A response to Rabbi Josh Yuter's critique of Rav Schachter

I write this with great hesitancy and trepidation. I am not a talmid chahcham and there are those who are more learned than I am who can, and, hopefully will, respond to Rabbi Josh Yuter's latest response to Rav Herschel Schachter's “letter” about women wearing tefillin. Quite honestly, I am tired and saddened by the debate over women wearing tefillin, and how it has gone on, although some of the discussions which have come out of this controversy give me some hope. My fear that there will not be a formal response to Josh's post, leads me to respond as a protest against the continued lack of respect for Rav Schachter, the Torah that he, as a world class poskek, represents, as well as the misconstruing of Rav Schachter's position. Additionally, as will become clear, I believe that Rabbi Yuter made a number of mistakes in his argument.

Introduction

Although I have tremendous respect for Rav Schachter, I am not a talmid of his, or, in any serious sense, RIETS. I have had the honor and pleasure of interacting with him on personal issues of mine, as well as hearing his shiurim, and learning from his seforim. It should go without saying, but I will say it anyway that I do not think he is perfect, and neither does he. I can not claim that I would publicly disagree with him, even if I thought his judgment was in error, but I can say that I have, on rare occasion, disagreed with something he said (not in the area of halacha, as I am not on the level to do so).

Although I have only met Rabbi Yuter once, I enjoy interacting with him. He is bright, funny, and not afraid to speak his mind. I consider him a friend and I hope that he can say the same for me. There is no personal agenda against him in writing this.

I am posting this as a blog post because if I am choosing to enter the fray, I should be willing to have my words fully attributed to my name. I do not want to hide behind the relative anonymity of a more temporal Facebook post.

Response

My previous post publicized a recent letter (PDF) authored by Rabbi Hershel Schachter of Yeshiva University. At the time of posting I did not have time for a thorough analysis, but several people took offense at my initial glib reactions on social media, calling it various forms of “disrespectful” or “not nice.” While I found these responses to be somewhat ironic given that R. Schachter himself used his letter to delegitimize those with whom he disagrees by comparing them to Korach and stating that they violate yehareg ve’al ya’avor, the rebuke is nevertheless well taken. Given his perceived stature in the Orthodox community, R. Schachter’s letter deserves a thorough analysis, as I’ve done before regarding his approach to Jewish law, especially as it pertains to the imposition of select religious authority.

While it is to be appreciated that Josh is willing to move beyond his “initial glib reaction”, this response does not contain an apology or even a willingness to not make disrespectful comments to “deligitamize” the one “with whom he disagrees”. This is not a substantive response to his argument, but it must be said.

Rabbi Yuter's insistence on interpreting “yehareg ve'al ya'avor” as anything but as a halachic claim is uncalled for. It might be a term that does not play well today, but it is a halachic term. If Rav Schachter had used this term against a position of Jews for Jesus, would Josh claim it was merely an attempt to deligetimize them? (I do not, God forbid, make this comparison to equate those with whom Rav Schachter is disagreeing with J4J in any manner. I am only using an extreme example to point out, that a posek is free to argue, and sometimes, compelled to argue, that a practice falls into this halachic category).  

To understand R. Schachter’s letter, it would help to review ideas I presented in a classic post comparing the roles of “Rav” and “Rosh Yeshiva”. Two of my teachers both emphasized significant distinctions between these positions, albeit for different reasons. Haham Yosef Faur compared the Rav and Rosh Yeshiva to their analogous authority in a legal system. The Rosh Yeshiva was comparable to the law professor, who may be exceptionally well versed in legal texts and reasoning but carries no inherent legal authority while the Rav, who may be less knowledgeable than a Rosh Yeshiva, has by virtue of his appointment as a Rav wields the actual halakhic authority for setting religious policy. To illustrate his point, Haham Faur noted that while law professors could give countless arguments as to why Al Gore ought to have won the 2000 election, none of them possessed the legal authority to declare Al Gore as the 43rd President of the United States of America.

It seems to me that this is a faulty comparison. While the comparison of a rosh yeshiva to a law professor might have some validity, it does not reflect the historic position that great Roshei Yeshiva played in the world of halacha. Furthermore, if one is to compare a rav to a judge, a proper comparison would be to a trial level judge, not a supreme court justice. Rabbi Yuter is free to suggest that, without the sanhedrin, we lack rabbis who can be compared to justices, but equating a rav to a justice is incorrect.

I would add to Haham Faur’s analogy that nature of this authority may be attributed to the willing acceptance of a specific community. When a Rav is appointed, a congregation accedes to that Rav’s authority, as defined by the very nature of his employment. There is a reciprocal relationship between the Rav and his kehillah, one which is necessarily based on the mutual consent of the leader and his constituents (M. Avot 1:6). On the other hand, a Rosh Yeshiva is employed by the academic institution of the yeshiva. Certain communities may decide to follow the religious ethos of a particular yeshiva, but there is no halakhic mandate on any one community to follow any one yeshiva. A Rosh Yeshiva may also serve as Rav, but his authority would be limited only to the specific community which willingly accepted his authority. According to ancient Rabbinic law, only the Jewish Supreme Court of the Sanhedrin is imbued with the authority to mandate Jewish law on the entire Jewish people. Without that legal institution, as Maimonides writes, “we do not coerce the people of one nation to follow the practices of another…[nor do we] listen to words of an earlier authority, but rather to the opinion which is most convincing, regardless of it being an earlier or later source” (Introduction to Mishnah Torah). Outside of the legal system established by the Sages of Rabbinic Judaism, there is no individual or institution which has any halakhic sanction to impose its religious will on the entire Jewish community, let alone to coerce others do submit to their authority.

Again, Rabbi Yuter makes a faulty comparison. Although I agree that as principal, Rabbi Harczstark has the room to set halachic policy for SAR, equating him to a rav, whose congregants have freely chosen him as a halachic authority is incorrect. In what sense is a student enrolled at SAR by his or her parents, equivalent to a congregant who has chosen of her own volition to attend a particular shul? Would Rabbi Yuter suggest that students in a school are obligated to accept their principal's halachic ruling on any level beyond school policy?

Furthermore, as I will explain below, Rav Schachter is not attempting to impose his will on anyone.

Another teacher of mine, R. Moshe Tendler differentiated between the Rav and Rosh Yeshiva on the grounds of skill. In his inimitable words, “God forbid you want a Rosh Yeshiva making psak for you. You want a Rosh Yeshiva to make psak like you want a mathematician to build your bridges.” For R. Tendler, the art of practical psak comes not from pure knowledge or reason, but in knowing how to apply Torah in the real world. A mathematician may know more about the calculations and equations than an engineer, but that does not mean he has the same aptitude to build large constructs. Similarly, a Rosh Yeshiva may be more knowledgeable of Jewish sources, but being secluded in the ebony obelisk of the yeshiva one does not necessarily know how to apply those sources to the actual situations one confronts in the real wold. 

The comparison of Rav Schachter to a professor who lives in an ivory tower is unkind and untrue. Not only is he the posek for the Orthodox Union, but he is consulted by literally hundreds of shul rabbis across the country on all sorts of practical questions. He is well aware of the world to whom is speaking. (The irony of so many rabbis turning to roshei yeshiva like Rav Schachter with their toughest questions, is apparently lost on Rabbi Yuter).

R. Schachter’s objection towards women wearing tefillin in public may be understood via two interrelated issues: diversion from the halakhic process as he see sees fit, and the need for denominational differentiation from those communities who do not follow halakhah as he sees fit. Regarding the latter, R. Schachter begins his essay by citing B. Yoma 2a which records the rabbinic sages intentionally followed a lenient opinion in order to dissociate themselves from the Sadducees, an ancient sect of Judaism which rejected what is now known as Rabbinic Judaism. For R. Schachter, Conservative Judaism is the modern day version of the ancient Sadducees. Furthermore, R. Schachter equates any concession to Conservative Judaism with acquiescing to a an antagonistic king like Antiochus who enacts decrees against the worship of Judaism. In such cases, it is better to let oneself be martyred rather than change “evan a shoe strap” when it comes to Jewish practice (B. Sanhedrin 74a-b). Therefore, since the practice of women putting on tefillin is closely identified with Conservative Judaism, that mere association is enough to consider it prohibited for all Orthodox Jews, as a matter of distinction.

The choice of the words “denominational differences” is a poor one, seeing how it implies that this about one team versus another. For Rav Schachter, Conservative Judaism represents not only a different approach to halacha, but a false and dangerous approach, along the lines of how the chachamim viewed the “Sadducees”.

The necessity for such differentiation is not merely superficial, that is giving the appearance of borrowing practices form Conservative Judaism, but according to R. Schachter, the decision to permit women wearing tefillin follows similar halakhic methodology and ideology as that he ascribes to Conservative Judaism. Specifically, Conservative Judaism, “is based on the foundation that it is permitted – and possibly even obligatory – to deviate from the ways of the tradition based on how they see fit,” even based on their own “sources.”

R. Schachter sees a similar problem with the particular tefillin decision, and presumably others as well.

In our days anything can be found on the internet or in ‘Otzar Hahochma’ or the Bar Ilan Responsa project and the like, and even an ignoramus can become a sage and teach and rule and decide Jewish law even regarding difficult matters, as if he knows of the sources on his own and all the sources and opinions.

Thanks to the resources mentioned, today’s Jewish community has unprecedented access to traditional sources. R. Schachter somehow distinguishes between “researching” a difficult topic and being intuitively knowledgeable of all the relevant factors. Indeed, R. Schachter argues that even though one reads the sources one does not truly know them. Thus people who assume that they too can read Jewish texts and make up their own minds are following in the tradition of Korach. R. Harcsztark committed the cardinal sin of not acknowledging and submitting to his superiors since “he did not seek guidance from the great halakhic decisors of today.”

The access that the average layman has to Torah sources is unprecedented due to modern technology. Still, while this is a positive development, it does not turn a layman or a rabbi into a high level posek. If Rabbi Yuter believes in his comparison to the various court levels, a law student might be able to research a topic well, but it does not place him on the same level as a supreme court justice, who not only has greater knowledge, but a greater “feel” for how it all comes together.

I once heard Rav Schachter tell a personal story that is quite relevant to this discussion. When he had finished learning Hilchos Shabbos, he wanted to see if he was ready to pasken. He attempted to answer several questions which had been asked to Rav Moshe Feinstein ZT”L in Iggeros Moshe. He pointed out that there were a number of times that Rav Moshe applied the logic of an unconnected gemara, on a totally different topic, to answer a question about Shabbos.

It is this level of knowledge and understanding which does not come with the most researched Bar-Ilan search.

As I wrote at length in my post on “Gadolatry” Rabbinic Judaism never established a class of uberrabbi which wields greater authority over the Jewish people, nor is there any objective criteria for defining who would qualify. By the fact that R. Schachter writes numerous opinions, including this one, we can assume that he considers himself to be among this elite to which all Jews must pay deference.

There might not be an objective halachic category of “ubberrabbi”, but that does not mean that Rav Schachter is incorrect. We all intuitively recognize this each time we seek out the best surgeon to perform surgery. We might be able to do enough research to understand some of the medical issue at hand, but we recognize as obvious that we are not qualified to perform surgery.

Rav Schachter including himself with this “elite”, is not due to any arrogance. Those who know him, have seen his great modesty. As Rav Moshe noted in his introduction to Iggeros Moshe, sometimes a rav has no choice but to become a posek. Rav Shachter's Torah knowledge brought him to that point. He would much rather be living and learning in Israel. He has sacrificed so much personally to be the posek of a large number of people, laymen and posekim alike.

When R. Schachter quotes R. Moshe Isserles O.C. 38:3 who rules that we prevent women from putting on Tefillin, he does so assuming that the Ramo is the final definitive word on all practice. He does not cite Tosafot B. Berachot 14a which records that it was once prevalent for women to put on tefillin, even with a blessing, just as they shake the lulav on Sukkot. Furthermore, someone who has access to a Bar Ilan CD (and know for what to look) can easily find examples where the current Ashenazi practice does not follow the Ramo, such as wearing tefillin on Hol Hamoed(O.C. 31:2). Or perhaps one would research the reason for Ramo’s ruling preventing women from wearing tefillin, and find that the reason is based on the fact that wearing tefillin requires a “clean body,” which would disqualify menstruating women. One could then find numerous examples where Jewish practice changed because of a different situation and conclude that women who are on birth control may no longer be assumed to lack a “clean body.” In fact, someone could find evidence in the Ashkenazi legal tradition, which would seem surprisingly similar to the methods employed by Conservative Judaism. 

I hope that Rabbi Yuter is not being disingenuous in his claim that he believes Rav Schachter to be claiming that the Ramo is the final word for Ashkenazi Judaism. The (near?) absolute lack of disagreement among hundreds of years of Ashkenazi posekim, shows that in this case, the Ramo was accepted by Ashkenazi Jewry. These posekim who certainly were aware of the Tosafos in Berachos, did not see that ruling as working against the Ramo.

Although Josh is correct in his claim that one might be able to show why the Remo's reasoning may no longer apply, as I will show below, Rav Schachter sees it as irrelevant.

The democratization of knowledge is thus a significant threat to those who wish to control it, and by extension, the people who depend on it. R. Schachter must create and rely on his myth that he and his cadre are the true arbiters and representatives of Judaism, and by extension, God’s will. Since the community at large has not formally appointed any “gadol,” he must delegitimize individuals and entire communities as being against the true Torah, even as they cite from the same texts on which R. Schachter relies. Past Roshei Yeshiva did not need to be accountable on the merits of their arguments because so few people had access to the same data to even attempt a rebuttal. Rather than face the indignity of having to defend a position, it is much simply to discard those who disagree.

Rav Schachter is perfectly willing to defend his position and has done so. One may, I suppose, regardless of their level of learning in comparison to Rav Schachter, disagree with his reasoning. He is not discarding them, but rather suggesting that they do not see this as the global issue that it is.

R. Harcsztark not only made his decision in the capacity of a Rav but he explained his position in a public letter with the attitude, sensitivity, and sensibility of a Rav. Perhaps what we are witnessing then is a social rebellion not against Torah, but against those who truly raised themselves over God’s community.

I myself called out those who suggested that Rabbi Harcztark had no right to set a policy for two girls within his own school. I saw it as a local issue and not as a communal psak. The response that followed showed that this was no longer a local issue but a communal one. There was good reason to think that this would be the latest litmus test for being a true Modern Orthodox Jew. Once it became a communal issue, it was no longer about a principal's role with his school. It became a question as to whether this could and should become an acceptable practice in the observant community. At that moment, the technical issues fell away and the larger issue of incorporating a practice that comes from the Conservative Movement, which, as a movement, can no longer claim a serious commitment to halacha, came into play.

Rav Schachter saw it as an issue that falls into the halachic category yehareg ve'al yaavor, a category for practices which are so egregious as to threaten the Torah system. Who may I ask, is qualified to make such a decision? Rabbi Yuter? A shul Rav? Certainly it should be someone with the shoulders to make such a broad evaluation for the observant community. Rav Schachter would not claim that he alone may do so. He would correctly claim that it falls to those of his level and not to one who possesses the latest version of the Bar-Ilan CD.

Rav Schachter has not placed himself over a community. Rabbi Yuter has attempted to place himself over Rav Schachter. I leave it to the hundreds of shul rabbis and thousands of laymen, who turn with their most serious halachic issues to rabbis like Rav Schachter, to determine which of these rabbis has a better claim of how halacha works.