The Periphery of Halakha – Lesson 7

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[Rabbi Michael Abraham] By implication, yes, they do receive punishment for something like that. What? By implication, yes, they do receive punishment for something like that. Like I said earlier. But never mind—I’m also saying, and I also think, that here one should not punish; rather, this is a noble act. I claim that about our example too. I’m saying that we need to resort to the courts—”noble” is an exaggeration; it’s the act that ought to be done. We need to resort to the courts even though it is forbidden. So if there were punishment for such a thing, then in my personal opinion one should not punish someone who does it. Because that’s what he is supposed to do. So that is a second formulation.

Now I want to comment a little on what I said earlier: what exactly is the relationship between these two categories? On the face of it, they are very similar. What is a transgression for its own sake? In a place where there is a sufficiently strong value that overrides the halakhic value, I do not obey Jewish law. What is the first formulation I gave? A clash of values. The same thing: there is some external value strong enough that I violate the halakhic value. So what is the difference between the formulations? I’m not entirely sure there is a difference, but I’ll give you something that seems to me perhaps to make a difference between the two formulations.

In the context of a clash between values, I’m basically talking about, say, a moral value versus the halakhic value. Meaning, there is a value that belongs to a system external to Jewish law—for example morality, or any other value—and it stands against halakhic values. The question is which one prevails. That is a clash of values, and yes, sometimes this one prevails and sometimes that one does.

In the formulation of a transgression for its own sake—or at least in the last formulation I gave—it may be that we are not dealing here with an external value. This is a value that is actually found at the very basis of Jewish law itself. It’s not that there stands here a moral value that confronts the prohibition of secular courts. I claim that in the very essence of the legal conception of Jewish law—not because of an external value, not because of meta-Jewish law—if I understand the principled mindset of Jewish law, not just what Jewish law says on the table, then in my view Jewish law itself expects me to do this thing. In a certain sense I would even say that this could turn the act into something that is not a transgression at all. But then it is no longer a transgression for its own sake; it is simply what I am supposed to do.

True, from the standpoint of the simple halakhic instructions it is hard to find a justification for this. But I understand that the meta-Jewish law, the foundational conception of Jewish law, does indeed expect me to act this way. Since the basic conception of Jewish law clearly recognizes that a society needs to function properly, and there needs to be a legal system—what is “the law of the kingdom is law”? So the courts in Syria, all the… yes? You can bring many proofs for this from many directions, that there is such a meta-halakhic value: that a society should be run with an effective legal system. Perhaps the strongest proof is the commandment of laws incumbent upon the Noahides. The commandment of laws incumbent upon the Noahides is a commandment to establish a legal system that will run that society properly. So clearly, if the Noahides are obligated in this, then we are obligated in it too.

Now, true, from the standpoint of formal Jewish law, that will not help. From the standpoint of formal Jewish law, yes, one must establish a proper legal system according to Torah law. But here a situation has arisen—like in the case of Lot’s daughters—a pathological situation that the Sages did not have before their eyes: a situation in which there are judges fit to judge, Torah scholars, and nevertheless there is no possibility of establishing a legal system that operates according to Torah law. Society will not accept it; it simply cannot function that way today. What happens in such a situation?

So my meta-halakhic conception says that in such a situation the value that there be an effective legal system shared by society as a whole overrides the prohibition of secular courts. Now notice the difference between this and a clash between values, because here too I present it as though it were value against value. But the first value—I said, the value of proper social functioning—is not a moral value, or not only a moral value. It is first and foremost a meta-halakhic conception. It is what stands at the foundation of Jewish law itself. And therefore, in halakhic terms, this is Yose hitting Yose. That is, the foundational conception of Jewish law prevails over a specific halakhic instruction. This is not a value belonging to a system external to Jewish law that is set against a halakhic value; rather, there is here some meta-halakhic conception that, again, I extract from various sources and interpretive tools of one kind or another, but it is not written clearly anywhere.

And still, because it is clear to me that this is in fact the fundamental infrastructure on which the legal conception of Jewish law rests, it ought to override the prohibition of secular courts. First of all, I need there to be a legal system. Beyond that, I also need it to be according to Torah law. Therefore, if there is a legal system not according to Torah law and one according to Torah law, one should choose the one according to Torah law. But what happens if there is a clash between two situations, and I need to decide between them: one with no legal system at all, and the other an effective legal system not according to Torah law? About that, the laws did not speak. They compared a situation where there is a legal system not according to Torah law and one according to Torah law. But I say no: now we are in a third situation—no legal system at all, or an effective legal system but not according to Torah law. I claim that in this situation, Jewish law—or meta-Jewish law—even though there is no explicit instruction in Jewish law, the meta-halakhic consideration says that this is more important than the prohibition of secular courts. Because it is more fundamental. The prohibition of secular courts is on the second floor. First of all, there has to be a legal system. After that they tell me what kind of legal system. But clearly the ABC is that there be some legal system at all. And if the only option for such an effective system is one not according to Torah law, then there is nothing to be done—that is what we have.

This reminds me of what the Vizhnitz Rebbe—I think I mentioned this already—what the Vizhnitz Rebbe, the author of Dammesek Eliezer, if I remember correctly, said: it is better to stumble in baseless love than in baseless hatred. And I always think in that context that it is better not to stumble in either one. Very often we compare between two situations, but we forget that in the larger picture there is also a third situation. And I do not always have to decide specifically between those two situations. Sometimes there is a third situation that is the correct one. Here too, I keep thinking about the two situations: judging according to Torah law or judging not according to Torah law. But there is a third situation here—not judging at all, there being no legal system whatsoever. That too must be taken into account when we compare the options. Very often we focus on two options and forget that there is a third option that needs to be considered.

Anyway, my claim is that there may indeed be some difference here between the first mechanism, a clash of values, and the second mechanism, a transgression for its own sake—or the cousin of a transgression for its own sake, namely conscientious refusal. Here it is not exactly conscientious refusal. According to the last formulation I gave, it is almost an obviously illegal order. To tell me to judge by Torah law is an obviously illegal order. And why? Because the principles of the halakhic system itself tell me otherwise. This is not an external value, in which case you could say transgression for its own sake or conscientious refusal because these are my personal values standing against the law. Here these are values that stand at the basis of the legal system itself—the halakhic law, in this case. And therefore it is a somewhat different situation.

I’ll remind you of what I said in the previous class as well. There is a philosopher or legal thinker named Ronald Dworkin, who argued that there are two kinds of rules that a judge—or a legal interpreter—must take into account. One of them is rules, and the other is called principles. Rules and principles. That is, rules are something the legislator himself established. There are rules for interpretation; there is the Interpretation Law, yes? So the Interpretation Law says how one approaches interpretation. On that too the legislator gave instructions on how to interpret. Those can be called rules.

And besides that there are principles. What are principles? Principles are rules that the legislator did not formulate. They do not appear in the statute book, and yet it is clear to the judge that they stand at the basis of our social-legal conception, or perhaps even of humanity as a whole. If these are basic moral laws like in the Nuremberg trials, then it is humanity as a whole. But Ronald Dworkin is not talking about that; that is extreme. Ronald Dworkin is talking about something more innovative. He wants to argue that even if there is a legal system whose foundations are not basic moral principles, but rather principles that underlie the conception of a given society—say in the State of Israel, or in Belgium, it does not matter where—and this is not something universal, but in that society it is clear, decisive, unequivocal, a foundational rule, even though the legislator never wrote it anywhere—Ronald Dworkin says: as far as I am concerned, this is a legal rule. One must take it into account as well when interpreting the law.

If I really see it this way, then the last mechanism I described is actually closer to that than to a transgression for its own sake. Because a transgression for its own sake still sounds like some kind of clash with an external value. What I am saying here, in a certain sense—true, there is no halakhic permit for it, but I would not call it a transgression. It is not a transgression for its own sake. It is not a transgression at all. Because the reason I do it is not due to some other “for its own sake,” but because of what I perceive Jewish law itself expects of me. In that sense it is not a transgression, because this is what Jewish law wants me to do—or meta-Jewish law, since the enacted Jewish law does not contain this instruction. But the meta-halakhic conception, in that sense very similar to Dworkin’s principles, quite clearly requires me to do this, at least in my assessment. Others may disagree with me, but if that is what seems correct to me, then I am supposed to act that way, and it may very well be that it is not even right to call this a transgression for its own sake. Not even a transgression. Rather, an overriding of unarticulated meta-Jewish law over a specific Jewish law that is articulated. The principled infrastructure of the legal conception has priority over a specific legal instruction, even though that principled infrastructure is formulated nowhere and does not appear explicitly in the law books.

In other formulations one could say—perhaps I’ll sharpen it more—according to what I am saying now, in the last formulation I proposed, one might even call it a third formulation already: this is no longer a transgression for its own sake but rather taking meta-halakhic principles into account. That is, principles that emerge from Jewish law itself, but not from its instructions, rather from its subtext. This can already be interpreted as something like what I said earlier—that it is not a transgression at all. That is, there is no dilemma here at all. This is what the halakhic system itself expects me to do, and not some external value that clashes with the instructions of Jewish law and overrides them. In that sense this is somewhat different from a transgression for its own sake.

By the way, I mentioned perhaps—I no longer remember whether I mentioned this—in the context of Dworkin and principles, there too there are two formulations. One could say that these principles are not part of the law but they are binding, in which case that really goes with the first formulation I gave: an external value that clashes with the law. But Dworkin was a positivist. Therefore, Dworkin basically does not accept the validity, or is unwilling to give legal status, to values outside the law. They have no legal status. They are conscientious refusal, but still it will be a transgression and you will be held accountable for it. Maybe it is legitimate because you have your own values, but it has no standing within the legal system itself. One cannot say that what you did is not a transgression.

So how does Dworkin bring his principles into positivist thinking? He simply says that these principles are as if they were legislated implicitly. They did not go through legislation in the Knesset, but they were enacted by the very fact that they are accepted by the public, so there is no need to legislate them. They are considered part of formal law even though they were never legislated at all. Then this has full legal standing, unlike other external values. It has full legal standing, and even as a proper positivist you can take it into account in your legal interpretation. And if that is really so, then the result is not a violation of the law; it is not a legitimate violation of the law; it is not called violating the law at all. It is what the law says, because these meta-legal principles are in fact part of the legal system itself. Even though I derived this through my own interpretation, and perhaps others will disagree with me, and it is written nowhere and did not go through legislation in the formal sense in parliament or in the Knesset, as positivists require—that no law has validity unless it goes through legislation. Dworkin’s claim is that there are mechanisms of implicit legislation. That is, something that does not require legislation because everyone understands that it is the ABC of that society. Legislation is needed only where something is not self-evident, so society has to vote that it nonetheless accepts the rule, the principle. But if there is something clear, then there is no need for legislation. It is enacted and standing. And again, not necessarily basic moral principles as people usually think, but also things that are the basics of the particular society under discussion.

In this context one might also enlist a term attributed to the Chazon Ish: the fifth section of the Shulchan Arukh. As is known, the Shulchan Arukh has four sections: Orach Chayim, Even HaEzer, Yoreh De’ah, and Choshen Mishpat. But the Chazon Ish says that a halakhic decisor cannot suffice with only the four written sections of the Shulchan Arukh. There is some fifth section that is written nowhere, no less important and sometimes even more important than the written sections. And it seems to me that what he means by this is what I said earlier: there are certain meta-halakhic values not written in the Shulchan Arukh, but it is completely clear that they have the force of Jewish law written in the Shulchan Arukh, if not more than that. And sometimes they will even override a formal halakhic prohibition written in the Shulchan Arukh.

If that is so, then I return to the issue of secular courts, and here I can say that my meta-halakhic conception tells me there is no alternative—I must resort to the courts in the State of Israel, and then this is not even a transgression for its own sake, but rather what must be done. Whoever does not do this is the offender. Whoever goes to the rabbinical courts is the offender according to this conception. You have to understand—that is a bit extreme. He is the offender because what is right to do in the legal, meta-legal conception of Jewish law is to go to the courts and not to the rabbinical courts. It sounds a bit radical.

There are similar formulations, like “the Torah was not given to ministering angels,” or all sorts of things of that kind. They all revolve around certain meta-halakhic principles involved in halakhic judgment. I’ll now bring a few examples so you can see that this is not quite as bizarre as it may seem at first glance.

The Netziv, in Ha’amek She’elah, in his responsa—I’m sharing it here—speaks about… you know that several times in Jewish history there was a dilemma whether to separate communities. Separation of communities means that when communities arose that were not fully loyal to Jewish law—Maskilim, Reform, Conservative, Neolog, it does not matter, all sorts of relatively new movements—overall, when you live in exile, the Jewish community is some concept that has representation before the authorities, that is, it has legal standing in many places. And the question arose whether to preserve this legal concept or split it. That is, to declare that there are several Jewish communities, like several religions—just as there is a Muslim minority and a Jewish minority, so too there is an Orthodox Jewish minority and a Reform Jewish minority—or to preserve the Jewish community in all its streams as one community, at least before the outside authorities. This is what is called the issue of separating communities.

And this came up on several occasions with the Ktav Sofer, the son of the Chatam Sofer, in Hungary, and the Netziv wrote about it too, among others. The Netziv addresses it in his responsa, Meshiv Davar, part 1, siman 44, and there he responds to a proposal that appeared in a periodical called HaMa’arikh. There a proposal was raised to separate jurisdictions, that is, to part from the Maskilim, from the Reform, from all the Buddhists and all these sectarians—meaning not those who were not part of the Jewish community at all, but all those parts of the Jewish community that were not loyal to Jewish law ideologically. We are not talking about lax people or people who were not meticulous about every detail, but those who adopted a different conception not loyal to Jewish law in its ordinary sense. A proposal was raised to separate communities. Then a major polemic broke out, and the Netziv wrote a very principled and very interesting responsum about it. And he writes as follows:

“And behold, HaMa’arikh, in that journal, instructed and advised to protect ourselves from this generation by separating from one another completely, as Abraham separated from Lot. I beg of HaMa’arikh: this advice is as harsh as swords to the body of the nation and its survival.” That is, says the Netziv, there is a meta-halakhic consideration here, because of which one may not take this step, even though in principle it is called for. On the face of simple considerations, it is a called-for step—why should you carry all these people on your back?

“Indeed, when we were in the Holy Land and almost autonomous in the days of the Second Temple, the land recoiled”—if I understand correctly, I don’t know exactly what he means here—”the Temple was destroyed and Israel exiled because of the dispute between the Pharisees and the Sadducees. And it also brought upon us, because of baseless hatred, much bloodshed, which is not according to the law.” Namely, when a Pharisee—he is speaking specifically about the Pharisees, notice—saw that someone was lenient in some matter, even though he was not a Sadducee at all, really not a Sadducee, but he was lenient, or relied on a lenient opinion, or was lax, it doesn’t matter. But one of the zealous Pharisees saw someone being lenient—rather, committing a transgression—and because of baseless hatred judged him as a Sadducee, of whom the rule is that one lowers them into a pit and does not raise them up, and proclaimed him a Sadducee. And from this bloodshed multiplied, under permission and in the name of commandment, in error.” The motivations are “under permission” and “in the name of commandment,” but clearly there is no justification for that; it is an error.

“And the Torah already alluded to this as explained”—never mind—”and all this etc.,” I do not know what those initials stand for. “And all this is not far-fetched, Heaven forbid, to happen also at such a time as this, when in the eyes of one of those who uphold religion, it seems that so-and-so is not conducting himself according to his path in the service of God, and he judges him as a heretic and distances himself from him, and they pursue one another with license and false imagination, Heaven forbid, and corrupt the entire people of God, Heaven forbid.”

That is, even if we were in our land and under our own authority—the Sadducees and Pharisees were in the Land of Israel, when we were more or less under our own authority, not entirely, not full independence, but more or less, as he himself says above, “almost autonomous.” “How much more so now, when we are subdued in exile and Israel is scattered among the nations, and we are likened in exile to the dust of the earth, as the Holy One, blessed be He, said to our father Jacob: ‘And your offspring shall be like the dust of the earth.’ And the nations of the world are likened to many rushing waters, as it is written in Isaiah: ‘Ah, the roar of many peoples, who roar like the roaring of the seas.’ There is no remedy for a clod of dust in the rush of many waters, unless the dust is made into a solid stone—unity. Then even if a rushing river passes over it, it only rolls it from place to place, but does not destroy it entirely, unlike dust. So too Israel among the nations has no remedy except to be the Stone of Israel”—a biblical term that of course he uses figuratively—”namely, they should be bound together in one bundle, and then no nation or tongue can destroy them. How then can we say to separate each man from his fellow, and the nations of the world will come and sweep them away little by little, Heaven forbid?”

So essentially the Netziv claims that this separation even has halakhic aspects. Because essentially you are talking about partnership with people whom in principle, according to the conception of some people at least, you should lower into a pit and not raise up. The Netziv says: true, but the moment we define two communities with two separate entities, like the Sadducees and the Pharisees, there is very great danger that wars will begin, some of them unjustified. You will seize someone, suspect him of being a Sadducee, and lower him into a pit, even though the actual Sadducee himself might indeed have been lowered into a pit. But because of the implications, I tell you: do not separate even from the real Sadducee. That is, because of the meta-halakhic consideration, because of future concerns, the Netziv says: I strongly oppose separating these communities.

And here too it seems to me that the Netziv does not mean to talk about saving life. That in the end we will lower him into the pit and not raise him because we think he is a Sadducee when really he is not. That is a literary depiction of another motive. What the Netziv is really trying to say is: we must remain one unit, like his parable of the stone and the dust. Looking at future concerns and danger to life is merely a literary illustration, you could call it that. That was not his consideration. It is not a consideration of danger to life; it is a meta-halakhic principle that says we are supposed to remain together, even though on the face of the cold and simple—indeed simplistic—consideration, we ought to separate. Therefore I think this is a good example of integrating a meta-halakhic or conceptual consideration into decision-making.

There were halakhic considerations there too in that context. Incidentally, throughout the whole responsum the Netziv makes use of various midrashim, verses, and his interpretations of verses, almost without halakhic sources. There are no halakhic sources. Because what he is saying here is not a halakhic statement; it is a meta-halakhic statement. It is a meta-halakhic consideration, but it is clear to him that it overrides every other consideration, however strong. And look at the level of homiletics he uses to justify that meta-halakhic consideration: stone and dust, and with the stone the waters come and roll it but do not cover it, but the dust… fine, it is a children’s story, a nice story for kindergarten. What—is that a halakhic consideration? The answer is yes, because it is a literary depiction of a principled calculation, or a meta-halakhic calculation. He does not intend to derive it from those verses of the Stone of Israel and dust and stone and his homiletics. That is not the point. It is merely a literary expression of a consideration that is meta-halakhic. So I think this is a very good example of the matter, and especially good because we are not talking here about a moral value. The unity of the Jewish people is not a moral value; it is a Torah value. In moral terms, why should one remain united with people who advocate an entirely different value system, who deny the Torah? I do not see a value there, certainly not a moral value. I’m not even sure I see in it a religious value, by the way. But the Netziv saw in it a distinctly religious value, and for him that was the consideration that tipped the scale here.

Okay. Another formulation one could suggest for this matter is to hang it on… no, I am bringing all these formulations in relation to secular courts, because in fact each formulation looks from a different angle at peripheral considerations. So this is not only in order to exhaust the issue of secular courts. I use the issue of secular courts as a touchstone or an example for various mechanisms of peripheral considerations.

So the next mechanism—which again, in my opinion, is a special case of the previous one—is: “the Torah was not given to ministering angels.” What does that mean? Someone could come and say—and I really think this is correct, though one could argue with it—that the Torah was given to human beings. “The heavens are the heavens of the Lord, but the earth He has given to human beings.” What does that mean? The Torah does not expect us to live abnormal lives. That is, there is normative behavior, reasonable behavior, of an individual and of a society, and the Torah does not expect us to depart from this plain and reasonable behavior, even at the price of prohibitions sometimes.

I will perhaps bring a few common and relatively agreed-upon examples. Rabbi Shlomo Zalman, in his responsa Minchat Shlomo, brings this consideration several times. For example, he writes about cigarette smoking, or about driving at excessive speed—I think he mentions that too; if not, perhaps I am the one who extended it there. I do not remember. In my article I wrote about excessive speed. Rabbi Shlomo Zalman says: after medicine had already discovered that cigarettes are harmful, is smoking now forbidden because of danger to life, because of “and live by them”? Is it forbidden to smoke cigarettes? Is that a halakhic prohibition? Rabbi Shlomo Zalman argues that it is not.

Why not? Because as long as smoking is perceived in the world as a normative act, it is not a suicidal act. It is not jumping off the roof of a building, okay? True, it is dangerous, but fine, people take risks. There is nothing to be done. For status people take risks. Whipped-cream cake is dangerous too—it makes you fat, and if you eat too much of it it is dangerous. Or extreme sports—that too is dangerous. So is it forbidden to do that? No, it is permitted. As long as the action is considered in the world to be a normative action, it is permitted. What about danger to life? There is risk here at levels that in other contexts we clearly would have had to avoid. I think—and I did not check statistics—but I am almost certain that cigarette smoking kills far more than Corona on the whole. And still, cigarette smoking he was prepared to permit, while regarding Corona I assume he would say to be careful. Why? Because cigarette smoking is still considered a normative act of a normative person. When you see someone smoking, you do not say he is committing suicide. Once this is a normative person, you cannot say Jewish law requires me not to do it, because it is a normative action.

Again, one could say that speaking slanderously is also a normative action, and in that sense Jewish law does not require me to refrain from that either. By the way, I do not reject that. It could very well be that within certain bounds, where every normative person here and there chatters a little malicious gossip, there may be room to say that it would not be forbidden. Of course, someone who manages to avoid even that is on a higher level, but on the principled halakhic level I do not entirely reject the possibility that such a thing would not be forbidden. This of course depends on context—how severe the prohibition is, how important the norm is, and so on. But for our purposes, I am saying that there is such a system of considerations.

Someone who exceeds the speed limit on the road—where ninety kilometers an hour is permitted, he drives one hundred. Not something suicidal, but something that on the whole most normative human beings do from time to time, okay? So he has not violated a prohibition. He has not violated “and live by them,” because this is a normative action. Is it dangerous? True, dangerous—so what? Dangerous. But as long as it is a normative action, “the heavens are the heavens of the Lord, but the earth He has given to human beings.” Meaning, you are supposed to conduct yourself in a normal way. I will perhaps bring another example.

[Speaker C] Maimonides writes in Laws of Character, chapter 6, at the beginning of chapter 6. Let me share it for a moment.

[Rabbi Michael Abraham] Maimonides says as follows: “And if all the lands whose conduct he knows and about which he hears reports follow a path that is not good, as in our times, or if he cannot go to a land whose customs are good because of military forces or because of illness, he should sit alone, solitary, as it says: ‘Let him sit alone and be silent.’ And if they are wicked and sinful and do not allow him to live in the country unless he mingles with them and follows their evil customs”—they tell him, if you are in our society then you will sit and speak malicious gossip with us; that is part of society, otherwise we will not accept you—Maimonides says: if they will not accept you, “go out to caves and thickets and deserts, and do not accustom yourself to the path of sinners, as it says: ‘Oh that I had in the wilderness a lodging place for wayfaring men.'” Of course this homily is only a literary expression.

There is an interesting comment here by the Alter of Novardok, who says: think who that person is who would read this Maimonides and actually go live in a cave in the desert and not in human society because he cannot avoid transgressions. He would have to be some supremely righteous person, right? And even someone like that, if he fears that he cannot avoid transgressions, is supposed to go to the deserts and live in caves. A true Novardok guy.

Anyway, for our purposes, the claim is basically that there is no counsel and no wisdom against God. Now in practice—leave aside for a moment whether there are such sources or other sources; there are sources too—factually, nobody does that. Nobody does that. Even the Haredim, who in principle advocate such a policy, of secluding themselves so as not to stumble into transgressions—if we mix with the general public, we will stumble into transgressions—even so, there are transgressions also in Haredi society, and still they do not tell a person: lock yourself in your house and do not leave. At least most people I know do not advocate such a conception. And not only because if you corner them, maybe they will tell you it is simply because we would not be able to stand by it—not as a matter of principle, but simply, what can you do, we compromise. I think there is something deeper here.

The Torah was given to us to be fulfilled in our world, within ordinary human society, with all four species, including the willow branches, not only the etrogs. We are supposed to observe the Torah within a human society that functions normally. And if in order to observe the Torah you need to live in a cave in the desert alone—then do not go there. Stay within human society and do not go to the desert, even at the price that you may come to commit transgressions. Try not to, but even at the price that you know you will fail. Why? Because the Torah—and again, this is a meta-halakhic principle, it is not written anywhere in principle—but as a meta-halakhic principle I say: the Torah was given to a human society that functions normally, and not to a collection of monks living in caves in the desert.

What does that contradict? Does it override the prohibition of malicious gossip? Or perhaps even more severe prohibitions? Never mind, all sorts of prohibitions. Someone who lives in a cave in the desert will never steal, never speak malicious gossip, many prohibitions—he will never violate any of the interpersonal prohibitions. Everything will be fine. Look how many transgressions he saves himself, and how many commandments—well, commandments he will not fulfill either. There is no “love your neighbor as yourself” when you have no neighbor. But look how many transgressions he saves. And yet it seems that the accepted approach is that it is not right to live in a cave in the desert, even if that involves transgressions. Why? Because there is a meta-halakhic principle, which again can be extracted in various ways from various sources, but it is not something written and formulated clearly in a halakhic source, that says a society must conduct itself in a normal and reasonable manner. And if Jewish law requires you to behave in an unreasonable way—”the Torah was not given to ministering angels.” So leave aside the law, stay in ordinary human society, with the costs.

Of course, it depends what the costs are, what counts as ordinary human society—I have not given a criterion here, and of course much can be debated—but I am speaking on the principled level. There is such a logic in halakhic thinking. And I think this is also what underlies the statements I mentioned earlier of Rabbi Shlomo Zalman, who says that if the action is considered a normative action, then one cannot say the person doing it is committing suicide. That is simply not correct. In a normal human society there are quite a few people who do this—they smoke. You cannot say that smoking is suicide. Even though the very same level of risk in another context would be halakhically forbidden. Because the Torah was not given to ministering angels. If these are reasonable, normal, normative human beings, then one cannot say this is unacceptable behavior.

The same applies, by the way, with standards of modesty. Standards of modesty are not only a matter of undressing; they depend on the environment. There is something here about reasonable norms. Why, for example, do the women in full-body cloaks arouse so much antagonism even among Haredi halakhic decisors? If you corner Haredim, they will tell you: because people will not be able to stand by it, and therefore it is not worthwhile—a decree the public cannot uphold. But in principle, they might say, this is indeed a path worthy of appreciation, a path for elevated people, and so on. I think that is post facto rationalization. Deep down they oppose it because it is not right to behave that way. Why? It is the most modest thing there is. The whole body is covered, nothing is seen, everything is black, only holes for the eyes, if that—some do not even have that. The most modest thing possible. What is wrong with it? What is wrong with it is simply that it is not normative. It is not sensible. Human society does not behave that way. You speak to someone—you want to see whom you are speaking to. You want to see his body language; that is part of speech. You cannot speak to someone who is a sphinx behind a large black robe.

Therefore, since this is not a normative way, it is not right to do it, even though it is ostensibly the most modest thing. Very few people will give you that reason. Most will rationalize. They will say we would not be able to stand by it, or that some other problems would arise, other halakhic problems because of which it is forbidden, all sorts of things like that. I think these are all post facto rationalizations. People do not realize that they actually have a very deep intuition that a Jewish person obligated by Jewish law must live in a normative way. And if it is a non-normative life, that is not what Jewish law wants from me. Ah, where is that written, in what verse does it say that? I do not know. But that is the simple meta-halakhic conception I have, and it overrides halakhic principles. Modesty is a halakhic principle.

So my claim is that this is a meta principle. What I brought earlier is also an example of a meta-halakhic principle, but there it was not some specific problem that society would collapse and certain consequences would occur. If the Torah is meant to be fulfilled within a functioning society, then the problem is not the value of preserving a functioning society. This goes further than the formulation I gave earlier. My claim is not that the value of a functioning society overrides the prohibition of secular courts, but that Jewish law expects me to live in a functioning society, and therefore the prohibition of secular courts is not relevant in such a society. It is a nuance, but it is more extreme than the formulation I gave earlier. It is simply not normative. Not that there is a value in being in a functioning society, but a normative society is a functioning society, a society of human beings. The Torah expects us to live in a society of human beings, not in a collection of monks each in a different cave not getting along with one another. Therefore I think there is room to permit, and one should permit, resort to the courts despite the prohibition involved.

Another formulation on this matter.

[Speaker C] There is—I think I brought this once, I do not know if in this series—but I once brought the halakhic rule

[Rabbi Michael Abraham] that says that an enactment or decree that did not spread among the majority of the public is void. Usually people think that a decree that did not spread among the majority of the public is void because if the public cannot uphold it, one does not decree a decree upon the public that it cannot uphold. I claim that not decreeing a decree upon the public if it cannot uphold it, and the principle that a decree that did not spread among the public is void, are two entirely different principles. Not decreeing a decree upon the public if it cannot uphold it is a consideration made by a religious court when it comes to decree the decree. It has to assess whether the public will stand by it. And if the public will not stand by it, then compromise—even though it would be right to do it, compromise, do not do it, because the public cannot uphold it.

The claim that a decree that did not spread among the public is void is a stronger claim. If it did not spread among the public, then it is not right. Not just that therefore you too should not do it because Jewish law is supposed to be able to be fulfilled in all strata of the public. And something that cannot be fulfilled in all strata of the public is not Jewish law. Even if you are an elevated person and you want to do it, it is not right to do it; it is not Jewish law. And what basically lies behind this—and I spoke about this in the past—is that very often when new decrees or enactments emerge from a religious court or some study hall, whoever thought of it, whoever issues it, is in fact a group of Torah scholars whose occupation is Torah. But it is a product of the study hall, and the study hall often thinks in an ungrounded way, disconnected from the everyday lives of human beings.

Therefore, when the enactment does not spread among the public, the public is actually giving feedback to the religious court or study hall that established that decree or enactment. It is telling them: this is not right. This is a detached way of thinking. So it is not merely that we cannot keep it, so please take us into account and compromise. It is much stronger than that. If we do not keep it, then it is not right. Therefore it is not proper to do it; that is not what Jewish law expects us to do. You too should not do it, even if you are able to keep it. And that is basically the claim. Why? Again, because a normative society is one built both of etrogs and willow branches. That is society, like the separation of communities I discussed earlier. And Torah needs to be fulfilled by society as a whole. Here, of course, we are talking about a society faithful to the commandments, not a society entirely unrelated to the commandments. In that sense it is not like separating communities, but the principle is similar. And a Jewish law that cannot be fulfilled by the public as a whole is void. One simply cannot do it; it is simply not correct Jewish law, it is void on its own. Because Jewish law has to be possible for the public as a whole. That does not mean people will not fail. That does not mean we will not stumble here and there, of course. But basically it has to be something relevant to the public as a whole. If it is not relevant to the whole public, then it is simply not correct Jewish law.

And again, because ultimately the Torah was not given to ministering angels. The Torah was given to a normal society, and in a normal society there are willow branches and etrogs. That is all. And the laws are supposed to relate to all parts of society. In that sense I want to claim that the permit—or even the obligation, in my view—to go to the courts, can also be based on an argument of this sort. It is an argument that says: Jewish law is not built for a collection of study halls with rabbinical courts judging society from within the study hall—the oilem and not the world, in the language of the Chazon Ish. No—it is built for the world, not for the oilem. Again, by “world” I mean those who are faithful to Jewish law; I am not speaking about people entirely unrelated to Jewish law, because then what Jewish law says is not relevant to them. But it is relevant in the sense that a legal system has to be effective for society as a whole, including—

[Speaker D] Excuse me, Rabbi? Yes. Excuse me? Yes. I can’t hear, sorry.

[Rabbi Michael Abraham] I’ll continue—I thought you wanted to ask something. The claim, basically, is that a properly ordered society, a normal society, is one that doesn’t break apart into all kinds of separate religious courts. By the way, look at Haredi society: there’s a religious court for the Hasidim, and a religious court for the Lithuanians, and a religious court for this Hasidic group and that Hasidic group, and in effect there isn’t any shared legal system at all. The moment you move to a private system, even within the Haredi world, it’s no longer one system. It’s a decentralized system, and in many cases you can’t even adjudicate between people who belong to different communities in the same religious court. That means that a society conducted in that way is not a normative society; you can’t function like that. That’s another indication, in the last formulation I suggested here, that in fact one must go to the courts, because otherwise society simply falls apart, and that is not a normative situation. The Torah is supposed to exist within a normative world. Look, for example, there is Tosafot in tractate Avodah Zarah on page 15. According to the Talmud, there is a prohibition against selling idol worshippers calves, foals, and all kinds of impure animals, out of concern that they will have relations with them or things like that—there are various explanations there in the Talmud. In any case, it is forbidden. Now Tosafot says—I’ll share for a moment—Tosafot in Avodah Zarah: “We see that according to everyone, both Rashbam and Rabbenu Tam, it is forbidden to sell idol worshippers calves and foals and any impure animal. Therefore one should wonder what they relied on in selling calves and foals to idol worshippers.” People do it every day—they sell calves and foals to idol worshippers, to gentiles. What are they relying on? This is a halakhic prohibition agreed on by all opinions. In another minute you’ll vanish, your memory going up in smoke, your hair that caresses—what is that? What’s going on here? I don’t know, there’s some kind of… is there a hacker here, what happened? In any case, Tosafot says, “Who are those who are accustomed to sell to idol worshippers”—difficult, never mind, he offers a partial answer there. “And one can say: certainly this prohibition against selling an impure animal applied specifically in their times, when many Jews lived together. Then, if a person had an animal he did not need, he would sell it to his fellow and would not incur a loss. But now, what should he do, when he finds no one to sell it to—should he lose it?”

[Speaker E] In another minute you’ll vanish, your memory going up in smoke—I think you should show your talent somewhere else—the silences of the warm heart.

[Speaker F] What is that? What’s going on here?

[Rabbi Michael Abraham] I don’t know, there’s some kind of…

[Speaker F] Is there a hacker here, what happened?

[Rabbi Michael Abraham] In any case, Tosafot says that what they relied on in the time of Tosafot to sell calves and foals to idol worshippers—so he says why: because the prohibition on selling applied specifically in their times, when many Jews lived together. Then if a person had an animal and didn’t need it, he sold it to another Jew and everything was fine. What happens now? There are five Jews in the village. The other four Jews don’t need my calf that I don’t need. So what am I supposed to do—get stuck with a calf? A calf is something expensive, thousands of shekels. Okay? I can’t get stuck with that. Now notice: this is not saving a life. This is not a consideration of saving life. I’m stuck with a calf worth thousands of shekels. I have no one to sell it to, because to gentiles it’s forbidden, and the five Jews here don’t need it. So what do you do?

[Speaker G] Tosafot says: in another minute you’ll vanish, your memory going up in smoke, the silences of the warm heart. Evening.

[Speaker F] Fine.

[Rabbi Michael Abraham] I liked that one. Fine. In any case, Tosafot says: “But what should a person do, if he finds no one to sell to and must lose it?” Yes—what do you mean? “There is no counsel and no wisdom against the Lord.” And therefore the Geonim in the Diaspora adopted a leniency in this matter. And here too later on he brings another example of this. What do you mean—where did he get that from? What kind of interpretation is that? Everything they prohibited—there is no halakhic source for this leniency. It’s forbidden?

[Speaker D] Because it’s not saving a life either.

[Rabbi Michael Abraham] Tosafot says, נכון—but what am I supposed to do, stay with a calf worth thousands of shekels and have no one to sell it to? Completely unreasonable. It just doesn’t work. Meaning, it just doesn’t work, so Tosafot says that it is permitted.

[Speaker D] It doesn’t sound like the most…

[Rabbi Michael Abraham] What kind of consideration is that? This consideration, again, apparently is not a consideration of saving life. It’s a consideration that says: it’s not reasonable to live that way. People won’t be able to live like that. You won’t buy an animal, because you know that if you don’t need it, you won’t be able to get rid of it. So how will you make a living? In the end the whole business will collapse; you can’t function like that. But again, it’s not that someone will die in the end—this is not saving life. By the way, this is a Torah-level prohibition, not a rabbinic prohibition. “Do not place a stumbling block”—a Torah-level prohibition, even regarding a gentile. So Tosafot says yes, but it just doesn’t work. It’s obvious that in such a reality it is unreasonable to live this way. It is unreasonable not to allow people to deal in livestock—after all, that was their livelihood there, you have to understand. The Jews of that period probably were not large-scale farmers. At most they had animals. There were many other things they also could not do. You can’t live like that, says Tosafot. Therefore the prohibition is nullified. There’s more of this. There is a book by Professor Haym Soloveitchik—yes, the son of Rabbi Soloveitchik—who is a historian. It is called “Jewish Law, Economy, and Self-Image.” In that book he surveys, very systematically, astonishing leniencies in the laws of interest that one finds among the Spanish and Ashkenazic medieval authorities (Rishonim) in the Middle Ages, directly against the words of the Talmud. Son of a bitch, you whore.

[Speaker H] Wow. What a—

[Rabbi Michael Abraham] So the claim is, prima facie, that there are situations in which medieval authorities (Rishonim) permitted prohibitions—he brings examples of this, apparently including Torah-level prohibitions too, if I remember correctly—because in that situation it was impossible to make a living in a reasonable way. And again, this is not saving a life; rather, it is simply unreasonable living. Once life becomes unreasonable, they permit prohibitions directly against the Talmud. By the way, an interesting note from Haym Soloveitchik: none of these leniencies made it into the Shulchan Arukh. That’s very interesting—the evolution of Jewish law is fascinating. All kinds of special leniencies arise, but the halakhic ruling that ultimately converges into the Shulchan Arukh and passes on to later generations—this does not enter. It gets pushed out. It remains local and temporary, but it does not join the body of Jewish law. But for that place and time they permitted it, because this was a pathological situation. This was a situation in which it was impossible to live in the way Jewish law demands. It just doesn’t work. And once it just doesn’t work, you don’t have to do it. It sounds like a fairly radical argument, but it seems to me that this is what emerges from all these sources. Okay, I’ll stop here. If anyone has a relatively short comment, because today I’m rushing to another meeting—so if anyone has a comment or question, you’re welcome.

[Speaker C] Does anyone want to comment or ask?

[Rabbi Michael Abraham] Okay, so we’ll stop here. Goodbye, and have a happy holiday. We’ll actually see each other on the Thursday after Sukkot. During Sukkot itself there won’t be a class—it’s the night of Hoshana Rabbah, everyone with his own plans. So goodbye and happy holiday, good night.