The Periphery of Halakha – Lecture 5

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[Rabbi Michael Abraham] So there is—I’ll start, let’s say, with a short discussion of three examples, and after that I’ll elaborate a bit more and try to show how this whole thing works. So, the problem of secular courts basically begins, of course, with the midrashim and the Talmudic texts and the halakhic decisors and everything else, which see Jewish law, or halakhic jurisprudence, as some kind of cornerstone, such that someone who deviates from it is like “planting an Asherah tree beside the altar.” Very strong statements against this whole matter. In a certain sense, in yeshivot, in Torah study, we immerse ourselves in this so deeply that it really takes on the status of a principle of faith. Basically, to deviate from it is simply, in some sense, not to be Jewish—even if we don’t insist on the exact phrase “planting an Asherah tree beside the altar.” I mean the overall spirit of the matter, regardless of one source or another.

Then suddenly a new situation arrives. Right—we talked about Modern Orthodoxy. So a new situation arises: a state is established, and in that state most of the public is not committed to Jewish law. With different shades and gradations, but overall I think it’s fair to say that most of the public is not committed to Jewish law. A legal system arises here, with a system of laws, a legal system not only in the sense of courts but the law itself as well—a complete system, rich, ramified, and so on—that deals with a huge range of things, with no connection to Jewish law. No connection to Jewish law. A completely foreign system. With all the struggles, “Hebrew law” and all those issues, in the final analysis it is a completely foreign system.

That of course places the observant Jew in a very difficult dilemma. What do you do with this new creature? Is it permitted? Forbidden? How can it be? What? How are you supposed to relate to it?

So on the face of it, when you look at the sources from a halakhic perspective according to the rules, then of course there’s nothing to discuss with this system. Keep your feet away from it. It’s literally a degradation of the Torah, an uprooting of—anyway. So the claim is that if you look at the sources of Jewish law, then in those sources the answer is, on the face of it: forbidden, period. It is simply a deviation from the most basic principles of Torah law that we deal with all the time.

And therefore, say, classic Haredi society chooses a very clear path, and ostensibly one that is very consistent with the sources: total condemnation and rejection. This whole thing is not to be seen and not to be found. I’ll still note that this isn’t exactly true, but at least at the level of declarations. And basically, from the Haredi standpoint, there is no tension here. Maybe in practice there is, but in theory there is no tension at all. The answer is very clear. There is one pole to which we are loyal; the other pole does not exist.

It’s a bit similar to the analysis of Jewish law and morality that I did in the previous series. This approach of course has very difficult implications. Because a society cannot exist without an effective legal system. And therefore what they do in various Haredi societies, what they do is basically try to create legal systems that are as effective as possible. Alternative systems—various religious courts, even private police forces; they use violence there too, even against people, institutional violence. That is, institutional violence through religious courts or rabbis directing their agents in order to enforce the law, the internal law of that society. They are basically trying to build a parallel universe.

It doesn’t really work, of course, because in the end it isn’t a parallel universe—they live within our world, however much they try to separate themselves, but of course they can’t do it completely. Not only can’t they do it completely, they also don’t want to do it completely, because if they were fully separate it simply wouldn’t work. And then they run into all kinds of difficult problems. Their system doesn’t really succeed in resolving struggles between two powerful bodies. When you have two powerful bodies, no internal system that does not draw on the power of the state can deal with that. Sometimes even a state can’t handle powerful actors, but an internal society definitely cannot.

When there’s a dispute in the Ponevezh yeshiva between rabbis who belong to the first rank of Haredi Lithuanian leadership, there is no chance whatsoever that it will be solved through Torah law adjudication. Because neither of them is really subject to the authority of some religious court. And so it’s no surprise that in the end they wind up in secular court. They go to secular court because they need some institution with the capacity for effective enforcement. And that’s also why things often descend into violence and all sorts of things like that, because they have no way to enforce their internal laws without some orderly governmental power behind them. So you get outbreaks of violence and various problematic phenomena where control is lost, and the society falls apart once there is no longer one head, no single leading sage accepted by all. Once there wasn’t only one, but at least each group had more or less someone agreed upon. The Lithuanians had it this way, and the Hasidim maybe had several, but more or less there was something. Today that no longer exists. Today it has already split apart and so on, and therefore they have completely lost control. The society is disintegrating, that’s obvious.

That is, the society is disintegrating in the sense of how it manages itself internally. It is losing control. And incidentally, the more it loses control, the more extreme it becomes. Because a society that loses control, because of that fear and concern, activates more and more extreme measures, and increasingly irrational ones too, because it’s a kind of helplessness, a reaction to helplessness. And this is the expression, or the price, of that conception which says: we do not recognize the state’s legal system; whoever turns to it is an informer.

Now you have to understand what an informer is. Because that’s not just some interpretation. Whenever they write this in the newspaper—well, that journalist is just out to get us, he doesn’t understand. That’s not true. There are passages in the Talmud, and it appears in the Shulchan Arukh and in Maimonides. An informer may be killed. You have to understand: nowadays, it’s not that a court of twenty-three judges sits in capital cases. He may be killed. Whoever catches him performs a commandment and kills him. And I’m talking about someone who informs on another’s property, not someone who informs in a life-and-death context. Someone who informs on property—that’s in tractate Bava Kamma. And it is ruled as Jewish law in Maimonides and in the Shulchan Arukh that even nowadays there are capital consequences: they kill an informer. Without an orderly legal process.

Now, again, I am not claiming that someone there is now going out to kill a person who turned to the secular courts. I don’t think so; as far as I understand, it doesn’t get to that. But you have to understand the connotation attached to this concept called an informer. Meaning, the terror a person has when he goes—or used to have; today it’s less so—a person who turned to the secular courts, this basically places him in a status of someone who has broken all boundaries. That is, he is not part of the society; he has left the society. It is a very radical move. Society erected very high walls in order to protect that conception which says: we do not recognize the general state legal system. We have Torah law and our own religious courts, with all their ailments, with all their lack of authority, and that’s it.

That is one side of the coin. Secular people also are not conflicted. They have the legal system; Torah law doesn’t interest them. They too are not in tension. They have the second pole and they are with it. Who is in conflict? Exactly as I said with Jewish law and morality: whoever is committed to both systems. In this sense, incidentally, this is Religious Zionism specifically, and not religious modernity—or not only religious modernity. Because here there is also some attitude toward the institutions of the state, not only a question of values, an attitude toward contemporary values, but how do you relate to the institutions of the state that you are part of. What do you do with that?

So here the Religious Zionist basically finds himself in a situation of conflict. Not only is he in a situation of conflict—he has no way to solve it. A Religious Zionist has no way to solve it. I’ll explain that later; only a Modern Orthodox person has a way to solve it. A Religious Zionist does not. And that’s an important point, because there is some sort of tangle here. Meaning, the one who is in conflict is the Religious Zionist. The one who can solve it is only the Modern Orthodox person. So I’ll elaborate on that later.

That’s one direction. What they do—and again, I’ll just add one more sentence—so what do they do in practice? In practice they combine two things. They come up with, invent, some lame halakhic justifications that don’t hold water and allow going to secular courts, because after all you can’t manage without it. Nobody manages without it. Or they close their eyes. They simply close their eyes—a kind of tacit consent. Basically, everyone who goes there is planting an Asherah tree beside the altar and is an informer and everything is forbidden and all that is true, but many go there and nobody looks and nobody comments and nothing. Every now and then some statement appears in the newspaper saying that someone who is a lawyer or a judge or I don’t know what—just people who make use of the legal system—may not be counted in a prayer quorum, and then everyone cries out against the person who made the statement: what does he mean, how does he dare say such a thing, and so on—when in fact he is merely expressing their own position, which they do not dare say. They prefer to close their eyes.

Incidentally, the greatest eye-closers in this context are the Haredim. I mean, they are the grandfathers of eye-closing. You are going to secular courts more and more in recent years with astonishing eye-closing. I’ll jump ahead a bit and tell you more than that. One of the things that amazed me, I don’t know, maybe fifteen years ago, when this trend began—or maybe even more, twenty years—when this trend began of Haredim studying law. Suddenly Haredim are going to academic studies—a new phenomenon, in an institutionalized way. True, not yet at the university in a fully institutionalized way; there it’s still mostly isolated individuals, although that number too has already grown. But there’s the Ono Academic College with its Haredi branch; they have their own institutions, or Mevhar, and things like that.

Now the most common profession that Haredim study in academia is law. And when you see that, you are simply left speechless. If there is one profession that is forbidden with the gravest Haredi prohibition to study, it is law. Study physics, study mathematics, study psychology, study philosophy, study the things considered most dangerous, so-called, in Haredi eyes—it still isn’t an absolute Torah-level prohibition of the highest severity. It’s dangerous, it can lead to questions of faith, it can put you in challenging situations, you might meet female students, heaven forbid—anything can happen. But what is the profession bound up with prohibition par excellence? A prohibition like idolatry? Law. Only law, it seems to me. Only law. And what is the profession all the Haredim in academia study? Law, of course.

What is that if not eye-closing, the likes of which I have never seen in my life. And I’m talking not about the Religious Zionist public but about the Haredi public. This is recognition of it, together with a combination of many things of course. And yes, I’m also commenting a bit on the sociology today because I think it is deeply connected to the subject I’m talking about here. It’s a combination of two things. First of all, Haredim are very pragmatic. They are a very non-ideological public, unlike the Hardalim, or at least unlike the Har Hamor wing of the Hardalim. They are not ideological in the sense that they have principles from which they never deviate. They try to create that impression, but they are not. They really are not. They are very pragmatic. When they see that something has to be done, they’ll do it. And they’ll do it and know how to do it and how to close their eyes, back it up, say some phrase in Yiddish or Aramaic that nobody understands, but in the end they do it. They do what needs to be done.

And on the practical level, if you’re looking for a profession that gives you some ability to earn a living and doesn’t require much of anything, it’s law. Right? It’s a relatively easy profession, one that doesn’t require prior education. You don’t need mathematics, you don’t need physics, you don’t need anything. Even English—they do some kind of makeup course there, but you don’t really need it. It’s the classic profession, on the practical level, for Haredim. But I think it’s not only that. There is also some internalization of the fact that you cannot manage without the legal system. It has control over parts of our lives. Now, if you are not involved there, then they will continue dictating to you and you’ll keep holding demonstrations in the town squares, and you are not part of the matter. People understand that there is no choice. Again, it is not always articulated; people don’t always formulate it, even to themselves, certainly not outwardly. But they understand that you cannot fail to be part of that system, in one way or another.

And again, this happens gradually. For now there still aren’t judges, but I promise you there will also be judges—I’d stake my head on it. There will also be Haredi judges. For now there aren’t. Lawyers there already are. As for making use of secular courts—there’s nothing to discuss. There will be judges too, before too long. It may even be that there already are; I think there is some Haredi female judge, if I remember correctly. I once read about it, I don’t remember exactly. In the United States I know there is. There is a Haredi female judge; I remember reading a very interesting article.

In any event, this eye-closing does not stem only from pragmatic considerations. That too—but not only that. I don’t know the exact proportion, how much of it is this and how much that. There is also something in the recognition, de facto at least, that with all due respect to ideology—or not ideology, Jewish law. Forget ideology: Jewish law. Jewish law says it’s forbidden. But there are situations in which we close our eyes. But what does it mean to close our eyes? We’re not closing our eyes to someone who goes and does this quietly where nobody sees. We are establishing tracks for Haredim to study law, with Torah accompaniment, of course. I was even a bit involved, incidentally, at Ono in this matter. In short, it’s a fascinating phenomenon.

But in any case, that is a first example of a situation in which apparently the halakhic instruction is very clear, yet on the practical level, when we talk about implementation, somehow we don’t really implement it. We’ll still have to see what exactly is going on there and how it works—what it means. There is some kind of wink here, or eye-closing, or something, without a halakhic justification. I don’t think anyone ever wrote something orderly in the Haredi world explaining why this is permitted at all. Many have written why it is forbidden. I don’t think there is anyone who wrote why it is permitted, it seems to me—I haven’t checked deeply, but from what I know, I don’t think there is such a person. Okay, but they do it, close their eyes, and keep doing it. They close their open eyes and keep doing it.

A second example—again, I don’t agree with all the examples—but a second example where this comes up is acceptance of the commandments in conversion. The concept of “winking” is taken from Rabbi Brandes, who wrote an article on this matter of acceptance of the commandments in conversion, and there too there is a discussion about how far we can give up this component of acceptance of the commandments in the conversion process. From the standpoint of the halakhic tradition, it’s not only that this is part of conversion; it is the essence of conversion—acceptance of the commandments. But people began discussing whether it can be waived or cannot be waived.

So Rabbi Brandes, for example, suggested in his article: listen, be honest people. After all, we all know that all of you are winking and nobody really means what you are doing. Yes, I’m talking about the conversion apparatus of Rabbi Druckman at the time. Yes, today I think it’s no longer under him; I don’t know exactly how it works today, but back then it was Rabbi Druckman. And basically, de facto, they were waiving acceptance of the commandments. Fine, there was some formal act there and so on, but everybody knows that these converts—ninety percent of them—are not really going to observe commandments, at least not in the fully binding sense. There will be a few showcase commandments and a few things; in the best case some sort of traditionalism might be preserved there, but not much more than that.

So a dispute developed, of course. The Haredim condemned it, and on this issue incidentally I am completely with the Haredim. I think what happened there—or what was happening there then—was a scandal. And again, all sorts of apologetics began to develop in the Religious Zionist public that supported this, claiming that in fact acceptance of the commandments is not required. None of this holds water. It’s simply nonsense. Avi Sagi and Zvi Zohar and their books and articles—it is simply a total collection of absurdities. And I wrote that, and they were very offended. But that was the claim.

And Rabbi Brandes basically suggested: look, let’s stop winking and put things on the table. You’re making a mockery of the process. After all, we all know there is no real acceptance of commandments there. Now the conversion apparatus under Rabbi Druckman would never in its life have told you, “I’m giving up acceptance of the commandments.” Of course not. Every one of the converts had to declare, yes, wholeheartedly and willingly, that he accepts upon himself the yoke of the commandments—when everyone knows there is nothing behind that. Again, for most of them—I don’t want to say all, there are those for whom it’s real—but for most of them, no.

Okay, and then Rabbi Brandes’ claim was: listen, you’re winking, and the converts are also winking, because they know—I heard this myself from people—they know what they need to say in order for their conversion to go through, so they say it, and afterward they do whatever they want. That’s not—now, the judges were not born yesterday. They know who they’re dealing with, and they know what these declarations are worth, but they close their eyes and, with a wink, pass the conversions through.

And Rabbi Brandes said: forget the winks, be honest, put it on the table and say, we are prepared to give up acceptance of the commandments. He was in favor of this. Why? He had some justification; I no longer remember the details, but broadly the claim was that we really need to convert on the national plane and not on the religious plane. Because today Judaism is not defined on the religious plane—after all, most of the people whom even we agree are Jewish are not defined according to halakhic criteria. So he says: then conversion itself can also be done through joining the nation and not דווקא through joining the religion. So leave some religious symbols or other, because that is part of our culture, but not in the sense of acceptance of commandments in its strict meaning. That was basically the claim.

On this issue, incidentally, I disagree. I wrote a response to the rabbi’s article. I agree with the diagnosis; I do not agree with his proposal, and regarding the proposal I completely disagree. I think it is wrong to wink and wrong to put it on the table; one should simply stop converting in this manner. But this too is a place where Rabbi Brandes’ claim was basically: we understand what the principles of Jewish law say, what the precedents say, but look, in today’s practice it is impossible to sustain this. Impossible to implement it in this way. And then he proposes—you could call it perhaps creative interpretation, though I’ll say later that if it’s interpretation then it’s not exactly what I’m talking about; I’m talking about something that is not interpretation.

So that is the second example. I’ll come back to these examples later; I’m bringing them up here so that I can use them to illustrate points.

The third example is saving a non-Jew on the Sabbath. Again, a painful example, though it usually gets less public discussion and less public awareness, but a very painful example, no less painful than the first two, it seems to me. According to Jewish law, according to the straightforward sources of Jewish law—Talmud, halakhic decisors, all the halakhic decisors—it is forbidden to desecrate the Sabbath, at least through labor prohibited at the Torah level, and according to the basic law even not through rabbinically prohibited labor, in order to save the life of a non-Jew. Simply leave him to die.

Now there were all kinds of stories and journalistic canards about this, yes, that anti-religious fellow from Jerusalem who from time to time liked to explode some little duck-story or other, saying there had been some non-Jew who was not saved because of Sabbath desecration and was left to die, and so on. In the end it turned out it wasn’t exactly like that, but never mind. There was a controversy here, and basically the same sides arose as with conversion. On the one hand, according to the sources of Jewish law, it is forbidden. Forbidden. You can grind your teeth and swallow hard, but apparently it is forbidden. That’s a second-order ruling, yes, if you stick to the sources of Jewish law: forbidden.

On the other hand, you cannot live that way. It is completely clear that you cannot live that way—and thank God for that, I’ll add in parentheses—but you cannot live that way. You cannot live in this world in such a way that you walk past a human being and leave him to die because of a rabbinic Sabbath prohibition. Even not for a Torah-level prohibition, but certainly not for a rabbinic one. Now, rabbinic prohibitions most halakhic decisors permit because of the ways of peace and things like that, but again, not according to the core law, rather because of various fears and concerns. So that is the second side.

The third side is: what does this mean—okay, so now what do we do? Either we twist ourselves into some justifications that don’t hold water, or we are honest, stop winking, and put it on the table: here we have to deviate from Jewish law; there’s no choice. Okay? That is the second conception. Of course the first conception—the supposedly Haredi one—says yes, there’s no choice, this is what we do. There is no conflict in the Haredi conception either, right? This is Jewish law and everything is fine; this is how one should act. Again, I’m talking without the considerations of appearance, the ways of peace, what the non-Jews will do to us; I’m talking about the core law, on a deserted island, all right? Without all the surrounding noise.

So this too is basically a question that brings the halakhic instruction into very sharp confrontation with reality: a case that is apparently a clear case, versus a reality in which it is utterly impossible to implement. Impossible to implement. Again, not because of fear of what they’ll do to me or how it will look—that is usually what the halakhic decisors say—but not only that. It is impossible to implement because it is simply unbearable. Humanly and morally unbearable. I’m not even talking about what they’ll say and what they’ll do to us if we don’t save them, or that they also won’t save us, or that there will be riots in various places and things of that sort.

So these three examples are examples which, precisely because of their extremity or their centrality, raise—or at least put on the table—the question of what happens if we do not find a halakhic solution. We do not find one. So what then—is there no counsel and no wisdom against God, and you simply have to go with the rules of Jewish law? A second possibility is, as it were, not to be faithful to Jewish law—there’s nothing to be done, so I’m not faithful to Jewish law, what can I do? I’m Reform. Okay, I won’t do it. That is basically the Reform conception; that is basically what it says.

Can there be a situation in which a person remains faithful to Jewish law and still does not implement it in these places? And that brings us precisely to the same dilemma I presented in the context of Jewish law and morality. When it comes to saving a non-Jew on the Sabbath, that is a dilemma of Jewish law and morality in a very direct way. It’s not a similar example; it is an example from that domain. But the first two examples are not like that. The example of secular courts, yes, of making use of the courts—that is not a question of Jewish law and morality, it is a question of Jewish law and life. Can one live this way? Independently of morality—there is no moral question here. There is a question of whether one can live this way. And the question of conversion is also not a question of Jewish law and morality; it is a question of Jewish law and society, if you like. Can we—again, in my view there is no problem, but those who see this as a problem see here a social problem: we are bringing into our midst many non-Jews whom at the halakhic level one cannot really regard as Jews even after they performed the façade of conversion that they did. So what do we do with that? It creates a very difficult social problem—social, national, whatever you want to call it, maybe even halakhic because there are intermarriages, never mind, all sorts of things like that.

And again, there is some dilemma here vis-à-vis Jewish law. So these three examples are actually a representative range: the third example is of the type we discussed in the previous series, Jewish law and morality. But the first two are examples of Jewish law and life, in a certain sense: can one live according to Jewish law? Not specifically in connection with morality. And the question is whether such a thing allows me to put on the table an outlet, or a solution, or a proposal that in this case we do not implement Jewish law.

So I want to argue that yes. And the claim—even if I go back for a moment to the question of Modern Orthodoxy and Religious Zionism—the problem of law, yes, the attitude toward the courts, is a classic Religious Zionist problem. The tension is basically a tension between Zionism—shared involvement with the institutions of the state and its structures—versus religiosity, versus Jewish law.

The third problem is a problem of Jewish law and morality, more connected to Modern Orthodoxy, or not necessarily only to Modern Orthodoxy, although Modern Orthodoxy is very connected to this conception that sees morality as an independently binding category even if it has no clear Torah or halakhic source.

And the middle example, the example of conversion—here there is room to hesitate, because ostensibly this too is a problem of Religious Zionism, because conversion, basically, the leniencies in conversion stem from the fact that a problem has arisen in the state. Those leniencies are required, at least in any serious way, in the State of Israel—not in the United States. In the United States there is no Jewish state; the Jews live among non-Jews anyway. That is not a phenomenon that needs to be addressed. There are non-Jews there; none of them intends to convert, and you will not solve the problem of non-Jews living among Jews by easing conversion outside the Land of Israel. That’s not the point. In Israel there is some conception or feeling that says a problem is beginning to form here because we are living within a very large group of non-Jews, and this is going to create some cultural, national, social problem—I don’t know, however you want to call it. So in that sense, this too is a problem of Zionism versus religiosity, because it is connected to the state, to the existence of the state. But not entirely. There is also of course some sensitivity to the surrounding reality, and in that sense it is also connected to Modern Orthodoxy.

Now why do I keep connecting this to Modern Orthodoxy? Because I think that Modern Orthodoxy, in its deeper sense, is really a conception that does not necessarily ground its conclusions on halakhic foundations. Again, the YU people won’t agree with what I’m saying. This is my version of Modern Orthodoxy, all right? I’m not speaking on behalf of anyone else. I think the point is that someone is willing to make considerations that are external to Jewish law—modernity is of course one example, but not the only one, as we will see later—considerations external to Jewish law, and these take part in shaping the halakhic solution. Okay.

Now again, if you look at the sources you can find precedents for this at every turn. It is much more a question of ethos than of practice, because in practice everybody does it. But the question is how willing you are to be aware of it and to put it honestly on the table. To say that you are doing it—to be honest. Okay? And here the Haredim will never say such a thing, of course. And Modern Orthodox, at least of the type I am talking about, are supposed to be willing to put it honestly on the table and say: yes, that is what I think.

Now, in that sense this is not the same thing as Religious Zionism. Because when a Religious Zionist wrestles, say, with the question of the attitude toward the courts, then the solutions he offers—a Religious Zionist who is not modern, yes, because there can be a Religious Zionist who is also Modern Orthodox, these are not alien groups, but they are not necessarily overlapping. Each person can choose where he belongs. So I am talking about a Religious Zionist who is not Modern Orthodox, say a Hardali, okay? When he examines the attitude toward the state and toward the courts, he will explain it in halakhic categories. He will explain why one may make use of the courts in halakhic categories—which in my opinion doesn’t hold water in any way—but that is what they do there, because they are not willing to admit that they are really doing something against Jewish law. There is no such thing, because they are Haredi; never mind that they are national-Haredi, but they are Haredi. Therefore, in that sense, they will not be willing to speak in this kind of way.

The Modern Orthodox person, in the sense I have given it here, will do something else. He will offer what Rabbi Brandes offered with regard to conversion—and again, with regard to conversion I actually disagree with Rabbi Brandes, but I do agree with his principle. With this option: the option that says, here Jewish law is not workable and therefore I do not act according to Jewish law. Period. That is what I want to argue. And I argue that this is a legitimate claim for a person who is fully committed to Jewish law, by exactly the same logical mechanism—I won’t go back over it now—that I discussed in connection with Jewish law and morality. When I am committed to two normative systems, then clearly when there is a conflict between them I have to make a decision. And that does not mean that I am not fully committed to Jewish law. I am fully committed to Jewish law. And I am fully committed also to other systems. Therefore, when there is a conflict, I have to make decisions—just as when there is a conflict between two halakhic values, between two moral values, Sartre and his student, yes, that story we kept coming back to there. That is my claim here as well, only here I am broadening it. And that is why I said this series is a continuation of that earlier series: I am broadening it not only to moral questions, but to considerations that really seem a bit more problematic—where did they come from? If it isn’t morality—for morality you can hang things on “and you shall do what is upright and good”; there are sources in the Torah making it clear that it expects us to behave morally—then it is relatively easy to say this in that context. Even there people don’t say it, but there at least theoretically it is relatively easy to say that I am committed to both systems and the weighing of both will determine what I do.

What do you do where I don’t have that? It’s not morality; I have no source in the Torah. But it is clear to me that this does not work. It doesn’t work. What am I supposed to do?

So let’s take the example of the courts and focus on it for a moment. In the context of the attitude toward the courts and the legal system, the standard approaches divide into two main types. The first type is basically the halakhic one, let’s call it Haredi for the sake of the discussion, or non-modern religious, which says: forbidden. Period. Now incidentally, everyone says forbidden. All the halakhic decisors. Haredi and non-Haredi, down to the last one. Everyone. Almost everyone, certainly the important ones among them. You should understand: this is not a dispute between Haredim and Religious Zionists. When Avraham Yitzhak HaCohen Kook—sorry, Avraham Yosef, yes, the son of Rabbi Ovadia—says that lawyers and judges should not be counted in a prayer quorum—he had some such outburst a few years ago—he is merely expressing what everyone thinks. But he says it, and others do not say it. Others prefer to wink, to close their eyes, but basically that is what is going on.

That is the halakhic decisors on one side. On the other side stand judges—and I mean religious judges, not secular judges. Religious judges, some of them Torah scholars—Bazak, Elon—who wrote articles about this, and they claim that it can be justified halakhically. That is, that one can cooperate with the legal system, and there is full halakhic justification for it; they do not even draw distinctions between different fields. Blanket, across the board. That is the other side.

And it is very interesting when you look at it this way, because this is a dispute between halakhic decisors and judges. The division here is very clear. Again, it’s a correlation, and you’ll always find some exception or another, but broadly speaking these are the two groups. These are the two groups.

Now when I read the—let me add one more—Yedidya Shochetman, I think, is almost a category unto himself. Because true to form he wrote several very long and detailed articles on this issue, and he actually gets into the thick of it. He distinguishes between different areas of law, different kinds of activity in those areas, and discusses what is permitted and what is not, according to various halakhic sources. For our purposes I include him in the rabbis’ group. Why? Because from his perspective too, he basically forbids it. In principle he recognizes the existence of the prohibition of secular courts. He only qualifies it: criminal law, civil law, depending where, lawyer, consumer, judge—he has all kinds of substantive distinctions that he examines, and he builds some structure of what is permitted and what is forbidden. But at the principled level he recognizes the existence of the prohibition of secular courts with regard to Israeli state courts. In that sense, despite the similarity to Bazak and Elon, he is not with them. He also doesn’t serve as a judge, incidentally; he is a law professor. Bazak and Elon were judges. They can almost not say otherwise. After all, they are part of the system. They can’t say, what, he won’t judge in the field that Shochetman forbids dealing with? He won’t deal with personal status matters, or with criminal or civil law or whatever it may be? He’s there; what comes before him he has to judge. That is his job. So they are almost forced to say this. But it is quite clear they are not only forced—they really did think this; that is, they also gave reasons.

Now I felt uncomfortable, as in many disputes, because usually when I see a dispute between two sides I very quickly come to the conclusion that I agree with neither. And here too that was the case. And the problem was as follows. I’ll formulate it very briefly because time is against us. My claim is basically that if I examine the halakhic sources, I have no doubt that the rabbis are right and the judges are not. Again, I’m not getting into the question of who is the greater Torah scholar; I’m not judging the people. I’m examining the sources, and in terms of halakhic considerations with respect to the sources, my personal opinion is that the judges’ position doesn’t even get off the ground. Doesn’t get off the ground at all. It is simply nonsense in its interpretation of the sources. Some kind of clinging to one or another formalism. There is an argument there that if the judges are Jewish, then these aren’t secular courts of non-Jews, because it is not honoring idol worship. The claim is that turning to non-Jewish courts is basically honoring the gods of idol worshippers. And here these are Jews, so if the judges are Jews then there is no prohibition of secular courts. That claim is utter nonsense, and does not stand the test of the sources. Rabbi Ariel wrote an article on this in Tehumin 1, and in 2 there is some argument there with Judge Bazak on the issue. You can look there. It doesn’t begin to work.

But that was the feeling: that on the one hand, from a halakhic perspective the answer is clear—there is a prohibition of secular courts with regard to the courts of the State of Israel. And it is a severe prohibition. Not a question of idolatry—and of course none of them is an idol worshipper—but then again, almost none of the judges in the United States is an idol worshipper either. So that’s not the point. Today there are hardly any idol worshippers in the deep or basic sense of that term.

On the other hand, the feeling is that there is no such option. There is no option of forbidding recourse to the courts, as I described with all the winking and the Haredim and everything. There simply is no such option. And whoever tries to do it does not succeed. Therefore both the Haredim and the Religious Zionists simply close their eyes. Including, say, Rabbi Ariel, who wrote a very sharp article on this issue, about how forbidden it is, and he is not suspected of being non-Zionist—I mean Rabbi Yaakov Ariel. I even spoke with him myself when my son was considering studying law, so my son wanted to hear what Rabbi Ariel says, and he teaches at the institute at Bar-Ilan, so I spoke with him a bit, although I had guessed what he would say. In any event, he is very sharp against this whole matter. I have never heard him say anything about people who actually do it. I assume many of his close friends are lawyers and judges, and they hear his classes and are in contact with him. It is clear that people who make use of the courts are in his community and among those connected to him and his students and the people who hear his classes and everything. I don’t think—I don’t know—but I don’t think I ever heard from him some very harsh statement against them, certainly not that they should not be counted in a prayer quorum and things of that sort.

Now these people are raising a hand against the Torah of Moses. You have to understand: this is not some trivial prohibition. They are raising a hand against the Torah of Moses. He simply closes his eyes; he is silent in a thousand languages because he knows that it is better to say a thing that will not be heard. He is silent, closes his eyes, winks, as Rabbi Brandes calls it.

In all three of these examples, that is basically what people do. People desecrate the Sabbath to save non-Jews and everyone closes their eyes and winks. People convert without acceptance of the commandments and everyone closes their eyes and winks. People make use of the courts and become lawyers and judges and everyone closes their eyes and winks. In all three examples this happens. Again, I don’t agree in all of them—my position on all three examples is not the same—but the phenomenon exists in all three examples, and that is why I brought them.

And my feeling was that the straighter path, and in my view also the tactically more correct one, is to put things on the table. What Rabbi Brandes suggested about conversion, where I disagreed—here I suggest it about secular courts, and here I do agree. My claim there, in that lecture to those Modern Orthodox people, was that one has to be honest, to say plainly: this thing is forbidden with a severe prohibition. Whoever resorts to the courts is raising a hand against the Torah of Moses. And there is no choice: today we have to raise a hand against the Torah of Moses. That is what must be said. Not to close our eyes, not to wink, not to think in one’s heart that they should not be counted in a prayer quorum but not say it because then of course you would not have a prayer quorum left, but to put it on the table.

And why? Because a society cannot exist without a legal system. I brought several examples earlier, but it doesn’t require examples; it is a simple fact. A society cannot exist without an effective legal system. More than that: there is no possibility today of creating an effective legal system according to the Torah in the State of Israel. There is no way to do that, for many reasons. First, because Jewish law is not yet built for it; it is not yet suited to running a modern state. Maybe someday that will happen, but today it is not possible. And second, because the public will not agree. The public is not prepared to accept halakhic law as the governing law. Most of the public is not committed to Jewish law and will not agree to it.

And then you’ll say: fine, they don’t agree, those heretics—so why should I take them into account? The answer is yes. Meaning, if I see myself as part of the state, and I’m talking about a modern state, not the state that the Sages had before their eyes, where a king does what he does and there is the law of the kingdom and we are not partners in the matter. The king does what he does and we submit gladly, of course, because otherwise people would swallow each other alive, but we are not required to take part in the matter. In a democratic state, if an entire group does not take part in the legal process, then what will happen is that the legal process will be run by the secular people and they will dictate to us what to do, which makes no sense. A group cannot allow itself not to take part in shaping the secular legal face of the State of Israel.

I want influence over the value-laden conduct of the state, of which the legal system is part. I am not prepared to hand that over to secular people—not in order to insert Jewish law into it, as the people of “Hebrew law” think; I wrote an article against that, saying there is no value in inserting a bit of Jewish law—but because I have a moral say that I want to fight for as a human being, as a citizen of the state, not as someone who wants to impose Jewish law here. And I am not willing to have myself excluded from the public discussion of value questions. But for that, I have to take part in legal discourse; I have to take part in legal practice, because it is part of public discourse. Part of public discourse is judges’ rulings, lawyers’ arguments, articles by—essays by legal scholars. You cannot exclude yourself from that in a democratic state, because then you turn it into a monarchy—or not a monarchy, but some sort of regime, rule by the secular majority that dictates to the religious minority what to do. Not only on religious planes, but also on moral planes. On the contrary: on the religious planes I have no interest whatsoever in imposing them on the State of Israel. I do not think that has value; I do not think it is worth fighting for. I have moral agendas I want to fight for. Simply as a citizen with a moral stance, which may not be detached from my religious outlook, never mind. But as a citizen with a moral stance, I am not willing to give up my ability to influence what happens here in the state.

Therefore it is not an option to disconnect from this system. And again, the Sages lived in a completely different reality. The Sages—and the medieval authorities too—did not live in a reality where you could take part in this system. Because it was not a democratic state; there was a king. And the king determined what would be done and what the laws would be. There was no public discussion, nothing. The king determined what would happen. That’s all. What remained for you was only to obey under the law of the kingdom, and to be glad that there is a king here and we are not the ones who have to run things, because otherwise it would all collapse. Rejoice quietly—of course don’t tell anyone you are rejoicing—bow your head, say “the law of the kingdom is law,” and fill your heart with laughter without letting it rise to your lips. Okay? That is what you can do in a non-democratic state. In a democratic state you have no option of remaining detached. The Haredim who try this get slapped in the face over and over again. And today they are already stopping trying—or trying less.

So the violence and the lack of agreement and the inability to resolve conflicts—there is no way to do this. You cannot function without an effective legal system. And you are part of the society in this state here. You conduct commerce with the groups around you. You sell to them and buy from them and you live here. How are you going to conduct legal interaction with the people around you? In a religious court? There is no such option; it is simply nonsense.

So what do we do now? There is a way to get around it, to do interpretive tricks on the halakhic sources and show that in fact it is somehow permitted. But that’s nonsense; it isn’t permitted. Be honest—it isn’t permitted. It isn’t permitted, but there is no choice. Because the alternative is that we simply dismantle the system, dismantle our society. Is that a halakhic consideration? It doesn’t seem to me so. I can’t produce a straightforward halakhic source showing why such a thing would justify it. Okay? But I think there is no escape. You have to say that this value of maintaining some sort of society here that does not fall apart overrides the halakhic value of not resorting to other legal systems, to secular courts.

Therefore, despite the fact that it is forbidden—I do not accept the judges’ interpretation; it is forbidden—and I also do not accept the claim of the rabbis who say: refrain from it. No. I say ideologically: do not refrain from it. In the first instance, resort to the courts and do not go to religious courts. Do not go to religious courts. Go to secular courts precisely. Going to religious courts is, in my opinion, very problematic. Very. Even in private disputes. Very problematic. So there is a fairly radical statement here. People there, in that lecture to the YU crowd, were very upset by this. Very upset. What do you mean? Then show me the halakhic justification for it. I have no halakhic justification. That’s it.

Now I’ll say more than that. They bring as a source for this the law of the courts in Syria. The Talmud in Sanhedrin speaks of courts in Syria. What does that mean? There are some disagreements, but the simple understanding is that in Syria there were communities of ignorant people. They did not have judges fit to judge. So in such a situation, says the Talmud, appoint there judges who are not fit to judge, even though this is like someone who plants an Asherah tree beside the altar. Yes, “before them and not before laymen” is said together with “before them and not before secular courts.” They derive both from the same verse. But there’s no choice—you have no other judges. Okay? So there are those who say: fine, the courts in Syria are a halakhic source that can justify the move I am suggesting here.

To that I would answer in two ways, and I really do need to finish. One answer is that it is not exact. Because in our case there are judges fit to judge. In Syria there were not—then, in that Syria, there were not. There were ignorant people, there were laymen. What could you do? You appointed one who knows how to write and one who knows how to read; those are the judges you have, you don’t have anyone else. The alternative is anarchy. Now in our case there are. There are judges, Torah scholars, who can sit and judge according to Torah law. Okay? So from the source of the courts in Syria you cannot derive the conclusion I am deriving here. You need some very expansive interpretation, which you can make. You can say yes, but if the alternative is social disintegration—and that is true for us too. It is true that we have judges fit to judge according to Torah law, but society will not accept them, so basically social disintegration will happen here. Yes, but to that people will say: fine, then let us separate from the secular people, but within our own group we will go to the religious court of Rabbi Nissim Karelitz, or Rabbi Wosner, or whoever. I’m talking now about the old guard from the generation when I was still there, if they no longer exist today. But never mind, their successors. Why should I have to separate or not separate from the secular people? I’m not interested.

Well, that is of course not practical. You cannot do that. It is throwing sand in your eyes. You cannot do it. Okay? And the price paid by those who do try is very clearly visible. Indeed, there is really no such option. So at the principled level I am willing to accept that move as some sort of expansive interpretive move based on the law of the courts in Syria.

But now I will ask another question: where did the ruling about the courts in Syria itself come from? Where did the amoraim in the Talmud find permission that in Syria they can appoint laymen as judges? They made the move I am talking about. And even if I am persuaded that this really is a source I can rely on and build on in order to permit going to our courts today, that still does not exempt me from the statement that there is something here that is halakhically forbidden and yet has to be done. Rather, the amoraim already did it. So what? Fine, the amoraim did it. But still, that is what they did there. Because there is no source from which one learns that in the courts in Syria it is permitted to go to laymen. Close the community down, dismantle it, go to a place where there are judges, or bring them in and pay them handsomely so that they agree to come. That’s all. There is no counsel and no wisdom against God.

What would you say—if there is no choice, then we will desecrate the Sabbath? Have you ever heard anyone say such a thing? There is no choice, we can’t manage, so we’ll desecrate the Sabbath? No one would dream of saying such a thing. But here they do say it. Why do they say it? Because people understand that it is right to say it, even though from the halakhic point of view there is no justification for it. Why indeed not desecrate the Sabbath? I don’t know—maybe desecrate the Sabbath too; I’ll also bring examples about Sabbath desecration in this context. But the point I want to make is that even if I accept that what I am arguing is only an extension of the principle found in the passage about the courts in Syria, my claim is that the passage about the courts in Syria itself made this move. Fine, so I continue after them. I don’t care whether I invented it. On the contrary—even better. But still, that is what is there. It is not a halakhic justification. There is no halakhic principle that justifies it, or at least none is brought there. There is no verse, no—rather, some principle saying that in this life situation Jewish law cannot be implemented. It cannot be implemented.

So if it cannot be implemented, will someone die? I don’t know if someone will die. It’s not life-threatening in the sense that one particular person will die. It’s life-threatening in the sense that society falls apart. And about that I’ll speak in one of the next classes as well: that this too is some sort of extra-halakhic consideration that intervenes in the halakhic matter.

So I’ll just finish here, in order to close this class, because I have more or less closed the circle, but I’ll continue this a bit more in the next class as well, and then I’ll move on to other examples of this mode of thought. Okay, if there are comments or questions? A good year. A good year, may you be sealed for good, a good inscription and sealing, may we merit that the coronavirus gets out of here already, though I don’t see who is going to make that happen in this crazy world we live in and with the idiotic leadership that is handling this whole thing. But I don’t know, I hope that in the end, whether through herd immunity or a vaccine they find in the labs, I don’t know, somehow—in any case it’s clear that all these lockdowns and all these stupidities have done nothing here—but in the end it will probably pass somehow. So inshallah, soon. A good year and may you be sealed for good.