Post-Talmudic authority resides in local rabbis who may interpret the words of the canon and legislate local rules for local needs. For this alternative modern Orthodoxy, a ruling is valid if, and only if, the ruling does not violate the higher norm in the Jewish legal hierarchy, a law explicitly recorded in the Oral Law canon.
It seems to me, given the archeological record of how Canaanite Israel really was, with the exception of having no pig bones and an aversion to images on inscriptions, the prohibition or legal norm is adopting the ways/means/aesthetic/protocols of pagan religions. I concede that I might be wrong in my assessment; however, [a] the Torah does not forbid me making that assessment and [b] my view is invalid, illegitimate, improper, and wrong if and only if I have violated an explicit norm in the Oral Torah. The consensus of others must be considered not for the greatness of their rabbinic reputation but for the cogency of their reading of the normative Torah record.
R. Broyde thoroughly and incisively summarizes the views of post-Talmudic commentaries, all of whom carry to his system intrinsic [as opposed to mere authority deriving from the cogency of their readings] valence:
1. Tosafot to bAvoda Zara 11a, s.v. ve’ei, outlaws practices that smack of idolatry or that are silly. This reading is credible, plausible and even possible. But it is not a necessary reading. [my response in italics] I do not recall where in the Written or Oral Torah that silliness is forbidden, but I [with the help of my faithful Bar Ilan CD Rom] found that idolatrous practices are indeed forbidden by statutory norm. So if we outlaw Thanksgiving on the grounds that it is an idolatrous, we recall that the vicarious atonements, unauthorized by the Oral Law and are [a] innovations [b] accepted by street culuure Orthodoxy, of the Tashlich and Kapporos rites, like the giving of Hanukka gelt [note well how using Yiddish renders the foreign, wrongful rite into Yiddishkeit] at this season of gift giving or magi. [there is a discrepancy between the infancy narratives of Matthew and Luke, to be addressed below] bHullin 40a outlaws praying to angels, yet some Jews ask angels to “bless me with peace” on Friday night, with those raising the propriety issue few and very far between.
2. R. Joseph Colon, Responsum 58, argues [correctly] that there is no legal norm against silliness; where there indeed such a norm, many Orthodox listservs would be in trouble. On one hand, we note that R. Colon is the great advocate for local usage, allowing local customary usage to on occasion override Oral Torah law, in spite of the legal theory outlined above; on the other hand, the benchmark that we apply to Thanksgiving in order to evaluate—and for some, to denigrate--its propriety ought to be likewise applied to those folkways near and dear to Orthodox street culture when those folkways seem to deviate from Oral Torah law.
3. R. Moses Isserles at Yoreh Deah 178:1 argues that we must be sure a practice has no origins in idolatry and there is a common sense reason for the practice, then the practice would be permitted. Yet R. Isserles approves of kapporos because it is the “custom”!
4. The Vilner Gaon, R. Solomon Kramer, supra., n. 7 requires a practice to have Jewish origins. Therefore, secular non-Jewish rites are also wrong. Rabbi J. J. Weinberg at Seridei Esh 3:83 notes that there are sages who disagree with his view. Note well that we hear have an expansive understanding of of Leviticus 18:3, outlawing participation in non-Jewish civil culture.
5. At Iggerot Moshe, Even ha-Ezer 2:13 and Yoreh Deah 4:11(4), Rabbi Feinstein contends that
· We do not celebrate on holidays that Gentiles celebrate, because of mar’it ha-‘ayin [the appearance of impropriety]. R. Feinstein subtly and ingeniously expresses disapproval—on policy grounds—of participating and perhaps assimilating into non-Jewish culture, but concedes to the attentive reader that his demurral is a matter of policy and not statutory norm.
· Thanksgiving is not a doctrinally religious holiday, it may be observed as a day of eating turkey, but it may not be obseved as an obligation, as this would seem to add to the Torah. [See Nahmanides to Deuteronomy 4:2, where it is argued that we lack the authority to create days of obligation not canonized in the Oral Torah. Unaddressed is the possibility that a discretionary practice, once accepted by all Israel, becomes de facto an obligatory rite, like male head covering for prayers and the Fast of Esther].
· Only when the special day is part of the Gentile law or religion does the act rise to the benchmark that would render it to be forbidden. We do not outlaw pleasure because outsiders do it. Curiously, R. Feinstein outlaws bat mitsva due to its non-Orthodox origins, but he tolerates the bar mitsva rite. I suspect that like R. Isserles’ tolerance for kapporos, the Orthodox street is really canonizing its own culture while delegitimating alien culture.
· In sum, R. Feinstein seems unhappy with copying secular society and is therefore unhappy with Thanksgiving observance. He seems to identify with R. Kramer’s while conceding that R. Isserles reflects normative obligation, a point astutely noted by R. Broyde.
6. According to Rabbi Herschel Schacter’s report in Nefesh ha-Rav, Rabbi Joseph B. Soloveiitchik maintained that Thanksgiving is not a religious day, so its civil celebration would be permitted to Orthodox Jews. Note well that R. Soloveithchik also allowed himself to earn a secular PhD on Hermann Cohen at the University of Berlin, a factoid to which we shall shortly return.
7. Rabbi Isaac Hutner outlaws Thanksgiving because it is scheduled on a day determined by the Christian calendar. Implied is that counting time like an idolater is an improper act.
8. Rabbi Menashe Klein, well known as an extremist contends that like R. Kramer, the Gentile way is either idolatry or silly, which is immodest, and is therefore forbidden. Implied is that if an act is not mandated or permitted in Jewish culture, it cannot be proper and must be forbidden.
9. Rabbi Dovid Cohen, well known for his opposition, telling the authorities when sexual abuse occurs, and for allowing tax evasion, that following Tosafot to Avoda Zara 11a, the behavior—eating Turkey-- is irrational and therefore forbidden. What makes the behavior irrational is unclear. Going to the miqveh to be “purified” before a holy day assumes that it is proper, when the Oral Torah makes no such claim as it is applied in our times. It is also assumed that an apodictic and undefended ruling of Tosafot has the force of Oral Torah statute. Recall that Tosafot invokes the idioms davqa and lav davqa, when seemingly ruling against the plain sense of canonical Talmud. See Jose Faur, “The Legal Thought of Tosafot,” Dine Israel 1975.
10. The real issue is whether Judaism is a religion of law, which never forbade civil or secular activity, or whether we are so afraid to allow freedom that we mislead and misrepresent the Tradition because we “can’t take the truth.” To those who, like R. Soloveitchik, are unafraid to engage non-Jewish culture, Leviticus 18:3 is understood narrowly, forbidding idolatrous religion. For those who argue, like Rabbis Kramer, Klein, Cohen, and Hutner, culture implies cult and one who serves the Lord may not express dual and conflicting loyalties.
11. If the Orthodoxy of the Jewish street were really concerned with not copying non-Jewish acts of idolatry, and not merely expressing disdain for the “other,”
a.Kapporos would be outlawed because chicken waving is not an act that carries religious valence for forgiveness of sins. For that matter, either is immersion in the miqveh as an atonement for sins. [See however Mark 1:4 of a view from the perspective of the “other!”]
b. The Hanukka gift of gelt/money is not at its origin a Hanukka custom at all but, in this season to be jolly, a reflection of the gifts of the magi [Matthew 2:1-12] that were brought as offerings to the infant Christian hero. Note that by using a Yiddish word, gelt, this Christian custom “converts” to the Orthodox Jewish street culture called Yiddishkeit, yet its origins would seem to render it forbidden even according to the narrow understanding of Leviticus 16:3.
c.When some Orthodox Jews ask angels to bless them in or with peace on Friday nights, they would seem to violate the law recorded at b Hullin 40a regarding praying to angels
12. Since these practices are part of Yiddishkeit, the culture of Yiddin who cannot be wrong, these practices are acceptable, even though the are much closer to idolatry than Thanksgiving or for that matter, Halloween. For Yiddishkeit, God’s will is revealed in the familiar spirits and rites; In Torah Judaism, God is revealed in Torah legal norms rightly understood and put into practice.
