This Is the ‘Spasst Nisht’ Doctrine: The Prohibition of Civil Courts (Column 448)
In the previous column I briefly discussed what I called “spasst nisht” considerations. I argued there that sometimes, even without a substantive halakhic permit, a given law is nullified with the claim that it “spasst nisht”—meaning, it is unreasonable to behave that way, at least in today’s reality. I brought several examples of the implicit use of such arguments, such as saving the life of a gentile on Shabbat, and more. Usually these arguments are wrapped in ostensibly substantive halakhic reasoning, but in many cases those reasons don’t hold water and certainly don’t lead to the full practical conclusions we actually adopt. This indicates that in the background stands a “spasst nisht” consideration; yet because of its vagueness and the risks of various slippery slopes, decisors tend not to put it on the table. They prefer to wrap it in quasi-halakhic arguments.
In the comments there, a claim was raised that such considerations are insufficient, since halakhic thinking requires a substantive reason to change or repeal a law. Of course, behind these claims lies the aforementioned concern about slippery slopes—for with such arguments one could indeed cancel broad swaths of halakhah altogether. In that context, they mentioned my swimsuit example, that is, a type of argument that says the original prohibition assumed certain premises that no longer obtain today, and therefore today it is void or different. This is what I once called “conservative midrash.”
But it’s important to understand that behind “spasst nisht” arguments there always stands this kind of conservative midrash: Had the Sages known today’s reality, they would not have forbidden it. What is the difference between this and “conservative midrash” as I defined it there? Essentially I am claiming that if the Sages lived today, they would not obligate the destruction of statuettes. True, this is not a rabbinic prohibition, for it is explicitly stated in the Torah in several places; but the Sages did not hesitate at times to “manhandle” even explicit prohibitions (see the rebellious son, the condemned city, and more) and thus remove them from the practical plane. It is reasonable that they would do the same in these cases.
The problem is that in the absence of the Great Court or some authoritative body, it seems there is no entity today that can actually do this. That is, even if conservative midrash is one of the built-in mechanisms within halakhah and is not reform at all, there is still a need for authority to implement it. Annulment of explicit Torah prohibitions, or prohibitions decreed by a Sanhedrin, itself requires an authorized body (a Sanhedrin): a matter enacted by a vote requires another vote to permit it. Therefore, conservative midrash is not sufficient to ground a change in halakhah. In many cases, debate over halakhic change reveals agreement about the need for change, except that questions of authority prevent it. Admittedly, questions of authority are not as clear-cut as one might think, and it is a fact that Sages over the generations did change laws when necessary in various ways. Still, when we come to argue for halakhic change, the issue of authority breathes down our necks.
Therefore I added in the previous column that even if we lack the authority to change, sometimes a moral consideration can override a fixed law without changing it. This can stem from deciding a conflict between halakhah and morality (both being the will of the Almighty), or from a “freezing” mechanism which, as I showed in the third book of my trilogy, does not require formal authority and is therefore open also to contemporary scholars.
In this column I wish to address another example that touches on spasst nisht considerations—albeit of a somewhat different sort. As we shall see, even here it’s not clear whether indeed spasst nisht is being used or whether this is an ordinary intra-halakhic interpretive move based on substantive reasoning, and it’s also not clear that there is a sharp difference between the two. I refer here to the application of the prohibition of “arka’ot” (civil/secular courts) in our day. As I will try to show, this is a spasst nisht drama in four acts (or generations).
Halakhic Background: The Prohibition of Civil Courts and Lay Judges — Spasst Nisht, Generation I
The Gemara in Gittin 88b expounds on the beginning of Parashat Mishpatim:
“It was taught: R. Tarfon would say: Wherever you find assemblies of idolaters, even though their laws are like the laws of Israel, you are not permitted to resort to them, as it says: ‘And these are the ordinances that you shall set before them’—before them and not before idolaters; alternatively, before them and not before laymen (laymen).”
Cases must be brought before qualified judges; this excludes gentiles, or unqualified Jewish judges (laymen)—even if they judge according to Torah law.
This law is ruled across the halakhic codifiers, and the Sages saw in this prohibition a substantive foundation of halakhah; violating it is like planting an asherah by the altar. This is hardly surprising, for if one goes to be judged before gentile courts, all of halakhah is uprooted from its place. Our entire engagement with halakhah is so that we will apply it in our lives. But if we deal with it and then go to be judged before gentiles or laymen, we have nullified the essence of the halakhah. True, this prohibition applies even if their laws are like ours, and many have already noted that. If the judges are Jews, this is apparently a kind of biblical safeguard; if they are gentiles, there is a concern of honoring their idols and of demeaning the Torah.
It should be noted that qualified judges are only judges with ordination (semikhah), ordained man to man back to Moses. Any other judge, no matter how learned, is disqualified from judging as a matter of law.[1] The Gemara there in Gittin introduces, in this context, the rule of “shlichuteihon” (“we act as their agents”), whereby the Babylonian judges, who lacked ordination, had permission to judge. That permission was granted to them by the ordained judges in the Land of Israel, who appointed them as their agents. This appointment applied only to certain areas (common cases involving potential monetary loss).
At first glance, this looks like a decision by the ordained judges in the Land of Israel to appoint the Babylonian judges as their agents. But simply, it does not seem that there was truly such a formal decision. I assume the premise is that it is unreasonable to leave a Jewish public without an effective judiciary, and therefore the Gemara says it is obvious that the ordained judges in the Land of Israel would want the Babylonian judges to judge as their agents. This is a legal fiction meant to meet a need. A legal fiction, by definition, turns the desirable into the actual; that is, if it is desirable to have judges—then there are judges.
Already here one can say there is a spasst nisht consideration, for the very basis for permitting lay judges (i.e., Torah scholars who are not ordained) to judge is grounded in the premise that one cannot leave an entire public without judges and courts. By virtue of this consideration, they uproot a Torah law that allows only ordained judges to judge—despite all the superlatives attached to those who violate this prohibition.
There are several clear indications for understanding shlichuteihon as a fiction. Two of them arise in Tosafot s.v. milta in Gittin there. The first emerges from their question:
“If so, how do we act as their agents when now there are no experts in the Land of Israel—who will grant us permission? One must say: we act as the agency of the early ones.”
We continue the rule of shlichuteihon also for later generations down to our time. One must recall that an agent cannot act by the power of his principal after the principal has died. Therefore, once the ordained judges in the Land of Israel ceased to exist, it would seem that the shlichuteihon enactment should lapse. And yet, many generations after there has not been a single ordained judge anywhere (to this day), Jewish judges continue to judge throughout the world by virtue of that elusive agency.
It seems reasonable that this extension is based on the fact that we are not really dealing here with appointment of agency. It is a legal fiction grounded in a spasst nisht claim. Even after there are no ordained judges, it remains clear that leaving a public to function without a judicial system is spasst nisht; therefore, lay judges are permitted to judge even without a formal halakhic permit. This is the first indication of spasst nisht reasoning in this context.
A second indication is the scope of matters to which we apply the shlichuteihon enactment. As noted, the Gemara itself indicates it was instituted only for common cases involving loss. In that same Tosafot in Gittin they raise another question:
“‘In common matters…’—such as admissions and loans; and that we accept converts even though a convert requires three experts, as it says in Yevamot 46b: ‘Mishpat’ is written concerning it.”
Their question is how we accept converts nowadays, since conversion must be done before a court; that is a constitutive condition (without a court the conversion is void). As a matter of law, a court for conversion is a court of three ordained judges, and today we have no ordained judges. Moreover, the shlichuteihon enactment does not apply to conversion, since it is neither common nor a case of loss.
Tosafot answer:
“R. Y. says that we act as their agents, for it counts as if it were common; and in ‘HaCholatz’ it also appears that they accepted converts in Babylonia.”
We apply shlichuteihon also to conversion because it is like a common matter. What does “like” mean—either it is common or it is not. It seems that in practice it is not common, but it is spasst nisht that at certain times and places there would be no possibility at all for one who desires to convert. Therefore we waive the condition that conversion be before an ordained court, and again this is done in contravention of Torah law.[2]
In passing I’ll note that, as is known, commentators dispute whether the rule of shlichuteihon is a rabbinic enactment or a Torah law. Both sides are quite puzzling. On the one hand, the wording plainly indicates an enactment. Ordinary laws of agency cannot apply to judging, and certainly not when the principal is dead. So how can one say it is biblical? What is its source? On the other hand, how can one say it is rabbinic, for it is inconceivable that judges valid only rabbinically would effect a conversion—would that person be biblically a gentile and rabbinically a Jew?
It seems to me that the only way out of this thicket is to say that we are dealing with a legal fiction that has biblical force. There is here an implied appointment of agents, and the one who appointed the agents was the Torah itself, not the ordained Sages in the Land of Israel. True, we have no scriptural source for this—but we do have the spasst nisht reasoning: the Torah itself is not prepared to allow a situation in which a Jewish public functions without an effective judicial system. Therefore it is clear that the Torah itself permits lay judges to adjudicate.
But this is only the beginning of the spasst nisht issue regarding lay judges. Now we turn to the law of the “courts of Syria.”
Civil Courts in Syria (Arka’ot shel Surya): A Survey
Here I’ll give a brief, concise overview of the concept of “civil courts in Syria” (arka’ot sheb’Suriya) according to common interpretations. That will suffice for our needs. The Gemara at the beginning of the third chapter of Sanhedrin (23a) mentions “civil courts in Syria” in two contexts. The Mishnah there discusses the procedure called zabla (“this one selects one [judge]”), in which each litigant chooses a judge and those two choose the third. Among other things, the law is brought there that each litigant may disqualify the judge chosen by the other. The Gemara asks:
“‘This one disqualifies the other’s judge…’—Does he have the power to disqualify judges? R. Yohanan said: They taught this with regard to the civil courts in Syria, but not with respect to experts.”
That is, each litigant can disqualify a lay judge but not an expert (ordained) judge. A lay judge is one serving in the “civil courts in Syria.” Rashi explains that these were judges who were not expert in Torah law (though they were Jews, of course). This is the accepted interpretation, and I will assume it here.
The general principle in halakhah is that “the borrower is servant to the lender,” and therefore when a dispute arises between lender and borrower over the venue of adjudication, the lender chooses the venue.[3] But if the lender wants to litigate in the civil courts in Syria, the sugya earlier establishes that the borrower has the right to object and demand adjudication elsewhere before expert judges.
Now arises the question how they were appointed, for there is a prohibition to appoint an unfit judge (i.e., one lacking the appropriate character and/or expertise). Several commentators there explain that this is because in the Syrian community of that time there were no expert or learned judges. This differs from Babylonia, where, as we saw, there were learned judges—but they were not ordained (since there is no ordination outside the Land). In other words, the civil courts in Syria were constituted of appointed Jewish judges who were not learned in the laws. The lay judges in Babylonia were well-learned Torah scholars (the Amoraim of Babylonia), but they were not ordained. These are two types of lay judges. Above I dealt with the Babylonian type; now I focus on the Syrian civil courts.
In any case, the sugya indicates a permit to establish a court with judges who are not expert in the laws, in a place where there are no expert judges. This is indeed how the Rema rules (Choshen Mishpat 8:1):
“And in towns where there are no sages fit to be judges, or where all are unlearned, and they need judges to adjudicate among them so they won’t go before gentile courts, they appoint the best and wisest among them (according to the judgment of the townspeople), even though they are not fit to be judges. And once the townspeople have accepted them upon themselves, no one else can disqualify them.”
There is a well-known dispute whether such judges may also legislate their own laws (which don’t conform to Torah law, since they don’t know it) or only judge by natural equity and estimation. The Chazon Ish (Sanhedrin 15:4) writes:
“Even though there is no one among them who can judge according to the laws of the Torah and they are compelled to appoint one endowed with human moral sense, they are not permitted to adopt the laws of the nations or to legislate laws. For the judge who judges each case before him according to what appears to him is in the category of compromise, and it is not apparent that they have forsaken the fountain of living waters to hew broken cisterns. But if they agree to laws, behold they desecrate the Torah. And on this it is said: ‘which you shall set before them’—and not before laymen… And there is no difference between appearing before non-Jews and a Jew who judges by fabricated laws; and this is even more repugnant, that they replaced the laws of the Torah with vain statutes. And if the townspeople agree to this, their agreement has no substance; and if they coerce it, their judgment is robbery, and they are raising a hand against the Torah of Moses.”
The context is, of course, very contemporary. He is directing his words at the courts of the State of Israel, which adjudicate according to a foreign legal system of their own making (the Knesset); therefore one cannot legitimate their use under the rubric of the Syrian civil courts.
I will note that the Meiri there implies otherwise, for he writes:
“In the civil courts of Syria, who were not expert in Torah law, but who judged by estimation and by statutes and ordinances.”
The straightforward reading of his language suggests they could also legislate.
The debates on this are many and long; oceans of ink have already been spilled, and I will not enter into them here. I will only say that the reasoning of the Chazon Ish seems simple, for otherwise we have uprooted the entire law of “before them”—and not before laymen—which, as we have seen, is a core foundation of halakhah. See, for example, Rabbi Yaakov Ariel’s article in Techumin vol. 1 (and his ensuing debate there with Judge Bezek), among much else.
Another important reservation is raised by the Netivot HaMishpat in his Hiddushim 23:13, on the above Rema:
“This applies in a place where there are no Torah scholars, and they objected to them in order that they not go to gentile courts, as above, siman 8:1. But in a place where there are Torah scholars it is forbidden to appoint an unfit judge, and even a single individual can object.”
The permission to appoint unlearned judges is only where there are no learned judges. That indeed is the plain sense of the Gemara, and the reasoning seems simple—though on this too Judge Bezek and those of like mind disagree.
The Source of the Syrian Civil Courts — Spasst Nisht, Generation II
The problem that arises from all this is the question of the source. There is a clear and severe prohibition on appointing judges who are not ordained, and certainly those not expert in law. Suddenly there appears the concept of the “civil courts of Syria,” which seems to trample that law with no source. It appears to be mere reasoning. How can that be?
It seems to me this is the next step in the spasst nisht progression regarding lay judges. We saw that the authority of learned but unordained judges is based on spasst nisht—that it is inconceivable that a Jewish public would remain without an effective judiciary. From here the rule of shlichuteihon was born. We also saw that halakhah extends this authority to fields and times not included in the original enactment—and again by virtue of that same spasst nisht reasoning: it is unreasonable to leave important matters without the ability to adjudicate. As noted, this extension was made from reasoning alone, without a source and without permission from the ordained judges (unlike the Babylonian judges, who operated when there were ordained judges in the Land of Israel, so one could claim they received authorization from their ordained colleagues). The next step in this process is granting permission to judges who are not expert to judge in a place where there are no experts—even if they generate an alternative judicial system to halakhah.
As we saw, there is here no law based on a source, and it does not seem there was any special enactment (as shlichuteihon was enacted by the ordained). It was a given situation: in Syria there were unlearned judges, and ex post facto this entered into halakhah by virtue of spasst nisht reasoning, as above.
The Debate over the Courts of the State of Israel
As I already mentioned, there is a stormy debate surrounding recourse to the legal system of the State of Israel. This is a system operating on the basis of state law—a legal system that is not halakhah. It obviously does not recognize halakhah and is not bound by it. It is staffed by judges who are not expert in halakhah, and of course they need not be, since they are not judging by it. Finally, there are in the State of Israel plenty of judges who are expert in halakhah; but as noted, that is not the criterion for appointing state judges.
From all the above it would seem simple that there is no permission to appoint such judges or to resort to them. We have learned judges available, and even were that not so, here we are dealing with an alternative legal system and not merely judging by natural justice.
Surprisingly, the debate still rages in full force. Roughly speaking, it is a debate between halakhic decisors of various stripes (Haredi and Religious-Zionist) and religious judges (foremost among them Yaakov Bezek and Menachem Elon). The decisors almost all agree that this is a full prohibition—in other words, the state courts have the status of arka’ot (of gentiles; not the Syrian civil courts). The judges, by contrast, argue that their status is like the Syrian civil courts or like disqualified judges whom the litigants (in this case, through a decision of the public at large) have accepted upon themselves. Some also argue that the prohibition regarding arka’ot depends mainly on the identity of the judge (Jew or gentile, idolater or not) and less on the legal system he applies, among other arguments.
Without entering the debate, I will say that in my opinion the judges’ arguments are very implausible (see in the above debate of Rabbi Ariel with Judge Bezek). Their arguments almost empty of content the obligation to follow halakhah and to appoint fit judges. Therefore, at least for me, it is quite clear that it is prohibited to resort to that system, and its law is like that of gentile courts (Syrian civil courts, in a case where there is no justification and permit for appointing them, are like gentile courts; see Rabbi Ariel there).
The Practical Difficulty
The major problem is that such a situation is a dead end. There is no realistic possibility of appointing judges expert in halakhah and, of course, causing the legal system in Israel and the general Israeli public (even the Jewish segment within it) to operate according to halakhah. The alternative is to establish private halakhic courts that will adjudicate among those who so desire (usually religious people), leaving the legal arena in the hands of the secular public. That is apparently today’s situation, and therefore it is conventional that resort to the secular court is conditioned upon permission from a rabbinical court (when there is no choice)—just as halakhah requires regarding turning to gentile courts. I stress that this is the situation in the overwhelming majority of the religious public, not just the Haredi public. I mean the great majority of the Torah-oriented segment of the religious public (certainly not only the hardline Religious-Zionist camp).
I have already written here that this situation is very problematic. Torah law, in many cases, is conducted in an unreasonable and unmethodical way. There is no authority to summon witnesses; the state’s laws are unclear to the rabbinic court even where they must be taken into account. They lack enforcement authority. They rely on the authority of the state as mediators (and indeed they have the parties sign a mediation agreement before litigation). There is no uniformity in the law and therefore no legal certainty. In the Haredi public, where they ostensibly are stricter about this prohibition, private “police forces” are established (sometimes including violent measures), the courts are affiliated with various factions, and there is not much trust in their decisions (there are claims of bias in favor of in-group members), and more. It is no wonder that many Haredim, in truly significant cases, still turn to the state courts—and not always with permission from a rabbinic court. And of course this offers no solution for litigation between a religious/Haredi person and a secular person who refuses to litigate in rabbinic courts (unless permission is granted to litigate in state court in such cases—but even that greatly complicates matters and hinders that public’s access to the courts).
Furthermore, in this picture religious people ostensibly cannot serve as judges or attorneys (which, of course, is not what happens in practice; see below). Such a policy does not allow the religious public to influence the state’s legal system, and the result is that this itself pushes it in a more secular direction. Influence over a state’s legal system belongs to every citizen and every community in a democracy, and such a situation is indeed unreasonable. I have not yet mentioned the fact that in the Knesset, which legislates the laws—the mother of all impurity according to this outlook—there certainly serve religious members of Knesset who, rightly in their view, try to influence the legal system and the state’s laws as much as they can. It is illogical to permit involvement in legislation while forbidding activity under it and within its framework.
Deciding the Debate — Spasst Nisht, Generation III
From all the above, a solution seems to emerge and is called for—one that is theoretically complex but practically the simplest: permit going to state courts for any matter and without the need for prior permission. There is no obligation to resort to rabbinic courts. How can one transgress the severe prohibition to resort to arka’ot? Because of spasst nisht. It is inconceivable that a public remain without an effective legal system, and since the only option that exists in our current situation is a secular legal system, there is no choice but to recognize it and cooperate with it.
True, there are important distinctions between the situation in Talmudic Syria and our situation today. We have an alternative legal system, not merely judging by natural justice. We have learned judges available, whereas the state courts appoint judges who are not learned in halakhah—and therefore, ostensibly, there is no halakhic permit for this. But in the final analysis, there is a decisive similarity to the situation in Syria then: our only alternative, if we act according to halakhah, is the absence of a legal system. Therefore those distinctions are irrelevant. They were stated for their social context then, when it was clear that if there were learned judges one would not appoint laymen. But that is not our situation today. Most of the public today is not bound by halakhah and is not interested in its legal system. Therefore the spasst nisht reasoning exists today despite the differences.
I remind you that even in Talmudic Syria there was no real halakhic solution. They too innovated a solution due to on-the-ground constraints; therefore, clinging to what they instituted is meaningless. If anything, one should adhere to the principle that stood behind their solution—not to comparisons between the situations as such. Just as the people of Syria and the Talmudic Sages adopted a solution contrary to halakhah because of a spasst nisht consideration, so should we in our time. That is the proper continuation of the Talmudic law.
Is This a Spasst Nisht Argument?
It would seem that in our case the situation is better than a mere spasst nisht argument, for we have a Talmudic sugya to lean on: the sugya of the Syrian civil courts. If so, my recommendation is the application of a Talmudic source and not deviation from halakhah due to spasst nisht.
To this I will say three things, which are of course three sides of the same coin: (1) What did the people of Syria themselves do? They had no prior source, and certainly none from Scripture or midrash. They surely operated by a spasst nisht consideration. Therefore, at least de facto, we too may make such a consideration. (2) As I noted, in the sugya of the Syrian civil courts no source is brought for this permit. If so, they acted without a source (but by spasst nisht reasoning), and therefore their precedent is not a relevant precedent in halakhic argument. If in the Talmud they deviated from halakhah or recognized de facto such deviation, that is not a precedent that justifies our deviation from halakhah. Therefore reliance on the Syrian civil courts does not justify my conclusion; it remains a product of spasst nisht reasoning. (3) What would we do had there been no sugya about the Syrian civil courts? My claim is that we would do exactly what they did (who, as noted, made that decision without such a sugya before them). Therefore, the existence of that sugya changes nothing in essence: the permit is, at its root, based on spasst nisht.
Spasst Nisht Reasoning and Conservative Midrash
At the beginning of the column I argued that at the root of every spasst nisht argument stands a conservative midrash. In our case too, such a midrash can be presented: the prohibition of lay judges was stated in a context where there was an option of a judicial system of ordained judges; but where the only alternative is the absence of any judicial system—that prohibition was not stated. This argument is quite similar to the swimsuit argument. When there is a spasst nisht situation, the implicit claim is that even the Talmudic Sages themselves would have permitted or would not have prohibited in such a case; therefore their prohibition does not exist in this new situation.
The Prevailing Rationales
I already noted that even in the most conservative communities, people resort to the state courts—some more, some less. My claim is that all these rationales are a façade. At bottom, decisors understand there is no other option, and therefore they permit it. The fact is that statements such as that judges and attorneys cannot be counted for a minyan (from the “pearls” of Rabbi Avraham Yosef), which would ostensibly be a straightforward halakhic corollary, are dismissed with scorn by virtually all rabbis and the public—even though they have no good reason for doing so. There is a blind eye turned to the religious and Haredi community’s cooperation with the legal system. Sometimes there are zealous outbursts of one sort or another—but mainly when it is convenient. When it is truly necessary, everyone goes to court. I have noted here more than once the astonishing phenomenon that with the opening of academia’s gates to the Haredi public, I was amazed to discover that the most in-demand and popular major among them is… law. No less. Academia is treif, and therefore from time immemorial there was a severe prohibition on studying there. And once the leash was loosened, the primary and first profession permitted is the very one where there is a direct, severe halakhic prohibition—without interpretations and without agendas. How can one understand this astounding phenomenon? To me it’s clear that this turning of a blind eye (a weak and unspoken permit from most rabbis) is rooted in the understanding that we have no other option but full cooperation with the state’s legal system and laws. Everyone understands that it is spasst nisht, and the loudly proclaimed rationales are an attempt to conceal this or to avoid admitting it openly. Sometimes “the heart does not reveal to the mouth,” and the decisor is not prepared to admit it even to himself. But in some cases I suspect he knows it quite well and uses the accepted rationales or simply ignores it, so as not to state openly that halakhah contains a permit of the spasst nisht sort. As noted, this is dangerous and prone to slippery slopes.
The Authority of Community Leaders — Spasst Nisht, Generation IV
Until now we dealt with legitimizing lay judges by virtue of spasst nisht reasoning. Now I will broaden the canvas further, but in a somewhat different direction: communal enactments.
Until the tenth century, most of the Jewish people were concentrated in Babylonia, where they had central governmental and Torah institutions. Not for nothing was the understanding that the scepter from Judah had passed from the king and the Nasi in the Land of Israel to the Exilarch in Babylonia (see Column 164 on the historical accident). Around the tenth century, the Jewish people began dispersing from Babylonia to the far reaches of the earth, and a new concept appeared on the historical stage: the community. Of course there had been communities before that, but an isolated community not within a broader national framework—at least as a phenomenon—appears first then. As a result, a discussion began among the decisors about managing the community, and responsa began to be written dealing with these questions.[4]
Among other things, the question of following the majority arose. In Column 66 I discussed this question and showed that when it was presented to the decisors, they tended to decide it on the basis of the verse “After the majority to incline (acharei rabbim lehatot).” I mentioned there the debate among historians whether Judaism has pride of place in majority rule in democracy (in my opinion, not necessarily). As I showed there, the decisors are divided over following the majority in communal enactments; Rabbeinu Tam, for example, holds that unanimity is required.[5] Most decisors (the Rosh, the Rashba, and others) ruled that one follows the majority, and they rely on Scripture; this is also the ruling in the Shulchan Arukh, Yoreh De’ah §228. But in quite a few responsa of the Rishonim you will find that after they cite the verse, they add a small supplement to their reasoning beyond the verse.
Thus, for example, I brought there the responsum of the Rosh dealing with this matter (Klal 6:5), where he writes:
“And that which you asked: if two or three among the average citizens of the town can exempt themselves from the agreement that the community will enact, or from a decree of ban that they will enact about some matter. Know that concerning the business of the many the Torah said: ‘After the majority to incline.’ And in every matter on which the community agrees, one follows the majority, and the individuals must uphold all that the many agree upon for otherwise the community will never be able to agree on anything if individuals have the power to nullify their agreement. Therefore the Torah said, in every matter of public agreement: ‘After the majority to incline.’”
He does not suffice with citing the verse “After the majority to incline,” but enters into the ta’ama dikra (the rationale of the verse) and adds a practical argument: if we do not follow the majority, there is no way to reach agreements. This appears in other responsa of the Rishonim on this subject as well, and in many of them, after citing the verse, they add the argument in some formulation. The question here is: why is this addition necessary? When the Rishonim speak of following the majority in a court, they do not trouble to add rationales and explanations. There the verse suffices.
To understand this, let us return to Rabbeinu Tam’s position. As noted, he held that in communal enactments one does not follow the majority (they must be passed unanimously). How does he reconcile this with the verse “After the majority to incline”? In Column 66 I explained that the verse proves nothing here, for it deals with majority in a court whose goal is reaching truth, and the directive there is to follow the majority because generally the majority is closer to truth. But the question regarding majority in communal enactments concerns a democratic majority, which is a different kind of majority whose purpose is to reflect the opinion of the public and not to reach truth. Following the majority here derives from a different reason and is defined differently from the majority in court. Therefore Rabbeinu Tam apparently does not see a necessity to learn from the verse that one follows the majority also in communal enactments. As we have seen, even those who disagree with him apparently understand that the verse alone does not prove following the majority in communal enactments; therefore they add the rationale.
What is the meaning of this rationale? Here we return again to the spasst nisht principle. Essentially, these Rishonim say that although the verse does not prove that one must follow the majority in communal enactments, there is no way to live and function reasonably without it. It is spasst nisht not to follow the majority; therefore one must follow the majority here as well. This is the fourth expansion of the spasst nisht principle, in the domain of courts—now expanding beyond the bounds of court and halakhic law. The principle is identical in all: anarchy is not an option.
[1] Admittedly, with regard to some monetary laws there are disputes among Amoraim and decisors at the beginning of Sanhedrin, and some opinions hold one does not need a court of three ordained judges, and perhaps not even one ordained judge.
[2] I once thought that specifically regarding this extension one might suggest an intrinsic rationale—i.e., without spasst nisht. As a matter of law, conversion also requires a sacrifice (the sprinkling of blood), and that is indispensable. Yet the Gemara in Keritot 9a says that even after the Temple was destroyed and sacrifices are impossible, one may convert without a sacrifice. It bases this on the verse “for your generations,” meaning there must be a possibility to convert in every generation, even without a Temple. If one takes this reasoning further, it can be applied also to ordained judges: precisely in an era when there are no ordained judges anywhere in the world, there must be some way to convert; therefore we do so even without ordained judges. Some decisors claim the Gemara speaks only about the sacrifice; but to me that is not persuasive, and certainly Tosafot themselves don’t use that rationale but the claim that it is like a common matter. In my opinion, even that very derashah itself is based on Tosafot’s spasst nisht reasoning.
[3] It is explained there that this is an enactment for the benefit of borrowers and the needy. Although this eases matters for the lender, the more we ease for the lender, the more likely lenders will be found who agree to lend to the needy. See the socialist wars against benefits for tycoons.
[4] I have already noted here (see, for example, in the above column) that the rules of community governance are not part of halakhah (and therefore even if you find some of them in the Shulchan Arukh, they are not binding). They entered it by mistake, in my opinion, because there was no other authority—aside from the decisors—to address them. Out of inertia, anything appearing in halakhic literature is considered halakhah. In origin these questions are public-policy questions, not halakhic ones, and their domain belongs to the king (i.e., the government), not to the decisor and the court.
[5] His words are cited in the Mordekhai Bava Kamma §179, Bava Batra §480, and in Responsa Maharam of Rothenburg §230, among others. For a general survey, see Menachem Elon, Jewish Law (vol. 1, ch. 19); see also Prof. Haym Soloveitchik, Responsa as a Historical Source; and in Wikipedia, the entry “Communal Enactments.”
Discussion
Correction: “lovers of laws and rules…”
“when it fits their progressive postmodernist philosophy; otherwise they will interpret it according to their (lack of) judgment, since…”
And it should really be noted that there is no such thing as liberal values. There is only one value, that of freedom (and independence), but it is not really a value (an end) but rather a means—an instrument. It serves the attainment of other goals, whatever the goals of life and existence may be. It is indeed a necessary means (without it our actions have no meaning, because they are not really our actions), but not an end.
The description and the theory are all well and good, but I didn’t understand why you demand, both here and in column 444, to put on the table the decision to violate halakhah by force of policy considerations, or by force of the principle with the Yiddish name, or by force of the general principle of direct access to God’s will via a route that bypasses halakhah and public acceptance. As you wrote here, putting it on the table has its own harms (which are hard to assess), and from blurring the decision, as is done today, it does not seem that such great harms are created.
This is not the first time we have argued about noble lies. I oppose them, and I have explained more than once why.
It seems to me that a week or two ago you even said that you were reconsidering your position regarding lies (I think the discussion was about the Magen Avraham, who permits saying things of your own in the name of a great person).
And here the son asks:
According to the “s’past nisht” principle, which allows “direct access to God’s will via a route bypassing halakhah and public acceptance” — why do we need state courts? Let’s privatize the judicial system, and every three lawyers can judge according to their own understanding. It would also greatly improve the “quality of service”: less time, fewer procedures, and less bureaucracy…
What is good for kashrut and conversion is equally good for law 🙂
Best regards, Matan Livveh Avangarda
With God’s help, 2 Adar II 5782
Ever since a king ruled over Israel, about three thousand years ago, the king has had authority to enact laws and ordinances for the benefit of the public and to judge those who violate his directives. The king also has authority to judge offenders even beyond the Torah’s “criminal procedure,” in order to deter evildoers. Thus David judged the man who stole the poor man’s ewe lamb, saying: “The man who did this deserves to die, and he shall restore the lamb fourfold.”
And for more than two thousand five hundred years the people of Israel have also known the reality of living under the rule of kings who are not committed to the faith of the Torah. On the one hand, Jews were careful to be loyal to the king and to the “law of the kingdom”; on the other hand, they did not permit one Jew to resort, against his fellow, to “the courts of the gentiles,” and they found halakhic ways to define the boundaries—what we are commanded because of “the law of the kingdom,” and in what matters we are forbidden to obey the law of the kingdom.
So why is it דווקא when we have once again merited Jewish sovereignty in our land that we decide it “doesn’t suit us” and throw away everything that Torah law developed, which knew how to deal with every situation—times of independence and times of exile. Precisely now we should decide to throw it all away?
Thank God, there are many rabbinical courts for monetary matters that operate according to Torah law, whose rulings are recognized under the “Arbitration Law” and can be implemented and enforced even by the state judicial system. There is room to distinguish between monetary law, whose obligation is rooted in Torah law and which should be adjudicated according to the Torah, and criminal and administrative law, whose binding force derives from “the law of the kingdom,” where there is room for state courts. Even in cases where a litigant did not obey Torah law, there are situations in which a Torah court would permit turning to the civil courts, within the proper limitations.
Best regards, Ami’oz Yaron Shnitzler
True, but we are not talking about a lie that entered the literature (a terrible thing, it turns out), but about maintaining a dispensation for an emergency situation when at some point one wants to stop it, and therefore nothing is specified or clarified. And everyone senses that something is dubious and temporary; they just cannot put their finger on what exactly the explanation is.
An example of a complex attitude toward “the law of the kingdom” is shown by Mordechai the Jew. On the one hand, he is loyal to the king and reports the assassination attempt of Bigthan and Teresh. On the other hand, when the king decrees that one should bow to Haman, which has an aspect of idolatry, Mordechai refuses to obey. Mordechai also instructs Esther to come before the king “not according to the law” for the sake of saving the lives of the people of Israel. He “set limits” to the law of the kingdom.
Best regards, see there
What is being discussed here is the judicial system in its routine activity of criminal law, contracts, and the like. That is apparently 99 percent of the activity of the judicial system, and your criticism does not touch that area.
In the response “What has been renewed in our generation?”, paragraph 1, line 3
…beyond the Torah’s “criminal procedure” in order to deter…
There, paragraph 4, line 4
…whose binding force derives from “the law of the kingdom,” where there is room…
I thought about it more clearly. A noble lie that masquerades as plain truth is indeed destructive to all the genuinely plain truths that depend on tradition, because the tradition is thereby undermined, as you say. But preserving ambiguity in a limited number of subjects does not endanger the other, unambiguous matters, because people know that in the corner there are a few classified topics, and nothing terrible happens. A lie that masquerades is one thing; a lie that is embarrassed is another.
The possibility of flexibility, whether in enactments or in the quality of the court, also stems from the acceptance of the litigants or of the public, as we find in the Talmud that “the townspeople are authorized to regulate their measures,” and even members of a trade may enact ordinances that bind them all.
However, there are limits here too, as they said there in the Gemara: in a place where there is an “important person,” a Torah scholar, the ordinance is not valid without his consent. And thus the Rashba says in a responsum that one cannot adopt the laws of the gentiles wholesale, for if we do so—why did we receive the Torah? Therefore, each ordinance must be examined on its own merits—whether there is a genuine public need for it—but there is no place for a wholesale casting off of Torah law.
Best regards, see there
Of course it does touch it. The moment justice is not important but only the law (in the way convenient for them), it reaches everywhere—certainly criminal law. Just yesterday I read that they convicted someone of “solicitation to defamation.” They simply invented a criminal offense. Ostensibly this is justice and not just law. Except of course that it was someone on the right. That is, selective conviction and the retroactive invention of offenses. When there is no justice, there is nothing anywhere. And it will reach contract law too. When the judge’s ego is at work, he will want to invent and innovate things even if they contradict the simple sense of justice. (And what will stop him? He is not even aware of it. Therefore even if they appoint a right-wing judge—who is not a judicial conservative—it will not help, because the moment he receives power and rule, he will want more of it, as we see in the ridiculous accumulation thesis that a bloc judge approved.)
A1. I saw that roughly hundreds of thousands of cases are opened each year. Presumably only a handful of them involve legal “innovations,” and the rest deal with simple cases in which the judge’s personality and the whole set of his biases have almost no significant effect. People go to the judicial system for those cases; explosive subjects like dealing with politicians and burdening legislation, etc., make a lot of noise, but they are a crumb of the system’s work. There are arguments about “justice” in quite a few cases; in most ordinary cases everyone agrees about everything. You answer this with a kind of claim that if at the top of the system there are severe problems in “important” cases, then the whole thing should be scrapped because the problem will seep down or is already seeping down, and that is not a serious answer.
A2. The story of solicitation to defamation does not seem relevant to me, because it too is within the small and noisy circle of exceptional cases. On the merits, I only read a short item, and to me it seems completely justified. It was about someone who sent masses of people to spread false allegations about a business—that it was awful on the business level (reviews like “disgusting food” and a low rating, without the reviewers having any acquaintance at all with the place)—because of sharp political criticism of the owner’s positions. In my view, that is like any other solicitation to any other offense.
B. The accumulation thesis says that perhaps for act A one does not impose punishment, but if there are 30 such acts then one does. Because a little creaking can be tolerated, but if there is too much, then the damage being caused is excessive and the danger for the future is excessive. Obviously there are considerations both ways, and when you latch onto one side and flare up that the other side is ridiculous, that flaring is worthless. On the one hand, accumulation really is a problem, without any doubt, just as every person in his private life judges people according to accumulation. On the other hand, a vague offense is problematic in terms of legal certainty and the stability of the system. Obviously, if it were possible to provide sharp laws that would precisely cover everything one wants to prevent, that would be preferable. But they are not succeeding in finding such laws. Should one therefore abandon the whole matter? That is certainly not a simple decision. This is not the only vague area, and the vagueness cannot be eliminated completely. (And it can also be partially solved, for example, by requiring a very significant accumulation and not something in a gray area.)
To T.G. — greetings,
A well-known example of the “accumulation thesis” is the story of two officers who committed a similar offense. One suggested to the other: since we are both officers, we can judge each other.
So they said, and so they did. Officer A stood before Officer B and confessed his sin. Officer B sentenced him to a reprimand. Then they switched roles. Officer B stood before Officer A and told of his sin. And the “judge” sentenced him to seven days’ confinement.
Officer A wondered: “Didn’t we both commit the same offense? Why did you get a reprimand and I confinement?” Officer B answered with a highly responsible expression: “In your case this is already the second time this offense has been committed in the unit, and for that a severe and deterrent punishment is warranted!”
Best regards, The Judge of Justice
True, I was referring to the accumulation of many small offenses in one person, but even in the case you presented—where in a chronic problem involving different people, one of the tools to consider is harsher punishment—it seems to me that this is an idea that exists and is built into every penal system.
Here is an example of the accumulation of small offenses. If a minister bends one tender a little in favor of a contractor he trusts, that is one thing, and perhaps it does not justify mandatory dismissal, and it is also possible that there are various explanations for the act. But if he does this in dozens of tenders, that is already a serious problem, as described here https://did.li/SupremeCourtAccumulation. To say that accumulation is nothing and that’s that—that is a strange statement.
I always wondered how great Torah scholars, who are meticulous about every dust-speck of transgression, can violate an explicit prohibition concerning gentile courts.
The conclusion I reached is that indeed every community relies more on its own courts to judge justly, but the moment you are in a dispute with someone from another community, it turns out that the world is a cruel jungle.
So after paying lip service about rabbit-fuckers and menstruant-eaters, in the test of results for most of us the Israeli courts are the second-best option in reliability and fairness.
That is why the dispute at the Ponevezh yeshiva was brought by our great rabbis before the court, after they were unable to find a Torah authority that would decide between them.
With God’s help, 3 Adar II 5782
To T.G. — greetings,
Clearly, an offense that is repeated again and again will be judged more severely than a “one-time stumble.” That too is the attribute of the Holy One, blessed be He, who “lets the first transgression pass first.”
However, the “accumulation thesis” says more than that. According to this “thesis,” the same act, when done a small number of times, is not defined at all as a criminal act, but when it is done many times—it becomes “criminal.”
And against this Justice Elron warned (in the minority opinion in the judgment you linked to) that the “accumulation thesis” is contrary to the “principle of legality,” according to which a person may not be convicted of an offense unless there is a clear legal provision against what he did—so that at the time of the act the person should have known that what he did was considered an offense.
According to the “accumulation thesis,” a person cannot know at the time of the act whether it is criminal or not, because the definition is vague. It will become clear only in the future, if he repeats it several times, and there is no clear definition of how much is “a lot” and how much is “a little.” And if some judge reaches the conclusion that he has “passed the critical mass,” only then will the man be defined retroactively as an “offender.” And who is prophet enough to know what the intuition of the judge who sits in judgment over him will decide?
The “accumulation thesis” is similar to the “Aprofim doctrine,” through which Justice Barak distorted contract law. It is not the wording of the contract that binds, but all kinds of retroactive assessments according to which the judge decides that presumably this was the signers’ intention, that “with this in mind” they did not agree. As a result of the Aprofim doctrine, even the most skilled lawyer cannot explain to the signers of a contract what it means, because who is prophet enough to know what implied conditions and intentions the judge will retroactively read into it.
And in accordance with that same method, in which everything can be interpreted retroactively according to the judge’s discretion—even a law is not a law, and an administrative decision has no value until it is examined retroactively by the tests of reasonableness and proportionality and “past nisht,” which will be determined retroactively by “the judge who will be in those days.”
If, at least, the president of the Supreme Court would give a weekly class in “Musayoff” or in “Yazdim,” answering citizens’ questions before every contract and every act as to whether it is “legal” or not—then perhaps one could somehow conduct a reasonable life. But when the judge is “shut up in the ivory tower,” and only after years of litigation does a person learn the meaning of his act or his contract—then the person and the public are in total uncertainty and cannot know in advance either their rights or their obligations.
In contrast to this constant uncertainty, the Torah commanded, “And these are the ordinances that you shall set before them,” as the Or HaChaim explains, “before each and every one,” so that each person should know his rights and obligations and not need a court to teach them to him retroactively. In such a situation, the master and his servant know that at the end of six years he must be released, and so on.
And thus Justice Moshe Silberg explained in his book Such Is the Way of the Talmud the precision of “up to fifty cubits belongs to the owner of the dovecote,” rather than “according to the judge’s discretion” in each case on its own merits. For Jewish law is intended so that every single person will know his obligations toward his fellow without constantly resorting to judicial proceedings, and therefore halakhah strives for definitions that will be clear to everyone, both to the farmer and to the simple laborer.
Best regards, Ami’oz Yaron Shnitzler
A.1 Certainly. The head radiates onto the body. There is also the matter of looking ahead to where reality is going, and not only what the situation is today. If you had asked me three years ago, my opinion would have been like Rabbi Michi’s (just as there is still a principled way in which I agree—not with this whole “s’past nisht” principle, but that if I clearly feel that something is right and it is not clear to me—even after thorough clarification—whether the Torah prohibited it or not, then I follow intuition). But my opinion keeps changing over time. The amount of injustice at the top keeps growing and is starting to seep down into the body little by little. Even simple cases in the future will become more and more complicated. The moment there is rot, it spreads—certainly if it is at the core.
A.2 Not justified at all. With all due respect, not everything that is unjust belongs in court. It was not established as an offense in law (I checked the law in broad outline), and therefore that means the public decided that this is something God will judge about, or people will deal with privately, even if it is unjust. And there is a reason for that. People need to know, before they commit a criminal offense, that it is one. And that is not exactly the situation with us. In general, because of this defamation law (together with Human Dignity and Liberty), there are thousands of absurd lawsuits and distorted rulings. This is the law most often used to silence people on the right. When people on the left use it, then it is under the rubric of “freedom of expression.” The court’s intervention here is itself an injustice, even if this act is unjust (because this has no limit). In the first place, the law should have been reserved for clear falsehoods and not for labels like Nazis and the like; and if things of that sort were included in the law, the judges should stick to that.
B. There are no considerations at all; it is simply corruption by the courts, who decided on their own who is violating the public’s trust and who is not. In the first place, breach of trust is an undefined offense, because the public should decide whether someone violated its trust, not some external dictator who was not elected. So now, in their brazenness, they arrogate to themselves powers to say that someone is simply unfit (has violated the public trust) because he does not please them? Of course the court must not intervene. It is not theirs in the first place, so there is nothing for them to “not give up.” It is the public’s role to decide. The public is the one that is supposed to decide on its values and its justice, and a judge who does not identify with the public’s sense of justice may not be a judge at all (and should not even live among such a public at all). Wherever there is ambiguity, there is innocence from a legal standpoint. And the public will weigh things in its mind and decide. There is no such thing as accumulation unless it is legislated as a defined number of times, and even then it is an unjust law. Because breach of public trust ought to belong solely to the decision of the public or its elected representatives.
Rabbi Michi,
In my humble opinion this is not a s’past nisht consideration. The social situation in Haredi society, and also in the Hardal one (though less so), if they do not go to court, is like the Ramban’s description of Shechem. That is, it is a complete and total lack of a judicial system. One cannot run a judicial system by halves and thirds (of course, if we are speaking of a limited dispute between two sides—for example without witnesses, and there is an option of turning to rabbinical courts—it is a mitzvah and an obligation to do so, but it is enough that they need something that departs by a millimeter and there is no enforcement authority, etc.).
To Ami’oz — greetings 🙂
A. Clearly the accumulation thesis has problems in every field in which it is applied. The point is that ignoring accumulation also has problems. People make decisions all the time according to the accumulation thesis on every subject in the world, and that is the most logical and common way in the world to form impressions and make decisions. Therefore, anyone who wants to argue against the accumulation thesis (like the Magistrate’s Court, whose ruling I did not read) has to compare it with the alternative, and not only examine “essentially” (I hate that word) whether the accumulation thesis has problems or not. Or else, if the legislator thinks he is capable, let him speak up at the proper level.
B. Aside from the number of statutes, vague “basket offenses” and definitions that leave “a lot” to the judge’s discretion are problematic—do you support that? Both Elron and Wilner referred to some article in Mishpatim https://lawjournal.huji.ac.il/sites/default/files/2018-02/mishpatim-44-2-569_0.pdf, and perhaps after I read it I will understand more.
A1. When the state tsunami arrives and floods the courts, we’ll talk.
A2. There is indeed a problem in expanding judicial discretion in a situation where public trust in the courts is low as a result of judicial biases (or counter-biases among a substantial part of the public). And I was also surprised to see that this aspect did not appear in the appellate ruling on Nisso Shaham (perhaps it did appear in the lower-court rulings). But that is a separate sub-discussion from the basic discussion of the accumulation thesis in the offense of breach of trust.
B. Breach of public trust by elected officials is a separate matter unto itself. Nisso Shaham, for example, is not an elected official but merely an officer (who took a significant part in the disengagement, apropos right and left, by the way).
What about the law of the king, as the Ran spoke of in his derashot?
With God’s help, eve of Shabbat Kodesh, “And they shall take for Me an offering,” 5782
It seems that the author of the post is mistaken in seeing the role of “s’past nisht” as one of trimming halakhah—as in the examples he proposed: lowering the Torah level of the court and permitting dealing in images.
The feeling of “s’past nisht” is meant for the opposite purpose: to strengthen and expand the “line of the law,” to do not only “What is my duty, and I shall do it,” but to be careful to do “that which is right and good in the eyes of the Lord your God,” to conduct oneself with decency and good character traits, and to be careful to act “beyond the letter of the law.”
Here there is much room for a person’s feeling, which demands that one act not only “by the book,” but with a “nobility that obligates,” doing “above and beyond” in order to find favor and good sense in the eyes of God and man. For the sake of this enhancement, “s’past nisht” was created.
And perhaps that is why on Shabbat the kugel made from pasta symbolizes it 🙂 so that we may learn to be careful not only about what is obligatory but also about what “fits,” what is beautiful and appropriate for princes.
With the blessing of a “pleasant Shabbat,” Ami’oz Yaron Shnitzler
I didn’t understand the question. Is it addressed to me? The law of the king is the granddaddy of granddaddies of s’past nisht. Here it is already explicit in Hazal themselves (“were it not for fear of it…”)
You are repeating exactly what I write. That is precisely the reasoning of s’past nisht that I described. So why does it not seem to you like a s’past nisht consideration? I am astonished!
A.1 It is not a tsunami. It seeps in slowly, and without your noticing you are already sunk in it up to your neck. Like the frog that slowly boils in a pot of water and does not notice until it is too late. That is exactly what happened with Aharon Barak’s activist revolution and rule by bureaucrats.
B. A bureaucrat cannot violate the public’s trust. He violates the trust of whoever appointed him, and that is the elected official. If the bureaucrat harmed the public and the one who appointed him does not fire him, then the elected official is the one who violated the public trust. And he should be thrown out in elections. In short, such an offense cannot exist in the statute book.
Just now they pointed me on WhatsApp to this piece, which deals exactly with the point under dispute between us: https://www.facebook.com/elli.fischer/posts/10111063555178588?__cft__%5B0%5D=AZV_58e6dGhDs-9IryHYYrprZQfP3LkX1mlD0yeqFMqCZgHlWZ6mHpSF8p1WA1uZ0-9LnHN75hIp9b824QMRfiiJ8Xs3u3QN2IftP_XaVy-z3PehXJdEqC2jMIv010hALcINhb8Jo9lNk0sE1Z1mse9uExWLLXDk9uax_-9B3oDiR-h-5U-y5tZfWerUIOWl8RibESOAJz85KFnW91coXXkD&__tn__=%2CO%2CP-y-R
Although my sentiment was persuaded by your words, on the consequentialist level, when there is a qualified lie (one invents an alternative temporary rationale or nods along with guidance without grounding it in halakhic give-and-take) that does not poison halakhah itself as a reliable body of knowledge, then using it is beneficial for the sake of “preserving a group that is devoted to halakhah,” and perhaps even a double doubt of public pikuach nefesh, if we apply your description that a sufficiently similar concern can temporarily postpone actions. I understand that you are arguing both consequentially—that it is harmful and will be harmful—and also in principle, that lying is so repugnant that only in the face of a ticking bomb is it permissible to pull it out.
With God’s help, 6 Adar II 5782
Avraham Krinitzi, of blessed memory, who was mayor of Ramat Gan, heard from Rabbi Abraham Isaac Kook a parable about an old man who fell ill and forgot the alphabet. They seated him in a heder with small children so that he could relearn the aleph-bet. The old man began to play and romp like a child with his “classmates in the heder.” The teacher remarked to him: true, you are among children in order to learn the aleph-bet, but do not forget that you are a grown man and not a little child.
And thus Rav Kook said: In its exile, the people of Israel forgot how to run a state, and this it must relearn from the nations of the world, who know the nature of governmental order and state leadership—things that were forgotten by us in exile. But in matters of faith and values, let us not forget that we are the oldest people, the one that bequeathed to the whole world faith and values, and we should not be ashamed of our Torah before all the newly arising values.
And so too regarding the general courts. We have something to learn from them in matters of order and external form: that the court should look dignified, that a proper protocol should be kept, and that judgments should be formulated clearly and with reasoning. But in content—we have a Torah deep and broad as the sea, bequeathed to us by generations of prophets and sages, upright and pious men. Let us serve the old wine in magnificent vessels, but let us not exchange it for “broken cisterns that can hold no water.”
Best regards, see there
With God’s help, 6 Adar II 5782
There is a profound difference between Rabbi Asher Weiss’s ruling, which forbids dealing in any way, for better or worse, with the “Reform plaza,” because entering there even in order to protest gives them importance and “attention.” This is a provocation by the Reform movement. They want us to protest so that there will be “noise and commotion,” and thus they will show the whole world how strong they are and how firm their hold there is. Our protest increases the Reform movement’s “rating.”
But Rabbi Eliezer Melamed already goes beyond that. He demands not only that we refrain from protesting, but that we grant them recognition as having a legitimate right to maintain, next to the remnant of our Temple, a Reform “temple.” Moreover, Rabbi Melamed argues that the rabbi of the Western Wall is also obligated to provide Torah scrolls to the Reform “temple”! There is no precedent for the demand that there be rabbinic recognition of them.
When in the 1950s they sought to establish a branch of Hebrew Union College, a Reform synagogue, the chief rabbis, Rabbis Herzog and Nissim, opposed the establishment of the temple and called on the leaders of the state not to lend a hand to it (and indeed President Yitzhak Ben-Zvi refrained from attending the opening of the Reform sanctuary). Is it conceivable that any of the great Torah leaders of Israel would have supported recognition and assistance in establishing a Reform place of worship next to the site of our Temple?
Best regards, Ami’oz Yaron Shnitzler
Ami’oz, we do not have Rabbi Weiss’s responsum before us, but if you are proposing an explanation for Rabbi Weiss’s ruling that does not appear in the responsum, then do you agree that it is fine to publish reasons that are not sufficient? (If the ordinary halakhic reasons are sufficient, then there is no need to resort to other considerations.)
Perhaps this connects to the difference with an academic approach, which sometimes seeks hidden reasons for halakhot that depend on the period and on events. One cannot on the one hand reject explanations via extra-halakhic reasons and on the other hand publish halakhic rulings whose reasons are precisely those.
With God’s help, 6 Adar II 5782
To T.G. — greetings,
The reasoning to refrain from protesting against the Reform movement so as not to give them ratings is not necessarily a clear and agreed-upon halakhic fence. Many will not accept it and will argue that one must protest with all force even though the Reform movement also benefits from it, since the duty to protest is for them a central value.
By contrast, the prohibition against entering a Reform place of worship is a distinctly halakhic fence, which even those who see themselves as “zealots for the word of God” regard as a binding halakhic prohibition. So using this argument is not only correct but also persuasive to those whom the decisor seeks to persuade.
The prohibition against entering a Reform “temple” was not invented ad hoc in order to prevent entering there for a protest. Even to pray or study there, or to take shelter from pouring rain and the like—Rabbi Asher Weiss would forbid it, and the matter is grounded in the words of the decisors, and is familiar and well known.
Best regards, see there
1. In your proposal to abolish the prohibition of going to gentile courts, and in this you do what the great Tannaim did, there is some difficulty. [Admittedly not too great, but it doesn’t go down smoothly.]
2. They did not have a rabbinical court; they had gentile courts, and they chose a third alternative of sevara. You are choosing the gentile courts. That is not what the Tannaim did.
If you were proposing a third way of establishing a system that would judge by sevara, I would be silent.
3. In Syria they had no rabbinical court; we do. Even if it has shortcomings, it exists, clarifies matters, decides disputes, and charts a path according to the Torah. There are judicial panels that do not have the deficiencies Nadav Shnerb wrote about.
Because of these three points, it seems that there is a great difference between the dispensation of gentile courts in Syria and your proposal to go to the secular court.
This is not a “noble lie.” Unlike some of the examples you brought, such as asking a gentile to do forbidden labor on Shabbat and the like, there is no real advantage to the secular legal system, apart from the great power it currently has. It is even rather problematic: by its nature it does not strive for true judgment, with all kinds of alternative pleas and the closing of small cases without any real discussion. On the other hand, it is easy and simple because it is the default option. In my view, there is no problem at all in running a state judicial system according to the spirit of the Torah, with enactments according to need and circumstance. Every time one struggles against a default option, it is more complicated and requires being principled and not giving in, and being a bit annoying in order to break the ice, because otherwise everyone will simply go with whatever is easiest. And if we are dealing with a “conservative midrash,” it seems to me simply easier to insist on this prohibition even nowadays than not to insist on it at all, because the possibility of establishing a state judicial system according to the spirit of the Torah is very reasonable nowadays.
The principle in all of them is identical: anarchy is not an option—
Why, what is wrong with anarchy?
On the contrary, anarchy is excellent. For the strong and the violent.
I read both posts about the matter of s’past nisht, but it did not come out clear to me what the definition is of when we say it and when not. It can’t be that everything that is hard for me I simply won’t do.
This is a classic attack on the claim that in some system there is an element that is hard to define formally. “Everyone will just do whatever he feels like.”
So no, not everyone will just do whatever he feels like. Everyone will do what seems right to him, at least in extreme circumstances. That is also the idea of a transgression for the sake of Heaven.
The childish notion that one can define everything in order to prevent anarchy is a double mistake: it is not true that one can and should define everything, and it is also not true that without a definition one necessarily arrives at anarchy.
It seems to me that there is further proof for your words from the Gemara in Sanhedrin 74, from the sugya of the three cardinal sins. The Gemara asks, “And murder itself, from where do we know it?” “It is sevara: who says your blood is redder? Perhaps that man’s blood is redder.” And Tosafot explains that it depends on whether he acted with his own hands or not—if with his own hands, he must give up his life, and if not, he need not. Seemingly there is proof from here that when there is a sevara that cannot be rejected because it is clear, to obligate or exempt, the halakhah follows it even though it is only sevara, and even in capital law.
I didn’t understand what you meant to prove from this. That halakhah is ruled on the basis of sevarot? The Gemara already did that, and Tosafot after it as well.
This whole law, that one must sacrifice his life so that someone else will not die, is just a sevara, because it is not logical that so-and-so should kill so-and-so so that he himself should not die. So there is your proof that the sages prohibited something because it is not logical [with no scriptural source at all, and even contrary to the verse, for it is written “and he shall live by them”]. And not only did they prohibit; they even permitted [also with no source in the Torah], as Tosafot explains, that if he did not act with his own hands he need not sacrifice his life. Seemingly the whole discussion here is by the law of “s’past nisht.”
I would not classify this as a past-nisht argument. It is substantive reasoning. Past nisht is a statement that expresses a raw intuition (“you just don’t do such things”). But of course this is mainly a semantic matter.
How is this different from gentile courts? After all, you wrote: “From all the above, it seems to me that there emerges, and is called for, a solution that is complex on the theoretical plane but simplest on the practical plane. One should permit going to court on any matter and without any need to obtain permission. There is no obligation at all to resort to rabbinical courts. How can one violate the severe prohibition of resorting to gentile courts? Because of s’past nisht. It cannot be that a public should remain without an effective judicial system, and since the only option that exists in our current situation is a secular judicial system, there is no alternative but to recognize it and cooperate with it.” Here too, in our sugya, one cannot allow a person to murder for his own sake; so let him die. Seemingly the two are one and the same.
The similarity is only formal. First, my claim is that resorting to gentile courts is prohibited, but there is no choice except to violate that prohibition. By contrast, “let him be killed rather than transgress” is not a prohibition; that is the halakhah itself. Second, there is a difference between substantive reasoning on the merits and a statement of past nisht. “It is forbidden to enjoy this world without a blessing” is not a past-nisht halakhah. But this discussion is unnecessary.
A. In Sanhedrin too, initially this is forbidden because it is written “and he shall live by them,” but there is no choice because it is not logical to let a person live by murdering another, and that itself is substantive reasoning and that itself is past nisht.
B. Regarding a blessing, here too by Torah law it is permitted to eat, but how can one be an ingrate? [as explained at the end of your first book regarding why we are obligated to worship God]
C. Why is it unnecessary? It helps me understand your principle.
It is unnecessary because you call every piece of reasoning past nisht, whereas I mean only a very particular kind. But that is semantics. What do I care about labels?!
The discussion is beside the point, because reality shows that the courts in Israel are simply haters of the people of Israel, and judges of falsehood and wickedness (not only the High Court; representative examples can be given). This is not accidental. There is a connection between their lack of fear of God and their being progressives (and hence their anti-nationalism), lovers of laws and rules, such that justice is not what guides them but rather the law (when it fits their progressive postmodernist philosophy; otherwise they will interpret it as they see fit, since in any case it has no objective interpretation according to their postmodernist religion).
Although I grew up in the liberal camp (and I still believe in its values), reality shows that it lacks loyalty both to the people and to justice. Progressivism grew out of it (similar to the way postmodernism grew out of modernism), and it also capitulates to it and is not loyal to the people of Israel. One can see how Naftali Bennett adopted all the language of the left, and how he is trying to curry favor with the people at Haaretz (!)
Rabbi Michi too went down the same path when, during the riots, without noticing, he still gave some shred of justification to the rioters (he spoke of stick and carrot, and under the carrot he mentioned “equality.” Yes, as though until now this collection of barbaric human beasts had not already received many times more than their contribution to the public purse, plus affirmative action (which Rabbi Michi supports), at the expense of Jews).
So the discussion has no practical significance. The courts in Israel are falsehood, and there will be no justice in them. As a former Supreme Court justice told Katsav’s brother, there is no justice in court (just as there is no truth there). There it is only the name of a star. There is only law there.