Between Jews and Non-Jews: On the Relationship Between Jewish Law and Reality

With God's help

Introduction

On a desert evening years ago at the hesder yeshiva in Yeruham, all of us in the yeshiva sat in the dining hall and discussed the proper attitude toward non-Jews. From the students' remarks a picture emerged that surprised me. There was an almost complete consensus there that non-Jews are immoral. More than that: even when they sometimes do good deeds, this is like that pig that stretches out its hooves and says, 'See, I am pure' ("like that pig that stretches out its hooves and says: See, I am pure"). By contrast, Jews possess a pure and good nature, and deviations from it are always unnatural. I was stunned by these remarks. We are not speaking here about students of Erlau Yeshiva in Jerusalem. At the hesder yeshiva in Yeruham there study excellent students, graduates of Religious Zionist education. Fairly open young men, well immersed in what goes on in the world, integrated (relatively speaking) into its conduct, culture, and values.

I asked them: tell me, how many non-Jews do you know? All in all, I do not know that many non-Jews either, but from a general impression it seems to me that they are human beings like me and you. Some are good and some are bad, exactly as among us. Needless to say, the young men were not really convinced. In response, they burst into a series of select quotations from the Sages, and this was decidedly awkward. As is well known, the yeshiva instructor is supposed to represent the Torah view and commitment to the Sages. And here, I of all people, the instructor, was the "Reform" one who had surrendered to the spirit of the age, while the students were the ones expressing impressive devotion to the picture that emerges from the rabbinic sources. Deep down I wondered whether they really believed this, or whether it was only their fear of Heaven, blessed as that is, that compelled them to subordinate their intuitive perceptions to the sources of Jewish law and the Sages.

It turns out that even if we all watch the same films, read the same newspapers and books, share the same world, and meet the same people, the picture that exists within us can nevertheless be completely different. My feeling was that the concrete non-Jew was simply irrelevant from their perspective. He was transparent, and when they looked at him they did not see him at all; they looked through him and saw some terrifying archetype in civilized garb. Beyond the question of attitude toward the non-Jew and the problems of morality, this very disconnection from reality seemed troubling to me.

To me it is obvious that this picture is false, just as it is obvious to me that it is now nighttime. If I were to see in the Talmud that the entire day-night cycle is darkness, would I subordinate my perceptions to that assertion? (Yes, I know the dictum even if they tell you that right is left ["even if they tell you that right is left"], and I will not even bother citing here the version of the Jerusalem Talmud.) First of all, this is reality, and with all due respect to the sources, I cannot deny what I see and know with certainty.

It is relatively easy to educate Jews this way in the Holy Land, where one hardly encounters non-Jews (except for the wicked Arabs who, as everyone knows, all want to kill us – some potentially, some actually, and some with even greater force). But abroad the problem is harder. At least with respect to modern Jews who meet non-Jews and live among them. I hear quite a bit about people who are unwilling to tolerate these dogmas, and this radiates outward to their faith in general. Why believe in a system that describes reality in so distorted, anachronistic, and deeply unintuitive a way?

The Hatam Sofer, although he lived abroad, reached the conclusion that even the bodies of non-Jews differ from those of Jews, and therefore one must be careful not to draw medical conclusions from studies conducted on the bodies of non-Jews (as is well known, one cannot conduct studies on Jews because of desecration of the dead, so the burial society's livelihood is assured). This claim already seems today quite absurd even in the eyes of people with conservative views (I do not know anyone who does not use medical knowledge imported from abroad). But the parallel spiritual conceptions seem to stand firm to this very day.

Metaphysics, Essentialism, and Observation

The obvious solution is to move our testimony into the realm of metaphysics, and to speak of an inner, intangible spiritual distinction of Israel, and alongside it an equally intangible inferiority of non-Jews. This is the Jewish point that does not necessarily come to practical expression, but it is there somewhere within us. A quotation or two from the Kuzari, the Maharal, or Rav Kook decisively seals the discussion. I will not deny that, in my eyes, this is indeed an advance, since at least on the plain factual plane there is no denial of reality here. But I cannot refrain from adding that I have no small doubt even regarding these hidden metaphysical differences. To my shame I do not feel them, and as a man of science I have a criminal tendency to cling to facts and measurements. What is not measurable (and ought to have been measurable) usually does not exist either. Perhaps I am mistaken, but I remain doubtful. You will ask: what about the Sages' statements about the nature of the non-Jew? It may be that from the same criminal source comes my suspicion toward determinations that are the result of measurements made under conditions different from my own. The Sages formulated their position according to the non-Jews they knew, and apparently there was a difference there that could not be denied. Is that necessarily valid for our own day as well? I have great doubts.

Halakhic thinking has a tendency toward an essentialist conception of the sources, and perhaps of reality as well. If the Talmud says something about non-Jews/women/Black people/slaves/the deaf and the like, then that is their essential nature, and they are fated to remain that way without change until the end of all generations. Women still want to marry at any price (it is better to live as two – "better to sit as two"), the non-Jews around us are still like a pig that stretches out its hooves and says, 'I am pure' ("like a pig stretching out its hooves and saying: I am pure"). The deaf person is still presumed lacking understanding, even though any sensible person can see that we are dealing with an intelligent and responsible human being (see below). The Black person does not change his skin, and the leopard does not readily give up its spots. Even if it seems to you that this has changed, the problem is simply a deficiency in your trust in the Sages. Trust in our misleading eyes is merely an instance of do not stray after your hearts and after your eyes ("do not stray after your hearts and after your eyes").

Halakhic decisors are prepared to accept that olives have become smaller, eggs have become larger, and other changes have occurred in the nature of the inanimate and vegetative world. Believe it or not, even human beings change their physiological nature (women no longer give birth at seven months, and the Sages' medicines do not really work for us). But the behavior of human beings, and their spiritual and moral nature – these are destined to remain frozen until the end of history. I have seen an upside-down world: the inanimate, the vegetative, and the animal realms change constantly, whereas the speaking being – that is, human beings, creatures of choice, dynamic beings who are capable of changing and are even required to do so – specifically they are trapped deterministically in their nature and resigned to their fate until the end of the Right, indeed the extreme Right.

On Creative Interpretation and Fundamental Heresy

I will not trouble myself here, as is customary, to cite the sayings of the Sages about the human being created in the divine image, or to offer creative interpretations and apologetic explanations for statements that seem problematic. For that one may open any publication of Ne’emanei Torah Va'Avodah, and other liberals. I refrain from doing so not because it is incorrect. Sometimes it is correct. But here I want to conduct the discussion in a more radical way. Let us suppose that I have no such creative interpretations, and all the sayings of the Sages indicate that non-Jews are subhuman, they are likened, by way of parable, to beasts ("they are likened to beasts"). Am I really, as a person committed to Jewish law and to the authority of the Sages, condemned to subordinate my perceptions to those judgments? If rationality and adherence to facts are the new definition of heresy and lack of faith, then I find myself in a very uncomfortable position. I hope and believe that there are at least a few readers who feel this discomfort.

I must clarify three important points here:

• I do not mean to claim that there is no such thing as a Jewish character, and that our history and values have no influence on our national and personal nature. Of course they do, exactly as among the French, the Saudis, and the Chinese. The question I am asking is whether I must necessarily accept that there is something here beyond the differences between cultures and the historical influences upon different peoples and societies.
• I do not mean to claim anything against the Sages. On the contrary: precisely because I value them and am committed to them, I believe that they too acted honestly and rationally, and that their words accurately reflected the reality of their time as they saw it (and not metaphysical archetypes that they imposed upon it). I know of no law given to Moses at Sinai, nor any tradition whatsoever, regarding the character of non-Jews, and therefore it is reasonable to assume that the Sages simply observed accurately the reality of their time, and thus drew their conclusions. Must I assume that the gates of observation and rational thought have been locked ever since the sealing of the Talmud?
• None of these remarks touches, of course, on the prohibitions on intermarriage, but only on the attitude that follows from our viewing non-Jews as normal human beings (see below in the words of the Meiri).

Precedents

Maimonides allowed himself to remove from Jewish law several Talmudic determinations in light of his scientific-philosophical views (demons, incantations, the evil eye, and the like). Why should we not be able to do the same? Are our science and tools of observation inferior to those that existed in the days of Maimonides and the Sages? Or perhaps we are forbidden to use them with regard to human beings, and may use them only with regard to animals, plants, or the esoteric?

In an article in Akdamot (19, 2007), I pointed to such a "Reform" consideration employed by Rabbi Menachem Meiri, one of the great medieval authorities of Provence in the High Middle Ages, and this time with respect to human beings (yes indeed, human beings too can change, not only olives, eggs, and demons). Meiri discerned that the non-Jews around him were not like those non-Jews of whom the Sages had spoken. The non-Jews he saw around him were restrained by the norms of the nations ("bounded by the norms of the nations"), and it did not seem plausible to him that the Sages were instructing him to relate to them as to beasts. As a result of his innovative assessment of reality, Meiri did not say that they were like a pig stretching out its hooves, nor did he cite sayings of the Sages; rather, he allowed himself to change an entire system of laws, biblical and rabbinic, and argued consistently and systematically that they were not relevant with respect to the non-Jews of his time. Needless to say, the prohibitions on intermarriage, and even prohibitions regarding cultic objects, remained in force. Non-Jews are still non-Jews, and some of them are still idolaters. But they are normal human beings, like me and you.

I will not elaborate here on the predictable objections that immediately arise, according to which Meiri's words were written out of fear of censorship. This is utter nonsense (Yaakov Katz already demonstrated this, and see also my article cited above). In my article I analyzed his argument, and showed that it contains a model for Orthodox changes in Jewish law. The basis of my argument is that changes in reality certainly can occur, and Jewish law is supposed to adapt itself to reality as it is today. I will not repeat those points here. Here I wish to broaden the discussion a bit in a different direction.

On Torah and Facts

The Torah does indeed deal with facts, but its sanctity and values are completely detached from them. Let us take an example. The Talmud in the first chapter of tractate Bava Batra teaches us that if Reuven sues Shimon to collect a debt and the claim is brought before the due date, Shimon is not deemed credible if he claims that he has already paid the debt. In the language of the Sages: there is a presumption that a person does not pay before the due date ("there is a presumption that a person does not repay before the due date"). This consideration tells us to extract the money from Shimon and obligate him to pay, despite the fact that he is the one currently in possession of the money. Now let us assume that reality has changed, and that today people do tend to repay debts before the due date (for example because of the interest gnawing at them, with the gracious assistance of a heter iska, or because of some other psychological change). Are we still obligated not to believe Shimon if he claims that he repaid the debt before the due date? Would someone who ruled that way be a Reformer? Certainly not. Reality has changed, and therefore the law that applies to it has changed as well. According to Jewish law, today Shimon would be deemed credible in his claim, and the burden of proof would return to the claimant.

The question now arises: what is the relevance of this Talmudic discussion in the new reality? Is there any point at all in studying it anymore? Where is the eternity of Torah here? What about this Torah shall not be changed ("this Torah shall not be replaced")? These questions are based on a mistake in understanding the nature of the Talmud and of Jewish law. This discussion is relevant today just as it was and always will be, because it did not come to teach us the psychological fact that people do not repay debts before the due date. For that there are psychology departments, or simply common sense. This discussion teaches us the halakhic norm that when there is a legal presumption, one may extract money from its current possessor on its basis. In the environment of the Sages, the factual reality was that people did not repay before the due date, and therefore that was also the legal presumption. In a different reality, the situation may be the reverse, and then the legal presumption will be different. The normative state – and it alone – is Torah, and it is indeed eternal and unchanging. What we learned from this discussion is only the normative rule that a legal presumption can extract money from its possessor, and not the fact that there exists a presumption that a person does not repay before the due date (incidentally, in that specific case this can be seen explicitly in the Talmudic passage). The norm is the eternal Torah, and it indeed obligates in every place and time. But the facts change constantly, as is the way of the world. The legal-halakhic norm we learn from the halakhic tradition, and the facts we must learn from observing the reality around us. There is no sanctity whatsoever in the factual reality of the Sages' time. It is nothing but the medium through which the norms are transmitted to us. When one knows the reality of the Sages' time, one can understand their normative determinations better.

A similar attitude may be seen with respect to the nature of women. The Talmud and the medieval authorities assume that a woman wants to marry at almost any price: it is better to live as two than to live as a widow ("better to sit as two than to sit as a widow alone"). She is prepared to pay a heavy price, so long as she has some sort of married life. That reality has apparently changed today. There are clear indications of this, and we all know them. Yet decisors continue to discuss female nature from within the sources of the Sages as though we were living in fifth-century Babylonia, or in twelfth-century Spain or France. We are told that the Torah fathomed the minds of women, and that even if they behave differently this is not truly their nature. Here too one can see the same misunderstanding: these determinations regarding women are factual determinations and not norms, and as such they are neither eternal nor binding. They are not Torah and not Jewish law. There is no law given to Moses at Sinai that this is the nature of woman. This is an observation by the Sages of the women of their own time, and nothing more. Therefore the factual situation in our own time can certainly be different (and it is indeed different. And yes, I know Rabbi Soloveitchik's astonishing remarks about the presumption of it is better to dwell).

The conclusion is that the sanctity and eternity of Torah, and indeed its essential content, consist not in facts but in norms. Reality is dynamic and subject to change, and there is no reason in the world to preserve the picture of reality held by the Sages and the medieval authorities in cases where it is clear that it is no longer correct. This is what Meiri did with respect to the non-Jews around him, and this is what we too should do with respect to non-Jews and to the world around us generally.

First-Order and Second-Order Rulings

In my response in this supplement a few weeks ago, I distinguished between first-order ruling and second-order ruling. I argued there that permission to recite mourner's Kaddish need not be based on precedents that permitted it, since there is no prohibition involved. The prevalent conception that without precedents one cannot permit, I there called second-order ruling. In my article I called for a return to first-order ruling, that is, ruling that takes the Talmudic norms and applies them to reality, even without precedents (at least where there are no relevant precedents of that sort).

This saga continued around the "Tzedek" supplement of this past Rosh Hashanah. There appeared there a description of a ruling issued by a panel that included me together with Rabbis Bigman and Levin regarding permitting a get-refused woman to remarry by annulling her betrothal. We annulled the betrothal on the basis of the claim that she certainly did not consent to betrothal on the understanding that her husband would flee abroad on the wedding day. Indeed, there are no precedents in the rabbinical courts of the Chief Rabbinate for such an annulment (where the grounds arise after the betrothal; these are not mistaken betrothals in the usual sense), and there are very few such precedents in the responsa literature at all. The question is whether in such a case we must adhere to precedents, if it is clear to us that the betrothal here is void.

In truth, there is no question here at all of adherence to precedents and issuing a halakhic ruling. If these betrothals are indeed void, then she is unmarried, whether or not we tell her so. Even before we sat in judgment she was unmarried, and we merely informed her of this. This is a halakhic fact that does not depend on us. Are precedents required in order to tell a woman the truth about her life?

In fact, we could have said this in a very simple and concise way: from the Talmud (Bava Kamma 110) the norm is proved that even in betrothal there exists the principle of annulling the betrothal through the claim she was not betrothed on that understanding ("she was not betrothed on that understanding"). Of course, that norm depends on an assessment of reality: in the case under discussion, did the woman really not consent? On the factual plane, the Talmud there does indeed reject the annulment (when the woman falls to levirate marriage before a man afflicted with boils), because at that time there was a presumption that a woman was content even with such a betrothal. This is an assessment of reality, not a halakhic norm. As such it can change with the passage of generations. Again, the binding Jewish law in these cases is the norm, which establishes that in principle one can annul betrothal on such grounds. The factual question is not determined by this or that precedent, created in very distant places and times, but in light of observation and assessment of reality in the relevant time and place.

And yet, following publication of that ruling, I received not a few responses asking on which precedents we had relied. The fact is that even in such questions the discussion is usually conducted on the basis of the words of medieval and later authorities who discuss what a reasonable woman demands and what she waives. But what women wanted in fifth-century Babylonia, or in twelfth-century Spain or France, or even in twentieth-century Borough Park, does not tell us much about a secular Israeli woman of the twenty-first century.

Just to remove any doubt: because of the sensitivity of the matter, our ruling too was based on such considerations, and we showed that even from within the accepted conceptions among the decisors, this woman is permitted and her betrothal is void. But the interesting question, to which we only alluded in our ruling, is what will happen in other situations, in which decisors in the past did not regard the betrothal as void. Can one nonetheless annul them against the precedents, in light of an assessment of reality relevant to our own day? If women in our time expect different things from marriage, then taking this assessment of reality into account is not a concession to the spirit of the age. It is the purest and most correct halakhic truth for our time. This is the true way to be faithful and committed to Jewish law, for we are applying the Talmudic norms to the correct (and different) situation in our time.

Reform and Slippery Slopes

A further clear example may be seen in the question of the deaf. My friend Rabbi Benny Lau put a question to several important decisors regarding the halakhic status of a deaf-mute who communicates in sign language. The answers he received were completely detached from reality (needless to say, all of them were second-order). Most of them, almost without exception, made do with quoting statements of the Sages and of medieval and later authorities regarding the nature of the deaf person (while ignoring sources that do recognize the possibility of change). We found there almost no observation of the reality of our own day, or consideration of the opinion of experts and of people who know the subject closely (one need not be a great expert to see this). Is the treatment of the deaf person as mentally incompetent a law given to Moses at Sinai? I am not aware of any such law. It seems that this is an assessment of reality by the Sages that perhaps was correct for their time. But in our day the situation is different.

As I have tried to make clear here, changing Jewish law in response to changed reality is a fully legitimate and necessary process in Jewish law. In recent years such processes have met with automatic opposition because of fear of Reform, and thus we are in effect allowing Reform to freeze Jewish law to death. Needless to say, these fears are entirely understandable to me. If one begins such changes, it is not clear where one ends, and the line between a factual change and a value change is not always sharp. And yet, it is impossible that we should subordinate ourselves to two-thousand-year-old assessments of reality merely because of such fears. David Enoch once wrote that there is a slippery slope in using the slippery-slope principle. We must not allow such considerations to paralyze the healthy functioning of Jewish law. They have a place at the margins, but it is unreasonable to give them control over the center of the halakhic field.

And Back Again to Non-Jews

To conclude, let us return to the question of non-Jews. It seems plainly evident that these are human beings like me and you. Precedents established in different times and places, and in an entirely different cultural situation, cannot and should not serve as a substitute for sober observation of reality. It is precisely such change that expresses true fidelity to Jewish law. It is conservatism that sins against halakhic truth, because it leads to mistaken behavior and to deviation from the demands of Jewish law in our own time. According to the conservative decisor, the deaf person may desecrate the Sabbath and his betrothal is no betrothal, whereas the halakhic truth is entirely different. This is an intolerable leniency. If a woman is not married, one cannot tell her that she is. It is important to understand that I am not speaking here about a moral problem, but about a problem in observing Jewish law. The conservatives sin here against Jewish law and lead people into transgression.