Lesson dated 17 Tammuz 5767, Part 1

[Rabbi Michael Abraham] Legal evasion. Legal evasion is more or less the plan we set at the beginning of the semester. Legal evasion accompanies us in quite a few contexts. Of course now, on the eve of the Sabbatical year, what may be more prominent, what comes up more in discussion, is the issue of the sale permit, but that’s only one example among quite a few examples of legal evasions that we commonly use. One of the problems with the sale permit is that it’s a new legal evasion. Because there are quite a few legal evasions in the Talmudic text, and no one argues about them anymore. Whether it’s pruzbul, “one may use legal evasion regarding the firstborn” in the Mishnah in tractate Bekhorot, the iska permit. What? The iska permit isn’t from the Talmudic text, but the iska permit too is at least old and longstanding, and no one questions that anymore either, and we got used to it. And with new legal evasions, somehow all kinds of arguments keep cropping up again and again. But it’s clear that the topic of legal evasion wasn’t invented today, and not a hundred years ago either. As I quoted earlier, there is a Mishnah about this in tractate Bekhorot, “one may use legal evasion regarding the firstborn,” and the Mishnah explains exactly how to do it, how we do these maneuvers in order to circumvent Jewish law, and maybe we’ll get to that later. But I want to broaden the scope a bit and talk more generally about the question of formalism in serving God. In other words, legal evasions are often built on finding some formal escape hatch that we latch onto, but not really because we think that’s what should be done, but because it’s convenient for some other reason. That is, nobody thinks that ideally it is proper not to observe the Sabbatical year, or to sell the land in one way or another to non-Jews, thereby de facto canceling many of the elements of Sabbatical-year observance. But since there is some distress or another, they find this solution. So on the one hand we don’t use this kind of solution without distress. On the other hand, when there is distress, we do use it, and it isn’t considered a transgression. So there is some sort of intermediate status here. Whichever way you look at it: if it’s permitted, and if it’s really valid and everything is fine, then what’s the problem? Why only in a time of distress? Then let’s always do it. If it’s not okay, then what difference does it make that right now there is distress? In other words, whichever way you look at it — does it solve the problem of the Sabbatical year or not? If it solves it, then all the better to do it all the time. If it doesn’t solve it, then what difference does it make that we’re in distress? The fact that we’re in distress doesn’t mean we’re allowed to commit transgressions.

[Speaker B] But I’m suggesting there’s something in between.

[Rabbi Michael Abraham] “It is a time to act for the Lord.” What? “It is a time to act for the Lord.” Right, I’m presenting the problem, but we need to see what this in-between thing is. Is it a transgression? Is it not a transgression? “It is a time to act for the Lord”? Yes, we’ll need to see exactly what mechanisms exist here. “It is a time to act for the Lord” is usually not the mechanism I’m talking about here. Maybe in the background it’s worth defining this matter a little. “It is a time to act for the Lord,” for example — the example the Talmudic text gives is writing down the Oral Torah. “It is a time to act for the Lord”: Rabbi Yehuda HaNasi saw that people were beginning to forget the Mishnah, the words of the tannaim, so he decided to write down the Mishnah even though fundamentally there is a prohibition on writing down the Oral Torah. There, there was no legal evasion. There was nothing fictitious. He goes directly against Jewish law. That is, Jewish law says it is forbidden to write down the Oral Torah, and Rabbi Yehuda HaNasi enacted that because of the circumstances and the need, we violate Jewish law and write down the Oral Torah. Not only that — we violate it through positive action, which in theory is actually not even within the sages’ authority. The authority of the sages is to enact passing over something by passive omission when necessary. But to transgress through positive action is something that really contradicts all the principles. So “It is a time to act for the Lord; they have violated Your Torah” really is a case that goes beyond the rule that the sages uproot a Torah law through passive omission, which is an established principle. “It is a time to act for the Lord; they have violated Your Torah” is something even stronger. But what both have in common — both sages uprooting a Torah law and “It is a time to act for the Lord; they have violated Your Torah” — is that there is no legal evasion there. There we make a frontal enactment against Jewish law. And the sages have the authority to do that under certain circumstances, in a certain way. The sages can suspend or freeze Jewish law and permit us to transgress it, at least by passive omission, and many times maybe even by positive action. I’m talking about a different situation.

[Speaker B] Why didn’t they cancel the Sabbatical year nowadays? That’s the question. Why not cancel the Sabbatical year?

[Rabbi Michael Abraham] That’s a different question. In principle, if we really went with that mechanism — of “It is a time to act for the Lord,” or of sages uprooting a Torah law through passive omission — then in fact the possibility of canceling the Sabbatical year was open to us as well. Temporarily, or not temporarily. To cancel it, if it were by passive omission. Here it’s by positive action, so it’s more problematic. But say it were something that was by passive omission — then perhaps the possibility of canceling it would have been open to us too. Today’s sages don’t allow themselves to do that anywhere. In other words, this is really an exceptional element, although I don’t think there is any formal impediment. That is, I don’t think that in principle the sages of this generation lack authority to do this. It doesn’t require ordination for that purpose — the kind of ordination that existed once and does not exist today. That doesn’t matter. In no source that I know of does it say that you need ordained judges or a Sanhedrin in order to do such things. As for “what the religious court declares ownerless is ownerless,” there are explicit disputes among the medieval authorities (Rishonim), starting already in the Talmudic text and then among the medieval authorities (Rishonim), over whether it has to be the leading religious court of the generation, exactly which religious court can declare property ownerless. But enactments — every religious court in every generation makes enactments for its generation. And if the gates of enactments have not been locked, then in principle enactments can be instituted in this generation as well. For some reason, the sages decided that in this generation they do not want to institute new enactments, and therefore that route never even came up for discussion. The route of cancellation. And of course there is also the issue that here it is by positive action and not by passive omission — permitting agricultural labor in the field is a matter of positive action. So that makes it even more problematic. But even things that involve positive action, as I mentioned earlier, we’ve already found in the Talmudic text. In any case, let me return. We are talking about the concept of legal evasion, which is basically finding some formal mechanism that will allow us to bypass, let’s call it, the spirit of Jewish law. In other words, the spirit of Jewish law, Jewish law wants us, of course, to let the fields lie fallow, not work the field, and that’s it. Whatever happens, happens — that’s not the issue right now. We’ll learn Torah, whatever, it doesn’t matter; that isn’t defined in Jewish law. But in principle the Torah wants us to let the fields lie fallow every seventh year. It’s clear that this is the Torah’s will. But there are halakhic definitions that allow us not to enter that niche at all in which we would be obligated to let the fields lie fallow, if, for example, we arrange for the fields to belong to a non-Jew. Then if we don’t have a field, we don’t need to let it lie fallow. It’s obvious that this is not the Torah’s will, if you look at it in some meta-halakhic sense, it’s obvious that this is not the Torah’s will. And on that there is no one who disagrees. That’s why everyone laments it, even those who endorse the sale permit lament it. Rabbi Lichtenstein once wrote an article in which he called this matter a halakhic tragedy, the Sabbatical year in our time. So the spirit of Jewish law we are canceling, but formally we are fine. If the field belongs to the non-Jew, if it has been sold validly according to Jewish law, then it belongs to the non-Jew; a non-Jew’s field does not need to observe the Sabbatical year. So if that’s the case, then it’s perfectly fine. So once again, we find ourselves here in a dilemma where it is obviously not good, it runs against the spirit of Jewish law. On the other hand, from the formal halakhic standpoint it seems perfectly fine, no problem; on the principled level it’s perfectly fine, no problem. Otherwise it wouldn’t help at all. Formally it’s fine. And now the question comes up again: then why, whichever way you look at it? If it is entirely fine and we are formalists, then why only in a time of distress? If it’s not fine because the spirit of Jewish law guides us, then what good does it do to use this formalism even in a time of distress? After all, the Torah wants us to let the field lie fallow. So there must be some kind of intermediate state here. What is that intermediate state? That we essentially fulfill our obligation under formal Jewish law, but not our obligation toward the spirit of Jewish law, not what Jewish law expects of us. A kind of scoundrel within the permission of the Torah, yes, what Nachmanides calls a scoundrel within the permission of the Torah. A scoundrel within the permission of the Torah means that formally he is fine, everything is in order, no problem, but it is clear that his actions are undesirable. In other words, the spirit of the Torah is not pleased with those actions. So this is some kind of intermediate state in which, on the one hand, we do not allow it when there is no distress, and on the other hand, if there is distress, it is not called a transgression. In other words, it is a possible way out. It’s not like what Rabbi Yehuda HaNasi said — let’s just go head-on against Jewish law. No, that we do not allow ourselves to do. But this, assuming of course that the mechanism works — and there are various disputes about that — but assuming it works, then this we do allow ourselves to do in a time of distress. Here it really raises the question of formalism versus substance in Jewish law. That is, what exactly are we doing when we observe Jewish law, when we keep prohibitions, fulfill commandments? Are we trying to attain some idea? Are we trying to live in a certain way, as the Torah expects us to live on the experiential level, on the level of consciousness? Or are we basically just trying to discharge our obligation, to be formally in order, and that’s it — just leave us alone? In other words, if they can’t catch us, then everything is fine. At first glance, the accepted halakhic approach is the second one, it seems to me at least, when you read the sources apart from the specific issue of legal evasion, but in general. Jewish law is something formal. That is, everything beyond the formal aspect — the reason for the verse — that’s good for thought classes, for biblical interpretation, all of that is fine. It doesn’t enter the Shulchan Arukh; it’s a completely different realm. Maybe it’s proper to do things in that spirit too, and so on, but it is not a halakhic obligation. That is, Jewish law by definition concerns the formal things, the formal dimensions — what one is obligated in, what one is not obligated in, the definitions, what enters the definition and what does not enter the definition. This is somewhat connected to concepts from the hidden realm of kindness and judgment. Judgment means the legal, normative definitions — what is required, what is forbidden — and according to the definitions, that is how one should proceed. Kindness is what goes beyond strict law. Jewish law is laws. Jewish law is formal definitions. And then the question arises, of course: the concept of legal evasion creates some kind of seam that brings meta-Jewish-law into Jewish law. Why? Because when we are not in distress, we don’t use legal evasions. Why not? After all, halakhically we have fulfilled our obligation. If the legal evasion works, then we solved the formal halakhic problem. So what’s the problem? The problem is the spirit of Jewish law. But the spirit of Jewish law is a problem of spirit; it is not a halakhic problem. The fact that legal evasions are forbidden when there is no distress is a very rare case of introducing meta-Jewish-law into Jewish law. And that’s really something to pay close attention to — it’s a point we may get to later. I’m still a bit undecided about how deeply to enter into the actual halakhic topics of legal evasion. Maybe not today, but later. Because let’s say a certain legal evasion works — it works according to the rules of formal Jewish law. The spirit of Jewish law, as we said, is not pleased with such an act. So now, someone who did it not in a time of distress, when we do not normally permit such a thing — what did he violate? What prohibition did he commit? What — the spirit of God is not pleased with him? That’s not a halakhic prohibition. Maybe he’s not okay, maybe it would have been proper to be better, but what halakhic category does that have? So there are those who say — and maybe we’ll see a bit, if we get into the halakhic sources, the surrounding topics — there are those who say that he violated the very prohibition that the legal evasion came to bypass. In other words, someone who used legal evasion did not succeed. Meaning, it’s as if he really did not observe the seventh year, did not preserve the field. That is very…