YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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PHILOSOPHY OF HALAKHA
By Rav Chaim Navon
 
LECTURE #6a: The Motivation for
Instituting Changes in Halakha (Part IIa)

THE DANGERs posed by THe consideration of halakha's underlying values 

In the previous lecture, we presented a theological justification for attempts to change Halakha. God unquestionably knows better than we do what is the right thing for us to do, but He Himself wants us to modify the law whenever its practical observance is liable to detract from the value upon which that law is based. It is precisely this point, however, that contains the primary obstacle standing in the way of any attempt to institute changes in Halakha.

In order for us to be convinced that a certain halakha should be changed, we must be absolutely certain about three things: 
1)	We perfectly understand the value underlying the mitzva. 
2)	It is absolutely clear to us that observing the mitzva in the circumstances under discussion contradicts that value or some other Torah values. 
3)	In the case of a clash between two competing values, where one value is actualized through the mitzva and the other is harmed by it, it is clear to us that the injured value is the more important one.

The first point is a matter of interpretation – we must have total confidence in our understanding of the considerations that God took into account when He legislated the mitzva. The second point relates to our perception of reality – we must fully understand the complex, real-life implications of observing the mitzva. And the third point is axiological, that is, it assigns value – we must achieve inner certainty regarding the priority that should be given to one value over another.

For example, when Hillel instituted the prozbul – a rabbinic enactment allowing for loans to be collected after the Sabbatical year - he first had to persuade himself of the truth of the following two assumptions: 
1)	The Torah commands us to remit debts in the Sabbatical year in order to protect the poor. 
2)	In the circumstances prevailing in Hillel's time, observing this mitzva caused the poor to suffer even more, because people of means refrained from lending them money. 

This led Hillel to the conclusion that it would be preferable to circumvent the law requiring the remission of debts. Hillel did not have to deal with the third point – the axiological consideration – because in the case under discussion there was no clash of values. Only one value had to be considered, for it was the mitzva's rationale itself that was being hurt by its practical observance.

This is a relatively easy case.[1] The matter would be more complicated were we to assume that the mitzva of remitting debts has a different rationale, for example, demonstrating God's absolute dominion in the world. In that case, Hillel would have had to be certain about the following three points: 
1)	The rationale for the mitzva of remitting debts is the demonstration of God's dominion. 
2)	In Hillel's day, the actual observance of the mitzva caused the poor to suffer.
3)	When these two values clash – demonstrating the sovereignty of God versus reducing the suffering of the poor – greater weight should be given to lessening the suffering of the poor. 
Only after reaching these three conclusions could Hillel have proposed the enactment of the prozbul.

It is here that we confront the primary danger posed by the attempts to change Halakha. Who will guarantee that we have indeed reached the right answers to all three questions? From where can we muster the deep confidence that our judgment in these matters is correct?

First, we must reach absolute certainty regarding the original rationale of the mitzva (for in the absence of such certainty, we cannot examine the degree to which that rationale is still relevant today, nor can we contrast it with other values). From where can we draw such certitude? How can a person pretend to argue that he has plumbed the depths of the Torah's thinking and arrived at a full understanding of the rationale of any particular mitzva? 

My revered teacher, the Rosh Yeshiva of Yeshivat Har Etzion, Rav Aharon Lichtenstein, once said that of all of Rambam's writings, the section he finds least persuasive is Rambam's discussion of the rationales of the mitzvot in the third part of his "Guide of the Perplexed." There Rambam explains the rationales of the mitzvot, basing himself on his particular philosophical outlook and upon certain texts that describe the idolatry of ancient times. In great part, neither Rambam's philosophy nor these descriptions of ancient idolatry have stood the test of time. Rambam's analysis, ultra-modern in terms of his own day, became out-dated far more quickly than the rest of his writings. It is very difficult to analyze God's intention with respect to a particular mitzva with any degree of certainty.[2] And as long as we lack such certainty, as long as we have failed to uncover the rationale of a particular mitzva, we have no way to test whether the rationale is relevant in our day, or how it compares in importance to other values.[3]

Second, we must reach absolute certainty regarding the practical effects of a particular mitzva. This too is a problematic point, though less so than the previous one. It is very difficult to analyze in a comprehensive manner the totality of the personal and societal implications of a particular mode of conduct. Chazal had an instructive comment regarding this matter:

Why were the rationales of the Torah not revealed? For surely regarding two passages where reasons were given, the greatest man in the world stumbled. It is written: "Neither shall he multiply wives to himself, [that his heart not turn away]" (Devarim 17:17). Shlomo said: I will take many [wives], but not turn away. And it is written: "For it came to pass, when Shlomo was old, that his wives turned away his heart" (I Melakhim 11:4). And it is written: "But he shall not multiply horses to himself, [nor cause the people to return to Egypt]" (Devarim 17:16). Shlomo said: I will take many [horses], but not cause [the people] to return. And it is written: "And a chariot went out of Egypt" (I Melakhim 10:29). (Sanhedrin 21a)

Shlomo knew the rationales of these mitzvot, for they are explicitly spelled out in the Torah. Nevertheless, he failed in his assessment of the practical implications of disregarding them. Shlomo thought that he could multiply wives and horses without falling into danger, but he erred in his estimation of how he would actually behave in real life. It is difficult to assess precisely how the multiplication of wives influences a king's personality, and so it is irresponsible pretension to aspire to annul this prohibition. Shlomo thought that in the circumstances of his time the practical implications of ignoring the prohibition would be insignificant, but he was absolutely wrong. This is the second point: Even if we can say that we have uncovered the true rationale for a particular mitzva, we must still be able to assess with certainty all the practical effects of that mitzva.

Third, and this is the most problematic point, we must decide between conflicting values. This is a mission that borders on the impossible. Let us say, for example, that we have concluded that the prohibitions of Gentile bread and Gentile cooking do in fact contribute to the preservation of the uniqueness of the Jewish people and their distinction from the Gentile world. At the same time, however, these prohibitions seriously hamper the economic development of the Jewish community. We are dealing here with two conflicting values; who will tell us which value to choose?

Let us consider another example: In places with cold climates, stringency in the area of cooking on Shabbat forced those who were more meticulous to eat cold food at the Shabbat meal. Here we have a clash between the prohibitions of Shabbat, which give expression to lofty religious values, and the enjoyment of Shabbat, which also enjoys great importance. Put differently, there is a clash between "remembering" Shabbat and "keeping" it.[4] How should one act in such a case? Again, we are not raising a question on the practical halakhic level, but on the level of values: Which value should be given priority? What halakhic result should we strive for?

On this level, there is deep and well-founded concern that a person will try to force his own personal values on the Torah. Value judgments do not allow for rational criticism. The values that prevail today are very different from those that were self-evident only forty or fifty years ago. When we face conflicting values and try to decide between them which is more important, a great danger exists that we will be influenced by the spirit of the time and by changing cultural fads. We could adduce innumerable examples that prove that such fear is justified. We shall suffice with two examples that demonstrate the danger of value judgments that rest upon the cultural norms of a particular society.

When Flavius Josephus summarized the law regarding the rebellious son, he exaggerated the role played by his parents, far beyond what is found in the Halakha as it has come down to us. He asserts, for example, that it is the parents, and not the court, who send their son out to be stoned. Josephus explained the central role of the parents in the punishment of their son as follows: "For they have the authority of judges with respect to their son" (Antiquities of the Jews, book IV, ed. A. Shalit, line 260). It has been suggested – and very reasonably so – that Josephus altered the laws of the Torah in order to make them more similar to Roman law, which grants a father full ownership and control over his children.[5] In Josephus's day, the prevailing cultural norm was that a father enjoyed absolute ownership of his children. Josephus wished to "renew" Judaism and bring it closer to the prevailing morality, and so he forced this conception upon Halakha. In our day, when our moral instinct is precisely the opposite, it is easy for us to discern the artificiality of Josephus's approach; Heaven forbid that we should think that this is what the Torah says! But was this distinction so clear and simple at a time when this was, in fact, the position of any "enlightened person"?

A second example, one that is much closer to our world, may be adduced from the laws of divorce. At the end of the nineteenth century, a group of French Rabbis tried to justify the halakhic validity of a bill of divorce issued by a civil court. The great Torah authorities of the period rose up against them, and the idea was forgotten. Of special interest to us are the remarks of one of the greatest opponents of the new initiative, Rabbi Yehuda Lubetzki of Paris:

Twenty years ago, before the French lawmakers passed a law establishing divorce, the people of France did not know of divorce. The same was true of the Jews of France and the Rabbis who stood at their helm. And when it occasionally happened that a divorce according to Jewish law with the consent of the husband and wife transpired among the Jews who came here from other countries … it was an abomination even in the eyes of the Rabbis. They scorned them, saying that the Jews of Russia and Austria do not live according to custom and acceptable behavior in that they sever the tie between husband and wife. Even when the marital bond is not good, it is right that husband and wife should suffer together forever, for the bond must be strong, never to come apart. The laws of the Torah do not suit the spirit of the time and the laws governing contemporary behavior.
When, however, laws were passed in 1884, establishing divorce also in France, the position of the Rabbis reversed itself completely; custom and accepted behavior received a new face as well. Then they began to cherish the ancient laws of divorce conducted according to the law of Moshe. They took divorce beyond what is written there, for the Torah said: "And it come to pass that she find no favor in his eyes, because he has found some unseemliness in his eyes, he shall write her a bill of divorce." That is to say: "he shall write her" – of his own free will, the husband has the right to divorce [his wife] even against her will. Rabbenu Gershom Me'or Ha-golah added (without detracting, God forbid) an enactment requiring her consent as well, so that a divorce is only valid with the consent of both parties. But to institute divorce based on the consent of others when the husband objects, that is not divorce at all.
Since the law was passed in France allowing divorce without the husband's consent, solely at the discretion of the civil judges, the reforming rabbis strove to fit the view of the eternal Torah of Moshe with that of the French lawmaker which is liable to change in every generation. (Rav Yehuda Lubetzki, Ein Tenai Be-nisu'im, Vilna, 1930, p. 1)

Rav Lubetzki mockingly describes the changes in the position of the French Rabbis. As long as France followed Catholic law, which absolutely forbids divorce, the Rabbis also related to divorce as an outdated institution whose time has passed. After the law was changed, and the French lawmakers legislated that either party to a marriage can force divorce upon the other – the view of the Rabbis underwent a hundred-and-eighty degree turn. The view that prevailed among them was critical of Halakha for not allowing a woman to divorce her husband. This critique led them to far-fetched attempts at validating a bill of divorce that was initiated by the wife and imposed upon the husband by a civil court.

We shall conclude our discussion of changing Halakha next week.

(Translated by Rav David Strauss)

FOOTNOTES:

[1] This is also a relatively easy case for the reason mentioned in the Gemara, namely, that Hillel relied on an explicit verse that forbids a person to refrain from lending money to the poor prior to the Sabbatical year.

[2] See also Rabbi Yehuda ha-Levi, Kuzari, pt. II, end of sec. 26.

[3] Regarding this matter, there is obviously a difference between biblical laws and rabbinic enactments: It is easier to uncover the rationales underlying laws legislated by man. To a certain degree, this distinction pertains also to the third consideration to be discussed below.

[4] It stands to reason that these or similar dilemmas constitute the backdrop for the way these laws developed in Ashkenaz. Anyone who examines the laws of Gentile bread or cooking will find it difficult to ignore the far-reaching leniencies that came into being during the Middle Ages in Ashkenazic society (YD 112, 113). Regarding cooking on Shabbat the changes are less striking, but there too we find an unusual tendency toward leniency in the Ashkenazic rulings (see especially OC 253, 318). Obviously, even if we are dealing with a conscious program, the lenient rulings are supported by absolutely legitimate halakhic arguments.

[5] See, for example, M. Halbertal, Mahapekhot Parshaniyot be-Hithavutan (Jerusalem, 1997, p. 66).