On Ritual Baths: Between Jewish Law and Civil Law (Column 12)
With God's help
In recent days the High Court of Justice decided that the presence of female attendants may not be compelled when women immerse in the ritual bath. The expected protests, of course, duly arrived, and once again the claims are being raised that this is a professional matter of Jewish law and the High Court has no right to intervene in it. This question can be discussed on the level of Jewish law (see, for example, here), and also on the legal level (can the High Court really not intervene in Jewish-law decisions? Hint: of course it can, and should). But it seems that the more principled level in this discussion is the public one.
On Law and Jewish Law
To tell the truth, I find it hard to understand what there is to discuss here at all. A legal requirement to immerse only in the presence of an attendant seems to me like a law requiring people to play on basketball courts while strictly observing the three-second rule (standing without the ball in the key). I want to play on the basketball court of the school where I study without observing every last rule of the basketball association. Mark this well: not because that rule does not exist or is not correct. It does exist (and rightly so; blessed be the hand that legislated it). But simply because I feel like it. The court is a public resource, and it is inconceivable that the law should forbid personal and harmless use of the court or of the ritual bath for irrelevant reasons rooted in worldview. Alternatively, perhaps it is more like forbidding socialists or people who speak slanderously (not that the two are comparable, of course, since slander is almost legitimate) from playing basketball on that court.
Take, for example, the prohibition on Women of the Wall praying at the Wall with tefillin or reading from the Torah. There too we are dealing with an obviously unjustified coercion of a certain form of behavior upon people who want to make entirely legitimate and obviously harmless use of a public resource (the Western Wall plaza). It is important to understand that the case of the Wall is somewhat different from the issue of ritual baths, because there at least a claim is advanced (though unreasonable in my view) that this harms the worshippers’ feelings. As far as I am concerned, those dear worshippers can take a pill, put a blindfold on, and bury their noses in their handkerchiefs if it bothers them, but at least the coercion there rests on some sort of argument, however failed. The same applies to going up to the Temple Mount, which offends the sensibilities of the poor Arabs, God bless them. There too the coercion rests on a similar (and similarly failed) argument. But what about immersion in the ritual bath without an attendant? I would be happy to hear some argument, even an unjustified one, in whose name women are forbidden to immerse in the ritual bath without the presence of an attendant. So far I have not encountered one. The only argument is that Jewish law forbids it (and that too is mistaken, as we shall immediately see). But that is not an argument that holds water on the legal plane. Notice: it is not a mistaken argument; it is no argument at all. It is like someone saying that it makes his house cat uncomfortable.
Why is there no argument here?
In the style of Ephraim Kishon, may he rest in peace (yet another ardent devotee of the Chief Rabbinate), an ordinary taxpayer comes along and wants to use the public resource known, in the local vernacular, as a ritual bath. This resource was built and is maintained with public money, and it stands at the disposal of the entire taxpaying public. True, it is entrusted to people in black robes and to a woman in a headscarf, but the resource was not given into their ownership, only into their management. The manner of its administration is determined by the owner of the resource, namely the government as representative of the broader public. And behold, the governmental institutions (that is, the Chief Rabbinate, which is appointed by the government) forbid him to do this in his own way, even though this causes no harm whatsoever to anyone (not even to himself), and all this under cover of secular Israeli law. And when the court comes and does what it is obligated to do, the worthies astride their white asses, who see the ritual bath as their private property (apparently they acquired it by right of conquest), rise up in indignation.
Such a situation is simply inconceivable, and that on three main levels:
First, there is no prohibition here at all. Above I referred to the article by the Lau couple, who show that Jewish law does not require the presence of an attendant, but at most the presence of another woman who can verify that nothing remained outside the water.
Second, even if immersion without an attendant were of no effect whatsoever (that is, the woman immersing would remain in her state of ritual impurity), what prohibition is there in an immersion that does not work? (At most she is she immerses to cool herself off (immersing pointlessly), in the language of the Talmud.) As a sovereign citizen of this state, I want to immerse in the ritual bath in a way that will not purify me. How can that be forbidden to me? As of now, there is no prohibition in the State of Israel against being impure, and certainly if you are impure there is no legal obligation to become pure (nor, incidentally, a Jewish-law obligation). What legal justification is there for forbidding me to perform acts that are ineffective from the standpoint of Jewish law in public resources? Tomorrow morning they will forbid me to give a woman a public piece of paper that happens to be a bill of divorce written when he heard the sound of scribes reading (when one merely heard scribes reciting sample formulas; see Mishnah Gittin 24), or alternatively to take a public palm frond, myrtle, and citron with one willow branch (instead of two). Go and think about it: is it forbidden to use sports facilities in public gardens in a way that does not contribute to physical fitness? The present case is literally identical.
Third, even if there were a severe Jewish-law prohibition here, I do not see how this could be forbidden within the framework of the secular law of our democratic state. Is there a claim here that this harms the public character? A private person wants to immerse pointlessly in the ritual bath and not be purified. Why is that the public’s concern? By the same logic, they could forbid Sabbath violators from entering the ritual bath, or in fact from walking in the street (the street is a public resource). Indeed, it would be fitting, on that view, to forbid them to breathe (for they are liable to death by stoning).
Incidentally, the same applies to the immersion of unmarried women, of course. I do not understand how one can forbid unmarried women to use this public resource as they wish. By what right does any attendant or rabbi take for himself the authority and control over this public resource? To the best of my judgment, this is grounds for a police complaint over the takeover of public property and violence against citizens who are making legitimate use of it. It seems to me that this is all the High Court of Justice said, and it said it well.
Jewish and Democratic
True, I am sure all of you are as tired as I am of hearing this battered, nagging, and fairly empty phrase, but there is almost no avoiding it in the present case. I, despite being an observant Jew committed to Jewish law, strongly oppose obnoxious laws of this sort even if they had a basis in Jewish law (and as noted, in our case there is no such basis). This is not because I think there is no Jewish-law obligation for an attendant to be present at the immersion (though, as I explained, that is indeed my view). The fundamental reason is that, happily, I am a citizen of a democratic state (or so it usually appears), and as long as there is breath in my nostrils I will try to ensure that this remains the case. In a democratic state, it is intolerable to forbid certain people from performing harmless acts in public resources.
Back to Complex Thinking
Can a person committed to Jewish law act on behalf of democracy when this conflicts with Jewish law (though, as noted, that is not the case here)? My answer, surprisingly enough, is yes. So long as the public has not decided on a state governed by Jewish law that will coerce people not to violate prohibitions, it is very important to preserve democracy and freedom. This should be an interest, and even a value, for all of us, religious and non-religious alike. For that reason I will fight for the right of Jews to violate the Sabbath, to live as homosexuals, and to eat non-kosher food, because a democratic state is not supposed to limit the freedom of its citizens to act and live as they see fit.
This brings us back to the first column about the soldier who fired, where I dealt with complex thinking. One can obligate a certain act or mode of conduct from one side and oppose it and criticize it from another. Even if I wanted all the citizens of the state to behave in a certain way from the religious side of my worldview, I can oppose coercion toward such behavior from the democratic-civic side of my outlook. Moreover, this is not even contingent on the claim that Jewish law does not require coercion in such situations. Even if Jewish law did require coercion with regard to the commandments in this particular circumstance, my democratic values would oppose it, and at most this would create within me a conflict between Jewish law and morality. The question of how to decide such a conflict is quite complicated (and by no means unequivocally in favor of Jewish law), but the very existence of such a conflict certainly does not imply any contradiction to full commitment to Jewish law.
The overused example I usually employ is a dispute over eating chocolate. Reuven argues that one should not eat chocolate because it is fattening. Shimon, by contrast, maintains that one should eat it because it is tasty. Levi, however, thinks that it is both tasty and fattening, and ultimately decides not to eat it. Does that mean that Levi is not committed to the hedonistic principle (maximizing pleasure)? Certainly not. He is committed to hedonism, but equally to health. In the overall balance, he chooses health at the expense of pleasure. The same is true of Judah, who would decide the other way (to eat the chocolate).
Even someone who upholds the prohibition on murder and the right to live finds himself in a dilemma when his life is under threat. Should he preserve his right to life at the cost of murdering the attacker, or preserve the value of You shall not murder (“do not murder”) at the cost of his own right to life? Does someone who hesitates in such a situation thereby prove disloyalty to one of the two horns of the dilemma? The existence of a dilemma does not contradict commitment to both of its horns. On the contrary: only someone committed to both horns can find himself in a dilemma. Therefore, tension between the Jewish and the democratic does not contradict commitment to Judaism (for the attention of religious readers), nor to democracy (for the attention of secular readers). On the contrary, the tension and the dilemma prove commitment to both sides. As stated, the question of how to decide such a dilemma is a complicated one, but it is not related to our discussion here.
So much for the plane of values (democracy as a value). But there are also practical considerations (democracy as a need), and it is very important to distinguish these from the former. What will those rabbis and attendants say when there is a coalition less convenient for their own camp, and the government or the court forbids holding prayers in the public resource called a synagogue—or in fact forbids prayer altogether, since quite a few people regard such acts as obviously useless (I will not reveal my own view on this here. You will have to remain in suspense). See Eretz Nehederet, ‘the secular chief military rabbi.’
Women’s Singing and Their Livelihood
But if you thought all this was just the craziness of religious people, you were mistaken. These things go in other directions as well. For example, I simply cannot explain to myself how state institutions (the army) compel uniformed taxpayers to listen to women singing against the dictates of their conscience. I, although I do not think there is any Jewish-law prohibition here, would refuse such an order because of my devotion to freedom and democracy. Such an order is patently illegal, exactly like the coercion in the case of ritual baths or Women of the Wall. If someone does not want to hear a woman sing, as his own personal decision and without harming anyone, the army cannot force him to do so against his will. To hear all the liberals enthusiastically and self-righteously siding with this in their whiny fashion (as is their way) is simply ridiculous (as is their way).
And what about someone who does not want to hear Mizrahi music? That too is a basic right of mine: to determine my musical taste and act accordingly. In both of these cases—women’s singing and Mizrahi music—there is no justification for forcing a person to act against his will when the conduct he prefers harms no one.
Here, however, one might raise the claim that this is harmful after all. If we permit it, this will deprive women who choose a career as singers (for they will not be invited if part of the public will not attend the performance), or Mizrahi singers, of their livelihood. I cannot understand this argument. If people do not want to hear them, then let them not make a living from it (apparently there is not enough public demand for that commodity). Could one accept a situation in which the state forces the public to come watch me play soccer or dance Swan Lake, just because if they do not come I will not have a livelihood?! Whoever likes it or wants it should go listen, and whoever does not—should not. Alternatively, why should they not force me to come watch performances on the Sabbath so as not to harm the livelihood of artists who perform on Sabbaths? In fact, not only on the Sabbath. Why should they not require all citizens to go once a week to watch a play, otherwise the livelihood of actors and assorted theater people will be harmed? I do not like theater; alternatively, I do not have the money for it; and alternatively again, I simply do not feel like it because I want to stick it to those leftists. Could anyone seriously imagine that they would force me to go in the name of concern for the livelihood of those leftists?
Beyond that, there is an important distinction between the case of the Mizrahi singer and the case of women’s singing. In the case of women’s singing, we are dealing with a matter of conscience, not with one musical taste or another. It is inconceivable that they should require me to violate a prohibition and act against the dictates of my conscience because of concern for someone’s livelihood. If he or she does not have enough audience, let that person choose another career. Alternatively, let the law require that female and male singers be invited to the army in equal measure, and let it ignore the fact that some of those in uniform will not come to hear them. Alternatively again, let the state subsidize women singers because of the built-in disadvantage (owing to the prohibition on hearing them), exactly as the state subsidizes theaters, none of which is economically self-supporting. For some reason it is obvious that one cannot require all of us to go to the theater every week in order to provide Gila Almagor and Noam Semel with a livelihood. Well then, enough said, lest I give the “liberals” ideas.
And What About Working on the Sabbath?
Is the prohibition on opening businesses on the Sabbath not a similar case? After all, there too the demand is to disallow it so as not to deprive religious people of their livelihood, since they will not be able to get hired if they cannot work on the Sabbath.
First, perhaps this reason really is not acceptable. Businesses that want to do so should open whenever they wish, and if people cannot find a livelihood, market forces are supposed to provide an answer. This reason too is not sacred, and it too must be examined on its own merits.
But when one examines it on its merits, it seems that here the state may nevertheless say that it is justified in requiring this. The alternative is that the entire religious public will need welfare and social assistance, and that is a burden the state may decide it does not want to take upon itself. In this case we are dealing with a phenomenon affecting a broad public that has no alternative, and it will become a burden on the public. By contrast, in the case of women’s singing or Mizrahi singing, the phenomenon is far more limited (a few individuals), and the taxpayers in question have reasonable alternatives (let them work in another field and sing in their spare time, or before those who are interested in hearing them).
Beyond all this, the Sabbath is also a cultural and social matter that concerns the public sphere, and the agreement around it is fairly broad. Moreover, the very establishment of a weekly day of rest is unrelated to the religious-cultural demand. It is a social requirement accepted throughout the world. The religious-secular dispute concerns only the decision of which day of the week to choose as the weekly day of rest (and of course also the scope of the prohibition—places of entertainment and the like). Therefore, the coercion here is relatively minor, and it is easier to justify it. And yet I certainly agree that even this coercion is by no means trivial.
Discussion
Natan:
The comparison to the Women of the Wall is misplaced. Precisely because the Wall is a "public resource," the public can determine what character it will bear (Orthodox). If a woman immerses without an attendant, that in no way harms the person who comes to immerse after her, nor does it affect the character of the mikveh. If the Women of the Wall pray in the men’s section with tefillin, that necessarily changes the character of the place from Orthodox to Reform. And that is against the will of the public.
Of course, the decision about what character the place will have is entrusted to the public as a whole (through its representatives?), not to people who received permission from the state to manage it.
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Rabbi:
Hello Natan.
First, in my remarks I already distinguished between the Wall and the mikva’ot, since in the case of the Wall an argument arises (a problematic one) about harm to others. In the case of the mikva’ot, however, no argument at all is presented, not even a weak one.
But on the substance of the matter, I think you are mistaken. The question is not what legal right the public has to do. On the legal level, it has the right to determine that in a mikveh people may immerse only in a certain way, just as at the Wall people may pray only in a certain way. It can also determine that on public basketball courts people may play only according to the rules of the Basketball Association. The question I addressed is whether this is justified, not whether the public has the right to do so (which is a legal question).
My claim is that there is no justification for this whatsoever, neither in the mikva’ot nor at the Wall. This is unjustified coercion of people not to perform harmless acts on public property.
Of course, if your intention is the claim that at the Wall such prayer disturbs the public, I already wrote in my remarks that this is the difference between the Wall and the mikveh issue. But on the substance of the matter, as I wrote, in my opinion this is a problematic argument. If it bothers someone, let him eat his hat. There is no reason whatsoever to take that into account. At the next stage, it will bother me that there are Sabbath desecrators, and I will prohibit them from walking in the street (that really does bother many people. Completely authentic). What would you say about that? Or it will bother me that you are breathing, or that someone else is wearing white, and so on.
To the best of my understanding, as long as you can bear the thing, there is no moral or public justification for coercion, neither at the Wall nor in the mikveh. The question of legal right is a different formal question, and I think it is not really interesting in this context.
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Natan:
I too was speaking about moral and public justification, not legal right. A street, which is neutral in character and therefore I would not prohibit Sabbath desecrators from walking in it, is not comparable to the Wall, which by definition is a religious space. That is its meaning. It does not have the ordinary civic meaning of a public domain. It is pre-colored in certain hues. Therefore, in my view, the public is justified in determining its religious character and prohibiting ceremonies there that undermine the desired character as determined by the public. Just as morally and publicly there is no justification for holding a Jewish prayer service inside a church.
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Rabbi:
And is the mikveh not religious in character? The question under dispute is: what is the character of a place with a religious character? A religious character is subject to people’s interpretation.
At most you can argue that holding a dance party or making a swimming pool at the Wall is illegitimate and can be prevented by coercion. But so long as all people can pray at the Wall according to their understanding without disturbance, they cannot coercively dictate to others how they are to pray (certainly not when a separate place is allocated to them for this).
Shimi:
You wrote, among other things, that one may act for the sake of democracy even when it stands in contradiction to halakhah, and other things in that spirit. You also wrote that this does not really contradict full commitment to halakhah, since there are two different points of view here, like in the parable you brought about eating chocolate and the like.
However, I still have not managed to understand how it is possible that a Jew who believes that the people of Israel are bound by the Torah and halakhah both as individuals and as a nation and a state can support democracy (as a value, not merely pragmatically) even when it contradicts halakhah. After all, if you believe in the Torah as the word of God, then you must always subordinate the secular moral imperative that seems right to you to the religious imperative; or alternatively, try to interpret the Torah in a way that accords with democratic-liberal values (which, as is known, is not always possible). But if there is a contradiction between the values, one cannot be committed to democracy and Judaism at one and the same time!
I would be very grateful if you could elaborate a bit more on this timely and important matter.
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Rabbi:
Normative duality is a broad topic and requires more space for elaboration. I did so in my book Enosh Kaḥatzir (Man Is Like Grass). I will try here to write briefly.
Commitment to a normative system can be based on two mechanisms (two kinds of value principles): a specific value principle and an overarching value principle. “Specific” means that every value in the system seems to me correct and binding, and therefore I find myself committed to the whole system. “Overarching” means that the source of those values (the command of the Holy One, blessed be He) is binding, and therefore I am committed to all of them.
Where is the difference? Suppose that in addition to system A I am also committed to system B (like health and taste in the chocolate example). If my commitment to both systems is specific, a contradiction between them cannot arise. For if principle X in system A contradicts principle Y in system B, then it cannot be that I have a specific commitment to both X and Y. But if my commitment to one of the systems is overarching, then such a contradiction is possible. I am committed to principle X not because it itself seems binding to me, but because the one who commanded it is a binding source. But then there is no obstacle to my finding myself committed simultaneously also to principle Y (whether by a specific or overarching commitment).
All this, of course, is when there is a frontal and direct contradiction between X and Y. For example, X is concern for human life, and Y is that human life is of no importance at all. But there are other contradictions of a contingent kind, such as between saving life and the Sabbath. There, there is no contradiction between the contents of those two values (the value of life does not in itself contradict Sabbath observance, and vice versa), but situations may arise in which each instructs me to perform an opposite action (if a situation arises in which violating the Sabbath is required in order to save life).
Can there be commitment to two different normative systems? Absolutely yes. At least so long as the commitment to at least one of them is overarching and not specific. What does one do when there is a contradiction? That is not clear. It is a state of conflict, and we must resolve it somehow. But it is important to understand that conflicts can also arise within a single system (as in the case of a moral dilemma between two values). Resolving conflicts is a complicated philosophical discipline, and I will not enter into it here.
So far I have explained why there is no principled problem with my being committed to two different value systems, even if they contradict one another. The problem is practical (what to do in practice), but not principled. The existence of normative duality does not mean that I am not fully committed to each of them. That is what I called there polynormativity.
What happens in the case at hand is that one system (commitment to God’s command) demands exclusivity. “You shall have no other gods before Me.” That is, this system itself demands of me that I be committed only to it. Here I must make a decision: whether to accede to that demand or not. But if I do not accede to it, then it turns out that I am not entirely committed to the system, for I am violating one of its commands.
Since I am committed to the Torah system, I think there is no possibility of being committed to a normative system that derives its force from another source (another value principle). So how can one be committed to morality, or to health, or to any other system? Only if one sees them too as the divine will. From my perspective, the moral system is also God’s will, though in my understanding it is independent of halakhah. The Holy One, blessed be He, expects me to obey halakhah and also to obey morality. At times there may be a conflict between them, just as there may be a conflict within the halakhic system itself or within the moral system itself.
If I see democracy as a (moral) value, that means that in my opinion the Holy One, blessed be He, expects me to act according to it and on its behalf. This is the right way to build society (at least in our day). And what happens when that contradicts the command of halakhah? Then I am in conflict between two wills of the Holy One, blessed be He, and I must decide what to do. This is the situation I described in this column. There is no principled problem in such a situation, and it does not indicate any lack of commitment. On the contrary, such a conflict can arise only when there is full commitment to both sides. The conflict forces me to forgo one of them, but that does not mean I am not fully committed to it. I am fully committed to both, and reality forces me to give up one of them (as happens when one decides in favor of one of the values in a moral conflict).
It is worth adding here a reference to my article on ukimtot here on the site:
https://mikyab.net/%d7%9e%d7%90%d7%9e%d7%a8%d7%99%d7%9d/%d7%9e%d7%91%d7%98-%d7%90%d7%a4%d7%9c%d7%98%d7%95%d7%a0%d7%99-%d7%a2%d7%9c-%d7%94%d7%90%d7%95%d7%a7%d7%99%d7%9e%d7%aa%d7%95%d7%aa/
There I explained that every scientific law is fully true, and yet it is not realized in practice if there is another law (which is also fully true) that prevents it from being realized. The logic is exactly the same as in the present case. Mark this well.
Oren:
Following what was said in this article about law and halakhah, do you think state laws that prohibit bigamy/polygamy or incest are justified laws?
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Rabbi:
In my opinion, generally speaking, no. There is no place for a law that enters the private domain and coerces adults not to do what they freely wish to do if they are not harming others.
However, one must discuss situations in which the legislator believes that this is not a matter of free will. There are discussions about prostitution (among adults), which ostensibly is done willingly by those who engage in it and by those who use their services, but some argue that this is not free will. I am very doubtful about that, even on the conceptual level of defining free will in this context. See, for example, here: https://mikyab.net/%D7%A9%D7%95%D7%AA/%D7%9C%D7%92%D7%91%D7%99-%D7%A0%D7%A4%D7%92%D7%A2%D7%95%D7%AA-%D7%94%D7%A8%D7%91-%D7%A9%D7%99%D7%99%D7%A0%D7%91%D7%A8%D7%92-%D7%95%D7%90%D7%95%D7%A0%D7%A1-%D7%A4%D7%A1%D7%99%D7%9B%D7%95%D7%9C%D7%95/
But I do not know the subject well enough to state a firm position.
Yondav:
This expansion of the concept of democracy – and therefore of what counts as harm to democracy – amazes me every time anew, and seeing it here is even more frustrating. There is an enormous gap between rule by the people (the majority) and a libertarian conception in which the state does not intervene in anything that does not harm others and does not try to educate in any direction or toward any value, and in that gap lie most democratic states. Perhaps unfortunately, but the public does not really want a government of ‘live and let live.’ The public wants a government that educates the public toward values – against suicide, against hard drugs, against prostitution, against polygamy, against incest, against racism, etc., etc. – and that is the government it elects and accepts. That is democracy in its simple sense.
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Rabbi:
But if we are dealing with educational democracy, then you too may try to educate the public and not always give it what it wants, or at least try to shape what it wants.
Gilad:
You wrote: "As far as I’m concerned, let the dear worshippers take a pill, put on a blindfold, and stick their noses into their handkerchiefs if it bothers them." What about a person who wants to walk naked in the street (or at the Wall)—would you say in that case too that whoever is bothered by it should just not look?
I agree that there is certainly a huge difference in the percentage of people bothered by it, but if from the state’s point of view the Wall is not just any street belonging to the whole public but a place of prayer entrusted to the Chief Rabbinate (I don’t know what exactly its legal definition is; let’s say that indeed is the definition), why shouldn’t they have the authority to set a dress code and code of conduct? That is, in the public sphere in general a woman is forbidden to go without covering her upper body; at the Wall, in addition to that, she is forbidden to wrap herself in a tallit or put on tefillin.
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Rabbi:
Hello Gilad.
Theoretically you are right, because one cannot draw a clear boundary. But on the other hand, surely you too agree that there is a boundary, and that not everything that bothers someone should prevent someone else from doing it. At most, one can allocate a place for each of them. And if it bothers part of the public that I do what I do in the other section, what are we to do then?
Thus you could allocate a place to women who want to go without covering, so long as it does not disturb the rest.
The question of authority is a formal question. If the state gives them authority, then legally they have it. I am not dealing with formal or legal questions, but with what ought to be.
In short, in this matter it is hard to compare case to case, but there is such a thing as common sense: how much does it bother people? Is it justified? Do both sides have rights? Is there a solution that satisfies both of them, and how simple is it (what is its cost)?
The Torah-oriented camp demanded prohibiting immersion in the mikveh without an attendant, and you argued that even if there were a halakhic need for the requirement, one still should not forbid a citizen from using a public resource in his own way. And from this you concluded that they view the mikveh as their private property.
I see the discussion differently. After all, what do the Torah-oriented really care whether there is an attendant? What they care about is the negligent and tired, or the ‘people out in the fields,’ who do not master or supervise the details, and in particular are not capable of insisting on an attendant; without an attendant standing there, they will come to transgressions. They demand this in order to help the ordinary citizen succeed in meeting the halakhic requirements. So the Torah-oriented are saying that, in order to prevent failures among those who want not to fail, one must require an attendant for everyone. A tiny tax imposed on the halakhic adventurer for the sake of the spiritual state of others. (One could add that therefore using the mikveh without an attendant undermines the mikveh’s basic purpose of increasing purity.) And that is an argument that sounds (to me) very reasonable. Just as concerns were raised about Kahana’s kashrut reform: that all the problematic operators would go seek kashrut certification from the most lenient body, and then those lagging behind you would be misled by the word “kosher” and eat it.
I disagree. One may offer an attendant, but not impose one.
Meaning that even if not requiring an attendant will ultimately cause many invalid immersions through negligence, one still should not impose it?
How is this different from any demand to preserve halakhic interests, such as budgeting, for example?
First, that is not supposed to happen. There is an attendant there, and only one who does not want one is exempt from her. Second, if you harm yourself through negligence, it is not proper for others to bear the price.
And what would you say about the certification label “kosher” (like the certification label “immersion”)? Is there a problem if someone advertises himself as kosher and details on the menu: two portions of pigs and four frogs, because in his interpretation, with the end of the Savoraic period animals became permitted for eating? Or if he adopts extremely far-reaching leniencies on the basis of a lone opinion that was rejected?
And why indeed is there a problem? Because the public is drawn after the concept and abandons the details. That is also the meaning of the “high sugar level” sticker, even though the details of the arbitrary cutoff are not known in full detail; the goal is to influence consciousness by means of the term.
To the same extent, in every place where the public will be drawn after a concept and forget to examine its characteristics, one should protect them and enable them to choose “correctly” even when they erred by clinging to the concept and not the characteristics. And now that many will be harmed, it is reasonable to demand restrictions from the few adventurers so that this harm not occur.
First, this is a different case, because the term ‘kosher’ truly does have an accepted meaning. But with a mikveh, nobody is confusing anybody; at most he is not helping him avoid confusing himself, through his own fault. Especially since I wrote that they should provide an attendant, only not make her mandatory.
Second, I really think there is no problem even in the case you brought, so long as the public is informed that the term ‘kosher’ now receives different meanings and one must examine each place carefully on its own merits. In my opinion, that is what is most correct to do. And if people want to put on a kashrut sticker of this type or that type (like a sugar-level label), that is excellent as far as I am concerned. So long as people are not restricted from offering whatever kashrut they want.
A bit more
That implies that in terms of the practical outcome you accept that making do with raw information (in kashrut and sugar) or with an option (a mikveh without an attendant) will ultimately lead to an increase in failures, but you say that other people’s failures and losses cannot prevent another citizen from doing as he wishes, and those who fail have only themselves to blame.
And therefore you also uproot any whole notion of a regulatory authority that would grant official validation to a protected term. Not “kosher,” not “high sugar,” not “biodegradable,” not “harmful to health,” and not even “champagne.”
If I understood correctly, then this is a position that seems very far-reaching to me. What is the justification for such a position? Is it something deontological—that although it would indeed be highly worthwhile for us to have authority to prohibit, it is simply not nice and contrary to a higher law of individual rights—or is it some slippery utilitarian argument, that harming the individual’s right here (someone who wants to know the exact details without labels and make the ‘continuous’ decision on his own, or who wants to immerse without an attendant) will in the future lead to ever-increasing harms until we find ourselves in a bad situation.
It seems to me that the discussion here has been stretched far beyond what this issue is worth. These are entirely simple matters. Of course one may disagree (and be mistaken), but I do not understand what is unclear in my remarks.
Indeed, I argue that there is no justification for infringing someone’s rights so that someone else may be negligent in peace. This is especially true when we are dealing with normative certification labels in matters of value, where the state should not intervene (it is not its role to prevent people from halakhic prohibitions, nor to intervene in matters of values generally).
So long as the public is not being misled and has the information, and is aware that it must check, let it check. That is all.
And to conclude, I repeat once again in a hoarse voice that in any event this is not the case here, because I proposed that there be an attendant. She simply will not be mandatory.
If that is the position, then I cannot manage to see any logic in it.
And the fact that there will be an attendant does not help, because there will be the easy option of evading the attendant and still doing an “immersion.”
Yoni:
Hello Rabbi, you argued that a private individual who wants to immerse for the sake of cooling off is not the public’s concern, and that it is unacceptable to take control of such a public resource.
But it seems to me that even you would agree that it makes sense to create a mechanism to prevent a situation in which the mikva’ot become cheap/free swimming pools. The operators of the existing mechanism may well be trying to achieve other things too – illegitimately – but the very idea of restricting use of the mikva’ot sounds reasonable to me, whereas in your remarks I heard sweeping opposition.
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Rabbi:
Hello Yoni.
That is precisely why I spoke about harmless use. If they turn the mikveh into an event hall, or into a swimming pool, that would disturb those immersing, and that is a relevant and proper reason to prevent it. But if a woman wants to immerse in some other way, there is no room for intervention. Here the arguments for prevention are based on halakhah, not on disturbance to the women immersing.