On Modern Orthodoxy, 'Winks', and the Use of Super-Considerations

With God’s help

The Orthodox Forum

The example of the prohibition of 'courts'

Michael Abraham

introduction

In this article, I would like to examine the difficulties that arise in the world of a modern Orthodox Jew, who is on the one hand committed to Halacha and on the other hand committed to external norms (moral, national, or other) whose Halacha, and perhaps also Torah, status is unclear. I would like to point out a line of thought that many tend to ignore, even though it is certainly present in the tradition of Halachaic thought: the use of overarching considerations, what is sometimes called the "spirit of Halacha," or "meta-Halacha."

The article is not fundamentally an academic article, and perhaps not even a classic halakhic-Torah article. My purpose here is mainly to express a reasoned personal position on this subject. I do not intend here to review the entire subject from its halakhic sources, although quite a few halakhic sources will also be mentioned here. And I certainly do not intend here to engage in detail with sociological diagnoses of religious Zionism, Harediism, and modern Orthodoxy, although I will also make some use of these. The purpose of the article is to raise this option, to briefly justify and substantiate it, and also to point out its connection to the modern-Orthodox way of thinking.

I will begin with three examples from our public debate that illustrate this tension and guide us to the beginning of the discussion: the prohibition of arqaot, the acceptance of mitzvot upon conversion, and the saving of a gentile on Shabbat. I will then comment on the differences in the way different religious groups approach them, and finally I will propose the alternative of overriding considerations. The article concludes with a discussion of questions of authority and substance in connection with the use of overriding considerations in halakhic law.

A. The courts as 'courts of gentiles'

In an era in which a secular Jewish state exists, quite a few tensions arise in the world of the Jewish faithful to the law. A prominent example of this is the question of how one should relate to the legal system in such a state? Are these 'courts of gentiles' (or 'courts in Syria', which according to some interpretations were served by Jewish judges)?[1], regarding which there is a strict prohibition against appearing before them and addressing them, or whether these are legitimate courts, or the law of 'accepting their aliyyahu', or the Seven Good Men of the City and the law of Demalchuta. This is an expression of a broader question of the attitude towards secularism and secularists in general.

Haredi society chooses the path of condemnation and negation towards the Israeli legal system, which greatly alleviates the problematic situation, but makes life very difficult (both morally and socio-economically). Such a path neutralizes the tension, because it gives up one of the two poles that create it (loyalty to the state and to the law). Admittedly, this path has serious consequences, in the form of violence that arises and there is no authority to deal with it, and in quite a few cases, despite the unequivocal ideology, Haredi institutions and rabbis, including very important and central ones, need the legal system (see the dispute at the Ponivez Yeshiva, the takeover of the newspaper Yated Ne'eman, and many more).

In contrast, the religious-Zionist path is not willing to give up these two poles, and therefore it is in a built-in tension. This tension gives rise to various solutions, some a priori and some ad hoc. The common side of all solutions is that they require tools from halakhic thinking, sometimes in quite creative forms, to allow us to live within and with this tension. This way of relating is problematic, and sometimes it seems dishonest. The halakhic conclusions do not seem convincing, and a feeling is created that we are living with a 'wink' (meaning we know that our interpretation is not the true conclusion that is required from the halakhic sources, but we have no choice).

B. Receiving the commandments of conversion

The issue of the 'wink' arose in the context of the debate that has been taking place in recent years on the question of conversion in the special courts and in general. Rabbi Yehuda Brandes in his article, The Renewed Conversion Polemic, entree 21, 5768, insists that all the leading poskim are not willing to back down from the requirement to receive full mitzvot upon conversion, but in practice most of them do not really implement it. He describes it as if conversion is done 'with a wink', meaning that both the convert and the converts know why the convert is here, and what he is going to do in the future in terms of observing mitzvot, but they remain silent and play a game of lenient halakhic interpretation. They supposedly use halakhic tools to anchor their course of action, even though there is a feeling that this is accompanied by a wink (from my conversations with some of them there is of course a vigorous denial, but the impression created, and not only mine, is clear). Rabbi Brandes in his article argued that it is better to put on the table the position that stands (in his opinion) behind the halakhic approach of the conversion courts: for reasons of nationalism and various social problems (including considerations of justice towards Jews who could not maintain their Judaism under oppression, the so-called "seed of Israel") we do indeed give up On accepting a commandment as a condition for conversion.

I personally strongly oppose this proposal, and I even published about it in the issue. entree Which was followed by a long and detailed response that sparked a heated discussion.[2] The reason for this is that in my opinion this proposal has no halakhic basis. But at the same time I completely agree that the problematic and the tension certainly exist, and therefore the need arose to examine such considerations in order to resolve them. As stated, in my opinion this is not possible in the field of conversion, but perhaps it is possible in other areas, as I will argue below.

C. Saving a Gentile on the Sabbath

A similar predicament arises with regard to the question of saving the life of a Gentile by desecrating the Sabbath. Even there, the halakhic law that prohibits this seems unequivocal, but the moral and ethical tension it arouses in a modern Jew is unbearable.[3] The accepted solutions of the "paths of peace" do not provide a real answer to this predicament, and Rabbi Prof. A.S. Rosenthal expressed this in his speech at the founding of the Movement for Torah Judaism, as Rabbi Benny Lau described in his article, "The Appearance of Truth" - Rabbinicism and Academia in the Writings of Rosh Rosenthal - on Saving a Gentile on Shabbat, introduction 13, 5763. Here too I wrote a response that negates his way of relating,[4] But once again I find myself sharing the fundamental tension, and therefore forced to examine where and to what extent this way of thinking can still be used.

In passing, I would like to point out that in the articles Is there enlightened idolatry?[5] I argued that this halachic conclusion, which seems completely clear, is not binding in our day. I showed there that one can rely on the consideration of the Meiri in the Yom, where he writes that the Gentiles of our day are moral to a reasonable level, and therefore all the sanctions imposed on them by the Torah and the Sages (including in the laws of the Torah) no longer apply to them (of course, we are not talking about prohibitions on marriage and prohibitions on ritual utensils, etc.). In my article, I showed that this is an interpretation that the Meiri offers of these prohibitions and not a rabbinical ruling that uproots them for the time being, and we will return to this point at the end of the article.

What does all this have to do with modern Orthodoxy?

Of these three examples, the first and second relate mainly to the tension between Halacha and social-national values and the State of Israel, and the third to the tension with universal moral values. Conversion creates a national social problem, and is less concerned with universal moral questions. The attitude towards the legal system also concerns mainly social and national questions. In contrast to these two, the third question of saving a Gentile on Shabbat is a question of universal morality. Therefore, it is not surprising that the public domain of religious-Zionist thought deals quite a bit with the first two questions, but much less with the third.

At this point, a distinction can be made between Modern Orthodoxy and Harediism. The mainstream of Haredi jurists is not at all troubled by these questions, because they are not in the bipolar tension I described. And what about the religious Zionist jurists? These also generally employ the usual halakhic methods, similar to the Haredi position. They are reluctant to depart from the framework and method of classical halakhic discussion. Therefore, the discussion about the status of the courts is conducted as a regular discussion within the framework of the world of halakhic concepts, and the same is true for conversion. There is also no overly broad discussion about saving a Gentile on Shabbat (although there are exceptions).

Here it is appropriate to point out that the concept of 'modern Orthodoxy' is a different concept from the concept of 'religious Zionism', although in Israel there is a widespread confusion between the two. I will not go into the details of the difference here, I will only say that in my understanding, modern Orthodoxy advocates a change in the rules of Orthodoxy itself, and a commitment to universal values, and not just a sympathetic attitude towards Zionism and nationalism, as is common in other religious Zionist thought. A person can be a religious Zionist as strict as a Mehadrin, and at the same time have completely normal classical halakhic thought. Religious Orthodoxy advocates a more open halakhic thinking, which is also attentive to the spirit of the times. Therefore, it is precisely within a conceptual framework such as modern Orthodoxy that all the tensions I described arise (not just those concerning nationalism), and it is precisely within this framework that the treatment of all these tensions may include taking into account overarching considerations, even though they appear to be exceptional considerations, and one could almost say extra-halakhic considerations.

Despite the above, it is important to note that these two groups are not strangers, of course. Modern Orthodoxy is usually a subgroup of religious Zionism, although not necessarily. Yitzhak Geiger, in a very interesting article, describes and defines a group that he calls 'New Religious Zionism' (NRW).[6] This is also not the same as Modern Orthodoxy, but there is certainly a correlation between these two groups.[7]

To complete the brief sociological canvas that I have tried to begin to spread here, I would like to say that articles that deal with moral questions, those that do not necessarily concern the level of national values, society and the state, appear mainly on platforms such as entreeIn light of this, it seems that these platforms can be clearly associated with modern Orthodoxy, and not just with religious Zionism. If we take another important journal as an example, Areas, it seems that according to this index it is clearly associated with religious Zionism, since its main concern is with questions of society and state (as implied by its name, which is an acronym for: Torah, Society and State). The same is true for a journal like Noon (which has been closed for the time being). A quick look at the content and methods used in the two recent journals will show that the main focus there is on questions of Torah and state and less on questions of Torah versus morality and universal values (although this also exists, of course). Naturally, the method of dealing with these two journals is also of a more formal and ordinary halachic nature than entreeAs far as I understand, this is not only because of the different goals that these two journals have set for themselves, but also because of the ideological affiliation of most of the writers (religious Zionism, but not necessarily modern Orthodoxy).

I would like to demonstrate the limitations and problematic nature of the usual halakhic approach and the alternative proposed here, by examining the question of the status of the legal system in the State of Israel. I do not intend to go into the details of these discussions, which have already been discussed exhaustively, but rather to look at them 'from above' in order to reach a conclusion that, to the best of my understanding, is required by modern Orthodox thinking.

The question of the status of the courts

The question of the relationship between Halacha and the legal system in the State of Israel consists mainly of two aspects:

• The value and possibility of incorporating parts of halakha into Israeli law.
• The obligatory attitude from the perspective of the Jewish citizen who is committed to the Israeli legal system as a secular system. We will call this the issue of 'courts'.

In question A, I touched on my article, whether Halacha is 'Hebrew law', entree 15, Cheshvan 5765. Here I would like to deal mainly with the second question. The importance of this question does not only concern the substantive content. As I will try to show, the method of handling it is no less important, and this on two levels: a. The manner in which the decision is made. b. The manner in which it is presented to the public.

How should we decide the question of the status of the legal system in Israel? Should we search the sources for the correct definition of "courts" and examine its application in the case at hand, or should we explicitly introduce meta-halakhic considerations into the decision without resorting to overly convoluted halakhic interpretations?

In general, we can say that we find mainly two approaches in this discussion:

• Judges and lawyers (Yaakov Bezeq and Menachem Alon are two prominent examples)[8] – They support participation, and explain that there is no blanket prohibition of courts here. Personally, I say that the halachic arguments raised there are not really convincing. One of Alon's central claims is that the problematic nature of courts concerns only the ethnic identity of the judges (whether they are Jewish or not), and not the nature of the legal system itself. In Israel, most judges are Jewish, and therefore he claims that there is no problem. This claim is refuted on its face, even before we get into the grammar of the poor sources, and indeed all the poskim reject it. Another claim raised there is that there is a law of 'accepting the aliyyahu', or the regulation of the good people of the city and the law of the kingdom. It is difficult to accept a simple application of all of these in relation to the proposal of an alternative legal system to the Torah, whose judges and legislators are guilty of a crime to satisfy appetite and sometimes even to anger, and whose laws contradict (in part) the law of the Torah (see, for example, Hazo"a Sanhedrin 12:14).
• Against them stand all the great Orthodox rabbis (including the Zionist ones) who prohibit participation in and use of the legal system in principle due to the prohibition of courts. Most of them maintain an uncompromising prohibition, of course where this is possible. See, for example, the article by Rabbi Yaakov Ariel, one of the most important rabbis of religious Zionism, Law in the State of Israel and the Prohibition of Courts, areas I, 5770, pp. 319–328, and also in his response to Justice Bezeq's response, Areas II, p. 528. There he strongly rejects the aforementioned approach of the judges.

In addition to these two sweeping approaches, Eliav Shochtman, as usual, conducts a comprehensive and detailed discussion of this issue in several of his articles,[9] And breaks it down into factors. He divides between different areas of law, and does so in light of a careful analysis of the halakhic sources regarding the prohibition of courts. In this sense, he is an intermediary, and his approach stands between the two previous approaches. However, in a theoretical sense at least, I think he belongs more to the second faction, since his basic premise is that the prohibition of courts exists here as it is. The permissions he proposes are specific and based on sources.

In conclusion, the discussion of all participants on this topic is a regular halakhic discussion, and each of them explains his position using halakhic sources and their interpretation.

Diagnosis

After the above description, I would like to make two claims here:

A. DiagnosisThere is a strong feeling that most of those who deal with this question are acting in a 'wink'. They start from the premise that it is impossible not to participate in the legal system, but they do not explicitly say so. Instead, the judges twist and turn with various creative interpretations of the sources regarding the prohibition of courts, and the rabbis, on the one hand, protest the offense and the blasphemy, while at the same time remaining silent in a thousand languages when they see that the majority of the public does not strictly adhere to this severe prohibition, and actively participates in the legal system (as legislators, as litigants, and even as judges and lawyers).

on. proposal. To the best of my judgment, at least in our time, it is better not to 'wink' but to be intellectually honest. It is not worth giving up on the interpretive honesty of the sources, and therefore it must be recognized that what emerges from a straightforward interpretation of them is a clear and sweeping halakhic prohibition. On the other hand, the assumption that everyone has (although they hide it) must nevertheless be put on the table, that in our current situation it is right to violate this prohibition for meta-halakhic, or overarching, considerations. The suggestion to avoid winks has two implications: 1. Regarding the content – participation in the legal system must be permitted in a sweeping and unqualified manner. B. Regarding the form of presentation – this must be stated explicitly.

It is true that our halakhic tradition also contains esoteric speech, that is, rulings that are based on certain principles, but are reasoned with other reasoning so that they are more acceptable to the hearers, or so that they do not cause harm. Sometimes even the halakhic law itself is not revealed in public, as halakhic law and there are no teachers to teach it. But to the best of my judgment in our generation, it is not right to continue this policy, even though it was indeed used by halakhic adjudicators from before. If there is a permit that is not halakhically based, it should be put on the table or waived.

The reason for this is that in our generation, information is exposed to the entire public. Most of them have a reasonable Torah education, or access to those with such education and to the halakhic literature itself (or databases), and therefore all the winks are very quickly revealed, and (justified) criticism is created that constitutes great blasphemy. I will point out that in generations when there was an institution authorized to amend regulations, it was easier. There, it was possible to present the unfounded halakhic decision as a regulation, and a regulation is a binding halakhic institution. But when we do not have such an institution, we find ourselves degenerating into 'winks', and in an era when information is exposed, open, and known to all, it is not right to do so. I will return to the question of authority later.

De facto halakhic recognition in the legal system

I wrote above that both sides in the debate understand (implicitly and explicitly) that cooperation with the legal system should be permitted. Why do I assume this? Because, as far as I understand, this is what lies behind the silence of religious Zionist leaders regarding the use of the courts and the legal system (see my friend Nadav Shnerb's article,[10] (Mainly note 4 and surroundings). This is the understanding that we really have no way of prohibiting this. A citizen in a democratic country must take part in its legal system, as a litigant, as an attorney, as a judge, or as a legislator.

Do we have a real option not to recognize the judicial system? I already mentioned above that even various Haredi societies, which ostensibly do not recognize this system, need it almost every day (see the "Yated Ne'eman" case, the dispute over control of the Ponevezh Yeshiva, the "Didan Netzach" of Chabad Lubavitch, and many more). There is no other way to resolve disputes, except through a system that is properly run and that has enforcement authority. More extreme societies that really make a point of not appearing in court at all, are caught up in terrible violence, physical and verbal (see the cases of the Sikriki and the Gur Hasidim in the Ungarin houses, and many more), to the point of murder. The sage's statement "If it were not for fear of it, a man would swallow his life." applies to them.

In addition to all this, Nadav Shnerb, in his aforementioned article, already insisted that halakhic law has no real answer to the problems of the time. Halakhic law cannot provide a real answer to the disputes of the time (obligation to pay a fine, prostitution, intellectual property, treatment of a non-Jew who is a citizen of the state). Halakhic law is not adapted to the life of the time, and quite a bit of work is needed to adapt to it. And I haven't even mentioned the problematic manner (to put it mildly) in which the rabbinical court system is conducted (and this includes a significant portion of private courts). Anyone who reads Shnerb's article understands that as long as this is not done, the slogan that prohibits recourse to 'courts' is empty of content.

If so, the discussion about the courts is doomed to be a purely theoretical discussion. We have no real option not to cooperate with the legal system in Israel. Now the question is how do we justify this to ourselves? What is the posek supposed to say when asked questions regarding appearing in court, or regarding the halakhic legitimacy of occupations such as an attorney, judge, or legislator?

The accepted approach is to avoid and silently ignore the fact that good, kosher Jews engage in these professions en masse, despite the apparent prohibition. The more observant among them try not to appear in court, and this attitude seems a bit like turning on a light in the left hand on Shabbat when necessary.

In this context, it is worth noting another fascinating phenomenon. Haredi society, as mentioned, is characterized by a much more unequivocally negative attitude towards the legal system. In most Haredi communities, anyone who goes to the police is called a "moralist" (despite the serious halakhic connotations that accompany this term. It should be remembered that it is permissible to kill moralists).[11]I have already mentioned various appeals by Haredi institutions to the secular legal system, which indicates that they too understand what everyone else understands. But surprisingly, in recent years quite a few Haredi colleges have been opened, almost all of which train hundreds and thousands of lawyers who enter the market each year. All this, alongside the unequivocal ideological slogans regarding the prohibition of courts and its severity. Thousands of Haredi currently earn a living as an integral part of the legal system, and the Haredi establishment (at least the one that allows external studies for the purpose of earning a living) accepts this in silence and even encourages it (albeit usually quietly).

How does this happen? In part, it is a matter of financial constraints. Haredim cannot engage in scientific professions because they lack the necessary education to do so. On the other hand, each of them needs a lawyer and sometimes even the courts, because as citizens of the state they cannot avoid it, as I described above. These pragmatic considerations lead to de facto recognition in the legal system. But would poskim allow the violation of Shabbat in times of financial hardship? And are the prohibitions of blasphemy and extinguishing the light of religion, and the like, easier in their eyes? It is quite clear that here too there is recognition, at least de facto (and quietly), that a citizen in a modern democratic state cannot avoid participating in its legal system, and not only when it is forced upon him.

Using a Halakhic Principle

In the previous section, I described the fate of the halachic 'wink' of the prohibition of courts. The slogan in the public domain is that this is a severe prohibition and a terrible blasphemy, while at the same time there is a de facto recognition, with a wink, of the necessity of the legal system, and that it is appropriate and dignified to participate in it in all sorts of ways.

Is there no room to put things on the table, and say that in our generation we must fully participate in the legal system, because we have no other option? Are we obliged to resort to convoluted reasoning that relies on halachic sources and their creative interpretation, in order to do what is clear to every rabbi that we have no option not to do?

In another formulation, this position can be presented as follows: The two positions we have seen are based on halakhic sources and their various interpretations, to show that it is permissible or forbidden to resort to the secular legal system in the country. The position I propose is a third way: a straightforward interpretation of the sources shows that although this is completely forbidden, there is still no escape from full participation in the Israeli legal system.[12] As I mentioned, beyond discontinuing the use of esoteric jurisprudence and transparently presenting the considerations of the jurists, this approach also has a practical implication: there is no room for real reservations about the permission to participate in the legal system. There is no need to seek a specific halakhic anchor for each area of legal practice, as it should be permitted in general.

To the very problem

What is the nature of this consideration? How legitimate is it in Halacha? We are used to a Halacha discussion being conducted according to and within the framework of Halacha rules. How can we ignore the entire complex of court prohibitions, which are extremely serious prohibitions that involve desecration of the Name of God? We are giving up part of the very soul of Judaism: the legal-public part of Halacha, and we are doing this in a sweeping manner. Isn't this a reform? Can desecration of Shabbat also be permitted for similar reasons? Although I am already saying here that almost all of us do it in one way or another. What I am suggesting is just to acknowledge this, and put it on the table.

Here is the place to return to the two previous examples cited above. A similar consideration can seemingly be taken in the context of conversion (a national question), as well as with regard to saving a Gentile on the Sabbath (a moral question). In the moral context, the argument arises that it is impossible for observing the halakha to lead us to abandon a Gentile to die without helping him, and therefore we must permit the desecration of the Sabbath to save him. Here, this consideration calls for giving up the "wink" in considerations such as enmity and means of peace. To the same extent, in the national-social context, it is impossible for us to allow the lives of hundreds of thousands of Gentiles as an integral part of Jewish society in Israel, equal but nevertheless different. Therefore, we must allow conversions without receiving mitzvot, instead of the "wink" conversions that are taking place today.

I have already mentioned my articles in which I oppose these two proposals. I do oppose the wink at conversions and the salvation of the Gentile on Shabbat, but the obvious conclusion is to find a real permit or to give it up. If so, there I do not agree with a similar application of a halakhic overarching principle. What is the difference between these two situations and the prohibition of courts? Furthermore, does such a consideration that I raised in relation to the prohibition of courts not constitute an intolerable breach of the halakhic fence?

To understand this, we must delve a little deeper into the consideration described above regarding the prohibition of courts. Here we will see two different formulations that may underlie such a consideration.

Value conflict

The consideration that we proposed to allow participation in the legal system is a type of consideration of no choice. Although it is not a lack of choice in the simple sense, since in principle it can be said that there is a prohibition, and therefore we must try to minimize it as much as possible. It is more correct to say that this is a consideration that stems from no choice in the ethical sense.

The assumption is that there is a Torah value to partnership with the Jewish people, and even more so to the rule of law in a democratic state, and when these values conflict with a court prohibition, the prohibition should be permitted. My point is that these values override the halakhic prohibition, and perhaps nullify it. How exactly can this be justified halakhically? I will now address this.

A. An offense in itself

An extreme expression of such possibilities is a situation of "offense for its own sake." This term describes a situation in which observing the halakhah will lead to disastrous consequences, and therefore it is permissible to violate the halakhah in order to prevent the disaster. It is important to understand that this is not a question of an internal halakhic rule, such as an act that rejects the rabbinical prohibitions or the Torah in the Torah. In situations in which we apply a halakhic rule of rejection, the act we do is the correct halakhic act. When there is a conflict between the halakhic law and the Sabbath, there are halakhic sources that teach us the halakhic command in these situations: to violate the Sabbath in order to save a life. But in a situation of offense for its own sake, we are making a decision based on an external halakhic principle, which commands us to violate the halakhah. The halakhah forbids doing the act, and yet the Torah in its broader sense (or: God) expects us to do it.[13]

For example, in the issue of Nazir 21, the Gemara states that Lot's daughters made such a consideration after the destruction of Sodom. They understood that the entire world was destroyed, and if they did not have marital relations with their father, there would be no resurrection for humanity. They decided to do so, and the Gemara implies that this act was a sin unto itself, and the Sages praise them for it. There is no halakhic permission to have marital relations with a virgin under any circumstances. This is one of the severe prohibitions, for which there is an obligation to surrender one's soul. And yet, the Sages praise Lot's daughters for their decision.

It seems that the mechanism of "offense for its own sake" is too extreme. It can and should only be applied in one-time situations where a very problematic reality is created that the usual halakhic tools cannot cope with. Only in a situation where adherence to halakhic law would have catastrophic consequences. Are the consequences of the separation of religious society from the rest of Jewish society in Israel, or the undermining of the rule of law in the State of Israel, such a disastrous outcome (somewhat similar to the extinction of humanity, which was expected in the case of Lot's daughters)? The consequences are extremely severe, but it is nevertheless difficult to permit "offense for its own sake" on a continuous and permanent basis.

Furthermore, 'a grave offense for its own sake' is a mechanism that exists in the toolbox of an individual who is in a place and situation where there are no halachic arbiters who can make the halachic judgment themselves and determine whether the act is permissible or forbidden. For example, it is not reasonable to view a rabbi's permission to write the Toshvaf as an 'a grave offense for its own sake'. This is a regulation of a sage (the president of the Sanhedrin) who sees that the generation needs it. Therefore, even in the case of Didan, we are dealing with an ongoing situation (unfortunately), and not a one-time situation. Furthermore, this situation is present in the face of all halachic arbiters, and therefore it is not right to remain silent and leave it to the ordinary Jew to decide whether a "grave offense for its own sake" is a regulation of the halachic sages for the time being, and not some kind of retroactive permission.

It is true that it could be said that Lot's daughters violated the strict prohibition of incest (which is to kill and not to transgress), and therefore the value that rejects the prohibition must be a value that, if violated, leads to very extreme consequences. But the prohibition of arqa'ot is not so severe, and therefore even less fatal consequences justify violating it. But this is already a very dangerous and problematic argument. Unless this is a truly extreme case, it is reasonable to assume that a well-founded halakhic argument would be required to justify violating a Torah prohibition (especially one that involves blasphemy).

B. No Torah was given to the ministering angels

We can use terminology like "the fifth part of theShulchan Arba'ah", which is attributed toHazo"aThis term also expresses a perception that there are meta-halakhic values that in certain cases reject even a formal halakhic prohibition. Although we do not have a clear source that permits a court prohibition in a place where there is such a problem, our judgment teaches us that this is the right thing to do.

Similar questions concerning the integrity of all of Israel arose during the polemics of the separation of the communities, both during the time of Rashar Hirsch in Germany and during theWriter In Hungary. Although there it was not a clear halakhic question but more of a halakhic policy, it is therefore no wonder that they needed the words of legend and thought, and not just halakhic considerations.

For example, the Netziv in the Responsa Replying to something, H.A. C. Med, writes the following about this:

And here the commentators have advised and thought of advice to be guarded from this generation to separate from each other completely, just as Abraham separated from Lot. In the absence of the commentators, this advice is as hard as swords for the body of the nation and its existence, both at a time when we were in the Old Testament and in our possession, almost in the Second Temple, the land was destroyed and the temple was destroyed, and Israel was exiled because of the dispute between the Pharisees and the Sadducees, and also because of the hatred of many unjustified shads, which is not according to the law, namely when a Pharisee saw that someone was lenient in some matter, even though he was not a Sadducee at all, but committed a transgression, because of shads, he would judge the Sadducees who would lower him, and from this shads multiplied with permission and for that mitzvah by mistake, and already hinted at in the Torah (Numbers 63:34, 34) as explained in the Ad and R., and 27 it is not far from the understanding that shads will come at such a time, especially since, according to the eyes of one of the adherents of the religion, it would seem that such and such a person does not behave according to his way in serving God. And he judged us according to the laws and distanced himself from him, and they would pursue the ZAZ with permission, with a false imagination, G-d, and destroy all the people of G-d, God forbid. This is even if we were in our own land and in our own possession:

And so, while we are occupied in exile and Israel is scattered among the nations, and we are likened in exile to the dust of the earth, as the Blessed One said to our forefather Jacob, "Your seed shall be like the dust of the earth," and the nations are likened to many waters that flow, as it is written in Isaiah, "Oh, the multitude of many nations, like the days of the sea, overflowing, and there is no remedy for a lump of dust in the overflowing of many waters, unless it is made of the dust into a solid stone. Then even if a river flows over it, it does not roll it away except from one place to another, but it does not completely destroy it. So Israel among the nations has no remedy except to be the stone of Israel, meaning that they will be united in one community, so that no nation or language can destroy them. And how is it said to separate one from another, and the nations will come and wash it away little by little, Isaiah 6:

These considerations can also be taken into account in the matter under discussion.

From the discussions that dealt with the question of separating the communities, it is difficult to conclude that this is a crime per se. This is a controversial halachic policy, and indeed some of the sages of Israel did advocate separation. It does not seem that the treatment of the expected consequences was so dramatic. On the other hand, it was severe enough for most rabbis to rule it outright.

Therefore, perhaps we can offer a slightly different formulation of our overarching consideration. It is possible that the de facto permission to resort to the courts is not based on an offense per se, but on another meta-halakhic principle: the Torah was not given to ministering angels. That is, on the assumption that the Torah expects us to live normal and reasonable lives, both morally and socially.

As a metaphor, there was reason to think that since no one is exempt from the prohibition of slander, we are obligated to flee to the deserts and not live in human society. Similarly, Maimonides writes in Hilchot De'ot, 6:1:

And if all the countries that he knows and hears of are not following the same good practices as our times, or if he cannot go to a country whose customs are good because of the armies or because of the disease, he should sit alone, as it is said, "Sit alone and be silent." And if there were evil and sinful people who would not allow him to sit in the country unless he mixed with them and followed their evil customs, he should go out to caves, thickets, and deserts, and he should not lead himself in the way of sinners, as it is said, "Who will give me a guest in the desert?"

Does any of us do this? And does anyone even think of demanding it of people? After all, social life is a proven recipe for serious offenses (who is a victim of slander?). So why not present an ideal of escape to the desert? On the surface, this is just a compromise, because we cannot meet such a lofty demand. But it seems to me that a more reasonable explanation is that this opinion of the Rambam is a matter of halacha and no teacher teaches otherwise. The Torah expects us to live a social life, and to try to improve the society in which we live. Escape and separation from society are not solutions that the Torah advocates.

In the same way, we are not required not to go out into the street or drive a car, because of the danger involved. A normal life is a halakhic measure of a correct lifestyle. Sometimes the principle "God protects the foolish" is used, but the intention is not for the foolish but for people who behave normally like any reasonable person, and therefore their lifestyle is legitimate (see Shlomo's offering Taninah 2-3, Si' Fu Susak 2, etc.). The assumption is that the halakha does not prohibit something that is normal and reasonable life (unless it explicitly states so).

Other similar principles appear in Halacha. Such as "Her ways are the ways of pleasantness," "They did not say, 'Send for trouble,'" and so on. The common denominator for all of them is that the reasonable human way of life is the life that the Torah expects of us. If the price of observing Halacha is an abnormal life, one must consider whether this is indeed the correct and desirable way of behaving. The principle that a decree that the public cannot abide by, or a decree that has not been widely accepted by the majority of the public, is null and void also points to a similar way of thinking: that which requires unreasonable demands and is not appropriate for normal life is invalid.

From this line of thinking, we can perhaps draw the conclusion that it is unlikely that the Torah expects us to live in an abnormal manner. In a democratic country where we are citizens with equal rights and duties, if we do not participate in the legal system we will run into social problems (as I described above), and we will not be able to influence the systems that affect us all so strongly. It is unlikely that the Torah expects us to live in such a manner.

Here the questioner may ask: The Torah certainly expects this of us, since it commands us "before them and not before the laymen, before them and not before the non-Jews." Ostensibly, there is an explicit command that tells us that the Torah does expect us not to be partners in such a system, so how can we say a priori that the Torah does not expect us to do so? Are we saying that we will not keep Shabbat because it is not normal not to drive a car? Or that we will eat pork because we want to socialize with people who do not keep kosher?

Here we need another interpretive consideration. The Sages spoke their words in situations where Israel lived under a foreign and totalitarian rule. The legal system was forced upon them, and they had no opportunity to participate in it. This is with regard to the Gentiles. With regard to Jews, the prohibition known as the law of 'courts in Syria' speaks in a situation where there is an alternative to a Jewish legal system, even if not in that specific place (Syria), then more generally. But unfortunately, we do not have such an option at all. We are not talking about a criminal or lay society as in the days of the Sages, but rather a society that in principle does not accept the principles of the Torah. Can such a situation be likened to the situation that the Sages faced?

We find several sweeping permits from the owners of the Torah, both with regard to the prohibitions of interest and with regard to the prohibitions of selling animals to the Gentiles (their days). For example, one of several, in the Torah, 'Imor', 15:1, states:

The rabbis, both Rashbam and Rath, state that it is forbidden to sell calves and goats and any unclean animal to idolaters. Therefore, one must wonder what they would rely on to sell calves and goats to idolaters?…

Who is one of those who are accustomed to hiring idolaters, a priest

The Torah scholars allow a Torah prohibition because once upon a time there were many Jews together and there was no loss from the prohibition of selling to a gentile. But when the Jews are scattered and it is forbidden to sell an animal to a gentile, it will be very difficult to live. We also find this with regard to the prohibitions of interest (see Prof. Chaim Soloveitchik's book, Halacha, economics and self-image, which is entirely devoted to this question).

What is the basis of Thos' permission? And couldn't they tell the Jews to make a living from something else? Or to live in a community of more Jews? It is quite clear that the basis of the permission is that this is how the Jews lived there, and the halakha does not require them to change their lifestyle. Where the halakha leads us to an unreasonable life, it is not clear that it actually applies. The question of what is called an unreasonable situation is, of course, a different question.

Similarly, it can be said that the Sages demanded the prohibition of participation in a foreign legal system, because what they faced was a completely different life, as detailed above. But today, this is a demand that will lead us to an unreasonable life. Citizens in a democratic country cannot separate themselves from its legal system. It is unreasonable to apply the prohibition here.

It is true that it is necessary to discuss whether such a permit is a 'permission' or a 'deferred' permit, that is, whether such a permit is sweeping, or whether it should be limited as much as possible (see the end of the article, which indeed restricts the permit only to places where it is necessary). But even if we take the 'deferred' approach, it still follows from the explanation we have proposed that this permit concerns participation in all areas of legal life, and not just solving a problem for someone who is having financial difficulties.

I repeat what I have already shown, that at least de facto, the religious and ultra-Orthodox public does indeed practice this. The permission is sweeping, and it is based on needs and constraints and not on halakhic arguments. This is in contrast to its explicit descriptions that supposedly use halakhic considerations (or silence). All I am suggesting is to put this consideration on the table, and not live in a 'wink'.

Of course, questions of authority arise here: Who is authorized to determine the existence of such a permit? And of course, fundamental questions: When does the situation actually require such a permit? What is the criterion? I will touch on these questions later in my remarks. But I will say here that even the owners of the Torah were supposed to be troubled by these questions. Even in their day, there was no Sanhedrin, no rabbinical court, and no central halakhic authority that could determine such a permanent regulation or interpretation. And I say again, in practice, we also use this permit with a 'wink', and we only refrain from declaring it.

Words from the author of 'Tsitz Eliezer' on the issue of child adoption

onTsitz Eliezer H.W. C. M., Sec. 21, discusses the halachic questions that accompany the adoption of children. Among other things, it deals with the question of the parents' exclusiveness with the adopted child or child. It seems to me that families with a conservative halachic view are less inclined to adopt children because of the halachic problems that accompany this. Most poskim prohibit exclusiveness with adopted children, and I highly doubt whether such families can actually adhere to this prohibition in practice.

husband Tsitz Eliezer There he has an unusual approach among the poskim. He permits uniqueness with adopted children, and does so for three reasons. Here we will present two of them that are relevant to our discussion:

A. A decree that the public cannot abide by – he claims that applying the laws of exclusivity to adopted children could lead to the abandoned children becoming a burden on society, and therefore it is a decree that the public cannot abide by, and in any case there is no reason to issue such a decree, as he puts it:

"The Dil Dezho also sees it as a kind of decree that the majority of the public cannot abide by, since many children of this type will have to be imposed as a burden on the public without a guardian" (ibid.).

In support of his position, he citesAir Force Put your words there. Book of Fear (Katsav sign) which justifies the permission to have exclusive relations with a woman who is a widow, even though she is considered a woman who is forbidden to him, on the grounds that this is a decree that the public cannot abide by. This principle applies of course only in the context of rabbinical decrees and not in Torah prohibitions. However, exclusive relations with a woman with whom he has exclusive relations after a period of time, such as his wife, are considered a rabbinical prohibition only, and the principle of a decree that the public cannot abide by (with regard to his widowed wife) applies to him. Therefore, theAir Force The same is true with regard to exclusiveness with adopted children. Although exclusiveness is a Torah prohibition, at least a son with his mother (a daughter with her father is not, since she is free). This seems to be what he means when he writes "as a kind of decree that the majority of the public cannot abide by," meaning that it is like the consideration of a decree, even though here we are talking about a Torah prohibition.

B. Her ways are pleasant ways – another argument raised by theAir Force, again in comparison to the permission to be alone with his wife Nida, is the halakhic principle that the ways of the Torah are supposed to be the ways of comfort (norms of behavior that are not abnormal, by contemporary social standards). The source of this reasoning is found in his explanation of theHeart studies According to the Rosh inAbbreviation of Nida rulings, where he justifies the permission for his wife Nida to be alone on the grounds that"It's hard to be careful, especially with his wife Nida." According to theHeart studiesThe words of the Rosh are based on the halakhic principle that her ways are her ways of pleasure.Air Force There he explains things as follows:

It is not the way of Noam for him to get out of bed if his wife has given birth... unless the Scripture forbids such a distinction..

And then he adds to the matter of an adopted child:

And so, according to the Proverbs, it must be said in this way also in our discussion of the children of the time when they were adopted, they were not yet of the age of prohibition of exclusiveness and permission to marry, and thus they grew up and were accustomed to them and were connected to them in spiritual ties in the Torah of apprentices and educators. Later, when they grew up, it is not my way to issue a decree on them, and therefore, such exclusiveness was not prohibited by the Scripture. And I knew what should be divided between the subjects, but whose branch was it?.

At the end of his booklet, he bringsAir Force General reasoning for the permit, in his desire to teach a right over Israel:

I wrote in the above-mentioned sidebar, even though it seems that we are seemingly entering through narrow loopholes, in order to teach a right to Israel, and in our view, even great and good people are not careful about this, and in order not to close the way for unfortunate children who will not have a demand and request from homes that will educate them there on the knees of the Torah and the tradition.

In other words, the problem that drives him to narrow paths of permissiveness is twofold: 1. The majority of the public actually practices this. 2. If we strictly adhere to the halacha, we will not find adoptions for the abandoned children of Israel. It is a matter of imposing an abnormal life on them, and it is unreasonable that the Torah expects us as a society, and certainly not them, to live such a life.

Husband's words Air Force They are exceptional not only in that they make use of overriding considerations, but even more so in that they are aware of this, and even write it explicitly. Halachic tradition suggests that sometimes it is better to leave matters to the street to make the decisions themselves by virtue of having no choice, in the sense of "let them leave it to Israel," without revealing this consideration and putting it explicitly on the table. For example, even in the Toss 77 that we cited, it is clearly seen that the permission began as a folk custom and only later received a halachic seal of approval from the owners of the Toss. As we have seen, even with regard to the question of the courts, the situation is that the street allows this to itself (and the explicit permission is embarrassing to come by). Is it really not right to leave the situation vague, without revealing the problematic halachic considerations underlying the permission? Shouldn't we leave it to Israel, who are the sons of prophets? Alternatively, one can resort to the esoteric method, meaning using ordinary halachic considerations, even those that do not 'hold water,' and concealing the overarching consideration even though it is what truly underlies the permission.

I have already mentioned that this option, even if it were recommended in principle (and I am not at all sure of this), is difficult to implement in our generation. Today, the sources are open and known, the criticism is out in the open, and people expect consistent and rational behavior. Inconsistent behavior and an unfair interpretation of the sources are blasphemous. There is a justified criticism that there is one in the mouth and one in the heart. It seems, therefore, that in our day the option of esotericism (hiding the halakhic considerations) does not really exist.

Two more examples

To expand on the matter, I will present here two additional examples of this way of thinking that legitimizes deviation from formal halakhic mechanisms due to overarching considerations in order to prevent problematic outcomes.

A. Institutionalization of prostitutionIn medieval Christian Europe, prostitution was considered a sick vice, but many accepted it as a choice. Brothels operated with the knowledge and even encouragement of the authorities in almost all countries.[14] This reality is also reflected in medieval halachic literature. For example, Rabbi Yehuda ben HaRosh was asked by his nephew how to treat prostitutes in the community, and he replied that they should be expelled (Response Zichron Yehuda C. 17):

Question: And know, gentlemen, that there are people here who say to eradicate women from the city. Promiscuous, because they say that they are transgressing the law, "There shall be no sanctification," and furthermore that there is no baptism, and they are misleading people in circumcision. And some say: It is better for them to remain in the city and not mix with the sacred seed. Among the daughters of a stranger, and he will come to me in danger of life. Tell me a thing, who will be able to prepare?

Answer: There is no halacha as they say. Because among the prostitutes of Israel there is a law and a covenant, and it is better for the bodies to be in danger than the souls.[15] And peace.

He makes a consideration of halakhic policy and decides not to prevent the severe prohibition on grounds of nida and prostitution.

Rabbi Yitzhak Arama also writes about the Jewish communities in Spain, as follows (The Binding of Isaac, Genesis, Parashat Vayra, chapter 20):[16]

And how many times have I debated this, concerning consecrated women, whose prohibition was relaxed by the judges of Israel in our generation. And no more, but they will already be the same. In some congregations, they are given amnesty among themselves. There are also some who are satisfied with a reward from the congregation, because they said: Since they save the single or foolish from sin, it is forbidden for the wife of a donkey or a donkey man to It is better for them to transgress this law than to be subjected to the prohibition of stoning or the danger of Fire.

And I discussed this many times before them and before their elders, and I explained it to them. That the great sin that any person of the House of Israel commits in secret, and without the knowledge of the rabbis, and without the permission of a court of law, is the sin of an individual, and he who commits this sin will die by a court of law above. Or below, and all Israel would be clean, as was the sin of a concubine on the hill, if they had a court of their own. Those wicked people are being delivered alone into the hands of Israel.

It is true that a minor sin is one that is agreed upon by the majority of people, and the court has given its ruling in their courts not to protest. In him, behold, it is lewdness and a criminal offense, and the sin of the entire community, and it cannot be forgiven, unless In the calamity of the congregation, as was the case with the children of Benjamin for their participation in sin. And it was the sin of Sodom, as we have learned, that they and their courts agreed not to hold the hand of the poor and needy.

Therefore, it is better and more beneficial for those who commit those sins to be cut off, burned, or stoned to death than for one letter of the Torah to be uprooted with the consent of the many.

Therefore, cold halakhic considerations say that prostitution must be institutionalized and supervised in order to prevent severe prohibitions. And yet, the owner The Binding of Isaac He decided not to do so. The overriding consideration he makes is not based on halakhic literature. He draws his food from biblical interpretation, and draws a halakhic conclusion that prefers to trip up individuals with the prohibition of cutting and stoning, rather than for the public to give a seal of approval for a minor offense.[17]

on. Kiddushin not valid for secular people. From time to time, the proposal arises to sanctify secular couples in a way that invalidates the sanctification (such as by disqualified witnesses). From a cold halakhic perspective, this seems to be necessary, since it prevents the prohibitions of a man's wife and of bastards. Indeed, there were some poskim who supported this. However, the majority of all poskim completely deny this. The argument on which they base their argument is that it is not possible to harm the form of married life in Israel in such a way, even at the cost of serious halakhic offenses.[18]

Back to Modern Orthodoxy

The two considerations presented here, and especially the second type, are bold considerations, and it is likely that those with conservative Orthodox positions will not adopt them, at least not explicitly. As I have already mentioned, these use halachic considerations and (sometimes creative) interpretations of them, or alternatively ignore them as if to "leave it to Israel." They do not declare the use of such overarching considerations, although it is not clear that these considerations do not underlie their words (an esoteric expression). Even if we find such considerations here and there in their words (with regard to conversion, one can identify the beginnings of such considerations), it is mainly in relation to questions that concern society and the state, and less in relation to questions of universal morality.

The leadership of modern Orthodoxy can and should take the reins and lead a halakhic process of declared use of overarching considerations, both in the social-state aspects and in the moral aspects, which may prevent us from living life in a blink of an eye, and allow us to be honest with our values and beliefs.

The remaining questions: authority and essence

The discussion so far has dealt with halakha in general, ignoring the contemporary constraints that exist in the world of halakha. We are left with two main difficult questions to clarify: 1. The question of authority. 2. The question of the boundary. Of course, there is a certain connection between the two questions, but they are still two different questions.

As we know, nowadays we do not have a Sanhedrin, and we do not have any halakhic institution or body that is accepted by the general public. In such a situation, there is a formal problem, after all, something that only another minyan permits. Many poskim believe that we do not have the power today to amend regulations and issue new decrees. Who is entrusted with the use of overriding considerations, in the absence of clear halakhic authority? Of course, there is also the framework problem: it is very difficult to give the Torah to each and every individual. If we allow the use of such considerations, in the absence of an authoritative institution, every person from Israel, or a rabbi of one community or another, will be able to decide when the situation justifies the use of overriding considerations that remove a halakhic rule from the Torah or the rabbis. This is the question of halakhic authority.

The question of the boundary is a question that is being raised. Even if there were a clear and authorized halakhic authority (Sanhedrin), the criterion is not clear: when is it justified to make such considerations, and when not? After all, such considerations can uproot the entire Torah. Could that authorized authority also permit the desecration of the Sabbath, or murder, based on such a consideration? As we will see later, the answer is definitely positive, and there are clear halakhic precedents for this.

Overriding considerations are very dangerous considerations for the halakhic framework. It is not without reason that halakhic scholars are reluctant to use them, and certainly not to explicitly mention such use. If we focus the discussion more closely: Why were such overriding considerations not used to allow conversion without receiving a mitzvot, as Rabbi Brandes suggested? Why were such considerations not used to permit the desecration of the Sabbath to save the life of a gentile, as Rosh Rosenthal and Rabbi Benny Lau suggested? What would have made it possible to permit all the prohibitions of the Torah through such overriding considerations? On the surface, this is precisely the Reform line of thinking. On the surface, the essence of faithfulness to the halakhic law is action within the halakhic framework and according to halakhic considerations.

Regulations of the company

We have already seen above that the law itself recognizes the considerations of 'offense for its own sake', or 'its ways are ways of pleasure.' What we can conclude from this is that while this use is dangerous, its failure to use it is no less dangerous. Adhering to halakhic considerations can sometimes lead to very problematic results. Furthermore, we have seen several examples in which the Sages made use of such considerations, and drew far-reaching halakhic conclusions from them (below, we see that they permitted, or at least did not prevent, extremely serious prohibitions, and even the prohibition of murder under moral law). What did those Sages rely on (most of them in generations when there was no authorized central halakhic institution)? How did they allow themselves to act?

It can be said that in the absence of an authorized body, halakhah recognizes, at least de facto, implicit regulations. This is a type of halakhic fiction, which recognizes an existing situation as if a court of appeals had sat and ruled to temporarily abolish the prohibition of arkaot. This claim contains two assumptions, both of which require substantiation: A. A court of appeals can overturn a prohibition of arkaot (in the case of a court of appeals), at least temporarily. B. Even if a court of appeals did not sit, in certain cases we recognize an existing situation as an implicit regulation. We will now examine these two assumptions.

Establishing Assumption A: Removing a Word from the Torah in the KJV

We will begin by establishing assumption A. It is seemingly difficult, since the abolition of the prohibition of the courts is the abolition of the prohibition of the Qo'a, and according to Talmudic law, the Sages only remove a thing from the Torah in the Sho'at (see Yevamot 5:2-3 and parallels). However, the Rishonim have already written that these things are only meant in a general instruction for the world, but in a temporary instruction they can remove a thing from the Torah even in the Qo'a. See Sanhedrin 40:1 (for the definition of a milta). And so it is written in the commentary of Ran Nedarim 20:2. This also emerges from the words of the Rabbi in the Tod "Matov", Yevamot 5:1 (and also in the D"H "Kiyon", there 5:2. And also in the D"H "Vahay", Nazir 34:2. And also in the D"H "Amer, 7:13), who wrote:

It seems to Rabbi Dalit that the one who testifies to the truth and the one who believes and the one who believes in one witness in this regard is from the Torah, but rather the Sages' regulation is that it is a denamen. And this is not an abrogation of anything from the Torah, since it is similar to the proper thing to believe, as I will explain in the chapter on Perkin (Pt. 9b), that in a matter that has some basis and authority, one does not consider it an abrogation of anything from the Torah.

And so we find in the words of the Lord in the answer given in the Responsorial Psalm: Agreed (Si. R.G.), who explained how it is permissible to kill morality with one's own hands, contrary to the law of the Torah:

But there is no doubt, that there is a great deal of evidence here, that sometimes he is a threat to a soul. Such as the one who is known not to spare the lives of his fellow man, and is suspected of killing them and killing them when he can. Even when it is not clearly known about him, since most of those who do as he does are suspected of doing so, it is permissible. And even if it is not at the time of his persecution. And it is possible that there is a verse about this. And even if there is no verse there, the sages have the power to remove a thing from the Torah, even in the case of standing up and doing all the words, when there is some reason to permit, in which case it is not like removal. And what there is about a woman who is standing up and doing, they do not have the power to remove, that is, in a thing that has no reason to be like it well enough to be worth removing by him. Thus I interpret and come to the conclusion that in a thing that is like it well, one must remove it according to the law. And there is much evidence. And the evidence is that there is a reason for the Dabbagh, not a Hashiva Akira.

If so, in clear cases, something can be removed from the Torah even in the Ko'ah. It should be noted that this even concerns the prohibition of murder, which is the most serious prohibition of all. The question is, is this not conditional on the existence of an agreed-upon halakhic authority? Here we arrive at assumption B.

Basing an assumption on: implicit regulations

Assumption B, according to which an existing situation is considered an implicit regulation (as a "gift of the heart." See Shavuot 11-12 and parallels), is found in several places in the words of the poskim.

Let us begin by saying that it is accepted among the jurists, both first and last, that there is no authority in our generations to issue a decree that is/was not found in the Talmud.[19] On the other hand, we find in the words of the poskim in many places that they say that a certain action is forbidden by the rabbis based on reason, even if we have not found a source that describes a minyan that sat and fixed or ruled on it. How can one say solely on the basis of reason that something is forbidden by the rabbis, since a regulation is valid only if there was an authorized minyan that determined it?

A clear example of the legal fiction of an implicit regulation in the post-Talmudic period is the regulation of 'Shlichuthiyhu'. As is known, according to the principle of law, in most Torah laws, only close judges are permitted to adjudicate. And yet, even when they were close in Israel, they allowed the Babylonian sages to adjudicate, even though they were not close (Gittin 5:2b, Bk:5:2b, and others): My messengers, my servants. And what happens at this time, when there are no longer close ones? The Toda'ah writes about this in 'Bemilta', in Gitin 1:1:

In the words of the Shekiha, as in confessions and loans, and what we receive converts even on the back of a donkey, three experts are needed, as it is said in the Book of the Rescue (Yevamot 40:1). A law is written in the Ori, "The servants are the messengers of their servants." It is understood that they used to receive converts in Babylon, and now they are the messengers of their servants, and now there are no experts in Israel, and who will give us permission to send messengers from their servants?

We see from the words of the Torah that there is another regulation of 'Shlichuthiyhu', at a time when there are no more ordinations in Israel. This is the regulation of 'Shlichuthiyhu', meaning that the previous generations appointed the sages of the later generations to judge even though they do not have an ordination.

Was there really such a meeting, where they decided to appoint the members of later generations to judge? On the surface, it seems not. First, even if there was such a regulation, the emissaries here are acting while the emissaries are already dead, which is not possible under normal emissary policy even if there was an actual historical appointment here.[20] Therefore, it seems that this is a de facto regulation of the sages of the generations after the death of the close ones (and also after the Shas).[21] Further evidence of this is the law of conversion, which is not included in the regular regulation of "Shlichut Yehud." This applies only to money, to common things that have a pocket shortage (see BK ibid.), and yet it is clear to Tos that even at this time, conversions are taking place.

Therefore, it is quite clear that this is an implicit regulation, because if it is a historical regulation that was the body that amended it, then we would have a list of the issues to which the regulation applies. In Toss and Rishonim we see that we conclude about what we have authority, according to the degree of necessity of the matter. If it is clear that the matter is necessary, we see it as if it had been amended from the outset. The regulation of the Shlichuthiyohu Dakmai is an implicit regulation that applies to everything that seems to us correct and is in practice. We treat it as if there was some historical assembly that sat down and amended it, but this is a legal fiction.

It should be noted that the regulation of 'Shlichiyotiyehu Dakmai' allows us to remove something from the Torah in the KJV, since here we are discussing judges who are prohibited from judging. Furthermore, this is an implicit regulation that concerns precisely the prohibition of courts and invalid judges. If so, this is a very relevant precedent for removing the prohibition of courts by an implicit regulation. Although it seems difficult to see the secular and gentile judges of today as the representatives of the people of the time, the principle of implicit regulations can also be applied here.

Further evidence can be found in the issue at the end of the chapter on the lease of houses, 22:2, where we find:

And since the reign of wickedness has spread, which decrees evil and harsh decrees against us, and abrogates the Torah and Mitzvot from it, and does not allow us to enter the week of the son, and I said to her: For Jesus the son, it is a law that we decree upon ourselves not to marry a wife and not to have sons, and the seed of Abraham our father is found to be all by itself, but let them rest in Israel, it is better that they be a scoundrel and not a scoundrel.

It is explained here that since the kingdom of sin decreed upon us, it was appropriate to prohibit fertility and reproduction. But in the end, the sages did not prohibit it. The reasoning is not "a decree that the public cannot abide by," but "it is better for them to be mistaken and not to be mischievous." In other words, we leave those who engage in fornication to their own error. But these are puzzling things, because if in the end they did not decree a prohibition on fornication, then why is it considered a prohibition that is inadvertently violated? Here too, it seems to be an implied decree, and here too it uproots something from the Torah (although here in Shostakovich). Another possibility is to say that there is an interpretation here of the law of fertility and reproduction from the Torah, that is, an interpretive claim that in such a situation it does not apply. Below, we will propose such a mechanism for us as well.

Such approaches can also be found among contemporary jurists. For example, theHazo"a Attorney C. Ken Skia, writes:

It should be noted that he compares this to the role of the Sages in relation to the Torah, where too the interpretation of the Sages is the correct interpretation of the Torah itself.

theHazo"a Although he is not actually talking about a new implicit regulation, but rather about an interpretation of an existing regulation or decree. But it is clear that his intention is not simply to say that the sages of our generation are authorized to interpret the ancient decree, since that is a simple matter (just as they are authorized to interpret the Torah). It is clear that his intention here is to establish that something that the sages of this generation deem appropriate to include in the ancient regulation is included as if the ancients themselves had established it (even though this did not actually happen historically). In fact, there is a mechanism here similar to an implicit decree, since the thing was forbidden without there actually being a Jewish law that forbade it.

Is the intention ofHazo"a To claim as a historical fact that the ancient sages really left this authority to the sages of later generations? Was this principle itself established in some ancient Jewish council? It is quite clear that it was not, if only becauseHazo"a He does not provide evidence for this. This is his explanation. It is quite clear that he intends to claim the existence of a legal fiction, as if the ancients left us this authority.

And in the Responsorial Psalm Yabia says The Book of Revelation, Volume 37, brings the following:

And indeed, I saw in the Responsa Pani M'bin (Chauch, 57) that it is written that if an electric lamp has a grate that is adjusted to increase or decrease the light, it must be strictly forbidden to study its light, lest it add to the existing light, and although we do not have to introduce a new ruling, the House of Yosef wrote (an evil sign) that it must be decreed not to study the light of a wax candle, lest it be cut off and the head of the wick cut off, even though this ruling is not mentioned in Shas.

And so the Gaon Rabbi Yaakov Hai Zerihan, in a reply cited in the Responsa Yashkil Avdi Ha-Bav in the last Konteks (Chauch 64, 105, 33), said that the matter is simple: there is a complete prohibition against studying by the light of an electric lamp, because by pressing a button, one can increase the existing light, because one can easily sense the system and increase the light, etc.

Ostensibly, the discussion is whether it is appropriate to issue new decrees, but that is clearly not what they are aiming for, since there is no authorized institution that can do this. What they mean is that it is appropriate to prohibit even though it is not a matter of the Minyan, since there was no Minyan that issued such a decree.

Rabbi Yosef disagrees with all of this, and writes:

I also saw in Responsa Be'er Moshe, Part 6 (in Kontras El-Hashem, No. 21), who brought what was made more severe in this in Responsa Penny Ma'in above, and wrote that the custom is simply to be lenient, and that the instruction of Penny Ma'in was not accepted in this, because we cannot derive new decrees from our own minds. s

Also in the Sek'G, Rabbi Yosef disagrees with Rabbi Y.S. Elyashiv about whether we should derive new decrees from our own mind in a case where the mind clearly inclines to a prohibition and the concern is clear and imminent (as in riding a bicycle and wearing a watch, אשר). It seems clear that Rabbi Elyashiv does not mean that we have an authorized institution that would derive this, but rather that his method seems to be that every sage who sees something that clearly deserves to be prohibited and there is a great concern that it will become a prohibition, must derive and prohibit it on his own. Indeed, Rabbi Yosef is consistent in his method and disagrees with him. He repeatedly states that we should not derive new decrees from our own mind at all (see several other sources in the Responsa Will have a say (C.B. Si. Neb. Sud. 'Response: In the tractate').

Although he saw inAGM O.H. C.D. S., who wrote:

Here is the matter that by means of electricity (the electrical matter) it is possible, by means of a time clock, to set us up in a way that will start cooking for the next day on Shabbat about an hour before the time for eating, here is the simple ruling that it is forbidden to permit this, since by means of such a time clock, all work can be done on Shabbat and in all factories (fektaris), and there is no greater disrespect for Shabbat than this, and it is clear that if this were the case at the time of the Tannaim and the Amoraim, they would have prohibited this, just as they prohibited a statement to the Akkum on this account, and perhaps it is also in general this prohibition, they have established a statement to the Akkum, they have established all work that is done for Israel from the standpoint of the statement of Israel and so on from the standpoint of the act of Israel…

He raises the possibility of prohibiting something that, if it were in the time of the Tannaim and the Amoraim, would have prohibited. However, he rejects this as a conclusion, and says that one should not innovate decrees without our knowledge (and see also his remarks regarding the use of a microphone, in Habakkuk 35:5, 5:5, "in conversation"). And so in the Responsa Yabia says H.I.C. to him:

And it is not to say that if this had been the case in the days of the Sages, they would have decreed and prohibited it, because in any case, since the first sages who had the authority and power to prohibit what is permitted by decree are not present in our time, we do not have the power to prohibit what is permitted by decree... and we believe in the Law and do not conclude that it is completely permitted, and we are here to make a statement to the present.

Therefore, the conclusion is that both tend not to make use of the consideration that if this had arisen in the days of the Sages, they would have prohibited it in order to prohibit it in our own day. This is also included in the fact that we do not issue new decrees, because we do not have an authorized rabbinical council (minyan). Ostensibly, this means that it is not possible to make use of implicit regulations or decrees.

Summary of approaches regarding implicit regulations and decrees

If so, it seems that Rabbi Yosef and most of the latter believe that decrees should not be renewed without our knowledge, and not even things that, if they had existed in the days of the Tannaim and the Amoraim, would certainly have been prohibited. Apparently, decrees and regulations by implication are an approach that is possible only in the knowledge of a minority of poskim.

But it seems that a dezira from the outset is not exactly a new dezira from our point of view, and it is possible that even the poskim who oppose the introduction of prohibitions in our time would agree with it. First, if it is something that is already customary (establishing an existing custom), then it is obvious that it seems easier (and this is the case in the context of the prohibition of courts). But even without it being customary in practice, if it is something that is self-evident and very important to prohibit or permit, then there is room to deviate from the accepted approach that denies the introduction of rabbinic laws. That is, whatAGM What Rabbi Yosef does not accept is the approach that what was prohibited in the time of the Sages (as part of their regulation, or their ancient decree) should also be prohibited today. But we are dealing with various situations in which the prohibition or permission is necessary and extremely important for reasons that exist today, and where avoiding the renewal of a regulation or decree would result in serious moral or social harm, where there is reason to resort to implicit regulations.

There seems to be a problematic reference to the rules of halakhah here. I suggest viewing the accepted rules as if they can be deviated from where this is required. Is it possible to refer to the rules of halakhah in this way? It seems to me that yes.

First, we saw the issue of a transgression per se. We also saw rishonim and poskim who do this all the time. In general, two unique sources can be cited regarding deviation from the rules of halakhah where the matter is clear from explanation. First, in the Toss, the Rabbi of the Toss, the Rabbi of the Toss, writes that the reason for the citation is clear and self-evident. Second, above we cited the words of the Rabbi of the Toss, who wrote that a matter is removed from the Torah even in the Torah when it is for a compelling reason. From these two examples and others, we see that when there is a compelling reason, it can be applied even without it being in accordance with the regular rules of halakhah, even with regard to the laws of the Torah (such as the case of reason for the citation or the killing of morality). This is even if we accept the prevailing view that one cannot innovate a decree from one's own understanding. This is an application of the saying of the Sages (Kiddushin 34a and Erubin 29a): One should not rule out generalities even in a place where it says "except." In other words, the rules in halacha have a limited status, and one should not adhere to an overly rigid interpretation of them. Sometimes one must deviate from them.

Indeed, although the first and last scholars have already written that decrees should not be renewed at this time (see the note at the beginning of the section), even the most conservative jurists, such as theHazo"aIn many places, there is a need to introduce new rabbinical prohibitions.[22] It is quite clear that where the time requires and for the definition of a word for all opinions, there is room for renewing prohibitions, decrees, and regulations, implicitly (without a meeting of the Jewish Council).Hazo"a He himself writes in the O'H. 676 (and in several other places. See the last note): "If a person comes near an obstacle, he must be forbidden, and the court of

And we haven't even mentioned the prohibitions on cell phones, the Internet, radio and television, singing in public, hiking and driving, which are common in Haredi society wherever circumcision is required. So why would there be authority to decree and not authority to correct in such situations?

From all of this, we see that implicit regulations, at least where this is self-evident, are certainly a reasonable and possible solution for a generation in which there is no authorized institution that will actually correct or decree what needs to be corrected. There are things that are based on a necessary explanation, and the assumption is that they should be treated as an implicit regulation/decree, even if there was no authorized court that determined this. It seems that the authors of the Torah and other poskim also relied on this, who made quite a bit of use of overarching principles in order to remove things from the Torah, as in the examples we gave above.

And truly in the Responsorial Psalm Solomon's House (Yod. 39, 29, in the Ghetto by Ben Ha-Ha'aref, at the end of the note) He brought many reservations and limitations that the early ones established for us even though they were not forbidden in the Talmud. For example, what the Ge'onim forbade from brewing and ty'tha, what required a woman to wait five days before she could begin to count seven clean ones, and what the Ge'onim forbade from the wife of her father-in-law [according to some of the poskim]. And he wrote there that if he were to count all these things that were forbidden after the Talmud, the volume would be too short to contain them. And there he wrote that what the aforementioned Rosh wondered about on Shabbat regarding the fasting prayer was how the Geonim could have made a new decree, which was actually naive because when they decree that one should not say Ananu out of fear that one would not fast, we find that we are uprooting the words of the Sages who said to say Ananu in the same prayer, and this is precisely what the Sages after the Talmud do not have the power to do, even in the Shav and Al Ta'aseh A's, to uproot anything from the words of the Sages by inventing a decree. But where the decree does not uproot anything from the Shas, it is possible to issue a decree even after the Talmud was signed. Therefore, even if it is possible to issue a decree and correct it without the Idna, there is a great problem in doing something that uproots the law of the Talmud.

Although we have seen that the regulation of 'Shlichuthiyohu Dakmai' is a post-Talmudic decree that uproots Talmudic law (which requires converts to Judaism). However, there we are talking about Torah law and not a regulation, and as is known from the words of Maimonides in the Book of Repentance, it follows that with regard to Torah law there is no impediment to abrogating the words of a previous rabbinic law, even if it is not greater than it in wisdom and number. The reservations were stated only regarding regulations and decrees.

The conclusion is that an implied regulation is a problematic mechanism in relation to the uprooting of regulations and decrees of the Sages. But in relation to Torah law, perhaps it has a place in our time as well. It is true that one should reject it and say that where necessary, there is also a place for such a regulation. But beyond that, we must examine whether the overriding consideration we have proposed is a regulation or an interpretation of Torah law.

Is this a regulation or an interpretation?

It is not entirely clear whether the application of the supreme principle with respect to the prohibition of courts is a (total) rabbinical rule, meaning that the rabbinical prohibition of courts in such situations is removed, or whether it is an interpretation of the Torah prohibition according to which this prohibition does not apply in our current situation. The same is true regarding the law of 'shlichiyotiyehu', and this has already been discussed by Rishonim and Acharyim.

This is also seen with regard to the innovation of the Meiri who permits saving the life of a Gentile on Shabbat even at the cost of desecrating Shabbat in the Torah. There, I showed quite clearly in my aforementioned article that this is an interpretation of the prohibitions of the Torah and not a regulation. The Meiri claims that the Gentiles of his day practice reasonable morality, and therefore the prohibitions of the Torah were not stated at all regarding them. Even in the examples I gave above from contemporary jurists, it is necessary to discuss whether the addition that the sage adds in our generation is an interpretation of the ancient decree (again, not an interpretation of the original intention of the jurists) or is a new decree.

It is important to note that the problem (the question of the boundary) exists even if it is not a regulation but an interpretation, and perhaps here it is even more acute. If we take interpretive measures or such regulations, we can empty the entire law of content. We can always say that some law stated in the Torah is not relevant to our day and thus cancel it, whether we treat it as a regulation or see it as an interpretation.

Therefore, the existence of a binding, authoritative institution is acute for the implementation of such principles. Only such an institution can interpret or amend in this way, and only then do we not give anyone the opportunity to abrogate Torah laws. If only an authorized institution does this, then we are only allowing the sages to perform the role that the Torah itself assigned to them (decrees and regulations), and it is unreasonable to see this as the destruction of the Torah. Although in the context of the permission to prohibit courts in our day, de facto the permission is already in effect, and therefore it seems that here there is no need to wait for the existence of an authorized institution. Here, we are satisfied with the honest policy of the rabbis of our time, which will put on the table what is already laid out under it anyway.

Therefore, even if what I have said so far is correct, there is certainly room for argument that a broad consensus is required, if not an authorized institution of the sages of the generation, to make this decision. I will only note that regarding the prohibition of courts, there is reason to believe that such a consensus already exists, even if it is not explicitly stated (see my remarks above).

A note on the relationship to 'principles' in Ronald Dworkin's legal doctrine

It is worth noting that this way of thinking also appears in general legal thought, starting in the mid-twentieth century, simultaneously with the retreat from the formal-positivist way of thinking. Until that time, the positivist position was very widespread, which saw the legal system as a closed system, and the role of the judge as someone entrusted with extracting a legal decision for the case before him, using logical-deductive rules of inference that are applied to the statute book (and perhaps also to precedents). Such a frozen and logicist view of the law received severe criticism after the Holocaust (where the Nazis claimed that they were acting under the provisions of German law). Therefore, starting in the second half of the twentieth century, there was a retreat in the popularity of legal positivism (as well as philosophical positivism), and softer approaches emerged, which do not see the statute book as a rigid logical structure. These approaches give more space and degrees of freedom to the activities of judges.

A prominent expression of this view is the legal doctrine of Ronald Dworkin, a Jewish American philosopher and legal theorist in the second half of the twentieth century. Dworkin argues that the judge's toolbox should also include interpretive tools with which he can expand the laws beyond the original intent of the legislators. The judge is not concerned only with simple deduction from laws and precedents (although see below on Dworkin and positivism).

According to Dworkin, the judge is also supposed to use 'principles', as opposed to 'rules', which are the positivist's thinking tools. Principles are thinking tools and values that underlie the conventional thinking in the legal system in question (and perhaps also in society itself, there is some debate about this), even though they do not appear explicitly in the statute book. The judge can consider these forms of thinking and values as if they were laws or precedents, and decide the case according to them, even though this may seem to deviate from the dry and formal law. Dworkin's 'principles' include values, considerations of natural justice, and more, and one of their main goals is to prevent ethical and social absurdities that could arise from a positivist approach that advocates logical adherence to the dry law.[23]

On the surface, this is clearly an approach that is very similar to the one we have proposed here. The posak is also supposed to use additional tools, beyond the formal halacha from its authoritative sources, in order to expand its boundaries. He makes use of general principles (superior considerations), which are based on the spirit of halacha and various values that prevail in Jewish society (and perhaps also in general), in order to prevent absurdities and problematic results of excessive adherence to the formal sources of halacha. These principles are drawn from the Torah, from the sources of halacha (even if they are not explicitly written there), and in the perception of modern Orthodoxy it is reasonable to draw them from foreign sources as well. According to our 'Dvorakian' proposal, these principles can be considered part of the laws of halacha, even though we do not have a clear source for them. This can perhaps be seen as an extension of the principle of "sabrah da'orita," which I will not go into here.[24]

It should be noted that Dworkin himself presents his method as a slightly different type of deduction, and sees himself as part of positivism. However, his intention in doing so is to distinguish himself from the natural law approach, which sees rules as something binding due to their universal natural validity, regardless of any specific society or legal system in question. A natural law approach (or natural law) does not see much importance in legislation and the specific legal system, since in its view the main validity of laws is due to their natural-universal validity. Dworkin opposes this approach, and believes that each society has its own legal system, and it is the legislation that creates it. However, at the same time, principles (which can also be unique to that society) must also be taken into account, and not just the law itself. Therefore, it is generally accepted to see his approach as an intermediate approach between natural law and positivism.

In the halakhic context, similar distinctions can also be seen. There are universalist approaches that give very little significance to specific Jewish legislation (halakhah), and see the main thing in universal laws and values, similar to the natural law approach. More conservative shades in Reform Judaism (those who see something relevant in halakhah) are certainly like this, and perhaps also in Conservative Judaism. It is very easy to identify my words here with this approach (and accuse me of reform), but not with it. Here my intention is to present a different approach, despite the outward resemblance. I do not intend to erase halakhah and insist on universal values. My argument is only to expand the boundaries of halakhic deduction. To also use the principles and spirit of halakhah, and not just the formal halakhic sources. As I have tried to show, the halakhic sources themselves also do this, even if not always explicitly.

There is a point in giving here things that Rabbi M.T. Neria wrote in his book To the Rabbis, regarding Hebrew labor. This is a rabbi who asked one of the great foreign scholars whether it is obligatory to employ a Hebrew laborer even if it is expensive, and the aforementioned sage answered him that it is obligatory if it costs up to a third more than the cost of a foreign laborer.[25] The Rabbi heard the words and sighed heavily, then said:

Yes, the rabbi who answered what he answered knows what is written in the Torah, but we also need to know what the Torah wants. The Torah wants Jews to return to the land, and if they work with Arabs – the Jews will have nothing to do in the land, and they will not return. In this case, no price can stand against Hebrew labor.

I would like to point out that these things should not be seen as actual evidence for my claims (since there is no prohibition on employing more than one-third of Jews, and therefore there is no displacement of laws here), but there is certainly a general direction here. The Rabbi believes that sometimes the spirit of the law is more important and correct than adherence to the formal law.[26] This is also the spirit that blows from one of the most important members of the retinue of the Rabbi, isn't he?Hazo"a, who, as we mentioned, also spoke about the fifth part of theShulchan Arba'ah, and even made considerable use of it (although, usually in more conservative directions).

The Border Question: Returning to Conversion and Saving a Gentile

The remaining question here is the question of the boundary. We cannot exhaust it here, but we will try to clarify it by discussing the other two examples, accepting the commandments upon conversion and saving a Gentile on Shabbat. We must examine what prevents us from applying a similar way of thinking to these examples as well.

Regarding conversion. First, to the best of my judgment, the need to exercise such a consideration does not really exist (see my aforementioned articles onentree). On the contrary, it is desirable to convert lawfully, and it is precisely the avoidance of this that brings about the harm. Second, here we cannot point to an existing consensus as we saw regarding the prohibition of courts. Third, conversion is a process that the Torah determines and its details. Through implicit regulations, we can perhaps permit the forbidden and prohibit the permitted (to remove something from the Torah in the Sho'at and the Q'u'ah), but we cannot change the definitions of halakhic processes. We cannot observe the Sabbath on Wednesdays instead of on Shabbat because of one or another consideration. If, indeed, according to the law, there is no conversion without receiving a commandment, then we cannot waive this and determine that conversion without receiving a commandment is a valid conversion. It is impossible to turn a Gentile into a Jew for overriding considerations.[27]

Regarding the desecration of the Sabbath to save a Gentile. It seems that there is no room to allow an explicit prohibition of the Torah or the Sages, without any factual change. After all, the Sages also took into account the moral problem of abandoning a Gentile to die. If they decided that this does not reject the desecration of the Sabbath, we cannot disagree with them (after all, we have accepted the authority of the Talmud and the Sages. See As of today Only if we use a consideration like that of the Meiri (see my above-mentioned article), which explains that a factual change has occurred from the time of the Sages to our day (the Gentiles behave in a more moral manner), can we change this law. It is impossible to use overriding considerations that contradict the clear position of the Sages and all the poskim, but only if this step is consistent with their perception of the time in which we find ourselves. In fact, such a consideration does exist, but not by virtue of an overriding consideration, but rather as an interpretative consideration regarding the original halakha (which prohibits saving a Gentile by desecrating the Sabbath).

We will note that even in the context of courts, the argument was that although Chazal also took into account the price, they still determined that there was a severe prohibition against resorting to courts. But here we also used the consideration of changing reality in our day compared to reality in the past. In such a situation, there is room for the use of overarching considerations, similar to what HaMeiri did. Admittedly, this is not a simple interpretation as HaMeiri did (the Gentiles in question are only immoral Gentiles), but rather an overarching consideration that is based on changing reality.

Summary

In this article, I proposed using overarching principles and the spirit of the halakhah, instead of reaching the same halakhic conclusions by adhering to the halakhah with policies that seem like "winks," and resorting to problematic halakhic considerations. I discussed in detail the application of the prohibition of arqaot in our day, where instead of basing it on problematic interpretations, the overarching principle that underlies the permission should be laid out on the table: the impossibility (ethical and factual) of living otherwise. This mechanism could be based on implicit regulations, similar to the regulation of "Shlichiyot Yehud," or on an interpretation of the Torah laws and their limitation to the realities that prevailed at the time. A similar method arises in other contexts, such as conversion and saving a Gentile on Shabbat, and I proposed initial considerations that will help us examine whether it is indeed correct to apply it in each of these contexts.

Although we have found this method in the Poskim mainly in the direction of new decrees in our day where the time is needed, that is, for the humara. But I see no reason to do the same for regulations that the time is needed, even for the kulak. If where the time is needed there is room for decrees from the implicit, why would there not be room for regulations from the implicit? And especially if it is an interpretation of Torah law and not a regulation or decree, then the matter is easier (in light of the words of Maimonides, Ref. 2, Memmarim).

Because of questions of authority and substance, this method appears problematic on its face, and it is no wonder that the poskim are reluctant to apply it. Nevertheless, I have shown that the price of an esoteric expression that appears on its face more conservative is no less severe, and the price of not using these tools is no less severe. I will note here again that usually a decision to use such overarching considerations is indeed conditional on a broad halakhic consensus (with regard to courts, such consensus does exist implicitly, to the best of my judgment).

I also argued that, even without going into the depth of the sociological distinctions between the various Orthodox streams, it seems that this method can appear mainly within the ideological framework of modern Orthodoxy. This is in contrast to the Haredi and other shades of religious Zionism that prefer to hide behind conventional halakhic considerations.

It is clear that this article presented only initial outlines for discussion and consideration of this serious issue, and may the wise become even wiser.

[1] See Sanhedrin 23:1 and in the commentators and jurists there.

[2] Michael Avraham, Gates of Conversion: On Violence and Good Intentions, entree 22, Nissan 5769.

[3] See a sharp and poignant expression of this in the correspondence between Rabbi Avraham Rontzky (later Chief Rabbi of the IDF) and the late Yosaka Ahituv. Movement newspaper Dimension, Issue 16 (May 1999), pages 16 – 20. and inPriestly decorations 180, Kislev 5770, pp. 26-41.

[4] Michael Avraham, researcher and ally, entree 14, 5764.

[5] Michael Avraham, Is there enlightened idolatry? entree 19th of Tammuz 5767.

[6] Yitzhak Geiger, The New Religious Zionism – A Review and Criticism, entree 11, 5762.

[7] See also Asher Cohen's article, The Knitted Kippa and What Follows It: Multiple Identities in Religious Zionism, entree 15, Cheshon 5765.

[8] See Menachem Alon's monumental book, Hebrew law, Volume 1, and in Yaakov Bezek's article, "The Courts in Israel - Are They Really Courts of Gentiles?", Areas 2 5781, pp. 523-527.

[9] For example, see his article The Halachic Status of the Courts in the State of Israel, Areas 13, 5752-53. In light of our remarks above, it is only natural that the article appears in the journal Areas.

[10] See "Because There Is No Justice" – on the problematic nature of presenting "Torah law" as a practical possibility, entree 20, Nissan 5771.

[11] See Rambam, Hal. Teshuvah, 13:12, who states that the moral has no part in the world. Similarly, in Hal. Hovel Mekdiz, 18:9-11:

9. It is forbidden to hand over an Israelite to the Gentiles, whether in person or in wealth, even if he were wicked and guilty, and even if he were afflicted and distressed, and whoever hands over an Israelite to the Gentiles, whether in person or in wealth, has no share in the world to come.

10. It is permissible to kill the traitor in any place, even at this time when there is no ruling on the law of persons, and it is permissible to kill him before he delivers, except when he says, "I will deliver so-and-so with his body or with his property, even with a small amount of property, then he has permitted himself to be killed, and they permit him and tell him not to deliver. If he dares to say, "No, but I will deliver," we have a command to kill him, and whoever kills him first is justified.

11. The person who committed the crime and committed it, I think, is forbidden to kill him unless he was held to commit it, then he will be killed lest he commit others, and actions at any time in the cities of the West to kill the perpetrators who were held to commit the crime of delivering the money of Israel and to deliver the perpetrators into the hands of the Gentiles to kill and beat them and imprison them according to their wickedness. Likewise, anyone who causes distress to the public and causes them distress is permitted to be handed over into the hands of the Gentiles to beat and imprison them and fine them, but because of the distress of an individual, it is forbidden to commit him, and it is forbidden to lose the property of a perpetrator, even though it is permitted to lose his body, for his property is worthy of his heirs.

And it was ruled inShulchan Arba'ah H.M. C. Shaphak 19-12.

[12] This is also largely true of legal systems in other democratic countries. I will not go into this question here.

[13] Quite a few latter-day scholars explain the issue of transgression for its own sake (Nazir 21) as if it were a conflict within halakhic law. And in truth, the explanation I proposed is indeed the simple simplification of the issue, but it involves a serious danger of destroying the halakhic framework. On the other hand, it cannot be denied that this is indeed the simplification of the issue in Nazir. The obvious conclusion is that such a consideration should be made only where the results are truly disastrous. I have clearly expanded this meaning in the issue, contrary to some of my recent interpretations, in my two articles inDacha 5768.

[14] See more in A. Grossman, Hasidism and rebellion, Jerusalem 5763, pp. 229 ff., and the sources mentioned there.

[15] This consideration is reminiscent of the dispute between Tos and the Rashba regarding spiritual Piku'n, whether it is more severe than physical Piku'n or less severe. See a detailed discussion of this in Rabbi Shaul Israeli's article, Piku'n Nefesh in Spiritual Danger, Areas B, , p. . Incidentally, it should be noted that the discussion there also makes use of overarching considerations, and it is difficult to fit it into the accepted halakhic framework.

[16] See also the responsa of the Rivash Si' Tikha and the Maharishi Mintz Si' 5, who also dealt with this.

[17] Incidentally, it is worth noting that for this very reason there is reason to prohibit the prohibition of courts in our time, since this is a general public permit, and not a permit for individuals. The matters are presented here only as an example of the use of the method, and not as a halakhic basis for the permit I am discussing.

[18] This topic remains unknown in public debate, and for good reason. See a Shema lesson by Rabbi Dr. Ratzon Arousi, on the website Netzah Israel his: http://net-sah.orgHe cites there the method of Rabbi Yaakov Yosef, who advocated the compilation of a legal code with disqualified witnesses, and vehemently denies it.

See also Yoav Friedman's article, YNET, dated 6.6.05, which quotes Rabbi Bakshi Doron, who indicates that quite a few rabbis actually do this: http://www.ynet.co.il/articles/0,7340,L-3095749,00.html.

[19] I saw in the yet-to-be-published work of my friend Rabbi Mordechai Peterfreund that he collected many sources on this matter and discussed it in detail and with impressive expertise. I thank him for the sources here and below. This should not be seen as his agreement with my words, of course.

See, for example, the responses of the sages (Hidden treasure C. Ez) In the 19th century, Rav Shalom Gaon wrote that he was asked whether it was permissible to bake a cake and put ali or meat in it, and he replied that it was permissible to do so and that he should not worry lest he leave crumbs and eat them with cheese, and he wrote there, "We do not worry about anything that our first rabbis did not decree, even if there is something that is more than that, and if there is a matter of making it more severe, we do not worry, etc."

And I also looked at Rosh (Shabbat P. B. 35:15) who quoted from the words of the Geonim that we do not customarily say the fasting prayer in the evening and in the morning, lest he be afflicted by a disease or a binge and taste something and be found to be a liar in his prayer, and wrote in the Rosh, "And I am still amazed how the Geonim could have made a new decree after Rav Ashi of the Shas." And so on.mm (5:15) Regarding kneading the dough for matzos with wine and oil, the Rabbi David instructed the Zerizim who were to bake the matzos by hand, but not for every person, and he wrote:mm "And I say we should not judge from our own minds the generations of the late geniuses."

And in recent times many have written like this. For example, theflower In many places we are not to derive from our own understanding, as in his words regarding the determination of legumes, and in the Tana (Resh Saka) regarding placing the vessels of leaven and Passover vessels in a place where there is a fear that they will be used. In the Tana (Resh Saka) the Rema states that it is forbidden to study in contemplation in a place where it is forbidden to speak, lest while contemplating he come to speak. And so on.MGA (Sixth Chapter 6, 198) When discussing whether it is permissible without washing to imbibe on Shabbat, it is forbidden: "And what is the reason for this, since the sages did not decree it, and as the Mishnah 66 132in me etc. [And so on.]in me Mishak regarding the tzitzit on Shabbat]. And "A"a 2Shulchan Arjuna (O.H. Si. Tammuz Kontra"a Ska"a) who wrote regarding the matter of not seeing and not finding in the mitzu found among others, etc. "And it is not permissible to say that it is forbidden by the Rabbis, that it is forbidden to innovate, from our own understanding, a decree that is not found in the Talmud." And see also Yosef's knees (O"H 5362 and in Si' Tka 62 and in Si' Shlet 67. VArvash (O.H. 1961 and Y.D. 1961, and S. 1967). And according to what we have mentioned in thisMalachi's Hand (The Rules of Law, Si Kang) andShdach (From the G-A letter 11 and the system of the R.H. Si' A S.K.A. and B.Letter to Hezekiah C. 13, page 33: D. H., and so on).

See also what we will cite below from the rabbis of our time.

[20] Although he saw inKZVAH Si' Kafah Sk'ab wrote, following the method of some of the first, that there is a mission after the death of the one who sent, but the latter have already rejected his words (see, for example, the same commentary). Miloai Hoshen to Rabbi Dzimitrovsky and others).

[21] In this context, see Rashi, BM, Tzo A-B:

They were a court of law – of Israel in that generation, on which all legal regulations depend, and by which laws are enacted that have been accumulated since then, and woe to those for whom they were established, and they were found to be the ones who appropriated the holy properties and took them out to the Gentiles.

In Rashi we see here that the regulations of the ancient Jewish Jurisprudence are considered to be the regulations of the contemporary Jewish Jurisprudence that implements them. There is no room here to elaborate on our matter.

[22] In the same work by Rabbi Peterfreund, he states thatHazo"a In many places he claims that things that people might easily stumble over have the Sages forbidding them even in our time, even though there was no Moshav Yadav. See Hazo"a (O.H. 32, 626 and A.H. 31, 13, 15, 'Deserts of the Ram') who discusses drinking a cup of water, whether the prohibition is from the Torah or from the rabbis, and after seeing it from the body of the issue, and for the Achmak he wrote, "In the case of a person who comes near an obstacle, one must prohibit it, and a meeting of the 14th council must prohibit it, except for the entire judge who is obligated to prohibit it." He proves this from Ha-Giga 19:1 regarding the matter of a torn-off gal. See also Hazo"a Judge C. 14th Sec. D. H.PMG "Sometimes every wise man is warned to prohibit in order to [not] break through a fence where the obstacle is located, and as the saying goes, Hagiga 19. To cut off a mustard seed from the rains."

See also his words regarding the matriya (Och 35, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 6970, 70, 70, 70, 70, 70, 71, 71, 71, 71, 71, 71, 71, 72, 73, 74, 75, 76, 77, 78, 79, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 70, 71, 72, 73, 74, Innovations and explanations (Nada Sussi 2:633) who quoted in his name: "And do not be surprised where we find that the Sages decreed, that it is clear that it is better to decree a decree that is accepted by them, but decreed and stands. And I heard from Maran zt"l who proved what they said, "How many times have I heard it, what is it lawful to decree, etc."

And also in the book Second thread (Chapter 1, page 2) He brought what?Hazo"a It was forbidden to open the refrigerator even while the engine was running, even though opening it did not activate the engine, as it was already running. Rabbi Karelitz explains thatHazo"a He believes that wherever the fear that a person will fail in the prohibition is a proven fear, there is no need for a special ruling by Chazal to make a ruling, since it is merely a clarification that this matter is generally "a matter of my duty," and God is everywhere where the ruling is proven. He cited as a reminder the Mishak of the Rashba (Chulin 10, cf. האמר רב יידי). And E.A. 2Our Lord's lodgings (Chapter 17)Hazo"a He ordered these things to the General Dessler.

[23] See about this in my book. The Spirit of Justice, Beit El Library and Mida Tova, Kfar Hasidim 2011. See there mainly in the sixth chapter. In the seventh chapter there I discussed the philosophical foundations of these concepts.

[24] See about him in the above-mentioned books, The Spirit of Justice, pp. 371 ff.

[25] theMishnah Berura (Spear sign, Hour Attorney) wrote:

And the big traders need knowledge, When they have the opportunity to buy etrogs from two places – one from Israelis and one from foreigners, and both are equal in terms of kosher – they should buy from Israelis, as it is written: “Or buy immediately (Israel is your friend).”

In the Responsa of the Rama (sign ') he wrote, "And even to a Gentile in (a profit) of a few, and to his friend in a loss – his friend first." However, a person is not obligated to lose and buy from a Jew when there is a large difference in prices (Love of kindness 1:5, 7). And they divided by the difference rate – some interpreted it as up to a sixth (Benjamin Farm 1:22) and some say up to a third (cf. Shulchan Arba'ah (Yod Retto, 8). And some say that a Jew should be preferred even by more than a third (Uziel's Laws 4:44). And see, see. Shulchan Arba'ah The Chief of Staff of the Army, the Chief of Staff and the Chief of Staff of the Army, were there.

[26] Regarding meta-halakhah in the halakhic way of Rabbi Kook, see Rabbi Neriah Gotal's book, New and old, Magnes Jerusalem 5765. And briefly in an excerpt from it: "Meta Halacha in the Ruling of Rabbi Kook", which appears on the website flood, dated 14 Sivan 5772.

[27] Although we saw above that the regulation of "Shlichuthiyohu Dekmai" removed a requirement from Torah in the conversion process, that there be close judges. Nevertheless, there seems to be a difference, since removing the need for close judges only concerns the conversion procedure, but removing the need for receiving a commandment harms the essence of conversion itself. Likewise, there is room to see the judges of our time as close to this matter by the general public (similar to the well-known Maimonides' method of renewing the ordination with the consent of all the sages of Israel).