Saturday, August 13, 2022

Editor's Note: Rabbi Ysoscher Katz is responding to this article.

Professor David Berger recently challenged the Orthodox credentials of Open Orthodoxy on halachic grounds. He claimed that Yeshivat Chovevei Torah lacks legitimacy as an Orthodox institution because it does not adhere to halacha’s dictates on how to deal with someone who espouses heretical ideas. The price for mainstreaming Open Orthodoxy, he argued, would be to immediately bring to bear the full weight of established halacha on theologically deviant YCT graduates.

From Dr. Berger’s perspective, this should be easy. As someone who has himself utilized conventional halacha regarding heresy to de-legitimize an entire community, he believes it to be a simple process. The way he understands it, all the posek (halachic decisor) needs to do is make operative that which is written in the books.

While his suggestion seems simple, it ultimately displays a simplistic understanding of the philosophy of Modern Orthodox halacha. It also, at its core, reflects a minimalist understanding of the Modern Orthodox enterprise.

His Modern Orthodoxy is a compilation of two disparate value systems which operate side by side. For him, the Modern Orthodox ethos is primarily Orthodox with a mere nod to modernity, its core, though, is exclusively Orthodox. Consequently, according to him, Modern Orthodox adjudication of capital crimes should look no different than if it were adjudicated by a chareidi posek; process (research) and product (conclusion) should be indistinguishable.

While this clearly seems to be his understanding of the mechanics of Modern Orthodoxy, it is incorrect. Modern Orthodoxy is about synthesis, not bifurcation.

Modern Orthodoxy is a two-pronged philosophy that strives for full integration. The Modern Orthodox Jew’s Yiddishkeit is enhanced by a robust encounter with modernity, while his experience of modernity is enriched by an intense engagement with his Yiddishkeit. The Modern Orthodox Jew’s Orthodoxy would consequently look different than the Orthodoxy of the non-Modern Orthodox observer, and, their adjudication of the important issues of the day would hence differ significantly.

Dr. Berger’s simplistic presentation also extends to his understanding of the actual process of psak. He assumes that pesika is about simply letting the books unspool; the posek opens the books, locates the necessary sources and then transfers the decision from the books onto the people. That is not true. The transfer of psak from text to people is long and circuitous, the books are only the raw materials. Once the posek has identified the relevant sources, they have to be made compatible with many of the external variables the posek needs to evaluate in order to make the ruling relevant.

Modern halachic adjudication is about making the eternal contemporary. Anyone can read texts; the genius of pesika is in its application. The way psak worked in one generation is not necessarily how it would be applied in the subsequent generation. While the soul of halacha is eternal, its application evolves.

One has to look no further than the history of heresy in halacha to see how halacha evolved. Maimonides (Hilchot Mamrim Ch. 3 verse 2), the progenitor of Jewish dogma, already modifies his absolutist stance towards heresy to accommodate his own contemporary reality. Eventually, in the nineteenth century, R. Yaakov Ettlinger, in response to Jewish Enlightenment, picked up the accommodationist mantle, arguing (Responsa Binyan Tzion 23) that his generation requires a modified approach towards the espousal of heresy. Following in their footsteps, the twentieth-century chareidi posek, the Chazon Ish (Yoreh Deiah 1:6), in response to Jewish sovereignty, once again updated the laws of heresy to have it accord with a community that experienced theological change and sociological upheaval.

While they were writing the heresy codex for their time, now is our turn. It is the task of contemporary Modern Orthodox poskim to determine halachically appropriate responses to twenty-first-century expressions of heresy.

Modern Orthodoxy is charting new territory in this arena. Never before have we been tasked with adjudicating something of such magnitude and complexity, nor do we have precedence on which to build on. While ultra-Orthodoxy did condemn heretics over the years, contra Dr. Berger, those decisions cannot be replicated in the Modern Orthodox context, a milieu entirely different than theirs. Their decisions are, therefore, informative but not dispositive.

YCT will, of course, make a judicial decision about those students who have unfortunately espoused heretical views, but that decision will be distinct from its predecessors. It will also take time to produce. Those who clamor for resolution will have to wait.

Modern Orthodoxy is not for the impatient—for them there is ultra-Orthodoxy. Ultra-Orthodoxy chose to shun modernity, thereby sparing it the need to develop a more nuanced approach to those halachot that on the surface challenge our modern sensibilities. They can, therefore, afford to offer pat answers to those questions and simplistic solutions to those conflicts. We do not have that luxury; we require more complex answers. Nuanced resolutions take an inordinate amount of time.

If the choice is between reacting prudently or responding zealously, I choose to err on the side of prudence. That is how we have traditionally adjudicated dinei nefashot, alleged capital crimes.

Rabbi Ysoscher Katz is Chair, Department of Talmud and Director of The Lindenbaum Center for Halachic Studies.

Rabbi Ysoscher Katz received ordination in 1986 from Rabbi Yechezkel Roth, dayan of UTA Satmar. Rabbi Katz studied in Brisk and in Yeshivat Beit Yosef, Navaradok for over 10 years. A graduate of the HaSha’ar program for Jewish educators, Rabbi Katz has taught at the Ma’ayanot Yeshiva High School for Girls and SAR High School. He was a leading teacher of a daf yomi class in Boro Park for over eight years.

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