Which the Fetus Is Not. There Is Here No Discussion of Discretionary Abortions

THE HAREDI READING OF JEWISH LAW 83 which the fetus is not. There is here no discussion of discretionary abortions. Most Orthodox rabbis do not engage in reading, seeking, or defining the Dual Torah's actual norms, even if they possess the highly prizedyadinyadin ordination, because they are socially and ideologically conditioned to defer to the subjective judgment of the great rabbis and not to contrast what these rabbis say about the canon to what the canon actually says. Consider Resnicoff's statement: "As a general rule, abortion in Judaism is permitted only if there is a direct threat to the life of the mother by carrying the fetus to term or through the act of chfldbirth."'^^ What appears in this com- ment is the doctrine that the "general rule," i.e., the Orthodox Rabbinic consensus, is the defacto mediator of the canonical trove, and only the truly great Orthodox rabbis of renown have a right to express their opinion. Even a logical argument, if it is from a minor scholar, wifl be ignored because Jewish law as it is practiced by the Orthodox is no longer a positive legal order; it is no more and no less than the ad hoc social policy of rabbis whose da'at Torah rulings are no longer based upon legal reasoning, i.e., da'at notah, but on what is taken to be divinely guided oracular inspiration, which for this Orthodoxy insures inerrancy, legitimacy, office, and power.'^3 Professor Resnicoff's view ofJewis h Law as a value system that may be parsed only by great rabbis finds precedent in recent Rabbinic writings. The second of Rabbi Joseph B. Soloveitchik's "Two Kinds of Tradition"'^'* is also not subject, to R. Soloveitchik's view, to review. His son, Professor Haym Soloveitchik, calls this second sense of "Tradition" "mimetic culture," which is the familiar street culture that has been reified into the moral fabric of Torah and has superseded Dual Torah Judaism.'25 Yosef Gavriel Bechhofer, an articulate Hirschian Orthodox apologist, articulates the "legal ideology" of the Haredi world view presented so cogently by Resnicoff:'26

122 http://wWW.aish.com/ci/sam/48954946.html. 123 See however Deut. 30:12. 124 Sheni Sugei Masoret, in Joseph B. Soloveitchik, Shiurim le-Zecher Abba Mori, 2"/(Hebrew, Jerusalem, 5743). 125 See Haym Soloveitchik, "Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy," in Tradition 28 (Summer 1994), pp. 64-130. 126 http://www.aishdas.org/rygb/eilu.htm, first appearing as Yosef Gavriel Bechofer, "Mezuzos, Machlokos and Eilu va'Eilu Divrei Elokim Chayim," in Jewish Observer (January, 1995) 27:10, pp. 17-24.

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If you fix a mezuzah on the wrong side of your doorway, you do not fulfill the mitzvah {Shulchan Aruch Yoreh De'ah 289:2). You cannot put up two mezuzos, on both sides of the doorway, just to be sure, because many Poskim (see ¡gros Moshe Yoreh De'ah 1:176)'^^ prohibit such practice. There is no way to "just he machmir [strict]"! You must pick one side or the other. Which side of the doorway to your balcony or backyard you should fix the mezuza upon is a longstanding Machlokes HaPoskim (see She'arim Metzuyanim Ba'Halacha 11:3). HaGaon HaRav Moshe Feinstein zt"l (Igros Moshe ibid., 181) held that in completely enclosed balconies and yards the mezuzah should he fixed on the right side of the doorway as you exit to your yard. The Chazon Ish zt"l {Yoreh De'ah 168:7) held the opposite [view]—the mezuzah should be fixed on the right side of the doorway as you enter your house."

The renowned Rabbis Feinstein and Karelitz [Chazon Ish] are invoked by Bechofer, but their views are neither explained, evaluated, justified, nor even subject to a hermeneutically testable review. As geonim (excellencies or geniuses) their rulings are canonical and not subject to error:

The Ritva [to B. Erub. 13b] there explains: The French Rabbonim asked how it is possible that these and those are the living words of Hashem when these forbid and those allow. They answered: When Moshe went up to receive the Torah, he was shown in every issue forfy-nine manners in which to forbid and forfy-nine ways in which to allow. Moshe asked Hashem about this. Hashem told him that the Chachmei Yisroel in every generation were to decide which manners to follow in their specific times and places.

Like both Rashi and Tosafot, who are French'^^—but not Sefardic or Yemenite—rabbis, Ritva sees Jewish law as semantically indeterminate, and the great sage functions as an oracle who teases out God's secret will from the indeterminate canonical trove. Also note that for Bechofer,

127 Note well Bechofer's precise diction. Because great rabbis have so ruled, i.e., "many poskim prohibit such practice," we again find the actual operational legal norm for this Judaism, the charisma of intuitive oracularity. 128 See J. Faur, The Horizontal Society: Understanding the Covenant and Alphabetic Judaism (Brighton, 2008), pp. 336-353, attributes to French rabbis the disposition that they and not the canon are the ultimate sources of legal authority.

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The Jews in each generation, therefore, comprise the current map of the world. New phenomena in the Jewish nation in any generation will create corresponding new phenomena in the structure of the world. This idea is not solely a Chassidic one. HaGaon HaRav Eliyahu Meir Bloch zt"l {Shiurei Da'as, "Darka shel Torah", chap. 5) writes:

When the Torah was given to Yisroel, the characteristics of its nature were imparted to the Torah Sages [but not all Israel]. They, through their thought, determine the characteristics of nature, which fol- lows the logic and secrets of their Torah. They decide the reality of Torah, and the reality of the Creation linked to the Torah. What is the cause, and what is the effect? The cause is not reality, which demands the effect of figuring out relevant Halachos. On the con- trary, the cause is Halacha, and the effect is the reality of the world.

The great rabbi is not like other properly ordained Orthodox rabbis. Accordingly, great rabbis today, like the medieval French rabbis, really and esoterically "know" the secrets of the Law and are thereby empowered to create reality, at least according to this Judaism. Moses'^^ and the Oral Torah'^" do not seem to brook appeals to mystical revelations or intuitions that carry the force of Jus- tificatory rules of legal recognition. These medieval French and contemporary Haredi rabbis are, however, sufficiently self-Justified to articulate theological doctrines that underscore their own oracular authority:

In every Halachic matter there may be conflicting approaches of equal validity. This phenomenon is rooted in the fact that there are distinctions between souls and personalities.

How Bechofer knows this, that there are indeed equally valid yet conflicting approaches to Jewish law because of personality differences, is both metaphys- ical conjecture and hermeneutically unjustified. Bechofer conotinues:

We understand that different centers of Torah learning throughout the generations produced various darkei Avoda and Limud, and, therefore, different psak hatacha. The Hungarian dereeh differs from the Polish

129 See Deut 29:28, where Israel is given a rule of recognition, a rule that validates the obligation norms of the legal order, that allows for "no secret laws." 130 B. B.M. 59b, where the human court reminds God that even divinely verifiable oracles cannot provide a rule recognized as a norm in thejudaism ofthe Dual Torah.

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derech, which in turn differ from Lithuanian and Sefardic derachim (see Michtav Me'Eliyahu, vol. 4, p. 129). There are wide variations in derech among Poskim of" our generation as well. Most of us are not qualified to analyze these derachim and render judgments as to their comparative validity.

This claim is both incite-ful and insightful. For Bechofer—and for Resnicoff as well—the community derech, or "way of going abt)ut communal Jewish busi- ness," is like the charisma of tbe great rabbi, as this disposition is a) by definition correct and b) not subject to review. But, again, there is no Dual Torah rule of recognition that recognizes this claim's validity.

Obviously, prowess in Lomdus and Halachic methodology is a precondi- tion for acceptance as a Posek. Sometimes semicha recognizes that prowess. More often, haskamos or verbal recognition of universally accepted Gedolei Hora'ah validate the positions of aspiring Poskim

The Judaism of the Dual Torah does not recognize lomdus, literally "learning- ness," as a normative category that authorizes the great rabbi to define what the Torah "really" means. There is no word or category called "lomdus" in any Dual Torah document.'^' On one hand, Resnicoff asserts that there is a legal methodology to Jewish law, but we are never told what that methodology's rules actually are. The approval of the elite great rabbis is, for this Judaism, the only legitimating legal criterion, not the consistency of a ruling with higher grade

131 By inventing terms and assigning to them meaning that only a great sage is able to imag- ine, Bechofer's indeterminate Torah may be properly implemented and, when conditions compel, augmented. Failing to identify a single Oral Torah norm that would clearly out- law women's prayer groups, R. Schachter audaciously invents the idiom, ziyyuf ha-Torah, which means "falsifying" or "counterfeiting" the Torah, the content of which is his to define with the power of sacred subjectivity. See his be-'lqvei ha-Tson (Jerusalem, 1997), p. 23. The ziyyuf ha-Torah doctrine is unattested both in the Talmud and in subsequent Rabbinic literature. That Jewish law would authorize a latter day rabbi to invent a concept that is his to define and would empower him to pass binding judgment upon the judgments of others is difficult to accept by adherents of the Dual Torah's Orthodox doctrines and benchmarks. Perhaps the most poignant instance Q{ ziyyuf ha-Torah is the claim itself with the valence attached to it by its author. When understood in light of R. Schachter's innovative Midrash Halakhah regarding brain death, we find in R. Shachter's writings a new Judaism, without a literary of legal hermeneutic, but with charismatically endowed sages who validate the behavior and memory of the Orthodox street by reconstructing a Judaism of countercultural, parochial, nostalgic taste.

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Dual Torah norms. Note well that the Israeli secular Supreme Court fijnctions the same way; it is an elite authority that does not answer to the collective it governs, it has life tenure, and it is not subject to judicial review. Ironically, the "great rabbi committee," the Counsel of Great Torah Sages, and the Supreme Court of Israel share a defining power ideology, albeit with contrasting social ideologies. For the latter, the Enlightenment's Rights of Man as defined by tbe canons of European Social Democracy provides a normative template; for the former, it is the recreation of the good old days of Eastern European Orthodox life, as remembered nostalgically and applied exactingly in an unsympathetic secular world. Both groups regard themselves as the rightful rulers of culture propriety. For Bechofer,

Said Rabbi Yohanan: "Only if a Rov is like a matach of Hashem Tzevakos may one seek Torah from his mouth." A malach is an agent of Hashem. An individual who views himself only as an agent of Hashem and focu- ses on the fulfillment of that agency is qualified to generate divrei Elokim chayim— Only devoted Talmidei Chachomim who are without negi'os [literally, "touched," idiomatically, vested interests of biases] and focused on detecting Ratzon Hashem can generate divrei Elokim chaim.

This claim asserts that great rabbis really do not have vested interests or biases and that they speak purely and with purity for God. The very idea that they indeed have biases—as argued in this paper—even if documented with reasoned argument, would be disrespectful and therefore heretical in this Judaism.'32 Great rabbis are not merely ordained; they are acclaimed and accepted to be Jewry's unquestionable culture canons. They are authorized to "generate"—Bechofer's word—the divine word. The claim of a lesser rabbi to offer a ruling that would be valid according to Maimonides' and Kelsen's sys- tems makes tbe implicit—and politically challenging—claim that lesser rabbis are also "angels," or divine agent, with equal greatness and authority as the great rabbis. Bechofer's position is seconded by R. Herschel Schachter, who also regards assigning a taint of bias to otherwise infaflible great rabbis'^s to be heresy. If the great rabbi may invent innovative concepts, he may determine, on the strength of his own intuition, that disagreeing with the great sage, i.e. his own person, is treason against Torah. Just as critical methodology may not be applied, in this view, to the canonical library (the Bible and Talmud), this methodology may

132 Reported in his tape, "The P'sak Process." 133 Supra.

THE REVIEW OF RABBINIC JUDAISM 17 (2014) 57-111 88 YUTER not be applied to the human canons who are ordained to speak in God's voice. Thus for the great rabbis' Judaic system, the Halakhah is a mystical code that needs to be divined. It may neither be understood nor may it be applied as a rationally assessable or accessible normative order. Torah Law is not a law like any other legal order. Since Judaism's ultimate and essential secrets are known only to its great rabbis, lesser rabbis as well as lay people must accept elite rabbis' rulings uncritically and without question. Hence,

The Torah understands that our highest spiritual goals are attained through and manifested in our actions. We serve God not by pious pronouncements of faith but by "walking in all His ways," by the actual fulfillment of the Torah's commandments. We demonstrate piety not by artificial displays of "spirituality" but by solid and steady commitment to righteous living.

Note that the "Torah," i.e., the Judaism of the Dual Torah, is here personified as a living, cognitive, and dynamic being. "Righteous living" is not here defined by Bechofer; the uninitiated reader might take the phrase "solid and steady commitment to righteous living" to be overly spiritual. For the Judaism of the Dual Torah, this state of being is attained only and exclusively by obeying the actual, public, and recorded norms of its legal order, which are called mitsvot, which may be rendered "commandments" or "precepts." What "artificial displays of'spirituality'" happen to be is a deliciously sug- gestive idea; any act that is not performed as a commandment, for Dual Torah Judaism, carries no normative valence.'-^'* However, when approved by great rabbis, an act unattested in the Dual Torah becomes functionally normative according to this alternative Jewish Orthodoxy. It is for the great rabbis to determine what "artificial displays of "spirituality" really are. "Spirituality" is monitored as a franchise and is not determined by personal feelings. Similarly, the cliché "solid and steady commitment to righteous living" is semantically indeterminate. The great rabbi decides what the idiom means, defining

134 Examples of such "spirituality"" that are on one hand socially normative yet not commanded include the wearing of the black fedora, the allegedly mandatory growing of the male beard, tiqqun sessions on Shavu"ot, Hoshana Rabba"s liturgical expansion, the kap- poros chicken waving before Yom Kippur, wearing the prayer beltlgartle when one is in any case wearing a belt, the Hassidic Messiah meal eaten at the end of Passover, avoiding legumes and soaked matsa on Passover, the current Simhat Torah, Israel Independence Day, and Jerusalem Day. These are all invented rites and observances to which spiritual valence is imputed but not demonstrated.

THE REVIEW OF RABBINIC JUDAISM 17 (2014) 57-111 THE HAREDI READING OFJEWISH LAW 89 culture compliance to be Jewishly normative and dissent to be subversively unrighteous.'^^

It should be emphasized that the Torah views the fulfillment of commandments as a means of coming into a relationship with the Almighfy—to fear and to love God. If the commandments are performed in a mechanical and unthinking way, then this reveals one's preference for automatic ritualistic behavior rather than a dynamic living relationship with God.

I am unaware of any norm of/in the Dual Torah that requires an impossible "dynamic living relationship" with the Author of the Dual Torah's Basic Norm.'36 Of course zeal and devotion are religiously worthy dispositions. But compliance with the actual norms—and not culturally contrived conventional alternatives—is required by the Dual Torah legal order. Zeal is not a source of Law and zeal and fervor are not always consistent with the law.'^^

I was once asked in a Kiruv (= outreach to the not yet Orthodox) class why the opinion of the Conservative "Rabbinate" that permitted driving to Shul on Shabbos is not considered divrei Elokim ehaim. There are, of course, many answers to this question, including the simple fact that their Halachic Decisors do not meet the above criteria. I believe, however, that we often make the mistake of engaging in a polemic that disputes the methodology they employed in reaching their conclusions. This approach ignores the true "Great Divide" between us and them... the fact that they do not fulfill Halacha is not what makes them Non-Orthodox (i.e., Apikorsim, even if, Tinokos She'nishbu). That would only make them Avaryanim, i.e. less or non-observant. It is their denial of Torah min HaShamayim and several other of the Yud Gimmel Ikkarim that separates them from true Judaism. A "movement" that denies the principles of Judaism is unacceptable in a way that transcends Halachic methodologies or specific questions of expertise or observance.

135 Rosman, supra, pp. 140-147, argues that Jews internalized Polish ways of looking at themselves because they were embedded in that social world. Similarly, rabbis seem to have internalized Catholic patterns of religion. 136 Maimonides, Yesodei ha-Torah 1:12, would indicate that a "relationship" with God as a being may be described metaphorically but not literally. 137 Lev. 10:1, as understood by Sijra Shemini i, s.v. va-yehi ba-yyom.

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Note that the actual methodology of Bechofer—and the rabbinate that he and Resnicoff see as a norm creating authority—is rightly perceived by those not yet Orthodox to be strikingly similar to Conservative Judaism's halakhic methodology. After all. Conservative Judaism permits riding in a car on Shabbat,'^^ in violation of what would seem to be an explicit Torah norm (Exod. 35:3). But Bechofer's and Resnicoff's version of Haredi Orthodoxy also forbids rather than requires both male and female Israeli military service, as required by another equally explicit—and suppressed—Dual Torah statute.'^^ According to Haredi Orthodoxy, the agenda dwá the/jensiwac of Conservative Judaism are flawed not because the Conservative theory of Jewish law is on its face incom- patible with Halakhah, which is for both Conservative and Haredi Judaisms, indeterminate. The Conservative Movement's view of Jewish law, which holds that the intuitive understanding of a Rabbinic elite is adequate and sufficient to develop a law that changes with the times, is a doctrine shared by the Haredi Rabbinic elite! The problem is that the Conservatives, because they are for Haredim heretics, do not accept the correct doctrine of authentic orthodox taith, culture, loyalties, and most critically, elites. The Conservatives, like the Modern Orthodox, are unable to read the mind of God correctly, while the Haredi elite is indeed able, at least to its satisfaction, to do so. As dissidents or opponents of the carriers of authentic Rabbinic knowledge. Conservative leaders are to this view regarded as apiqorsim, heretics who deny "revelation," which is the will of God as revealed not only in the sacred texts but in the intuitions with which God is said to have graced great rabbis. Alternatively, uneducated Jews are not to be categorized as heretics because,

138 See Maimomides, Mamrim 2:4, for the legal grounds upon which to permit the use of a car on Shabbat. See also AlanJ. Yuter, "Hora'atSha'ah.The Emergency Principle in Jewish Law and a Contemporary Application," infewish Political Studies Review 13:3-4 (Fall 2001), pp. 3-39- 139 B. Sota 44b. See http://v*rww.yutorah.org/iectures/lecture.cfm/735795/Rabbi_Alfred_ Cohen/Drafting_Women_for_the_Army for an apologia that privileges community gender roles over explicit Talmudic statute. Note well that this paper's author. Rabbi A. Cohen, does not explain why B. Sot. 44b, a canonical document, is not normative, while the vehement consensus of culturally acclaimed great rabbis is not only normative but in practice is authorized to override the sacred canon. Ciohen's paper was first published as "Drafting Women for the Israreli Army," \n Journal of Halacha and Contemporary Society 16 (Fall, 1988), pp. 26-43. While the use of a car is a violation of greater valence than forbidding women to be drafted into the Israeli army, the very fact that the Haredi social rule defies what is taken to be the divinely inspired Dual Torah norm indicates that this version of Orthodoxy's esoteric elite religion is not committed to Halakhah as a public normative order, but exploits it to reify what it calls "Tradition."

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being uninformed, they are still potential clients, waiting to be touched, claimed, and harvested by Haredi outreach professionals. Those Orthodox Jews who deny charismatic, intuitive Halakhah are the real heretics. On the other hand, the Maimonidean position regards the heretic to be one who denies that God actually communicates with humankind.'*" Ironically, Bechofer cites Maimonides' articles of faith as if they are canonical,''*' even though in the time of their publication they were contested and were not explicitly promulgated as dogmatic requirements in the Dual Torah. Bechofer ignores Maimonides' description of Jewish law as a normative order.''^^ The Dual Torah literary trove and the evidence it provides is for this Judaism, as conceded by Bechofer, normatively indeterminate; the great rabbis' rule is authorized by their exclusive right to decode the indeterminate canon while citing the literally trove selectively. Thus, reasoned arguments''*^ and the possibilities they provide are by definition illegitimate unless they are offered—or approved—by the great rabbis. Bechofer even tells his reader how to identify the real Orthodox authority person:

140 Maimonides, Teshuva 3:8. Those who believe that God's mind may be intuited by specu- lation rather than by means of a philological explication of the Dual Torah's recorded, canonical word might, for Maimonidean Judaism, themselves be viewed as koferim ba- Torah, i.e., deniers of Torah. Raabad's rebuttal at supra 3:7 suggests that the greatness of a rabbi is inferred and declared by the elite rabbis who are graced with right doctrine (i.e. orthodoxy) and correct intuition. Whether Maimonides is theologically correct regarding the matter at hand, the corporeality of God is not the issue; Raabad's phrase, "bigger and better" sages than Maimonides believed that God does possess a body, is not a legal or logical challenge, it is a political call to arms. For Raabad and the Judaism he espouses, along with R. Feinstein's insistence that smoking may not be forbidden because great rabbis smoke and Haredi charismatic law, all define legal norms according to the consensus of a sacred elite but not according to the recorded, canonical norm. It is no accident that Raabad is a French rabbi. See again Jose Faur, The Horizontal Society: Understanding the Covenant and Alphabetic Judaism (Boston, 2008). The heroic French rabbi is unable to make a mistake, p. 345; these rabbis are anti-Maimonidean in that their "Tradition" is esoteric, eUtist, and not subject to review, pp. 346-7; the most notable of them was Nahmanides, who speaks dogmatically and tolerates no dissent, p. 350; these rabbis affirm Tradition as an esoteric dogma, unlike the exoteric tradition of the Dual Torah, p. 352. According to Faur, this doctrine of esoteric and heroic religious intuition reflects a Ghristian pattern of thought, p. 356. 141 Commentary to M. San. 10:1. 142 Introduction to the Yad. 143 B. Hul. 90b and Introduction to the Yad, where Maimonides explicitly privileges the ten- tative reasoning of the individual rabbi to the reputation, charisma, and greatness of the great sage, in direct contrast to the French esotericist Raabad's view.

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Once a Posek is recognized to have attained the above criteria, a layman is not obliged to ascertain the validity ofthat Posek's Halachic methodology.

The "legitimacy of a Posek" is a doctrine fraught with unarticulated and textu- ally unsupported assumptions. The great rabbi's legal authority is dogma for Bechofer, because this person is also a holy man. The idea that "a layman is not obliged to ascertain the validity" also requires unpacking. Not only is the layman—and rabbi who is not regarded to be great—not permitted to question the validity of the great rabbis' rulings but must accept the great rabbis' rulings because they are God's revealed word. Bechofer even advances a doctrine of Rabbinic infallibility:

Hashem helps Poskim to reach legitimate conclusions that are divrei Elokim chaim, and suitable for the Avodas Hashem of the relevant people, places and times.''**

This assertion is justified by the verse, "God's secrets are [entrusted] to those who revere Him."''*^ However, "those who revere" God in the Dual Torah canon either refers to the prophets or to leading Tannaitic sages. In its Talmudic context, the idiom cannot possibly refer to contemporary rabbis. The idea, which is rather innovative, is shared within the Orthodox world. According to R. Hershel Schachter:

Changes in [Jewish ritual] practice require delicate evaluations that only a master Torah scholar, a gadol buTorah, can properly conduct. Only someone with a broad knowledge and a deep understanding of the corpus of halachah, with an intimate familiarity with both the letter and the spirit of the law, with a mastery of both the rules and the attitudes of the mesorah, can determine when a change is acceptable or even required. The more wide-reaching the proposed change, the greater the expertise required to approve it. The evaluator must not only be a master of the mesorah but be must also be able to consider new practices based

144 See http://www.torahweb.org/torah/20i3/parsha/rsch_eikev.html for R. Schachter's artic- ulation of this identical claim. 145 Ps. 25:14. See Ibn Ezra and especially Malbim, supra. While the Dual Torah at M. Yad. 4:3 and T. Yad. 2:16 took sod to be an esoteric secret, it contextually and philologically means "council." Seejer. 6:11, Ps. 25:15,83:4, and Prov. 15:22.

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solely on values internal to the mesorah, removing external influences''*'' from the délibération.'**^

For R. Schachter, "Tradition" may indeed be updated by means of divinely guided, elite Rabbinic intuition, which is in the sole possession and discre- tion of the great rabbis. The alternative Maimonidean system of Jewish law makes no provision for a non-canonical legal organ called gedolim/great ones or masters oiMasorah to exercise this kind of ad hoc authority because Israel's publically revealed law has rules of recognition that preclude the possibility of charismatic usurpations. Dual Torah Judaism is based upon principles, not principals. R. Schachter continues:

The greatest Poskim became one with the Torah itself, and their capacity to pasken transcended even the Halachic process itself.

The statement "their capacity to pasken [render a legal ruling or opinion] transcended even the Halachic process itself" reveals the real, oral, living religion that is presented as "orthodox" in the Haredi yeshivot and by R. Schachter as well. Note that R. Schachter also sees the person of the great sage to be Torah incarnate; the greatest decisors are indeed Torah in the walking, talking flesh.'"•** The "halakhic process" is for Haredi religion in reality an oxymoron, because the great rabbi's intuition is the living text of this Judaism's real religion; there is no identifiable "halakhic process" that is tolerated. R. Schachter is not shy with regard to conceding his system's subjectivity. He reports:

146 Bechofer"s «e^/os, above. 147 "Preserving Our Mesorah,"" injewish Action 71:2 (Winter, 2010), Internet edition. The italics, which are my own, all suggest that Halakhah is an esoteric, inaccessible art and not an academic, scientific, or even testable discipline. "Broad," "deep,"" and "intimate" are not terms that suggest measurability. The "spirit of the law" is a doctrine totally alien to classical Judaism, which does not even have a term for it. The doctrine may be intended in Rom. 8:2 and Gal. 3:2, where the "spirit" is a Divine inspiration so grand that it overrides the Divine Torah that cannot otherwise be overridden. In contrast to the Pauline view of Law, Dual Torah Halakhah is not to be derived from mystical musings or intuitive conjec- tures. SeeJ. Faur, "De-Authorization of the Law: Paul and the Oedipal Model," in Journal of Psychiatry and the Humanities 11 (1989), pp. 222-243. 148 See Matt. 12:1-21, where Jesus the person appears as Torah incarnate.

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Once the Chasam Sofer zt"rs son, the Ksav Sofer zt"l, felt that his father's proofs in a certain teshuva were questionable. He asked his father, therefore, ahout the validify of the resultant psak. The Chasam Sofer respon- ded that in his piskei halaeha, the primary determining factor was his sense of what the psak (the legal decision) should be. Specific proofs were secondary in importance {Nefesh HaRav, p. 42).''^^

This view may or may not he the "Tradition" of the Sofer family. Given the world view of R. Schachter outlined above, R. Schachter's report that according to his mentor, R. Joseph B. Soloveitchik, the poseq rules "from the gut"'^*^ is consistent with other remarks made both by R. Schachter and Bechofer, which cohere with Resnicoff's description of how Jewish law works in real life. Note that the great rabbi "knows" what the law should he intuitively but is not required to demonstrate his reasoning or persuade the listener; the law is valid in this view not because it may be demonstrated to be consistent with the norms of the Dual Torah legal order, hut rather because the law is consistent with the deci- sor's declared intuitive sense of propriefy. Hence for Bechofer,

When Am Yisroel, via its Poskim and its Minhagim [sic; read instead Manhigim, leaders, as required by context],'S' determines specific issues according to the guidelines that decide psak halaeha {\.e.,yachidv'rabbim halacha k'rabbim, etc.), that psak shapes the realify of Creation The Poskim decide not only Halachic realify hut also the structural realify of the world. As long as the psak is not conclusively decided hy Am Yisroel, conflicting opinions may each represent legitimate avenues of practical Avodas Hashem. Once, however, the psak has been decided, the rejected opinion is still Torah, and theoretical divrei Elokim chayim, but it is no longer a legitimate avenue of practical Avodas Hashem It is more difficult, if not impossible, at least for us, to identify such parallels on

149 This volume, Nefesh ha-Rav (Jerusalem, 1994), presents R. Schachter's account of his teacher, R. Joseph B. Soloveithchik's teachings and doctrines. A leitmotif of this incred- ible archive is that the student is required to submit and defer to his teacher uncritically. See however Ru'ahUayyim to M. Av. 1:3, where the informed student must challenge the teacher if the student believes that the teacher errs. I thank R. Norman Lamm, who like R. Schachter is a student of R. Soloveitchik, for this insight. My own teachers. Professors (and Rabbis) Jose Faur and Baruch A. Levine, made students and not clones of their many graduate students. 150 The P'sak Process tape. Note well that the tape speaks of "process," yet the ultimate source of authority is charisma, with the "process" idiom functioning to mislead the gullible. 151 Note that the leader, Hebrew, manhig, is the man who makes the minhag, the custom.

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micro-levels such as our example, mezuza. In terms of Halachic conduct in this area, however, we have, hopefully, achieved some degree of clarification.

Here, Bechofer regards the authentic. Orthodox post-Talmudic leaders of Israel not only as legislators but as creators of reality. If I read Bechofer correctly, he is claiming that Haredi Judaism is a human socio-religious construct'^^ that is masked in legitimating, authoritarian, mysteriously "religious" idioms. According to thejudaism of the Dual Torah, a view remains valid if and only if it does not violate higher grade norms. Any ruhng, like permitting women to slaughter'53 cannot, for the Dual Torah, be regarded as invalid unless a Bet din ha-Gadol is convened to invalidate and override the permissive

152 I recently examined this phenomenon in "Reconstructodoxy," \n Jewish Law Association Newsletter-¡Sc 4 (2011), pp. 24-31. 153 B. Hul. 2a and B. Hul. YD i:i. R. Shabbatai Cohen, supra, complains that if an act has not been done, it may not be done. For R. Cohen, the street culture reveals the will of God. Curiously, R. Cohen did not address R. Caro, Bet Yosef, supra, who requires a Rabbinic protest in order to claim that a given act must be restricted. This early modern debate also encapsulates the conflict being examined here. Like Raabad, R. Sh. Cohen takes the Law to be what is communally accepted; in contrast, R. Caro claims that authentic Laws need to be legally legislated norms. 154 See Rosman, supra, pp. 137-147 and 172-181, for the claims that R. Isserles' Ashkenazi culture was oral and enshrined gender restrictive practices that exceeded the requirements of Dual Torah law. Prof Moshe Rosman's observation, that oral culture overrides canonical text in order to be more ritually rigorous, is not only correct; it actually understates the case. M. Pes. 10:1 requires reclining at the Seder. B. Pes. 108a requires that women designated as "important" recline at the Seder. At Hamets u-Matsa 7:8, Maimonides codifies the norm that women designated to be "important" are required to recline at the Seder. While R. Karo in Shulhan Aruch OH 472:4 echoes what the reader would regard to be clear, settled law, that reader is confronted with R. Isserles' unsettling gloss, which claims all our women are important, and they, i.e. the allegedly "important" Ashkenazi women, have the custom not to recline, and they rely upon the Tosafist, R. Eliezer b. Yoel, to Pesahim, n. 525, who argues that reclining at the seder no longer carries with it the sense of aristocratic freedom (like Plato's Symposium) and need not be observed because times and mores have changed. But R. Isserles requires men and not women to recline, thereby undermining R. Eliezer b. Yoel's theory that an archaic law loses validity. An equally plau- sible response to R. Eliezer b. Yoel's theory would be that Jewish law chose meal reclining to be the standard by which the jew in the Hellenistic Levant signified one's being an aristocrat, in contrast to Greek social practice. Thus, on Seder night, all Jews are free aris- tocrats. Note the striking similarity of R. Eliezer b. Yoel's view that Dual Torah norms may be abolished if they become anachronistic. When understood in the context of women donning the tallit and women's zimmun, we find culture driven antipathy on the part

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Orthodox Rabbinical ordination is an institution that also needs to be reconstructed in Haredi religion; ordination no longer means what its traditional ïormu\a,yorehyoreh, semantically and lexically appears to mean, that its holder has been found qualified to render a reading and offer a reasoned ruling regardingjewish law. Since for this authoritarian version of Orthodox Judaism, Jewish law is a mystery but not a normative legal order, the nation of Israel is to be led not by what the legal texts seem to say but by what the theologically correct rabbis say those texts say they mean. Similarly, Resnicoff assiduously avoids explicating, reviewing, or even assessing the reasoning of great rabbis by contrasting their views with each other or by evaluating their premises, their logic, or the cogency of their assumptions. For example, the merits of R. Moshe D. Tendler's dissenting view regarding brain death or R. Uzziel's alternative ruling regarding abortion are silenced and thereby filtered out of the trove that Resnicoff" offers to the unaware reader. In the responsa of R. Ovadia Yosef, contrasting opinions are presented and evaluated, conversational dialectic is entertained, and reasons for a given ruling are made explicit. In American law schools, even Supreme Court rulings are subject to review, discussion, and criticism. But in Resnicoff's Judaism, one is required to accept the opinion of contemporary great rabbis uncritically, i.e., without making a judgment, and the dghtness of their rulings must be assumed as though they are as a collective a virtual if not actual Bet Din ha-GadoL By conceding that a community rabbi in theory is authorized to issue valid rulings'-''^ and by suggesting that, in actuality, such authority has effectively lapsed, Bechofer and Resnicoff's version of Orthodox Judaism reveals both an evolution and a revolution injewish law. Over time, the communal rabbinate is first delegitimized and then replaced by the alternate Rabbinic elite, whose jurisdiction is global and whose authority resides in its unique charisma. This is a shift in the locus of legal authority from the most convincing reading of the canonical Dual Torah library to fidelity to the non-reviewable intuitions

of men toward the public practice of ritual—and so the assertion of personhood—of women, even when women's access to these rites is licensed by the Dual Torah. It is one matter to forbid the permitted; it is in Dual Torah Judaism legally invalid to forbid by custom what Dual Torah law explicitly requires. This extended excursus supports the finding that both Haretii and (Conservative Judaisms share loose legal theories; the former shapes, bends, and if threatening to its ethos, violates the law to remain culturally dis- tinct; the Conservative Movement applies the identical method to justify its alternative social agenda, which accommodates, adjusts, and embraces a larger culture that its client population is unwilling to resist. 155 Maimonides, Introduction to the Yad; R. Joseph Caro, Bet Yosef Hoshen Mishpat 25.

THE REVIEW OF RABBINIC JUDAISM 17 (2014) 57-111 THE HAREDI READING OF JEWISH LAW 97 of partisan human canons, who advance their personal leadership and social agenda by de-authorizing the law and by requiring unquestioning compliance to their edicts. By offering "ordination" to so many of its students, without training them to render decisions, Haredi religion cheapens the ordination so that all institutional ordinations are mere honorifics. R. Schachter teaches that the average Orthodox rabbi is "a policeman, not aposeqr,"'^'' an enforcer but not a carrier of authority. The modern version of the Judaism articulated by the medieval French rabbis has successfully superseded the Dual Torah Judaism that provides Jewry's "official religion."'^'' On the one hand, this "new" Judaism finds ample precedent in the charismatic mysticism of medieval French rabbis and in the contemporary popular version of Orthodoxy of the Jewish street. On the other hand, this Judaism implicitly rejects the Dual Torah's rules of legal recognition whose hermeneutic holds Halakhists to account. Recent research into Orthodox Judaism in modern times has cafled atten- tion to this Orthodoxy's esoteric authoritarianism. Menahem Kellner's'^^ and Yoel Finkleman's^^^ studies of Rabbi Aharon Koder, Resnicoff's Lakewood mentor, reveal why, for this Judaism, Halakhah is not really the normative order that it presents itself to be. In an earlier study,'^° I failed to take adequate notice of the startling fact that for the Brisker conceptual Yeshiva Tradition,

156 "The P'sak Process" tape. 157 See Tractate Zevahin, ArtScroll, Hebrew edition (Brooklyn, 2010), p. 27: "The heads of the Yeshivot and the great rabbis of the generation past and this generation^om whose mouths we live (mi-pihem anu kayyin) have acted graciously with us, brought is near [to them] and gifted us with their counsel and wisdom" [my translation from the Hebrew; my italics]. See Y. Sheq. 2:47:1:5, according to which the righteous will teach halakhah, and Sifre Devarim 351, s.v.,yoru. The idiom in this context resonates, that there are select indi- viduals who indeed have the right and authority to teach normative Jewish law. The origi- nal, historical, plain sense context refers to the rabbis of late antiquity but is here being applied to the relatively contemporary yeshiva heads and the great rabbis of this and the previous generation. Note that for ArtScroU's Haredi religion, texts are ritually reviewed but not applied as normative sacred texts; practical normativity resides exclusively in the non-reviewable rulings of this community's culture elite. 158 "Each Generation and Its Maimonides: The Maimonides of Rabbi Aharon Kotier," in U. Ehrlich, H. Kreisel, D. Lasker, eds.. By the WelL Studies injewish Philosophy andHalakhic Thought Presented to Gerald/. Blidstein (Beer-Sheva, 2008), pp. 463-486 (Hebrew). 159 "An Ideology for American Yeshiva Students: The Sermons of R. Aharon Kotier," injoumal of Jewish Studies (Autumn 2007), pp. 1942-1962. 160 "The Nuanced Ambiguities of R.Joseph B. Soloveitvchik's Thought" (a review essay of Dov Schwartz, Religion or Halakha: The Philosophy of Rabbijoseph B. Soloveitchik [Leiden and Boston, 2007] ), in Review of Rabbinic Judaism 12.2 (2009), p. 229.

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Halakhah is lomdus, the way learning is done, but Halakhah by "Tradition" must not be taken to be a readable, normative order. It is through the Torah generated by lomdus that the Halakhic Man is for R. Soloveitchik creative, in a very real sense a giver and creator of Torah.'*"' Thus the masses are denied access to the "creative" political aspects of this Judaism. Our present findings are anticipated by Kellner's and Finkleman's careful and insightful work. Their studies dare to contrast R. Kotler's actual religion to the "official" religion encoded in Israel's Dual Torah. This ideological position indicates these two scholars' work com|)rises/jnmary sources oían academic, intellectual Orthodoxy that applies modern tools to assault what they, as participants in a modern culture war, believe is a misreading of "Torah." Kellner contrasts the teachings of Maimonides as they are understood by modern scholars with R. Kotler's ideological construction of what to his view Maimonides "really" meant. Citing R. Kotler's writings,'*'^ Kellner reports:

If a person approaches Torah with the entirety of his contracted [i.e. finite] reason and assesses it [Torah] according to the measure of his woefully inadequate reason, it is as if he reduces the Torah to his own [severely limited] reasoning and understanding. There is no degradation and misuse of the sacred"'^ greater than this A person is [simply] unable to evaluate"''* the Torah with [the tools of] his own comprehension;

161 Since the Yeshiva heads wish to preside over Orthodox Jewry and be real definers of Judaism as Judaism's authentic and rightful leaders, this daring doctrine is rarely expressed ex|ilicitly. Bechofer clearly endorses this view as well, as he assigns to great rabbis the authority to invent law in a system that is both mystical and indeterminate. That the Judaism of the Dual Torah did not generate the doctrine that great rabbis may read the mind of God and create new law thereby can be explained as noted above, but Deut. 4:2,13:1, and 13:2-5 yields a very different version of religion. One need not be either an Orthodox exegete or a higher biblical critic to realize that w. 2-5 actually explains v. 1. The Written Torah seems to regard oracular religion to be outside of its doctrinal pale. 162 Mishnat Rabbi Aharon, 3, p. 173. This collection was made by his students, representing him as understood by his devoted listeners. The reader cannot know for certain what R. Kotier actually said, only how he was heard by his transcribers. 163 Hebrew, me'ilah, which refers to misappropriating sacred property for secular use. See Maimonides, Hilkhot Me'ilah v.i. This rhetoric extends the normative force of the Dual Torah's actual norms to include the subjective extensions deemed appropriate by the great sage. 164 R. Kotier was apparently a master rhetorician. The Hebrew "le-ha'arich" carries with it a semantic field. The roots primary sense is "evaluate," i.e., passing a critical judgment regarding what Torah means, which in R. Kotler's world is an audacious claim, to say the least. Also outlawed by R. Kotier is the right to a reasoned explication of Torah text on

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rather one is required to accept every interpretation of our Sages of Blessed Memory to each word and letter of the Torah."'^ This is because the Torah's language is not like the secular language which we are using and in accord with our [conventional] concepts, and in order to understand it one requires immense comprehension and learning of Torah for its own sake, with holiness, purify, and a reliable person to person chain of tradition.

Upon inspection, R. Kotler's world view actually contrasts with that world view articulated by Maimonides. Elsewhere,'^^ Kellner has shown that Maimonides

the part of the "learner." The student is disallowed to make judgments about Torah alto- gether. Thus, aä secular as well as critical thinking is forbidden, because critical thinking empowers people to become free thinkers. Both Rabbis Soloveitchik (as understood by R. Herschel Schachter) and Kotier agree that the student must submit to the master. R. Mayer Twersky, a grandson of R. Soloveitchik, "A Glimpse of the Rav," in Tradition 30:4 (1996), p. 79, writes, "in our attempt to understand, depict and appreciate a few dimen- sions of the Rav's multidimensional greatness, we dare not lower the Rav ztl to our lowly spiritual station. Our personal religious experience does not provide context or categories for understanding him. Our pedestrian loneliness has nothing in common with his pro- found spiritual, existential loneliness Our personal insecurities or ideological incon- sistencies must not distract us or cloud our vision of his multi-faceted harmonious genius and greatness." In his depiction of R. Karelitz's [Hazon Ish] distinguishing between modern and pre-modern heretics, Twersky writes: "Hazon Ish seemingly did not adduce any textual proofs or invoke earlier authorities. But, in fact, his ruling is supported by the full force of the entire Torah corpus because he was guided by his Torah intuition, formed by a lifetime of devotion to and mastery of that corpus. Hakhmei haMasora combine ency- clopedic knowledge with intuitive understanding to represent Torah accurately" (p. 92). For Twersky, only these rabbis are graced with the intuition to render Rabbinic rulings. With a stunningly audacious exegesis, Twersky applies the Maimonidean machish mag- gidehah, which in Maimomidean context refers to "contradicting the Dual Torah sages" [Teshuva 3:8] to also apply to the post-Talmudic the "masoretic" chain, of which he asserts but does not demonstrate that the "great rabbis" are a part. Here, Twersky contradicts the very Maimonidean position he selectively cites, because in the Introduction to the Yad, Maimonides' Tradition/Masora/i ends with Ravina I and Rav Ashi. 165 Here, R. Kotler's view contrasts sharply with Maimonides. For Maimonides, the Talmudic legends are not to be accepted as dogma. See Introduction to the Yad, where the Jew is obliged to accept the decrees, enactments and customs of the Rabbinic sages. Regarding the obligation to understand non-legal Rabbinic statements literally, see Maimonides, Commentary to the Mishhah 10, s.v. u-mimma she-atta, where he seems to disapprove of reading Rabbinic narratives too literally. 166 Maimonides'Confrontation with Mysticism (Oxford and Portland, 2006).

THE REVIEW OF RABBINIC JUDAISM 17 (2014) 57-111 100 YUTER rejected the notion of an enchanted, mystical world,'^^ which is exactly the mysterious world that R. Kotier inhabits. The world that R. Kotier presents is entirely meta-rational and ultimately cannot be understood by human reason."'** For R. Kotier, using academic or critical tools to parse the sacred canon is sacrilege; it is regarded as if one is stealing from the sanctuary. The Hehrew language is to this view a magical, divine language. It is the "holy tongue," which according to R. Kotier "cannot be parsed by finite minds."'*'^ What is here at stake is R. Kotler's view that only holy men are authorized to parse the sacred text, for according to their learned holiness, it is their agenda and their will that will be done. R. Kotier proclaims, with abundant personal charisma but without reasoned demonstration, several Halakhic rulings and doctrines:

• Modern Orthodoxy is sinful because it tolerates subtle changes in Jewish life, the covenantal society whose life-style reflects God's will and allows itself to cooperate with non-Orthodox movements,'™ which "legitimates" pretenders to truth. Modern Orthodoxy also rejects the denial of the human mind required by R. Kotier as well as the notion that the great rabbi is the only legitimate arbiter of authentic religious enchantment. The assertion ofthe modern Orthodox mind numbs the magical, mysterious world woven by the Rabbinic master and it is an expression of modern hubris.

167 See Jacob Neusner, The Enchantments qf Judaism: Rites of Transformation from Birth throuf/h Death (New York, 1987), pp. ix-xv and 4-12. The author exquisitely and poetically reads the modern, street religion of non-fundamentalist Jews from a social scientific/ anthropological perspective and in a popular tome succeeds in defining the real religion of American Jews. U.sing simile and metaphor (p. 3), religion enchants time, allowing adhering participants to experience a sense of the sacred. In Maimonides' Judaism, enchantment must come through the mind; in other religions, everything is enchanted because, as R. Kotier contends, reason must defer to his Rabbinic intuition. 168 See however Deut. 30:11-14 and B. B.M. 59b for the Written and Oral Torah's view of textual normativity and accessibility. 169 B. Ber. 31b, B. Yeb. 71a, B. Ket. 71b, B. Ned. 3a, B. Git. 41b, B. Qid. 17b, 21b, B. B.M. 31b, 94b, B. San. 64b, 84b, 90b, B. Mak. 12a, B. A.Z. 27a, B. Zeb. 108a, B. Ker. ua, B. Tam. 29a, B. Nid. 32b and 44a. In our search for the historical Maimonides, we find that Maimonides but not R. Kotier believes that the Torah speaks in everyday understandable language. See Hilkhot Yesodei ha-Torah 1:12. 170 Finkelman, p. 316, n. 6; Kotier. Ill 152-156.

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On the one hand, R. Kotier cites Maimonides'^' for the precedent for allowing the Lévites and anyone who wishes to study Torah without working for a living, but does not address Maimonides' passionate, con- tradictory view that learning Torah does not free the learner from the obligation to earn a living.'^^ According to R. Kotier, God will provide for the learned, faith-filled disciples.'"^^ R. Kotier does not even address Maimonides' view that students are not really entitled to lifetime study stipends,'^"* as these "students" use and thereby abuse sacred study by exploiting religious learning for profane, livelihood-driven ends. For R. Kotier, one studies Torah as divine service; understanding comes from the oral text of the teaching oracle because the Torah is, to this view, too secretive to be understood. Since the Oral Torah does not object to earning a living while learning Torah,'''^ R. Kotler's denigration of those Orthodox Jews who view secular work differently than he does indicates that he is reforming the Dual Torah. Earning a livelihood is expected (B. Shab. 33b), as the sages' response to R. Simeon, who, like R. Kotier, demanded a full-time commitment to sacred study, indicates (B. Shab. 33b).'''^ In other words, for the Dual Torah, academic reclusivity, while not absolutely forbidden, is neither the ideal choice nor may it be presented as official Torah policy. • For R. Kotier, one ideally ought never leave the Yeshiva, one must never attend college or allow oneself to be exposed to or seduced by the mate- riality, secularity, or the tools and mindset for critical thinking, of the dis- enchanted world.'"^^ But R. Kotler's campaign conflicts with the Dual Torah requirement that Torah should be studied along with worldly pur- suits (M. Avot 2:4), that work and labor should be embraced and loved (M. Avot 1:10), that Torah may not be used as an instrument to earn or merit one's livelihood (M. Avot 4:5), that one should not anticipate or expect miracles for material support (B. A.Z. 3a), that God in the Genesis narrative instructed post-Eden humankind to work for a living (Gen. 3:19,

171 Hilkhot Shemita ve-Yoveil 13:13. 172 Maimonides, Hilkhot Talmud Torah 3:10. 173 Finkelman, p. 317; Kotier, III 153-154. 174 Maimonides, Torah Study 3:10. 175 M. Avot 2:2. 176 B. Ber. 35b reports that those who chose R. Simeon's approach were not successful. Even though earlier generations could, according to Rabbinic myth, study all day, the Talmud, supra, concludes that such behavior is no longer socially or economically feasible and therefore not condemnable, in current circumstances. 177 Finkelman, p. 318; Kotier, I pp. 146-149.

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Exod. 20:9 and 23:12), and that those who, Uke R. Simeon barYohai, studied Torah so intensely and exclusively that they became recluses were usually unsuccessful in their efforts.'^** In R. Koder's system, Hke R. Feinstein's and R. Schachter's, the charismatic sage is the living normative Torah "text." This Judaism projects a countercultural otherness, which is inaccessibly mystical and demands uncritical submission to the will of its Rabbinic ehte.'^'-* • One should not, according to R. Kotier, learn in a Yeshiva in order to train for a practical career, e.g., becoming a teacher or rabbi.'^" Since he fails to cite a source that justifies this claim, which contrasts with the Dual Torah voices cited above, I wonder how R. Kotier made these extravagant asser- tions without being challenged either by students or other rabbis. • While many advocates of full time-learning give equal credit to the working, devoted, and sacrificing wives, R. Kotier contends that women, not being commanded to learn, do not bave the "spiritual capacity and power of Torah to Influence the soul."'^' How R. Kotier comes to this conclusion is both unclear and unaddressed. The innocent reader or hearer of R. Kotler's words might conclude that, for R. Kotier, women are less human than men and are defined by men to be instrumental adjuncts and acces- sories, especially the men who study under R. Kotler's tutelage. In antique

178 B. Shab. iia-i2a. See also the thoughtful observations of Ahron Lichtenstein, Be-Or Panecha yehallechun (Alon Shevut, 2006), pp. 64-74, where the author contends that making the Torah fixed in one's life (M. Avot 1:15) requires that Torah study be the ideal priority and not that secular activity not be undertaken as if it were demonic. 179 At http://forward.com/articles/138131/ultra-orthodox-group-affinns-abuse-cases-go-first/ it is reported that ultra-Orthodox great rabbis want reports of sexual abuse to come to them, not to non-Jewish civil authorities. The merits of this policy are not within the purview of this study. But the stunning fact is that Orah Hayyim Hoshen Mishpat 425:1 requires reporting the offense to the civil authorities, not to punish the guilty but to pro- tect the innocent. By suppressing and not addressing this sixteenth century ruling, these rabbis are asserting, like Bechofer, that the law is really indeterminate, the Dual Torah's legal statutes are to be taken provisionally, the image of the community and rectitude of its leaders are beyond review and account, and it is heresy and treason to suggest that saintly rabbis have anything but saintly motives. 180 Finkelman, supra; Kotier, III, p. 239. Curiously. R. Kotler's Lakewood Yeshiva involves itself with Pell (¡rants, which are designed to educate poor students and not to finance professional learners. Maimonides, Hilkhot Mattanat 'Evyonim 8:9 discourages seeking govern- mental aid for Jewish charity. 181 Finkelman, p. 319, Kotier, IV, \t. 12. This particular teaching of R. Kotier did not find its place in the Haredi parallel Beis Yaakov system that teaches Orthodox women to accept R. Kotler's construction of religious reality.

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Dual Torah Judaism, a woman has the standing, legal right, and human dignity to waive her claim to matrimonial support by denying her hus- band control over her earned income (B. Ket. 58b). The approach articulated by R. Kotier is challenged by a modern Orthodox non-Haredi Rosh Yeshiva, R. Dov Linzer:

By saying that all women must hide their bodies, they are (really) saying that every woman is an object who can stir a man's sexual thoughts. Thus, every woman who passes their field of vision is sized up on the basis of how much of her body is covered. She is not seen as a complete person, only as a potential inducement to sin But it's actually a complete per- version. The Talmud, thefoundation of Jewish law, acknowledges that men can be sexually aroused by women and is indeed concerned with sexual thoughts and activity outside of marriage. But it does not tell women that men's sexual urges are their responsibility. Rather, both the Talmud and the later codes'^^ of Jewish law make that demand of men.'^^ [my italics]

In R. Kotler's system—shared to varying degrees by Rabbis Feinstein, Schachter, Bechofer, and Resnicoff—R. Linzer's position must be dismissed out of hand with the following claims:

• Linzer is not deferring to the great rabbis and their world view and is therefore a heretic.'^'* Since he rejects "faith in the sages" (M. Av. 6:6), he is not a sage at all.

182 The word "code" is here used loosely. Medieval rabbis wrote legal compendia as referenced opinions. After the Talmud came to closure, there was no norm creating body extant that could claim the jurisdiction to promulgate a binding code. See Menahem Elon, Ha-Mishpat ha-'Ivri (Jerusalem, 1973), pp. 726-741. 183 http://www.nytimes.coom/2012/01/20/opinion/ultra-orthodox-jews-and-the-modesty- fight.html?_r=2. 184 This scenario actually occurred. See http://vvTvw.theyeshivaworld.com/article.php? p=5269: "The Rosh Yeshiva of Yeshivat Chovevei Torah is Rabbi Dov Linzer. Rabbi Linzer has made pronouncements that appear even more problematic than those of Rabbi Weiss. In YCT's Torah journal entitled Milin Havivin, Linzer writes, 'Should we be bending the halakhah to conform to our modem notions of egalitarianism?' is a reasonable question to ask and a hard one to answer." (Rabbi Linzer in Mitin Havivin/YCT Torah Journal, vol. 1, p. 36.) 'Should we be bending halacha?" Is halacha pliable silly putty that is bendable at will? Who is the 'we" referenced by Rabbi Linzer? Bending halachah to "conform to modern notions" seems far more like a Conservative and Reform practice than an Orthodox one. Yet this statement is from a Rosh Yeshiva of a Yeshiva whose Dean

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• Linzer imposes his worldview on to the library of Torah. His reading is wrong because it contradicts the sources as we, being divinely inspired, see them. Since we and not he are divinely inspired, failure to comply with our dictates reflects gross impiefy on Linzer's part. • Linzer wishes to redefine classical and traditional norms for women's modesfy, their role as mother, and their position as men's subordinate and compliant helpmate.'^-^ • Linzer fails to conform to or to confirm the template called "Orthodox" as we, the duly authorized and acclaimed Rabbinic elite, define the term and police Orthodox sociefy.

In Dual Torah Judaism, Scripture may be read plainly, without institutional mediation. What the reader sees is what the reader gets."^*^ On the other hand, normative, binding Scripture exegesis, midrash halakhah, is given to the Bet Din ha-Gadol and not to the unchecked authorify of any one human being. According to the Dual Torah but in contrast to R. Kotler's view,"*'' the Torah is

claims, 'Unequivocal commitment to the truth, validity and eternal applicability of the Halakhic system'! In his next sentence Rabbi Linzer writes, 'An honest answer requires finding within the Talmud voices that articulate those same values that are driving us.' Apparently, 'honesty' to him is not looking into the Torah without negios [a priori biases based upon syncretism with heretical values] to seek what the Torah is teaching us, but rather trying to 'find things' that 'articulate the same values that are driving us.' As if there was no halachic system that teaches us how to rule from the Talmud right on through the poskim, as if we were meant to twist halacha to conform with the philosophy we have imbibed from the majority culture." When its hierarchical construction of reality is threatened, Jewish law is indeed pliable in Haredi religion; when selecting its social choices, Haredi religion has identifiable biases, as well. 185 This is not the place or venue to examine R. Linzer's contending claims. For such a treat- ment, see my "The Two Contemporary Varieties of Orthodox Judaism," in Yamin Levy, ed., Mishpetei Shalom AJubilec in Honor of Rabbi SaulBerman (Riverdale, 2010), pp. 533-606. 186 B. Shab. 63a, B. Yeb. ub, and 24a. The Torah's plain sense really does have meaning according to the Dual Torah's own words, in contrast to R. Kotler's claim, addressed above, that the Torah is unknowable, unreadable, and esoteric. 187 Prof. Jose Faur writes of R. Kotier, his mentor at Lakewood: "My years in Lakewood were pleasurable and profitable At the same time the lessons of R' Kotier and my con- tacts with fellow students were making me aware of some basic methodological flaws in their approach. The desire to shortcut their way into the Talmud without a system- atic and methodological knowledge of basic Jewish texts made their analysis skimpy and haphazard The dialectics that were being applied to the study of Talmud were not only making shambles out of the text, but, what was more disturbing to me, they were also depriving the very concept of Jewish law, Halacha, of all meaning. Since everything

THE REVIEW OF RABBINIC JUDAISM 17 (2014) 57-111 THE HAREDI READING OF JEWISH LAW IO5 not SO unclear that a sacred person must go up to heaven in order to fetch its pure spiritual meaning from God (Deut. 30:12-13). Several unanswered questions may be posed to R. Kotier and the system that he advocates:

• We concede that one has a right to disagree with Maimonides. But why is Maimonides cited selectively as a support when he takes positions with which R. Kotier agrees but ignored when he disagrees? • Do other scholars have a right to accept Maimonides' view when and where Haredi religion does not? If the Torah is a mystical and inaccessible Law, not comprehensible to human minds, [a] what are we learning when we study Torah, [b] how are we to know that Haredi claims are correct while non-Haredi claims are wrong, and [c] what are the rules of the Torah system according to the Haredi system? • What is the function of studying Talmud in Haredi religion, if Torah's meaning is indeterminate and its plain sense plainly too complicated for comprehension by anyone not vetted to be a great sage? What are we supposed to be learning, recovering, feeling, thinking, or discovering when we study the text directly? What is revealed in Torah revelation?/ How is it that the texts of the canon do not seem to say what Haredi religion claims they mean, especially when the texts are read in their imme- diate semantic sense (See Deut. 30:12)? • Why are Talmudic rabbis so tolerant of their colleagues when they dis- agreed while R. Kotier rejects any position other than his own, even if the dissent is defended with reasoned Dual Torah rhetoric? According to Haredi religion. Orthodoxy's elite rabbinate is not subject to review, so there is no way that its declarations might shown to be in error. Yet the Dual Torah presents a strikingly different doctrine regarding the

could be 'proven' and 'disproven,' there were no absolute categories of right and wrong. Accordingly the only possibility of morality is for the faithful to surrender himself to an assigned superior authority; it is the faithful's duty to obey this authority simply because it is the authority and because he is faithful. More precisely, devotion is not to be measured by an objective halacha (it has been destroyed by dialectics) but by obedience. Within this system of morality there was no uniform duty. It was the privilege of the authority to make special dispensations and allowances (hetarim) to some of the faithful; conversely, the authority could impose some new obligation and duties on all or a part of the faithful," phttp://en.wikipedia.org/wiki/jos%C3%A9_Faur]. Prof Faur's anecdotal experience confirms Prof Kellner's implicit and R. Finkelman's explicit reading of R. Kotler's Judaic system.

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rule of Law and executive accountability. King Solomon is said to have said that no mortal is entirely innocent (Ecc. 7:20), the leaders of Israel are subject to review (Ruth Rabbah to Ruth 1:1), and Hebrew Scripture, as noted above, regards the king (Lev. 4:22), the communal corporate consensus (Lev. 4:13), and the clergy (Lev. 4:3) to be personally fallible and publically accountable. On the one hand, for Haredi religion, simple Jews must be humble and submissive; but Haredi leaders' claims justify their own power, kingdom, and glory, without much stress on personal humility.

R. Kotier could and in our view would likely respond by invoking the doctrine of Emunat Hachamim, that the great sages—in days of yore and in our time—must be trusted to understand God's real and true intent. Without this unflinching faith in the authority and correctness of the great rabbis who are in possession of all the right theological answers, questions like those presented in this paper have no answer and, and if free inquiry is acceptable in modern times, then both social as well as theological chaos obtains. If there is zero tolerance for hard questions, there is no need for unnecessary answers. Faith in contemporary times requires a certainty that can only be provided by the great sage whose subjective intuition is Da'at Torah, the normative will of God as if it were expressed in tbe Torah itself'**^ According to R. Kotier, the only authentic Jewish life is experienced with a total and complete commitment to Torah study,'*'^ the goal of which is to discover that world view that R. Kotier knowingly imposes upon and reads into the Torah. But as noted by Kellner, R. Kotier ignores Maimonides'

188 The great sage's self-definition uses Rabbinic/Dual Torah rhetoric, but his social/political power seems closer to the apocalyptic Moreh Tsedeq of Qumran. Revisionist re-readings of Scripture's canon, like the Pesharim, Enoch, andjubilees, with a renewable as opposed to a fixed law, as taught by the 'teacher,'or SiSaoxaXoç. The claims made by R. Kotier in particular and Haredi religion in general are theologically closer to charismatic Qumranic religion than to the legal Dual Torah Judaism, where the canonical text is fixed and it is the midrashic method that is subject to hermeneutic—as opposed to political—control that allows for develo|)ment. Both the Markan Jesus (Mk. 8:33) and the Teacher of Righteousness (lQHa IV-XXXIV) are strikingly similar figures. Both are chosen by God, to the exclusion of all contenders, both claim exclusive access to God ear, and both demand unflinching faith in themselves from their disciples. See also iQpHab, where the righteous live by faith in the Teacher of Righteousness, the post Pauline Jesus movement lives by faith in Jesus, Heb. 10:38, whereas Hah. 2:4 places (iod as the objective of an individual's faith. 189 Mishnat Rabbi Aharon, I, pp. 36-39,189,122; II, p. 22; III, pp. 49, 51.

THE REVIEW OF RABBINIC JUDAISM 17 (2014) 57-111 THE HAREDI READING OF JEWISH LAW IO7 forceful, negative, ruling forbidding "professional" Torah study, but directs his followers to live on his dole—and under his control. In contrast, Maimonides contends that^^°

anyone who takes upon himself to occupy himself in Torah and support himself from charity profanesGod'sname,despisestheTorah, extinguishes the light of religion, causes ill to himself, and forfeits his place in the Eternity'^' to Come, because it is forbidden to derive [material] benefit from Torah words in this world. Our sages also commanded^^^ that the Torah is not to be exploited as a crown of self-aggrandizement or as an axe with which to dig'^^ [; g^ exploit for a profane purpose], and our sages also commanded and ordered [Israel] to love work and to hate leadership [roles]. Any Torah that is not accompanied by work in the end will bring about indolence, eliciting iniquity that in the end wifl bring the individual to rob his fellows.

Professor Resnicoff's Understanding Jewish Law is an engaging introduction to Jewish law as it has been reconstructed by those who claim to be Jewry's most devout. Orthodox, authoritative practitioners. His work is also an exceed- ingly rich primary source that articulates, albeit by intimation, the living elite ideology of Haredi Orthodoxy. Following the example of Wayne C. Booth's

190 Maimonides, Hilkhot Talmud Torah 3:10. My translation. This was also cited on the Israeli Knesset floor by R. Dov Lipman, in support of requiring Haredi men to serve in the Israeli army and work to make a living. The Haredi response to the impending military con- scription in Israel, as reported in http://www.timesofisrael.com/ultra-orthodox-turn-out- en-masse-to-protest-draft/, reflectively affirms R. Kotler's political/theological ideology: "leaflets were handed out in Jerusalem's ultra-Orthodox neighborhoods urging the masses to demonstrate. Distributed by members of the extremist Eda Haredit faction, the flyers said that the purpose of the rally was to protest the government's alleged determination 'to destroy and eliminate religion and the Torah of Israel by any means possible.' Rabbi Shmuel Auerbach, the leader of the Lithuanian ultra-Orthodox community in Jerusalem, called on the public to 'rise up... against the destructive edicts with which the sinners seek to uproot the Torah.' " At stake in this conflict are two pressing and unresolved questions: who is "Israel" and who are Israel's leaders. 191 I render 'olam as "eternity," following Is. 60:21, as understood by M. San. 10:1. 192 As earlier, I render 'ameru after the Arabic and Aramaic meaning of the root, which carries the sense of "command," as the semantic force of the passage is prescriptive and not merely descriptive. My italics. Maimonides uses this idiom in the introduction to the Yad. 193 M. Ab. 4:5. Note that contra to Raabad's errant claim, Maimonides does cite, by para- phrase, the Dual Torah source for what he takes to be a legal and not mere moral norm.

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Critical Understanding,^•^'^ we recognize the plurality and integrity of value of structures other than our own. However, by applying Kelsen's Pure Theory of Law and H.L.A. Hart's "rule of recognition" to Resnicoff's work, we conclude with these observations:

• By stressing the Divine Origin of the Law as the Law's basic norm, Resnicoff also seems to mystify a law so that when read by outsiders, the reader will be enthralled but not convinced by a method, system, or hermeneutic. • The God idea[s] of the Dual Torah provide a basic norm but nothing even close to a full blown scholastic theology. As a legal system that understands itself as both wise (Deut. 4:6) and Divine (Exod. 20:19, Deut. 4:36), in which its narratives present situations that hold leadership oligarchies and hierarchies to account, it is odd that the Dual Torah version of literary Orthodoxy would authorize an elite leadership clique to rule over the Jewish people without subjecting that leadership to critique, control, assessment, or review. The Dual Torah's legitimating rules of recognition preclude the Rabbinic charismatics' claims by requiring a hermeneutic control that hold Israel's rulers to account. • Dual Torah Judaism's hermeneutic is defined by accessible "ground rules," which define the parameters by which this Judaism expresses itself. Unaddressed by Resnicoff is the actual power—and its limits—of the Haredi great rabbis, who see rectitude in what they happen to do, but not in what the canon on its face seems to require. In order to facilitate this deflection from or reformation of Dual Torah Judaism, rabbis who by dint of ordination are empowered to render rulings must be de-authorized by Haredi Judaism and replaced by the great rabbis with charisma, which is the encoded content of Bechofer's viewing the great rabbi as an angel,'^^ who alone is authorized to read the sacred canon normatively, free of the checks and balances of the Dual Torah's canonical statutes and rules of validating recognition. • What according to the Dual Torah is a matter of Rabbinic competence, expertise, and credentials has in this second type of Orthodoxy morphed

194 University of (Chicago Press, 1979. 195 See Marks. Smith, The Origins oJ Biblical Monotheism: Israel's Polytheistic Background and the Ugaritic Texts (Oxford, 2001), p. 49, sees angels as the lowest tier of divinity in early Israelite religion, regarded to be a non-divine power in later Judaism. Many Orthodox Jews to this day pray to angels "to "bless them with peace,"" apparently unaware that B. Hul. 40a explicitly outlaws this form of devotion.

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