Protecting Criminals

Disclaimer: While this is strictly a blog for spreading Torah, this particular post is light on Torah sources as the source for much of this material is common sense. The main Torah-related claim here is that no part of the Torah contradicts anything I have written here - if anyone disagrees (and I know that they do), I would be happy to hear their arguments and refute any such reading of Torah sources.

Introduction

Every nation produces criminals, and the Jewish People is no exception. When we have lived autonomously, we have always had methods of fighting crime internally, whether through the punishments that exist within halacha or through the power given to our leadership to institute extra measures where necessary.[1]

Over the past few hundred years, Jews were gradually granted the same protection given by states to their non-Jewish citizens.[2] The flip side of this was the loss of Jewish autonomy, and the need to rely on the state for law enforcement. I already wrote in You shall pursue justice that under these circumstances, provided that the non-Jewish (or non-religious) criminal courts act fairly, reporting crime to the relevant authorities is certainly permitted (not doing so would usually be irresponsible).

Even in modern countries today, there are some cases where non-Jewish courts do not act fairly. In one case a few years ago, the Jewish fraudster Sholom Rubashkin was sentenced to jail for a disproportionately long period in the US and appropriately, a long and ultimately successful campaign was fought to secure his release.[3] Just as parents should love and care for their children despite any misdemeanours that they might commit, the Jewish People must not turn its back on Jewish criminals.

This is, however, no excuse for treating criminals as heroes. Sadly, much chilul Hashem has been caused by Rubashkin going on several well-attended speaking tours of Jewish communities across the world (for the avoidance of doubt, his talks are about trusting in Hashem and not about doing teshuva for his crimes).

Other cases are less clear-cut, for various reasons. This post will deal with a few examples of some high-profile Jewish criminals and alleged criminals, and the issues that they raise.

Espionage

Jonathan Pollard is viewed in Israel in an overwhelmingly positive light. Not only was he imprisoned for an anomalously long period, the popular view is that the only crimes he committed were to mitigate misconduct on the part of the US government, who were endangering Israel's security by withholding information. If this were true, his actions were wholly justified and there would not be much to discuss.

This narrative is strongly disputed, and the reality is that the nature of the field prevents us from knowing the whole truth. We can however point out a few general principles. Firstly, in theory, espionage should never be necessary between true allies. Information that is critically important to know should be shared, and this should not cause any damage to either party. Similarly, just as individuals are entitled to privacy where appropriate, countries should respect each other's right to keep some information private where it is not critical for security.

In practice, 'true allies' are at best hard to find and possibly non-existent. It is a well-known adage that countries have no friends or enemies, only interests. If espionage is an established feature of international politics, no-one should be surprised or appalled if they become a victim of it. If enlisting a citizen of an allied country to spy on that country is a tactic used by the US, imposing such a severe penalty on a US citizen for performing the same service for an allied country is morally problematic.

Either way, in this case Israel decided to conduct espionage of this nature. Whether this was right or wrong, the country owes a debt of gratitude to the person who helped them. It is therefore understandable that the country honours Jonathan Pollard, and that Israeli citizens trust the judgement of their government regarding an issue that is subject to many unknowns.

Extradition

Sometimes it is clear that an individual should face trial for a crime committed (or allegedly committed), but there is a question as to where this trial should take place. Typically, this will occur when a criminal flees the country in which the crime was committed. At least in principle, most countries accept the idea of forcibly returning the offender, so that they can be tried by the relevant country's legal system.

The reason for this is that different laws apply in different countries. Some actions may be illegal in some countries and permitted in others (e.g. jaywalking or bigamy); even heinous crimes like murder are treated with varying severity depending on the country. States generally accept the jurisdiction of other states over crimes committed within their borders, so that the laws of each country only apply within that country's borders.

It is therefore usually not legally possible for a court in one country to try someone for crimes committed in another. This has the potential for allowing criminals to escape justice by fleeing, and in order to prevent this, many countries enter into extradition treaties.

From a Torah perspective, halacha governs all relationships between Jews, and the jurisdiction of beis din extends to crimes committed all over the world. There may be questions over which beis din should try a case, but this is probably dependent on where the defendant lives rather than on the place the crime was committed.[4] It would therefore seem that at least in an ideal world, where crimes are tried by beis din, there is no halachic basis for extradition.[5]

As has already been mentioned, in the non-ideal world that we live in, batei din have no jurisdiction over criminal cases and we rely solely on the secular legal system to enforce law and order. Extradition is a part of this system, and until the restoration of Torah law, we likely have no choice but to accept it.

However, even according to secular law, extradition is not automatic. The host country will usually also take reasonable steps to ensure that the criminal or alleged criminal will be treated fairly before turning them over. For example, some countries will not extradite when there is a risk of the death penalty being imposed. Some countries never extradite their own citizens, usually instead allowing prosecution of citizens for crimes committed abroad.[6]

Israel is slightly anomalous in this regard. Israeli law allows extradition of its citizens subject to certain conditions, while also allowing prosecution of Israeli citizens for crimes committed abroad (this requires the approval of the Attorney General). Where relevant, the first option is preferred.

This raises serious halachic and moral questions, as leaving Eretz Yisrael on a long-term basis is forbidden.[7] Although there are exceptions to this, forcing a Jew out of Eretz Yisrael is certainly not permitted. Returning to our earlier comparison, this is like parents evicting a child from their home. It would seem that we should make every effort to change this law.

The reality is that the law did used to prohibit extradition of Israeli citizens. In 1997, Samuel Sheinbein committed a horrific murder in the US and fled to Israel, where he had dual citizenship. The high court ruled that he could not be extradited, and he was instead given a jail sentence and imprisoned in Israel (he was later killed in a shootout after opening fire on prison officers with a smuggled gun).

This whole episode caused a rift between Israel and the US, and eventually led to the law being changed. In 1999, the law was amended to apply only to Israeli citizens who were also resident in Israel. In 2001, a further amendment was made to allow the extradition of Israeli residents for trial, on condition that the criminal would return to Israel to serve any jail sentence.[8]

This last amendment passed in the Knesset without objection, either from religious or non-religious parties.[9] One can only assume that there was a consensus that preserving a good relationship with the US was worth the price of forcing one or two criminals out of Israel. If even one life was saved by this, I would agree.

Jewish Oligarchs

In the past weeks, many individuals and entities with links to Vladimir Putin and the Russian Government have been sanctioned by much of the international community. The aim is to prevent those who aid the atrocities committed by Putin and Russia in Ukraine, either directly or indirectly, from being able to live as normal. The hope is that this will pressurise these individuals, and Putin himself, into ceasing their actions.

Israel has been faced with a difficulty in relation to some of the Jewish oligarchs close to Putin. Many of these have Israeli citizenship, and some may already be living in Israel. The tax breaks offered to new olim have long been an incentive for these individuals to reside in Israel or to base their assets here, and this has presumably been of some benefit to the Israeli economy.

While it is right that Israel's doors are open to all Jews, it should be obvious that this should not obstruct efforts to stop the mass murder of Ukranians (some of whom also happen to be Jewish).[10] There is not even any conflict between the two – if Jewish Russian oligarchs want to live in Israel, they have the option to make this possible by cutting ties with Putin and the Russian government.

To date, Israel has failed to impose the same sanctions imposed by other countries. In my view, the only possible justification for this is the belief that this may allow Israel to act as a mediator between the Russians and the Ukranians, ultimately limiting the murder. I have serious doubts as to whether this is the case or even plausible, but I am no expert.

Some are arguing that avoiding animosity with the Russians is necessary to preserve our own interests. Our military operations against Iranian targets in Syria are made possible by the Russians turning a blind eye, and thus antagonising the Russians endangers our own security.

I reject this argument. While I do not know the fine details of the relationships between Iran, Syria, Russia and Israel, I believe that it is safe to say that any threat posed by Russia to Israel is not remotely on the same scale as the real and present danger to Ukrainians. Appeasing the Russians at a time like this for speculative gains in the long run, is not a position becoming of the people who are supposed to be a light unto the nations.

וְשָׁפַט בֵּין הַגּוֹיִם וְהוֹכִיחַ לְעַמִּים רַבִּים וְכִתְּתוּ חַרְבוֹתָם לְאִתִּים וַחֲנִיתוֹתֵיהֶם לְמַזְמֵרוֹת לֹא יִשָּׂא גוֹי אֶל גּוֹי חֶרֶב וְלֹא יִלְמְדוּ עוֹד מִלְחָמָה:

(ישעיה ב, ד)

"He will judge between the nations and rebuke many peoples, and they will grind their swords into spades and their spears into sickles. A nation will not raise a sword to another nation, and they will no longer learn war.”

(Yeshaya 2:4)

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[1] See Choshen Mishpat siman 2

[2] During the same period, the protection granted to non-Jews greatly increased, with the rise of democracy and the view that governments exist to serve their citizens rather than the other way round.

[3] This is one form of the mitzvah of pidyon shvuyim (redeeming captives).

[4] Chazal discuss situations where two litigants disagree on which beis din to go to for civil disputes, and the halachos are summarised in Choshen Mishpat siman 14. At least in principle, the claimant usually has the right to decide where to go (see Sanhedrin 31b), although there are several factors involved and in practice, it is usually the other way round.

Criminal law is different, as the only 'litigant' is the defendant and there is no claimant (while there may be a wronged party who wants vengeance, he or she is not relevant to the judicial proceedings). Chazal do not discuss explicitly which beis din should try an alleged criminal, but a number of sources suggest that each person is primarily under the jurisdiction of the beis din of their home city. This starts from the Torah itself in Devarim 19:12 and 25:8.

[5] Even if a person commits a crime in their hometown and then flees elsewhere, as long as they plan to relocate permanently and their new hometown has a competent and just beis din, it should not be a problem for this beis din to try them.

[6] See https://en.wikipedia.org/wiki/Extradition#Own_citizens for a list of such countries.

[7] See Leaving Eretz Yisrael.

[8] See https://en.wikipedia.org/wiki/Samuel_Sheinbein#Israeli_extradition_law

[9] The protocols are available here.

[10] Although this would certainly be true even if no Jews were in danger.

Child Custody and Maintenance

Introduction

As I wrote in The role of women, there is no denying that in much of the Western world today, women are far more likely to earn a significant percentage of household income. Similarly, men are more likely to be responsible for a significant amount of childcare and other domestic chores. This raises questions over whether historical assumptions relating to child custody and maintenance in the case of divorce remain valid today, both in the secular justice system and for batei din.

In this post, I will outline the halachic principles set by Chazal and some changes that have been made to their application in the last century or so without significant opposition. I will also discuss some further, more recent changes that have been suggested, over which there is less of a consensus.

Physical Custody

If a divorced couple have non-adult children, the primary question will be over where these children should live. The gemara tells us that a daughter stays with her mother, but is ambiguous regarding sons.[1] The Rambam writes that sons also live with the mother until the age of six, after which the father may issue an ultimatum – if the son stays with the mother, he will no longer provide for him.[2]

The Ra'avad and others argue that the father must have a right to custody over sons from birth, in order to teach them Torah. However, the Shulchan Aruch rules in accordance with the Rambam, with no mention of any dissenting view.[3]

It is important to point out that it appears from the words of the Rambam that even after the age of six, it is the mother who has the inherent right to custody. If she wants to keep her sons with her and is able to provide for them independently, the father can only withhold maintenance payments.[4]

The Rambam goes on to clarify that although the mother has this right, she has no obligation to exercise this right. In the rare event that she opts out of providing childcare, the ultimate responsibility lies with the father.[5] It may be said that the mother has the right to custody but no responsibility (should she choose to forgo her right); the father has only responsibility and no inherent right.

Child Support

The source for the cut-off point at the age of six appears to be the father's obligation to support his children financially, which is only halachically binding until the age of six.[6] After this age, although a father is still expected to support his children and is considered exceptionally cruel if he does not, he cannot be forced to do so.[7]

It follows therefore that although the mother has the inherent right to custody, once children have reached the age of six, the father can use his technical exemption from paying for child support as a bargaining chip. However, Chazal put a stop to this in the case of daughters, forcing the father to support them even in their mother's house. The Rambam explains that the mechanism for this is the authority of beis din to force people to give charity.[8]

Presumably, the distinction made between sons and daughters is based on what Chazal saw as being best for the children. It was assumed, as a general rule, that daughters are better off with their mothers. With sons, the question is more complex, as the father's obligation to teach them Torah is in conflict with the benefit of being with the mother. It was therefore decided 'not to interfere', leaving it to the parents to negotiate where natural bargaining chips exist.[9]

The Institution of 1944

The rationale for many of the rules above has become obsolete, and this has been recognised by batei din. Firstly, in 1944 the Rabanut HaRashit (Chief Rabbinate), using their powers under the British Mandate, instituted that courts would be able to force fathers to support their children until the age of 15. They explained that in their times, there would be significant ethical dangers for children below 15 if their maintenance was not legally ensured.[10] This was extended to the age of 18 in 1980.

Although it may not have been the original intention of this institution, it would seemingly have a knock-on effect for physical custody. The father no longer has a bargaining chip that he can use to get custody of his sons, as he is obligated to support them until the age of 18. Indeed, batei din nowadays in general do not distinguish between boys and girls when it comes to physical custody of the children.

However, this does not mean that the mother always gets full physical custody. Maharam Padova, quoted by the Rema,[11] writes that as the mother's 'right' of custody over daughters is only based on this being in the child's best interests by default, it is up to beis din to adjudicate whether this holds true in each case. In practice, this means that nowadays, for children over the age of six, it is most common for the parents to divide physical custody equally (or almost equally).[12]

The distinction between children under and over the age of six remains until this day, with both batei din and secular courts in Israel in general awarding the mother with custody of children under the age of six. Recent attempts to change the law have not succeeded, and were also opposed by the Rabbanut.

As we have seen above, the halachic basis for this distinction is far from clear, once the father has the enforceable obligation to support his children until the age of 18. It appears that the old default position has been (partially) retained for a different reason, that young children are in general better off being with their mother.[13]

Recent Developments

In a world where men and women are increasingly being seen as identical, it may be only a matter of time before full gender equality is applied to child residency. Whether this is a positive change or not is a broad, largely non-halachic question, and I will not voice an opinion here. I will just mention that a minority of dayanim have argued that change is required,[14] such that no full halachic consensus exists already today.

Some serious halachic consideration is also required regarding gender equality with respect to child support. We have so far assumed throughout that any obligation to support one's children falls solely on the father. This is explicit in the words of Chazal quoted above, and was unquestioned until recently. The question is whether this still applies in a case where each parent has a similar income. Does it make any sense for the father to bear full financial responsibility for his children, when everything else is divided equally?

This question is subject to significant controversy, both in the secular courts and in batei din. Among dayanim, there are three basic approaches:

1)      The full obligation, at all ages, remains fully on the father in all circumstances. Both the institution of Chazal for children up to the age of six, and that of the Rabbanut for children aged 6-18, explicitly obligate the father alone, irrespective of the parents' income.[15]

2)      The above is true regarding children up to the age of six. However, the institution of the Rabbanut for children aged 6-18 is more flexible, and follows the standard rules of tzedaka. As such, it is dependent on the respective incomes of the parents, and they must share the expenses proportionally.[16]

3)      Even for children under the age of six, both parents must share the financial burden in proportion to their income. Chazal placed the obligation on the father alone based on the conditions of their time, whereby women did not have any significant income, and even those who did would likely remarry and surrender this income to their new husband.[17]

A full analysis of the arguments given by the various poskim is beyond the scope of this post.[18] However, I do have two observations to make which I believe are important.

Firstly, in relation to the institution of the Rabbanut for children aged 6-18, the question as to whether this can apply to the mother as well as the father should be moot. If the needs of the times require an update to this institution, this update should be made by the Rabbanut irrespective of whether it can be read into the original institution. The Rabbanut of today has no less authority than the Rabbanut of 1944, and they must display the same level of courage and responsibility.

Secondly, even if these institutions cannot apply to the mother, a ruling of the Haifa Beis Din makes a crucial point in relation to the obligation of the father.[19] The obligation of the father to provide for his children was certainly instituted for the benefit of the children. However, in some situations, the children actually stand to lose out from this obligation.

In the case in question, the father was on unemployment benefit of 6,000 NIS per month, whereas the mother had a monthly salary of 14,500 NIS. The parents shared physical custody equally. Forcing the father to pay maintenance would inevitably lead to the children living a life of increased poverty half of the time, and thus would make no sense.[20] It was therefore possible to prevent some degree of injustice without resorting to any creative new obligation on the mother.[21]

In Conclusion

Divorce is always a difficult situation, and the responsibility of settling related disputes in a just manner is great. However, this area also presents an opportunity for batei din to lead the way by finding innovative ways to ensure that any suffering is kept to a minimum. The system in place in the secular courts is far from perfect, and if the batei din can implement superior methods this could create a significant Kiddush Hashem.

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[1] Kesuvos 102b. Rashi and some other rishonim understand that this rule applies only when the father has died, but the accepted halacha is that the same is true after divorce.

[2] Hilchos Ishus 21:17. The continuation of the gemara says explicitly that if a father dies leaving a young boy, he stays with the mother and not with the heirs of the father (for a girl this would be obvious). Sons of living, divorced parents, are not discussed.

[3] Even Ha'ezer 82:7. The Magid Mishne explains that the father's obligation to teach his sons Torah at this age does not require a large amount of time, and may be fulfilled during occasional visits.

[4] See however Chelkas Mechokek on the Shulchan Aruch.

[5] Ibid. 21:18. Even if there is no father, the mother does not have any obligation towards her children and may leave them for the community to adopt.

[6] Kesuvos 65b

[7] Kesuvos 49a-b

[8] Hilchos Ishus 21:18. This concept was discussed in Tzedaka - who gets what?

[9] Rashi and the Ran explain differently, that the entire obligation of the father to provide for one's children is only part of the husband's obligation to support his wife. It applies until the age of six because during this period, children are dependent on their mother and are therefore considered 'subsidiary' to her. According to this, the mother's right to physical custody precedes the father's obligation of child support. I have not followed this view above, as it implies that the father's obligation to support his children only applies if he is married to the mother, and this is not accepted as halacha (the Ran himself raises this issue). See however Igros Moshe, Even Haezer 1:106, who supports the position of Rashi and the Ran.

[10] The full explanation, signed by Chief Rabbis Herzog and Uziel, can be seen here (in Hebrew). At the time, although batei din did not have the authority to rule on cases of child maintenance, the government courts would adjudicate based on Torah law when dealing with Jewish families. The problem cited was pre-divorce - cruel fathers would sometimes use their technical exemption from providing for their children, in order to force their wives to accept a get.

It is interesting to note that following this institution, a dispute developed regarding its interpretation. Many poskim claimed that as the purpose was only to enforce child support in the case of recalcitrance, it applies only where the children have a need for this support and the father has the means to support them. If for example the children are wealthier than their father is, or if the father is mentally incapacitated, it may not apply. However, R' Herzog and R' Uziel themselves insisted that the institution applies in all cases (see Shu"t Yabia Omer, Even Haezer siman 22, for details).

[11] Even Ha'ezer 82:7

[12] This is the case in Israel and in many other countries, although in some countries it is still more common for the mother to be awarded full residency by default.

[13] According to Rashi and the Ran this is in fact the original reason, but as mentioned in footnote 9, this view is not the accepted halacha.

[14] See for example this piece (in Hebrew) by R' Uriel Eliyahu, dayan in the beis din of Netanya. He argues that more often than not, shared residency is the most beneficial for all parties, and that studies to this effect do not stem from a problematic blurring of gender roles. Rather, there is a recognition that children should not miss out on the distinct attributes that their fathers and mothers have to provide.

[15] This is the position of R' Daniel Edri, dayan on the Beis Din HaGadol, in several rulings. See for example https://www.psakdin.co.il/Court/2320020#.YfmE1upBzDf. The suggested justification given by R' Edri for the one-sided obligation on the father is that (divorced) women typically (re-)marry and become subservient to their (new) husbands, and thus are unable to support their children. I can only assume that although he is aware that this is no longer borne out in reality, he believes that this is the ideal and that halacha is designed to direct us back towards this ideal.

[16] R' Shaul Yisraeli, Chavos Binaymin 2:42. This is also more or less the position of the secular courts in Israel today.

[17] R' Uriel Eliyahu in this piece. Although in my view he presents some strong arguments, R' Eliyahu is currently somewhat of a lone voice.

[18] Some of these arguments are based on the questions discussed in footnotes 9 and 10 above.

[19] The ruling can be viewed here.

[20] The couple had two children, one below the age of six and one above. Somewhat incredibly, the beis din obligated the father to pay limited maintenance costs in respect to the child below the age of six, and only applied the logic above to the institution of the Rabbanut. In my view, the institution of Chazal would also not apply in such a case.

[21] In regards to the original question, the beis din ruled in accordance with the first view above. Thus despite the mother's high income, they did not impose any obligation on the mother to pay maintenance.

The Torah Reading

Introduction

The formal reading of the Torah in public is a rabbinic institution, but one of the oldest we have. Chazal tell us that after the Jewish People travelled three days from Yam Suf into the desert without Torah, they became weary.[1] The prophets among them stepped in and instituted public reading of the Torah[2] every Monday, Thursday and Shabbos, in order to prevent such a situation re-occurring.[3]

In this post, I would like to examine some aspects of the format of this mitzvah. My perception is that significant misunderstanding exists in relation to the responsibilities of the individuals who read from the Torah, are 'called up' to the Torah, and those who just listen. This in turn sometimes leads to incorrect application of some of the halachos of the Torah reading, and I will attempt to provide some clarity.

One preliminary point that I will be assuming is that the institution of the Torah reading was made as a mitzvah for the community as a whole, rather than as a private obligation on the individual. Although there is some discussion of this question among later commentaries, I believe that the plural language used by Chazal "the prophets among them stood up and instituted for them" clearly indicates that the institution is a communal one, and I have not seen any evidence for an individual obligation.[4]

The Annual Cycle

Before discussing the various roles of individuals during the Torah reading, I would like to start by explaining several sources in relation to the amount that we are required to read, and the progression throughout the year. There are many such sources in Chazal, some of which appear contradictory and require resolution.

1)    The gemara tells us that the original institution was for just three pesukim (verses) to be read at each public Torah reading, either by one person or by three different people. Much later, Ezra increased this to three people reading a total of ten pesukim, as well as instituting a fourth weekly Torah reading on Shabbos afternoon.³

2)    Elsewhere, there is a dispute regarding the continuity of the four weekly Torah readings. All agree that the Shabbos afternoon reading starts where the Shabbos morning reading finishes. R' Meir says that similarly, on Monday we should start where the Shabbos afternoon reading left off, on Thursday we should start where we left off on Monday, and on Shabbos morning we start where we finished on Thursday. Our practice follows R' Yehuda, who says that on Monday, Thursday and Shabbos morning we should start at the same place that we started on the previous Shabbos afternoon.[5] 

3)    The Mishna tells us explicitly that on Shabbos morning, seven different people read from the Torah.[6] As each person must read a minimum of three pesukim,[7] this gives a minimum of 21 pesukim in total. 

4)    The gemara tells us that in contrast to the accepted practice in Bavel (Babylon), where each Torah section is read at the same time of year each year, in Eretz Yisrael the practice was to complete the Torah only every three years.[8] 

5)   The gemara tells us that Ezra instituted that the curses at the end of Sefer Vayikra should be read before Shevuos, and those at the end of Sefer Devarim should be read before Rosh Hashana.[9] 

The last two sources provide evidence that the annual cycle of the Torah reading already existed at the time of Chazal, [10] and possibly also at the time of Ezra. No special Torah reading is required in order to fulfil the institution of Ezra in the last source, as the scheduling of our weekly Torah reading is designed to ensure that the correct sections are read before Shevuos and before Rosh Hashana. 

However, if the annual Torah reading cycle were really part of the institution of Ezra, the practice in Eretz Yisrael of completing the Torah only every three years would be in violation of this institution. Yet the omission of any criticism of this 'deviant' practice implies that this is not the case. R' Shmuel Yitzchak Hillman[11] observes that either in Eretz Yisrael the institution of Ezra was fulfilled by special extra Torah readings, or this institution was not universally accepted.[12] 

Nowadays, the ancient Babylonian practice has become globally accepted and should not be altered.[13] However, it would seem that if for whatever reason a community was not able to read from the Torah one week (or several weeks, as we experienced recently due to the global pandemic), there is no obligation to make this up. 

Nevertheless, the Ohr Zarua (R' Yitzchak of Vienna, 1180-1250) writes that when the Torah reading was missed one week in Cologne, R' Eliezer ben R' Shimon zt"l (an otherwise unknown rabbi, not to be confused with R' Elazar ben R' Shimon the Tana) ruled that the community must make up the reading the next week. Astonishingly, the claim made is that the annual completion of the Torah is an institution from the days of Moshe Rabbeinu![14] 

If this claim is to be taken literally, I do not see how it can be reconciled with the sources above. I have seen a suggestion that the Ohr Zarua only meant that there was an ancient institution from the days of Moshe Rabbeinu for the weekly Torah readings to be continuous, taking over where we left off the previous week (as in source 2 above). Exactly how much is read, and how often we complete the Torah, is subject to different customs.[15] 

The truth is that even this watered-down version of the ruling of the Ohr Zarua is questionable. It is far from clear from the sources above that continuity was part of the original institution. It is also not obvious that each community has its own independent obligation to 'make up lost ground' where a Torah reading was missed due to exceptional circumstances.[16] 

Either way, the basic point to learn from all of the above is that the fundamental obligation of reading from the Torah four times a week precedes any rules about what exactly should be read. If a community was cut off from the rest of the world, and did not remember what was read the week before, they would still be obligated to read from the Torah. Where to read from would be a secondary, relatively minor question. 

Who should read? 

As mentioned above, Ezra instituted the obligation of three separate readers reading from the Torah each Monday, Thursday and Shabbos afternoon. This number is increased to four, five or six readers for the readings on various special days, and on Shabbos morning, at least seven different people must read.[17] 

Today, the almost universal practice is that by default, just one person reads from the Torah (unless it is difficult to find one person who is able to learn the entire reading). The required three to seven 'readers' just say the brachos before and after each section, relying on the "ba'al koreh" to do the actual reading. The rishonim dispute the reason for this change. 

Tosfos quote the explanation of Rabbeinu Tam, that having one fixed reader is in order to avoid embarrassing those who don't know how to read. The precedent for such an idea is found in a Mishna regarding the declaration said when bringing Bikurim (first fruits), where it was instituted that all those bringing Bikurim, whatever their level of literacy, should repeat the words after a designated reader. Before this institution, those who were able to read themselves did so, and others avoided bringing Bikurim altogether because of the embarrassment.[18] 

The Rosh rejects this reasoning, arguing that on the contrary, embarrassment would have a net positive effect of encouraging people to learn to read for themselves. Regarding Bikurim, this gain is not worth the loss of the entire mitzvah by those who would suffer the embarrassment, but this is not relevant when it comes to reading from the Torah. 

Rather, the Rosh argues that having a designated Torah reader is to solve an opposite problem. Some people are not proficient at reading but overestimate their own ability, and were we to allow them to read they would make mistakes and the community would not fulfil their obligation. Allowing only the proficient to read would lead to arguments, so the best solution is to have just one designated reader. 

The Rosh continues that despite the institution of a designated reader, those who are called to the Torah must read along quietly. One who does not know how to read should not be called to the Torah, as making a bracha without reading would be an unnecessary bracha (ברכה לבטלה), a serious violation.[19] 

According to either view, it would seem that even if the person called to the Torah knows how to read himself, he should not ask to do so. According to Rabbeinu Tam this could lead to embarrassment for those who do not know how to read; according to the Rosh this should not be allowed out of concern that those who cannot read accurately enough will also want to read. 

In many shuls, this question rarely comes up due to the rarity of finding a person who can read without preparation. The reader may also have put in time into his preparation, and be upset if this preparation was 'wasted.' However, in certain congregations it is quite accepted for some of those called to the Torah to read on their own. This may be based on a third view, that no 'institution' of a designated reader was ever made. It is far from ideal to have someone else read on behalf of the person called, and this should be avoided where possible.[20] 

Is listening good enough? 

Our practice, apparently based on the view of Rabbeinu Tam, is to allow those who are unable to read, or even the blind, to be called to the Torah.[21] The rationale given for this is that we can apply the principle commonly used in the fulfilment of many other mitzvos – listening to another person reading is equivalent to reading in person (שומע כעונה).[22] 

Evidently, the Rosh felt that this principle does not apply to the Torah reading. Some have given somewhat convoluted explanations for this,[23] but I believe that the reason is simple. Ezra did not institute the requirement for three separate readers for nothing (and Chazal did not extend this to seven readers on Shabbos morning for nothing). Having a variety of different readers gives the Torah reading a more public nature, increasing the likelihood that people will stay interested and feel a part in what is going on.[24] Although technically everyone might be part of the reading just by listening, in this case Ezra (and Chazal) explicitly did not want to make use of this technicality.[25] 

The truth is that even our practice of having one designated reader does not allow for a limitless application of the שומע כעונה principle. Were this to be the case, one reader could make all of the brachos on behalf of the individuals called to the Torah. Although we may not be acting fully in accordance with the intention of the original institution of reading from the Torah, we do go some way towards connecting people to this mitzvah. 

It should be obvious that the best way to improve this is to teach people how to read from the Torah from a young age. I have no idea why many schools teach Chumash and Tanach without the cantillation notes (trop), but this is clearly the major cause of the continued need for designated readers even in the most religious of shuls.

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[1] It is possible that the weariness referred to is a spiritual weariness.

[2] Although the Torah had not even been given yet, R' Soloveitchik explains that the original institution was to proclaim the word of Hashem in public. Once the Torah was given, or possibly even at a later date, this institution took on a more formal nature of the Torah reading as we know it. This explains why the gemara stresses that it was the prophets who enacted this practice – prior to the giving of the Torah, only prophets could proclaim the word of Hashem.

[3] Bava Kamma 82a

[4] Of course, under normal circumstances individuals may not absolve themselves from the communal reading (see Collective Obligations and Responsibility regarding the nature of communal mitzvos). A possible exception may exist for a person studying Torah, although there is much dispute as to the circumstances in which this exception applies (see Brachos 8a and commentaries thereon). However, if for whatever reason an individual misses the public Torah reading, he is under no obligation to attend a later reading to 'catch up.'

[5] Megila 31b

[6] Megila 21a

[7] Megila 22a

[8] Megila 29b

[9] Megila 31b

[10] There are additional hints elsewhere, but these are less clear. Megila 31a says that on the second day of Shmini Atzeres (outside of Israel) we read Vesos Habracha (the last parsha in the Torah), but it is far from clear there that this represents the completion of the whole Torah.

Berachos 8b, in reference to the obligation on the individual of completing the private reading of שנים מקרא ואחד תרגום (the Torah twice, together with one reading of Targum Onkelos), rejects the suggestion of fulfilling this obligation all on one day on Erev Yom Kippur. Here again, it is not clear that the whole Torah would need to be read each year.

[11] R' Hillman was born in 1868 in Lithuania and served as a rav and dayan in Berazino, Glasgow and London before retiring and moving to Yerushalayim. He was the father-in-law of R' Yitzchak Herzog.

[12] Ohr Hayashar, Megila 31b. He brings additional evidence to this institution not being universally accepted from the fact that it does not appear on the list of Ezra's institutions in Bava Kama 82b. See also Kiryat Sefer (of the Meiri) 1:5:1, who brings various proofs that the annual cycle was an ancient custom that existed in the times of Chazal and even in the times of the Nevi'im, but refrains from calling it an obligation.

[13] See Brachos on Mitzvos in relation to the halachic significance of accepted practices.

[14] Or Zarua part 2, Hilchos Shabbos siman 45. This ruling is also quoted by the Rema in Orach Chaim 135:2.

[15] See Responsa Bemareh HaBazak, corona edition, siman 8 footnote 1.

[16] Historically, when travel was less common, it is likely that communities in different parts of the world followed different cycles. Under these circumstances, if one community missed a Torah reading it would be less difficult to make up lost ground, as there would be no rush to get back in synchrony with communities elsewhere. Nowadays, when people often daven in different places from week to week and there is a significant advantage to having each community reading the same section on the same day, it seems more prudent to ensure that all shuls are holding in the same place, even if this comes at the cost of missing a parsha when necessary.

[17] In relation to the institution of Ezra, there is no mention in the gemara of any distinction between the four weekly readings. It is quite possible that the requirement of seven readers on Shabbos morning, as well as the different numbers on other special occasions, were later institutions.

[18] Tosfos Bava Basra 15a (ד"ה שמונה פסוקים), based on Bikurim 3:7.

[19] Rosh, Megila 3:1. Elsewhere, the Rosh clarifies that it is ok to call someone to the Torah who is able to read along quietly with the help of hearing the designated reader (T'shuvas HaRosh 3:12).

[20] The Rambam in chapter 12 of Hilchos Tefila brings the laws of the Torah reading and does not make any mention of the possibility of one designated reader. It is quite possible that according to the Rambam, even reading along quietly together with the designated reader is not sufficient.

[21] See Rema, Orach Chaim 139:3 (see also Biur Halacha 141:2, who claims that the Rema agrees that one who is able to read quietly together with the designated reader, should certainly do so). The Sefardim also follow this lenient view, despite the Shulchan Aruch ruling that a blind person may not read from the Torah, and that the one called to the Torah must read at least quietly (ibid. and 141:2). R' Ovadya is quoted as ruling leniently so as not to cause stress to the blind (see this link in Hebrew).

[22] Taz 141:3

[23] See this piece (in Hebrew) in the name of R' Soloveitchik.

[24] The requirement of calling a Kohen, a Levi and a Yisrael, representing a cross-section of the Jewish People (see Shabbos 88a), to read, is also part of this idea.

[25] The Biur Halacha (141:1) may be alluding to this when he observes that Chazal did not institute a bracha for those who merely hear the reading of the Torah.