More on Kol Isha

Halakha Is Rarely Subjective

To the Editor:

In the most recent edition of The Commentator, a YC student wrote an article challenging the legitimacy of the three thousand year old prohibition against kol isha, the voice of a woman. Interwoven with logical leaps used to legitimate his idiosyncratic interpretations of the text was the underlying theory that halakha is subjective, a theory that almost never holds water.

Ironically, there is one situation where this theory is applicable, and it is quite similar to the halakha of kol isha. In hilkhot tzniut, Maimonides teaches us that there are two parallel halakhic standards to which halakha holds us. The first is objective ervah, literally nakedness as defined by the objective law of the Torah. These are the minimum requirements not to transgress Torah law. The second category includes any societal stringency taken on by the community as a whole, which by virtue of its acceptance becomes binding halakha for all Jews. Therefore, for a woman to wear a skirt above the knee (the minimum length) is assur, and additionally for a woman to wear a skirt above the ankles in a community such as Meah Shearim, which has adopted a stringency barring such behavior, is also wrong. What becomes obvious from this is that halakha can be subjective in as much as it can add to, but not subtract from, Torah requirements. (Rambam, Mishna Tora, Hilkhot Isurei Biah)

Torah by its very nature begs the question of whether we are expected to decide halakha based on study of its established laws, i.e. Torah, gemara, and halakhic works, or if we are to put more emphasis on the prevalent practice of the times. It is clear that prevalent practice in Europe was that halakha was taught in the home, defined by whatever the parents had done. What, then, occurs when we find our mesorah to be a minhag ta`ut, a mistaken custom?

Years after his death, it was determined that the Hafetz Hayim's kiddush cup did not meet the halakhic minimum required to make kiddush. Do we assume that the Hafetz Hayim was negligent in his observance? Obviously not. Do we, then, assume that the halakha must be somehow wrong because such a gadol acted differently, or do we assume that the Hafetz Hayim did not think to impugn his father's kiddush cup that had been his father's before him? Clearly, the latter is correct. The halakha is static, and unchanged by an error in transmission.

The initial claim presented is flawed on this basis. Levovitz's 'statistic' that "It follows that a large percentage of YC has seen or will see the musical 'Les Miserables'" is intrinsically flawed because it assumes that hearsay is accurate. All his information really tells us is that some percentage of 140 tickets were purchased for male YU students. It certainly does not establish even close to the supposed majority of YU's 1100 students that the article implies.

Let us assume for a moment that this assertion was even factual. Halakha is not subjective, and is certainly not determined by majority rule. I suppose that he would also advocate abandoning the archaic laws of shabbat and kashrut. Certainly the laws of family purity are antiquated in our modern society which has evolved to know more of objective truth than G-d who created it. But of course this is ludicrous, and I am quite sure that he would not advocate any such thing.

The article's presentation of kol isha issue includes errors too numerous to mention here, so we'll take a quick tour of the highlights. The most glaring mistake is the author's negligence of mentioning that the famous kulah of the Seridei Eish that two simultaneous voices are not heard separately. This notion, entertained by the gemara, applies, according to the Seridei Eish, only in a situation of kiruv. He also discusses the concept of ragil, that something that one is used to becomes, in some way, mutar. He cites this concept in connection to the gemara that says that a man can not say shema where he can hear the singing voice of a woman. Even according to the Arukh Hashulchan, who allows a man to say shema in earshot of a woman because of ragil, the woman would not be allowed to sing.

This is a classic example of the Rambam mentioned above. There are minimum parameters of ervah, and above and beyond those minimum requirements only what is mandated by society is necessary. If a behavior is accepted, or ragil, and meets the minimum halakhic requirements, then it is acceptable. But societal acceptability below those requirements does not mitigate acting in such a manner. The naked body of ones own non-niddah wife is ragil to him, but he may not say shema while she is naked in his view.

Here is the basic halakha, not a kulah-search, as presented in Levovitz's article. The gemara says " kol b"isha ervah." The Shulchan Arukh brings down the same statement, as does the Rambam, and they both bring down a key clause that has gone unnoticed. The basic halakha is that a woman may speak to a man without committing an issur, but that any use of the female voice to be sexually provocative is assur. What both the Shulchan Arukh and the Rambam add is "V"davka im sharah," "definitely if she sings." One instance that has the objective quality of being sexually provocative is that of a woman singing, which is thus assur.

The article asserts that if a woman's song is to be objectively provocative then it is "thus dirty and unethical." To introduce such qualitative analysis which is utterly without basis is dangerous. While it is true that the Torah always considers a woman's song to be seductive, it does not follow that this act is therefore dirty an unethical. A hammer can be used to build; it can also be used as a murder weapon. A woman's voice is also a tool. While it is not physically dangerous, it, like all other forms of ervah, can either be used to dehumanize or to make meaningful relationships stronger, to build or to destroy. Don't make statements like, "In this day and age, the idea that … is insulting and dishonorable," or, "Anyone today who thinks that … must severely out of touch with western reality." Rather, question why society has fell to such a level in which the very tools that Hashem granted in order to sensitize us to the power of our sexuality, are being portrayed as archaic if not used to destroy that sensitivity.

I consider myself Modern Orthodox. I also consider the ideal of Modern Orthodoxy to have failed in practice because we have not learned that Torah is not subjective. The synthesis of modernity and Torah is necessary for the Jew to accomplish his mission in the world of or lagoyim, and is key to a true understanding of Torah. Realizing this goal is for the Jews to be the uniting factor that forces secular society closer to Torah ideals, and not vice versa. When pop culture becomes more important than what the Torah thinks, then that synthesis has failed. JFK implored the American people to "Ask not what your country can do for you. Ask what you can do for your country." On the religious level, Torah is not about what is convenient or accepted in modern society; it is about halakha and subservience to our Creator. We ought not ask what we can do to make Torah fit our needs, but we can do to make our needs fit Torah.

Noach D. Roth

SSSB '00

To the Editor:

The article on Kol Ishah illustrates what happens when we extrapolate incorrectly from sociological norms to the realm of Psak Halakha. The flawed major premise is that many ritually observant people violate halakha, therefore, the halakha in question has no operative force. Would the author reason that the IRS has no application because many people cheat the government?

Regardless of the well researched discussion, I am dismayed that this article was published without the caveat that no Rosh Yeshiva had approved the content, or that the author had discussed these issues with either his rebbi or posek. The facts are that the media are pushing the edge of a moral envelope in advertising, content and orientation. I look forward to a Commentator article on why the bulk of our contemporary media, for reasons beyond the limited issues of Kol Ishah, are a major challenge to and cannot be reconciled with the goals of Torah U'Madda.

Steven Brizel

YC, JSS '76

To the Editor:

As an NCSY advisor, I have faced the 'mythical' problem of Kol Isha on any number of car trips with the girls singing along with whatever they happen to be listening to. I always tell them not to sing in the car. And not because of Kol Isha but because of Pikuach Nefesh!! May I also be so bold as to ask for next issue's Heter to allow me Ervah that is "in touch with Western reality" and that would make President Clinton blush?

Aaron Leff

REITS '01

To the Editor:

I was disturbed by Mordechai Levovitz's analysis of the Kol Isha issue, for three very simple reasons:

a) Given the introduction to his analysis, Mr Levovitz's clear agenda was to be maikil (lenient) before conducting his research on the subject. Not surprisingly, he indeed found the kuloh (leniency).

b) His conclusion, that "in [his] humble and non-authoritative opinion...[kol isha] is nothing more than a halakhic myth," rings quite authoritative and brims with hubris. He implicitly suggests that every contemporary posek who disagrees with him on this issue is engaging in halakhic myths.

c) Mr. Levovitz will argue that this letter does not directly address the substance of his halakhic analysis, and therefore my criticism is flawed a priori. Yet, my criticism is not in the detail of the analysis, it is the very fact that he paskens on the basis of this analysis. Never having studied at YU, and only recently having discovered The Commentator's web site, I have a very naive question: Doesn't YU have any poskim? Isn't this precisely what they are there for? Isn't it sophistry to go through a subjective analysis of the halakhic literature before finding a predetermined psak?

Arnold Lustiger

To the Editor:

I would like to note that it was refreshing to read Mordechai Levovitz's article in The Commentator. I hope many rabbis respond to it and that such issues - illustrating clashes of modern perspectives with traditional stringencies - will continue to be openly confronted and assessed. The fact that various forms of "Orthodox" Jews lie on both sides of the kol isha fence only encourages this kind of individual evaluation.

Tzvika Nissel

YC '96

To the Editor:

Re: Kol Isha by M. Levovitz - that was quite an opus, but let's keep it simple. According to the article, the Talmudic text cited says that certain sacred religious acts should not take place against the background of a woman singing, because it interferes with the experiential sanctity of the act, just like one shouldn't say Shemona Esrei in a place that smells. The later citation by the Orach Hachayim expands the enumeration of religious acts, but stays within the confines of the Shema being both prayer and an object of study. Neither of these texts refer to instances outside the realm of religious sacred actions, such as entertainment or pleasure. All these later interpretations are tacking on asceticism where no evidence of original intent to prohibit exists. This exegesis proves to me once again the fallacy of creating mountains of prohibition from molehills, and then pulling one's hair out to try and rationalize around these monstrosities once created.

I should also note a particular comment of another reader to whom I forwarded this article. One paragraph in particular, with its reference to Reform and Conservative Jewish practices was particularly off-putting to that reader, and I agree with his point as well. There is something intellectually dishonest about fashioning ever-stricter halakhic requirements in response to the leniencies of non-Orthodox Jewry. Halakhic interpretation should stand on its own two feet and not just to the right of what stands next to it. In other words, if Reform and Conservative practices are truly outside the realm, they should be ignored rather than become the impetus for even more radical interpretations of halakha as a defensive reaction. Such a reaction only serves to further marginalize the halakhist in the long run, appealing only to those willing to go ever-further toward the Right in adherence to the person who issues such pre-emptive rulings.

Ivan Ciment

YC '87

Related Stories:

• Do You Hear the Women Sing? The Kol Isha Myth
• Mordechai Levovitz Responds