To the Editor:

As a rabbi of Orthodox Judaism I must speak up when my tradition is misrepresented, even when this is done without any apparent polemic motivation. I refer to the article “The Limits of People-Centered Judaism” (May) by Jakob Petuchowski.

1. Dr. Petuchowski states that the Orthodox Jew takes “his Judaism as something revealed ‘from above’ rather than evolved in the historical life-situation of a people.” This is an oversimplification. Jewish tradition clearly indicates that certain laws and traditions were “evolved out of the historical life-situation” of the Jewish people. Such are all of the takkanot, the gezerot, and the minhagim. (The tradition requires only that these practices be consistent with the revealed law.)

2. To say that Orthodox Jews have “tacitly given up a full fourth of the Shulchan Aruch: namely, that part of it which deals with civil law,” is also misleading. Modern Orthodox Jews take great pride in the contrast between this portion of Jewish law and other current systems of civil law. An editor of the Yale Law Journal just this year submitted a thesis on “Human Rights in Jewish Law” and wrote that Jewish law is here “infinitely superior” to Anglo-American common law.

It is true that rabbis are nowadays rarely called upon to adjudicate civil cases, but this is because such cases are rare and because a rabbi will be consulted only when both parties to the suit are committed to obey Jewish law. This latter condition is fulfilled in homogeneously Orthodox Jewish communities—and there the Choshen Mishpat remains, indeed, as alive as ever.

3. What basis does Dr. Petuchowski have for saying that “Such rites de passage as circumcision, marriage, and burial—become valid only in the presence of a minyan”? All of these mitzvot are completely valid without a minyan according to all of the traditions and authorities of which I am aware.

Joshua Wachtfogel
Jewish Chaplain for Alaska

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Dr. Petuchowski writes:

I am prepared to concede Rabbi Wachtfogel’s third point, and to admit that I may have somewhat overstated my case. Rabbi Wachtfogel is, of course, correct in stating that circumcision, marriage, and burial rites are legally valid even when performed without the presence of a minyan. Nevertheless, without a minyan, it would have to be a marriage service without all of the traditional “Seven Benedictions,” and a burial service without the recitation of the kaddish. I wonder how psychologically “valid” such services would thus be in the minds of the participants. As for circumcision, the Shulchan Aruch (Yoré De’ah 265:6) says that, wherever possible, a minyan should be in attendance, though, admittedly, a circumcision without a minyan is still legally valid. On the whole question of requiring a minyan for the complete marriage and burial rites, Rabbi Wachtfogel might profitably consult the Babylonian Talmud, Megillah 23b. Speaking in Jewish legal terms, my article stated the Jewish position lekhatechillah (a priori), whereas Rabbi Wachtfogel now informs us what would still be acceptable di’ahhad (ex post facto).

As much as I am prepared to stand corrected by Rabbi Wachtfogel’s strictures on the third point, I am unable to follow his reasoning on the first two points. The Rabbi takes umbrage at my describing the Orthodox Jew as accepting “his Judaism as something revealed ‘from above’ rather than evolved in the historical life-situation of a people.” He counters this by drawing attention to the existence of takkanot, gezerot, and minhagim. Admittedly, the human origin of such classes of law was accepted by the rabbis of the Talmud. I said so myself in my article on “The Bible of the Synagogue” (COMMENTARY, February 1959, particularly on page 144). But there is a great deal more to Orthodox Judaism than the practices subsumed under those categories. Rabbi Wachtfogel himself stresses the requirement that they must be “consistent with the revealed law.” The “revealed law,” therefore, is the standard and the criterion, the “constitution,” as it were, of which takkanot, gezerot, and minhagim are merely the “amendments.” And the “revealed law,” according to rabbinic teaching, existed before the creation of the world. I wonder whether there are many other Orthodox Jews who would deny that their Judaism is something revealed “from above.” Certainly, in their polemics against nascent Reform Judaism, such Orthodox authorities as Moses Schreiber and Akiba Eger invested even the minhagim with a divinely ordained binding character.

In my article I did not deny that Orthodox Jews take pride in rabbinic civil law. I merely tried to indicate that it was no longer an item of latter-day Orthodox Jewish practice. I have seen Orthodox attempts to foster the dietary laws. I have come across popular tracts seeking to win converts for the mikveh, the ritual bath for women. Obviously such appeals were not exclusively addressed to “homogeneously Orthodox Jewish communities.” But I have yet to see appeals of similar forcefulness pleading for Jews to settle their civil suits by the decisions of Jewish civil law. On the contrary, every now and again one reads in the press that the board of an Orthodox congregation and an Orthodox rabbi or cantor have gone to the civil courts to settle conflicts arising out of contracts and breaches of mutual agreements.

In my article I was not accusing Orthodox Jews. I am even aware that, according to the dictum of the Amora Mar Samuel, the civil law of the country in which Jews live has a (religiously) binding character for Jews. I was merely concerned with the statement of a fact—to wit: the impact of the Emancipation on the scope of viable Jewish law. Nothing that Rabbi Wachtfogel says in his letter could in any way give the reader a picture of the latter-day state of affairs at all different from the one I tried to paint in my article.

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