The requirement that children must follow the minhagim of their father has two well-established exceptions. First, when one moves permanently from one location to another he or she takes on all traditions of his new community, lest there be dissension in the community. Second, when a woman marries, she takes on the minhagim of her husband. Indeed, the second exception is often seen as an application of the first: a woman “moves” from her father’s home to that of her husband’s upon marrying and therefore assumes the latter’s traditions, whether more lenient or stringent than those of the former.[1]

            In one of his responsa,[2] Rabbi Haim David Halevy offers a nuanced understanding of this requirement for an inter-communal “mixed marriage.” Rabbi Halevy (1923–1998) was Chief Rabbi of Rishon leTzion from 1951 to 1973, and then Sephardic Chief Rabbi of Tel Aviv from 1973 until his death. His set of responsa Aseh Lekha Rav covers a wide range of topics with a display of scholarship, a respect for tradition, and an awareness of new cultural challenges.[3] He called for creativity in halakha to solve newly-confronted problems, insisting that anyone who is simply bound to the written positions of previous generations is a “Karaite halakhist” who is attached only to the written letter.[4]

            Rabbi Halevy takes up the case of a secular Ashkenazic man who had married a religious Sephardic woman and had agreed that her family’s traditions be those of their new household. After some time, he became observant and wanted to return to his Ashkenazic roots. The question was whether he may impose his Ashkenazic traditions on his wife and children. In responding, Rabbi Halevy explains how an individual moving into a monolithic community with minhagim different from his own differs from a woman marrying a man with different minhagim. In the first case, the community must maintain its monolithic character; the newcomer, therefore, must adapt completely to the customs of the community. But the underpinning of the rule in an inter-communal marriage is to maintain shelom bayit; therefore, the wife has no need to change her minhag if her actions do not interfere with the family dynamics. Thus, for example, there is no reason for her to change the nusah of the prayers she has been used to saying, or for an Ashkenazic wife of a Sephardic husband to eat rice on Passover as long as she prepares her husband’s meals with rice. In this case at hand, he concludes, the husband may require that his children now adopt his Ashkenazic traditions with him, but may require such a shift for his wife only in those cases that interfere with family harmony.[5]

            In an unpublished later responsum[6] Rabbi Halevy addresses a follow-up question that further nuances his approach: What if after becoming religious, the husband prefers to remain with the Sephardic traditions of his current household? Rabbi Halevy sees no obligation (“vadai she-ein shum hovah”) for him or his children to return to his roots. At first glance, these two responsa seem contradictory. If it is an obligation to return to his Ashkenazic roots that empowers the husband to turn his family’s minhagim upside down, why is the husband in the second case permitted to remain with Sephardic customs? It is not due to the fact that he was not required to adopt the minhagim of his father unless he had personally observed them as an adult. That applies only to family minhagim and not communal customs, which are binding for future generations.[7]

For Rabbi Halevy, both decisions follow naturally from issues of shelom bayit. To understand that, we should appreciate that the concept of moving to a new community has changed in our modern world. Originally, the notions of place and community were generally interchangeable. One’s community was where one lived. Now our sense of community is pretty much divorced from physical locale. There is no “minhag New York” to adopt on moving into New York City; too many competing minhagim coexist in the city. But there is surely a minhag Habad, for example, to be adopted when marrying into a Habad family, whether one lives in Crown Heights or some far-flung location in which the Habad emissaries live. Each Ashkenazic husband in our responsa had “moved” into a Sephardic “place.” The second did it permanently; the first decided to “return home.”

Rather than seeing it as a prescribed ideal, the notion of the wife “moving” to the “place” of the husband may be viewed as a technique for maintaining shelom bayit. It would be a mistake to think that “ideal” families have no disagreements; divergence of opinions is unavoidable. Shelom bayit does not mean always avoiding arguments; it means being able to resolve them and not allowing them to fester. A well-established and agreed-upon plan known to the parties before the marriage helps bring shelom bayit. When couples from different locations are to marry, the Shulhan Arukh[8] sets out the circumstances under which the husband can compel his wife to move to his community. But these rules surely do not prevent the couple from deciding between themselves where they choose to reside, even if it be the husband who moves and adopts the different minhagim of his new community.

 It would be interesting to debate the underlying rationale for the rule that the wife should defer to her husband, be it philosophic, sociological, or whatever. It should not be understood as fulfilling God’s declaration to Eve that “[your husband] will rule over you” (Genesis 3:16). That statement is not an obligation, says Rabbi Aharon Lichtenstein:

For example, at the beginning of the same verse it is said to Eve, “In pain shall you bear children.” No one questions a woman's right to facilitate limiting her suffering when giving birth, as in taking prenatal courses, an epidural or general anesthesia. We do not encounter a religious moral obligation to give birth in pain to one who is not so interested. Is that to be said in relation to the rest said there?  Does the verse only describes a natural reality with which one may contend, or is any variation from the verse’s description in conflict with God’s will?

This question stands on the interpretive and ideological level. In relation to this specific issue, I follow the Rambam and posit that marriages are partnerships without mixing in concepts of ruler and ruled, ideas that are not at all relevant to our world. In the view of Hazal, the household is built on the husband honoring his wife as himself.[9]

            Seeing a marriage as a partnership of equals opens up another dimension in the discussion of family minhag. Traditionally, marriage has been generally viewed as the woman leaving her parental community and entering that of her husband. But there is another perspective, one described by Rabbi Joseph B. Soloveitchik:

The Torah has defined the central commitment of the marital community in an unequivocal manner. “Therefore shall a man leave his father and his mother and shall cleave unto his wife and they shall be one flesh" (Gen. 2: 24). There is an equation here. The marital community replaces the parental community. Until one’s marriage, the young man or woman belonged to a parental community consisting of three personae: the husband, wife, and child. On the day of their marriage they leave the community into which they were cast by the Almighty and substitute for it a marital community which they enter voluntarily, by free choice.[10]

Marriage is not just a successful partnership, but an existential community. Adam and Eve met and a new metaphysical community, not just a successful partnership, was born.[11]

            When a new community is formed from two groups, its minhagim follow those of the majority group. If we see a marriage as the formation of a community in which neither member is dominant, we might well consider the position of Rabbi Moshe Feinstein that when two equal groups form a community, they may decide to adopt the lenient position on any issue, making it now permissible to all. Since on one issue one community might be lenient and on another issue stringent, the result may well be that the minhag created of the new community will not be identical to either half.[12] Those, then, who see a marriage as a new community formed by two equal components might well create a family minhag that will be an amalgam of the respective minhagim of the husband and wife. (This is not to suggest that Rav Moshe himself feels that a marriage is a new community formed from two equal components, but rather suggests how his principle applies for those who do.)

Rabbi Nachum Eliezer Rabinovitch, late Rosh Yeshiva of Yeshivat Birkat Moshe in Israel,[13] approaches the issue of competing minhagim in new yishuvim (settlements) in Israel from the perspective of this being an age of Kibbutz Galuyot (Ingathering of the Exiles).[14]  He insists that all community members should feel that their minhagim are valued, viewing all as equal in this respect. In the area of public prayer, the shaliah tsibbur should set the nusah for each service. On the Rosh HaShannah and Yom Kippur, where Ashkenazic and Sephardic services involve significantly different piyutim and melodies, the community should create an amalgamated nusah in which all community members’ traditions are recognized. Halakhic rulings of the yishuv’s rabbi should not decide one way for Ashkenazim and another for Sephardim. The popular notion that Sephardim always follow the Bet Yosef and Ashkenazim the Rama is not halakhically binding according to Rabbi Rabinovitch. The Shulhan Arukh was not accepted as a stand-alone authority, but rather an authority together with its commentaries. Each issue should be investigated independently and thoroughly by the contemporary posek, and the same ruling should apply to all.

R. Rabinovitch concedes that many rabbis require the wife to accept the husband’s minhagim in all matters. But, he says, in this period of Kibbutz Galuyot a wife should retain her minhagim that do not impact on her husband (like nusah tefilah), “but even with regard to minhagim that have impact on her husband, the two of them may agree on a unified minhag as they wish.”[15]

These decisions create a family minhag that obligates their children, until they might move to a different community when they in turn marry.

Notes

Today, both religious Zionism as a whole and the Mizrachi movement in particular are strongly associated with the philosophy of Rabbi Avraham Yitzhak HaKohen Kook and his followers. Like other early religious Zionists, R. Kook saw the cultivation and settlement of the Land of Israel as an early stage in the messianic redemption. But more than any of his contemporaries, R. Kook created a theological framework that saw the secular Zionist movement as God’s holy tool for hastening the coming of the long awaited redeemer. According to R. Kook, cooperation with secular and even anti-religious Jews could be sanctioned because their awakening to Zionism stemmed from a religious spark in their souls. In fact, they were actors in a great cosmic drama that would ultimately bring about their return to traditional Judaism.[1]

But Mizrachi’s beginnings were different. Mizrachi was established as a party within Theodor Herzl’s Zionist Congress in 1902 by Rabbi Yitzhak Yaakov Reines (1839–1915), a man driven by a spirit unlike that of R. Kook. Whereas R. Kook was a dreamer, poet, and an idealist, R. Reines was a realist, activist, and pragmatist. It was primarily the pernicious, unrelenting nature of anti-Semitism, not messianic idealism, that brought R. Reines into the Zionist camp.

R. Reines was a brilliant Torah scholar, and he studied briefly in the famed Yeshiva of Volozhin.[2] For much of his career, he was the Chief Rabbi of Lida, a mid-sized city near Vilna. He published many works on a variety of topics, and even more of his writing sadly remains only in manuscript. Although R. Reines’ prose is at times repetitive and disorganized, he was a creative and underappreciated thinker. For example, in 1880, he published Hoteim Tokhnit, a book that ambitiously sought to systematize halakha by uncovering the logical principles by which the Oral Torah had been derived from the Written Torah. Even though this work is incomplete and not always convincing, his attempt to create a near-scientific taxonomy of broader halakhic principles and the particulars that flowed from them remains fascinating.[3]

R. Reines was also a courageous and outspoken activist on issues concerning Eastern European Jewry aside from Zionism. In 1905, with the backing of Mizrachi, R. Reines achieved a goal he had worked at for many years: the establishment of what was essentially the first yeshiva in Eastern Europe to teach secular subjects and the Hebrew language alongside the traditional Talmud curriculum.[4] Although the yeshiva, named Torah vaDa’at for its merger of Torah and worldly culture, closed in 1915 upon R. Reines’ death, it was a path-breaking institution. Rabbi Shlomo Polachek, the Rosh Yeshiva appointed by R. Reines, went on to teach at Yeshiva University. And the well-known American yeshiva in Brooklyn, Torah Vodaath, was founded initially by students of R. Reines and named after his yeshiva.[5]

R. Reines, however, saw himself as more of a pragmatist than an idealist. In his writings, he often speaks of the exigencies that drove him to innovate. Hoteim Tokhnit was in part a response to German Reform scholars who denied the divinity of the Oral Torah.[6] Similarly, he introduced limited secular studies in his yeshiva to ensure that young men could get the training they needed to support themselves financially while remaining within the traditional religious community, among other pragmatic reasons.[7] R. Reines did not ascribe to Torah uMadda or a similar ideology; he saw no inherent value in secular education. Rather, it was the immediate needs of the nation that drove R. Reines.

On the surface at least, R. Reines’ Zionism was much the same. He came to the movement because he concluded that the Jews needed a safe haven—a homeland—where they would be free from oppression and persecution. In Kol miTziyon, a letter to Mizrachi constituents, he passionately painted a dire picture:

The blood of our brothers is now being spilled more and more like water everywhere, the hatred for our nation is increasing in all the lands, pushing the Jews more and more from [a normal] life and bringing them to poverty, famine, sickness, suffering, and submission of the spirit. … Our sons and daughters are being sold to another nation. … Judaism is being pushed aside more and more for other cultures and the name of Israel is being erased from the face of the earth. [8]

A Jewish homeland in Israel, he believed, was the way to solve the problem.

Zionism was unpopular among many traditional Jewish leaders, who maintained that making a concerted effort to settle in Israel before the proper time ordained by God violated a prohibition against hastening the messianic redemption.[9] The story goes that the saintly Hafetz Hayyim himself came to visit R. Reines to plead with him not to ally himself with the Zionist cause.[10] R. Reines responded to his detractors by arguing that pure political Zionism was acceptable because it had no connection to the Messiah. In Sha’arei Orah veSimhah he wrote:

And in all their [the Zionists] actions and efforts there is also no hint or mention of the final redemption. Their entire intention is only to improve Israel’s [the Jews’] situation and ennoble it with dignity … so that Israel should know that it has a safe place. … It is only an effort for the improvement of the nation’s physical situation. [11]

In stark contrast to the position taken by R. Kook or even the position of other religious Zionists of his time such as the Hovevei Tziyon, R. Reines believed that Zionist efforts had no connection to the ultimate redemption at the end of days. Rather, Zionism was a political movement necessary to save the Jewish people from danger in the here and now.

In this respect, R. Reines’ ideology was similar to that of the founder of the Zionist Congress, Theodor Herzl. Disillusioned by the growing anti-Semitism in Eastern Europe despite the emancipation of the Jews, Herzl gathered the Congress in 1897 to obtain a homeland for the Jews that would guarantee their security. His political Zionist party and R. Reines’ Mizrachi movement were natural allies in the Zionist Congress. R. Reines even dedicated his 1902 defense of Zionism, Or Hadash al Tziyon, to Herzl.[12]

R. Reines and his allies also established Mizrachi in part to oppose the Democratic Faction, a cultural Zionist party headed by Chaim Weizmann and Asher Hirsch Ginsberg, the writer known by his pen name Ahad Ha-Am. Weizmann and Ha-Am saw Zionism first and foremost as a secular Jewish renewal movement. They wanted to appeal to discontented Jewish youth by encouraging a new cadre of intellectuals to create a synthesis between Jewish culture and Western intellectualism, and revive Hebrew language, literature, art, and music. Some even called Ha-Am the “Agnostic Rabbi.” R. Reines and the Mizrachi—at least at first—attempted to mitigate the Democratic Faction’s influence by advocating the need to keep cultural activities out of the Zionist platform, which they believed should instead focus solely on the search for a Jewish homeland.[13] The opposite was true as well: R. Reines, ever the pragmatist, kept the finances of his Yeshiva in Lida separate from the Mizrachi treasury to avoid embroiling the school in the contentious debates over Zionism’s legitimacy.[14]

One of R. Reines’ strongest affirmations of political Zionism was his support of the Uganda Proposal. Although the Zionists desired a homeland in Palestine, the Ottoman Turks, under whose jurisdiction it lay, rebuffed Herzl’s proposals. Therefore, in 1903, Herzl proposed an alternative based on an offer from the British: an autonomous Jewish state in the African nation of Uganda. Understandably, this famous proposal precipitated enormous controversy within the ranks of the Zionist Congress. Although the plan was eventually dropped after two years, R. Reines endorsed it. In a letter to Herzl he wrote:

We agreed to the African proposal because we paid attention to the needs of the nation that is dearer to us than the Land [of Israel]—and the needs of the nation that is deteriorating both physically and spiritually requires a secure refuge wherever it may be. [15]

R. Reines had a deep religious attachment to the land of Israel. Nonetheless, in light of his pragmatic approach to solving the Jewish problem of his time, his support for the Uganda Proposal is unsurprising.[16]

A practical approach to Zionism is also what, in R. Reines’ eyes, ameliorated the concern so many traditional Jews had about working together with the non-religious. He wrote in Or Hadash al Tziyon:

There are those who claim that since they [the non-observant] are involved in the Zionist movement there is reason to be concerned that it will result in ruinous breaches in religion. … I clearly demonstrated that there is no concern at all that it will affect religion because, essentially, it is an idea whose fundamental principle is to improve our physical situation and to obtain for our brothers of the house of Israel who are oppressed and pursued without respite a place of secure refuge in our Holy Land. This has nothing to do with spiritual or religious matters. [17]

These words would have been an anathema to someone like R. Kook, for whom Zionism and religion were deeply entwined.

And yet, it’s also hard to take R. Reines’ words here at face value. It is likely they are somewhat polemical, designed to assuage the concerns of the traditional community. For in fact, throughout his writings, R. Reines saw the yearning for Zion expressed by the Zionist enterprise as an expression of deep religious identification. The return of secular Jews to their Jewish national roots was, for R. Reines, the kindling of a dormant spark of spirituality latent in every Jew. As he wrote elsewhere in Or Hadash al Tziyon, “The awakening of the non-observant to the Zionist idea is not at all because of an irreligious [nature] but because of their rejection of an irreligious [lifestyle].”[18] There are echoes of R. Kook’s approach here. R. Reines even drew the title of the book, Or Hadash al Tziyon, from the fervently messianic close of the blessing recited before the Shema entreating God to shine a new light on Zion in which all will partake.[19]

In a letter to the poet Yehuda Leib Levin, R. Reines further explained that Zionism had a great ethical potential, particularly for the Jewish youth, as it would “turn their hearts away from the delights of the larger world to gaze upon the light of Judaism and to see the radiance of their nation and its splendor.”[20] Indeed, in Kol miTziyon, R. Reines proclaimed with euphoric conviction Zionism’s ability to unite the Jewish people in a national renaissance:

Zionism powerfully raises the flag of Zion and rallies around it all the dispersed and unites them as one. It calls out from the heights the name of Israel, it goes out to fight bravely against the tendency towards assimilation and self-disparagement. … It calls out to the nation to stand up for itself and not to give up anything. It brings national pride to the hearts of many. [21]

Thus, despite his pragmatic refrains, R. Reines did not see Zionism as devoid of religious value. To the contrary, it was a movement of teshuvah, of return. R. Reines the realist knew that Mizrachi must remain a political arm of the Zionist movement. Nonetheless, he still believed that at its core, Zionism was a spiritual awakening.

This more nuanced understanding of R. Reines’ Zionism suggests that R. Kook and R. Reines were not quite as far apart as some have supposed.[22] Both thinkers cast Zionism in a profoundly religious light. Both saw it as a movement of rebirth and return, a spark of holiness in an age of secularism, and as a sign of Jewish national distinctiveness and unity in a time of rampant assimilation. And with this philosophy, both built bridges to non-religious Jews, confident that the shared project of settling the Land of Israel would ultimately bring Jews together. Still, it’s crucial to note that they differed on whether the Zionist enterprise was part of the messianic redemption. R. Reines was also more political than R. Kook, and worked from within the Zionist Congress.

But, within a few short years, as Mizrachi grew and its center of gravity and leadership shifted toward Austria-Hungary and points further west, R. Reines lost a great deal of influence in the movement he had founded. And although R. Reines had initially championed keeping Zionist activities aimed at creating a Jewish homeland separate from measures to enhance religious education, Mizrachi soon went in a different direction. In 1911, the Zionist Congress decided to support non-religious Jewish cultural activities and schools. Further, Mizrachi’s new Western European leaders were particularly concerned about rising assimilation; perhaps they even saw religious education as more important than getting to Israel itself. In truth, Mizrachi members had been divided from the get-go about whether strengthening religious education should be part of the party’s Zionist platform. For all of these reasons, Mizrachi soon abandoned pure political Zionism and dedicated itself to Jewish education and religious revival.[23]

There are many reasons why R. Reines’ more pragmatic Zionism has been largely forgotten in religious circles. For one, pragmatism rarely captures the imagination as well as grand notions of religious destiny and visions of the end of days. Indeed, when the State of Israel became a reality and its miraculous existence was affirmed again and again—such as after the Six Day War and the capture of the Temple Mount—it grew harder for many religious Zionists to see anything but the stirrings of the ultimate redemption. Some, following the teaching of R. Kook’s son R. Zvi Yehuda, turned to greater activism and even to extremism to make their dreams of a greater Israel a reality. For R. Zvi Yehuda, once the redemptive process had begun, there was no turning back.[24] And to be fair, even if R. Reines would never have gone so far, he himself sometimes couched Zionism in language that bordered on the messianic.

Yet there was another twentieth-century thinker who reaffirmed R. Reines’ merger of pragmatism and religious meaning, finding a practical and spiritual call to action in the sheer improbability of the story of the State of Israel. In Kol Dodi Dofek, Rabbi Joseph B. Soloveitchik movingly argued that the fact so many displaced Holocaust survivors and other Jews had found refuge in the newly established State of Israel was one of “six knocks” of Divine Providence designed to wake up the Jewish nation to rally in support of the new country.[25] Like R. Reines, R. Soloveitchik stressed the importance of the land of Israel as a refuge for those who had nowhere else to go. Still—and again like R. Reines—R. Soloveitchik also found deep religious meaning in Israel’s creation, explaining that the imperative to support the State stemmed from a “covenant of fate” that binds all Jews, religious and secular, to work together to ensure the nation’s survival.[26] Speaking with passion and urgency, R. Soloveitchik unpacked the Song of Songs and its theme of missed opportunity: “Can we not hear, in our own concern for the peace and security of the land of Israel today, the knocking of the Beloved pleading with His love that she let him enter? . . . It is eight years now that He has been knocking. Would that we not miss the moment!”[27] To R. Soloveitchik, the State of Israel’s religious centrality was unquestionable and yet in no way dependent on whether its creation meant that the Messiah was stirring. That God had willed Israel into being was enough.[28]

As I reflect upon Israel today, I cannot help but wonder what R. Reines would think of the contemporary situation. Even 72 years after its founding, whether Israel represents the first flowering of our redemption remains elusively difficult to predict. Yet it is clear that the modern miracle of Jewish sovereignty in its ancestral homeland has birthed a political and spiritual renaissance. Jewish pride has increased worldwide, and exiles who were dispersed to all four corners of the globe have found respite, rejuvenation, and a new life in modern Israel. In these respects, Zionist efforts have exceeded R. Reines’ most ambitious predictions.

But R. Reines also stressed the importance of national unity. He saw the Zionist movement as a way to bring all Jews, religious and secular, under the common banner of renewal and return. The political divisiveness and religious polarization in our times would disappoint this visionary. I worry too that he would not countenance the more militant messianism of some contemporary religious groups, which often further divides the country.[29] In the spirit of R. Reines, can we yet learn to minimize our differences and celebrate our shared heritage, making Israel a home of peace and prosperity for all who dwell in it?

Notes

This week, Rabbanit Shira Marili Mirvis made history as the first-ever Israeli woman appointed to be the sole rabbinic leader of an Orthodox synagogue, the Shirat Hatamar congregation in Efrat. I talked to Shira about her fascinating journey to this groundbreaking milestone.

From her earliest childhood years growing up in Jerusalem, Shira fell in love with Torah study. She loved the “sacred books” of Judaism, particularly the Talmud and rabbinic commentaries. These books were traditionally the domain of boys and men, but Shira’s father Yitzhak, a deeply pious Moroccan Jew, always encouraged her to study them.

In fact, he insisted she buy as many sacred books as her heart desired. “Kids today walk around with their parent’s credit cards, but that wasn’t the norm when I was growing up,” said Shira. “Yet I actually had my father’s credit card, not to go shopping in the mall, but in case I chanced upon another sacred book [that] I wanted… My father wanted to be sure that I would never be deprived of buying books that would help advance my knowledge and love of Torah.” Given this week’s announcement, Yitzhak’s  investment in Shira’s book-buying clearly paid off.

In between the celebrations and press interviews surrounding the exciting news of her appointment, Shira took the time to answer my questions, and despite not being with her in person, I could feel the emotions coming through the telephone.

DB: What was it like growing up in Jerusalem as a young girl who loved studying Talmud?

SM: I grew up in a religious home in the Kiryat Moshe neighborhood of Jerusalem. Both my parents were born and raised in Morocco, and our home was deeply entrenched in Moroccan-Sephardic traditions. Those traditions included a love for Torah and a deep respect for our Torah sages. We prayed in the synagogue of Hakham Mordechai Eliyahu, who became the Sephardic Chief Rabbi of Israel. My love for Torah study was nurtured in my family from childhood.

DB: So your eventual decision to enroll in the five-year Lindenbaum Women’s Program in Talmud and Halakha was not viewed in your family as a rebellion from your traditionally religious Sephardic-Moroccan upbringing?

SM: Quite the contrary. My decision to pursue advanced Talmud study at Lindenbaum is actually a result of my Sephardic-Moroccan upbringing. The love of Torah study was a supreme value in our home, and my decision to study Talmud at the highest level was met with great enthusiasm by both of my parents. In fact, admission to the Lindenbaum program is quite competitive, and the acceptance process lasted one year. I don’t know if I would ever have made it through that year without the constant positive encouragement from my father and mother.

DB: What was your parents’ reaction when you were accepted to the program?

SM: They were both thrilled! Especially as a woman who would now be engaged in the intense study of Talmud and Halakha (Jewish Law), they saw me as a link in the chain of continuity with my ancestors. They viewed it as a privilege that their daughter would take the legacy of the pious Moroccan-Sephardic women of previous generations to the next level.

DB: As you are now about to complete this program, how does your father feel as the one who helped fund your love of sacred books from childhood?

SM: Unfortunately, my father passed away after my first year at Lindenbaum. Throughout that first year in this demanding program, my father was my greatest source of encouragement. He was constantly telling me to study, study and study some more and that whatever would come of it, he was sure I would be able to do great things to advance Torah and Judaism for the Jewish people.

Symbolically… the last Jewish holiday we spent together was Shavuot, the holiday when we celebrate receiving the Torah at Mount Sinai. My father died the day after Shavuot, and his words of encouragement accompany me and inspire me to this day.

DB: Your historic appointment as Israel’s first ever female rabbinic leader of an Orthodox synagogue is both exciting and emotional. How did all of this come about?

SM: The synagogue in Efrat where my family prays — Shirat Hatamar — is a relatively new community. For the past few years, perhaps because I was studying at Lindenbaum, people in our synagogue started approaching me with serious halakhic questions… I was also asked by the community to deliver sermons on Shabbat. All of this was unofficial, and I was doing it as an individual, not in any official capacity.

DB: So how did it now become official?

SM: When Shirat Hatamar was established, we adopted Rabbi Shlomo Riskin as our official halakhic advisor and community mentor. Rabbi Riskin is the founder of the Or Torah Stone Institutions, which includes the Lindenbaum Women’s Talmud & Halakha program where I studied these past five years. Rabbi Riskin has done tremendous work in advancing women’s Torah study and leadership, turning the Lindenbaum program into the women’s equivalent of what men study here in Israel for rabbinic ordination from Israel’s Chief Rabbinate.

Knowing that I was functioning as my synagogue’s halakhic authority for the past few years, Rabbi Riskin approached the community a few months ago and said it’s time to make it official, so the process began… The community engaged in an exploratory process, which included many meetings on Zoom and discussions via WhatsApp chat groups. I stepped away from this process to allow the community to make this decision without influencing them. This past week they felt ready to take a vote, and the results were that 83% of the community voted in favor of appointing me as the rabbinic leader of the community.

DB: So, is your title the “rabbi” of the synagogue?

SM: When people address me in an official title, I go by “Rabbanit Shira.” My title in the synagogue is not “Rabbi” or “Rabbanit” but Manhiga Ruchanit Hilkhatit [“Spiritual and Halakhic Leader”].

DB: Does the difference in title alter in anyway your “rabbinic duties”?

SM: My duties in the synagogue are to serve as the sole halakhic authority for our community, teach Torah and rule in halakhic matters, which [were] always the traditional [duties] of a rabbi in halakhic Orthodox communities. I will also counsel families and individuals, deliver sermons and teach Torah classes for our community. There are no other rabbis serving in our synagogue; I will be the sole “rabbinic voice” and “spiritual leader” in all religious matters.

DB: How did your mother react to your historic appointment?

SM: My mother had a challenging year, as she unfortunately was sick with COVID-19. Thank God she is fully recovered and doing well, and upon hearing the news of my appointment, she was beaming with pride and joy. Given her health challenges this past year, she was particularly emotional and thankful to see this day in her daughter’s life. She is very supportive of what I am doing.

DB: Ten years ago, you and your husband Shlomo and your kids came to Los Angeles, where you served as emissaries (shlichim) for the Bnei Akiva Religious Zionist Youth Movement for two years. Did your time in the Los Angeles community have any impact on your journey?

SM: The two years we spent in Los Angeles had a very deep impact on my life. In Israel, synagogues are often just a place to pray. In Los Angeles, I learned how much more a synagogue can be, as I was both witness to and personal beneficiary of the tremendous support system that the synagogue community provides to one another.

We prayed in Beth Jacob, and I remember how the community came together to celebrate joyous occasions and how they supported one another during times of illness or mourning. When my family needed support during some challenging times, I still have vivid memories of every delicious meal lovingly provided to my family from the famous “community meal trains.”

Beth Jacob and the Los Angeles Jewish community exposed me to the power of community life. From the welcoming of guests to teaching us how to shop at Ralphs on Pico, the acts of loving kindness in that community were amazing.

DB: Did you find any support as a woman who loves to study and teach Talmud in the Los Angeles Orthodox community?

SM: I will always have gratitude to Beth Jacob for giving me the opportunity to teach Torah in the synagogue. Their openness helped open this path for me, and I am eternally grateful for that. Additionally, my day job in Los Angeles was as a Torah Studies teacher to Middle School girls at the Maimonides School. That teaching experience will remain with me forever, and the girls I taught were an inspiration to me. The two years we spent in LA were two of the most special years in my life, and everything I did and learned there will most definitely serve me in this position I now officially assume.

DB: As you officially assume this historic position, do you feel like a representative for the women of your generation?

SM: I don’t consider myself a representative of any movement or trend, and I am not waving any particular ideological banner as I assume this position. If God gave me the privilege to study and teach Torah to a new generation of students and congregants, it is only by the merit of the righteous and pious women of previous generations, especially those from my Sephardic-Moroccan ancestry. If I represent anyone at all, it is the women who studied Torah with deep faith and piety, raised their families with love and served their communities.

While I recognize the historic significance of my new title and position, I don’t think the essence of what I am doing in any way differs from the women of my ancestry. I’m doing what they did, only in a different capacity [and] in a modern context and setting. I hope to be blessed with the same level of faith and spiritual strength that they had.

This interview has been edited for clarity.

Postscript

During my recent three-month stay in Israel, I was privileged to get to know Rabbanit Shira. In one of our conversations, I asked her if she had any particular women from the past that she considered a role model for her own life? “Rabbanit Farha Sasson,” she said. Farha Sassoon (1859-1936) was a Sephardic Iraqi woman who loved to study Talmud and Halakha. She was widely known in her circles as a female Torah scholar and extensively corresponded with some of the most prominent rabbis of her day on Halachic subjects. With this week’s historic news, Rabbanit Shira Marili Mirvis now continues Rabbanit Sassoon’s legacy.

Rationalism vs. Mysticism: Schisms in Traditional Jewish Thoughts. Natan Slifkin. The Torah and Nature Foundation. 557 pps. $39.95.

Reviewed by Steve Lipman

     Rabbi Slifkin, who has earned a reputation, depending on your philosophical-theological leanings, as an annoying gadfly, in parts of the Orthodox world, or as a valuable beacon of clear thinking, in other parts, now offers a helpful guide to the widening divide between the dominant segments of Orthodox Judaism.

     The British-born rabbi, whose well-documented expertise in the relationship of natural science to Jewish thought reflects his larger perspective on fundamental Jewish beliefs, now focuses on the philosophical gap between large parts of the Orthodox community.

     "There are two fundamentally different worldviews regarding such things as epistemology (the nature of knowledge and where it comes from) and the relative roles of natural law and the supernatural. These are the rationalist and the (for want of a better word) mystical approaches," Rabbi Slifkin writes. "The rationalist approach has a rich heritage to it ... it was dominant amongst the Rishonim in many ways … but has declined over time to the point that there are great Talmudic scholars of today who do not realize that it even existed."

     The rabbi's definition of the two camps:

     "Rationalists believe that knowledge is legitimately obtained by man via his reasoning and senses, and should be preferably based upon evidence/reason rather than faith, especially for far-fetched claims. Mystics are skeptical of the ability of the human mind to arrive at truths, and prefer to base knowledge on revelation, or -- for those who are not worthy of revelation -- on faith in those who do experience revelation."

     Rabbi Slifkin notes that "mystics often demand belief in the absolute truth of every word in the Talmud, along with the Tannaic and ultimately divine origins of the Zohar, and many other texts. Rationalists, on the other hand, usually dispute the divine origins of the kabbalistic texts, and also maintain that not every part of the Talmud is divinely-inspired wisdom….The gulf between the two approaches is vast and unbridgeable.”

Rabbi Slifkin experienced hareidi rejection firsthand. About two decades ago, several of his groundbreaking books about aspects of natural science were banned by several hareidi rabbis.

     "In many Orthodox Jewish communities today," Rabbi Slifkin writes, "there is simply no place for the rationalist approach… Sages sometimes possessed incorrect beliefs about the natural world; this was widely acknowledged by the Rishonim, and yet this view gradually became less accepted to the extent that today there are some people who are in denial that any rabbinic authority ever subscribed to such a view.”

"On the other hand," he writes, "the rationalist approach is championed in Modern Orthodox communities, where it is considered to be the preferred approach."

     The accepted wisdoms in some mystical circles often bring claims that counter opinions, or citations of hazal that support them, are forgeries, fabrications, the Orthodox form of "fake news." Instead of the honored "70 Faces of Torah," just a single one.

     Often citing the opinions of Maimonides, a pre-eminent advocate of the rationalist path, Rabbi Slifkin mentions "the position of Rambam and many others that the Sages of the Talmud were not infallible in matters of science," whereas, in many hareidi circles,"great Torah scholars are presumed to know much more than merely the texts they have studied."

     Included in Rabbi Slifkin's wide swath of Jewish principles upon which rationalists and mystics part company are gematria, netilat yedayim, the size of a kezayit, prayer and Kaddish, Torah study, the plagues of Egypt, miracles and "wonder" rabbis, angels and demons, the inherent sanctity of the land of Israel and the Jewish people and the Hebrew language, the function of mitzvot, segulot and mezuzot, sun's path at night, and infallibility of the Zohar and aggadata…in other words, nearly everything of a significant hashkafic and halakhic basis in which a believing Jew believes.

A representative sampling of the rabbi's thoughts:

* on yeridat hadorot, which "is often assumed today to be axiomatic and fundamental to Judaism, and supported by the full gamut of classical sources. In fact, the Talmud is ambivalent: there are a number of sources which indicate that certain earlier generations were superior, but there are also a number of sources which state that certain later generations were equal or ever superior."

* on Daat Torah, the notion "that the ultimate guidance on all areas of life -- even social and political decisions with no obvious connections to Torah. The contemporary concept of 'Daat Torah' is very different from traditional ideas about the wisdom and authority of rabbis. There are numerous historical forces involved in the evolution of the contemporary notion of Daat Torah ... while it is a source of wisdom, supplementary knowledge and experience is also useful."

* on ayin hara (the "evil eye."): "In Orthodox circles today, it is widely believed that a 'rational' view of ayin hara is that it means stirring up Divine judgment of others via jealousy, whereas a mystical, non-scientific view is that it involves some form of energy being emitted from the eye."

     Though Rabbi Slifkin makes clear where his sympathies lie, he buttresses his opinions with a wealth of documentation that makes his book weighty in the literal and figurative sense; he express understanding of mystical fears, and does not overtly attack mystical sensibilities;" it is ... important," he writes, "not to undermine treasured beliefs of the community ... each society will have its own approach to which beliefs are a treasured component of their identity….

     The rationalist approach is a Pandora's Box, which can potentially cause more problems than it solves, and which, on a communal level, demonstrates a tendency to weaken zealous passion for Torah observance and sacrifice…The leaders of the hareidi community have decided that, regardless of how many Rishonim and Aharonim espoused the rationalist approach, they do not want it legitimized in their community."

     As Rabbi Slifkin points out, the current battle between forces of rationalism and mysticism are an outgrowth of the trenchant divide between the once-emergent, then-minority hasidic movement and the entrenched and dominant "Litvak" approach to Jewish life and Torah learning, whose austere expression of fealty to Judaism fostered the growth of the more-emotional, less-text-oriented hasidic movement. The latter, of course, emphasized joy in daily life and allegiance to wonder-performing rabbis, rather than a cold connection to strict halakha.

     Philosophically, the rabbi argues, the hasidim won. Their mystical hashkafa is unquestionably and unquestioningly taught now in most hareidi yeshivot, even the proudly Litvish, yeshivish, mitnagdish, "black hat" ones. Even worse, Rabbi Slifkin contends, alternate interpretations of acceptable norms of Jewish behavior or of Jewish belief are rarely taught, suggesting that only one approach exists.

     The rabbi's book, though encyclopedic in its scope, noticeably omits such recent, and current, social issues as abortion, feminism, and approaches to homosexuality. Also absent are references to the year-long divide over reactions to the Covid-19 pandemic; opposition to such measures as protective masks, vaccines and social distancing after the book's writing; Rabbi Slifkin sheds light on the thinking of largely hareidi (i.e., mystical) opponents of life-saving medical practices, whose behavior and high death rate (the worst example were the tragic deaths at the Lag B'Omer celebration at Meron) has given the frum community a collective black eye.

     The book offers limited concrete advice on how to reverse the anti-intellectual trend, but offers a necessary insight into why it is taking place. And he puts the topic into the context of Orthodox thought, which traditionally has not mandated -- beyond Rambam's widely accepted Thirteen Principles -- required beliefs. "Scripture does not list required beliefs ... there is no Code of Beliefs, no Ten Commandments of Belief. …Building up the community does not refer to matters of belief, but rather to practical acts -- the study of Torah, the fulfillment of mitzvot, the loyalty to the halakhic community. Being a Jew is primarily about how one lives, not how one thinks. And that, in turn, is why rationalists and mystics can co-exist….The goal of this book is not to delegitimize the mystical approach ... [it] seeks to give voice to the rationalist approach.”

     Rabbi Slifkin's book is likely to earn wide opprobrium, if not an outright ban, in parts of the hareidi community. But that will be familiar territory for him.

On Thursday, May 20, President Joe Biden signed the COVID-19 Hate Crimes Act, which had been passed overwhelmingly by both houses of Congress. The act was a forceful response to the disgraceful attacks on Asian-Americans by bigots who blamed them for the Covid-19 pandemic, which had originated in China. In passing the act, members of both parties in the House and Senate demonstrated that they can do the right thing, at least once in a while.

Nothing of the sort appears to be contemplated in response to the attacks by Palestinian sympathizers on Jewish-American persons, synagogues, and restaurants during and after the latest Israel-Hamas conflict. In Los Angeles, pro-Palestinian attackers threw punches and bottles at diners at a kosher sushi restaurant. In New York’s heavily Jewish Diamond District, Palestinian supporters threw fireworks at Jews from a car amid a violent street altercation. Hamas supporters also beat a Jewish man in New York’s Times Square sending him to hospital with severe injuries. They threatened Jewish residents in a heavily Jewish Miami neighborhood. Video surveillance at Chicago’s Persian Hebrew Congregation, which was defaced by attackers, captured two people, one carrying a stick and another holding a sign that read “Freedom for Palestine.”

In each of these cases, and others elsewhere in the United States, the pro-Palestinian attackers had no idea whether their Jewish targets were supporters of Israel. Indeed, polls have shown that a majority of Jewish Americans support the creation of a Palestinian state alongside the state of Israel. No matter. Those who support the Palestinian cause attacked their victims merely because they were Jews. In so doing, they confirmed that their hatred of Israel extends to all Jews everywhere, as indeed, Hamas has made clear in its own charter.

All told, the Anti-Defamation League has reported at least 200 possible anti-Semitic incidents in the United States since the onset of the fighting between Israel and Hamas. Nevertheless, despite the ongoing upsurge in attacks on Jews, especially against so-called visible Jews—that is bearded Jews who dress in black suits, or merely Jews who will sport a small yarmulke or wear a star of David necklace—the leadership of the Democratic-controlled Congress has done little more than issue sympathetic tweets. As a body, Congress has done virtually nothing to condemn the attacks, much less legislate against them.

One reason for Congressional inaction is that the pro-Palestinian attackers have the support of the so-called progressive Democratic Left. Democrats in the House have a five-seat majority, while the ultra-Left “squad,” which is blatantly anti-Israel and pro-Palestinian, now boasts six members. While Alexandria Ocasio-Cortez at least has tweeted her condemnation of anti-Jewish attacks, several of her squad colleagues have not even gone that far. Not surprisingly, therefore, Speaker Nancy Pelosi cannot afford to alienate these progressives by pressing for legislation that would bring into sharper focus attacks on Jews by Palestinian sympathizers.

Another reason for Congressional inaction is that Democrats are reluctant to criticize some of their own progressive legislators, even when the likes of Congresswoman Ilhan Omar issue blatantly anti-Semitic tweets. Indeed, in the aftermath of one such tweet, the House actually did consider a draft measure to condemn anti-Semitism. Nevertheless, under pressure from progressives, the Democratic House leadership watered the measure down so that in its final form it included not only anti-Semitism but also Islamophobia and discrimination against Latinos, Asian Americans, Muslims, Hindus, Sikhs, Pacific Islanders, Native Americans, immigrants, and the LGBTQ community. That the resolution had been rendered entirely meaningless is evidenced by the fact that despite its having included Asian Americans, Congress recognized the need for separate—and meaningful—legislation that solely was geared to anti-Asian bigotry and hate crimes.

Democrats are fond of pointing out the cowardice of those of their Republican colleagues, who slavishly support Donald Trump and all that he stands for. They are right to do so. On the other hand, it is high time that Democrats showed some courage of their own. They should put an end to their own cowardly appeasement of an increasingly belligerent Left, and finally pass legislation, similar to that for Asian Americans, that would severely punish those who would verbally and physically abuse their fellow Americans simply because they happen to be Jewish.

Should a lawyer defend someone in court whom he thinks is guilty?  What if the man is truly despicable (e.g., a child killer)?

Each attorney needs to make his or her own decision. This entails a moral balancing act.

On the one hand, an attorney is paid to represent the client; even a reprehensible individual has a right to legal representation. On the other hand, an attorney’s conscience may veto representing a client felt or known to be guilty.

One of the great barristers of fiction, Horace Rumpole, described his role as being like a taxi available for hire…even to passengers he did not like. Thus, he often defended criminals. But Rumpole dreaded a client who admitted guilt; even Rumpole wouldn’t be able to defend a client he absolutely knew to be guilty.

The goal of a trial is to achieve justice. If a clever attorney can gain acquittal for a criminal, this is not justice. If a client is convicted because of lack of a proper defense attorney, this also is not justice.

Before taking on a client, an attorney needs to remember the Torah’s demand: tsedek tsedek tirdof, you shall surely pursue justice. Your ultimate responsibility is not just to the client, but also to the legal system and society as a whole. And you want to be able to sleep at night! 

In looking up a pasuk online, the first result one gets is usually the King James translation or another Christian translation.  Can one use this translation if the pasuk isn't Isaiah 53:5 or something similar?

I generally prefer to provide my own translations. When I do use existing translations, I prefer the Jerusalem Bible translation of Koren Publishers, or the Bible translation of the Jewish Publication Society of America.

I think it is fine to draw on the King James translation (or other Christian translations) as long as the verses are not translated using Christological interpretations.

Rabbi Hayyim Angel has written about an interesting observation of a 12^th century sage, Rabbi Yosef ibn Aknin. In his commentary to Shir haShirim, he noted several rabbinic precedents for utilizing Christian and Muslim writings. He quoted a story related by Shemuel haNagid: R. Mazliah b. Albazek the rabbinic judge of Saklia told [Shemuel HaNagid] when he came from Baghdad…that one day in [R. Hai Gaon’s] yeshivah they studied the verse, “let my head not refuse such choice oil” (Psalms 141:5), and those present debated its meaning.  R. Hai of blessed memory told R. Mazliah to go to the Catholic Patriarch and ask him what he knew about this verse, and this upset [R. Mazliah].  When [R. Hai] saw that R. Mazliah was upset, he rebuked him: “Our saintly predecessors who are our guides solicited information on language and interpretation from many religious communities—and even of shepherds, as is well known!”

When offering translations of Biblical verses, we should draw on those sources that provide the best understanding of the text.

Is it appropriate to discuss politics at the Shabbos table?

The Shulhan Arukh (O. H. 307:1) codifies the Talmudic teaching that one’s speech on Shabbat should not be like one’s speech on week days. We ought to avoid conversations about mundane matters, but rather should speak about ideas and ideals of Torah value.

In principle, then, discussions/arguments about politics are not in the proper spirit of Shabbat. If those at the Shabbat table have strong opposing opinions, the conversation could become heated and unpleasant.

Yet, political discussions sometimes relate to moral issues that affect us and our society…and the well-being of the State of Israel. Those around the Shabbat table may be deeply concerned about these issues and feel the need to discuss them with others. As long as such conversations are “leshem Shamayim” and genuinely seek moral clarity, I believe they are within permitted limits for Shabbat conversation. But if they entail lashon hara or antagonistic comments, they should certainly be avoided—even on weekdays!

Shabbat offers us an opportunity to rise above our mundane lives at least one day a week. This does not mean that we become oblivious to our everyday concerns, only that we try to set those concerns aside to the extent possible. The goal of our Shabbat conversations should be to elevate our thoughts and our words…and to set a standard for our thoughts and words during the weekdays as well.

Should one take sides in a family fight?  If yes, under what circumstances?

The Torah presents us with a remarkable challenge: to walk in God’s ways (Devarim 28:9). Rabbi Hayyim Palachi, a sage of 19th century Izmir, pointed out that to “walk in His ways” entails positive action. It is not enough to feel righteous; you must “walk” and actively pursue opportunities to help others.

One of Hashem’s names is Shalom…peace. In seeking to walk in Hashem’s ways, it isn’t enough to have nice thoughts about peace. One must act to bring peace.

Family feuds might be on trivial matters that can be resolved with moderate goodwill and compromise. But some feuds are very intense. How can we “walk” in Hashem’s ways if we ourselves are involved in the feuds and have strong views on who is right and who is wrong?

First: don’t be party to a family dispute. Even if you feel that you are right, don’t persist in arguing. Make your case, state your concerns and then hope the others will do the right thing. If they do, great. If they don’t, let it pass. Even if you “lose” the fight, you have won by keeping your dignity and uprightness.

Second: if the feud doesn’t affect you directly, try speaking with members of both sides of the dispute. Point out ways that they can reach a compromise without engendering ill-will and permanent damage to family solidarity.

Third: remember that your first obligation is to “walk” in Hashem’s ways and be a good and upright person.

You shall do what is right and good in the eyes of the Lord.

—Deut. 6:18

A number of years ago I delivered a lecture in an Orthodox synagogue that I carefully titled, “The Ethics of Receiving but Not Donating Organs.” Before the presentation a goodly number of interested listeners approached me in protest under the mistaken assumption that I deemed this practice to be moral. Their collective declaration to me was, “You must be joking. It is ridiculous to think that this could be ethical.” These people were neither philosophers, nor ethicists, nor experts in any field of abstruse logic, just people with healthy moral instincts.

The lecture came on the heels of a study on the halakhic definition of death published by the Rabbinical Council of America in June 2010.[1] The subject is enormously important because it has, quite literally, life and death consequences. The possibility of successfully transplanting hearts and lungs depends upon the transplant taking place prior to cardiac cessation, and thus saving a recipient’s life depends on the removal of the brain-dead donor’s vital organ while his/her heart is still beating aided by artificial means. While not intended as a formal legal ruling (pesak halakha), the RCA analysis relied on halakhic authorities who employed technical halakhic reasoning in their arguments. No mere theoretical study, the report was intended to influence practicing Orthodox rabbis whose congregants seek guidance from them regarding the halakhic (im)permissibility of donating and receiving transplanted organs.

The RCA study rejected clinically certified brain death as a sufficient condition for halakhic death, leading to the conclusion that extracting a heart of a brain-dead person for the purpose of transplantation constitutes illicit “bloodshed” against the donor. It therefore ruled that a person (or his family) is forbidden to donate such a vital organ. Yet while forbidding donation, the study also concluded that it is permissible to be the recipient of a donated heart. In other words, it ruled that it is right to benefit from another’s benevolence but wrong to provide that same benefit to others, that one may be a taker from others, but not a giver to others.[2]

The audience at the lecture was not alone in their moral judgment: Permitting a person to be a recipient of a vital organ transplant but forbidding him to be a donor (hereafter “RBND”) is widely considered a violation of ethical principles by transplant specialists, the broader medical community, philosophers, professional ethicists, the European Network of Organ Sharing, and nearly all people committed to fairness and equality. Perhaps because of the widespread criticism of RBND, the RCA has not given much prominence to the report after its release, although it is not known if the RCA posekim who supported RBND have since altered their halakhic conclusions in any way.

            The RCA study provided a prime example of halakhic reasoning that appears to be in deep tension with ethical standards and reasoning.[3] There are other halakhic positions that also display this tension, such as the obligation to return the lost object of a Jew but not of a Gentile, the principle of saving a Jewish life on Shabbat but not a Gentile life, the permission to target civilians in war, and the advocacy of harmful therapy for homosexual persons, to name but some. I will address each of these later in this analysis. Should we dismiss as mere chimeras the moral qualms of halakhic Jews regarding these halakhot, or should we better regard this disquiet as real, considering it a call to further religious thinking and action?

I do not wish to explore whether these problematic halakhot are correct qua halakha, but why these halakhic positions pose ethical problems. More generally, I wish to ask, “What values and principles must be part of halakhic reasoning to render it moral?”

The Conceptual Independence of Halakha and Ethics

There is an argument that must be addressed before identifying which values and principles make halakhic arguments moral. Some Jews maintain that halakha defines correct morality (the stronger thesis), while others insist that halakhic decisions by themselves are sufficient grounds for moral correctness (the weaker thesis). According to each of these theses it is impossible for Jewish law and morality to conflict with each other, and one need not consult anything outside of halakha to ensure an ethical conclusion. For these Jews, engaging in such extra-legal inquiry may be not merely superfluous, but perhaps even be dangerous and indicative of flagging religious conviction.

While these dogmatic positions are popular among some Orthodox Jews today, in fact they are new ideas in rabbinic thought[4] that are easily disproven both by logical argument and by rabbinic tradition itself. To my knowledge, no talmudic sage or medieval halakhic authority maintained either of these positions. To the contrary, we shall see that many were convinced of their opposites.

All of us make ethical judgments and use terms like “good” and “right.” But what do we mean by these terms? The twentieth-century British philosopher G. E. Moore devised an elegant proof to show that however we attempt to define “good” by identifying it with any non-moral idea or object, we fail.[5] If we define “good” as some particular natural entity such as pleasure or law (for the sake of discussion let’s call it X), we can always ask the question, “This is X, but is it good?” Even if the answer to the question is yes, the question remains coherent and “open,” i.e., it is at least possible to conceive of the answer being no. This is unlike asking, “He is a bachelor, but is he unmarried?” where it is impossible to think that the answer is no when we understand the meaning of the terms used in the question. The openness of the question about goodness indicates that X is not analytically identical with good. In the halakhic context we can ask, “This action is required by halakha, but is it ethically good? Is it morally right? Is it just?”[6] These questions are non-tautologous and remain open, which indicates that halakha is not identical with our notions of good or right, and hence cannot accurately define moral goodness and ethical rightness.

Moreover, people with no knowledge of halakha or even awareness of the existence of halakha make moral arguments and form moral judgments. If halakha indeed defined morality we would never be able to agree or even disagree about ethical issues with these non-halakhic people, for we would be talking about completely different ideas in our discussions with each other. I could not claim that I am correct in contending that abortion is morally wrong and another is incorrect in his belief that abortion is morally right, since we would not at all have in mind the same thing when we use the term “moral.” Yet obviously we do engage in real moral discussion, agreement, and disagreement with people who have no idea of halakha.

Rabbinic tradition agrees fully with this conceptual independence of halakha and ethics. According to the Sages of the talmudic era (Hazal), “Civility [i.e., patterns of correct behavior] preceded the Torah itself” (“Derekh erets kadmah l’Torah”), which clearly implies that standards for correct behavior existed independently of the formal Torah. Hazal and later authorities go still further: They point to situations where formal halakha not only fails to define ethical action, it falls short of correct moral standards. The classic concept of “lifnim meshurat haDin” (going beyond the strict halakha) illustrates just that truth. Consider the important statement in Babylonian Talmud, Baba Metsi'a 30b:

R. Yohanan said, “Jerusalem was destroyed only because [Jews] judged according to the law (din) of the Torah.” [But] should they have judged according to the laws of tyranny? [No.] Rather say, “They insisted on the law of the Torah and did not act above and beyond the strict requirement of the law (lifnim mishurat haDin).”

            Rabbinic tradition understands the destruction of Jerusalem as the divine punishment for the Jewish people’s violation of its sacred covenant with God. According to R. Yohanan, this violation existed at the very same time that Jews were observing formal halakha impeccably. (“danu bah din Torah”) Yet God called the Jewish people to account and imposed on them the harshest punishment known in Jewish history. Thus according to R. Yohanan, Jews were morally culpable even though they had no legal liability. While there are other talmudic opinions about the cause of the Temple’s destruction, no talmudic opinion challenges the intelligibility of the category of lifnim mishurat haDin or the conceptual presuppositions of Rabbi Yohanan’s statement, i.e., that the highest Torah standards are beyond the boundaries of strict halakha. This is impossible if halakha defines or satisfies all moral requirements. Nor can the concept of lifnim meshurat haDin be understood as formal din without entailing infinite regress and incoherence.

Another passage in the Palestinian Talmud (Baba Metsi'a 2:5; 8c) illustrates even more graphically the ethically unsatisfactory nature of some halakhic rules:

Shimon ben Shetach was in the flax trade. One day his students said to him, “We will buy you a donkey so you won’t have to work so hard.” They bought a donkey for him from a non-Jewish trader, and it happened that a precious gem was hanging from its neck.

The students came to him and said, “From now on, you won’t have to work anymore!” He replied, “Why not?”

They explained, “We bought you a donkey from a Gentile trader, and we found a precious gem hanging from its neck.”

R. Shimon said, “And did its owner know (about the gem)?”

“No,” they replied.

He then said, “Go and return it.”

But his students argued, “Is it not permitted to keep a lost article of an idolater?”

Shimon ben Shetach answered them: “Do you think that Shimon ben Shetach is a barbarian?”

Note that there is no dispute about the halakhic requirements in this case. It is clear that halakha allows Shimon ben Shetach to keep the jewel. Yet he knew that confining his behavior to the halakhic minimum was morally wrong, that as a moral agent he was required to “go beyond the strict line of the law.” He understood the intrinsic value of doing what was ethically right independent of the halakhic standard. His use of the term “barbarian” is shocking, indicating Rabbi Shimon’s moral outrage—and it is important to note that this outrage stands independent of his motive to bring honor to the God of Israel by dint of his exemplary moral behavior.

The talmudic sages were not the only authorities who understood the difference between halakhic requirements and moral norms; medieval rabbinic authorities did also. Nahmanides claimed that a person can be a “scoundrel within the bounds of Torah law,” and therefore there is an independent religious obligation to “do what is right and good” in our interactions with other people, an obligation that requires us to sometimes desist from what is halakhically permitted. Nahmanides understood that there is conceptual continuity between the mitzvah of being holy and living the ethically good life.[7] And no one less than the greatest halakhic authority in the history of the Jewish people, Maimonides, insisted that hewing exclusively to the letter of the halakha can produce behavior that is cruel and that befits only “idolators,” not pious Jews. Rambam stressed that while halakha points in one direction, good Jews must sometimes behave differently.[8] He never saw halakha as more than a floor on which to build a more robust Jewish ethic.[9]

            Modern halakhic authorities also admit that halakha is sometimes insufficient to satisfy the demands of morality. Exclaimed Rav Aharon Lichtenstein, “Who has not found that the fulfillment of explicit halakhic duty could fall well short of exhausting clearly felt moral responsibility? …the full discharge of one’s formal duty as defined by din often appears palpably insufficient.”[10]

            It is clear, then, that morality and the ideas of what is good, right and just extend beyond halakha, even if halakhic behavior and moral behavior frequently overlap.

            Some halakhic authorities contend that the methods of halakhic argumentation and intrinsic halakhic norms are logically independent from the methods of correct moral reasoning and fundamental ethical concepts. The total independence of halakhic axioms, rules of inference, values and method was stressed by Lithuanian analytic talmudic scholars, and it was best described by the Brisker school of the nineteenth and twentieth centuries, whose leading proponents were Rabbi Hayyim Soloveitchik and his grandson, Rav Joseph B. Soloveitchik. Both fiercely insisted on the autonomy and the internal coherence of halakhic thinking. For them halakha was a rigorous “closed” logical system: “To whom may he [the halakhic man] be compared? To a mathematician,” proudly announced the grandson Rav Soloveitchik. In the Brisker understanding, halakha is an ideal system analogous to pure mathematical systems, which represent the archetypes of objective rational inquiry. Halakha is a science that molds and imposes interpretations on empirical reality, rather than being influenced by it.[11] In other words, ideal halakha is abstracted from the flux of human experience—the very meaning of the term “apriori,” which Rav Soloveitchik was so fond of using when describing halakha.

            As an independent and autonomous system, halakha is value-neutral, similar to mathematics, whose sole methodological guides are consistency, coherence, and simplicity. Like differential equations, it is largely removed from human emotions, sensibilities, and desires. And like the autonomous sciences, halakhic logic is amoral—sometimes yielding ethically neutral conclusions (as in ritual law), sometimes yielding conclusions coincident with ethical reasoning, and sometimes yielding rulings contrary to ethical values, rules, and judgments. This is why halakhic geniuses can sometimes arrive at rulings like RBND and other morally problematic conclusions. In Rav Soloveitchik’s words, “the sole authority [of halakha] is logic,”[12] and thus some halakhists simply go wherever their value-neutral logic takes them. This is not to imply that Rav Soloveitchik himself was deaf to the call of ethical values. He most certainly was not.[13]

The Fundamentals of Jewish Ethics

What so disturbed R. Yohanan, Shimon ben Shetach, Ramban, Rambam, and Rav Aharon Lichtenstein that they insisted that religious Jews act beyond the strict letter of halakha—that they behave “lifnim meshurat haDin”? There are two concepts pervading biblical, talmudic, and rabbinic literature that explain the judgments of these rabbinic authorities and so many other halakhic thinkers: justice (tsedek) and compassion (rahamim/hesed).[14] Both are essential to the Torah, cutting to the core of proper Jewish behavior and the formation of the ideal religious Jewish personality.[15]

In Deut. 6:18, the Torah implores Jews to strive after these generic values. They also appear explicitly and implicitly in other forms throughout the Torah, as well as in derivative ethical concepts in the Torah and in rabbinic writings.

The fundamental imperative for Jews to legislate objectively and follow the requirements of justice appears explicitly in Deut. 1:16–17 and Deut. 16:18–20:

…You shall decide justly between an (Israelite) man and his fellow Israelite and between an Israelite and a stranger. You shall not take note of the individual in judgment; (rather) you shall hear a small person the same as you do a great person.

Judges and officers shall you appoint in all your gates, which the Lord your God gives you, throughout your tribes; and they shall judge the people with just judgment. You shall not pervert judgment; you shall not take note of persons, nor take a bribe; for a bribe blinds the eyes of the wise, and perverts the words of the righteous. Justice, justice shall you pursue, that you may live, and inherit the land which the Lord your God gives you. 

Although these imperatives appear in a judicial context, the value of justice for general Jewish behavior is undeniable. Note here the focus on fairness in administering justice, i.e., treating everyone equally and not favoring one person over another.

            Justice as fairness is also an implicit value underlying Lev. 19:18: “You shall love your peer as yourself: I am the Lord.” According to Abraham Ibn Ezra,[16] this equality applies to every human person because all persons are created the same way by God. This is also true of the thrust of Hillel’s talmudic negative formulation of this verse[17] for correct Jewish behavior, i.e., “if you do not want others to do a specific act toward you, you ought not to do it towards others.”

As Ibn Ezra understood, justice and the Jewish moral imperative to act with justice flow directly from two central axioms of Jewish theology: First, that all persons are created in the Image of God (tselem Elokim), and derivatively that human beings are capable—nay obligated—to imitate the Divine (v’halakhta b’derachav, or Imitatio Dei). Because God is exalted, dignified, and worthy of respect, so too all persons endowed with the Divine Image are owed intrinsic dignity and respect. As Rav Soloveitchik incisively observed, respect for every human being (kavod haBeriyot) is merely the rabbinic expression of the Bible’s concept of tselem Elokim.[18] Just as God possesses intrinsic sanctity, so must we treat His children as creatures with intrinsic value, not to be used solely as a means to our own ends or exploited for utilitarian purposes. As such, tselem Elokim is the theological version of the basic principle of rational humanistic ethics.[19]

This application of justice also underlies the talmudic statement, “The entire Torah is for the sake of peace” (BT, Gittin 59b). Peace, i.e., social order, stability, diminution of strife, is a substantive value that every person naturally pursues for himself. If so, each of us has a moral obligation to promote it in the lives of all others. The same logic obtains regarding the Torah value of darkhei noam—ways of pleasantness. If one wishes to pursue a pleasant life in which he or she can flourish, the logic of justice implies that one must extend that opportunity to others and allow them to flourish.

            The second moral pillar, compassion, plays an essential role in the Jewish understanding of God. Hessed is the primary attribute of God and hence is central to our own human religious behavior:

R. Hama son of R. Hanina further said: What is the meaning of the text: Ye shall walk after the Lord your God? Is it possible, then, for a human being to walk after the Shekhinah?...But [the meaning is] to walk after the attributes of the Holy One, blesed be He. As He clothed the naked….so you must clothe the naked. The Holy One, blessed be He, visited the sick…so you shall also visit the sick. The Holy One, blessed be He, comforted mourners…so you shall also comfort mourners. The Holy one, blessed be He, buried the dead…so you must also bury the dead. (BT Sotah 14a)

For Rabbi Eliyahu Dessler also, hessed is a primary attribute of God, and therefore a religious imperative for humans:

The power of giving is a Divine power, one of the traits of the Creator of all things, may He be blessed, Who shows compassion, is beneficent and gives, without receiving anything in exchange.… In this way, God made man, as it is written: “God made humankind in His own image,” so that humans would be able to show compassion, be beneficent, and give.[20]

And empathy toward others is primary in the Torah’s understanding of the covenant and correct Jewish behavior:

You shall not oppress the stranger, for you know the feelings of the stranger, having yourselves been strangers in the land of Egypt. (Ex. 23:9)

As Nahmanides explained this verse,

[The Torah] added this reason: For you know what it feels like to be a stranger, because you were strangers in the land of Egypt. That is to say, you know that every stranger feels depressed, and is always sighing and crying, and his eyes are always directed toward God, therefore He will have mercy upon him even as He showed mercy to you

The Talmud beautifully illustrates the necessity for empathy and moral imagination when deciding how to treat others:

There were captive women who were brought to Neharde’a by their captors so that the local residents would redeem them [with ransom money]. Shmuel’s father posted guards with them to ensure that they would not enter into seclusion with Gentiles [and be sexually defiled]. Shmuel said to him: Until now who guarded them? If there is concern about their status, it should be with regard to the possibility that they engaged in intercourse while in captivity before they were brought to Neharde’a. He [the father of Shmuel] said to Shmuel: If they were your daughters, would you treat them with such contempt? They are no longer captives and deserve to be treated like any Jewish woman of unflawed lineage. (BT Ketubot 23a)

Shmuel’s father insisted that his son rule with compassion. He brings home his point with the stinging rhetorical question demanding that Shmuel put himself in the position of the captives’ father, i.e., to identify with the captive women, to empathize with their distress, and to treat them as human subjects just as would their fathers and mothers, not merely as objects of halakhic deliberation.

            If the halakhic principle of v’halakhta b’derakhav means anything in Jewish tradition, it is acting toward others with both justice and compassion, since these values are the most prominent attributes of the Divine. The Torah lays this down as the underlying principle of the Jewish people's uniqueness:

Abraham shall surely become a great and mighty nation, and all the nations of the earth shall be blessed in him? For I have known him, to the end that he may command his children and his household after him, that they may keep the way of the Lord, to do compassionate righteousness [tsedakah] and justice [mishpat] ; to the end that the Lord may bring upon Abraham that which He hath spoken of him. (Genesis 18:18–19)

            The prophets Micah and Zachariah focused in on both these moral properties as the essential characteristics of Jewish religious life:

It hath been told to you, O man, what is good, and what the Lord requires of you: only to act justly, and to love mercy, and to walk humbly with your God. (Micah 6:8)

This is what the Lord Almighty said: Administer true justice; show mercy and compassion to one another. (Zechariah 7: 8–9)

            Jeremiah also understood well that justice and compassion pave the path to the religious ideals both of imitating God and of living the ethically good life:

Let not the wise man glory in his wisdom; neither let the mighty glory in his might; let not the rich man glory in his riches. But let him that glory, glory in this: that he understands and knows Me, that I am the Lord who exercises compassion (hessed), justice (mishpat), and righteousness (tsedakah) in the earth; for in these things I delight, says the Lord. (Jeremiah 9:22–23)[21]

            Jewish tradition denominates the Creator of Heaven and Earth by “Elokim” (the cosmic God of nature and justice) and “Adonai” (the personal God of love and compassion). In other words, just as God is moral by virtue of the divine attributes of justice and compassion, so we too must be moral by acting with tsedek (justice) and hessed (compassion).

            Finally, it is important to note that R. Akiva’s “great principle of the Torah,”veAhavta l’re’akhah kimokhah,” is a fusion of the generalizing principle of justice (kimokhah) with the necessity of positive feeling toward the other (“veAhavta”). This principle, then, is the religious formulation of the ground of good ethical reasoning and behavior.

In the worldview of Torah, tsedek and hessed are natural sensibilities that God implanted in our human consciousness to enable us to be moral agents[22]—and they require no further defense or justification. When Abraham challenges God by asking rhetorically, “Will the Judge of all the earth not act justly?” both Abraham and the Torah assume that if God is the moral ruler of the universe, God must act according to the standards of justice. When the Torah announces “Justice, justice you shall pursue” (Deut. 16:20), the value of justice itself needs no proof. When Maimonides rails against insensitivity to the hardship and suffering of others,[23] it is self-evident that hessed itself is a moral good requiring no further validation.

Tsedek, Hessed, and Moral Reasoning

Philosophers have also identified justice and compassion as the root values of moral experience and ethical logic. That Judaism and general human thought agree on this point should not come as a surprise. As Rambam so often insists, as human beings endowed with Tselem Elokim, Jews and Gentiles share the same rationality.[24] The Torah also tells us this: “…this is your wisdom and your understanding in the sight of the nations, that, when they hear all these statutes, shall say: 'Surely this great nation is a wise and understanding people'” (Deut. 4:6). When Jews observe the Torah correctly, the Gentiles will recognize the wisdom of the Jewish people and their laws. This is only possible if Jews and Gentiles share the same fundamental rational and moral sensibilities.[25]

These two fundamental concepts form the basis of all sound moral reasoning. They are the foundations of our moral sense and go to the heart of what we mean by ethics.[26] Morally sensitive people display a commitment (even if sometimes unconscious) to these values, and nearly every good ethical judgment is derived from some variation of these concepts. Certainly we would not consider a person who is indifferent to injustice or one who remains stone-cold to human suffering to be a moral person. Being blind to justice and compassion are the surest indications that such a person is not in our moral universe.[27]

The term Tsedek here connotes fairness and impartiality, as evidenced by its meaning in the when the Torah’s utilizes it in a judicial context (Deut. 1 and Deut. 16:2). In a just social system people are not granted unfair advantage over others and those benefiting from the system’s privileges must also accept its duties. Justice expresses itself in the principles, “treat similar people similarly,” and “do not give one person preferential treatment over others in the same situation.” These generalization rules give ethical judgments their objectivity, enable us to reason from one case to another, and ensure that moral claims are logical principles rather than mere expressions of personal interest.[28]

When I say “you ought to pay your taxes,” the “ought” signifies an ethical principle if I agree that all people like you—including me—ought to pay their taxes too. If I reject this generalization and claim that you ought to pay your taxes, but although I am just like you I am not obligated to pay my taxes, my claim is not a moral principle at all, just a subjective preference. The best way to test the objectivity of a moral judgment and the ethical legitimacy any statement I make about your obligations is to reverse our positions: If I don’t accept that I too have that obligation when I am in your shoes, then it is not really a moral claim. If I claim that “everyone ought to be kind to me when I am in need, but I have no obligation to be kind to others when they are in need,” no clear-thinking person would deem this a legitimate moral position. This generalization test is sometimes referred to as “moral imagination,” since it requires a person to see himself as the other person.

This generalization principle and its reasoning appears in the Torah as “Love your peer as yourself,” (Lev. 19:18) as well as in other formulations, yet it is not a uniquely Jewish idea. It is not only “the great general principle of the Torah,” as Rabbi Akiva claimed (Sifra 2:16:11), but it is also the essential characteristic of justice that is found in the literature, laws, and correct reasoning of all moral religions and ethical societies.[29]

Compassion is the second foundation of morality. There is enormous difference between analytic intelligence—the ability to see logical connections and make deductive inferences—and emotional intelligence, i.e., the capacity to understand the human condition of another and to think about other people as subjects like ourselves, not mere objects of cognitive or halakhic inquiry.

            Compassion is rahamim and hessed—feeling what others feel, empathizing with them when they are in distress, and extending ourselves into the lives of others.[30] Rabbi Samson Raphael Hirsch explained this beautifully, emphasizing its importance for being fully human:

Compassion is the feeling of empathy, in which the pain of one person of itself awakens in another. The higher and more human the beings are, the more keenly attuned are they to re-echo the note of suffering. Like a voice from heaven, it penetrates the heart.[31]

            Compassion is not only the ability to see another person as equal to yourself, but it is to sense how that person feels, what he or she wants and how she/he wants to be treated. When we apply this moral sense we feel the responsibility to accord others dignity and respect (as we ourselves naturally want to be respected), to avoid causing them emotional and physical pain (as we naturally want to avoid pain), and help others flourish (as we ourselves naturally wish to flourish).[32]

            In fact, both these fundamental elements of justice and compassion are often opposite sides of the same moral coin, and when we employ them correctly they frequently yield the same conclusions: Justice as impartiality is moral reasoning’s cognitive dimension, while compassion is the emotive component of a healthy moral sense that moves us to treat others the way we wish for others to treat us. This emotive component is critical to both ethical logic and moral motivation, because a strictly cognitive rule-dominated approach to ethics, be it philosophical or halakhic, proves sometimes cruel and often impotent.[33]

       Examining these two root moral concepts reveals why RBND and some other halakhot are morally problematic. Is it fair to take from others, but not give to them? Is it just to return the lost articles of other Jews, but not of Gentiles—as the simple halakha allows?[34] Is it compassionate to intentionally kill helpless infants and infirm elderly people who pose no direct threat during war—as the commandments to wipe out Amalek and the Canaanite nations require and the halakhic guidelines of milkhemot mitzvah (obligatory wars) allow?[35] Can these latter halakhot be moral and just, particularly when we correctly judge the intentional killing of innocent civilian Jews by Palestinian terrorists to be abhorrent?

            Heart transplants create an ethical symmetry between donor and recipient, and a unique one-to-one causal relationship between them.[36] Because of this relationship, if it is wrong for me to donate my heart because I contend it is murder, it must also be wrong for to me to be a recipient, because in receiving another’s heart I am a substantive causal agent in that donor’s murder. And if it is permissible for me to receive the transplanted heart, then it must be permissible for me to donate my heart to a recipient.[37] Justice rules out the morally untenable position of me having a privileged status over others by receiving another’s heart when the other person could not receive my heart due to my refusal to donate. Because the values of fairness and impartiality are fundamental to our moral thinking, if we assume that heart transplants constitute possible murder, there is no legal technicality or casuistic distinction within halakha that can succeed in justifying permitting a person to receive an organ while he refuses on principle to donate. If I am alive as a potential donor when I am brain-dead then another brain-dead person is equally alive when I need his heart, and it is immoral for me to play a role in his death by participating in the removal of his heart. Such action violates the moral consistency and reversibility tests, asserting that transplants are wrong when I am a donor and someone else is the recipient, but right when I am a recipient and another is the donor. As such, RBND reasoning is morally illogical and ethically unprincipled, and acting on it is morally wrong.

As we will soon see, many rabbinic authorities have noticed that this moral logic is at play regarding returning lost objects. Shimon ben Shetach realized that it is unethical—to the point of barbarism—to expect others to return my lost object, yet not be under any obligation to return the lost objects of others. This is logically akin to demanding that others pay their taxes so I benefit from state services, but permitting myself to evade the corresponding obligation to pay my own taxes. Halakhic authorities also employed comparable moral reasoning in interpreting other morally problematic halakhot.

Interpreting Halakha Morally

Classic rabbinic thinking utilized moral argumentation in determining halakha. Hazal determined the operative interpretation of lex talionis (“an eye for and eye”) based on a moral argument from retributive justice: Because “one person’s eye may not be equal to another person’s eye,” they ruled that these verses should be implemented via fair monetary compensation rather than literally. Halakhic tradition similarly interpreted the biblical laws regarding the idolatrous city (ir haNidahat)[38] and the rebellious son (ben sorer u’moreh)[39] to be only theoretical because of the unjust and overly harsh punishments that literal implementation would entail.

Despite this powerful ethical thrust in biblical, Talmudic, and rabbinic traditions, there remain halakhic rulings that are in deep in tension with ethical standards. Aside from the RBND ruling that violates moral consistency and just standards, the halakhic obligation to return the lost article of a Jew, but not of a Gentile, is another problematic case. This distinction appears to constitute unjust discrimination, as does the distinction between putting the life of a Jew ahead of Shabbat observance but not doing so for a Gentile life.

Halakhists have been troubled by these halakhic claims and have sought to interpret them in ways that are consistent with justice and compassion, i.e., render them ethically correct. Examining these approaches prove instructive for shaping yet other halakhic cases to be in line with moral standards.

A large number of Orthodox rabbis have rejected RBND in the name of halakha. Many announced early on that this position is ethically untenable due to its lack of moral consistency.[40] In addition, the Halakhic Organ Donor Society (HODS) lists over 300 Orthodox rabbis who accept brain death as halakhic death, thus disagreeing with both RBND and the RCA report. (Many of the HODS signatories are members of the RCA.) The Chief Rabbinate of Israel accepts clinically certified brain death as halakhic death and thus also rejects RBND.

Rabbis Menachem Meiri, Moshe Isserless (Ramo), Isser Zalmon Meltzer, and others interpreted the halakha of returning lost objects to conform with proper ethical standards by confining the dispensation to refrain from returning lost Gentile articles to refer only to Gentiles who are immoral pagans having no respect for property and hence would not return lost objects to other people.[41] In their understanding of Jewish law, when Gentiles feel obligated to return lost objects to Jews, Jews are under the obligation to return lost objects to them. In other words, their interpretations reinforce justice and equality based on reciprocity.

Rabbi Baruch Halevi Epstein articulated this position most effectively:

There is no value to such people [those who violate the basic laws of civility]. They destroy the world, imperil society and destroy both civilization and the establishment of governments. Certainly they are not fit to be considered as inhabitants of civilization and thus subject to a legal order. Therefore they have no monetary rights. In contrast, those who observe the seven Noahide commandments—and they are the majority of people today and all enlightened nations—there is no doubt whatsoever that they are treated like Israelites [with respect to this law of returning lost objects]. In my judgment this true and logical.[42]

            Note R. Epstein’s last words: “In my judgment this is true and logical.” The truth referred to is his correct ethical conclusion, and the logic to which he referred is valid moral reasoning based on justice as fairness. He has internalized the moral universe built around these moral values, and hence it is self-evident to him that halakha must be interpreted this way.

            More generally, R. Menachem Meiri argued extensively in his commentary on the Talmud that all halakhic civil discriminations with respect to rights and responsibilities of Gentiles apply only to those Gentiles categorized as “not having religion,” i.e., those who were immoral uncivilized idolaters.[43] In doing so, Meiri was successful in interpreting the halakhot governing Jewish-Gentile relations as reflecting just and fair standards, where justice denotes the elimination of arbitrary inequalities.

            One of the critical distinctions between halakhic treatment of a Jew and a Gentile is the question of whether one may desecrate Shabbat to save someone in danger of dying. The Talmud and normative halakhic tradition ruled that saving the life of a Jew takes precedence over a particular instance of Sabbath observance,[44] whereas saving a Gentile life does not take precedence over a Jew’s Sabbath observance.[45] Thus there is a clear axiological distinction between Jewish life and Gentile life. Rabbinic tradition does grant a Jew the dispensation to violate the Sabbath to save a Gentile’s life in order to prevent Gentile hatred (mishum aivah) and the retaliation against Jews that such hatred might engender. This dispensation, however, is prudential and based on self-interest, not on moral principle, justice, compassion, or the intrinsic value of Gentile life derived from the Divine Image. The disparity between the justifications to save a Jew’s life on the Sabbath and saving a Gentile’s life is, at best, morally problematic.

            Other than Meiri, a number of contemporary posekim have been troubled by the distinction in understanding of this halakha. In the 1960s R. Eliezer Samson Rosenthal, an accomplished halakhic scholar, member of the Israeli Chief Rabbinate halakhic committee, and posek for the Movement for Torah Judaism in Israel, argued that a Jew is obligated to save the life a of a Gentile on the Sabbath as an ideal rooted in the sanctity of the Gentile’s life, rather than from prudential self-referring reasons.[46] Citing support from then Chief Rabbi Unterman, he argued,

We today have no choice but to act in accordance with the principle of equality, considering all persons fully equal even to the point that the Sabbath may be set aside when they face mortal danger, “because of the ways of peace and as a sort of danger to all!” We Jews in particular have tasted the cruel reality of that danger in almost every generation…. When they rose up to destroy us, we stood against them in the dark of night, defending ourselves and crying out: “Are we not your brothers, not the sons of the same father or the same mother—how have we differed from every other nation that you persecute us harshly?” But we were not answered, and nothing was of use. So we cannot believe that the law of the Torah requires us, in our present situation, to abandon any person’s life, even to preserve the sanctity of the Sabbath.

            Note how R. Rosenthal engaged in ethical reasoning by employing Hillel’s principle and moral logic’s reversibility test: We Jews know how immoral it was for Gentiles to refrain from saving us, therefore we are obligated to avoid committing the same wrong by failing to save them.  

            R. Jacob Avigdor in R. Rosenthal’s era argued this also on the basis of moral considerations,[47] as did R. Nahum Rabinovitch in the 1960s. R. Rabinovitch insisted that the Torah itself makes no distinction whatsoever between the obligation to save a Jewish life on the Sabbath and saving the life of any civilized Gentile (ger toshav).[48] He contended that this was Nahmanides’ understanding of the halakhic imperative in Lev. 25:35: "If your brother falls low and cannot maintain himself with you, you shall uphold him; though be he a stranger (ger) or a resident (toshav) he shall live with you."[49] Like R. Rosenthal, R. Rabinovitch understood the Torah to naturally reflect the ethical principle of treating human life equally, which must be honored in the era of universal human rights of all non-threatening civilized persons. This is expressed religiously as the intrinsic sanctity and dignity of all human life derived from the universal endowment of tselem Elokim. As such, the distinction between saving a Jewish life and a Gentile life on Sabbath cannot be made consistent with the basic assumptions of equality and intrinsic dignity of each human life. Other halakhic authorities who argued similarly based on the value of the Gentile life include Rabbis Yehuda Loewe (Maharal), Yehiel Heller, Meir Dan Plotzki, Tsvi Hersch Chajes, Yehuda Gershuni, Joseph B. Soloveitchik, Ahron Soloveichik, and Aharon Lichtenstein.[50]

            A number of contemporary posekim seem oblivious to—or explicitly reject—principles of just war and contemporary international standards of military ethics, even though the Israel Defense Forces accepts these ethical principles as their rules of engagement. Contravening the “principle of distinction” that constitutes one of the foundations of the conception of just war, they reject the distinction between enemy soldiers and enemy non-combatants. If so, as it is permitted—even necessary—to target enemy combatants, it is in principle permissible to intentionally kill all civilians in the societies of Israel’s enemies. Such opinions may even represent the consensus of halakhic decisors today.[51] To quote one contemporary Israeli halakhic authority, “According to the worldview of Torah, there is no such thing as an innocent person among a hostile population.”[52]

            The moral illegitimacy and logical inconsistency of this position is clear. Jews (and all right-thinking people) properly condemn as immoral terrorists who attack, kill, and maim Israeli civilians. If the unacceptability of intentional attacks on civilians is a moral principle, then it must be so generally: Both when Palestinians attack Jewish non-combatants, as well as when Israelis (whether in or out of uniform) intentionally attack Palestinian non-combatants. Moral consistency demands that if we condemn the former, we must also condemn the latter. Conversely, permitting the latter puts Jewish fighters on the same immoral level as cruel terrorists who brutally murder Israeli teens innocently eating pizza in Jerusalem, Jews piously celebrating a Seder in Netanya, and Israeli infants riding quietly in their parents’ car.

            Permitting the targeting of non-threatening enemy civilians also blatantly violates the second moral value of compassion. Intentionally killing a Palestinian infant or a non-threatening infirm Arab grandmother is the very opposite of exercising compassion. It can be done only by rejecting empathy, legitimizing cruelty, and considering these targets impersonal objects rather than human subjects.

            Rabbinic tradition has long wrestled with the moral problem of targeting civilians in war—even when such action appears to be mandated by explicit verses of the Torah. The Talmud and later rabbinic authorities deliberated carefully over the rules of engagement when fighting Amalek, the Canaanite tribes, and enemies in a milhemet mitzvah. Aware of the moral problematics of these imperatives, they engaged in creative interpretations that rendered the biblical imperative to kill innocent non-combatants of enemy nations either as purely theoretical laws that must no longer be acted upon or ones that prohibited ab initio intentionally killing innocent non-combatants.[53] In modern times Rabbis Naftali Zvi Yehuda Berliner (Netsiv) and Shlomo Goren restricted targeting the enemy in war to combatants and explicitly forbade targeting non-combatants.[54] R. Goren ruled that according to halakha, contemporary wars must not be fought according to the biblical rules of engagement: “God forbid that those laws are applied to non-biblical wars or wars of our times.”[55]

            There is one more example of a morally problematic halakhic thinking that bears analysis. As mentioned earlier, there has been considerable rabbinic advocacy for reparative (change/conversion) therapy for homosexual persons,[56] no doubt in trying to defend the biblical prohibition against homosexual relations (Lev 18:22). One well known example is the 2011 “Declaration on the Torah Approach to Homosexuality,” which continued supporting change therapy until late 2018. Rabbi Tzvi Yehuda Tau, the spiritual leader of the Noam party in Israel and head of Yeshiva Har HaMor, continues to publicly support change therapy on religious grounds. In July 2019, the then Israeli minister of education and disciple of Rabbi Tau, Rabbi Rafi Peretz, also publicly advocated reparative therapy. While Peretz was forced to retract his support because of the loud public outcry, a number of rabbis in Israel and the United States still advocate this approach on religious grounds. Israeli’s religious parties, taking direction from their rabbinic authorities, have continued to support this therapy and fight against a Knesset bill to legally prohibit its practice by Israeli therapists.[57]

            This advocacy has persisted long after the American Medical Association, the American Psychological Association, the American Psychiatric Association, numerous other professional medical organizations, and many governmental bodies have concluded that there is no credible evidence indicating that change therapy is effective and, worse still, that this therapy is likely to cause physical and psychological damage to the patient.[58] This is also the consensus opinion of medical professionals in Europe and Israel.[59] Because of conversion therapy’s harmful effects, a growing number of states and municipalities in America have banned this therapy for minors, as have a number of European countries.[60]

            It may well be the rabbis who signed the 2011 Declaration were not sufficiently informed or convinced of the non-efficacy and harmful effects of change therapy, in which case the advocacy did not indicate a lack of compassion or empathy for gay and lesbian persons. However in light of the well-known persuasive public evidence of the potential dangerous effects of change therapy prior to 2018, it was morally irresponsible to continue to advocate this course of treatment. Even if this rabbinic advocacy is no longer the majority opinion today, its original support can illuminate why certain halakhic positions are morally problematic.

            Let us assume that the consensus of medical professionals is correct and that change therapy is both ineffective and harmful. Given these data, would the rabbinic signatories of the declaration have prescribed such therapy to their own sons and daughters, as they did to others? To paraphrase the father of Shmuel in BT Ketubot 23a, “If they were your sons and daughters, would you treat them this way?” Yet this is what the generalization and reversibility rules of ethics demands if such a policy is to be moral. Did the signatories fulfill the biblical imperative to “love your peer like yourself?” According to the medical consensus, change therapy is the equivalent of a drug rejected by the FDA because clinical trials failed to satisfy standard efficacy and safety requirements. Would the declaration’s signatories have given their loved ones such a questionable medication, particularly when knowing that these loved ones have increased incidents of drug use, depression, suicide ideation and suicide attempts, as do homosexuals—and when persons undergoing change therapy exhibit even higher incidences of these life-threatening behaviors than do others?[61] Can advocating this doubtful therapy be accurately described in any way as evincing compassion or empathy? And on strict halakhic grounds, the potential harm to the health of the patient and misuse of his/her assets by ineffective conversion therapy render this therapy highly undesirable, if not explicitly halakhically forbidden, as R. Daniel Sperber argues in a June 2020 responsum.[62]

            Halakhic Jews have a moral responsibility to protect the welfare and equality of all non-threatening persons. Correct ethics require that LGBQT persons be treated by others as full human beings to be understood and treated with compassion, not as problems to be solved. In addition to rejecting scientific judgment, the said rabbinic advocacy of conversion therapy neglected the welfare of individual same-sex oriented persons for the purpose of sustaining a traditional ideology. This is neither just, nor compassionate, nor ethically justifiable.

            Similar to each of the other cases, there are halakhic alternatives to this approach, reflected in different statements by rabbis and religious educators regarding policies toward LGBTQ persons.[63] One such statement, written in 2010 and reinforced in 2016, has garnered over 200 signatures of Orthodox rabbis, Talmud scholars, and communal leaders, including two former presidents of the RCA, demands that homosexuals be treated with full “dignity and respect” and welcomed into Orthodox communities and synagogues.[64] These statements avoid advocating harmful policies, and stress the moral and religious obligations to demonstrate compassion and understanding toward gay, lesbian, and gender fluid persons, similar to all other persons. These approaches recommend non-discriminatory policies toward all persons with same-sex orientations and the religious obligation to treat them in their full humanity—all without violating the biblical proscription against male homosexual relations.

“Gam Hayn Nivr'u B’Tselem”—They Are Also Created in the Divine Image

There is no doubt that ethical thinking based on the concepts of justice and compassion have a universalizing tendency, and this universalism is sometimes in tension with traditional halakha. It also chafes against the current Orthodox trends toward inwardness. The most severe ethical challenges to halakha now and in the future require us to think anew about how to justly treat and promote the full humanity of women, heterodox, secular, and LGBTQ Jews as well as Gentiles—i.e., persons other than the adult religious Jewish males who have dominated halakhic discourse and Jewish leadership. The ongoing project of Jewish ethics entails the continuous expansion of the spheres of justice and compassion to include all human beings. Nor is this progressive growth in moral awareness inimical to the eternal nature of Torah. Quite the contrary, as Rabbi Nahum Rabinovitch has shown: It should be seen as essential to God’s plan for the Torah to apply over all different cultures and the entire sweep of human history.[65]

The concept of tselem Elokim is a rich source for sound ethical reasoning built on justice and compassion.[66] The Torah teaches us that all human beings are endowed with this transcendent quality, and hence the ethics flowing from tselem Elokim dictate that we widen our scope of sensitivity and ethical concern toward all human beings, striving to treat each not merely as a means to another end, but as a subject who has emotions, anxieties, interests, and needs like ours and who has a unique voice worth hearing, just as we wish to be treated, understood and heard. The endowment of tselem Elokim also implies that we must understand that a person’s value, dignity, and right to equality reside in his/her personhood, not in his/her gender, theological orientation, or ethnic identity. This requires a conceptual shift from categorizing persons as members of a group to evaluating and relating to each person as an autonomous individual.[67] This outlook is closely linked to R. Akiva’s great principle of the Torah in Lev 19:18 and to achieve highest levels of morality we must interpret ve’ahavta l’re’akhah kimokhah to require the full consideration of all non-threatening human beings, as did Avraham Ibn Ezra.

            Then-Chief Rabbi of Tel Aviv, who later became the first Sephardic Chief Rabbi of the State of Israel, Rabbi Ben Zion Uziel demonstrated this ethical sensitivity in a 1920 responsum dealing with the question of whether women should be afforded both passive and active suffrage and whether they had a right to represent themselves in political matters.[68] His argument was stunningly simple: Even if for the sake of argument we concede that the Torah does not include women in the formal category of the pubic community (kahal or edah), he queried, “Are they [i.e. women] not creatures created in the Divine Image who are endowed with intelligence? Do they not have interests that will be effected by a representative government?”

            Rabbi Uziel insisted that women have the right to vote and to hold public office because he understood that treating people as creatures endowed with tselem Elokim entails granting them full human dignity, including the right to speak for themselves and to defend their own interests. Ovadia Seforno also understood tselem Elokim to mean that people must be allowed to be free to make their own choices,[69] and therefore each adult has the right to a voice in decisions affecting him or her. As such, tselem Elokim foreshadows the principle of justice and requires that we give all Jews including women, heterodox, secular, and those with different sexual orientations the right to speak for themselves in communal decisions and policies affecting their interests. To exclude them and presume to speak for them, however well-meaning the intent, is a paternalism that does not square with the demands of fairness and human dignity. In halakhic language, it is a violation of kevod haBeriyot.

            This is a particularly vexing moral problem today in Orthodox rabbinic decisions regarding women, who continue to be excluded from decision-making processes about women’s rights as well as communal policies and norms.[70] The logic of justice and compassion moves in the direction of not marginalizing women in voice or decision. And when deciding Jewish policies affecting Gentiles, correct ethics demand that we consider them full human beings equal to Jews in both value and rights.

            Unfortunately Rabbi Uziel’s use of tselem Elokim is an exception in halakhic literature. The general concepts of tsedek, hessed, and tselem Elokim appear relatively infrequently in responsa and amid the technicalities of formal halakhic discourse—as do the general Torah imperatives, “Ve-ahavta l’reikhah kimokhah” “V’asita haYashar v’haTov” and “Kedoshim ti’heyu.” Indeed, while their Jewish authenticity is undeniable, their halakhic status is complex.[71] Pointing toward ethical ideals, these values and imperatives are absent entirely from the halakhic arguments of the cited problematic cases, yet they are precisely what is necessary to ensure the moral stature of halakhic rulings.

            The reasoning of responsa and their resulting halakhic decisions will be moral only to the extent that justice, fairness, and human compassion factor into the halakhic reasoning of any given situation. Responsa on strictly ritual questions usually lack moral dimension and have no need for these values. But questions about interpersonal relations and individual interests do, and hence halakhic rulings regarding human affairs can prove immoral if they are oblivious to these values. When halakhic logic emphasizes formalism at the expense of compassion and empathy, when it is reduced to value-neutral mathematical-type thinking, when “let the law bore through the mountain” becomes the single guiding principle in halachic argumentation, halakha opens itself up to unethical rulings. In the words of one rabbinic sage, “Standing upon strict din entails ruin.”[72]

            Halakha cannot and should not be reduced to ethics alone. Surely there exist other desiderata with valences in the halakhic system, and for halakha to maintain its identity and structural integrity, the justice, compassion and the human sensitivity demanded by tselem Elokim cannot be the only values operative in halakhic reasoning.

            Yet if halakha is to retain moral integrity, it must function within the bounds of tsedek and hessed. To ensure the ethical character of halakhic judgments, halakhic authorities must ask themselves, "Is my legal conclusion just, or does it discriminate unfairly?” “Is my pesak compassionate and empathetic?” “Does my reasoning employ the full meaning of tselem Elokim by treating each person it affects as an end and not merely a means, as a human subject rather than an object of legal inquiry?” “Does my ruling respect the full dignity of the persons involved?” “Does it allow others to flourish as I wish to flourish?”

A Theological Postscript

Not long ago, I discussed the military ethics of Israel Defense Forces with someone who helped write the IDF's code of military engagement. I asked him why the IDF insists on following just war principles even when they entail significant risk to Israeli soldiers, make battlefield decisions more difficult, and are costly in blood and treasure.

He answered that morality is essential to Jewish identity. It is who we are and who we should be. He then added a more prosaic reason: Israeli soldiers must believe in the justice and rightness of their cause. They must be able to look at themselves in the mirror and know that their sacrifices are for a moral purpose. IDF officials realize that if their soldiers lose conviction in the justice of their cause and the ethical integrity of their battlefield behavior, they will not be willing to risk their lives. Many, in fact, will not return to serve when called upon. It is these ethical values that sustain the high morale of the Israeli army.

And so it is with halakha. Should Jewish law lose its ethical moorings, it will devolve into just another set of laws holding no more attraction than any other legal system. As a consequence, halakha will cease to be a rallying point for many Jews, at which point they will deem halakha inferior to more just systems, lose their conviction in it, and walk away from halakhic commitment.[73] Only when halakha manifests a deep passion for justice and human sensitivity will it secure the wide allegiance of Jews today. Moral integrity is, therefore, an existential imperative for contemporary halakha.

No doubt a small number of Jews will choose to disregard moral logic, broader human wisdom, and any considerations not technical or parochial. As one radical halakhic posek claimed: “The morality of Gentile nations cannot understand the essence of Judaism. Therefore Gentiles have nothing to teach us.”[74] No wonder, then, that this posek permits intentionally killing civilians.

It fallacious to interpret this kind of insular thinking with its dismissal of ethics as authentic to halakha or the Torah. On the contrary, dismissing ethics in determining formal halakha represents a severe defect in their understanding of Torah, of which justice and compassion are intrinsic elements. At the dawn of God’s covenant with the Jewish people, God challenged Abraham and his descendants "to act with compassionate righteousness and justice" as the signal characteristics of their covenantal commitment. Moses later commanded the Jewish people to "do what is right and good,” and later still Isaiah challenged the Jewish people in God's name to be "a light for the nations." Thus the ethics of justice and compassion have always been constitutive Torah values and essential to the sacred Jewish covenantal mission.

Contrary to the contemporary rabbinic opinion just cited, the Torah insists that when Jews observe God’s commands correctly, the nations of the world will not be at a loss for understanding. On the contrary, they will conclude about the Jewish people, “Surely this is a wise and discerning people” (Deut. 4:6). The Torah thus proclaims that Jewish ethics is no esoteric enterprise; Torah values, rather, are values all people will appreciate when Jews observe halakha correctly. Justice and compassion are fundamental values to Jewish religious life, but they are also universal. And so the Bible promises that when Jews live properly, their behavior will be exemplary, their wisdom will be understood, and their values will be recognized by all God’s children.

This is true not merely theologically, but also empirically: Nothing falsifies claims to religious truth in human hearts and minds as does unjust and immoral behavior. As Maimonides understood almost 800 years ago, Jews who defy moral logic will cause Jews to be seen only as “a foolish and despicable people,” rather than a wise and discerning one.[75]

Nor is this commonality with general human ethical judgment a threat to the unique nature of Jewish religious commitment. The Torah challenges the Jewish people to be a kingdom of priests and a holy people, and when all Jews are priests it can only be Gentiles who Jews are bidden to bless, influence, and teach. When Jews proclaim “From Zion shall the Torah go forth and the word of the Lord from Jerusalem,”[76] we need to be conscious of its context and understand that it is before the Gentile nations that this divine wisdom is meant to be heard and understood. And as Nahmanides taught, our status as a holy people is dependent on our doing what is morally right and good.

That holiness is analytically tied to what is morally right and good, and that there can be no holiness without an abiding commitment to ethics, may be two of the most important teachings in the entire holy Torah.  

Notes

It is well known that all mitzvoth fall into two major categories: those between humans are God-bein adam laMakom, and those between humans and their fellows-bein adam leHaveiro. The question we wish to discuss here is which of these two categories is, as it were, more weighty. Formulated differently: If there were to be a clash between two different mitzvoth from these two categories, which one would prevail?

At first blush one might well assume that our relationship toward our Maker is clearly of such primal importance, that in all such cases we must give mitzvoth directed toward God our first priority. Indeed this seems to have been a common presumption among some people during the Second Temple times, as we learn from the very disturbing story in B. Yoma 23a:

It once happened that there were two Kohanim who had equal [rights to carry out a sacrifice], and they were running up the gangway [to the altar]. One of them got ahead of his fellow by within four cubits, and he took a knife and stabbed it into his fellow kohen's heart.... The father of the young kohen came and found his son convulsing. He said: May he be your atonement, for my son is still convulsing (i.e., still alive), and the knife has not been made ritually impure. This comes to teach you that the purity of [Temple] vessels was more serious for them than bloodshed....

This very shocking story reflects a not uncommon notion as the scale of priorities to be found in certain sectors of Jewish religious society.
But the fact that we find this episode so shocking and unacceptable indicates that we must reconsider the moral and halakhic presumptions underlying the tale. And indeed, when we examine this issue more closely we shall see that the opposite is the case, namely, that interpersonal mitzvoth have a priority over those between humans and God. So formulates R. Meir ben Raphael Plotzky, in his classic K'lei Hemdah to Deuteronomy 25:26 (sect. 5, subsection 4, Pietrokow 1902. KiTetze p. 228):

Concerning the issue of one who is engaged in one mitzvah that he is exempt from another if he is engaged in a mitzvah between man and his Maker-he is not exempt from a mitzvah between a person and his fellow. ... However, this is only the case with regard a mitzvah between a person and his Maker. We have not heard that this would exempt him from a mitzvah between a person and his fellow, for the ultimate end that would serve his fellow cannot be pushed aside because one is engaged in a mitzvah directed toward one's Maker.

We see then, that when there is a clash between these two categories, it is the "social" mitzvah that overrides the "ritual" one.
We find this principle also in the S'dei Hemed of R. Hayyim Hezkiahu Medini (vol. 5, p. 233b, Klal 45) in the name of the Shem Aryeh, by R. Aryeh Leibush Bolhauer [Vilna 1873-1874], in the additional response at the end of the book sect. 3. There, he solves a certain question raised by the Tosafot to Shevuot 44b in the following manner:

In B. Rosh haShanah 28a we learn that someone who takes upon himself by a vow not to receive any sort of benefit or enjoyment from a spring, is permitted to bathe in that spring for a ritual ablution, for mitzvoth are not for personal benefit. The Tosafot ad loc. ask as follows: Surely in doing so, he will benefit according to the view of Rav Yosef in that he is a paid guardian (shomer sakhar)?

Let me explain this in greater detail. Rav Yosef is of the opinion that if someone finds a lost object and keeps it until the owner comes to claim it, his legal status is that of a paid guardian; the reason being that while he is engaged in looking after the object, making sure it is in no way damaged, he will be exempt from giving a poor man who comes to his door a small gift of charity. This is called peruta deRav Yosef, Rav Yosef's penny. In that he does not have to give out a penny, it is as if he has earned it. Hence, he is a paid guardian. According to this view, if, while the person is having his ritual oblution, a poor man would come begging for a donation, he would be exempt, since he is already engaged in a mitzvah, and there he would be having a monetary benefit from not giving the "penny." How then, ask the Tosafot, can he be permitted to bathe in the spring when he has vowed to have no sort of benefit from it? The answer that the P'nei Aryeh gives is that such exemption from charitable giving is only the case when the mitzvah he was engaged in was toward his fellow man, looking after the lost object. But if he is engaged in a ritual mitzvah, toward his Maker, he is in no way exempt from the mitzvah of giving charity, which is one directed to his fellow man. This then is fully in line with what we saw to be the principle in the K'lei Hemdah.

Although this may appear to be a rather radical view formulated by later authorities, it is actually already to be found in the Rosh (Rabbenu Asher), in his commentary to Peah 1:2. He wrote (ed. Samuel Edwin, Marlborough, Australia, no date):

For the Holy One blessed be He is more desirous of mitzvoth that are done to the satisfaction of human beings, than those that are between a person and his Maker.

See on this what Rabbi Elhanan Wasserman wrote in his Kovetz Maamarim (ed. R. Eliezer Simchah Wasserman, his son, Jerusalem 1963, pp. 42-43):

For "among two hundred is to be found a hundred" (a common rabbinic idiom), meaning that in all mitzvoth between a person and his fellow there is also a component between a person and God. Why then should they be lessened by being between a person and his fellow? And it is for this reason that the Rosh saw interpersonal mitzvoth as being weightier, for they contain both elements.

I believe this notion is also to be found in the Ramban. On the verse in Leviticus 23:22-"And when ye reap the harvest of your land, thou shalt not make clean riddance of the corners of thy field when thou reapest, neither shalt thou gather any gleanings of thy havrvest; thou shalt leave them unto the poor and to the stranger: I am the Lord your God"-he writes as follows:

Rashi wrote [not in our Rashi] The Scripture repeated itself to make a person transgress two prohibitions.... Rashi seeks to answer the question why this verse appears after the section dealing with the bringing of the omer. Moreover, these commandments of Peah etc. have already appeared in Leviticus 19:9-10, in a very similar formulation.

However, Ramban rejects Rashi's explanation, and suggests:

In my view, the correct interpretation is that the harvesting mentioned refers to what is brought at the beginning of the section (verse 10), namely that when you come into the land and reap the harvest and bring a sheaf of the first fruits of the harvest, you should not reap the corner of your field for the omer, nor glean the gleanings, meaning that the mitzvah [of the omer] does not supersede those prohibitions.

The Ramban here is teaching us that the mitzvah of bringing the omer before the altar of God cannot push aside those mitzvoth aimed at helping the poor. (R. Hayyim ibn Atar, in his Orah Hayyim ad loc., follows this interpretation.)

In light of the above we can perhaps better understand the well-known rabbinic statement that whereas sins against God are expiated on Yom haKippurim, those against fellow humans are not expiated on Yom haKippurim until the sinner appeases the person against whom one sinned (B. Yoma 85b, and cf. Numbers Rabbah 11:7). [1]

My grandfather, Rabbi David Sperber, of blessed memory, in his commentary to tractate Avot 3 (Mikhtam leDavid, Brooklyn 1997, p. 64) linked this concept to the statement of Rabbi Haninah ben Dosa (Avot 3:11):

He in whom the spirit of mankind finds pleasure, in him the spirit of God finds pleasure; but he in whom the spirit of mankind finds no pleasure, in him the spirit of God finds no pleasure.

And in this context we should recall the famous difference of opinion among the later authorities, some of whom hold that if the sinner does not appease his fellow, than those sins against God will also not be expiated by Yom haKippurim.[2]

I cannot restrain myself from recalling the wonderful story that R. Yehudah Leib Maimon records in his Toledot haGra, Jerusalem 1970, p. 7, concerning the Rabbi of Frankfurt R. Avraham-Abush, a contemporary of the Gaon of Vilna:

They relate that once the shohetim of Frankfurt came before him with a query concerning [the kashruth of] a lung, a matter on which the Rama and the rest of the Polish authorities ruled most stringently. The incident took place on the eve of a festival, and the matter was one potentially involving a very considerable monetary loss for the impoverished slaughterer. The members of the Bet Din wished to rule stringently and declare the meat not kosher, but R. Avraham-Abush began to search for ways of finding it kosher. The judges of the Bet Din insisted on their position that it is impossible to rule leniently against the view of the Rama and his colleagues, but R. Avraham-Abush argued with them, discussing the halakhic issues involved, and finally ruled that the meat was kosher. The members of the Bet Din were astonished, asking him: How could one possibly rule leniently, declaring the meat kosher against the ruling of the Rama and the great authorities of Poland who held the same opinion?!

R. Avraham-Abush replied to them as follows: I prefer at the end of my days that [before the Heavenly Court] I will argue my case with the Rama and his colleagues, rather than with this poor slaughterer. The slaughterer is a simple man, and it will be very difficult for me to argue my case with him before the Heavenly Court, if he brings me to court claiming that I declared his animal tareif, and that in doing so I caused him great monetary loss [3], and that I damaged his business on the eve of the festival. But I am sure that when I lay out my arguments before the Rama and his colleagues, we will reach an agreement....

The logic in R. Avraham-Abush's position is clarified in a similar tale told by Yaakov Rimon and Yosef Zundel Wasserman in the book, Shemuel beDoro:
R. Shmuel Salant z"l Rabbah shel Yerushalayim 1841-1909, Hayyav uPoalav, Tel Aviv 1961, pp. 122-126:

Once upon a time some learned rabbis were arguing with him (R. Shmuel Salanter) on a case where he had ruled "kosher," and needless to say he refuted their counter-arguments. One of them turned to him and said to him: You have refuted our arguments, but what will happen when you come before the Heavenly Court and have to argue with the Bet Yosef and the Rama? He replied as follows: Surely you will agree with me that it will be better for me to argue my case with them, since I believe that I understood in depth their opinion, rather than having a claim against me on the part of the ox [i.e. on the part of the owner of the ox] that I incorrectly declared tareif....

Both of these tales have a common denominator: namely, that if the rabbi ruled incorrectly, declaring tareif meat kosher, he has sinned against God, and Yom haKippurim will atone for this sin. But should he have ruled kosher meat as tareif, he will have caused damage, hurt, and monetary loss to the slaughterer, and this is a sin against his fellow human, a sin for which Yom haKippurim does not automatically atone. He thus preferred to err on the side of leniency rather than risk erring on the side of stringency. (See my discussion in Darkah Shel Torah pp. 140-141.)
We find much the same idea reflected in the Netziv (R. Naftali Zvi Berlin), in his HaEmek Davar to Genesis 20:7, "[Now therefore restore the man his wife; for he is a prophet], and he shall pray for thee, and thou shalt live":

According to what we have explained... that the sin was that [Avimelech] caused grief to our forefather Abraham, surely he only needed to appease him, and there was no need for prayer. However, from here we may learn that one who sins against his neighbor also sins against God, and it is not sufficient to appease one's neighbor alone. One must also beg foregiveness from God. And for this reason he needed Abraham's prayer, in order to be completely expiated.

Perhaps we may here add that which we find in Sefer haRokeah sect. 369 ad fin., namely that a person who is sitting in the synagogue, wrapped in his tallit and with his tefilin on his head and who is reciting liturgical songs, must, nonetheless, rise up before his teacher, since he can carry out both actions simultaneously. Now there are early authorities who held that the principle that one who is engaged in one mitzvah is exempt from another is also the case when both could be carried out. (See Shulhan Arukh Orah Hayyim 38:8, and in the Beur Halakha ibid., and also R. Yaakov Hayyim Sofer, Brit Yaakov, Jerusalem 1985, sect. 2, p. 36.) The author of the Rokeah, R. Elazar of Germaiza was a disciple of R. Yehudah (b. R. Shmuel) he-Hassid, the author of Sefer Hassidim. It is the view of R. Yehudah he-Hassid that even if one can carry out both mitzvoth, one is exempt from doing so, if one is engaged in a prior mitzvah; and this, indeed, is the view of R. Elazar Rokeah himself (Rokeah, Hilkhot Sukkah sect. 299; see Sofer ibid.). Why then should one engaged in praising the Lord in the synagogue have to rise up before his teacher? He is already engaged in a mitzvah, and therefore exempt from others! Surely, this is only because ritual synagogue worship is directed toward God, but respect for one's teacher is between a person and his fellow, and he is not exempt from it. This, too, is the ruling of the Hidah, R. Hayyim Yosef David Azulai, that even in the hour of prayer one rises before a Torah scholar, (Birkei Yosef Orah Hayyim sect. 244:1; and see Sofer ibid. note 8 on p. 37).

It would then appear that this is a basic principle in halakhic and ethical thought, that interpersonal mitzvoth have some kind of greater virtue that those directed toward God.

We find this principle reflected in a passage in Rambam, Hilkhot Rotzeah 4:9. There he writes as follows (and is also quoted in the Semag [Sefer Mitzvot-Gaddol], negative commandment no. 163):

Even though there are more serious sins than murder, they do not destroy the order of society like murder. Even idolatry...and the desecration of the Sabbath are not as [serious] as murder; for these sins are of the [category of sins] between humans and the Holy One blessed be He, whereas murder is of [the category of] sins between a person and his fellow.

There is a tradition in the name of the late R. Aharon Soloveitchik that when he was asked concerning the gravity of the sin of homosexuality he replied "It is terrible. It is almost as great a sin as cheating in business."[4]

Indeed, the same R. Levi (B. Baba Batra ibid.) states that "theft from an individual is more serious than theft from that which has been dedicated to God..." Here again we see the relative weight of these two categories of mitzvoth, and conversely aveirot-sins.

We may perhaps add yet another possible insight. The Kolbo, Hilkhot Evel veTumat haGuf, ed., David Avraham, vol. 7, Jerusalem 2002, 71, raises what he calls "a very weighty question"- namely that "there are two mitzvoth that contradict one another" (or, as the Orhot Hayyim emended: "seem to contradict one another," ibid. note 314), namely: the seriousness of coming into contact with corpse-related uncleanness, and the very important mitzvah of burying an untended corpse-a met mitzvah.[5] He goes to considerable depths to solve this apparent contradiction (ibid. 71-75, and the editor's notes ad loc.). However, we would suggest that the laws of impurity are basically ritual laws, and hence God-related laws, whereas the burial of an untended body is a person-related law, since the dead were thought to be sensitive to their state, and certainly live people would wish themselves to be properly buried. Hence, the mitzvah of burying a met mitzvah has priority over the laws warning us against becoming impure by contact with the dead.

We may also call our attention to what is related in Numbers 9:6-7:

And there were certain men, who were defiled by the dead body of a man, that they could not keep the Passover on that day; and they came before Moses and before Aaron on that day: And these men said unto him: We were defiled by the dead body of a man: wherefore were we kept back, that we may not offer our offering of the Lord in his appointed season among the children of Israel?...

On this the Talmud in B. Sukkah 25b asks:

Who were these people who were dealing with a met mitzvah, a dead person that no one else was dealing with?

Rashi, ad loc., comments that this was not necessarily a met mitzvah (who has a special status), for even it if were their own dead... they would have been obligated to deal with them. See the Torah Temimah ibid. (pp. 109-110 note 4), from whose discussion it emerges that carrying out a relatively minor mitzvah would obviate the carrying out of a more serious one-and in this case, one should nonetheless carry out the minor one. We would add that seeing to the burial of a dead person is seen as an interpersonal mitzvah, and is called by the rabbis Hessed shel Emet, true benevolence, in that it is one for which one receives no recompense. Within a person's lifetime he knows that someone will always see to his last rites and burial. Hence, this is a person-directed mitzvah, whereas the sacrifice of the paschal lamb is a God-directed mitzvah; hence, the former overrode the latter.

We may move one stage further, quoting a passage from the Hidah, in his book Yair Ozen, (Lemberg 1865, 109a):

That which is written in the Yerushalmi Berakhot chapter 2 ad fin., and Shabbat 1:1, that he who is exempt from something and does it is considered an ignorant person, while in many other cases our decisors said that he who takes upon himself additional stringency, may he be blessed. (See Shulhan Arukh Orah Hayyim sect. 639:2, and compare with subsection 7 ibid.) One may explain [this difference] by stating that "he is considered ignorant" only with regard mitzvoth directed toward his Maker. But there is never an exemption from mitzvoth directed toward his fellow humans, for we have been directed in a generic fashion to go beyond the letter of the law, as we learned in B. Baba Metsia 30b....

In this way the Hidah resolved a question against the Rambam (Hilkhot Gezelah veAvedah 11:17), who wrote that: "He who goes on the straight and virtuous path and acts beyond the letter of the law, will return a lost object wherever it be, even if this is not in accordance with his dignity." According to the Hidah, even though this person is not obligated to return the lost object, because it is beneath his dignity to do so, he should nonetheless do so, and is not to be considered an ignorant one, since this is an interpersonal mitzvah.

And this, indeed, is the simple and deep understanding of the statement found in B. Shabbat 127a:

R. Yehudah in the name of Rav said: Greater is the hosting of guests than the hosting of the Shekhinah, as it is said (Gen. 18:3), "And he [Abraham] said: My Lord, if now I have found favor in Thy sight, pass not away, I pray thee, from Thy servant."[6]

Here I would recall the tradition related by R. Yaakov Tavshonsky, in his Imrei Haskel, Vilna 1909, p. 57 (cited in Dov Eliach's Avi haYeshivot, vol. 1, Jerusalem 1991, pp. 265-266), concerning R. Hayyim of Volozin:

Once R. Hayyim Voloziner, who made it a rule to come regularly to the Bet Midrash at prayer times, was late for prayer. The beadle went to call him to come and found him seated at his table happily in discussion with a group of distinguished guests who had come to visit him. Noting the expression of surprise on the beadle's face, R. Hayyim explained himself in the form of a question: "Is the issue of the importance of hosting guests, which is said to be greater than hosting the Shekhinah, of little importance in your eyes?!"

I would further suggest that it is this basic principle that is behind the well-known halakhic ruling that the danger to life takes precedence over the laws of Shabbat (B. Shabbat 132a), and indeed over other laws of great gravitas (see B. Yoma 82a). It is well known that R. Hayyim Brisker took an extreme position of leniency in matters where he saw even a hint of a life-endangering situation. Thus it is related (Aharon Sorasky, Marbitzei Torah uMusar beYeshivot Nusah Lita miTekufat Volozin veAd Yameinu, vol. 1, Israel 1976, p. 112) that:

Once a Jew from Brisk came to him with a question: His son, who had been drafted to the army, was sick and in the hospital in the nearby town of Sidlitz. On the following day, which was Shabbat, the doctors would examine him to decide whether or not he was fit enough to join the army. And so, asked the father, was it permitted for him to travel that night on Shabbat, to Sidlitz in order to intercede on his son's behalf. R. Hayyim did not hesitate for one moment, but ordered the man to do all in his power to save his son, since there was a danger to his life.

The people who were present were puzzled by his unusual ruling, and after the man had left, R. Hayyim explained his response:

If this young man will have to serve five years in the army, it is not unlikely that during this period a war will break out and he will be sent to the front and possibly be killed. And even the slightest suspicion of a life-endangering situation overrules the laws of Shabbat.

R. Hayyim's position on a sick person fasting on Yom haKippurim shows similar concern for human life. Sorasky relates (ibid. pp. 112-113) that shortly before his death, R. Hayyim dwelled in Otbosk, a place near Warsaw where people sick with tuberculosis (TB) would come for treatment in the pure fresh air. On Tisha beAv, twelve days before he died, a woman came to him weeping that her son lay sick with TB in the house next door, in a life-threatening condition, and the doctor forbade him to fast. However, the young man refused to listen to the doctor. R. Hayyim hurried to the young man's house and entreated him to listen to the doctor's directions, but despite his entreaties the young man adamantly refused. Then R. Hayyim said: "If I eat today, will you join me?" The youth replied: "If you eat, I'll eat with you."

Such tales relating to R. Hayyim are legion (see Sorasky, ibid.). R. Hayyim was wont to explain his position saying: "I do not rule leniently concerning Yom haKippurim, but stringently concerning the law 'Take ye therefore good heed unto yourselves'" (Deut. 4:15).[7]

Similarly, we can well understand the rabbinic statement that "[so] great is the [need to] respect the dignity of individuals that it has precedence over a negative commandment of biblical authority (B. Berakhot 19b, B. Menahot 36b, B. Megillah 3b, B. Eruvin 41b). I have discussed this concept in detail in my Darkah shel Halakhah, Jerusalem 2007, pp. 34-43, 67-84, and again in my Netivot Pesikah, Jerusalem 2008, pp. 150-159, with numerous examples, a rich bibliography, and a discussion as to the parameters of this principle. An examination of these sources will show that the principle of Kevod haBeriyot, the dignity of the individual, takes precedence over mitzvoth between humans and God, so that, for example, if one finds oneself wearing shaatnez of rabbinic status, one need not disrobe to remove it in a public place, because one's nakedness would be shameful in public. (Rambam, Hilkhot Kilayim 70:19).

I would like to show how this was actually practiced by one of the latter-day Gedolim, Rav Chaim Soloveitchik, the Brisker Rav. This I learned from an article R. Aharon Hersh Fried, published in Hakirah 6, 2008, pp. 49-50:

Late on a Wednesday night, a traveling Jew arrived in Brisk. The lights were out in all the homes, and he did not want to awaken the people with whom he had meant to be staying. Noticing one house in which the lights were still on, he decided to knock on the door and ask whether he could possibly stay the night. The homeowner opened the door and graciously welcomed him to stay the night. The homeowner remarked that coming from the road, the traveler must also be hungry, and went into the kitchen to prepare him something to eat. While the host was in the kitchen, the guest had a chance to look around and he noticed that he was in a a house filled with rabbinic books, and quickly surmised that he was in the home of a rav or at least a rabbinic judge. At this point he became uncomfortable with this revered personage preparing a meal for him, and he voiced his protestations, saying to the host, "You needn't trouble yourself." The host did not answer him, continued preparing the meal, and served it to him, amidst his continued protestations. The host then began to prepare a bed for the guest, who again protested, "You needn't trouble yourself. Just put the bedding down and I'll arrange the bed myself. Please, you needn't trouble yourself." Again, the host did not answer, but continued to make the bed. The next morning, the host took the man to synagogue. Being that it was Thursday morning and there was a public Torah reading, the host told the gabbai to give the guest the honor of lifting the Torah scroll. As the guest was about to lift the Sefer Torah, Rav Chaim (who was the host) tapped him on the shoulder and said, "You needn't trouble yourself."

The author writes of Rav Chaim that his "greatness in hessed was possibly even greater than his greatness in learning," and that this anecdote encapsulates the point beautifully.
This general thesis is reflected in yet a different halakhic area. The Sheiltot (to Terumah, Sheilta 62) writes:

The house of Israel is obligated to give charity from their monies to whosoever is in need thereof. And he who shows pity for the impoverished is likened by the Holy One blessed be He as if he did good deeds to God himself, as it is stated, (Exodus 25:2), "that they should bring to Me an offering," (i.e. if they give charity to the poor, it is as though they are giving it to God himself).

In B. Baba Batra 10a we read in the name of R. Yohanan:

What is the meaning of the verse in Proverbs 19:17, "He who hath pity upon the poor lendeth unto the Lord"? If it were not written, it would be impossible to say it, namely that "the borrower is servant to the lender" (ibid. 22:7).

Rashi explains that he who has pity for the poor, it is as though he is lending to God, and "the borrower"-God-becomes, as it were, "servant to the lender."

The Netziv, returning to the Sheiltot (in his Haamek Sheelah p. 413) notes that the author of the Sheiltot derived his ruling from a biblical verse relating to donations made to the tabernacle, and nonetheless, he learned from it that charity given to the poor is of greater virtue than money given to the Temple itself.

Furthermore, this is also the view of the Tosafot in B. Baba Batra 9a, who learn this from Rav Asi's statement ibid., that: "Charity may be weighed against all other mitzvoth, as it is said (Nehemiah 10:33), 'Also we made ordinances (mitzvoth) for us to charge ourselves yearly with the third of a shekel for the service of the house of our God.'" Even though this verse is talking of money for the Temple, Rav Asi learned from it-and from the plural "mitzvoth" that charity is even weightier than donations to the Temple.

This triggered a discussion among the decisors, summarized in Shulhan Arukh Yoreh Deah 249:16:

There is an opinion that the mitzvah [to give to] the synagogue is greater than the mitzvah of charity, and the mitzvah of charity to youths or to the sick is greater than that of the synagogue. (Mahri Kolon, Shoresh 128, in the name of the Tashbetz in the name of the Rosh to Yerushalmi Zeraim).

But the Gaon of Vilna (252:2) stated explicitly that charity is greater than the building of a synagogue.

This also seems to be reflected in a passage in Pesikta Rabbati chapter 6, (25b), where the question is raised: Why did Solomon not build the Temple with his father David's treasures? For the verse in 1 Kings 1:51 states:

"So was ended all the works that King Solomon made for the house of the Lord. And Solomon brought in the things which David his father had dedicated: even the silver, and the gold, and the vessels, did he put among the treasures of the house of the Lord." There are those who explain this... negatively... For there was a famine in the days of David for three years, and David had several treasure houses of silver and gold that had been dedicated to the building of the Temple. And he should have used them to save lives, and he did not do so. God said to him: My children are dying of starvation and you are hoarding money to build a Temple. Should you not have [used it to] save lives? Since you did not do so, by your life, your son Solomon will make no use of it [when building the Temple]...

Hence the verse states that only when "was ended all the works" did Solomon bring these treasures to the house of God. So charity, and certainly saving the lives of the hungry, have greater priority even than building God's Temple.

In Yerushalmi Shekalim chapter 2 ad fin., we read that "Rabbi Avun (=Avin) made these gates "for the great synagogue (in Tiberias). "Rabbi Mana (mid-fourth century C.E.) came to him, and he said (boastingly): "See what I have done." To which Rabbi Mana responded by quoting the verse in Hosea 8:14: "For Israel hath forgotten his Maker, and buildeth Temples..." Are there no [poor] people who are studying Torah?" The Tashbetz has an additional reading: "Or sick people who lie among the rubbish." The Korban haEdah further elaborates: He should have used his money to help people's livelihood... It would be better to give to poor Torah scholars who are involved in mitzvoth at all times than building edifices. The Rambam summarizes in Hilkhot Matnot Aniyim 1:2:

One is obligated to be more careful with the mitzvah of charity more than all other mitzvoth, for charity-tsedakah-is a sign of the righteousness-tsedek-of the offspring of Abraham our forefather.

In view of all that has been said above, it is surely clear that charity, as an interpersonal mitzvah, must be seen as preferential to building a synagogue or even the Temple, which is a mitzvah between humans and God.

We have discussed rather extensively the premise that people-directed mitzvoth have a preferential status over God-directed mitzvoth. And this view may be found among numerous authorities, as referred to in Sedei Hemed vol. 3. pp. 164-177, where the issue is dealt with at length and in depth.

Perhaps we can link this with an interesting observation made by R. Yosef Hayyim Sofer (in his Menuhat Shalom. Part II, Jerusalem 2003, p. 22):

It is very clear that the Tanna of [Mishnah] Peah 1:1, who listed "those things that a person eats their fruits in this world...," only listed those acts that serve well both to God and to humans, where human beings also have real material benefit therefrom, such as honoring one's parents, righteous deeds to one's fellows; while those [mitzvoth] that are only good toward heaven, such as sending away the mother bird, are not listed.

He bases his comments on the passage in B. Kiddushin 40a, which elaborates on the verse in Isaiah 3:10, "Say to the righteous, that it shall be well with him: for they shall eat the fruits of their doings." The Talmud homiletically understood the verse to mean "Say to the righteous for [he is] good," and then asks:

And is there a righteous person who is not good? This means he is good toward heaven and good to humankind-this is a good and righteous person. Good to heaven and bad to humankind-this is a righteous person who is not good. And so similarly you may say [on the verse 11 ibid.]: "Woe unto the wicked! It shall be ill with him: for the reward of his hands shall be given him." And is there a wicked man who is bad, and one who is wicked and not bad? Yes, if he is bad toward heaven and toward humans, this is a bad wicked person. But if he is bad toward heaven but good toward humans, then he is a wicked person who is not bad.

So here again we see that a greater preference given to one who is virtuous both to God and humankind, the inference being that piety toward God alone is not sufficient, and makes for a righteous person who is nonetheless considered "not good."

Indeed, this concept, of a righteous person who is not necessarily good, is found in the Netziv's introduction (Petiha) to Genesis. There he writes that:

There were Tsaddikim and Hassidim, righteous and virtuous men, who toiled in the learning of Torah, but who had no integrity in the ways of the world .... And the Holy One blessed be He, who is integrity personified, cannot bear righteous people of this nature, but only those who walk the paths of integrity in the ways of the world, and not in a distorted manner...

Admittedly, here we do not clearly see the relative weight of the two categories, but this aspect of the issue has been discussed above. (See further the discussion of R. Aharon Lichtenstein, in his By His Light: Character and Values in the service of God, adapted by R. Reuven Ziegler, Yeshivat Har Etzion 2002, pp. 113-118, section entitled "Frumkeit Devoid of Goodness.")

Many years ago, when my late father of blessed memory was in a hospital, recovering from an operation, he shared a room with an elderly gentleman who had had a stroke and could no longer speak. This man could only make unintelligible noises. His wife and children took turns sitting by his bed, and as I also spent many hours with my father, we got to talking to one another. His wife told me that she had married at the age of fourteen, and that her husband was considerably older than she. She had brought up the family, supported it by working as a maid in various houses, while her husband sat and learned Torah. He would get up at about 3:30 in the morning [8], go to the synagogue, sit in his corner and learn all day, interrupting only for the prayers. After Shaharit, the members of the synagogue would give him some breakfast, and at midday his wife, or a child, would bring him some lunch. In the evening he would come home, and his wife would give him supper, and he would go to bed early, so as to be able to get up at 3:30. He never gave a lesson in the synagogue, nor even a sermon; in fact he never talked to the other congregants; he just set in his corner and studied. He never taught his children, and no one really knew what he was studying or how much he really knew. And now he was incapable of speaking, or even communicating in an understandable fashion, so that his "Torah" could serve no others. The members of the synagogue held him in awe as a supremely righteous person; his family held him in great respect. But I remember wondering all the while, and being not a little troubled by my thoughts, that perhaps he was not really a good person-a righteous man who, in fact, was not good; and that it was his wife, an illiterate woman, who had shouldered the burden of educating and maintaining the whole family for so many years, who was really the righteous person, righteous and good!

It is interesting to note what Rashi writes in his commentary to the book of Leviticus. This book, as is well known, deals to a large extent with ritual laws, i.e., with laws relating to the relationship between humans and God and indeed begins with them. The first verse in this book reads as follows:

"And the Lord called unto Moses, and spake unto him out of the tabernacle of the congregation, saying"...

On these first words "And [the Lord] called unto Moses," Rashi comments as follows:

All oral communications of the Lord to Moses, whether they are introduced by dabber or by emor or by tsav, were preceded by a call (to prepare him for the forthcoming address). It is a way of expressing affection, the mode used by the ministering angels when addressing each other, as is said, "And one called unto another [and said holy, holy, holy is the Lord of hosts]" (Isaiah 6:3)....[9]

Rashi is teaching us, basing himself on the Sifra ad loc., that before one begins to shower a spate of commandments (upon a community or an individual), one must prepare the recipient with words of affection.

It is surely significant that Rashi begins his commentary on this book of ritual with words of advice on matters of etiquette and decent behavior toward one's fellow man.

And from these same initial words of that verse, the Talmud in B. Yoma 4b comments as follows:

Tanya: Why did God "call" before he "spoke"? The Torah teaches us good behavior, that a person should not speak to his neighbor without first calling (i.e., preparing) him.

The Torah Temimah ad loc. elaborates as follows:

The reason for this is so that the audience can prepare itself to listen [to the commandments]. And this is similar to what we have learned from B. Nidah 16b, that the Holy One blessed be He hates a person who enters his neighbor's house suddenly (i.e., without knocking). And in Tractate Derekh erets [Rabba] chapter 5 we read: And all people should learn good behavior from God, who stood at the gate of the garden (of Eden) and called unto Adam, as it is said, "And the Lord God called unto Adam and said unto him, where art thou?" (Genesis 3:9). And the reason that our Gemara (in Yoma) did not cite that verse, may be explained as follows: to teach us an additional lesson, that even in the case of one who one knows intimately and loves with a deep love, even so one should not speak to him suddenly. And it is for this reason that [the Talmud] brought its proof from Moses, concerning whom God himself testified," [My servant Moses is not so], who is faithful in all Mine home. With him I speak mouth to mouth, even apparently, and not in dark speeches..." (Numbers 12:7-8)-And even so God prepared him before he actually spoke with him, (and gave him commandments).

Here too, the Talmud teaches us lessons in decency and good behavior from the first words in the book of Leviticus. Perhaps this is yet another indication that proper behavior takes precedence to Torah. As R. Yishmael ben R. Nahman said: Derekh erets came 26 generations before Torah (Leviticus Rabbah 9:3, ed. Margaliot p. 179).

Let us recall the words of the Maharal of Prague, in his Netivot Olam, Netiv Derekh Erets:

Therefore, a person should not view lightly those matters that are derekh erets, for derekh erets came before Torah... and it is impossible to read a Torah situation without derekh erets, as they said, "If there is no derekh erets there is no Torah" (Avot 3:17), for derekh erets is the basis of Torah which is the way of the Tree of Life.

To this we may add the remarkable statement of R. Simlai in B. Sota 14a:

The Torah begins with an act of kindness, and ends with an act of kindness. It begins with an act of kindness, as it is written, "Unto Adam also and to his wife did the Lord God make coats of skins, and clothed them" (Genesis 3:21). And it ends with an act of kindness, as it is written, "And He buried him [i.e., Moses] in a valley...". (Deuteronomy 34:6)[10]

Elsewhere, I have elaborated on this theme, and brought additional sources to underscore my premise, and to show how it is borne out in a variety of halakhic contexts.[11]

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How do these ideas translate themselves into everyday life, and what may we learn from the behavior of pious sages of bygone years, who may serve as role models for us in the present day?
We already related an anecdote about Reb Chaim Brisker. We shall now continue by quoting a passage from Rabbi Yehudah Leib Maimon's Sarei haMeah, vol. 2, Jerusalem 1961, pp. 272-273:

It once happened that Reb Yisrael Salanter, during his stay in Kovno, lived for a while in the house of a wealthy pious man, Reb Yaakov Karpas, and would dine at his table. Members of the household noted that when he washed his hands before the meal, he would do so with a minimal amount of water, even though a bucket full of water was prepared for him. They wondered in amazement: Should not a tsaddik like Reb Yisrael rule more stringently (mehadrin) to wash his hands with a plentiful amount of water! They went and spoke to Reb Karpas, who examined the matter and found that indeed Reb Yisrael would wash his hands with no more than a reviit haLog and no more. He too was most surprised, and when they sat together at a meal, he asked Reb Yisrael: "Forgive me, our Master, but this is a matter of Torah and I must learn about it. Why then does it suffice you to wash your hands with a reviit? Surely, it is a clear ruling in the Shulhan Arukh (Orah Hayyim 155:10), "even though the amount (for hand-washing) is a reviit, one should wash more plentifully." Why then do you, sir, not do so?"

Reb Yisrael answered as follows:

"I have seen that the maid brings the water from afar, from a well in the valley. Your house is situated high on the hill, and the maid almost collapses under the weight of her burden. And it is forbidden for a person to be overly religious at the expense of others" (emphasis added).
Indeed Reb Yisrael was wont to say:

"At times, out of excessive zeal to carry out a mitzvah between a person and his Maker, people err and transgress a much more serious interpersonal mitzvah, as for example is the case of the days of Selihot: If someone rises very early to recite the Selihot in the synagogue, and in doing so causes discomfort to the maid in his house, who, generally speaking, is a poor orphan girl who hires herself out to serve in the house of strangers, and she has to get up early in order to prepare a hot drink in the morning, then the sin of "distressing an orphan" outweighs all the mitzvah of reciting the Selihot..."

Indeed, in his own synagogue, he ruled that the Friday-night and festival services should begin early, even before the true time of reading the Shema, justifying this as follows:

"The maid in your house, just as other women, are not obliged to say the Shema, but they are obligated to hear the Kiddush, (see B. Berakhot 20ab), and they will not eat until they have partaken of the Kiddush-wine. Therefore, one should not take the stringent position to recite the Shema at the right time, thereby causing distress to the maid, who after a long day's work with much toil in preparing for Shabbat, waits eagerly to eat and satisfy her hunger.

In this context, it is worth retelling what I saw related in the Newspaper BeSheva, for Hannukah 2008: A group of yeshiva students came to Rav Steinman and asked him whether it was right that they should take the strict path of eating their meals on Hannukah in their dormitory rooms, so that the place they lit their candles would also be the place of their meals. His reply was that they do not need to do so, for their eating outside of the yeshiva cafeteria would create additional work for the yeshiva's kitchen staff. Their counter-claim was that they would use disposable dishes which they themselves would clear and clean up after their meals. But he answered that "One cannot rely on the boys to clear away the food," and, therefore, if their eating in their rooms would cause extra work for the kitchen staff, it would be better for them not to take the stringent path.

Yet another wonderful testimony about that great Torah luminary and paragon of true piety, from Rabbi Dov Katz's Rabbi Yisrael Salanter, Jerusalem 1975. pp. 45-46:

While he was living in Salant, it once happened that Reb Yisrael did not appear in the synagogue on Yom haKippurim night. The congregation waited for the Kol Nidrei prayer, and after a while they again waited for the Maariv service. They looked for him in his house; they sent out people to search for him throughout the town, but they could not find him. People were greatly surprised, and the congregation in the synagogue began to be worried about him.

After they finished citing all the piyyutim and were about to end the Maariv service, he suddenly appeared.... He wrapped himself in his tallit and began to pray. After he finished praying, he related innocently that on his way to the synagogue he heard a child crying. When he entered the house from which the crying was heard, he found a baby, some two months old, lying in a cradle and weeping. Next to the baby was a bottle of milk. By the baby on the bed slept a young girl of about six. He understood that the baby's mother had wished to go to hear the Kol Nidrei prayer and had prepared milk for her infant, whom she left under the care of his sister (who had fallen asleep and did not hear the baby's cries). Reb Yisrael took the bottle, fed the baby and put it to sleep, and afterward woke up the sister, so he could leave for the synagogue. But the young girl entreated him not to leave her, for she was afraid to remain alone. So he agreed, and stayed with her until her mother came back from the synagogue, and then left them and went to pray.

After Reb Yisrael finished his story, he expressed great joy that on this holy night he was privileged to carry out a great mitzvah of benevolence toward these children. Reb Yisrael regarded the act of benevolence as a means to cling to the ways of God, who is "abundant in goodness" [Exod. 34:6], and we have been commanded to walk in his ways: Just as He does deeds of benevolence, so too must you do deeds of benevolence."

We see then how Reb Yisrael's extreme sensitivity to the needs of the poor, the orphan maids, and small children, overrode any ritual requirement of a more complete nature, and any more stringent attachment to halakhic requirements. The needs of his fellow creatures were far more committal to him than those of his Maker.

Similar such stories are legion, and we could fill many folios with such maasei hessed. However, I believe the above will suffice to make our point clear and meaningful.
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Earlier, I referred to an article published in Hakirah by R. Aharon Hersh Fried, entitled "Is there a Disconnect between Torah Learning and Torah Living?" He argues persuasively that in our education a greater stress must be put on interpersonal mitzvoth. On pp. 48-49 he writes:

The Sefer HaBerit [part 2, section 13, chapter 3] too, writes that "the love of friends and the mitzvoth and behaviors between man and his neighbor are the main facets of the "holy path" and the foundation of the entire Holy Torah...

The Alshekh [Sefer Torat Mosheh, Shemot chapter 19, verses 1-2] writes similarly that the reason the High Court, the Sanhedrin, had its seat in the Bet HaMikdash, close to the mizbeah (altar), was to show that in Hashem's eyes the mizbeah, which represents the peace between God and man, and the Sanhedrin, which represents the law bringing peace between a person and his fellow, were both equal.

He continues in this vein, as follows:

The words of the Rishonim and the sifrei mussar are thus clear....Unfortunately, they receive little "press" in our homes and/or our schools. Thus, as far as our children are concerned, being nice and being frum are not related.

In some circles I have heard it said that "there is too much talk about ahavat yisrael, and they suggest that those who talk about ahavat yisrael and interpersonal mitzvoth are being motivated by secular humanism rather than Torah. This is a sure way to kill the message. It also places those who advocate doing more about middot on the defensive. The bizarre and twisted message becomes that the true Haredi and the true Torah Jew are not overly concerned about middot and interpersonal mitzvoth.

In seeking to explain this phenomenon, he directs our attention (pp. 44-45) to an article by Reb Shlomoh Wolbe, published in haBe'er 15, 1977, which he calls "a shmuess." The article is entitled "On Frumkeit":

In this shmuess he puts forth the thesis that there is a basic instinct, inborn in all creatures, each according to its level of soul, to be "frum," i.e. to want to come close to one's Creator. Frumkeit is not fear of heaven, it is not a quality of piety, nor is it punctiliousness in observing mitzvoth. It is simply an instinct, and like all instincts it is egotistical, i.e., concerned only with its own satisfaction, unthinking, and given to satisfaction through fantasy. The satisfaction of this instinctual drive, he writes, serves as the force behind many people's mitzvah activities, and in a positive way, serves to help us carry out mitzvoth in spite of hardships. However, because of its egotistical and unthinking nature, one cannot build one's service to Hashem on this instinct. The frum instinct, no less than any other instinct, must be harnessed, and must be guided by rational thought, i.e., by Torah knowledge and halakha. If not, it will seek satisfaction in inappropriate ways. A person driven by the need to satisfy this instinct will engage in activities that he imagines will lead to a "spiritual high," even if in the process he transgresses very real Torah prohibitions. He will push his way through a throng in a shul to get close to a visiting tsaddik, pushing one person, jabbing another, and tearing off a button from a third person's jacket, all in the pursuit of attaining imagined proximity to holiness, i.e., attaining a frum "high." He does not consider that his violation of interpersonal mitzvoth may remove him from holiness . Nor does the performance of interpersonal mitzvoth attract him; it does not make him feel more spiritual or holy, it does not satisfy his instinctual need for a frum "high."

He summarizes as follows:

Yes, this is an age-old, deeply ingrained and intractable problem, but we cannot declare ourselves free of the obligation of trying to tackle it and change it. If we don't, we will not succeed in changing the attitudes and behaviors of our children in the area of interpersonal mitzvoth. The only way we can do this is by concerted and unrelenting educational programs aimed at the entire community. Parents need to learn the sources with their children, teachers with students, rabbanim with their congregants, and each one of us with our havrutot and friends.

I believe that our message must be clear and unambiguous. We must lay a far greater emphasis on our norms of social behavior-not for humanistic reasons-but out of the true understanding of halakha. Our piety and "frumkeit" should be directed toward our fellow human beings, and our piety cannot be limited to our ritual behavior alone.

[1] In Yoma, ibid. we find the following statement:

Sins between man and his Maker Yom haKippurim atones; sins between man and his fellow Yom haKippurim does not atone until he appeases his fellow. This is what R. Eleazar ben Azariah taught: "that ye be clean from all your sins before the Lord" (Leviticus 16:30)—sins between man and his Maker Yom haKippurim atones; sins between man and his fellow Yom haKippurim does not atone until he appeases his fellow. Said R. Akiva: Blessed are you, Israel, before whom do you purify yourself and who purifies you? Your father in Heaven.

And in Numbers Rabbah, ibid. we read:

R. Akiva said: One that says "and that will clear [the guilty]," and another text says "that will by no means clear [the guilty], (Exodus 34:7; Numbers 14:18)! But [the meaning is that] something between you and your Maker "will clear," and something between you and your fellow "will by no means clear"…

[2] There is a well-known controversy among the later authorities whether according to R. Eleazar ben Azariah sins between man and his fellow where there was no appeasement also present the atonement of sins between man his Maker. This is the view of R. Yishayah Pinto in his commentary to R. Isaac Alfasi (the Rif) apud the Ein yaakov, and so too R. Hayyim Palache (in Birkat Moadim leHayyim), and Yaavetz, in a responsum Shetei haLehem sect. 31). On the other hand, the Hidah, in Birkei Yosef to sect. …..subsect. 1, is of the opposite opinion. See R. Yosef Engel's note to Yoma ibid., Peri Hadash sect. 606:1, Shoel uMeshiv Reviata, vol. 3, sect. 64; Responsa Yehaveh Daat, by R. Ovadiah Yosef, vol. 5, sect. 44.

[3] On this halakhic concept, see what I wrote in Darkah shel Halakhah. Pp. 117–118, 140–141, 175–177; Minhagei Yisrael vol. 3, Jerusalem 1994, pp. 53–54; idem vol. 8, Jerusalem 2007 p. 263; Entzaiklopedia Talmudit, vol. 10, Jerusalem 1961, 32–41.

[4] See further ir Tamari, Kesef Kasher: Sugyot Mussar beMishar, Jerusalem 2005, pp. 49–50; Edward Zipperstein, Business Ethics in Jewish Law, New York 1983, pp. 49–53.

[5] On the status of met mitzvah see what I wrote in my commentary to Derekh Erets Zuta, Chapters Five to Eight, Ramat-Gan 1990, pp. 179–182.

[6] And see what my father, Rabbi Samuel Sperber, wrote on this in his Maamarot, Jerusalem 1978 pp. 189–191.

[7] As to the inner-halakhic logic of this position, it was explained by his son R. Velvele, as related by R. Shlomo Yosef Zevin, in his Ishim veShitot, third edition, Tel Aviv 1966, p. 64). And see further the response of the Radbaz, no. 287.

[8] I might here remark that my grandfather, Rabbi David Sperber, of blessed memory, used to get up every night at about three in the morning to begin learning. This was in accordance with the kabbalistic view that at the middle of the night, when the sun begins to come close to sunrise, that is the time when the attribute of Mercy comes into force, (the Arizal, cited in Shaar haMitzvot, Elhanan, Birkei Yosef Orah Hayyim 236:1, based on Zohar, Hayyei Sarah 1326).

[9] Rosenbaum and Silbermann translation; see also their note 1, in the Appendix on p. 136.

[10] And see what I wrote on this in my Darkah shel Halakhah, Jerusalem 2007, p. 62 note 78, 79.

[11] For those readers who may wish to delve more deeply into this sugya, I would refer them to my book, Netivot Pesikah, Jerusalem 2008, pp. 181–192, where I dedicated a special appendix to this subject.

“And Moses saw the entire work [of the Mishkan], and behold, they [the Israelites] had accomplished it; as God had commanded them, so had they done; and Moses blessed them.” (Shemot 39:43)

The great 18th century economist and thinker, Adam Smith, distinguished between praise and praiseworthiness. In his book, “The Theory of Moral Sentiments,” (III.I.32) he noted that “the love of praise is the desire of obtaining the favorable sentiments of our brethren. The love of praiseworthiness is the desire of rendering ourselves the proper objects of those sentiments.”

One should act in a praiseworthy manner and this should result in receiving praise from others. An example of this is found in this week’s Torah portion. The Israelites completed the building of the Mishkan just as God had commanded—i.e. they performed in a praiseworthy fashion. Moses then offered them a blessing—i.e. he praised their work.

Adam Smith observes, however, that praise and praiseworthiness do not always go together. There are people who seek and receive praise even though they have not acted in a praiseworthy fashion. Charlatans, fakers, and egotists may behave in unseemly ways, and yet they receive praise from hangers-on or from a misguided, misinformed public. Such people, though, must know that they are not deserving of the praise. If they would be honest with themselves, they would recognize their own hypocrisy. Yet, since they are egotists after all, they rarely will give themselves an honest evaluation. They want praise, even if they are not praiseworthy. Such people are to be pitied, not praised.

Adam Smith also notes that there are those who behave in a praiseworthy manner, but who receive no adequate praise for their good work. While this may well be frustrating to these individuals, they have the satisfaction of knowing that they performed admirably and correctly, even if they did not receive proper acknowledgment for their deeds. Indeed, one should behave in a praiseworthy manner without expecting or demanding anyone’s compliments or blessings. Still, isn’t it nice to actually be thanked and appreciated!?

Moses well understood the importance of being praiseworthy…and of giving praise to those who have conducted themselves well. In blessing the Israelites, he acknowledged their good work and their sacrifices. He let them know that their efforts were appreciated. In so doing, he validated their efforts; he praised their praiseworthiness; he gave them the satisfaction of being recognized and thanked for their work.

What blessing did Moses actually utter to the Israelites? The Torah does not record his words. The Midrash, though, offers a suggestion: “He said to them: May it be the will of God that the Shekhinah may rest upon the work of your hands, and may the bliss of God, our God, be upon us.” (Tanhuma, Pekudei, 11)

Moses prayed that the Israelites would merit to experience God’s presence in their work, and that the Divine presence would be a source of bliss and inner satisfaction.

If people act in a praiseworthy fashion, they should—ideally—feel the presence of God in their work. They should realize that their thoughts, words and deeds are inspired by a Higher truth, by a Higher source of ideas and ideals. They behave in a praiseworthy fashion not for the sake of personal glory, and not in the hope of attaining fame and fortune. They behave admirably because they feel the presence of God in all that they do. While it may be nice to receive praise in return for praiseworthiness, one seeks to be praiseworthy by feeling God’s presence in one’s life and in one’s work. That feeling of spiritual bliss is the ultimate human fulfillment.

May the Shekhinah rest upon the work of our hands…that is a blessing for which all good people aspire.

Rabbis Hayyim and Marc Angel recently gave Zoom classes, and each class has been posted on our Institute's website: youtube.com/jewishideasorg  Below are brief descriptions of the classes. This enables you to learn from the classes at your own convenience. Enjoy...and Learn!

Israel in the Bible

Rabbi Hayyim Angel

In this series, we get to the heart of the central values in the Torah
and the rest of the Bible pertaining to the people of Israel and the
Land of Israel. Through the study of key biblical texts and rabbinic
interpretations, we build a foundation that informs all later
discussions of the religious significance of the Land of Israel for
the Jewish people. This series focuses on biblical values, not
contemporary politics.

Israel in the Torah
Israel in the Prophets
Israel in the Early Second Temple Period

Literature and Religion

Rabbi Marc D. Angel

This series deals with important literary works with themes that impact on religious ideas and ideals. Each class connects these themes to teachings in Judaism.

1. Ralph Waldo Emerson: Personal Religion
2. Matthew Arnold: Hebraism, Hellenism, Biblical Righteousness
3. Nathaniel Hawthorne: Sin, Guilt, Punishment
4. Miguel de Unamuno: Faith/Doubt/Piety
5. George Eliot: “Daniel Deronda” and the Jewish Question
6. Henrik Ibsen: Ethics and Religion