The Motivation for Instituting Changes in Halakha 2: Value Consideration

 

2. THE VALUE CONSIDERATION

 

Even after we have passed the obstacle posed by our immediate recoiling from halakhic change, we are still faced with another stumbling block. I mentioned earlier that the leading Rishonim insisted that every mitzva has a rationale. Before we decide to change a particular halakha, we must convince ourselves that the fundamental values upon which the halakha rests will be better realized through the new halakha that we wish to establish. This involves great pretentiousness. We believe that values favored by God are true; and we also believe that the ways in which God chose to actualize these values are the best and most successful. This being the case, why should we have the right to claim that we have a better way to actualize these values? Even a declared skeptic like Ahad Ha'am understood this point:

 

… For I myself do not believe in the utility or the possibility of artificial religious reform. I view anyone who proposes religious reform as one who wishes to freeze fire, that is, two opposites. Religion is religion only as long as its adherents believe in its Divine origins, whereas the idea of reform can only present itself after this belief is lost and the human mind no longer fears to approach the holy and see in it faults that require human correction. (Ahad Ha'am, Al Parashat Derakhim, Berlin, 1930, vol. 1, p. 108)

 

How then do we dare change Halakha? What differentiates between the changes that we judge legitimate and the "corrections" discussed by Ahad Ha'am?

 

It seems that we can justify our right to effect changes in Halakha, if we assume that value considerations can teach us that our original understanding of God's will was imprecise. That is, values occasionally enter the system of interpretative considerations, helping us decipher the will of God. We are not changing God's word; rather, we are trying to understand His intention.

 

A clear example of this may be found already in the conduct of Moshe Rabbenu. God commands Moshe to fight against Sichon: "Begin to possess it, and contend with him in battle" (Devarim 2:24). What does Moshe do? "And I sent messengers out of the wilderness of Kedemot to Sichon king of Cheshbon with words of peace" (Devarim 2:26). How did Moshe dare to deviate from what God said to him?

 

Chazal provide us with the following answer:

 

Even though the Omnipresent had not commanded me to proclaim peace unto Sichon, I learnt [to do so] from [what happened] in the wilderness of Sinai, i.e., from an incident that relates to the Torah which pre-existed the world. For when the Holy One, blessed be He, was about to give it [the Torah] to Israel, he took it round to Esav and Ishmael. It was manifest before Him that they would not accept it, but yet He opened unto them with peace. Similarly, I first approached Sichon with words of peace.

Another explanation: "From the wilderness of Kedemot" – From You who was in existence before the world. You could have sent one flash of lightning to burn up the Egyptians, but You sent me from the wilderness to Pharoah [to say gently, Let my people go]. (Rashi, ad loc., following Chazal)

 

Chazal tell us why Moshe dared to veer from the simple meaning of God's instructions. When Moshe came to interpret God's words, he took into consideration what he knew of God's moral nature. Indeed, it would appear from the plain sense of what God said that He favored immediate engagement in battle. If, however, we consider also the moral values to which God had already proven that He was devoted, we must interpret those words differently. God apparently meant that first of all we must send Sichon words of peace, and only afterwards, if there is no other alternative, we must go out in battle against him. In such a case, the moral consideration does not contradict God's word, but rather it serves as an exegetical tool that may help us understand the true will of God.

 

There are many examples of this principle. For example, R. Avraham Ibn Ezra argues that Chazal interpreted the verse, "And you shall circumcise your heart's foreskin" (Devarim 10:17) as a metaphor, because it is unthinkable that God would command us to perform such a cruel deed (Ibn Ezra to Shemot 20:1). The moral factor is integrated among the other exegetical considerations and affects our understanding of God's word.

 

In similar fashion, Rabbi Baruch Halevi Epstein, the author of the Torah Temima, explains why Chazal interpreted the verse, "An eye for an eye" (Shemot 21:24) as referring to monetary compensation, rather than physical retaliation involving the gouging of an eye: it is inconceivable that the Torah would command us to administer such a cruel and pointless punishment. Owing to this consideration, Chazal asserted that the Torah refers to monetary compensation, contrary to the literal meaning of the verse (Torah Temima, ad loc., no. 171).

 

As was stated above, we find many examples of this principle. In many instances, Chazal related to Torah values as exegetical considerations in the understanding of the will of God.[4] It must be admitted, however, that as a rule this approach is no longer practical in our day. We lack the authority of Chazal to return to the primary sources of Halakha and reinterpret the original intention of God's command. Practically speaking, the argument that we possess the key to understanding the original intention of God's word leads us to a dead end, for we are unable to translate this understanding into practical halakhic language. While we are dealing here with two different planes, a theoretical approach that leads to certain failure in its practical application is not very fruitful. From the theoretical perspective, as well, great self-confidence is required in order to argue that all the generations that preceded us erred in their interpretation of God's word, and that true understanding was revealed to us alone. We must, therefore, find a new basis for the pretension to fashion Halakha in accordance with our values. [5]

 

In our generation, we generally choose another avenue, which on closer inspection is not so very different in its essence. Instead of saying that we understand what it was that God had originally intended to command, we claim that God's original intention was, in fact, to establish the halakhic command as it is found before us. In certain circumstances, however, the literal application of this command offends the value that stands behind it, or other halakhic values. We must, therefore, seek legitimate halakhic devices through which to change it.

 

Here, too, we interpret God's intention, but in a different manner. We claim that since it is perfectly clear that a literal application of the Halakha as it now stands will harm values that are dear to God, it stands to reason that from the very beginning God must have intended that we employ halakhic devices in order to avoid applying the Halakha in those circumstances that it loses its moral significance. We are not dealing here with a direct clash with the simple primal understanding of the Halakha, but with the claim that in certain circumstances we must apply this basic understanding in its plain sense, and when circumstances change, we must strive to avoid such an application - and this is God's will. Here, too, we relate to what we are doing as an interpretation of God's will. Here, however, we do not assume the pretentious authority to reinterpret the original meaning of God's will.  We content ourselves with the assertion that from the beginning the simple and original meaning was only intended to be applied in certain circumstances. Already Rambam noted that from the beginning God intended that Halakha not be applied in its plain sense in all periods and in every situation:

 

God, may He be exalted, knew that the commandments of this law will need in every time and place – as far as some of them are concerned – to be added to or subtracted from according to the diversity of places, happenings, and conjuctures of circumstances. (Guide III:41)

 

Sometimes the change in circumstances stems from historical development, which gives rise to a new reality, which has new and different implications for Halakha. Other times, we are dealing with special circumstances, which may be relevant at all times and in all places. I shall first bring an example of the second category. Every halakhic authority who dealt with the issue of agunot has emphasized – following Chazal – the clear objective of finding allowances.  The formulation used by Rav Chayyim of Volozhin in his responsum (written to a colleague who did not accept R. Chayyim's lenient ruling) touches the heart:

 

I see that regarding most things we are headed in the same direction. It is just that you incline toward stringency, since the matter is not cast upon you. Just like you, I too did not turn to the allowances that emerge from study before the burden of decision-making was placed upon my shoulders. Now, however, as a result of our many sins, our environs have been orphaned of sages, and the yoke of ruling for the entire area was placed on my shoulders … I calculated with my Maker, and I saw it a personal obligation to gather all my strength in order to persevere in finding a remedy for the agunot. (Responsa Chut Ha-meshulash I:8)

 

Rav Hayyim declares here that the strict Halakha in this case does not incline to leniency. In the special circumstances surrounding an aguna, however, he who bears the burden of issuing a practical decision must search for a justification to rule leniently and allow the woman to remarry. A moral consideration – compassion for the aguna – brashly encroaches upon halakhic decision-making.

 

The conceptual foundation for this process is the belief that from the beginning God intended that in such circumstances we consider the moral factor as an exegetical consideration. From the outset, God intended that in certain situations we judge according to different rules of proof. We arrive at this conclusion by considering the moral factor as an exegetical consideration in understanding God's intention. There is no return to the Biblical verses or establishment of new halakhic foundations, in the manner occasionally adopted by Chazal. Consideration of the moral factor is done in the framework of confronting a specific halakhic question.

 

Now let us examine another example of a change based upon historic development. For this purpose, we shall examine the famous considerations of Hillel in instituting the pruzbul. The law of the Sabbatical year entails not only leaving the land fallow, but also canceling all debts.  This being the case, people began to refrain from lending out money to the poor.  Thus, the remission of debts during the Sabbatical year caused the poor more harm than good, and it became necessary to search for ways to circumvent this law. It is God's will that in such a time we look for ways to circumvent the command to declare a remission of debts. The conceptual basis for such circumvention is the belief that it is God's will that in such a period we search for legitimate ways that will allow us not to observe the Halakha in its plain sense.

 

We may be able to find another example of this process in the law of usury. Chazal and the Rishonim sharply condemn those who lend money at interest; they view usury as a grave moral corruption. In contrast, let us examine the words of Maharal:

 

There is no question that, in truth, interest benefits both of them [the lender as well as the borrower]. Taking interest is not forbidden because of commercial corruption, but only because of a Scriptural decree. (Chiddushei Aggadot on Bava Batra 75b, part I, p. 134)

 

Maharal does not connect this distinction to any halakhic change or historical development. Can we, however, ignore the striking change that the economy underwent between the Talundic period and that of Maharal? In the days of Chazal, interest was a cynical exploitation of the borrower's distress. In the more dynamic economy in the days of Maharal, interest was – as it is in our days – a fair compensation for the profits that the lender could have amassed had his money been available to him during the period of the loan. Just as it is possible to rent a donkey or a car, so it is possible to "rent" money. Thus, we understand why Maharal argues that interest is beneficial to the two of them – the lender and the borrower. The prohibition does not constitute social legislation, but a Scriptural decree. It would be more precise to argue that in the period of Chazal, the prohibition against taking interest had a clear and understandable rationale. It was only in a later period that the prohibition lost its rationale, and turned into a "Scriptural decree."

 

It stands to reason that it is against this background that we should understand the development of the heter iska – the halakhic device used to circumvent the prohibition against usury through the formation of a partnership. When the prohibition against usury loses its original rationale, and no longer protects the poor but rather hinders them, legitimate halakhic devices should be sought to circumvent it. We are not dealing here with an explicit assertion in the words of Maharal, but with mere conjecture. In my opinion, however, this is a highly reasonable conjecture.[6, 7]

 

As I stated at the outset, it is not my intention in this lecture to discuss the legitimate halakhic devices through which halakhic changes may be effected. In the entire discussion conducted above, and in that which will continue next week, I address with an entirely different question: When are we motivated to change Halakha? Even when we decide that Halakha should be changed, and even when that decision is firmly based on the idea that we are interpreting the word of God, and not changing it – even then we will not always succeed in finding the halakhic tools that will allow us to effect the desired changes.

 

Thus far, we have seen why we are at times motivated to search for a way to change Halakha. Next week, we shall see the problems that this entails. We must journey far before we may reach the conclusion that it is, indeed, desirable to change Halakha.

 

FOOTNOTES

 

[4] This issue is dealt with by M. Halbertal, in his Mahapekhot Parshaniyot Be-hithavutan, Jerusalem, 1997. Even though some of his conclusions cannot be reconciled with the halakhic tradition, his discussion greatly enriches the discussion of the topic.

 

[5] Another reason for choosing an alternative path is that in some cases there is no moral difficulty with the basic law, but only with one of its specific applications.

 

[6] Obviously, the comparison between pruzbul and heter iska is very partial. Regarding the remission of debts, the ideal situation is that people should lend money to the poor, and then remit the debts in the sabbatical year. In such a situation, there would be no need at all for the enactment of pruzbul. Regarding usury, on the other hand, it is doubtful that the ideal situation is a primitive economy that leaves no room for lending money at interest as a standard business procedure, in which case there would be no need for any form of heter iska. In both cases, however, we are dealing with a change in Halakha that was prompted by historical development. And in both cases, the theoretical justification for the change lies in the argument that it is God's will that we seek ways to change Halakha whenever applying it as it is stated leads to a moral difficulty.

 

[7] Additional examples of halakhic changes stemming from historical developments that create new moral considerations may be found in R. Avraham Yitzchak Kook's remarks regarding the allowance of selling Eretz Israel in the sabbatical year. See Shabbat Ha-aretz, Introduction, chap. 14. Rabbi Kook mentions there, among other things, that the allowance of selling one's chametz before Pesach became widespread at a time when large industrial concerns came into being, for whom the sale of chametz was vital for their economic survival.

 

(Translated by Rav David Strauss)