The Desecration of Halacha

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Judaism is in trouble. More and more of the unacceptable is being done and said in its name. It’s causing not only infinite damage to Judaism’s great message but also a terrible desecration of God’s name. What’s worse is that all of this is displayed in front of millions of gentiles watching television, browsing websites or listening to the radio. Many are repelled when they witness terrible scenes in which Jews attack each other in the name of Judaism. Media outlets around the world portray religious Jews in most distressing ways. While it cannot be denied that anti-Semitism plays a role and tends to blow the picture out of proportion, it is an unfortunate fact that much of it is based on truth. Non-Jews are dumbfounded when they read that leading rabbis make the most shocking comments about them, by which they demonstrate gross arrogance and discrimination. Even worse, many of them read about rabbinical decisions that seem to lack all moral integrity.

Twenty years ago, Yigal Amir assassinated Prime Minister Yitzchak Rabin in the name of Halacha (Jewish law), claiming that the prime minister was a rodef (someone who is attempting or planning to murder) because he put all citizens of the State of Israel in mortal danger once he participated in the 1993 Oslo accords. Amir therefore believed that the prime minister deserved the death penalty according to Jewish Law. In 1994, Baruch Goldstein killed 29 Arabs in a mosque in Chevron because he believed that Judaism obligated him to wreak havoc in order to ensure that Arabs would stop their terrorist attacks, which had by then killed thousands of Jews. Several years ago, the book Torat HaMelech was published. The authors, learned rabbis, argued that it was permissible to kill non-Jews, even without proper trial, once they have become a serious potential security threat to Jews. And so on.

One wonders how it is possible for such ideas to be expressed, or carried out, in the name of Judaism and Jewish law. Anyone who has the slightest knowledge of Judaism is fully aware that nothing within genuine Jewish law could condone, or even suggest such outlandish ideas and immoral acts.

Why does this happen?

Throughout the years, several rabbinical authorities have made a major, dangerous mistake by reducing Judaism to solely a matter of law, a kind of Pan-Halacha. They sincerely believe that Judaism consists only of rigid rules. In this way, they are paradoxically similar to Spinoza, who was of this opinion and therefore rejected Judaism, calling it obsessive, a type of behaviorism, and an extreme form of legalism (2). That Spinoza made this claim is one thing, but the fact that these learned rabbis agreed with him is more than a sorry state of affairs. It is an unforgivable blunder. Nothing is further removed from the truth than turning Judaism into a legal religious system without spirit, poetry and musical vibrations. This is proven by the nearly infinite amount of religious Jewish literature that deals with non-halachic matters.

The main reason for this terrible mistake is that these rabbis failed to study the basic moral values of Judaism as they appear in the book of Bereishit (Genesis). As is well known, with the exception of a few cases, this book does not contain laws; it is mainly narrative. To appreciate this, one needs to consider the following.

In this first biblical book, we encounter Avraham, Yitzchak and Yaakov as the foremost players. They are considered the first Jews in history. But this makes little sense. How could they have been Jews if the Torah was only given hundreds of years later to Moshe at Mount Sinai? Isn’t a person a Jew only once the law defines him as such? And although a Jew is a Jew even if he does not observe the laws of the Torah, it is still the Torah that defines him as a Jew. So how could the patriarchs be full-fledged Jews when the Torah was denied to them? Would it not have been logical to have given the Torah to Avraham, Yitzchak, Yaakov, and their wives long before Moshe? Only upon receiving the Torah would they have been real Jews! So why was it withheld from them (3)?

The answer is most critical. No law, including divine, can function if it is not preceded by a narrative of the human moral condition and the introduction of basic moral and religious values. These values cannot be given; they must develop within, through life experience. No academic instruction, not even when given by God, would be of any benefit. Such values need to develop gradually, on an existential level, shaped by innate values that God grants to each person the moment they are born; a kind of categorical imperative in the soul of man.

No law can function unless it first recognizes that life cannot be captured within the confines of the law. Life is larger than any law can ever conquer. Law loses contact with the realities of life when it operates in a vacuum.

More than that, it becomes impersonal and therefore dangerous because it cannot deal with human emotions and the enormous moral paradoxes encountered by human beings. As such, it runs the risk of becoming inhuman and even cruel.

It is for this reason that God did not give the laws of the Torah to the patriarchs. First there was a need to learn through personal trials and tribulations. The patriarchs and matriarchs needed to see with their own eyes what happens when mankind is not governed by law. But above all, they had to become aware of basic moral values, such as the fact that all human beings are created in the image of God, that all men are equal, that human life is holy, and that there is only one God Who is at the root of all morality. Only after man has been deeply immersed in and affected by these ideas and values can law be introduced as a way to put it all into action.

It was after the existential, moral turmoil in which Avraham, Yitzchak and Yaakov frequently found themselves, and their often problematic encounters with God, that a virtuous and religious awareness was born. This consciousness continued to work its way, with all its ups and downs, through the bondage in Egypt, the Exodus and the splitting of the Reed Sea. Only at that point was there a chance that the law could be received, and beneficial, when given at Sinai. Even then it wasn’t very successful, as is recorded in the many disturbing biblical stories about the Israelites failing to live up to the law in Moshe’s days and long afterwards.

But it is not just narrative, ethical values and the encounter with the Divine that are necessary to have before the law can be given. There is another important message: no law, including divine, can function without constantly taking guidance from these former values. There is nearly nothing worse than a divine law operating on its own without primary, innate moral values. It runs the risk of turning wild and causing great harm. It must be constrained.

This is the purpose of Sefer Bereishit (4). It is a biting critique on a halachic system that is applied without the acknowledgement that it needs these prior moral values in order to function. The book of Bereishit, then, keeps Halacha under control. It restricts it, regulates it, and ensures that it will not wreak havoc.

Truly great poskim (halachic arbiters) cannot lay down their decisions on the basis of Jewish law alone. The Shulchan Aruch (Codex of Jewish Law) by Rabbi Yoseph Karo and the Mishneh Torah of Rambam could become dangerous if they are applied in a vacuum. What these poskim must realize is that they need to incorporate the great religious moral values on which Sefer Bereishit stands.

The foremost point of departure in any halachic decision must be that all men are created in the image of God and that all human life is holy. While different tasks, inclinations and historical events should be recognized and allow for distinctions between people, no discrimination can ever be tolerated. Halacha should surely allow for the Jews to be different from other nations, but only as long as it realizes that other nations can make contributions that Jews cannot (5). For Jews to be the chosen people they need to acknowledge that this in no way can ever mean that they may look down upon others. What it does mean is that they have an obligation to inspire the world, as teachers inspire students even while recognizing that the students may be more gifted than they are.

It cannot be denied that throughout our long history this may have been forgotten, and laws have appeared that have not always lived up to these standards. Even biblical laws seem to have violated this principle. On several occasions they demanded that Jews show no mercy for some gentile nations that dwelled near the land of Israel during biblical times (6). But a closer look makes it clear that these laws were contrary to the original divine plan and reveal some kind of divine concession to highly unfortunate circumstances. The laws in question were meant to deal with these nations’ ongoing violence, immorality and virulent anti-Semitism, which had to be dealt with so that Jews could survive and uphold moral standards for the good of all mankind (7).

Highly disturbing is the case concerning Israel’s arch-enemy, the Amalekites, the Nazis of biblical times. The divine law required the Jews to wipe this nation off the face of the earth, including women and children. Such a law runs contrary to our innate moral intuition and the very values promulgated in Sefer Bereishit. Commentators have therefore gone overboard to explain this law in different ways, since they were unable to believe that such a commandment could ever have come from God Himself. They even believed that God tested the Jews to see whether they would understand their calling and thus refuse to implement this genocide (8), similar to the way Avraham refused to listen to God in the case of Sedom and Amora when he uttered the famous words: “Shall the Judge of all the earth not act justly?” (9) The commentators’ attempts are not apologetic but rather the outcome of their absolute conviction that there could be no other explanation. At a later stage they decided that the nation of Amalek no longer existed, so they could cancel the entire law (10).

It is remarkable that the Sages seem to have reacted similarly with several other biblical laws, such as the case of the ir hanidachat, in which the commandment is to annihilate the entire Jewish population in a city that is rampant with idolatry and immorality (11). Another example is the case of the ben sorer u-moreh, the rebellious son (12). In other instances, they seem to have been of the opinion that laws such as those regarding the mamzer, and agunot (13), should be severely limited to make them almost inoperative, and they often looked for loopholes to find a way out. While it remains a question why they did not completely revoke these laws, it seems clear that in all these cases it was the overriding moral principles of Sefer Bereishit that motivated them (14).

The Sages struggled with, re-interpreted and sometimes even abolished these laws because they understood that without the moral religious values of Sefer Bereishit, halachic chaos would reign and grave injustices would be done.

One of the greatest tragedies of Judaism in modern times is that certain halachic authorities, as well as people like Yigal Amir and Baruch Goldstein, forgot to study the first book of the Torah. They have become so dedicated to the letter of the law that they have done the inconceivable and have caused the degradation of Halacha.

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1. A rodef is defined as someone who is attempting or planning to murder.
2. See, for example, Tractatus Theologico-Politicus III, IV and XIII.
3. Chazal (See Mishnah Kiddushin 4:14) state that they did observe (some of the) commandments. For a discussion on the topic, see Talmudic Encyclopedia, vol. 1, pp. 36-37.
4. Netziv’s introduction to Bereishit in his Ha’amek Davar.
5. Or HaChaim’s commentary on Shemot 18:21, toward the end. See, also, Thoughts to Ponder 284.
6. Devarim 7:1-2.
7. Many rabbinical laws were instituted for similar reasons. They were mainly introduced as protective measures to ensure that Jews would not suffer at the hands of anti-Semitism. At other times, laws were introduced to counter assimilation and non-Jewish undesirable influences. These laws seem to discriminate against gentiles and indeed some halachic authorities and thinkers believe this to be the case. I believe, however, that these laws were originally meant to protest against gentiles, such as the Nazis, who had low moral standards or were committed criminals. These laws did not relate to well-mannered non-Jews. See the many observations of the great Talmudic commentator Menachem Meiri (1249-1316) in Beit HaBechirah – for example, his commentary on Sanhedrin 57a and Avodah Zarah 2a. Surely these laws should be abolished because they run contrary to the principle of divine equality as taught by the Torah. Perhaps any law that gives the impression that non-Jews are discriminated against, such as the law that non-Jews are allowed to do some work for Jews on Shabbat (the “Shabbos goy”), should be abolished, unless Jews will do certain work for gentiles that can’t be done by them on certain occasions. The fact that the State of Israel is still dependent on the “Shabbos goy” is highly problematic and inconsistent with the principle of national independence. Daring and innovative rabbinical decisions are far overdue. Violating Shabbat to save non-Jews is an absolute obligation, notwithstanding the fact that some authorities have questioned this. There is no doubt that Avraham, Yitzchak and Yaakov would have done so. See Netziv’s observations in his introduction to Bereishit, Ha’amek Davar.
8. Midrash Tanchuma Parshat Tzav, 3. In the case of King Shaul, who was commanded to kill the Amalekites (Shmuel I, ch. 15), he exclaimed: “If the adults have sinned, what is the sin of the children?” According to one problematic source, as found in the Talmud (Yoma 22b), God responded that he should not be overly righteous. But as seen in the above Midrash Tanchuma, God “changed His mind” after Moshe showed him the injustice of the commandment [Devarim 7:1-2] to wipe out the women and children of the “seven nations more numerous and powerful” than they. The same no doubt applies in the case of King Shaul.
9. Bereishit 18:25.
10. Mishnah Yadayim 4:4; Brachot 28a.
There is even a tradition that the fulfillment of this commandment is deferred until the messianic age. See Radbaz on Rambam’s Mishneh Torah, Hilchot Melachim 5:5.
11. Devarim 13: 13-16; Sanhedrin 71a.
12. Devarim 21:18-21; Sanhedrin 71a.
13. Women who did not receive a get (bill of divorce) and whose husbands disappeared and it is unknown whether they are alive or not. See, for example, Responsa Yabia Omer Part 6, Even Ha’ezer 3. (Today’s agunot are, for the most part, women whose husbands refuse to give them a get for any number of reasons.)
14. For a discussion: Eliezer Berkovits, HaHalachah: Kochah VeTafkidah; short English edition: Not in Heaven: The Nature and Function of Halakha (New York: Ktav Pub., 1983).

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Questions to Ponder from the David Cardozo Think Tank:
[We suggest printing out and discussing at your Shabbat table, if you like.]

1) Rabbi Cardozo says that more and more of the unacceptable is being done in the name of Judaism. Who is the arbiter of what is or is not acceptable? Must individuals determine this for themselves, or is there a point at which they must accept a widely prevailing view?

2) Why do we believe that our forefathers and mothers were “full-fledged Jews”? Perhaps, as Rabbi Cardozo implies in other essays, full-fledged Judaism only became necessary later in history. The Muslims see Abraham as having been the first Muslim. Can we deny this? Do we need to deny this? Would it be more sensible to see our ancestors as proto-Semites, and is there anything threatening about this?

3) If natural values are embedded in the soul of each person at birth, and if I am an exceptional individual who can achieve a life that is loyal to these values in the absence of the nitty-gritty of the law, is that good enough? Is it better? What if I feel that the laws hamper my achievement of these values – does it become a virtue to ignore some of them?

4) Rabbi Cardozo claims that “no law, including divine, can function if it is not preceded by a narrative of the human moral condition and the introduction of basic moral and religious values.” According to this view, there is something outside of divine law, and God is beholden to it. Do you accept this view? Do you think that Good is defined by God’s law, and that, whether it makes sense to me or not, if God has decreed something, it must be Good?

5) Rabbi Cardozo claims that divine law runs the risk of being cruel and inhuman if it is not tempered by the values of Sefer Bereishit. Do you believe that divine law need be human? We know already that divine law can be cruel; is it our job to face God and say, “No, Your law violates my best human understanding of appropriate behavior and I will therefore violate this law”? If so, is there a difference between claiming that an apparent law cannot in fact be the law, and claiming that though it is the law, it is our moral, human duty to violate it?

6) Rabbi Cardozo claims that our ancestors had to become aware that all human life is holy and that the one God is the basis of all morality, and that they came to this awareness only after moral turmoil and problematic encounters with God. Did they come to understand the above principles because they were special, or do you believe in the theory of natural law by which anyone can know what is good? Is it possible for people who are not as special as our ancestors to learn from the experience of others by reading about it, say in Sefer Bereishit? Is it fair to expect people who have never experienced God’s revelation to display a mature ability to balance divine law and innate values?

7) Do you believe that lone actors such as Baruch Goldstein can teach us about the attitudes of an entire nation/religion? Do you think that the reaction of the nation to their actions, and the mechanics of state as applied to these individuals, is the true test of the morality of the nation?

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