Friday, August 29, 2014

A Thought on the Parasha

Can We Tolerate Dissent?  Can We not?

One of the primary institutions needed for the well running of society is its legal system, both the laws proper, and the bodies to adjudicate and enforce those laws.  For those about to enter the Land of Israel, the substance of the laws is no less than all the mitzvot of the Torah.  As to the judicial system that will enforce these laws - that is that focus of the beginning sections of this week's parasha, named, fittingly, Shoftim, judges.

The Torah commands not only the appointment of judges and officers of the law throughout the land, it also sets up a High Court and takes serious measures to protect the authority of this court.  We are told that when a matter cannot be resolved otherwise, we are to take it to the place that God has chosen - Jerusalem - and bring it before the "priests and the judge who will be at that time" (17:9).  This body, understood to be the Sanhedrin or High Court, will issue a ruling, and that ruling must be followed without deviation.  Dissent will not be tolerated: "And the person who acts presumptuously, and will not listen to the priest who stands there to serve before the Lord thy God, or unto the judge, that man shall die, and you shall eradicate the evil from Israel" (17:12).  The court will act harshly and decisively to stamp out any threat to its authority.

We can understand the need to protect the court's role as the highest and ultimate authority empowered to interpret the law.  If people could interpret and apply the law as they saw fit, general lawlessness would ensue.  Nevertheless, it is hard to identify with the harshness of the response - the death penalty! - for any deviation.  Moreover, such squelching of opposing and critical voices would see to give the court absolute, unchecked power.  What, then, is to stop absolute power from corrupting absolutely?

As far as the death penalty is concerned, the Rabbis have significantly limited its scope.While making it clear that the duty to follow the rulings of the court is incumbent upon everyone, the Rabbis have said that the death penalty of the verses is reserved for the zaken mamre, the rebellious elder.  Only a great sage, a great legal scholar, can receive such a punishment.  If he acts in opposition to the court, and not only acts, but - add the Rabbis - rules for others in this manner, then he has positioned himself as a competing legal authority.  Theoretical debate is fine, but to rule in practice against the court is not fine.  This can truly undermine the court, and must be stopped.

The Rabbis impose many more criteria that must be met before one can be considered a zaken mamre, effectively making this category moot. With the death penalty effectively removed, how would the court's authority be defended when there was real opposition? Well, there are other ways.

In a well-known story, we hear that Rabbi Eliezer ruled that a certain oven was ritually pure while all other rabbis ruled that it was impure. Rabbi Eliezer provides miraculous signs that he is correct: a carob tree is uprooted, a stream of water flows backwards, and the walls of the study house bend in. The punch line that we are all familiar with is when the rabbis say to God: "The Torah is not in Heaven! It is for us to decide!" The authority of the court is so great, this audacious story tells us, that it trumps even God’s own claim as to the true meaning of the Torah!

But the story doesn't end there. For the court’s authority has been challenged not only by God, who in the story chuckles and steps back, but also by a great rabbinic sage, someone who is not willing to step down and go quietly, some who acts in highly public and demonstrative ways to prove that he is right.  This, the story tells us, is a serious threat.

This perhaps is the meaning of the carob, the stream, and the walls of the study house. These represent the societal structures and the natural order of things. For Rabbi Eliezer to push his position against the court, was an attempt to reverse the natural order, an act that could shake the foundations of society. And it must be stopped.  And so: "On that day all that objects that R. Eliezer had declared to be ritually clean were brought in and burnt by fire." (Baba Mezia 59b).  Without violence and without putting anyone to death, the rabbis demonstrated, firmly and decisively, that challenges to its authority would not and could not be tolerated.

All this is well and good.  But with such absolute authority, who is to keep the court honest? What checks and balances exist over them?  For this, we return to the beginning of the parasha - the appointment of judges. In the United States, the check that the other branches have over the Supreme Court is its ability to appoint and approve of the justices, and to create lower courts.  This echoes the Torah's mandate that the people appoint the judges and also create regional courts: "Judges and officers you shall appoint in all your gates" - that is your cities - "and all your tribes" (16:18).  Regional courts distribute the power somewhat - it is not all concentrated in the hands of the High Court.  Beyond this, there is a mandate that the court not only represent the majority, but that they also work to protect the rights of the marginal and disempowered in society: "You shall not pervert judgment; you shall not respect persons… Justice, only justice, you shall pursue." (16:19-20). And the judges must protect themselves against outside influences: "You may not take a bribe" - even, say the Rabbis, if it is with the intent of judging correctly - "for a bribe blinds the eyes of the wise and corrupts the words of the righteous"(16:19).

Structurally, however, there is no one whose role it is to ensure that these mandates are being followed. The court must be its own watchdog.  If they are found violating, they can be disqualified - a type of impeachment - but short of that, it is their own integrity which needs to keep them in check.  It is for this reason that the Torah, in Yitro's advice to Moshe, describes the need for high personal character of the judges.  This and only this is what will keep them honest.

But such men are hard to find, and - even when found - can be corrupted by power.  A story is told that when Rav Maimon, the first Minister of Religion in Israel, was looking to re-form the Sanhedrin, he was asked by Ben Gurion: "But where will you find people who are sonei batzah, (Shemot 18:21), despisers of unearned gain?" To which Rav Maimon responded, "With enough money, you can get anything, even sonei batzah."

In looking at this system and its challenges, it is clear that a lot rides on the appointment of judges - who is chosen, who does the choosing, who they represent, and the strength of their personal character and integrity. Outside of Israel, halakhic authority is distributed and adherence to it is volitional (as a matter of secular law), and by nature the rabbis and the batei din have to be more responsive to those who would come to them.  In Israel, however, we have courts with real concentrated authority, as described in our parasha. For such a system to be just, to be free of corruption and non-oppressive, the right judges are needed. Without this, such authority can do more harm than good. If we are to have a rabbinic body such as this, then it is incumbent upon as to make sure that we are all - as a society - living up to the mandate of our parasha and ensuring that the judges we appoint are the judges who will truly embody "justice, only justice" for the people whom they serve. With this we will be deserving to merit the blessing of the verse: "So that you will live and possess the land with the Lord your God gives you"(16:20), which teaches us, says Rashi, "that the appointment of fit and proper judges is worthy of give life to the Jewish People and to cause them to dwell in their land."

Shabbat shalom!
Reprinted from 2012

Thursday, August 21, 2014

A Thought on the Parasha

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Twice in the book of Devarim, Moshe warns the people to keep the totality of the Torah, not adding to or detracting from it. In Parashat Re’eh we read: “Whatsoever I command you, that thing you shall observe to do; you shall not add to it, nor diminish from it” (Devarim, 13:1). This echoes a parallel prohibition in Parashat Va’Etchanan (4:2).

While the literal, simple sense of these verses is that one should not add or detract from the entire body of mitzvot, the halakhic meaning is quite different. As Rashi concisely states:

You shall not add – for instance, five compartments of tfillin, five species for the lulav, and five tzitzit. And similarly is the meaning of “you shall not detract” (on Devarim, 4:2).

That is to say, an individual cannot perform a mitzvah in a way that changes its core components. However, the Talmud never interprets this verse to mean that one should not add to the corpus of mitzvot. To read this verse in the latter sense would raise many challenging questions about the Rabbinic enterprise, for isn’t that what the Rabbis do – create new laws, adding to those that are commanded in the Torah?

Before attempting to answer this question, we should stop to consider what is so wrong with adding to the Torah. The reason to prohibit detracting is clear: It leads to transgression of Torah prohibitions and non-fulfillment of Torah commandments. But why not add? What is wrong with doing more?

The most obvious answer is that doing so would compromise the integrity of the Torah. Adding to the Torah leads to misrepresentations of what the Torah is really saying; it is a perversion of dvar Hashem, of the actual word of God.

This is illustrated by the following tale from Irish mythology. A man travelling in a forest in Ireland chances upon a leprechaun and succeeds in catching him, forcing the leprechaun to reveal under which tree his pot of gold was buried. The Irishman tied a red handkerchief around the trunk of the tree so he would be able to locate it when he returned with a shovel. Before leaving, he made the leprechaun swear that he would not remove the handkerchief. When he returned the next day, he found that the leprechaun had tied red handkerchiefs around every tree in the forest!

We can efface a thing’s identity by adding just as easily as we can by taking away. In the words of the Rabbis: Kol ha’mosif goreya. Whoever adds, diminishes.

There is another danger inherent in adding to the corpus of mitzvot: It may undermine observance. If every law and practice is treated as God’s direct word and given equal weight, then a person who finds herself unable to keep one law might wind up rejecting all, seeing it all, as she does, to be of one piece. The Haredi world, for example, is a culture where the weight of different halakhot tends to be less differentiated (consider the current intransigence of Haredi rabbis when it comes to the practice of metzitza b’peh). Often when people leave this world, they land in a place of full secularism and non-observance rather than finding a home in a different form of Orthodoxy or in one of the other movements. Of course, each individual’s story is different and has its own dynamics, but often we hear that this phenomenon is rooted in a belief that it is all or nothing. If some of it can’t be upheld then none of it can.

A related concern is that adding prohibitions to the Torah can sometimes work at cross-purposes to the Torah’s goals. This is what the Rabbis refer to as a chumrah ha’asi lidei kula, a stringency that leads to an unwarranted leniency. This may happen much more frequently than we are aware, since we are often not sensitive to what we might be sacrificing or compromising by adopting additional strictures. For example, greater demands in the area of ritual mitzvot often translate into compromises in the area of interpersonal mitzvot. 

Consider the following statement from the Shakh, Rabbi Shabtai Kohen, a seventeenth-century, classical commentator on Shulkhan Arukh:

For in the majority of cases there is a leniency (i.e., a compromise of the law) that results in another area because this thing was made forbidden, and it will thus be a stringency that leads to a leniency. And even if it appears that no (unwarranted) leniency will result, it is possible that one thing will lead to another and a hundred steps down this will be the case (Practices of Prohibitions and Allowances, Yoreh Deah, 248).

Now of course, stringencies are sometimes necessary, but in such cases, Shakh warns, the posek must be careful to make it clear that his ruling is merely a stringency and not the actual halakha. This will help ensure that such rulings are not given undo weight and do not compromise more core values and principles.

So the concerns about adding to the Torah are clear – it will undermine the Torah’s identity and potentially undermine observance and compromise core values. So how could the Rabbis do what they did?

This question can be skirted by insisting that the meaning of the verse is restricted to its narrow, halakhic definition – not to add to the core components in the performance of mitzvot, such as five tzitzit. However, both Rambam (twelfth century) and Ramban (thirteenth century) insist that this verse does indeed prohibit adding to the body of mitzvot as a whole.

Rambam states (Laws of Rebels 2:9) that this verse also forbids the Rabbis from presenting a Rabbinic law as a Biblical one, or from representing the meaning of a Biblical law as broader or narrower than it actually is (Laws of Rebels, 2:9). Ramban echoes this position in a slightly nuanced fashion in his commentary on the Torah when he states that one cannot add new practices to those that the Torah commands (Devarim, 4:2).

So now the question returns in full force: But isn’t this what the Rabbis are always doing, adding new practices? Here is Ramban’s answer:

Now regarding what the Rabbis prohibited as safeguards… that activity is a Biblical mitzvah, provided that they make it known that these restrictions are made as a safeguard and are not from God’s word that is in the Torah.

According to Ramban, then, there are two things which make the Rabbinic activity allowed. The first is that they are given explicit license in the Torah to make their legislation and safeguards. This refers to the verse, “u’shmartem mishmarti,” “and you shall guard my ordinances” (Vayikra, 18:30). The Rabbis interpret this to mean, “asu mishmeret li’mishmarti,” “you – the Rabbis – must protect My mitzvot, you must make safeguards.” This is key. It states that there is a value that is equal and opposite to the concern of adding to the Torah: the mandate to protect the Torah, to respond to contemporary realities and create practices, institutions, and laws that will ensure the survival of the Torah.

Does this mean that the concern of adding to the Torah can be discarded? Hardly. Here is where the second part of Ramban’s answer comes in. All of this is only allowed if the Rabbinic legislation does not obfuscate what is and is not the Torah, that is, if the Rabbis clearly identify that their activity is of a Rabbinic nature. This is also the point made by Rambam – the prohibition only applies when Rabbinic rulings are misrepresented as Biblical.

The problem with this is, as Ra’avad states in his critique of Rambam, that the claim that the Rabbis were clear about the lines is not borne out by the facts. There are many laws in the Talmud which are not clearly identified as Rabbinic or Biblical. Moreover, the Rabbis sometimes intentionally present Rabbinic laws as Biblical to give them more backing, i.e., an asmakhta.

Ra’avad thus rejects that there is a problem adding to the mitzvot! He states that the meaning of the prohibition is only that one should not alter the performance of a mitzvah. There is no prohibition against adding to the corpus of what is Biblical – the Rabbis do it all the time!

So, either the Rabbis clearly identify what is Rabbinic and what is Biblical (which they don’t) or the pshat meaning of the verse is inaccurate, and one can add to the mitzvot. Neither explanation is fully satisfactory.

In the end, there are no easy answers. The concerns with adding to the Torah are too often forgotten or ignored. But the importance of the rabbinic safeguards and of well-chosen stringencies cannot be minimized. It is only by maintaining this uneasy dialectic that we can hope to truly succeed both in protecting the Torah and in maintaining its integrity.

Shabbat shalom!

Friday, August 15, 2014

A Thought on the Parasha

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The Ger, Inclusion, and True Religiosity

I recently had the opportunity to deliver a shiur on the topic of inclusion of people with disabilities. As a model for a Torah approach to this issue, I looked at the mitzvot relating to the ger. One of those mitzvot occurs in Parashat Ekev, the mitzvah to love the ger: “Love you therefore the stranger, for you were strangers in the land of Egypt” (Devarim, 10:19).

The ger of the Torah is, at the pshat level, the resident alien, the person who is not a citizen but resides in our land. Because she lives among us, we are responsible to ensure that she be given equal protection under the law, and we must protect her from possible abuse. The ger is an outsider, someone vulnerable and easily excluded, but because she is among us, we must treat her like one of us.

The Rabbis of the Talmud understood the Torah’s ger not as a resident alien but as a convert. Living as they did after the destruction of the Temple, when Jews no longer had sovereignty, the categories of identity were based not on citizenship and geography but on religious affiliation. The ger was someone who came from outside our religion but now, having converted, she is now one of us, and we must ensure that she is not mistreated because of whence she came.

The mitzvot regarding the ger – whether the prohibitions against afflicting and oppressing her or the mitzvah to love her – are all sourced in the reason that we too were strangers in the land of Egypt (Shemot, 22:20 & 23:9; Vayikra, 19:34). When we were powerless, we knew what it meant to be marginal, to be outsiders. When we have power, we can never forget those who are in similar circumstances. Such people can easily become invisible. Our historical memory must compel us to see such people and to ensure that they are treated as full equals.

The principles expressed here are readily applicable to people with disabilities, people who are indeed one of us but who are easily marginalized and overlooked by those with power, by those making the decisions and allocations and setting communal priorities. In such cases, it is not always easy to evoke the empathy that the Torah calls for. However, if it is not possible to call upon a shared past history, we can nevertheless call upon a shared future. As we teach our students during our immersive training on disabilities: The world is not divided into those with disabilities and those without; it is divided into those with disabilities and those who do not yet have disabilities. As we grow old, we start to lose some of our normal physical abilities. We might be the person who is wheelchair bound and needs a ramp. We might be the person with failing eyesight who needs a large print siddur.

I find that I must remind myself of this message. When I am standing in the supermarket line and the elderly lady ahead of me is taking forever to make change and I start getting all worked up – “I can’t believe how long she is taking! I need to get out of here. I can’t wait this long!” – I must remember that in 20 years that person could be me. What would I hope from the people standing behind me in line if I were that person? And you know what? That little bit of empathy completely changes my perspective. It is to remember that we all will be strangers in the land of Egypt.

But that is not the whole story, for in this week’s parasha, the Torah gives another reason for this mitzvah:

For the Lord your God is God of gods, and Lord of lords, the great, mighty and awe-inspiring God, who regards not persons, nor takes any reward. He upholds the cause of the orphan and widow, and loves the stranger, giving him food and clothing. Love you therefore the stranger, for you were strangers in the land of Egypt (Devarim, 10:17–19).

We must have concern for the ger, the Torah is telling us, because God loves the ger. If we are to strive to be like God, to live a Godly life, then we must love the stranger; we must care for the orphan and the widow.

The theological point implicit in these verses is spelled out in a statement of Rabbi Yochanan at the end of Megillah (31a):

Rabbi Yochanan said: Wherever you find the greatness of the Holy One, blessed be He, there you find His humility. This is written in the Torah, repeated in the Prophets, and stated a third time in the Writings. It is written in the Torah: “For the Lord your God is God of gods… the great, the mighty and awe-inspiring God…” And it is written afterwards: “He upholds the cause of the orphan and the widow, and loves the stranger, giving him food and clothing.”

God’s greatness, Rabbi Yochanan is telling us, is not expressed by God’s total otherness or by God’s withdrawal from this world. God’s greatness is in paying attention to each individual, to the unnoticed, to the small and forgotten.

There is a profound lesson here regarding what true religiosity means. For so many people, to be more religious means to act in ways that are particularistic, are ritual-focused, and serve to distinguish a person from the normal society around him or her. Heightened scrupulousness about kashrut or wearing distinctive clothing makes a person more frum, while not cheating in business, not lying, and working at a homeless shelter might make a person more ethical but not, in this reckoning, more religious. 

This problem is of course not a new one. Isaiah – as we read just two weeks ago – calls out to the people: “To what purpose is the multitude of your sacrifices unto me? says the Lord… Learn to do well; seek judgment, relieve the oppressed, judge the orphan, plead for the widow” (Isaiah, 1: 11, 17). It is a problem that continues to plague us today. It manifests itself in the rationalizing of some people to act immorally because they are so scrupulous in ritual matters. And it manifests itself in the issuing of halakhic rulings which set unnecessarily high bars for ritual performance and participation, seeing these – and not the demand for inclusion, the protection of those most easily rejected and marginalized – as the religious realms that need to be most protected.

It is not hard to guess at the reason for this. Ritual, particularistic acts make a person feel different, singled out, special. In very visible and real ways such a person stands out from the society surrounding her. She can tell herself that she is better than those who act and look like everyone else. More to the point, it creates a distinct identity. There is nothing special about acting ethically – that’s universal. Even non-Jews do that. To act and dress differently, however, well, that’s what makes one Jewish. What else is holy, what else is being like God, if not to be separate and different from the world?

Rabbi Yochanan tells us that if this is how we are thinking then we’ve missed the boat. Without a doubt, the ritual, particularistic laws are a core part of our obligations and religious life. But if we really want to be like God, we would do well to look at the passage about the ger. For God’s expression of God’s greatness and complete otherness is in God’s ability to take care of those forgotten individuals, to do those basic ethical deeds that everyone else is too important to attend to. To live a Godly life is to live a life with exquisite attention to the poor, the disenfranchised, and the suffering.

Rav Moshe Feinstein says this better than I ever could. According to one opinion in the Talmud by which we rule, a ger cannot serve in a position of authority. Rav Moshe Feinstein was asked if, given this, a ger could serve as a Rosh Yeshiva. Rav Moshe responds:

However, in practice you should now, that the mitzvah of “and you shall love the ger,” requires us to bring them (converts) close and to be lenient regarding all these things. Therefore, after great thought, it appears that we need not consider such appointments in our time like appointments of authority… (Igrot Moshe, Yoreh Deah, 4:26).

Rav Moshe concludes that this is not a position of authority since a Rosh Yeshiva’s power comes from an agreement between parties (the students’ parents and the school) and is not imposed perforce from above. What is key, though, is that when faced with a conflict between the mandate of caring for the ger and the rule excluding the ger from certain roles, Rav Moshe, while never compromising on the rigorous application of halakha, states in no uncertain terms that it is the mitzvah to love the ger that must guide us and that we must be the most strict about. This is what it means to be like God and to live a Godly life.

Shabbat shalom!