Libertarian Implications of Contemporary Realia
As many of you know, several Orthodox Jewish writers have come under fire for speaking (or writing) their minds within the last year. Our good friend, Rabbi Jonathan Sacks received a lot of flack for some of his original ideas in his recent book, The Dignity of Difference. For better or worse, Rabbi Sacks relented to the criticism, making changes in the second edition that would avoid, according to him, his ideas being misunderstood. Also of note was Rabbi Nosson Kamentsky?s book, The Making of a Gadol, which received a ban from leading rabbis here in Jerusalem and elsewhere. A very honest portrayal of Lithuanian rabbinic society, it has become somewhat of a bootleg bestseller in many circles once Rabbi Kamenetsky felt forced to take it off the market. And the list goes on. I imagine many of you have felt a gut revulsion to this type of censorship. While similarly inclined, I think the subject bears more objective treatment. As thinking Jews, we certainly cannot afford to take a liberal position for its own sake. Rather, we must examine the issue to see whether our initial gut reaction is correct or not.
Part I
Before I explain my thesis, I feel it in order to start with a kvetch. Listen, if you can?t kvetch in a series called ?Crisis in Judaism?, when can you kvetch? So, here goes: One of the major problems today is that people often say things they don?t really believe and believe things that they have not truly thought out. It may seem obvious, but it would greatly help Judaism if people thought more about what they say and examined more what they believe.
I would like people to realize that they do not believe two things that they may often say, or at least think:
1) I would like people to realize that they don?t believe that censorship is always a bad thing; and
2) I would like people to realize that they don?t believe that halacha does not change.
I will start with the former, namely that censorship can be good. There are very few proponents of complete freedom of information, and for good reason. To take the most obvious illustration, I do not know of a single government that does not impose military censorship in times of war. Were a government to divulge its troop locations and distributions, not to mention its plans and strategy, it would certainly be putting many soldiers? lives in danger and possibly risking the entire outcome of the war. Lack of such censorship would be an inexcusable misuse of leadership.
In the previous example, the major reason information is being suppressed is so that it will not fall into the hands of a nation?s adversary, who will use it against that nation. However, a more far-reaching and, perhaps, more common rationale for censorship is to protect people within one?s own nation or community from information that will be directly detrimental to them. Going back to the war scenario, US policy during World War II was that movies shown in the US could not present a gory or otherwise discouraging portrayal of the war, as that would be detrimental to morale. Here, one is controlling information that will impact negatively upon one?s own population. So too, in halacha, one may not inform a sick person of a relative?s death, lest it aggravate that person?s mental and physical condition. (Yoreh Deah 337 )
I think that most of us will agree that censorship in the examples mentioned is proper and desirable. I will not address who should be making the decisions of what to censor, nor will I discuss what constitutes legitimate criteria in determining such censorship. Obviously, these are both very important issues, but they are not the focus here. That being said, it should now be clear that only an extremist will posit that censorship is never in order. Such extreme pursuit of individual rights is known as libertarianism.
As for the notion that halacha does not change ? in a polemical effort to create clear lines between Orthodoxy and other movements ? we have created an intellectual Frankenstein. Anyone with any serious background in halacha will know that common practice of Judaism today is very different from what it was three thousand years ago and, to a lesser extent, even three hundred years ago. While Orthodoxy does maintain that we are extremely limited in new legislation since the close of the Talmud and even before, this does not make halacha static, any more than any other living legal code can be static. As with any code, new situations arise. Also as with any code, it must deal with a whole variety of technological, social and other historical changes that are the lot of mankind. In order words, while we can not add even rabbinic laws, we will continue to adapt and interpret the laws as new situations arise.
For those of you familiar with the American legal system, although Judaism may no longer have a legislative branch, it still has something that functions like a judicial branch. As you know, the job of the courts in the US is not only to adjudicate cases, but to apply and interpret laws as well.
To illustrate the absolute need for change in law, how many people in the audience are old enough to remember right and left turn hand signals? Going back in automotive history before the perfection of signal lights on the back of one?s car, one had to stick one?s hand out of the window to indicate if one was making a right or left hand turn. Once the realia had changed and such lights were perfected, what sense would it make to ask drivers to continue doing so? The technology had made this particular law obsolete. In this case we have referred to the signal lights on cars as the pertinent realia.
That halacha has to adapt to changing realia should be quite obvious. Still, the fact that it should be quite obvious, does not obviate the need to illustrate the point.
I will choose only a few examples. There are, however, countless instances of changes in halacha due to changes in realia. In fact, the word ?haaidna?, which means ?nowadays?, indicating a historical change in the halacha, is something that all students of Talmud and halacha encounter on a regular basis.
In order to explain the first example, I want to know how many people have fulfilled the Torah commandment of writing or purchasing your own Sefer Torah.
The truth is that, whether you know it or not, you probably have fulfilled this mitzvah. Latter authorities give their stamp of approval to the position brought down by the Tur and Shulchan Arukh in the name of the Rosh (Y.D. 270) and by others in the name of the Geonim. This position is that the intended purpose of writing or commissioning someone to write a Sefer Torah was in order to facilitate individual Torah study, to allow one to study from it. Acquisition of a Sefer Torah was just a means to an end, and thus only relevant as long as it accomplished that end. Once people started studying exclusively from other books, such as chumashim, gemaras and the like, the means metamorphosed into writing or purchasing such books. In other words, the mitzvah took on a different form. I have chosen this particular example because of its rather extreme reformulation of a Torah commandment. Yet, while this position expectedly caused some commotion (and one should see the Maharal in this respect), it is a position that Klal Yisrael has accepted as normative and finds a dominant role in the Achronim.
To give a more recent and more famous example, changing realia is also at the bottom of Rabbi Moshe Feinstein?s famous teshuvot (Y.D. I, 46-49) permitting the use of milk processed by non-Jews. In these teshuvot, he understands that the prohibition is no longer relevant, in that governmental laws and inspection prevent the admixture of non-kosher milk into the milk supply and thus obviates the need for concern that we could be fooled by non-Jews into procuring non-kosher milk. Granted, Rabbi Moshe distinguishes between certain laws that can be obviated and others that cannot, but such distinctions are not directly relevant to the matter at hand.
The foregoing examples are primarily connected to changes in physical realia. Perhaps even more interesting is the impact of changing social realia on halacha. An interesting example of such a halacha is the dispensation given by the Mishna for a a new chatan not to say Kriat Shema. The logic is that since he is preoccupied with other matters, he will not be able to suitably concentrate on saying the Kriat Shema. While this is a clear cut halacha, Tosefot in the end of the second chapter of Berachot (along with Rabbi Meir of Rothenburg) remove this dispensation, due to a historical deterioration in people?s level of concentration. If we no can longer expect anyone to concentrate, than there is no meaningful difference between a chatan and anyone else. This position is adopted as normative halacha by the Shulchan Arukh, who first brings down the pristine halacha of the Mishna and then continues with the words of R. Meir of Rothenburg: ?this was only the case earlier, but now it doesn?t apply.? Recognizing the fact that the dispensation not to say Kriat Shema is based on a historical assumption that no longer existed, various Rishonim followed by the Shulchan Arukh decided that this exemption is no longer applicable.
More recently, tucked away at the end of Rabbi Shlomo Zalman Auerbach?s Minchat Shlomo, Volume I (91:23), is an interesting little teshuva explaining why it might be permissible today for men to walk behind women. He is referring to a discussion in Even haEzer 21:1, where the Shulchan Arukh explains such a prohibition in the context of a man taking various precautions so as not to stare at a woman. In the teshuva, Rabbi Shlomo Zalman suggests that the prohibition is rooted in a society where women were not commonly seen in the street and where a man would be embarrassed to stare at a woman if she were facing him. Rabbi Shlomo Zalman argues that neither of these conditions are true today. There are, he says, at least as many women in the public domain as men and passing one woman up, so as not to be behind her, just puts us behind another woman walking a few feet ahead. Furthermore, men who stare at women today would do it even if the women were facing them. As such, he allows a man to walk behind a woman for the sake of a mitzvah or, in typical Rabbi Shlomo Zalman fashion, in situations where it is the polite thing to do ? really, take a look.
[Part 1 of 4]
As many of you know, several Orthodox Jewish writers have come under fire for speaking (or writing) their minds within the last year. Our good friend, Rabbi Jonathan Sacks received a lot of flack for some of his original ideas in his recent book, The Dignity of Difference. For better or worse, Rabbi Sacks relented to the criticism, making changes in the second edition that would avoid, according to him, his ideas being misunderstood. Also of note was Rabbi Nosson Kamentsky?s book, The Making of a Gadol, which received a ban from leading rabbis here in Jerusalem and elsewhere. A very honest portrayal of Lithuanian rabbinic society, it has become somewhat of a bootleg bestseller in many circles once Rabbi Kamenetsky felt forced to take it off the market. And the list goes on. I imagine many of you have felt a gut revulsion to this type of censorship. While similarly inclined, I think the subject bears more objective treatment. As thinking Jews, we certainly cannot afford to take a liberal position for its own sake. Rather, we must examine the issue to see whether our initial gut reaction is correct or not.
Part I
Before I explain my thesis, I feel it in order to start with a kvetch. Listen, if you can?t kvetch in a series called ?Crisis in Judaism?, when can you kvetch? So, here goes: One of the major problems today is that people often say things they don?t really believe and believe things that they have not truly thought out. It may seem obvious, but it would greatly help Judaism if people thought more about what they say and examined more what they believe.
I would like people to realize that they do not believe two things that they may often say, or at least think:
1) I would like people to realize that they don?t believe that censorship is always a bad thing; and
2) I would like people to realize that they don?t believe that halacha does not change.
I will start with the former, namely that censorship can be good. There are very few proponents of complete freedom of information, and for good reason. To take the most obvious illustration, I do not know of a single government that does not impose military censorship in times of war. Were a government to divulge its troop locations and distributions, not to mention its plans and strategy, it would certainly be putting many soldiers? lives in danger and possibly risking the entire outcome of the war. Lack of such censorship would be an inexcusable misuse of leadership.
In the previous example, the major reason information is being suppressed is so that it will not fall into the hands of a nation?s adversary, who will use it against that nation. However, a more far-reaching and, perhaps, more common rationale for censorship is to protect people within one?s own nation or community from information that will be directly detrimental to them. Going back to the war scenario, US policy during World War II was that movies shown in the US could not present a gory or otherwise discouraging portrayal of the war, as that would be detrimental to morale. Here, one is controlling information that will impact negatively upon one?s own population. So too, in halacha, one may not inform a sick person of a relative?s death, lest it aggravate that person?s mental and physical condition. (Yoreh Deah 337 )
I think that most of us will agree that censorship in the examples mentioned is proper and desirable. I will not address who should be making the decisions of what to censor, nor will I discuss what constitutes legitimate criteria in determining such censorship. Obviously, these are both very important issues, but they are not the focus here. That being said, it should now be clear that only an extremist will posit that censorship is never in order. Such extreme pursuit of individual rights is known as libertarianism.
As for the notion that halacha does not change ? in a polemical effort to create clear lines between Orthodoxy and other movements ? we have created an intellectual Frankenstein. Anyone with any serious background in halacha will know that common practice of Judaism today is very different from what it was three thousand years ago and, to a lesser extent, even three hundred years ago. While Orthodoxy does maintain that we are extremely limited in new legislation since the close of the Talmud and even before, this does not make halacha static, any more than any other living legal code can be static. As with any code, new situations arise. Also as with any code, it must deal with a whole variety of technological, social and other historical changes that are the lot of mankind. In order words, while we can not add even rabbinic laws, we will continue to adapt and interpret the laws as new situations arise.
For those of you familiar with the American legal system, although Judaism may no longer have a legislative branch, it still has something that functions like a judicial branch. As you know, the job of the courts in the US is not only to adjudicate cases, but to apply and interpret laws as well.
To illustrate the absolute need for change in law, how many people in the audience are old enough to remember right and left turn hand signals? Going back in automotive history before the perfection of signal lights on the back of one?s car, one had to stick one?s hand out of the window to indicate if one was making a right or left hand turn. Once the realia had changed and such lights were perfected, what sense would it make to ask drivers to continue doing so? The technology had made this particular law obsolete. In this case we have referred to the signal lights on cars as the pertinent realia.
That halacha has to adapt to changing realia should be quite obvious. Still, the fact that it should be quite obvious, does not obviate the need to illustrate the point.
I will choose only a few examples. There are, however, countless instances of changes in halacha due to changes in realia. In fact, the word ?haaidna?, which means ?nowadays?, indicating a historical change in the halacha, is something that all students of Talmud and halacha encounter on a regular basis.
In order to explain the first example, I want to know how many people have fulfilled the Torah commandment of writing or purchasing your own Sefer Torah.
The truth is that, whether you know it or not, you probably have fulfilled this mitzvah. Latter authorities give their stamp of approval to the position brought down by the Tur and Shulchan Arukh in the name of the Rosh (Y.D. 270) and by others in the name of the Geonim. This position is that the intended purpose of writing or commissioning someone to write a Sefer Torah was in order to facilitate individual Torah study, to allow one to study from it. Acquisition of a Sefer Torah was just a means to an end, and thus only relevant as long as it accomplished that end. Once people started studying exclusively from other books, such as chumashim, gemaras and the like, the means metamorphosed into writing or purchasing such books. In other words, the mitzvah took on a different form. I have chosen this particular example because of its rather extreme reformulation of a Torah commandment. Yet, while this position expectedly caused some commotion (and one should see the Maharal in this respect), it is a position that Klal Yisrael has accepted as normative and finds a dominant role in the Achronim.
To give a more recent and more famous example, changing realia is also at the bottom of Rabbi Moshe Feinstein?s famous teshuvot (Y.D. I, 46-49) permitting the use of milk processed by non-Jews. In these teshuvot, he understands that the prohibition is no longer relevant, in that governmental laws and inspection prevent the admixture of non-kosher milk into the milk supply and thus obviates the need for concern that we could be fooled by non-Jews into procuring non-kosher milk. Granted, Rabbi Moshe distinguishes between certain laws that can be obviated and others that cannot, but such distinctions are not directly relevant to the matter at hand.
The foregoing examples are primarily connected to changes in physical realia. Perhaps even more interesting is the impact of changing social realia on halacha. An interesting example of such a halacha is the dispensation given by the Mishna for a a new chatan not to say Kriat Shema. The logic is that since he is preoccupied with other matters, he will not be able to suitably concentrate on saying the Kriat Shema. While this is a clear cut halacha, Tosefot in the end of the second chapter of Berachot (along with Rabbi Meir of Rothenburg) remove this dispensation, due to a historical deterioration in people?s level of concentration. If we no can longer expect anyone to concentrate, than there is no meaningful difference between a chatan and anyone else. This position is adopted as normative halacha by the Shulchan Arukh, who first brings down the pristine halacha of the Mishna and then continues with the words of R. Meir of Rothenburg: ?this was only the case earlier, but now it doesn?t apply.? Recognizing the fact that the dispensation not to say Kriat Shema is based on a historical assumption that no longer existed, various Rishonim followed by the Shulchan Arukh decided that this exemption is no longer applicable.
More recently, tucked away at the end of Rabbi Shlomo Zalman Auerbach?s Minchat Shlomo, Volume I (91:23), is an interesting little teshuva explaining why it might be permissible today for men to walk behind women. He is referring to a discussion in Even haEzer 21:1, where the Shulchan Arukh explains such a prohibition in the context of a man taking various precautions so as not to stare at a woman. In the teshuva, Rabbi Shlomo Zalman suggests that the prohibition is rooted in a society where women were not commonly seen in the street and where a man would be embarrassed to stare at a woman if she were facing him. Rabbi Shlomo Zalman argues that neither of these conditions are true today. There are, he says, at least as many women in the public domain as men and passing one woman up, so as not to be behind her, just puts us behind another woman walking a few feet ahead. Furthermore, men who stare at women today would do it even if the women were facing them. As such, he allows a man to walk behind a woman for the sake of a mitzvah or, in typical Rabbi Shlomo Zalman fashion, in situations where it is the polite thing to do ? really, take a look.
[Part 1 of 4]