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Lecture #32: Extra-legal Factors in R. Weinbergs
Weinbergs 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 Karos ruling,
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.
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.
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. 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.
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.
Weinbergs 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. Weinbergs 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.
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-yereiim
ha-temimim, a much more positive description.
One final example of
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.
In a few scenarios,
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. Even if we understand the term murder
as an exaggeration, this passage indicates a strongly negative evaluation of the
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. Herzogs 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 someones life in the
future. 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
Israels 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 ones attitude to the State and its institutions, as well as ones
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.
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.
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.
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,
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
adopts an important aspect of R. Moshes 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
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
Arukh, Orach Chayim 269:1.
 See Shulchan
Arukh, Orach Hayyim 101:4.
 Seridei Eish 2:
 Kitvei Ha-Gaon R.
Weinberg ztl, ed. Melekh Shapiro (Scranton, 1998), volume 1,
 Noda Bi-Yehuda, Yoreh
 Kitvei Ha-Gaon R.
Weinberg ztl, vol. 1, p. 41-44.
 Iggerot Moshe,
Orach Chayim 1:104.
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