Sunday, February 11, 2018

If One More Person Says “Prozbul”…

   I have a vague recollection that the first time I heard the word ‘Prozbul’ was in December 1969 at the International USY Convention in Buffalo. The subject was ‘The Sabbath’ and the thrust of many of the sessions was how to bring Sabbath observance into sync with Modern Life.  Not surprisingly, high on the agenda was the Conservative legal opinion that one is allowed to drive back and forth to the synagogue on Shabbat, a copy of which was included in the source book. I was very much taken with the supreme confidence expressed by our discussion leader, a rabbinical student at JTS, not only that the Torah could be efficiently ‘brought up to date,’ but that ‘we’ are fully qualified to do so. When asked, whence stemmed their confidence, the answer was: Prozbul.
Neither I, nor anyone else in the room, had a clue as to what a Prozbul was so, so our leader kindly explained that the Torah annuls loans after seven years. However, this led to wealthy people not extending loans to the poor for fear of never being repaid, so Hillel created a legal fiction that annulled the annulment, overrode the Bible and that the vehicle by which this effected is entitled called ‘Prozbul’ (Cf. M. Shevi’it 10,3). We must, the leader continued, follow the example of Hillel and use it as a precedent to legislate in order to bring Judaism into the Twentieth Century. Allowing driving on Shabbat was one, sterling example of this type of activity.[1]
Over the subsequent decades, it seems that whenever I have encountered discussion of halakhic change, Prozbul is invoked.[2] Prima facie, it makes sense. After all, according to the Mishnah, Hillel the Elder did find a mechanism to address a social ill by effectively avoiding the abrogation of debts in the sabbatical year. However, the way the prozbul is cited goes far beyond this. It seems to me that it is appealed to as some sort of magic wand, an ‘Halakhah ex machina that can justify any and all situations wherein the Torah is perceived to be out of sync with the human condition.[3] Invoking Prozbul, then, is a way of expressing the (at best) extremely problematic assertion: ‘Where there’s a rabbinic will there’s an Halakhic Way.’[4]
I find this latter usage deeply distressing. Waving any kind of flag in a discussion of ideas is extremely shallow, and its use often verges on demagogy. Perhaps that explains why prozbul is a ubiquitous trope in social media. As if the Internet had not done enough damage in dumbing down contemporary intellectual intercourse, social media engenders superficiality of brain numbing proportions. Nevertheless, in the over-heated atmosphere of Facebook and Twitter polemics, whenever someone challenges the need, appropriateness or authority to change Jewish Law…out comes Prozbul. Quod erat demonstrandum. ‘Nuff Said.
This type of use of prozbul is not only distressing in its shallowness, its shallowness is itself deeply offensive. After all, discussions such as these within an Orthodox context, do not concern quotidian matters. They treat of the interpretation, and application, of what Orthodox Jews are supposed to believe is ultimately the Word of God. Discussions in that context demand the polar opposite of Internet arrogance and anger, or of social media anti-norms. They require, instead, precision of thought, meticulousness of formulation, and (above all) a deep and abiding reverence for the subject and of the broad implications of the analysis. And, while I obviously cannot do anything about the comportment of others (only of my own), I would like to revisit the prozbul as a literary and intellectual topos in order to flesh out my larger point.[5]
The origins, even the very meaning, of prozbul were long debated by scholars.[6] Today, it is accepted that the word is of Greek origin, and refers to a legal instrument presented to a court.[7] As noted above, loans are annulled at the end of the sabbatical year (Shemittat Kesafim; Deut. 15, 1-2). Inter alia, this was intended to introduce a degree of debt relief for the agricultural poor. At the turn of the first millennium, though, this situation had boomeranged. In fulfillment of a situation which the Torah had envisioned, and against which it had warned, people had begun to withhold loans on the fear that they would lose their investment upon the arrival of the sabbatical year. According to the Mishnah (Shevi’it 10, 1), this situation spurred Hillel the Elder into action: [A loan secured by] a prosbul is not cancelled [in the sabbatical year]. This was one of the things instituted by Hillel the Elder. For, he saw that people refrained from lending to one another, and there transgressing that which is written in the Torah…’[8] According to the Mishnah, Hillel ruled that debts that were presented to a court for collection were unaffected by the sabbatical year amnesty.[9]
The question is, of course, whence derived Hillel’s authority and ostensible audacity at effectively circumventing the Torah’s mandated debt amnesty? Indeed, both the Yerushalmi and the Bavli express (mild?) shock at the implication that Hillel permitted something that the Torah had explicitly forbidden.[10] The best of intentions, both imply, do not justify a gross abrogation of an explicit Biblical injunction.[11] The upshot of both Talmudic discussions (part of which are anticipated in the halakhic midrashim) is that Hillel’s actions and authority lay well within the parameters of accepted Rabbinic jurisprudence, and his authority was rooted in his standing as the head of the Sanhedrin. According to one opinion, Biblical Law allowed for the exemption of debt from the sabbatical year amnesty via its assignment to a court. Or, since the amnesty itself was only rabbinic in origin already in Second Temple times, it was fully within the purview of the rabbis to legislate an exemption (Hem amru ve-hem amru).[12]
Either way--- and while saying this should be obvious, it is unfortunately not --- while Hillel is reported to have responded to a societal need, his area of action was fully determined by and confined to the accepted rules of rabbinic jurisprudence. It is inconceivable (and the Talmudic expressions of shock express as much) that Hillel would have coerced the Torah to ‘adjust’ itself to a new reality, beyond where the Torah itself allowed him to go. Such an action for a person of faith would have been nothing less than a blasphemous sacrilege.[13]
This post is, as should be obvious, not a discussion of theories of the historical development of Prosbul, but of the manner in which Rabbinic Tradition understands itself, and the ignorance thereof. As a system of Law and Lore that is rooted in an a priori faith commitment, the legal reality that Prozbul actually represents in Rabbinic Law must be both acknowledged and respected.[14] In contemporary terms, that means that deference to accepted principles of Post-Talmudic jurisprudence: the supremacy of the Babylonian Talmud, jurisprudential divide between Rishonim and Aharonim, the authority of consensus (sugya de-alma) and, above all a healthy dose of reverence for the judicial moment (Yirat Hora’ah), cloaked in deference to the Giver of the Torah (Yir’at Shamayim), even to the inconvenience of the individual.[15] Those who misrepresent prozbul, and Halakhic Jurisprudence by extension, are guilty of ignorance at best, and willful, disrespectful distortion, at worst.  
This is not to imply that Halakhah ‘on the ground’ (as it were) is (or was ever) meant to be static. However, the interaction of Law and Life is both delicate and nuanced.[16] Orthodox belief maintains, and historical study confirms, that Halakhah possesses its own integrity and was never viewed as a plasticine toy in the hands of the halakhist. On the other hand, the type of contemporary legal paralysis that has engendered a society based on fear, on adoration of stricture and the compulsive need to satisfy ever transient opinion ever uttered is equally egregious and must be countered by those qualified (present and/or future) to liberate Halakhic decision making from its chains.
           There is, however, a difference. The latter, an admittedly egregious situation, is an internal development that can be rectified from within. Waving the flag of prozbul, with historicist fervor and revolutionary ardor, will leave nothing more than scorched earth.

[1] I am not going to here revisit the Conservative allowance to drive to the synagogue on Shabbat. As issued, it amounts to little more than rough historicism. Ironically, a very cogent rebuttal thereto was issued by the Masorti Movement in Israel. 

[2] Also popular, though less invoked, is M. Keritot 1, 7.

[3] Cf. Sefer Hassidim, ed. Witstinetzki-Freimann, no. 1068 and H. Soloveitchik, ‘Three Themes in the ‘Sefer Hassidim,’’ AJS Review, I(1976), Part One.

[4] I much prefer the bon mot of Professor David Shatz, אם תרצו, אין זו הלכה. Cf. H. Sabato, Seeking His Presence: Conversations with R. Aharon Lichtenstein, Jerusalem 2016,         .

[5] On this use of topos as a literary trope, see E. Curtius, European Literature and the Latin Middle Ages, New York 1953, 80. The term was most significantly used in Jewish Intellectual History by the late Prof. Isadore Twersky.

[6] A recent discussion of the origins and development of Prozbul, with prior bibliography, is found in E. Ancselovits, The Prosbul – A Legal Fiction? Jewish Law Annual, 19, 1-16. However, while his discussion is quite thought provoking, it does not address the point at bar here.

[7] I am following the discussion of the topic by my colleague, R. Prof. David Henshke, ‘Ketzad Mo’il Prozbul? Le-Toldot Be’uro shel Taqqanat Hillel,’ Shnaton HaMishpat HaIvri, 22(2001-2003), 71-106. Both, per se and for purposes of the central focus of this essay, his presentation is the most persuasive and the most apt.

[8] The Mishnah in Gittin (4, 3) describes prozbul as an enactment for the correction of a societal ill (Tiqqun Olam).

[9] There is a difference of opinion as to the exact mechanism at work here. See Henshke, (85-92) and the sources cited there. Ancselovits (passim) describes the subsequent stages of development of the institution.

[10] PT Shevi’it 10, 2 (39c) and BT Gittin 36a.

[11] BT Hullin 49b:  Rav ve-issura de-orayta ve-at amrat Ha-Torah hassa al mammonam shel Yisrael?

[12] Henshke notes that the Mishnah’s characterization of Prozbul as an ‘enactment’ (taqqanah) can be squared with either approach. The word can mean either ‘regularization’ or ‘legislation.’ The former connotation is appropriate with viewing Prosbul as an expression of a Biblical hermeneutic.

[13] Cf. H. Soloveitchik, ‘Religious Law and Change: The Medieval Ashkenazic Example,’ Collected Essays, I, Oxford 2013, 239-240. It is my conviction that even by the atheist-materialist standards of academic thought, the historian must presume the religious probity of the medieval individual (unless decisively proven otherwise). Cf. J. Woolf, The Fabric of Religious Life in Medieval Ashkenaz (1000-1300), Leiden 2015, 12-21; A. Gurevich, Categories of Medieval Culture, London and Boston: Routledge & Kegan Paul 1985. Startling confirmation of this contention is provided by the diaries of King James I of Aragon. Cf. R. Burns, ‘The Spiritual Life of James the Conqueror King of Arago-Catalonia,’ The Catholic Review, 62 (1976), 1-35.

[14] A review of the way that prosbul was adjudicated in Post-Talmudic Halakhah bears out this contention. See Henshke, passim and Y. Dinari, Hakhme Ashkenaz be-shelhe Yeme Ha-Beynayim, Jerusalem 1984, 200-203. Regarding the last point, see my essay ‘Masorah in the Teachings of Rabbi Joseph B. Soloveitchik zt’l,’ published here.

[15] This is not to deny that historical change does represent one variable, one tool, in the halakhist’s tool box. The parameters of the use to which such can be put to use is an very important topic on its own. It goes far beyond t he confines of the present discussion.

[16] I address this point in a forthcoming review essay in the Hebrew journal, Zion.

Tuesday, February 06, 2018

Wissenschaft and Bet Midrash


My good friend and esteemed colleague, Prof. Rami Reiner, has just published a moving memoir cum thought provoking essay entitled, Rabbi Aharon Lichtenstein and Academic Talmud Study. In the essay, Professor Reiner explores the apparent anomaly that his revered mentor, Rav Aharon Lichtenstein זצ"ל, who was known for his intellectual breadth and disciplined devotion to intellectual rigor and truth, not only personally eschewed academic Jewish Studies, but actively opposed their inclusion in the cultural orbit of Yeshivat Har Etzion and its institutions.

           Readers will not be surprised that Professor Reiner’s discussion was of special interest to me, as it addressed questions that have concerned me deeply for quite some time (and which I have addressed here and here). The fact that it was Prof. Reiner, a person for whom I have the highest regard as a Talmid Hakham and a Scholar, who authored the article attracted me even more. However, as I did not have the privilege of being a student of Rav Lichtenstein (indeed, he was the only member of the family that I didn’t study with), I don’t have the temerity to directly address the question of why Rav Lichtenstein so stridently opposed Academic Jewish Studies. However, I have found that Prof. Reiner’s analysis (and subsequent discussions of the essay in Social Media) have enabled me to revisit a number of points relating to the relationship between Jewish Studies and Torah (or the lack thereof), and has helped me formulate my thoughts more carefully.

           I would like to share some of these.

           The major thrust of Prof. Reiner’s article centers on the academic conviction (shared by the author) that ‘our ability to properly understand our sacred sources—Mishnah, Bavli, Yerushalmi, Geonic Literature, Rishonim, and Aharonim—hinges on their textual, linguistic, and contextual examination in addition to their comparative study alongside proximal counterparts from cultures that neighbor them temporally and geographically and in their social and religious contexts.” Prima facie, this precise formulation encapsulates the  reasons for which Rav Lichtenstein objected to resort to academic Talmud in the Bet Midrash. By these lights, academic Talmud is thoroughly historicist, and uncompromisingly reductionist. In other words, Academic Talmud study purports to discover the original form and intent of the words of the Rabbis. The implication is that later interpretations are either incorrect or (at best) distorted. This assumption, in turn, severely weakens ongoing creativity in Torah Study as it calls into question the authenticity of the enterprise. As Professor Reiner notes, the Brisker school of Talmudic analysis is particularly a-historical, so that it is easy to understand Rav Lichtenstein’s opposition to this alternative approach. Furthermore, and more fraught with consequence, the anti-nomian implications of academic Talmud for Halakhah are self-evident.            

           As with so many discussions of this type, one can discern here an implicitly binary way of thinking. To begin with, it is simply not the case that an ‘original intent’ interpretation for a rabbinic statement, based on historico-literary context or philology, exhausts the authentic implications of any given statement. [1] 

Such thinking, which is common among academic Talmudists and Jewish Historians, is guilty of ‘the Genetic Fallacy.’[2] In other words, one should not judge a phenomenon simply based upon its origins or sitz im leben. The interaction between Jewish culture and the outside world is far more nuanced than usually represented. In breve, outside ideas and forces certainly do have an impact upon Judaism and awareness thereof can enhance our understanding of certain passages (especially in the area of realia). That is normal. However, this impact is not wholesale or uncritical. In the Middle Ages and in Renaissance Italy (about which I can speak with some degree of knowledge), outside forces frequently responded to needs that developed within the Jewish World. It was these that made their way into the Jewish orbit. These were then adopted and adapted to the axiological structures of Jewish Life. Hence, the cultural context of any given passage only provides a partial understanding thereof; insofar as these accretions come to express naative Jewish values. Indeed, as noted, the process of influence is also neither unrestricted nor uncritical. Other ideas and forces that confronted Judaism from the outside were not granted entrée, for precisely this reason.[3]

Thus, there is no necessary contradiction between much of the academic endeavor and adherence to and acceptance of an organic, living tradition.[4] Levels of meaning and method are perpetually revealed in great classics of thought and literature (including conceptual analysis). Implicit methodological assumptions that bind generations of students together are as reasonable a reality as that which assumes protean changeability and discontinuity. This is true, all the more so, of a corpus which its bearers revere as the Word of the Living God.

This brings us to responses to the article that were raised by a number of te author’s colleagues among the alumni of Yeshivat Ha Etzion: The Question of Reverence.

A number of these commentators noted that Worship (or Service) of God (Avodat HaShem) lay at the core of Rav Lichtenstein’s essence, as a Man, as a Jew and as a Scholar). It was from that point of departure, these observers maintained, that he objected to the inclusion of Academic Talmud (and Halakhah) in the Yeshiva. He did not believe that this endeavor added to one's of ‘Fear of Heaven’ (Yirat Shamayim) to the student. On the contrary, it bore the seeds of spiritual corrosion.

Upon reflection, one can understand his concern. The academy is, by definition (at least, in its contemporary iteration) fundamentally atheist and materialist. God, or religious awareness, play no role in the scholarly calculus. Hence, it seems almost inevitable that exclusive adherence to this axiology will affect the inner life of the practitioner, even if he starts off as a person of faith.[5] One must strive mightily if one is to maintain both. [The personal price that failure engenders, was addressed in a previous post.]  

Furthermore, at least in the area of Post-Talmudic History of Halakhah, I do not see how one can be a methodological atheist and a responsible historian. For, even if the scholar is a non-believer, the subjects of his inquiry were. They believed in God and they believed that they were interpreting and applying God’s Law in the world. They felt profound deference to the words of Tradition. They were deferential to, and self-limited by, those words.[6] Denial of this reality seems to me to be an historical distortion. 

Finally, there is an epistemological struggle for priority between the two worlds. To return to Medieval imagery, the question is which is to be the 'handmaiden' and which 'the Mistress.

[1] As I’ve frequently noted, academics are no less rigidly dogmatic than divines. Indeed, they often tend to be more so. Pace academic aspirations, it remains a fact that the scientific endeavor is profoundly conditional in its findings. If this is true of ‘hard’ science, a fortiori is it true of the Social Sciences and Humanities. Academic scholars do the best that they can with the information and tools at their disposal. However, I’ve always been bemused by academic certainly (as a practitioner), in light of the radical limits of the enterprise.
[3] See H. Soloveitchik, ‘Three Themes in the “Sefer Hassidim”,” AJS Review, I(1976), Part I.  It will, no doubt, be objected that this model presumes a degree of integrity and continuity within Judaism that might be deemed ‘Essentialist.’ That, indeed, is the case. I subscribe to the notion that while there is certainly change and development within the Jewish Religion and its Civilization, there are clearly identifiable lines of continuity that transcend the generations. It is this methodological conviction that underlies my use of ‘History of Ideas’ approaches to Jewish Intellectual History.
I would add that the present abhorrence for ‘Essentialism’ in academic circles (itself suspiciously extreme) is itself in retreat (as is 'theory,' generally) and a new found respect for continuities is asserting itself under the label of ‘Neo-Essentialism.’   
[4] Cf. Rashbam, Gen 37, 1.
[5] With significant exceptions, and Professor Reiner is absolutely among these, I have long gotten the sense that Jewish Studies practitioners seem to develop judgmental postures toward their subjects of study, reminiscent of the way wherein critics often demean great artists. It often appears that love and reverence for the great figures and works of the past are far from bon ton. Consider, by way of contrast, the passionate involvement of Prof. Giuseppe Mazzotta in the study of Dante, without impugning the power and credibility of his scholarship. [NOTE: In a private communication, I was informed by another student of Rav Lichtenstein that this issue was central to his thinking about Academic Talmud as practiced.]

[6] Cf. D. Berger, ‘Identity, Ideology and Faith: Some Personal Reflections on the Social, Cultural and Spiritual Value of the Academic Study of Judaism,’ Study and Knowledge in Jewish Thought, ed. H. Kreisel. Beer Sheva 2006, 11-29 and R. Bonfil, Hilkhot Malveh ve-Loveh, Jerusalem 2016, 57-61.