A Gentile Unrecognized by Jewish Law
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The Non-Jew Whom Jewish Law Did Not Recognize
In the clash between Jewish law and reality, as in the question of the attitude toward non-Jews, one must distinguish between facts and norms and adapt Jewish law to changing reality. Conservatism here is a deviation from the proper path.
On the eve of one of my talks years ago at the hesder yeshiva in Yeruham, all the students of the yeshiva sat in the dining hall and discussed the proper attitude toward non-Jews. What emerged from the students’ remarks was a picture that surprised me. There was almost complete consensus there that non-Jews are not moral. More than that: even when they sometimes do good deeds, they are like the pig that stretches out its hooves and says, ‘Look, I am kosher.’ By contrast, Jews possess a pure and good nature, and deviations from it are always contrary to nature. I was astonished. These were not students at the Erlau yeshiva in Jerusalem. The hesder yeshiva in Yeruham is filled with excellent students who are graduates of religious-Zionist education. Fairly open-minded people, well aware of what is happening in the world, and relatively integrated into its conduct, culture, and values.
I asked them: tell me, how many non-Jews do you know? All in all, I do not know that many non-Jews either, but from a general impression it seems to me that they are human beings like me and you. There are good ones among them and bad ones, just as among us. Needless to say, the guys were not really convinced. In response they burst into a selection of quotations from the Sages, and it was indeed embarrassing. As is well known, the rabbinic teacher is supposed to represent the Torah’s position and commitment to the Sages. And yet I, the rabbinic teacher, was the ‘Reformer’ who had yielded to the spirit of the times, while the students were the ones expressing impressive devotion to the picture that emerges from the rabbinic sources. Inwardly I wondered whether they really believed this, or whether only their laudable fear of Heaven was forcing them to subordinate their intuitive perceptions to the sources of Jewish law and to the Sages.
It turns out that even if we all watch the same films, read the same newspapers and books, and meet the same people, the picture we carry inside can nevertheless be entirely different. My sense was that the concrete non-Jew was not relevant to them at all. He was transparent, and when they looked at him they did not really see him; they looked through him and saw some terrifying archetype beneath a civilized covering. Beyond the question of the attitude toward the non-Jew and the problems of morality, this very disconnection from reality seemed troubling to me.
To me it is clear that this picture is incorrect. If I found in the Talmud that the whole twenty-four-hour cycle is darkness, would I subordinate my perceptions to that statement? (Yes, I know that ‘even if they tell you that right is left’ [cf. Deut. 17:11], and I will not even bother to cite here the version in the Jerusalem Talmud.) First of all, this is reality, and with all due respect for the sources, I cannot deny what I clearly see and know.
Escape into metaphysics
It is relatively easy to educate Jews this way in the Holy Land, when one hardly encounters non-Jews (except for the wicked Arabs who, as everyone knows, all want to kill us – some potentially, some actually, and some with still greater force). But abroad the problem is harder, at least with respect to modern Jews who meet non-Jews and live among them. I hear quite a bit about people who are unwilling to tolerate these dogmas, and this affects their faith as a whole. Why believe in a system that describes reality in such a distorted, anachronistic, and unintuitive way?
The Hatam Sofer, despite living abroad, reached the conclusion that even the bodies of non-Jews differ from the bodies of Jews, and therefore one must beware of drawing medical conclusions from studies conducted on non-Jewish bodies (as is well known, one cannot conduct studies on Jews because of desecration of the dead, so the burial society’s livelihood is assured). This claim already seems rather absurd today even to people with conservative views (I do not know anyone who does not use medical knowledge imported from abroad), but it seems that the parallel spiritual conceptions remain firm to this very day.
The obvious solution is to shift the discussion into the realm of metaphysics and speak of an inner, intangible spiritual quality unique to the Jewish people, and opposite it an equally intangible inferiority of non-Jews. This is the Jewish spark that does not necessarily come to practical expression, but it is there somewhere deep inside us. Some quotation or other from the Kuzari, Maharal, or Rabbi Abraham Isaac Kook seals the discussion decisively. I will not deny that in my eyes this is indeed progress, since at least on the plain factual plane there is no longer any denial of reality. Yet I cannot help adding that I also have no small amount of doubt regarding these hidden metaphysical differences. I, in my sins, do not sense them, and as a man of science I have a criminal tendency to cling to facts and measurements. What is not measurable (and in principle ought to have been measurable) usually does not exist either. Perhaps I am mistaken, but I cannot honestly say my doubts are gone.
You may ask: what about the Sages’ statements about the nature of the non-Jew? It is possible that from that same criminal source comes my suspicion of determinations that are the result of observations made under conditions different from my own. The Sages formed their view on the basis of the non-Jews they knew, and apparently there really was a difference there that could not be denied. Is that necessarily valid in our own time as well? I very much doubt it.
In legal thinking there is a tendency toward an essentialist conception of the sources, and perhaps of reality as well. If the Talmud says something about non-Jews/women/Black people/slaves/deaf people and the like, then that is their essential nature, and they are fated to remain that way, without change, until the end of all generations. Women still want to marry at any price (‘better to live as two than to live alone as a widow’ [Yevamot 118b]); the non-Jews around us are still like the pig that stretches out its hooves and says, ‘I am kosher.’ The deaf person is still considered devoid of understanding, even though any sensible person can see that this is an intelligent and responsible human being (see below). A Black person does not change his skin, and a leopard does not readily give up its spots. Even if it seems to you that this has changed, that is simply a problem with your trust in the Sages. Trust in our misleading eyes is merely an instance of ‘do not stray after your hearts and after your eyes’ (Num. 15:39).
Legal decisors are prepared to accept that olives have grown smaller, that eggs have grown larger, and other changes that have occurred in the nature of the inanimate and plant worlds. Believe it or not, even human beings change their physiological nature (women no longer give birth in the seventh month, and the Sages’ medicines do not really work for us). But human behavior, and human beings’ spiritual and moral nature – these are apparently condemned to remain frozen until the end of history. I have seen an upside-down world: the inanimate, the plant, and the animal realms change constantly, whereas the speaking being – that is, human beings, the dynamic creatures of choice who are capable of change and even required to change – precisely they are trapped deterministically in their nature and left to their fate until the end of days – of the Right, that is, the far Right.
Rational heresy
I will not bother here, as is customary, to bring the Sages’ statements about the human being created in the image of God, or to offer creative interpretations and excuses for statements that seem problematic. For that one can open any publication of Ne’emanei Torah Va’Avodah and the other liberals. I refrain from doing so not because it is incorrect. Sometimes it is correct; rather, here I wish to conduct the discussion in a more radical way. Let us assume that I have no such creative interpretations, and that all the Sages’ statements indicate that non-Jews are subhuman, ‘likened to beasts.’ Am I really, as a person committed to Jewish law and to the authority of the Sages, condemned to subordinate my perceptions to these judgments? If rationality and adherence to facts are the new definition of heresy and unbelief, then I find myself in a very uncomfortable position. I hope and believe that at least some readers share this discomfort.
I must clarify three important points here:
A. I do not mean to claim that there is no such thing as a Jewish character, or that our history and values have no influence on our national and individual nature. Of course they do, exactly as among the French, the Saudis, and the Chinese. The question I am asking is whether I must necessarily accept that there is something here beyond differences between cultures and the historical influences on various peoples and societies.
B. I do not mean to claim anything against the Sages. On the contrary: precisely because of my appreciation for them and my commitment to them, I believe that they too acted honestly and rationally, and that their words did indeed accurately reflect the reality of their time as they saw it (and not metaphysical archetypes that they imposed upon it). I know of no law given to Moses at Sinai, or any tradition whatsoever, regarding the character of non-Jews, and therefore it is reasonable to assume that the Sages simply observed the reality of their time correctly and thus drew their conclusions. Must I assume that the gates of observation and logical thought have been locked since the closing of the Talmud?
C. Nothing in these remarks touches, of course, on the prohibitions of intermarriage, but only on the attitude that follows from our conceiving non-Jews as normal human beings (see below on Meiri).
Maimonides allowed himself to remove from Jewish law several Talmudic determinations in light of his scientific-philosophical views (demons, incantations, the evil eye, and the like). Why should we not be able to do the same? Is our science and our tools of observation less good than those that existed in the days of Maimonides and the Sages? Or are we forbidden to employ them with respect to human beings, and allowed to do so only with respect to animals, plants, or the esoteric?
In an article in Akdamot (19, 2007), I discussed such a ‘Reformist’ consideration as employed by Rabbi Menachem Meiri, one of the great medieval authorities of Provence, and this time with respect to human beings. Meiri discerned that the non-Jews around him were not like those non-Jews about whom the Sages had spoken. The non-Jews he saw around him were ‘governed by the norms of civilized society,’ and it did not seem reasonable to him that the Sages were instructing him to relate to them as beasts. As a result of his innovative assessment of reality, Meiri did not say that they were like the pig that stretches out its hooves, nor did he quote rabbinic sayings. Rather, he allowed himself to change an entire system of laws, biblical and rabbinic, and argued consistently and systematically that they were not relevant with respect to the non-Jews of his time. Needless to say, the prohibitions of intermarriage, and even prohibitions concerning objects of worship, remained in force. The non-Jews were still non-Jews, and some of them were still idolaters. But they were normal human beings, like me and you.
I will not detail here the predictable claims that immediately arise, according to which Meiri wrote these words out of fear of censorship. This is utter nonsense (Jacob Katz already pointed this out, and see also my aforesaid article). In that article I analyzed his argument and showed that it contains a model for Orthodox changes in Jewish law. The basis of my argument is that changes in reality can certainly occur, and Jewish law is supposed to fit reality as it is today. I will not repeat that here. Here I want to broaden the discussion somewhat in a different direction.
Between facts and norms
The Torah does indeed deal with facts, but its sanctity and values are completely detached from them. Let us take an example. The Gemara in the first chapter of tractate Bava Batra teaches us that if Reuven demands that Shimon repay a debt and the claim is presented before the due date, Shimon is not believed if he claims that he has already repaid the debt. In the language of the Sages: ‘there is a presumption that a person does not repay before the due date’ (Bava Batra 5a). That consideration instructs us to take the money from Shimon and require him to pay, even though he is the current possessor of the money. Let us assume that reality has changed, and that today people do tend to repay debts before the due date (for example because of the interest that bites into them, with the kind assistance of the legal device that permits interest, or because of some psychological change of one sort or another). Are we still obligated not to believe Shimon if he claims that he repaid his debt before the due date? Would one who ruled that way be a Reformer? Certainly not. Reality has changed, and therefore the law that applies to it has changed as well. According to Jewish law, today Shimon would be believed in his claim, and the burden of proof would return to the plaintiff.
The question then arises: what is the relevance of this Talmudic discussion in the new reality? Is there any point in studying it at all anymore? Where is the eternity of the Torah here? What about ‘this Torah shall not be replaced’? These questions are based on a mistake in understanding the nature of the Talmud and of Jewish law. This discussion is as relevant today as it was and always will be, because it did not come to teach us the psychological fact that people do not repay debts before the due date. For that there are departments of psychology, or simply common sense. This discussion teaches us the legal norm that when there is a presumption, one may take money from the current possessor on its basis. In the environment of the Sages, the factual reality was that people did not repay within the term, and therefore that was also the legal presumption. In another reality, the situation may be the reverse, and then the legal presumption will be different. What we learned from this discussion is only the normative rule that a presumption can remove money from a current possessor, not the fact that there exists a presumption that a person does not repay before the due date (incidentally, specifically there one can see this explicitly in the discussion).
A similar approach can be seen with respect to the nature of women. The Talmud and the medieval authorities assume that a woman wants to marry at almost any price: ‘better to live as two than to live alone as a widow’ (Yevamot 118b). She is willing to pay a heavy price, provided only that she has some kind of married life. That reality has apparently changed today. There are clear indications of this, and we all know them. Yet legal decisors continue to discuss female nature on the basis of rabbinic sources as though we were living in fifth-century Babylonia, or in twelfth-century Spain or France. They explain to us that the Torah fully fathomed the minds of women, and that even if they behave differently, that is not really their nature. Here too one can see the same misunderstanding: these determinations regarding women are factual determinations and not norms, and as such they are neither eternal nor binding. They are not Torah and not Jewish law. There is no law given to Moses at Sinai that this is the nature of woman. These are the Sages’ observations of the women of their time, and nothing more. Therefore the factual situation in our own time can certainly be different (and it indeed is different. And yes, I know Rabbi Joseph B. Soloveitchik’s astonishing comments on the presumption of ‘better to live as two’).
The conclusion is that the sanctity and eternity of the Torah, and indeed its essential content, are not facts but norms. Reality is dynamic and subject to change, and there is no reason in the world to preserve the picture of reality held by the Sages and the medieval authorities in cases where it is clear that it is no longer correct. That is what Meiri did regarding the non-Jews around him, and that is what we too must do regarding non-Jews and the world around us generally.
First-order rulings
In my response in this supplement to an article that attacked the ruling of the organization Beit Hillel concerning a daughter’s recitation of the mourner’s Kaddish, I distinguished between first-order rulings and second-order rulings. I argued there that the permission to recite such Kaddish need not be based on precedents that allowed it, since there is no prohibition involved at all. The prevailing conception that without precedents one cannot permit something I called second-order ruling. In that article I called for a return to first-order ruling, that is, ruling that takes Talmudic norms and applies them to reality, even without precedents (at least where there are no such relevant precedents).
This saga continued around the ‘Tzedek’ supplement of last Rosh Hashanah. There appeared a description of a judicial decision issued by a panel that included me and Rabbis Bigman and Levin regarding the release of a woman denied a bill of divorce by annulling her betrothal. We annulled the betrothal on the basis of the claim that she certainly had not consented to it on the understanding that her husband would flee abroad on the wedding day. Indeed, there are no precedents in the rabbinical courts of the Chief Rabbinate for such an annulment of betrothal (where the ground appears after the betrothal; these are not ‘mistaken betrothals’ in the usual sense), and there are very few such precedents in the responsa literature at all. The question is whether in such a case we must cling to precedents if it is clear to us that the betrothal here is void.
In truth, there is no question here at all of clinging to precedents and issuing a legal ruling. If these betrothals are indeed void, then she is unmarried, whether we tell her so or not. Even before we sat in judgment she was unmarried; we merely informed her of that fact. This is a legal fact that does not depend on us. Are precedents needed in order to tell a woman the truth about her life?
In fact, we could have said this very simply and succinctly: from the Gemara (Bava Kamma 110) it is proven that in betrothal as well there exists the principle of annulling the betrothal with the claim that ‘she was not betrothed on that understanding.’ Of course, that norm depends on an assessment of reality: whether in the case at hand the woman really would not consent. On the factual plane, the Gemara there does indeed reject annulment (when the woman falls to levirate marriage before a man afflicted with boils), because there was then a presumption that a woman was content even with such a marriage. That is an assessment of reality and not a legal norm. As such it can change with the passage of generations. Again, the binding law in these cases is the norm, which determines that in principle one can annul betrothal on such grounds. The factual question is not determined by such or such precedents, created in different places and very distant in space and time, but rather in light of observation and assessment of the reality in the relevant time and place.
And yet, following publication of this ruling, I received quite a few responses asking on what precedents we had relied. The fact is that even in such questions the discussion usually proceeds on the basis of the words of medieval and later authorities who discuss what a reasonable woman demands and what she waives. But what women wanted in fifth-century Babylonia, or in twelfth-century Spain or France, or even in twentieth-century Boro Park, does not tell us much about a secular woman in twenty-first-century Israel.
Just to remove any doubt: because of the sensitivity of the matter, our ruling too was based on such considerations, and we showed that even within the accepted conceptions among legal decisors, this woman is permitted to remarry and her betrothal is void. But the interesting question, to which we only alluded in our ruling, is what will happen in other situations, in which legal decisors in the past did not regard the betrothal as void. Can one nonetheless annul it against the precedents in light of an assessment of reality relevant to our own time? If women today expect different things from marriage, then taking that assessment of reality into account is not a concession to the spirit of the times. It is the purest and most correct legal truth for our own day. That is the true way to be faithful and committed to Jewish law, for we are applying the Talmudic norms to the correct – and different – situation of our time.
Criminal conservatism
Another striking example can be seen in the question of deaf people. My friend Rabbi Benny Lau submitted a question to several important legal decisors regarding the legal status of a deaf-mute who communicates in sign language. The answers he received were completely detached from reality (and needless to say, all of them were second-order). Almost all of them contented themselves with quoting statements of the Sages and of medieval and later authorities regarding the nature of the deaf person (while ignoring sources that do recognize the possibility of change). We found there almost no reflection on the reality of our own day, or consideration of the views of experts and of those who know the issue firsthand (and it does not take a great expert to see this). Is the treatment of the deaf person as mentally incompetent a law given to Moses at Sinai? I know of no such law. It appears to be an assessment of reality by the Sages that may have been correct in their time. But in our own day the situation is different.
As I have tried to clarify here, changing the law because of a change in reality is a fully legitimate and indeed necessary process within Jewish law. In recent years such processes have met with automatic opposition because of fear of Reform, and thus we are in effect allowing Reform to freeze Jewish law to death. Needless to say, I understand these concerns completely. Once one begins making such changes, it is not clear where one ends, and the line between a change in reality and a change in values is not always sharp. And yet, it cannot be that we subordinate ourselves to two-thousand-year-old assessments of reality merely because of such fears. David Enoch once wrote that there is a slippery slope in the use of the slippery-slope principle. We must not allow such principles to paralyze the healthy functioning of Jewish law. They have a place at the margins, but it is unreasonable to give them control over the center of the field of Jewish law.
In conclusion, let us return to the question of non-Jews. It is plainly evident that they are human beings like me and you. Precedents established in different times and places, and in an entirely different cultural situation, cannot and should not serve as a substitute for sober observation of reality. Precisely such change expresses true faithfulness to Jewish law. It is conservatism that sins against the legal truth, for it leads to erroneous conduct and to deviation from the demands of Jewish law in our time. According to the conservative decisor, the deaf person may desecrate the Sabbath and his betrothal is no betrothal, while the legal truth is entirely different. That is an intolerable leniency. If a woman is not married, one cannot tell her that she is. It is important to understand that I am not speaking here about a moral problem, but about a problem in the observance of Jewish law. The conservatives are sinning here against Jewish law and leading to lawbreaking.
Published in the ‘Shabbat’ supplement, Makor Rishon, 30 Tishrei 5774, 04.10.2013
Source: https://musaf-shabbat.com/2013/10/04/%D7%92%D7%95%D7%99-%D7%A9%D7%94%D7%94%D7%9C%D7%9B%D7%94/