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

The prevailing values of society are relative and temporary. Any attempt to decide matters according to our moral inclination is destined by its very nature to be greatly influenced by the fads of the society in which we live. It would be superfluous to explain the great dangers posed by the attempt to make Torah conform to passing fads. The Torah is eternal; we must derive from the Torah those values upon which it rests, rather than force our own values upon it. It is God who knows what is true and good, and it is He who incorporated those values into His Torah. We must fashion our world according to the Torah, rather than fashion the Torah according to our world.

How, then, can we ever reach the conclusion that, in light of the values that underlie a particular mitzva, a change in Halakha is necessary? As we have explained, with changing circumstances, the moral implications of a mitzva sometimes change as well. But how can we know by ourselves which values are true, and which are merely passing fads?

Moshe Rabbenu provides us with direction to the answer. In a previous lecture, I cited the words of Chazal, who explained that Moshe sent Sichon peace emissaries, even though God had commanded him to wage war against him, because he relied on the behavior of God Himself who loves peace and pursues peace. Familiar with God's virtuous qualities, Moshe understood that here too God meant that he should first test the avenue of peace. Moshe was not afraid that he might be giving priority to passing values over Torah values, for the simple reason that his source for the value of peace was God himself. When the injured value that we wish to repair is clearly a Torah value, the danger of being influenced by passing fads is greatly diminished. The motivation to institute halakhic change is legitimate when it is driven by Torah values and not external ones.

The desire to distinguish between Torah values and external ones is not easy to execute in practice. In some cases it is relatively easy to be certain about the source of a particular value. This is generally the case when the change works to strengthen the value embodied in the mitzva itself. This is obviously so in the various precautionary measures, about which God instructed: "Erect a protective measure around my prohibition" (Yevamot 21b). According to Ramban, for example, the prohibitions regarding intimacy (kissing, hugging, and the like) with a woman who is forbidden to a person are by Rabbinic enactment. Regarding Rabbinic prohibitions of this sort it is clear that they match the objective of the Torah: The Torah set us apart from illicit sexual relationships, and Chazal came and distanced us even further.

Such certainty also exists in certain cases that do not involve classic precautionary measures. Regarding a non-Jewish female prisoner of war, Chazal write that the Torah came to minimize the damage – "the Torah only speaks in consideration of the evil inclination" (Kiddushin 21b). Chazal's interpretation fits in well with the particulars of the law, which clearly come to restrict the allowance, rather than to encourage its use. This being the case, it is clear that from the Torah's perspective, it is preferable not to utilize the allowance regarding the female captive at all, as this is Scripture's objective. Were we, therefore, to find a clear ruling forbidding a female captive, it would be a direct extension of the Torah's basic inclination on the matter.[6]

In similar fashion, the Chatam Sofer writes that if a person has no desire for the baby birds, he should not take them and send the mother bird away in order to fulfill the mitzva of sending the mother bird away. The Torah's objective in this mitzva is to minimize the offense committed against the bird, for whatever reason, and it is clearly preferable not to use the allowance at all, and thus reduce the offense all the more (Responsa Chatam Sofer, OC, I, no. 100).[7]

When, however, we are not dealing with the extension of a moral objective that stands out in the mitzva itself, the guideline in locating the source of a value is very general, and not always helpful. It is very difficult to clarify which values we draw from the Torah, and which from the society that surrounds us. Usually the situation is more complex. Our values are a complicated mixture of influences from different sources, and it is often difficult to isolate the source of each value. We read the Torah through the spectacles of our values, and so it stands to reason that we will find in the Torah those values that we already believe in. We frequently come across values that the Torah, in fact, recognizes, but nevertheless assigns a relatively low position in its hierarchy of values. In such a case, the distinction is even more difficult. Thus, for example, while ecological issues are certainly mentioned in biblical and rabbinic sources, they clearly do not enjoy a central position in the Torah's system of values. 

It is not my intention to argue that one should entirely disregard values that are not stated explicitly in the Torah. Often, a primary Torah value leads to a secondary value that stems from it, even though the secondary value is never explicitly mentioned in the Torah or it is mentioned in very restricted fashion. If we consider once again the example of ecological issues, it may be argued that this value stems from central Torah values, such as the obligation to settle the world and the prohibition to destroy it, modesty in the face of the Creator's work, concern for future generations, and others. For all the aforementioned reasons, distinguishing between values rooted in the Torah and values stemming from our social environment is a difficult task.

Difficult, however, does not mean impossible. It may be difficult to reach a clear and unequivocal conclusion regarding the source of our values. But it is certainly possible to come close. Every individual is obligated to examine again and again the degree to which he honestly believes that the particular value upon which he is basing his position occupies an important place in the Torah. It is often very easy to discern modern values, regarding which it is highly doubtful that the Torah related to them as valid or central. On the other hand, one must test the degree to which the value "under attack," that value which we wish to reject in favor of some other value, plays a central role in the halakhic system.  To the extent that we are dealing with a central value which expresses itself in many laws, the more difficult will it be for us to argue that other values supersede it and push it aside.

Since we are dealing with a difficult mission, we must take special care as we approach the question of halakhic change. Before we decide upon searching for possible ways to effect a change in Halakha, we must ascertain that in the particular case we are not forcing upon the Torah values that happen to be in fashion. As long as we have not reached such certainty, we must refrain from any attempt to change and renew Halakha.

CONCLUSION

In these lectures, I have tried to relate to the fundamental question regarding changes in Halakha, namely, the question of motivation. Even in a case where we have the halakhic instruments to effect change, we must first ascertain that such a change is indeed desirable. The first obstacle is the immediate recoiling from an excess of initiated changes in Halakha. Over-zealous human involvement in the "renewal" of Halakha destroys the sense of obligation and subjugation upon which Halakha rests.

The primary obstacle, however, is the issue of values. Every mitzva has a rationale based on some value, and a change in the mitzva is liable to undermine its positive moral implications. Before we decide to change Halakha, we must reach the conclusion that in the special circumstances under discussion, the change will bring benefit that will make up for the damage it causes. Arriving at such a conclusion is not easy, for it requires full confidence in our moral judgment and discernment of reality.

Let us take as an example the question of the structure of the family unit. There are various halakhot which imply that the husband has a more dominant position regarding certain aspects of the family unit: for example, it is the husband who betroths his wife, and it is he who divorces her. Let us say that we could find a way for the woman to divorce her husband. Is this desirable? Are the values of absolute equality and total identity anchored in Halakha? How can we explain the many halakhot which, on the face of it, provide us with a different conception of the family unit, one which assumes that the husband and wife have different roles, and that they do not function in the same way within the family? Do the attempts at creating symmetry in the processes of creating and dissolving marriages stem from clear Torah values, or perhaps from passing social conventions? Extremely powerful questions rise here, regarding which I would be surprised to hear that the proponents of change have adequate answers.

Wherever there is a clash between a Torah value and a contemporary societal value, we must fashion our values according to the Torah, rather than the Torah according to our values. Only when it is clear that our desire for change stems from deeply-rooted Torah values is there room to pass to the next stage, and test whether there is a halakhically acceptable possibility of instituting such change.

(Translated by Rav David Strauss)

FOOTNOTES:

[6] Practically speaking – to the best of my knowledge – no such ruling exists, apparently because the Torah's position on the matter was internalized already at a very early stage, and it would never have occurred to any God-fearing person to make use of this problematic allowance.

[7] We find a practical application of this type of thinking regarding the prohibition of "lo techanem" (Devarim 7:2) with respect to the allowance of selling the land of Israel to a non-Jew for the Sabbatical year. It may be argued that the purpose of this prohibition is to ensure that the land of Israel remains in Jewish hands; in the case under discussion, selling the land of Israel to a non-Jew for the sabbatical year will make it easier for Jews to retain possession of the land and save Jewish farmers from permanently selling their land to non-Jews. If this is the case, we have here a significant ideological consideration that will push us to search for allowances for this prohibition. This is because it is precisely these allowance that will advance the ideological objective of the prohibition (see Rav Tykocinski, Sefer ha-Shemita, p. 108). This is a complicated case, for the extension of the stated purpose of the mitzva requires that the mitzva be circumvented. This is all based on the assumption that this is, indeed, the purpose of the prohibition, and that the practical situation is as described above.