Rav Yehuda Herzl Henkin
is an important modern poseq who has
been issuing rulings and responsa for over twenty years. American-born and residing in Israel, R.
Henkin writes almost exclusively in Hebrew.
He has collected his responsa in Sh.u-t.
Benei Banim (hereafter, SBB), currently in three volumes, published,
respectively, in 1981, 1992, and 1998.
R. Henkin’s bona fides as a significant poseq cannot be questioned,
as he utilizes a mastery of talmudic
and rabbinic sources, powerful analytic reasoning and creative thought to
address a wide range of halakhic questions covering all four sections of Shulhan
Arukh. Combining his intellectual
prowess with a practical sensibility and a respect for societal differences, he
assesses the sources honestly, ruling leniently when the sources and
circumstances warrant and stringently when they do not. He rules on issues of contemporary
significance, including women’s issues, with an openness and sensitivity that
are rare in many halakhic works.
Unfortunately, R. Henkin
and his responsa have been largely unknown outside of Israel. His English book, Equality Lost
(Jerusalem: Urim, 1999) will, it may be hoped, serve as a remedy to this
situation. R. Henkin’s writings in
English are more terse than his lucid Hebrew writings, and at times are
polemical rather than expository. As a
result, readers may find this book somewhat difficult to read. This obstacle aside, Equality Lost is
a book of importance for the Modern Orthodox community, opening a window into
the thought and rulings of this serious, sensitive poseq.1
Equality Lost is divided into four sections: Torah Commentary, Halakhah,
Jewish Thought, and a biography of the author’s grandfather, Rabbi Yosef
Eliyahu Henkin, z.ts.l. The book
is a collection of articles, some of them translations or paraphrases of R.
Henkin’s earlier writings, some written for submission to journals, and some
written specifically for this volume.
This review will focus on the halakhah section together with the
book’s first essay, “Equality Lost.”
Before treating the
halakhic material, the following may be said regarding the other sections. The
Torah Commentary section, while containing some novel interpretations and
readings, as well as a short essay attempting to delineate more precisely peshat from derash, is worthwhile reading, but the insights are primarily of a
local nature. The biography of Rav
Yosef Eliyahu Henkin, z.ts.l., focuses more on this gadol’s activities and the events on his
life than on his personality or methodology of pesaq. Most American Jews
of this generation are ignorant of the existence of this poseq, who was the premier poseq
in America prior to Rav Moshe Feinstein, z.ts.l., and this biography
goes a long way toward filling a woeful gap in our knowledge of one of the gedolim of the last generation.
In his essays on Jewish
thought, R. Henkin proves himself to be more than just a poseq. He understands that
the role of a rabbi requires not only rendering narrow halakhic decisions, but
also taking responsibility for the issues of the day. This is borne out by his choice of topics. He does not deal with abstract, theological
issues, but addresses the problems of incompetent rabbinic leadership and
national disunity (“Why Was the Second Temple Destroyed”), the failure of
rabbis to openly confront violent Jewish extremists (“Killing Captured
Terrorists”), religious apathy toward the State of Israel (“The Strength to
Repent…”), and misdirected religiosity, either through a focus on punctilious care
in the details of mitsvot with disregard for their values (“It May be Glatt…”), or through an embracing of
upbeat prayer melodies which undercut the meaning and appropriate experience of
the prayers (“Who Will Live or Die, tra
In both his choice and
treatment of topics, R. Henkin inclines to the pragmatic over the
metaphysical. He understands many of
the problems that Israel faces today to be the result of our own failed
leadership and religious infighting, and not divine retribution for sin. The course of action that this
interpretation suggests is not repenting to God, but directly and practically
addressing the roots of the problem. R.
Henkin’s innovative reading of texts in support of his positions can be seen in
how he interprets the famous Talmudic passage that identifies sin’at hinnam, baseless hatred,
as the reason for the destruction of the Second Temple. R. Henkin argues that this does not refer to
a sin, but to the historical reality that sectarianism and infighting led to
our own destruction. Given the
religious predilection for identifying theological causes for historical
events, such an interpretation is noteworthy for its practical, pragmatic
orientation. It is an orientation that
is noticeably present in R. Henkin’s halakhic writings as well.
Historical and Sociological Realities
Turning to the halakhah section of the book, the reader is
first struck by the degree to which a historical and sociological sensitivity
pervades R. Henkin’s halakhic writings.
R. Henkin is inclined to understand earlier rulings in their historical
context, and thus limit their applicability.
In the early eighteenth century, Havvot Ya’ir prohibited women
from saying Kaddish. This
responsum is regularly quoted by those who prohibit women from saying Kaddish
today. In response, R. Henkin
demonstrates that at that time, and indeed until the mid-nineteenth century,
only one person would say Kaddish for the entire congregation. Under today’s practices, where all mourners
say Kaddish in unison, a woman would be permitted to say Kaddish
together with male mourners (“Women and Kaddish,” pp. 44-46). In the same article, R. Henkin also limits
earlier rulings on the basis of their sociological and cultural context. Thus, the rulings of some Sephardi poseqim
that prohibit women from saying Kaddish are similarly deemed
irrelevant, inasmuch as their conception of the propriety of a woman saying
such prayers is at odds with the Ashkenazi one (pp. 46-47).
and cultural differences is important not only for contextualizing rulings of
other poseqim, but for understanding the scope and applicability of
Talmudic rulings as well. In his
article “Hirhur and Community Norms”
(pp. 76-86), R. Henkin defends the Modern Orthodox lifestyle that allows for
intermingling of the sexes. Talmudic
passages voice concern that such intermingling may lead to illicit sexual
thoughts. He argues that as a result of
habituation, such neutral intermingling is now nonsexual and thus
R. Henkin is quick to
point out that the vast majority of Talmudic edicts are categorical and not
open to contextualization. However,
some areas can be legitimately contextualized, and it is critical to identify
what they are. In the case of
prohibited provocative behavior, some rishonim and ahronim already
state that this is to be determined on the basis of individual or societal
circumstances. Other cases may be found
in the Tosafists’ discussions of the rabbinic requirement for mayim ahronim
and the prohibition against clapping hands on Shabbat, which find
these laws limited to a set of specific circumstances no longer applicable (Berakhot 53b, s.v. Vi-Hiyitem;
Beitsah 30a, s.v. Tenan).
The challenge for the poseq is to know when such arguments can
and should be made. It requires a
courageous poseq to apply this approach when it is warranted, rather
than to reject it out of hand because of the threat it represents.
R. Henkin also argues for
recognition of the evolving nature of halakhah. He states that an honest
assessment of the evidence demonstrates that rulings are rarely closed, and
even the Shulhan Arukh is not treated by poseqim as
absolutely definitive. Decisions are
always open for review, and different halakhah may prevail in different
communities. Halakhah is an
ongoing process, not some static monolith. (“Women, Kaddish, and the Halachic
For R. Henkin, then, halakhah
is not unchanging. Quite the
contrary, current halakhah is a stage in an ongoing process, different
for different communities, and always subject to review and revision. While halakhah as a whole must not be
historicized, it is critical to realize that in specific cases, some of its
norms are contingent on certain historical and sociological realities.
In the Orthodox community
there is strong resistance to this approach, and the fear of its potential
abuse is intensified by the Conservative movement’s frequent use of the
historical method in its halakhic process.
It should thus come as no surprise that when R. Henkin used this mode of
analysis in an article in Tradition
to justify the intermingling of sexes in Modern Orthodox communities (“The
Significant Role of Habituation in Halakha,” Tradition 34:3 (2000)), it earned him the ire of Tradition’s former editor, Emanuel
is this all-knowing “posek” who determines which acts produce or do not produce
erotic thoughts? …
not R. Henkin’s theory be applied to annul the laws of yihud (seclusion
with a forbidden woman), since their intent is to restrain a possible rush of
sexual ardor that might lead to sin? Could not one argue that in our “inured”
society there is no need to be concerned with this?
application of his theory ignores the well-known principle that Torah laws are
made for all times.
Halakhic Void With Risky Implications,” Tradition
34:3 (2000): pp.50-51.
Although in his article
R. Henkin had anticipated these challenges, and emphasized that habituation is
only relevant to specifically defined areas of halakhah, his statements
apparently fell on deaf ears. The fact
that a poseq of impeccable credentials such as R. Henkin is subject to
such derision, particularly in regard to a point which he had already
explicitly addressed, is further comment on the depth of the resistance to this
approach and the courage required to apply it when it is justified.
Beyond an awareness of
historical and sociological realities, R. Henkin’s pragmatic orientation often
brings about a significant shifting of the locus of a halakhic problem. For example, some poseqim discourage
women from attending a women-only megillah reading because of the
absence of a minyan of ten men and questions as to the proper blessing
to be made. Against such formalistic
halakhic considerations, R. Henkin posits the very real concern that women are
often unable to hear or even attend the regular megillah reading, making
the smaller women’s reading the halakhically preferable one (“Women and Megillah Reading,” pp.
59-60). Similarly, in a short responsum
(SBB I:5), he addresses the phenomenon of mothers who bring their small
children to the synagogue, thereby disturbing the services. The questioner wished to require that such
women stay at home with their children.
R. Henkin responds that the solution is not to exclude mothers from the
synagogue, but for the synagogue to provide child care. Such an obvious, practical point is often
lost even on the most progressive synagogue rabbis and presidents.
What Is and What Is Not Halakhah
R. Henkin is careful to
distinguish what is and what is not included within halakhah. For example, most Orthodox Jews believe that
tsni`ut is primarily the obligation of women. A clear look at the sources, however, reveals that in many
circumstances it is the man’s obligation not to look lustfully at women rather
than the woman’s obligation to distance herself from the gaze of men. This, R.
Henkin states, is indeed what the halakhah is, community assumptions
notwithstanding (“Hirhur and Community Norms,” p. 76 and SBB
III:26). Such distinctions can have
profound practical implications, and it is worth speculating how the religious
roles of men and women might shift and the status and self-perception of women
might be transformed if this halakhic point were internalized.
R. Henkin also completely
rejects the masking of public policy opinions as halakhah (“Women and
Kaddish,” p. 42). He believes it
appropriate for a rabbi to make a public policy argument and perhaps even to
forbid certain behavior on public policy grounds, but when doing so, he must be
careful not to cloak his position in halakhic language. Moreover, a rabbi’s policy decisions are not
binding ex cathedra, and he must be prepared to argue for and defend his
decision on public policy grounds, weighing all the various pros and cons of
Public policy tends to be
used selectively, depending on the issue being discussed. In the case of organ donation and brain
death, for example, it is usually the more modern poseqim who invoke
public policy considerations. On the
other hand, it is often these same poseqim who limit themselves to
discussions of technical halakhah and do not address the public policy
issues in the case of women’s prayer groups.
Public policy considerations are very real, and they need to be
addressed honestly, not merely employed as a tool to achieve a desired end
result. In the case of women’s prayer
groups, such a discussion would seek to honestly evaluate and balance such
issues as traditional gender roles, kevod ha-beri’ot, and
inclusiveness. R. Henkin’s call for a
separation of halakhah from public policy is most welcome, as an open
and honest debate of public policy considerations on their own merits can only
benefit the Jewish community.
A Balanced Poseq
R. Henkin’s non-static
view of halakhah, his decoupling halakhah from public policy
considerations, and his practical orientation all work together to allow for
innovative solutions. It would be a
mistake, however, to characterize R. Henkin as a meqel, a poseq who
is regularly lenient. Rather, he rules
according to his best understanding of the sources and the circumstances, which
at times will call for forbidding certain activities. On the basis of a careful analysis of the primary sources, he
rejects the position of those who limit the restriction of kol isha to
cases of the recitation of the Shema (“Kol Isha Reviewed”). And again, on the basis of a close reading
of the sources combined with policy considerations, he argues vehemently
against those who would permit a beit din to convert children who are
being raised in nonobservant homes (“Converting Children in Non-Observant
Families”). As he himself puts it in
are halakhic Jews, and we should accept with faith and love even those
disabilities and restrictions which Halakha may place on us.
and Community Norms,” p. 77.)
In areas of public
policy, R. Henkin similarly weighs each case on its own merits. In the case of women saying Kaddish,
he is willing to pit his policy of inclusiveness against others’ policy of
limiting women to the private realm (p. 47).
In contrast, he rules that while women’s aliyyot are technically
permissible on the grounds that a congregation can waive its honor, this
practice should be prohibited on public policy grounds because such a
congregation would eventually lose its Orthodox affiliation and commitments
(SBB II:11 and The Edah Journal 1:2).
While others may legitimately argue with his conclusions, R. Henkin is a
poseq of integrity who rules according to his best read of the sources
A poseq’s value
system will influence, at least subconsciously, how he reads and interprets his
sources. At this point, then, it is
appropriate to ask: What are some of the values that R. Henkin brings to his pesaq
halakhah? Does he believe that Jews
need to be fully integrated in society?
Does he embrace feminism and egalitarianism? Here it seems, at least to judge from his writings, that his
sympathies lie more with a pragmatic inclusiveness and tolerance for legitimate
differences rather than with a total embracing of modern values. Thus, when writing to defend the
intermingling of the sexes that occurs in the Modern Orthodox community, he
is no halakhic imperative to introduce mingling of the sexes where it does not
already exist. What we have said here
is a justification of community practices, not an agenda. It is much easier to legitimize existing
practice than to justify new ones.
(“Hirhur and Community Norms,” pp.
And when arguing on policy grounds for allowing women to
say Kaddish, he writes:
this context my grandfather’s words bear repeating:
is known that were it not for kaddish, many would refrain from teaching prayer
to their sons and would not come to synagogue.
When they come closer because of kaddish they also come a bit closer to
Judaism the rest of the year, and for this reason itself one should not rebuff
the na’arot (young women) either, since it fosters closeness to Judaism. (“Women and Kaddish,” p. 47)
These statements and
others like them make it clear that R. Henkin professes a value of pragmatic
inclusiveness, not a philosophical egalitarianism. But there is more. We have
already seen how he calls on synagogues to provide child-care for children
rather than demanding that their mothers stay at home. For R. Henkin, a woman’s desire for greater
religious participation demands our respect, not our skepticism and derision,
and this remains true even when this desire extends to areas of new
ritual. Women who desire to pray in a
women’s prayer group, or to wear tsitsit, tallit, or tefillin,
often find their motivations questioned and attacked. No less a figure than Rav
Moshe Feinstein z.ts.l. states that it would be totally forbidden for a
women to wear tsitsit if she were motivated by feminism, an ideology
which R. Feinstein considers heretical (Iggerot Mosheh, Orah Hayyim,
IV:49). Although R. Henkin does not actually defend feminism, he rules that a
woman may wear tsitsit, and completely disregards the issue of her
motivation (SBB II:3). Rejecting
arguments to forbid women’s prayer groups on the basis of the prohibition of be-huqoteihem
(following the ways of non-Jews; here, following a feminist ideology), he
states that the Torah only prohibits non-Jewish actions, not motivations or
movements (SBB II:10). But while R.
Henkin defends many2 of the
practices emerging from amidst Orthodox feminist women and refuses to question
their motivation, he avoids any direct support of feminist ideology.
This position also
emerges from R. Henkin’s writings on Jewish thought. The book’s first essay, also entitled “Equality Lost,” seems to
promise by virtue of its title that it will articulate a vision of an ideal halakhic
and religious system where women and men are deemed equals. This promise, however, is only partly
fulfilled. R. Henkin’s vision of ideal
Judaism affords women equal respect and dignity but at the same time affirms
role differentiation and hierarchy of status.
What we have lost is not gender equality of roles and status, but rather
due regard for women’s equal intelligence, potential, and dignity.
One searching for a
fundamental value of equality would be naturally drawn to the first chapter of
Genesis, where man and woman are created simultaneously and equally be-tselem
Elohim, in the image of God, and are equally blessed and commanded by their
Creator. The divisions of role and
status that are found in the Torah occur only later: between man and woman, in
Genesis 2, where Eve is created from Adam and for the purpose of helping and
completing him; and between Jew and non-Jew, in the Noah-Abraham-Exodus
narratives. These divisions can be
understood, in this paradigm, as a true “lost equality,” a necessary compromise
between the ideal and the real, between human beings’ ontological equality and
the realities of society. This vision
would see the mitsvot in which these hierarchical distinctions are
embedded as necessary compromises with specific socio-historical realities, as
Rambam argued in the case of sacrifices and as we implicitly assume in the case
of slavery. The goal, according to
this vision, would be to work within the halakhic system to restore the real –
society and halakhah - to the ideal to the greatest extent possible.3
R. Henkin does in fact
turn to the creation story, but he chooses to focus on the second chapter of
Genesis rather than the first. In
considering Chapter 2 of Genesis, R. Henkin has a different type of equality in
mind. He states that woman was created
as an ezer ke-negdo – a helper equal to him or, as he puts it, “God
created woman equal to man in order to assist him in fulfilling the
commandment” [emphasis mine] (p. 15). Man is the one fundamentally commanded and in relationship with
God, but woman is his intellectual equal who can help him fulfill his
obligations. R. Henkin proceeds to
describe that the cause of the first sin was man’s zilzul – disrespect,
belittlement and underestimation – of woman: he infantilized her and this brought
them both down. The lesson is clear:
men should treat women with full respect and dignity and see them as their
intellectual equals. Nevertheless,
“[t]his is not advocacy for radical egalitarianism. The Torah prescribes different roles for men and women” (p. 19).
This affirmation of role
differentiation must be read alongside the essay “The Place of a Woman,” which
appears in SBB I, and was curiously not included in Equality Lost. In this essay, R. Henkin tackles the verse
“All glorious is the King’s daughter within the palace” (Ps. 45:14), which is
used in the Talmud to suggest that, in the modern idiom, “a woman’s place is in
the home.” R. Henkin asks two very
simple questions: Is this verse prescriptive or descriptive? And if it is
descriptive, is it descriptive of an essential character of women, or just of
the most common role that they adopt?
What is at stake is obvious: only by reading the verse, and the Talmudic
passages that quote it, as descriptive of a non-essential trait of women can
one argue for the legitimacy of women’s public role. And this is exactly what R. Henkin does. It is at this point that he turns to Genesis
1, and, quoting the verses on the equal creation of man and woman and their
equal mandate to subdue the earth, he argues that at least in the area of
playing a public role, the Torah sees no essential differences between man and
woman. A woman who chooses to play a
public role and remains “God-fearing” is to be praised as the true eishet hayil
It is not obvious how to
reconcile these two essays. The denial of essential differences between man and
woman comes close to suggesting that the different roles assigned to them by halakhah
are some compromise with societal realities. The fact that the “Torah prescribes different roles for men and
women” would remain true, though not the ideal. But nowhere in his writings or
halakhic rulings does R. Henkin seem willing to advance an ideal of
egalitarianism. It would appear,
rather, that R. Henkin is denying only that
women are essentially private beings and men are essentially public
ones. That does not preclude the
existence in his scheme of other essential differences, such as inherent
capacities for nurturing and care giving.
The role differentiations assigned by halakhah are, then, an
ideal, and they would require women to play the roles of child-bearer and
nurturer for which they are biologically adapted. This role and obligation would not, however, restrict women to
the home. A woman would be entitled to
play a public role alongside her private one if the circumstances of her
private life permitted.
R. Henkin is a poseq whose
stated values are respect for differences, openness to new phenomena and new
societal roles, and pragmatic inclusiveness.
Whether R. Henkin actually subscribes to a feminist ideology that for
the sake of his acceptance as a poseq he must suppress seems
improbable. In his analysis of halakhic
sources and his discussions of public policy, there is a complete absence of a
feminist critique. When quoting a
Talmudic passage where Rabbi Yohanan states: “to me, women are like
white geese,” R. Henkin voices no critique and passes over it silence (p.
77). The question of his personal
ideology is in any case moot. As a poseq,
he does not operate with a feminist ideology.
Given the courage that R.
Henkin regularly demonstrates, it is perplexing when he steps back from this
stance. R. Henkin delivered his “Hirhur
and Community Norms” essay as an address at the 1998 Jewish Orthodox
Feminist Alliance (JOFA) Conference. He
does not share this fact with his readers and refers to the forum as “a
conference plenum of 2,000 women in February 1998” (p. 84, n. 1). We can only speculate why he did not
identify JOFA openly. Perhaps he
believed that this would label him a feminist and cause him to lose credibility
or acceptance within the Orthodox community.
Whatever the cause may be, R. Henkin chooses at times to act with great
A similar phenomenon is
present in the way in which R. Henkin ends many of his responsa in SBB. Often, he will spend many pages
demonstrating the permissibility of a certain practice only to forbid it in the
last paragraph on what appears to be a questionable basis. Three examples will bear this point out.
In SBB III:27, he
demonstrates the theoretical permissibility of women reciting sheva berakhot
at the wedding meal, but refuses to apply his conclusions to practice, stating
that “not just because we can make an argument should we act on it, particularly
in a case which requires a minyan.”
In the same responsum, he refuses to even discuss the possibility of
women reciting sheva berakhot under the huppah.
In an earlier responsum
in the same volume (SBB III:21), R. Henkin argues that the biblical obligation
of hair covering for women is limited to the majority of the woman’s head, not
the majority of her hair. The
additional obligation of dat yehudit, the norms of Jewish women, is
determined by the practice of Jewish women in one’s community. Thus, one can defend the practice of women
who expose a lot of hair outside their hats, if this is the practice of their
community. Nevertheless, he states in
the last paragraph, women should only allow a hand’s-breadth of hair to be
exposed, as is the prevailing custom among modest women, for “not just because
we can make an argument should we act on it.” Moreover, he states, the norms of
dat yehudit are to be determined only by modest women, not by those who
are immodest. But if by immodest women
he means to include all those who expose a good deal of their hair, then he
undermines his earlier definition of dat yehudit, since more lenient
community norms can now be rejected on the basis that those who practice them
Finally, in the same
responsum in which he permits women to wear tsitsit, he forbids them to
wear a tallit on the basis of a statement in the Targum attributed to
Yonatan (SB II:3), a work generally not recognized as a halakhic source. It is hard to believe that this source is
the actual basis for his ruling, and one wonders if other considerations played
a role. Perhaps R. Henkin is concerned
that his rulings will appear be too radical for certain communities and cause
him to lose standing as a poseq.
We would still be faced with the anomaly that he permits a woman to wear
tsitsit without any reservations, but voices reservations about a woman
exposing more than a hand’s-breadth of hair.
Certainly, the former ruling is far more radical than the latter one.
These anomalies aside, R.
Henkin is overall a courageous poseq.
His willingness to critique incompetent rabbinic leadership, his
considerable tolerance for religious diversity, and his general progressiveness
all run counter to deeply entrenched right-wing religious sensibilities. It is a sad fact that, for all his prudence,
R. Henkin still faces obstacles to his acceptance. In the book’s forward, R. Henkin states that he was unable to get
a number of his articles published, even in such journals as Tradition
and Journal of Halacha and Contemporary Society (p. 8). Considering that the latter journal often
publishes articles of young rabbis in their 20s or 30s who do not approach the
stature or competence of R. Henkin, this is a sad commentary, indeed.
As a poseq who has
no overriding agenda, who deals with his sources with integrity, and who often
rules strictly, R. Henkin establishes himself as an authority who can be relied
upon unquestionably when he rules leniently.
We need to be grateful that there is a courageous and progressive
poseq like R. Henkin. It is because
of him, and the few others like him, that important issues for the Modern
Orthodox community are being addressed
in a serious halakhic manner.
* I would
like to Devorah Zlochower and David Shatz for their insightful comments and
1 It is
welcome news that this winter KTAV will be publishing R. Henkin’s Responsa
on Contemporary Jewish Women's Issues, a translation of 25 of his
responsa on women’s issues.
2 But not all.
Among other things, in the same responsum where he allows a woman to
wear tsitsit, he forbids her to wear tallit and tefillin. See below, Some Anomalies.
3 For a fuller
discussion of the tension between sociologically real and axiologically ideal
halakhic values, as well as the concept of legitimate historical evolution of
Torah values, see The Way of Torah by Nahum Eliezer Rabinovitch, in this