Making Fences Around the Torah

November 24th: Vayetze
Rabbi David E. Ostrich

One of the most curious phrases (and concepts) of Rabbinic Judaism is making a fence around the Torah (asu s’yag latorah). It is found in the very first passage of Avot (Pirke Avot) and is part of the “genealogy” of Rabbinic Authority: “Moses received the Torah from Sinai and committed it to Joshua, and Joshua to the elders, and the elders to the Prophets, and the Prophets to the Men of the Great Assembly.  They said three things: Be deliberate in judgment, raise up many disciples, and make a fence around the Torah.”

 Just as a fence around a yard or house protects it, many of the Rabbinic innovations were designed to protect the commandments in the Torah. These developments were not seen as additions or subtractions (prohibited by the Torah in Deuteronomy 4.2 and 13.1), but rather as aids in maintaining the integrity of the mitzvot. I like to think of it with an image from my childhood. Many long driveways were lined with oak trees, and often the oak trees had tiny picket fences around them. A careless driver would break the fence and not the oak tree.

Of course, it is important to remember that the fences are not the oak trees—that the Rabbinic enhancements are not of the same status as the mitzvot themselves. For this distinction, the Talmud speaks of some rules as being d’Oraita, revelatory (from the Torah itself), and others as being d’Rabbanan, innovations of the Rabbis.

Many debates have been conducted over the last 2000 years about building such fences—and how sacrosanct they are once they have been standing for years. As you can imagine, the struggle since the Enlightenment over progressive Judaism (Reform, Conservative, Reconstructionist) has often been concerned with these developments—these fences—that have defined much of our Jewish sensibility.

Rabbi Rami M. Shapiro gives an interesting view of this ancient notion in his 1993 book, Wisdom of the Jewish Sages: A Modern Reading of Pirke Avot. He rewords the Avot 1.1 advice as follows: “Make a fence for Torah. Distinguish historical form from timeless Truth; dare to change the first to uphold the second.”

Historical Form? Timeless Truth? What in a tradition that prizes tradition is negotiable? What are reasonable reforms? Under what conditions is reform appropriate—and even authentic? How can one throw out the bath water without injuring the baby?

An example comes in the way that this week’s Torah portion describes a Jewish world very different from our own. This is the Parashah where Jacob leaves his home and journeys to his relatives up in Syria. Falling in love with his cousin, Rachel, he works for seven years to earn the bride price to pay for her hand. When it comes time for the wedding, however, Uncle Laban has other plans. He gives Rachel’s sister Leah to Jacob as a wife, and, in a sequence which begs for explanation, Jacob does not realize that he has wed the wrong sister until the morning after their marital night. The initial Jacob-centric sense of the narrative makes us feel bad for Jacob since he was cheated—and has to work an additional seven years for Rachel, his first choice. However, our main sympathies ought to go to Leah, fraudulently pushed into a marriage where she is never truly loved—and forced to compete with her sister for the affections of their mutual husband.

Fortunately, this kind of marital arrangement is no longer our Jewish way. For one thing, the consent of the bride was mandated in Rabbinic Law. For another thing, there is now an inspection (b’decken) before the ceremony. And, the ancient custom of polygamy was discontinued. It was an interesting Halachic decision. Since the Patriarchs and Kings of Judah and Israel had practiced polygamy, Rabbenu Gershom (960-1040) did not feel it appropriate to forbid it—and thus disrespect the Tradition. So, working with the fence around the Torah concept, he merely constructed a “fence” around the Biblically allowed practice of polygamy by enacting a temporary ban (for 1000 years). This temporary ban seemed permanent, but it so happens that it expired around the year 2000. So, is it still in force? Some continue to follow it as a universally accepted custom. Others say that 1000 years is not limited to 1000 actual years—that the term implies permanence.  

In any event, the point is that the seeds of what we now call egalitarianism and feminism were already beginning to germinate in antiquity. Fairness and respect and compassion and autonomy are timeless truths that militated against customs that once seemed unchangeable. As our religion has developed through the ages, we see a gradual changing of the fences when new or different fencing became necessary. The social forms or mores—historical forms—that once included forced marriage and polygamy were changed as we gradually worked on the timeless truth of respect and autonomy for each individual human being.

This reminds me a Midrash taught by Rabbi Eugene Mihaly of the Hebrew Union College. The text is the story of Moses descending from Mount Sinai with the Ten Commandments. He is aglow with inspiration and holiness, but the sight of the Israelites worshipping the Golden Calf throws him into a fit of rage. He casts the tablets to the ground and shatters them into hundreds of pieces. Other than the obvious anger or a sense that such idolaters do not deserve God’s commandments, Rabbi Mihaly quotes the Midrash and posits a slightly different scenario. “Why did Moses cast the Tablets to the ground?” he asks. “To teach us that, sometimes, in order to save Torah, one must destroy Torah.” That is why, when God refers to the incident of the Tablets “asher shibarta—which you shattered,” we read it as “ashray shibarta—I am happy that you broke them.” Sometimes, in order to save Torah, one must destroy Torah.

As Rabbi Shapiro puts it—and as our Tradition has shown over and over again, making a fence around the Torah can involve distinguishing historical form from timeless Truth, daring to change the first to uphold the second.