Friday 12 July 2019

When Rabbis Make Mistakes


Introduction

In case anyone was in doubt, rabbis are not only capable of making mistakes – they exercise this capability relatively often. Not necessarily more often than or even as often as the average person, but due to their standing these mistakes tend to have a higher cost for all involved. Needless to say, the more well-respected or influential the rabbi is, the greater the responsibility that he shoulders.

When discussing how we should deal with a situation when a rabbi has erred, it is important to differentiate between two categories. Regarding criminal activity unrelated to the rabbi's status, it is critical that this is dealt with in the same way that any crime committed by a lay person is.[1] Any preferential treatment would be disastrous;[2] there is also no basis for a stricter sentencing based on the person's stature.[3]

The situations I would like to address are the ones where no crime has been committed. For a communal leader it is not sufficient not to be a criminal, or not to transgress commandments of the Torah. What should lead us to conclude that the person is not worthy of the title of 'rabbi', or that he is not capable of doing the job expected of him? And who should be entrusted with making this decision?

Permanent and Temporary Positions

Firstly, it is important to point out that the right to remove a rabbi (or anyone else) from his post depends a lot on the status he was given in the first place. Historically, all positions of authority were seen as something fully 'owned' by those who were appointed. As such, it was extremely difficult to depose a person from his position. Even after the person died, the position was inherited by his children where relevant.[4]

This system is not entirely obsolete today. In the UK, there are still some hereditary peers and life peers whose positions are forever or for life respectively. Under socialist regimes, firing even regular employees can be far from straightforward.

For better or for worse, in the Torah world the old perception of appointments is more prevalent. Many rabbinic positions come with virtually no contractual (or legal) method of forcibly ending the employment.[5] If the terms were not made clear at the time that a rabbi started serving, the default position is that his employment is in accordance with the prevailing local custom for similar jobs.[6]

The truth is that even under this old system, communities often knew how to end the tenure of their rabbi. There may not have been a technical legal way to do it, but if enough of the powers that be were united against the rabbi, they could make his position untenable. This happened to many of those who we now know as being the greatest of our poskim.[7]

In many modern communities today, a rabbi's terms of employment are viewed in a similarly way to those of a regular employee. While at the outset the plan is to keep the rabbi indefinitely, if basic expectations are not met it will not come as a shock if he is asked to leave.

Disputes within a community

Under these circumstances, it is only the rabbi's job to serve his community and not the other way round. While the community certainly are obligated to honour their rabbi for his Torah and for the service he provides them,[8] he is the one who has the basic obligation to provide this service. The same rules apply if the 'community' involved is a class of students,[9] or in the case of those employed by the government, the entire Jewish population.

It therefore follows that the community has the right to decide whether or not the rabbi is meeting the standards required. In order to limit confusion, the community should define their expectations as clearly as possible before commencement of employment. If a dispute does nevertheless arise between the rabbi and the community, the community has the final word.[10] Moreover, a sensible rabbi will realise that to stay in a position where he is not wanted will not be productive.

The problem is that it is rare for the community to speak in a single voice over issues like this. Every rabbi has his detractors, and hopefully most also have their supporters. While more simple disputes within a community may be solved by a simple vote, this is not the case when the rabbi's authority is questioned – it should be easy to see that if 45% of the community think that the rabbi needs to be fired, there is a serious problem.

Ideally, each community should have a clear protocol for situations like these. However, in practice it is rare for this to be the case. If the community are not capable of solving internal disputes independently, they will need to go to a beis din for arbitration.

A secondary role of beis din

In one recent case, there was no significant dispute within the community who remain united in support of their rabbi. Instead, the main person affected by the rabbi's misbehaviour sued (in beis din) for compensation. After complications resulting from a subsequent dispute about the terms of the compensation agreed between the two sides, another beis din was asked (by both sides) to rule on whether the rabbi should carry on in his position.

I do not plan to pass judgement on the compensation, whose details are not all known to me.[11] However, I do think that some clarification needs to be given as to the role of the second beis din. As in this case no accusation of criminal activity was made, the beis din would not have had any authority (halachic or legal) to enforce the deposing of the rabbi against the will of the community. Their role was purely advisory, making a judgement as to the best way to proceed for the good of all involved.[12]

It is important to realise that this role, while being an important one, is not the standard job of a beis din (or of any court). As such, some of the accusations of partiality made against the beis din (and its spiritual leader) were not particularly relevant. They were not judging between the two parties, merely advising (at the behest of both of them) on the correct course of action.[13]

Individual Responsibility

There is another aspect of this case (and other similar ones) which has more far-ranging repercussions. The fact that a rabbi has acted or even ruled inappropriately does not exempt those who follow him blindly from responsibility. Although one who does not know the halacha himself is supposed to ask a rabbi, wherever possible he should ensure that he understands the reasoning behind what he is being told to do. If something sounds strange, it should be questioned and if necessary, researched independently.

This point can be seen most clearly from the words of Rabbeinu Zerachia HaLevi (1130-1186, Spain & Provence). If a dayan makes a mistake in a monetary ruling between two people, under certain circumstances the dayan is obligated to compensate the one who lost out as a result of his error. If however, the mistake was due to the dayan not knowing an explicit halacha (d'var mishna), he is never obligated. The early commentators differ over the rationale for this distinction.

Rabbeinu Zerachia explains that when the mistake is so elementary, the one who loses out is somewhat responsible for his own loss. If he had done a little research, he could have settled the dispute easily. By failing to do so, he waives his right to compensation.[14]

The Ramban disagrees strongly, claiming that it is not reasonable to expect every person to know the considerable amount of material that the dayanim are supposed to know. Thus even if there is an explicit source which proves the dayan wrong, the litigants are not responsible.[15] However, the clear implication is that if it was within the capabilities of the litigant to discover the dayan's error, the Ramban would agree to Rabbeinu Zerachia.

In our generation, rabbis are all too often relied upon in areas that are well beyond their remit. When a rabbi is asked a question about political or medical decisions that he doesn't fully understand, it is his responsibility to refer the question to the experts in the field. Equally though, those who address these questions to rabbis and not to the relevant professionals, bear full responsibility for the results.[16]


[1] Assuming that this system is fair and not in breach of the Torah. In this post I will not be addressing the question of the government's authority to tackle crime, or of which types of punishment are acceptable.
[2] The deterrent created by punishment is necessary for rabbis as well.
[3] Although the Torah does obligate the king to bring a special korban if he sins, this is his private obligation for a personal wrongdoing and not for what we would call a crime (even when the sin contains an aspect of bein adam l'chaveiro, the korban is not connected to this aspect). Furthermore, the Rambam writes that the king brings an elevated korban due to his elevated status (Moreh Nevuchim 3:46), i.e. in his honour and not because he has a higher level of obligation.
[4] See Sifrei, Parshas Shoftim section 162; Kesuvos 103b; Rambam Hilchos Melachim 1:7. There is a dispute among the poskim regarding whether this is true for Torah-related positions (see Shut Chasam Sofer, Orach Chaim simanim 12-3), but even rabbinical posts were certainly the domain of their occupiers during their lifetimes.
[5] In Israel, most official rabbinic appointments can only be terminated
[6] See Shu"t HaRashba, 5:283 and Rema, Yoreh Deah 245:22. Although the Chasam Sofer writes that the fixed term contracts commonly written for rabbis are only meant for the benefit of the rabbi and the congregation have no right to remove him even at the end of the term (Orach Chaim, siman 206), if it is clearly stipulated otherwise or the prevalent custom is clearly different this would clearly not hold true. The Chasam Sofer himself would not have approved of such a stipulation or custom, but he could not have questioned its legal validity.
[7] One example was the Pnei Yehoshua.
[8] The obligation to honour one's own Rav goes further than the obligation to another talmid chacham – see Yoreh Deah 242-4 for details.
[9] At least in this case, even under the old system the conclusion is that as far as monetary matters are concerned, the rav is subservient to his students (Bava Metsia 97a).
[10] This does not absolve the community of any financial obligations towards the rabbi, especially in cases where the rabbi has moved house or given up a previous job for the sake of the community. It goes without saying that any disputes over these issues must be adjudicated by an independent beis din and not by the community.
[11] I do not even have any idea on what basis the claim for compensation was made.
[12] The full 'ruling' (in Hebrew) can be seen here.
[13] Although even in cases like these, one of the factors that those giving the advice must consider is the outward appearance of the process.
[14] HaMaor HaGadol, Rif Sanhedrin 12a.
[15] Milchamos Hashem ibid.
[16] A while ago I was asked by a reader of this blog what I thought about a certain now deceased rabbi who refused to believe that a certain paedophile was guilty of the crimes that he committed, causing many of his followers to believe that he was safe. I replied that while he certainly made a grave error and bears responsibility for this, he cannot be called a wicked person as I am sure that his intentions were pure. The reader then asked why I would not say the same if a doctor acted negligently with his patients, to which I responded that the doctor is supposed to know better. I was then challenged further that the community that this rabbi served in viewed rabbis as experts in all fields. I answered that if this is the case, the entire community brought this tragedy upon themselves and are as responsible as the rabbi is.