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December 2, 2016 1:00 am

The Abuse of Halacha, Part II

avatar by Nathan Lopes Cardozo

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A Torah scroll. Photo: Rabbisacks.org.

A Torah scroll. Photo: Rabbisacks.org.

In my last essay, I questioned why so many highly unfortunate things have been done in the name of Jewish law – all in direct violation of the very notion and spirit of Halacha. 

I argued that what caused these ill-fated cases is the denial and rejection of the great moral values and religious message of Sefer Bereishit. It is in this sefer that the religious and moral foundations of Judaism were shaped. Only after these values were developed and deeply ingrained in the Jewish psyche, was it possible for God to give the Jewish people the Torah and the Halacha.

Without these religious moral values, the Halacha could easily turn into a ruthless rule of law that would do more harm than good — and would develop into a system that would make human life impossible, undermining the very purpose and ethics of the institution of Halacha.

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Below is part two of my column:

The foremost principle in any halachic decision must be that all people are created in the image of God, and that all human life is holy. While different tasks, inclinations and historical events should be recognized, no discrimination can ever be tolerated. Halacha should surely acknowledge that the Jews are different from other nations, but only as long as we recognize that other nations can make contributions that Jews cannot. (Or HaChayim’s commentary on Shemot 18:21).

For Jews to be the chosen people, we need to recognize that this in no way can mean that we may look down on others. What it does mean is that we have an obligation to inspire the world, as a teacher inspires a student, even while recognizing that the student may be more gifted than him or her.

It cannot be denied that throughout our long history this may have been forgotten, as laws appeared that did not not always live up to these standards. Even biblical laws seem to have violated this principle. On several occasions they demanded that Jews show no mercy for some gentile nations that dwelled near the Land of Israel (Devarim 7:1-2). But a closer look makes it clear that these laws were contrary to the original divine plan and reveal some kind of divine concession to highly unfortunate circumstances. The laws in question were meant to deal with these nations’ ongoing violence, immorality and virulent antisemitism, which had to be dealt with so that Jews could survive and uphold moral standards for the good of all humanity.

Violating Shabbat to save non-Jews is an absolute obligation, notwithstanding the fact that some authorities have questioned this. There is no doubt that Abraham, Yitzhak and Yaakov would have done so. (See Netziv’s introduction to Bereishit in his Ha’amek Davar. See, also, my essay: “Needed: Redemptive Halacha.”) Nor can it ever be permitted to encourage a Jewish doctor to apply euthanasia to a particular “primitive” gentile, or to forbid a blind man to receive a corneal transplant from a gentile, since the latter may have seen things that no Jew should ever see.

Highly disturbing is the case concerning Israel’s arch-enemy, the Amalekites — the Nazis of biblical times. Divine law required the Jews to wipe this nation off the face of the earth, including women and children. Such a law runs contrary to our innate moral intuition and the very values promulgated by Sefer Bereishit. Commentators have therefore gone overboard to explain this law in different ways, since they were unable to accept that such a commandment could ever have come from God Himself. They even believed that God tested the Jews to see whether they would understand their calling and thus refuse to implement this genocide, similar to the way that Abraham refused to listen to God in the case of Sedom and Amora when he uttered the famous words: “Shall the whole world’s Judge not act justly?” (Bereishit 18:25).

The commentators’ attempt is not apologetic, but rather the outcome of their absolute conviction, based on Sefer Bereishit, that there could be no other explanation. At a later stage, they decided that the nation of Amalek no longer existed and they could cancel the entire law.

It is remarkable that the Sages seem to have reacted similarly with several other biblical laws, such as the case of the ir hanidachat, in which the commandment is to annihilate the entire Jewish population in a city rampant with idolatry and immorality. The law was declared inoperative from the very start (Devarim 13: 13-16; Sanhedrin 71a). Another example is the case of the ben sorer u-moreh, the rebellious son who had to be executed. Here, too, the law was declared defective and only seen as a way to teach some important moral lessons (Devarim 21:18-21; Sanhedrin 71a).

In other instances, the scholars seem to have been of the opinion that laws such as those regarding the mamzer (a child from an incestuous relationship) and agunot should be severely limited to make them almost inoperative, and they often looked for loopholes to find a way out. While it remains a question why they did not completely revoke these laws, it seems clear that in all these cases it was the overriding moral principles of Sefer Bereishit that motivated their actions.

The Sages struggled, re-interpreted and sometimes even abolished these laws because they fully understood that without the moral religious values of Sefer Bereishit, halachic chaos would reign and grave injustices would be done.

It is time for the rabbinical community to make it abundantly clear that no halacha can ever be implemented without it resting firmly on the values of Sefer Bereishit. Only in that way will a healthy halacha be guaranteed, and severe evil and the profanation of God’s name be prevented.

Israel’s Sages and religious leaders — unlike those of the Christians and Muslims — never called on their fellow Jews to wage religious wars against the gentile world. To them, this was a repulsive idea. If anything, they asked the Almighty to deal with their enemies. This matter stands out in all of Israel’s history. Let us be proud of that and not change the rules of the game, unless it is a matter of unequivocal self-defense.

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