One would think it a safe general premise that the laws of the Torah and the Rabbis that are applicable to all are to be applied in a similar manner for all Jews and Jewesses. So while it is a safe premise to entertain and it is generally found to be true, what will interest us here is where in Talmudic precedent this is not necessarily the case and what we can learn from this about Rabbinic Judaism.
The Babylonian Talmud in tractate Kiddushin 17a relates a story where Rav Acha at a wedding took the bride on his shoulders and danced with her. His somewhat perplexed rabbinic colleagues, while understanding of the mitzvah to bring joy to the bride and groom could not quite reconcile how he could have a woman on his shoulders given the distinct possibility for sexual stimulation this act could enjoin. They asked whether such Dionysian Mitzvah performance was permitted them as well and he responded, ”If your experience of her is like a beam of wood then fine but if not no.” Here we see that in the eyes of Rav Acha what the Halakha is in this particular instance is relativistic: it depends on the level of the person. It is also interesting that Rav Acha left the matter to their independent self-awareness and honesty and did not ask them to surrender their autonomy in this matter to an outside authority.
Another example found in the Babylonian Talmud tractate Shabbat 13a regards Ulla who, when coming home from the house of study, according to one version would kiss his sister on her chest and in another tradition her hands. The Talmud as a lead-in to this anecdote is discussing what is the appropriate distance and boundaries between persons who are sexually forbidden to each other. The Talmudic direction is generally of the view that distance and abstention from physical contact is both necessary and appropriate. The case of Ulla’s actions are brought to bear as part of the dissenting school of Rabbi Pedat. In his view the issue is not physical contact or proximity per see but rather romantic or sexual intent that accompanies such physical contact and proximity. Of interest is that attributed to Ulla himself, is a teaching that states that any physical contact with a person sexually forbidden one is prohibited!
Tosafot, in his commentary on this anecdote (s.v. Upliga Adiydeh Adiydeh), explains that Ulla was known to be a righteous person and he knew himself well enough to know that this loving physical contact with his sister would not lead to inappropriate sexual stimulation. Tosafot references as proof our story of Rav Acha dancing with a bride on his shoulders, perhaps even more sexually stimulating in potential, as proof that such close physical contact is possible without inappropriate sexual intentions by a man of purity and attainment. In light of this teaching in Ulla’s name, the restriction of physical contact must be regarded as being applicable for those who have not attained this level of loving and pure intent and we have a second example where Halakha is relativistic. The spiritual level of the person involved dictates what the Halakha is. It should be pointed out that the 16th century codification of Jewish law, the Shulchan Arukh, does not retain this relativistic bent and sees as forbidden and problematic all such contact between siblings. (Even Ha’Ezer 21:7 and Chelkak Mechokek note 8)
Moving on from these Talmudic anecdotes, there is as well in Rabbinic Halakha an established concept called Halakha Ve’Ain Morin Kain, ”It is the Halakha but we do not instruct it [to the public].” In these limited instances, a Torah scholar or learned person is permitted certain behavior the Halakha allows but these permissive rulings are not to be given or modeled to the public, lest it lead to undesirable results in the form of sin due to the possibility of the ill-applied implementation of the ruling. (see Encyclopedia Talmudit Vol. 9 Halakha Ve’in Morin Kain)
One relevant example of this regards wearing Teffilin (Phylacteries) in the evening. The Halakha is that this is permitted if one donned them prior to the evening but this Halakha is not to be taught lest a person fall asleep and lose control of their body processes while they are on which is forbidden by Halakha. (see Shulchan Arukh Orach Chaim 30:2) The Talmud records an incident where Rav Ashi was wearing Teffilin in the evening and when asked about this said this was only to guard against their being lost. This was a white lie to prevent the onlooker from doing the practice himself and potentially disregarding the Halakha of falling asleep in them. (see Talmud Menachot 36b and Shitah Mekubetzet ad loc. for a more complex read of this Talmudic debate and anecdote)
We also in Rabbinic Halakha have a concept of an Istinis: a sensitive or delicate person who is permitted certain leniencies others are not. Thus the Mishna in Berachot 2:6 records that Rabbi Gamliel washed himself in warm water on the night that his wife died which was understood to be forbidden. When respectfully questioned by his students he replied, ”I am not like everyone else I am a sensitive person.”
While in general Halakha is not relativistic I believe there are some lessons we can abstract from the above precedents.
One lesson that we can learn from the Talmudic precedents that deal with physical contact is to know who one is and not to be inhibited by social convention and expectations. Rav Acha in taking the bride upon his shoulders was in his spontaneity expressing his authentic and pure joy and was able to do so while maintaining a clear intent. How often do we interrupt ourselves from doing what we are called to do because of what others might say or think? How much do we live through the eyes of the other instead of in our own experience?
One lesson we can learn from the principle of, ”It is the Halakha but we do not instruct it [to the public]” is that we need to concern ourselves with how our actions that we model will be applied by others. One of the lessons learned in the cross-fertilization of the 60’s and Hassdisim was that not everything that is theoretically, according to some opinions, permitted by the Halakha with regards to sexual relationships should be done. At times various Hassidim followed the example of their Rebbe in this regard and it led to tragically broken marriages, destroyed reputations and disillusioned souls.
In the example of Rabbi Gamliel washing himself in warm water on the night of his wife’s death due to his sensitive disposition this leniency being an exception in his view to the general Halakah. While we cannot indiscriminately apply this across the Halakhic board, I do find a value in considering in what ways do we need to know what our sensitivities are in relation to Halakhic observance and its demands and finding ways within Halakha to work with them. There is ample rabbinic concern about the counter-productivity of Halakhic stringency voiced in the rabbinic phrase, ”It is a stringency that leads to a leniency.” (Talmud Bavli Pesachim 48b,Yevamot 30b, Bava Kama 11a and Niddah 24b) The rabbis understood that sometimes the insistence on halakhic stringency will drive an individual or group to sin euphemistically termed a “Leniency”. This is a concern that our generation and those committed to Halakha would be well advised to consider.
Ultimately these examples reflect a rabbinic regard for individuality and autonomy and in this they are distinctly resonant with modernity. It is not learning Torah or observance of the Halakha that leads to the obscuration of the individual but rather it is who one learns Torah from that potentially is the concern. Rabbi Menachem Mendel of Kotzk, known as the Kotzker rebbe, was once asked who was his greatest teacher. He replied, ”The person who taught me the Aleph Bet! Every other teacher taught me what to think; this one taught me this is an Aleph and this is a Bet [the foundations with which I could think].”