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On-Jewish-Law-and-Theology-A-Response-to-Yair-Sheleg-2-11.pdf

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Discussion Forum

Michael Abraham / On Jewish Law and Theology

In Beniv HaMidrasha (1987–88) there appeared Yair Sheleg’s illuminating article (hereafter: Y.S.) describing the dilemmas of a young, educated religious-Zionist regarding the contradictions that accompany a person who lives within the three circles of Jewish law, Zionism, and general culture; in the end he arrives at operative proposals for “Orthodox changes” in Jewish law. Since the descriptions and arguments raised in that article reflect the way of thinking of many in the circle that defines itself as religious-Zionist (of which I too feel myself a part), I would like to continue clarifying these issues and finally to try to draw some conclusions.

106/09/2018 Otzar HaChokhma

A. The relative status of the three circles: Jewish law, Zionism, and general culture.

At the beginning of the above article, the author presents the profile of a person who observes the commandments because of his emotional identification with his forefathers, an identification that logical arguments cannot cause him to ignore.

At this point lies, in my opinion, the reason for the autonomous status of the two additional circles (Zionism and general culture) in Y.S.’s thought. To explain this, I would like to distinguish between two parallel and entirely separate planes on which a value-decision can be described:

1. The subjective psychological plane.

2. The “objective” philosophical plane (the quotation marks are added because in this discussion I will not deal with epistemological questions about the subjective sources of philosophical cognition).

Every person may have psychological, sociological, or other reasons for which he may adopt a value system and act accordingly, but because of the subjectivity of these reasons I find no interest in discussing them beyond the interest a psychologist or sociologist might take in them.

The philosophical plane is also composed of two parts:

1. The logical-rational reasons for adopting the value system.

2. The value system itself and the rules derived from it (this part relates to what will later be called “the theological stage”).

For example, a person may adopt the system of Jewish law as a result of feelings of helplessness and the need for the guidance of an all-powerful authority (“opium for the masses”), and that again is on the psychological plane. At the same time, the value system adopted by him, assuming he is a rational person, must also be grounded logically; and in our case, accepting the yoke of the kingdom of Heaven is supposed to derive from sufficient evidence for the existence of God, the revelation at Mount Sinai, and so forth.

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If the rational component is missing from the decision, then it is valueless as a subject of public discussion, since it stems from a collection of subjective weaknesses with which the rest of the public is not necessarily afflicted as well, and in my view it is desirable to neutralize them at the stages of value-laden decision-making.

A reason such as identification with past generations can describe the process on the subjective plane, but it contains nothing that can serve as a convincing rational argument for a person who lacks that identification.

Only someone for whom a psychological state constitutes a link in the logical chain can arrive at a situation in which, alongside God’s will, two further human-made systems arise and receive a status similar to the first, since they too satisfy emotional needs, and why should their share be less?

A person who observes the commandments out of unregulated emotional reasons will soon find himself compelled to obey, to an equal degree, every feeling or instinct that arises within him, while the intellect, which is supposed to supervise the process of decision, takes no part in it.

By contrast, a person who observes the commandments for the simple rational reason that God commanded him to observe them—even if there had been no previous generations at all (whether out of love or out of fear, for our purposes this makes no difference)—it is clear that when contradictions with his other desires arise, he will nullify his own will before the supreme necessity of fulfilling the will of his Creator.

A person who is in a state in which he “is unable,” as described in the above article, should examine himself whether this is an inability not subject to his choice, such that his limbs do not obey him, or whether in another moment fear of Heaven will help him overcome his impulse.

This difference between the two conceptions—the psychological one as described by Y.S., and the philosophical one as presented above—can be clarified further by a sharp definition I once heard of the difference between philosophy and theology. Philosophy begins from premises and derives conclusions from them, whereas theology, by contrast, posits the conclusions and “derives” the premises from which they follow.

It is inconceivable that a theologian’s conclusion should be denial of God’s existence. (It is completely clear to me that Anselm the Christian, who discovered and formulated the famous ontological proof for God’s existence, did not become a believing Christian only as a result of this proof.)

It follows that a theologian has two possible areas of occupation: finding the premises from which the conclusions follow, and distinguishing between claims consistent with those conclusions and claims that are not consistent with them.

According to my view, once a Jew has passed through the rational stages of decision, all that remains for him is to engage in theology—that is, to sift out the forms of thought and conduct that are consistent with the conclusions of the preceding philosophical discussion. What Y.S. is trying to do is to continue thinking like a philosopher even after the stage of decision; and this is because the decision was not reached rationally and therefore cannot serve as a springboard to the theological stage, since the conclusions are not well founded and consequently whatever is derived from them has no philosophical validity.

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B. Are there really three conflicting circles?

The next point is this: does a principled contradiction exist in the triangle of Jewish law–Zionism–general culture, as may perhaps be implied by the above article? As explained earlier, I approach this issue as a theologian and not as a philosopher; that is, after I have decided that I accept upon myself the yoke of Torah and Jewish law, one must examine how the Torah system relates to the two remaining spheres. Are they desirable, contradictory, or neutral from its standpoint? Since their status at the theological stage cannot be autonomous, as explained above, it is clear that whenever any contradiction is found I will be compelled to overcome my feelings (which are very similar to those of Y.S. regarding Zionism and general culture) and abandon involvement in and commitment to these two systems. (The possibility of changing the conclusions so that the contradiction would supposedly disappear is not available at the “theological stage.”)

The Torah is not merely a value system of abstract ideas, but includes, as is well known, rather rigid directives that bind the way of life of the believer in it. Therefore it is clear that the “theological” discussion is, in its main part, a legal discussion according to the rules familiar and known to anyone versed in this field. That is, the ideas of Zionism and general culture must first of all be tested in the crucible of Jewish law.

As for Zionism, many better and greater than I have already shown that Zionism not only does not conflict with Jewish law, but (at least according to the outlook of the religious-Zionist camp) is even demanded by it, and I consider myself exempt from discussing this topic. (In my humble opinion, it is precisely those who reject Zionism on legal grounds who must prove this implausible claim.)

In the realm of general culture, the situation is less clear-cut, although it is evident that those who permit it have solid grounds on which to rely.

Let me preface by saying that the matter under discussion is the study of external wisdoms merely in order to become wiser, for the sake of livelihood it is obviously even a commandment, and for the sake of learning a certain branch of Torah it is actual Torah study. I further limit my remarks only to subjects of study that do not contradict the fundamental principles of Torah, for there the problem is much more complicated (I refer to certain fields and certain authors in philosophy; the purely scientific realm has nothing whatever to do with Torah).

In __Responsa of the Rema__, sec. 7, he writes to the Maharshal that the prohibition on studying external wisdoms is the subject of an ancient dispute, and he himself permits, and apparently even encourages, this pursuit; for he testified there about himself that on Sabbaths, when the people are occupied with their outings, he occupies himself with these studies, and see there.

There is no need to add evidence regarding the broad general learning of the early authorities and the Sages of the Talmud in these fields, and some of them even wrote books on these subjects.

To conclude this brief discussion, let us refer the reader to __Shulchan Arukh, Yoreh De’ah__ sec. 246, para. 4, where two opinions are brought by the Rema (although there it sounds as though this is permitted and not necessarily desirable), and who is greater for us than the Rema—about whom it was said, “and the children of Israel go forth under the hand of the Rema”—that we should presume to add after him.

Our intention here is not a detailed discussion of this topic, but only to show the legitimacy, from the standpoint of Jewish law, of the subject of external wisdoms.

We thus learn that Zionism and general culture not only do not conflict with Jewish law at the principled level, but may even be desirable from its standpoint.

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It is clear that involvement in these areas may stem from emotional sympathy toward them, but this subjective plane is utterly irrelevant to the theological examination that must be conducted before engaging in them.

C. What really does conflict, and what should be done?

At first glance there is no contradiction and no room for making any changes whatsoever. But the problems begin when one translates life in these three abstract systems into actual practice.

Anyone who reads the views of the decisors on the subject of external wisdoms sees that there are limitations on engaging in them. For example, one should not begin this pursuit until one has acquired an adequate Torah background (filled one’s belly with Talmud and legal decisors); likewise, one should not make them primary, but only “like perfumery and cookery to the wisdom of Torah” (not to set fixed times for Torah, but to set fixed times for general culture).

That is, the Torah-legal circle permits these pursuits in a limited and supervised fashion.

Whoever wishes to violate these rules is the one who needs changes, for here there is indeed a frontal collision; but in this case I cannot see any justification for change, since it is required not by the ideals themselves but by an incorrect implementation of them in practical life.

It is inconceivable to demand a change in the order of priorities such that Torah should become a handmaid to the appetite for general culture, as in fact happens in broad sectors of the public.

Even the way one acquires general culture can clash with legal principles: for example, study in a heretical and/or immodest environment (see the collection of essays by Rabbi Elchanan Wasserman, may God avenge his blood, on external wisdoms).

In my view many of us do not properly weigh the risk against the gain, and all too readily make decisions that sometimes involve biblical prohibitions, after which they ask the sages of the generation to anchor those decisions in Jewish law. The Zionist principle, and certainly not the love of general culture, do not require spending time in all sorts of places where a person with any connection whatever to Torah has nothing to seek, and they certainly do not require reading the entire newspaper, on weekdays or on the Sabbath, since this can involve prohibitions such as “speaking one’s own words” (Isa. 58:13), slander and talebearing, indecency, wasting time, and more.

It is not clear to me how one can demand that such things be brought into the legitimate framework of Jewish law. Are these matters legitimate from the standpoint of Jewish thought, as Y.S. formulates it in the rules that are supposed to guide the reformers in their activity (see discussion of those rules below)?

It is clear that the sages of the generation, who feel the weight of responsibility that follows from such actions, will be the last to lend their hand to so unholy a rebellion.

If we accord such credit to the sages, who in principle have authority to change Jewish law, then we must also accord the same credit to their decision not to use this authority.

This one-sided trust in the sages points, in my opinion, to the reason why one must not loosen the reins even where, from a purely legal standpoint, it would be possible.

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Another important point in this matter. Even in cases where there is a need to act in accordance with the rules and to change certain things, there is no legitimacy whatsoever to a demand “from below” for such a change, that is, from the public. If the people who have the authority to do so see that deterioration in some matter requires action, the initiative must come from them. Otherwise it appears as though anyone may do whatever his heart desires openly, relying on the fact that someone will eventually declare permissible the creeping thing that has already been eaten after the fact.

If our attitude toward the risk of transgression were like our attitude toward the risk to our money invested in a bank, and all the more so toward the risk to our lives, Heaven forbid, it is clear that the demands to take risks would fall to zero.

Because of these risks, a certain public prefers not to give its children the opportunity to study external wisdoms, and refrains from active participation in general society.

To those among us who are aware of the meaning of the danger involved in the spiritual loss of a soul, and who know the facts that clearly indicate the many risks in the liberal path of education and life, the claim against that public—that it does not provide its children with the education required of an enlightened person in our time—sounds highly doubtful. It is well known that even those engaged in a commandment are not permitted to enter a place of certain danger, and all the more so—many times over—for those engaged in the somewhat dubious commandment of general culture.

For some reason this commandment has become the fourteenth principle and has completely lost its true value, which ought to be determined by the sober calculus of Jewish law, according to which every biblical or rabbinic commandment stands far higher on a believing Jew’s scale of values.

Let me offer an example from my own experience. A few months ago, passing through Bnei Brak, I saw posters announcing that they had finally, thank God, succeeded in producing ritual fringes from wool carded expressly for the sake of the commandment. For a moment I felt a slight smile creeping onto my lips, until I suddenly thought that one ought to check the sources before deciding on an attitude to something on which a biblical positive commandment may depend—far more than the thought invested, for example, in a financial investment or in any other decision, which among us is treated much more seriously.

To my surprise I discovered in Shulchan Arukh, Orach Chaim, Laws of Fringes, sec. 11, para. 1 in the Rema, that some of the early authorities are stringent about carding for the sake of the commandment; and see Mishnah Berurah, subsec. 3, that ideally one should be stringent about carding for the sake of the commandment.

Let each of us examine how he would react on reading notices of this kind, and how many of us would then go on to find out how to obtain ritual fringes made from wool carded for the sake of the commandment. In my opinion it is obvious that the commandment of fringes, which is a biblical positive commandment, deserves more attention than all sorts of subjective desires for broad general culture. After we reach perfection—or at least aspire to it—in the clear and authoritative matters of Jewish law, we can begin to argue with those who are lenient regarding the commandment of “understand and know Me” (Jer. 9:23), or to demand changes and liberality in the problematic issues.

D. The need, the possibility, and the precedents for changes in Jewish law.

There is a well-known philosophical distinction between constitutive systems of laws (CONSTITUTIVE) and goal-directed systems.

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An example of a goal-directed system is, for instance, the game of basketball (the more famous example usually given in this connection is the system of traffic laws, but in my opinion that example is somewhat problematic and this is not the place to elaborate).

The inventors of the game established a system of rules binding on the players and determining who is the winner and who is the loser.

After the game acquired a considerable measure of popularity, an international association was founded with authority to change some of the rules in order to improve the level of play or the enjoyment of the audience and the players.

Even after such changes, we continue to call the game by the same name, although it may already be essentially different from the prototype. We do so because of the feeling that the game is not a value in itself but a means that fulfills functions such as providing enjoyment, money, and so forth, and therefore it is obvious that if there is a better way to realize these qualities, the rules of the game should be changed in order to achieve that.

This is an example of a system called goal-directed, since it is only a means directed toward achieving a goal external to it, and therefore the means too can be changed for the optimal attainment of the goal.

By contrast, an extreme example of a constitutive system of laws is the system of the laws of physics. Clearly one cannot calculate the ballistic trajectory of a bullet by using laws established by the decision of a professional association.

These are laws with objective validity (in the accepted senses, and without entering into problems in the philosophy of science), which are not subject to external change except in accordance with the rules that say how a theory may be corrected in light of new data that have been discovered (in the objectivist view that there are “true” laws to which we are only continually drawing nearer, those laws are not subject to change at all). Of course, change in accordance with rules that are themselves part of the system does not take it out of the category of constitutive.

The system of Jewish law belongs to the goal-directed type, and even if someone were to try to argue sophistically that it is not a value in itself but rather a means to fulfilling the Creator’s will (or to receiving minimum punishment and maximum reward for one who serves out of fear), even so the instrumental status of the laws would not change; yet since a priori no preferable way of fulfilling the Creator’s will (or of receiving maximum reward) can exist, this system is effectively constitutive and not goal-directed, and therefore it is not subject to change by any external factor whatsoever (including, as it were, God Himself, since “It is not in heaven” — Deut. 30:12; Bava Metzia 59b). It would therefore be strange to argue for the need to change a particular law for some external reason, since that would amount to saying that God’s will should be set aside for something that is not His will. And if the reason for the change is indeed His will, then it is not external but part of the Torah system itself, and when two laws conflict there are rules telling us how to act, so there is no need for change.

The examples Y.S. brings of changes in Jewish law that were made throughout history do not, in my opinion, withstand scrutiny.

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The example concerning heretics, whom one “casts down and does not raise up,” is not realistic today, as Y.S. himself already mentioned, for several reasons: for example, our hand is not strong, we do not know how to rebuke our fellows, and so forth. But if we imagine that this law were realistic even today, then one should certainly regret it if no one were found to carry it out, and that is certainly not a reason to change it.

It would be a strange claim to say that God commanded something unrealistic, for I do not think that our moral sensibilities today are so much more developed than those of earlier generations. If so, what did God mean when He commanded this? Which generation was supposed to carry these things out literally?

And anyone who does not regret a law that is not being fulfilled when the conditions requiring its fulfillment are present would do better not to say so publicly.

Two additional examples that were brought were the sale permit in the sabbatical year and the prosbul. In my opinion there is some misunderstanding here, and I will explain this with an example.

There is a law that produce brought into the house through its roof is exempt from tithes. And the Talmudic statement in Berakhot 35b is well known: “Come and see that the later generations are unlike the earlier generations: the earlier generations would bring their produce in through the main entrance in order to obligate it in tithes; the later generations bring their produce in through the roofs, etc., in order to exempt it from tithes.”

In both the prosbul and the sale permit, the main novelty is the permission to use an existing loophole that is not in itself forbidden, apart from the fact that de facto the commandment ends up not being fulfilled—similar to the later generations with respect to tithes. There is a legal dispute concerning the sale permit, but the main dispute is about the de facto nullification of the commandment of the sabbatical year in our time, since its legal aspects received the approval (temporary at least) of several of the greatest decisors in previous generations, and not necessarily those identified as Zionists.

The principal debate is whether in our time the situation is sufficiently pressing to make use of these loopholes.

And likewise with regard to the prosbul, see Gittin 36a and Tosafot, s.v. ‘Mi Ika Midi,’ there, that Hillel the Elder merely found and utilized the legal loophole and introduced no legal novelty at all.

We thus see that even these precedents for changes in Jewish law are imprecise.

If Y.S.’s intention was changes of this sort, then as a first step one must point to the particulars that require change and to whether a suitable loophole exists. (Incidentally, throughout the entire article there is no specific example of anything that requires change.) It does not appear that this was his intention, for if it were, there would have been no need at all to formulate rules that distinguish such changes from the changes made by the Reform movement, since these are not changes at all, whereas those uproot and destroy without any distinction and certainly do not look for loopholes. And since these rules have come into our hands, let us say something about them.

Y.S. proposes two rules that would characterize an “Orthodox change” in Jewish law:

A. “The demand for legal consideration can come only from patterns of life that are indeed an essential and legitimate part (from the standpoint of Jewish thought) of historical development.” “Not every discomfort felt by some individual has standing before the High Court of Jewish law as a kind of claim that this is a decree the public cannot endure.”

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B. “Even if the first condition is met, it is clear that there is a limit to the development that Jewish law is able to absorb, and beyond that limit its foundations and its cherished, time-honored assets are breached.”

In my opinion, Rule A would fit the Reform conception just as well, since it too argues that its principles are legitimate within the historical development of the people of Israel from the standpoint of Jewish thought. The dispute is over what those legitimate patterns of life are, and that is nowhere to be found in the above rules. If so, the first rule seems superfluous. The second rule was apparently meant to explain to some extent that difference between the patterns of life, but it seems like a “non-constructive existence theorem” in the terminology of mathematicians, that is, a theorem establishing the existence of something without indicating what it is or where it is.

In mathematics, at least, one proves the very existence of the entity described by the theorem, whereas here even that has not been done.

As explained above, there is no such limit as that described in Rule B, and “whoever alters the terms, his position is the weaker one.”

I completely reject the notion of Orthodox change other than in the forms described above, for the demand for change presupposes a goal-directed system, whereas the Torah is explicitly a constitutive system.

As a rule, it is clear that rules that attempt to characterize change in Jewish law always suffer from vagueness of formulation and from evasion of clear definitions, and this for the simple reason that it is impossible to formulate such rules without falling victim to logical errors in the conception of the religious system.

It should also be noted that the sages have authority to uproot a matter from the Torah by passive nonperformance; but beyond clarifying who the sages are who are authorized to do this, and for what reasons it is legitimate to make such a change, it is clear that these powers have not been used for many generations—a fact whose meaning is that there has been a decision not to use this authority, which had been given to the sages of the Talmud. Such a change, as stated, is legitimate according to all views. The same applies to “It is time to act for the Lord; they have violated Your law” (Ps. 119:126).

E. Conclusions

The situation described by Y.S. arouses great concern.

A graduate of a yeshiva high school and a hesder yeshiva who describes himself as having a secular mentality, and who during the weekdays does everything his secular friend does, is a red warning light for our educational system. It is unacceptable that a person who has completed the entire course of religious-Zionist education should waste his time on movies and television and on reading newspapers, and this certainly represents the majority of graduates.

A person who makes the effort to go and hear a Daf Yomi lesson for an hour every day is already considered, by a large part of us, a scholar (without, Heaven forbid, belittling the Daf Yomi enterprise).

How many of us can testify about ourselves that we really study an hour a day?

The sensible proportion is to set fixed times for general culture while living a life of Torah, and not the reverse (see Maimonides, who laid down firm principles on the division of the day even for an ordinary person who has not decided to devote himself to Torah study).

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Let each person examine himself and his surroundings: how many people (who received all the Jewish education that our system has to offer) devote time in proper proportion to Torah study and to the observance of other commandments.

How many of us consult a Torah scholar when a difficult problem arises, even in purely legal matters.

In every field we consult an expert—a doctor, accountant, lawyer, and so forth—except in the most important field, where everyone feels confident (often without grounds) to decide momentous questions alone. For some reason, turning to a sage is only in order to demand that the framework be changed, not in order to seek help in fulfilling it.

Once I spoke with Rabbi Aharon Lichtenstein, may he live long, head of Yeshivat Har Etzion, about the parameters of the commandment “do not deviate” (Deut. 17:11) in our time. He gave as an example a weighty political decision that stood before the National Religious Party, and they consulted everyone except rabbis. He added that even if the matter is not purely one of Jewish law, and even if there is no obligation of “do not deviate” nowadays, it is clear that a believing Jew ought to value consultation with a rabbi at least as much as consultation with any other wise person, for “the Holy One, blessed be He, does not bring mishap through the righteous” (although according to Tosafot this applies only to forbidden foods, yet the spirit of the statement is clear), and “whoever consults the elders does not stumble.”

I do not think that any permission to go to a mixed beach or to a movie will bring back in repentance any of those who abandon observance whom Y.S. mentions in his article. The problem lies in earlier stages of the Jewish education we receive, and before we come to advise God to change His “way of life,” let us examine our own. In the schools and also in the yeshiva high schools, sacred studies are a subject like all the others, on which one takes matriculation examinations and receives a grade on the year-end report card; the only difference is the number of hours, and even that not everywhere. When my late father entered to manage the school in which he worked and saw its low religious level (despite its very high academic level), he said to me that it was clear that what was lacking there was not a few more hours of sacred studies, but rather that the approach was mistaken at its root. Our students, for the most part, see themselves in an academic or some other career, while the matriculation grade in Talmud is only a burden imposed on them and is not supposed to help them at any stage they will reach.

In Haredi education (at least the Lithuanian type, which I now know fairly closely), everyone knows that he will go on to yeshiva and most will continue to kollel, and so forth, and therefore it is clear that, aside from sacred studies, nothing is considered important. The slogan of integration into life sounds good so long as it does not come at the expense of eternal life; however, if one sets aside eternal life and occupies oneself with temporal life, then there is room to consider a revision of the entire educational scale of values.

The indication of the success of a Jewish educational approach is first of all the Jewish character of the graduate, and only afterward, perhaps, his being a general in the army, a government minister, a doctor, an engineer, a scientist, and so forth.

It saddens me greatly to discover that many of the graduates who seem closer to the image of a Jew as he ought to appear are found precisely among the public that abandoned the religious-Zionist path.

One must sometimes know how to admit errors or lack of success.

More constructive ideas for a solution are now in the process of being worked out, and perhaps, God willing, they will be published on a later occasion.

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In the current situation, when I think about where I shall send my son to acquire Torah and understanding, the task seems
almost impossible: where there is Torah there is no understanding, and where there is understanding there is no Torah (“Any Torah scholar who lacks understanding, a carcass is better than he” — Leviticus Rabbah).

Between these two bad options, the choice seems quite unambiguous: “and Torah study is equal to them all”
(Mishnah Pe’ah 1:1).

In summary:

1. In my opinion, the approach of living within three circles whose status is equal to that of Jewish law is not logically consistent,
   and in fact this is the Reform approach.

1. There is no principled contradiction between Zionism and general culture, on the one hand, and Jewish law, on the other; only between the failed modes of implementation
   of these values and Jewish law.

1. As a result of this approach comes a demand that the leaders of the generation have faces like the face of a dog, in the well-known
   Talmudic saying; that is, that the leaders should follow the led.

1. External changes in Jewish law are neither necessary nor possible, and can only do harm, especially
   when the demand comes “from below.”

1. A contradiction between values and their implementation should lead to a change in the form of implementation, not to a change in the values,
   and in our case this applies chiefly in the field of Jewish education, whose present form, in the distance between the model
   it sets and the product it turns out, points to a state of almost complete bankruptcy.

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