Question

In the days leading up to the war, this charged topic again returned to the headlines and public debate. I formulated a number of insights that I would like to test in light of your general approach to Jewish law, morality, and modern society. Precisely on the basis of your own words—in books, posts, and debates—and using the halakhic-conceptual tools you propose, I want to raise a practical question that may surprise some readers, but which in my view follows from a straightforward and faithful understanding of Jewish law in its deeper sense.
I would like to formulate the question against the background of three planes: halakhic, moral, and legal—and briefly:
If we want to analyze and isolate the seemingly problematic features, from what I can gather from the Rabbi’s remarks (and not necessarily from anything the Rabbi explicitly said about this topic itself, as will become clear below), then we have to discuss three supposedly problematic aspects. I stress “supposedly,” because as will become clear later, once the minefields are dealt with and dismantled, the conclusion will of course turn out to be, as stated, surprising.
On the halakhic plane: There is the well-known Talmudic passage familiar to every yeshiva student, Kiddushin 40a: “Rabbi Ilai the Elder said: If a person sees that his inclination is overpowering him, let him go to a place where he is not known, wrap himself in black, and do what his heart desires, but let him not profane the name of Heaven in public.” The Rabbi has already elaborated in many places about “first-order” halakhic ruling—for example in the recent article “On the Status of the Secular Person in Our Time”—that we do not need a survey of the existing approaches and disputes about them. In the Rabbi’s own words, “conceptual analysis and common sense take us directly to the promised land.” I want to sharpen this even more: I do not even need the major innovations the Rabbi developed at length in the third book of the trilogy, Walking Among the Standing, regarding a systematic theory of Orthodox changes that create dynamic Jewish law through the toolbox found within it itself—examining the status of Jewish law within Jewish faith, the different kinds of authority, the value of autonomy and its relation to truth, the various modes of halakhic decision-making, especially in unfamiliar situations, the question of halakhic authority, the place of the decisor’s policy in the decision-making process, the relation between Jewish law and morality, and commitment to external values and modernity—but, as stated above, only simple common sense). And let us return to the Talmudic passage above. Contrary perhaps to the mistaken understanding we got used to in the yeshivot, as though there is some between-the-lines statement here of a “quantitative prohibition”—that the act is really forbidden, only if you are going to sin anyway it is preferable to minimize the prohibitions—in my opinion the statement here is exactly the opposite: a halakhic “qualitative permission” {though of course not an absolute one, as is often the case}, on precisely the same model as the permission regarding the beautiful captive woman, about which the Torah “spoke only in response to the evil inclination.” Here we are not dealing with an ordinary evil inclination that we are required to overcome and not violate the prohibition, but with that very “evil inclination” defined in Jewish law such that one attacked by it is considered under duress. (Clarification: this need not even be an urge defined in Israeli law as an “uncontrollable impulse”—even less than that—just as Jewish law recognizes that the status of a woman who seduces a man is that he is regarded as “coerced,” and obviously not the other way around.) And in the language of the Talmud: “if a person sees that his inclination is overpowering him”—the writer says: this clearly implies that it is not just the ordinary inclination that we are usually expected to fight and defeat, but a special overpowering, at the very highest level, ten on the Richter scale, equivalent to the angel who pushed Judah to do what he did with Tamar, about which we do not find anywhere in the words of the Sages that he was punished, aside from a poetic allusion in the Ashkenazi penitential prayers of Elul. And the Talmud says in active language: “let him go to a place where he is not known, wrap himself in black, and do what his heart desires,” only with the qualifying condition that he should “not profane the name of Heaven in public”—that is, let him do it, but at least make sure it does not become known. And it is clear and obvious, and hardly needs saying, that if Torah-level prohibitions of actual intercourse fall away, then all the more so—many times over—the prohibition of “do not stray after,” which is lighter than the act itself, and not to mention rabbinic prohibitions, for “they decreed it and they can release it.”
Second problem, moral: This hurdle is much easier, since we are dealing with the consent of both parties and with payment that in the aggregate is equal to, or even more than, that of any senior programmer in the Ministry of Defense. Everything the Rabbi argued in the well-known debate with Yaron Yadan regarding the episode of the beautiful captive woman—that there is still a moral problem here—aside from that being a major novelty in itself and the Rabbi’s opinion being a lone opinion on this issue, “and even the guarantor needs a guarantor.” Here, even according to the Rabbi’s own view, it would be permitted, since all of the Rabbi’s argument there for prohibition was because the case involved a soldier coming to rape her against her will, and even so the Torah permitted it. That indeed could perhaps be grounds for a moral prohibition. But here, as stated, that is entirely irrelevant. So what do we have here? There is no issue of duties between man and God, and no issue of duties between man and his fellow—so what residual trace of prohibition remains? Menstruation impurity! And what we heard in the yeshivot about prohibitions in the style of “a person against himself”—those are invented prohibitions from the moralistic school of the supervisors of ethics, and it is unnecessary even to give them a gram of serious attention. (And I do not accept all the claims of the self-righteous and sanctimonious types, under the influence of progressive movements like MeToo and the like, that she does not really want it, only she is in an inferior position, etc., etc. There is no such concept in the Torah that we would claim someone does not really mean what they say, because there would be no end to that. And even if it were so, we hold that matters in the heart are not legally binding, and here there are not even matters in the heart. There are many women in the industry who earn and make a good living, who themselves are fighting to make it legal and turn it into another prestigious profession, and who argue for its normality as practiced in Holland and other enlightened European countries, and nobody is authorized to decide for them. And that is even without having to invoke the well-known topic of “he was pressured and sold,” discussed by the halakhic decisors and ruled leniently. In any case, the burden of proof to try to find some fictitious prohibition here lies on those who are shouting themselves hoarse about it, quite simply.)
Third problem, legal: The easiest of all. A. As far as I know, it is still stuck in committees and was stopped by Simcha Rothman. B. Even if it passes into law, this is a matter of risk versus chance left to each person’s own decision, as shown by the high rates of consumption across every type and shade of the social spectrum. And here we still remain in the Haredi world “on the first track,” where nobody really fears that when he comes to the next world he will be asked about violating a secular law, plain and simple. But I would like to suggest something new, and here is really my question to the Rabbi: since the Rabbi is always accustomed to discussing things from the side of the “categorical imperative,” in my opinion that too is absent here, because the constant concern is that if everyone behaved this way society would fall apart. But here that is precisely the heart of the claim: if both parties consent, there is no collapse and nothing of the sort. We would become like the Netherlands and other countries on the list of enlightened societies. It is up to the choice of the people involved, and no society has fallen apart because of this ancient profession, when every man and woman is master over his or her own self, and no fundamentalist element has any right whatsoever to impose its emotional problems on me.