Extra-legal Factors in R. Weinbergӳ Pesak

  • Rav Yitzchak Blau

MODERN RABBINIC THOUGHT

By Rav Yitzchak Blau

 

The previous installments in this series can be accessed at:

http://vbm-torah.org/modern.html

 

Lecture #32:  Extra-legal Factors in R. Weinberg’s Pesak

 

 

R. Weinberg’s halakhic responsa frequently bring meta-halakhic factors to bear, a trend noticed and discussed by Marc Shapiro.  This is not surprising, since Jewish law reflects ideals and values and not just formal rules.  But while similar sentiments appear in the writings of other poskim, R. Weinberg introduces such factors on a more consistent basis and in an admirably forthright manner.  Sometimes communal needs or ethical concerns motivate him to rely upon a leniency he would not otherwise have allowed.  In other scenarios, meta-halakhic factors motivate stringency, even if the practice in question does not entail any legal violation.

 

In 1950, the Chief Rabbi of Finland asked R. Weinberg about reciting kiddush in the synagogue on Friday night.  The old communal custom in that synagogue was to recite kiddush, but they had stopped doing so during World War II due to a lack of wine.  After the war, the community wanted to return to their old custom, while the rabbi, based on R. Yosef Karo’s ruling,[1] preferred not to recite kiddush in the synagogue.  The gemara (Pesachim 101a) says that we recite kiddush in shul for guests who will be eating there; since contemporary guests do not eat in the synagogue, no one fulfills the mitzva of kiddush in shul, rendering the kiddush pointless.  Although the rabbi has a reasonable argument, R. Weinberg directs him to bring back the old custom.

 

R. Weinberg does not utilize extra-legal factors to obviate the need for halakhic argument. First, he surveys the various sources in favor of saying kiddush in shul.  Perhaps, he notes, we maintain old customs even when the motivating reason for the custom no longer applies.  Furthermore, the requirement that kiddush be in the place of eating may be a rabbinic requirement and not essential for fulfilling the biblical commandment of kiddush.  Having offered solid halakhic reasoning, R. Weinberg then introduces educational factors.  He contends that kiddush in shul “adds the grace and beauty of holiness to the entrance of this holy day.”  Moreover, it may inspire less observant shul-goers to recite kiddush in their own homes.[2] Extra-legal factors supplement the legal argumentation.

 

Some recent rabbinic sources suggest that a couple, one or both of whom is in a second marriage, should not walk a bride or groom to the wedding canopy.  The idea seems to be that this constitutes a bad omen for the imminent marriage of the young couple.  R. Weinberg states that no authoritative halakhic source exists supporting this concept; he allows a parent married for the second time to accompany the young bride or groom. He adds that following the restrictive custom “would cause pain to the father.”   Again, other considerations enhance formal halakhic factors.[3]

 

As noted, introducing such factors can motivate leniency or stringency.  In 1954, R. Leo Jung asked R. Weinberg about praying in the vernacular.  R. Weinberg states that no technical halakhic objections prevent prayer in languages other than Hebrew.[4]  Nevertheless, R. Weinberg counsels R. Jung to have his congregants say all the prayers in Hebrew, since “we no longer have a pure and unadulterated Judaism outside of the beit knesset.”  The shul currently symbolizes authentic Judaism; we should not water down the encounter with sanctity involved in the shul-going experience.  Furthermore, this ruling will inspire Jews to realize that they need to learn our Holy Tongue.  Finally, there is something to be said for maintaining traditions, even if not halakhically mandatory.  Here, non-halakhic factors generate a strict ruling.

 

Someone of R. Weinberg’s erudition and brilliance probably could have creatively found a way to prohibit English prayers on formal halakhic grounds - but he does not do so.  Apparently, he preferred a straightforward approach, admitting that the activity under review is truly permitted, even as he forbids it on public policy grounds.  Such an approach encourages honesty and trusts the community to take extra-legal factors seriously.

 

The answer to R. Jung also raises the question of the response of more zealous factions within the community.  This reflects a common theme in R. Weinberg’s writings, and it divides into two components.  In some passages, R. Weinberg indicates understanding and even respect for conservative traditionalists who fight against any kind of change.  On other occasions, he criticizes them for their extreme behavior and their failure to appreciate communal needs.  Clearly, his response varies based on halakhic issues and communal needs in the case at hand.   

 

R. Weinberg’s famous teshuva about co-ed youth groups conveys this duality.  After World War II, Hungarian and Polish rabbis moved to France and complained that a religious youth group called Yeshurun was co-ed and encouraged girls to sing along with boys.  R. Weinberg notes that these rabbis have a point; halakhic sources do favor a separation between the sexes and a concrete prohibition exists against men listening to women singing.  Towards the end of the responsum, R. Weinberg writes:

 

I appreciate the thinking of the pious who complain about Yeshurun.  They see its practice as a deviation from the customs they became accustomed to in Poland and Hungary.  However, they divert their eyes from the situation in France as it truly is.  Pious Jews of the old type have no influence; they are concentrated in their narrow circle and do not pay attention to the process of assimilation that impacts even amongst them.[5]  

 

On the one hand, R. Weinberg does not depict the opposition as fanatics; indeed, they voice legitimate concerns.  At the same time, he faults their lack of understanding of broader communal needs and their exclusive focus on their own narrow community.

 

The response to R. Jung states that the pious will oppose change in the prayer service and will spread rumors that R. Jung is a Reformer.  “Zealots will complain - why pain the hearts of pure God-fearers, whose souls recoil from any change in custom?”  On the one hand, R. Weinberg refers to zealots who complain and spread rumors, a clearly negative depiction.  On the other hand, he writes about not paining “lev ha-yerei’im ha-temimim,” a much more positive description.

 

One final example of R. Weinberg’s nuanced attitude to the more conservative traditionalists appears in his responsum regarding Bat Mitzva ceremonies.  He mentions that the opposition does not reject this innovation based on halakhic grounds but rather due to the feelings of a Jewish heart, which shrinks back from change.  Yet he reminds them that those in favor of this new ceremony have hearts trembling for the religious education of Jewish girls, motivating the need for such a ceremony.  Those rejecting innovation have no monopoly on piety and concern for the Jewish future.[6]

 

In a few scenarios, R. Weinberg loses sympathy for the zealots and portrays them in a purely negative light. His 1959 letter about the use of microphones on Shabbat mentions his recommendation that R. Herzog not issue a ruling without consulting with the all the great rabbis of Jerusalem.  “There are great zealots who cannot admit the truth but are stringent based on their own judgment and intuitions.  A person cannot debate with them, and they are suspect of murder regarding the lenient.”[7]  Even if we understand the term “murder” as an exaggeration, this passage indicates a strongly negative evaluation of the zealots.

 

We have discussed extra-legal factors leading to stringency, but they exert influence in the opposing direction as well.  R. Weinberg wrote a fascinating letter regarding the question of autopsies for the purpose of medical research in the fledgling State of Israel.  He mentions R. Herzog’s lenient ruling that if the deceased gave permission for such a procedure prior to death, it is permitted.  However, he raises a question regarding cases where no such permission was granted.

 

R. Yechzekel Landau penned the classic teshuva about autopsies, in which he argues that autopsies cannot be performed to further medical research unless we know of a specific sick individual who will be helped by that research.  Life-saving only overrides prohibitions in a case of “choleh lefanenu,” when the ill person is before us, but not when we only speculate about the ability to save someone’s life in the future.[8]  R. Weinberg argues that we cannot compare the current question with that raised at the time of R. Landau.  Improved modern communications, including telephone and radio, mean that doctors in New York immediately find out what happens in medical research done in Jerusalem.  Given this change, there are always sick people who can benefit from new research results.  In other words, modernity has created a far more expansive category of “choleh lefanenu.”

 

Moreover, the current question affects an entire state, not just solitary individuals.  R. Weinberg lists three reasons for greater permissibility when it comes to a national question.  First, the image of Israel among the cultured nations affects the viability of our Jewish State, and we should not do something that hurts Israel’s image as a cultured nation.  Second, no modern state can survive without medical schools, nor can we can meet this need with gentile doctors or doctors trained abroad.  “Even a crazy or ignorant person will not suggest this.”  Finally, what will the broader Israeli population say if rabbis prevent medical progress in Israel?  Note that R. Weinberg takes the reactions of the gentile nations and non-Orthodox Jews quite seriously.  He does not say that Orthodox Jews should simply “do their own thing,” indifferent to the reaction of others.  Apparently, the reaction of other groups factors into communal decision-making. 

 

In an important paragraph, R. Weinberg mentions how this question touches on “hashkafic” assumptions, and not just on legal arguments. Solutions to the autopsy dilemma depend upon one’s attitude to the State and its institutions, as well as one’s attitude to doctors and medicine.  Of course, R. Weinberg does not say that these hashkafic factors negate the need for legal analysis.  At the same time, they influence whether or not to rely on particular leniencies.[9]

 

Just as R. Weinberg saw the emergence of a Jewish State as an important factor in halakhic decision-making, he similarly viewed the changing status of women in modern times as an important factor.   In a responsum regarding mechitza size, R. Weinberg mentions two schools of thought: those who think that partitions must prevent the ability to see members of the opposite sex, and those who think it is sufficient if the partition prevents mingling between the sexes.  He sides with R. Moshe Feinstein, who took the latter, more lenient position.  R. Weinberg writes that in our day, women will be offended if they feel distanced from the synagogue and that synagogue attendance is currently vital for preserving Judaism.[10] 

 

The Bat Mitzva teshuva indicates analogous concerns.  R. Weinberg explains that the old method of girls’ education, in which girls would simply soak up the religious atmosphere of the home, is no longer tenable.  It is impossible that Jewish girls should receive education in various secular disciplines but not in Torah.  He praises the network of Beis Yaakov schools for increasing educational opportunities for Jewish girls.  In addition, he mentions that, given the greater equality between the sexes provided by emancipation, modern girls feel slighted if they are discriminated against when it comes to Bar and Bat Mitzva ceremonies.  Note that he takes these concerns seriously, rather than simply saying to these girls, “This is Judaism; learn to live with it.”    

 

R. Weinberg rejects any comparison between the institution of Bat Mitzva ceremonies and the nineteenth-century attempt to introduce an organ into the synagogue.  Rabbis strongly opposed the use of an organ even on weekdays because those in favor were emulating the Christian church, and because this move was part of a broader attempt at radical reform that included widespread violation of Jewish law.  This is not the case regarding those interested in commemorating their daughters turning Bat Mitzva. 

 

Echoing the ruling of R. Moshe Feinstein,[11] R. Weinberg allows Bat Mitzva ceremonies but writes that they should not take place in the synagogue.  He adds a requirement that the event should include a rabbinic sermon that charges the girl to embark on a life of halakhic observance.  In this way, the observant can clarify that they are not identifying with the more liberal Jews who initiated the idea of a Bat Mitzva.  Holding the celebration outside the synagogue sanctuary makes clear that the event is purely an expression of family joy and of a desire to educate girls towards a life of mitzvot.

 

Although R. Weinberg adopts an important aspect of R. Moshe’s ruling, the difference between these two rabbinic titans is quite stark.  R. Moshe conveys a negative attitude to the Bat Mitzva ceremony (and to Bar Mitzva ceremonies) and grudgingly allows such events outside the shul.  R. Weinberg encourages these ceremonies and explains the great need for such an innovation.  The difference between them does not stem form divergent interpretations of a halakhic source but rather from different evaluations of societal needs, as well as other hashkafic divisions.  Thus, the difference between these two teshuvot reveals the significance of social and philosophical concerns in rabbinic decision-making.  R. Weinberg frequently brought such factors to bear, and these factors reveal the worldview of an important modern rabbinic thinker.

[We will return to the responsum about Yeshurun in a subsequent lecture.]



[1] Shulchan Arukh, Orach Chayim 269:1.

[2] Seridei Eish 2:157.

[3] Seridei Eish 3:55.

[4] See Shulchan Arukh, Orach Hayyim 101:4.

[5] Seridei Eish 2: p. 17.

[6] Seridei Eish 3:93.

[7] Kitvei Ha-Gaon R. Yechiel Yaakov Weinberg zt”l, ed. Melekh Shapiro (Scranton, 1998), volume 1, p. 7.

[8] Noda Bi-Yehuda, Yoreh De’ah 210.

[9] Kitvei Ha-Gaon R. Yechiel Yaakov Weinberg zt”l, vol. 1, p. 41-44.

[10]Seridei Eish 2:14.

[11] Iggerot Moshe, Orach Chayim 1:104.