Rechtsgeschichte

DA'AT TORAH

The Unqualified Authority Claimed for Halachists by Jacob Katz

The problem to be dealt with here can be formulated without difficulty. The term da'at torah - `Torah view', occurs only once in the Babylonian Talmud. There it is contrasted with da'at nota, that is, the personal opinion of the scholar. This indicates that its opposite means the documented halachic decision. In contemporary usage the term, however, assumed the meaning "the pronouncement of the halachists ex cathedra, based simply upon the general prestige conferred on the halachists, and therefore binding for religious Jewry. The questions which occupied the scholars who studied this phenomenon were how and when this change in the term's meaning occurred, and how it was justified, in view of its obvious deviation from the traditional role of the halachist as a mere interpreter of the sources. In order to find an answer, they surveyed the relevant sources, we shall later see with what results.[1]

My approach will be different. My leading question is: What purpose does this peculiar use of the term serve? Obviously it is meant to legitimize the halachist's functioning in capacities outside the realm of halachic procedure. Knowing however, that social or political developments often make their appearance long before an appropriate designation for them is produced, our main interest is not in when the term da'at torah came to be employed in the new meaning, but when the halachist began to function in this novel capacity. I shall therefore present two small case studies which reflect such a situation. One of the two is the history of the well-known Rabbinical Council of Agudat Israel. The other is the lesser known, or rather, unknown role of the rabbis in Hungarian Orthodox Jewry's struggle for its organizational independence. My book-length study on this subject has recently been published, and here I shall submit the details relevant to our subject matter.[2]

Hungarian Jewry was emancipated in 1867 by a special law promulgated by the newly established liberal government in the wake of the political compromise with the Austrian authorities. By then the nearly half a million Jews who had been exposed to the process of modernization were deeply divided about the consequences of Emancipation in terms of Jewish accommodation to the new situation. The so-called Neologs, ready to demonstrate their willingness to integrate themselves into the state and surrounding society, altered even their religious institutions in more or less visible fashion. These changes, although of only slight halachic significance, antagonized the Orthodox, leading to continuous tension and struggle in most communities. However, the Orthodox themselves were divided in their reaction to the situation. One trend especially prominent in the northeastern part of the country desired to retain all the external signs which made Jews recognizable as a religious ethnic species apart. Accordingly, a group of rabbis led by Hillel Lichentenstein declared in 1865, that is, two years before the Emancipation, that any individual or community that would introduce any change; for instance, preaching in any language except Yiddish, would be regarded as a heretic. Hillel Lichtenstein had been a student of the Hatam Sofer in Pressburg, and saw himself as carrying on the legacy of his master in his new environment in the north of the country. But whatever the intention of the Hatam Sofer might have been, the fact is that the western part of the country and Pressburg itself developed in the opposite direction. Here even observant Jews went through a measure of acculturation. Yiddish was gradually supplanted by German or Hungarian, the heder replaced by modern schools. The Orthodox attitude concerning these changes was to differentiate between the essentials of the tradition, that which is halachically commanded, and what was merely customary. A novel kind of Orthodoxy was fully and consciously developed in Germany, where the process of acculturation was universal and complete. Its main ideological proponent was, as is well known, Samson Raphael Hirsch. A new term, probably his own invention, became its slogan, gesetzestreu, that is, loyal to the law. The term gained currency in western Hungary as well, as Hirsch's influence in that area is well documented. The affinity between the developments in both places is further revealed by the fact that in 1851 the community of Eisenstadt found it appropriate to appoint as its rabbi Azriel Hildesheimer from Halberstaat, in Germany. Outspoken partisan of this new variety of Orthodoxy, Hildesheimer's presence in one of the important communities in western Hungary for almost two decades could not but strengthen the expansion of the trend he represented.[3]

These two Orthodox trends, the one connected with the name of Hillel Lichtenstein, the other with that of Hildesheimer, were obviously in deep conflict with each other. This conflict turned not only on the possibility of acculturation but also on its religious legitimation; that is, the attitude towards rabbinic authority. Hillel Lichtenstein presented himself as a faithful defender of the entire tradition, whether evident in positive or negative requirements, and was prepared to do battle to support its obligatory nature. He and his group, knowing that their position could not be substantiated by detailed halachic argument, resorted to a generalized and rather emotional appeal to the community to remain steadfast to the inherited way of life. Some twenty-five rabbis assembled in 1865 by Hillel Lichtenstein promulgated the so-called Pesaq Beit Din, which listed a number of prohibitions to be enacted by their decree, without giving halachic sources. Their sole authority was their position as rabbis immersed in the study of Torah.[4] Had the recent metamorphosis of the term da'at torah been developed in their lifetime, they would no doubt have quoted it in support of their Pesaq Beit Din.

One dissenting voice was raised against this method. It was that of a contemporary personage who shared the wish to see the tradition in its cultural entirety retained unimpaired, R. Moshe Schick, Mahara"m Schick, an even more outstanding student of the Hatam Sofer than Hillel Lichtenstein, who too was called in his old age to serve as rabbi of one of the northern communities, H'ust. Mahara"m Shick considered most of the injunctions contained in the Pesaq Beit Din precautionary measures called for under the existing conditions. But according to him, the nature of the prescriptions should have been stated in the declaration, rather than having been represented as of halachic provenance.[5] We shall later see whether Mahara"m Schick remained consistent in making this distinction.

The Pesaq Beit Din was only a prelude to the clash of the Orthodox of all shapes and the Neologs in the wake of Emancipation. Despite the emancipation of the Jewish community, it remained under the supervision of the state authority, as were the Christian churches. These were represented vis-à-vis the state authorities by a countrywide church organization. The Acting Minister of Education and Religion, Baron Joseph Eötvös, wished to have the Jewish community united in one organization in order to facilitate state supervision over the affairs of the community. He therefore suggested that a congress of the communities' representatives be convened, the task of which would be to decide upon the constitution of the planned organization. A friend of the Jews, who was instrumental in bringing about their Emancipation, he nonetheless had an ulterior motive in this suggestion. Though liberal and tolerant, Eötvös favored the culturally adapted Jews, and hoped that a centralized Jewish organization would further the trend of Jewish integration into state and society. In this he saw eye to eye with the Neolog leadership who greeted the idea of the Congress, while the Orthodox felt compromised and at a loss how to react.[6]

Then a small group of traditional householders in the capital decided to establish an organization to take care of the interests of the Orthodox. Called Shomrei Hadat - The Guardians of Religion, its constitution called for a body of laymen to be responsible for its overall conduct. The leadership would be assisted by a rabbinical council of five, who would act in two different capacities. The rabbis would advise the leaders concerning their general activity, and would authoritatively answer questions of a religious nature put to them by the laymen. This relationship between the rabbis and the laymen obviously followed the pattern set by the local communities, whose lay leaders elected their rabbis. These then functioned in the double capacity of advisers and halachic authorities. However, this conception failed in the case of the nationwide organization. The Shomrei Hadat founders submitted the constitution of their organization to the minister for approval. Having gained his sanction, they published it, appealing to the Jewish public to join the association. Knowing, however, that they lacked the necessary prestige to draw the Jewish community, they asked three well-known rabbis to recommend them and their plan to the public; R. Abraham Shmuel Benjamin Sofer from Pressburg, the Ketav Sofer, Yirmiyahu L`v from Ujhezy and Menahem Eisenstuter from Ungvar.[7] That this was necessary indicates the difference between the local communities and the planned countrywide association. The first was a defined social entity, whose functions for the benefit of its members was prescribed by halacha and at the time of the event, was also supported by the law of the state. The second had first to be created by a voluntary union of the potential members. The initiators of the Shomrei Hadat, lacking any standing in the public eye, had to secure the recommendation of the rabbis, indicating the organization's dependence for its very existence upon their support.

The date of the Congress was fixed for mid - December, 1868. The leaders of Shomrei Hadat invited the major local figures of their planned organization for a meeting two weeks in advance of the Congress' opening. On this occasion, the election of the rabbinical council of five was to have taken place. However, the unexpected happened. Some rabbinic circles seem to have resented the unauthorized activities of Shomrei Hadat, and they induced R. Abraham Schag, one of the most respected senior figures among the former students of the Hatam Sofer to forestall the meeting by inviting all the rabbis of the country for an independent consultation. To save the situation, the leaders of Shomrei Hadat themselves adopted the idea of a rabbinic conference, and so it happened that some two hundred rabbis from all over the country assembled in Buda, the old part of the capital, some three weeks before the Congress. Though organized by Shomrei Hadat, its leaders could act only behind the scenes. Overtly, the assembly operated as an autonomous rabbinical convocation.[8] In session for over two weeks, it concentrated on preparations for the forthcoming Congress. One result was a memorandum sent to Minister Eötvös, stating their conditions for accepting the Congress' decisions. Any proposal to be discussed by the Congress should be presented first to a committee of halachists, appointed by the conference. Only if this would be found to be in harmony with religious law could it be discussed by the Congress. That this stipulation contradicted the very idea of the Congress, and thus had no chance of being accepted by the minister, was probably clear to its proponents. Nonetheless, the majority, led by Mahara"m Schick, was ready to risk the clash involved, for they saw it as the only guarantee of their supremacy against the Neologs in the Congress.[9] This bold decision of the rabbis was at the same time and indication of their independence from the lay leaders. Thus the planned election of the rabbinical council of five was forestalled, the relationship between the lay leaders and the rabbis reversed.[10] Rather than being limited to sanctioning the activities of the lay body, the rabbis directed policy, the laymen assuming the role of mere assistants. The rabbis' proposal for control of the agenda of the Congress was retained and formally submitted to it.

On this demand the Congress faltered. The Neolog majority rejected it, and as a result most of the Orthodox, led by the rabbis, walked out of the Congress. The planned countrywide organization, though established, its constitution even signed by the king, in practice, could not embrace the entire Jewish community. The Parliament, following the principle of freedom of conscience, exempted the Orthodox from joining it, allowing the Orthodox communities to remain independent.[11] But Mahara"m Schick and some of his colleagues regarded this as a dangerous situation, fearing that the individual communities would in the long run not withstand the inducements offered by the Congress organization. Thus they decided to establish a parallel, Orthodox organization, and due to a stroke of luck, the sudden death of Minister Eötvös, they received the same public status for it as granted to its competitor.[12]

Still, the joining of either of the two organizations by any of the communities remained voluntary, and many observant traditional communities, though reluctant to join the Congress organization, refused also to be members of the Orthodox organization. They called themselves Status-Quoers. The Orthodox organization, led by lay officers, then conducted a relentless and virulent campaign against the Status-Quoers, dubbing them traitors to the Orthodox cause. It was the Mahara"m Shick who gave his blessing to this strong condemnation. He ruled that joining the Orthodox organization was an absolute religious duty for any observant Jew and loyal religious community.[13] The arguments assumed in support of this ruling were mostly of aggadic and emotional character, based on the general assessment that only entrenchment behind the wall of the organization would ensure the preservation of the tradition. Oblivious to his contention at the time of the Lichtenstein controversy, that any obligation imposed on the community by the rabbis must differentiate between halachic decisions and precautionary requirements, he himself blurred the borderline between the two on this occasion. This case demonstrates my contention that whenever rabbis assume a task for which they lack halachic foundation, they nolens volens rely on their unqualified prestige. I am inclined to say once again that had the term da'at torah been in use in its recent interpretation at that time, it would have been the perfect slogan for Mahara"m Schick.

Let me now turn in a more concise fashion to the second example, the history of the Rabbinical Council of Agudat Israel. The whole organization, as is well known, was the brain child of Yaakov Rosenheim in Frankfurt, a dedicated follower of Samson Raphael Hirsch's example and teachings.[14] One of the central tenets of Hirsch's teachings was that the religious life of the individual as well as of the community should be founded exclusively on halacha, and conversely, Hirsch believed that halacha is a sufficient guide for the actions of any public body. Indeed, when in 1876, half a decade after the Hungarian legislation, the Prussian parliament too permitted the secession of the Orthodox from the mother communities, Hirsch obliged every Orthodox Jew to take advantage of this opportunity.[15] But, contrary to Mahara"m Schick, Hirsch adduced halachic arguments for his demand. While these arguments rested on forced interpretations of the relevant sources, Hirsch himself was convinced that he was on firm halachic ground in his decision. At any rate, he would never have been able to base his demand on Aggadah or precautionary considerations. This would have contradicted the basic tenet of his Orthodoxy - that adherence to halacha is the only criterion of Jewish faithfulness.

It was in this spirit that Rosenheim declared the Torah to be the supreme sovereign of the planned organization in his draft of the constitution for Agudat Israel, while the human representatives of the sovereign would be the Council of the Great Torah Scholars. The verdict of these would be the yardstick for the practical work of the Agudah, and would serve as a guide for its directives.[16]

This draft of a constitution was presented to the founding session of the assembly in Katovitz in 1912. The final constitution of the Agudah was confirmed only by the first Kenessiya Gedolah in Vienna in 1923. It was formulated by Isaac Breuer, the grandson of Hirsch, who was not only his spiritual heir, but an original and sophisticated ideologue of modern Orthodoxy in his own right. Breuer went beyond Rosenheim in stressing the Torah's sovereignty. Rosenheim had left open the question of who would appoint the members of the Rabbinical Council, apparently reserving this right to the lay assembly, the Kenessiya Gedolah. Breuer empowered the rabbis of every country to elect their supreme council. In Breuer's formulation the rabbis decided at their own discretion what the domain of their own authority would encompass. But wide as was this rabbinical authority according to both men, it is clear from the wording of their suggestions that all rabbinic decisions must be based on legitimate halachic sources.[17] Here I have to reverse my statements about the possible application of the slogan of da'at torah. Had the recent metamorphosis of the term been suggested to Rosenheim or Breuer, they would have protested against it absolutely. They would have regarded it as a falsification of the very principle of halachic ruling, according to which the halachist is no more than a loyal interpreter of the law, not a substitute for it.

Now the fact is that the new understanding of the term occurred to no one at that time. Once it popped up in Israel in recent decades, becoming the slogan legitimizing the rabbinic leadership of Agudat Israel in this country, historians tried to find its origin in the struggles of the inter-war period, especially in Poland. But a closer examination reveals that these are misinterpretations. The term is used, but in more conventional meanings. At times, it is simply a colorful expression for admonitions based on traditional sources. R. Elchanan Wasserman, in a Yiddish booklet carrying the title Da'as Torah, says at its close, "do not regard me as a moralist preacher who rebukes people according to his own views. I simply teach you da'at torah following what I have learned from scholars and books".[18] The term is thus divorced from its original halachic context. R. Hayyim Ozer Grodzinski, on the other hand, refusing to answer a query from Palestine because he lacked information about the circumstances of the case, gives the following advice: Ask the great scholars residing in the country who are acquainted with the facts concerning the issue. They should convey you da'at torah, the din, that is, the prescription to be followed.[19] Here the term is used strictly according to its original meaning, and I found it applied accordingly in many other pronouncements of the rabbis of the time.[20]

Although far from advocating the unqualified authority of the halachists, the founders of Agudat Israel nonetheless granted them this in practice. Upon the conclusion of the Kenessiya Gedolah in Vienna in 1923, a manifesto was published appealing to the Jewish public all over the world to join the Agudah. This was an emotional appeal, pointing to the deterioration of the tradition in recent times and promising a remedy through the reunification of the faithful under the auspices of the Agudah. Although no doubt written by the lay leader, the manifesto was signed only by the Rabbinical Council.[21] This is an exact parallel to the case of the Shomrei Hadat in Hungary. Only the famous rabbis had a chance to be heeded by the faithful in an attempt to gain the voluntary cooperation of people. On the other hand, however, the rabbis could not act here as interpreters of the law, but had to rely on their diffuse charisma. The German ideology of Rosenheim and Breuer, which aimed at the sovereignty of the law, the halacha, turned into a fiction, proving inappropriate for the situation.

The discrepancy between this ideology and the facts of life became most obvious during the Agudah activities in inter-war Poland, where it succeeded in playing an important part in the political life of the community. Jews having been formally acknowledged as citizens of the newly established state, with the rights of an ethnic religious minority, they formed political parties which reflected the various sectors of the community. Agudat Israel was one of these parties, claiming the loyalty of the traditional section of Jewry. It played a certain role in the conduct of the communities, as well as representing them in the Sejm. The Agudah's appeal to the traditional elements in the community rested on the claim that its affairs would be under the auspices of the Rabbinical Council, guaranteeing their impeccable adherence to religion. But as Gershon Bacon has shown in his doctoral dissertation, the practical management of the Agudah lay in the hands of lay persons, the supervision of the Rabbinical Council being at times a mere formality.[22] Moreover, the composition of the council deviated from the original conception as presented by Rosenheim and Breuer. These two German personages were fascinated by the great Talmudists of the Lithuanian schools. The idea of halachic sovereignty made sense with their cooperation. But in inter-war Poland, although it embraced some part of Lithuania as well, the bulk of the Jewish population was of Hassidic background, and the Orthodox among them were guided by the Hassidic rabbis. These, even if known as outstanding halachists, derived their prestige from other qualities, such as their personal or inherited dynastic religious charisma. Indeed, the Agudah achieved its prominence in inter-war Poland due to the support of the head of the Ger Hassidim, Abraham Mordechai Alter.[23] True, Rabbi Haim Ozer Grodzinski from Vilna also took a part in supporting the organization, but the bulk of the community was of Hassidic background. Thus the whole idea of rabbinic halachic sovereignty was obviously only a sham.

The glaring discrepancy between ideology and reality was continued under the rather different conditions obtaining in the State of Israel. Founded and established by secular or religious Zionists against the protests of most Orthodox leaders, it is here where, after the destruction of European Jewry, Orthodoxy in all its shapes was granted a revival. From a negligible small group at the time of the founding of the state, it grew into a conspicuous minority, commanding the allegiance of some ten percent of the population. Due to the deep division between the political parties of right and left, the Orthodox minority gained a bargaining power beyond its numerical strength. Most of the time is was Agudat Israel that benefited from the situation. It retained its organizational structure, and its activities were backed by spiritual guidance of the Council of Rabbis. There was a shift in favor of the rabbis in the relations between the lay body and the Rabbinical Council. The members of the council were not elected; once instated, it became the custom that they would themselves elect a new member in case of need. In fact, the council represented the different sections of the Orthodox community consisting of the various Hassidic groups and the non-Hassidic Lithuanian Orthodox. Despite the tensions arising from old disputes as well as from contemporary differences, the need for a common front against the community at large was strong enough to secure their cooperation. Here the supremacy of the Rabbinical Council over the lay people in conducting the political activities of the Agudah became a reality. In Poland, the mere physical dispersion of the members of the council militated against a running involvement in the lay leaders' activity. Lacking this impediment in Israel, the Rabbinical Council was able to decide, not only who of the lay leaders would be a candidate for the Knesset, but even how the Knesset members would vote on this or that issue. In practice, the lay leaders could of course influence the rabbis in their decisions, but this could only be done behind the scenes. Officially and overtly, the Knesset members obeyed the rabbinic suggestions in all decisions.

This relationship lacked precedent in Jewish history and called for some ideological justification. Attributing the rabbis' unqualified wisdom to their being immersed in Torah study did the trick. This line of reasoning found its concise expression in the use, or rather, misuse, of the term da'at torah. Its invocation became a dogma, and as such, capable of withstanding rational arguments or practical experience. Thus, when in more recent years, the political body of the Agudah, together with its Rabbinical Council, split into at least three factions, this alleged Torah wisdom now suggested conflicting decisions on the same issues. This absurdity nonetheless did not prevent members of each community from following their spiritual leaders. They obviously were reluctant to carry the burden of personal responsibility, laying it rather on the shoulders of their spiritual guides.

I may at the close of my deliberations be asked my assessment of this state of affairs. In doing so, I must step down as historian, and speak in the humble capacity of a citizen of the State of Israel alone. Nonetheless, I wish to refer to a bit of history, connected with the subject of my lecture. When the Hungarian rabbis demanded the right to judge the admissibility of any proposition to be discussed in the Congress, their opponents argued that this would be tantamount to ultramontanism. As you may know, the word means `beyond the mountains' and had been used to characterize the Catholic parties who looked for guidance to the Papacy in Rome. The Orthodox laughed off this comparison, saying: we have no one beyond our country to turn to. But their opponents were not misguided in using the term to express their objections. For the critics of the Catholic parties did not resent the intervention of the Papacy in their internal affairs because of its geographic remoteness but because of the apprehension that it would rule according to principles and considerations foreign and external to the issue on the agenda. And that is exactly the objection to be voiced against citizens of Israel who empower their rabbis to rule in their name on political issues. Rabbis by the very nature of their position, are obliged to care for the interests of religion. Whenever religious issues are on the agenda, their voice of course carries its special weight, but when political power is given into their hands, they are led to use this in securing religious interests, thus leading to a double calamity. The process of political decision making is be perverted by allowing religious considerations to influence it. At the same time, religion is discredited by its resorting to means of a secular nature, lending weight to the objection that it cannot stand on the appeal of its inherent values alone. I am afraid that this is at present the situation in my country. It is a result of special historical circumstances, and though a historian should never try to prophesy, he is not prevented from hoping that what emerged in the course of history may also disappear in the course of time.

FOOTNOTES

1 Lawrence Kaplan, "Daas Torah: A Modern Conception of Rabbinic Authority", in: Moshe Sokol (ed.), Rabbinic Authority and Personal Autonomy, Northvale, New Jersey - London, 1992, pp. 1-60.

2 Jacob Katz, The Unhealed Breach, The Secession of Orthodox Jews from the General Community in Hungary and Germany (Hebrew), Jerusalem, 1994.

3 This is a summary of chapters 3-4 of my book.

4 Ibid., chapter 8.

5 Ibid., pp. 92-95.

6 Ibid., chapter 9.

7 Ibid., pp. 110-111.

8 Ibid., pp. 136-139.

9 Ibid., pp. 144-146.

10 Ibid., pp. 146-147.

11 Ibid., chapter 13-14.

12 Ibid., chapter 18.

13 Ibid., chapter 19.

14 Jacob Rosenheim, Sichronot, Bne Brak, 1979, pp. 107-170.

15 Note 2, chapter 22-23.

16 Jacob Rosenheim, Der Zusammenschlu8 der Thoratreuen, 2 Referate, Zhrich, 1919, pp. 3-11.

17 The Constitution of Agudat Israel was printed in Israelit, 9 August, 1923, as a special edition. Breuer's presentation of its principles in his report before the Kenessiya Gedolah in Vienna was printed, ibid., 2 September, 1923, pp. 6-7.

18 Elchanan Wassermann, Daas Torah, Yiddish, n.d. or p.

19 Hayyim Ozer Grodzinski, Achiezer, Kovez Igrot, I, Bne Brak, 1970, p. 299.

20 M. Sch`nfeld (ed.), Mi-katovitz ad Yerushalayim, Bne Brak, 1954, pp. 83, 86. In the first instance, Rabbi Eliezer Silver applies the term in its first sense, in the second reference, Rabbi Yehezkel Abramsky does so in the latter meaning. Two attempts have been made to document uses of da'at torah in its novel sense in the early inter-war period in Poland. G. Bacon, "Daat Torah and Birthpangs of the Messiah" (Hebrew), Tarbiz 52 (1983), p. 500; M. Piekarz, Trends of Hasidim in Poland During the Interval Period and the Holocaust (Hebrew), Jerusalem, 1990, pp. 81-96. Bacon bases himself on a single quotation of an oral statement by the Hafez Hayyim, as recorded by the editor. The context is a homiletical one, and its meaning is unclear. Piekarz's references are general admonitions to trust the words of the Sages in general and Hassidic Rabbis in particular.

21 Israelit, 7 September, 1923, part 2.

22 Gershon Bacon, Agudat Israel in Poland 1916-1939, Columbia Dissertation, 1979, chapter 7-8.

23 Ibid., pp. 44-47, 65-67.