Guest post by R. Aryeh A. Frimer

Rabbi Aryeh A. Frimer is the Ethel and David Resnick Professor of Active Oxygen Chemistry at Bar Ilan University (E-mail) and has written extensively on the status of women in Jewish law; see: http://bermanshul.org/frimer/. This article is republished with permission from the latest issue of Hakirah. The full article with footnotes, italics and Hebrew text can be downloaded here: link (PDF).

Review of: On Changes in Jewish Liturgy: Options and Limitations by Daniel Sperber, Jerusalem: Urim Publications, 2010, 221 pp.

I. Introduction

The prolific R. Prof. Daniel Sperber has published yet another masterful book—this time “On Changes in Jewish Liturgy: Options and Limitations” (henceforth, “Liturgy”)—in which the erudite author surveys the evolution of Jewish liturgy over a period of two and a half millennia. As with Prof. Sperber’s other books, this one too is enjoyable, edifying and breathtaking in its depth and breadth. There is a lot of action in the footnotes and appendices that will keep scholars happily diverted. Prof. Sperber outlines how the prayer text has evolved into a variety of nusha’ot and a plethora of sub-nusha’ot—such that no two Hassidishe shtibelakh daven exactly the same, nor do Yemenite batei kenesset. If one follows the prayer book from the time of the Geonim and the early Cairo Geniza manuscripts, through the Hassidei Ashkenaz, the Ari, and students of the Besht, down to the modern period—it becomes eminently obvious that there have been extensive additions of new prayers to the liturgy, and modifications in the text of the shemone esrei.

R. Sperber does note that many of these changes were copying or printing errors. Others were forced upon Jews by the censor or came about despite great resistance from the Posekim. For example, leading codifiers—including Maimonides, the Tur and Shulhan Arukh, and the Gaon of Vilna—strongly disapproved of the introduction of piyyutim to the birkot keri’at shema or hazarat ha-shats. Nevertheless, Rema and others support their continued recitation based on the fact that this was a revered centuries-old custom. Indeed, relying on the Rema, the limited recitation of piyyutim persists, more or less, down to our very day.

As the title suggests, this volume deals with a broad range of topics. Considering, however, that this book began as a lecture at a conference of the Jewish Orthodox Feminist Alliance (JOFA), it should not be surprising that it also touches on possible changes in Jewish liturgy taking into account feminist sensibilities. Indeed, Prof. Tamar Ross and other feminists have charged that the Siddur contains an “androcentric bias”—a charge I disagree with and critique.

In this regard, the specific feminist issues raised in this work are three. The first is the permissibility of modifying the morning benediction “…she-lo asani isha” for men and “she-asani ki-retsono” for women (Liturgy, pp. 39-40). The second is the possibility of introducing the names of the Imahot (four Matriarchs) in addition to those of the Avot (three Patriarchs) into the opening berakha of the Shemone Esrei (Liturgy, p. 111). And finally, the emendation of the phrase in Tahanun: “ve-shiktzunu ke-tum’at ha-niddah”—and they [the nations] abominate us like the ritual impurity of a menstruant (Liturgy, p. 47). It should be noted that the first two issues have been discussed extensively in the Conservative movement, but Prof. Sperber is presumably writing for a more traditional audience.

Based on the above-documented evolution of the prayer text, R. Sperber argues that our generation too should be able to make changes in the liturgy—changes that are more reflective of modern values and priorities. If a community so desires, this may well include additions and emendations that are reflective of feminist sensitivities (Liturgy, pp. 111–113). We should not be afraid, posits Prof. Sperber, that this will further split our prayer communities, since they are already extensively subdivided according to prayer texts and customs.

Citing R. Joseph Caro’s analysis of the Rambam, R. Sperber does, however, note two provisos regarding any proposed changes. Firstly, it is critical that the modifications not alter the overall content, intent and message of the berakha. Secondly, the overall structure and format of the berakha must be maintained with regard to its opening and/or closing with Barukh Ata Hashem.

II. Critique of Elements of R. Sperber’s Halakhic Analysis

As just noted, Prof. Sperber’s impressive volume is not merely an analysis of the past. It is in part also a proposal to justify changes in Jewish liturgy in the future—and it is here that we part company. In this regard, despite his rich and scholarly presentation, R. Sperber, to our mind, makes several very fundamental errors in halakhic analysis, and we will outline three below.

(A) Obligatory Benedictions vs. Optional Prayers

Firstly, in his survey of the changes in Jewish liturgy, Prof. Sperber fails to discriminate between those prayers and benedictions that are ancient texts—authored and fixed by Hazal—and those that are much later introductions and purely optional. Thus, in an attempt to demonstrate that Judaism permits innovative creativity, he cites the creation of special optional prayers in honor of Tu beShvat (Liturgy p. 54), the private recitation of Tefilla Zaka on erev Yom Kippur (Liturgy p. 56), and the introduction of Lekha Dodi (p. 112). Based on these innovations he asks: If Jewish liturgy is not crystallized and accepts additions, why can’t we add the Matriarchs to the first berakha of the Amidah (Liturgy p. 56)?

This attempt at a comparison is quite problematic. A Tu beShvat Seder, Tefilla Zaka and Lekha Dodi are all optional prayers, not even formulated as benedictions. Their authority, if any, comes only from minhag—from the fact that Klal Yisrael has seen fit to recite them regularly. How can one compare their introduction to the liturgy with the addition of the Imahot into the first berakha of the obligatory Amida—whose text was fixed by Hazal, and where there is a serious concern of berakha le-vatala?

We will return shortly to the issue of introducing the Imahot, but I would like to focus on the issue of optional prayers. One of R. Sperber’s suggestions was to remove the phrase “ve-shiktzunu ketum’at ha-niddah” from Tah$anun. In this regard, Maimonides rules:

After one lifts his head from the fifth bow [at the conclusion of the Amida], he sits on the ground, falls with his face towards the earth, and utters all the supplications that he desires.

In other words, what one prays in Tahanun is up to the individual. Furthermore, the Tur cites Rav Natronai Gaon to the effect that the very recitation of Tahanun is purely optional; it is merely a proper custom to add some request for mercy immediately after the Shemone Esrei. It would seem, therefore, that even though each community has a normative custom of what to say in tahanun, what is binding is the custom to recite some supplication; the exact wording of the Tahanun was not fixed. This conclusion is confirmed by R. Eliezer Melamed who writes:

If one is in the middle of reciting Tahanun and the hazzan has started to recite the concluding kaddish, the congregant should skip to the end of Tahanun and continue davening with the community. This skipping ahead is permissible because the exact text of Tahanun is not critical, and one fulfils the custom even with minimal supplications.

Hence, it would seem to us that anyone who wants to follow Prof. Sperber’s suggestion of removing the phrase “ve-shiktzunu ketum’at ha-niddah” from Tahanun has clear halakhic basis to do so. Indeed, with optional prayers, there seems to be little problem in making any necessary changes or corrections, such as removing from Berikh Shemei the verse “veTehev li benin dikhrin di-ya’avdun re’utakh,” “May I be blessed with male progeny to do your will,” or deleting the very problematic supplications to angels in Shalom Aleikhem (specifically Barekhuni le-shalom), selihot or Hineni, or removing the references to Babylonia in Yekum Purkan (which eidot mizrah don’t even say), or adding “haRahaman Hu yevarekh et Medinat Yisrael…” to the haRahamans after “al yehasreinu” in Birkat haMazon, or adding kinnot for the Six Million on Tisha beAv, or even to adding the Imahot to the Mi she-berakh for an oleh or holeh. These are optional supplications, without set texts or benedictions sanctified by Hazal.

(B) leKhathilla vs. be-di-Avad

A more fundamental problem with R. Sperber’s analysis has to do with a blurring of the difference between le-khathila (pre-facto) and be-di-avad (post-facto). This is a failing we have noted previously in his analysis of kevod ha-tsibbur with regard to women’s aliyot. The author repeatedly suggests that le-khathila means the “preferred” or “ideal” performance (Liturgy p. 62). In this he simply errs!

leKhathila refers to the way one is required to act under normative conditions. For example, Hazal say that one should not use a milchig spoon she-eino ben yomo (not used in the last 24 hours) to stir hot chicken soup.25 Similarly, Hazal indicate that one should not place food into utensils that have not been immersed in a mikva. In both cases, be-di-avad the food remains perfectly kosher. Nevertheless, Hazal’s ruling in both these cases is not a recommendation,but rather a clear directive on how one is required to act. Under normative conditions, it is forbidden to act otherwise.

This is also true regarding the obligatory prayer text and benedictions. Hazal forbade changes le-khathila—even though be-di-avad or bi-she’at ha-dehak (under dire circumstances) the change may be valid. Thus, Maimonides writes:

The wording of all the blessings, Ezra and his court enacted them, and it is inappropriate to change them, nor to add to one of them, nor to detract from one of them, and anyone who changes the wording coined by the Sages in the blessings is simply erring…

As Prof. Sperber himself cites, R. Joseph Caro in the Kesef Mishne ad loc. explains that if one erred and changed the text of a berakha, what he recited is improper and inappropriate—but the benediction is post-facto valid. This is provided the overall content and structure of the berakha remains intact, as noted above. But the fact that the improper benediction is be-di-avad valid is in no way a carte blanche to change the prayer text at will. Contrary to Prof. Sperber’s intimation, if a change is made in a benediction, it needs to be corrected and certainly should not be repeated again.

For example, R. Yosef Caro rules in the Shulhan Arukh that, if instead of making haMotsi over bread as prescribed by Hazal, one said she-hakol or said the berakha in Aramaic, the benediction is valid. On this the Vilna Gaon and Mishna Berura indicate that this is only be-di-avad; le-khathila it is forbidden to change Hazal’s formulation in any way. Similarly, if by mistake one recited the text of Shabbat Arvit for Shabbat Shaharit or Minha, or vice versa, he or she has fulfilled their obligation. However, the 13th century Rishon R. Zedakiah ben R. Avraham haRofe, who is the source for this latter
law, notes:

However, one who exchanges and changes [the texts] on purpose—about him apply the verses: “Do not move an ancient boundary marker…” (Proverbs 22, 28), “and whoever breaks through a fence shall be bitten by a snake.” (Ecclesiastes 10:8).

It is clear that many of the major differences in the obligatory prayer texts of the various eidot occurred prior to the printing press, where the text was learned by rote—and hence subject to an accumulation of errors over time. These changes were of a be-diavad status and should have been corrected immediately, but after
time, no one knew for sure what the proper nusah was. Similarly, changes introduced by or for fear of the censor also have a she’at hadehak status that in halakha is equivalent to di-avad. Censor changes often remain in place for hundreds of years before conditions improve and the origin of the change is uncovered and corrected.

Many outstanding scholars have done their best to educate their community as to the correct nusah. Indeed, the tinkering with the text by the Hassidei Ashkenaz, the Arizal and his students, the Hassidic Masters and other great scholars throughout the generations—as thoroughly documented by Prof. Sperber—were all attempts to correct the text and return it to what they thought was the authentic version instituted by Hazal. But nowhere do we find examples where, under normative conditions, leading scholars consciously corrupted what they knew to be a perfectly proper text—so as to correspond to some passing fancy or ideology.

(C) Opening and Closing Benedictions of Amida vs. the Middle ones

Let’s now raise our third critique of Prof. Sperber’s halakhic analysis. Prof. Sperber correctly notes that Hazal in Masekhet Berakhot encourage us to make our daily weekday davening relevant by adding some personal elements to it.

R. Eliezer says: if a man makes his prayers a fixed task, it is not a [genuine] supplication. What is meant by a “fixed task”? … Rabba and R. Joseph both say: Whoever is not able to insert something fresh into it.

Now, the rules for adding novel requests into the Shemone Esrei are explicitly discussed in Rambam and Shulhan Arukh. Prof. Sperber does not emphasize that there is a clear distinction between the 13 middle berakhot of the Shemoneh Esrei, and the opening and closing six. Indeed, in the middle benedictions, one is allowed—even encouraged—to add, preferably towards the end of a berakha; however, in the first and last three berakhot additions are highly problematic. This is indeed part of the reason that there is so much variation in the nusha’ot of the various eidot in the text of the middle berakhot of the Amida, yet almost none in the opening and closing ones. It also explains why posekim were more forthcoming when it came to making some modifications in Birkat Nahem recited on Tisha beAv (as documented by R. Sperber in Liturgy, pp.
128 and 161–167).

There are two categories of exceptions to this rule regarding no changes in the opening and closing berakhot. [We note that the battle over the permissibility of these two exceptions was a lengthy one, and merely reinforces the premise that under normative conditions changes are forbidden. These are exceptions that prove the rule.] The first class of exceptions includes the four verses introduced during the aseret yemei teshuva: Zakhreinu le-hayyim, Mi khamokha av ha-rahamim, uKhetov le-hayyim tovim and beSefer hayyim. These were accepted primarily for three reasons: firstly, because the custom to recite them dates back to the Geonic period, if not earlier; secondly, because they are temporary changes rather than permanent ones; and, finally, because they are communal requests for life which presumably have an element of she’at ha-dehak to it.

The other exception relates to the insertion of piyyutim which, as noted above, was vigorously resisted by a great many leading codifiers. Even those who accepted their recitation did so only because the piyyutim were written by outstanding scholars going back to the period of the Rishonim and earlier, 700 to perhaps 1500 years ago. In addition, they are communal requests—and there is a clear proviso that the piyyutim be said only be-tsibbur, not in private. In a very large number of shuls in Israel, the recitation of piyyutim is permitted only in Hazarat haShats.

These exceptions aside, the fact remains that for more than a millennium, the texts of the opening and closing six benedictions were not tampered with.

III. Introduction of Imahot to Birkat Avot

I’d like to comment, now, on R. Sperber’s suggestion to include the Imahot together with the Avot in the opening paragraph of the Amidah. This is a practice that has found its way into Conservative Jewish practice and prayer books44 despite the objection of some of their own leading scholars. Indeed, this proposal can be rejected based on many considerations.

(1) Firstly, as just discussed, other than piyyutim, over the past millennium, no changes or additions whatsoever have been made in the first three berakhot of the Shemone Esrei—most certainly not permanent ones, and certainly not in the private Shemone Esrei.

(2) Furthermore, we have to ask whether this change is in line with the content and intent of the berakha as established by Hazal. After all, why were the Avot included in the opening of the Shemone Esrei in the first place? The Mekhilta indicates that Hazal based their wording on an explicit Pasuk:

And what is the source of saying “Blessed are You, Lord our God and God of our fathers, God of Abraham, God of Isaac and God of Jacob?” For it is written (Exodus 3:15): “And the Lord said further to Moses, thus shall you say to the children of Israel: Lord, God of your fathers, God of Abraham, God of Isaac and God of Jacob.”

As explained by R. Bahya ibn Pakuda, this is the only place in the Torah where we find the Almighty identifying Himself as the God of given individuals.48 In addition, the rubric of “the fathers Abraham, Isaac and Jacob” occurs numerous times throughout Tanakh in connection with God’s revelation and His covenantal pronouncements. For example, in Leviticus 26:42 we read:

And I shall remember my covenant with Jacob, and even my covenant with Isaac, and even my covenant with Abraham I shall remember and the land I shall remember.

On the other hand, nowhere in Tanakh do we find the concept of the arba Imahot, let alone the “God of the Imahot.” The notion of “four Matriarchs” appears for the first time only in Rabbinic literature. Hence, to include the Imahot into the opening verses of the Shemone Esrei would be a misrepresentation of Jewish theology. Our covenantal relationship to G-d is through the Avot, not the Imahot. To be sure, the Imahot were very important supporting players in the formative years of our people, but they were not the spiritual leads by any means.

(3) The introduction of the Imahot into the opening berakha of the Amida would be a misrepresentation for another reason. Our model for approaching the Creator in prayer is based on the Patriarchs who according to Hazal established the three daily prayers. In addition, a survey of Tanakh makes it clear that one of the major functions of the prophet was to pray for individuals and the nation. As Rashbam (ad loc.) writes:

For the word navi (prophet) is derived from niv sefatayyim (expression of the lips). For the navi is commonly in my presence and speaks in my name, and I like his words and listen to his prayers.

Indeed, in the first verse in Tanakh (Genesis 20:7) in which the term navi is used, G-d informs Avimelekh that Abraham the prophet will pray for him:

Now, restore the man’s wife; for he is a prophet, and he shall pray for thee.

Similarly, the people plead with the prophet Samuel to pray for them (I Samuel 12:19):

And all the people said unto Samuel: ‘Pray for thy servants unto the Lord thy God, that we die not.’

To which Samuel assures them that he will continue to do so (ibid. 23):

…far be it from me that I should sin against the LORD in ceasing to pray for you.

Interestingly, R. Yaakov Meidan notes that the Anshei Kenesset haGedola (Men of the Great Assembly) established the fixed Jewish liturgy at the beginning of the Second Commonwealth. He argues that their authority for this innovation stems in no small part from the fact that this body included the last three prophets Haggai, Zecharia and Malachi—specialists in prayer.

(4) In addition, the adjectives used in describing the Almighty in Birkat Avot, indeed, the language of prayer in general, are all based on the choice of language used by the prophets. In this regard, the Avot were all bona fide prophets, as the Torah clearly testifies. But this may not be true of the Imahot. Indeed, with the exception of Sarah, the Gemara in Megilla does not include the Mariarchs among its list of the fifty-five major prophets.

Our Rabbis taught: ‘Forty-eight prophets and seven prophetesses prophesied to Israel… ‘Seven prophetesses.’ Who were these? Sarah, Miriam, Deborah, Hannah, Abigail, Hulda and Esther.

These criteria aside, why mention the Imahot when we don’t include Moshe Rabbenu, transmitter of the Torah, or King David, author of Tehilim—on which so much of our prayer is based? Why mention the Imahot? Just because they were women? Just because of feminist sensibilities? This is not only a theological misrepresentation as discussed above, it is intellectually dishonest. I don’t think that women should be excluded, where relevant, because of their gender; nor should they be included, where irrelevant, just because of their gender.

IV. She-Lo Asani Isha and Mitsvot Asei She-ha-zeman Gramman

I’d like to turn now to the other issue raised by R. Sperber, and that is the recitation of the she-lo asani isha benediction in birkot hashahar— along with she-lo asani goy and she-lo asani aved. Prof. Sperber records that many women find the negative formulation “…who has not made me a woman” derogatory (Liturgy, pp. 39-40). In light of the flexibility he sees in Jewish liturgy, he argues for the permissibility of modifying the benediction “…she-lo asani isha” to “she-asani ish” or “she-asani Yisrael,” and “she-asani kirtsono” to “…she-asani isha” or “she-asani Yisraelit” (Liturgy, pp. 111–113).

I would like to make it clear that there is no doubt as to the authenticity of the text of the benediction she-lo asani isha—since it appears thrice in Rabbinic literature: in the Tosefta, the Talmud Bavli and the Yerushalmi. Both the Tosefta and the Yerushalmi make it clear that the benediction is related strictly to men’s greater obligation in commandments. As is well known, women are generally freed from mitsvot asei she-ha-zeman gramman (time-determined positive commandments), which include, inter alia: sukka, lulav, shofar, tefillin and tsitsit. Based on what we discussed above, it is clearly forbidden to remove or modify an obligatory blessing.

Reams have been written to explain the import of these benedictions and why they are in the negative. I would like, however, to cite the comments of R. Reuven Margaliot, which I personally find very satisfying.

A woman is not punished if she does not fulfill timedetermined positive commandments, and her share in the
World to Come is like that of a man. Hence, there might well be room for a male Jew to think that it might have been better had he been born a woman, for then he would have been freed from the yoke of these commandments. Hence, [the Rabbis] established that each male should make a daily declaration that these mitsvot are not a burden.

A similar approach appears in the writings of the 18th Century Talmudist R. Samuel Eidels (Maharsha) who writes:

[A male makes this benediction because the roles] of a man and a woman are each lenient on the one hand and stringent on the other. For if they are righteous, the reward of the male is greater, because he is commanded in more mitsvot than a woman. However, if they are not righteous, the man’s punishment is greater than a woman’s.

These scholars note that one who has greater obligation has greater potential for reward, but also for greater possible punishment should he or she not do as required. Thus, a man who doesn’t put on tefillin or sit in the Sukka is punished for bittul aseh—for not fulfilling the positive commandment he was bidden to obey. Hence, the Rabbis ordained that each day, each of us acknowledge that, mutatis mutandis, the Creator could have made us a non-Jew, or a slave, or a woman, with fewer obligations, but also fewer risks. Yet, the Almighty chose not to. By reciting the daily identity berakhot “sheLo asani goy; sheLo asani aved; sheLo asani isha,” each of us accepts upon ourselves the spiritual/religious role that we have been given. The “she-lo” is to be understood as “Who has not,” a sober acknowledgement and acceptance of a spiritual role, not a celebrative “because He has not.”

R. Nissim Alpert suggests an insightful rationale as to why these berakhot are formulated in the negative. Hazal wanted to communicate to us that the Creator only gives us the opportunity. He defines who we are not; it is up to us to define who we are and maximize our positive potential. Interestingly, the same idea appears in the writings of 19th century R. Zadok haKohen.

And the reason one should not recite “who has made me an Israelite” is that man functions with freedom of choice, and one can be called an Israelite only if he chooses properly. And who can be sure that he/she will chose correctly? Hence, we can only recite the benedictions “who has not made me a non-Jew or a slave.” But, nevertheless, one has the choice to choose [whether to do these mitsvot] because he is not a non-Jew or a slave. The same is true for “who has not made me a woman”—it is in his choice to fulfill or not to fulfill those mitsvot that stem from men’s greater mitsva obligation.

Prof. Sperber has waved this all off as “apologetics” (Liturgy pp. 37–39). I guess one man’s apologetics is another’s honest explanation. While Prof. Sperber surveys a variety of explanations, no one interpretation is more authoritative than any other. The only authoritative guideline is the one given us by the Tosefta and the Yerushalmi—namely, that this benediction relates to the fewer number of specific mitsvot in which women are obligated. Prof. Sperber has chosen to interpret the berakha in a way that creates a problem and casts aspersions on Hazal. To my mind, it is far better to understand it so no problem begins!

The truth, however, is that for radical feminists, there is much more at stake in this benediction than just its formulation. Despite the fact that all Jews share the same level of kedushat Yisrael (Jewish sanctity), Jewish law, nevertheless, distinguishes between the obligations of kohanim (priestly clan), leviyim (Levites) and yisraelim (other Israelites), as well as between males and females. This lack of identity between the religious obligations of men and women leads us to the inescapable conclusion that Judaism is most definitely not egalitarian. And this is the crux of the problem!

Women’s exemption from mitsvot asei she-ha-zeman gramman—about which there is no dispute—is derived in the Oral Law through the use of the hermeneutical principles. Maimonides posits that this exemption is rooted in ancient oral tradition. In either case this exemption is deemed to be biblical in origin. The bottom line, then, is that halakhic Judaism maintains that God Himself ordained and commanded non-identical roles for men and women. This clearly does not sit well with many feminists. Indeed, Judith Plaskow believes that this is “a profound injustice of the Torah itself in discriminating between men and women.”

For those whose highest commitment is to halakha, this lack of identity in religious roles is a resounding rejection of certain basic feminist values. It suggests that the Torah’s set of priorities is not always consonant with those of modern day radical feminism. All this comes through loud and clear in “she-lo asani isha” and is the fundamental reason that feminists have battled for a more egalitarian language—like she-asani yisrael for males and she-asani yisraelit for females. The latter communicates nothing about the different levels of mitsva obligations of men and women—which is the whole purpose, content and intent of the berakha, as is clear from the above-cited Tosefta and the Yerushalmi. Using a language for these
benedictions that does not emphasize the difference in religious roles is, to my mind, not only contrary to the intent of Hazal and halakhically wrong, but also theologically incorrect and misleading.

V. Conclusion

As already noted in our opening comments, we have found Prof. Sperber’s historical survey of the evolution of Jewish liturgy enjoyable, edifying and breathtaking in its depth and breadth. Prof. Sperber, however, makes an effort in this volume to go one step further, attempting to justify and direct future changes in Jewish liturgy. We find this facet of the work to be seriously lacking in its halakhic analysis, and, hence, unconvincing in its direction. This is particularly true for the suggestions he makes regarding various feminist issues that we have discussed in detail in this review.

Perhaps, before one tinkers with the Siddur, we should recall the words of R. Abraham Joshua Heschel, who wrote:

The crisis of prayer is not a problem of the text. It is a problem of the soul. The Siddur must not be used as a scapegoat. A revision of the prayer book will not solve the crisis of prayer.