TOPICS IN HALAKHA

 

*********************************************************

This shiur is sponsored by Larry and Maureen Eisenberg
in memory of Devora Leah (Lillian) Grossman

*********************************************************

 

A Torah Perspective on the Status of Secular Jews Today[1]
(Part 1 of 2)

By Harav Yehuda Amital zt”l

 

לזכר תלמידי בישיבת הר עציון שנפלו במלחמת שלום הגליל דוד בן אביעזר כהן הי"ד ודניאל בן משה מושיץ הי"ד

 

 

            Let us open with the famous question that has been occupying the State of Israel, and the Jewish world as a whole, for many years: Who is a Jew?  The answer seems obvious, at least to Jews guided by Halakha:  a Jew is a person born to a Jewish mother.  This answer is certainly correct halakhically speaking, but as a definition of a Jew's Jewishness it is surely inadequate.  Any definition that does not embrace a person's affinity to Torah cannot be complete.  The problem is to find a definition that on the one hand covers this affinity, and on the other hand does not exclude Jews who have forsaken Torah - including those who regard themselves as secularists and to whom Jewish tradition says nothing at all.

 

            The full answer and the correct definition were given by Rav Sa'adiah Gaon and, later, Rambam.  There is Rav Sa'adiah Gaon's famous definition:  "...since our Israelite nation is a nation only by virtue of its Torah."[2]

 

            Careful examination of this statement in its original context shows that it has quite a different meaning from the one usually assigned to it. Rav Sa'adiah is generally understood to be saying that the Jews are a people only if we strictly observe the Torah; failure to do so means the end of peoplehood, or failure of the individual Jew to do so means that he has cut himself off from the Jewish people.  That is not what Rav Saadiah had in mind at all.  Jews remain Jews and the Jewish people remains the Jewish people even when they fail to observe the Torah.

 

            Let us examine Rav Sa'adiah's statement in context.  He speaks of the eternity of the Torah, and raises the question:  Does the Torah given to us at Sinai obligate us for all time, or will there come a time, as the Christians contend, when this Torah will no longer be binding and will be replaced by another one?  And he shows that the present Torah is eternal:

 

Since our Israelite nation is a nation only by virtue of its Torah, and since the Creator said that His nation would endure like heaven and earth, then most certainly its Torah will endure like heaven and earth. As we read (Yirmiyahu 31:35-36) "These are the words of God, Who appointed the sun to light by day, the moon and stars to light by night, Who stirred the sea so its waves roared, Lord of Hosts is His name:  'Only if these statutes vanish from My sight,' declares God, 'will the seed of Israel cease forever to be a nation before Me.'" 

 

            That is, what makes the Jews a special nation is their being commanded to observe the Torah.  And the Jewish people will cease to be the Jewish people only when the Torah ceases to be valid, and is no longer binding on them.

 

            Rambam, too, writes about this issue in the Guide to the Perplexed (II:29), commenting on Yeshayahu 66:22, "'For as the new heaven and the new earth I am making will endure in My presence,' says God, 'so shall your seed and name endure.'" Rambam remarks:

 

Sometimes the "seed" remains, and not the "name," as you find in the instance of many nations, about whom there is no doubt that they are of Persian or Greek stock, but are today no longer known by their original names; rather they bear the names of the other nations of which they are now a part.  In my view, we have here a prophecy that our Torah by virtue of which we possess our special "name" will endure forever.

 

            We see, then, that according to Rav Saadiah Gaon's and Rambam's definitions a Jew is one who is commanded by Torah.  The mere fact of his being commanded makes him a Jew, even if he does not observe.  But his failure to observe makes him subject to judgment by temporal or Divine court.  This is not the case with Gentiles:  the most complete and scrupulous observance of Torah does not turn a Gentile into a Jew, since Gentiles are not under the command.

 

            This raises the question:  How can there be proselytes to Judaism? For if a Jew is only one who is commanded in the first instance, the Torah having been originally given to the Jewish people - "The Torah that Moses commanded us, a legacy for the community of Jacob" (Devarim 33:4) - how can an outsider's later voluntary submission to the command transform him into a Jew?  Indeed, this is a unique feature of Jewish peoplehood:  by becoming a proselyte and joining the Jewish faith community, a Gentile also becomes a member of the Jewish people, the people that is obligated by the Torah.  There is no other religion or nation with such an integral link between these two elements.

 

            As Rambam writes in Hilkhot Issurei Bi'ah (14:1-2):

 

How are true proselytes admitted? When a heathen comes to be converted to Judaism, he is investigated. When no special reason is found to disqualify him, he is told:  "Why have you come to convert?  Don't you know how much humiliation and suffering the Jewish people is undergoing?"  If he says, "I know and I am unworthy," he is promptly accepted...  And he is taught the tenets of the religion, which are the oneness of God and the prohibition of idolatry.

 

            In my opinion, this is the root meaning of Ruth's declaration to Naomi, "Your people shall be my people and your God shall be my God" (Ruth 1:16).  First comes the peoplehood affiliation, then the religious one, for "your God is my God" only when "your people are my people."

 

            Is it possible to resign from this obligation and all that it implores in the sphere of reward and punishment?  Rambam says in his Iggeret Teiman (ed. Mossad Harav Kook, p.  136):

 

Not a single person of the seed of Jacob can ever escape from this Torah - neither he, nor his children, nor his children's children, neither if he seeks to renounce it voluntarily nor if he does so under compulsion.  He is punished for every single mitzva he violates... And let him not imagine that having committed violations for which he is liable to severe punishment, he will escape punishment for minor infractions, and therefore may become careless about mitzvot carrying lighter penalties. For Yerovam the son of Nevat... was punished for committing idolatry and leading the rest of Israel into idolatry, and punished also for postponing the observance of Sukkot for no good reason...  This is a fundamental principle of the Torah and of our faith.

 

            So a Jew can define himself as secularist, a Jew can define himself as non-religious, a Jew can even change his religion - for all that he remains a Jew.

 

            To repeat, a Jew is defined as a Jew by mere virtue of the fact that he is obligated by the Torah - even if he does not observe it.  This definition has halakhic ramifications in the area of personal status, regarding such matters as marriage and divorce.  This is the basis for the halakhic application to an apostate of the principle, "Even though he sinned, he is a Jew" (Sanhedrin 44a), although the direct reference of the statement is to Akhan ben Karmi (Yehoshua 7:11) and not to an utter apostate.[3]

 

            In sum, I allow myself to assert:  A complete Jew is one who is commanded and observes the commandments.  A conscious Jew is one who, even though he does not observe the Torah, is conscious of its existence and feels the confrontation with it.  And all those commanded by the Torah are Jews, even if they are not conscious of its existence.

 

            Hence no Jew can be stripped of his Jewishness, regardless of his deeds or opinions.  But the halakha draws additional distinctions: righteous person and wicked person; sinner on a single matter and sinner regarding the entire Torah; brother in Torah and observance of the commandments and brother, but not in Torah and observance.  And the halakha relates to each of these categories differently.  Now what is the attitude to halakha to one who does not accept or believe in the Torah and considers himself a secularist?

 

            We have to concede that in principle, halakha is harsh towards and intolerant of those who violate it.  Here is what Rav Abraham Isaac ha-Kohen Kook had to say:[4]

 

And the fiercest of the nations (the Jews:  see Beitza 25b; Shemot Rabba 42:9) is a jealous and vengeful one.  It wreaks hellish vengeance on those who muddy up its life. It does not tolerate those who do so, be they even brother or son.  In its heart there continues to reverberate the proclamation of its first shepherd (Moshe, during the episode of the Golden Calf; Shemot 32:27), "These are the words of the Lord, God of Israel:  'Let each of you take up his sword and go through the camp from gate to gate, and slay brother, neighbor and kin.'"

 

            This attitude is primarily one of principle, and there is a vast difference between halakhic principle and practice in this respect. There are halakhic matters concerning which we are told halakha ve'ein morin ken - "the action, if performed, is correct under the law, but is not prescribed a priori."  Between the proclamation in principle and the implementation there is a great distance.  However the assertion in the principle is important in itself and as an edifying factor.  An example of this is a certain blatant difference between the Written and Oral Torah. In the former we often find the expression "mot yumat," the perpetrator of such-and-such an offense "shall surely be put to death."  A literal reading of Scripture might make one think that one is reading the minutes of a "stoning Sanhedrin."  On the other hand, there is the famous statement in Mishna Makkot 1:10:  "A Sanhedrin that carries out one death sentence in seven years is called murderous.  Rabbi Elazar ben Azaria says, 'Once in seventy years.'  Rabbi Tarfon and Rabbi Akiva say, 'If we were on the Sanhedrin, no-one would ever be executed.'"  According to the Oral Torah, the possibility of sentencing an offender to death is extremely remote, virtually non-existent. Halakha[5] requires prior warning in the presence of two witnesses; the offender must also have been told precisely how he would be executed; and he must have declared, "I know, and I am committing the sin nevertheless."  If he only said "I know" without declaring that he intended to commit the offense, he is not considered to have been properly forewarned, as the warning must be issued when he is clearly showing his criminal intent.  Altogether, a most far-fetched possibility. Nevertheless, the radical disapproval expressed by the Torah's prescription of the death sentence has tremendous educational value. Rav Kook remarked that the Kabbalah designates the Written Torah as "Father" and the Oral Torah as "Mother."  Father and mother both pursue the same aims in the education of their children; only the father does it in his manner, and the mother in hers.  And both manners are needed if the child's education is to be complete.  Sometimes the child needs the father's stern reprimand that does not consider extenuating circumstances, and at the same time needs motherly tenderness, mercy, and understanding.

 

            The question is asked:  If, as the Oral Torah says, "An eye for an eye" means "Money for an eye," why does the Written Torah say, "An eye for an eye" rather than "Money for an eye?"  The answer is: The Written Torah is the father sternly declaring, "An eye for an eye!"  Then along comes the Oral Torah as a clement mother, saying, "It isn't that simple; it isn't really an eye for an eye; actually it means money for an eye." Revulsion at causing bodily harm is generated precisely by the Written Torah's harsh prescription.  There is educational value to the Torah's emphatic repetition, "An eye for an eye! A tooth for a tooth! A foot for a foot!"

 

            The same applies to the matter we are discussing - the stringent attitude to sinners, reflecting the attitude we are expected to take to the sin itself.

 

            In dealing with the practical implications of the Torah's attitude to sinners, we have to concentrate on our attitude to sinners in our time. Here the central question is:  Are those stringent statements of the Sages regarding sinners and heretics applicable today?  We have to treat this question from two standpoints:

 

     1.  The character and gravity of the sins:  Do the various sins carry the same weight today as they did in the times of the Sages?

     2.  The quantity of sinners:  When the Sages spoke of sinners as "fence-breachers," Jewish society as a whole was observant and loyal to the tenets of Judaism.  Does the halakhic attitude of the Sages apply in our time, when the totality of Jewish society cannot be defined as observant?

 

            Before answering all these questions, let us briefly review the Sages' attitude to sinners.  There are various degrees of sinners, and here I will refer only to the attitude toward the lowest and highest.  The lowest degree concerns one who commits a solitary transgression in the presence of another Jew, is reproved by him and continues to transgress in spite of the reproach.[6]  The highest degree concerns apostates, heretics, those who reject the entire Torah, and those who transgress out of spite.

 

            Regarding the lowest degree of sinner, the Gemara[7] says:

 

Rabbi Shemuel bar Rav Yitzchak said in Rav's name: "It is permitted to hate him, as said (Shemot 23:5) 'When you see your enemy's ass lying helpless under his load.'  Who is this enemy?  If you say that the reference is to a Gentile, we have already been taught (Bava Metzi'a 32b) that a Jew is meant, and not a Gentile, and the reference here is clearly to a Jewish enemy.  In that case, is it permitted to hate him?  Aren't we taught (Vayikra 19:16), 'You shall not hate your brother in your heart?'  Rather, there are witnesses that he committed a transgression, so it is permitted to hate him.  If so, why is he called the enemy of an individual?  The whole world ought to hate him as well!  It must be that the individual alone saw him sin."

 

In other words, to one who saw the sin, the sinner is considered an "enemy," and the witness is permitted to hate him.  And,

 

Rabbi Nachman bar Yitzchak said:  "It is a mitzva to hate him, as said (Mishlei 8:13), "Godfearingness means hating evil.'"

 

            As to the highest degree of sinner, Rambam says[8]

 

The heretics - that is, idolaters, or one who transgresses out of spite... or those who deny the Torah and prophecy - it is a mitzva to kill them.  If one has the possibility of killing them with a sword in public, one does so; if not, one uses various stratagems to bring about their death. How?  If one sees such a person fall into a well and there is a ladder in the well, one takes the ladder and says, "As soon as I get my son down off the roof, I'll give it back to you."  And so on.

 

This, then, is the Halakha's theoretical position on the highest degree of sinner:  moridim velo ma'alin - "one helps to bring about their downfall; one does not help them up."

 

            Now, what of the practice?  Regarding the lowest degree of sinner, whom it is a mitzva to hate, we should bear in mind the words of the Tosafot in Pesachim 113b.  There is a mitzva to help another person unload a burden from his fallen animal and to help him raise the animal and reload or readjust the burden.[9]  One aspect of the unloading mitzva is preventing cruelty to animals.  This is not involved in the reloading mitzva, which is solely a matter of helping the beast's owner.  The Gemara (Bava Metzi'a 32b) tells us:  If you simultaneously encounter a situation involving unloading and one involving loading, you deal with the former first, because that is also a matter of preventing cruelty to animals. But if the person requiring help in loading is an enemy, then you are to deal with him first, in order to force a change in your attitude.  The Tosafot ask, "What is this business of forcing a change in attitude, considering that it is a mitzva to hate the owner?" And they reply:  Since the loader hates the owner, then surely the loader's fellows also hate him, as it is written (Mishlei 27:19), "As a face opposite water reflects another face, so do people reflect each other's hearts."  This would lead to total hatred.  As the Torah vigorously combats total hatred, each person must coerce his attitude and overcome his hatred.  If that is the case, how does one simultaneously overcome one's hatred and exercise what the Gemara says is one's right - even duty - to hate?  On this the Tanya (32) says:  Even those who ignore reproof and whom it is a mitzva to hate - it is also a mitzva to love them: hate the evil in them, and love the good in them.

 

            Such, then, is the nature of that precept to hate. 

 

            It is worthwhile recalling what the Tanya says about those who have become so alienated from things Jewish that one is not even required to reprove them, since the commandment to do so applies only to "your fellow" in Torah and observance, and not merely to any neighbor of countryman.  Hating people who are so alienated is forbidden.  As the Tanya says:

 

Concerning one who is not your comrade, one with whom you are not close - it is concerning relations with such people  that Hillel the Elder has said (Avot 1:12): "Be of the disciples of Aaron, loving peace and pursuing peace, loving the beriyyot (creatures) and bringing them close to the Torah."  Hillel's use of the term "creatures" rather than "people" indicates that he is referring to those who are far removed from Torah; you must draw them closer with bonds of love - to the point where they are brought into the study of Torah and service of God, and at the same time you earn reward for having observed the precept of loving your fellow.

 

            Let us return to the case of those who have ignored reproval and whom it is apparently a mitzva to hate.  To hate, of course, does not mean to hate totally; it should be hatred blended with love.  And in the light of the Tanya's statement, the question arises whether in our time - even in the time of Rabbi Tarfon and Rabbi Akiva - hatred of such people is commanded, or even sanctioned.  This hatred is permitted only after we have observed the mitzva to reprove.  And this precept is not all that simple, is not within the capacity of everyone and anyone to perform at will.  The Gemara tells us (Arakhin 10b):  "We are taught:  Rabbi Tarfon said, 'I doubt that there is anyone in this generation who accepts reproach...  Tell someone, "Remove the splinter from between your teeth," and he will retort, "Remove the beam from between your eyes." Rabbi Elazar ben Azaria said, 'I doubt that there is anyone in this generation who knows how to give reproach.'" And since sanction of hatred presupposes observance of the mitzva to reprove, which we are incompetent to fulfill, then the sanction to hate is null and void.  So the Chafetz Chayyim ruled, and in his wake, the Chazon Ish.  Here is what the Chazon Ish writes (in his commentary on Hilkhot De'ot):

 

At the end of his book Ahavat Chesed, the Chafetz Chayyim wrote in the name of the Maharil that it is a mitzva to love the wicked...for we are bidden first to reprove, and since we do not know how to reprove, they are considered as sinners out of ignorance or under coercion.  Incidentally, regarding the law of moridin velo ma'alin the Chazon Ish writes:  "A sinner is not to be put down before efforts have been made to set him aright by speaking with him."  So we see that there is a vast gap between the Halakha's trenchantly stated mitzva to hate sinners and its implementation.

 

            Now let us examine the views of the posekim regarding the practice towards sinners of the highest degree:  those who deny Torah and Prophecy and transgress out of spite, concerning whom we are told that it is a mitzva to kill them, and to expedite their downfall, and not to aid their comeback.  First we have to ascertain the source of this law, according to which it is permitted to kill or cause the death of a heretical or spitefully sinning Jew.  Does the commandment against murder not apply to such a Jew?  The answer is that this law stems from the authority vested in the Sages to go beyond the law and sanction capital punishment in special instances involving maintenance of the social order.[10]

 

            From this we must conclude that if the sole purpose is to prevent or mend a breach in the Jewish social order, then in our time, when killing will clearly not achieve this purpose, the prohibition on killing surely remains in force.  Indeed, in the view of the Chazon Ish, the principle of moridin velo ma'alin will be applicable only in the messianic era, as he limits its validity to a very special period in which such punishment will have deterrent and mending force.  Here is what the Chazon Ish writes:[11]

 

It seems to me that the principle of moridin applies only when the intervention of Divine Providence is manifest to all.  For when the times were such, the extirpation of the wicked was clearly seen as the removal of an immediate threat to humanity, everyone knowing that it was the incitement and bad example of the wicked that caused pestilence, war and famine.  But in a time of eclipse, when the people are cut off from faith, expediting the downfall of sinners does not serve to mend the breach, but only widens it.  Therefore, the law does not apply, and we must do our utmost to bring them back with bonds of love.