Our tradition demands both and obedience and conscience. Obedience is acquiescence to a higher external voice which can save us from the narcissistic illusion that the world belongs to, and revolves around, us. The model of God as Lawgiver, who sits on high, is a cornerstone of Jewish faith from earliest times. It is a basic assumption upon which the Torah is founded. But it is also true that the Torah recognizes and reinforces personal moral sensibilities and conscience. When Avraham invokes the principle of fairness in his argument with God about Sedom, (“That be far from thee to do after this manner, to slay the righteous with the wicked: and that the righteous should be as the wicked, that be far from thee: Shall not the Judge of all the earth do right?” Bereishit 18:25) it is not based upon exterior revelation of God’s Will, but rather his own refined intuition and moral conviction. In contra-distinction to revelation of divine will or law, conscience is that higher voice which we experience as internal; we disregard it at great peril.

So much of what is occurring in the Jewish Orthodox world today in Israel and the diaspora revolves around the issue of obedience to authority as opposed to personal autonomy, responsibility and conscience. We need a path to help us negotiate this thorny problem. That path begins with a deeper understanding of the nature of the Torah as God’s revelation and our part in it.

In this piece I am presenting a model which I hope people of all affiliations will find helpful and meaningful. We need to understand that there are in a sense, two Torahs: The Torah of the Heart and the Torah of the Mind. The relationship between the two must be navigated by a process which some called “berur,” best translated as discernment, which calls upon a combination of the intellectual and intuitive faculties.  These ideas are not new but I hope to frame them in a way which will make them meaningful to the modern Jew who is trying to find his or her way through this quagmire. At the end of this piece I will revisit the question of ordination of women rabbis as an application of this model.

I. Torah of the Mind and Torah of the Heart

It is told of the Brisker Rav, R. Yitzhak Zev Soloveitchik, that when litigants would come before him to adjudicate a disagreement, he would place his prayer shawl over his head in order not to look upon them. Only after he rendered his decision would he greet them warmly as guests in his home. The Brisker Rav’s behavior was consistent with the biblical prohibition of “Fear no man” (Dvarim 17:17) in the administration of justice and show no favoritism even toward the weak (Shmot 23:3, Vayikra 19:15). His behavior also underscores the nature of justice in general and halakha in particular. By covering his eyes, the Brisker Rav was modeling the principle that justice is, and must be, blind. The administration of justice must be impersonal and to the best of the adjudicator’s ability, objective.

Yet, this anecdote illustrates only part of the picture; reality is often more complex than any halakhic text can anticipate. At times the judge must access his intuitive subjective side if he is to reach a just outcome.

“A judge may adjudicate cases involving monetary law based on factors that he is inclined to regard as true and concerning which he feels strongly in his heart are correct even though he does not have proof of the matters …”(Maimonides, Laws of Sanhedrin 24:1, emphasis added).

In this particular case, the Torah laws of evidence are set aside because of the “gut feeling” of the judge in order to facilitate a just decision.

We find a wider and far-reaching application of this principle which extends beyond monetary law and is applied on a community wide level in the responsa of R. Shlomo b. Aderet, the Rashba (1235-1310). In this responsa, the Rashba recognizes the inapplicability of certain Torah laws in the area of criminal justice and for reasons of public policy allows the implementation of severe punishments which are not mandated by Torah law.

“If the witnesses are credible in the eyes of the adjudicators they are empowered to impose fines and punishments according to what they deem to be required. This ensures the survival of the world. This is because if we rule in accordance with the defined laws of the Torah… the world would be destroyed … As our Sages have stated, Jerusalem was destroyed because the judges ruled according to the law of the Torah… In any case the adjudicators need to act only after serious consideration and deliberation. Their actions must always be for the sake of Heaven.” (Vol. 3 Res. 393)

More recently, R. Yehiel Mikhel Tukichinsky (1872-1955), one of the great rabbis of Jerusalem in the last century, in his classic work on the laws of mourning, the Gesher haHayim, exhorted his readers to circumvent the inheritance laws of the Torah which would disinherit daughters if there are surviving sons. He states emphatically,

“Since it is the prevalent custom to leave inheritance for daughters as well and it is the law of the state – he who has eyes in his head should leave inheritance for his daughters in his will … [not to do so] leads to discord and conflict…

There was a wealthy talmid chacham (Torah scholar) who followed the laws of inheritance according to the Torah law…and caused fighting, hatred and discord among his surviving family. His memory was disgraced…” (Gesher Hahayim Vol.1 pp.41-42, emphasis added).

The Rambam, the Rashba and R. Tukichinsky are all pointing to a grey area which defies formal definitions and requires a developed and considered faculty of judgement.

What emerges is the following; there are two aspects of the Halakha/the Torah.

(1) The objective, legal and formalistic which is accessed through the intellect. The Torah of the Mind.  (2) The meta-values of the Torah which defy exact quantification which can be accessed through an intuitive faculty. The Torah of the Heart.

We may be tempted to relate to the ambiguous area of the ‘Torah of the Heart’ as the “exception to the rule.”  This characterization, however, minimizes the full import of the phenomena. This is the area which includes the meta–values which ideally the Halakha needs to express.

We would expect, therefore, to find these meta-values in every field of Halakha. In fact we do. In financial matters we have the principle of “Deal justly” (Dvarim 6:18). This would be the biblical precursor to the Yiddish command to “be a mensch.” In order to safeguard the sacred nature of the Shabbat and festivals beyond the strict letter of the law, our sages invoked the term, “shabbaton” (Vayikra 23:3). This is the source for declaring an activity “nisht shabbestic”- not appropriate for the Sabbath – even where no formal halakhic prohibition exists. Regarding managing our appetites and passions, the Torah demands, “You shall be holy.”( Vayikra 19:2. See Ramban ) Finally, in the realm of government, it is the function of the monarch to fill in the lacunas of Torah law in order to ensure the efficient and just functioning of society (R. Nissim Girundi, 1290-1380, Drashot HaRan 11). All these areas comprise what has come to be known as the “Fifth section of the Shulkhan Arukh.”

II. Balance

These two Torahs are distinguished by how we approach and experience them. The Torah of the Mind is experienced as originating from an external authority – God speaking to us through the text. We struggle with our intellect to comprehend the law. In contra-distinction to the formal Halakha, the Torah of the Heart extends into the grey area of judgement and values and is accessed through an intuitive faculty which rests in the heart, not in the mind. We experience this not as a voice of authority but as our own inner voice.

Focusing exclusively on the Torah of the Mind or the Torah of the Heart can lead to serious and even dangerous distortions. If we neglect the legal aspect we are in danger of being swayed by the transient values of the day and our own passions and biases. We could wind up merely worshipping ourselves and calling it the Torah when in fact we would be emptying the idea of a divinely revealed law of any substantial meaning. This is the very justified fear of many right wing orthodox Jews. On the other hand, silencing our inner voice and focusing excessively upon submission and obedience to the formal side of the halakha opens us to the extremely hazardous possibility of becoming “a scoundrel who lives within the letter of the Law,” – naval be reshut haTorah. This can express itself in more subtle ways and play into what Erich Fromm described as the “authoritarian personality”.

“…for the authoritarian character can do nothing but submit. The authoritarian character worships the past. What has been, will eternally be. To wish or to work for something that has not yet been before is crime or madness. The miracle of creation- and creation is always a miracle- is outside the range of his emotional experience” (Escape From Freedom, New York, 1941, p. 168-9).

The authoritarian personality is blind to the unique circumstances of the present seeing them only in terms of the past and is incapable of appreciating the challenge of what is new and fresh. To the extent that something new is sensed, it is met with fear and suspicion. When this attitude meets the Torah, our relationship with God is in danger of becoming stagnant and ossified. Superficially, the approach may seem more religiously devoted because of its conservative predisposition. In fact it is characterized by fear and lack of faith in the Torah’s ability to meet the challenges of the present authentically. The authoritarian approach contributes to the dilution of the level of public discourse, to paucity of understanding and spiritual mediocrity.

III. Recognizing Conflict: Honesty is the Best Policy

The relationship between the Torah of the Heart and the Torah of the Mind is nuanced and complex. At times the two Torahs nurture and reinforce each other and at times they conflict with each other. (This should not come as a surprise, since as human beings we often experience an analogous conflict between our minds and our hearts.)

The first step in any conflict resolution is to recognize it even if we have no immediate solution. The honesty and struggle involved in the acknowledgement of the conflict is in itself edifying.  One may even claim that the most significant aspect of the model of the two Torahs is the edifying function of grappling with the conflicts which arise between them.

Our Sages of the Talmud possessed honesty and courage.  They had absolute faith in the Torah and did not fear or repress the conflicts which they saw.

Let us consider the following midrash:

And the son of an Israelite woman, whose father was an Egyptian, went out among the children of Israel; and this son of the Israelite woman and a man of Israel strove together in the camp. (Vayikra 24:10) From where did he go out? R. Hiyya taught: He went out as a result of the section of the pedigrees. For he came with the intention of pitching his tent in the camp of Dan, so they said to him: ‘What right do you have to pitch your tent in the camp of Dan?’ Said he to them: ‘I am descended from the daughters of Dan.’ It is written, they told him, “Every man of the children of Israel shall pitch his tent by his own standard, with the ensign of their father’s house.” Father’s but not mother’s houses. He appealed to the court of Moses and lost his case, so he rose and cursed God…

Another exposition of the text: “But I returned and considered all the oppressions” (Kohelet 4:1) Daniel the tailor interpreted the verses as referring to bastards (mamzerim). “And behold the tears of such as were oppressed.” If the parents of these bastards committed a transgression of what concern is it to these poor sufferers? …”And they had no comforter, but on the side of their oppressors there was power.”(ibid) This means that on the side of Israel’s Great Sanhedrin which comes to them with the power derived from the Torah and removes them from the fold, by virtue of the commandment, “A bastard shall not enter into the assembly of the Lord.”(Dvarim 23:3) ”But they have no comforter.” Says the Holy One Blessed be He: I shall be the one to comfort them… (Vayikra Rabbah Emor 32)

This midrash identifies the son of the Egyptian man and the Israelite woman as a mamzer and sees a conflict between the halakha of mamzerut and basic fairness, between the Torah of the Mind and the Torah of the Heart.  Our sages extended understanding and compassion toward the one who cursed God and actually cast Moshe and the Sanhedrin in the role of the oppressors. Moshe and the Sanhedrin are agents of the Torah of the Mind and God’s voice in this midrash is that of the Torah of the Heart. There is no practical resolution to the conflict offered here. I believe that our Sages, by boldly casting Moshe and the Sanhedrin as the villains, and bringing in the poignant proof texts from Kohelet, intended to shock us into grappling with the issue.

In the following Midrash our Sages go so far as to say that the study of Torah may actually interfere with the ability to perceive God’s presence.

And Ya’akov awoke from his sleep (Heb. MiShnato) and he said, Behold God is present in this place and I did not know:  R. Yohanan said that this should be read MiMishnato (i.e. from his study of Torah) (Bereishit Rabba VaYetzei 69:7)

The Torah of the Mind, in this instance, is portrayed as a barrier to the Torah of the Heart. This means that the intellectual activity of Torah study may actually retard the intuitive faculty which comprehends the presence of God.

IV. What renders subjective value judgements as valid? The process of discernment

When we have a conflict between the Torah of the Heart and the Torah of the Mind, we must navigate through territory which defies systematization. There are no magic formulas. We can only outline a process of discernment or berur which is the subtle exercise of judgement in a cognitive context which can best secure reliable conclusions.

a)The Cognitive Elements of Discernment – What is included in the internal conversation?

The values associated with the Torah of the Heart both emerge from, and are a priori to, the formal halakha.

From where did Avraham know the principle of fairness which he invoked in his argument with God in the episode of Sedom?

Based upon what revealed criteria is the Torah deemed to be wise and just in the eyes of the nations ( Keep therefore and do them; for this is your wisdom and your understanding in the sight of the nations, which shall hear all these statutes, and say, Surely this great nation is a wise and understanding people.” Dvarim 4:6)? What could have pushed the Rashba to promote such a severe deviation from Torah Law and characterize the halakha as potentially destroying the world? And finally, why should we trust R. Tukichinsky’s appeal to sound judgement if it effectively abrogates Torah Law and renders it a dead letter?

The instances of Avraham and the perception of the Nations of the world indicate that the meta-principles are a priori – axiomatic and part of what it means to be human. As a matter of faith, though, we may assert that the sentiments and moral convictions are a subtle form of divine revelation by virtue of humans having been created in God’s image.  For the Rashba and R. Tukichinsky we may say that in addition to their inbred healthy intuitions, their encounter with the Torah of the Mind through intense and lifelong study conditioned their intuitions to be able to comprehend the Torah of the Heart.

In summary, three cognitive elements need to be brought into conversation with each other when we attempt to chart a course of action in an area of the Torah of the Heart.

  • The externally experienced voice of the halakha or divine revelation
  • A priori human judgement
  • Sensitivity born of devoted study and contemplation of the Torah

We find a very candid revelation of this kind of thinking in the responsa of Rabbi Yitschak Yaakov Weiss, the head of the rabbinical court of the eida chareidis in Jerusalem. In issuing a lenient ruling in a case of mamzerut he quotes the following from an earlier authority,

“…when they came before him with some question, first he would consider with his own reason what seems to be true according to human common sense (sekhel enoshi – in context, I think this the best translation – HH) and afterwards research according to the laws of our holy Torah. I too, when a question of agunah (a chained woman) or the like comes before me, if it is clear to me according to reason and what makes sense to people that something is true then I make every effort to find a leniency according to the laws of our holy Torah…”(Minchas Yitzchok IX:150)

After the Minchas Yitzchok is informed by the moral value of freeing the chained women and healthy common sense i.e. the Torah of the Heart, he proceeds to manipulate the halakhic principles – Torah of the Mind – to arrive at the desired outcome.

There is a delicate dance between mind and heart which occurs in the consciousness of the posek, the halakhic authority. In this particular case the dynamic is actually conscious – and that is what makes this characterization of the process so unique – but it may be unconscious as well. The posek begins with the refined intuition and moves from there to the formal legal analysis which he consciously or unconsciously bends to conform to his intuition. It is crucial to note that this intuition is universal and is consistent with the biblical tradition of Avraham arguing with God and the common sense ascribed to the nations cited above.

b)The Context of the Discernment

Let us return to the end of the responsum of the Rashba we quoted earlier.

“… In any case the adjudicators need to act only after serious consideration and deliberation. Their actions must always be for the sake of Heaven.”

The Rashba provides three conditions in order to disregard the Torah law.

  • Serious consideration; this is an introspective process.
  • Deliberation; one individual alone cannot make such a determination. Humility requires listening to others.
  • Purity of motivations.

Upon the basis of these principles the Torah of the Heart and the Torah of the Mind are brought into conversation with each other.

V. Important to note…

We have presented a number of different instances where intuition, common sense, or moral conviction, which I called the Torah of the Heart, manipulates and at times contradicts outright the objective halakhic principles of the Torah of the Mind.

Not all instances are the same, however. In the biblical narrative, Avraham’s moral conviction is in opposition to the revelation of God Himself, not just the Halakha which has been filtered through history and human interpretation. The instance which I quoted from Maimonides’ Code is relatively mild compared  to the responsa of the Rashba  in which he advocates the abrogation of Torah law for an entire community, replacing it with punitive measures which themselves are in violation of Torah law. Every situation is different and requires a different quality of discernment.  The level of clarity of moral conviction necessary to argue with God is different than the inner conviction required to manipulate a tosafot or reinterpret a gemara. Areas which do not involve laws of such severity, or do not involve explicit halakhot at all but involve modification or abrogation of minhag – generally accepted practice – require a different quality of discernment.

For example: A very strong halakhic case can be made for allowing the ordination of women as rabbis (this is not the place for a halakhic analysis – this post is already too long. I would refer anyone interested in the halakhic discussion to the comprehensive and well-reasoned article by Rabbi Michael Broyde on the topic.) The only real halakhic objection which may be raised, in my opinion, is that this was not the minhag until now.

The decision which Rabbi Sperber and I made, to confer semikha upon our students – two of whom were women – is, despite the novel application, entirely consistent with the dynamics of halakhic and meta-halakhic decision making as it stretches from the bible through the midrashim of our Talmudic sages, our medieval halakhic authorities, down to the later authorities of our own day.

Plato once said that he who loves philosophy cannot deny its pleasures from others. Regarding the study of Torah this is even more true. The intellectual and emotional effort to bring the Torah of the Mind and of the Heart into a balance is the fuel of the edifying process which forges us into the image of God that we are responsible to become. This is why Talmud Torah, the intensive study of the Torah, has been at the center of Jewish religious experience for centuries if not longer. It is ironic that some who view themselves as defenders of the tradition and of the faith would deny Torah knowledge from women. Advocating this is not only morally reprehensible but denies the healing and edifying power of God’s Torah and its centrality in Judaism; it betrays a divorce of the Torah of the Mind from the Torah of the Heart. In order to nurture and transform us, men and women, into the image of God that we can become, the two Torahs must engage in their subtle dance.

VI. In summary

We have outlined two aspects of the Torah: The Torah of the Mind and the Torah of the Heart. In order to arrive at proper action we must bring the two into conversation. This involves serious introspection, the ability to listen to others and the requisite human understanding, commitment to, and knowledge of, the Torah.

The moral grey area of the Torah of the Heart is not necessarily a comfortable place to dwell. It is very tempting to be safe and avoid ambiguities by clinging to the perceived certainties of divine revelation and the Shulkhan Arukh exclusively. That safety, though, is an illusion. The Torah of the Heart puts the burden of freedom and responsibility upon our shoulders. As a Breslover friend of mine once said, “Life is an extreme sport.”

That is because there is no simple answer to the eternal question echoed in the words of the Prophet Micah, “What does the Lord ask of you?”