Ethics, Faith, and Halakha – Lesson 23 – Rabbi Michael Abraham

[Rabbi Michael Abraham] What I want to do now is basically sum up where we stand. We talked about the fact that morality and Jewish law are two different, independent categories, and that God’s will is that we uphold both. I spoke about the fact that Jewish law is completely foreign to morality – meaning all the categories within Jewish law, the non-moral, the anti-moral, and the moral, all of them are really foreign to the moral sphere. And so it turns out that our system of obligations is two-story. The first floor is the universal obligations imposed on every human being, and on top of that, on the second floor, there are obligations that are specific to us, particularistic – that’s basically Jewish law. And now when I say Jewish law, I mean Jewish law in all its components, including the moral components. They too belong to the second floor, because what’s on the first floor is beyond what exists in Jewish law, or prior to what exists in Jewish law.

And then I moved to talking about the two-story model not in a moral context but in the context of marriage. And there too we saw that the system of personal status, the system of marriage in Jewish law, is also built as a two-story model, where the first floor is basically the social institution of marriage, which existed before the giving of the Torah and still exists among the nations. And on top of that there is the second floor, which is the level of kiddushin, the specifically Jewish, particularistic level. One of the implications – we saw various implications of this – one implication is, meaning the basic claim is that even after the Torah was given, even within the framework of Jewish law, the social institution of marriage still has status. And when a couple lives together, it’s true that they didn’t do kiddushin and that this is not the Torah’s will – the Torah’s will is that kiddushin be done first – but it still has halakhic status.

And we talked about the fact that halakhic obligations are built in two consecutive steps: first there is kiddushin and after that there is marriage. And the dissolution of the marital unit first dissolves the marriage and afterward dissolves the kiddushin. In the stage in between, we basically return to the situation of betrothal with all its implications: there is no right to produce, it is forbidden to have relations with her, and we saw opinions according to which he does not even become impure for her and does not have to redeem her, and so on. Meaning, we basically return to the state of betrothal. That’s in the case where there is no marriage and only kiddushin remains, so that is basically betrothal.

But what about the opposite case, where there is marriage but no kiddushin? Meaning, a couple lives together but kiddushin did not precede it. Then that is Noahide marriage. And Noahide marriage has some sort of status. For example, someone who has relations with the woman, in my opinion, would violate the Noahide prohibition. He would violate the Noahide prohibition of forbidden relations, not the prohibition of forbidden relations for Jews. The prohibition for Jews forbids relations with a woman who was betrothed to me. But a woman who is my wife in the social sense – that is forbidden; call it, I don’t know, moral, but it is a social prohibition against relations with her, not necessarily a halakhic prohibition.

Now, that’s regarding the two-story model. Now I want to move to another look at this duality of morality and Jewish law, or Jewish law and extra-halakhic values. Because what this really means – and we talked about conflicts, conflicts between Jewish law and morality – what this really means is that Jewish law is not the sole decisor, and not even the final decisor, with regard to the question of what is incumbent upon me. When I am in a certain situation and I want to know what is incumbent upon me, I am supposed to make the halakhic calculation, to know what Jewish law requires in such a case, and at the same time make the moral calculation and know what morality requires of me. And both types of demands are expectations that the Holy One, blessed be He, has of me. He expects me to fulfill my halakhic obligations and my moral obligations.

And maybe there are also other social obligations of one sort or another, whether connected to morality or not, and there may be extra-halakhic obligations whose status is not necessarily lower than the status of halakhic obligations. We talked about this when we discussed conflicts. I said that it cannot be that Jewish law itself determines what to do in a conflict between a halakhic principle and a moral principle, because one of the systems involved in the conflict cannot itself be given the priority to determine whether it overrides the other or not. It has to be something else, something more external. Therefore it is wrong to assume automatically that whenever Jewish law says something, it necessarily overrides morality.

I want to bring another example of this now. I call these “doesn’t fit” considerations. In colloquial Yiddish. The claim basically is that there can be a situation where I clearly feel that I need to act in a certain way, but there is no halakhic permission to do it. And it involves a prohibition. And there is no mechanism within Jewish law that allows me to violate that prohibition. There is no halakhic permission. And still, there are situations in which it may be that the Holy One, blessed be He, expects me to act that way anyway, even though there is no halakhic permission.

So the example of a transgression for the sake of Heaven – I think we already spoke about this – the example of Lot’s daughters, right? They decided to have sexual relations with their father because they thought humanity had been wiped out, and if they didn’t do this then there would be no human remnant left. And the Sages praise them for this in tractate Nazir, even though the prohibition of incest has no halakhic permission whatsoever, right? It overrides everything. The three severe transgressions override even danger to life. And therefore, within the halakhic framework there is no mechanism that can generate permission for such a case, or justify such a step.

And still, this is the notion of a transgression for the sake of Heaven: there are sufficiently extreme situations in which I nevertheless must act this way, okay? Even though this will be a halakhic transgression. That is why it is called a transgression for the sake of Heaven. It will be a halakhic transgression. In my opinion, the later authorities are mistaken when they explain this as a halakhic rule of override, simply like a positive commandment overriding a prohibition, as if this is just what Jewish law demands of me. No. Otherwise it would not be called a transgression for the sake of Heaven; it would be called one thing overriding another. Right? If you say it is a transgression for the sake of Heaven, that means it is a transgression from the halakhic standpoint, and yet not only is it justified, but the one who acts this way is even praised.

So that is regarding a transgression for the sake of Heaven. There are other “doesn’t fit” considerations that are not necessarily exactly the same – “doesn’t fit” meaning literally: it simply cannot be. I cannot act that way. It expresses the idea that even though I have no justification, even though I cannot formulate an argument explaining why one should act this way, it is nevertheless clear to me that it cannot be otherwise. That is the meaning of the phrase “doesn’t fit,” okay? It is inconceivable that this is what should be done, even if I do not understand the reason. That is basically the claim. Because if I had a reason, I would state the reason. Whenever someone says “doesn’t fit,” what he means is: I don’t currently have a reason, I don’t know how to present you with a reason, but it is clear that one cannot act this way. Okay? That’s the meaning.

Now in all these cases, for example in a transgression for the sake of Heaven – a transgression for the sake of Heaven is really a type of “doesn’t fit.” A transgression for the sake of Heaven basically means: it cannot be that because of some halakhic rule, severe though it may be, I would leave humanity to die out, to disappear. Okay? It just doesn’t fit. It cannot be. Now you can ask me what the reason is. I have no reason. I don’t know. And it is not a halakhic permission. I have no reason within Jewish law. My claim is that “doesn’t fit” arguments are not based on some intuitive halakhic conception. No. Jewish law said its piece, period. But Jewish law is not the only player on the field. There are additional principles outside Jewish law, and they are what tell me that in this case it is not right to obey Jewish law. Okay? That is the interpretation I am suggesting for the question of “doesn’t fit.”

[Speaker B] Is writing down the Oral Torah one of these “doesn’t fit” rulings?

[Rabbi Michael Abraham] Yes, you could say so in a certain sense. Because on the principled level the Sages can institute a rabbinic decree, and that is not a “doesn’t fit” consideration. That is an internal halakhic mechanism. The Sages forbid poultry cooked with milk. According to the Torah, poultry with milk is permitted. The Sages forbid it. They have authority – “לא תסור” (“do not deviate”), whatever, they have authority to forbid things that the Torah permitted. They also have authority to permit things that the Torah forbade, or at least to prevent things that the Torah obligates us to do.

An example is sounding the shofar on Rosh Hashanah that falls on the Sabbath. According to Jewish law, we need to sound it. At least that is what the Babylonian Talmud maintains, right? According to Jewish law we are obligated to sound it. There is a rabbinic law out of concern that one might carry it four cubits in the public domain, and the Sages say no – we do not sound the shofar on Rosh Hashanah that falls on the Sabbath. Here I would not call it a “doesn’t fit” consideration, because there is nothing inconceivable about sounding the shofar. Rather, the Sages have authority to uproot something from the Torah, at least by passive omission. Okay? They uproot a Torah law by passive omission. Meaning, they say: here, you will not sound it. The Torah says to sound it, and the Sages say no, you are forbidden to sound it, for reasons of concern that you might carry it four cubits in the public domain, whatever. So that is not a “doesn’t fit” consideration. The concern that you might carry it four cubits in the public domain does not reach the level where it becomes inconceivable to fulfill this law. I will be careful and not carry it four cubits in the public domain. Right? It is not some absolutely basic matter on which disagreement is impossible. But the Sages nevertheless decided that this was important enough to cancel the sounding of the shofar on Rosh Hashanah that falls on the Sabbath. So that is the authority of the Sages to establish rabbinic law.

But writing down the Oral Torah is a bit different. Because in writing down the Oral Torah, first of all, the Mishnah itself – in the ninth chapter of Berakhot – the Mishnah itself, sorry, describes it with the phrase “עת לעשות לה’ הפרו תורתך”. It should have said something like: a decree lest such-and-such happen, or I don’t know, a rabbinic enactment, that’s all. What is this “עת לעשות לה’ הפרו תורתך”? In other words, that means “doesn’t fit.” Okay?

And why really – what is the indicator that this is indeed so? Because here the uprooting is active violation, not passive omission. Right? The Torah forbids, Jewish law forbids writing down the Oral Torah, and the Sages say no, write it, write it actively. But you are telling me to violate Jewish law actively, not by passive omission. That they do not have authority to do. And therefore there are several examples among the medieval authorities where they see that the Sages uprooted a Torah law through active violation, and this contradicts the rule that the Sages can uproot only by passive omission, not active violation. So they said, well, in extreme cases they can uproot even by active violation. Several medieval authorities write this in several places. What does that mean? The rule is that they can uproot by passive omission. So now you are inventing ad hoc rules? What is going on here?

I think this claim is not a halakhic claim. It is a “doesn’t fit” claim. It says there are situations so extreme that yes, true, we have no authority to uproot because this is active violation, not passive omission. Fine. Lot’s daughters also had no authority to have sexual relations with their father. It is “doesn’t fit” – meaning if the alternative is so awful, then I need to violate Jewish law. It is a kind of transgression for the sake of Heaven. I have no justification. If you ask me what the argument is, I have none. I cannot uproot a Torah law through active violation. There is no such authority in Jewish law.

[Speaker B] Isn’t there a halakhic argument that if I do not write down the Oral Torah there won’t be Jewish law?

[Rabbi Michael Abraham] What do you mean there won’t be Jewish law? Then we’ll be under compulsion. Fine. We’ll forget. Okay, so what? We’ll be acting under compulsion.

[Speaker B] And there’s no halakhic argument that this cancels the law?

[Rabbi Michael Abraham] What prohibition is there here? Show me exactly what prohibition I will violate. I won’t violate anything. Why? Because anything I would violate after forgetting would be under compulsion. I entered that state of compulsion because of the prohibition on writing the Oral Torah, but once I am in that state of compulsion, I am under compulsion. What do they want from me? So there are no complaints against me. Right? But the Sages nevertheless decided to prevent this. And of course the reason is very clear, but I am saying that even if the reason is very clear, I do not think it can be categorized as a halakhic rationale. It is not a halakhic rationale. You cannot point to a specific prohibition that I would violate, okay? But it is obvious to you that it cannot be that the Torah is forgotten. Such a thing is inconceivable. And if there is such a concern, then Rabbi says yes, I enact that the Oral Torah be written down.

And that is why I say that this example really is a good example of “doesn’t fit,” unlike other rabbinic enactments. Other rabbinic enactments done by passive omission are for certain reasons; there is no “doesn’t fit” there. Here the consideration really is “doesn’t fit.” This is not concern lest one carry four cubits in the public domain. This is concern lest the entire Torah be forgotten. That is something very, very fundamental. It is something that says: it is inconceivable that we would allow such a situation to happen. Right, it is not like concern lest one carry four cubits in the public domain. Here there is the element of “this simply cannot happen.” There, just be careful not to carry four cubits in the public domain. Right? It is not some basic matter that cannot be disputed.

So this, for example, really is, I think, a “doesn’t fit” consideration. Other examples I brought – I already brought examples of this – are regarding the destruction of idolatry. Burning the New Testament, burning churches, whatever, lowering idol worshippers into a pit – “מורידין ואין מעלין” (“one lowers them in and does not bring them up”) – and all kinds of things like that. Nobody recommends acting that way today. Why not? When Jewish law says so? It is ruled this way by all the halakhic decisors. There is no disagreement. Because it “doesn’t fit.” You will not hear from anyone a truly convincing rationale. A halakhic rationale.

The only rationale you’ll hear is that our hand is not strong enough. Our hand is not strong enough, and who knows – if we do this, then things will also be done to Jews elsewhere in the world in response, and there are dangers, this and that, all kinds of technical arguments like these. But what happens if I’m on a deserted island? Nobody will hear about it. I can kill the idol worshipper quietly and burn his New Testament peacefully and no one will ever know. So ostensibly, the halakhic decisors who rely on danger, on ways of peace, or whatever, or that our hand is not strong enough, would have to say: yes, on a deserted island, certainly do it. I tend to think that a great many halakhic decisors would not tell you to do it even on a deserted island.

[Speaker D] What, you really believe that? I’m sure of it.

[Rabbi Michael Abraham] I’m sure of it. They’ll find the tricks for how not to do it, even for themselves, by the way. It’s not that they’re lying. They themselves have not conceptualized this possibility – what I am doing now is conceptualizing it – the possibility that Jewish law indeed says one thing, but Jewish law is not the end of the story; there are additional considerations. When you go to a halakhic decisor, from his standpoint it’s obvious that Jewish law is everything. So what does he do? He invents flimsy and strained excuses from here and there so that it will all look like an internal halakhic rationale, because as far as he is concerned there is only Jewish law.

Now you see, these considerations often do not really hold water. They don’t hold water, but what is he supposed to do? He understands that one should not act this way. He is unwilling to accept the statement that this is what Jewish law says and therefore that is what one should do. But there is no such thing, for a standard decisor, as saying: this is what Jewish law says, and still it is not right to do it. So he will find various maneuvers within Jewish law to explain why this is the right thing to do. Okay? So he will say our hand is not strong enough, and if I’m on a deserted island, who knows, the birds of the air may carry the sound; maybe someone will still hear about it. That’s what they will tell you. Okay?

But what they really mean is that it is not proper to act this way. Why is it not proper? We already talked about this. Because I’ll burn churches and the New Testament here, and then when I hear on the news that a Torah scroll was burned, or a synagogue, or whatever, everyone here is horrified – how can this be, what a scandal, anti-Semitism, and so on and so forth. We ourselves, according to Jewish law, are supposedly meant to do this to all our surroundings. Okay? Now when you say that to a person, he doesn’t know what to answer. Because yes, but that is what Jewish law says, what can I do? What, considerations of asymmetry – that’s progressivism, right? It’s some twisted liberal morality. Okay? But this twisted liberal morality is present in him too. It exists in him too. He just doesn’t admit it. And what he will say in a case like that, if it really depended on him, if he really had to permit this permission or forbid this prohibition, then he would find the halakhic way. He’d do this, do that, but he would not tell you to do it.

A great many halakhic decisors – not all, but many – will not tell you to do it. They’ll find this excuse, that excuse: it’s danger to life, because who knows, maybe someone will pass by and see, maybe the Google satellite happens to be over that island and it will catch you burning a church, and who knows, that video will end up on YouTube and eventually riots against Jews will break out. Okay? But these are all excuses that obviously do not hold water. They stretch considerations of danger to life to extremely far-fetched levels because they are unwilling to put on the table the claim that this simply doesn’t fit. It cannot be that we would do such a thing on the moral level. It cannot be that I would do such a thing to people of another faith while expecting them not to do it to me. Right? Because if they did it to me, I would be horrified. It simply cannot be, that’s all. That is the consideration.

I don’t know, if someone says to you—

[Speaker E] Go see what the Maccabees did. They purified the Temple and poured there—

[Rabbi Michael Abraham] Their maidservants.

[Speaker E] What does that have to do with it?

[Rabbi Michael Abraham] The Greeks were trying to impose idols on us. Of course we would smash their idols. What do you mean? I’m talking about some ordinary Greek citizen living next to me in a normal halakhic state, quietly worshipping his idolatry, not trying to force anything on me, not trying to do anything else, in his church or whatever. Am I supposed to burn him?

[Speaker F] So let’s look at – this example seems to scream – what happened in Lebanon.

[Rabbi Michael Abraham] What happened in Lebanon, where the guy smashed the statue – that’s exactly the point. What do you mean?

[Speaker F] And people didn’t justify him?

[Rabbi Michael Abraham] What do you mean they didn’t justify him? Of course they didn’t justify him. But what does “people” mean? Depends who. There are halakhic decisors who are fossilized, fine, so they’ll say, what do you mean, that’s Jewish law, correct. They won’t actually say it because it doesn’t sound good, so they’ll keep quiet and be happy and applaud him silently. But they won’t say it. But a great many decisors will explain why it is not right to do. Only the explanations will always be in terms of our hand is not strong enough, desecration of God’s name, they’ll do the same to us, and all kinds of things of that sort – which are also true, by the way. In this case those explanations are also true. It’s not that they’re false. But in my opinion it is a bypass mechanism.

Meaning, if he had done it quietly and said, forget it, I’m doing it privately inside the house, and I’m also burning everyone in the house, so no one will even be able to report what I did – okay? And now quietly tell me whether it is permitted. Or forbidden. Okay? Then I think, or at least I would like to believe, that many halakhic decisors, even conservative ones, would tell him not to do such a thing. Maybe I’m wrong. It’s hard to test this because by definition it is hidden; by definition it’s something you don’t say out loud. But I think many, many halakhic decisors would say not to do such a thing. Okay? And that basically means it is a “doesn’t fit” consideration, but they won’t explain it as “doesn’t fit.” They’ll explain it through some other rationale and try to fit it into Jewish law.

[Speaker B] In practice this is the spirit and judgment of Torah scholars. So there is some kind of halakhic mechanism there – “according to the instruction they teach you” and all that.

[Rabbi Michael Abraham] I’m talking about the teacher, not about what you do. On what basis does the teacher instruct you to act this way? As for “according to the instruction they teach you,” then yes, obey him, no problem. But why is he instructing you this way? I’m talking about him, not about you. Does it matter to us? Of course. I want to know why. What is he telling you? To smash—

[Speaker B] The statue, or not to smash the statue?

[Rabbi Michael Abraham] Once he instructs you not to smash it, obey him, because of “ככל אשר יורוך” (“according to all that they instruct you”), I understand. But now I ask: what should he instruct you? That’s my question, not what you should do.

[Speaker B] And in any case, once he instructs me that—

[Rabbi Michael Abraham] Then I have halakhic permission. That’s a different discussion. You have halakhic permission, but that doesn’t mean you have moral permission. The halakhic decisor is not an expert in morality. I would expect a person whom the decisor tells to smash the statue not to do it. Meaning, he may receive that ruling as a halakhic instruction – this is the halakhic instruction, smash the statue. Okay. But as far as I’m concerned, the consideration is not only the halakhic one; there are other considerations too. And my decision is a weighing of all the considerations. At most the halakhic decisor can tell me what Jewish law says. He cannot tell me the bottom line. The bottom line is my decision. Okay? What does the verse say? “ועשית ככל אשר יורוך”.

[Speaker B] What’s the verse? “And you shall do according to all that they instruct you.”

[Rabbi Michael Abraham] Your teacher tells you what to do.

[Speaker B] “And you shall do according to all—”

[Rabbi Michael Abraham] “According to all that they instruct you” means that this is what Jewish law says. But if there is an opposing consideration, then no. If there is an opposing consideration that says not to do it, then that overrides the consideration of “and you shall do.” “And you shall do” is itself a halakhic rule – “and you shall do according to all that they instruct you.” And here there is a consideration that goes against Jewish law, and now there is a conflict. So do you want to say that Jewish law itself will determine which prevails, Jewish law or morality? We already discussed this before – it cannot be. So “according to all that they instruct you” is part of Jewish law; it cannot be the deciding factor. Fine, it is one side of the equation. There is another side, and now you have to decide which prevails.

Think about the stubborn and rebellious son and the condemned city. The Talmud says: it never was and never will be – neither a stubborn and rebellious son nor a condemned city. How do you know it will never happen?

[Speaker B] What is a condemned city?

[Rabbi Michael Abraham] A condemned city is a city that worshipped idolatry, that was led astray into idolatry. You burn everyone. What is the meaning of this statement, “it never was and never will be”? How do you know? Are you a prophet? There is always some way out—obviously. Because in practice they won’t do it. What do you mean they won’t do it? But that’s what Jewish law says – an entire section in the Torah, in the portion of Ki Tetze or Shoftim, I no longer remember. An entire section in the Torah about the condemned city and the stubborn and rebellious son. What do you mean it never was and never will be? Because it “doesn’t fit.” Here Jewish law says clear things, and we understand that yes, as an educational message it would be fitting that an entire city worshipping idolatry be burned. Fine. Educationally, very nice. But in practice it “doesn’t fit.” We are not going to do that.

It’s like the beautiful captive woman. We talked about the beautiful captive woman, right? The Torah says that if you find a female captive, you rape her for your pleasure. How do the Sages suddenly decide that the Torah “spoke only in response to the evil inclination”? Why? The Torah said this is permitted; there is an entire section. Because you understand that it “doesn’t fit.” Fine, if you have no choice then there is halakhic permission, but it “doesn’t fit” – fundamentally you are not supposed to do it. The same interpretation is applied to the stubborn and rebellious son and the condemned city. These are educational statements; on the practical level they are not meant to be realized.

Now again, conservative decisors, or in this case conservative judges, will always find you some explanation – maybe he was missing an earlobe in his left ear, and if he doesn’t have an earlobe then we don’t apply the law of the stubborn and rebellious son because someone without an ear isn’t a son. We’ll derive something from some verse. Okay? There are such derivations. The Talmud is full of this. His parents have to be equal in height, right? “His father and mother shall seize him” – the parallel implies that they must be of the same height, the father and the mother. You understand? There are all sorts of requirements there whose whole purpose is obviously that the law of the stubborn and rebellious son should never actually be carried out. What they are really telling you is: it doesn’t fit. Does anyone really believe that from that verse we learn that the father and mother have to be the same height? Yes? No. That’s exactly the point.

Meaning, today’s decisors don’t say this because they simply are not aware of it; they are not willing to accept the possibility of departing from Jewish law. I claim that the Sages expressed themselves esoterically. They cannot tell you straight out: look, violate Jewish law. So they give you hints that are impossible to miss – father and mother have to be the same height? Come on. And there is a whole list of such requirements. There are requirements that the father and mother have the same voice as well – they have to be identical. What is the meaning of all these requirements? This can never be realized.

It seems to me that in the simplest sense what they are really trying to tell you is: it doesn’t fit. Parents take their child and hand him over to the religious court to be killed? Are you out of your mind? This is an educational passage saying: listen, if you do this, know that you are going to end up robbing people – after all, that’s what the Talmud says, that the stubborn and rebellious son is judged based on his future. This is an educational warning: note, if the child is in such a situation, he is basically liable for death. So the parents should take note of that – not that they are now supposed to go to court and have him killed. Rather: realize how low your son has sunk; stop it in time. That’s what they are being told. Not actual legal instruction about what to do. And that is a kind of “doesn’t fit” interpretation.

Now nobody admits that there are considerations of this sort, but that is how it is. For example, there is the Chazon Ish. There is a well-known statement attributed to him that the Shulchan Arukh has five sections, not four. There is a fifth section of the Shulchan Arukh that is not written anywhere. Right? It is what a decisor understands needs to be done even though it is not written anywhere. Now the Chazon Ish is usually interpreted – and maybe that is also the correct interpretation, I don’t know – as meaning that this is the right way to interpret Jewish law, and that many times you need to interpret Jewish law with certain reasonings even though you may not find this or that anchor for them. He sees it as a halakhic tool; that is why he says it is the fifth section of the Shulchan Arukh.

I claim no: the Shulchan Arukh has only four sections. It is just that there is also a Shulchan Arukh of morality, not of Jewish law, and that too has to be taken into account when you make decisions. When you say that this is the fifth section of the Shulchan Arukh, you apparently mean that within the world of halakhic interpretation there are some more amorphous tools, but it is still all within the halakhic world. I want to claim that this is really a “doesn’t fit” argument. There are things one does not do. True, the sources seem to indicate otherwise, but no – one does not do such a thing.

Again, I think that this is what the Chazon Ish meant as well, even if he himself was not aware of it, because I’m not sure he himself conceptualized it in the way I am presenting it here. Meaning: there is Jewish law, and there is morality, and Jewish law is not the whole story. On the contrary, in the Chazon Ish there are often formulations as though Jewish law is the whole story. The story with the teachers at the beginning of his booklet Faith and Trust – what he appears to be teaching there is that Jewish law determines morality, that there is only Jewish law in the world. We discussed this when I was speaking about Jewish law and morality.

Now I want to bring another example of a “doesn’t fit” consideration.

[Speaker C] On this approach, looking for an excuse – is it like in cases punishable by stoning, where one of the Tannaim said that he would question and investigate to find a way out, like, did you see whether there was a hole where the sword entered?

[Rabbi Michael Abraham] Rabbi Akiva and Rabbi Tarfon. Yes. And then Rabban Gamliel says to them: you too would increase bloodshed in Israel. Because what do you mean – so then it becomes impossible to punish any murderer?

[Speaker H] Can you play that game?

[Rabbi Michael Abraham] Yes, but you can pretend and say that Rabbi Akiva and Rabbi Tarfon are making a halakhic argument. Who says? Maybe there really was a hole where the sword entered. Right, it’s unlikely, but possible. To kill someone you need complete certainty, and there is no complete certainty, so you can’t kill him. That can be interpreted as a halakhic consideration. That is usually how it will be explained to you: it’s a halakhic consideration. Especially since it says “והצילו העדה” (“the congregation shall save”), meaning that we really do need to find even far-fetched excuses to save a person from the death penalty. So here they found an excuse: who says? Maybe he killed someone already mortally wounded, who would have died anyway. And then Rabban Gamliel argues against them: you too would increase bloodshed in Israel.

[Speaker I] It sounds like the discussion is really about how to deal with it.

[Rabbi Michael Abraham] Rabban Gamliel argues—

[Speaker I] “You too would increase bloodshed” – that sounds like the same issue in practice.

[Rabbi Michael Abraham] Exactly. From Rabban Gamliel’s argument you can see that the argument of Rabbi Tarfon and Rabbi Akiva is not a halakhic one. It is an argument that says: it doesn’t fit to kill someone for such-and-such an offense. It is really impossible. A person who is warned and says yes, and on that basis I am doing it – what all has to happen for him to be killed? Killing a person is science fiction. It cannot happen. Fine? Basically they are saying: leave it alone. It’s like the stubborn and rebellious son whose parents have to be the same height. These are all impossible requirements whose whole purpose is really to neutralize the duty of implementation. Okay? But you latch onto pseudo-halakhic justifications, like: did you see whether there was a hole where the sword entered?

And that is precisely why Rabban Gamliel does not argue with them on the legal merits. He doesn’t say: listen, but statistically the majority would say there was no hole, so we follow the majority. He doesn’t make such an argument, and they too do not intend to make a halakhic argument. They mean to make a policy argument. And Rabban Gamliel argues with them on that level of policy. He says to them: that is not good policy. We want to deter murderers. And if all murderers know in advance that no one will punish them, how are you going to deter them?

[Speaker B] Does that also explain why they killed the wood-gatherer in the wilderness? Right? Why? According to Jewish law they weren’t supposed to kill him.

[Rabbi Michael Abraham] Why not? Desecrating the Sabbath, witnesses, warning.

[Speaker B] No, it was something that he did—

[Rabbi Michael Abraham] There is a midrash that Tosafot brings in Bava Batra, that the wood-gatherer did it in order to teach the people of Israel a lesson: that even though it had been decreed upon them not to enter the Land but to remain in the wilderness for forty years, the Torah was still in force. They thought, fine, they canceled the Land of Israel for us, so apparently they also canceled the Torah for us. We’re no longer in the game. We’re no longer in interaction with the Holy One, blessed be He. So he came to teach them that even though they had already been decreed not to enter the Land of Israel, Jewish law still obligated them. How did he teach them? He gathered wood hoping that the religious court would kill him and everyone would see that people are killed for desecrating the Sabbath. Fine? So he was actually a righteous man. Okay?

Tosafot there asks – I think it’s the Maharsha who asks there – the Maharsha asks: so why did they kill him? After all, that is labor that is not needed for its own sake. He gathered the wood in order to educate the people of Israel, not because he needed the wood. So it is labor not needed for its own sake. How did they kill him? The simple answer is of course that they didn’t know. Because if they had known he was doing it in order to be killed, the whole educational point would have been lost.

[Speaker B] Was he a “doesn’t fit” case? What? Was he a “doesn’t fit” case?

[Rabbi Michael Abraham] No. “Doesn’t fit” would mean not to kill anyone, not because of his intentions. To kill him for the sake of morality?

[Speaker B] Ah – by force of “doesn’t fit,” to kill him?

[Rabbi Michael Abraham] Well, that I don’t know. No – if he came to educate the people of Israel, and you know that it is labor not needed for its own sake, then why kill him? He’s both righteous and—

[Speaker J] But they asked God. About the wood-gatherer? Didn’t they ask God?

[Rabbi Michael Abraham] They asked what the punishment of a wood-gatherer was. Fine. He told them: his punishment is stoning. But this wasn’t that wood-gatherer specifically. He performed labor not needed for its own sake.

[Speaker J] Maybe they asked specifically about him. Who says not?

[Rabbi Michael Abraham] Maybe they asked what the law of a wood-gatherer is. What labor did he do, the wood-gatherer? He gathered wood. What, is there a prohibition against gathering wood? Is this just handling set-aside objects? Handling set-aside objects is only rabbinically prohibited. It may be that what they asked was whether gathering is included among the labors for which one incurs death. And the answer is yes. But that does not mean that the person who gathered is liable to death. Maybe he did it as labor not needed for its own sake. Then he is not liable to death.

[Speaker E] What, God doesn’t understand things in context?

[Rabbi Michael Abraham] What do you mean?

[Speaker E] He wasn’t planning to light a fire. They didn’t ask Him in the abstract. They asked because there was a case.

[Rabbi Michael Abraham] Fine, so He told them: a wood-gatherer is liable to death. What’s the problem? Not that particular wood-gatherer. Someone who gathers wood is liable to death. Now you decide. The judges determine, not the Holy One, blessed be He. The judges need to determine whether there was warning, whether there was notice – all the conditions required in order to execute someone. Fine, it doesn’t matter. It’s all aggadic midrash, of course. But the claim is that – yes, the claim, in short, is that extra-halakhic considerations can intervene in our decisions.

Let’s take another example of this, one relevant to our own time. The Talmud in Gittin 88 brings a teaching: “It was taught: Rabbi Tarfon would say, wherever you find courts of idol worshippers, even though their laws are like the laws of Israel, you are not permitted to resort to them, as it says, ‘ואלה המשפטים אשר תשים לפניהם’ (‘And these are the laws that you shall place before them’) – before them, and not before idol worshippers. Another interpretation: before them, and not before laymen.” Meaning, we learn from ‘ואלה המשפטים אשר תשים לפניהם’ that “before them” means before ordained judges.

[Speaker B] What are these “courts”?

[Rabbi Michael Abraham] Courts – a gentile governing authority. Gentile courts.

[Speaker B] So what does the Talmud say…

[Rabbi Michael Abraham] Not to use them. Not to resort to them. Not to go to the court – to the civil court – of a gentile. Okay? “And these are the laws that you shall place before them” means that legal matters must be brought before ordained judges, not before gentiles, and not even before Jewish judges who are not ordained. Fine? Only before judges qualified to judge.

Now this law is codified as Jewish law by all the halakhic decisors. Whoever goes before a civil court – not valid, not Jewish – or whoever appoints an unfit judge, it is as though he planted an Asherah tree beside the altar. It is compared to idolatry in many places, because it is basically honoring their idols. When you go to a foreign legal system, or to a legal system that functions in the name of some other idol and not the legal system of the Holy One, blessed be He, that is perceived as some kind of trace of idolatry. Right? You are basically exalting the name of the idol.

[Speaker B] Even regarding the modern religions? Christianity, Islam, and all that?

[Rabbi Michael Abraham] All of them. It doesn’t matter who.

[Speaker B] They believe in the same God.

[Rabbi Michael Abraham] So what? Not in Jewish law, not in the system they invented for themselves. Right? So the claim is that one must judge only before qualified judges.

What happened in the period when ordained judges still existed? A Jewish settlement developed in Babylonia, and in Babylonia there were no ordained judges. Ordained judges existed only in the Land of Israel. And what are ordained judges? Judges who were formally ordained to judge. The ordination process had to proceed from one ordained person to another all the way back to Moses, and at some point this ended, apparently toward the end or middle of the Tannaitic period. There was Rabbi Yehuda ben Bava, who ordained those five students, and more or less there it ended. There are interesting discussions: there were ordained judges in Babylonia, in Iraq, until the eleventh century. And here we are talking about the first or second century CE, the period of the Mishnah, the Tannaitic period. But there were ordained judges until the eleventh century; the Geonim in Iraq or Babylonia were ordained. The question is whether that was full ordination or not, and there is a dispute. Even today people often say, “I ordain you to issue halakhic rulings” or something like that, but that is just borrowed language. There are no truly ordained judges today. That ended at the close of the Tannaitic period. Okay.

So what happened in Babylonia? They had no ordained judges. But it is forbidden – “before them and not before laymen.” Anyone not ordained is a layman. Now obviously there were Torah scholars there in Babylonia – all the Babylonian Amoraim were there – but they were not ordained. Ordination is a formal act, fine? You have to be ordained by someone who is himself ordained. It doesn’t matter whether you are a Torah scholar or not.

I compare it to, say, a professor of law. He is an expert in law no less than a judge, right? He doesn’t know less legal theory than a judge, right? But still, what a judge tells me I have to obey, whereas what a professor tells me I am not required to obey. Right? Why? What is the difference between them? The difference is not in the profession of knowledge but in the profession of authority. Right? A judge has authority from the government, which appointed him, and therefore what he says has to be followed. Not only because of the knowledge.

So they took a person who had knowledge, but what gives him authority is not the knowledge but the appointment given him by the governing power. In the halakhic world too, authorization to judge consists of two aspects. One aspect is checking whether you are actually an expert, and the second is whether you received formal authorization from the secular authority – the Exilarch, or the king, or someone like that, the governing authority, secular not in the sense of “without a kippah,” but the civil authority of the Jewish people, the king, not the religious authority. Okay. So that is the meaning of ordination.

Therefore, the judges in Babylonia were experts no less than the judges of the Land of Israel, but they lacked the formal appointment, because ordination does not exist in Babylonia, only in the Land of Israel. So they could not judge. That would mean the entire Jewish settlement in Babylonia could not adjudicate anything – total anarchy. So what do they say? The Talmud says that the ordained judges in the Land of Israel appointed the judges abroad as their agents. This is called the law of agency: “שליחותייהו דקמאי קא עבדינן” – we act as the agents of the earlier ordained judges.

Now Tosafot in Gittin there, in that same place, asks: “How do we act as their agents, when now there are no experts?” Meaning, Tosafot is talking – Tosafot is already the twelfth-thirteenth century, right? Tosafot says: how do we judge today? Forget the judges of Babylonia from a thousand years ago – how do we judge today? What’s the difference? He says: today there are no ordained judges in the Land of Israel. In those days the judges in Babylonia were the agents of the ordained judges in the Land of Israel. But today we have no ordained judges in the Land of Israel. Whose agents are we? How can we judge?

Tosafot answers: “We act as the agents of the early ones.” We act as the agents of the ancients, of those ordained judges who existed then. This is a huge novelty in the laws of agency. Where else do we find that an agent can act by virtue of a principal who is dead? There is no such thing, right? If the principal is dead, the agent cannot act on his behalf. The agency lapses.

So in my opinion this is a legal fiction. Meaning, yes – what do you want? That there be no adjudication? What are we supposed to do? No judges, no courts, just anarchy? There is no choice – it doesn’t fit. Right? What do you expect – that we should not judge before laymen? We have no ordained judges, no ordained judges appointing us as their agents – so we simply won’t judge? No court system at all?

[Speaker B] And if an agent of an agent doesn’t work? Then maybe it’s an agent of an agent. Those agents got permission from the ordained judges.

[Rabbi Michael Abraham] Okay, they all died – both the agents and the principals died long ago. We are speaking a thousand years later.

[Speaker B] And if before they died they transferred the agency again to other agents – does that not hold?

[Rabbi Michael Abraham] What do you mean? Once the principal dies, the agent can no longer act on his behalf. So when the first principal died, the second agent was nullified, and he cannot appoint another agent. Fine? Not only that – there never was any appointment ceremony in the first place. It is obvious there was no such formal event where they appointed the judges of Babylonia as agents. It’s a fiction. It’s as if he says: there is no other way to function. Clearly there must be some instance that can adjudicate; life cannot be run otherwise. Okay? That is what they mean by “שליחותייהו דקמאי”, that we act as the agents of the ancients. Not that the ancients really appointed us, but that it is obvious that if they had been aware of the situation, they would have told us to judge. It is a kind of implied appointment.

Then Tosafot in Gittin raises another question. The Talmud says there that this law of agency exists only for common matters or where there is financial loss – “מילתא דשכיחא” or where there is a loss. Only for those were the agents appointed. Otherwise it really is forbidden to judge. So Tosafot asks: “For common matters and the like, such as admissions and loans. But as for the fact that we accept converts, even though a convert requires three expert judges, as we say in tractate Yevamot – the word ‘law’ is written there…”

What is Tosafot asking? How is it that today we convert gentiles? Part of the conversion process is that it must be before a religious court. If it is not done before a religious court, the conversion is invalid. That is a constitutive condition. Without a religious court there is no conversion. Even if everything else was in order and he accepts the commandments, whatever – the presence of a religious court is constitutive. Without its being before a religious court, the convert is not a convert.

So how do we accept converts nowadays? Tell me it is by this agency mechanism – we are agents of the ordained judges and act in their name. But this law of agency applies only to common matters or cases of loss. Conversion is neither. At least in their day. Conversion was not common, and no one loses money if we do not convert him. So the law of agency was not said about this. Tosafot asks: then how do we accept converts nowadays?

This reminds me of the huge dispute some ten or fifteen years ago over the conversions of the state conversion system. There was a judge in Ashdod who said that all the rabbinical courts of the state conversion system are wicked because they do not require acceptance of the commandments, and acceptance of the commandments is a condition of conversion. Since they do not require acceptance of the commandments – because we all know the converts do not really intend to keep the commandments – they were called “wink-and-nod conversions” by some. So he said: fine, anyone who does that is wicked. Once you are wicked, you are unfit to serve as a judge. If you are unfit to serve as a judge, then all these conversions were not performed before a religious court. And if they were not performed before a religious court, the conversion is invalid. Even if one exceptional convert really did sincerely accept the commandments – it doesn’t matter, because the judges before whom this happened were wicked, so there was no religious court there. And if there is no religious court, it is not a conversion.

I’m only bringing this as an illustration of the point that you need a religious court in order for conversion to be valid. Fine, so the question returns: how do we accept converts nowadays? Tosafot answers in the name of Rabbeinu Yitzhak: “We act as their agents, because it is considered common.” And in tractate Yevamot too it implies that they accepted converts in Babylonia. It seems that they accepted converts in Babylonia even though there were no ordained judges. How? Apparently the law of agency works for conversion as well. So even today, when there are no ordained judges in the Land of Israel and we still operate through the agency of the ancients, we still convert by virtue of that authority.

Now what does it mean that it is “considered common”? Why is it considered common? It’s not common, right? That was Tosafot’s assumption in the question – that conversion is not common. So what does “considered common” mean?

[Speaker G] “Doesn’t fit.”

[Rabbi Michael Abraham] What is he really saying? He’s saying: what, do you mean that for thousands of years, if some gentile wants to convert – there aren’t many, but there are some – the door is locked? He cannot become Jewish? There’s a formal problem, and that’s it, there’s nothing to be done because we don’t have an ordained court? Such a thing is inconceivable. It doesn’t fit.

It’s not really common; it is “considered common.” Why? Because for common matters you instituted the law of agency, since if there were no one to adjudicate common matters, life would become anarchy, right? So it also “doesn’t fit” not to deal with conversion. He says that too “doesn’t fit.” Therefore Tosafot says it is considered common – not because conversion actually is common, but because the same rationale by which in common matters we say there is a law of agency applies to conversion as well, because this too “doesn’t fit,” just as the other “doesn’t fit.”

That is the first introduction. You can already see that regarding adjudication before civil courts – this is called the prohibition of civil courts – whether gentile courts or lay courts, there are “doesn’t fit” considerations. Right? There are situations in which it cannot be that there is no institution able to judge, and therefore we allow judges who are not technically fit under the law to judge. That is a “doesn’t fit” consideration.

Now look how this reaches our own time. In our time there is a dispute – what dispute? All the halakhic decisors say that it is forbidden to go to civil courts. All the halakhic decisors – Zionist, non-Zionist, there is almost no disagreement on this. It is forbidden to go to civil courts. If you have no choice, for example because the other litigant is secular or whatever, then you get permission from a religious court and then you can go to civil court. There is such a mechanism: getting permission from an authorized religious court, and then you may go to civil court, because you are not required to lose your money. Otherwise anyone could rob me and say that I cannot sue him because he refuses to come to a rabbinical court. The world would be lawless; that cannot be. So you get permission and go to civil court. Okay?

But that means that without permission, or if both litigants are religious, say, then it is forbidden to go to civil court. There is a dispute on this matter – between halakhic decisors and judges, I mean religious judges. There are religious judges, some of them also Torah scholars, and quite a few judges and jurists argue that no, there is no prohibition, for various reasons. No prohibition. Either because they accepted them upon themselves – if I accept the judges upon myself, then I can go before disqualified judges. “My father is trusted by me, your father is trusted by me, three cattle-herders are trusted by me,” as the Talmud says in tractate Sanhedrin. I can accept any judge I want; if both sides agree, then everything is fine, and you can litigate before whomever you want. It’s like a compromise, whatever. In any event, the halakhic decisors do not accept this, for various reasons, but that is the dispute.

Now beyond the halakhic dispute there is of course a meta-halakhic dispute – the “doesn’t fit” dispute. Meaning, the jurists are basically saying: you cannot run a society and a state without a legal system, right? You cannot. The halakhic legal system is not an option today in the present composition of the population. It is impossible; the public won’t agree. So what is the alternative? If you forbid going to civil courts, then the world becomes lawless.

Now, I might say: what do you mean? Go to a religious court, or with a religious court’s permission go to civil court. But fine, it isn’t like that. Because litigating in a religious court involves all kinds of problems. I don’t have much experience with this, but once I accompanied some yeshiva student who had gotten into a bit of trouble and asked me to help him. We went to a religious court in Jerusalem – not the official rabbinate, a private religious court. And there I saw all the problems in this mechanism. For example, they cannot summon witnesses. They have no legal standing. When a civil court summons you, you must appear. If you are a police officer, a clerk, or just some passerby who happened to see something, you can receive a summons from the court and you have to appear. A civil court has the ability to summon witnesses or demand evidence from institutions: provide me with this document, this item, and it has authority. A religious court doesn’t.

And there were really strange things in that hearing I was in. For example, they began questioning someone by phone. So they told one of the litigants: call him, talk to him as if it’s a private conversation, but put it on speaker and we’ll listen. Judges! Do you understand? They can’t summon him because he won’t come. He doesn’t feel like coming and isn’t obligated to come. But they want to hear what he has to say – he was a relevant witness. Do you understand what kinds of tricks they use there? Do you understand what such testimony is worth? It’s a kind of casual conversation testimony. Obviously none of the normal rules of testimony are met – that you stand before the judges, that they warn you, none of that happens.

Okay, why? Because this is built in. It’s not a bug, it’s a feature. Fine? It’s not that there happened to be some malfunction there; it is built into the mechanism of private religious courts, because private religious courts are not granted the authority of the state. So they have no powers. They need to improvise some makeshift way of conducting proceedings. Okay? Therefore, in my opinion, not only is it permitted to go to civil courts – it is forbidden to go to rabbinical courts nowadays. Forbidden, because it simply leads to anarchy, to non-substantive adjudication. It is simply wrong to go there.

Again, if both sides agree and go there and accept whatever the religious court says, good luck to them. But on the principled level I say it is simply a mistake, not the right thing to do. Now where is the halakhic dispute mapped?

[Speaker L] The question is whether one should aspire to having a rabbinical court with actual judicial power.

[Rabbi Michael Abraham] Aspire to it – yes. The only question is what “aspire” means. If it means that all the Jewish people should be bound by Jewish law and then there will be suitable judges and they will judge and everything – yes, certainly. But if “aspire” means that we should impose this today on the entire public in its current composition – that’s another question, one can argue how much to impose on the other twenty-five percent. But on the principled level, of course we want Torah law. In principle. Today it is not realistic. There is no point. It’s just a constraint.

Now what happens is that some people bring a source that supposedly justifies going to the courts of the State of Israel. Where do we see this? The Talmud in Sanhedrin says there is a mechanism called “זבל”א” – “one chooses one, and the other chooses one.” Know that? Say I have a legal dispute with you. I choose one judge, you choose one judge, and those two judges together choose a third, and that is the panel before which we litigate. Fine? There is a fixed court in town and you can litigate before it, or before a panel of this type. There is also the option, by agreement of the two parties, of using this mechanism.

The Talmud says: this one can disqualify that one’s judge – meaning you can disqualify the judge I appointed, and I can disqualify the judge you appointed. Okay? The Talmud asks: what do you mean, can a person really disqualify a judge? What is this, a lawless world? The litigant determines which judge will judge him? Fine, I understand his choosing his own judge, but how can he disqualify the other side’s judge? Rabbi Yohanan says: this was taught regarding the courts in Syria. But not for experts. If I chose an ordained judge, you cannot disqualify him. You can choose your judge, and if your judge is ordained I can’t disqualify him. But if he is not ordained, then yes, you can disqualify him. And when it says “this one disqualifies that one’s judge,” it is speaking about the courts in Syria.

What happened in the courts in Syria? The commentators say there were Jewish communities in Syria, and they did not have judges there who were Torah scholars. There were no Torah scholars in the community. So they appointed judges who were not scholars, not Torah scholars, simply so that there would be order. So they appointed non-scholarly judges, and this counts – these are Jews, not gentiles – and this is the halakhic concept called “courts in Syria.” Courts in Syria means a situation in which there are judges who are not technically fit, but it is permitted to litigate before them because of necessity. Fine?

Now in the present dispute about the courts in the State of Israel, some people say: there you have it. The Rema rules in Choshen Mishpat, section 8: “And in towns where there are no scholars fit to be judges, or where all are ignorant people and they need judges to judge among them so that they not go before gentile courts, the best and wisest among them are appointed with the consent of the townspeople, even though they are not fit to be judges. Since the townspeople accepted them, no one else may disqualify them.” Fine? That is the concept of courts in Syria. It is ruled as Jewish law.

So the judges say: here, if so, that is our situation – courts in Syria. The civil courts in the State of Israel have the legal status of courts in Syria, and therefore it is permitted to appear before them. That is basically the claim. But the halakhic decisors say no. There is a passage in the Chazon Ish – let’s maybe look at it. The Chazon Ish says: “Even though there is no judge among them who judges according to the laws of the Torah, and they are forced to appoint a person of intellect and decent character…” We have no suitable judge, so we need to take someone moral, upright, whatever. He is not a Torah scholar, not fit to judge, but fine, we’ll take the best we have. What can we do?

The Chazon Ish says: “They are not permitted to accept upon themselves the laws of the nations or to legislate laws.” They cannot legislate a different legal system. There is only one legal system: the laws of the Torah. Appoint judges, yes – take the best available if you have no one fit to judge. But that doesn’t mean you can also legislate some other legal system and abandon Torah law entirely. Rather, the judge should decide each case according to what appears right to him. How are the judges you appoint supposed to judge? They don’t know Torah law. Other legal systems we are forbidden to legislate. So how should they judge? They should say whatever seems right to them in each case. It is all basically compromise. In that case, it is not evident that they have “abandoned the source of living water to hew broken cisterns.” In such a case it does not look like you are abandoning the Torah and going to something else. You have no Torah alternative, and you also have not legislated an alternative legal system. You come before people, and they say what seems reasonable and moral to us, and they rule that way, case by case. That is the best available. We have no option of judging by Torah law.

But to legislate another legal system is forbidden. Because that means you have abandoned Torah law and gone to some other law. But if they agree upon laws – if they legislate another legal system as an alternative to the Torah – then they are desecrating the Torah, and regarding this it was said: “place them before them,” and not before laymen. The Talmud we saw. And it makes no difference whether one comes before non-Jews or before Jews who judge according to fabricated laws. There is no difference between going before gentiles and going before Jews who judge according to an alternative legal system, the legal system of the gentiles, not Torah law. And the matter is even more disgraceful among Jews. Going to gentiles is one thing. Among Jews it is worse, because as Jews they have abandoned Torah law and taken on an alternative legal system. There is no greater raising of the hand against the Torah of Moses than that. Therefore one cannot learn from the courts in Syria to the courts of the State of Israel.

That is what stands behind “before them and not before laymen,” “before them and not before gentiles,” and “before them and not before laymen”; whoever does this raises his hand against the Torah of Moses.

[Speaker K] So are the courts in Syria valid from the outset?

[Rabbi Michael Abraham] The courts in Syria are also a raising of the hand against the Torah of Moses, because you appointed judges who are not fit and you go before laymen. So what does the Chazon Ish say? Yes, but the Talmud says it is possible. Why is it possible? Because what can you do? You have no other option. You have no fit judges, and you cannot live without a legal system. But, says the Chazon Ish, that is not what happened in Syria. They did not legislate an alternative legal system. Rather, they judged each case according to what seemed right to them.

[Speaker M] Fine, but what is he proposing here?

[Rabbi Michael Abraham] He is talking about not legislating an alternative legal system.

[Speaker M] They already legislated it. That’s what exists.

[Rabbi Michael Abraham] Fine. Then that is raising a hand against the Torah of Moses, and it is forbidden to go to them. Also—

[Speaker M] In Syria too, if he could have—

[Rabbi Michael Abraham] No, no. They didn’t raise a hand because they had no choice, so do what you can. But here you can. Go to religious courts, not civil courts. Don’t go to them. That is what the Chazon Ish claims.

And more than that, there is another argument. Rabbi, just a second?

[Speaker B] Yes. I’m trying to understand what the Rabbi said in the name of the Chazon Ish, that Jews who left the Torah are worse than gentiles according to this approach. Regarding today’s civil courts there are two arguments for why Jews are preferable, on the opposing view. First of all, isn’t there this thing that if no legal ruling can be reached in the end, then they go according to the laws of the Hebrew Bible? Isn’t there such a thing in Israeli law?

[Rabbi Michael Abraham] No, no. The Foundations of Law Act of 1980 is something else. It says that if there is a lacuna, then they go according to the principles of justice and fairness of Israel’s heritage. That has no meaning. They also don’t know Jewish law. Even if they wanted to go by Jewish law, that’s not what this means. And in any case it speaks of the principles of justice and fairness of Israel’s heritage, not Jewish law. It means nothing.

[Speaker B] Okay. So what’s more relevant is that even Jews who abandoned the Torah – Bialik, for example – if you ask him, he can state legal matters more intelligently and better than a gentile.

[Rabbi Michael Abraham] Still, when you establish an alternative legal system for yourself, that is desecration of God’s name. You abandon the Torah and go to another system. That is worse than going to gentiles, because here Jews have abandoned the Torah and adopted something else. That is a greater desecration of God’s name.

The Netivot, in section 23, comments on the Rema – this is the Rema I brought earlier on the courts in Syria – and says: “This is in a place where there are no Torah scholars, and they need to prevent people from going before gentile courts, as in section 8. But in a place where there are Torah scholars, it is forbidden to appoint an unfit judge, and even an individual may object.” This is a second challenge that people raise against the courts in Israel. In Syria there were no Torah scholars and they needed someone to sit on the courts. In Israel there are – there are judges who could judge, Torah scholars, and yet instead of appointing them you appoint civil judges. That is another reason why the courts in Syria cannot be compared to our situation.

So there are two reasons: one, we do have fit judges, and nevertheless you go and appoint judges who are unfit to judge. Two, here they legislated an alternative legal system, not just people judging each case according to what seems right. Meaning, this is an even more blatant abandonment of the Torah. Instead of the Torah, they legislated for themselves an alternative legal system. Therefore, claim the opponents – let’s call them the halakhic decisors – one cannot rely on the precedent of the courts in Syria to justify going to the courts of the State of Israel. Those are the two reasons.

[Speaker B] Since we already mentioned legal fictions – what was that word the Rabbi said at the beginning? “Doesn’t fit.” So if we can use “doesn’t fit” for anything we want, then what’s the problem with these judges?

[Rabbi Michael Abraham] Hold on. Not for nothing am I bringing this here. We’re getting there. So that’s the dispute, okay? There is a dispute. Now I ask one step back: we find in the Talmud that before the courts in Syria one may litigate. Why?

[Speaker B] Because there are no Torah scholars.

[Rabbi Michael Abraham] So what? Very simple: let the law pierce the mountain. If there are no Torah scholars, then fine – no court. Right? And the law of the courts in Syria itself is based on a “doesn’t fit” consideration. If they had said: look, we bring a verse and from it we learn that if there are no Torah scholars then appoint laymen – fine, I understand. But they don’t. No source is brought there that grounds or justifies appointing the courts in Syria. So what is it based on? On “doesn’t fit.”

So I claim: well then, the same “doesn’t fit” applies today too. Why should I care that there are differences between Syria and here – that there they did not have an alternative legal system and there there were no Torah scholars fit to judge, while here there are fit Torah scholars and an alternative legal system was created? Okay, what are you suggesting? That we not go to civil courts and then end up in exactly the same situation that Syria would have faced had they not appointed those judges – namely, anarchy, no legal system? But that is exactly the “doesn’t fit” consideration of the courts in Syria.

You are drawing distinctions between Syria and here because you think the courts in Syria are a halakhic source. Then I say: anything similar to the courts in Syria I can learn from there and say that here too it is permitted. And the Chazon Ish says no, it is not similar, because this is an alternative legal system and because we do have fit judges while they did not, so you cannot compare this to that. I say: correct, you cannot compare them. I am not learning it from the law of the courts in Syria. I am not claiming that our courts today are like the courts in Syria. They are not. The distinctions are correct. There are obvious distinctions. But I am claiming that the rationale that justified the courts in Syria exists here as well. The same “doesn’t fit” that existed there exists here too. Because today we have no alternative.

True, we have Torah scholars who are judges, but most of the public will not agree that they be the judges. The public does not accept that system. And like it or not, we live in one society. There is a state here, and within it there is a society, and it has to function. There is no state without a legal system. Now what legal system are you going to have? Without legislating laws you cannot function; no one runs a state without legislating laws. And without appointing judges – or if you appoint Torah scholars as judges – the public will not agree. Unfortunately maybe, but that is the fact. So what are you suggesting – that we have anarchy? Without a legal system, that is anarchy.

Therefore I argue that the courts in Syria are a precedent for our case, not because it is similar to the courts in Syria – it is not similar. The distinctions are correct; there are clear distinctions. But because just as there they used a “doesn’t fit” consideration, I too use a “doesn’t fit” consideration. There is a well-known Hasidic story about Rabbi Nahum of Malkhovitz. I don’t remember whether it was the father or the son, but the father died and his son succeeded him as rebbe. And he began changing his father’s customs. People said to him: how can you change the customs of our fathers and so on? He replied: I’m changing them? I am continuing the way of my fathers down to the smallest detail. Just as my father changed the customs of his fathers, I too change the customs of my fathers. Meaning, I am continuing the tradition in a very exacting way.

And here too it is the same. You want me to continue the courts in Syria; you mean I need to be like the courts in Syria. No. Just as the courts in Syria did not continue what had come before them, I too will not continue what was in the courts in Syria, for the same reason. And that really is the true continuation of the courts in Syria. I am the real continuator of the courts in Syria, not you. Because anyone who thinks one has to compare our case to the courts in Syria and only then can apply it simply does not understand the idea of the courts in Syria. The whole idea of the courts in Syria is that I am not looking for precedents. If the alternative is anarchy, that is not an alternative.

This often reminds me of another example. You know there are two kinds of Chazon-Ishniks – we talked about the Chazon Ish. Chazon-Ishniks are people who follow the path of the Chazon Ish. There are two types. Usually what they call a Chazon-Ishnik in Bnei Brak is a person who rules everything according to the Chazon Ish: in the laws of the sukkah, in measurements according to the Chazon Ish – basically all rulings of the Chazon Ish. But there are truer Chazon-Ishniks, very few of them today, who did what they themselves thought, in the way that the Chazon Ish did what he himself thought. They did not do what is written in the books of the Chazon Ish. They did what they themselves thought, just as the Chazon Ish did what he himself thought.

And by the way, they are the real continuators of the Chazon Ish, because he truly was an independent decisor. He did what he thought, and he wrote to people and told them: do what you think. That really was his instruction. And those who do everything written in the books of the Chazon Ish are precisely those who are not continuing the path of the Chazon Ish. They are usually called Chazon-Ishniks, but they are not continuing his path.

[Speaker B] So in the spirit of the Chazon Ish, do whatever you want?

[Rabbi Michael Abraham] First of all, reach his breadth of understanding yourself. Obviously we are speaking about someone who is a Torah scholar, not just anyone. Do what you understand. I remember that Rabbi Yogel, who was the head of the yeshiva in the Midrasha – I think it was from him that I heard this once – said that he studied in a havruta with Rabbi Gedaliah Nadel. Gedaliah Nadel was one of the few Chazon-Ishniks of the second type. He lived on Rashbam Street, in the center of world Chazon-Ishnikism in Bnei Brak. Anyway, they studied together in the 1950s. Maybe earlier, perhaps already in the 1940s. Whenever they had some question, they would go ask the Chazon Ish at the end of the week, or something like that – questions that had come up during the week.

I think I heard this from him, though I’m not sure: that Gedaliah once came to the Chazon Ish and said, look, we read in the book Chazon Ish that you wrote such-and-such, but I have a difficulty with it from here and a difficulty from there. So the Chazon Ish said to him: Gedaliah, what do you want from me? You think differently? Fine, then do differently. What’s the problem? And he writes this in his letters too, in many places, and in section 159 and section 3 in Yoreh De’ah as well, he writes there that a person should act according to what he thinks. So all the Chazon-Ishniks are not really Chazon-Ishniks.

In any case, for our purposes, I want to claim that we should continue the law of the courts in Syria, but not because this is similar to the courts in Syria. Rather because the same rationale of the courts in Syria exists in our case too.

[Speaker B] How does the Chazon Ish deal with “make for yourself a rabbi”? What? “Make for yourself a rabbi.”

[Rabbi Michael Abraham] You’re speaking about the rabbi. Again, I answer what I answered before: I’m talking about the rabbi, not the person asking. How should the rabbi rule? Should he rule according to the Chazon Ish? He should rule according to what he understands. I’m speaking about someone capable, not some random person doing whatever he wants. That’s just not serious. Okay?

Now here there is an interesting point, because these are two kinds of arguments that look similar but are very different. I can say that I want to go to the civil courts of the State of Israel by virtue of the precedent of the courts in Syria. Because it is similar to the courts in Syria, and therefore I have an explicit Talmudic precedent that was also codified in the Shulchan Arukh and so on, and so I can rely on that and go to the courts of the State of Israel. That is not a “doesn’t fit” argument. Because that is an argument based on treating the courts in Syria as one of the rules of Jewish law, and by that halakhic rule I can justify going to court.

What I am arguing is that the courts in Syria themselves are not a halakhic rule at all. They are an extra-halakhic rule of “doesn’t fit.” It says that despite the fact that this is not a halakhic rule, there is an extra-halakhic value of order, of opposition to anarchy, that obligates us to depart from Jewish law. That is what they did there. And now I say that in light of that, I too do the same today in the State of Israel. Then the consideration I am raising here is indeed a “doesn’t fit” consideration, not a precedent-based consideration. A precedent-based consideration is a halakhic one. But the consideration I am speaking of here is “doesn’t fit,” not halakhic.

I go to the courts of the State of Israel because I have no other way out. Not because it is permitted. Or in other words, in the dispute between the judges and the halakhic decisors, right? The decisors say it is forbidden to go to the courts, and the judges say there is no choice, you have to go to the courts, there is no alternative. And I argue that both sides are right. It is forbidden, and there is no choice, and therefore you have to go. What I am saying now is not a reason why it is halakhically permitted. No – it is forbidden. It is a transgression for the sake of Heaven. The whole category I spoke about at the beginning. It is forbidden from the halakhic standpoint. But there is an extra-halakhic “doesn’t fit” consideration that tells me that in this case I need not follow Jewish law.

Meaning: the halakhic decisors are right that this is forbidden, and the judges are right that, fine, but it doesn’t fit – one cannot live in a state without an effective legal system. And the combination of those two truths is that one has to go to court despite the absence of halakhic permission. This is a view you will not hear. You will hear the view that it is forbidden to go. You will hear the view that it is permitted and one must go because there is halakhic permission – courts in Syria, or because they accepted it upon themselves, and so forth. And I claim that both of those are wrong. Why? Because both sides are in fact right. There is a halakhic prohibition, and the permission to go is because of “doesn’t fit,” not because there is halakhic permission. The halakhic prohibition remains fully in force.

Just like, yes, a transgression for the sake of Heaven with Lot’s daughters. The halakhic prohibition against having relations with their father remained fully in force. But there was a “doesn’t fit” consideration saying that we nevertheless violate it because there is no choice, because the alternative is intolerable. What? The difference between this and that?

[Speaker N] No, the practical difference – the practical difference—

[Rabbi Michael Abraham] The practical difference is whether, if you are not persuaded by the halakhic arguments, you will still go to civil court. I am not persuaded by the halakhic arguments; they don’t—

[Speaker N] Hold water.

[Rabbi Michael Abraham] So I say yes, I will go to civil court because there is a principle of “doesn’t fit.”

[Speaker N] The practical difference is the thing itself. You don’t need to look for side effects.

[Rabbi Michael Abraham] No, but between the side that permits halakhically and the side that – again, the practical difference is for someone who does not accept the halakhic permission. The halakhic permission does not really hold water. I am not convinced by it. So in principle, according to their approach, I should not go to civil court. Right? But I say: true, but I still claim that one should go, even though I do not accept the halakhic permission.

[Speaker O] What is “doesn’t fit”?

[Rabbi Michael Abraham] I claim that it is not right to go to religious courts. Not only is it permitted to go to civil court – one must go to civil court. That is my claim. Look at what happens in Bnei Brak. A place that supposedly conducts itself according to Torah law, and where it is forbidden to go to civil courts because anyone who goes there is an informer. If you go to the police or to civil court, you are an informer. It is forbidden to go there, okay? And what happens there? So they go to religious courts. And what do you get? Total anarchy. Total anarchy. Sometimes they enforce the ruling, sometimes they don’t. They send private enforcement squads to compel you to obey the ruling. Because now who knows who is responsible for those private enforcers, whether they won’t abuse people based on their own agendas? Who checks whether the religious court is close to one of the parties? Whether it is or isn’t? There is no organized regulation of how procedure is conducted. There is nothing. Total anarchy.

It is no wonder that the really hard cases always end up in civil court. How do you explain the fact that the dispute in Ponevezh, which was resolved not so long ago – a few months ago – kept going to civil court and not to religious courts? Both sides are Haredi. It’s not as though one side is secular and refuses Torah law. Both sides are Haredi. Ask them whether it is permitted to go to court, and both will tell you it is idolatry, absolutely forbidden. And yet both went to court in order to get a ruling. What was the dispute over Ponevezh Yeshiva? Who is in charge there – this faction or that faction, the Jerusalem faction or the non-Jerusalem faction, Degel HaTorah or the Jerusalem faction, call it what you like. Fine? That dispute in Ponevezh was the beginning of everything we see today in the streets.

Why does that happen? Because you go to a religious court, and if its ruling doesn’t appeal to you, you don’t carry it out. What, do you owe it anything? It has no teeth. You cannot function that way. It is a rotten society. A society without an effective legal system, with enforcement, with the power to compel compliance, with clear regulation of how it operates – that is a rotten society. A society that cannot function. And all of this stems from being so stringent about the prohibition of “before them and not before laymen.” They are unwilling to go to civil courts. And that is what it looks like.

Look at the construction in Bnei Brak. People build on sidewalks and streets. There is no order, no building law, nothing. The law is not even a recommendation in those sectors of the state. Okay? And all of that stems from rejecting the state’s legal system – rightly, from the halakhic standpoint. From the halakhic standpoint there really is no justification for it; you are right. And this is the price of refusing to recognize the category called “doesn’t fit.” That is the price. And that is the proof of why one must go with this “doesn’t fit.”

Maybe one more example before I finish, one that goes in the same direction. Toward the end of the tenth, eleventh, and twelfth centuries, a change took place in Jewish history. Until that period, the Jewish public was concentrated mainly in the Land of Israel and in Babylonia. Over time, more in Babylonia and less in the Land of Israel, but basically divided between those two centers. Okay? And at the end of the tenth century, the eleventh century, something like that, they began to disperse. Babylonia slowly disintegrated. There is that myth of the four captives – whoever knows it – one arrived in North Africa, one in Italy, one in Germany, one in France, and in effect they opened different communities there after being taken captive and redeemed by the communities. Torah scholars. One was Rabbi Hushiel, the father of Rabbenu Hananel. He arrived in North Africa and essentially opened the Torah world there, and there were another three who arrived in Italy, France, and Germany. I don’t know how historical that story is. It doesn’t matter. It’s the myth.

Then communities began opening all over the world, and all sorts of questions began to arise: what is the authority of a community, how should a community function, okay? Various disputes arose. Do we follow the majority or not? Who says that in communal decisions we follow the majority? Where is that written? What is this, democracy? Where in the Torah is there a commandment of democracy? Where is it written? “אחרי רבים להטות” – “follow the majority” – is not relevant. “Follow the majority” applies in a religious court. In a court, when there are facts, the majority decides. Fine. But in deciding whether to open a preschool, we take a vote and the majority decides. Where does that come from?

There were major disputes about this. And the halakhic decisors addressed it too. In the end it even entered the Shulchan Arukh, those rulings and legal decisions, and therefore everyone understands that it is part of Jewish law. A halakhic issue. And I claim that this is a great mistake. It is not a halakhic issue at all. Those passages in the Shulchan Arukh should be torn out. It is not a halakhic issue. The rabbis have nothing to say about it, because when they discussed it, they discussed it just based on their own reasoning, not based on sources, not based on Jewish law. There is nothing. There is no source that says we follow the majority in community governance.

So how did they decide that we do follow the majority? Because it seemed reasonable to them. When you read the responsa, for example, again and again you can see it. They ask the decisor whether to follow the majority in communal decisions, and the decisor answers: first of all, it says “follow the majority,” so we follow the majority. And second, there is no other way. What, what will you do? If you don’t follow the majority, then you’ve given veto power to individuals. Is that more reasonable? It is obvious that we need to follow the majority. You cannot run a community if you require unanimity for every decision.

By the way, Rabbenu Tam held that unanimity is required. Because otherwise the decision lacks authority. Fine. But I have reasonings too, and so do you. So what does that have to do with Jewish law? Why does the Shulchan Arukh decide this? And if my reasoning differs from the reasoning of the Shulchan Arukh, then what?

[Speaker B] There are stronger reasonings?

[Rabbi Michael Abraham] Fine. So why is he writing me his reasoning? He is writing me a halakhic ruling, a halakhic ruling that I am supposed to follow. But what he wrote there is just reasoning. It doesn’t belong to the halakhic world at all. He could also write Einstein’s theory of relativity there if he wants. What does that have to do with anything? It is not part of Jewish law.

All these sources – “follow the majority,” and besides, we can’t function any other way – why the “besides”? Just say “follow the majority,” all is well, you brought a verse, right? What’s the problem? We follow the majority. Because everyone sensed that even though they cite “follow the majority,” obviously it is not really a source. So they said “follow the majority” – clearly that was said in a religious court, not about communal enactments. But since we cannot function otherwise, we will apply “follow the majority” here as well. So even when they bring a verse, they do not really mean it as a source. It is “doesn’t fit.” It is a “doesn’t fit” claim.

That claim says that you cannot run a community if you require every decision to be unanimous. And that is exactly Rabbenu Tam’s requirement. Rabbenu Tam’s view is that in a community it must be unanimous. You cannot run a community that way. You have a hundred people; every time one person objects, the decision cannot pass. What decision is there that a hundred Jews all agree on? None. You cannot function that way. So these things are just a collection of “doesn’t fits.” All these so-called halakhic rules of how to run a community are not part of Jewish law. Just as the courts in Syria are not part of Jewish law. It is an extra-halakhic principle that of course affects what we do. Because what we do is determined not only by Jewish law, but also by extra-halakhic principles – values, morality, social order, all sorts of things, just plain reasonable judgment. Okay? But it is not part of Jewish law. It does affect what we do, yes. Okay. So this is just another example of that principle of “doesn’t fit.”

[Speaker B] Doesn’t this risk creating halakhic anarchy, this “doesn’t fit”?

[Rabbi Michael Abraham] It does. What can you do? That’s life. If you do not do what “doesn’t fit” tells you, you necessarily create anarchy. In legal matters? Yes, because there will be no legal system, there will be nothing. So that’s a case of certainty versus doubt. Okay, good afternoon.