Torah Reaches Beyond the Boundaries of Strict Halacha

Nathan Lopes Cardozo

vrijdag 4 januari 2019

In the Crescas Newsletter of 21 December, we published the first half of an interview with Rabbi Cardozo. At the end of his observations, Rabbi Cardozo discussed the codification and dogmatization of Jewish Law and religious beliefs as they took place in the diaspora and showed that these developments did not do justice to – and in fact opposed authentic Judaism. Here is the continuation of his arguments.

Rabbi Dr. Nathan Lopes Cardozo: This, I think, has created tremendous problems, because what we’re taking the halakha which developed in the diaspora for the last 2000 years, and we’re bringing it to the State of Israel, and applying it as if we are still living in the diaspora – when we are not. And therefore there are constantly problems in Israel about halakha, because the customary halakha speaks as if nothing has happened in Jewish history since 1948. But the truth is that the whole situation has radically changed. So the Shulkhan Arukh is in many ways outdated. And I’m sure that if Maimonides, or Rabbi Yosef Karo, author of the Shulkhan Arukh, lived today, they would say, “We never wrote our codifications for a time when the State of Israel would be established, why do you still apply our rulings which were meant for the time we lived in the diaspora?”

Interviewer: But the Mishneh Torah of Maimonides talks about the laws of the Temple and other areas of Jewish life in the land in the future!

NLC: Yes, but that is about the time after the coming of the Mashiach. But Maimonides never wrote about a secular Jewish state before his coming. That possibility was never contemplated. (The late chief rabbi of Israel) Rabbi Yitzhak Ha-Levi Herzog writes in one of his letters, that the halakha is not ready to take on the State of Israel. Because we never developed the halakha in the diaspora to deal with a situation where we’re running our own (secular) country. We were always under the administration of the non-Jewish world.

The Shulkhan Arukh starts by saying that in the morning we have to get up, and we must imagine God before us and go to synagogue to pray. But let’s ask an important question: What are the conditions where you’re able to get up in the morning and go to synagogue to pray? It requires that the Turkish government, under which the Shulkhan Arukh was written in Safed, under Ottoman rule, will have created a legal system that enables you – as a Jew – to get out of bed in the morning and walk to synagogue without being attacked. So you have already taken on all sorts of guarantees from a secular administration to allow you to adhere to your religious obligations. But that was the Ottoman government. The situation in Israel today is again drastically different. We have an independent secular democratic state which, if it wants to survive, needs to be deeply Jewish and influenced by the great foundations of Halakha.

So what is needed is to liberate the Halakha as it developed in the diaspora, where it had to deal with anti-Semitism and the need of the Jewish people to survive the Diaspora. And as I mentioned before, this often meant that it became artificial, defensive, and not true to its authentic nature. To allow it to become itself again, one needs to return to its original disposition, which by definition is organic and impossible to irrevocably codify. Only a few poskim fully understood this. I mention two: Rabbi Chaim Hirschensohn (1857-1935) in his classic work: Malki BaKodesh and Rabbi Shmuel Moshe Glasner, Chief Rabbi of Klausenburg (1856-1924) in his powerful introduction to the Talmudic Tractate Chulin, called Dor Revi’i. But these were the exceptions to the rule. Till this day most poskim will go back to the Shulkhan Arukh and still see it, with some exceptions, as the final word in Halakha.

Lately, I have been attacked by some rabbis for making these claims. This demonstrates their ignorance. If they would survey works like the ones I just mentioned, (by the way, both of these poskim saw themselves as ultra-orthodox), they would realize that the story is very different from what they think. (The same is true when I bring some Chassidic interpretations of narratives such as the sacrifice of Yitzchak, which are out of the box, but no doubt fully acceptable.) While they have the right to disagree, they cannot use the cheap argument that I am undermining the Jewish Tradition. In fact, it is very clear that I only strengthen orthodox Judaism with these observations, because they show the enormous flexibility and power of this tradition. For all of my observations, I have rabbinical sources which, it seems, they have never seen. What these rabbis have to understand is what Eric Hoffer once said: “Far more crucial than what we know or do not know is what we do not want to know.” It is much more comfortable not to have to deal with unusual ideas. It does not disturb one’s comfort-zone. But it is a deviation of the truth and most dangerous. I really pity these rabbis.

The Role of the Posek

Interviewer: Should a modern posek (halakhic scholar) relate to halakha as precedence law that must be consulted before ruling, or can they approach the halakhic inquiry directly from their knowledge of the Talmud? How much of the millennia of Shut (halakhik Q&A) should a modern posek take into consideration?

NLC: There’s no straight answer to this. Rabbi Moshe Feinstein z.l. would sometimes make rulings directly from the Talmud. The Rogatchover Gaon z.l. (Rabbi Joseph Rosen, 1858-1936) would often rule from the Talmud. Rav Ovadia Yosef z.l., although he tried very hard to get the Shulkhan Arukh to become the absolute voice within the Sephardi world, constantly contradicted himself, in the sense that on one side he wanted to go by the Shulkhan Arukh, and at the same time, he constantly put it aside and went directly to the Talmudic source.

My feeling is that some poskim today are overwhelmed by their knowledge, and they drown in it. And therefore they can’t think creatively any more. If you have too much knowledge, then you can’t think on your own anymore, because your mind is taken up by this encyclopedic amount of knowledge; you can’t step out of the box. This is not only true of halakha, it is true in many other departments of human knowledge as well. We know so much, and therefore we get completely overwhelmed and we no longer have space left in our brains to come up with something new. This has been happening with poskim for quite a while now.

Therefore the biggest religious Jewish scholars are not necessarily the greatest poskim. But if you go one step below – and in Israel you have quite a few of them – you will find people who know halakha very well, but they are not stagnated by this staggering amount of knowledge. So they are probably much better equipped to respond to the needs of the day.

To only mention a few: Rav Daniel Sperber, Rav Yuval Cherlow, Rav Yoel Bin Nun, Rav Ariel Holland, and Rabbi David Bigman. In Israel which is the natural ground in which halakha can develop organically, you have people who think on their own, have a lot of knowledge, and they can examine issues with a critical eye.

Some of these rabbis have come up with some unprecedented rulings, too many to mention here. Sure, one can also go overboard. It all needs careful consideration, which requires much knowledge, creativity, a proper understanding of what real halakha is all about and obviously a lot of Yirat Shamayim, the awe of Heaven.

Electricity and Shabbat

Interviewer: When Edison invented the electric bulb, discussion began among US Jews whether or not electricity is fire. It determined the appearance and behavior of Shabbat for the next century. Today, when we have moved away even from the light-bulbs with heated coils, and with solid state devices, even issues of the labor of construction on Shabbat are no longer present, and with major poskim already saying that devices like the telephone are only a problem because of the danger of a slippery slope – is it time to do away with our fear of the Shabbat slippery slope?

NLC: Think about another challenge: the “shabbat car”. I have not the slightest doubt that in the nearby future, we will develop a car which is completely automatic and which could bring you to the synagogue without your ever having to transgress Shabbat. If you would ask me whether I am in favor of allowing such cars to drive, or turning on lights on Shabbat? My answer is No, but not for halakhic reasons – because there are really no halakhic reasons to forbid it. My reason is this: the fact that I’m not allowed to use electricity creates a certain atmosphere, which I need and I think my fellow Jews need, to observe Shabbat in the right spirit. Not because it is halakhically forbidden – there are enough reasons to rule that using electricity does not contradict the prohibitions of Shabbat.

The same is true of the “shabbat car”. Not all halakhic matters are pure halakha. They have to do with ideology. How are we creating the spirit of Shabbat? What is required there? Therefore, we may say, listen, let’s not use electricity on Shabbat. This is what Shabbat has stood for, for thousands of years. In the olden days there were candles, which were prohibited to be lit. Over the years, this was applied to electricity as well. So unless there are very specific circumstances where there is really no solution but to use electricity, I would say, don’t turn on electric lights. And do not use this kind of car unless there is no other way to come to the synagogue. Nobody is paying a big price for this. There’s no moral issue here. Let’s keep the system as it is.

This is the reason why I claim that the highest standards of Torah reaches beyond the boundaries of strict Halakha. If we would use halakhic criteria alone, we would destroy Judaism, and with it, the Halakha itself.

Take for example the case of the “Shabbat goy”, a non-Jew doing work for us on Shabbat. I think that the use of a Shabbat goy in Israel is highly unnatural and unhealthy. After all, it still means that we are depending on the non-Jews, even when we are living in an independent Jewish state. In other words: We still need to have Arabs sitting in the electric cooperation on Shabbat to make sure that we Jews have light on Shabbat. I put a very big question mark behind this. I don’t see it as a healthy situation. Perhaps we should find the technological means for Jews to do this work themselves without transgressing Shabbat. There are surely ways by which we can do this, and we don’t need non-Jews to do it for us.

Which brings me to the following: As long as they are not terrorists but law abiding citizens, Arabs are surely welcome in our State. But what we have to realize is that they are not our servants.

By using them as the Shabbat goy on Shabbat, we are giving the impression that the non-Jew is seen as a second class citizen – what we can’t do, he has to do. In other words, we are the so-called Chosen People, and we need to be served by the non-Jews. Now I know that this is not the intention of the Jewish tradition, and I personally know non-Jews who are very proud to be a Shabbat goy. But it can’t be denied that this law created a negative attitude towards non-Jews in the orthodox Jewish community – especially in Israel. It is very problematic and highly un-Jewish. With tongue in cheek, I would love to see a “Sunday Jew”, where we Jews can do some work for the non-Jews on their day of rest. Then at least we would be equals without losing our specific identities. Equal but different – the “dignity of difference” to use an expression by Lord Rabbi Jonathan Sacks!

Interviewer: You also have thousands of religious kids who are texting on Shabbat. Judging by the articles I’ve read on this issue I get the impression that it’s the norm rather than the exception in certain religious youth circles.

NLC: It’s a great tragedy, because it’s a sign that these young people are bored on Shabbat, that they don’t have something which replaces their smartphone, and we are remiss in offering educational ways by which to keep young people engaged so they wouldn’t even touch those devices on Shabbat. When you take something away from somebody, you have to replace it with something even better. And if you don’t do that, then you get these situations, which in the Modern Orthodox world has become a real problem.

Especially in the Lithuanian Jewish world, there’s a lot of spirituality and inspiration missing – the excitement about being a Jew, about wanting to observe the commandments. Real authentic Hasidism had a much better handle on this. Whether it still has, I do not know. The original Hasidic thinkers of two hundred years ago, like Rabbi Tzadok Hacohen or the Mey Hashiloach (Rabbi Mordechai Yosef Leiner of Izbica) – were able to give the Jewish Tradition a new spirit. They knew exactly what they were writing about, even being prepared to take risks and to be highly controversial. They stated what they believed, and because of that, the Hasidic world has given a spirituality to Judaism which the Lithuanian world did not offer us and still does not.

Kashrut and Animal Suffering

Interviewer: Should the suffering of meat animals influence their kashrut standard?

NLC: I have doubts about the kashrut of kosher slaughtering of animals in America and here in Israel. The meat industry today has overwhelmed us. The number of cows and chickens which have to be slaughtered every day is so enormous that I can’t see how this will ever work halakhically. The method of shechita at the time was meant for a small town, where once in a while, people would eat a piece of meat. You can’t compare it with the reality of the meat industry today, where tens of thousands of cows and chickens are killed every day.

I believe that the prohibition of tza’ar ba’ale chaim, the needless suffering by animals, makes our whole system highly problematic and probably non-kosher. Again this is not a pure halachic issue; it is a Jewish religious-ideological issue. Because if indeed there’s a lot of needless suffering of animals taking place, and I’ve seen this personally – the way they deal with those animals is beyond all description – then the Rabbinate should say: No way are we going to permit this!

Now this is a very complicated story, because since we are a meat-eating society, we have to produce an amount of meat that the shechita laws can’t live up to. It has to go too fast. Too many animals get hurt before they undergo shechita. I don’t know how many shochtim there are in Israel – there must be lots of them – but how is it possible that the shechita will nearly always go well? You can use statistical rules of thumb, you can cite a permission here and an allowance there, but how far does that go, especially when we are bound by laws about how to treat animals mercifully? I don’t believe that any piece of meat today is Kasher l’mehadrin (perfectly kosher).

We should start educating people to no longer eat meat. Or to replace it with lab-grown meat. This is a process – an educational process. The trouble is that if we slowly start to diminish the amount of meat which we require, we’ll have an economic problem on our hands. What’s going to happen to all of the people who are making their living from this industry? And there are lots of them: shochtim, butchers, supervisors and lots of other people. You’ll have to find a financial solution for these people; you can’t just say, we should stop eating meat. We have to find a slow way by which we will get people off of eating meat. Finding solutions to the financial problems of the people who will be left without their livelihoods is going to take fifty, sixty years if not longer. The trouble is that I’ve never seen the rabbinate or the rabbinic courts really dealing with these issues.

Dismantle the Chief Rabbinate

Interviewer: Do we really need the Chief Rabbinate in Israel?

NLC: We need to end the Institution of the Chief rabbinate in Israel. Although I strongly disagree with some halakhic rulings or proclamations of the current Chief rabbis, I am sure they mean well. But they are the victims of a system that isn’t working. The truth of the matter is that the Rabbinate in Israel is the Knesset, and not the Chief rabbis. It is a political institution. Some people in the Knesset are telling the Rabbinate what they should say and do. There is corruption taking place. The institution is no longer functioning. It was meant for the general, often secular Israeli population. But it has been taken over by the Haredim, the ultra-orthodox. This was not the intent when the Israeli Chief Rabbinate was first instituted, because the Haredim have their own Rabbinate which is absolutely fine.

The Chief Rabbinate lacks halakhic poskim of great enough stature to deal with some very urgent issues: conversions, agunot, feminism, kosher slaughtering, democracy, running a modern state. All of which require these people to be great authorities in halakha and be creative thinkers, and the chief rabbis of today are not up to this. They don’t seem to possess the prerequisite knowledge. Neither do I, but I never made myself a candidate to become the Chief Rabbi.

Today’s Chief rabbis are not like the famous Rav Avraham Yitschak Kook, Rav Isaac Yitschak Herzog, or Rav Shlomo Goren. Most important is to realize that in the Sefardi community there were Chief Rabbis such Rav Benzion Uziel, Rav David Halevy of Tel Aviv, and the Chief Rabbi of Haifa, Rav Joseph Mashash. All of them had a whole different approach to Halakha, and were prepared to think out of the halakhic box. They came up with the most far-reaching decisions and solutions which the Ashkenazi community never contemplated, and in fact rejected (a huge mistake).

Interviewer: So you would replace the Chief Rabbinate?

NLC: Sure. The last Knesset had already decided that every local rabbinate should be autonomous, and would have its own conversion system in their own cities, no longer subject to the control of the chief rabbinate. Orthodox rabbis who have the authority should decide in their own cities who are the people eligible to become converts. This should not be left up to the chief rabbinate, because the chief rabbinate doesn’t know these people. So how can they decide without actually knowing the people who are eligible for conversion?

I am of the opinion, as is the well-known Israeli Rabbi Yoel Bin Nun, that we should try to convert the nearly four hundred thousand Russians of Jewish decent in Israel in a mass conversion, even though a priori it’s not the best manner of conversion according to halakha. The reason why I am in favor of this is this: if we do not convert these people, they’ll marry our children, and in no time we’ll have a million halakhic non-Jews here, to the point where it could undermine the security of the State of Israel. It can create enormous social problems. So, here you have to consider not just the halakhic religious conversion issue, but the security of the state, too. A halakhic state issue. By the way, the first mass conversion took place when the Israelites left Egypt, or at mount Sinai when the Torah was given! No doubt, not everyone was willing to accept all the commandments. But they all became Jewish! Something to think about!

The State of Israel is no longer a diaspora reality where you decide on halakha for individuals who are Torah observant. We are dealing here with the State of Israel, which requires that we remain a unified political entity, and that we can marry each other and secure the State of Israel.

But it seems that the Chief Rabbinate hasn’t even considered this point of view. That is a serious dereliction of duty.

Rabbi Cardozo’s new book, Jewish Law as Rebellion: A Plea For Religious Authenticity and Halachic Courage, Urim Publications, Jerusalem/New York, December 2017, is now available at Amazon and all Judaica bookshops in Israel and abroad.

Dear Friends,

Every week I receive hundreds of emails, as well as a host of important observations on my essays, via our website, Facebook, newspaper blogs, and other media outlets. It is therefore completely impossible for me to respond – for which I apologize – but please be assured that I read every comment, which I deeply appreciate and from which I learn so much. Only in exceptional cases will I respond in a subsequent essay. My office staff will try to be more prompt in posting these remarks on our website.

Thank you very much for taking the time to share your comments with me, as well as with your fellow readers. I hope you will continue to do so.

Nathan Lopes Cardozo

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