On an Errant Community and a Captured Child (Akdamot – 2003)
On ‘an errant community’ in Jewish law – A response
A. Introduction
Rabbi Yoel Ben-Nun, in his article ‘An Errant Community and One Presumed to Be Errant 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 ‘captured children’ does not appeal to him because of the measure of condescension and paternalism involved in it. And paternalism, as is well known, precludes the possibility of discussion (‘It is impossible to conduct any discussion whatsoever with ‘children’ or with ‘captives’,’ in his words). Beyond that, Rabbi Ben-Nun argues, this characterization does not at all describe the actual condition of secularity, 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 of them decide for themselves which beliefs they are willing to adopt and which they reject… and above all, we are speaking of a large public, not of isolated individuals ‘captured among the gentiles’.’
Rabbi Ben-Nun’s central proposal, which relies primarily on Nahmanides’ commentary to the passage of ‘the inadvertent transgression of the entire Torah’ (Num. 15), and for which he later finds support in other decisors as well, is that a community is always considered unintentional, apart 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 few individuals who act defiantly and when his remarks concern individuals within the ‘errant’ community. His subsequent discussion brings the standard and well-known approaches of the Hazon Ish and Rabbi Kook, which, for some reason that I do not understand, receive from him the heading ‘not so well known’ (at the top of p. 248). One genuinely novel point is indeed found there: the treatment of modern heresy (after the three Copernican revolutions, in his terminology: those of Copernicus, Newton, and especially Kant) as skeptical heresy, as distinct from absolute heresy. I shall address this point later on.
These remarks are based on an understandable motivation to find some degree 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 with the legal arguments by which we seek to anchor these feelings. A legal consideration must proceed by means of the accepted tools of Jewish law that we possess; and if someone decides to dispense with them, then at the very least he should declare that clearly, and not employ pseudo-legal tools that mislead some of the readership. Such attempts are not new, and they have been multiplying of late (see, for example, several articles in issues 2-4 of De’ot, among others). Most of them claim some new, usually sensational, approach in Jewish law, and for my part I have still not found any real innovation in any of them. In my opinion, these articles generally divide into two types: those that innovate outside the framework of Jewish law (even though they purport to occur and speak within a legal narrative), and those that add nothing whatsoever beyond the accepted approaches.
A substantive treatment of this issue requires a comprehensive philosophical clarification of concepts such as ‘truth’ and ‘pluralism,’ ‘choice’ and ‘weakness of will’ (= akrasia), and the relation between them—a clarification that has been undertaken in the general philosophical literature (though certainly not sufficiently, so far as I know). Most Torah arguments (including, in particular, Rabbi Ben-Nun’s) suffer, in my view, from confusions due to conceptual lack of clarity regarding terms such as ‘skepticism,’ ‘truth,’ ‘choice,’ ‘pluralism,’ and the like. It seems to me that only after a comprehensive philosophical clarification can the various approaches be applied to the Torah-and-law context. That discussion is of course beyond the scope of the present response, and when I have the leisure, God willing, I may try to contribute my share to this issue. In what follows I shall try to point out several points in Rabbi Ben-Nun’s line of argument that, in my view, do not withstand scrutiny.
B. The legal foundation
Rabbi Ben-Nun bases the main thrust of his article (see p. 239) on Nahmanides’ explicit comments in his commentary to Num. 15:24 and on the words of Maimonides (when read carefully), which, in Rabbi Ben-Nun’s understanding, establish that there is no such thing as an intentional community, or at least that a community is presumed to be unintentional. I cannot discuss all the details of Rabbi Ben-Nun’s argument within this framework, and therefore I shall concentrate on Nahmanides’ words, which are ostensibly the explicit source for Rabbi Ben-Nun’s approach, and afterward I shall comment on a few additional points.
I shall begin perhaps with a remark that concerns more the style of the discussion. Throughout the entire article Rabbi Ben-Nun adopts a decisive and self-assured language, as though anyone who disagrees with him has nothing on which to rely. It appears from his words that he alone brought these remarks of Nahmanides out of darkness into the light of day. In particular, I find his pretentious attitude toward those who labored over this issue and discussed it (such as the author of Arukh LaNer and many others) difficult, when he says (p. 227): ‘It is astonishing that in the entire legal discussion of this issue from Rabbi Jacob Ettlinger until today, Nahmanides is absent, and the whole discussion has remained incomplete.’ In note 22 as well he enlightens us that, over nearly two hundred years of engagement with this issue, he found no one who cited these remarks of Nahmanides, until he himself brought them to the ears of his listeners some twenty years ago, and they, of course, are surprised by them מחדש each time.
Does the fact that all these great scholars, who certainly did not overlook Nahmanides’ words (for many of them are known as outstanding masters of Scripture and not only of law), did not see fit to address them within their legal discussions, carry no significance in his eyes? Is there only ignorance here? I feel that although there is certainly room to debate our masters on this matter, a little humility would not have harmed any of us in the way we speak of them. Rabbi Ben-Nun also finds it appropriate to remark about the author of Divrei Shaul, in his criticism of Nahmanides, that Nahmanides’ little finger is thicker than his 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. And in any case, as every novice student knows, ever since Abbaye and Rava ‘the law follows the later authority’ (like a dwarf on the shoulders of a giant). Such an expression certainly cannot serve to whitewash a valid criticism of an argument that appears unsound.
As for the interpretation of Nahmanides’ remarks, it is worth continuing to Rabbi Chavel’s commentary ad loc., which explains Nahmanides very well in accordance with the observation of the author of Divrei Shaul. Consequently, there is no need either to assess the girth of Divrei Shaul’s loins or to resort to 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 long-standing lack of reference to these words of Nahmanides: 1. A commentary on the Pentateuch, however important, is not regarded as a sufficiently authoritative legal source, certainly not for far-reaching conceptual innovations. 2. Even if we agree to accept Nahmanides’ commentary on the Pentateuch as a valid legal source, it seems that Nahmanides’ words do not contain any such determination at all. The first reason is known to anyone familiar with the world of legal argument, and I therefore see no point in discussing it here. Below I shall focus on the second reason.
As Rabbi Ben-Nun himself notes, the Sages treat this passage on the homiletical plane, and only Nahmanides attempts to connect the homiletic reading to the plain meaning. The congregation that transgresses all the commandments of the Lord was interpreted—or expounded—by the Sages as a congregation that errs regarding idolatry, which is considered equivalent to all the transgressions in the Torah. The immediate question that arises in this context is why our Sages needed a homiletic exposition when there is such a simple plain meaning, like the one Rabbi Ben-Nun proposes (that every intentional sin of a community is unintentional). It seems to me that the resort to exposition 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 on the level of the plain meaning, was not accepted by them as law, because an individual can be captured among the gentiles, but a community that as a whole does not observe the entire Torah is generally intentional. In other words, what underlies the matter here is an understanding exactly opposite to Rabbi Ben-Nun’s: the Sages understood that a community all of whose members sin is generally acting intentionally, and certainly one cannot assume that it is generally acting unintentionally.
This emerges plainly from the words of the Sages in Babylonian Talmud, Horayot 8a (and parallel in Jerusalem Talmud, Nedarim 3:9):
It was taught: these verses speak of one who worships idolatry. From where is this implied? Because Scripture says: ‘And if you err and do not do all these commandments’—which is the commandment that is equivalent to all the commandments? You must say: this is idolatry.
If the passage really dealt with a community that errs with respect to the entire Torah, then there would be no proof from here that it refers to idolatry, which is equivalent to all the commandments. After all, the passage would not be speaking here of one commandment that equals them all, but of all the commandments literally. Clearly, the Sages refused to explain the passage as referring to the inadvertent transgression of all the commandments literally, and this for the reasons stated above (which, as noted, are the opposite of Rabbi Ben-Nun’s explanation). In these words of the Sages we see not only the homiletic exposition, but also—implicitly—the reason that led them to expound the verses and remove them from their plain sense. In my view, that reason is the assumption that a community that sins against the whole Torah cannot be regarded as unintentional.
It is true that Nahmanides proposes, on the level of the plain meaning, situations in which it is possible for an entire community to be unintentional. But in Nahmanides’ words there is not the slightest hint of Rabbi Ben-Nun’s claim that every sin of a community is automatically an inadvertent one—that is, that there is no such thing as an intentional community. As noted, the conception of the Sages implies the exact opposite. I hope no one will try to begin here a discussion of the comparative breadth of the loins of the Sages and of Nahmanides.
It seems to me that the end of Nahmanides’ own remarks points against Rabbi Ben-Nun’s interpretation. There Nahmanides distinguishes between the children of Israel, who rebelled against the word of the Lord after the return of the spies and said, ‘Let us appoint a leader and return to Egypt’ (Num. 14:4), and sinners who act unintentionally (even in idolatry), for whom there is forgiveness. According to Rabbi Ben-Nun’s reading, Nahmanides ought to have summarized his main innovation by distinguishing between a community that sins, which is always unintentional, and individuals, for whom a state of acting ‘with a high hand’ can also arise. Nahmanides does not do so because he never entertained such a distinction at all.
As Rabbi Ben-Nun noted, the situations Nahmanides raises regarding an errant community do indeed closely resemble the situations in which we find ourselves today. For example: that they may think the time of the Torah has already passed and that it was not given for all generations; that they may forget the whole Torah by abandoning it; that they may think that casting off the yoke is permitted (‘I will not observe and I will not receive reward’; ‘There is no Torah outside the Land of Israel’; see further Rabbi Chavel’s commentary there). If so, one may conclude that the present situation is indeed that of an errant community and not of a community acting intentionally with a high hand. But is there anyone who argues otherwise? This is not Rabbi Ben-Nun’s main innovation. This is a community of ‘captured children.’
What may perhaps lead to an understanding like Rabbi Ben-Nun’s in reading Nahmanides is that situations of this sort are usually treated as heresy, not with the forgiving attitude accorded to inadvertent transgression. 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 genuinely think this way, in which case they really are acting inadvertently, and those who seek ways of evading the fulfillment of their Torah obligations (as Rabbi Chavel explicitly writes there in resolving the objection of the author of Divrei Shaul).
This comment brings us to the next point. Rabbi Ben-Nun’s interpretation, taken by itself, is not clear to me. Is his claim that even an intentional community is to be considered inadvertent, or is his intention rather to say that when a community sins there are usually a few who lead the many astray, and they are the intentional sinners, while those who follow them are to be regarded as inadvertent? In Rabbi Ben-Nun’s article there are passages of both kinds, and in my view he himself mixes together these two kinds of argument.
If his intention is to argue that, as a matter of fact, when a community sins usually only individuals are acting with a high hand, then we need only look at the situation and examine it: is that indeed the case, and is there here inadvertence or intention? I do not see why Nahmanides must be recruited for that purpose. If we indeed understand that the masses are generally inadvertent (like the descendants of captured children), then there is no need for precedents on this matter.
If Rabbi Ben-Nun’s intention really is to argue that an intentional community too is in the category of inadvertence, I am unable to understand the logical difference between an individual and the public. At most I can understand that the Torah tends to be more protective of the public than of the individual (the merits of the public are greater, etc.). Perhaps that is also the reason why the law of the apostate 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 summon all our faith in the sages and say, בעקבות what seems to Rabbi Ben-Nun to be Nahmanides’ view, that left is right and right is left. More than that: we would also have to accept that this astonishing interpretation is what Nahmanides understood to be the plain meaning of Scripture (as distinct from its homiletic reading). Astonishing!
In other words, I am unable to decide into which of the two categories above Rabbi Ben-Nun’s article should be classified: the one that includes articles that add 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 any less paternalism toward secularity than the accepted approach that uses the term ‘captured child.’ Rabbi Ben-Nun claims that most of the public are captured children, and they are to be treated leniently; and the few who understand what is at stake are heretics who studied and reviewed and chose otherwise, and for them there is indeed no remedy, whether according to Nahmanides or according to Rabbi Kook (as he himself notes). That is, the secular are divided into captured children and conscious heretics. With which of these is the discussion that Rabbi Ben-Nun proposes to conduct to take place? How does this fit with the claim (which in my view is plainly mistaken) quoted at the beginning of this response, that most of the secular—most of them!—have studied, and are not children, and certainly were never captured at any stage of their lives?
To the best of my understanding, the solution to paternalism, and the possibility of discussing matters even with those who are in the category of ‘captured children,’ must be founded on the distinction between those who are mistaken and those who are 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 to develop religious consciousness and experience. As for nearly all secular Jews, this is a fact that cannot be challenged. The religious person does not lack the background necessary for developing a secular sensibility, and so there is indeed an asymmetry here. Such a deficiency, which is not informational in its 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 engage in discussion, despite his being a ‘captured child.’ True, he was captured among secularists and not among gentiles, but there is no real practical difference here.
C. The real problem: who is the one who acts with a high hand?
I would like briefly to dwell on the substantive difficulty in the issue of malicious heresy, which, to the best of my sense, lies at the root of all the attempts, more or less successful, to understand the status of secular Jews in Jewish law. I wonder what Rabbi Ben-Nun would say today about those who do not even possess national identification—the universalists—whom Rabbi Kook regarded as a much graver condition (though one still capable of repair). Following this, is there, or has there ever been, anyone who simply behaves in a manner in which he himself does not believe? Does any one 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 urge for idolatry, was not ‘his impulse overpowered him’ a kind of lenient argument?
There is a substantive difficulty in understanding deliberate heresy, regarding which it was said, ‘they are cast down and not raised up,’ even in earlier periods. Rabbi Ben-Nun makes life easy for himself when he presents past periods as situations in which there were wicked people who acted with a high hand, or fools who had not attained the lofty intellectual heights of modern skepticism. I do not know such wicked people today, except that it seems to me that by my present standards there were no such people in the past either. This is the real problem as I see it, and I found no solution to it in Rabbi Ben-Nun’s remarks, just as I found none in all the other articles I have read on this subject. It is entirely clear to me that the ordinary secular Jew today is a ‘captured child,’ and certainly not wicked or deliberate. The real question is the reverse: according to the standards that now seem self-evident to me, who were those wicked people about whom the Sages did speak?
Some attempt to address the difference between generations may be found in Rabbi Ben-Nun’s interesting remark about skeptical heresy. According to him, after Kant’s Copernican revolution (Newton and Copernicus are not relevant to the issue at all) we are living in a skeptical age, and therefore all heresy is of a different, softer kind. According to Rabbi Kook, the words of the Sages apply only to those who deny in a decisive way, not to those who doubt.
First, anyone who knows even a little about the view of Kant’s role in the history of philosophy knows that he is, on the contrary, the father of dogmatism—the complete opposite of skepticism. Kant is the only one who tries (and in my opinion does not succeed) to offer a secular rational foundation 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 ‘my dogmatic slumber,’ and to pass to a dogmatism that does not slumber). Our move, בעקבות Kant, from noumena (the world as it is in itself) to phenomena (the world as it is perceived by us) is not skeptical at all. As against objectivism, Kant proposed an intersubjective approach, not mere subjectivism as Rabbi Ben-Nun mistakenly understands him, and for that Kant has also been widely criticized. The subjective perspective according to Kant is not skeptical in the least; on the contrary, it is meant to be shared by all human beings.
After Kant, one can only say that the divine essence, like all the entities in the world generally, is grasped by us through the means of our cognition and thought and not as it is in itself. With respect to God, there is nothing novel in this, for we have always known that we are unable to know Him as He is in Himself. Kant’s novelty is that the real world around us has the same character. After Kant, 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 great novelty in Kant’s philosophy, contrary to the claim—which appears somewhat disingenuous—of Rabbi Kook (in the citation appearing there on p. 259).
Moreover, this very claim of Rabbi Kook pulls the rug out from under Rabbi Ben-Nun’s position. If we really knew long ago what Kant innovated, then what changed in the skeptical heresy of the modern age בעקבות Kant? As I argued above, in my opinion not much changed on the substantive level. But I do not understand what Rabbi Ben-Nun is trying to explain here.
Apart from the mistake in understanding Kant’s role, one may agree that our time is indeed skeptical in its essence, but that too is not new. Skepticism has existed from time immemorial, at least since the beginning of philosophical thought in ancient Greece. Its modern dress—and especially its postmodern dress—is no more than a supposedly new covering for an age-old approach. Today people have merely succeeded in granting skepticism a cultural, ethical, and intellectual dimension, something that was not so common in the past (though Socrates already anticipated even that).
Beyond that, the entire line of this argument is not clear to me. Precisely in a skeptical age like ours, the denier who believes absolutely in his denial should be called to account more forcefully, for he too ought to understand that his position is subject to the same doubt as the religious one. Precisely in a skeptical age, the demand made of emphatic 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 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 generation with those same arguments (or perhaps they did, and the ‘wicked person’ is also merely a theoretical concept? This requires further study). In my opinion, contrary to the proposals of those who offer easy solutions, not much has changed since then, at least on the substantive plane. The difference is social and normative—most of the public today is secular—not philosophical and substantive.
Much more could be said about this difficult and painful issue, but it seems to me that for our purposes here what has been said is enough. In sum, I will say that I agree with Rabbi Ben-Nun’s assumptions and with his distress. 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 assumptions and correct conclusions are no guarantee of a valid argument. It seems to me that the path Rabbi Ben-Nun took from the assumptions to the conclusions is tainted by intellectual dishonesty. His mistaken interpretation of Nahmanides’ words and the speculative legal conclusions that he drew from it do not withstand elementary scrutiny, and as we have seen they probably also stand against the approach of the Sages. The distress is indeed severe, but the solution Rabbi Ben-Nun proposes does not provide a cure.