“‘You Are Called Adam’: Reflections Following the Passing of Rabbi Shlomo Fisher z”l (Column 428)”

“‘You Are Called Adam’: Reflections Following the Passing of Rabbi Shlomo Fisher z”l

This past Thursday a very special Jew passed away, a great and original Torah scholar, Rabbi Shlomo Fisher z”l—without doubt one of the most remarkable figures of our generation. I was not surprised to discover that the event was not mentioned at all in the general media (apart from sectoral outlets—Haredi and religious). In a search I conducted there wasn’t a single result. As far as I know, he was not a fashion model, nor—alas—a novelist or poet, and I’m not sure he was on friendly terms with Madonna, Shimon Peres, Lionel Messi, Zehava Galon, or Oren Hazan; nonetheless, he did possess a few other minor virtues, and besides, he even held official positions. Wouldn’t we at least deserve some good or bad word about him upon his passing? It turns out I was naïve. The sect of autists confined within the bubble of folly that is somehow called “the media” did not deem it proper to mention his departure in any form.

R. Shlomo Fisher served as a dayan on the Supreme Rabbinical Court (well, nobody’s perfect; but despite that, he was a Torah scholar of stature) and as Rosh Yeshiva of Itri. He was the brother of the late Rabbi Yaakov Fisher of the Badatz. He gave classes in many forums to diverse audiences and was, to some degree, open to non-Haredi religious shades as well (among other things, he was the father of Chana Kehat, founder of the feminist women’s forum “Kolech”).

I didn’t know Rabbi Shlomo personally. Once I heard a class in his home together with all the students of the Yerucham Hesder Yeshiva, and that one-time experience is very hard for me to forget. Beyond that, I know him a bit from his writings, chiefly his books Beit Yishai (vol. I on analytic Talmudic study; vol. II on thought and aggadah), and also a bit from written and recorded lectures online. In siman 35 of vol. I of Beit Yishai we dealt at length, in our book on the logic of time in the Talmud (the fourth volume in the Talmudic Logic series).

Despite the lack of personal acquaintance, I thought it proper to say a few words upon his departure from us, and knowing his personality and intellectual integrity, I presume that even the critical remarks that appear within my words here would be pleasing to him.

The class I heard

Rabbi Shlomo was a very special Torah scholar, of vast scope in halacha and aggadah (the very fact that he engaged in aggadah is in itself unique). He frequently relied on critical thinking and always defined the halachic concepts he addressed, plumbing the depths of their underlying principles. He dealt in ideas across the length and breadth of halacha, and in meta-halacha as well, drawing his bread from varied and diverse sources. It’s hard for me to define his method of study (I also don’t know it well enough), but my impression was that he had his own path. It wasn’t yet another example of the approaches of R. Shimon or R. Chaim and their students—the standard yeshiva “raid.”

In the class I heard, I greatly enjoyed the halachic-analytic part, which dealt with the laws of damages caused by a person. I recall that he explained that a person’s property is his periphery, and a person’s body is also a periphery—albeit a closer one. This is the Talmudic statement (“A person—the guarding of his body is upon him”), in the same sense as one’s responsibility for the damage caused by his animal. His claim was that one who causes damage under duress (for example, someone who fell asleep with a stone in his lap, it fell during his sleep and caused damage) is liable for the damage his body caused just as he is liable for damage caused by his property (I later found the essentials of this in Beit Yishai, siman 76, though in the class the canvas was much broader).

He spoke rapidly for two straight hours without holding a paper or book, and his absolute command of the material was evident. I remember that at some point I asked him about a statement he attributed to the Ran in Rosh Hashanah (28a), who raises the sevara of “benefit received” (shekhen nehenah) regarding positive commandments (and not only prohibitions), and to my astonishment he tossed off, “Well, that Ran is a midrash pele’ah,” and continued the class. It is very uncharacteristic of a Haredi Torah scholar and analyst—who typically approaches the Rishonim with trembling—to dismiss the words of an important Rishon with a wave and without argument. His critical sense and intellectual honesty did not stop at the Rishonim. As for the Ran’s words, in my humble opinion they can be reconciled, and this has long been discussed.

During those two hours I sat mesmerized by the analytical force and total command of the material. The feeling was like at Sinai. Afterwards he added about another hour on aggadah, and I must say that there I was disappointed. I don’t remember the content, but my impression was that in aggadah he did not say unusual things, and his words resembled the usual vertlach.

Engagement with meta-halacha

Another of his hallmarks was engagement with meta-halachic questions. A discussion of why one is obligated to keep the commandments—such as can be found in siman 15 of vol. II of his book—is also uncharacteristic of a yeshiva analyst. In two of his sermons there (simanim 9 and 26) he addresses a question raised by R. Kook in Orot Yisrael: whether Israel is considered a different kind of being altogether, or a gentile with an added tier. He cites the Kuzari regarding the five levels (inanimate, vegetative, animal, speaking, and prophet-Jew) as a source for the former view, and others who disagree and hold the latter. This is the place to note that this was apparently his way in other cases as well—to rely on R. Kook without stating so explicitly. He was one of Jerusalem’s sages who grew up in the atmosphere that prevailed there before we were divided into today’s usual drawers of Haredi and non-Haredi, etc. Like R. Auerbach and R. Elyashiv z”l, they nourished themselves on R. Kook’s Torah and saw themselves as his students, even if they did not agree with all his ways.[1] This conduct is of course praiseworthy, but keeping it under wraps without laying it on the table deserves criticism. I expect Torah scholars not to cooperate with the mentality and atmosphere imposed by small-time operatives and their toadies.

Notes on a short eulogy I read

A few days ago I saw on WhatsApp some words of eulogy written for R. Shlomo Fisher z”l, and I thought it appropriate to comment on them. First I will bring the text itself.

Now I will comment on these two columns, one after the other.

The right column

The first part (in the right column) points to R. Shlomo Fisher’s intellectual integrity. I certainly do not agree with the assertion that Amoraim disagreed with Tannaim (see for example my article on strained language in Mishnayot, and my article on ukimtot), I understand where it comes from, and it certainly attests to integrity.

I presume that his statement branding R. Shimon Shkop’s words as heretical referred to the discussion in Sha’arei Yosher, gate 5, regarding “the law of juridical norms” (Torat ha-mishpatim) (I believe I once heard this in his name). I will touch a bit on the matter.

There R. Shimon stands on the idea that the laws of property acquisition obtain by virtue of what he calls “the law of juridical norms,” which precedes halacha. His claim is that the halacha that prohibits theft presupposes, as the substrate of that prohibition, the laws of ownership. Without a determination of property law, it is impossible to define theft (for theft is taking another’s property).

R. Shimon’s words are quite novel. It emerges from his words that there are obligations whose force precedes the Torah and does not derive from it. To me this is obvious, but many in the beit midrash recoil from such a statement. And I presume that R. Shlomo Fisher addressed this. Because of the difficulty, many interpret R. Shimon to mean that the juridical determination of ownership precedes halacha (and is entrusted to the public and social consensus), but the prohibition against infringing on another’s property is a halachic prohibition (from “you shall not steal”). That is, there are no obligations without halacha, and what precedes halacha can only be, at most, neutral determinations that will serve as a substrate for halacha.

One can hang this understanding on R. Shimon’s words at the beginning of the gate:

“Furthermore, there is a principal rule here: when we judge about some right or acquisition of a person in an object or a monetary lien, we are not judging at all about the observance of some commandment, but about the reality—who owns the object, and who is worthy, according to the law of juridical norms, to hold the object. Accordingly, what our Sages stated as general rules of law in monetary doubt—they certainly found so by the decision of reason, that according to the law of juridical norms the law so dictates: that in an exchange of a cow for a donkey that gave birth, and it is doubtful when it was born—if the offspring is found at the time of the doubtful birth in the possession of one of them, it will indeed be in his possession; and if it was in the marsh, we follow the original owner. Now, the prohibition of theft is that one must not steal from his fellow that which, according to the law of juridical norms, is his fellow’s; likewise one must not withhold a laborer’s wage that, according to the law of the Torah, he is obligated to pay. How can it be said that one who holds the money under his hand should be concerned, according to the law of the Torah, about the prohibition of theft—if the money is his, according to the law of the Torah? What prohibition of theft could there be? For the prohibition ‘you shall not steal’ is a general prohibition forbidding stealing what belongs to another—whether by inheritance, by acquisition through sale, gift, or ownerless appropriation, or by right acquired according to the law of the Sages.”

It appears that only the determination of who owns what belongs to the “law of juridical norms,” whereas the prohibition against infringing ownership is learned from “you shall not steal.”

However, this interpretation does not fit R. Shimon’s intent. It is clear from his words that “the law of juridical norms” also includes a prohibition, and not only a neutral determination of ownership. In his view, even before “you shall not steal,” there is a prohibition to steal another’s property by force of “the law of juridical norms.” What he wrote here is only that the halachic prohibition of “you shall not steal” is also based on the property laws of the juridical norms; but beyond that, there is also a juridical prohibition of theft that precedes “you shall not steal.” There are several proofs for this from his words there. For example, he writes regarding theft from a gentile:

“And in a doubtful case of theft where there is no monetary law involved—for example, to steal from a person who is of doubtful status, whether gentile or Israelite—according to the opinion that theft from a gentile is permitted, in such a case the doubt will be treated like any Torah prohibition, for here it is not at all a matter for juridical norms. For even according to the view that theft from a gentile is permitted, he has no right or power to steal from the gentile, as the Magen Avraham writes in the laws of lulav (Orach Chayim 637:3) in the name of Sefer Yere’im (siman 422), that even according to the view that theft from a gentile is permitted, it is not ‘yours’.”

He writes here that even according to the view that theft from a gentile is not biblically forbidden, it is forbidden to steal from a gentile according to the “law of juridical norms.” He repeats this later in the gate. That is, when they held that theft from a gentile is permitted, it means there is no halachic prohibition of “you shall not steal,” but there still remains a juridical prohibition, for the gentile is certainly the owner of his property.

Beyond that, in chap. 2 there (sec. 19 in the Bar-Ilan Responsa Project edition) he wonders:

“It seems to me that the matter of the lien on one’s person in all monetary obligations is a juridical law—that a person is obligated and stands to provide from his assets to his fellow such and such; that this obligation is a juridical obligation even without the commandment of the Torah—just as the types of acquisitions and the laws of ownership in assets are juridical matters, even without the warning of ‘you shall not steal,’ as we explained above: it is in no way conceivable to say that the fact we ascribe an object to Reuven is because Shimon is warned by the Torah not to steal it from him; rather, the matter is the reverse: the prohibition of theft comes after the determination of the matter by the laws defining the boundaries of ownership. Likewise, it appears that the commandment to pay a debt comes after the determination of the debt according to a juridical law: once there has been imposed upon Reuven an obligation of payment by a juridical code, the Torah added a warning and commandment to carefully pay the obligation he owes according to the juridical law. And though at first glance it is a wondrous thing—what compulsion or obligation could there be upon a person to do something without the Torah’s command and warning?—yet when we delve into the matter well, we can understand it: for the obligation and compulsion to serve God and fulfill His will is also an obligation and compulsion by the law of reason and recognition. So too the obligation and monetary lien is a juridical obligation, incurred according to the ways of acquisitions or imposed by the Torah such as damages, redemption of the firstborn, and the like; and for that we require there be an acquirer who acquires this right.”

He wonders whence there is an obligation to do something without a Torah command—and he answers that even the obligation to fulfill what the Torah itself commands is grounded in the reasoning that there is an obligation to do God’s will. Therefore reason precedes the Torah’s obligations, and hence there is no impediment for it to obligate us in additional matters as well.

Now, if his intent were that only property law is determined by the “law of juridical norms,” but there is no prohibition against stealing, then this wonder would have no place. For we would have no obligation to obey the “law of juridical norms,” since it does not set norms but only juridical facts. We are forced to conclude that R. Shimon intended to say that there is also a prohibition of theft, and about that he wonders how a prohibition can arise without a Torah command.

R. Shlomo Fisher correctly understood R. Shimon’s intent, and apparently for this reason he claimed that these are words of heresy. I have not merited to understand why. On the contrary, I would expect that R. Shlomo, who was attuned to philosophical, legal, and meta-halachic aspects, would agree with R. Shimon’s words and certainly not see them as heresy. I am not referring to the very act of attacking a halachic-analytic position by branding it heresy. It is proper to make substantive arguments and discuss whether the statements are correct or not, not to label them.

As for the remark at the end of the right column, I would expect that a man of R. Shlomo’s stature would also study philosophy that is not “Greek,” and not get stuck in ancient philosophy merely because one needs the Rambam to certify it for communal acceptance (though perhaps this is only the describer’s portrayal, since in many people’s eyes all philosophy is “Greek wisdom”).

The left column

The points brought in the left column belong more to the writer than to R. Shlomo, but I thought comments on these matters would themselves constitute a fitting eulogy for him. I suspect that R. Shlomo would himself have wished to say such things about what is said here.

1. I did not merit to understand why this is a point in his favor. Just as well one could say that he feared speaking the truth because of harassment of his wife. There is room to interpret it to his discredit and room to interpret it to his credit. I do not think it proper to turn every story into saintly tales.
2. Stories of saints in the style of this tale always irritate me. This is behavior I would expect from any reasonable person. Making it into a paragon of righteousness seems to testify to a worrisome decline in norms. Perhaps the intent is to aggrandize R. Shlomo’s name unjustifiably. Beyond my opposition to “holy lies” (though here it isn’t really a lie, since I presume the incident occurred), such a story has an educational price: setting such behavior as a special rung may cause people to absolve themselves too easily when they behave otherwise. This is not righteousness but the conduct of a reasonable person.
3. Here, too, this is the conduct of a reasonable person, far from noteworthy piety. If you saw a fine insight in someone’s notebook—what’s wrong with citing it in his name? Was he supposed to hide the source and not attribute a statement to its author?! Who wouldn’t do that?

If we learned anything here about how to eulogize, I suspect this would be pleasing to the late R. Shlomo Fisher.

In conclusion

There are aspects of R. Shlomo’s personality that reflect problematic facets of the Haredi milieu of the Old Yishuv in Jerusalem in which he was raised and operated: concealing the connection to Rav Kook and the sources from which he himself drew; the “heresy” remark about R. Shimon Shkop; the pilpulistic approach to aggadah; and more. Yet all this can be read to his discredit or to his credit, for one can say that despite his milieu he managed to broaden his boundaries and open himself to additional directions. On the other hand, he did not entirely free himself from the problematic aspects of that milieu—and that is a pity.

Beyond all that, we are speaking of an original and profound Torah scholar, of broad scope and exceptional intellectual force and integrity. Alas for those who are gone. May his memory be a blessing.

[1] In Bnei Brak there was no such period, and therefore the drawers there are much sharper. I once saw an article by Prof. Menachem Friedman about halachic measures. He explains there that Bnei Brak is a city of immigrants, and so there was no clear tradition; the dominance of the Chazon Ish took over and became binding for everyone. In Jerusalem there was an older community, and therefore they did not change their practice to follow the measures of R. Chaim Na’eh.