewish, and gentiles will assimilate into the Jewish people. This is the exact opposite of what happens in America.

    Of course, Rabbi Broyde, in his article, advocates conversion of the children, so he has considered this problem.

  9. 9
    Michael Makovi:

    Halakhah is not an objective science. Rabbi Aharon Lichtenstein has written about this regarding abortion. Halakhah must take the human factor into account.

  10. 10
    Harry Perkal:

    For once I cannot agree more with Menachem Mendel (and Michael Makovi). I would go further than saying that “Halakhah must take the human factor into account”. It must take morality, current scientific knowledge, and the future of the Jewish people into account. Otherwize Halakahah becomes a form of idolatry. I think that is what Rabbi Gordon Tucker in his Responsa on the issue of Gays becoming Rabbis in the Conservative Movement was getting at. A perfect example is the Aggunot issue. For A Rabbi or Beit Din to throw up their hands and in fact say these wives maybe be suffering and treated unethically but what can we do- this is Halakhah- borders on the obscene. I know my assumptions are not Orthodox- since I am not sure Halakahah should be considered as a legal system, and I am also assumimg that Halakhah is man ( and hope in the future female) made. But neverthles Orthodoxy if they wanted can find sufficient precedent on conversions as Professor Sagi, and in a related area as Professor Shaye Cohen has pointed out.

  11. 11
    Michael Makovi:

    And let me add: halakhah certainly is man-made. Rambam says in Hilkhot Mamrim that one Sanhedrin can overturn the drashot of a previous Sanhedrin. Based on this fact, Rabbi Moshe Shmuel Glasner (the father of the teacher of Rabbi Dr. Eliezer Berkovits) (see here and here) and Rabbi Benzion Uziel (cf. Rabbi Angel’s biography of him, and also Rabbi Angel’s The Rhythm of Jewish Living: A Sephardic Approach and his Maimonides, Spinoza, and Us: Towards an Intellectually Vibrant Judaism) both determined that halakhah is man-made, can evolve over time, and can take human factors into account. Rabbi Emanuel Rackman, in his One Man’s Judaism says that if the Conservative movement errs in assuming halakhah is entirely man-made (and that there is nothing Sinaitic), and that anything made by history made be broken by history, then, he says, Orthodoxy errs in assuming halakhah is entirely Sinaitic and that nothing in it is man-made and historically-conditioned. Might I add that any form of extremism is usually wrong?

  12. 12
    Michael Makovi:

    Also:

    ———

    Now, Grace Aguilar (an 18th-century Anglo-Jewish novelist) was certainly not a rabbi, nor was she even rabbinically-learned, but she was a traditional Judeo-Spanish Sephardi, and Isaac Leeser saw fit to edit some of her works, so she couldn’t have been totally wrong. (Although Leeser did take her to task in some of his notes to her text. But again, he did edit her work, so I’d view that as an implicit hasqama!)

    See here and Rabbi Marc Angel’s treatment of her in Voices in Exile: A Study in Sephardic Intellectual History”:

    “A new era is dawning for us. Persecution and intolerance have in so many lands ceased to predominate, that Israel may once more breathe in freedom… the voice of man need no longer be the vehicle of instruction from father to son, mingling with it unconsciously human opinions, till those opinions could scarcely be severed from the word of God… [Emphasis added] This need no longer be. The Bible may be perused in freedom… A spirit of inquiry, of patriotism, or earnestness in seeking to know the Lord and obey Him…is springing up. (Aguilar, The Women of Israel, 11–12)

    “Circumstances demand the modification…of some of these Rabbinical statutes; and could the wise and pious originators have been consulted on the subject, they would have unhesitatingly adopted those measures” (Aguilar, The Spirit of Judaism, 31).

    As Ronda Angel-Arking notes (see URL above), “Rather than reject rabbinic law, Aguilar promotes modification—based on contemporary realities. The process of halakhic decision-making is a fluid, changing structure. By viewing the Oral Law as “divine,” one discredits the whole nature of the halakhic process, which necessarily evolves as new realities crop up. Additionally, Aguilar notes, it is important to understand the backgrounds and biases of those rabbis who wrote the halakhah: ‘There may be some observances which superstition and bigotry have introduced’ (The Spirit of Judaism, 241). Looking at halakhah as an evolving process, Aguilar demands an honest assessment of the origins and intellectual validity of each law as it is practiced. She thus encourages each Jew to go back to the original source—the Bible—to try to understand the essential spirit of the halakha. As a traditional Jew, Aguilar encourages a more rational, Bible and reason-based, evolving Orthodoxy that will be rich in tradition and spirituality for men and women alike.”

    In case one sees it as heretical or un-Orthodox for Aguilar to say “Circumstances demand the modification of some of these Rabbinical statutes”, then see here:

    Rabbi Haim Hirschensohn asked, “Are we at present able to find a heter for some rabbinic prohibitions, based on the principle that a decree that has not spread among most of the community can be voided by a lesser Beit Din [than the one that instituted it]?”

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

    As Professor Marc Shapiro notes there: “Traditionally, this halakhah has been understood to
    mean that if, at the time of the decree, the people never accepted it, then it can be revoked. What the anonymous author [i.e. Rabbi Haim Hirschensohn] suggested was that since it is the Jewish people who, at the end of the day, decide if a decree is to be binding, then perhaps this authority does not only apply to the first generation, but for all time. In other words, the Jewish people have a continuing role in ensuring the validity of rabbinic legislation. Therefore, if the Jewish population—and he has in mind those who are generally observant—chooses to ignore a rabbinic decree that in years past was accepted, then this very lack of observance, which at first was understandably regarded as sinful, could itself give authority to the rabbis to formally void the decree. This is, to be sure, an extreme position, in that it
    places the continuing, binding nature of rabbinic authority in the hands of the people. Yet it is not as radical, or unique, as many will think. To begin with, no less a figure than R. Joseph Karo claims that this approach is a plausible explanation of Maimonides’ statement. Furthermore, it is basic to halakhic history that the response of the community plays a role in the authority of halakhah. That is, when enough people flout a halakhah, and the sages are unable to improve matters, it is usually not long before rabbis begin to develop justifications for the people’s behavior (limmud zekhut).”

    Professor Shapiro quotes Rav Kook: “At times, when there is need to transgress the way of the Torah, and there is no one in the generation who can show the way, the thing comes about through breaching. Nevertheless, it is better for the world that such a matter come about unintentionally. Only when prophecy rests on Israel is it possible to innovate such a matter as a “temporary measure”. Then it is done with express permission. With the damming of the light of prophecy, the innovation comes about through a long-lasting breach, which saddens the heart with its externals, but gladdens it with its inner content.”

    As Professor Shapiro explains, “In other words, when continued adherence to a certain halakhah will have negative consequences, and there is no formal mechanism for abolishing the law, Providence ensures that people begin to violate this halakhah, and in time what used to be regarded as a violation becomes accepted, even among the halakhists. Those who look at matters from the outside, at the “externals”, are of course saddened by the violation, since it appears to be a rebellion against halakhah. Yet those who can see what is really happening, who recognize the “inner content,” realize that matters are being directed by the Divine, in what is a necessary adjustment to the halakhic system.”

    Comparing Rabbis Hirschensohn and Kook, Professor Shapiro comments, “What is particularly noteworthy about the anonymous suggestion is that it is not concerned with ex post facto justifications, but is raising the possibility of formal abolishment of rabbinic prohibitions by contemporary rabbis. Think of a rabbinic prohibition that is widely ignored in the traditional community—and in early twentieth century America there were many—and imagine bringing it before a rabbinic court that would then abolish it.”

    Professor Shapiro adds, “It is necessary to say a few more words about Hirschensohn’s conscious search for leniencies in the halakhic process. It is not, as some might assume, that he viewed halakhah as a burden and was therefore interested in lightening the load. Rather, he was concerned that in modern times, when only a small minority observes halakhah and many who do observe it do so only in part, the halakhic system could be used to delegitimize most Jews. Faced with the phenomenon, Hirschensohn’s approach was to stretch halakhah in order for it to be more inclusive. Why do that, one may ask; what benefit is there to Judaism by lowering standards? Hirschensohn’s reply is that it is not an issue of raising and lowering standards. Rather, halakhah, as a living system, must deal with reality. The standards of halakhah in eighteenth-century Vilna cannot be the same as in early twentieth-century America.”

  13. 13
    Jeff:

    Michael Makovi referred to the text of Hayyim David Halevi. I’ve transcribed and translated it here:
    http://fc.gannacademy.org/gannopedia/conversion/HayyimDavidHalevyWhyNoExplicitMitzvahOfGiyyur.pdf

    A database of articles on conversion is available here: http://tinyurl.com/giyyur

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