Torah versus international law

Much has already been written about how the Jewish State should be run according to the Torah.[1] Here I will try to explain how we should deal with cases where the Torah view seems to clearly be at odds with what the international community accept as morals. In many cases the world’s reaction would make it very difficult for us to adopt the rules of the Torah at face value even if the government was willing to do so, but my question is when and if we should be trying to change the world view of these issues.

I believe that the way to approach this is to take a deeper look into what the Torah is telling us. There is no doubt that if in fact there is a contradiction between the Torah and man-made law, we must follow the Torah. However, it is well worth examining if the perceived difference is due to warped morals, or if the conclusions man has come to are guided by something that the Torah would agree to on closer analysis. To clarify we must bring some examples.

Slavery

According to Torah law, one can buy a non-Jewish slave who then becomes property of the buyer and cannot normally go free without consent of the owner.[2] The slave is obligated to work for his owner, and the owner is not even obligated to provide him with food (although if he has any sense he will do so, otherwise the slave won’t be much use to him).[3] Should we be taking steps to persuade the world that this is the way to go?

Here we need to ask whether the Torah meant to actively encourage slavery, in which case we should indeed be trying to teach the world the Torah way. But if the Torah just allowed slavery out of necessity, and that necessity no longer exists, there is no reason to perpetuate an anachronism. On the contrary, we should be thankful that we live in a world that is morally superior to what it used to be in this regard.

Although I have not found a clear proof either way from Tanach or Chazal, I believe that there are some indications from the Rishonim that they understood slavery as a necessary evil and not as something inherently positive. In the passage where the Torah differentiates between Jewish and non-Jewish slaves, Rashi explains that the many restrictions on the treatment of Jewish slaves would inevitably lead to the question “If so, from whom can I get service?”[4] To this question the Torah answered that one may acquire a non-Jewish slave.[5]

The Rambam explains slightly differently, that even the laws of non-Jewish slaves were given to ensure that they are treated with some degree of compassion.[6] Even a non-Jewish slave goes free if his master knocks out his tooth, even inadvertently. Also, a slave who flees his master to Eretz Yisrael is not made to return.[7] Although to us this compassion that the Torah had for slaves seems insignificant, for the time it was revolutionary.[8]

Historically it is important to understand that slavery was a norm throughout the world until relatively recently. The first country that banned the slave trade was Denmark-Norway, in 1803.[9] The Torah was millennia ahead of its time when it forbade the enslavement of Jews, and even this proved difficult to adhere to at times.[10] After many years, the model showing that one should serve none but G-d has been accepted worldwide.

Religious coercion

According to the Torah, one who refuses to carry out his responsibilities is beaten until he complies.[11] Even a private individual has the right to physically prevent another from transgression.[12] In the so-called developed world not only is this not acceptable, but even imprisonment or fines for religious negligence is considered an abuse of human rights.[13] What should we be doing about this?

This issue is a complex one. Here it doesn’t seem logical to say that the Torah just disapprovingly allowed religious coercion, and I am not aware of any source for such an idea. However, it is also clear that in an ideal world there would be no need for coercion, as everyone would happily fulfil their obligations of their own accord.

The crucial question here is not whether it is inherently right to enforce Torah law, but whether it would be productive on a global scale. There would be no point trying to enforce anything if the net result would be negative.[14]

For most of the past two thousand years we have suffered from different forms of attempted coercion, and more recently we have clearly benefited from a society that allows us to keep Torah and mitvos freely. We would need to ask ourselves whether we would want to go back to a situation where every country can compel all its citizens to one religion, now that we have our own country where we can (theoretically) make the rules.

Practically, this question would remain hypothetical even if we had a religious government. Even if we decide that we do want to return to the old system, it would not be the first priority. It would clearly be pragmatic first to work on persuading the world of the truth of the Torah, and then most if not all of the job would be done. Firstly, it would be far easier to convince people the morality of enforcing a Torah that they accept. And more importantly, it would be less necessary.[15]

Idolatry in Eretz Yisrael

According to the Torah, we may not allow idolaters to live in Eretz Yisrael.[16] Should we be looking for ways to deport those who worship physical or multiple beings?[17] This question is somewhat related to the previous one, but here I believe that there is another issue where commonly accepted thought is more clearly opposed to the Torah view.

The Torah, as well as the entire Tanach, is full of generalisations about the character of certain nations. And even within the Jewish People there is discrimination. While anyone can achieve greatness irrespective of lineage,[18] there are innumerable halachic differences between kohanim, levi’im, regular Jews, mamzerim, and many other categorisations.

The chasm between this and the world view couldn’t be much wider. Virtually any kind of differential treatment based on race, religion, gender or age is usually illegal or at least frowned upon. Is this enlightenment or deterioration?

To me it is clear that it is a bit of both. The numerous genocides and pogroms that have occurred over the last few hundred years before the modern system was in place were certainly not positive things, and even the repercussions of lesser evils like apartheid South Africa are still felt today. The world eventually realised that a revolution was necessary, and in my view the net result is definitely an improvement.

However, I think it is fair to say that there has also been some overkill. The freedom of movement that exists most notably in the European Union has led to a loss of feeling of national identity, which in turn causes resentment and the opposite of the intention of discrimination laws.

The Torah provides not just for national identity, but also for tribal identity within the Jewish Nation. Each tribe had its own territory, flag, and unique role within the Jewish People. Hashem knew that strengthening this identity would only increase the unity of ‘Yachad Shivtei Yisrael’.

Accordingly, I conclude that where possible we should stand up for our right to say that those who are not willing to accept the basic tenets of our religion are not welcome in Eretz Yisrael. This is no contradiction to our expectation of acceptance in other countries where religion is not a defining characteristic. If, for example the United States made acceptance of Christianity a condition for granting residency I would also have no complaint.[19]

The problem comes with those who have already been granted citizenship or residency. Once they have been accepted it would not be correct to renege on the rights they have been given, in the same way we would expect other countries who have taken in Jews to keep to their word. However, I see no moral problem with giving financial incentives to encourage people to find a more appropriate place to live, if this is practical.

Conclusion

I have no doubt that some will dispute the conclusions I have drawn about the three issues discussed. My main aim here is to encourage thought about how we are supposed to deal with these issues and more according to the Torah, and that they can be discussed and debated seriously. May we fulfil the prophecy of being a light unto nations to the best of our ability.

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[1] Eg Amud Hayemini by R’ Shaul Yisraeli, Hilchos Medina by the Tzitz Eliezer

[2] Furthermore, see Gittin 38 that releasing a non-Jewish slave for non-mitzva purposes is a transgression.

[3] See Shulchan Aruch Y.D. 267:2.

[4] Vayikra 25:44

[5] See Sefer Hachinuch Mitzva 347 who also says this reason. Although he first says that it is befitting for Jews to have people to serve them, he does not say that it is an ideal for non-Jews to be slaves. I therefore believe that my conclusion here is not contradicted by the Chinuch.

[6] Moreh Nevuchim 3:39

[7] See Rambam, Avadim 8:10

[8] This explanation of the Rambam seems insufficient to explain the obligation to retain ones non-Jewish slave, and presumably he would agree to Rashi’s reason. Certainly this obligation is not for any more fundamental reason, as we can see from Rabban Gamliel’s joy in Bava Kama 74b when he thought that his slave would go free.

[9] https://en.wikipedia.org/wiki/History_of_slavery#Modern_Europe. One should also bear in mind that only relatively recently were laws made ensuring fair treatment of regular workers, and it is possible that some slaves were in a better position due to the owners’ interests to maintain their market value.

[10] See Yirmiyahu 34

[11] See Kesuvos 86, Rosh Hashana 6a.

[12] See Bava Kama 28a. To what extent an individual may do so is not completely clear (see Meshovev Nesivos 3:1), but all agree to the principle.

[13] Although certain transgressions such as trade on shabbos and sale of chametz on pesach are sanctioned by Israeli law, they are limited to the public domain.

[14] This should be obvious, and see also Chazon Ish Yoreh Deah 2:16.

[15] Another thing that should be worked on first is persuading the Jews of the Diaspora to make aliya, as then among countless other benefits there would be less concern about freedom to practice Judaism worldwide.

[16] In fact, the straightforward understanding of halacha indicates that only a ‘ger toshav’ who formally accepts upon himself the seven Noachide laws may be allowed to stay. See Arachin 29a that until we have the laws of Yovel we cannot even accept a ger toshav. But even if we could get round this technical problem, we would still be left with a significant number who would not readily accept.

[17] Without getting into a discussion of what is considered avoda zara, it definitely exists on some scale even today.

[18] See Horayos 13a, Sanhedrin 59a

[19] Although I would continue to argue about the falsehood of Christianity.

How does halacha work?

For those who know me well, it will come as no surprise that I chose this topic for my first post. There is much confusion around about who has the right to give halachic rulings, what a legitimate ‘opinion’ is, and what the simple person is supposed to do when two rabbis have three or more views as to what the halacha is. I will do my best to clarify the truth here, as contrary to what one might expect there is very little disagreement about the fundamentals.

To do this it is critical to explain the rules in an ideal world (where the Sanhedrin have the last word on everything), the world we live in today, and interim situations.

In an ideal world

The Torah tells us explicitly what we are supposed to do in the event of a halachic dispute[1]:

כִּי יִפָּלֵא מִמְּךָ דָבָר לַמִּשְׁפָּט בֵּין דָּם לְדָם בֵּין דִּין לְדִין וּבֵין נֶגַע לָנֶגַע דִּבְרֵי רִיבֹת בִּשְׁעָרֶיךָ וְקַמְתָּ וְעָלִיתָ אֶל הַמָּקוֹם אֲשֶׁר יִבְחַר יְקֹוָק אֱלֹקֶיךָ בּוֹ: וּבָאתָ אֶל הַכֹּהֲנִים הַלְוִיִּם וְאֶל הַשֹּׁפֵט אֲשֶׁר יִהְיֶה בַּיָּמִים הָהֵם וְדָרַשְׁתָּ וְהִגִּידוּ לְךָ אֵת דְּבַר הַמִּשְׁפָּט: וְעָשִׂיתָ עַל פִּי הַדָּבָר אֲשֶׁר יַגִּידוּ לְךָ מִן הַמָּקוֹם הַהוּא אֲשֶׁר יִבְחַר יְקֹוָק וְשָׁמַרְתָּ לַעֲשׂוֹת כְּכֹל אֲשֶׁר יוֹרוּךָ: עַל פִּי הַתּוֹרָה אֲשֶׁר יוֹרוּךָ וְעַל הַמִּשְׁפָּט אֲשֶׁר יֹאמְרוּ לְךָ תַּעֲשֶׂה לֹא תָסוּר מִן הַדָּבָר אֲשֶׁר יַגִּידוּ לְךָ יָמִין וּשְׂמֹאל.

(דברים יז ח-יא)

“When a matter of justice will be hidden from you, whether between types of blood, financial rulings or negaim, matters of dispute in your gateways, you must arise and ascend to the place that Hashem your G-d will choose. You will come to the levite kohanim, and to the judge that will be in those days, and seek out and thy will tell you the matter of justice. You must proceed based upon the word that they tell you, from that place that Hashem will choose, and be careful to do according to all that they rule for you. Act based on the Torah that they teach you, and the justice that they say to you, do not deviate right or left from the word that they tell you.”[2]

Chazal derive that the authority we must consult here is the Sanhedrin, comprising of 71 halachic experts ordained by their predecessors forming a chain back to Moshe Rabbeinu.[3] They describe the Sanhedrin as the court from which the Torah emanates to all of Israel.[4] Based on this, the Rambam writes:

בית דין הגדול שבירושלים הם עיקר תורה שבעל פה, והם עמודי ההוראה ומהם חק ומשפט יוצא לכל ישראל, ועליהן הבטיחה תורה שנאמר על פי התורה אשר יורוך זו מצות עשה, וכל המאמין במשה רבינו ובתורתו חייב לסמוך מעשה הדת עליהן ולישען עליהן.

(ממרים א, א)

“The High Court of Law in Yerushalayim is the root of the Oral Torah, they are the pillars of halachic ruling and from them statutes and justice emanates to all Israel. The Torah assures us about them, as it says ‘based on the Torah that they teach you’- this is a positive commandment. Anyone who believes in Moshe Rabbeinu and his Torah is obligated to base all religious acts on them, and to trust in them.”[5]

So in the ideal world of the Sanhedrin, there is very little room for ambiguity.[6] But even then, one question is critical. What happens if the Sanhedrin differs with their predecessors? Are they forever bound by previous rulings? In regards to disputes in the interpretation of the Torah, the answer is clear. The Sanhedrin in every generation has the authority to rule differently to its predecessors, irrespective of prowess.[7] Rescinding rabbinical decrees of a previous authority is somewhat more complicated,[8] but this is not relevant to our discussion.

Without the Sanhedrin

We have not had a Sanhedrin since approximately the year CE 425,[9] during the Amoraic period. However, one crucial development means that there is no need for us to try to research which halachic rulings were given by the Sanhedrin and which were not. The Rambam writes in his introduction to Yad Hachazaka:

כל הדברים שבגמרא הבבלי חייבין כל ישראל ללכת בהם וכופין כל עיר ועיר וכל מדינה ומדינה לנהוג בכל המנהגות שנהגו חכמי הגמרא ולגזור גזירותם וללכת בתקנותם. הואיל וכל אותם הדברים שבגמרא הסכימו עליהם כל ישראל. ואותם החכמים שהתקינו או שגזרו או שהנהיגו או שדנו דין ולמדו שהמשפט כך הוא, הם כל חכמי ישראל או רובם והם ששמעו הקבלה בעקרי התורה כולה דור אחר דור עד משה רבינו עליו השלום.

“All of Israel are obligated to follow the words of the Gemara Bavli, and we force every city and every country to practice all the customs that the sages of the gemara initiated, to enforce their decrees and to follow their institutions. This is due to the fact that all these matters in the gemara were agreed upon by all Israel, and those sages that instituted, decreed, initiated, judged and derived that the law is such, were all the sages of Israel or most of them. They are the ones who heard the tradition of the fundamentals of the entire Torah, generation after generation back from Moshe Rabbeinu ע"ה.”

Much has been written in interpretation of these words of the Rambam. The pertinent question is how to understand the connection between the two factors mentioned, the agreement of ‘all Israel’ and that of ‘all the sages of Israel or most of them’.

In my view, any obligation to follow specific rulings must be due to something modelled on the Sanhedrin.[10] No other option is sufficient to explain how these rulings can be binding on those who were not born at the time, have no knowledge of them, and even those who actively reject them.[11] To explain how the Rambam arrived at this conclusion, we need to understand the rationale behind the power that the Torah gives to the Sanhedrin.

To me it is clear from the pesukim quoted above that the Sanhedrin is the Torah’s solution to the inevitable problem of disagreements over the understanding of the Torah.[12] It is necessary to have a body that can act as the agent of the Jewish people to preside over these matters, otherwise ‘each man will do what is fit in his eyes’.[13] Obviously, these people must be both learned and of impeccable character to undertake this great task. The Torah set rules for appointing this body,[14] and thereby considered its rulings as part and parcel of the Torah itself.[15]

When there is no such body, the only thing that we can fall back on is something more basic, if less practical. If ‘all the sages of Israel or most of them’ agree about something, there is no need for the technicalities of the Sanhedrin. It is clear that this is the way that the Torah is to be understood, at least until the sages of a different generation agree to something different. This is what happened with the sages of the Talmud Bavli, even if there was no formal convention that decided this.

There is one important proviso to all of this. Even the power of the Sanhedrin is dependent on the agreement of Klal Yisrael over their authority,[16] and it follows that the Talmud Bavli also had to be accepted by Klal Yisrael. At the same time, any acceptance of Klal Yisrael has validity only if it is based on an acceptance of Torah sages as an authority.

The post-talmudic period

What happened with the Talmud Bavli has never since been replicated. The result of this is that since then, any halachic ruling is merely an interpretation of the gemara and the sources preceding it. No later authority is binding on the Jewish people as a whole, and in principle anyone has the right to disagree with anything written in the post-talmudic period. This is hinted to by the gemara itself ,[17] and confirmed by the Rishonim.[18]

In practice, throughout the generations the majority of rabbis have been reluctant to exercise this right. This is certainly understandable, and the decision to revoke rulings that have been accepted for decades and even centuries must not be taken lightly. However, there has also always been a minority who have been prepared to do this,[19] and the legitimacy of their approach has never been questioned.

Modern day fallacies

Nowadays it is very common to hear the misconception that certain seforim or rabbis cannot be argued with. Where did all this come from? I believe that it started from a misunderstanding of the words of R’ Yosef Karo in his introduction to Beis Yosef. There he explains that he formulated his (loosely applied[20]) rule of following the Rif, Rambam and Rosh due to the lack of ability to determine the halacha independently. The bulk of the Sefardi poskim accepted this, and even many of the Ashkenazim who didn’t came up with similar alternatives.[21]

The reality is that neither the Beis Yosef, his followers, or the Rema and the Ashkenazi poskim meant to start a revolution. The idea of setting guidelines for who to follow in the case of disputes exists already in the gemara,[22] and even most of the Amoraim did not usually argure with their predecessors.[23] But as with the rules in the gemara, these guidelines were meant only for those who did not feel able to decide each case for themselves.[24]

This situation where everyone has the right to decide for themselves is by no means ideal, and the lack of any authority with the power to have the last word is the cause of many of the problems we see today. Furthermore, what one who is not learned enough to rule for himself is supposed to do with multiple opinions is often unclear. It is easy to see why some try to solve all of this by distorting the truth, but my firm view is that this is counter-productive. May we merit to see the fulfilment of the prophecy “I will restore your judges to their original state.”[25]

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[1] Whether the same rules apply to a philosophical dispute or not requires further analysis.

[2] Devarim 17:8-11

[3] See Sanhedrin 86b-87a, 13b-14a

[4] Ibid. 86b

[5] Mamrim 1:1. A straightforward reading of this indicates that not only must we follow their rulings in practice, but we must also trust that this indeed is the correct interpretation of the Torah.

[6] See Sanhedrin 88b that disputes did not last long during the time of the Sanhedrin.

[7] Rambam Mamrim 2:1. To the best of my knowledge no-one disputes this.

[8] See Rambam Mamrim 2:2-4 and Ra’avad there for a starting point.

[9] See https://en.wikipedia.org/wiki/Sanhedrin.

[10] See Kovetz Shiurim, Kuntres Divrei Sofrim, Siman 2 who also assumes that the Rambam means that ‘all the sages of Israel or most of them’ have the same power as the Sanhedrin, although he seems to limit this only to when they are convened together in one place.

[11] Although the Ramban in Mishpat Hacherem has a novel idea that communal nedarim are binding on subsequent generations (a view that there is no evidence that the Rambam accepts), nedarim can only create new obligations and prohibitions. Here we need to explain the power of a halachic authority to issue even lenient rulings. Furthermore, the Ramban explicitly requires even communal nedarim to  be accepted verbally, and makes an exception to this only for charamim (excommunication and similar bans).

The conclusions of this post could be made even if the authority of the gemara was due to communal acceptance alone. However, I believe that it is crucial to disprove this theory not just for the sake of truth, but also because of mistakes that could be derived from it. For example, if the power of the gemara stems from communal acceptance, presumably communities such as the Ethiopian Jews would not be bound by it.

[12] As well as making enactments reflective of the needs of the times.

[13] The recurring lament of Sefer Shoftim.

[14] They are codified by the Rambam in the beginning of Hilchos Sanhedrin.

[15] R’ Soloveitchik in Kovetz Chidushei Torah, starting from page 51, brings further proofs to the idea that the Sanhedrin represents the entire Jewish people.

[16] See Rambam Mamrim 2:6 that a decree not accepted by most of the community is invalid.

[17] Bava Metzia 86a

[18] The Rambam in his introduction to Yad Hachazaka explains that after the completion of the Talmud, even though the Geonim continued to lead the yeshivas in Bavel, the Jewish People dispersed and each place developed its own customs. Thus one community could not enforce its practices on another. This is echoed by the Rosh in Sanhedrin (perek 4, siman 6), who says that anyone has the right to disagree with the Geonim, as ‘Yiftach in his generation is like Shmuel in his generation’ (Rosh Hashana 25b). Even the Ra’avad there agrees in principle, but merely stipulates the need for a ‘clear difficulty’ with the rulings of the Geonim in order to do this.

[19] Eg. the Maharshal, Shach, Vilna Gaon and the Sha’agat Arye. Maharal at the end of chapter 15 of Nesiv Hatorah, and R’ Moshe Feinstein in his introduction to the Igros Moshe clearly prefer this method.

[20] See Darkei Moshe there.

[21] The Rema in his introduction argues that Ashkenazim should follow the traditions of the Ashkenazi poskim.

[22] See Eruvin 46b.

[23] They seemingly have the right to argue, as Rav indeed does on occasion. Even the other Amora’im are rarely particular about conforming to the precise language of the Tana’im.

[24] This should be obvious from what we have explained already, and the Chazon Ish confirms it in Choshen Mishpat, Likutim, siman 1. Even though many Sefardi poskim sometimes seem to indicate that the authority of the Shulchan Aruch is absolute, this is clearly not meant 100% literally. All of them rule against the Shulchan Aruch themselves on numerous occasions.

[25] Yeshaya 1:26