The Status of "Chilonim" in Halakha (Part 2)
YHE-HALAKHA: TOPICS IN HALAKHA
This weeks shiur is dedicated by Mr. and Mrs. Harold N. Rosen
week's shiurim are dedicated
in memory of Mrs. Cela Meisels, Tzerka Nechama bat Shlomo,
whose yahrzeit falls on the 14th of Tevet.
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.
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) The law of ones is relevant with respect to defining a person as an apikorus.
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. 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.
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. 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." 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." 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.
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.
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.
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 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. 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.
(Translated by David Strauss)
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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).
 Rav Y. Medan, "Al ha-Yachas le-Tzibur ha-Chiloni be-Dorenu," Daf Kesher le-Talmidei Yeshivat Har Etzion, vol. 7, p. 126.
 Techuka le-Yisra'el al pi ha-Torah, III, Jerusalem 5749, p. 232.
 "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.
 "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.