Friday 23 February 2018

Eternal or Obsolete?


A question that we often have to deal with as religious Jews is whether the Torah or some parts of it are relevant to the modern world. The main halachic question is when and if a mitzvah can be declared inapplicable due to the reason behind it becoming obsolete. This topic is huge in terms of the amount written by Chazal and their commentaries, but I will try to explain the general principles and discuss a few examples.

Ta’ama d’Kra

The gemara in many places explains that there is a fundamental dispute between the Tana’im whether we expound the ta’ama d’Kra, the reason for what is written in the Torah. From the cases given, it is clear that the dispute includes whether or not we have the right to limit prohibitions to cases where the reason is relevant.

The classic case is the commandment not to take the clothing of a widow as security for a loan.[1] R’ Yehuda says that this prohibition applies to any widow, rich or poor. R’ Shimon disagrees, maintaining that the only problem with taking this security is the necessity to return it whenever the borrower needs it.[2] A poor widow will need the clothing often, and if the lender is constantly coming to her house to return people will suspect an inappropriate relationship. With a rich widow this problem doesn’t exist, as she will have plenty of clothes and will manage without one item.[3]

The halacha follows the opinion of R’ Yehuda, and it is forbidden to take clothing as security even from a rich widow.[4] However, the Rambam explains that this does not mean that the reason of R’ Shimon is rejected. The reason for the prohibition is indeed the possible bad name that the widow may get, but it applies even when the reason does not exist.[5]

As the Rambam writes elsewhere, the benefit that comes from mitzvos can only be for the majority of people. Some will even lose out in this world by keeping the Torah, but it is nevertheless necessary to have one rule for everyone. The alternative, allowing different boundaries according to the person, would cause everyone to lose out. Similarly, the mitzvos cannot all be tuned to the needs of every generation.[6]

For this reason, the Torah gave certain powers to the Chachamim to uproot mitzvos at times of need. Examples of this are the writing down of the Oral Law to prevent it being forgotten,[7] and the institution of Pruzbul to prevent loans being absolved in the shmita year.[8] However, these powers have boundaries and are limited to cases where the need is communal. Furthermore, only the Sanhedrin is granted such powers.[9]

Without the Sanhedrin we really are left with major problems without good solutions.[10] But we can have no complaints about this, as it is our responsibility to take steps to facilitate the re-establishment of the Sanhedrin (see Ubitul Sanhedreya).

Rabbinical Institutions

Until now we have discussed Torah laws, given to us by Hashem. When it comes to rabbinic enactments, the issue becomes more complicated. The mishna tells us that even the Sanhedrin cannot rescind a decree of previous generations, unless they are greater both in wisdom and numbers than their predecessors.[11]

Without a Sanhedrin, under normal circumstances we cannot even consider annulling a rabbinic enactment (with the exception of monetary issues, which can be defined by communal agreement as we explained in Nezikin) The question we need to answer is what happens when the reason behind them ceases to be relevant.

This question is debated by the Rishonim. The Rambam writes explicitly that a Beis Din cannot rescind an institution of its predecessors unless they are greater in wisdom and numbers, even if the reason for this institution disappears. The Ra’avad points out a difficulty with this statement, seemingly indicating that he disagrees.[12] However, from the case that the Ra’avad quotes, it is clear that his disagreement is only about the requirement for a greater Beis Din. He maintains that even a lesser Beis Din can rescind a decree that has become obsolete, but he also agrees that the decree does not dissolve automatically.[13]

This would seem to shut the door on any possibility of the rules changing from the times of the gemara onwards.[14] The truth is that it is not so simple, as elsewhere it is explicit that some rabbinic enactments do dissolve automatically when they become irrelevant. In the mishna we are told that a virgin woman must get married on a Wednesday.[15] The gemara discusses the reasons for this, and concludes that as nowadays these reasons are no longer relevant, this requirement no longer applies.[16]

The Ritva explains that although usually rabbinic decrees do not dissolve automatically, this case is different. Here, a clause in the original decree stated that it would apply only as long as the current conditions applied. The clear implication is that most decrees were made without such a clause. But is this true about all other decrees?

This question seems to be an issue of some debate. Tosfos in many places assume that certain rabbinic prohibitions and obligations only apply when the reason for them still exists. Thus in places where snakes are uncommon there is no prohibition of drinking water that was left uncovered,[17] in places where there is no ‘salt of Sodom’ there is no obligation to wash ones hands after a meal,[18] and when we do not know how to fix musical instruments, dancing on Shabbos is permitted.[19]

All of these issues are debated, although to different degrees. The Vilna Gaon was stringent concerning all of these questions,[20] and the Rambam also does not mention any leniencies. However, while many are particular about washing after a meal, and some refrain from dancing on Shabbos for halachic reasons, it is extremely rare to find someone who is particular about drinking water that was left uncovered.[21] How can we understand this, and what is the correct way to decide these questions?

Sadly, I have no great answer. It is extremely hard to prove the issue either way. As we are dealing with a question on a rabbinic level and the prevalent custom is not to be particular about uncovered water or washing hands after a meal,[22] I also am not particular about these issues. When it comes to dancing on Shabbos I tend to refrain, as it is not at all clear to me that the reason for this prohibition does not exist.[23]

Advice

Sometimes it is more straightforward to be lenient. Often Chazal advised against certain practices without making an official decree. For example, in the Mishna we are told that teaching one’s daughter Torah is tantamount to teaching her promiscuity.[24] Although the Rambam limits this statement to the Oral Torah, he maintains that one should ideally not even teach his daughter the Written Torah.[25]

Without getting into a discussion about the reasons for this statement of Chazal, to my knowledge no sect of Judaism still applies it literally. Even the most Chasidish girls schools teach Chumash (usually with Rashi as well). Why here did no-one think to claim that the words of Chazal hold strong here even if the reason has gone?

The answer is that here no enactment was made in the first place. It was never forbidden to teach women Torah, it was just ill-advised according to Chazal. The moment that teaching Torah to women became something positive, it was obvious that it must be done.

There are many other examples of statements of Chazal that were meant as advice, rather than formal enactments. When deciding whether changing circumstances change the halacha, it is crucial first to determine whether we are dealing with a prohibition or obligation, or merely with good advice. It is not always one hundred percent clear what falls into which category, and clarifying this often requires familiarity with the language of Chazal.



[1] In Devarim 24:17
[2] See Shemos 22:25-6, Devarim 24:12-3 and Bava Metsia 113a-114b
[3] Bava Metsia 115a
[4] See Choshen Mishpat 97:14
[5] Commentary to the Mishna, Bava Metsia 9:13. See also Sma and Shach to Choshen Mishpat 97:14, who give alternative reasons applicable to all widows.
[6] Moreh Nevuchim 3:34. See also 3:29 there, where the Rambam explains that many of the mitzvos were necessary in order to distance us from the idolatrous and ridiculous practices of the ‘Tzaba’ sect that were prevalent in the times of Avraham Avinu.
[7] See Temura 14b, and the Rambam’s introduction to Yad HaChazaka.
[8] See Gitin 36a. See also Rambam and Ra’avad, Hilchos Shmita v’Yovel 9:16 who dispute whether this could work during times when Shmita applies Biblically. Here, a mitzvah meant to help the poor by wiping debts, in fact caused them more problems when no-one was prepared to lend them money.
[9] If everyone could decide for himself, we would come back to the same problem described by the Rambam. See Responsa Sridei Eish 1:77, at the end of section 8.
[10] One example that bothers me a lot is the prohibition of lending and borrowing with interest. This mitvah was clearly intended to prevent exploitation of the poor, and to encourage helping those in need. However, nowadays when the global (and local) economy depends on the ability to borrow large sums of money, it simply is not possible to run a country while avoiding this prohibition in simple terms. The solution of heter iska is far from perfect halachically, and also can effectively kill off the entire prohibition with all its benefits. Other potential solutions would require some creativity, and the power of the Sanhedrin to make them practical and enforceable.
[11] Eduyos 1:5. The gemara in Avoda Zara 36a goes even further, explaining that some decrees that were accepted by all of the Jewish People cannot be nullified even by a greater Beis Din. See Rambam, Hilchos Mamrim 2:2-3 and Ra’avad there who dispute exactly when this applies.
[12] Mamrim 2:2
[13] His proof is from the gemara in Beitsa 5a-b concerning fruit produced by a tree in its fourth year. Such fruit must either be taken to Yerushalayim and eaten there in a state of purity, or redeemed with money (this money must later be taken to Yerushalayim in order to buy food there to eat in a state of purity). An institution was made that any fruit within a day’s journey from Yerushalayim should be taken itself and not redeemed, in order to decorate the streets of Yerushalayim with fruit. When the city was destroyed and occupied by non-Jews, R’ Yochanan ben Zakai (the head of the Sanhedrin at the time) annulled this obligation despite the fact that he was not as great as those who instituted it.
[14] See How does halacha work? where we explained why nowadays (until the re-establishment of the Sanhedrin) the gemara is the only ultimate halachic authority.
[15] Kesuvos 2a
[16] Ibid. 3a. The gemara stipulates that this is on condition that the husband ensures to make all the required preparations beforehand.
[17] Avoda Zara 35a (ד"ה חדא). Chazal forbade drinking such water, as they believed that it was dangerous to drink water that snakes had drunk from.
[18] Berachos 53b (ד"ה והייתם קדושים)
[19] Beitsa 30a (ד"ה תנן). Chazal forbade dancing on Shabbos out of concern that people might fix musical instruments (Ibid. 36b). Here even if we don’t except the position of Tosfos, there is some discussion as to what kind of dancing was prohibited. See Aruch Hashulchan, Orach Chaim 339:9.
[20] Biur Hagra, Orach Chaim 181:10 (concerning washing after a meal); Ma’aseh Rav, Hilchos Ma’achlos Asuros 95 (concerning water left uncovered).
[21] Even in Eretz Yisrael, where snakes are far more common than in Western Europe (where the Ba’alei Hatosfos lived).
[22] Although many men have taken on mayim acharonim (washing hands after a meal), I have very rarely seen families where the women were particular about this. As there is no halachic difference between men and women here, this can only mean that even those men who are particular about this do so as a chumra (additional stringency).
[23] See Aruch Hashulchan, Orach Chaim 339:8. If everyone is dancing and abstaining would make a scene, I simply walk round in the circle with everyone else. This certainly cannot be considered dancing.
[24] Sotah 20a. See Rambam, Hilchos Talmud Torah 1:13 and Shulchan Aruch, Yoreh Deah 246:6 who rule like this view in the Mishna.
[25] Ibid.

Thursday 1 February 2018

Capital Punishment

While the Knesset have been debating whether or not to make it easier for courts to apply the death penalty that already exists in Israeli law, various misleading statements have been issued. I thought it would be appropriate to clarify the halachic side of this discussion.

As I have already written about the special status of war (see War and Peace), for the purposes of this post I am assuming that this special status does not exist. I will also not be discussing any ‘leniencies’ that may exist when it comes to non-Jews.[1]

Anyone who has read the Torah will know that the death penalty does exist in Judaism. Equally, anyone who has learnt some amount of gemara (or read halachic literature derived from it) will know that in practice the application of the death penalty was always rare. The conditions required are so strict to make it virtually impossible.[2]

However, these conditions exist only when it comes to the statutory death penalty. The gemara tells us that a king has the right to kill anyone who disobeys his orders, as long as they do not contradict the Torah.[3] This is derived from an explicit verse, in which the people assure Yehoshua bin Nun that anyone who disobeys him will be killed.[4] The Chinuch states the obvious, that he does not need to have the usual standard of proof to impose this punishment.[5]

Who has the authority?

What happens when there is no king? Clearly the right to punish is not limited to a bona fide king, as Yehoshua bin Nun himself was not one.[6] But exactly how far does this go?

The gemara tells us that Beis Din can punish even when there is no Torah source for doing so, in order to make a ‘fence’ for the Torah. In one example of this, when a certain person rode on a horse on Shabbos (a violation of a rabbinic decree), it was deemed necessary to put him to death. In another example, due to the needs of the time, a man was given lashes for carrying our marital relations in public.[7]

The Ran explains that enforcement of the laws of the Torah is always the responsibility of Beis Din. However, in order to run a country, additional laws and forms of enforcement are necessary. These additions are generally the domain of the king. However, when there is no king, Beis Din is given charge of both of these tasks. This is why Yehoshua bin Nun was given the power to put people to death, even though he was not a king.[8]

The implication is that any ruler accepted by the people, by whatever means is normal in that country, has the right to enforce law like a king does. As the Rambam writes concerning the other powers of a king (whether Jewish or not), if the population accept the coinage of a king they have in effect accepted him as a ruler, and they are his subjects.[9]

A similar point is made by the Meiri (1249-1315, Provence). Explaining why we find cases in the gemara where laws were enforced by dayanim who did not have semicha (see Ubitul Sanhedreya), he says that when authority was given by the state authorities, the assumption is that the community also accepts this authority. He adds that this authority even enables the dayanim to impose capital punishment.[10]

This power is not necessarily limited to religious leadership. The Rosh (1250-1327) writes that the Tovei Ha’ir (lay leaders of the community) also have the power to impose punishments not stipulated by the Torah.[11] This ruling is codified by the Rema.[12]

From all of this it should be clear that any legitimate government does have the halachic authority to impose punishments as they see fit, including capital punishment. If we accept the legitimacy of the Israeli government regarding tax collection and the like,[13] we cannot deny their right to determine when and if capital punishment is appropriate.

Limits and Responsibility

Common sense tells us that this considerable power that the government has is not unlimited. If the government decided to impose capital punishment on anyone caught jay-walking, we would rightly call them murderous. As I wrote in The right to resist the abuse of power, governments are bound by the accepted standards of the time. Where to draw the line is not a hundred percent clear, but when many parts of the western world still have the death penalty for murder this cannot be considered illegitimate.

Obviously, none of the above necessarily implies that it is sensible to impose capital punishment. We have seen two reasons that may necessitate punishments not prescribed by the Torah. The first reason, strengthening the Torah by building a fence (to reinforce to people the severity of transgressions) is clearly not practical or effective when the majority of people are not Torah observant.

The second reason is for maintenance of law and order, as described by the Ran. This may be relevant even now, but the government must act responsibly and examine carefully whether the death penalty will achieve this aim. Above all, they must conduct themselves in the way the Rambam writes about a king:

Just like the Torah gives him great honour, and all are obligated to honour him, so did the Torah command him to make his heart humble inside him.…. He should not deal with Israel with too much brazenness, …. he should be merciful to the lowly and great (of stature) and deal with their desires and interests……. He should always act with exceptional humility.[14]




[1] The truth is that there is little evidence for any difference between Jews and non-Jews in the bottom line halacha here. Furthermore, as the accepted ruling is that we even can break Shabbos to save the life of a non-Jew to avoid animosity, we certainly cannot afford to make any differentiation here.
[2] See Makos 7a and Shevuos 34a for examples of how clear the evidence has to be. In addition, for beis din to be able to apply the death penalty it is necessary to warn the offender of this penalty within a few seconds of committing the crime, and for him to state explicitly that he doesn’t care (Sanhedrin 40b).
[3] Sanhedrin 49a. See also Rambam Melachim 3:8-10
[4] Yehoshua 1:18
[5] Mitzva 497. See also Minchas Chinuch there, who explains that this applies only to putting someone to death, or confiscating the property of one deserving of death.
[6] See Mishpat Kohen siman 144 for a discussion of the halachic status of Yehoshua bin Nun.
[7] Sanhedrin 46a
[8] Drashos HaRan, Drush 11
[9] Hilchos Gezeila 5:18
[10] Beis Habchira, Bava Kama 84b (ד"ה ויש מתרצין)
[11] Bava Kama 9:5
[12] Choshen Mishpat 2:1
[13] As Rav Ovadya Yosef does in Yechave Da’as 5:64, and the Tzitz Eliezer does in 16:49.
[14] Melachim 2:6