Irreligious Jews

Introduction

The status of Jews who are not observant of halacha is discussed by Chazal in many places. The overall picture one gets is that we are to distance ourselves from such individuals. Many of the obligations we have toward our fellow Torah-observant Jews, do not apply to those who do not view themselves as bound by the commandments of the Torah.[1]

While Chazal also tell us that we must bring people closer to Torah[2] and act in a manner that causes people to love Hashem,[3] it is hard to believe that this was intended to supersede or overshadow the more dominant message of distancing ourselves from non-believers. It appears that Chazal believed it possible to have sufficient of a positive influence on others just by setting a good example from a distance.

However, today a very different approach is taken by almost the entire religious Jewish world. Many institutions exist for the sole purpose of outreach to our non-religious brethren, and much stress is put on showing them our love. Rabbis differ as to who should be involved in these outreach activities and at which stage in their lives, but opposition to the entire concept is rare.

This change did not take place due to ignorance of the words of Chazal, and much has been written to explain why different circumstances call for this different approach. Here my aim is to analyse some of these explanations, examining which of them are persuasive and when, together with some important ramifications.

Ignorance

Chazal tell us that heretics and those who flagrantly transgress in order to anger Hashem should be 'lowered in to a pit' (i.e. killed through indirect means).[4] However, the Rambam writes that this only applies to one who made the decision to rebel of their own accord, following their 'weak mind' and the 'whims of their heart.' The offspring of these people, who were raised as non-believers, cannot be held responsible for their actions, even if they later saw religious practice. Such a person is akin to a Jewish baby kidnapped and raised by non-Jews (Tinok Shenishba).[5]

Today it is generally assumed that most irreligious Jews fall into the category of Tinok Shenishba, as they were not raised with the awareness that the commandments of the Torah are binding. This is the halachic justification for the prevalent attitude towards these Jews, and the logic appears to be sound.

However, there are also a large number of Jews who were raised as religious, but have either left the fold completely or rejected major parts of the Torah. It would appear that we cannot grant these individuals exemption from the punitive measures of Chazal due to ignorance. Yet generally, no differentiation is made between these different categories of irreligious Jews, and we are encouraged to show love to all of them.

Rebuke

Another example of Chazal's attitude to transgressors is their explanation of the Torah's command to assist even a person one hates with the unloading of his overburdened donkey.[6] Chazal question how it can be permitted to hate another Jew, and answer that the donkey owner referred to is one who has transgressed. It is permitted, or according to one opinion, even a mitzvah to hate this transgressor.[7]

The Chafetz Chaim claims that this 'leniency' or mitzvah to hate transgressors does not apply today. He quotes a responsa of Maharam miLublin (1558-1616, Poland), who writes that initially it is forbidden to hate the sinner, and instead one must rebuke him for his actions. Only if the transgressor refuses to accept rebuke and persists with his actions, it is a mitzvah to hate him.[8]

In our times, the Chafetz Chaim argues that no-one is able to give (effective) rebuke, and as such, there is no transgressor who 'refuses to accept rebuke.' Were the sinner to have received effective rebuke, he may have accepted it. It follows that it remains forbidden to hate him.[9]

The difficulty with this is that the concept of there not being anyone able to give effective rebuke is not a new one. This was first stated by R' Elazar ben Azarya, in a beraisa quoted in the gemara.[10] Yet it was never suggested that this exempts us from attempting rebuke, and the halachos of giving rebuke appear explicitly in Shulchan Aruch.[11] The Chafetz Chaim himself, in the Mishna Berura, does not mention any difference in the application of these laws due to the lack of ability to give rebuke.[12]

Certainly, the corollary drawn by the Chafetz Chaim was not applied or even suggested previously. The same responsum of Mahram miLublin quoted by the Chafetz Chaim, states explicitly that if rebuke is not accepted, the transgressor should be hated. Perhaps the Chafetz Chaim felt that our ability to give effective rebuke had diminished further by his generation, but if this were the case, we would have expected an exemption from the mitzvah of giving rebuke.

It should also be added that even were we to accept the claim of the Chafetz Chaim, it is not obvious that his argument remains relevant today. The numerous outreach organisations who devote huge amounts of time on bringing Jews back to religion, clearly believe that it is possible to give effective rebuke.[13] If this is the case, one who has been exposed to such outreach and has not been convinced, does not have the 'excuse' of the Chafetz Chaim for not being religious.

Divine Hiddenness

The Chazon Ish writes that the halacha of 'lowering into a pit' only applied when Divine Providence was clear through regular miracles, and to be a heretic required a unique level of impudence. Then, it was clear to all that killing off these people was a means of sealing a breach for the benefit of society. At a time when faith is lacking even among simple people, applying the same rule would only be seen as destructive and violent, and widen the breach rather than seal it.[14]

Although the Chazon Ish only explicitly writes this difference in relation to killing people, it seems fair to assume that any active sanctioning of transgressors would also be ineffective and therefore should not be attempted. However, this appears only to be for practical reasons. Internally, we should know that the actions of transgressors are as inherently bad as they always were.[15]

Furthermore, it is worth pointing out that the Rambam, Shulchan Aruch and other earlier poskim appear not to subscribe to the position of the Chazon Ish. They do not make any distinction between earlier generations and their own. The Chazon Ish may have felt that in the Middle Ages, Divine Providence was still apparent, and only became hidden relatively recently. The only alternative is that earlier poskim failed to notice the change, or its effect on halacha.

Honest Heresy

There is also another possibility which may have been overlooked by at least the majority of the classical poskim, including the Chazon Ish. Some people may fail to be convinced that they are obligated by halacha, even if they have learnt Torah and don't fall into the category of Tinok Shenishba. They are aware of the Torah's value system, but reject it in favour of alternatives.

Such individuals have always existed, but historically, the assumption was that these people did not honestly deny the truth of the Torah. They followed their evil inclination, despite knowing internally that their path was wrong. Therefore no exemption applied, and they remained subject to all the sanctions Chazal impose on transgressors.

This assumption was likely correct in the overwhelming majority of cases in the past, but today this may no longer be true. From my own experience with people who either used to be religious, or never were but have learned about Jewish religious practice to some depth, many of them appear genuine in their non-belief. Although they are misguided, it is hard to accuse them of knowingly rejecting the truth.

This phenomenon was already noted by the Radvaz in the sixteenth century. He writes that one who makes a mistake in his philosophical analysis, leading to denial of one of the fundamental principles of our religion, is not a heretic.[16]

If it is correct that 'honest heresy' has become more widespread in recent times, and that those who fail to arrive at the right conclusion are not necessarily to be blamed, this means that the responsibility lies with those who know the truth. We must make every effort to ensure that Judaism is presented accurately, and dispel some of the myths which may be preventing others from seeing the light.

Special Privileges?

We have seen several reasons why many transgressors today may not be to blame for their actions, which explains why we do not impose active sanctions on them. However, there is also the issue of certain mitzvos bein adam l'chaveiro, which Chazal tell us only apply towards those who "act in the way of your people"[17] or are "with you in Torah and mitzvos".[18] If we take these phrases literally, it would appear that those who do not keep mitzvos are not included, even if they are not to be blamed.

However, the Meiri writes explicitly that the phrase "with you in Torah and mitzvos" is not to be taken literally, and applies to anyone who is "restrained by religious ways."[19] His main point is that applies to decent non-Jews as well, and in his time (13^th century, Catalonia), he felt that adherents to the prevalent religions (Islam & Christianity) were in general decent people. The same would hold true for civilised secularists today, whether they are Jewish or not.

Although some assert that the position of the Meiri is a lone view, and some even attribute his words to the Christian censors, their criticisms tend to be directed towards the favour shown towards other religions. Apart from this Meiri, I have not seen any discussion of the more fundamental question of the exact meaning of the terminology of Chazal. From the prevalent attitude towards irreligious Jews, it appears that this aspect of the Meiri's words has been accepted by all.

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[1] For example, the prohibition on cursing a fellow Jew does not apply to transgressors (Bava Metsia 48b) and at least in some circumstances, one is not obligated to honour parents who were transgressors (see Bava Kama 94b).

[2] Pirkei Avos 1:12

[3] Sifrei, Devarim 32 (quoted by the Rambam, Sefer Hamitzvos, Asei 3).

[4] Avoda Zara 26b

[5] Hilchos Mamrim 3:3

[6] Shemos 22:5

[7] Pesachim 113b

[8] Shu"t Maharam miLublin, siman 13.

[9] Ahavas Chesed, Margenisa Tava, rule 17.

[10] Arachin 16b

[11] Orach Chaim 608:2

[12] He also quotes the mitzvah to hate heretics in Biur Halacha siman 1. Although it may be possible to differentiate between heretics and those who are just irreligious, this is not straightforward when the rationale is the lack of effective rebuke.

[13] 'Rebuke' in this context does not have to mean 'telling off.' The more educational or even experiential methods of outreach popular today, assuming that they are successful, are also a fulfilment of the mitzvah of giving rebuke.

[14] Chazon Ish, Yoreh Deah 2:16

[15] Although the Chazon Ish himself also quotes the logic of the Chafetz Chaim quoted above, in Yoreh Deah 2:28.

[16] Shu"t Radvaz 4:187. He proves this from the case of the sage Hillel, who believed that there will be no Mashiach, as this potential was already used up in the time of Chizkiyahu HaMelech. See also Mehalchim bein Ha'Omdim (R' Michael Avraham), chapter 34.

[17] See for example Bava Kama 94b, where the gemara says that the son of a thief only has to compensate those who his father stole from if the stolen item is still in his possession, or if the father was repentant and didn't manage to pay before he died. In the second case, the obligation is part of the mitzvah of honouring parents. If the father was unrepentant, there is no mitzvah to honour him by paying compensation, as the mitzvah of honouring parents only applies to those who 'act in the manner of your people.' The poskim dispute whether the same applies to honouring living parents who transgress.

[18] Bava Metsia 59a, Shevuos 30a

[19] Beis HaBechira, Bava Metsia 59a 

What is a 'Kosher Kitchen'?

Introduction

Keeping a kosher kitchen is considered by many to be the baseline of religious Judaism. Many families keep kosher (at least at home) even if they keep little else, often to the strictest standards. This has likely served to preserve Jewish identity for generations, forcing us to stay together and form communities.

Apart from avoiding eating non-kosher food, the laws of kashrus also forbid cooking in utensils previously used for non-kosher. We also may not cook meat in utensils previously used for milk or vice versa. As we shall see, this has a clear source in the Torah, but it can nevertheless be difficult to understand the rationale. As always, I will attempt to provide clarity of the underlying principles as well as some practical ramifications.

Midianite Utensils

The Biblical source for these laws is the command given regarding the utensils taken as spoils from the war against the Midianites, prior to entering Eretz Yisrael:

וַיֹּאמֶר אֶלְעָזָר הַכֹּהֵן אֶל אַנְשֵׁי הַצָּבָא הַבָּאִים לַמִּלְחָמָה זֹאת חֻקַּת הַתּוֹרָה אֲשֶׁר צִוָּה ה' אֶת מֹשֶׁה: אַךְ אֶת הַזָּהָב וְאֶת הַכָּסֶף אֶת הַנְּחֹשֶׁת אֶת הַבַּרְזֶל אֶת הַבְּדִיל וְאֶת הָעֹפָרֶת: כָּל דָּבָר אֲשֶׁר יָבֹא בָאֵשׁ תַּעֲבִירוּ בָאֵשׁ וְטָהֵר אַךְ בְּמֵי נִדָּה יִתְחַטָּא וְכֹל אֲשֶׁר לֹא יָבֹא בָּאֵשׁ תַּעֲבִירוּ בַמָּיִם:

במדבר לא, כא – כג

Elazar the Priest said to the men of the army, who come in to war, "This is the law of the Torah that Hashem commanded Moshe: The gold, silver, copper, iron, tin and lead – anything that comes into contact with the fire, you shall pass into the fire and purify, however it must be cleansed in water of sprinkling. Anything that does not come into contact with fire, you shall pass into water."

Bamidbar 31:21-3

The "water of sprinkling" is the water containing the ashes of the Parah Aduma (Red Heifer), and is needed to cleanse the utensils from ritual impurity caused by contact with a dead body. However, Chazal understand that the purification through fire serves a more mundane purpose – the purging of any non-kosher taste absorbed into the utensils. If a utensil were to be used subsequently without undergoing the required purging, this taste could be ejected into other food, rendering it non-kosher.[1]

Earthenware

Elsewhere, we are commanded to purge any leftover taste of a sin offering from the utensils in which it was cooked. Here, the Torah also teaches us the law of earthenware utensils:

וּכְלִי חֶרֶשׂ אֲשֶׁר תְּבֻשַּׁל בּוֹ יִשָּׁבֵר וְאִם בִּכְלִי נְחֹשֶׁת בֻּשָּׁלָה וּמֹרַק וְשֻׁטַּף בַּמָּיִם:

ויקרא פרק ו פסוק כא

"An earthenware utensil in which it will be cooked must be broken. If it was cooked in a copper vessel, it must be purged and rinsed with water."

Vayikra 6:21

 

Chazal learn from here that food absorbed in an earthenware utensil can never be purged (completely).[2] For this reason, the only option is to destroy the utensil.[3]

Bitul

The Rambam writes that if non-kosher meat was cooked in an earthenware utensil, and this utensil was not destroyed but was instead used to cook kosher meat, this meat becomes non-kosher. If however it was used to cook a different type of food (i.e. not meat), this food is only forbidden to eat if the taste of the (non-kosher) meat is detectable within it.[4]

The reason for this distinction is straightforward to understand. Use of non-kosher utensils only affects the food cooked in them if significant 'non-kosher taste' is transmitted to the kosher food. If this kosher food is not meat, it is possible to determine whether a significant taste is present by means of a simple 'taste test.'[5] However, if kosher meat was cooked in the utensil, the taste of non-kosher meat may not be detectable due to its similarity to the taste of the kosher meat. The 'taste test' is therefore not reliable in this instance.

The Rambam's source for this distinction comes from a gemara that discusses cases where small amounts of non-kosher food fall into kosher food inadvertently. However, this gemara has a solution for the case of non-kosher food falling into kosher food of the same type – the non-kosher food is nullified as long as the volume of the kosher food is sixty times larger.[6]

The Rambam does not give this solution in the case of the food cooked in the non-kosher utensil, presumably because in this case assessing the respective volumes is also not practical. There is no way of knowing how much non-kosher food became absorbed in the utensil.[7] We can only be lenient in the unlikely event that the volume of the kosher food is sixty times larger than the volume of the entire utensil.[8]

The Anachronism

The fundamental principle behind all of the above does not appear to be true in the world today. We use pots to cook a variety of food, and if these pots have been washed in between, we never taste any hint of the previous dish in the current one. Any amount of food that does get absorbed into a utensil is insignificant, and certainly considerably smaller than a sixtieth of the kosher food cooked in it subsequently.[9]

This fact shows that absorption into standard utensils has changed significantly since the war against the Midianites, and since the time of Chazal. This change can easily be explained based on improved quality both of the pots that we use (being smoother and without significant deformities), and of the detergents used to clean them.

The logical conclusion is therefore that the standard utensils of today can be kashered simply by washing them thoroughly with soap. There should be no problem with using the clean utensils of a non-Jew, and not even any need to keep separate dishes for meat and milk. Could this really be true?

As I am sure the vast majority of readers will know, the rabbinic consensus today is not so lenient. Few discuss the possibility that the rules followed for centuries are no longer relevant. Even those who do, are fearful of making significant changes to these rules, and bend over backwards to justify maintaining at least the majority of them.[10]

For me, the most ironic part of this is that even following the old rules to the letter should lead to significant leniencies. Even in the past, if it were possible to determine that no significant taste had been transmitted to food cooked in a non-kosher pot, this would be sufficient in order to allow consumption of the food. There should be no difficulty in making such a determination nowadays.[11]

Intentional Nullification

While many of the justifications given for following the old rules appear spurious at best, there is one point which is worthy of discussion. Even if no taste absorbed in a utensil will ever be significant enough to forbid the food cooked in it, does this necessarily mean that intentionally causing a transmission of this small amount of food is permitted?

The usual rule is that we may not 'nullify a prohibition intentionally' (אין מבטלין איסור לכתחילה). Would the use of a non-kosher utensil, causing the forbidden taste absorbed in it to become nullified within the kosher food cooked, fall under this prohibition?

This exact question is already debated by the rishonim. The Rashba writes that if the amount of non-kosher food absorbed into a utensil is so small that its taste will never be noticeable in other food, cooking in this utensil is permitted and there is no issue of 'nullifying a prohibition intentionally.'[12] However, the Ra'ah strongly disagrees.[13] The Shulchan Aruch rules leniently in accordance with the Rashba,[14] while other poskim advocate stringency.[15]

It would therefore appear that there is some basis for continuing to be particular about using only kosher utensils, and for keeping separate utensils for meat and milk.[16] However, when things go wrong and the wrong utensils are used inadvertently, this should rarely render the food non-kosher.[17]

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[1] See for example Avoda Zara 75b.

[2] Pesachim 30b

[3] Returning the shards to the furnace will remove the absorbed taste and it is then possible to recraft a new utensil. See Zevachim 96a.

[4] Hilchos Ma'achlos Asuros 17:1

[5] This test would have to be administered by a reliable non-Jew (see footnote 11 below for details).

[6] Chulin 97a-b

[7] See Radvaz on the Rambam, who gives this explanation.

[8] See Shulchan Aruch, Yoreh Deah 98:4.

[9] See https://faculty.biu.ac.il/~fixeled/FixlerFrankBliea.pdf for a study (in Hebrew) on amounts of food that do get absorbed into utensils. Although the study concludes that such absorption does take place, it concedes that the amount is certainly less than a sixtieth (although as we have written above, this is clear without the need for this study). At the end of the article, letters from various contemporary poskim are added, some of which support the position that I put forward here.

[10] See for example https://ph.yhb.org.il/17-32-08/.

[11] The classic way to make this determination was to ask a non-Jewish expert cook to taste some of the food and to tell us if he could discern the relevant taste. Although the Ashkenazi practice was not to rely on the testimony of a non-Jew (see Rema, Yoreh Deah 98:1), Sefardi tradition does accept such testimony. Once a Sefardi eats the food, relying on the non-Jew, and confirms that there is no non-kosher taste, an Ashkenazi can take the word of the Sefardi. In reality, as today we know that neither the non-Jew or the Sefardi will discern any non-kosher taste, this whole process can be dispensed with and the food should be permitted without the need for any 'taste test.'

[12] Toras HaBayis, Bayis 4, Sha'ar 4.

[13] Bedek HaBayis there.

[14] Yoreh Deah 99:7; 122:5

[15] Shach and Taz there. See also Bi'ur HaGra

[16] Although it is also quite possible that even the stringent rulings of the Shach and Taz were only relevant in their times. In a world when most non-kosher utensils were capable of imparting taste to food, they felt that it would not be appropriate to make a distinction regarding exceptional cases. Today, when utensils never impart taste to food, it is harder to justify this stringency.

[17] The utensil may need kashering in the traditional manner, or may even need to be discarded when kashering is not possible, based on the stringency discussed above.

Breaking the Rules

Introduction

The Torah contains a large number of commandments, covering many different aspects of our lives (as well as many that are not obviously relevant to us, depending on historical and personal circumstances). Inevitably, sometimes these commandments will conflict with each other, and there are several halachic principles that we must follow to determine what we should do in these circumstances.[1]

At other times, there may be no conflict between formal commandments, and the halacha may be straightforward, but there is nevertheless a dilemma as to how to proceed. It may seem surprising to some, but there are (rare) occasions where following the halacha is not the correct option. The purpose of this post is to clarify this point.

Prophecy

We will start with what appears to be an example of conflict within halacha. We are commanded to follow the instructions of a prophet:

נָבִיא מִקִּרְבְּךָ מֵאַחֶיךָ כָּמֹנִי יָקִים לְךָ ה' אֱ-לֹהֶיךָ אֵלָיו תִּשְׁמָעוּן:      (דברים יח, טו)

"Hashem your G-d will establish for you a prophet from among you, from your brethren, like me. You must listen to him."

Devarim 18:15

What happens if the prophet instructs us to transgress a commandment? Chazal tell us that provided that the instruction is only temporary, for the needs of the time, we must listen.[2] The paradigm example was the instruction of Eliyahu HaNavi to bring a sacrifice at Mount Carmel, in violation of the prohibition on bringing a sacrifice outside the Beis HaMikdash, in order to demonstrate the existence of G-d and the futility of Ba'al worship.[3]

In this case, for the people instructed by the prophet, there is a conflict between the commandment to listen to the prophet and the prohibition of sacrificing outside the Beis HaMikdash. There is also a clear rule that tells us how to resolve the conflict. But what about the prophet himself? How does he decide that it is necessary to disregard a Torah prohibition?

One obvious possibility is that the prophet never can make such a decision unilaterally. We must follow the prophet only because he speaks in the name of G-d, and we can rely on him not to give such an instruction without being told explicitly to do so. However, this assumption may not be correct.

The gemara attempts to derive from the case of the prophet that the Chachamim have the right to uproot a Biblical commandment. This derivation is rejected as being over-generalised, as the prophet can only act in this way in order to address the specific needs of the time (not to uproot a commandment permanently). Crucially, the gemara concludes that a beis din has the same power, and can impose punishments not mandated by the Torah based on the needs of the time.[4]

The clear implication is that there sometimes is a necessity to suspend halacha, even without Hashem's explicit command. Tosfos explain that prophecy could never be critical to this, as after the Torah was given, prophets have no right to add anything.[5] In the case of Eliyahu, prophecy may have been required in order to rely on fire coming down from heaven,[6] but this is a mere technicality.

We can conclude that a prophet or beis din does have the authority to disregard halacha at times of severe need.[7] Obviously, careful deliberation will be required to determine when this is necessary. By definition, there is no rulebook that can decide this.

Aveira Lishma

There is not always a prophet or beis din available to decide when a particular situation is severe enough to require extreme action. The truth is that when required, even an individual may need to take the law into his or her own hands. No law book, even one given by Hashem, can provide the correct guidance in 100% of situations in a format comprehensible to humans.[8]

Chazal provide just one explicit example of this. When the Cana'anite general Sisra fled from battle, he reached the tent of Yael, the wife of Chever HaKeini, a descendant of Yisro. He asked for water, and despite being a married woman, she proceeded to seduce and then kill him, thus playing a significant role in the saviour of the Jewish People from the Cana'anim. Speaking of this act, Chazal comment, "An aveira with the right motivation (lishma) is as great as a mitzvah with ulterior motivation."[9]

The concept of aveira lishma was misused by Shabtai Tzvi in the 17^th century with devastating effects. In the 19^th century, certain Chasidic commentators applied the term to the relationship of Zimri with the Midianite princess Kozbi,[10] and to David HaMelech's relationship with Batsheva,[11] despite both of these things being explicitly criticised in Tanach.[12]

Such abuse of the term, whether by action (in the case of Shabtai Tzvi) or through commentary alone, was criticised severely, and rightly so.[13] However, this does not mean that we can erase the entire concept, and we must recognise that there are instances in which halacha must be 'overruled.'

Contemporary Examples

It is difficult to provide contemporary examples similar to that of Yael, but this is not because they don't exist. Israeli government officials, from unknown spies up to the prime minister, will frequently need to break Shabbos and likely commit other 'transgressions', even when there is no clear-cut or immediate danger to life. A modern country simply could not function without this. Judgement regarding when this is necessary can usually only be made by the individuals involved, and the details usually cannot be public knowledge.

There may also be potential to apply the concept of aveira lishma in some difficult situations where halacha could cause family breakdown, or prevent people from starting families. Many rulings in these areas use forms of 'halachic gymnastics' in an effort to be lenient. Committing an aveira lishma, or even advising someone else to do so, may well be a better option than falsifying halacha.[14] It is impossible to give a formula as to when aveira lishma would be appropriate in these cases, and each case must be judged on its merits.[15]

I had also originally considered the case of doing melacha on Shabbos to save a limb, as a potential case of aveira lishma. However, upon further reflection, this case does have a valid solution within halacha (details below).[16]

One of the main difficulties in applying aveira lishma to situations such as the above is in ensuring that the act is indeed carried out lishma (with pure intentions).[17] This is especially difficult when the main beneficiary of the aveira is the person committing it.

In practice, the overwhelming majority of us are unlikely to be faced with a situation that requires an aveira lishma. Nevertheless, being aware that the concept exists is important for a broader understanding of the Torah and of the limits of what is expected from us.

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[1] Examples of this are the rule that a positive commandment 'pushes aside' a negative commandment (provided that certain conditions are met) and that saving a life takes precedence over almost every other commandment.

[2] Also provided that the prophet has established himself by performing a 'sign or miracle.' See Rambam, Hilchos Yesodei HaTorah 7:7 and all of chapter 10 for details.

[3] Yevamos 91a.

[4] Yevamos 90b

[5] Quoting Megila 2b.

[6] This is the explanation of Tosfos in Yevamos, and is supported by the Yerushalmi in Ta'anis 2:8, which says that Eliyahu acted fully, based on the command of Hashem. However, Tosfos in Sanhedrin 89b (ד"ה אליהו) considers the possibility that Eliyahu acted independently, and this question is also debated by the commentaries on Melachim 1, 18:36.

[7] At least in theory, this applies even to Batei Din today who do not have semicha (in the original sense of the term). However, it is limited to Batei Din recognised by the community as having power (see Choshen Mishpat 2:1 for details), and whether such Batei Din exist today is questionable.

[8] In general, halacha must be followed even when the underlying reason for a particular halacha does not apply. I explained in Eternal or Obsolete?, quoting the Rambam (Moreh Nevuchim 3:34), that it is usually necessary to have one rule for everyone and for all generations, even if this causes damage in a minority of cases. However, in extreme cases, this damage will be so severe as to necessitate breaking the ordinary rules and relying on us understanding that this is a one-off.

[9] Nazir 23b, based on Shoftim 5:24.

[10] See Mei HaShiloach at the beginning of Parshas Pinchas.

[11] See for example R' Tzadok HaKohen MiLublin, Divrei Sofrim 28.

[12] The application to Zimri is particularly objectionable, as Chazal in Nazir 23b explicitly contrast the praiseworthy act of Yael with the perverse act of Zimri.

[13] See for example Ramchal in Kinas Hashem Tzva'os volume 2, Inyan Yael; R' Chaim miVolozhin, Keser Rosh 132.

[14] As these areas of halacha are today usually under the control of beis din, who are expected to issue written halachic rulings, this option may not be practical. By definition, a halachic ruling cannot permit an aveira lishma, as an aveira lishma involves a transgression of halacha.

However, one example in which the ultimate decision remains in the hands of the individual is the case of a wife who confesses to committing adultery, without there being sufficient evidence for beis din (or the husband) to confirm this. The halacha is that she is not believed, due to the concern that she has fabricated the story in order to marry someone else (see Nedarim 90b, Shulchan Aruch Even HaEzer 115:6). Therefore, if the husband is unconvinced that adultery has been committed, he is certainly not obligated to divorce, and beis din will tell the wife that she may stay with her husband. The wife herself will know the truth, and in extreme circumstances may be justified in staying with her husband, on the grounds of aveira lishma.

[15] Prevention of family breakdown or facilitating marriage clearly cannot be used automatically as a justification for an aveira lishma; the existence of laws like mamzerus, which prevent or break certain marriages in their very essence, certainly have a purpose.

[16] Melacha on Shabbos is in principle forbidden even to save a limb, according to the simple reading of the gemara, the vast majority of rishonim and the Shulchan Aruch. Nevertheless, today the consensus is to rule leniently. The justification given for this is that today's medical knowledge tells us that whenever a limb is at risk, there is also at least a small risk to the person's life.

While I never disputed the risk involved to human life, I believed and still believe that Chazal were also aware of this (people died after losing limbs in the past as well). Although melacha is permitted on Shabbos even when there is only a minority chance of it being required in order to save human life, my impression from Chazal is that this is only true when this chance is significant (see for example Yoma 84b, Shulchan Aruch Orach Chaim 329:2). When a limb is at risk, the risk of death is often not significant enough to permit melacha on Shabbos according to Chazal.

However, if we were to follow Chazal here, this would have disastrous consequences. In today's world, if Judaism required sacrificing a limb when necessary in order to keep Shabbos, we would be viewed both externally and internally as similar to cults that require child mutilation and other despicable practices. One could therefore make an argument for breaking Shabbos to save a limb as a form of aveira lishma.

After further consideration, I concluded that in fact we do not need to resort to aveira lishma in this case. It is true that Chazal did not consider potential loss of a limb to be a significant risk to life, but this is because 'significant risk' is relative to the conditions of the time. When life expectancies were low, and the chances of any person dying within the coming year were relatively high, the additional risk to life caused by the potential loss of a limb was indeed not especially significant. This is no longer the case, and in our times, it is quite possible that Chazal would agree with the view of modern poskim.

[17] This was not in question in the case of Yael, who risked her life in order to save the Jewish People. 

Baruch HaTov VeHameitiv

A relatively short halachic observation this time, in my mind for personal reasons.

Introduction

Chazal instituted a variety of brachos to be made to thank Hashem for possessions, geographical features of the Universe, life events and more. Some of these brachos are made only in very specific and clearly defined circumstances, such as the bracha made upon sighting the New Moon each month (colloquially known as kidush levana). Others, such as the bracha of shehechiyanu, are made on many occasions, and some thought is required to identify the common denominator between these occasions.

A bracha that is similar to shehechiyanu, but made less frequently, is the bracha of hatov vehameitiv.[1] This bracha is made upon hearing good news or acquisition of new items, where the person hearing is not the sole beneficiary. Examples explicit in the Mishna and gemara are when rain falls and the person owns farmland in partnership with another, joint purchase of a new house or utensils, inheritance, and drinking a new type of wine together with others.[2]

The final explicit example is when a baby boy is born to a couple.[2] The clear implication is that no bracha should be made upon hearing of the birth of a girl. This halacha would have been easily understandable in the ancient world, as the birth of a girl was simply not considered good news.[3] Good news is defined subjectively rather than objectively,[4] such that this halacha is only an indicator of the then prevalent attitude to the birth of a girl, and not necessarily of an objectively 'correct' attitude.

Subjectivity and Modern Application

By the early 20^th century, perceptions appear to have changed significantly. The Mishna Berura writes that although the bracha of Hatov Vehameitiv is not said on the birth of a daughter, it is obvious that shehecheyanu should be said the first time one sees his daughter. He argues that this is no worse than seeing a friend for the first time in 30 days, where Chazal tell us that the bracha of shehecheyanu is said.[5]

Although this may have been obvious to the Mishna Berura, I find it extremely difficult to accept that recitation of Shehecheyanu after the birth of a daughter was so obvious to Chazal and poskim preceding the Mishna Berura to the extent that they did not even see the need to write it. Furthermore, the analogy to seeing a friend after 30 days is questionable – the experience of being reunited with an old friend is very different to that of the birth of a child, who the parents have never met before.

It is therefore clear to me that the Mishna Berura simply was not comfortable with the idea that the birth of a daughter could be passed off as a non-event (a similar feeling felt I am sure was felt by many of us the first time we encountered this halacha). By his time, the worth of women simply had to be celebrated, even if full equality was still a long way off.

This position has been accepted at least in part by almost the entire Jewish world. While some poskim disagree with the Mishna Berura and write that no bracha should be said on the birth of a daughter,[6] festive celebrations of the birth of a daughter are the norm in all sections of our society. There is no doubt in my mind that this represents a change from ancient times.[7]

It is also clear that this change has continued past the time of the Mishna Berura, and in today's society, many (if not all) Orthodox Jews experience equal degrees of joy from the birth of male and female children.[8] The logical conclusion is that the ruling of the Mishna Berura, perhaps radical in his time, is now anachronistic. The correct bracha to say after the birth of any child is Hatov Vehameitiv, as long as the parents consider this 'good news.'[9]

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[1] The full bracha is ברוך אתה ה' א-להנו מלך העולם הטוב והמטיב, not to be confused with the much longer version said as the fourth bracha after a meal (although clearly both brachos thank Hashem for the good He has given us).

[2] Brachos 59b. When the person hearing is the sole beneficiary, the bracha of shehechiyanu is made.

[3] See also Kiddushin 82b. While this was the prevalent view even then it was not unanimous – see Bava Basra 141a.

[4] Although the Rashba writes that the bracha is only made on tangible benefit and not on any good news. A son typically provided tangible benefits to his parents in their old age and by taking care of their burial (daughters were historically less able to do so), and 'every person desires to have an inheritor' (Responsa 4:77).

[5] Mishna Berura 223:2

[6] See for example Mishne Halachos 13:32

[7] In the above responsum, the Mishne Halachos points out that Ri ben Yakar felt it necessary to tell people not to make the bracha of Hadayan Haemes (said upon the receipt of bad news) on the birth of a daughter.

[8] In my view, this change is a positive one and an example of the progress made by humanity. However, the halachic ramifications would be true even were the change to be neutral or even negative.

[9] Even if the happiness experienced is not 100% equal after the birth of a boy and a girl.