AND DEFINING MODERN ORTHODOX
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Noah Feldman’s article in the New York Times Magazine of July 22 created quite a stir within the Modern Orthodox community and beyond. Many responses were penned in letters to the New York Times, in articles in other newspapers and throughout the Internet. What was most interesting, though, may have been the spectrum of issues included in this myriad of responses, as well as the divergence of opinion. It would seem that Dr. Feldman’s article touched many nerves and in his presentation he challenged, sometimes in a most disrespectful manner, not just one, but many, of the basic principles of Orthodoxy. What I found remarkable and, perhaps, shocking, though, was his ignorance of the basic philosophical structure of Orthodoxy, in particular Modern Orthodoxy. Was this intentional? Did he, in his desire to attack the school that shunned him, choose to present Orthodoxy in a false manner so that he could deliver his critiques? If he actually believes that his understanding of the fundamentals of Modern Orthodoxy are correct, is this a result of his own weaknesses or was there an underlying weakness in Dr. Feldman’s education? If it is the latter, this is perhaps the most important issue for us to address.
The starting point of Dr. Feldman’s article was the shunning he experienced -- in response, at first, to dating a non-Jewish girl but later for marrying this girl -- at the hands of his alma mater, the Maimonides School of Brookline, Mass. He comments that, on a personal note, his former classmates were welcoming and warm whenever he saw them yet he was still dismayed by the official adverse response of the school. Rather than finding comfort in the reaction of his former classmates, though, he actually seems to have been further bothered by this divergence in response --from his classmates, acting in the personal realm, and from the school, acting in its official realm. In fact, this is often how Orthodoxy responds to situations where it does not wish to tolerate the sin but still wishes to be welcoming toward the sinner. For example, Orthodox shuls do not tolerate driving, even to shul, on Shabbat and this is evidenced by the closing of the synagogue parking lot. Nevertheless, in the very same shul, the person who drives will often be warmly welcomed by the membership even though it is known that this person drove. The fact that Dr. Feldman was treated in a similar manner should not really have been surprising, even to Dr. Feldman, yet it still bothered him. The answer is that he did not want Modern Orthodoxy to simply accept him as a person; he wanted Modern Orthodoxy to accept his behaviour. The strange thing, it seems, is he actually felt it should.
In an odd way, the crux of his presentation was a critique of Modern Orthodoxy for not living up to its own ideals (as he understood them). Furthermore, while he made decisions that were clearly problematic within the actual legal parameters of Modern Orthodoxy such as marrying a non-Jewish woman he seems to have felt that he was still striving to live up to these broader ideals and thus should still be embraced. He wrote not as an outsider critiquing another group but as one, wishing to be part of the group, hurt by the group’s rejection and not quite understanding the reason for the rejection. To us, the reason is obvious he intermarried. To Dr. Feldman, he thinks this is an insufficient answer; in fact, in his eyes, such an answer challenges the very essence of what this group should be. To apply the words of Rabbi Dr. Norman Lamm (in his response available at www.forward.com/articles/11308/), Dr. Feldman wanted his cake and to eat it too. The further problem is that he actually thought that ‘having your cake and eating it too’ is really what Modern Orthodoxy is all about and that this reflects a good, philosophically sound objective. His presentation was essentially that the present incarnation of Modern Orthodoxy is not doing this and thus does not meet the true ideals of this system. The fact is that Modern Orthodoxy is inherently not about “having your cake and eating it too.” The question is: how did Dr. Feldman ever develop the perception that it was?
To many, and it would seem that this would include Dr. Feldman, Modern Orthodoxy is about balancing or integrating modernity with tradition, specifically Jewish tradition. Presented in this manner, it is easy to understand why one could think that the goal of Modern Orthodoxy is “to have your cake and eat it too.” To many, Modern Orthodoxy is about being able to enjoy the benefits of modernity while still maintaining a commitment to Jewish heritage and teachings. It’s about compromise. (This is clearly how the charedi world, in its critiques of Modern Orthodoxy, sees it.) The two great pillars of what we would term present day Modern Orthodox thought, Rav Kuk and Rav Soloveitchik, would not only disagree but would be revolted by such a suggestion. (Why I refer to these two great luminaries in this manner and exclude others including Rav Shimshon Raphael Hirsch in this description is for a different essay. One will notice, however, that many of my thoughts on this subject also are evidenced in Rav Hirsch’s thought.) Modern Orthodoxy is actually a misnomer if it is understood to mean, simply, the integration of modernity and Orthodoxy. For both the Rav and Rav Kuk, the philosophies that they developed had really little to do with the vast, generic issue of the conflict of modernity and tradition (albeit that, on some level, this may have occurred). It was all about Torah. Their theological systems were not about compromise. Their teachings and systems were their understandings of the Torah ideal in itself and of itself. Reference to any modern perspective, thought or idea occurred with not only the permission of Torah but the direction of Torah. The goal of both these giants was to understand the directive of Torah and implement it, not to determine a method by which to integrate modernity with Torah (as this phrase would be understood simplistically). It was not to devise a method by which the Jew could “have his/her cake and eat it too.” This was, and is, Dr. Feldman’s mistake. The tension that he perhaps saw in the academic presentations of his school, which on the surface may have seemed to be issues of modernity and Torah, were not really so. Framing this tension as reflecting the conflict of modernity and Torah -- and defining the subsequent attempts to reconcile this conflict as methods by which to ease this tension -- is, simply wrong. It is all about Torah. The tension is solely within Torah. The conflicts are within Torah. The attempts to reconcile are, as such, solely attempts to understand the directives and wisdom of the Divine Torah. This is the objective of both the teachings of the Rav and Rav Kuk, although their manifested systems were different. Their uniqueness, and this is perhaps what set them apart from their contemporaries, was in their understanding of what was demanded in the challenge to comprehend Torah. They saw in modernity some expressions of Torah values (that others rejected) and they both considered these values in their thought but their goal was simply to understand and actualize Torah.
The topic of intermarriage is a good example to illustrate this point. Dr. Feldman essentially presents two issues within this topic, as questions of modernity versus tradition. First, he discusses the issue of universalism and particularism as one of modernity promoting human equality and tradition -- promoting national identity. Second, he introduces the value of romantic love with its correlative value of the personal relationship -- as reflective of modernity while the limits on sexuality with its correlative value of seeing marriage more in pragmatic and even nationalistic terms as reflecting tradition. Viewed in this manner, the rejection of intermarriage is simply the victory of tradition over modernity which, in his case, he somehow sees as overriding the essence of Modern Orthodoxy itself, thus his critique. It is not the fact that tradition will sometimes override modernity that is his problem, for he accepts this to necessarily occur within Modern Orthodoxy. It is the blanket rejection of intermarriage in totum, even when it emerges amongst individuals who experience the tension and dilemma, yet still feel the proper point of reconciliation is to intermarry -- such as himself -- that truly bothers him. The recognition of the underlying tension and dilemma by such individuals should still be acknowledged. Of course, Modern Orthodoxy in general must be against intermarriage but doesn’t it see that his intermarriage was different and, thus, he should not be rejected? (Perhaps, even, all intermarried individuals who strive to maintain a Jewish connection should be seen in such light and not rejected?) Doesn’t Modern Orthodoxy see that he experienced the tension of modernity and tradition and that his intermarriage was not a denial of the value of his background but, simply, his response to this tension and on that level should be respected? To him, Modern Orthodoxy is all about the contemplation of the tension of modernity and tradition and, yes, while Modern Orthodoxy will, prima facie, still render a conclusion on what is the proper response to this tension, real Modern Orthodoxy will still respect any result that reflects acknowledgement of this tension and emerges from thoughtful contemplation. His conclusion is that his intermarriage is in this realm and so Maimonides should still publish his family announcements. His critique, in that it does not, is that this school, while advocating for the recognition and value in the encounter with the tension of modernity and tradition, does not meet its own ideals. My critique is that he did not really understand the nature of the tension and the method of decision making to resolve it -- to which he was introduced. (I do hope, in a future article, to return to the general issue of how we should respond to the intermarried couple.)
The writings of the Rav and Rav Kuk are not about the tension of modernity and tradition. What they are about is the tension that exists inherently within Torah itself and that the true path to Torah understanding must travail through this tension. It is true that both saw new insights in the realm of Torah through their involvement with modernity but it was not, in their minds, that modernity introduced a totally new idea. All modernity did was highlight a concept that already existed within Torah, forcing one to see this Torah idea, perhaps, in a different light and accentuating, thereby, a new perspective on the tension that was already inherent within Torah between conflicting values. To the Rav, Hegel may have given language to the dialectic but the Rav’s understanding of the dialectic within Torah was not inherently tied to modernity. It was not a dialectic between modernity and tradition. It was the dialectic found within Torah itself an argument for understanding hashkafat haTorah that the Rav would have made to Rambam, Rabbi Akiva and, even, Moshe Rabbeinu, himself to talmidei chachmim in any generation. Many perceive the moral universe in black-and-white terms with a mitzvah, the positive fulfillment of a commandment, reflecting total good and an aveira, a sin, reflecting total evil. Maharal, Be’er HaGolah, though, writes: “If the thing is impure, it is impossible that it will not have some purity within it. Likewise, if the thing is pure, it is impossible that it will not have within it some impurity.” Torah does not perceive the moral universe the basic structure of human existence -- in black-and-white terms and thus its halachic conclusions cannot be described in such simplistic terms. Nevertheless, the halachic directive still has the force of a definitive conclusion. This is the essential tension of Halacha the process by which the uni-dimensional action emerges from a multi-dimensional actual reality. It was this idea that was axiomatic in the thought of both Rav Kuk and the Rav.
Within Torah, a myriad of values are deemed to exist, all with potential for positive expression and all with potential for negative expression. Rav Kuk stressed this point, believing that nothing could exist without the Divine spark; thus even behaviours and ideas that, overwhelmingly and usually, expressed evil still had to have some Divine spark at its root. Evil is actually the mis-application of a positive value or the incorrect prioritization of a value when considered in concert with the full myriad of values. Modernity, as such, when it yields conclusions that are contrary to the halachic conclusion simply is mis-applying a value or rendering an incorrect decision of prioritization but nevertheless, within this conclusion one could still see a value and some aspects of the Divine. Thus, what occurs in the realm of modernity could still offer Torah insight in that it can give new perspectives on the myriad of values that exist within Torah. This is why Rav Kuk had a more positive perspective on secular Zionism than the vast majority of his Torah colleagues. He, of course, would never condone the secularists’ violation of Torah but he still saw within their behaviours the value of Eretz Yisrael, albeit mis-applied and incorrectly prioritized. The value, as such, could still be studied and even, within limits, acknowledged not, though, because modernity was to be recognized but rather, simply, because the value was a Torah value, incorrectly applied but nonetheless part of Torah. Modernity still mis-prioritized and as such modernity was not to be acknowledged for its conclusion. Yet, modernity, in offering new insights in the elemental values of Torah did have some value not in what it did in conflict with Torah but rather in what it brought forth from Torah.
Allow me to reiterate this concept. The moral universe consists of a myriad of values (and drives). The human being is continuously called upon to make decisions about which values to apply (and which drives to follow). The way that most of us (humanity) make such decisions is by declaring certain values (and drives) good, and certain ones evil and then just following the emotions of the deemed “all good” drive. The result is that behaviour is either all good or all bad, with the term, necessary evil, thrown in to describe a necessary action that is motivated by the ‘all bad’ value (or drive). This is not the perception of Torah. Within Torah, all drives and values are inherently necessary and thus inherently all have the potential to manifest good. Evil occurs when a value (or drive) that should not have priority assumes priority and a behaviour that should not be undertaken is undertaken. Evil occurs in the decision, in the incorrect weighing of values, that allow a value, which should not direct the action, to direct the action. As such, any action inherently contains the expression of a specific value and the expense of another value. As such, no action is completely good or completely evil. The good action still includes the submission of a value that otherwise has purpose. The evil action still includes the manifestation of a value that, in a different case, should be manifested. The Rav’s dialectical system highlights the tension in reality as we attempt to find the correct value to express and actualize in a given circumstance. The first step in comprehending the works of Rav Kuk and the Rav is recognizing this structure of human existence.
Of course, within this context, decisions still have to be made, black-and-white actions have to be undertaken. This process of decision making is, in fact, the halachic system for the Halacha is, ultimately, the Divine instruction on how we should determine the correct behaviour in our physical, zero-sum world -- given this explosion of conflicting values which can co-exist in the spiritual world and the realm of thought. Modernity, often, projects a similar view of the moral universe as embodying conflicting values and this, at times, creates greater confusion as it yields a model of relative morality. Make no mistake, the Rav and Rav Kuk did not define the moral universe in this way because of modernity. To them it was imbedded in Torah, in the thought of Chazal and the Torah Sages throughout history. And their deviation from modernity was not because they balanced the issues a bit differently; it was because the overriding value of the Torah system is the application of Halacha in rendering the proper decision. Notwithstanding the concept of Eilu v’eilu, and the acceptance of differing opinions with Halacha, this is not a form of relative morality. The halachic conclusions, each one, while in disagreement, are still viewed, individually, as the definite conclusion of the rigours of the system and process of Halacha. Dr. Feldman erred for he misunderstood the tension to be a product of modernity when it was, within the basic thought of the pillars of Modern Orthodoxy, within Torah itself. And he further erred in assuming that his conclusions, in that they recognized the dialectic and the tension, should be equally respected, even though he did not apply the process of Halacha, which is the fundamental principle of all Orthodoxy.
The issue of universalism and particularism did not emerge from modernity; a review of the book of Yonah with its various commentators will reveal that this was the essential issue within this book of Tanach. The struggle of how to balance the equal value of all human beings and the special status of Israel seemingly, conflicting and contradictory values -- is found throughout the Torah literature. And do not think that the value struggle of intermarriage is also new to the modern age; it is very much part of the depth of the Pinchus story (Bamidbar, chapter 25) as Zimri referred to Moshe Rabbeinu’s marriage to Tzipora, born a Midyanite. The role of romantic love and the personal relationship is also not a new question arising from modernity. One need only hear the public reading of Esther 5:16 on Purim in the tune of Eicha to be reminded of the sadness in Esther choosing the value of the nation over the value of her personal love. In her situation of conflicting values, she had to make a decision and she made the right one; but we, nonetheless, still cry over the value that had to be placed aside and her loss in not actualizing this value. Again, while modernity may highlight this value issue and bring it to the fore in our contemplation of Torah, the issue, and tension, is fully within Torah. Dr. Feldman’s intermarriage was not rejected because Modern Orthodoxy lost its sensitivity to the tension of modernity and tradition which, if it had maintained, would have led to greater acceptance of his personal decision. The tensions that Dr. Feldman describes are actually, from the perspective of the philosophies of Torah that underlie Modern Orthodoxy, not the result of the tension of modernity and tradition. They are inherent in the world of Torah; and, indeed, as part of the mitzvah of limud haTorah, we must recognize these inherent tensions, conflicts and contradictions within the moral universe. Dr. Feldman’s analysis is rejected because he does not recognize this. More importantly, though, Dr. Feldman’s decision is given no credence because he ignored the other teachings of these pillars of Torah thought (the Rav and Rav Kuk). While recognition of the dialectic can render sadness, on one level, in the performance of a mitzvah and thereby indicates an acceptance of differing underlying values in the moral universe the final mark of the Divine Will is that we render our decision according to the process of Halacha. By not recognizing this necessary element, Dr. Feldman’s decision is indeed to be rejected. The fact that he saw the dialectic does not carry weight in that he did not apply Halacha as the method by which to solve it. Many develop simple value structures to support the halachic conclusion. It is easier to advocate against intermarriage if one does not value universalism or romantic love. At the core of Modern Orthodoxy is the recognition that such a simplistic vision is not only incorrect but violates the very essence of Torah. Behind the clear halachic directive is a storm of conflicting values that may pull at the decision but nonetheless the clear halachic decision is paramount. (Of course, there is even greater complexity in this model as Halacha further directs the merger of human reason with the Divine information and the necessary differences in conclusions that we term machloket, disagreements. See, also, The Dialectic, Introspection 5766-1.)
The problem may be that Dr. Feldman does not really seem to understand the very nature of Halacha. Nothing was perhaps more upsetting in his article than his presentation of that well-known fodder for anti-Semitism that Jews are not allowed to save a non-Jewish life on Shabbat. As, again, Rabbi Lamm correctly pointed out, this is foolishness. The practical law that must be applied is, in fact, that a Jew is required to save a non-Jewish life on Shabbat. What Dr. Feldman actually demonstrated is his complete lack of understanding of the very nature and process of Halacha.
Dr. Feldman was heavily criticized for this presentation. More than anything, though, it showed that he does not really know how Halacha works, which could possibly explain why he didn’t really recognize its centrality to Modern Orthodoxy. Halacha is not just simply the collection of decisions that Jewish legal scholars have rendered over the years, i.e. the practices of tradition. Neither is it solely a collection of how these scholars determined proper practice when tension between values existed. Disagreements between Halachists were not simply a demonstration of differing conclusions when there were tensions. If this was true, Dr. Feldman could wonder why his reasoned conclusion could not be considered a new solution. Halacha is a system, a unique system of thought that both teaches us about reality and gives us a method by which to render decisions within this reality a system, I should add, like no other for its methodology demands the consideration of principles and processes that only exist within the parameters of its realm. This is not the place to present a description of halachic methodology but suffice to say that, while Halacha pushes one to see the breadth of the conflicting values of the moral universe, it offers a method of determining the proper conclusion by leaving this realm and applying different constructs in rendering a conclusion. The very case that Dr. Feldman so incorrectly presented, the question of saving a non-Jewish life on Shabbat, can aptly illustrate this.
Dr. Feldman is, indeed, correct that there does seem to be a law of this nature “on the books.” What he does not understand is that having a law of this nature “on the books” says nothing about actual practice, i.e. expected behaviour, or the overall value perspective of Torah. T.B. Sanhedrin 71a states the law of ben sorer u’moreh, the wayward son (Devarim 21:18-23), never happened and will never happen. Why then, the gemara asks, was it presented? The answer: to learn and receive reward. Many statements of the Written Torah, presented in the language of a directive, were never intended to be implemented as presented in the text. Rabbi Tarfon and Rabbi Akiva, in T.B. Makkot 7a, state that if they were on a Beit Din that tried capital cases, they would never have executed anyone (always finding a way to conclude innocence). Yet, the command upon Beit Din to execute when appropriate is a mitzvah, see, for example, Sefer HaChinuch, Mitzvah 47. Were Rabbi Tarfon and Rabbi Akiva attempting to avoid a mitzvah? Technically, since the judgment was for innocence, they were not but weren’t they subverting the spirit of the law? Weren’t they, more fundamentally, subverting justice? Isn’t there a value in the Biblical command that Rabbi Tarfon and Rabbi Akiva were not acknowledging? Rabbi Tarfon and Rabbi Akiva understood that there was indeed a value in the Torah directive but saw this command, conceptually, as presenting this value in a vacuum, just as the command of ben sorer u’moreh presents a value in a vacuum, so that we know this value. But as the value enters the realm of reality with its conflicting values, the question is no more whether the value is to be recognized and understood part of the realm of limud haTorah but is it to be actualized? Is it to have priority? That is the realm of halachic reasoning with its distinct methodology that, mockingly, has been referred to as “splitting hairs” but, in truth, reflects a system that contemplates the complexity of life and the myriad values that must be considered in actually directing proper action. Rabbi Tarfon and Rabbi Akiva understood that there was an implicit value in executing the capital transgressor, as stated in the verse, but he also understood that the halachic system inherently would weigh the place of this value, in concert with the myriad of other values, in determining how the value should be actualized. He understood that the final directive emerges not from the single verse, speaking in a vacuum, but from the process of Halacha that engulfs much more. His statement that he would never have executed anyone is a reflection of this more encompassing recognition and an understanding of how the overall system works, including the details of the evidentiary and procedural rules.
This reflects the relationship between Torah She’b’al Peh, the Oral Law, and Torah She’b’ktav, the Written Law, which is often misunderstood. Within Torah there are often statements made to reflect pristine values, values that we should recognize in and of themselves, viewed, as stated above, in a vacuum. Then there are statements that indicate the conclusion that we must act upon, that are the conclusions of the detailed analysis of the halachic system and reflect the place of a value within the myriad of Torah values. Of course, we must understand the effect of upbringing upon a child and the theoretical possibility that, in order to protect against greater evil, we, again, theoretically, may be called upon to destroy one who demonstrates this potential even though he has not yet actualized it the case of ben sorer u’moreh but when this value merges with other values, ideas and concerns, the halachic conclusion will be that the actualization of this value will not come to fruition. Rabbi Tarfon and Rabbi Akiva are saying that, of course, as is so often evidenced by the directives in the Chumash itself, there is a value that violations of Torah often should demand the death penalty, yet, again, as this value merges with other values, ideas and concerns, his understanding of the halachic system yielded the result that this value should not be actualized. The same is true with the case of saving a non-Jewish life on Shabbat. While this pristine statement in a vacuum is within Torah She’b’al Peh, it also can be seen in a similar light as the two Biblical commands noted above. It has a value in a vacuum that we must learn but the halachic system never permits its actualization in halachic practice. This is not “hair splitting”. It is not a way to get around the law. It is fundamental to the very essence of Halacha, just as Rabbi Tarfon and Rabbi Akiva stated that they would never execute anyone. (Of course, the system is actually more complicated as there are also situations where the application of halachic reasoning, as employed by Rabbi Tarfon and Rabbi Akiva in this case, can be challenged, and indeed, in various circumstances, is challenged, as a method to ignore the spirit of the law. And even such a determination may yield a machloket, such as in the case of the heter Shmittah, the methodology whereby the land of Israel could be worked on the seventh year. Part of the issue, although far from being the only issue, was whether the advance of halachic arguments by which to avoid the prima facie law were expressions of the Torah’s real intent or attempts to circumvent this real intent. This discussion is, though, beyond the parameters of this article. The key, for our purposes, is to recognize that all these issues are inherent to the halachic system, not outside it.)
Many point out that the prima facie law regarding saving a non-Jew on Shabbat may be saying more about Shabbat than non-Jews and, while the final halachic conclusion will be to save a non-Jew, this prima facie law imparts an important lesson about Shabbat. It is my personal view that this law must be read in conjunction with another halachic statement that a non-Jew who keeps Shabbat is deserving of death (see, Rambam, Mishneh Torah, Hilchot Melachim 10:9). Again, in that case, this is a prima facie statement that is not meant to be actualized (in fact, is clearly stated as such), yet the statement has tremendous weight in teaching us about Shabbat and the distinction between Jews and non-Jews. At issue, in all these matters, is this distinction, and the fundamental question of why the Torah presents distinct moral systems to different segments of humanity. Many Jews think that in stating that our laws only apply to us, and thus we do not compel a non-Jew to follow Torah, we are expressing tolerance. Many non-Jews, though, don’t quite understand; if it is proper, moral behaviour, why is it not declared that the non-Jew also should abide by these laws? This is the crux of the philosophical issue. Viewed in terms of an important teaching in this regard, the prima facie laws that distinguish between Jew and non-Jew regarding Shabbat have great importance. Of course, though, in terms of actualization, as this law hits the reality of considering all values and voices, in the detailed analysis of the halachic system, it will not set the concrete behaviour policy actually for many reasons.
This was Dr. Feldman’s great fault and great weakness. In perceiving the processes of Modern Orthodoxy as simply reflecting the tension of modernity and tradition experienced by many faiths and cultures and attempting to find a solution as others do, he missed the entire lessons of his Torah education. While modernity may highlight some of the issues, the actual process is all within Torah. Dr. Marc Shapiro, I remember, quoted the Sridei Eish as stating that he embraced the study of modernity for it illuminated new insights in limud haTorah. By highlighting new perspectives on the values of Torah and presenting new tensions, modernity can expand our knowledge of Torah. But it does so, as part of Torah for this is what Torah is about. Dr. Feldman, somehow, didn’t get it. He further didn’t understand that the halacha is not simply the voice of the tradition. It is the conclusion to the conflict and the tension itself the Divinely decreed conclusion. Even as these halachic conclusions, indeed, emerge as the product of human reason and analysis, they do so as part of the Divine Torah again, for that is what Torah is about. Again, somehow, Dr. Feldman didn’t get it.
Was that his fault? Was it a problem in the educational system? I don’t know. But from Dr. Feldman’s article we must now understand what we have to do. In Nishma, we have a slogan that “Life is Complex, Decisions are Complex. Torah is Complex.” It is time we started to clearly present this. Modern Orthodoxy is not just about thought and intense study because it is trying to work out how we can be modern and Orthodox. It is, as all Orthodoxy should be, about thought and intense study because that is what Torah is about…and that is not because of modernity or secular studies or anything outside of Torah. While that which is outside of Torah can further the Torah study, it is still all about Torah, by itself and for itself.
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