In 1999, nineteen-year-old computer programmer Shawn Fanning and twenty-year-old Shawn Parker created Napster, a peer-to-peer file sharing internet platform. Although the company was not the first to create such a program, it was by far the most well-known and successful. For a short period of time, Napster made music in digital format a public good, free to anyone with a personal computer and an internet connection. Napster was quickly hit with a wave of lawsuits from recording artists like Madonna and Metallica. A court order ultimately forced Napster to shut down on grounds of copyright infringement under the Digital Millennium Copyright Act.[1]
Pirating copyrighted work was not a new phenomenon in 1999. Legal copyright protections have been in place in the United States since 1790. However, Napster and other services like it fundamentally changed not only copyright law, but also the way consumers experience, and access music. The Digital Millennium Copyright Act, which went into effect October 2000 still punished copyright infringers, but added new categories of protection for third parties called “safe harbors”.[2] These safe harbors included limited protections for internet service providers and third-party websites, something the original drafters of copyright law in 1790 could never have imagined. Legislation of this nature that preserved the essence of copyright law, while addressing 21st century technology, requires lawyers with creativity, flexibility, imagination, and a firm grasp of the existing structure of copyright law. The academic model of legal education, with its emphasis on dialectics, discussion, debate, and dissent trains divergent thinkers who don’t merely memorize the law as it is. Rather, they can imagine the law “as it should be” in the face of an ever-changing world.
In late 2019, the first outbreak of the novel corona virus appeared in Wuhan, China. The virus rapidly spread around the globe. By March 2020, movie theatres, synagogues, churches, concert venues, colleges, schools, and other public gathering spaces around the world had closed their doors to the public. In many states public gathering was outright prohibited, and in others it was drastically curtailed. Schools and churches began flocking to online platforms like zoom to facilitate communal gathering, but synagogues faced a unique predicament because of the constraints of Jewish law.
Over a thousand years ago, the rabbis fixed the requirement for a minyan into law. A minyan is the gathering of ten Jewish adults in the same physical location. According to rabbinic law, a minyan is required for almost all aspects of Jewish prayer. The kaddish yatom (mourner’s kaddish) one of the most important Jewish prayers recited upon recalling the death of a love one, is just one example of the many prayers that can only be said in the company of a minyan. The rabbis never could have imagined the possibility of gathering virtually through an online platform like zoom. Jewish law did not address if, how and when Jewish prayer could be conducted in a virtual space.[3]
As the pandemic evolved and synagogues continued to close their doors, Jewish leaders began searching for answers. How can one live and pray as a Jew when physical gathering is both a personal health concern and a public safety risk? How can we reconcile the framework of Jewish law in a pandemic world, and more importantly, what happens when the pandemic ends?[4] Although the questions are new, the thought process is not. The modern style of rabbinic education, based on the Babylonian academy model has prepared Jewish leadership for this moment. The emphasis on dialectics, debate, discussion, and dissent has trained a generation of thinkers who can imagine Jewish law beyond what it is to what it should be in this unique moment in time. This paper will explore the evolution of rabbinic education and law school education from an apprenticeship model to a formal, academic model. It will also examine the similarities in pedagogy, including partner learning and dialectics used to train both lawyers and rabbis to be flexible, creative, forward thinking leaders of the future.
I. The Rise of the Rabbis
The period after the fall of the second temple in 70 CE was one of great transition. Many sectarian groups had formed during the second temple period, including the Pharisees, the Sadducees and the followers of Jesus.[5] Each had their own unique practice and ideology. The destruction of the second temple created a void that rabbinic Judaism would later fill. During temple times, the sects primarily disagreed over how to properly worship in the temple. Once the temple was destroyed, Jewish practice came to center around learning rather than temple sacrifice, and rabbis became the leaders and teachers of the Jewish community.[6] Some sources believe the rabbis came primarily from the Pharisaic sect, but they probably came from many sects, not just the Pharisees.[7] Although they lived during a fractious time, the rabbis encouraged inclusion and a plurality of ideas.[8] For the rabbis, “truth is many, not one.”[9]
II. Early Rabbinic Education: Small Study Circles and the Babylonian Academy
The early path to the rabbinate was primarily through apprenticeship and study circles.[10] Early rabbinic education was somewhat haphazard and informal. Students sought out a teacher and studied until that teacher and his colleagues deemed the student ready to become a rabbi.[11] The teacher was not only an academic instructor, but also an exemplar to his students of how to live a life imbued with the values of the Torah.[12] Rabbinic succession was ensured through this apprenticeship model, as the best students eventually became highly sought-after teachers.[13] Initially, students were primarily from rabbinic families, but later more diverse students joined the system as a means of social and economic mobility.[14]
This type of learning was a very personal experience where the teacher was viewed as a role model for how to live a life guided by Torah and there are accounts in the Talmud of the close relationship between teachers and students.[15] In his fictional novel, As a Driven Leaf, Dr. Rabbi Milton Steinberg imagined the student-teacher relationship of Elisha ben Abuye and Rabbi Joshua, son of Hananiah, two famous sages who lived during the 1st century CE and participated in the assembly at Yavneh. In the novel, Elisha’s uncle, Amram arranges for Rabbi Joshua to be Elisha’s private tutor. Elisha goes to live with Rabbi Joshua so he can learn Torah from him without interruption. The two study Torah not only in the classroom, but as a lived, daily practice.[16]
“On the very next day, Joshua introduced his disciple to the routines of his new life – to periods of prayer, meditation, and observance… to careful instruction in Scripture and the Tradition, that vast body of lore, religious, scientific and historical…to excursions into the hills where they observed the wonders of earth and sky.”[17]
After years of study together, Joshua becomes a father figure as well as a teacher for Elisha. When Joshua feels his student is ready, the two travel to Yavneh where Elisha sees the Sanhedrin court in action and meets other students of Torah. Eventually, Elisha leaves Rabbi Joshua’s home to become a student of Torah at Yavneh, in a setting like the model of the Babylonian academy.[18]
The Mishna, the first rabbinic book, was a legal digest derived from Oral Torah and compiled by Judah the Patriarch in 200 CE.[19] The Babylonian Talmud, redacted around the 6th century CE contains stories of the sages that lived around the time of the Mishna, as told by those living in 6th century Babylon.[20] Rabbinic education at that time had evolved substantially from the apprenticeship model of Elisha and Rabbi Joshua, to a large academy model with a structured curriculum.[21] The sages of the 6th century, known as the stammaim (the anonymous ones), valued debating and imagining the work of previous generations through modern eyes, rather than creating their own new legal code. The Babylonian Talmud is a compilation of their work; the laws and stories of the Mishna told through the perspective of those living in 6th century Babylon.[22]
The path to the rabbinate in Babylon was primarily through training in large academies.[23] In his book, Culture of the Babylonian Talmud, Jeffrey Rubenstein explains that the academy method is better suited to discussion and debate, the values prized by the stammaim.[24] The academy was a “hierarchically structured institution”, with a “head of the academy” rather than small groups studying with individual rabbis.[25] Sages would “leave their wives and homes…” in order to spend all of their time in, “ passionate study of the beloved Torah.”[26] In the academy, students trained, studied and competed together, leading to more possible interpretations and solutions.[27] The preference for the academy can be seen in selections from the Babylonian Talmud where an earlier story has been retold in an academic setting, as shown below:
Jerusalem Talmud
Rabbi Eleazar said to him: “You ask about a matter which the sages of the assembly-house still (need to explain).
Babylonian Talmud
He (Rabbi Eleazar) said to him, “Do you ask me in the study-house about a matter which former scholars did not explain in order to shame me?”[28]
In the Babylonian Talmud, the setting is the study-house, rather than the assembly-house and the character of the interaction is different. The setting in the Jerusalem Talmud is neutral with the student asking about a question that has yet to be resolved. The setting in the Babylonian Talmud is the competitive setting of the academy where the student’s question is intended to show how much he knows, and by comparison, how little the professor knows.[29]
Debate was a path to “greater status and even rank” in the academy and seating in lectures was directly correlated with status.[30] The best students sat in the front, while the inferior students sat in the back. A famous Talmudic story recalls that the competition was so fierce in the academy, that when God placed Moses, the source of Torah, in the academy, he sat “at the back of eighteen rows” with the inferior students and still did not understand the conversation.[31]
In the fictional novel, As a Driven Leaf, Dr. Rabbi Steinberg also paints a vivid picture of what life might have been like in the academy. After years of study with Rabbi Joshua, Elisha ben Abuye is permitted to continue his studies at the academy. Here, he meets other students of Torah, as well as the great sages of Torah who will be his professors. Elisha draws wisdom from his classroom interactions as well as his discussions with his study partners, Akiva, Shimon ben Azzai and Shimon ben Zoma. Elisha and his study partners were so inseparable, that they came to be known as “The Four.”[32] The study partners became so accustomed to debating points of Torah together, that even while away from the academy for the holidays, sharing a family meal at the Passover table, “their conversation drifted into a discussion of a subtle point of theology, absorbing the men, but too technical for their wives.”[33] Later in the book, Elisha and his classmates set out to prove the Torah’s merits by comparing it to Greek philosophy and mathematics. Elisha and each of his four study partners, Akiva, Shimon ben Azzai and Shimon ben Zoma study a different area of Greek wisdom and then compare it to the teachings of the Torah. They studied independently searching for “an interesting theme of discussion with the other three at their next conference.”[34] The immersive environment of the academy allowed them to engage with both Greek wisdom and the wisdom of the Torah in a collaborative way, honing their skills for debate, discussion, and critical thinking.
In another section of the book, As a Driven Leaf, Elisha learns not only the importance of knowing the law, but also understanding its practical application outside the classroom. In chapter twelve, both Elisha and Shraga the Levite are called upon with other judges to decide a labor dispute. In this case, Benjamin, an employer, comes before the court. His workers have been on strike to receive a higher wage and he wants the court to order them back to work. Ironically, it is Shraga, the “penniless plebian”, rather than Elisha, the son of a wealthy landowner, who sides with the employer, Benjamin.[35] When asked to explain his decision, Shraga explains that he is concerned not only with the merits of this individual case, but of the precedent it will set regarding the power of the Sanhedrin court to decide disputes. Benjamin has threatened that if he loses before the Sanhedrin, he will appeal to the Roman court to overturn their decision. The Sanhedrin court would completely lose its autonomous power if Benjamin were to take this course and succeed before the Roman court. This would set a precedent for the future that any unfavorable decision by the Sanhedrin can be appealed to the Roman court, the only truly binding authority. Shraga bases his decision not on the harm that may befall the workers in this specific case, but rather on the grave danger that a decision for Benjamin will destroy the Sanhedrin court system altogether.[36] Many of these themes, such as the transition from mentorship to academy, and the importance of cases in establishing precedent can also be seen in the evolution of American legal education.
III. American Legal Education: Apprenticeship to The Modern Law School Curriculum
In her article, Marking 200 Years of Legal Education: Traditions of Change,
Reasoned Debate and Finding Differences and Commonalities, Martha Minnow chronicles the evolution of legal training in the United States from a system of apprenticeship, like that of the early rabbis, to a three-year, academic program, like the Babylonian academy.[37]
Specialized legal training in the United States has its roots in late thirteenth century
England.[38] In colonial America and the early republic, legal training took place through clerking and apprenticeship.[39] Both Chief Justice John Jay and President John Adams “clerked with mentors” to learn the law before taking on larger civic roles in America’s emerging democracy. The first successful law schools did not emerge in the United States until the mid-nineteenth century. One of the first deans of Harvard, Christopher Columbus Langdell, “initiated a revolution in law school pedagogy between 1870 and 1895” which revitalized “what was otherwise an apparently failing institution”.[40] Langdell raised the tuition and the academic merit of Harvard and law schools in general.[41]
This new program was a three-year curriculum with prescribed courses taught by full
time teachers. However, “the most significant change associated with Langdell’s name” was the implementation of “case method pedagogy.”[42] The focus of Langdell’s teaching method was questioning students on the arguments of written judicial opinions, rather than “demanding students memorize rules divorced from the context of their evolution.”[43] Students would operate as “empirical investigators” to identify the principles at work in each case.[44] Exams required application of these principles to new, hypothetical situations, rather than a mere statement of the law.[45] This method was initially unpopular with students. A distinguished lawyer at the time, Oliver Wendell Homes, Jr., compared this approach to “a biology teacher who would give one of his pupils a sea urchin and tell him to find all about it he could.”[46]
Although initially unpopular, this method was ultimately accepted because it “stimulated
discussion and debate…”, “attracted more talented students…”and “secured good jobs for graduates….”[47] By 1915, sixty-four percent of schools adopted some form of this method, and this was the primary method used when I attended law school from 2005-2008.[48] One of my most vivid memories was the first day when the dean warned us of the academic rigor of law school. The demands would be high and some of us would not succeed.
Two things happened after this introduction. First, a heavy dose of fear spread throughout the first-year class. Then I, along with most of my colleagues, set out to find study groups and partners. I spent countless hours in the library with my study partner, Joanne and I am certain my success in law school was due in large part to the dialectical skill I developed through our discussion and debate of specific cases and their broader applications.
IV. Dialectics
While both the academic and the apprenticeship models have their strengths, the key
difference between the two is the focus on dialectics. Dialectics is the art of investigating or discussing the truth of opinions.[49] The Ancient Greeks used the term dialectic to refer to methods of reasoning and discussion to discover truth.[50] Dialectical skill in the academic setting was measured by the number of objections and solutions one was able to give to a particular question. One famous account in the Talmud tells the story of Rabbi Shimon bar Yohai.[51] In this account, the Romans sentenced Rabbi Shimon bar Yohai to death for his criticism of their culture. He hid in a cave for thirteen years to avoid execution and during that time he also exclusively studied Torah with his son, Rabbi Eleazar. When he emerged from the cave, his father-in-law Rabbi Pinchas lamented, “alas that I see you so”, commenting on Rabbi Shimon’s beleaguered physical appearance after surviving thirteen years hiding in a cave.[52] Rabbi Shimon bar Yohai, who had spent all those years studying Torah responded, “happy (I am) that you see me so. For if you did not see me so, you would not find me so (learned).”[53] The text continues, “originally when Rabbi Shimon bar Yohai raised an objection, Rabbi Pinchas ben Yair solved it with twelve solutions. Subsequently, when Rabbi Pinchas ben Yair objected, Rabbi Shimon bar Yohai solved it with twenty-four solutions.”[54]
The skill of a rabbi, according to the authors of this passage, is his dialectical abilities, specifically his ability to proliferate numerous solutions to a problem. The knowledge of Torah alone is not valuable unless one can use that knowledge to argue effectively in debate.
There are many examples of the link between academic rank and dialectical skill found throughout the Talmud, including the story of Rabban Shimon ben Gamaliel, Rabbi Natan and Rabbi Meir. Rabbi Natan and Rabbi Meir were both ejected from the study hall for their plot to depose Rabban Gamaliel from his position of Nasi. The two continued to propose solutions and objections to issues of Torah, even from their location outside the academy. They would write their solutions on slips of paper and throw them into the academy from outside. Rabban Gamaliel was forced to readmit them because of their ability to contribute to the scholarly discussion of Torah in the academy.
Another example in the Talmud of the importance of dialectics can be found in the story of Rabbi Yohanan. Rabbi Yohanan enjoyed years of vigorous debate with his study-partner, Reish Lakish. Rabbi Yohanan expanded his knowledge of halacha, Jewish law, through debate and discussion with Reish Lakish, a man with dialectical skill equal to that of Rabbi Yohanan. When Reish Lakish died, Rabbi Yohanan tried unsuccessfully to continue his study with Rabbi Eleazar. Although Rabbi Eleazar was knowledgeable, he was not skilled in the art of “vigorous argumentation”.[55] This type of debate created “an expansion, not limitation of Torah.”[56] Each of these stories illustrates that to the authors of the Talmud, “the capacity to propound objections and responses signals the brilliance of the sage.[57]
V. Chevruta Study-Partners
The Babylonian Talmud also places great emphasis on the importance of study partners. This
may be “related to its high regard for dialectics.”[58] In the Talmud, Rav Tanhum ben Rav Hiyya advises, “form yourselves into groups when you study Torah, since Torah can only be acquired in fellowship.”[59] Great reward is promised for those “who love to study among a multitude.”[60]
One of the most famous examples of a study partnership was that of Rabbi Yohanan and Resh Lakish.[61] One day, Rabbi Yohanan was bathing in the Jordan river, when Reish Lakish, the leader of a band of marauders, saw him from afar. Reish Lakish mistook Rabbi Yohanan for a beautiful woman, and he jumped into the river to pursue him. Rabbi Yohanan, impressed by his physical strength, persuaded Reish Lakish to become his study partner. The two debated Torah vigorously and through their partnership, Reish Lakish became a great Torah scholar. One day, in the study hall, there was a debate over when a weapon becomes ritually impure. Rabbi Yohanan said, “it is when one fires these items in the furnace.” Reish Lakish said, “it is from when one scours them in water, after they have been fired in the furnace.” Rabbi Yohanan was offended by their quarrel, which physically affected Reish Lakish, who later became very ill and died. Rabbi Yohanan was very distraught over losing his partner, so the other rabbis sent the clever Rabbi Eleazar ben Pedat to be his new partner.
Despite his sharp intellect, Rabbi Eleazar ben Pedat was no substitute for Reish Lakish. “With regard to every matter that Rabbi Yohanan would say, Rabbi Eleazar ben Pedat would say to him: There is a ruling which is taught in a baraita that supports your opinion.” Rabbi Yohanan replied, “in my discussions with the son of Lakish, when I would state a matter, he would raise twenty-four difficulties against me in an attempt to disprove my claim, and I would answer him with twenty-four answers, and the halacha by itself would become broadened and clarified. And yet, you say to me: There is a ruling which is taught in a Baraita that supports your opinion. Do I not (already) know that what I say is good? Being rebutted by Reish Lakish served a purpose; your bringing proof to my statements does not.”[62]
My study partner and I had debates like those of Rabbi Yohanan and Reish Lakish
during our studies of criminal law in our first semester of law school. This course was an overview of the basics of criminal law in the American legal system. In class, we learned that in general, a crime is made up of three elements. The first element is the actor’s mental state, known as mens rea, translated as a guilty mind. Criminal laws usually indicate that a person must have a specific intention or mental state while committing an act for it to be punished as a crime. For example, the crime of possessing a controlled substance requires not only that one possess the substance, but also that he knows of its presence and its designation as a controlled substance. Mere possession is not enough to be guilty of the crime.
The second element is a criminal act, known as actus rea, translated as a guilty act. In general, our society is not willing to punish those who think of committing a crime, but do not ultimately commit one. The third element is the specific result proscribed by the law. For example, one can intend to possess cocaine and can even purchase white powder from a drug dealer hoping that it is cocaine, but if the substance is in fact powdered sugar, the crime of possessing a controlled substance has not been committed. Similarly, if one intends to commit murder and lunges at his target with a knife, but mistakenly stabs a pillow, he is not guilty of murder.
One day, my study partner, Joanne and I were discussing a case involving possession of drugs. In this case, the police made a routine traffic stop. During that stop, they found illegal drugs in the glove box of the driver’s car. The driver told the police he borrowed the car from a friend. He had not opened the glovebox since borrowing the car, so he did not know it contained illegal drugs. Joanne said, “That seems reasonable, I believe him. Just last week I got a flat tire and borrowed my mom’s car. I didn’t check the glovebox because there’s usually just a car owner’s manual in there.” I replied, “that’s because it’s your mom’s car and you trust your mom. What if his friend seemed suspicious and asked him to drive the car? What if a reasonable person would have checked, but he didn’t?” She replied, “I didn’t think about that. What if it’s a glovebox that can be locked with a key?” We went back and forth debating the application of law in that case and how the law might apply under a different set of facts. Like the rabbis of the academy, we were learning not only the existing framework of the law, but how to think critically about adapting the law to new circumstances.[63]
VI. Halacha and the Model Penal Code
The material the rabbis primarily debated in the Talmud involve matters of halacha, or Jewish law. For the rabbis, halacha was “the framework through which reality can be interpreted, no detail is too small, no distinction too fine, and no case to remote to escape analysis and regulation.”[64] Jesus, one of the earliest critics of the rabbis, claimed that, “exclusive focus on the precise details of religious practice led them to mistake the legal trees for the spiritual forest”. He accused them of “worrying about legal trifles, while neglecting the weightier matters of the law- justice, mercy and faith.”[65] Even today, contemporary Christians act based on “moral theology” whereas halachic Jews visit the sick and give to charity, not solely based on moral conviction, but also because these are halachic-legal obligations. This tension between moral conviction and halachic obligation can be resolved by exploring the function of halacha and of law in general.[66]
In general, laws encapsulate the values of the society that created them. Halacha, specifically attempts to translate the God-given ideals of the Torah into objective action in the real world of the rabbis. However, “since at least as far back as the Mishna, halakhah has never been the law of a state….”[67] The details of the Talmud communicate more about what was important to the rabbis, than about the lived practice of Judaism at that time. The example below involves the laws regarding tithing found in the Mishna and discussed in the Talmud.
Savory, hyssop and thyme:
When they grow in the courtyard and watched over,
they are deemed food and are obligated in the tithe.
Matthew, one of the disciples of Jesus, criticized this practice of tithing in the following passage:
Woe to you teachers of the law and Pharisees, you hypocrites!
You give a tenth of your spices-mint, dill and cumin.
But you have neglected the more important matters of the law:
justice, mercy, and faithfulness.
You should have practiced the latter without neglecting the former.[68]
In my opinion, Matthew’s critique misses the point of halacha. The law regarding tithing is specific not because it was regularly enforced in this level of detail or because it was deemed more important than justice, mercy, or faithfulness. Instead, this attention to detail shows that the rabbis found tithing to be a very important part of fulfilling the ideals of the Torah. There are many possible reasons why the rabbis found tithing to be so important. Tithing was one way to acknowledge God’s role in yielding a good harvest. It could have also been the mechanism for providing tzedakah to those without food. It may have also been a way to fund the temple so that it would be available to the people through good times and bad. The ideals of justice, mercy and faithfulness can be encapsulated within the laws of tithing if one understands the thought process of the rabbis. Similarly, the ideals of justice can be found in the details of criminal law if one understands the thought process of the people who wrote those laws.
One way to understand that thought process is to study the Model Penal Code, a model of the criminal justice system that states can use in shaping their own individual laws. Like halacha, the Model Penal Code has not been adopted as the law by any state. It was a project of the American Law Institute, drafted by lawyers, judges and professors, with the goal of being an ideal model of how the criminal justice system in America should work. Many states have adopted part of the code and others have used it as a basis for their state specific criminal law codes.
In my course on the Model Penal Code, we spent several weeks discussing the goals of criminal law before reading any specific cases. The professor felt it important for us to think about why we as society prohibit certain acts before focusing on the letter of the law itself. Depending on the circumstances, a law can have a restorative, retributive, rehabilitative, punitive, or deterrent effect. The laws should be written in a way that fulfills society’s goals in any given case.
For example, society has decided that drunk driving is a criminal act that should have legal consequences. Most would agree that we punish the act of drunk driving because it endangers the lives of those in the driver’s car as well as other vehicles on the road. The consequence for drunk driving should have a deterrent effect to prevent it from happening again.
Another example is the criminalization of certain drugs. Society has decided that the use of these drugs is particularly dangerous and should be a crime. However, one could argue that drug users, particularly non-violent ones, are primarily in need of rehabilitation from an addiction rather than punishment through incarceration. In this case, the law should have a rehabilitative effect rather than a punitive one. A person who is caught driving drunk may have his driver’s license suspended to deter him from driving while intoxicated in the future. A person who uses illegal drugs may be sent to a rehabilitative facility rather than to jail, in hopes that he will be able to find other coping strategies in the future that do not involve the use of drugs.
The Model Penal Code strives to take these principles and translate them into concrete laws that can be objectively and uniformly applied in real situations. One who focuses just on the minutiae of the law, the way Matthew did when criticizing halacha, may only see a bunch of technical rules. However, one who understands the goals of the system, sees societal values and principles that have merely been preserved and codified in writing. The best lawyers are those that not only understand the goals of the system but are able to apply the existing legal framework to the unique facts of the case before them.[69]
VII. Conclusion
On Tuesday, March 17, 2020, the Committee for Jewish Law and Standards, a group of
rabbinic leaders and thinkers from around the world came together to discuss spiritual questions
surrounding the COVID-19 pandemic. How can one live and pray as a Jew when physical gathering is both a personal health concern and a public safety risk? How can we reconcile the framework of Jewish law in a pandemic world, and more importantly, what happens when the pandemic ends?[70]
Although this specific circumstance is novel, there were many other moments in Jewish history when physical gathering was risky or impossible. The Spanish inquisition is just one of the many moments and places in Jewish history where any practice of Judaism discovered by the authorities was punishable by death.[71] Jews could not safely gather in a minyan but were still obligated to mourn their loved ones by reciting the kaddish in the presence of a minyan. The classic sources of rabbinic authority require all ten participants to be physically present in the same place. However, when that is not possible, other sources deem participants as present if each individual person’s face can be seen.
“One who is standing behind the synagogue, with a window between that person and the congregation, even if it is several stories up and less than four cubits wide, and who shows his face to them, may combine with them to form a minyan of ten.”[72]
The way the rabbis reached this conclusion was not preserved, but one can speculate that they engaged in a lengthy discussion of what is needed to identify a person such that he can be legitimately counted as present at a particular event. There could be several different answers to this question of proper identification like a person’s signature, his fingerprints or even his voice. These unique identifiers are frequently used today to determine whether the correct person is present on the phone or signing a check at the bank. However, I think the rabbis recognized that reciting kaddish in memory of a loved one is not the same as completing a banking transaction. The ten participants in the minyan are not only there to witness an event. They are also there to provide comfort to the mourner in his time of need. A signature, while good at identifying a person, cannot laugh, smile, or cry. Our facial expressions, unlike our signatures, can display the depth and breadth of human emotions. Perhaps this is why the rabbis concluded that seeing one’s face is required for him to be considered present in a minyan.
The Committee for Jewish Law and Standards used these sources for the basis of its decision to permit minyanim in some cases on zoom until it is once again safe to gather in the synagogue. Although the question is new, the process of arriving at a solution is centuries old. It is clear from the published guidance, that the committee vigorously discussed and debated the question, because there was no unanimous decision. Instead, the guidance said that “some of us hold that in an emergency situation… people participating in a minyan that is only online may recite devarim shebikdushah, prayers that require a minyan, with their community.” Others hold that only kaddish may be recited in an online minyan, but none of the other prayers for which a minyan is required. Some felt it necessary not only to see the faces of participants but also to hear their voices. Ultimately, each community and each circumstance will be unique. The emphasis is not necessarily on one decision over another, but on the dialectical process itself. This process with its emphasis on partner learning, vigorous debate and the application of precedent to future cases is still used today because it trains leaders to think flexibly to reach the best solutions for each new situation and generation.
Bibliography and Footnotes
1. Cohen, Shaye J.D. From the Maccabees to the Mishnah. Louisville, KY: Westminster John Knox Press, 2014.
2. Cohen, Shaye J.D. “The Significance of Yavneh and Other Essays in Jewish Hellenism.” Texts and Studies in Ancient Judaism 136 (2010).
3. “DIALECTIC: Definition of DIALECTIC by Oxford Dictionary on Lexico.com Also Meaning of DIALECTIC.” Lexico Dictionaries | English. Lexico Dictionaries. Accessed May 7, 2021. https://www.lexico.com/en/definition/dialectic.
4. Dorff, Rabbi Elliot, and Rabbi Pamela Barmash. “CJLS Guidance for Remote Minyanim in a Time of COVID-19.” CJLS Guidance for Remote Minyanim in a time of COVID-19 | The Rabbinical Assembly, March 17, 2020. https://www.rabbinicalassembly.org/story/cjls-guidance-remote-minyanim-time-covid-19.
5. Hezser, Catherine. The Social Structure of the Rabbinic Movement in Roman Palestine. Tübingen: Mohr Siebeck, 1997.
6. Minow, Martha. “Marking 200 Years of Legal Education: Traditions of Change, Reasoned Debate, and Finding Differences and Commonalities.” Harvard Law Review 130, no. 5 (2017): 2279–97.
7. Ryan, E. A. "Spanish Inquisition." Encyclopedia Britannica, July 2, 2020. https://www.britannica.com/topic/Spanish-Inquisition.
8. Rubenstein, Jeffrey L. The Culture of the Babylonian Talmud. Baltimore, MD: Johns Hopkins University Press, 2006.
9. Saiman, Chaim N. Halakhah: The Rabbinic Idea of Law. Princeton, NJ: Princeton University Press, 2018.
10. Steinberg, Milton. As a Driven Leaf. Springfield, NJ: Behrman House, Inc., 2015.
11. Hezser, Catherine. “Rabbis as Intellectuals in the Context of Graeco-Roman and Byzantine Christian Scholasticism.” Transmissions: Scholastic Culture in the Hellenistic and Roman Eras 2 (2019).
12. Hezser, Catherine. “Guidelines for the Ideal Way of Life:” Strength to Strength, 2018, 389-404.
13. Lamont, Tom. “Napster: The Day the Music Was Set Free.” The Guardian. February 23, 2013. https://www.theguardian.com/music/2013/feb/24/napster-music-free-file-sharing.
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