Some time ago, I had a long talk with my younger and only brother about our early years, growing up in our parents’ home in the Netherlands. Although we were children of a mixed-marriage (Jewish father, non-Jewish mother), I showed a keen interest in Judaism, which was shared by my brother. (Today we are 68 and 66.) Our father was a very proud Jew and our mother was raised in a strong Jewish cultural milieu in Amsterdam where she felt completely at home. If not for her “Jewishness,” my father would probably not have married her. In fact, our mother was in many ways more Jewish than some other members of my father’s family who were halachically Jewish but completely disconnected. I decided to do giyur (1) at the age of 16, and my mother followed suit many years later. After 27 years of married life, our parents were “re-married,” this time by the same rabbi who officiated at my wedding three months later. Both chupot took place in the famous Esnoga, the Portuguese Synagogue in Amsterdam.
This put my brother in a very strange position. From then on, he had two Jewish parents and a Jewish brother while he himself, though he felt very Jewish, was not Jewish according to Halacha. This was, to say the least, an atypical mixed-marriage family.
During our conversation, my brother referred to a particular Pesach Seder that I conducted at our parents’ home (I must have been about 18 at the time), when an incident took place that profoundly shocked him and was one of the most painful moments in his life. Fifty years later, with great emotion, and tears in his eyes, he told me that he had taken a bottle of kosher wine to pour for our many guests. He felt very much a part of this Jewish tradition and immersed himself in this religious experience, wanting to participate fully. After all, those who had left the bondage of Egypt that very night and would cross the Red Sea a few days later were also his ancestors! But instead of realizing my brother’s enormous religious dedication to that very moment, I snatched the bottle of wine out of his hands and told him he should not touch it since he wasn’t Jewish, and when a non-Jew touches the wine it could become cursed (2).
My brother froze, and sat down silently.
By now a well-known dentist and very balanced person of great integrity, my brother told me that to this day he is deeply hurt by the incident and, although he had forgiven me for what I did, he could not emotionally make peace with it. Not only because he considered himself to be very Jewish and could not imagine that this law would apply to him, but also because he could not believe that such a law would be part of this beautiful tradition called Judaism, which he dearly loved.
As he related this story to me, I suddenly realized what I had done to him 50 years earlier – how I had violated his dignity and, as a result, the moral code of Judaism. (In fact, I wonder whether this was one of the reasons why, although he came very close to converting at the time, in the end he did not take the step.)
I wonder whether God will ever forgive me for the pain I caused my brother, and I am sure this was not the only time I hurt him. I can well imagine that there were other similar occurrences when because of my religious fanaticism I pained him deeply. He is a righteous person, and I can learn a lot from him.
Surely some of my readers will argue that what I did was halachically correct. After all, this law appears in the Shulchan Aruch (Code of Jewish Law) for everyone to see: One may not drink kosher wine that was handled by a non-Jew (3). I cannot deny this.
This prohibition is called issur yayin nesech or, more accurately, issur maga nochri – which can be loosely translated as the prohibition of using wine that has been handled by a non-Jew, meaning the bottle is not only touched but moved as well. The law applies only when the bottle has already been opened. I sincerely believe, and it is my humble opinion, that halachic authorities have to rethink this law.
Looking into the history of this prohibition, we can clearly see that the reason why the Sages forbade the drinking of wine after it was touched by a non-Jew was that most non-Jews were idol-worshippers. This worship is identified with evil, malicious and immoral behavior, not much different from the Nazis, and terrorists of today (4). In fact, the same law applies to a wicked Jew as well; we are also forbidden to drink wine that he handled (5).
The Sages wanted to ensure that Jews would never come close to this type of behavior or to these kind of people, and as a protest they forbade the drinking of wine which they touched. It very much reminds me of the Dutch who after World War II refused to bring any German-made products into their homes and refused to have anything to do with Germans. It was taboo.
But a law like issur yayin nesech should have no relevance to gentiles who behave morally and believe in the unity of God In fact, this position has been alluded to by several sefardi halachic authorities (6). And it should surely not apply to my dear brother who feels very Jewish, sincerely believes in one God, and is a most ethical person.
At the time, I didn’t know the background of this law, and it seems that my teachers who taught me this halacha did not realize the history, the ideology, and the consequences of this prohibition in our days.
But there is more. The famous philosopher, Talmudist and Halachic expert Rabbi Eliezer Berkovits (7) argues that we must not forget that over the last 2000 years Halacha has become heavily defensive (8). It had to deal with a most aggressive form of anti-Semitism as Judaism and Jews were constantly attacked while living in the Diaspora. Under those circumstances, rabbinic authorities built many walls between us and the gentile world. This was very understandable; it was the only way to survive. While Rabbi Berkovits does not discuss the issue of yayin nesech, it is very clear that the law concerning this kind of wine originated under similar circumstances. Its roots go back to the days when gentiles offered wine libations to pagan divinities and behaved immorally and corruptly (9).
But this also meant that Halacha became stagnant. It could not develop naturally because it had to constantly look over its shoulder to make sure that Jews would not be affected by the non-Jewish world whose practices and ideologies might oppose Jewish ethical values; it had to make sure that Jews would not indirectly support non-Jews in their idolatrous traditions. During all these 2,000 years in exile, Halacha could not develop in its natural habitat. It was forced into a waiting mode, in anticipation of redeeming itself when Jews would again return to their homeland and live in freedom.
This great privilege, which Halacha has been dreaming about is actually happening in our own days! The Jews’ situation has drastically changed, specifically since the State of Israel was established. We no longer have to be defensive, as we were in the ghettos. Our State has given us long-awaited independence. We run our own affairs and are no longer afraid of the anti-Semitic world. If attacked, we will strike back. And idol-worship is long gone (10).
This means that Halacha can now develop in its original innovative way and be herself again. We don’t need to reform or update it. The reverse is true. We need to simply return it to where it truly belongs. We should remove the many foreign branches that have for centuries concealed its ancient roots. It requires a purifying process so as to bring it to complete spiritual fulfillment.
Yes, it has to be done slowly, with great care, and in a way that does not harm the core. But I haven’t the slightest doubt that we will discover a beautiful canvas with many different but harmonious colors that will deeply impress many of our fellow Jews and make Judaism irresistible.
To achieve that goal, we have to de-codify Jewish law and dispense with the official codes of law by which Judaism was able to survive in past centuries. Codification stagnates. While it was necessary in order to overcome the enormous challenges of exile, it has now become an obstacle, outdated and unhealthy, which to a great extent blocks the natural development of Halacha. Jewish law must move and grow, taking into account various developments in our world and giving them guidance.
And that can only happen when only if it is fluid and allows for a great amount of flexibility, which codification cannot offer. Certainly, some conformity is necessary, but unlike non-Jewish codifications, Jewish law is foremost a religious and spiritual tradition. As such, it can never be translated into immutable rules to be applied at all times, under all conditions, and for everybody, without considering the personal, religious and practical components. These elements vary drastically, as can be seen by the many different and even opposing opinions in the Talmud, which the Sages were not only aware of but seem to have actually encouraged.
What we need now is prophetic Halacha, dedicated to the great, authentic, ethical mission of the Jewish people as conveyed by the prophets, and combined with the demands of the Torah. The prophets preached a rare combination of particularism and universalism. They strongly advocated Jewish particularism, so as to keep the Jews separated from the rest of the nations. But they always viewed this in terms of universalism (11). There was a need for a central driving force, full of spiritual and moral energy that would consequently enable the Jews to inspire all of mankind and be “a light to the nations,” conveying the oneness of God and the significance of justice.
After all, universal ideas are impersonal and therefore ineffective unless they are actualized by a particular group that sees them as their raison d’être. Only by personal commitment to a universal mission can moral and religious values be activated, become concrete, and be effective.
Laws such as issur maga nochri become an obstacle to the universal mission of the Jewish people when they are applied to those to whom they are not applicable (12).
Instead of bringing non-Jews closer to our ethics and beliefs, this law concerning touching wine discriminates against gentiles and gives the impression that Jews look down on them and see them as secondary citizens of the world. It does the opposite of what Judaism really wants to accomplish. It undermines the possibility for Jews to become a “light to the nations,” which should be its main objective (13). Ultimately, the mission of the Jewish people will collapse under the contradictions of their own laws. This law has caused even many Jews to look down on Judaism, keeping them away from our beautiful tradition.
Does this mean that we should remove all marks of separation? Definitely not! We must continue to be different and marry only among ourselves, or with those who have joined our people. We should make our own wines and not drink those produced by our gentile friends, because wine is a sacred drink that needs to be sanctified by the beliefs of different religious communities. I would even suggest that each monotheistic religion produce its own wine, since it is not the fluid itself that is sacred but the winemaker’s intentions that have suffused the wine. Just as others have their customs, so should we.
It is nonsensical to believe that the world would be a better place if all differences would be eliminated. Distinctiveness is a most important aspect of our society, but it should not lead to a form of separation, which serves no real goal and is the outgrowth of something that was meant for a different time.
Should the law of yayin nesech be abolished altogether? Definitely not! We should not drink kosher wine that has been handled by terrorists, rapists, financial swindlers, men who refuse to grant divorces to their wives, self-hating Jews, and the like.
After all, the purpose of the law is to protest, not to discriminate.
It is high time for the rabbis to consider revisiting this ancient law and adapting it to our new reality (14).
My brother would agree.
- Conversion to Judaism. To this day, I find it strange to refer to myself as a convert because, having had a Jewish father, I never saw myself as a gentile.
- This just showed my complete ignorance. Nowhere does it say that the wine is cursed. The only thing mentioned is that it may not be consumed.
- See Shulchan Aruch, Yoreh De’ah, 124:11.As mentioned: Wine that is merely touched by a non-Jew is not prohibited. Maga means “handling.”. Two actions have to take place: touch and movement. See Yoreh De’ah ad loc. See, also, the interesting responsum by Rabbi Aryeh Leib Grossnass, of the London Beit Din, on whether a non-Jew who is already circumcised but has not yet converted is allowed to handle the wine bottle. His conclusion is that there is no problem. Lev Aryeh vol. 1 No. 33.
- Some of my halachic “opponents” may claim that I am overstating the case of wickedness and immorality as the reason for the law concerning yayin nesech, while the only real reason is idol-worship and its libations. However, this seems to me incorrect. What really bothered the Sages were the abominable, immoral acts that were inherent to paganism and their accompanying libations. For a careful study of this issue, see Menachem Meiri (1249-1316, France), Beit HaBechirah on Avodah Zarah, 15b, 22aand26a. Much literature has been published on the observations of Meiri’s understanding of the gentile world. See Dr. Marc Shapiro, “Islam and the Halacha,” Judaism: A Quarterly Journal of Jewish Life and Thought, Vol. 42, No. 3 (Summer 1993). Also, Dr. David Berger, “Jews,Gentiles and the ModernEgalitarian Ethos: Some Tentative Thoughts,” Formulating Responses in an Egalitarian Age (The Orthodox Forum Series), ed. Marc D. Stern (Lanham, MD: Rowman and Littlefield Publishers, 2005) pp. 83-108. Whether or not such ongoing and compulsive libations actually took place is a matter of dispute. See Sacha Stern,“Compulsive Libationers: Non-Jews and Wine in Early Rabbinic Sources,” Journal of Jewish Studies, Vol. 64, No. 1 (Spring 2013). See, also, Sanhedrin 63b.
- See Shulchan Aruch, Yoreh De’ah, 2:5. The wicked Jew is foremost identified as a mumar (apostate), who deliberately rejects Judaism and violates its demands. This was clearly seen as a form of wickedness. Nowadays, many authorities are of the opinion that such a definition can no longer be applied, since it is not malice that motivates him but ignorance, as well as the lack of revealed divine providence, which would convince him of the Torah’s truth. See Chazon Ish on Yoreh De’ah, Hilchot Shechita, 2:16, 28. See, also, Yaakov Etlinger, Responsa Binyan Tziyon HaChadashot,No. 23; Rabbi David Zvi Hoffmann, Responsa Melamed Leho’il, No. 29. Also, Rav Ovadia Yoseph, Yabia Omer, Vol. 1, Yoreh De’ah, No. 11.
- See Rabbi Yoseph Messas (1892-1974) from Algeria, Morocco, and later chief rabbi of Haifa; one of the greatest and most daring halachic authorities of our days, who believed that one may drink alcohol that contains wine that had been handled by Muslims. He even quotes a responsum by an earlier Moroccan rabbi who permitted the drinking of the wine itself (Rabbi Messas did not go so far) by stating: “There is no unity (of God) like the unity in Islam; therefore, one who forbids them to handle (wine) turns holy into profane by regarding worshippers of God as worshippers of idols, God forbid.” (Otzar HaMichtavim, Vol. 1,nos. 454, 462; Mayim Chayim, Vol. 2, Yoreh De’ah, No66.) Rabbi Messas is of a similar opinion concerning bishul akum (kosher food cooked by non-Jews). See Dr. Marc B. Shapiro, “Rabbi JosephMessas,” Conversations – The Journal of the Institute for Jewish Ideas and Ideals Spring 2010/5770, pp. 100-101. See, also, the teshuva of Rabbi Ovadiah Hadaya in Responsa Yaskil Avdi, Vol. 1, Yoreh De’ah, No. 4.
- Rabbi Berkovits (1908-1992) was one of the greatest talmudists of our time, and talmid muvhak ( distinguished disciple) of the famous halachic authority Rabbi Yechiel Weinberg z”l (1884-1966) author of Responsa Seridei Eish and last rosh yeshiva (rector) of the famous Hildesheimer Rabbinical Seminary in Berlin.
- Rabbi Eliezer Berkovits, HaHalacha, Kocha VeTafkida (Hebrew); Short version in English: Not in Heaven: The Nature and Function of Halakha (New York: Ktav Publishing House, 1983) See specifically chapter 4.
- For an in-depth overview, see Dr. Chaim Soloveitchik, “Yeinam: Sachar be-yeinam shelgoyim ‘al gilgulah shel halacha ba’olam ham’aseh,” Alma, Tel Aviv, 2003 (Hebrew). Also: Hayayin bimei habeinayim: yayin nesech (Wine in Ashkenaz in the Middle Ages: Yayin Nesech – A Study in the History of Halachah) Jerusalem: Zalman Shazar Center for Jewish History, 2008 (Hebrew).
- On the question of whether Christianity, Hinduism and other religions should be seen as forms of idol-worship, see: Alon Goshen-Gottstein and Eugene Korn, Jewish Theology and World Religions (Oxford: Littman Library of Jewish Civilization, 2012. Especially Part 111.
- See, for example: Shemot 19:15; Yeshayahu 40: 27-28; 42:5-7. See my book: Between Silence and Speech: Essays on Jewish Thought, (Northvale, NJ, and London: Jason Aronson, 1995) Chapters 3 and 5.
- There are other reasons for the prohibition against drinking wine that has been handled by a non-Jew. One reason is that drinking with non-Jews could lead to assimilation due to too much familiarity. It seems that the prohibition was more symbolic than practical, since other alcoholic drinks were not prohibited in this context. In the olden days, wine was by far the most popular alcoholic drink and was used specifically in religious settings. But this was wine that was not boiled. Once it was boiled, it was no longer used for worship; therefore the sages were lenient about boiled wine (yayin mevushal) and non-Jews were permitted to handle it. Strangely, this has no effect on the issue of familiarity. Jews and non-Jews could share a glass of wine together once it had been boiled. It is therefore clear that the rabbis wanted to establish a symbolic separation as a deterrent against assimilation. But they kept it to a minimum, prohibiting only wine that had not been boiled and that could be used for pagan libations. (Boiled wine was probably not known in ancient times.) Had they truly believed that it was imperative to make a pragmatic separation, they would have prohibited every kind of alcoholic drink. For a general overview of this complicated issue, see Israel Poleyoff, “Stam Yeinom”, Journal of Halacha and Contemporary Society, Vol. 14 (Fall 1962) pp. 67-82. Also, Encyclopedia Talmudit, Vol. 24, “Gentile Wine,” See especially pp. 390-398 concerning the reason for the prohibition against yayin nesech. While too much familiarity is still one of the primary causes of assimilation, one can hardly argue that the drinking of wine plays any role in this unfortunate situation. Religious Jews would not marry non-Jews even if they would drink wine with them, and those who run the chance of assimilating are the ones who don’t care about this law. So what does this prohibition accomplish? One can only claim that the law reminds religious Jews of their special status; but this is accomplished by prohibiting the drinking of wine produced by non-Jews, for reasons I describe in this essay.
- Several of my students informed me that they felt very uneasy when they had to remove a bottle of wine from the table and whispered to each other so as not to embarrass their non-Jewish friends, who eventually realized that something bizarre was taking place. This is even more embarrassing when the non-Jewish friend brings a kosher bottle of unboiled wine to the table. Those who are strict in this law, or know that others are, should use only yayin mevushal, so as not to embarrass their gentile friends.
- I admit that I have been deeply influenced by the incident with my brother, but I hope that my readers are thoughtful enough not to argue that the law would otherwise not have disturbed me. Should it not bother all thinking Jews? Subjectivity is a major factor in halachic decision making! See Dr. Aaron Kirschenbaum, “Subjectivity in Rabbinic Decision Making”, in Rabbinic Authority and Personal Autonomy by Moshe Z. Sokol (ed.) The Orthodox Forum Series (Northvale, NJ, and London: Jason Aronson, 1992) pp. 93-123.