Conversion, Naturalization, and the Separation of Religion and State
2009
On the 'Inadvertent Community' in Jewish Law – A Response
A. Introduction
Rabbi Yoel Ben-Nun, in his article 'The Inadvertent Community and Those Presumed Inadvertent or Mistaken – Secular Men and Women in Jewish Law' (Akdamot, the tenth-anniversary issue, Kislev 5761), raises what appears to be a new possibility for relating to secular men and women within the framework of Jewish law.
The accepted characterization of them as 'children taken captive' does not appeal to him because of the measure of condescension it contains, and paternalism, as is well known, precludes the possibility of discussion; as he puts it, 'One cannot conduct any discussion at all with “children,” nor with “captives.”' Beyond that, Rabbi Ben-Nun argues, this characterization does not at all describe the reality of secularism as it actually is, and in his words there: 'Although it is clear to everyone that most of them are not “children” and are not “captives.” Most of them know a chapter or two, most decide for themselves which beliefs they are prepared to adopt and which they reject… and above all, we are speaking of a large public, not of isolated individuals who were “captured among the gentiles.”'
Rabbi Ben-Nun's principal proposal, which relies mainly on Nachmanides' commentary to the passage of 'the inadvertent violation of the whole Torah' (Numbers 15), and for which he later finds support in additional halakhic decisors, is that a community is always inadvertent, aside from a few individuals within it who act defiantly. Later in his article there are references to deniers and heretics, and it is not entirely clear when he is referring to those individuals who act defiantly, and when his remarks concern members of the 'inadvertent' community. His later comments rehearse the standard and familiar approaches of the Chazon Ish and Rabbi Kook, which for some reason that is not clear to me are given by him the heading 'not so well known' (at the top of p. 248). One genuinely novel point does indeed appear there, namely the treatment of modern heresy (after the three Copernican revolutions, in his terms: those of Copernicus, Newton, and especially Kant) as skeptical heresy, in contrast to absolute heresy. I will address this point later on.
These remarks are based on the understandable motivation to find some measure of legitimacy, or at least understanding, for the secular public, which today constitutes the overwhelming majority of the Jewish people. Despite the motivation with which I fully identify, and perhaps precisely because of it, we must be careful about the halakhic arguments through which we seek to anchor these sentiments. A halakhic consideration must proceed by means of the accepted tools of Jewish law available to us, and if someone decides to forgo them, then at the very least he should say so clearly, and not employ pseudo-halakhic tools that lead some readers into error. Such attempts are not new, and they have become increasingly common of late (see, for example, several articles in issues 2-4 of De'ot, among others). Most of them claim to offer some innovation in the proposed halakhic approach, usually a sensational one, and for all my limitations I have yet to find any real innovation in any of them. In my humble opinion these articles generally divide into two types: those that introduce ideas outside the framework of Jewish law, although they purport to occur and speak within a halakhic narrative; and those that do not innovate anything at all beyond the accepted approaches.
A substantive treatment of this topic requires a comprehensive philosophical clarification of concepts such as 'truth' and 'pluralism,' 'choice' and weakness of will (akrasia), and of the relation between them—a clarification that has been undertaken in the general philosophical literature (though certainly not sufficiently, as far as I know). Most Torah-based arguments on this subject (and in particular Rabbi Ben-Nun's as well) suffer, in my view, from confusions arising from conceptual unclarity regarding terms such as 'skepticism,' 'truth,' 'choice,' 'pluralism,' and the like. It seems to me that only after a comprehensive philosophical clarification can one apply the various approaches to the Torah-halakhic context. That discussion is, of course, beyond the scope of the present response, and when I have the opportunity, God willing, I may try to contribute my own part to this topic. In what follows I will attempt to point out several points in Rabbi Ben-Nun's argument that, in my view, do not withstand scrutiny.
B. The Halakhic Foundation
Rabbi Ben-Nun bases the main thrust of his article (see p. 239) on the words of Nachmanides in his commentary to Numbers 15:24 (explicitly), and on the words of Maimonides (by drawing an inference from his language), which, on Rabbi Ben-Nun's understanding, establish that there is no community that sins intentionally, or at least that the presumption regarding a community is that it is inadvertent. I cannot discuss all the details of Rabbi Ben-Nun's argument in this framework, and so I will focus on the words of Nachmanides, which are ostensibly the explicit source for Rabbi Ben-Nun's approach, and afterward I will comment on several additional points.
Let me begin, perhaps, with a remark that concerns more the style of the discussion. Throughout the article Rabbi Ben-Nun adopts a decisive and self-assured language, as though anyone who disagrees with him has nothing whatsoever on which to rely. One gets the impression from his remarks that only he brought these words of Nachmanides out of the darkness and into the light of day. Particularly difficult, in my eyes, is his presumptuous treatment of those who labored over this issue and discussed it—such as the author of Arukh LaNer and many others—when he writes (p. 227): 'There is room for astonishment that throughout the halakhic discussion of this topic, from Rabbi Yaakov Ettlinger until today, Nachmanides has been absent, and the entire discussion has remained deficient.' In note 22 as well he enlightens us by saying that throughout roughly two hundred years of engagement with this topic he has not found anyone citing these words of Nachmanides, until he himself brought them to the attention of his listeners some twenty years ago, who of course are surprised by them afresh each time.
Does the fact that all these great luminaries—who certainly did not overlook Nachmanides' words, since many of them are known as outstanding students of Scripture and not only as jurists—did not see fit to address them within their halakhic discussions carry no significance in his eyes? Is this merely ignorance? I feel that although there is certainly room to examine matters independently even before these masters, a little humility would not harm any of us in our treatment of them. Rabbi Ben-Nun also sees fit to remark, regarding the author of Divrei Shaul in his objection to Nachmanides, that Nachmanides' little finger was thicker than the other's loins (near note 16). I must note that such an expression is generally used by a Torah scholar to describe his own stature relative to those greater than he, not to compare the stature of others. In any case, as any beginning student knows well, since Abaye and Rava the law follows the later authority, like a dwarf standing on the shoulders of a giant. Such an expression certainly cannot serve to whitewash a correct remark about reasoning that does not seem straightforward.
As for the interpretation of Nachmanides' words, it is worth consulting Rabbi Chavel's commentary ad loc., which explains Nachmanides' words very well in accordance with the remark of the author of Divrei Shaul. Consequently there is no need either for evaluating the breadth of Divrei Shaul's loins or for Rabbi Ben-Nun's far-reaching innovation, as will be explained below.
Let us now return to the substantive content of the argument. In my view, two main reasons underlie the conspicuous and longstanding lack of engagement with these words of Nachmanides: 1. A commentary on the Pentateuch, however important, is not regarded as a sufficiently authoritative halakhic source, certainly not for sweeping conceptual innovations. 2. Even if we agree to accept Nachmanides' commentary on the Pentateuch as an admissible halakhic source, it seems that Nachmanides' words contain no such determination at all. The first reason is familiar to anyone versed in the world of halakhic argumentation, and therefore I see no point in discussing it here. Below I will focus on the second reason.
As Rabbi Ben-Nun himself notes, the Sages address this passage on the homiletic level, and only Nachmanides attempts to connect the homiletic reading with the plain meaning. The congregation that transgresses all the commandments of God was interpreted—or expounded—by the Sages as a congregation that errs regarding idolatry, which is equivalent to all the transgressions in the Torah. The immediate question that arises here is why our Sages needed a homiletic interpretation when there is such a simple plain meaning as the one Rabbi Ben-Nun proposes, namely that any community that sins intentionally is really inadvertent. It seems to me that the recourse to homiletic interpretation stems precisely from the fact that the Sages refused to conceive of a situation in which the entire congregation errs regarding the whole Torah. Rabbi Ben-Nun's proposal, which is a plain-sense reading, was not accepted by them as Jewish law, for an individual can be captured among gentiles, but a community none of whose members keeps the whole Torah is generally intentional. In other words, what lies here is in fact the exact opposite understanding from Rabbi Ben-Nun's: the Sages understood that a community all of whose members sins is generally intentional, and certainly one cannot assume that it is generally inadvertent.
This emerges plainly from the words of the Sages found in Babylonian Talmud, Horayot 8a (with a parallel in Jerusalem Talmud, Nedarim 3:9):
It was taught: these verses refer to one who worships idols. How do we know this? For the verse says, 'And if you err and do not perform all these commandments'; which commandment is equivalent to all the commandments? You must say: this is idolatry. (It was taught: these verses refer to one who worships idols. How do we know this? For the verse says, 'And if you err and do not perform all these commandments'; which commandment is equivalent to all the commandments? You must say: this is idolatry.)
If the passage really dealt with a community that errs regarding the entire Torah, then there would be no proof that this refers to idolatry, which is equivalent to all the commandments, for we would not be speaking here of one commandment equivalent to all the others, but of all the commandments literally. It is clear that the Sages refused to interpret the passage as speaking literally about inadvertence regarding all the commandments, and this for the reasons stated above, which are, as noted, exactly opposite to Rabbi Ben-Nun's explanation. In these words of the Sages we see not only the homiletic reading, but also—implicitly—the reason that led them to expound the verses and take them away from their plain meaning. In my view, that reason is the assumption that a community that sins against the whole Torah cannot be considered inadvertent.
It is true that Nachmanides proposes, on the level of the plain meaning, situations in which an entire community may be inadvertent, but in Nachmanides' words there is not even the slightest hint of Rabbi Ben-Nun's claim that every sin of a community is automatically an inadvertent sin, that is, that there is no community that acts intentionally. As noted, the Sages' understanding implies the exact opposite. I hope that no one will try to begin here a discussion about the relative breadth of the loins of the Sages and of Nachmanides.
It seems to me that the end of Nachmanides' own remarks points against Rabbi Ben-Nun's interpretation. Nachmanides there distinguishes between the Israelites who defied God's word after the return of the spies and said 'Let us appoint a leader and return to Egypt,' and sinners who act inadvertently—even in idolatry—for whom forgiveness exists. According to Rabbi Ben-Nun's reading, Nachmanides ought to have summarized his main innovation and distinguished between a community that sins, which is always inadvertent, and individuals, for whom a state of acting 'with a high hand' may arise. Nachmanides does not do so, because he never imagined such a distinction.
As Rabbi Ben-Nun noted, the situations that Nachmanides raises for an inadvertent community do indeed closely resemble the situations in which we find ourselves today. For example: that they think the time of the Torah has already passed and it was not meant for all generations; that they forgot the whole Torah through abandoning it; that they think throwing off the yoke is permitted ('I will not observe and I will not receive reward; there is no Torah outside the Land'—and see Rabbi Chavel's commentary there as well). If so, one may conclude that the current situation is indeed one of an inadvertent community and not of a community acting defiantly with a high hand. But does anyone claim otherwise? This is not Rabbi Ben-Nun's main innovation. This is a community of 'children taken captive.'
What may perhaps lead to a conception such as Rabbi Ben-Nun's in understanding Nachmanides is that situations of this kind are usually treated as heresy, rather than with the forgiving attitude accorded to inadvertence. Rabbi Ben-Nun apparently understood that the surprising treatment of such situations as inadvertent stems from their being communal sins. But here too one must distinguish between those who truly and sincerely think this way, in which case they really are inadvertent, and those who seek ways of evading fulfillment of their Torah obligations, as Rabbi Chavel explicitly writes there in resolving the objection of the author of Divrei Shaul.
This remark brings us to the next point. Rabbi Ben-Nun's interpretation as such is not clear to me. Is his claim that even a community that sins intentionally is to be regarded as inadvertent, or does he mean to say that when a community sins, there are usually a few who lead the many astray, and they are the intentional sinners, whereas those who follow them are to be regarded as inadvertent? There are passages of both kinds in Rabbi Ben-Nun's article, and in my view he himself conflates these two types of argument.
If his intention is to argue that in reality, when a community sins, usually only individuals are the ones who act defiantly, then we must simply look at the situation and examine it: is that indeed the case, and is there inadvertence here or intentional sin? I do not see why Nachmanides needs to be enlisted for this purpose. If we indeed understand that the masses are generally inadvertent, like descendants of children taken captive, then there is no need for precedents on this matter.
If Rabbi Ben-Nun really intends to argue that even an intentional community is deemed inadvertent, I am unable to understand the logical difference between the individual and the community. At most I can understand that the Torah tends to have more compassion on a community than on an individual, whose merits are fewer, and so on. Perhaps this is also the reason that the law of the idolatrous city is not applied to several cities, which Rabbi Ben-Nun cited in support of his position. It seems that in order to accept such a paradoxical view we would have to mobilize all our faith in the Sages and say, following what Rabbi Ben-Nun sees as Nachmanides' position, that left is right and right is left. More than that, we would also need to accept that this astonishing interpretation is what Nachmanides understood as the plain meaning of Scripture, as opposed to its homiletic interpretation. Astonishing indeed!
In other words, I am unable to decide into which of the two categories above Rabbi Ben-Nun's article should be placed: the one that includes articles that innovate nothing at all, or the one that includes articles that are simply incorrect, at least from the standpoint of Jewish law, and here also from the standpoint of elementary logic.
Even on the plane of condescension, I do not see why Rabbi Ben-Nun's approach contains less paternalism toward secularism than the accepted approach that uses the term 'child taken captive.' Rabbi Ben-Nun argues that most of the community are children taken captive and should therefore be treated leniently, whereas the few who understand the matter are heretics who studied and reviewed and chose otherwise, and for them there is indeed no remedy, whether according to Nachmanides or according to Rabbi Kook, as he himself notes. That is, secular people are divided into children taken captive and conscious heretics. With which of these is the discussion that Rabbi Ben-Nun proposes to conduct supposed to take place? How does this fit with the claim, quoted at the beginning of this response and plainly mistaken in my opinion, that most of the secular population—most of them, no less—have studied, are not children, and certainly were not taken captive at any point in their lives?
To the best of my understanding, the solution to paternalism, and the possibility of discussing matters even with those who fall into the category of 'children taken captive,' must be founded on the distinction between the mistaken and the stupid. When one says that a secular person is mistaken, one does not mean that he is more stupid, but that he has less information and less educational background than is required in order to develop a religious consciousness and experience. With respect to almost all secular people, this is a fact that cannot be challenged. The religious person does not suffer from a lack of background for developing a secular experience, and so there is indeed an asymmetry here. Such a deficiency, which is not informational in essence, exists even among professors of Jewish studies, and perhaps among them more than among any other layman. With such a person one can certainly conduct a discussion, despite the fact that he is a 'child taken captive.' True, he was taken captive among secular people and not among gentiles, but there is no real practical difference here.
C. The Real Problem: Who Is the One Who Acts Defiantly?
I would like to dwell briefly on the substantive difficulty in the issue of wicked heresy, which to the best of my sense is what underlies all the attempts, more or less successful, to understand the status of secular people in Jewish law. I wonder what Rabbi Ben-Nun would say today about those who lack even national identification—the universalists—whom Rabbi Kook saw as a much graver situation, though still remediable. Following that, is there, or has there ever been, anyone who simply behaves in a way in which he himself does not believe? Does any of us know such a person? Who, then, is wicked according to Rabbi Ben-Nun's definition? Who was ever wicked according to his definitions? Even before the Men of the Great Assembly abolished the impulse toward idolatry, is 'his impulse overpowered him' not also a kind of lenient argument?
There is a substantive difficulty in understanding deliberate heresy, regarding which it was said 'they are lowered and not raised,' even in earlier periods. Rabbi Ben-Nun makes life easy for himself when he portrays past periods as situations in which there were wicked people who acted defiantly, or fools who had not reached the lofty intellectual peaks of modern skepticism. I know no such wicked people today, but it seems to me that by my present standards there were none then either. This, in my view, is the real problem, and I found no solution to it in Rabbi Ben-Nun's remarks, just as I found none in the other articles I have read on this subject. It is entirely clear to me that the ordinary secular person today is a 'child taken captive,' and certainly not wicked or deliberate. The real question is the opposite: by the standards that seem self-evident to me today, who were those wicked people of whom the Sages did speak?
Some acknowledgment of the change between the generations may be found in Rabbi Ben-Nun's interesting remark about skeptical heresy. In his view, after Kant's Copernican revolution—Newton and Copernicus are not relevant to the matter at all—we live in a skeptical age, and therefore all heresy is of a different, softer kind. According to his reading of Rabbi Kook, the words of the Sages apply only to those who deny in a decisive way, not to those who doubt.
First, anyone with even a little familiarity with the assessment of Kant's role in the history of philosophy knows that he is precisely the father of dogmatism—the exact opposite of skepticism. Kant is the only thinker who attempts, and in my opinion does not succeed, to offer a rational secular basis for human cognition and thought, and perhaps also for morality. In fact, Kant's main historical role was to defend rationality against Hume's skeptical attacks; these only caused him to awaken from what he himself called his 'dogmatic slumber' and to move to a wakeful dogmatism. Our move, following Kant, from noumena—the world as it is in itself—to phenomena—the world as it is perceived by us—is not a skeptical move at all. In place of objectivism, Kant proposed an intersubjectivist approach, not sheer subjectivism as Rabbi Ben-Nun mistakenly understands him, and precisely for that reason Kant is much criticized. The subjective perspective according to Kant is not skeptical at all; on the contrary, it ought to be shared by all human beings.
After Kant, one can only say that the divine essence, like all entities in the world in general, is apprehended as something known to us through our means of cognition and thought, and not as it is in itself. With respect to God, there is nothing new in this, for we have always known that we cannot know Him as He is in Himself. Kant's innovation is that the real world around us has the same character. After Kant, precisely the opposite question arises: in what way is the divine essence different from all other essences, if we are likewise unable to grasp them as they are in themselves? Here, in my humble opinion, there is a major innovation in Kant's teaching, contrary to Rabbi Kook's claim, which seems there somewhat disingenuous, in the excerpt that appears on p. 259.
More than that, this very claim of Rabbi Kook pulls the ground out from under Rabbi Ben-Nun's position. If we had long known Kant's innovations, what changed in the skeptical heresy of the modern era following Kant? As I argued above, in my opinion not much changed on the essential level, but I did not understand what Rabbi Ben-Nun is trying to explain here.
Beyond the error in understanding Kant's role, one may agree that our age is indeed skeptical in its essence, but even that is not new. Skepticism has existed from the very beginning of philosophical thought in ancient Greece. Its modern dress, and especially its postmodern dress, is no more than a seemingly new garment for an ancient approach. Today they have merely succeeded in giving skepticism a cultural, normative, and intellectual dimension, something that was not so common in the past, though Socrates already anticipated even that.
Beyond that, I do not at all understand this line of argument. Precisely in a skeptical age like ours, the denier who believes absolutely in his denial ought to be challenged more forcefully, for he too should understand that his own position is subject to the same doubt as the religious one. Precisely in a skeptical age, the demand made of dogmatic deniers is more severe. Therefore I do not understand what leniency there is in the skeptical characterization of our period according to Rabbi Kook.
As I have noted, to the best of my understanding the main problem is not how to defend the wicked of our generation—the secular—but why the Sages did not defend the wicked of their own generation with those same arguments. Or perhaps they did, and 'the wicked person' is also merely a theoretical concept? This requires further investigation. In my view, contrary to the proposals of those who offer easy solutions, not much has changed since then, at least not on the essential level. The difference is normative and social—most of the public today is secular—not philosophical and essential.
Much more could be said about this difficult and painful topic, but it seems to me that for our purposes here, what has been said is enough. In summary, I will say that I agree with Rabbi Ben-Nun's premises and with the distress that motivates him. More than that, I also agree with his practical conclusions; in my view they are almost trivial, and they also follow from the accepted approaches. But correct premises and correct conclusions are no guarantee of a valid argument. It seems to me that the path Rabbi Ben-Nun took from the premises to the conclusions is tainted by intellectual dishonesty. His mistaken interpretation of Nachmanides' words, and the speculative halakhic conclusions that he drew from it, do not withstand elementary scrutiny, and as we have seen they probably also run contrary to the approach of the Sages. The distress is indeed severe, but the solution Rabbi Ben-Nun proposes does not heal it.