CHAPTER 7. The Conflict between Halakha and the Ethical Instinct

The goal of this chapter is to analyze the approach of Modern Orthodoxy to situations in which there is a conflict between the directives of Halakha and our intuitive sense of what is right, worthy, or just.

Rabbi Kook’s approach to such problems differed significantly from the general response of the religious authorities. We call his approach “Modern Orthodoxy” although the Rabbi himself never used such a phrase. Rabbi Kook’s writings are a sort of philosophical poetry of extraordinary depth and imagery, written without Western academic terminology, systemization, and formal structure. This makes it extremely difficult to present his basic views in a way that is accessible to the new reader. This chapter attempts to offer a simplified introduction to his approach to these problems.

During Rabbi Kook’s time, the conflict between Halakha and people’s intuitive ethical sense arose, for the most part, over the attitudes of the religious towards the secular pioneers of the Zionist movement and the associated issues of atheism, secular Zionism, socialism, and other ideologies. Today, more than eight decades later, the situation has changed significantly. Conflicts that were pressing at the time are now long past. They no longer evoke strong feelings, and I fear they will not be deeply felt by the contemporary reader. Therefore, I illustrate my discussion of Rabbi Kook’s Modern Orthodoxy with examples that are burning issues of our own time. Thus, my analysis of specific problems is in no way a presentation of Rabbi Kook’s writings (he never touched upon these problems, as they did not exist then), but my own treatment, based, to the best of my understanding, on Rabbi Kook’s ideas.

I would also like to note that this chapter is to some degree a continuation of the previous one, “Rabbi Kook’s Vision of the Modernization of Judaism.” Or perhaps it is, rather, a look at the same ideas from a different perspective.

1. General Principles and Examples of the Conflict between Halakha and the Ethical Feeling

The orthodox religious world view in Judaism is defined by the recognition of the obligation to observe Halakha, the religious law that has been passed to us through the Tradition. But how should the religious person act in situations where Halakha, as far as we know, contradicts our internal moral instincts? What should be our position, as religious people, when Halakha seems to be instructing us to do something which our conscience tells us would be wrong? On one hand, the religion cannot exist without belief in the Divine nature of the Tradition; on the other hand, the same religion proclaims itself the source of our innate ethics and morality. What, then, are we to do when these two Divine elements, Halakha and ethical feeling, seem to contradict one another?

Let us examine a very simple example. It is customary in Orthodox synagogues for women to sit in the balcony, where they cannot always hear and see as well as in the sanctuary below. In some cases, the women’s area is at the far end of the sanctuary and separated by a barrier so thick that they cannot see the services at all and may have no sense of even being in attendance at them. Halakha would seem to say that all is well here – that is, all laws are observed. But what is to be done if a religious, observant person feels that this is discriminatory to women – when his own conscience and sense of morality tell him that all is not well, that the arrangement is demeaning to women and unacceptable? And what is to be done if the women themselves (religious, observant, orthodox) begin to feel that they don’t want to be shut out from services in the synagogue? What if they themselves object? How should we approach this situation?

Or in another, more radical instance, when a repatriate from Russia now in Israel says, “I am a Jew by my father. In Russia I was always considered a Jew, yet here in Israel, I am not. Where is the justice in this? There I suffered from anti-Semitism, and here I am refused recognition as a Jew and viewed as an alien. Meanwhile, someone who is Jewish by a maternal grandmother, who was never taken for a Jew either by name or appearance in Russia, and never suffered from anti-Semitism, is considered Jewish here.”

Naturally, this person (along with many Jews close to him) draws the conclusion that Halakha and Judaism as a whole are entirely amoral. What answer can be made to this? Truly, Halakha seems to dictate that this person is not a Jew and there is no more to be said; but our conscience is left uneasy.[footnote]  Conscience is, by definition, our intuitive protest against injustice, demanding that we act honestly and righteously ourselves, and that we speak out or feel shame when another acts dishonestly or unjustly. Is the conscience solely a pro- duct of upbringing and therefore an entirely relative matter, or does it contain (aside from its development, honing and refinement, which must be nurtured) an inner kernel which is the Divine Voice inside every person? Various appro- aches to this question will be discussed later. [/footnote]

2. Opposing Approaches to the Conflict
between Halakha and Ethics

Thus, we face a conflict between Halakha and our ethical sense. There are two “classical” approaches in the case of such a conflict.

The first is the conservative approach, widespread, for instance, among the Haredim. First of all, say the adherents of this approach, Halakha is Divine. It was given by God on Sinai and has come to us through the Tradition. Therefore, it is God’s law. The ethical sense, or conscience, has been formed under the influence of historical development, surrounding cultures, contemporary society, the mass media, etc. It is shaped by human and historical forces. What is human must yield to what is Divine; therefore, the ethical feeling must defer to Halakha.

The opposite approach can be referred to as the Reformist position.[footnote]  This position is sometimes called “Reform.” However, representatives of Reform Judaism are rarely willing to proclaim conscience Divine. Furthermore, in the actual conflicts that Rabbi Kook addressed in formulating his approach, the opponents of orthodoxy were not Reform Jews, but the Zionist pioneers of the Second and Third Aliyah, who called for the “Revival of Judaism.” [/footnote] This approach emphasizes that we must recognize above all that morality, the ethical sense, is the Divine within us. We are created in His image, and He inhabits each of us in the form of conscience, the “unconscious God.”[footnote]  For a more detailed discussion of this theme, see The Unconscious God: Psychotherapy and Theology by Victor Frankl, one of the preeminent psychologists of the twentieth century. [/footnote]Therefore, if our conscience speaks to us, it is not merely important, it is sacred. Halakha, according to adherents of this position, is a human/historical phenomenon; it was created over the course of many historical and cultural periods, under the influence of various societies. And as the human must defer to the Divine, in the case of a conflict between them, the ethical sense must prevail and Halakha yield.

In other words, these two points of view are mirror images.

3. Rav Kook’s Approach:
Synthesis, Rather than Compromise

Which position does Rabbi Kook take on this question? What is the approach of Modern Orthodoxy to such problems?

The guiding principle behind Rabbi Kook’s approach to conflicts of ideology within Judaism is that our task is not to effect a compromise between two opposing sides, but to find their synthesis. Of course, in practical life one often has to settle on compromise, but in the realm of ideology and ideas, compromise is unproductive; only synthesis is vital and creative.

(Note again that I speak here not of conflict with an external enemy, but of a clash of ideologies within Jewish society, where
a basic sense of unity ultimately outweighs ideological differences. In general, Rabbi Kook’s approach is entirely based on the belief that every ideological group among the Jewish people carries within itself its own “Jewishness,” a necessary element of the overall picture, and that even should the “shell,” the proclaimed ideology that enfolds this group’s views, be in opposition to all the tenets of Judaism, nonetheless, enclosed within it is a kernel of truth, a Divine spark, an element of higher truth, which must be apprehended and integrated for the completion of the picture.)

What is the difference between compromise and synthesis? In a compromise, two clashing points of view, attempting to defeat one another, eventually reach a point of equilibrium and agree to cease struggling for the time being. The accepted compromise brings about a truce which allows each side to expend less energy fighting; in the process, however, each side’s ideas become twisted and deformed.

Compromise is a balance of distortions. It creates no real unity, and each side remains frustrated. The truce is usually temporary, as each side husbands its strength for the next round of battle and inevitable future clashes. In practice, compromise is often essential for the resolution of life’s ongoing problems. But in matters of ideology, compromise is unproductive, leading to nothing new or vital. In these cases, what is needed is synthesis.

To arrive at a synthesis, we extract the kernel, or Divine essence, from each point of view. We separate this spark from its superficial, inessential details, from its external shell and, instead of taking the two initial points of view whole, we build an entirely new construction on the foundation of their two seeds.

With this synthesis, the central ideas of each point of view are realized in full. Nothing is lost from either; neither is twisted or distorted to avoid conflict. They can be realized both fully and harmoniously because a new structure is created to house them both, founded on the ideals of each. It is not the original positions that are united, but their core ideas. And because it is these ideas, and not their shells, that are the life force behind these positions, the synthesis brings about a vital, growing, unified community that attains true peace, not temporary truce, and that has the potential for further advancement. (It is easy to see that new biological life is formed in the very same way).

4. Modern Orthodoxy as a Synthesis
of the Two Opposing Approaches

Let us examine how this approach works in practice. We have described above two opposing positions frequently held by the Haredim, on one side, and the secular Jews on the other. It stands to reason that these two points of view should clash on many concrete issues. And although in practical situations they may reach a compromise, or, in the case of common interests or danger from a common enemy, settle on some arrangement, when it comes to ideology, they will never reach a common understanding. Compromise, therefore, leads to no real progress, and creates only a temporary truce. Rabbi Kook’s Modern Orthodoxy is not a compromise; it is a synthesis of these two positions. It extracts the Divine idea from each, and builds a new construction from these.

Here is how it is done. First we identify the essential core of the conservative/Haredi viewpoint. Clearly this is the conviction that Halakha is of Divine origin. This conviction is unquestionably correct and of a positive nature. (As an orthodox religious ideology, Rabbi Kook’s Modern Orthodoxy emphasizes, of course, the need for total observance of Halakha.) So we must incorporate the idea that Halakha is Divine into our newly forming Modern Orthodoxy. And what is the Divine essence of the Reformist point of view? Clearly, it is the conviction that ethical feeling is of Divine origin. There is no doubt that this idea, too, is true; therefore, it must also be realized in Modern Orthodoxy. Modern Orthodoxy must be built on a recognition of the Divine origin of both, Halakha and ethical feeling.

From the point of view of Modern Orthodoxy, both, Halakha and ethical feeling, come to us from God. However, their Divine natures are not the same. Halakha originates in the transcendent Divine, which entered this world with the giving of the Torah on Mount Sinai. Its source, therefore, is external; it transcends our world. It comes to us indirectly, by means of the tradition. Ethical feeling originates in the immanent Divine, which is revealed through our own lives, through our intuitive morality, through the image of God in man.

Inasmuch as both are Divine, explains Rabbi Kook, neither has the right to defer to the other. We are obligated to adhere fully to both Halakha and our ethical sense. But what are we to do when they conflict?

Because they share the same Divine source, Halakha and ethical feeling should agree. But what if, in real contemporary life, they do not? The answer is that the reason for their divergence lies not in a true contradiction between Halakha and conscience, but in either our incorrect understanding of Halakha or our incorrect understanding of our own ethical instinct – or, most likely, in both at once. The problem is not in Halakha itself, but in our mistakes of interpretation. Likewise, our ethical feeling is not wrong, but we have been deceived by superficialities and have not reflected deeply enough on the essence of the matter. Therefore, our task is to sharpen our focus, to sort out and analyze both foundations of our existence – Halakha and conscience, to clear away the coverings and reveal their true contents until, finally, they do agree and work together.

As in any situation, creating a synthesis is not easy. There is nothing mechanical about the process. It is necessary to “love” both viewpoints, to feel them deeply. Below, we examine ways to undertake this task in some concrete instances.

Neither of the opposing groups can create a synthesis, nor could they do it together as each is fighting against an alien point of view. For them it is an external conflict. Synthesis can be brought about only through the integration of the central ideas of both streams of thought, and this can be done only through internal conflict.

5. Example 1: The Conversion of non-Jews
Marrying Jews: a Revision of Halakha

Let us examine an example in which a Halakhic decree has been changed: the issue of conversion.

If we study the Halakha concerning giyur, we soon observe that many circumstances have ceased to exist since the writing of the classical codes. In general, of course, the sixteenth century Shulchan Aruch, the most recent of the generally accepted classical codes, still holds. But “in general” indicates that there might well be exceptions. That something is written in the Shulchan Aruch does not always mean that it stands today. Circumstances may be entirely different, and it may be possible to adhere faithfully to all of the very same Halakhic principles and yet reach a different conclusion.

Here is an example. The Shulchan Aruch states that if a Jewish man has had (or is suspected to have had) intimate relations with a non-Jewish (unmarried) woman, or vice versa, and the non-Jew has since converted, they are not allowed to marry, as this would raise suspicion that the conversion was made only for the sake of the marriage.

Let us look, however, at the Halakhic ruling of the Hungarian rabbis of the mid-nineteenth century (whom, by the way, it would be hard to accuse of Modernism). The decision examined the following situation: a young man left Judaism, married a gentile, and had two children. He requests that his wife and children be allowed to convert and his family be accepted as Jewish. According to the Shulchan Aruch, giyur is prohibited in this situation. But the rabbis ruled otherwise. They first took into consideration that the ruling in the Shulchan Aruch was not a law written in the Torah or decreed by the sages, but an accepted norm for practical life. Until the sixteenth century, this rule had protected Jews from forming intimate ties with gentiles. In the nineteenth century, however, they faced a different situation. They could not prevent such ties. Furthermore, if this woman were not to convert, her husband would not divorce her and, thus, would remain married to a gentile, which is a serious breach of the Law. His children would be gentiles, further obstructing his path to a normal Jewish life. If she were allowed to convert, he would live with a Jew and have a Jewish family, which would be preferable both for him and for the Jewish people as a whole. For these reasons, they decided to permit the conversion, even though the ruling seemed to contradict the Shulchan Aruch. This was the action, not of twentieth century Modernists, but of rabbis of a very conservative bent in nineteenth century in Hungary.

The Shulchan Aruch was based on the idea that allowing such conversions would create a “breach in the wall,” that people would enter into intimate relations with gentiles, assuming that they could simply convert and marry them. In the sixteenth century, apparently, this prohibition was an effective deterrent against undesirable connections.

However, in the nineteenth and twentieth centuries, an entirely different approach is necessary. The Shulchan Aruch’s ruling against conversion has long ceased to restrain those who are not observant of the commandments. What’s more, we may see the opposite situation: it is frequently the non-Jewish partner who wishes to convert, observe Jewish tradition, and make the family fully Jewish, while the Jewish partner may be fairly indifferent. If we were to conform to the ruling of the Shulchan Aruch, the non-Jew would be unable to bring the Jewish partner closer to the Torah. Again, it is critical that what we have here is not a Law from the Torah, or even a decree from the sages, but a practice that has become the rule; furthermore, Halakha allows the Beit-Din, or religious court, to adopt those criteria for conversion that it sees as best for the Jewish people in a given situation. Therefore, the concrete Halakhic ruling in this case must be different, even as the essence of the Halakha, its principles and underlying rules, remain unchanged. Due to changed circumstances, we reach a different conclusion. Today, no Beit-Din would prevent a non-Jewish spouse from converting in such a case.

6. Example 2: The Status of “Jewish by Father”
in Jewish Society

I will now try to present some possible paths to a solution of a very complicated problem, a burning issue today in Israel: what is the status of those who are Jewish only on their father’s side, but who consider themselves, and wish, to belong to the Jewish people. I will note yet again that, as in all previous discussions of concrete instances, the one that follows is not a direct exposition of Rabbi Kook’s point of view. The issues of his time were different, as these problems had not yet arisen; therefore, we cannot learn his views on them. The following discussion is my own attempt to seek out a solution based on his principles.

The situation is as follows: A repatriate from Russia says, “I have a Jewish father and a Jewish last name. All my life I have considered myself a Jew; everyone in Russia saw me as a Jew. I suffered from anti-Semitism, but did not change my name. Yet here, in Israel, I am not recognized as a Jew. This is unjust.”

What is the correct religious approach to such a situation? According to Halakha, this person is not a Jew, yet our ethical sense tells us that he has a valid claim. We can make an effort to suppress our feeling, tell ourselves it’s foolishness, that Halakha is Halakha. But this would be wrong. After all, the ethical feeling is the most important element of our dialogue with God: it must not be suppressed, but developed and deepened. We must think about it: which position is, in fact, right? Is Halakha really all that clear? If we begin to explore this question seriously, we will find that it is not as simple as we thought.

Of course, in popular literature we frequently encounter such assertions as, “a person is either Jewish or not; there is no in-between. If a non-Jew happens to be the son of a Jew, he is no different from any other non-Jew; the fact that his father is a Jew means nothing at all from the point of view of Judaism.” However, a more attentive analysis reveals that such assertions are not accurate. Halakha actually takes a very different approach. I learned of one aspect of this myself in Moscow in the early 1980s, when Rabbi Avrom Miller (a man who had studied at the Chafetz Chaim Yeshiva at the beginning of the twentieth century, had managed to carry Judaism through World War II and Stalin’s camps, and who still taught in the Synagogue and was the universal mentor of Moscow’s religious youth in the 1970s and 1980s) explained to me that, although it is not written anywhere, if a person who has a Jewish father wishes to convert, we must not dissuade him, but help him. The laws of giyur, which state that we must try to dissuade a non-Jew from converting and agree to it only if he insists and is prepared to observe the commandments, only apply to a gentile with no ties to Judaism. When I asked which book of Halakha this was in, Rabbi Avrom again stressed that it is written nowhere: we must understand it ourselves.

Here it must be said that today (partly due to the fact that “mixed” aliyah has raised this problem in Israel society) far more detailed literature exists on the issues of giyur, so one can now find written sources on the question above. There are even Halakhic sources that state that in the case of a Jewish man married to a non-Jewish woman, it is a commandment that he converts the children. The next question raised is whether, in so doing, he is also fulfilling the commandment to be fruitful and multiply. However, it is important to note in principle that there is much in Judaism that one must simply “understand oneself,” even when one is unable to cite a Halakhic text.

Thus, we see that if someone’s father is Jewish, he is not “just” a non-Jew. The correct term for this person’s status is zera Yisrael: descendent of Jews, and Judaism views him entirely differently from a gentile.

Likewise, the attitude towards people in this group who came to Israel in the last wave of aliyah (if, of course, they wish to be part of the Jewish people) must not be the same as toward gentiles. They must be seen as partial or potential Jews, and we must help them to undertake giyur.

Of course, it would be incorrect to consider them Jewish without conversion; the law of the Torah clearly forbids this. But it is quite possible that we must try to facilitate their giyur by determining which demands are really required by Halakha, and which are norms that have come to be accepted for the sake of keeping it “tough” to convert and that are not, in fact, required. A central aspect of giyur is that the convert, in becoming part of the Jewish people, shares its fate and life, and in that respect, the very fact that the person has immigrated to Israel may have religious, and even Halakhic, significance. Residence in Israel and participation in the life of the nation could certainly be seen as very real confirmation of a desire to be part of the Jewish people. Of course, the desire alone is insufficient; one must still tread a long path. But it is very possible that if we, the religious Jewry, clearly state that aliyah in such cases has Halakhic and religious significance and that such people are not “simply” gentiles, this change in our position itself will alter the attitude of these and other people towards Judaism, and transform the situation in the land from conflict to positive collaboration.

In summing up, it can be said that in acknowledging the special status of children of Jewish fathers, we in a sense acknowledge that their complaint has itself a positive Divine truth. If we integrate this element of truth on one side, and clarify the relevant Halakha on the other, we are able to discover not a compromise, but a synthesis.

Of course, in every real religious-social problem, it is extremely difficult to attain such a synthesis – but this must be the direction of our search.