The Doctrine of “S’past Nisht”: The Prohibition of Arka’ot (Secular Courts) (Column 448)
With God’s help
Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.
In the previous column I briefly addressed what I called “s’past nisht” considerations. I argued there that at times, even without a substantive halakhic license, a given halakhah is nullified on the claim that it is “s’past nisht,” meaning it is unreasonable to act that way, at least in our present reality. I brought several examples of an implicit use of such arguments, like saving the life of a non-Jew on Shabbat, and more. Usually these arguments are wrapped in supposedly substantive halakhic reasoning, but in many cases those reasons don’t hold water, and certainly don’t lead to the full conclusions we in fact draw. This points to a “s’past nisht” consideration operating in the background; only, because of its vagueness and the dangers of slippery slopes of various kinds, decisors are reluctant to put it on the table. They prefer to cloak it in quasi-halakhic arguments.
In the talkbacks there, a claim arose that such reasoning isn’t sufficient, since halakhic thinking requires a substantive rationale in order to change or set aside a law. Of course, behind such claims stands the aforementioned fear of slippery slopes, for with arguments like these one could indeed abolish vast parts of halakhah altogether. In that context, they mentioned my bathing-suit example—namely, a type of argument that says that the original prohibition assumed certain conditions that no longer obtain today; therefore the prohibition lapses or changes. That is what I once called in the past a “conservative midrash.”
But it’s important to understand that behind “s’past nisht” rationales there always stands this kind of conservative midrash: were the Sages acquainted with today’s reality, they wouldn’t have prohibited. What is the difference between this and the “conservative midrash” as I defined it there? Essentially I’m asserting that if the Sages lived today, they would not obligate the destruction of figurines. True, this is not a rabbinic prohibition, for it is explicit in the Torah in several places—but the Sages did at times allow themselves to “manhandle” even explicit prohibitions (see the rebellious son, the condemned city, and more) and thus remove them from the practical plane. It’s plausible they would do the same here as well.
The problem is that in the absence of the Great Sanhedrin or some authoritative body, there seems today to be no actor who can actually do this. That is, even if conservative midrash is part of halakhah’s built-in mechanisms and involves no reform whatsoever, authority is still required to carry it out. The abrogation of explicit Torah prohibitions—or of prohibitions established by a Sanhedrin—demands an authorized body (a Sanhedrin): a matter established by a vote requires another vote to permit it. Therefore conservative midrash alone does not suffice to ground a change in halakhah. In many cases, debate over halakhic change reveals agreement about the need for change, but considerations of authority prevent it. To be sure, questions of authority aren’t quite as unequivocal as one might think; and indeed, over the generations Sages did change laws when necessary in one way or another. Even so, when we come to argue for halakhic change, the issue of authority breathes down our necks.
Therefore I added in the previous column that even if we lack authority to change, sometimes a moral consideration can override a fixed halakhah without changing it. This can stem from deciding a conflict between halakhah and morality (both being the will of the Holy One), or from a mechanism of suspension which, as I showed in the third book of the trilogy, does not require formal authority and is thus open also to the sages of our time.
In this column I wanted to address another example that touches on s’past nisht considerations, albeit of a slightly different sort. As we shall see, even here it isn’t clear whether we really use s’past nisht considerations or whether we’re dealing with a regular intra-halakhic interpretive move grounded in substantive reasons, and it’s also unclear whether there is a sharp difference between the two. My intent here is the application of the prohibition of arka’ot (resorting to non-Jewish courts) in our day. As I shall try to show, this is a s’past nisht drama in four acts (or generations).
Halakhic background: The prohibition of arka’ot and lay judges—s’past nisht, Generation I
The Talmud in Gittin 88b brings a derashah on the beginning of Parashat Mishpatim:
It was taught: R. Tarfon would say—wherever you find assemblies of idolaters, even if their laws are like the laws of Israel, you are not permitted to resort to them, as it is said: “And these are the ordinances that you shall set before them”—before them and not before idolaters. Another interpretation: before them and not before laymen.
The ordinances are to be brought before qualified judges, which excludes gentiles, or Jewish judges who are unqualified (hedyotot)—even if they would judge according to Torah law.
This law is codified by all the halakhic authorities, and the Sages viewed this prohibition as a fundamental pillar of halakhah; transgressing it is likened to planting an Asherah beside the altar. This is no surprise, of course; if one goes to litigate before gentile courts, the entire halakhic system is uprooted from its place. All our halakhic engagement is in order to implement it in our lives. But if we engage with it and yet go to litigate before gentiles or laymen, we have annulled the very essence of halakhah. True, the prohibition applies even if their laws are like ours, as many have noted. If the judges are Jews, this is apparently a kind of biblical safeguard; if they are gentiles, there is the concern of honoring their idols and degrading the Torah.
It should be noted that qualified judges are only judges with classical ordination (semikhah), ordained man-to-man back to Moses our teacher. Any other judge, however learned he may be, is invalid to judge as a matter of principle.[1] The Talmud in Gittin there cites, in this context, the rule of sheluchuta (“their agency”), according to which the Babylonian judges, who were not ordained, were authorized to judge. That authorization was given to them by the ordained judges in Eretz Yisrael, who appointed them as their agents. This appointment applies only to certain topics (common cases that involve loss to someone).
At first glance, this would seem to have been a decision by the ordained judges in Eretz Yisrael to appoint the judges of Babylonia as their agents. But it simply doesn’t appear that any such formal decision was ever made. I assume the premise is that it is not reasonable to leave a Jewish public without an effective judicial system; therefore the Talmud says it’s clear that the ordained in Eretz Yisrael would want the judges in Babylonia to judge as their agents. This is a legal fiction, designed to meet a need. A legal fiction, by definition, turns the ideal into the real—that is, if it is desirable that there be judges, then “there are” judges.
Already here one can say there is a s’past nisht consideration, for the very foundation for permitting lay judges (that is, learned scholars who lack semikhah) to judge is based on the assumption that an entire public cannot be left without judges and courts. By virtue of this consideration, the Torah’s law that permits only ordained judges to judge is effectively set aside, despite all the superlatives attached to those who transgress this prohibition.
There are several clear indications for understanding sheluchuta as a fiction. Two of them arise in Tosafot s.v. milta there in Gittin. The first arises from Tosafot’s question there:
“And if you will say: How can we act on their agency, for now there are no experts (ordained) in Eretz Yisrael—who gives us permission? One must say that we act on the agency of the earlier ones.”
We continue the sheluchuta permission into future generations, down to our day. Remember that an agent cannot act by the power of a principal after the principal has died. Therefore, once the ordained in Eretz Yisrael ceased to exist, it would seem that the sheluchuta dispensation should have lapsed. And yet, many generations after there is no single ordained judge anywhere in the world (to this day), Jewish judges around the world continue to judge by virtue of that obscure agency.
It seems reasonable that this extension is based on the fact that we are not really dealing here with an appointment of agents. This is a legal fiction grounded in a s’past nisht argument. Even after there are no longer any ordained judges, it is still obvious that the possibility that a public would function without a judicial system is s’past nisht; therefore we permit lay judges to judge without any explicit halakhic license. This is the first indication of s’past nisht reasoning in this context.
A second indication is the scope of matters to which we apply the sheluchuta dispensation. As noted, the Talmud itself implies that it was instituted only for common cases involving monetary loss. In that same Tosafot in Gittin there is another question:
“‘In matters that are common…’—such as admissions and loans. And (yet) we accept converts even though a convert requires three experts, as it says in chapter Ha-Chalitz (Yevamot 46b): ‘Judgment’ is written regarding it.”
His question is: how do we accept converts nowadays, for conversion must be performed before a court, and that is a constitutive condition (without a court, the conversion is void). As a matter of principle, the court for conversion is a court of three ordained judges, and today we have no ordained judges. Moreover, the sheluchuta dispensation is irrelevant to conversion, since it is not common and it involves no monetary loss.
And Tosafot answer:
“Our teacher (Ri) said that we act on their agency because it is considered like something common; and in Ha-Chalitz it also sounds like they would accept converts in Babylonia.”
The sheluchuta rule is applied also to conversion because it is as if it were common. What does “as if” mean—is it common or not? Apparently, in practice it is not common; but it is s’past nisht that in certain times and places there would be no possibility at all for someone who wishes to convert to do so. Therefore we forgo the condition that conversion be before a court—again, in contravention of Torah law.[2]
In passing, I’ll note that, as is known, the commentators disagree whether the sheluchuta rule is a rabbinic enactment or a Torah law. Both sides are quite problematic. On the one hand, the formulation clearly suggests an enactment. The regular laws of agency cannot apply to the law (certainly not when the principal has died), so how can one say it is a Torah law? What is its source? On the other hand, how can one say it is rabbinic? It is impossible for judges qualified only rabbinically to effect conversion. Would such a person be a gentile by Torah law yet a Jew rabbinically?
It seems to me the only way out of this thicket is to say that this is a legal fiction that has Torah-level force. There is an implied appointment of agents, and the one who appointed the agents was the Torah itself, not the ordained sages of Eretz Yisrael. We have no verse for this in the Torah—but we do have the s’past nisht reasoning: the Torah itself is not willing to countenance a situation in which a Jewish public functions without an effective judicial system. Therefore it is clear that the Torah itself permits lay judges to judge.
But here the s’past nisht issue regarding lay judges only begins. Let us now move to the law of the arka’ot of Syria.
The “courts of Syria”: A survey
Here I’ll offer a brief, concise survey of the notion of “arka’ot (courts) of Syria,” according to common interpretations—enough for our purposes. The Talmud at the beginning of the third chapter of Sanhedrin (23a) mentions “the arka’ot of Syria” in two contexts. The Mishnah there discusses the procedure called zabla (“zeh borer lo echad”—“this one selects one [judge]”), whereby each litigant chooses a judge and those two judges select a third. Among other things, the law is cited that each litigant may disqualify the judge chosen by the other. The Talmud challenges:
“This one disqualifies the other’s judge…? Does he have the power to disqualify judges?! R. Yohanan said: they taught this with respect to the arka’ot of Syria, but not with experts.”
That is, each litigant can disqualify a lay judge, but not an expert (ordained) judge. A lay judge is one who serves in the arka’ot of Syria. Rashi explains there that these were judges who were not versed in Torah law (but were, of course, Jews). This is the accepted interpretation, and I will proceed on that assumption.
The general rule in halakhah is that “the borrower is servant to the lender,” and therefore when a dispute arises between lender and borrower over where to conduct their litigation, the lender determines the forum.[3] But if the lender wishes to litigate before the arka’ot of Syria, the sugya cited above establishes that the borrower has the right to object and demand that proceedings be held elsewhere, before expert judges.
This raises the question how they were appointed, for there is a prohibition to appoint an unfit judge (i.e., one lacking proper character and/or knowledge of the laws). Several commentators explain that this is because in the Syrian community of that time there were no expert or versed judges. This contrasts with Babylonia which, as we saw, did have learned judges—only that they were not ordained (since semikhah does not apply outside the Land). In other words, the arka’ot of Syria were appointed Jewish judges who were not versed in halakhah. The lay judges in Babylonia were Torah scholars well versed in the laws (the Amoraim of Bavel), but they were not ordained. These are two types of laymen. Above I addressed the Babylonian type; now I focus on the arka’ot of Syria.
In any case, from this sugya it emerges that there is permission to establish a court with judges not versed in halakhah in a place where no expert judges are available. So rules the Rema, Choshen Mishpat 8:1:
“In towns that have no sages fit to be judges, or where all are ignoramuses, and they need judges to judge among them so that they not go before the arka’ot of gentiles, they appoint the best and wisest among them (in the view of the townspeople), even though they are unfit to be judges. And once the townspeople have accepted them, no one else can disqualify them.”
There is a well-known dispute whether such judges may also legislate their own rules (which do not accord with Torah law since they do not know it), or only judge by natural equity and estimation. The Chazon Ish (Sanhedrin 15:4) writes:
“And although among them there is no judge who can judge according to the laws of the Torah, and they are compelled to appoint a person of moral human intellect, they are not permitted to adopt the laws of the nations or to legislate statutes. For one who judges each case before him as it appears to him—this falls under the category of compromise, and then it is not evident that they have forsaken the spring of living waters to hew broken cisterns. But if they agree upon statutes, behold, they desecrate the Torah. And on this it is said: ‘which you shall set before them’—and not before laymen… And there is no difference whether it is before non-Jews or a Jew who judges by invented statutes; indeed the matter is yet more disgraceful—they have exchanged the judgments of the Torah for vain judgments. And if the townspeople agree to this, their agreement has no validity. And if they compel [others] by this, their judgment is robbery, and they raise a hand against the Torah of Moses.”
The context is, of course, very topical. He is directing his words at the courts of the State of Israel, which judge according to a foreign legal system of their own making (the Knesset), and therefore their use cannot be legitimized under the rubric of the arka’ot of Syria.
I’ll note that the Meiri on the passage implies otherwise, for he writes:
“In the arka’ot of Syria—they were not versed in Torah law, but judged by estimation and by statutes and ordinances.”
In simple terms, his language suggests that they may legislate.
The debates on this are many and long, and an ocean of ink has already been spilled on them; I won’t enter into them here. I’ll only say that, simply, the Chazon Ish’s reasoning seems persuasive—for otherwise we uproot the entire law of “before them, and not before laymen,” which, as we saw, is a core principle of halakhah. See, for example, Rabbi Yaakov Ariel’s article in Techumin, vol. 1 (and his debate there with Judge Bazak), and much more.
Another important reservation is raised by the Netivot Ha-Mishpat in his Hiddushim, §23 s.k. 13, on the above words of the Rema:
“And this is in a place that has no students of Torah, and they protested for them, so that they not go to the arka’ot, as above §8 [se’if 1]. But in a place that has students of Torah, it is forbidden to appoint an unfit judge, and even an individual can protest.”
The permission to appoint judges not versed in halakhah applies only where there are no versed judges. This indeed is the plain sense of the Talmud, and the reasoning is straightforward—even though on this too Judge Bazak and those of his view disagree.
The source of the “courts of Syria” rule—s’past nisht, Generation II
The problem that arises from all this is the question of source. There is a clear and severe prohibition against appointing judges who lack semikhah, and certainly those not versed in the law. Suddenly the notion of “the arka’ot of Syria” appears, which seemingly tramples that law underfoot without any source. This seems to be mere reasoning. How is that possible?
It seems to me this is the next step in the s’past nisht process regarding lay judges. We saw that the authority of learned but unordained judges rests on s’past nisht—i.e., that a Jewish public cannot be left without an effective judiciary. From there the rule of sheluchuta is born. We also saw that halakhah extends that authority to areas and times not included in the original dispensation; again, this is due to the same s’past nisht consideration, that it is unreasonable to leave matters of importance without a way to adjudicate them. As noted, this extension was made by reasoning, without source and without authorization from ordained judges (unlike the judges of Bavel who operated while there were still ordained judges in Eretz Yisrael—so one might claim they received authorization from their ordained counterparts). The next step in this process is licensing judges who are not versed in the law to adjudicate, in a place where no versed judges exist—and if they fail to create an alternative judicial system, people will go elsewhere.
As we saw, there is no rule here based on a source, and it doesn’t appear that there was any special enactment (unlike sheluchuta, instituted by the ordained). It was a given situation: in Syria there were unversed judges, and ex post facto this entered halakhah by virtue of the s’past nisht reasoning, as above.
The debate over the courts of the State of Israel
As I already mentioned, there is a raging debate over resorting to the judicial system of the State of Israel. This is a system that operates on the basis of the laws of the state—a legal system that is not the halakhah. It does not recognize halakhah and is not bound by it. Its judges are not versed in halakhah (and of course are not required to be, since they do not judge by it). Finally, in the State of Israel there are plenty of judges who are versed in halakhah; but as noted, that is not the criterion relevant to the appointment of judges.
From all of the above, it would seem obvious that there is no permission to appoint such judges or to resort to them. We have versed judges; and even if we did not, this is an alternative legal system—not mere adjudication by natural equity.
Astonishingly, the debate still rages in full force. In broad strokes one can say it is a debate between halakhic decisors of various stripes (Haredi and religious-Zionist) on the one hand, and religious judges on the other (most prominent among them: Yaakov Bazak and Menachem Elon). The decisors, nearly all, agree that this is strictly prohibited—that civil courts have the status of arka’ot (of gentiles; not the arka’ot of Syria). The judges, for their part, argue that their status is like the arka’ot of Syria, or like unfit judges whom the litigants (in this case, via the decision of the entire public) have accepted upon themselves. Some also argue that the prohibition of arka’ot depends mainly on the identity of the judge (Jew or gentile, idolater or not) and less on the legal system by which he operates, and they offer other arguments as well.
Without entering the debate, I will say that in my opinion the judges’ arguments are very implausible (see, in the above debate, Rabbi Ariel’s exchange with Judge Bazak). Their arguments almost empty of content the obligation to follow halakhah and to appoint proper judges. Therefore, at least for me, it is quite clear that it is forbidden to resort to this system, and its status is like that of arka’ot of gentiles (arka’ot of Syria, in a situation where there is no justification or permission for their appointment, are like arka’ot of gentiles—see Rabbi Ariel there).
The practical difficulty
The great problem is that such a situation is a dead end. There is no realistic possibility of appointing judges versed in halakhah and, of course, of getting Israel’s judiciary and the general Israeli public (even its Jewish component) to operate according to halakhah. The alternative is the establishment of private halakhic courts that will adjudicate between those who desire it (usually religious folk) and leaving the legal arena to the secular public. That is apparently the current situation; and so it is accepted that resorting to the secular court is conditioned on the approval of a rabbinical beit din (when there is no choice), just as halakhah demands regarding going to the courts of gentiles. I emphasize that this is the situation for the overwhelming majority of the religious public, not only in the Haredi world. I mean the vast majority of the Torah-oriented segment of the religious public (not just the hardline “Haredi-Leumi”).
I have already written here in the past that this situation is highly problematic. Torah law is in many cases conducted in an unreasonable and unsystematic way. There is no authority to summon witnesses; the laws of the state are unclear to the court even where they must be taken into account. They lack enforcement power. They rely on the state’s authority as mediators (and indeed sign a mediation agreement before the proceedings). There is no uniformity in the law and therefore no legal certainty. In the Haredi public, which ostensibly is more stringent about this prohibition, private “police forces” are established (sometimes including violent measures); the courts are affiliated with different factions and there is little trust in their decisions (there are claims of bias in favor of “their own”), and more. It is no wonder that many Haredim, when it truly matters, turn to the civil courts anyway—and not always with the permission of a rabbinical court. And of course there is no solution here for litigation between a religious/Haredi individual and a secular person who is unwilling to litigate before rabbinical courts (unless permission is granted to litigate in the civil court in such cases—but that too greatly complicates matters and hampers access to the courts for this public).
Moreover, in this picture religious people ostensibly cannot serve as judges or attorneys (which is not, of course, what happens in practice—see below). Such a policy does not allow the religious public to influence the state’s judicial system, and the result is that this very approach pushes it in a more secular direction. Influence over the state’s judiciary belongs to every citizen and every public in a democratic state. Such a situation is indeed unreasonable. And I haven’t even mentioned the fact that in the Knesset, which legislates the laws—the “father of all impurities,” as this view would have it—there do in fact serve religious Knesset members who try, quite rightly in their view, to influence the legal system and the laws of the state as much as they can. It is illogical to permit involvement in legislation while forbidding functioning under and within it.
A resolution of the debate—s’past nisht, Generation III
From all the above, it seems to me a solution arises and suggests itself—complex on the theoretical plane but the simplest on the practical one. One should permit recourse to the civil courts in all matters and without the need for prior permission. There is no obligation to resort to rabbinical courts. How can one violate the severe prohibition against going to arka’ot? Because of s’past nisht. It is inconceivable that a public should remain without an effective judicial system, and since the only option available in our current situation is the civil system, there is no alternative but to recognize it and cooperate with it.
True, there are important differences between the situation in Talmudic Syria and our situation today. We have an alternative system of law, not merely adjudication by natural justice. We have versed judges, whereas the arka’ot appoint those who are not versed—so, seemingly, there is no halakhic license for this. But at bottom there is a decisive similarity to the situation in Syria then: for us too, the only alternative, if we act according to halakhah, is the absence of a judicial system. Therefore these distinctions are irrelevant. They were said for the social situation of that era, where it was clear that if there were versed judges, they would not appoint laymen. But that is not our situation today. Most of the public today is not committed to halakhah and does not wish for its legal system. Therefore the s’past nisht consideration exists today despite the differences.
I remind you that even in Talmudic Syria, there was no truly halakhic solution. Even then, they innovated a solution because of the constraints on the ground; therefore clinging to what was determined then is meaningless. If anything, one should cling to the principle that underlay their solution, not to a comparison of the situations themselves. Just as the people of Syria and the Sages then adopted a solution contrary to halakhah because of a s’past nisht consideration, so too should we in our time. That is the proper continuation of the Talmudic rule.
Is this a s’past nisht rationale?
At first glance, in our case the situation is better than a mere s’past nisht rationale, for we have a Talmudic sugya to lean on: the sugya of the arka’ot of Syria. If so, in our case my recommendation is the application of a Talmudic source, not a deviation from halakhah because of a s’past nisht reasoning.
To this I will say three things—three sides of the same coin: (1) What did the people of Syria themselves do? They had no prior source, nor a source from Scripture or a derashah. They certainly acted on a s’past nisht consideration. Therefore, at least de facto, we too may use such a consideration. (2) As I noted, the sugya of the arka’ot of Syria brings no source whatsoever for this permission. If so, they acted without a source (but on a s’past nisht reasoning), and therefore their precedent is not a relevant precedent in halakhic argument. If in the Talmud they deviated from halakhah or recognized a de facto deviation, that is not a precedent that justifies our deviation from halakhah. Therefore reliance on the arka’ot sugya does not justify my conclusion; it remains a product of s’past nisht reasoning. (3) What would we do if there were no sugya regarding the arka’ot of Syria? My claim is that we would do exactly what they did (who, as noted, made their decision without such a sugya before them). Therefore the existence of that sugya does not change the essence: the permission at its root is based on s’past nisht.
S’past nisht and conservative midrash
At the beginning of the column I claimed that at the base of every s’past nisht argument stands a conservative midrash. In our case too such a midrash can be presented: the prohibition on lay judges was stated in a setting where there exists the option of a judicial system of ordained judges; but where the only alternative is the absence of a judicial system—there the prohibition was not stated. This is quite akin to the bathing-suit argument. When there is a s’past nisht situation, the implicit claim is that even the Talmudic sages themselves would have permitted or not prohibited in such a situation; therefore their prohibition does not exist in this new state of affairs.
The prevailing rationales
I already mentioned that even in the most conservative communities there is recourse to the civil courts, some more and some less. My claim is that all these rationales are a façade. At bottom, the decisors understand that there is no other option and therefore permit it. The fact is that statements to the effect that judges and attorneys cannot be counted in a minyan (from the “Pninim” of Rabbi Avraham Yosef)—which would seemingly be the necessary halakhic corollary—are dismissed with scorn by almost all rabbis and the public, though they have no good rationale for this. There is a turning of a blind eye to the religious and Haredi public’s collaboration with the judicial system. Sometimes there are outbursts of zeal of this or that kind, but mainly when convenient. When it truly matters, everyone goes to court. I have noted here more than once the astonishing phenomenon that, with the opening of academia to the Haredi public, I was amazed to discover that the most sought-after and popular profession among them is… law. No less. Academia is treif, and therefore there was always a severe prohibition against studying there; and once the leash was loosened, the primary and first profession permitted is the very profession in which there is a truly severe and direct halakhic prohibition—without interpretations and without agendas. How can one understand this astonishing phenomenon? To me it is clear that this turning of a blind eye (a weak and unspoken permission by most rabbis) is rooted in the understanding that we have no other option than full cooperation with the state’s judicial and legal system. Everyone understands that it’s s’past nisht, and the rationales proclaimed loudly are attempts to conceal this or to avoid acknowledging it openly. Sometimes “the heart does not reveal to the mouth,” and the decisor is unwilling to admit this even to himself. But in some cases I suspect he is well aware of it, yet uses the accepted rationales or simply looks away so as not to say explicitly that there is a s’past nisht-type permission in halakhah. As noted, this is dangerous and prone to slippery slopes.
The authority of the “good men of the city”—s’past nisht, Generation IV
Until now we dealt with legitimizing lay judges by virtue of s’past nisht considerations. Now I will broaden the canvas still further, in a slightly different direction: communal enactments (takkanot ha-kahal).
Until the tenth century, most of the Jewish people were concentrated in Babylonia, with central civic and Torah institutions. Not for nothing was the leadership understood to have passed in the tribe of Judah from the king and Nasi in Eretz Yisrael to the Resh Galuta in Babylonia (see column 164 on the historical accident). Around the tenth century, the Jewish people began to disperse from Babylonia to the ends of the earth, and a new concept appeared on the stage of history: the community. Of course there were communities prior to that, but the isolated community, not within a wider national framework—at least as a phenomenon—appears first then. As a result, debate began among the decisors about managing the community, and responsa began to be written dealing with these questions.[4]
Among other things, the question arose of following the majority. In column 66 I dealt with this question and showed that when it was presented to the decisors, they tended to decide it on the basis of the verse “after the many to incline.” I mentioned there in the context of the historians’ debate whether Judaism has the right of first refusal on the democratic majority (in my view, not necessarily). As I showed there, the decisors are divided on following the majority in communal enactments, and Rabbenu Tam, for example, holds that unanimity is required.[5] Most decisors (the Rosh, the Rashba, and others) ruled to follow the majority, leaning on that verse; and so rules the Shulchan Arukh, Yoreh De’ah §228. Yet in several responsa of the Rishonim you will find that after they cite the verse, they add a small addition to their rationale beyond the verse.
Thus, for example, I cited there the Rosh’s responsum that deals with this (Klal 6, §5), where he writes:
“And that which you asked: if two or three of the average citizens of the town can remove themselves from the agreement the community will make, or from the decree of a ban they will make about any matter—know that regarding matters of the many the Torah said: ‘after the many to incline.’ And on every matter that the community agrees upon, we follow the majority, and the individuals must uphold all that the many agree upon. For if not, the community would never agree upon anything, if the individuals had the power to nullify their agreement; therefore the Torah said regarding any agreement of the many: ‘after the many to incline.’”
He does not suffice with citing the verse “after the many to incline,” but enters into the reason of the verse and adds a practical rationale: if we do not follow the majority, there is no way to reach agreements. Similar wording appears in additional responsa of the Rishonim on this topic, and in many of them you can see that after quoting the verse they add the rationale in one phrasing or another. The question here is: why is this addition necessary? When the Rishonim speak about following the majority in a beit din, they do not trouble themselves to add rationales and explanations; there the verse suffices.
To understand this, let us return to Rabbenu Tam’s view. As noted, Rabbenu Tam held that in communal enactments one does not follow the majority (they must be adopted unanimously). How does he reconcile this with “after the many to incline”? In column 66 I explained that the verse proves nothing, since it speaks of a majority in a court whose goal is reaching the truth, and the instruction there is to follow the majority because, generally, the majority is closer to the truth. But the question regarding majority in communal enactments concerns a democratic majority—this is a different kind of majority whose aim is to reflect the will of the public, not to reach the truth. Following the majority here stems from a different reason and is defined differently from the majority in beit din. Therefore Rabbenu Tam apparently sees no necessity to learn from the verse that we must follow the majority also in communal enactments. As we saw, even those who disagree with him apparently understand that the verse does not suffice to prove following the majority in communal enactments; hence they add the rationale.
What is the meaning of this rationale? Here we return again to the s’past nisht principle. Essentially, what these Rishonim are saying is that although the verse does not prove that we must follow the majority in communal enactments, there is no way to live and function reasonably without it. It is s’past nisht not to follow the majority; therefore we must follow the majority here as well. This is already the fourth expansion of the s’past nisht principle—originally in beit din, now expanding beyond the realm of the court and halakhic law. The principle in all of them is the same: anarchy is not an option.
[1] To be sure, regarding some monetary laws there are disputes among Amoraim and decisors at the beginning of tractate Sanhedrin, and there are views that you do not need a beit din of three ordained judges, and perhaps not even a single ordained judge.
[2] I once thought that specifically regarding this extension one might propose a rationale on its own merits, i.e., without s’past nisht. As a matter of principle, conversion must also include a sacrifice (application of blood), and that is essential. And yet, the Talmud in Keritot 9a says that even after the destruction of the Temple, when it is impossible to bring sacrifices, one may convert without a sacrifice. It bases this on the verse “for your generations,” meaning there must be a possibility to convert in all generations, even without the Temple. If we carry this reasoning forward, we can apply it also to ordained judges. Precisely in an era when there are no ordained judges anywhere in the world, there must be a way to convert—therefore we do so even without ordained judges. True, some decisors claim that the Talmud speaks only about the sacrifice; but in my view that is not persuasive, and certainly Tosafot themselves do not use this reasoning but rather the claim that conversion is ‘like’ something common. In my humble opinion, even that very derashah rests on Tosafot’s s’past nisht reasoning.
[3] It is explained there that this is a decree for the benefit of borrowers and the needy. Though this eases matters for the lender, the more we ease things for the lender, the more likely it is that lenders will agree to lend to those in need. Cf. the socialist wars against benefits for tycoons.
[4] I have already noted here in the past (see, for example, in the aforementioned column) that the rules of community governance are not part of halakhah (and therefore even if you find some of them in the Shulchan Arukh, they are not binding). They entered halakhah by mistake, in my opinion, because there was no other authoritative body—besides the decisors—to address them. By inertia, anything appearing in the halakhic literature is treated as halakhah. In their origin, these questions are civic, not halakhic; they belong to the realm of the king (i.e., the government), not the decisor and the beit din.
[5] His words are cited in Mordechai Bava Kamma §179, Bava Batra §480, and in Responsa of Maharam of Rothenburg §230, among others. For a general survey, see Menachem Elon’s Jewish Law (vol. 1, chapter nineteen), and Prof. Haym Soloveitchik’s Responsa as a Historical Source, and also Wikipedia, s.v. “Takkanot ha-Kehillah.”
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The discussion is aside, but reality shows that the courts in Israel are simply haters of the people of Israel and also judges of false and evil law (not only the High Court, and representative examples can be given). This is no coincidence. There is a connection between their lack of fear of God and their being progressive (and hence their anti-nationalism), lovers of laws and generalities, who do not care about justice, but rather the law (when it fits their progressive postmodernist philosophy, otherwise they will interpret it according to their opinion, since it does not have an objective interpretation according to their postmodernist religion anyway).
Although I grew up in the liberal camp (and I still believe in its values), reality shows that it lacks loyalty to both the people and justice. From it grew progressivism (similar to the way in which postmodernism grew from modernism), and it also surrendered to it and is not loyal to the people of Israel. You can see how Naftali Bennett has adopted all the language of the left and how he is trying to please the people of Haaretz (!)
Rabbi Michi also went the same way when during the riots, without noticing, he even gave some shred of justice to the rioters (he spoke about a carrot and a stick. And in the carrot he mentioned “equality”. Yes, as if until now these barbaric human animals have not received many times their contribution to the public purse and more affirmative action (which Rabbi Michi supports) at the expense of Jews)
So the discussion of Naftamina has no point. The courts in Israel are a lie and there will be no justice in them. As a former Supreme Court judge said to Katsav's brother that there is no justice in the courts (like truth). There is only the name of a star. There is only law
Correction: “Lovers of laws and rules..”
” When it fits their progressive postmodernist philosophy, otherwise they will interpret it according to their (lack of) understanding because….)
And it should be noted that there is really no such thing as liberal values. There is only one value, which is that of freedom (and independence), but it is not really a value (goal) but a means – an instrument. It serves the achievement of other goals. Whatever the goals of life and existence may be. It is indeed a necessary means (without it, our actions have no meaning because they are not truly our actions) but not a goal.
This is about the legal system in its normal activities of criminal and contractual matters, etc. That's probably 99 percent of the legal system's activities, and that's where your criticism doesn't touch.
Surely this is concerning. As soon as justice is not important, but only the law (in a way that suits them), it reaches everywhere. Certainly to criminals. Just yesterday I read that someone was convicted of "soliciting slander". They simply invented a criminal offense. Ostensibly, it is justice and not the law. But of course it was someone right-wing. That is, selective conviction and the invention of offenses in retrospect. When there is no justice, then there is nothing anywhere. And this will also reach contract law. When the judge's ego is working, he will want to invent and innovate things even if they contradict the simple sense of justice. (And what will stop him from doing so? He is not even aware of this. Therefore, even if they appoint a right-wing judge (and not a legal conservative) it will not help because as soon as he has gained power and authority, he will want more of it, as we see in the ridiculous accumulation of evidence that Judge Gushnik approved)
A1. I have seen hundreds of thousands of cases opened each year. It is likely that only a few of them involve legal “innovations,” and the rest deal with simple cases in which the personality of the judge and his or her set of biases have almost no significant impact. For these cases, they go to the legal system, and explosive issues such as the treatment of politicians and the burden on legislation, etc. do make a lot of noise, but they are a crumb of the system’s work. There are debates about “justice” in quite a few cases, in most ordinary cases everyone agrees on everything. You answer this with some kind of argument that if there are serious problems at the top of the system in “important” cases, then everything should be scrapped because the problem will seep in or is already seeingp in, and that is not a serious response.
A2. The story of soliciting slander does not seem relevant to me because it is also within the small and blatant circle of exceptional cases. I only read a news article and it seems completely justified to me. This is about someone who sent crowds to spread lies about a business that is bad on a business level (reviews of “horrible food” and a low rating, without the reviewers having any familiarity with the place) because of harsh political criticism of the owner's positions. To me, it's like any solicitation for any other offense.
B. The accumulation thesis says that it is possible that for act A, punishment will not be given, but if there are 30 such acts, then yes. Because a little bit of squeamishness can be tolerated, but if there are too many, then the damage that occurs is excessive and the danger for the future is exaggerated. Clearly, there are considerations here and there, and when you are caught on one side and insist that the other side is ridiculous, this is a worthless statement. On the one hand, accumulation is truly a problem, without a doubt, as every person tends in his private life to judge people based on accumulation. On the other hand, a vague offense is problematic in terms of legal certainty and the stability of the system. Obviously, if it were possible to provide clear-cut laws that would precisely cover everything that one wants to prevent, then it would be better. But we can't find any. Is that why we should give up on the whole thing? It's certainly not a simple decision. This is not the only vague issue, and the ambiguity cannot be completely eliminated. (And it can also be partially resolved, for example by requiring a very significant accumulation and not in a gray area).
To T”G – Hello,
A well-known example of the ’accumulation thesis’ is the case of two officers who committed a similar offense. One suggested to his companion: Since we are both officers, we can judge each other’.
They said and did. Officer A’ stood before Officer B’ and confessed his sin. Officer B sentenced him to a reprimand. Then they switched roles. Officer B’ stood before Officer A’ and recounted his sin. And the ’judge’ sentenced him to seven days in prison.
Officer A’ was puzzled: ‘Didn't we both commit the same offense? Why did you get a scolding and I am a coward?’ Officer B answered him with a look of great responsibility: This is the second time this offense has been committed in your unit, and this deserves a severe and deterrent punishment!’
Greetings, Judge of Justice
Although I referred to the accumulation of many minor offenses in one person, even in the case you presented – in a chronic problem in different people, one of the tools to consider is aggravation of punishment, it seems to me that this is an idea that exists and is built into every punishment system.
Here is an example of the accumulation of minor offenses. If a minister bends one of the tenders a little in favor of a contractor he trusts, it is one thing that may not justify his dismissal, and there may also be different explanations in practice, but if he does it in dozens of tenders, it is already a serious problem. As described here https://did.li/SupremeCourtAccumulation. To say that accumulation is nothing and that is it is a strange lie.
In the case of the judge, the judge will be sentenced more severely than a one-time offense. This is also the measure of the judge who will pass on the first offense.
However, the "accumulation thesis" says more than that. According to this "thesis", the same act committed a few times is not defined as a criminal act at all, but when it is committed many times, it becomes "criminal".
And this is what Judge Elron warned about (in the minority opinion in the ruling to which you linked) that the ’accumulation thesis’ contradicts the ’principle of legality’ according to which a person should not be convicted of an offense unless there is a clear legal provision against what he did – so that at the time of the act the person should have known that his act was considered an offense.
According to the ‘accumulation thesis’ a person cannot know at the time of the act whether he is criminal or not, because the definition is vague. It will only become clear in the future, if it is repeated several times, and there is no clear definition of how much is ‘a lot’ and how much is ‘a little’. And if any judge comes to the conclusion that he has ’passed the critical mass’ – Only then will the person be retroactively defined as a ’criminal’, and who can predict what the intuition of the judge who will sit in judgment will decide?
The ‘accumulation thesis’ is similar to the ’rule of thumb’ by which Judge Barak disrupted contract law. It is not the wording of the contract that is binding, but rather all sorts of retroactive estimates according to which the judge decides that the intention of the signatories was implicit, that they ’knowingly’ did not agree. As a result of the rule of thumb’ – even the most skilled lawyer cannot explain to the signatories of the contract what its meaning is, since who can predict what conditions and implied intentions the judge will include in it retroactively.
And in accordance with the same system, everything is subject to retroactive interpretation at the discretion of the judge – A law is not a law, and an administrative decision is not valuable until it is examined retrospectively in the test of reasonableness and proportionality and the ’fastestness’ that will be determined retrospectively by the ‘judge who will be in those days’.
If the President of the Supreme Court gave a weekly lesson in ’Mosayyof’ or ’Yazid’ and answered citizens' questions before every contract and every act to know whether it is ‘legal’ or not– it would be possible to somehow lead a reasonable life. But when the judge is ‘locked in an ivory tower’ and only after years of experience will a person know the meaning of his act or contract – Man and the public are in complete uncertainty and cannot know in advance either his rights or his duties.
In contrast to this constant uncertainty, the Torah commanded, “And these are the laws that you shall set before them,” as the Lord explains, “Before each and every one,” that every person should know his rights and duties and not need a court to teach them retroactively. In this situation, the master and his slave know that at the end of six years he must be set free, and so on.
This is how Judge Moshe Zilberg interpreted the strictness of “up to fifty cubits to the owner of the house” in his book, “Thus the Way of the Talmud,” and not “according to the judge’s eyes” in each individual case. For Jewish law is intended for every person to know his duties towards his fellow man without constantly resorting to judicial proceedings, and therefore the law strives for definitions that will be clear to everyone, both the farmer and the ordinary worker.
With greetings, Amioz Yaron Schnitzel
To Aimouz – Hello 🙂
A. It is clear that the accumulation thesis has problems in every field in which it is applied. The point is that ignoring accumulation also has problems. People make decisions *all the time* according to the accumulation thesis in every issue in the world, and this is the most logical and common way in the world to form impressions and make decisions. Therefore, anyone who wants to argue against the accumulation thesis (like the Magistrate's Court, whose ruling I have not read), should compare it to the alternative, and not just examine “substantial” (I hate that word) whether the accumulation thesis has problems or not. Or if the legislator thinks he is capable, then he should speak up.
B. Excluding a number of vague ‘basket offenses’ laws and definitions that are given ‘a lot’ to the judge's discretion is problematic, do you support that? Both Elron and Wilner referred to an article in ’Mishpatim’ https://lawjournal.huji.ac.il/sites/default/files/2018-02/mishpatim-44-2-569_0.pdf and maybe after I read it I will understand better.
A.1 Certainly. The head reflects on the body. There is also an interest in looking ahead to where reality is going and not just what the situation is today. If you had asked me three years ago, my opinion would have been like that of Rabbi Michi (as there is still a principled way in which I agree. Not with all this Spasnisht principle, but if I clearly feel that something is right and it is not clear to me (even after a thorough understanding) whether the Torah forbade it or not, then I follow my intuition). But my opinion has been tempered and changes over time. The amount of injustice in the head is growing and slowly begins to seep into the body. Even simple cases in the future will become complicated. As soon as there is rot, it spreads, certainly if it is in the core.
A.2 Not justified at all. With all due respect, not everything that is unjust should go to trial. It is not determined in a crime as a law (I have extensively examined the law) and therefore it means that the public has decided that it is something that God will judge or people privately even if it is unjust. And there is a reason for that. People need to know before they commit a criminal offense like this. And that's not exactly what the situation is with us. In general, because of this defamation law (along with human dignity and freedom) there are thousands of delusional lawsuits and distorted judgments. This is the law that is used the most to silence right-wingers. When left-wingers use it, it's in the framework of “freedom of expression”. The court's intervention here is itself an injustice even if this act is unjust (because there is no limit to this). In the first place, the law should have been reserved for clear lies and not for nicknames like Nazis and the like’ and if the law did include things of this kind, the judges should stick to it.
B. There are no considerations, it's simply corruption by the courts that decided on their own who is violating the public's trust and who is not. To begin with, breach of trust is an undefined offense because the public needs to decide whether someone has violated their trust and not some external, unelected dictator. So now they are brazenly taking on powers that simply someone does not deserve (violated the public trust) because they do not like him? Surely the court is not allowed to intervene. It is not theirs in the first place so as not to give it up. It is the public's job to decide. The public is the one who should decide on its values and its justice, and a judge who does not identify with the public's justice is not allowed to be a judge at all (nor to live with such a public at all). Where there is ambiguity, there is innocence from a legal perspective. And the public will weigh its options and decide. There is no such thing as accumulation unless it is decided to enact a defined number of times, and even then it is an unjust law. Because violating the public trust is supposed to belong to the decision of the public or its elected officials alone.
A1. When the political tsunami arrives and washes over the courts, we will talk.
A2. There is indeed a problem with expanding judicial discretion in a situation where public trust in the courts is low as a result of the judges' biases (or opposing biases of a significant portion of the public). And I was also surprised to see that this aspect did not appear in Niso Shaham's appeal ruling (perhaps it did appear in the rulings of the previous instances). But this is a separate sub-discussion from the basic discussion on the thesis of the accumulation of charges in the offense of breach of trust.
B. Breach of public trust by elected officials is a story in itself. Niso Shaham, for example, is not an elected official but merely an officer (who took a significant part in the disengagement, speaking of the right and left, by the way)
A.1 It is not a tsunami. It seeps in slowly and without you noticing you are already up to your neck in a puddle. Like the frog that slowly cooks in a pot of water and doesn't notice it until it's too late. This is exactly what happened with Aharon Barak's activist revolution and the rule of the officials.
B. An official cannot violate the public's trust. He violates the trust of the one who appointed him, and that is the elected official. If the official harmed the public and the one who appointed him doesn't fire him, then the elected official is the one who violates the public's trust. And he should be thrown out in the elections. In short, there can be no such offense in the law book.
The description and theory are good and beautiful, but I didn't understand why you are demanding, both here and in column 444, to put on the table the decision to violate the halakha due to policy considerations or due to the principle with the name in Yiddish or due to the general principle of direct access to the will of God in a way that bypasses halakha and public acceptance. As you wrote here, putting it on the table has its own harms (which are difficult to assess), and blurring the decision as is done today does not seem to create any harms at all.
This is not the first time we have argued about holy lies. I oppose them and have explained why more than once.
I think a week or two ago you even said that you were reconsidering your position on lies (I think you were talking about the maga who allows you to say things of your own in the name of a great person).
True, but this is not a lie that has entered the literature (a terrible thing, it turns out) but rather a maintenance of a permit for a time of need when they want to stop it at some point, and therefore nothing is specified or clarified. And everyone feels that something is questionable and temporary, they simply don't know how to put their finger on what exactly the explanation is.
I thought more clearly. A holy lie that masquerades as a smooth truth is indeed destructive to all the truly smooth truths that depend on tradition, because tradition is being undermined, as you say. But leaving ambiguity on a limited number of topics does not endanger the other things that are not ambiguous, because we know that there are several classified topics in the corner, and nothing happened. A lie masquerades in one way and a lie is ashamed in another.
Now, on WhatsApp, refer to this column that deals with the very point of contention between us: https://www.facebook.com/elli.fischer/posts/10111063555178588?__cft__%5B0%5D=AZV_58e6dGhDs-9IryHYYrprZQfP3LkX1mlD0yeqFMqCZgHlWZ6mHpSF8p1WA1uZ0-9LnHN75hIp9b824QMRfiiJ8Xs3u3QN2IftP_XaVy-z3PehXJdEqC2jMIv010hALcINhb8Jo9lNk0sE1Z1mse9uExWLLXDk9uax_-9B3oDiR-h-5U-y5tZfWerUIOWl8RibESOAJz85KFnW91coXXkD&__tn__=%2CO%2CP-y-R
Although my sentiment was convinced by your words, on a consequential level, when there is a qualified lie (inventing an alternative temporary reason or nodding your head to instructions without justifying them in negotiations) that does not poison the halacha itself as a reliable body of knowledge, then using it is beneficial for the sake of "preserving a group that is devout in halacha" and even the SS of a public figure, if we ask your explanation of a similar matter, is enough to temporarily postpone actions. I understand that you argue both consequentially that it is harmful and harmful and also in principle that the lie is so obscene that only in the face of a ticking bomb is it permissible to pull it out.
Perhaps this is related to the difference between a research approach that sometimes searches for hidden reasons for laws that depend on the period and events. It is impossible, on the one hand, to rule out explanations through supra-halakhic reasons and, on the other hand, to publish laws whose reasons are these.
In the S”D and in the B”R. P”B
There is a profound difference between the ruling of the Gra Weiss who forbids to interfere with anything good or bad in the ’Reform Square’, since entering there even to protest – gives them importance and ’attention’. After all, this is a provocation by the Reformers. They want us to wipe it out so that there will be ‘noise and commotion’ and so they will show the whole world how strong they are, and how firm their hold there is. Our protest increases the ’rating’ of the Reformers.
But Rabbi Eliezer Melamed is already going beyond that. He demands not only that it not be erased, but that they be recognized as having the legitimate right to maintain a Reform ‘Temple’ next to the remains of our Temple. Moreover, Rabbi Melamed claims that it is the duty of the Western Wall Rabbi to also provide the Reform ’Temple’ with Torah scrolls! The demand for rabbinical recognition of them has no precedent.
When in the 1950s they sought to establish a branch of ‘Hebrew Union College’ a Reform synagogue – The Chief Rabbis, Rabbi Herzog and Rabbi Nissim, opposed the establishment of the Temple and called on the heads of state not to support it (and indeed President Yitzhak Ben-Zvi refrained from coming to the opening of the Reform Temple – Is it conceivable that one of Israel's great men would support recognition and push for the establishment of a Reform place of prayer next to the site of our temple?
With blessings, Amioz Yaron Schnitzler”r
Amioz, we do not have Rabbi Weiss's answer before us, but if you offer an explanation for Rabbi Weiss's teaching that does not appear in the answer, then do you agree that it is okay to publish reasons that are insufficient? (If the usual halachic reasons are sufficient, then there is no need to reach for other considerations)
In the 2nd and 3rd centuries AD, 2017
Lt.G – Shalom Rav,
The explanation to refrain from protesting against the Reforms in order not to give them ratings is not necessarily a clear and agreed-upon halakhic barrier. Many will not accept it and will argue that one must protest in every way, even though the Reforms also benefit from it, since the obligation to protest is a central value for them.
On the other hand, the prohibition on entering a Reform place of prayer is a clear halakhic barrier, which even those who consider themselves ‘zealous for the cause of God’ see as a binding halakhic prohibition. So the use of this argument is not only correct but also convincing to those whom the posk came to convince.
The prohibition on entering a ’temple’ Reform was not invented ‘ad-hoc’ to prevent entry to protest there. Even praying or studying or being saved from pouring rain, etc., is forbidden by the Rabbi Weiss, and this is anchored in the words of the poskim and this is well known and acknowledged.
With regards, Aisha
This is not a “holy lie”. Contrary to some of the examples you gave, such as the desecration of the Sabbath by a Gentile, etc.’ there is no real advantage to the secular legal system, apart from the great power it has today. It is even quite problematic, not essentially striving for true justice with all sorts of alternating arguments and closing small cases without a real discussion. On the other hand, it is easy and simple because it is the default. In my opinion, there is no problem in running a political legal system according to the spirit of the Torah, with regulations according to need and time. Every time we fight with a default, it is more complex and requires being a principled person and not giving up and being a little annoying in order to break the ice, otherwise everyone will simply go for what is easiest. And if we are talking about ”conservative midrash”, it seems to me simpler to demand this prohibition even today than not to demand it at all, because the possibility of establishing a political legal system according to the spirit of the Torah is very reasonable nowadays.
And here the son asks
According to the principle of ’spast nicht’ which allows ‘direct access to the will of ’ on a path that bypasses halakhah and public acceptance’ – Why do we have state courts? We will privatize the legal system and every three lawyers will judge as you understand. This will also greatly improve the ‘quality of service’, less time. Fewer procedures and less bureaucracy…
What is good for kashrut and conversion – is also good for law 🙂
With greetings, Matan Liwa Avantgarde
In the Book of Numbers 2, 1500
Since King Melch reigned in Israel, about three thousand years ago, the king has had the authority to enact laws and regulations for the benefit of the public and to judge those who violate his orders. The king also has the authority to judge criminals beyond the formal criminal procedure in order to deter wrongdoers. Thus David judged the one who stole the sheep of Harsh, saying: “The man’s son shall die, and the sheep he shall pay fourfold.”
For more than two thousand five hundred years, the people of Israel have also known the reality of being under the rule of kings who are not committed to the faith of the Torah. On the one hand, Jews were careful to be loyal to the king and to the law of the kingdom. On the other hand, they did not allow a Jew to resort to the ’courts of justice’ and they found the halachic ways to determine areas – what we are commanded to do because of ‘Dina de Malchuta’ and what we are forbidden to obey because of Malchuta.
So why exactly when we have regained Jewish sovereignty in our country – do we decide that ’es fast nicht’ is not for us and throw away everything that Torah law developed, which knew how to deal with all situations, situations of independence and situations of exile. Precisely now do we decide to throw everything away?
In the world, there are many courts of law that practice Torah law, whose rulings are recognized according to the ‘Arbitration Law’ and can be implemented and enforced by the country's legal system as well. There is room for a distinction between property law, which is governed by Torah law and must be decided according to the Torah, and criminal and administrative law matters, which originate from the ’Dina demalchuta’ where there is a place for the state courts. Even in cases where the litigant has not obeyed Torah law – there is a situation where a Torah court will allow recourse to the courts with the appropriate restrictions.
With best wishes, Amioz Yaron Schnitzel”R
An example of a complex attitude towards the ’Dina Demelchota’ is shown by the Jewish Mordecai. On the one hand, he is loyal to the king and reports the assassination attempt on Bigthan and Tarshish. On the other hand, when the king orders to bow down to Haman. Which has an aspect of idolatry – Mordecai refuses to obey. Similarly, Mordecai instructs Esther to come to the king ‘which is not according to the law’ for the sake of the salvation of the people of Israel. ‘Restrictions were imposed’ on Dina Demelchota.
Best regards, Aisha
In response to ‘What will we innovate in our generation?’, paragraph 1, line 3
… Beyond the ’criminal procedure’ of the Torah in order to deter…
Ibid., paragraph 4, line 4
… The source of the obligation in them is from ’Dina Demalchuta’, in which there is a place…
The possibility of flexibility, whether in regulations or in the quality of the court, also stems from the acceptance of the litigants or the public, and as we found in the Talmud that “the citizens are allowed to drive to their limits” and even craftsmen are prohibited from making regulations that would bind everyone.
Admittedly, there are limitations to this too, and as they said there in the Gamma that where there is an “important person,” a learned scholar, no regulation is valid without his consent. Thus, the Rashba says in a reply that it is not possible to accept the laws of the Gentiles in a blanket manner, for if we do so, “what did we receive the Torah for?” Therefore, each regulation must be examined on its merits, whether there is a real public need for it, but there is no room for a blanket interpretation of the laws of the Torah.
Best regards, Aisha
In the S.D., they will take my donation from me.
It seems that the author of the post is mistaken in seeing the role of the ’fast not’ in cutting down on Halacha – as in the examples he suggested: lowering the Torah standard of the court and allowing the occupation of photographers.
The feeling of the ’fast not’ is intended for the opposite purpose, to strengthen and expand the ‘line of law’,.to do not only ‘what is my duty and I will do’, but to honor doing ‘right and good in the eyes of ’your God’, to act in a way that is earthy and with good qualities and to honor doing ‘ahead of the line of law’.
Here there is much room for a person's sense, which demands that one act not only 'according to the book', but with the 'nobility' that requires doing 'above and beyond' in order to find favor and good sense in the eyes of God and man. For the sake of elegance, the 'spast nitz' was created.
And perhaps that is why the 'kugel' made of 'pasta' symbolizes the Sabbath 🙂 so that we learn to be careful not only about what is obligatory but also about what is 'past', what is hateful and befitting of kings.
With the blessing of 'Noam Shabbat', Amioz Yaron Schnitzel
In the Bible and in the Bible
The former mayor of Ramat Gan, Avraham Krinitzi, the late, heard from Rabbi Kook a parable about an old man who fell ill and forgot the 100 letters of the alphabet. He was placed in a classroom with small children so that he could relearn the alphabet. The old man began to play and frolic like a child with his 100 friends. The teacher commented to him: Although you are in the company of children to learn the alphabet, do not forget that you are an adult and not a small child.
And so the Rabbi said: The people of Israel in their exile forgot how to run a country, and they need to learn this anew from the great men of the world who know the nature of the systems of government and the leadership of a country that we forgot in exile. But in matters of faith and values, let us not forget that we are the oldest people, who have passed on faith and values to the entire world, and we should not be ashamed of our Torah in the face of all the renewed values.
And so it is with the general courts. We have something to learn from them in matters of order and externality. In order for the court to appear respectable, to conduct an orderly protocol and to formulate clear and reasoned judgments. But in terms of content, we have a Torah that is as deep and broad as the sea, which generations of prophets and sages, righteous and pious, have taught us. We serve old wine in magnificent vessels, but we do not change it in “broken cisterns that will not hold water.”
Best regards, Aisha
I have always wondered how the great scholars who scrutinize every speck of offense can disregard the explicit no of gentile courts.
The conclusion I have come to is that each community truly trusts its own courts to rule fairly, but the moment you are in a dispute with someone from another community, it turns out that the world is a cruel jungle.
So after paying lip service to rabbit farmers and scoundrels, in the test of results for most of us, the courts in Israel are the second option in terms of reliability and fairness.
Therefore, the dispute in the Ponovis Yeshiva was brought before the court by Marnan and Rabban after they were unable to find a Torah authority to decide between them.
Rabbi Michi,
For the sake of justice, this is not a consideration of spasticity. The social situation in Haredi society, and also in the Haredi (although less so), if they do not go to court, is like the words of the Ramban on Nablus. In other words, it is a lack and complete absence of a legal system. It is impossible to run a legal system by half and by third (of course, if it is a limited discussion between two parties, for example without witnesses and there is the possibility of resorting to the courts, it is a mitzvah and an obligation to do so, but it is enough that they need something that exceeds by a millimeter and there is no enforcement authority, etc.).
You are repeating exactly what I am writing. After all, this is exactly the non-spast consideration that I described. So why doesn't this seem like a non-spast consideration to you? I wonder!
What about the royal trial, like what happened to the Hern in his sermons?
I didn't understand the question. Is it for me? The king's sentence is the father of the fathers of the sabbath Nietzsche. Here it is already explained in the sages themselves (if not Mora'a).
1. In your proposal to abolish the prohibition of courts, doing what the great Tannaim did, there is a difficulty. [Not too great, but not too difficult]
2. They did not have a court, they had courts, and they chose a third alternative of Sabra, you choose courts. That is not what the Tannaim did.
If you had proposed a third way of establishing a system that would discuss Sabra, I would have remained silent.
3. In Syria they did not have a court, we do. Even if it has shortcomings, it exists, clarifies matters, decides disputes and outlines a path according to the Torah. There are judicial bodies that do not have the shortcomings that Nadav Shnarav wrote about.
Due to these three points, it seems that there is a big difference between, among other things, courts in Syria and your proposal to go to court.
The principle in all of them is the same: anarchy is not an option –
Why is anarchy bad?
On the contrary, anarchy is great. For the strong and the aggressive.
I read both columns about the Fast Nots issue, but it wasn't clear to me what the definition was when it was said and when it wasn't. It couldn't be that I wouldn't do anything that was difficult for me.
This is a classic attack on the claim that there is an element in any system that is difficult to define formally. Everyone will do whatever they want.
So no, not everyone will do whatever they want. Everyone will do whatever they think is right, at least in extreme circumstances. This is also the idea of a crime per se.
The childish idea that you can define anything to prevent anarchy is a double mistake: It is not true that everything can and should be defined. It is also not true that without a definition you inevitably end up with anarchy.
We wonder if there is more evidence for your words from the Sanhedrin Jurisprudence on the issue of serious offenses. The Jurisprudence asks: Who is the murderer of a body from among you? It is a Sabra who will say, "You have done a good deed, you have done a good deed, you have done a good deed, and
I didn't understand what you intended to bring evidence for. For ruling on the basis of suppositions? The Gemara already did so, and so did Toss.
This whole law that one must give up one's life so that someone else will not die is explained in a vague way because it is not logical for so-and-so to kill so-and-so so that he will not die. You have evidence that the sages forbade something because it is not logical [and without any source in a verse, and even the opposite of the verse, since it is written, "And live in them"], and not only did they forbid it, but they even permitted it [also without any source in the Torah], as explained in the Torah, that if one did not do it with his hands, one does not have to give up one's life, apparently. All that is being discussed here is from the law, "Spast Nietzsche."
I wouldn't classify this as a fastnish argument. It's a factual assumption. Fastnish is a statement that expresses raw intuition (one doesn't do such things). But of course this is a matter that is mainly semantic.
What is different from the courts? After all, she wrote, “From all of the above, it seems to me that a solution emerges and is required that is complex on the theoretical level but the simplest on the practical level. It should be permitted to go to courts on any issue and without the need to grant permission. There is no obligation to resort to rabbinical courts. How can one circumvent the severe prohibition on resorting to the courts? Because of the secular nature. It is impossible for a public to remain in a situation without an effective legal system, and since the only option that exists in our situation today is a secular legal system, there is no choice but to recognize it and cooperate with it.” Here, in the context of a debate, it is not appropriate to allow a person to murder for himself, so that they both supposedly die together.
The similarity is only formal. First, my argument is that akaot is a prohibition, but there is no escape but to transgress it. On the other hand, "He shall be killed and he shall not transgress" is not a prohibition, but rather the halakha itself. Second, there is a difference between a factual opinion on the merits of the matter and a statement of fast nitz. It is forbidden to enjoy the awaz without a blessing, which is not the halakha of fast nitz. But this discussion is unnecessary.
A. Even in the Sanhedrin, it is forbidden because it was written and lived in them, but there is no escape because it is unreasonable to let a person live by killing another, and this is itself a factual argument, and this is itself a fast not.
B. Regarding the blessing HaKe Nami Midin Torah, it is permissible to eat, but what does it mean to be ungrateful [as explained at the end of your first book regarding why we must worship God]
C. Why is it unnecessary? Does this help me understand your principle?
It's unnecessary because you call every opinion a fast not and I only mean a very specific kind. But that's semantics. What do I care about names?!