Separation of Powers (repost)

I am reposting as this topic has become the main focus of Israeli current affairs over the past months, and some of the questions discussed below may be becoming more than just theoretical. To the below I would like to add just two points.

1. Whatever the balance of power is between the government and the judiciary, if those with the power do not act with integrity, there is no hope. Any system relies on such basic integrity, which has been so lacking and has been a significant factor in the breakdown of relations (I think almost everyone agrees to this, just of course each side blames the other for lack of integrity). If both the general electorate and the committees for selecting judges would seek 'men (or women) of truth' as a base requirement, rather than those who are on 'our team,' we would be in a much better place.

Edit (02/10/2023)

Unfortunately the original point 2 is no longer relevant, so I have crossed through and replaced with an alternative:

2. On a more positive note, while many on both sides are unwilling to discuss or negotiate, there has been a movement towards setting out reasoned arguments rather than just parrotting cliches. I get the sense that at least behind closed doors, the more sensible representatives of the various factions are listening to the arguments of others and refining their own proposals, such that there is hope that we will reach an arrangement that will ultimately improve the situation for all (or at least most).

2. Religious Jews (and others) should avoid making claims about whether the Torah is for or against the proposed reforms. The reality is, as explained below, the system of the Torah is very different both to the current system in Israel, and to any alternatives being proposed, such that inherently, the Torah is neither for or against. The debate should be regarding which system will work the best in the situation we find ourselves in, and this principle should be agreed to by those who accept the Torah and those who don't.

The Original Post (published 02/07/2020)

Over the past years, many laws passed by the Knesset have been revoked by the Supreme Court. Fierce arguments have been made within the legislature, judiciary and press regarding whether this process is desirable or acceptable in a democratic country.

This blog is not the place for these discussions, which are political in nature. At present, there has been tacit acceptance of the situation from the Knesset, and there is no real struggle for power between it and the Supreme Court.[1] While many individual Knesset members have expressed the need to adopt such a struggle, as yet no law has been passed which would limit (or clearly define) the current powers of the judiciary.

The question that I do feel has a place here is what would (or should) happen if a head-on clash does develop. If, for example, the Knesset legislated clearly that the Supreme Court will no longer have the right to revoke the laws that it passes,[2] and the Supreme Court attempted to revoke this new law, we would have a real battle on our hands.[3]

The government (the executive, who are responsible for implementing law) would need to decide whether to follow the Knesset (the legislature) or the Court (the judiciary). As the majority of the significant figures in the government are themselves part of the Knesset, we may expect them to be more sympathetic to their own decisions. However, in a situation so charged, it would be hard to predict whether rebellions (by the army, police, teachers, doctors and whoever else would normally take orders from the government) would prevent these decisions being carried out, leading to anarchy.

The Torah System

Any system based on separation of powers potentially faces similar questions. The Torah system also faces such an issue, despite having a completely different separation.

According to the Torah, the Sanhedrin fulfils a legislative role, albeit on a different scale to that of most modern democracies. The Sanhedrin is limited by an extensive constitution (the Torah, both Written and Oral), but has the power to make new institutions. The Sanhedrin is also entrusted with the interpretation of the Torah (the judicial role) and enforcement of law (the executive role).[4]

However, this is only one part of the picture. The king also has a part in all of the three roles (legislature, judiciary and executive). He can issue edicts, which are binding as long as they do not contradict the Torah.[5] He acts as a judge,[6] at least in respect to the laws that he makes.[7] Finally, implementation of laws and policies is the king's primary responsibility.[8]

The result of this is that within the Torah system, although there are no power struggles between legislature and judiciary (there is no separation between the two), there is a potential possibility of major clashes between the two bodies involved in both roles. However, as we shall see, the Torah (our 'constitution') also defines who has the power in different areas, and lays down rules for situations when agreement cannot be reached.

Defined Roles

The impression one gets from the examples in Tanach is that the legislative power of the king is a temporary one. He can instruct a person to undertake a task for him; he can also forbid a person from performing a particular action or from leaving a town or area. These commands are limited by the authority of the king who gives them, and become obsolete automatically after he dies.[9]

The Ran explains that the Sanhedrin has jurisdiction over Torah law, whereas the king's authority is in areas that are not Torah-related. We are no different to any other nation regarding the necessity to ensure that order and efficient management are maintained, and this is the responsibility of the king. As these requirements change with time, they cannot be fully covered by the Torah.[10]

There are also some areas of overlap. The Mishna tells us that if a king wants to wage a war that is not mandated by the Torah, he requires the permission of the Sanhedrin.[11] The same is true if he wishes to extend the boundaries of Jerusalem, or the courtyards of the Beis HaMikdash.[12] These decisions must be based on both Torah and national interests, so require both parties.

Despite the separation of roles, there would appear to be a clear hierarchy here. As the representatives of the Torah, the Sanhedrin can decide that the king's action are in breach of the 'constitution' and thus invalid. This can also be seen from the rules for appointing a king – the Sanhedrin must approve the decision.[13]

A Spiritual Leader

A potential difficulty with the Ran's approach is that Tanach seems to attach a great deal of importance to the spiritual level of the king. The Torah warns clearly that the king must study Torah and govern according to its words.[14] Throughout Sefer Melachim, perhaps the most persistent theme is that virtuous kings bring with them the assistance of G-d and vice versa, while the standard of the Sanhedrin is never mentioned explicitly.

I believe that the resolution to this lies in a more precise understanding of the respective roles of the Sanhedrin and the king. The Sanhedrin is the representative of the Torah (i.e. Hashem's word), charged with imparting it to the world and the Jewish People in particular.[15] The king is the representative of the people, responsible for leading them in both their physical and spiritual endeavours.[16]

Thus, when it comes to questions of halacha, the Sanhedrin is the sole adjudicator. However, the king is the person entrusted with ensuring that the Jewish People keep to the Torah. As a barometer for the spiritual level of the nation, he is far more significant than the Sanhedrin.

Furthermore, although the king may not sit on the Sanhedrin even if he is learned enough to do so,[17] a worthy king will take an active interest in the actions of the Sanhedrin and put ideas before them. Chazal tell us that the prohibition against the seclusion of a man and an unmarried woman was made following the incident of Amnon and Tamar.[18] Although they do not say explicitly who made this decree, the Rambam writes that it was "David HaMelech and his Beis Din."[19]

Practical Concerns

Chazal were also aware that practically, the one giving orders to the army and other officials would often have more power than the Sanhedrin. For this reason, the Mishna teaches us that a king cannot be tried in court.[20]

The gemara clarifies that this rule does not apply to the righteous kings of the House of David, as there is no inherent reason why a king cannot be judged. However, Chazal forbade judging the kings of Israel (the Northern Kingdom), after an incident involving a servant of Yanai, a wicked king in the times of the Second Beis HaMikdash.[21] Yanai used his power to influence the ruling of the majority of the judges, and when the head of the Sanhedrin, Shimon ben Shetach, realised this, he cursed the corrupt judges and the angel Gavriel crushed them to death.

At this point, Chazal realised that although in an ideal world no-one is above the law, when attempting to enforce this is futile we are better off accepting some level of injustice. They stepped in and instituted that a king cannot judge or be judged.[22]

Conclusion

If there ever were (or will be) power struggles between the king and the Sanhedrin, the Sanhedrin should have the upper hand. Whether or not this actually happens will ultimately depend on how God-fearing the king is, which will often be a function of the level of the nation as a whole.

Although the democratic system of today is worlds away, there are parallels to be drawn. The legislature, elected by the people, perform a similar role to the king – they are our representatives and their performance is to a significant degree a reflection of the character of the nation. One who perceives secular law in a similar light to that which we see the Torah in, may insist that the judiciary should be above the elected officials. Ultimately, the government decides whether to accept this position or not.

---

[1] The one exception that I can think of was the refusal of the Speaker of the Knesset to abide by a court ruling ordering a vote on his own position. As he instead resigned his post, the short-term effect of this decision was negligible, although many claim that this created an important precedent. Time will tell.

[2] Making this new law a 'Basic Law,' which would not be deferential to any existing laws.

[3] I will not discuss here whether this situation should be avoided at all costs, and if so who is responsible for preventing it.

[4] See Rambam, Hilchos Sanhedrin 1:1 who writes that the actions of the 'policemen' are on the sole instructions of the judges.

[5] Rambam, Hilchos Melachim 3:8-9, based on Sanhedrin 49a.

[6] Ibid. 4:10

[7] See Torah Temimah, Devarim 17:19 (footnote 94).

[8] This is clear throughout Tanach. The Torah requires the king not just to be responsible for implementation, but also to play an acting lead role. See Bamidbar 27:17.

[9] The Scriptural source of this power, in Yehoshua 1:18, indicates that the only transgression involved is disobedience.

[10] Drashos HaRan, Drush 11. The Ran actually writes that the purpose of the mitzvos of the Torah is entirely unrelated to keeping order and efficiency, but the distinction that he draws remains valid even if we dispute this point (as the Rambam and others do – see Torah and Morals).

[11] Sanhedrin 2a and 20b.

[12] Ibid. See also Shevuos 14a, where we are told that making these additions also requires the approval of a prophet and the Urim v'Tumim.

[13] Tosefta, Sanhedrin ch. 3. The members of the Sanhedrin themselves are appointed internally; see Rambam Hilchos Sanhedrin 2:8, based on Tosefta, Horayos ch. 2.

[14] Devarim 17:18-20

[15] See How does halacha work?

[16] Although the king is supposed to be chosen by Hashem (Devarim 17:15), and for this reason the Sanhedrin's approval is required, it is ultimately the people who appoint him (see Ramban ibid., who struggles with the apparent contradiction between Hashem choosing the king and at the same time giving instructions as to who the people may appoint).

[17] Sanhedrin 18b. The reason is a technical one – were the king to be part of the Sanhedrin, the other members would likely be scared to argue with him.

[18] Sanhedrin 21a-b.

[19] Hilchos Isurei Biah 22:3.

[20] Sanhedrin 18a.

[21] It appears that 'kings of Israel' does not refer solely to the kings of the Northern Kingdom – Yanai lived long after their demise. This term was used to describe any non-Davidic kings, or perhaps even descendants of David HaMelech who did not follow in his path. The Sanhedrin would need to decide at the time whether it would be productive to try the king in court.

[22] Sanhedrin 19a-b. I will leave it up to the readers to judge whether any comparisons can be made to contemporary events.

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.

---

[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.