The Abuse of Halacha

Nathan Lopes Cardozo

vrijdag 27 december 2013

Judaism is in trouble. More and more of the unacceptable is being done and said in its name. It's causing not only infinite damage to Judaism’s great message but also a terrible desecration of God’s name. What's worse is that all of this is displayed in front of millions of gentiles watching television, browsing websites or listening to the radio. Many are repelled when they witness terrible sceneries in which Jews attack each other in the name of Judaism. Media outlets around the world portray religious Jews in most distressing ways. While it cannot be denied that anti-Semitism plays a role and tends to blow the picture out of proportion, it is an unfortunate fact that much of it is based on truth. Non-Jews are dumbfounded when they read that leading rabbis make the most shocking comments about them, by which they demonstrate gross arrogance and discrimination. Even worse, many of them read about rabbinical decisions that seem to lack all moral integrity.

Eighteen years ago, Yigal Amir assassinated Prime Minister Yitzchak Rabin in the name of Halacha (Jewish law), claiming that the Prime Minister was a rodef (1) because he brought all citizens of the State of Israel into mortal danger once he participated in the 1993 Oslo accords. Amir therefore believed that the Prime Minister deserved the death penalty according to Jewish Law. In 1994 Baruch Goldstein killed 29 Arabs in a mosque because he believed that Judaism obligated him to create havoc in order to ensure that Arabs would stop their terrorist attacks in which thousands of Jews had been killed. Several years ago, the book Torat HaMelech was published. The authors, learned rabbis, argued that it was permissible to kill non-Jews, even without proper trial, once they have become a serious potential security threat to Jews. And so on.

One wonders how it is possible that such things are expressed, or carried out, in the name of Judaism and Jewish law. Anyone who has the slightest knowledge of Judaism is fully aware that nothing within genuine Jewish law could condone, or even suggest such outlandish ideas and immoral acts.

Why does this happen?

Throughout the years, several rabbinical authorities have made a major and dangerous mistake by reducing Judaism to solely a matter of law, a kind of Pan-Halacha. They sincerely believe that Judaism consists only of rigid rules. In this way, they are paradoxically similar to Spinoza, who was of this opinion and therefore rejected Judaism, calling it obsessive, a type of behaviorism, and an extreme form of legalism (2). That Spinoza made this claim is one thing, but the fact that these learned rabbis agreed with him is more than a sorry state of affairs. It is an unforgivable blunder. Nothing is further removed from the truth than turning Judaism into a legal religious system without spirit, poetry and musical vibrations. This is proven by the nearly infinite amount of religious Jewish literature that deals with non-halachic matters.

The main reason for this terrible mistake is that these rabbis failed to study the basic moral values of Judaism as they appear in the book of Bereishit (Genesis). As is well known, with the exception of a few cases, this book does not contain laws; it is mainly narrative. To appreciate this, one needs to consider the following.

In this first biblical book, we encounter Avraham, Yitzchak and Yaakov as the foremost players. They are considered the first Jews in history. But this makes little sense. How could they have been Jews if the Torah was only given hundreds of years later to Moshe at Mount Sinai? Isn't a person a Jew only once the law defines him as such? And although a Jew is a Jew even if he does not observe the laws of the Torah, it is still the Torah that not only defines him as a Jew, but declares that to live as such is only possible if one lives by the laws of the Torah. So how could the patriarchs be full-fledged Jews when the Torah was denied to them? Would it not have been logical to have given the Torah to Avraham, Yitzchak, Yaakov, and their wives long before Moshe? Only when they would have received the Torah could they have been real Jews! So why was it withheld from them? (3)

The answer is most critical. No law, including divine, can function if it is not preceded by a narrative of the human moral condition and the introduction of basic moral and religious values. These values cannot be given; they must develop within, through life experiences. No academic instruction, not even when given by God, would be of any benefit. Such values need to develop gradually, on an existential level, and by innate values that God grants to each person at the moment he or she is born; a kind of categorical imperative in the soul of man.

No law can function unless it first recognizes that life cannot be captured within the confines of the law. Life is larger than any law can ever conquer. Law loses contact with the realities of life when it operates in a vacuum.

More than that, it becomes impersonal and therefore dangerous because it cannot deal with human emotions and the enormous moral paradoxes encountered by human beings. As such, it runs the risk of becoming inhuman and even cruel.

It is for that reason that God did not give the laws of the Torah to the patriarchs. First there was a need to learn through personal trials and tribulations. The patriarchs and matriarchs needed to see with their own eyes what would happen when mankind is not governed by law. But above all, they had to become aware of basic moral values, such as the fact that all human beings are created in the image of God, that all men are equal, that human life is holy, and that there is only one God Who is at the root of all morality. Only after man has been deeply affected by these ideas and values can law be introduced as a way to put all this into action.

It was only after the existential, moral turmoil in which Avraham, Yitzchak and Yaakov frequently found themselves, and their often problematic encounters with God, that a virtuous and religious awareness was born. This consciousness continued to work its way, with all its ups and downs, through the bondage in Egypt, the exodus, the splitting of the Reed Sea. Only at that point was there a chance that the law could be received and be beneficial when given at Sinai. And even then it was not very successful, as recorded in the many disturbing biblical stories about the Israelites failing to live up to the law in Moshe’s days and long afterwards.

But it is not just a matter of narrative, ethical values and the encounter with the divine that needs to take place before the law can be given. There is another important message: that no law, including divine, can function without constantly taking guidance from these former values. There is nearly nothing worse than a divine law operating on its own without primary innate moral values. It runs the risk of turning wild and causing great harm. It needs to be constrained.

This is the purpose of Sefer Bereishit (4). It is a biting critique on the halachic system when the latter is applied without the acknowledgement that it needs these prior moral values in order to function. The book of Bereishit, then, keeps Halacha under control. It restricts it, regulates it, and ensures that it will not wreak havoc.

Truly great poskim (halachic arbiters) cannot lay down their decisions on the basis of Jewish law alone. The Shulchan Aruch (Codex of Jewish Law) by Rabbi Yoseph Karo and the Mishneh Torah of Rambam could become dangerous if they are applied in a vacuum. What these poskim must realize is that they need to incorporate the great religious moral values for which Sefer Bereishit stands.

The foremost point of departure in any halachic decision must be that all men are created in the image of God and that all human life is holy. While different tasks, inclinations and historical events should be recognized and allow for distinctions between people, no discrimination can ever be tolerated. Halacha should surely allow for the Jews to be different from other nations, but only as long as it recognizes that other nations can make contributions that Jews cannot (5). For Jews to be the chosen people they need to recognize that this in no way can ever mean that they may look down on others. What it does mean is that they have an obligation to inspire the world, as a teacher inspires a student even while recognizing that the student may be more gifted than him or her.

It cannot be denied that throughout our long history this may have been forgotten and laws have appeared that have not always lived up to these standards. Even biblical laws seem to have violated this principle. On several occasions they demanded that Jews show no mercy for some gentile nations that dwelled near the land of Israel in biblical times (6). But a closer look makes it clear that these laws were contrary to the original divine plan and reveals some kind of divine concession to highly unfortunate circumstances. The laws in question were meant to deal with these nations’ ongoing violence, immorality and virulent anti-Semitism, which had to be dealt with so that Jews could survive and uphold moral standards for the good of all mankind (7).

Highly disturbing is the case concerning Israel’s arch-enemy, the Amalekites, the Nazis of biblical times. The divine law required the Jews to wipe this nation off the face of the earth, including women and children. Such a law runs contrary to our innate moral intuition and the very values promulgated by Sefer Bereishit. Commentators have therefore gone overboard to explain this law in different ways, since they were unable to believe that such a commandment could ever have come from God Himself. They even believed that God tested the Jews to see whether they would understand their calling and thus refuse to implement this genocide (8), similar to the way that Avraham refused to listen to God in the case of Sedom and Amora when he uttered the famous words: Shall the whole world's Judge not act justly (9)? The commentators' attempt is not apologetic but rather the outcome of their absolute conviction that there could be no other explanation. At a later stage they decided that the nation of Amalek no longer existed, so they could cancel the entire law (10).

It is remarkable that the Sages seem to have reacted similarly with several other biblical laws, such as the case of the ir hanidachat, in which the commandment is to annihilate the entire Jewish population in a city rampant with idolatry and immorality (11). Another example is the case of the ben sorer u-moreh, the rebellious son (12). In other instances, they seem to have been of the opinion that laws such as those regarding the mamzer, and agunot (13), should be severely limited to make them almost inoperative, and they often looked for loopholes to find a way out. While it remains a question why they did not completely revoke these laws, it seems clear that in all these cases it was the overriding moral principles of Sefer Bereishit that motivated them (14).

The Sages struggled, re-interpreted and sometimes even abolished these laws because they fully understood that without the moral religious values of Sefer Bereishit, halachic chaos would reign and grave injustices would be done.

It is for this reason that one of the greatest tragedies of Judaism in modern times is caused by the fact that some halachic authorities as well as people like Yigal Amir and Baruch Goldstein forgot to study the first book of the Torah. They became so dedicated to the letter of the law that they caused the degradation of Halacha and did the inconceivable.

1. A rodef is defined as someone who is attempting or planning to murder.
2. See, for example, Tractatus Theologico-Politicus III, IV and XIII.
3. Even though some midrashim (see for example: Mishna Kiddushin 7:14, Yoma 28b) claim that they did observe (some of the) commandments, it is clear that this was done on a voluntary basis.
4. Netziv's introduction to Bereishit in his Ha’amek Davar.
5. Or HaChayim's commentary on Shemot 18:21, toward the end.
See, also, Thoughts to Ponder 284.
6. Devarim 7:1-2.
7. Many rabbinical laws were instituted for similar reasons. They were mainly introduced as protective laws to make sure that Jews would not suffer at the hands of anti-Semitism. At other times, laws were introduced to counter assimilation and non-Jewish undesirable influences. These laws seem to discriminate against gentiles and indeed some halachic authorities and thinkers believe this to be the case. I believe, however, that these laws were originally meant to protest against those gentiles who had low moral standards or were committed criminals such as, in later days, the Nazis. These laws did not relate to well-mannered non-Jews. See the many observations of the great Talmudic commentator Menachem Meiri (1249-1316) in Beit HaBechirah – for example, his commentary on Sanhedrin 57a and Avodah Zarah 2a. Surely these laws should be abolished because they run contrary to the principle of divine equality as taught by the Torah. Perhaps any law that gives the impression that non-Jews are discriminated against, such as the law that non-Jews are allowed to do some work for Jews on Shabbat (the ‘Shabbos goy’), should be abolished, unless Jews will do certain work for gentiles that can’t be done by them on certain occasions. The fact that the State of Israel is still dependent on the ‘Shabbos goy’ is highly problematic and inconsistent with the principle of national independence. Daring and innovative rabbinical decisions are far overdue. Violating Shabbat to save non-Jews is an absolute obligation, notwithstanding the fact that some authorities have questioned this. There is no doubt that Avraham, Yitzchak and Yaakov would have done so. See Netziv's observations in his introduction to Bereishit, Ha’amek Davar. (See my observation that Judaism needs to undergo a purifying process. Thoughts to Ponder 368).
8. Midrash Tanchuma Parshat Tzav, 3. In the case of King Shaul, who was commanded to kill the Amalekites (Shmuel I, chapter 15), he exclaimed: "If the adults have sinned, what is the sin of the children?" According to one problematic source, as found in the Talmud (Yoma 22b), God responded that he should not be overly righteous. But as seen in the above Midrash Tanchuma, God ‘changed His mind’ after Moshe showed him the injustice of the commandment [Devarim 7:1-2] to wipe out the women and children of the ‘seven nations more numerous and powerful’ than they. The same no doubt applies in the case of King Shaul.
9. Bereishit 18:25.
10. Mishnah Yadayim 4:4; Brachot 28a.
There is even a tradition that the fulfillment of this commandment is deferred until the messianic age. See Radbaz on Rambam's Mishneh Torah, Hilchot Melachim 5:5.
11. Devarim 13: 13-16; Sanhedrin 71a.
12. Devarim 21:18-21; Sanhedrin 71a.
13. Women who did not receive a get (bill of divorce) and whose husbands disappeared and it is unknown whether they are alive, or not. See, for example, Responsa Yabia Omer, Part 6, Even Ha'ezer, 3. (Today's agunot are, for the most part, women whose husbands refuse to give them a get, for any number of reasons).
14. For a discussion: Eliezer Berkovits, HaHalachah: Kochah VeTafkidah; short English edition: Not in Heaven: The Nature and Function of Halakha (New York: Ktav Pub. 1983).

Reageren op dit item is niet meer mogelijk. was great to read and welcome you. You write in my spirit.....well I m also a columnist writing every week a column and twice a month in NIW. shalom...salomon

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