Innovation, Conservatism, and Tradition – Lesson 6

[Rabbi Michael Abraham] Okay, so last time I talked about changes, midrashic changes—what I called midrashic conservatism—where the basis for change is not a change in the factual circumstances in which I operate, but a change in the value circumstances. Meaning, if we go back to the swimsuit metaphor, the claim that we need to switch to warm clothes because the factual circumstances changed—it used to be hot and now it’s cold. In some cases that really is the situation: reality changed, and therefore the way the halakhot are applied has to change in accordance with the changed circumstances. That’s what I called midrashic conservatism. But there are claims that there are situations where the proposal or demand for change in Jewish law stems from a change in values, not a factual change. And then I said that this is already much more problematic, because you’re essentially going against the values of the Torah, not just applying the Torah in different factual circumstances. The whole idea of midrashic conservatism is that I’m not disputing the values of the Torah—on the contrary, the way to implement them in the new circumstances is a different way precisely in order to remain faithful to them. I want to implement those same values in the new circumstances, and therefore, even from a conservative perspective, there shouldn’t be any problem with this kind of midrashic conservatism. But when you change the values of the Torah because of a value change, then the question arises: fine, so what exactly are you preserving? In midrashic conservatism you preserve the values; the application changes because the circumstances are different, but the values I preserve. Remember the presumption that a person does not repay before the due date? So I said: I preserve the halakhic principle that a presumption can shift the burden of proof from the plaintiff to the defendant. But whether the presumption is that a person does not repay before the due date or does repay before the due date—that’s a matter of circumstances. You have to examine whether today’s circumstances are different from what they were. So the value-principle is preserved, the facts can change, and then there’s no problem saying that I’m conservative, because I preserve the value or halakhic principle. If the circumstances change, then precisely as a conservative I am obligated to behave differently in order to preserve the values. To preserve the same values under different circumstances requires different behavior. That was the claim in midrashic conservatism. But if I now also change the value principle—that the burden of proof should depend on presumptions and so on, what I learned there in that passage—then what remains of that passage for my world? In what sense am I preserving that same Torah today? So not only have the circumstances changed, I’m no longer acting according to the Torah’s values either. So then what? In what sense is that possible within a framework of halakhic conservatism? That’s why value change is much more problematic than change based on facts, or a halakhic response to value change is more problematic than one to factual change. I want to stress that the argument—and I said this—the argument of Meiri, that the gentiles of today behave more morally and therefore the halakhic directives regarding them ought to change today, seems at first glance to be an argument based on value change. Gentiles used to be immoral and today they are moral. But that’s obviously not correct; it’s a factual change, not a value change. The facts about the level of morality among gentiles have changed. That does not mean that I am required to act according to different values. That’s what I called value change. Value change means: the values of the Torah are X, and today I want to act according to values Y, not according to the Torah’s values. Meiri is not making that claim. Meiri says: the gentiles are now moral, they behave morally, so a value change occurred among the gentiles, not among us. From our perspective that is a change in factual circumstances: gentiles used to be immoral and now they are moral; we’re dealing with different gentiles. So the instructions of Jewish law have to be applied differently to the new situation. That’s not a value change, it’s a factual change. So Meiri is not an example here. In that sense Meiri is almost a banal case. Circumstances changed, so obviously certain value-based directives regarding those circumstances are applied differently. The question is whether one can make a change on a value basis. So I spoke about that a bit. For example, someone who wants to change the attitude toward gentiles because of the value of equality—not because gentiles today behave morally, but because of the value of equality. Today, so the claim goes, it is unacceptable to treat people differently based on religion or nationality and so forth, and therefore the attitude toward gentiles should be changed. Like what Meiri proposes, but not on the basis of the factual change that gentiles today are moral and once were not. Let’s say the gentiles are no more moral than they used to be. But still, it just doesn’t fit—you can’t have us today acting in a way so contrary to accepted values, and therefore I propose changing those halakhot. The question is whether that is a valid claim. Or women’s testimony: I’m not going to claim that women have changed in their character or characteristics since the time of the Sages, but I say: today it is unacceptable to discriminate or treat women differently from men. Yes, very much an issue of the day in matters of the army. So no—it cannot be that we treat women and men differently, and therefore I claim that women should be qualified to testify. That is a completely different argument from the one we discussed in previous lectures. This is an argument proposing halakhic change on the basis of value change, not factual change. And then the obvious question is: in what sense are you faithful to Jewish law? You’re basically saying: Jewish law disqualifies women, nothing has changed, and I’m in favor of validating them. Why? Because I have some value of equality. Where does it come from? Not from Jewish law. It comes from somewhere else. So in other words, you are not faithful to Jewish law. You’re not acting according to the values of Jewish law. Okay.

[Speaker B] Because the value of equality was known even at the time when the Jewish law was established, and they ignored it among other things.

[Rabbi Michael Abraham] It was known, yes, but obviously not with its current scope and intensity. So one could still argue that there has been some change in the place that value occupies, in the attitude toward it. Yes, they recognized it in theory, they knew what equality was, but it didn’t occupy the same place it occupies today. In any event, what I wanted to argue is that changes like this are still possible, in my opinion at least, even within a conservative framework. Surprisingly enough. What do I mean? Here we have to take a few points into account. One point is that the values we’re talking about here—the Torah values we’re asking whether to preserve or not preserve, to change or not change—are not necessarily the values of the Torah. In a large number of cases, they are the values of the Sages. The Sages interpreted the Torah, and of course their interpretation also embeds value-conceptions. But those conceptions are not written in the Torah. They are an interpretation that the Sages made of the Torah according to their own value-conceptions. And now the question is whether I am committed to the value-conceptions of the Sages themselves, as opposed to the value-conception of the Torah. And here I’m very doubtful. Because just as when the Sages approached the Torah they interpreted it using the values that accompanied them, that they believed in, so too when we approach the Torah to interpret it, we will use the values accepted by us. Where do those values come from? If everything came from the Torah, then the distinction I’m making now wouldn’t arise, because the values of the Sages would just be the values of the Torah—or at least according to their interpretation. But I don’t think that’s true. Meaning, the values of the Sages, or our values, are values drawn from our own outlooks, our own reasoning, and also from our environment—as long as we genuinely identify with it, not just want to curry favor. So the claim is that the values of the Sages are not necessarily the values of the Torah, and therefore even if I don’t continue them but rather change them in light of, or because of, a value change that exists today or exists in me or exists in society generally, that does not necessarily mean that I am not preserving the values of the Torah. On the contrary, I am doing what the Sages did. Just as the Sages interpreted the Torah according to their values, I interpret the Torah according to my values. One can only raise questions of authority: am I allowed to do this? Because the Sages, or the Great Court, or whatever it may be, have some kind of authority. So I said, I talked a bit about how we can see this in several respects. In those halakhic contexts where we are bound by bottom lines and not by the values that underlie those bottom lines, our commitment to the Sages is commitment to their rulings, not necessarily to their conceptions. If within their rulings I see a socialist or capitalist conception or whatever, that doesn’t necessarily mean that my commitment to the Talmud means I have to be a socialist. No. I will obey those rulings that were established as Jewish law because I’m committed to Talmudic Jewish law, but in every other question or context I might be socialist or capitalist or whatever—it doesn’t necessarily commit me to what is written in the Talmud. I brought some examples of this from the Shakh in Yoreh De’ah, in Choshen Mishpat, and several other contexts. So that’s regarding fidelity to values. The first point is that the values under discussion are not always the values of the Torah but sometimes the values of the Sages. The second thing I argued is that it is not always the case that the claim “I want to change rabbinic Jewish law because of value change” means unfaithfulness to the values of the Sages. Let’s take the example of changing the status of women, yes, validating women for testimony. Now, I don’t think it would be right to say—as Shlomo noted earlier, and now I’ll take it a bit further—that the Sages did not have the value of equality. Not only did they recognize it, as Shlomo said before; I’m claiming that they also supported it. I assume that wherever there was no particular reason to distinguish, the Sages too would have said one should behave equally: “do not favor the poor in his dispute,” and so on. The point is that the Sages said women are disqualified from testimony because there was some specific reason for it, not because they denied the value of equality. Now here I’ll say: suppose that today the value of equality is much stronger and deeper than it was in the time of the Sages, and this is a value change, not a factual one. Suppose that women have not changed factually—just for the sake of the discussion I’ll assume that, because I want to focus on the value change. Okay? So let’s assume that factually women haven’t changed, but today the value of equality has become something that is really in the category of “it just doesn’t fit”—meaning, you just can’t have unequal treatment based on gender, nationality, religion, or whatever. Okay? In that situation, if I want to argue that women should be validated for testimony, that is not a revolt against the values of the Sages. It’s not that the Sages said, “we oppose the value of equality,” and now I support equality. I said earlier that even that wouldn’t necessarily be far-fetched, because the values of the Sages do not necessarily bind me. But now I’ll make an additional claim: let’s say the values of the Sages do bind me. Still, it’s not that the Sages said equality has no value. Equality has value; it is obviously a moral value both in the time of the Sages and in ours. It’s just that today it has become so strong that I assume perhaps even if the Sages were alive today, they would not disqualify women from testimony despite the reasons that existed then. Let’s say. Okay, I’m just raising a kind of argument without arguing right now whether it’s correct or not, only whether such a logic is legitimate. And I claim that it is, because I’m not going against a Torah value; rather, I’m taking a Torah value that receives a different status in our time and saying that if this is indeed its status, then the halakhic bottom line should be different. And in principle I’m saying: even if the Sages were alive today, under the existing value circumstances they might validate women’s testimony. That’s the claim. Now of course one can argue about it, agree with it or not—I don’t want to enter that debate at all. I only want to claim that this is not a far-fetched argument. So this is a logic that definitely still falls within the conservative framework. Now one can of course come and ask: okay, so what am I preserving? Still—fine, true, it’s legitimate, everything is fine—but what am I preserving? After all, I’m not preserving the values of the Sages here, and I’m not preserving the behavior or the bottom lines either, so in what sense can such an argument still be called conservative? The direct answer is that I’m really preserving nothing. Correct. But that’s because there is nothing here to preserve, since the rabbinic directive is not a value directive that I’m supposed to preserve. It is a certain balance between values that was relevant in the time of the Sages and is not relevant today. So it’s not that I’m rebelling against previous values; rather, I’m claiming that today’s reality dictates a different bottom line. Today’s value reality, not the factual one. If, say, the Sages had said explicitly on the value plane: we think equality is a bad value—not that it isn’t strong enough to prevent women from being disqualified as witnesses, which is what their words imply. No, suppose they had said equality is a corrupt, invalid value, as perhaps some people say today—that the new winds of PC and equality and political correctness are corrupt. They are corrupt in their excesses, but I don’t think it’s correct to say that the value of equality itself is corrupt. When you take it to distant and absurd places it becomes something corrupt, but it’s not that those values in themselves are problematic. Therefore, here there is no value change. If there were a value change, then there really would be room to ask what is being preserved here. Because if in the end I change everything the Sages say because of today’s values—or everything that the Torah or the Sages say—then nothing remains of my conservatism. I can also practice transcendental meditation today, and that won’t contradict rabbinic Jewish law. Does that mean I’m conservative? Neither conservative nor not conservative—it’s a lacuna, so I can do what I want. Conservative means that I preserve the values of the Torah. Preserving the values of the Torah means not going with other values in place of those values. But where the Torah’s own determination that I’m discussing is itself not based on a value issue, but at most on a certain relative weighting of an existing value like equality, there it is no longer far-fetched to say: okay, so this is really a value lacuna in the Sages. Meaning, a determination that is value-neutral with respect to the value itself. They thought women should be disqualified from testimony, but it’s not that they said the value of equality is invalid. So I am not opposing the halakhic value here and changing it and adopting another value in its place. Equality is a halakhic value. Its dosage can change because of today’s circumstances, and all the more so if I add to this the factual change that occurred regarding women. Of course these things combine, even though for the discussion I separated them in order to focus on each one independently, but in principle both aspects have to be taken into account. And one last point I also touched on is the question whether principles of morality are a tool in interpreting Jewish law. That’s an interesting question in itself; maybe I’ll get back to it a bit later. I’ll just note something about it—I don’t actually remember whether I said this last time. When I say that a certain halakhah does not accord with principles of morality, okay, I am basically assuming that this halakhah is a halakhah meant to express moral principles. And therefore, if it doesn’t accord with my moral principles, then I have a problem. It has to be changed, reconciled somehow; I’m in tension, in conflict. But if I assume that halakhah is not meant to reflect moral principles, but rather to reflect religious values that do not necessarily coincide with moral values—in fact, they can sometimes clash with them—then the question of moral interpretation of halakhic determinations becomes a bit problematic. Because, as I’ve said more than once regarding these questions of Jewish law and morality, all kinds of clashes—killing Amalekite babies, not saving a gentile on the Sabbath, not desecrating the Sabbath in order to save a gentile’s life, separating a kohen’s wife from her husband when she was raped, the law of mamzerim—those children didn’t do anything and we ruin their lives, and so on and so on. There are various halakhot that seem very problematic from a moral point of view. They seem problematic if you understand those halakhot as really supposed to fit the moral perspective—if basically the goal of Jewish law is to instruct me in the moral way I ought to behave. But if I understand that Jewish law is not dealing with morality at all, that is not its business; it deals with realizing religious purposes—let’s call them religious values rather than moral values—then when Jewish law clashes with morality or with contemporary values I am not supposed to see that as a contradiction. Jewish law, as the implementation of religious values, involves harm to a moral value. There is no conceptual contradiction in that, because halakhah is not trying to promote a moral value but a religious one. So it is no wonder that from time to time it clashes with promoting moral goals. Now one has to know what to do in practice. There are such clashes, so one has to ask what I actually do—do I do it or not? But on the conceptual level, the fact that there is a clash between Jewish law and morality should not trouble me as a contradiction. It is a conflict on the practical plane. The other side of the same coin is that a moral consideration should not be a consideration in halakhic interpretation. Apropos Moshe Halbertal—he has a book, Interpretive Revolutions in the Making, and there—was that his doctorate? I don’t remember anymore. His claim there is that there were cases where they really did make changes in Jewish law in light of value change, which is exactly our topic here. And what I’m basically arguing here is that if halakhah is not meant to promote moral values, then there is no logic in innovative midrash on the basis of value change. The fact that a value change occurred means nothing from the standpoint of Jewish law, because Jewish law does not deal with morality or moral values but with religious values. So why should I care about the moral change? At most, if a moral change occurred, then I am in conflict—but that doesn’t mean Jewish law ought to be different today. Jewish law comes to achieve religious goals, and those religious goals—the eternal glory and splendor—haven’t changed even today. What changed are moral values. Okay? And therefore, at most I can find myself in conflict, but I cannot claim that Jewish law has changed, or should change, because morality changed—if I assume, and personally I do assume, that Jewish law does not speak on the moral plane, does not operate on the moral plane. But two reservations. Because this seemingly means that there is no room for innovative midrash on the basis of values, on the basis of changing values, right? Because values are not really the parameter according to which we determine Jewish law. But I want to make two reservations here. One reservation is that where I have two halakhic interpretations that are both possible from the standpoint of halakhic considerations, there is no obstacle—and it is even sensible—to choose the one that accords with moral principles. Even if Jewish law does not come to realize morality, if it is possible for me to behave halakhically in a way that accords with my moral principles, why wouldn’t I do that? That does not mean that this is what Jewish law is; it only means that this is a legitimate halakhic path, and therefore there is no reason to take the other halakhic path, which is also legitimate, if it does not fit morality. So even if morality is not a means of interpreting Jewish law, it can still be a consideration in deciding which of the legitimate halakhic paths I choose, assuming that on the level of pure halakhic analysis there are several legitimate paths. Choosing among them on the basis of moral principles is legitimate despite the independence I talked about earlier. If there is one halakhic path that is clearly indicated by the sources of Jewish law and it does not accord with morality, then to claim that morality does not allow that halakhic conduct is, in my view, an incorrect argument. It’s an incorrect argument because Jewish law is not supposed to fit morality, so what of it? There is a contradiction—or a conflict—but that doesn’t mean the Jewish law is not what it is. But if I understand that there are several possible paths in halakhic interpretation, and I choose one of them because it accords with my moral principles, that is perfectly fine. It is no different from various other non-substantive deciding factors. For example: “Rabbi Shimon is worthy to be relied upon in pressing circumstances.” What does that mean? The Rema, in the introduction to Torat HaOlah, says that there are several well-known leniencies of the Rema, and he wants to argue—there are also stringencies—but there are several famous leniencies of the Rema, and he wants to say that his leniencies should be understood this way: they were never stated in a way that contradicts Jewish law. A leniency is always a path that is possible according to Jewish law, and if there are pressing circumstances or something like that, one may act accordingly. And where the path is not possible according to Jewish law, there are no leniencies even in pressing circumstances. So “Rabbi Shimon is worthy to be relied upon in pressing circumstances” means that when there is one legitimate halakhic path and another halakhic path that may be a bit broader—maybe, maybe not, doesn’t matter—then if you are in pressing circumstances, choose that path. That means I’m allowed to act that way in pressing circumstances. Okay?

[Speaker B] Rabbi, can we take that one step further? If there is a dispute among Tannaim and Jewish law was ruled according to a certain Tanna, and now the moral values fit better with the Tanna whose view was not accepted as Jewish law?

[Rabbi Michael Abraham] And what does it mean to say that Jewish law was ruled like a certain Tanna? Who ruled that way—the Maimonides? Or the Talmud?

[Speaker B] If the Talmud ruled that way.

[Rabbi Michael Abraham] Then why should I care that there is a dispute among Tannaim? I’m committed to the Talmud.

[Speaker B] Yes, okay, but you can see that there is a view among the Sages that supports…

[Rabbi Michael Abraham] There are many views among the Sages. The rival wife of a daughter is also permitted, fine—but we are committed to the Talmud. If the Talmud ruled like a certain Tanna, then that is the Jewish law the Talmud ruled. Understood.

[Speaker B] Oy, oy. There’s no room to maybe…

[Rabbi Michael Abraham] And where Maimonides ruled that way—then yes. Why? Because the Talmud has authority; Maimonides doesn’t. And the Rif?

[Speaker B] When Maimonides rules Jewish law, don’t we assume that basically that’s how the Sages, that’s how the Talmud concluded? No?

[Rabbi Michael Abraham] Why should we assume that? If the Talmud didn’t say so, then why assume that’s how it ruled? There are certain cases where we explain, say, that Maimonides ruled that way because there is an anonymous Talmudic passage elsewhere that follows that opinion. There’s such a rule; many times people say that if Maimonides ruled like one of the opinions even though the Talmud left it open, he probably had another passage elsewhere that treated that opinion anonymously. So that is a hint that the Talmud itself ruled that way. If that’s true, then indeed it is a ruling of the Talmud—but one can argue about it. Other medieval authorities (Rishonim), for example, will rule differently. So either they understood that other passage differently, or they ruled like the passage here that left it open. Meaning, the Talmud itself does not dictate that ruling. Once it does not dictate it, I can already depart from it. Okay. That’s the first point. The difference between several…

[Speaker C] Sorry? Even the Shulchan Arukh doesn’t always rule like Maimonides. Right.

[Rabbi Michael Abraham] Generally speaking, he testifies about himself that he goes by majority among three halakhic decisors: the Rif, the Rosh, and Maimonides. That’s not always true, by the way, but in a large number of cases. In any event, that’s the first reservation: despite the disconnect between Jewish law and morality, morality can be a tool for choosing one of the available halakhic options. It cannot determine what Jewish law says, but if halakhically there are several possible options, I can choose the one that accords with moral principles. Yes, maybe I’ll sharpen that a bit more. Look. Let’s go back for a moment to Rabbi Shimon in pressing circumstances. What does it mean that Rabbi Shimon is worthy to be relied upon in pressing circumstances? Suppose I have a dispute among Tannaim and Jewish law was not ruled. If Jewish law wasn’t ruled—what Shlomo noted earlier—suppose there is a dispute among Tannaim and no ruling was made. Okay. Now the Talmud says to me: Rabbi Shimon is worthy to be relied upon in pressing circumstances. If you are in pressing circumstances, go with Rabbi Shimon. What does it mean that if I am in pressing circumstances I go like Rabbi Shimon? If I’m not in pressing circumstances, then what?

[Speaker D] No, it just means that Jewish law wants to promote other values. Like, when we’re in situation A, which is not a pressing circumstance, then you can promote, say, value A and B. But when we’re in pressing circumstances, you can’t promote—

[Rabbi Michael Abraham] Both values.

[Speaker D] You can, it’s just that the price—

[Rabbi Michael Abraham] The price of that is heavy, but you can. Of course you can. It’s just that the price is heavy—I’m in pressing circumstances.

[Speaker D] It’s so heavy, so heavy, that the second value doesn’t outweigh it. So we want to promote one of the two values.

[Rabbi Michael Abraham] Pressing circumstances is not…

[Speaker B] Pressing circumstances means distress. Distress, and then basically you’re lenient.

[Rabbi Michael Abraham] A pressing situation is distress; it’s not a value. The value, the value-based preference, remains exactly what it was; it’s just that I’m in a pressing situation. So the claim is—look—on principle, once there is a dispute among Tannaim and there is no ruling, for a Torah-level doubt you go stringently, for a rabbinic-level doubt you go leniently; there are rules of decision, and they too are part of Jewish law. Now if we say that in a case of doubt I should have gone stringently because this is Torah law in a dispute, and I’m in a pressing situation—then how can you say, “Rabbi Shimon is worthy to be relied upon in a pressing situation”? After all, nobody would tell me to violate Torah law just because it’s a pressing situation. And the fact that there is another opinion—what difference does that make? The fact that there is another opinion still leaves all the rules of doubt in place, and Jewish law has already spoken. For a Torah-level doubt, go stringently. So why should I care that it’s a pressing situation? Where have we ever heard that in a pressing situation one may violate a Torah law? How can you follow the lenient opinion in a pressing situation? That’s really my question. If you rule like that opinion because you think that’s correct, no problem—but then you would follow it even not in a pressing situation. But if you say “in a pressing situation,” that means either that you rule like the other opinion or that you’re in doubt. I’m saying either way it makes no difference. If you rule like the other opinion, then why should I care that there is Rabbi Shimon in a pressing situation? The law follows the other opinion, so you are violating a Torah prohibition in a pressing situation—there’s no such thing.

[Speaker D] And even if you don’t—

[Rabbi Michael Abraham] —rule, but are simply in doubt, then the rule is that for a Torah-level doubt you go stringently.

[Speaker D] And still the law is that you need to be stringent. So how can it be that in a pressing situation it’s permitted to violate Torah law? No, I once read from the medieval authorities (Rishonim) that for a Torah-level doubt, stringency is itself Torah-level, right? I once read an interesting example: say a teacher tells his class before an annual trip, he tells them that every student has to come with two bottles of water, otherwise he’ll cancel the trip. Then one of the students comes with only one bottle. So he says to him, fine, come with us. So what, did he change his mind? How can that be? So first, the explanation is that originally there were two separate values that could both be advanced together: the value of safety, which requires two bottles of water, and the educational value of the trip. Now, in the circumstances that currently exist, the value of safety is opposed to the educational value of the trip, and the teacher only wanted to advance the educational value of the trip. So we see that under certain circumstances you can promote only one of them.

[Rabbi Michael Abraham] So in short, he didn’t really mean that they had to bring two bottles.

[Speaker D] No, no, he really did mean it, and he—

[Rabbi Michael Abraham] He wanted to promote both values, but—

[Speaker D] Under certain circumstances you can promote only one of them.

[Rabbi Michael Abraham] But the value of the trip—I understand—but the value of the trip always, from the outset, outweighed the value of safety. The fact that he showed up with one bottle didn’t really change the situation. If from the start you had asked me whether, one against one, to go on the trip or insist on two bottles of water, I would have told you: go on the trip in any case. So this isn’t a pressing situation. From the start, my value-based decision was like that. I just perhaps didn’t reveal that to the students in order to make sure they would still bring two bottles of water and we’d gain the safety as well.

[Speaker D] But what does “from the start” mean? From the start it was under different circumstances. When we are in circumstance A, you can promote both values together, but in circumstance B you can promote only one of them.

[Rabbi Michael Abraham] I’ll repeat again: no, that’s wrong. That is exactly not the question—whether he was in the Babylonian Talmud or the Jerusalem Talmud. We’re not talking about a change of circumstances at all. Even if you had asked me yesterday, before that student showed up—quietly, secretly—you’d have asked me: tell me, if in order to make the trip happen we had to allow each student to bring only one bottle, I would have told you: we’d still go on the trip, because the value of the trip outweighs the value of safety in my eyes. The fact that a student arrived—wait—I didn’t reveal that to the students because I wanted them to bring two bottles, but I didn’t tell them; still, that was my value hierarchy from the outset. Nothing changed when that student showed up the next day, except that now I’m already telling them this. That’s all. It’s not a change of circumstances. It’s not a change of circumstances; from the outset it was already the case that the value of the trip outweighed the value of safety. I’m talking about something else. One of the students has become destitute. He has no water. Fine, that’s something else. If you hadn’t become destitute, I would have told you to stay home if you didn’t bring two bottles of wine. So that’s a pressing situation. In a pressing situation I’m willing to be lenient. That’s something different. Why? Because a pressing situation is not a value. I’m not saying that the value of the trip outweighs the value of safety; rather, I’m in distress—what can I do? He has no money to pay—am I going to demand that he spend money on the trip? I feel sorry for him. This isn’t a problem of clashing values. So why “Rabbi Shimon is worthy to be relied upon in a pressing situation”? After all, seemingly one is not lenient in Torah law because of a pressing situation. My claim is the following: if you rule like the first Tanna, then indeed you cannot follow Rabbi Shimon in a pressing situation, and that is exactly what the Rema says. You can’t be lenient, even in a pressing situation, in accordance with a path that was not ruled as Jewish law. But if you’re in doubt—then I asked earlier—even in doubt there is a rule: for a Torah-level doubt you go stringently. So still, you are instructing him against Torah law because of a pressing situation. So here I say—

[Speaker D] But even in that doubt there is also the rule that in a pressing situation one may rely on Rabbi Shimon.

[Rabbi Michael Abraham] No, that’s not a rule; it’s a decision that came afterward.

[Speaker D] Yes, but already from the outset they say that in a pressing situation one may rely on him.

[Rabbi Michael Abraham] Not from the outset; it’s a decision in the Talmud. Now it’s from the outset because it appears in the Talmud. I’m asking: when the Talmud itself said it, it was not from the outset—they suddenly decided it then. So the claim is that once there is—once I am in doubt—then there are two legitimate paths in Jewish law. Right? Because I’m in doubt. So basically, you can go this way, you can go that way; neither path contradicts Jewish law. Now they tell me this: for a Torah-level doubt, go stringently. What does that mean? If you have two legitimate paths and you have no way to decide between them—not only who is right, but also how to proceed—then go stringently in Torah law, because in Torah law you play it safe. But if I have another way to decide between the two paths—of course, if I can decide that one of them is correct, then I’m not in doubt at all—but even if I have a way to decide which path to follow, not who is right, based on an external consideration, not because that is the correct path, then the rule of “for a Torah-level doubt, go stringently” does not apply here. Because that rule tells me: look, if you are in doubt and have no way to decide, and both paths remain legitimate, take the stricter one. But here that isn’t the situation; I do have a way to decide. A pressing situation tells me to go with Rabbi Shimon. Consequently, the rule of “for a Torah-level doubt, go stringently” does not apply here. Not that it is overridden because there is a pressing situation. The rule exists; the rule exists only in a situation where I have two paths and no consideration telling me to go with one of them. Then they tell me: for a Torah-level doubt, go stringently. Now my claim is: the same thing here. Say I am uncertain about the Jewish law, or there is a dispute among Tannaim that I have not resolved, and one of the Tannaim fits my moral principles. I say: fine, but morality is separate from Jewish law; at the halakhic level, for a Torah-level doubt you go stringently, and therefore, what can you do—you still have to follow Jewish law; there is no counsel and no wisdom against God. I say no, not quite. Why? Because I can say that the value-based consideration is a legitimate consideration for choosing one of the two paths. Consequently, I no longer define the situation as one of doubt between two equivalent paths, and the rule of “for a Torah-level doubt, go stringently” does not apply to me. And then that has a halakhic consequence. Okay? So that is when I have two paths, or doubt between two paths; then the moral consideration can intervene here. And notice: if I were in doubt between two paths, and the present-day values differ from the values of the Sages, then I can say: look, the Sages validated women as witnesses—yes, like with the bottles. The Sages validated women as witnesses, okay? Because basically, halakhically, it was possible to disqualify them and it was possible to validate them, and they decided to go stringently and disqualify them because of considerations that were theirs. So it isn’t that women are essentially disqualified from testimony. Okay? So now, in principle, I have two halakhic paths: disqualification of women and validation of women. And morality tells me to choose the path in which women are valid as witnesses. Consequently, I am no longer in the state of doubt that the Sages were in, and I do not need to be stringent. Of course, I’m formulating this imprecisely, because who says that disqualifying women is the stringent option? It could be the lenient one—that’s something we discussed in one of the previous sessions. But I’m just trying to show the logic of the argument, how a moral consideration can intervene within a conservative framework. And one final point in this principled context: even when there is only one halakhic path, and it clashes with my moral principles, then now, seemingly, there is no counsel and no wisdom. There is no counsel and no wisdom—but on the other hand, “there is no counsel and no wisdom” means not against Jewish law, but rather there is no counsel and no wisdom against God. Now God expects of me both Jewish law and morality, according to my view in any case. “And you shall do what is upright and good” is written in the Torah, right? So I am expected to be both a moral person and a halakhic person. In such a place, again, although it’s not a contradiction as I said before, because Jewish law does not have to be subordinate to morality, it is still a conflict. And in that conflict, Jewish law does not necessarily always prevail over morality. Sometimes morality will prevail over Jewish law. Whether because of what simply isn’t fitting, or because of the “fifth section of the Shulchan Arukh” in the Chazon Ish’s formulation—there are situations in which morality will prevail over Jewish law. Prevail over it not because it changes Jewish law and the law becomes different. It prevails in the conflict: Jewish law says X, but morality says wow, and I’m in conflict. In that conflict, Jewish law does not always prevail over morality; sometimes morality prevails over Jewish law. Both are the word of God. The question of which of them prevails is a question of proportion, intuition, I don’t know, some sort of scale of values—however you want to formulate it. But in a conflict, even if such a conflict exists and I did not change the halakhic instruction, that still does not mean the moral instruction carries no weight. And now the question is what we do in such a situation. No, I’m not using morality as an interpretive principle. They asked here in the chat. That’s not right; that’s what I emphasized earlier. I use morality as a principle that tells me which of two legitimate paths to follow—two paths that are halakhically legitimate. I am not deciding that this path is the correct one. Both are halakhically correct. I choose it because it does not come at a moral cost. But halakhically I have not decided that it is the correct one. That was exactly my claim. Anyway, therefore even in a place where morality clashes with Jewish law and there is no legitimate halakhic path that fits moral principles, that still doesn’t mean that in practice—not halakhically; halakhically the law has spoken—but in practice morality may prevail over Jewish law. Call it a sin for the sake of Heaven; there are various formulations for this. In halakhic contexts you can see later authorities (Acharonim) who made such considerations; even in the Talmud itself such considerations appear, and maybe we’ll talk about that a bit more later on.

[Speaker B] To what extent can I take morality as a value and say that it can prevail over Jewish law? Equality, for example—is equality a moral value? Yes. So for example, now people are talking about LGBT and all that. I have equality, I also want to marry this person—so can that prevail over Jewish law, because there is an egalitarian morality of equality, and can it override that?

[Rabbi Michael Abraham] In principle yes—why not? That’s what I’m saying: when there is a clash between Jewish law and morality, Jewish law does not always prevail. It depends. Now again, I’m not getting into all the details; I discussed this in the series on Jewish law and morality. For example, in the LGBT context it’s harder to say this, because in the LGBT context the clash is an essential clash, not an incidental one. Meaning, once the Torah prohibited, say, homosexuality, then the Torah prohibited it. It told me here that Jewish law prevails over morality, since every time I prohibit this it will be immoral. This is not an incidental clash. By contrast, saving life on the Sabbath is an incidental clash, because observing the Sabbath does not always entail risk to life, and saving life does not always entail desecrating the Sabbath. There may be an occasional case in which I find myself in a situation where preserving life requires me to desecrate the Sabbath, and then I have to make decisions. That is an incidental clash. And in an incidental clash, sometimes morality will prevail. In an essential clash, once the Torah said it prohibits homosexuality, it basically told me that here Jewish law—even after taking the moral aspect into account—prevails over the moral aspect, and therefore it is difficult to permit the halakhic prohibition on the basis of morality when the clash is an essential one, since every time you prohibit this halakhically, it will carry the same moral cost. It’s not a case where the conflict happened to surface; it is embedded in the prohibition itself. Once it is embedded in the prohibition itself, then a simple interpretive assumption says that the Torah took the moral aspect into account as well and nevertheless told us that it is forbidden.

[Speaker B] Not like women’s testimony, where according to what the Rabbi is explaining, that’s basically an interpretation of the Sages.

[Rabbi Michael Abraham] No, with women’s testimony too, the same thing applies. If the Torah had disqualified women from testimony—if it weren’t the Sages, but the Torah itself had disqualified women from testimony—and I were to assume, say, that equality also bothers the Torah and maybe hasn’t changed, and so on, then I couldn’t say that because the value of equality is morally very important to me, I would set aside the disqualification of women from testimony. Because the Torah itself, when it disqualified them from testimony, took the moral value into account as well and said that here Jewish law prevails over it. Except that here that is not the case, because first, it is not the Torah but the Sages, and the Sages inserted a value-based consideration into it—but that is their value-based consideration; it is not necessarily derived from the Torah. We talked about that exposition, which is a somewhat dubious exposition: “And the two men shall stand”—men and not women. And therefore in this context it is not exactly the same situation as with LGBT issues. Homosexuality is an explicit prohibition in the Torah; it is not about the values of the Sages. I’ll say again: “the values of the Sages” does not mean rabbinic law; this is Torah law, but Torah law that emerged on the basis of the interpretation of the Sages, and that interpretation can be saturated with the Sages’ moral values. Those are their moral values, which may have been drawn from the world around them or I don’t know from where—it doesn’t matter—or simply from what seemed right to them. But those are not necessarily the values of the Torah, the values of the Holy One, blessed be He, from which I am not supposed to deviate. Okay? And as for questions of authority, we discussed whether they have authority over values or not. Okay. Let’s see a few examples that will illustrate the point. So regarding the Meiri on non-Jews, we talked about this, and with the Meiri, the claim was a change of circumstances, as I said earlier. But what if some version of Meiri 2.0 came along—yes, Meiri Prime—and offered another proposal: the value of equality is very important, and therefore all halakhic sanctions concerning non-Jews should be abolished? Not because the non-Jews changed—they didn’t change. Okay? Now what happens in such a case? In such a case, in the overwhelming majority, if not all, of cases, these are expositions of the Sages; they are not explicit laws in the Torah. And then all the questions I spoke about earlier arise: is this against the values of the Sages or against the values of the Torah? Is there even some value here? After all, the Sages too saw value in equality; it’s just that today equality occupies a stronger place. Therefore all the discussions I mentioned earlier can definitely arise, even with an argument more far-reaching than the Meiri’s argument of changed circumstances—call it, from now on, arguments of “it just isn’t fitting.” It cannot be that you give discriminatory value or discriminatory treatment to different populations, okay, for the sake of discussion. So there is room for “it just isn’t fitting” considerations in certain circumstances, where it isn’t built in, it isn’t explicit in the Torah—all kinds of things I discussed earlier. By the way, I would divide this “it just isn’t fitting” into two types. There is one that stems from contemporary values, say like equality. And I also said that these aren’t entirely contemporary values, because I think that even among the Sages and in the Torah you can see that there is a value of equality, but clearly the place of that value is different today from what it was then. So you could call it “it just isn’t fitting” by virtue of the contemporary value-world. But there is also “it just isn’t fitting” from the standpoint of Torah values. I’ll give an example. A proposal was raised to invalidate marriages performed among secular people—to always take a disqualified witness so that the marriage not be valid. Why? Because then if there is adultery or something like that, the children are not mamzerim; the prohibition is not the prohibition of a married woman. There are many halakhic gains. So proposals like these have been raised among halakhic decisors. Let’s intentionally invalidate all marriages of secular people. The accepted view among the overwhelming majority of decisors—absolutely overwhelming; an exception is Ne’ar Yisparam, at least the exception that is also willing to say it openly, Ne’ar Yisparam—and the claim is that the decisors oppose this. Now the question is why. The accepted argument is: it just isn’t fitting. What does that mean? It cannot be that a home in Israel should systematically, methodically, not be established according to Jewish law—every home—because there are some people committing adultery and I want to address mamzerut or something like that. It is impossible to destroy the whole family structure in Israel because of this issue. Now the consideration of the family structure in Israel is not a consideration of contemporary morality. It’s not like the value of equality; rather, it’s a consideration you might call internal to the Torah. After all, the home and the family are values also among the Sages, and of course, it seems to me, in the Torah as well—they are important values. Here the “it just isn’t fitting” consideration is sort of outside the law; it is outside formal Jewish law, but the value in whose name I am acting here is a Torah value, not an external contemporary value. So this is a different kind of “it just isn’t fitting.” Decisors also sometimes recoil from it, but of course less than from “it just isn’t fitting” based on contemporary values, like equality. They recoil because it is still somehow an extra-halakhic consideration; it basically opens a problematic door to halakhic change, Reform, and the like. But still, it is in the name of the Torah’s values, yes? Institutionalizing prostitution. Yes, the proposal to institutionalize prostitution—the Akedat Yitzhak, with his discussion of this issue. So what, supposedly you could also save many prohibitions this way: there would be oversight of health and of women’s niddah status, you would create an organized institution of prostitution in which the women would of course not be married women, and so on, and then you would significantly reduce prohibitions. And the accepted view among decisors is that this just isn’t fitting. Why? You are reducing prohibitions; from the standpoint of formal halakhic reasoning, there is definitely logic to institutionalizing prostitution. But no—it cannot be that a Jewish community or the Jewish people would establish an institution of prostitution under public regulation. Such a thing simply cannot be. That’s “it just isn’t fitting.” Okay? Again, this is a type of “it just isn’t fitting” that I think is internal, not external. It’s “it just isn’t fitting” that arises from—again, I don’t know—the values of the Torah or the values of the Sages; I suspect here it’s also the Torah, it seems to me, and certainly the Sages. And therefore it’s “it just isn’t fitting,” let’s call it, more their own, or less provocative to halakhic decisors, than “it just isn’t fitting” of the sort involved in attitudes toward non-Jews today, for example. Because that is “it just isn’t fitting” that comes from the force of a contemporary spirit and not from the Torah’s values. So as I said before, this too is not entirely precise, because the value of equality can certainly be seen—it’s a question of proportions, status, its place on the value scale—but this value is not really entirely external. Okay? But yes, this difference is definitely one that must be taken into account. And still, if in my view morality is something the Holy One, blessed be He, expects of me—even contemporary morality—then I also make “it just isn’t fitting” judgments on the basis of contemporary values. Now here there is another important point. There are two kinds of tunes in which this argument can be raised. When I raise this argument, I raise it because I believe in the value of equality. Defensive conservatives often accuse me, or someone who raises such arguments, of trying to curry favor with non-Jews, or secular people, or the outside world, whatever it may be. Now this is a subtle point: if you do it in order to curry favor, then what you are actually claiming is an argument of desecration of God’s name. You know, if you formulate “how fair you are” in halakhic language, you call it desecration of God’s name. If we behave this way, it will be a desecration of God’s name. Basically, when you say desecration of God’s name, in subtext you’re actually saying: look, I basically agree with you—these values are external, flawed values that the Torah neither requires nor even necessarily rejects; not only does it not require them. Okay, but it would be a desecration of God’s name if we behaved this way, because the world today sees this as a basic standard. That’s the kind of argument that is really about currying favor but is phrased in halakhic categories; they call it desecration of God’s name, not merely dancing “how fair you are” before the non-Jew. Okay? But there is another, completely different argument. Completely different. Sometimes, by the way, this too can be called desecration of God’s name, but it is an argument that says: this is not because I am trying to curry favor with non-Jews; I identify with these values. I am part of the contemporary world, and just as the contemporary world centrally believes in the value of equality, I identify with it too. These are my brothers. The fact that this was drawn from the outside world, or that the outside world influenced me—fine, who among us isn’t influenced by all sorts of things? But in the end, I genuinely believe in it. It’s part of my value-world. So I make this demand or propose this proposal not because I’m trying to curry favor with anyone, but because I really think that this is what morality requires. That is not the same thing. And often it is convenient to accuse me of trying to curry favor. I am not trying to curry favor with anyone; I believe in this myself. By the way, even this can often be formulated as desecration of God’s name, because where there are false values, I am not troubled by desecration of God’s name. If people think I’m lazy because I rest on the Sabbath, say—I’m lazy because I rest on the Sabbath. In fact, just today I heard on the radio some program about weeks, Sabbath, and week and those concepts; I was on a drive, I don’t even know what program it was, I caught it in the middle. So they talked there about how the Romans, when they got to know the Jews, regarded them as lazy. Once every seven days they do nothing—a kind of laziness. So that, let’s say, I maybe would not call desecration of God’s name. Why? Because the value of resting on the Sabbath, which the non-Jews don’t have—why should the Torah recognize this distorted point of view of the non-Jews? It is against the Torah’s outlook, and if they don’t like it or think it’s wrong, they can get over it—that’s their problem. People can think that my eating kosher, or my wearing tzitzit or a kippah or whatever it may be, is outdated, primitive, a desecration of God’s name. No, it isn’t. If these are my values, then if other people disagree with my values, they can get over it. I don’t need to change them because of desecration of God’s name. But what happens in a place where I myself also identify with that outlook? Then it’s already something else. Here I can make the argument of desecration of God’s name—perhaps specifically here. It is a desecration of God’s name because I am behaving in a way that, in my own view too, is immoral, and the non-Jews are right when they see me as an immoral person. They may not understand that I do this because of Jewish law, but here a legitimate argument of desecration of God’s name does come in—because here I am not trying to curry favor; I myself think this is immoral. The desecration of God’s name is created by my behaving immorally, not because the non-Jews are viewing things in a distorted way and therefore think morally correct behavior is immoral. That doesn’t interest me; let them get over it. Therefore arguments of desecration of God’s name can conceal one of two things: either “how fair you are,” or that I myself think this is immoral and therefore argue that one should behave differently. So that is regarding this move of fleeing in the direction of “how fair you are” dances, because it is not true that every such argument is “how fair you are.” I’d like perhaps to give a few more examples. Look, for example, I wrote a column about “it just isn’t fitting,” yes, about these arguments. Take, for example, destroying idolatry nowadays. Destroying idolatry—what does that mean? According to Jewish law, if there is an object of idolatry—the New Testament, okay? If we say that Christianity, or at least Catholic Christianity, is idolatry, then the New Testament is an accessory of idolatry and it needs to be destroyed. Or a church—a church, at least a Catholic one, ought to be destroyed, certainly in Israel, in the Land of Israel. Nobody says today to do that except for a few hilltop youth. Now the explanations can be all sorts of explanations. Most of the time when you hear conservative halakhic decisors talking about this, they’ll tell you: because our hand is not strong, and if we do this then the non-Jews will destroy synagogues abroad, and so on and so on. If I may indulge in armchair psychology—I don’t believe them. I don’t believe those statements. In my view, those statements are clinging to rationales behind which there really stands a principle of “it just isn’t fitting.” You see that when people burn the Talmud or the Hebrew Bible somewhere—Christians—you are horrified. How can a Christian do such a thing? What about freedom of religion? What about regard for the other, and so on and so on? Right? We spend all day and all night raising such claims, and for some reason we forget that our own Jewish law tells us to do exactly the same thing to them. Exactly the same thing. Now don’t tell me that a decisor living here in the world and understanding what goes on here would support the destruction of objects of idolatry if there were no danger, no external problem, or things like that. That’s what he believes in. So long as you have not persuaded him otherwise, you are not supposed to burn his church or his New Testament. And you can hang this on all sorts of arguments like “our hand is not strong” and “the ways of peace”—and this is Rabbi Unterman’s “ways of peace,” as is known, where he really speaks about this Meiri concerning non-Jews in his famous, well-known article. So he writes there that “the ways of peace” is not what people usually think. “The ways of peace” means, like “because of enmity,” that if we do things to them, who knows what Jew at the end of the world will suffer because the non-Jews will do the same to him in return. “The ways of peace” means what I spoke about earlier: that it is impossible for us to conduct ourselves in a way that is blatantly immoral. That is called “the ways of peace.” Not immoral in the eyes of the non-Jews—in our own eyes. Desecration of God’s name in the second sense that I spoke about earlier. That is the concept of “the ways of peace.” And therefore he says that saving the life of a non-Jew on the Sabbath, for example, was permitted because of “the ways of peace”—but “the ways of peace” in the sense that it is immoral not to save him, not because non-Jews abroad will kill Jews if we do not save non-Jews here. And I think that behind the discourse of many halakhic decisors in such contexts, although they cling to arguments of that sort, behind it sits a perception of “it just isn’t fitting.” It just isn’t fitting; it cannot be. It cannot be that you are so horrified when your religion and your customs are not respected somewhere else, and then you do the same thing to non-Jews. It is simply inconceivable. Now I have no explanation for what to do with these laws; these laws remain where they are, but it just isn’t fitting. We simply cannot do such a thing. So again, halakhic decisors do not like to use this sort of reasoning because it really is problematic reasoning—a slippery slope, or things of that sort—but my very clear sense is that behind their arguments there is really this feeling. The feeling that it just isn’t fitting. And this is an external “it just isn’t fitting,” not an internal one, because of respect for other people’s beliefs or other people’s different outlooks—which is a very important value in our world today, liberal democracy, and so on. So therefore this too, I think, is an example of an “it just isn’t fitting” consideration based on values—or at least on a new dosage of those values of respecting the other.

[Speaker E] Can the Rabbi sharpen the difference between what you said earlier about male same-sex relations, where there the law told us that it is supposedly against morality by definition, and here where it isn’t?

[Rabbi Michael Abraham] With male same-sex relations, this is not an “it just isn’t fitting.” There it prevails over a halakhic value or over harm to a person—that’s true. It does cause harm—look, the prohibition against stealing also harms a person; I want to have more money. So the question is to what extent harm to a person justifies the halakhic obligation, or the halakhic obligation justifies harm to a person. Here I’m claiming—again, if that is the argument I want to make—it’s not that there is some moral problem here, and fine, Jewish law took that into account too and still it prevails. This has become something that is simply unthinkable to do. It just does not enter the realm of possibility. It is a change in the value scale. The value exists there too, I think—respect for the other also exists in Jewish law—but not respect for an idolater. But today such a thing is simply unthinkable. So therefore I think this is something entirely different. It’s not that by chance this is immoral and, fine, Jewish law took that into account too. It receives a completely different status.

[Speaker E] Is it the same consideration as the elevator case the Rabbi mentioned? Is “it just isn’t fitting” the same consideration as in the elevator, with that guy where the elevator is about to fall and he takes the pen? Is that the same principle?

[Rabbi Michael Abraham] There is—I thought about it—but there is a similarity, yes, there is a similarity. In these circumstances it’s like ultra—there’s no other way to act. The formal considerations here don’t really capture the situation. And I assume that if the Sages were alive today, they would come up with some interpretation that takes this commandment in the Torah out of its plain meaning, let’s put it that way, so I’m already comparing it to that. Okay? Maybe another example: the prohibition of going to secular courts. That’s where this whole issue first came up for me. The prohibition of secular courts—basically there’s a debate among thinkers, jurists, rabbis, and so on, about how to relate to the courts in the State of Israel today. Yes, in principle, according to Jewish law, there is a prohibition of secular courts: you’re not allowed to appear before judges who are not fit to serve as judges. Now, there are no ordained judges today. Even the greatest Torah scholars are not ordained; we don’t have ordination today. But there is the rule of “they act as the agents of the earlier ones,” there are rules that Jewish law formulated about who can judge today, and those rules still exist. It’s obvious that someone who is ignorant and does not observe the Sabbath is disqualified from judging. Both because he doesn’t know the substantive law, and because as a person he is disqualified, because he is a transgressor, as Rabbi Ovadia says, people who have relations with menstruants and who eat non-kosher meat and carcasses. So he is disqualified from judging; obviously such a person is disqualified from judging, and one who appoints him as a judge is like one who plants an idolatrous tree beside the altar. Okay? So in principle, it would seem that there should be a prohibition against appearing in and using the courts in Israel. I’m saying this very briefly, and of course there are a lot of nuances here; I’m presenting only the general logic. Now, this debate has been going on for many years, and very roughly I’d put it this way. Again, there are finer distinctions, and Eliav Shochetman actually often does this a bit more precisely and systematically, distinguishing among different areas; I’m not getting into the nuances right now. Broadly speaking, I would say that there is a kind of dispute here between rabbis and jurists. Some of the jurists, some of them Torah scholars, argue that this does not have the status of secular courts. For all sorts of reasons—people accepted it upon themselves, or whatever. All the rabbis of all stripes, almost all of them of all stripes, Zionist or non-Zionist, it really makes no difference, say that this is the prohibition of secular courts. Even the Zionist rabbis—it’s not a difference between Haredim and Zionists—say that going to court is the prohibition of secular courts. Now, on that basis people start doing pilpul, bringing sources to show whether this is indeed the prohibition of secular courts or not, and all kinds of things of that sort. What I wanted to argue is that on the purely halakhic level, on the purely halakhic level, it’s clear that the rabbis are right. This is secular courts par excellence. Gentile courts, not the courts of Syria. Gentile courts. So in that sense, the jurists are certainly wrong. But on the other hand, we can all see that almost all rabbis, including major Haredi rabbis, make use of the courts. For all kinds of reasons, whenever the pressure is strong enough, they make use of the courts. Now, planting an idolatrous tree beside the altar does not become permitted in pressing circumstances. The prohibition that the Sages saw in “before them and not before laymen, before them and not before secular courts” is such a fundamental prohibition that no pressing circumstance justifies it. There are leniencies, of course, where the litigant is violent—you get permission from a religious court to appear in court, not in the rabbinate, to appear in court, okay? So there are such situations in Jewish law as well. But a sweeping permission to use the courts—there’s no such thing. There is no such thing. In no situation does such a thing even make sense. Except what? It’s impossible to function that way, right? You can’t function today while boycotting the judicial system of the State of Israel. A citizen cannot boycott the judicial system. Not only because they’ll force him to come, so he’s under duress—fine, they’ll drag him there by force. I’m not speaking only about boycott in that technical sense, not just that they’ll take me by force. I mean in the substantive sense too. It cannot be that I don’t use the judicial system. I simply can’t conduct business in Israel and in the world without constantly taking into account the possible need to use the judicial system. So I also can’t engage in commerce, I can’t live in this world without it, it’s impossible. I can’t sue a murderer or a thief or someone who threatened me, or file a complaint, right, because that’s informing, that’s going to secular courts. So that means—the claim is, no, it’s not true that there is permission to rule according to Jewish law; on the contrary, there is permission not to rule according to Jewish law. But let’s leave that aside for the moment. The claim is that, true, Jewish law ought to see this as the prohibition of secular courts, but it is impossible to behave this way. It doesn’t work. You can’t behave this way. What can you do? So the jurists come up with tricks. They explain to you, with interpretive tools, how despite everything there is no prohibition of secular courts here—but it’s not convincing. There is a prohibition of secular courts here. On the other hand, they are right, because in the subtext there is a consideration of “it doesn’t work.” You can’t function that way. Like with destroying idolatry. Now, rabbis usually cannot accept such an argument, or at least they don’t allow themselves to accept such an argument. So what they do is write that it is forbidden as the prohibition of secular courts, and then go on using the courts. And they permit all their flock to use the courts as well. That’s what they do—simply shut their eyes with a wink. One of the amazing things, one of the most astonishing phenomena I’ve encountered in recent years, is the mass Haredi rush into legal studies. It’s one of the most popular professions in the academic tracks. It’s just unbelievable. I mean, we grew up on the idea that this is the gravest prohibition there is: someone who resorts to a foreign legal system is raising his hand against the Torah of Moses. Now they have already opened the gates toward academic study or some type of livelihood. They didn’t choose physics, not engineering, not medicine—law. And they go by the thousands every year, thousands studying law in the Haredi world, while nobody in that world would dream of saying that it’s permitted to go to court. No halakhic decisor. It’s just unbelievable. And why is that? It’s the same wink I talked about earlier. It means: we understand that it’s forbidden, but we also understand that it’s impossible to live like that. This is a consideration of “it doesn’t work.” Now, but notice: this “it doesn’t work” is of the type—of the type of the Akeidat Yitzhak. It’s an internal “it doesn’t work.” What do I mean? After all, there is an example in the Talmud, an example appears there, of the courts of Syria. What are the courts of Syria? In Syria there were no Torah scholars in the Talmudic period. There were no Torah scholars, so they appointed laymen as judges. And the Talmud recognizes this de facto; it says these are the courts of Syria, and to those one may go. Now, obviously that is not the situation today. Since today we have Torah scholars who can sit and judge, it’s not like Syria where there was nobody to judge. There is no permission whatsoever, on the basis of the courts of Syria, to go to today’s courts. And therefore the rabbis are right when they say that this cannot be compared to the courts of Syria. The comparison to the courts of Syria does not exist. But what is the permission for the courts of Syria based on? Why did the Talmud itself permit the courts of Syria? Because of “it doesn’t work.” Because if I have no ordained judges, or no judges fit to judge, then what—there should be a Jewish community with no legal system? Everyone will be able to rob everyone else, do whatever he wants, and there’ll be nothing to do about it? That is simply unthinkable. You can’t function that way. Therefore they permitted the courts of Syria already in the Talmudic period. They permitted the courts of Syria. It has no source. It has no source. It’s simply a phenomenon described in the Talmud. It doesn’t say what it’s based on, it’s not clear how they permitted such a thing after speaking so harshly and saying that someone who appoints an unfit judge is raising his hand against the Torah of Moses. And here you are appointing judges—a whole permanent system of judges who are unfit. So here the Chazon Ish says: they did not rule according to a fixed, systematic foreign law, but according to their own judgment in each particular case. Whereas here in Israel it’s a different legal system, systematic, not that each judge rules independently. So therefore it is not similar to the courts of Syria. It is also not similar to the courts of Syria in other respects, because today we have Torah scholars and then they did not. But it is similar in the sense that the permission for the courts of Syria also began from “it doesn’t work”—from the fact that you cannot leave a Jewish community without a legal system. That “you cannot” can be applied today as well. It’s not similar to the courts of Syria, but it’s the same consideration of “it doesn’t work.” If we do not recognize the courts today—after all, people will not accept rabbinical courts upon themselves, and rightly so. I’m glad that’s the case too. So if that’s so, then what will remain? That we should have no legal system here? That cannot be. Now we do have Torah scholars, and here it’s not that every judge rules according to what seems right to him, as the Chazon Ish says about the courts of Syria. No, it’s not similar to the courts of Syria. But the consideration of “it doesn’t work” is the same consideration as was there. And that consideration says that it cannot be that there should be a Jewish community, certainly a Jewish state, functioning without a legal system. And if the constraints of reality dictate that this legal system will be composed of judges who are unfit, then there is nothing to be done, because the alternative is worse—that there be no legal system at all. This consideration of “it doesn’t work”—on the one hand, it has no halakhic justification other than the constraints of reality. On the other hand, it is a value-laden constraint. It’s not just a factual constraint. It is a value-laden constraint in which I say: I need there to be an effective legal system. And third, that value-laden constraint is internal, not external. The Torah itself, I think—at least in the accepted interpretation—is clearly not willing to allow a community or a people or a public to function without a legal system. It’s not because of moral principles imported from outside; it’s an internal “it doesn’t work.” And therefore I think that this too is not, all the way through, a good example of “it doesn’t work” of the earlier types I talked about. This is something many decisors do not say, but do think. This kind of “it doesn’t work.” Even conservative decisors, most of them in practice, in my opinion. The question is whether there is also an external “it doesn’t work”—and about that we’ll talk next time. Next time, and next time I’ll already get to the definition of Modern Orthodox. What is Modern Orthodox? Yes, I’m following the series of columns I wrote, so that’s where we are for now. Okay, comments or questions?

[Speaker C] Thank you very much, good night. See you, good night, Sabbath peace.

[Rabbi Michael Abraham] Thank you,

[Speaker B] Good night, Sabbath peace.