The Status of "Chilonim" in Halakha (2)
YHE-HALAKHA:
TOPICS IN HALAKHA
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This
weeks shiur is dedicated by Mr. and Mrs. Harold N. Rosen
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This
week's shiurim are dedicated
in memory of Mrs. Cela Meisels, Tzerka Nechama
bat Shlomo,
whose yahrzeit falls on the 14th of
Tevet.
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THE
STATUS OF "CHILONIM" IN HALAKHA (PART 2)
Rav
Chaim Navon
III. THE STATUS OF A CHILONI IN OUR TIME
It must be admitted that many chilonim in our day reject the
halakhic system, desecrate Shabbat in public, and deny the fundamental tenets of
Judaism. Accordingly, there are authorities who apply to them all of the laws
that we saw above. Other authorities, however, note that there are important
differences between today's chilonim and the "public Shabbat desecrators"
and "apikorsim" in the time of Chazal. There are several
basic approaches regarding these differences and several different models for
formulating the novel standing of today's chiloni in the eyes of
Halakha.
a.
The absence of rebuke
We saw above that it says in Pesachim 113b that there is a
mitzva to hate a person who violates a prohibition. In the wake of this
Gemara the Rambam rules as follows:
The
enemy mentioned in the Torah (Shemot 23:5) does not mean a foreign enemy,
but an Israelite one. How can an Israelite have an Israelite enemy when
Scripture says: "You shall not hate your brother in your heart" (Vayikra
19:17)? The Sages said: For example, if he alone saw another transgressing a
prohibition and he warned him against it but he does not desist, there is a
mitzva to hate him until he repents and leaves his evil ways. (Hilkhot
Rotze'ach 13:14)
It should be noted that the Rambam adds a limitation "and he warned
him, but he did not repent." The author of Hagahot Maimuniyot formulates
a similar limitation:
But
only when he is your fellow in Torah and mitzvot. But regarding a wicked
person, who does not accept rebuke, there is a mitzva to hate him, as it
is stated: "The fear of the Lord is to hate evil" (Mishlei 8:13). And it
says: "Do I not hate, O Lord, those who hate You" (Tehilim 139:21).
(Hagahot Maimuniyot 6, letter 1)
The Hagahot Maimuniyot emphasizes that it is only a wicked person
"who does not accept rebuke" regarding whom there is a mitzva to hate.
There are those who have developed this point, relying on it in order to exclude
today's chilonim from this category. The Gemara in Arakhin (16b)
cites the words of Rabbi Elazar b. Azarya: "I wonder whether there is anyone in
this generation who knows how to offer rebuke." The Chazon Ish
(Shechita 2, 28) writes in the name of the Chafetz Chayyim that in
our day there is a mitzva to love the wicked, because in our day they are
regarded as being in the state of pre-rebuke, because there is nobody who knows
how to offer rebuke in proper manner. The Chazon Ish also draws from this
a stringent conclusion. We saw above that the Chazon Ish argues that
fundamentally anyone whose ritual slaughter is disqualified his widow is
exempt from yibbum. He adds, however, that in our day, we cannot rely on
this, because among other reasons, "by us it is pre-rebuke, for we do not know
how to rebuke, and we judge him like anus (one compelled by circumstances
beyond his control)."
It should be noted that the Chazon Ish significantly expands the
idea that in our time there is nobody who knows how to offer rebuke. It might
have been argued that we are dealing with a fact that is relevant solely to the
narrow law of hating and loving one's fellow Jew. Perhaps we are dealing with a
stage that must be passed before it is permissible to hate the wrongdoer. The
Chazon Ish does not accept this narrow understanding; he argues that
since we do not know how to give rebuke, all Shabbat desecrators and
apikorsim in our day are judged as anusim who sin due to
circumstances beyond their control in other halakhic contexts as well. Rebuke is
not understood here merely as the final obligation of the believing Jew towards
the skeptic, but rather as a real educational act, which when skillfully
performed can make the difference between Torah observance and heresy. The
absence of rebuke defines the heretic as someone acting under compulsion: he
never received the elementary spiritual support that he
needs.
b.
A child that was taken captive
The
concept of "a child that was taken captive" appears in Shabbat 68 in a
passage dealing with the intentional and unintentional violation of
prohibitions. The Rambam applies this idea to our context:
Minim
and
Sadducees and Boethusians
whoever started such a school from the outset should
be put to death, so that he not lead Israel astray and corrupt the faith
But
those who were born into such opinions and were raised in accordance with them
are like anusim, and they are governed by the law of a child who was
taken captive among the Gentiles, all of whose sins are regarded as
unintentional, as we have explained. But the originator is not an unintentional,
but rather an intentional sinner. (Commentary to the Mishna, Chullin
1:2)
This
applies only to one who repudiates the Oral Law as a result of his reasoned
opinion and conclusion, who walks lightmindedly in the stubbornness of his
heart, denying first the Oral Law, as did Tzadok and Boethus and all who went
astray. But their children and grandchildren, who, misguided by their parents,
were raised among the Karaites and trained in their views, are like a child
taken captive by them and raised in their religion, whose status is that of an
anus, who, although he later learns that he is a Jew, meets Jews,
observes them practice their religion, is nevertheless to be regarded as an
anus, since he was reared in the erroneous ways of his fathers. Thus it
is with those who adhere to the practices of their Karaite parents. Therefore
efforts should be made to bring them back in repentance, to draw them near by
friendly relations, so that they may return to the strength-giving source, i.e.,
the Torah, and one should not be hasty to kill them. (Rambam, Hilkhot
Mamrim 3:3)
The
Gemara in Shabbat deals with the halakhic status of an "omer
mutar" one who doesn't know that his action involves a violation of the
laws of Shabbat. The law of a child who was taken captive is brought there as an
example of an "omer mutar." While there is a disagreement in the Gemara
regarding a child who was taken captive, as well as any other "omer
mutar," whether they are liable to bring a sin-offering for their
unintentional violation of a prohibition, we seem to be dealing there with a
case of unintentional violation of a prohibition, and at most he is exempt from
the sacrifice because of a scriptural decree.[1]
The
Rambam himself rules in Hilkhot Shegagot (2:6; 7:2) that a child who was
taken captive among Gentiles is liable for a sin-offering for the transgressions
that he committed, from which we see that he is treated as an unintentional
sinner. The Rambam's words in Hilkhot Mamrim contain a threefold
novelty:
1)
A child that had been taken captive is regarded for the purpose of defining him
as an apikorus like an anus, and not merely as an unintentional
sinner.[2]
2)
The law of ones is relevant with respect to defining a person as an
apikorus.[3]
3)
A person who was raised among non-believers is defined as a child who had been
taken captive. The novelty in this point is sharpened in the Rambam's
understanding that even if afterwards "he saw the Jews and their religion," he
is still regarded as an anus. That is to say, the Rambam maintains that
if a person did not spend his formative years among Torah-observant Jews, then
even if he is later exposed to them, he is still regarded as an anus.[4]
Expression is given here to the Rambam's strong faith in practical education.
From a philosophical perspective, all paths are available to all people at all
times. But nevertheless, a person who was not educated towards Torah and
mitzvot from a young age, when his path in life was set, is regarded as
an anus, and we cannot blame him if he cannot change his
ways.
It should be noted that the law governing "a child who was taken captive"
is only relevant to a person who did not grow up in a religious
household.
c.
Anus
We
saw that the Rambam defines a person who was raised among non-believers as a
child who had been taken captive, and removes him from the category of
apikorus. The Rambam justifies his position with the rationale that a
child who had been taken captive by Gentiles falls into the category of anus.
We further saw that the Chazon Ish defines a heretic who hasn't
received appropriate rebuke as an anus. Rav Kook further expands the
definition of anus:
But
if you think, as do most, that it is appropriate to abandon and forsake those
young people who have strayed from the paths of Torah and faith because of the
tempestuous currents of our time I vigorously say that this is not the path
desired by God. Just as the Tosafot (Sanhedrin 76b, s.v.
ha-chashud) write that there is reason to say that one who is suspected
of sexual misconduct should not be disqualified from giving testimony, because
he is regarded as being under duress, because his passions overpower him, and in
similar fashion, the Tosafot (Gittin 41b, s.v. kofin) write
that since the maidservant entices them to sexual misconduct, they are regarded
as under duress so too regarding "the evil maidservant" of the currents of our
time
which with all of their many charms entice our young people to stray after
them. They are absolutely under duress, and God forbid that we should judge one
who is under duress as one who acts with free will. (Iggerot Ra'aya, I,
no. 138, p. 171)
According to Rav Kook, even a person who grew up in a religiously
observant environment and shed his faith on his own may have a status parallel
to that of a child who had been taken captive! Rav Kook develops the definition
of anus in this context, arguing that a person who grows up in a time
when heresy has turned into the norm is defined as an anus. As opposed to
the Chazon Ish and the Rambam, who relied on existing halakhic
structures, and argued that they are based on the law of anus, Rav Kook
relates to the law of ones as an independent consideration. Rav Kook,
however, does not specify the ramifications of this
definition.
d.
A community that sins unintentionally
The
Ramban explains the verse, "And if you have erred, and not observed all these
commandments" (Bamidbar 15:22), in a way that is related to our
discussion. He writes that the plain sense of the verse implies that if an
entire community errs in fundamental matters relating to the service of God,
they parallel a "child who was taken captive," even though the circumstances of
their error are very different:
Thus
this section according to its plain meaning refers to [the duty of] one who is
unwittingly an "apostate" with regard to the entire Torah, [to bring] an
offering, such as one who goes and becomes assimilated among one of the nations,
and behaves as they do and does not want to be part of Israel at all. This
applies if it was all done in error, such as in the case of an individual a
child who was taken into captivity among the nations [and grew up unaware of his
Jewish origin], and in the case of the community, if they [mistakenly] thought
that the time of the Torah had already passed, and that it was not given for all
generations; or if they say as is mentioned in the Sifrei "Why did
God give [the Torah]? Was it not so that we should observe it and be rewarded
for it? We will not observe it, and will take no reward."
Or [the section here
may refer to a time] when people forget the Torah. This has already happened to
us, because of our sins, for in the days of the wicked kings [of the kingdom] of
Israel, such as Jeroboam, most of the people forgot the Torah and the
commandments completely, as is mentioned [also] in the book of Ezra concerning
the people of the Second Temple. (Ramban, Numbers
15:22)
According to the Ramban, a community that went astray regarding the
foundations of the faith is defined as having sinned not intentionally, but
rather unintentionally, and its members parallel a child who was taken
captive.[5]
The Ramban, however, does not relate at all to the practical ramifications of
defining the community as unintentional sinners, other than defining their
actions as having been performed unwittingly. In any event, what is striking in
his words is the special treatment given to the community, and the recognition
of the power of social influence: an individual who erred is regarded as having
sinned intentionally, if he grew up in an observant Jewish home; but an entire
community that erred is regarded as having sinned unintentionally, even if all
of its members grew up in a normative society. With respect to an individual we
expect him not to stray, but if all of society has erred, we do not blame the
individual for not having arrived at the truth on his own.
e.
In public
As
may be recalled, we have seen that there are special laws pertaining to someone
who desecrates Shabbat in public. Rav D.Tz. Hoffman argues that in our time even
a person who desecrates Shabbat in public is not governed by the laws of a
public Shabbat desecrator:
For
in our time he is not called one who desecrates Shabbat in public, for the
majority of people act in that manner. Granted if the majority of Israel were
virtuous, and only a few would dare to commit this transgression, he would be
denying the Torah and performing an abomination in brazen manner and separating
himself from the rest of Israel. But since, owing to our sins, most of them
breach this fence
the individual doesn't regard this as a major sin so that he
doesn't have to do it in private, and his public act is like a private act.
(Responsa Melamed le-Ho'il, I, no. 29)
Rav D.Tz. Hoffman rules that in our day "his public act is like a private
act." Public Shabbat desecration is defined not only by the number of
spectators, but by the degree of defiance that it involves. Today, Shabbat
desecration in public does not express special defiance, and therefore it is not
defined as "public Shabbat desecration."[6]
Of course, this analysis relates only to the definition of a chiloni as
one who desecrates Shabbat in public, but not to the other definitions raised
above.
f.
The level of non-belief
Rav Kook argues that a "heretic" is only someone who is certain about his
atheism; a person who is in doubt about his faith is not defined as a heretic or
an apikorus:
Know,
that even though it is absolutely forbidden and an evil sickness, even one who
raises doubts and questions perfect faith nevertheless we only find that
Chazal treated as an apikorus one who denies the faith, i.e.,
decides the opposite with certainty. (Iggerot ha-Ra'aya, p.
20)
In light of this, a significant portion of chiloni society is
certainly removed from the category of "heretic."[7]
Rav Kook's words should, however, be compared with those of the Rambam in his
introduction to chapter Chelek: "When a person raises doubts about
one of these principles, he has removed himself from the community and denied
God." And he further writes regarding the eighth principle, faith in the coming
of the messiah: "Anyone who raises doubts about it or belittles it denies
the Torah." The Rambam seems to be saying that even the entertainment of doubt
can define a person as a heretic.
g.
Ineffectiveness
Some
of the laws invoked with respect to an apikorus or the like are intended
to pressure him into leaving his evil ways and to deter others from following in
his footsteps. The question arises regarding such laws whether or not they are
still relevant in a time when social pressure of this sort is no longer
effective.
The most problematic ruling relating to an apikorus is the law
that he is to be "cast into a pit and not rescued." The Chazon Ish has a
well-known ruling on this matter which is based on the understanding that this
law is meant to achieve certain social objectives:
It
seems that the law of casting [an apikorus] into a pit only applies at a
time when the blessed One's providence is manifest, e.g. at a time when miracles
were common, and heavenly voices were heard, and the righteous of the generation
were under personal providence evident to all, and the heretics were
particularly perverse in turning their passions to lust and wantonness. At that
time destruction of the wicked served as a fence for the world, for all knew
that leading the nation astray brought calamity into the world, and it brought
plague, and warfare and famine into the world. But in a time of concealment,
when faith is gone from the common people, the act of casting into a pit does
not repair the breach, but rather it adds to it, in that it appears to them as
an act of destruction and violence, God forbid. And since its entire purpose is
to repair, the law does not apply when it does not lead to repair. It falls upon
us to bring them back with chains of love, and to stand them in a ray of light
as much as we can. (Chazon Ish, Hilkhot Shechita 2,
16)
The law of "casting down and not rescuing" is meant to repair the
generation, and therefore, at a time when it will not lead to repair, but rather
make things worse, the law is not applied.[8]
Another more moderate example of this idea may be brought from the laws
governing verbal oppression. We saw above that the law of verbal oppression does
not apply in the case of a person who is not "with you in Torah and
mitzvot." Rav Yaakov Medan understands that according to the Chafetz
Chayyim (4, 7; Be'er Mayim Chayyim, letter 34), this law is based on
the assumption that when this type of social pressure is exerted upon the
sinner, he will repent from his evil ways. According to this, he argues, there
is room to discuss whether the allowance of verbal oppression in the case of a
sinner is still effective.[9]
It is, of course, not the objective of every law relating to an
apikorus to lead to practical social repair. There are laws regarding
which this last point is irrelevant.
h.
Neutralization of side issues
There are some special laws relating to an apikorus and the like
which the Sages understood are not connected in their essence to the person's
status as an apikorus. Some of the laws relating to an apikorus
and the like do not relate to their heresy in itself, but rather they indicate
another problem. There is room to discuss whether modern-day apikorsut
testifies to such a problem.
Rav Isaac Herzog[10]
investigated whether the disqualification of a sinner from giving testimony
stems from a special scriptural decree, or only from a fear that he will lie. If
we are dealing with a fear of lying, then the sinner, apikorus, and the
like are disqualified only because in general they are prone to moral decadence
and giving false testimony, and we are dealing with an incidental ramification,
rather than an inherent disqualification stemming from his sinful behavior and
heresy. According to this there is room to discuss whether in our time disbelief
attests to moral corruption. Rav Herzog inclined to be lenient on this matter.
Rav Avraham Sherman argued that the Rambam implies that there is a
disqualification that goes beyond the concern about false testimony.[11]
He inferred this from a close reading of the Mabit. The Mabit
writes as a simple matter that even a child who had been taken captive falls
into the category of "min" and intentional sinner, and therefore he is
disqualified from giving testimony. The only ramification of his being defined
as a "child who was taken captive" is that he is not subject to the law of
casting an apikorus into a pit and not rescuing him, but rather he is to
be reproached and drawn near to the Jewish religion in a peaceful manner.[12]
(Translated
by David Strauss)
[1] Following
Tosafot, ad loc. (Shabbat 68b, s.v. aval tinok). Rashi,
however, implies that according to Rabbi Yochanan and Resh Lakish, a child who
was taken captive is regarded as an anus, violating the prohibition owing
to circumstances beyond his control; according to him this is the case in all
instances of "omer mutar," and there is no special law of a child who was
taken captive. For the entire matter, see: Rav A. Wasserman, Re'akha
Kamokha, Ramat Gan, 5768, pp. 35-38.
[2] In order to reconcile
what the Rambam writes here with what he writes in Hilkhot Shegagot that
a child who was taken captive is liable for a sin-offering, it may be suggested
that he is regarded as an unintentional sinner who is close to an anus,
or else that the definition of ones regarding a sacrifice is different
than the definition of ones regarding his being defined as an
apikorus.
[3] The Rambam writes that
we apply the law of "casting into a pit and not rescuing" to an apikorus,
in order that "he not cause Israel to err and corrupt the faith." In light of
this explanation, there is room to say that even an apikorus who is not
blameworthy for his opinions should be put to death, so as not to cause damage
(just as the Rambam shows no leniency to an apikorus whose sincere study
brought him to his heretical ideas, and does not treat him as an anus).
Hence, the Rambam's assertion that an apikorus who is an anus is
not defined as an apikorus is novel.
[4] This is the accepted
understanding of the Rambam, as he was understood by the Bet Yosef
(Yoreh De'a 159), who ruled in his wake that Karaites are not to be
treated like heretics (Shulchan Arukh, Yoreh De'a 159:3). The
Radbaz (in his commentary, ad loc.), the Nimukei Yosef (cited by the
Bet Yosef, Yoreh De'a 159), and the Mabit (I, no. 37)
disagreed with him on this point.
There
are, however, those who infer from the Rambam's closing words, "and one should
not be hasty to kill them," that he too agrees that if they did not repent even
after living among Jews, they are treated like an apikorus (Mishneh
le-Melekh, Hilkhot Malveh ve-Loveh 5:2). It should be noted that
these words have been deleted in the common editions, but they appear in the
more precise editions. The Bet Yosef did not have these words, and
therefore he writes: "We do not forsake the explicit words of the Rambam for the
words of the Nimukei Yosef" (Bet Yosef, Yoreh De'a 159).
Perhaps had he been familiar with the precise reading, he would have ruled in
accordance with the Nimukei Yosef.
This
understanding, however, requires further study, for the Rambam himself writes:
"Although he later learns that he is a Jew, meets Jews, observes them practice
their religion, he is nevertheless to be regarded as an anus." Those who
draw their inference from the Rambam's closing words are forced to say that the
Rambam means that a person must make special efforts to rebuke him and persuade
him to repent, and only afterwards does he lose his status as an anus. It
seems more reasonable to understand that the Rambam means that one should not be
hasty to kill them, that is to say, one must carefully examine whether the
Karaites in question are indeed the children of Karaites who grew up among
Karaites, or they grew up among believing Jews, in which case they should not be
regarded as children who had been taken captive. It is also possible to explain
this in a different manner (as I heard from my dear friend, Rav Eli Reif) that
one should not be hasty in concluding that the law governing the Karaites is the
law of heretics, but rather one should carefully examine the matter before
reaching the Rambam's conclusion. Similar wording is found in Hilkhot De'ot
2:5: "A fence to wisdom is silence. Hence, a man should not be hasty in
reply, nor talk much"; and similarly in Hilkhot Mamrim 2:8: "Any court
that permits two things that have been declared forbidden should not be hasty in
permitting a third thing." In both of these places, "lo yemaher" means
one should not be hasty, but rather examine the matter
carefully.
[5] The Ramban does not
relate to the case of an entire community that thinks the Torah is untrue.
Whether such a situation is similar to that in which the entire community has
forgotten the Torah or that in which its members think that the observance of
mitzvot is optional, requires further study.
[6] Rav Hoffman wanted to
rely on this argument and other factors in order to allow Shabbat desecrators to
be counted toward a minyan. We saw, however, that the Rambam ruled that
Karaites cannot be counted toward a minyan, because they do not recognize
the obligation (Responsa ha-Rambam, ed. Blau, no. 265). According to
this, a person who does not recognize the obligation to pray with a
minyan cannot be counted toward a minyan, regardless of whether or
not he bears blame for his lack of belief.
[7] It should be noted that
Rav Kook himself did not apply this argument in actual practice in order to rule
leniently about the status of the chilonim in his
day.
[8] An allusion may also be
found in his words that the apikorsim of our day are not as wicked as the
apikorsim of the past, and this may serve as an additional reason to
relate to them differently.
See
also Shita Mekubetzet regarding the law of "casting down into a pit and
not rescuing": "All this requires much assessment, and that the scales be
adjusted by great sages and wise men. And a person's legs should never be light
to run toward bloodshed" (Shita Mekubetzet, Bava Kama
119a).
[9] Rav Y. Medan, "Al ha-Yachas le-Tzibur ha-Chiloni be-Dorenu,"
Daf Kesher le-Talmidei Yeshivat Har Etzion, vol. 7, p.
126.
[10]
Techuka le-Yisra'el al pi ha-Torah,
III, Jerusalem 5749, p. 232.
[11] "Ma'amad ha-Olim ha-Menutakim me-ha-Torah ve-ha-Mitzvot le-Or
ha-Halakha," Torah she-be-al Peh, 32 (5751), p.
72.
[12] "But when they do not
accept rebuke and fail to repent, they are like their parents, and they may
immediately be put to death by any person" (Responsa ha-Mabit, I, no.
37). See also Iggerot Moshe, Even ha-Ezer, IV, no.
32.
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