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

With God's help

The Orthodox Forum

The example of the prohibition of recourse to non-Torah courts

Michael Abraham

Introduction

In this article I wish to examine difficulties that arise in the world of a modern Orthodox Jew, who on the one hand is committed to Jewish law, and on the other hand is committed to external norms (moral, national, or other) whose halakhic—and perhaps even Torah—status is unclear. I wish to point to a line of thought that many tend to ignore, even though it is certainly present within the tradition of halakhic thinking: the use of higher-order considerations, what is sometimes called 'the spirit of Jewish law,' or 'meta-halakhah.'

At base, this article is not an academic article, and perhaps not even a classic halakhic-Torah article. My aim here is mainly to present a reasoned personal position on this subject. I do not intend to survey the entire topic from its halakhic sources, although quite a few halakhic sources will be mentioned here. And I certainly do not intend to engage in detail in sociological analyses of Religious Zionism, Haredi society, and Modern Orthodoxy, although I will make some use of those as well. The purpose of the article is to raise this option, briefly justify and ground it, and also to point to its connection to the modern-Orthodox mode of thought.

I will open with three examples that are present in our public discourse, which illustrate this tension and direct us toward the opening of the discussion: the prohibition of recourse to non-Torah courts, acceptance of commandments in conversion, and saving a non-Jew on the Sabbath. I will then comment on the differences in how various religious groups relate to these issues, and finally I will propose the alternative of higher-order considerations. The article concludes with a discussion of questions of authority and substance regarding the use of such considerations in Jewish law.

A. The courts as 'gentile courts'

In an age in which there exists a secular Jewish state, quite a few tensions arise in the world of a Jew who is faithful to Jewish law. A prominent example is the question of how he should relate to the legal system of such a state. Are these 'gentile courts' (or 'courts in Syria,' which according to some interpretations were staffed by Jewish judges)[1], before whom appearance and appeal are subject to a severe prohibition, or are they legitimate courts, whether by virtue of public acceptance, or as communal leaders, or under the law of the land? This is an expression of a broader question about the attitude toward secularization and secular Jews in general.

Haredi society chooses a path of condemnation and rejection toward the Israeli legal system, which greatly eases the difficulty in principle, but greatly complicates life in practice—both morally and socially-economically. Such an approach neutralizes the tension, because it gives up one of the two poles that create it (loyalty to the state and loyalty to Jewish law). Yet this path has grave consequences, in the form of violence that erupts with no authority to deal with it; and in not a few cases, despite the unequivocal ideology, Haredi institutions and rabbis—including very important and central ones—resort to the legal system (see the dispute in Ponovezh Yeshiva, the takeover of the newspaper Yated Ne’eman, and much more).

The Religious Zionist path, by contrast, is unwilling to give up either of those poles, and therefore lives with an inherent tension. That tension generates various solutions, some ideal and some ad hoc. What all the solutions have in common is that they enlist tools from halakhic thought, sometimes in rather creative ways, in order to enable us to live within and with this tension. This mode of response is problematic, and at times it appears less than straightforward. The halakhic conclusions do not look convincing, and a sense emerges that we are living with a 'wink'—that is, we know that our interpretation is not really the conclusion demanded by the halakhic sources, but we feel we have no choice.

B. Acceptance of commandments in conversion

This matter of the 'wink' arose in the context of the discussion that has been taking place in recent years concerning conversion in the special rabbinical courts and beyond. Rabbi Yehuda Brandes, in his article 'The Renewed Conversion Polemic,' Akdamot 21 (2008), points out that all the major decisors are unwilling to retreat from the requirement of full acceptance of commandments at the time of conversion, but in practice most of them do not really implement it. He describes this as a conversion performed 'with a wink': both the convert and the converting rabbis know why the convert is here, and what he is likely to do in the future with respect to commandment observance, but everyone remains silent and plays a game of lenient halakhic interpretation. They ostensibly make use of halakhic tools in order to anchor their conduct, even though there is a sense that the whole thing is accompanied by a wink (from my conversations with several of them there is, of course, vigorous denial, but the impression created—not only for me—is clear). Rabbi Brandes argued in that article that it would be preferable to place openly on the table the position that stands (in his view) behind the halakhic approach of the conversion courts: for reasons of nationality and various social problems (including considerations of justice toward Jews who could not preserve their Judaism under oppression—what is called 'zera Yisrael,' people of Jewish descent), we are indeed waiving acceptance of commandments as a condition for conversion.

I personally strongly oppose this proposal, and I even published, in the following issue of Akdamot, a long and detailed response that sparked a stormy discussion.[2] The reason is that, in my opinion, this proposal has no halakhic basis whatsoever. At the same time, however, I entirely agree that the difficulty and the tension certainly exist, and therefore the need arose to examine such considerations in order to resolve them. As noted, in my opinion this is not possible in the realm of conversion, but perhaps it is possible in other areas, as I shall argue below.

C. Saving a non-Jew on the Sabbath

A similar distress arises with respect to the question of saving the life of a non-Jew by means of Sabbath desecration. Here too the Jewish law that forbids it appears unequivocal, but the moral-value tension that it arouses in a modern Jew is unbearable.[3] The common solutions that permit it because of 'the ways of peace' do not provide a real answer to this distress, and Professor Rabbi A. S. Rosenthal gave this feeling expression in his speech at the founding of the movement for a Judaism of Torah, as Rabbi Benny Lau described it in his article 'A Reflection of Truth'—Rabbinate and Academy in the Writings of Rabbi A. S. Rosenthal: On Saving a Non-Jew on the Sabbath, Akdamot 13 (2003). Here too I wrote a response rejecting his approach,[4] but once again I find myself sharing the basic tension, and therefore I am compelled to examine where and to what extent this type of thinking can nevertheless be employed.

By way of aside, I will note that in my article 'Is There Enlightened Idolatry?'[5] I argued that this halakhic conclusion, which seems entirely clear, is not in fact required in our time. I showed there that one may rely on the reasoning of Meiri on tractate Yoma, where he writes that the non-Jews of our day are moral at a reasonable level, and therefore all the sanctions imposed on them by the Torah and the Sages (even in Torah-level laws) no longer apply to them (of course, this does not refer to prohibitions of intermarriage, or prohibitions concerning implements of worship, and the like). In that article I showed that this is a matter of interpretation that Meiri offers regarding those prohibitions, and not of a rabbinic enactment that temporarily suspends them; we shall return to this point at the end of the article.

What does all this have to do with Modern Orthodoxy?

Of these three examples, the first and second belong mainly to the tension between Jewish law and social-national values and the State of Israel, whereas the third belongs to the tension with universal moral values. Conversion creates a national-social problem, and touches less on questions of universal morality. The attitude toward the legal system likewise concerns mainly social and national questions. By contrast, the third question—saving a non-Jew on the Sabbath—is a question of universal morality. It is therefore no wonder that the public sphere of Religious Zionist thought deals quite extensively with the first two questions, but much less with the third.

At this point one can distinguish between Modern Orthodoxy and Haredi society. The mainstream of Haredi decisors is not troubled by these questions at all, because it does not inhabit the bipolar tension I have described. And what of Religious Zionist decisors? They too generally adopt the ordinary halakhic methods, similar to the Haredi position. They refuse to step outside the framework and method of classical halakhic discussion. Therefore the discussion of the status of the courts is conducted as a regular discussion within the halakhic conceptual world, and the same is true with respect to conversion. Regarding the saving of a non-Jew on the Sabbath, there is likewise not much broad discussion (though there are exceptions).

This is the place to point out that the concept 'Modern Orthodoxy' differs from the concept 'Religious Zionism,' despite the common tendency in Israel to blur the two. I will not enter here into the details of the distinction. I will say only that, as I understand it, Modern Orthodoxy advocates a change in the rules of Orthodoxy itself, and a commitment to universal values, and not merely a sympathetic attitude toward Zionism and nationalism, as is common in the rest of Religious Zionist thought. A person can be impeccably Religious Zionist and at the same time have an entirely standard classical halakhic outlook. Modern Orthodoxy advocates a more open halakhic mode of thinking, one that is attentive also to the spirit of the times. Therefore it is specifically within a conceptual framework like that of Modern Orthodoxy that all the tensions I have described arise—not only those connected to nationality—and specifically within it that the handling of all these tensions may include taking account of higher-order considerations, even though they appear exceptional, and one might almost say extra-halakhic.

Despite the above, it is important to note that these two groups are, of course, not alien to one another. Usually Modern Orthodoxy is a subgroup of Religious Zionism, though not necessarily. Yitzhak Geiger, in a very interesting article, describes and defines a group he calls 'New Religious Zionism' (NRZ).[6] This too is not identical with Modern Orthodoxy, but there is certainly a correlation between the two groups.[7]

To complete the brief sociological canvas I have begun to sketch here, I will say that articles dealing with moral questions—those not necessarily tied to the plane of national values, society, and the state—appear mainly in forums such as Akdamot. In light of that, it seems that such forums can clearly be associated with Modern Orthodoxy, and not merely with Religious Zionism. If we take as an example another important journal, Tehumin, we see that by this measure it belongs clearly to Religious Zionism, since its main concern is questions of society and state (as its very name hints: Torah, society, and state). The same is true of a journal such as Tzohar (which has since closed). A quick look at the contents and methods customary in those latter two journals shows that their main focus is on questions of Torah and state, and less on questions of Torah as against morality and universal values (though these too, of course, are present). By their very nature, the method of discussion in those two journals is also more formally and conventionally halakhic than that of Akdamot. To the best of my understanding, this is not only because of the different goals those journals set for themselves, but also because of the ideological affiliation of most of their writers (Religious Zionism, though not necessarily Modern Orthodoxy).

I wish to demonstrate the limitations and problems of the usual halakhic mode of treatment, and the alternative proposed here, by examining the question of the status of the legal system in the State of Israel. I do not intend to enter into the details of those discussions, which have already been exhausted, but rather to look at them 'from above' in order to reach what seems to me to be the conclusion demanded by a Modern Orthodox way of thinking.

The question of the status of the courts

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

• The value and possibility of integrating parts of Jewish law into Israeli law.
• The attitude required, from the standpoint of a Jewish citizen committed to Jewish law, toward the Israeli legal system as a secular system. We shall call this the issue of recourse to non-Torah courts.

I touched on the first question in my article, 'Is Jewish Law “Hebrew Law”?' Akdamot 15 (Heshvan 2004). Here I wish to deal mainly with the second question. The importance of this question does not concern only its substantive content. As I shall try to show, the method of dealing with it is no less important, on two planes: (a) the manner in which the decision is made, and (b) the way in which it is presented to the public.

How should we decide the question of the status of the legal system in Israel? Should we search the sources for the correct definition of non-Torah courts, and examine its application in the case before us, or should we explicitly introduce meta-halakhic higher-order considerations into the decision, without resorting to overly tortuous halakhic interpretations?

Generally speaking, one finds in this discussion mainly two approaches:

• Judges and jurists (Yaakov Bazak and Menachem Elon are two prominent examples)[8] support participation, and explain that, broadly speaking, there is no prohibition here of recourse to non-Torah courts. Personally, I would say that the halakhic arguments advanced there are not really convincing. One central argument of Elon is that the problem of such courts concerns only the ethnic identity of the judges (whether they are Jewish or not), and not the nature of the legal system itself. In Israel most judges are Jews, and therefore he claims there is no problem. This claim is implausible on its face, even before entering into the fine points of the sources, and indeed all the decisors reject it. Another argument raised there is that there is public acceptance, or the authority of communal leaders and the law of the land. It is difficult to accept a simple application of all these to a proposal for a legal system that serves as an alternative to the Torah—one whose judges and legislators are transgressors, sometimes out of convenience and sometimes deliberately, and whose laws are partly contrary to Torah law (see, for example, Hazon Ish, Sanhedrin 15:14).
• Opposed to them stand all the leading Orthodox decisors (including the Zionist ones), who prohibit cooperation with and use of the legal system in principle, because of the prohibition of recourse to non-Torah courts. Almost all of them maintain an uncompromising prohibition, where this is possible. See, for example, the article by Rabbi Yaakov Ariel, one of the leading rabbis of Religious Zionism, 'The Legal System in the State of Israel and the Prohibition of Non-Torah Courts,' Tehumin 1 (1980), pp. 319–328, and his response to Judge Bazak's response, Tehumin 2, p. 528. There he sharply rejects the judges' approach described above.

In addition to these two sweeping approaches, Eliav Shochetman, in his characteristic way, conducts a broad and detailed discussion of this topic in several of his articles,[9] and breaks it down into its components. He distinguishes between different areas of law, and does so in light of a meticulous analysis of the halakhic sources regarding the prohibition of recourse to non-Torah courts. In that sense he is a middle figure, and his approach stands between the two preceding approaches. Yet at least on the theoretical level, it seems to me that he belongs more to the second camp, since his basic premise is that the prohibition plainly applies here. The permissions he proposes are specific and source-based.

In sum, the discussion of all participants in this matter is a standard halakhic discussion, and each of them explains his position by means of halakhic sources and their interpretation.

Diagnosis

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

A. Diagnosis. There is a strong sense that nearly everyone engaged in this question operates with a 'wink.' They begin from the premise that it is impossible not to participate in the legal system, but they do not say so explicitly. Instead, the judges twist themselves into various creative interpretations of the sources concerning the prohibition of non-Torah courts, while the rabbis, on the one hand, protest the transgression and the desecration of God's name, but at the same time remain silent in a thousand languages when they see that nearly the entire public does not observe this severe prohibition and participates actively in the legal system—as legislators, litigants, and even as judges and lawyers.

B. Proposal. To the best of my judgment, in our time it is preferable not to 'wink' but to be intellectually honest. One should not give up the interpretive integrity of the sources, and therefore one should recognize that what arises from a straightforward reading of them is a clear and sweeping halakhic prohibition. At the same time, however, one should place openly on the table the assumption that everyone in fact holds (even while concealing it): that in our present circumstances it is right to violate this prohibition on the basis of meta-halakhic higher-order considerations. The proposal to avoid winks has two implications: 1. regarding substance—participation in the legal system should be permitted in a sweeping and unqualified way; 2. regarding presentation—this should be stated explicitly.

It is true that our halakhic tradition also contains esoteric speech; that is, rulings based on certain principles but justified by other reasons so that they will be more readily accepted by listeners, or so that they will not cause harm. Sometimes even the law itself is not disclosed in public, in the sense that the law may be one way but one does not instruct accordingly. But to the best of my judgment, in our generation it is not right to continue this policy, even though it was indeed practiced by decisors from time immemorial. If there is a permission that is not halakhically grounded, it should either be put on the table or abandoned.

The reason is that in our generation information is exposed to the entire public. Much of the public has a reasonable Torah education, or access to those who do and to the halakhic literature itself (or to databases), and therefore all the winks are very quickly uncovered, producing justified criticism that involves a great desecration of God's name. I would note that in generations in which there was an institution authorized to enact regulations, this was easier. There one could present an unsupported halakhic decision as a formal enactment, and an enactment is a binding halakhic institution. But when we have no such institution, we find ourselves sliding into 'winks'; and in an age in which information is openly available to all, this is not the right thing to do. I will return later to the question of authority.

De facto halakhic recognition of the legal system

Above I wrote that both sides in the dispute understand (implicitly and by implication) that cooperation with the legal system must be permitted. Why do I assume this? Because, to the best of my understanding, that is what lies behind the silence of Religious Zionist decisors regarding the use of the courts and the legal system (see the article by my friend Nadav Shnerb,[10] especially note 4 and its context). This is the understanding that we truly have no option of forbidding it. A citizen in a democratic state must take part in its legal system—as a litigant, as a lawyer, as a judge, or as a legislator.

Do we truly have a real option not to recognize the legal system? I already mentioned above that various Haredi communities, which ostensibly do not recognize this system, require its services almost daily (see the Yated Ne’eman case, the struggle over control of Ponovezh Yeshiva, the 'Didan Natzach' affair of Chabad-Lubavitch, and much more). There is no other way to decide disputes except by means of a system that functions properly and possesses enforcement authority. More extreme communities, which really are careful never to appear in court at all, fall into terrible physical and verbal violence (see the cases of the Sicarii and the Gur Hasidim in Batei Ungarin, among others), even to the point of murder. In them one sees fulfilled the saying of the Sages: were it not for the fear it inspires, people would swallow one another alive.

In addition to all this, Nadav Shnerb already pointed out in the above article that Jewish law, as it currently stands, has no real answer to contemporary problems. A halakhic court cannot provide a serious response to modern litigation (liability for indirect causation, damages for humiliation, intellectual property, the status of a non-Jew who is a citizen of the state). Jewish law is not adapted to contemporary life, and considerable work is needed to adapt it. And I have not yet spoken about the problematic way—understatement intended—in which the system of rabbinical courts is conducted (including a large portion of the private rabbinical courts as well). Anyone who reads Shnerb's article understands that as long as this has not been done, the slogan forbidding resort to 'non-Torah courts' is empty of content.

If so, the discussion regarding non-Torah courts is doomed to remain only a theoretical discussion. We have no real option not to cooperate with the legal system in Israel. The question now is how we explain this to ourselves. What is the decisor supposed to say when asked questions that concern appearing in court, or the halakhic legitimacy of occupations such as lawyer, judge, or legislator?

The accepted path is avoidance and silent disregard of the fact that masses of good, observant Jews engage in these professions, despite the ostensible prohibition. The more scrupulous among them try not to appear in court, and this attitude looks a bit like turning on a light in an unusual manner (with one's left hand) on the Sabbath when necessary.

In this connection it is worth noticing another fascinating phenomenon. Haredi society, as noted, is characterized by a much more unequivocally negative attitude toward the legal system. In most Haredi communities, someone who turns to the police is called an 'informer' (despite the grave halakhic connotations that accompany this term; it should be remembered that informers are, in classical Jewish law, permitted to be killed).[11] I already mentioned various appeals by Haredi institutions to the secular legal system, which indicate that they too understand what everyone understands. But astonishingly, in recent years quite a few Haredi colleges have opened, nearly all of them training hundreds and thousands of lawyers who enter the market each year. All this exists alongside the unequivocal ideological slogans about the prohibition and gravity of non-Torah courts. Thousands of Haredim today make their living as an integral part of the legal system, and the Haredi establishment (at least that part which permits outside studies for livelihood) accepts this in silence and even encourages it—though usually quietly.

How does such a thing happen? Partly it is a matter of economic necessity. Haredim cannot enter scientific professions because they lack the necessary education. On the other hand, each of them requires a lawyer and sometimes also the courts, because as citizens of the state they cannot avoid this, as I described above. These pragmatic considerations lead to de facto recognition of the legal system. But would decisors permit Sabbath desecration in a time of economic hardship? Are the prohibitions of desecrating God's name and extinguishing the light of religion somehow lighter in their eyes? It is quite clear that here too there is recognition—at least de facto, and quietly—that a citizen in a modern democratic state cannot but participate in its legal system, and not only when forced to do so.

Using an overarching halakhic principle

In the previous section I described the fate of the halakhic 'wink' surrounding the prohibition of recourse to non-Torah courts. The public slogan is that this is a severe prohibition and a terrible desecration of God's name, while at the same time there exists de facto recognition—with a wink attached—of the necessity of the legal system, and of the fact that it is proper and decent to participate in it in various ways.

Is there no place to put the matter openly on the table, and to say that in our generation one should participate fully in the legal system because we have no other option? Must we really resort to tortuous arguments based on halakhic sources and creative interpretations of them, in order to do what is obvious to every student that we have no option but to do?

Put differently, the two positions we have seen are both based on halakhic sources and different interpretations of them, in order to show that it is permitted or forbidden to resort to the secular legal system of the state. The position I propose is a third way: a straightforward reading of the sources shows that the matter is indeed entirely forbidden, and nevertheless there is no escape from full cooperation with the Israeli legal system.[12] As I mentioned, beyond ending the use of esoteric rulings and transparently presenting the considerations of the decisors, this approach has a substantive implication as well: there is no room for real qualifications on the permission to participate in the legal system. There is no need to seek a specific halakhic anchor for every legal profession or activity, because the matter should be permitted as a whole.

The basic difficulty

What is the nature of this consideration? To what extent is it legitimate within Jewish law? We are accustomed to halakhic discussion proceeding according to halakhic rules and within halakhic frameworks. How can we ignore the whole array of prohibitions concerning non-Torah courts, which are among the gravest prohibitions and involve desecration of God's name? We are giving up part of the very life-breath of Judaism: the public-juridical component of Jewish law, and we are doing so by positive action and in a sweeping fashion. Is this not Reform? Could one likewise permit Sabbath desecration on similar grounds? I will already say here that almost all of us, in any case, already do this. What I am proposing is merely to acknowledge it and put it on the table.

This is the place to return to the two earlier examples brought above. A consideration similar to this could ostensibly be adopted in the context of conversion (a national question), as well as with respect to saving a non-Jew on the Sabbath (a moral question). In the moral context the claim is raised that it cannot be that observance of Jewish law should lead us to abandon a non-Jew to die without helping him, and therefore we must permit Sabbath desecration to save him. Here this consideration calls on us to give up the 'wink' involved in arguments such as enmity and the ways of peace. By the same token, in the national-social context, it cannot be that we allow hundreds of thousands of non-Jews to live as an integral part of Jewish society in Israel—equal, and yet nevertheless different. Therefore we must allow conversions without acceptance of commandments, instead of the 'wink' conversions performed today.

I already mentioned my articles in which I oppose both these proposals. I indeed oppose the wink in conversions and in saving a non-Jew on the Sabbath, but the required conclusion there is either to find a genuine permission or to give it up. Thus, there I do not agree to a similar application of an overarching halakhic principle. What is the difference between those two situations and the prohibition of recourse to non-Torah courts? Moreover, does such a consideration as I proposed regarding non-Torah courts not constitute an intolerable breach in the wall of Jewish law?

To understand this, we need to probe a bit more deeply into the consideration described above with respect to the prohibition of non-Torah courts. We will present here two different formulations that may underlie such a consideration.

A value conflict

The consideration we proposed for permitting participation in the legal system is a kind of 'no-choice' consideration. True, this is not a lack of choice in the simple sense, for one could in principle say that there is a prohibition and therefore we must try to minimize violation of it as much as possible. More accurately, this is a consideration that arises from there being no choice in the value sense.

The assumption is that there is a Torah value in partnership with the Jewish people as a whole, and even more so in the rule of law in a democratic state; and when these values clash with the prohibition of non-Torah courts, the prohibition should be permitted. My point is that these values override the halakhic prohibition, and perhaps even nullify it. How exactly can that be justified in halakhic terms? That is what I will now discuss.

A. A transgression for the sake of Heaven

An extreme expression of such possibilities is the category of 'a transgression for the sake of Heaven.' This term describes a situation in which fulfilling Jewish law would lead to disastrous results, and therefore one may violate Jewish law in order to prevent the disaster. It is important to understand that this is not an internal halakhic rule, such as a positive commandment overriding a prohibition, or human dignity overriding rabbinic prohibitions or even Torah prohibitions in the mode of passive omission. In situations where we activate a halakhic displacement rule, the act we do is the halakhically correct act. When there is a clash between saving life and the Sabbath, there are halakhic sources that instruct us what Jewish law requires in such a situation: to desecrate the Sabbath in order to save life. But in a situation of 'a transgression for the sake of Heaven,' the decision is based on an extra-halakhic principle, which instructs us to violate the law. Jewish law forbids the act, and nevertheless the Torah in its broader sense—or God—expects us to do it.[13]

For example, in Nazir 23 the Talmud states that Lot's daughters made such a calculation after the destruction of Sodom. They believed that the entire world had been destroyed, and that if they did not have relations with their father humanity would have no future. They decided to do so, and the Talmud implies that this was a transgression for the sake of Heaven; the Sages praise them for it. There is no halakhic permission to have sexual relations with a forbidden relative under any circumstances. This is one of the gravest prohibitions, one for which one must surrender one's life rather than transgress. And yet the Sages praise Lot's daughters for this decision.

It seems, however, that the mechanism of a 'transgression for the sake of Heaven' is too extreme. It can and should be applied only in one-time situations in which a highly problematic reality arises that the ordinary halakhic tools cannot address—only where adherence to Jewish law would have catastrophic results. Are the consequences of separating the religious community from Jewish society as a whole in Israel, or of undermining the rule of law in the State of Israel, disastrous to that degree? The consequences are indeed very severe, but it is still hard to permit, on a continuing and permanent basis, a 'transgression for the sake of Heaven.'

Moreover, 'a transgression for the sake of Heaven' is a mechanism available to an individual who finds himself in a place and situation where there are no halakhic decisors who can themselves make the halakhic judgment and determine whether the act is permitted or forbidden. For example, it is not reasonable to view Rabbi Yehudah HaNasi's decision to write down the Oral Torah as a 'transgression for the sake of Heaven.' That was a formal enactment of a sage (the head of the Sanhedrin) who saw that the generation required it. If so, in our case too, we are dealing with an ongoing situation (unfortunately), not a one-time event. Moreover, this situation is before all the halakhic decisors, and therefore it is not right to remain silent and leave the ordinary Jew to decide on his own under the rubric of 'great is a transgression for the sake of Heaven.' What is called for here is an enactment of the halakhic sages for the hour, not some post facto permission.

One might say that Lot's daughters transgressed the severe prohibition of incest (which falls under 'be killed rather than transgress'), and therefore the value that overrides the prohibition must be one whose neglect would bring very extreme consequences. But the prohibition of non-Torah courts is not so severe, and therefore even less catastrophic results might justify violating it. Yet that is already a very dangerous and problematic argument. If we are not dealing with a truly extreme case, it is reasonable to assume that a well-grounded halakhic argument will be required to justify violating a Torah prohibition—especially one that involves desecration of God's name.

B. The Torah was not given to ministering angels

One can invoke here a phrase such as 'the fifth section of the Shulchan Arukh,' attributed to the Hazon Ish. This term too expresses the view that there are meta-halakhic values which, in certain cases, override even a formal halakhic prohibition. We may have no clear source permitting the prohibition of non-Torah courts in a situation of this sort, but our judgment tells us that this is how one should act.

Similar questions, touching on the wholeness of the Jewish people, arose in the controversies over communal separation, both in the days of Rabbi Samson Raphael Hirsch in Germany and in the period of the Ketav Sofer in Hungary. True, there the issue was not a clear-cut halakhic question but more one of halakhic policy; it is therefore unsurprising that they resorted to aggadic and philosophical arguments, and not only strictly halakhic ones.

For example, the Netziv, in Meshiv Davar, part 1, no. 44, writes as follows:

And behold, the one who carefully considers matters and advises that, in order to guard ourselves from this generation, we should separate completely from one another, just as Abraham separated from Lot—please, from the one offering this counsel: this advice is as harsh as swords to the body of the nation and its continued existence. For when we were in the Holy Land and almost under our own authority in the days of the Second Temple, the land was thrown into turmoil, the Temple was destroyed, and Israel was exiled because of the dispute between the Pharisees and the Sadducees, and also because of baseless hatred, which caused much bloodshed beyond what the law required. That is, when a Pharisee saw someone being lenient in some matter—even though he was not a Sadducee at all, but had merely committed a sin—nevertheless, because of baseless hatred, he judged him as a Sadducee, whom one may cast down. And from this much bloodshed spread under permission and in the name of a commandment, by mistake. The Torah already alluded to this (Numbers 36:34), as explained in Ha'amek Davar and Harchev Davar. And all this is not far-fetched; Heaven forbid that in a time such as ours as well, according to the way one defender of religion sees things, he will imagine that so-and-so does not conduct himself according to his own path in the service of God, judge him as a heretic, distance himself from him, and they will pursue one another under supposed permission, in false imagination, Heaven forbid, and destroy the whole people of God. Far be it from us. This would be so even if we were in our land and under our own authority.

How much more so when we are subjugated in exile, and Israel is a scattered sheep among the nations of the world. In exile we are compared to the dust of the earth, as the Holy One, blessed be He, said to our father Jacob: 'Your offspring shall be like the dust of the earth.' And the nations of the world are compared to many rushing waters, as it is written in Isaiah: 'Ah, the roar of many peoples, roaring like the roar of the seas.' There is no remedy for a clod of dust in the flood of many waters unless the dust is made into a solid stone. Then even if a rushing river passes over it, it merely rolls it from place to place, but does not destroy it entirely. So too Israel among the nations has no remedy except to become the Stone of Israel—that is, to be bound together in one bundle. Then no nation or language can destroy them. How, then, can we say that each person should separate from his fellow, so that the nations of the world will come and wash us away little by little, Heaven forbid?

Such considerations can also be taken into account in our case.

From the discussions surrounding communal separation, it is hard to infer that this is a case of 'a transgression for the sake of Heaven.' What is at issue there is disputed halakhic policy, and in fact some sages of Israel did advocate separation. It does not seem that the expected consequences were seen as so dramatic. On the other hand, they were severe enough that most decisors rejected such separation outright.

Therefore one might suggest a somewhat different formulation for our higher-order consideration. Perhaps the de facto permission to resort to non-Torah courts is not based on a transgression for the sake of Heaven, but on another meta-halakhic principle: the Torah was not given to ministering angels. That is, on the assumption that the Torah expects us to live normal and reasonable lives, both morally and socially.

By way of analogy, one might have thought that since no one is free of the prohibition of evil speech, we are obligated to flee to the deserts and not live in human society. Along these lines Maimonides writes in Laws of Character Traits 6:1:

And if all the countries he knows of and hears about conduct themselves in an evil way, as in our own times, or if he cannot go to a country whose practices are good because of armies or because of illness, he should dwell alone by himself, as it is said: 'Let him sit alone and be silent.' And if they are evil and sinful people who do not allow him to dwell in the country unless he mixes with them and follows their evil ways, he should go out to caves, thickets, and deserts, and not conduct himself in the way of sinners, as it is said: 'Who will give me a lodging place for travelers in the wilderness?'

Does any one of us actually do this? Does anyone even imagine demanding it of people? Social life is a tried and true recipe for grave transgressions—who is free of evil speech? So why not present as the ideal a flight to the desert? Ostensibly this is only a compromise, because we cannot live up to so lofty a demand. But it seems to me that a more plausible explanation is that this Maimonidean view is an example of a law that exists in principle but is not actually taught as normative conduct. The Torah expects us to live social lives, and to try to improve the society in which we live. Flight and separation from society are not solutions favored by the Torah.

By the same token, we are not required never to go out into the street or to drive a car because of the danger involved. Normal life is a halakhic measure of a proper way of life. Sometimes people invoke the principle that 'the Lord protects the simple,' but the point is not simpletons; it is people who behave in a normal way, like any reasonable person, and whose way of life is therefore legitimate (see Minhat Shlomo, second edition, 2–3, no. 86, end of sec. 2, and elsewhere). The assumption is that Jewish law does not forbid something that is part of normal and reasonable life—unless it says so explicitly.

Other similar principles appear in Jewish law, such as 'its ways are ways of pleasantness,' 'they did not say to send into a stumbling block,' and the like. What all of them share is the idea that the reasonable human way of life is the life the Torah expects of us. If the price of observing Jewish law is an abnormal life, one must consider whether that is indeed the correct and desirable mode of conduct. Likewise, the principles that a decree which the public cannot endure, or one that has not spread among the majority of the public, is void, point to a similar way of thinking: what makes unreasonable demands unsuited to normal life is not valid.

From this mode of thinking one may perhaps derive the conclusion that it is not plausible that the Torah expects us to live abnormally. In a democratic state, in which we are citizens with equal rights and duties, if we do not participate in the legal system we will fall into social difficulties (as described above), and we will be unable to influence systems that affect all of us so deeply. It is not plausible that the Torah expects us to live in such a way.

At this point the questioner may ask: surely the Torah does expect this of us, for it commands us 'before them and not before laymen, before them and not before gentiles.' Apparently there is an explicit command telling us that the Torah does expect us not to be partners in such a system. So how can one say a priori that the Torah does not expect this from us? Shall we say we will not keep the Sabbath because it is not normal not to drive? Or that we will eat pork because we want social life with people who do not observe kashrut?

Here we require an additional interpretive consideration. The Sages said these things in circumstances in which Jews lived under foreign and totalitarian rule. The legal system was imposed on them, and they had no opportunity to participate in it. That is with respect to gentiles. As for Jews, the prohibition called the law of 'courts in Syria' speaks of a situation in which there is an alternative Jewish legal system, even if not in that specific place (Syria), then at least more generally. But in our case, unfortunately, there is no such option at all. We are not dealing with a criminal or amateurish society like that of the Talmudic period, but with a society that in principle does not accept the principles of the Torah. Can such a situation really be compared to what stood before the Sages?

We find some far-reaching permissions by the Tosafists, both with respect to the prohibitions of interest and with respect to the prohibitions against selling animals to gentiles (their festival days). For example, one among several, in Tosafot s.v. 'Imor,' Avodah Zarah 15a, they ask:

We see that according to everyone, both Rashbam and Rabbenu Tam, it is forbidden to sell calves and foals, and any non-kosher animal, to idolaters. It is therefore astonishing: on what did they rely in selling calves and foals to idolaters?…

However, from those who are accustomed to rent out animals to idolaters there is a difficulty. One can answer that certainly the prohibition on selling non-kosher animals applied specifically in their days, when many Jews lived together, and if a person had an animal he did not need he could sell it to his fellow Jew and would not lose out. But now, what is he to do if he cannot find anyone to sell it to? He will suffer a loss. Therefore the Geonim in exile adopted the practice of permitting it. And similarly below, where it asks: 'Then wheat and barley too should not be sold,' and answers: 'If so, indeed'; but since it is impossible, it is permitted.

The Tosafists permit a Torah prohibition because in former times the reality was that many Jews lived together, and therefore there was no loss if one was forbidden to sell an animal to a gentile. But when Jews are scattered, and forbidding the sale of an animal to a gentile would make life very difficult, they permit it. We find the same with respect to the prohibitions of interest (see Professor Haym Soloveitchik's book Jewish Law, Economy, and Self-Image, devoted entirely to this question).

What is the basis of Tosafot's permission? Could they not have told Jews to earn a living in some other way? Or to live in communities with more Jews? It is quite clear that the basis of the permission is that this is how Jews lived there, and Jewish law does not demand that they alter their way of life. Where Jewish law would lead us to an unreasonable life, it is not clear that it truly applies. The question of what counts as an unreasonable situation is, of course, a different question.

Similarly, one may say that the Sages expounded the prohibition against participation in a foreign legal system because what stood before them was an entirely different form of life, as detailed above. But in our time this is a demand that would lead us to an unreasonable life. Citizens in a democratic state cannot separate themselves from its legal system. It is not plausible to apply the prohibition here.

True, one may discuss whether such a permission is a case in which the prohibition is entirely lifted or merely set aside—that is, whether the permission is sweeping, or whether one should minimize it as much as possible (see the end of the Tosafot cited there, where they indeed limit the permission only to cases where it is necessary). But even if we adopt the 'set aside' approach, the explanation we have offered still yields the conclusion that this permission concerns participation across the whole legal sphere, and not only solving a problem for those in financial distress.

I return and emphasize what I already showed: at least de facto, the religious and Haredi publics do indeed behave in this way. The permission is sweeping, and it is based on needs and constraints, not on halakhic arguments. This is contrary to the explicit descriptions that pretend to rely on halakhic considerations (or silence). All I am proposing is to place that consideration openly on the table, and not to live by means of a 'wink.'

Questions of authority and substance obviously arise here: who is authorized to determine the existence of such a permission? And, of course, substantive questions as well: when does the situation indeed require such a permission? What is the criterion? I will address these questions later. But already here I will note that the Tosafists too should have been troubled by these questions. Even in their day there was no Sanhedrin, no ordained judges, and no single central halakhic authority able to establish such an enactment or fixed interpretation. And again I say: in practice we too already use this permission, with a 'wink'; we merely avoid declaring it.

The words of the Tzitz Eliezer on the issue of child adoption

In Tzitz Eliezer, part 6, no. 40, sec. 21, he discusses the halakhic questions that accompany child adoption. Among other things, he addresses the question of seclusion between the parents and the adopted boy or girl. It seems to me that families with a conservative halakhic outlook are less inclined to adopt children because of the halakhic problems that accompany it. Most decisors forbid seclusion with adopted children, and I strongly doubt whether in practice such families can really observe that prohibition.

The author of the Tzitz Eliezer there takes an unusual position among decisors. He permits seclusion with adopted children, and does so on the basis of three reasons. Here I will cite two of them, which are relevant to our discussion:

A. A decree the public cannot endure—he argues that applying the laws of seclusion to adopted children may lead to abandoned children becoming a burden on society, and therefore it is akin to a decree that the public cannot abide, and there is no place to impose such a decree. In his words:

'It may be said that this too is somewhat like a decree that the majority of the public cannot endure, since many children of this kind would have to become a burden on the public, with no one to take them in' (there).

In support of his position, the Tzitz Eliezer cites there the words of Sefer Yere'im (no. 192), which explains the permission of seclusion with a menstruant wife, even though she is then forbidden to him, on the basis that otherwise this would be a decree the public cannot endure. Of course, this principle applies only in the context of rabbinic decrees, not Torah prohibitions. However, seclusion with a woman who will later be permitted to him, such as his wife, is considered only a rabbinic prohibition, and the principle of a decree the public cannot endure therefore applies there (with regard to one's menstruant wife). The Tzitz Eliezer argues that the same is true with respect to seclusion with adopted children. Admittedly, seclusion is a Torah prohibition, at least in the case of a son with his adoptive mother (not of a daughter with her adoptive father, since she is unmarried). It seems that this is what he means when he writes 'akin to a decree that the majority of the public cannot endure'—that is, it resembles the consideration used with regard to decrees, even though here we are dealing with a Torah prohibition.

B. 'Its ways are ways of pleasantness'—another argument raised by the Tzitz Eliezer, again by comparison to the permission of seclusion with one's menstruant wife, is the halakhic principle that the ways of Torah are meant to be pleasant ways (that is, norms of conduct that are not aberrant by the social standards of the time). A source for this line of reasoning is found in the explanation of the Hikrei Lev to the words of the Rosh in Kitzurei Piskei Niddah, where he explains the permission of seclusion with one's menstruant wife on the ground that it is difficult to be careful about seclusion with one's wife when she is a menstruant. In the view of the Hikrei Lev, the Rosh's words are based on the halakhic principle that the Torah's ways are ways of pleasantness. The Tzitz Eliezer explains the matter there as follows:

It is not ways of pleasantness for a man to get out of bed if his wife begins menstruating… for Scripture did not forbid such seclusion.

And afterward he adds concerning an adopted child:

Accordingly, one can say something similar in our case: since when they were taken for adoption they were still not of an age at which the prohibition of seclusion applied, and they were taken permissibly, and they grew up with them and became accustomed to them and bound to each other emotionally as pupils and educators, then later, when they grew older, it is no longer ways of pleasantness to impose upon them a decree of separation. Therefore one may say that Scripture did not forbid such seclusion. I know there are distinctions to be made between the cases, but this is at least a supporting consideration.

At the end of his pamphlet, the Tzitz Eliezer gives a general reason for the permission, in his desire to justify the practice of Israel:

I have written the above possible grounds for permission, even though they may seem at first glance to enter through narrow breaches, in order to speak in defense of Israel, and because we see that even great and worthy people are not careful about this, and in order not to close the door before miserable children who would otherwise have no one to seek them out from homes that would raise them on the knees of Torah and tradition.

In other words, the difficulty that drives him toward strained avenues of permission is twofold: 1. most of the public in fact behaves this way; 2. if we insist on the law, we will not find adoptive families for abandoned Jewish children. The point is that we would be imposing on them an abnormal life, and it is not plausible that the Torah expects us as a society—and certainly not them—to live such lives.

The words of the author of Tzitz Eliezer are unusual not only because he makes use of higher-order considerations, but even more because he is aware of it and writes it explicitly. The halakhic tradition suggests that sometimes it is preferable to leave matters to the public square, which will make decisions on its own out of sheer necessity, in the spirit of 'leave Israel to themselves,' without exposing the consideration and placing it explicitly on the table. For example, in the Tosafot to Avodah Zarah that we cited, it seems clear that the permission began as popular practice and only afterward received halakhic approbation from the Tosafists. As we saw, with respect to the question of non-Torah courts as well, the situation is that the public permits it to itself (while explicit permission is slow to arrive). Is it perhaps indeed better to leave the matter ambiguous, without exposing the problematic halakhic considerations on which the permission rests? Should we not simply leave Israel to themselves, for they are the children of prophets? Alternatively, one can adopt the esoteric method; that is, use ordinary halakhic considerations, even ones that do not really hold water, and conceal the higher-order consideration, even though it is what truly underlies the permission.

I already mentioned that this option, even if it were recommended in principle (and I am not at all sure of that), is difficult to implement in our generation. Today the sources are open and known, the criticism is public, and people expect consistent and rational conduct. Inconsistent conduct and intellectually crooked interpretation of sources involve desecration of God's name. There emerges justified criticism that there is one thing on the lips and another in the heart. It therefore seems that in our time the option of esotericism—concealing the halakhic considerations—does not really exist.

Two additional examples

To broaden the point, I will bring here two additional examples of this mode of thought, which grants legitimacy to deviating from formal halakhic mechanisms because of higher-order considerations, in order to prevent problematic results.

A. Institutionalizing prostitution. In Christian Europe of the Middle Ages, prostitution was viewed as a social ill, but many resigned themselves to it for lack of a better option. Brothels operated with the knowledge of the authorities, and almost with their encouragement, in nearly all countries.[14] This reality is also reflected in medieval halakhic literature. For example, Rabbi Yehudah son of the Rosh was asked by his nephew how one should relate to promiscuous women in the community, and he replied that they should be expelled (Zikhron Yehudah, no. 17):

Question: And know, my lord, that there are people here who say that promiscuous women should be removed from the city, because they say that people thereby violate the prohibition 'There shall not be a prostitute,' and moreover they do not immerse, and they cause people to stumble in a sin punishable by karet. Others say: better that they remain in the city so that holy seed not become mixed with foreign daughters, which could lead to mortal danger. Please inform me whose view is correct?

Answer: The law is not in accordance with those who say that. For with Jewish prostitutes there is a prohibition and karet, and better that bodies be endangered than souls.[15] And peace.

He makes a policy calculation and decides not to prevent the grave prohibitions of intercourse with a menstruant woman and prostitution.

Rabbi Yitzhak Arama likewise writes regarding Jewish communities in Spain as follows (Akeidat Yitzhak, Genesis, Vayera, Gate 20):[16]

How many times I struggled over this, concerning the prostitutes whose prohibition has become lax in the hands of the Jewish judges of our generation. Not only that, but in some communities they have already seen fit to grant them toleration among them. Some even provide them with support from the community, saying: since they save bachelors or fools from the grave sin of intercourse with a married woman, or from the danger of gentile women, it is better that they violate this prohibition than come to a prohibition punishable by stoning or to the danger of burning.

I have argued with them many times, before them and before their great men, and explained to them that the great sin which an individual from the house of Israel commits in secret, without the knowledge of the rabbis and without the authorization of the court, is the sin of an individual, and he will die for his sin at the hands of the heavenly court or the earthly court, while all Israel is innocent—as in the case of the concubine in Gibeah, had their court handed over those wicked men alone into the hands of Israel.

But a lesser sin, when the public collectively agrees to it and their courts have decided not to protest it, becomes depravity and a judicial crime, the sin of the entire community, and it is not forgiven except through punishment of the community, as happened to the tribe of Benjamin for joining in the sin. That was the sin of Sodom, as we have explained: they and their courts agreed not to strengthen the hand of the poor and needy.

Therefore it is better, indeed preferable, that those sinners be cut off, burned, or stoned in their own persons, rather than that even one letter of the Torah be uprooted by public agreement.

Thus the cold halakhic calculation would say that prostitution should be institutionalized and supervised in order to prevent graver prohibitions. And yet the author of Akeidat Yitzhak decided not to do so. The higher-order consideration he employs is not based on the halakhic literature. He derives it from biblical interpretation, and reaches a halakhic conclusion that prefers allowing individuals to stumble in prohibitions punishable by karet and stoning rather than granting public sanction to a lighter transgression.[17]

B. Invalid marriage for secular couples. From time to time there arises the proposal to marry secular couples in a way that invalidates the marriage (for example, by means of disqualified witnesses). From a cold halakhic standpoint this seems attractive, since it would prevent prohibitions concerning a married woman and problems of mamzer status. And indeed, some decisors supported it. But almost all decisors reject it utterly. The claim on which they rely is that it is impossible to damage the structure of married life in Israel in this way, even at the price of severe halakhic transgressions.[18]

Back to Modern Orthodoxy

The two considerations presented here—and especially the second type—are bold considerations, and it is likely that those holding conservative Orthodox positions would not employ them, at least not explicitly. As I already mentioned, such thinkers use halakhic considerations and interpretations of them (sometimes creative ones), or alternatively ignore the problem under the principle of 'leave Israel to themselves.' They do not declare that they are using higher-order considerations of this kind, even though it is not clear that such considerations do not underlie what they say (that is, esoteric expression). Even if here and there we do find such considerations in their words (in relation to conversion one can detect the beginnings of them), this is mainly with regard to questions touching society and state, and less with regard to questions of universal morality.

A leadership of Modern Orthodoxy can and should take the reins in hand and lead a halakhic move of openly using higher-order considerations, both in social-statist matters and in moral matters. This may spare us a life of winks, and enable us to be honest with our values and our beliefs.

The remaining questions: authority and substance

The discussion up to this point has dealt with Jewish law in general, and has ignored the contemporary constraints that exist in the halakhic world. We are left mainly with two difficult questions requiring clarification: 1. the question of authority; 2. the question of limits. Clearly there is some connection between these two questions, but they are nevertheless distinct.

As is well known, in our day we have no Sanhedrin, and no halakhic institution or factor accepted by the entire public. In such a situation there is a formal problem, for what was established by a duly constituted court can be undone only by another such court. Many decisors hold that today we lack the power to enact new ordinances or issue new decrees. Who, then, is entrusted with the use of higher-order considerations, in the absence of clear halakhic authority? There is also the structural problem: it is very hard to place such Torah authority in the hands of each and every person. If we allow use of such considerations without an authoritative institution, every Jew—or every rabbi of this or that community—could decide when the situation justifies employing a higher-order consideration that uproots a Torah or rabbinic law. This is the question of halakhic authority.

The question of limits is related to this. Even if there were a clear and authorized halakhic authority (a Sanhedrin), the criterion would still be unclear: when is it justified to use such considerations, and when not? After all, such considerations can uproot the whole Torah. Could that authorized body also permit Sabbath desecration, or murder, on the basis of such a consideration? As we shall see below, the answer is decidedly yes, and there are clear halakhic precedents for this.

Higher-order considerations are very dangerous to the halakhic framework. It is no accident that masters of Jewish law recoil from using them, and certainly from mentioning such use explicitly. To sharpen the point: why should such higher-order considerations not be used to allow conversion without acceptance of commandments, as Rabbi Brandes proposed? Why not use them to permit Sabbath desecration to save the life of a non-Jew, as Rosenthal and Rabbi Benny Lau proposed? What would prevent one from permitting all the Torah's prohibitions through such considerations? Ostensibly this is precisely the Reform mode of thought. Ostensibly, the very essence of fidelity to Jewish law is to operate within the halakhic framework and according to halakhic considerations.

Implicit enactments

We have already seen above that Jewish law itself recognizes considerations such as 'a transgression for the sake of Heaven,' or 'its ways are ways of pleasantness.' What one may infer from this is that such use is indeed dangerous, but not using it is no less dangerous. Adherence to ordinary halakhic considerations can sometimes lead to very problematic results. Moreover, we saw several examples in which sages used such considerations and drew from them far-reaching halakhic conclusions (below we shall see that they permitted, or at least did not prevent, very grave prohibitions—even murder in the law of the informer). On what did those sages rely—most of them in generations that lacked a central authorized halakhic institution? How did they allow themselves to act?

One may say that in the absence of an authorized body, Jewish law recognizes, at least de facto, implicit enactments. This is a kind of halakhic fiction, which recognizes an existing situation as though a court had sat and enacted a temporary suspension of the prohibition of non-Torah courts. Two assumptions are implicit in this claim, both of which require support: (a) a court can uproot the prohibition of non-Torah courts by positive action, at least temporarily; (b) even if no court actually sat, in certain cases we treat an existing reality as an implicit enactment. Let us now examine these two assumptions.

Grounding assumption A: uprooting a Torah law by positive action

Let us begin with assumption A. At first glance this is difficult, because cancelling the prohibition of non-Torah courts is uprooting a prohibition by positive action, and according to the Talmud, the sages uproot a Torah law only by passive nonperformance (see Yevamot 89b–90a and parallels). Yet the medieval authorities already wrote that those statements refer only to a permanent general ruling; in a temporary emergency ruling they can uproot a Torah law even by positive action. See Sanhedrin 46a ('to fence the matter'). This is also stated explicitly by Ran in his commentary to Nedarim 90b. The same emerges from the words of Rabbi Isaac in Tosafot, s.v. 'Mitokh,' Yevamot 88a (and also s.v. 'Keivan,' there 89b; s.v. 'Ve-hai,' Nazir 43b; and s.v. 'Amar,' Avodah Zarah 13a), who writes:

Rabbi Isaac appears to hold that we do not say that we can take it as a certainty that she investigates carefully and then marries, and therefore a single witness is believed in this by Torah law. Rather, it is by rabbinic enactment that a single witness is believed. And this is not considered uprooting a Torah law, since the matter reasonably appears fit to trust him, as I will explain later in the chapter (89b), for in a matter that has some rationale and support, it is not considered uprooting a Torah law.

And we also find in a responsum of Rabbi Isaac brought in Tamim De'im (no. 203), where he explains how it can be permissible to kill an informer directly against Torah law:

But this is no difficulty, for there is great reason, since at times it is a matter of saving many lives. For example, in the case of someone known not to care about his fellow's life and suspected of robbing and killing when he can. And even when this is not known with certainty about him, since most who act as he does are suspected of this, it is permitted—even not at the very moment of pursuit. Perhaps there is some verse for this. And even if there is no verse at all, the sages have power to uproot a matter of Torah, even by positive action according to all opinions, where there is at least some reason to permit, for then it does not resemble uprooting. As for those who say in Ha-Isha Rabbah that passive nonperformance is different, but by positive action they have no power to uproot, that is only in a matter where there is no reason making it appear clearly fitting to uproot on that basis. This is how I explain it: in a matter that appears well-founded, one may uproot according to everyone. There are many proofs. The reason is that in such a case it is not regarded as uprooting.

Thus, in clear cases one may uproot a Torah law even by positive action. Note that this concerns even the prohibition of murder, the most severe prohibition of all. The question is whether this is not conditioned on the existence of agreed-upon halakhic authority. Here we arrive at assumption B.

Grounding assumption B: implicit enactments

Assumption B, according to which an existing reality counts as an implicit enactment (in the spirit of 'the court's heart makes a condition'; see Shevuot 11–12 and parallels), appears in several places in the words of the decisors.

Let us preface by saying that it is accepted among decisors, both medieval and later authorities, that in our generations there is no authority to establish a decree not found in the Talmud.[19] On the other hand, we find in many places that the decisors say, by logical reasoning, that a certain act is rabbinically forbidden, even though we have found no source describing a court that sat and enacted or decreed it. How can one say, purely on the basis of reason, that something is rabbinically forbidden, if an enactment is valid only when an authorized court established it?

A clear example of the legal fiction of an implicit enactment in the post-Talmudic period is the enactment of 'we act as their agents.' As is known, by strict Torah law, in most areas of law only ordained judges may adjudicate. Yet already while ordained judges still existed in the Land of Israel, they allowed the sages of Babylonia to judge even though those sages were not ordained (Gittin 88b, Bava Kamma 84b, and elsewhere): we act as their agents. What happens in our time, when there are no longer ordained judges? About this Tosafot, s.v. 'Be-milta,' in Gittin there writes:

'In a common matter,' that is, like admissions and loans. And the fact that we accept converts, even though a convert requires three expert judges, as is said in Ha-Holeitz (Yevamot 46b), because 'judgment' is written with regard to him—Rabbi Isaac says that we act as their agents, since this is considered common. In Ha-Holeitz too it implies that they would accept converts in Babylonia. And if you ask: how can we act as their agents, seeing that now there are no experts in the Land of Israel, and who can authorize us? One can answer that we act as the agents of the earlier ones.

We see from Tosafot that there is an additional enactment of 'acting as the agents of the earlier ones' in a time when there are no ordained judges left in the Land of Israel. That is, the earlier generations appointed the sages of later generations to judge even though they lack ordination.

Did such a session actually occur, in which they decided to appoint members of later generations to judge? It would seem not. First, even if there had been such an enactment, the agents here act at a time when those who sent them are already dead, which is impossible under the ordinary laws of agency, even if there had actually been such a historical appointment.[20] It therefore seems that this is a de facto enactment of the sages of the generations after the death of the ordained judges (and even after the close of the Talmud).[21] Another proof is the law of conversion, which is not included in the ordinary enactment of 'acting as their agents.' That applies only to monetary matters, in common cases involving financial loss (see Bava Kamma there), and nevertheless it is obvious to Tosafot that even in our time conversions are performed.

Therefore it is quite clear that this is an implicit enactment. For if it were a historical enactment enacted by some actual court, we would possess a list of the areas to which it applies. In Tosafot and other medieval authorities we see that we determine where we have authority according to the degree of need. If something is clearly necessary, we treat it as though it had been enacted from the outset. The enactment of 'acting as the agents of the earlier ones' is an implicit enactment that applies to whatever seems correct in our eyes and is actually practiced. We treat it as though some historical court had sat and enacted it, but it is a legal fiction.

It should be noted that the enactment of 'acting as the agents of the earlier ones' allows us to uproot a Torah law by positive action, for judges who are forbidden to judge are judging here. Moreover, this is an implicit enactment touching precisely the prohibition of non-Torah courts and disqualified judges. If so, this is a very relevant precedent for uprooting the prohibition of non-Torah courts by means of an implicit enactment. True, it is difficult to view today's secular and gentile judges as agents of those earlier ordained judges, but the principle of implicit enactments can be applied here as well.

A further proof may be brought from the sugya at the end of the chapter Hezkat Ha-Batim, Bava Batra 60b, where we find:

From the day that the wicked kingdom spread, decreeing harsh and evil decrees against us, abolishing Torah and commandments from us, and not allowing us to enter the week of the son's celebration—and some say: the son's salvation celebration—it would be proper for us to decree upon ourselves not to marry and not to have children, and thus the seed of our father Abraham would disappear on its own. But leave Israel be: better that they remain inadvertent rather than deliberate sinners.

It emerges here that once the wicked kingdom imposed such decrees on us, it would have been proper to forbid procreation. But in the end the sages did not forbid it. The reason given is not 'a decree the public cannot endure,' but rather 'better that they remain inadvertent rather than deliberate sinners.' That is, we leave those who engage in procreation in their unwittingness. But this is puzzling: if in the end they did not decree any prohibition on procreation, why is this regarded as a prohibition that people transgress unwittingly? Here too it seems that we are dealing with an implicit decree, and here too it uproots a Torah law (though here by passive omission). Another possibility is to say that this is an interpretation of the Torah law of procreation, namely that in such a situation it does not apply. Below we will suggest such a mechanism in our case as well.

One can find similar approaches even among modern decisors. For example, Hazon Ish, Yoreh De'ah 150:11, writes in this vein.

It is worth noting that he compares this to the role of the sages with respect to the Torah itself, where too the sages' interpretation is the correct interpretation of the Torah itself.

The Hazon Ish is not actually speaking of a truly new implicit enactment, but rather of an interpretation of an existing enactment or decree. But clearly he does not mean merely to say that the sages of our generation are authorized to interpret the earlier decree—for that is obvious, just as they are authorized to interpret the Torah. Rather, his point is that something that seems fit in the eyes of the sages of this generation to be included within the earlier enactment is included within it as though the ancients themselves had enacted it (even though that did not historically happen). In essence, this is a mechanism similar to an implicit decree, for the matter is forbidden despite the fact that historically there was no court that forbade it.

Is the Hazon Ish claiming, as a matter of historical fact, that the ancient sages really left this authority to the sages of later generations? Was this principle itself established in some ancient session of a court? Clearly not, if only because the Hazon Ish brings no proof of it. This is his own reasoning. It is quite clear that he means to claim the existence of a legal fiction, as though the ancients had left us this authority.

And in Yabia Omer, part 7, Orah Hayyim, no. 37, sec. 1, he brings the following:

Indeed, I saw in Responsa Penei Mevin (Orah Hayyim no. 57) that he wrote: if an electric lamp has a control adjusted to increase or decrease the light, one should be stringent not to study by its light, lest he increase the existing light. And even though we do not innovate new decrees, nevertheless Beit Yosef (no. 275) wrote that one should decree against studying by candlelight, lest one trim and cut the top of the wick, even though this decree is not mentioned in the Talmud. See there.

And so too Rabbi Yaakov Hai Zarhien wrote in a responsum brought in Responsa Yaskil Avdi, part 2, concluding booklet (Orah Hayyim end of no. 4, p. 95c), that it is obvious there is a full prohibition on studying by the light of an electric lamp when by pressing a button one can increase the existing light, since there is an easy concern that he may turn it and increase the light, etc. See there. And the author agreed with him to forbid it. See there. Similarly Rabbi Shmuel Avikatzitz wrote in the book Shesh Anokhi (in the booklet Rakh Ve-Tov, p. 78c) that although one may be lenient to study by electric light, because the decree 'lest he tilt' does not apply to it, nevertheless with an electric lamp that has several bulbs one should be stringent and decree lest he turn the switch to light the other bulbs that were not lit before the Sabbath in order to increase the illumination. (This was cited in my Responsa Yabia Omer, part 1, no. 16, end of sec. 15.)

Ovadia Yosef disputes all this and writes:

And I also saw in Responsa Be'er Moshe, part 6 (in the booklet on electricity, no. 21), who brought the stringency of the above-mentioned Penei Mevin and wrote that the custom is plainly to be lenient, and that Penei Mevin's ruling was not accepted in this matter, because we have no authority to issue new decrees of our own. See there. And so too our friend the great Rabbi Menashe Klein concluded in Responsa Mishneh Halakhot, part 10 (no. 56) for all the reasons above. See there.

Also in sec. 3 there, Ovadia Yosef disputes with Rabbi Yosef Shalom Elyashiv as to whether we have the power to issue new decrees on our own where reason clearly inclines toward prohibition and the concern is clear and immediate (as with riding bicycles and wearing a watch on the Sabbath). It seems clear that Elyashiv does not mean that we possess an authorized institution capable of issuing such decrees. Rather, his position appears to be that any sage who sees something that clearly ought to be forbidden, and that carries a serious risk of leading to actual prohibition, must himself decree and forbid it. Ovadia Yosef, however, consistently disagrees, returning to the position that we may not innovate new decrees on our own at all (see also numerous sources in Yehaveh Da'at, part 2, no. 52, from the words beginning 'Response: in tractate…').

True, see Igrot Moshe, Orah Hayyim, part 4, no. 60, where he writes:

Regarding the matter that by means of electricity it is possible, via a time switch made for that purpose, to set it on the eve of the Sabbath so that it will begin cooking tomorrow on the Sabbath about an hour before mealtime: in my humble opinion it is obvious that this must not be permitted, for by means of such a timer all labors could be done on the Sabbath, even in all the factories, and there is no greater degradation of the Sabbath than this. It is clear that if this had existed in the days of the Tannaim and Amoraim they would have forbidden it, just as they forbade instructing a gentile for this reason. And perhaps this is automatically included in that prohibition as well, for they forbade any labor done for a Jew as a result of the Jew's instruction, and all the more so as a result of the Jew's own act…

He raises the possibility of forbidding something on the ground that if it had existed in the time of the Tannaim and Amoraim they would have forbidden it. In the end, however, he rejects this and says that we may not innovate decrees on our own (see also his words regarding the use of a microphone, in part 2, no. 5, s.v. 'Concerning…'). And so too in Yabia Omer, part 10, no. 36:

And one cannot say that had this existed in the days of the Sages they would have decreed against it and forbidden it, for since the early sages, who had the authority and power to forbid what is permitted by way of decree, are not present in our times, we have no power to forbid what is permitted by way of decree… And in my humble opinion, I say without fear that it is completely permitted, and there is nothing to worry about.

Thus, in practice, both incline not to use the consideration that if the matter had arisen in the days of the Sages they would have forbidden it, as a basis for forbidding it today. This too falls under the principle that we do not issue new decrees, because we have no authorized court. Ostensibly that means there is no room for using implicit enactments or decrees.

Summary of the approaches regarding implicit enactments and decrees

It would thus seem that Ovadia Yosef and most later authorities hold that we may not innovate decrees on our own, not even things which, had they existed in the Tannaitic and Amoraic periods, would certainly have been forbidden. Ostensibly, implicit decrees and enactments are an approach possible only according to a minority of decisors.

But it seems that an implicit decree is not exactly the same as innovating a decree on our own, and perhaps even the decisors who oppose innovating prohibitions in our time would agree to it. First, if we are speaking of something already practiced (providing a basis for an existing custom), it is obvious that this seems easier—and that is precisely the situation in the context of the prohibition of non-Torah courts. But even where it is not yet practiced in fact, if it is something self-evidently called for and very important to forbid or permit, there is room to depart from the accepted approach that rejects innovation of rabbinic law. In other words, what Igrot Moshe and Ovadia Yosef do not accept is the approach according to which whatever would have been forbidden in the time of the Sages—as part of their ancient enactment or decree—should also be forbidden today. But we are dealing with different situations, in which the prohibition or permission is urgently called for and highly important for reasons that exist today, and in which refraining from innovation would lead to serious moral or social damage. There, everyone may agree that one may resort to implicit enactments.

At first glance this seems like a problematic attitude toward the rules of Jewish law. I am suggesting that the accepted rules be viewed as though one may depart from them where the need is compelling. Can one really relate that way to the rules of Jewish law? In my view, yes.

First, we saw the category of a transgression for the sake of Heaven. We also saw medieval and later authorities doing this all the time. More generally, one can adduce two unique sources regarding departure from halakhic rules where reason makes the matter obvious. First, Tosafot Rosh on Bava Metzia 90a writes that we derive the reason of a verse when the reason is obvious and compelling. Second, above we cited Rabbi Isaac of the Tosafists, who wrote that one uproots a Torah law even by positive action when there is a compelling rationale. From these two examples and others one sees that where there is compelling reason, it may be applied even if it does not fit the ordinary rules of Jewish law, even with respect to Torah law itself (as in the case of deriving the reason of a verse, or killing an informer). This is so even if one accepts the prevalent conception that we do not innovate decrees on our own. This is an application of the rabbinic dictum (Kiddushin 34a; Eruvin 29a): one does not learn from general rules, even where it says 'except.' That is, rules in Jewish law have only a limited status, and one must not cling to an overly rigid interpretation of them. Sometimes one must depart from them.

And indeed, although the medieval and later authorities already wrote that one may not innovate decrees on one's own in our time (see the note at the beginning of this section), even the most conservative decisors, such as the Hazon Ish, in many places do resort to innovating new rabbinic prohibitions.[22] It is quite clear that where the times require it, and in order to fence the matter, there is room according to everyone for innovation of prohibitions, decrees, and enactments—even implicitly, without a formal court session. The Hazon Ish himself writes in Orah Hayyim 62:26 (and in several other places; see the last note): with regard to something where one may easily come to stumble, it must be forbidden; no court session is needed to forbid it, for every judge has the duty to forbid it.

And we have not yet mentioned the prohibitions on mobile phones, internet, radio and television, communal singing, trips, and driving, which are widespread in Haredi society wherever the need is felt to fence the matter. So why should there be authority to issue decrees in such cases but no authority to enact permissions?

From all this we see that implicit enactments—at least where the matter is self-evidently required—are certainly a reasonable and possible resource for a generation lacking an authorized institution that can formally enact or decree what needs correction. There are things whose basis is compelling reason, and the assumption is that they should be treated as an implicit enactment or decree even if no authorized court actually established them. It seems that this is what the Tosafists and the other decisors relied on when they made considerable use of overarching principles in order to uproot Torah law, as in the examples brought above.

And indeed, in Beit Shlomo (Yoreh De'ah no. 29, in the marginal note by the author's son at the end of the responsum), he brings many limitations and boundaries enacted for us by the medieval authorities although they were not forbidden in the Talmud. For example, the Geonim forbade scalding and steeping grain; they required a menstruant woman to wait five days before beginning to count seven clean days; and the Geonim forbade the wife of one's father-in-law [according to some decisors]. He writes there that if one were to count all these things that were forbidden after the Talmud, the page would be too short to contain them. He also explains there that the surprise expressed by the Rosh in Shabbat concerning the fast-day prayer—how the Geonim could innovate a decree—applies specifically there, because decreeing that one should not say 'Answer us' out of fear that one might later be compelled by illness or faintness to taste something would amount to uprooting the words of the Sages, who said that one does say 'Answer us' in that prayer. Precisely that, later sages lack the power to do: even by passive nonperformance, one cannot uproot rabbinic words by inventing a decree. But where the decree does not uproot something found in the Talmud, one may decree even after the close of the Talmud. If so, even if one can decree and enact implicitly today, there is a major problem in doing something that uproots Talmudic law.

True, we saw that the enactment of 'acting as the agents of the earlier ones' is a post-Talmudic decree that uproots Talmudic law (which requires ordained judges for conversion). But there the matter is Torah law, not an enactment. And as is known from Maimonides, beginning of chapter 2 of Mamrim, with regard to Torah law there is no barrier to overruling the words of an earlier court even if the later court is not greater in wisdom and number. The limitations were said only about enactments and decrees.

The conclusion is that an implicit enactment is a problematic mechanism with respect to uprooting enactments and decrees of the Sages. But with respect to Torah law, perhaps there is room for it even in our time. True, one might still argue that in a time of need there is room even for such an enactment. But beyond that, we must examine whether the higher-order consideration we proposed is an enactment or an interpretation of Torah law.

Is this an enactment or an interpretation?

It is not entirely clear whether the implementation of the overarching principle with respect to the prohibition of non-Torah courts is a rabbinic implicit enactment—namely, a rabbinic uprooting of the prohibition in such situations—or whether it is an interpretation of the Torah prohibition according to which that prohibition does not apply in our present circumstances. Exactly the same uncertainty exists with respect to the law of 'acting as their agents,' and medieval and later authorities have already discussed that question.

The same is apparent regarding Meiri's innovation permitting one to save the life of a non-Jew on the Sabbath even at the cost of violating Torah-level Sabbath prohibitions. There I showed in my above-mentioned article, quite clearly, that this is a matter of interpretation of Torah prohibitions, not an enactment. Meiri argues that the non-Jews of his day conduct themselves with reasonable morality, and therefore the Torah prohibitions were simply never said about them. So too, in the examples I brought above from modern decisors, one may ask whether the addition made by the contemporary sage is an interpretation of the earlier decree (again, not an interpretation of the original intention of those who decreed it), or a new decree.

It is important to note that the basic problem—the question of limits—exists even if this is not an enactment but an interpretation, and perhaps here it is even sharper. If we adopt interpretive means or such enactments, we can empty all of Jewish law of content. We will always be able to say that a given law stated in the Torah is irrelevant to our times, and thus nullify it, whether we view this as an enactment or as interpretation.

Therefore, the existence of a binding authoritative institution is crucial for the implementation of such principles. Only such an institution can interpret or enact in this manner, and only then do we avoid giving everyone the power to cancel Torah law. If only an authorized institution does so, then we are merely enabling the sages to perform the role that the Torah itself assigned them (decrees and enactments), and it is not reasonable to view this as destruction of the Torah. However, in the context of permitting recourse to non-Torah courts in our time, the permission already operates de facto, and therefore here there seems to be no need to wait for the existence of an authorized institution. Here what is needed is only an honest policy by our contemporary decisors, which will place on the table what is already lying beneath it.

Therefore, even if what I have said until now is correct, there is certainly room for the claim that this requires a broad consensus—if not an authorized institution of the sages of the generation—that will make this decision. I will only note that with regard to the prohibition of non-Torah courts there is room for the argument that such a consensus already exists, even if it has not been said explicitly (see my remarks above).

A note on the connection to 'principles' in Ronald Dworkin's jurisprudence

It is worth noting that this mode of thinking appears in general legal thought as well, beginning in the middle of the twentieth century, alongside the retreat from formal-positivist modes of thought. Until that period, the positivist position was very widespread: it saw the legal system as a closed system, and the judge's role as extracting a legal decision for the case before him by using logical-deductive rules applied to the statute book (and perhaps also to precedents). Such a frozen and logicistic conception of law came under severe criticism after the Holocaust (where the Nazis claimed they had acted under the instructions of German law). Therefore, from the second half of the twentieth century onward, legal positivism—like philosophical positivism—declined in popularity, and 'softer' approaches arose which do not see the statute book as a rigid logical structure. These approaches leave more room and freedom for the activity of judges.

A prominent expression of such a conception is the legal theory of Ronald Dworkin, a Jewish-American philosopher and legal theorist of the second half of the twentieth century. Dworkin argues that the judge's toolbox should include interpretive tools by means of which he can extend the laws beyond the original intention of the legislators. The judge does not deal only in simple deduction from laws and precedents (though see below regarding Dworkin and positivism).

According to Dworkin, the judge should also use 'principles,' as distinct from 'rules,' which are the thinking tools of the positivist. Principles are modes of reasoning and values that underlie the accepted thought of the legal system in question (and perhaps also of the society itself—there is disagreement about this), even though they do not appear explicitly in the statute book. The judge may take these ways of reasoning and values into account as if they were laws or precedents, and decide the case accordingly, even though this would ostensibly seem a departure from the dry, formal law. Dworkin's 'principles' include values, considerations of natural justice, and more; one of their main aims is to prevent the moral and social absurdities that may arise from a positivist approach that clings logically to the dry law.[23]

On its face, this is plainly a parallel approach to the one proposed here. The halakhic decisor too should use additional tools, beyond formal law from its authoritative sources, in order to expand its boundaries. He makes use of general principles (higher-order considerations), rooted in the spirit of Jewish law and in values that prevail in Jewish society (and perhaps also in general society), in order to prevent absurdities and problematic consequences that may result from excessive attachment to the formal sources of Jewish law. These principles are drawn from the Torah and from the sources of Jewish law (even if they are not explicitly written there), and within a Modern Orthodox conception it is reasonable to draw them also from external sources. According to our 'Dworkinian' proposal, such principles can be regarded as part of the laws of Jewish law, even though we have no clear source for them. Perhaps one might see this as an extension of the principle that reason itself has Torah authority, though I will not enter into that here.[24]

It should be noted that Dworkin himself presents his method as a somewhat different type of deduction, and sees himself as part of positivism. By this he means to distinguish himself from natural-law theory, which sees rules as binding by virtue of universal natural validity, regardless of a given society or the legal system in question. A natural-law approach does not attach great importance to legislation and to the specific legal system, because on that approach the main force of laws lies in their natural-universal validity. Dworkin opposes this and holds that every society has its own legal system, and legislation is what creates it. At the same time, however, one must also take principles into account (and these too may be unique to that society), and not only the law itself. Therefore his approach is generally seen as an intermediate one between natural law and positivism.

Similar distinctions may be drawn in the halakhic context. There are universalist approaches that attach very little significance to specifically Jewish legislation (Jewish law), and see the main thing in universal laws and values, similar to the natural-law approach. More conservative currents within Reform Judaism (those that view Jewish law as in some sense relevant) are certainly like this, and perhaps Conservative Judaism as well. It is very easy to identify my words here with such an approach—and to accuse me of Reform—but that is not so. My intention here is not to erase Jewish law and replace it with universal values. My claim is only to expand the boundaries of halakhic deduction: to use also principles and the spirit of Jewish law, and not only the formal halakhic sources. As I tried to show, the halakhic sources themselves do this as well, even if not always explicitly.

It is worth citing here words written by Rabbi M. Z. Neriya in his book Likutei Ha-Ra'ayah, regarding Jewish labor. A rabbi asked one of the great sages abroad whether one is obligated to hire a Jewish worker even if it costs more, and that sage answered that one is obligated only if it costs up to one-third more than a gentile worker.[25] Rav Kook heard this and sighed deeply, and afterward said:

Indeed, the distinguished rabbi who answered as he did knows what is written in the Torah, but one must also know what the Torah wants. The Torah wants Jews to return to the Land, and if they work with Arabs, there will be nothing for Jews to do in the Land, and they will not return. In this case, no price at all can stand against Jewish labor.

I would note that these words should not be seen as a direct proof of my claims (for there is no prohibition against hiring a Jew for more than one-third, so no law is being uprooted here), but they certainly chart a general direction. Rav Kook held that sometimes the spirit of Jewish law is more important and more correct than adherence to formal law.[26] This is also the spirit blowing from one of Rav Kook's important disputants, namely the Hazon Ish, who, as we mentioned, also spoke of the fifth section of the Shulchan Arukh and made no small use of it (though generally in more conservative directions).

The question of limits: back to conversion and saving a non-Jew

The question that remains here is that of limits. We cannot exhaust it here, but we will try to clarify it by discussing the two other examples: acceptance of commandments in conversion and saving a non-Jew on the Sabbath. We must examine what prevents us from applying a similar mode of thought to those examples as well.

With regard to conversion: first, to the best of my judgment, the need to activate such a consideration does not really exist (see my above-cited article in Akdamot). On the contrary, it is desirable to convert properly according to law, and refraining from that is what actually brings the damage. Second, here one cannot point to an existing consensus such as we saw regarding the prohibition of non-Torah courts. Third, conversion is a process that the Torah itself defines in its details. By means of implicit enactments we may perhaps permit the forbidden and forbid the permitted (that is, uproot a Torah law by passive omission or positive action), but we cannot change the definitions of halakhic processes. We cannot rest on Wednesday instead of on the Sabbath because of one consideration or another. If, according to the law, there is no conversion without acceptance of commandments, then one cannot waive it and determine that a conversion without acceptance of commandments is valid. One cannot turn a non-Jew into a Jew by higher-order considerations.[27]

With regard to Sabbath desecration in order to save a non-Jew, it seems there is no room to permit an explicit prohibition of the Torah or the Sages without any factual change. After all, the Sages too took into account the moral problem involved in abandoning a non-Jew to die. If they decided that this does not override Sabbath desecration, we cannot dispute them, since we have accepted upon ourselves the authority of the Talmud and the Sages (see Kesef Mishneh at the beginning of chapter 2 of Mamrim, and elsewhere). Only if we use a consideration such as that of Meiri (see my above-cited article), which explains that there has been a factual change from the time of the Sages to our own (the non-Jews now conduct themselves more morally), can we change this law. One cannot use higher-order considerations against the clear position of the Sages and all the decisors, except where that move accords with their own conception of the time in which we live. In fact, such a consideration does exist—but not by force of a higher-order consideration. Rather, it is an interpretive consideration regarding the original law that forbids saving a non-Jew by means of Sabbath desecration.

We should note that even in the context of non-Torah courts, the claim was that the Sages too took the price into account and nevertheless determined that resorting to such courts is a severe prohibition. But there we also made use of the consideration that our reality differs from past reality. In such a situation there is room for using higher-order considerations, similar to what Meiri did. True, this is not the simple kind of interpretation used by Meiri (that the gentiles in question were only immoral gentiles), but a higher-order consideration based on changed circumstances.

Conclusion

In this article I have proposed the use of overarching principles and the spirit of Jewish law, instead of reaching the same halakhic conclusions by clinging to the law while pursuing a policy that looks like a series of 'winks' and relying on problematic halakhic considerations. I discussed in detail the application of this to permitting the prohibition of recourse to non-Torah courts in our day: instead of grounding this in problematic interpretations, one should place on the table the higher-order principle that underlies the permission—the impossibility, both factual and moral, of living otherwise. This mechanism can be based either on implicit enactments, similar to the enactment of 'acting as their agents,' or on an interpretation of Torah law that limits it to the realities in which it was originally stated. A similar method appears in other contexts, such as conversion and saving a non-Jew on the Sabbath, and I suggested initial considerations that may help us examine whether it is indeed right to apply it in each of those contexts.

True, we found this method among decisors mainly in the direction of new stringencies in our day, where the times require them. But I see no reason not to do the same thing for enactments that the times require, even lenient ones. If, where the times require, there is room for implicit decrees, why should there not be room for implicit enactments? Especially if this is a matter of interpretation of Torah law rather than an enactment or decree, in which case the matter is easier (in light of Maimonides, beginning of chapter 2 of Mamrim).

Because of questions of authority and substance, this method seems problematic on its face, and it is no wonder that decisors hesitate to implement it. Yet I have shown that the price of esoteric expression—which on its face appears more conservative—is no less serious, and the price of not using these tools is no less grave. I will note again that, usually, a decision to use such higher-order considerations is indeed contingent on a broad halakhic consensus (with regard to non-Torah courts, such a consensus does in fact exist implicitly, to the best of my judgment).

I also argued that, even without entering deeply into the sociological distinctions among the different Orthodox streams, this method seems able to appear primarily within the conceptual framework of Modern Orthodoxy. This, in contrast to Haredi society and to other strands of Religious Zionism, which prefer to hide behind conventional halakhic considerations.

It is clear that this article has presented only initial outlines for discussion and analysis of this grave topic; let the wise hear and grow wiser still.

[1] See Sanhedrin 23a and the commentators and decisors there.

[2] Michael Abraham, 'Gates of Conversion: On Violence and Good Intentions,' Akdamot 22 (Nisan 2009).

[3] See a sharp and forceful expression of this in the correspondence between Rabbi Avraham Rontzki (later Chief Rabbi of the IDF) and the late Yoske Ahituv. Newspaper of the Meimad movement, issue 16 (May 1999), pp. 16–20. Also in Itturei Kohanim 180, Kislev 1999, pp. 26–41.

[4] Michael Abraham, 'A Scholar and a Man of the Covenant,' Akdamot 14 (2004).

[5] Michael Abraham, 'Is There Enlightened Idolatry?' Akdamot 19 (Tammuz 2007).

[6] Yitzhak Geiger, 'The New Religious Zionism—A Survey, Analysis, and Critique,' Akdamot 11 (2002).

[7] See also Asher Cohen's article, 'The Knitted Kippah and What Lies Behind It: Multiple Identities in Religious Zionism,' Akdamot 15 (Heshvan 2004).

[8] See Menachem Elon's monumental work Jewish Law, vol. 1, and Yaakov Bazak's article, 'The Courts in Israel—Are They Really Gentile Courts?' Tehumin 2 (1981), pp. 523–527.

[9] For example, see his article 'The Halakhic Status of the Courts in the State of Israel,' Tehumin 13 (1992–93). In light of our discussion above, it is only natural that the article appeared in the journal Tehumin.

[10] See 'For There Is No Justice'—On the problematic presentation of 'Torah law' as a practical option, Akdamot 26 (Nisan 2011).

[11] See Maimonides, Laws of Repentance 3:12, where he rules that an informer has no share in the world to come. And also in Laws of Injury and Damage 8:9–11:

9. It is forbidden to hand a Jew over to gentiles, whether in his person or his property, even if he is wicked and a habitual sinner, and even if he oppresses and torments him; and whoever hands a Jew over to gentiles, whether in his person or his property, has no share in the world to come.

10. It is permitted to kill an informer in any place, even in our time when capital cases are not judged. It is permitted to kill him before he informs: once he says, 'I am going to hand over so-and-so in his person or property,' even if it is only minor property, he has made himself liable to death. One warns him and says, 'Do not inform.' If he brazenly says, 'No, I will indeed inform,' it is a commandment to kill him, and whoever kills him first merits.

11. If the informer carried out what he intended and informed, it appears to me that it is forbidden to kill him unless he has become established as an informer; then he is to be killed, lest he inform on others. And it has been the practice at all times in the cities of the West to kill informers who have become known for handing over Jewish property and to hand such informers over to gentiles to kill, beat, or imprison them according to their wickedness. Likewise, anyone who oppresses the public and causes them suffering may be handed over to gentiles to beat, imprison, and fine him. But because of the suffering of an individual it is forbidden to hand him over. And it is forbidden to destroy the property of an informer, even though it is permitted to destroy his body, for his property is fit for his heirs.

And so it is ruled in the Shulchan Arukh, Hoshen Mishpat 388:9–12.

[12] These remarks are true to a large extent regarding legal systems in other democratic states as well. I do not enter that question here.

[13] Quite a few later authorities explain the sugya of 'a transgression for the sake of Heaven' (Nazir 23) as though it were an internal halakhic collision. And indeed, the explanation I offered is the plain sense of the sugya, but it involves a very real danger of destroying the halakhic framework. On the other hand, one cannot deny that this is indeed the simple meaning of the sugya in Nazir. The required conclusion is that such a consideration should be used only where the results are truly disastrous. I discussed this meaning of the sugya at length, against several later interpretations, in my two articles in Dacha (2008).

[14] See at length A. Grossman, Piety and Rebellion, Jerusalem 2003, p. 229ff., and the sources cited there.

[15] This consideration recalls the dispute between Tosafot and Rashba regarding spiritual danger to life—whether it is more severe than physical danger to life or less so. See a detailed discussion in Rabbi Shaul Yisraeli's article, 'Saving Life in a Situation of Spiritual Danger,' Tehumin 2, pp. . Incidentally, it should be noted that the discussion there too makes use of higher-order considerations, and it is hard to fit it into the accepted halakhic framework.

[16] See also Responsa Rivash, no. 425, and Mahari Mintz, no. 5, who dealt with this as well.

[17] Incidentally, it is worth noting that from this very consideration there would be room to forbid recourse to non-Torah courts in our day, because we are dealing with a general public permission and not a permission for individuals. The point is brought here only as an example of the method, not as a halakhic basis for the permission I am discussing.

[18] This topic remains obscure in public discourse, and not by accident. See the audio lecture of Rabbi Dr. Ratzon Arusi on his Net-Sah website: http://net-sah.org/. He cites there the view of Rabbi Yaakov Yosef, who advocated conducting wedding ceremonies with disqualified witnesses, and rejects it forcefully.

See also Yoav Friedman's article on YNET, dated 6.6.05, where the words of Rabbi Bakshi-Doron are cited, testifying that quite a few rabbis in fact do this: http://www.ynet.co.il/articles/0,7340,L-3095749,00.html.

[19] I have seen in an as-yet unpublished work by my friend Rabbi Mordechai Peterfreund, who gathered many sources on this matter and discussed it in detail and with impressive mastery. My thanks to him for the sources here and below. This should not, of course, be taken as implying his agreement with my arguments.

See, for example, Responsa of the Geonim (Hemdah Genuzah no. 77), in the responsum of Rav Sher Shalom Gaon, who was asked whether it is permitted to bake a cake and place inside it fat-tail or meat. He answered that this is permitted and there is no concern that crumbs might remain and be eaten with cheese, and he wrote there: for anything that our early sages did not decree, we do not decree; even with something for which there is more cause for concern than this, and where there would be room to be stringent, we are not concerned, etc.

See also the Rosh (Shabbat, ch. 2, no. 15), who cites the Geonim that we do not recite the fast-day prayer in the evening service and morning service, lest illness or faintness overtake a person and he taste something, in which case he would have been false in his prayer. The Rosh writes concerning this: 'And I am further astonished: how were the Geonim able to innovate a decree after Rav Ashi sealed the Talmud?' See also the Maggid Mishneh (5:20, Laws of Leaven and Matzah) concerning kneading matzah dough with wine and oil, where the Ra'avad held that this was permitted only for the diligent, who baked immediately, but not for everyone. The Maggid Mishneh writes: 'And I say: we have no authority to decree on our own after the generations of the Geonim of blessed memory.'

Many later authorities wrote similarly. For example, the Peri Hadash in many places says that we may not decree on our own; see, for example, his words concerning the decree about legumes, and in no. 451 (opening of sec. 1) concerning placing leaven utensils and Passover utensils in one place where there is concern they may be used interchangeably. And in no. 68 (sec. 1) on what the Rema wrote, that it is forbidden to study by silent thought in a place where speech is forbidden, lest silent thought lead one to speak. So too the Magen Avraham (no. 301, sec. 58), when discussing whether in our time, when it is possible without washing, drying oneself on the Sabbath is forbidden, writes: 'Nevertheless, one may say that since the Sages did not decree it, it is permitted, as the Beit Yosef wrote at the end of no. 13,' etc. See there in the Beit Yosef concerning fringes on the Sabbath. See also Shulchan Arukh Ha-Rav (Orah Hayyim 440, Kuntres Aharon sec. 1), who writes concerning the prohibitions of seeing and possessing one's leaven when it is found with others: 'And one cannot say that it is rabbinically forbidden, for from where do we derive the right to innovate a decree of our own reasoning that is not found in the Talmud?' See also Birkei Yosef (Orah Hayyim 463:2; 501:2; 339:7), and Arukh Ha-Shulchan (Orah Hayyim 509:10 and Yoreh De'ah 121:11; and 629:17). See also what the Yad Malakhi (Rules of Law, no. 153) and the Sdei Hemed (system G, letter 11; system Rosh Hashanah, no. 1 sec. 1; and Mikhtav Le-Hizkiyahu no. 13, p. 63, s.v. 'And were it so') cited on this.

See also what we will bring below from modern decisors.

[20] True, see Ketzot Ha-Hoshen no. 188, sec. 2, who writes in the name of several medieval authorities that agency can continue after the death of the principal, but later authorities already rejected his words (see, for example, the commentary Milu'ei Hoshen there by Rabbi Dzhimitrovsky and others).

[21] In this connection, see Rashi on Bava Metzia 96b:

The court—namely, the Jewish court of that generation—committed misuse, because all ordinances of law depend upon them, and through them the statutes enacted long ago for the public are practiced. It is therefore as though they themselves enacted this acquisition for him, so they are considered the ones transferring consecrated property and rendering it non-sacred.

Here Rashi shows that the enactments of the ancient court are considered the enactments of the contemporary court that implements them. This is not the place to expand on its relevance to our subject.

[22] In that same work, Rabbi Peterfreund shows that the Hazon Ish in many places argues that in matters where people are liable easily to stumble, the sages have authority to forbid them even in our day, despite the absence of a formal court session. See Hazon Ish (Orah Hayyim 62:26 and Even Ha-Ezer 13, s.v. 'From the words of the Rambam'), where he discusses drinking a sterilizing potion and whether the prohibition is from the Torah or rabbinic, and see there his proof from the sugya itself; afterward he writes: 'With regard to something where one may easily come to stumble, it must be forbidden; no court session is needed to forbid it, for every judge has the duty to forbid it.' He proves this from Hagigah 19a concerning a detached wave. See also Hazon Ish, Yoreh De'ah 14:5, s.v. Pri Megadim, that 'At times every sage is warned to forbid something in order not to breach the fence in a place where the stumbling block is common, as it says in Hagigah 19a, to decree because of a rain-fed stream.'

See also his words regarding an umbrella (Orah Hayyim 52:6, s.v. 'The words of the Noda B'Yehuda'): 'Moreover, it creates too much public notice, it is recognizable as a weekday activity, and it causes a breach. After all, they forbade a canopy because the people were not learned in Torah, and the matter is entrusted to the sages to make a fence where there is a breach. This is more severe than a private prohibition for an individual, because this is a fence for the entire people and for generations.' See also Hiddushim U-Viurim (Niddah, end of no. 2, sec. 13), where he cites in his name: 'Do not wonder where we find that the Sages decreed this. Wherever it is highly reasonable to decree, no tradition that they actually decreed is required; it stands as though already decreed. And so I heard from our master of blessed memory, who proved it from the places where they say, “You might have thought to decree…”'

Likewise, in Hut Shani (part 1, p. 200) he cites the Hazon Ish as forbidding opening the refrigerator even while the motor is running, despite the fact that opening it does not actually activate the motor, since it is already operating. Rabbi Nissim Karelitz explains that the Hazon Ish held that wherever there is an evident concern that a person will stumble into prohibition, no special enactment of the Sages is needed to create a decree, since this is merely a clarification that the matter falls under 'a safeguard for My safeguard'; and the same applies wherever the decree is self-evident. He cites as a supporting memory aid Rashba (Hullin 106, s.v. 'Amar Rav Idi'). See also Orhot Rabbenu (part 1, p. 144), where the Hazon Ish instructed Rabbi E. E. Dessler in a similar vein.

[23] See my book Ruach Ha-Mishpat, Beit El Library and Midah Tovah, Kfar Hasidim 2011. See there especially the sixth section. In the seventh section I discussed the philosophical foundations of these approaches.

[24] See there in my above-mentioned book, Ruach Ha-Mishpat, p. 371ff.

[25] The Mishnah Berurah (no. 648, Sha'ar Ha-Tziyun 76) wrote:

And large merchants need to know that when they have occasion to buy the etrogim from two places—one from Jews and one from gentiles, and both are equal in their standards of kashrut—they should buy from Jews, as it is written: 'or buy from the hand of your fellow Jew.'

And in Responsa Rema (no. ) he wrote: 'Even if from a gentile there is monetary profit, and from his fellow there is loss—his fellow takes precedence.' However, a person is not obligated to incur a loss and buy from a Jew when there is a large price gap (Ahavat Hesed 1:5:7). The authorities disagreed about the measure of the gap—some explained up to one-sixth (Havot Binyamin 1:22), while others say up to one-third (based on Shulchan Arukh, Yoreh De'ah 296:8). Others say one should prefer a Jew even at more than one-third (Mishpetei Uziel 4:44). See also Shulchan Arukh, Hoshen Mishpat no. 175, the Magen Avraham, and the commentaries there.

[26] On meta-halakhah in Rav Kook's halakhic method, see Rabbi Neria Gutel's book New as Well as Old, Magnes, Jerusalem 2005. Briefly, see the excerpt 'Meta-Halakhah in Rav Kook's Rulings,' which appears on the Hatzofeh website, dated 14 Sivan 2012.

[27] True, above we saw that through the enactment of 'acting as the agents of the earlier ones' they uprooted a Torah requirement within the conversion process, namely that ordained judges be present. Nevertheless, there seems to be a difference, since uprooting the need for ordination concerns only the procedure of conversion, whereas uprooting the need for acceptance of commandments damages the very essence of conversion. In addition, there is room to see the judges of our day as ordained for this purpose by the community as a whole (similar to Maimonides' famous position about the renewal of ordination through the agreement of all the sages of the Land of Israel).