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.
[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.
[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.
[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.
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