My Brother and the Kosher Wine Bottle – Defensive Halacha and Prophetic Halacha

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.