Wednesday, February 15, 2017

Torah to be observed with the guidance of metarules - yashrus, tikun olam and the spirit of the law - not just the letter of the law

Update: added Netziv, Toras Avaraham and Rav Kook regarding the legitimacy and importance of using commonsense - as long as it doesn't contradict the Torah.

Some of you have the idea that since the Torah is perfect - it is simply necessary to keep the mitzvos to the best degree possible and that will automatically insure that everything will happen in the proper manner.

If kids are going off the derech - well that means that they are not studying enough Torah or that the didn't say their berachos with enough kavana. If we have a high divorce rate, then the men need to spend more time with their gemora and less time with wives and children. If we have poverty it is obviously a defect in performance of some mitzva such as netilas yadayim. If there is a lack of achdus it must be because people speak too much lashon harah.

 However that is simply not true. It is in fact necessary to understand the nature of society - and be able to observe the consequences of different ways of being an observant Jew but also how to modify and prioritize for maximum benefit to society and the individual. It is necessary to know each individual and what his or her needs are. 

In addition there are times when the Torah laws are either supplemented or supplanted by rabbinic decrees. It is not possible to get it right  solely by learning Torah and observing mitzvos - without monitoring and modifying. Reality must be understood and wise rabbinic guidance needs to be individualized - not only for each society but also for each individual.

Contrary to certain criticism of this understanding, normal human sense is greatly valued as a guide for applying the lessons of the Torah. This of course with the understanding that if there is a conflict between commonsense and the clear view of the Torah - that the Torah position is accepted and the commonsense view is rejected. http://daattorah.blogspot.com/2014/06/commonsense-morality-and-empathy-can-be.html See in particular the views of the Netziv and Rav Kook which I have added to this post.

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Bava Metzia (30b): Jerusalem was only destroyed because they insisted on following the letter of the law and they didn’t attend to the spirit of the law.

Rav Yaakov Kaminetsky (Emes L’Yaakov): According to the Halacha, Avraham was not obligated to risk his life to save his nephew Lot…. Avraham risked his life because the Patriarchs were yesharim (straight) [Avoda Zara 25a]. That means that their actions were not governed only by the strict letter of Torah law—but by straight thinking. G-d made man inherently yashar (straight). According to straightness, there was an obligation to try and save Lot… Avraham felt responsible for Lot’s welfare because Lot’s father had died in a furnace because of his belief in the G-d of Avraham. Therefore, according to straightness (menshlikeit) Avraham had to organize his men and pursue after Lot’s captors. In truth the lives of the Patriarchs—which was before the giving of the Torah—was based on the attribute straightness. This is the meaning of the expression [Vayikra Rabbah 9:3] that derech eretz (civility) preceded the Torah… Therefore, this civility and menshlikeit can be expected even from non-Jews. Even though they weren’t given all the mitzvos, but everyone can live in accordance with the inherent straightness—if he wants.

Rav Yaakov Kaminetsky (Emes LeYaakov Parshas Yechi page 237): A practical example of zealousness which is not based on a correct reading of the halacha is found in the following question. A person has the choice of marrying a Jewish woman who doesn’t observe the laws of family purity or a non Jewish woman. Which is preferable? A student who has not properly served an apprenticeship with an experienced posek will say that it is obvious that the person should chose to marry the non Jewish woman. That is because sexual relations with a nidah is punished by kares while sexual relations with a non-Jew is only a violation of a negative commandment of the Torah which is not punished by kares. The truth is not this way. Rambam (Hilchos Issurei Bi’ah 12:7-8) states that even though sexual relations with a non-Jewish maidservant is only a rabbinic prohibition he rules that, “this sin even though it is not punished by capital punishment from the court should not be viewed lightly. That is because there is a loss associated with sexual relations with a non Jew which you don’t find in the violation of all the other prohibited sexual relations. That loss is that the son from the other prohibited sexual relations is still his son in every respect and is considered a Jew. That is true even if the child is a mamzer. In contrast the son from a non Jewish woman is not his son…. This sexual relationship with a non-Jewish woman will cause him to turn away from G-d and to attach himself to non-Jews. - from whom G-d has deliberately separated us so that we can be close to G-d... “ It is clear from this that the person should chose the relationship with the Jewish woman even though she doesn’t observe the laws of family purity.

Malbim (Mishlei 11:3): There is a distinction between yesharim (straightness) and tzadikim (righteous). The yashar is one who naturally goes on the straight path – whether it is in religious thought or matters of understanding. That is because the majority of issues concerning yashar involve understanding (binah) or moral traits and deeds that are rooted in wisdom (chochma). Therefore when it comes to matters of wisdom (chochma) the yashar is distinguished from the tzadik in that the yashar naturally has the inclination in his heart to do good because of the straightness which is implanted in him. In contrast the tzadik’s conduct is based upon having learnt what righteous behavior is and constantly practicing it until the tzadik conquers his baser drives and trains himself to do the opposite of his nature. The yashar is simply expressing his nature. Furthermore the yashar is not concerned with the letter of the law but is concerned with the spirit of the law - until he conducts himself beyond that which the law actually requires….

Netziv (Introduction to Bereishis): …The praise of yashrus (straightness) is to reinforce G-d’s judgment in destroying the Second Temple which as a generation of tzadikim and chassidim and those devoted to learning Torah—however they were not yashar in the mundane world. Therefore, because of the baseless hatred in their hearts to each other they suspected that whomever they saw who did not conduct himself according to their opinion in fear of G d —that he must be a heretic. Consequently, this led to much killing and all the evils in the world until the Temple was destroyed. Thus, there was an acknowledgement of the straightness of G-d’s judgment in that He would not tolerate tzadikim like these. Rather he wanted tzadikim who were straight in the world. Because even if the non-straight tzadikim were motivated by religious consideration—such conduct destroys the world.

Rashba (3:393): My view is that if the witnesses are believed by the judges, then it is permitted to punish the accused financially or physically depending upon what the judges think is appropriate to be beneficial to society. Because if we insist on doing only what is specified by Torah law and not to punish except as specified in the Torah – the world will end up destroyed. That is because the elementary rules of a functioning society will be breached and consequently it will be ruined. It is an established practice to punish those who physically harm others…Every community makes judgments in order to preserve it and this is true in every generation and every place according to what is perceived as the needs of the times. For example we see (Sanhedrin 58b) that Rav Huna, who was in Babylonia, would amputate hands as punishment. Therefore these judges you referred to who punished the accused not in accord with Torah law – if they saw the need for it to preserve the society – they have correctly acted according to the halacha. This is true when there is a specific order from the king as we see in the case of R’ Eliezar the son of R’ Shimon bar Yochai in Bava Metzia (83a)

Rav Yosef Eliashiv (Kovetz Teshuvos 3:231): … Question: If someone is sexually abusing a boy a girl in circumstances which we can’t stop him from continuing his evil deeds – is it permissible to notify the government authorities? Answer: Rashba (3:393) states: “My view is that if the witnesses are believed by the judges, then it is permitted to punish the accused financially or physically depending upon what the judges think is appropriate to be beneficial to society. Because if we insist on doing only what is specified by Torah law and not to punish except as specified in the Torah – the world will end up destroyed. That is because the elementary rules of a functioning society will be breached and consequently it will be ruined. It is an established practice to punish those who physically harm others…Every community makes judgments in order to preserve it and this is true in every generation and every place according to what is perceived as the needs of the times. For example we see (Sanhedrin 58b) that Rav Huna, who was in Babylonia, would amputate hands as punishment. Therefore these judges you referred to who punished the accused not in accord with Torah law – if they saw the need for it to preserve the society – they have correctly acted according to the halacha. This is true when there is a specific order from the king as we see in the case of R’ Eliezar the son of R’ Shimon bar Yochai in Bava Metzia (83a).” We learn from the Rashba’s words that when action is needed for the well being of society (tikun olam), that the Jewish sages have the ability in every generation to act to preserve the society and to repair breaches – even when there isn’t a specific order from the king. The Ritva (Bava Metzia 83b) has stated that this order of the king is “if the king says to capture certain criminals, even though the government will judge without witnesses and warning [as required by Torah law] and there is no functioning Sanhedrin [as required by Torah law] – it is still permitted since he is acting as the agent of the king. Since it is the law of the land to execute criminals without the testimony of witnesses and warning - as it states [Shmuel 2’ 1:5-16] that Dovid killed the Amalekite ger who had acceded to Shaul’s request to kill him -the agent of the king is like him.” However according to what has been said, in a matter which is needed for the well being of society (tikun olam), it is not needed to have been ordered to act by the king [in order to act as needed]. However, it is permitted to notify the government authorities only in the case which it is certain that the accused has been sexually abusing children. Informing the authorities in such a case is clearly something for the well being of the society (tikun olam). However in a case where there is no proof that this activity is happening but it is merely a conjecture or suspicion, if we permit the calling of the authorities - not only would it not be an improvement (tikun olam) - but it would destroy society. That is because it is possible that allegations are being made solely because of some bitterness the student has against his teacher or because of some unfounded fantasy. As a result of these false allegations the accused will be placed in a situation for which death is better than life – even though he is innocent. Therefore I do not see any justification for calling the authorities in such circumstances.

Shulchan Aruch (C. M. 2:1): Every court – even those that do not have semicha from Israel – if they see that the see that the people is corrupted by sin (and thus it is an emergency situation) can issue judgments whether concerning capital punishment or financial matters or any other punishments even without testimony according to Torah standards. If the transgressor is a powerful person than it is possible to punish him through the agency of non-Jews. Furthermore the court has the power to appropriate his money and to do with it what they see fit to strengthen the community. All the activities of the court need to be for the sake of heaven. This license to go beyond the letter of the law is specifically only for the greatest rabbis of the generation or the community leaders. It has been the practice in every place that the community leaders have the status similar to that of the Sanhedrin in that they can give beatings and punishments as well as appropriate a person’s property – all according to the local practice. Even though there are those poskim which disagree and say that the local communities authorities do not have such powers but can only pressure the community according to the local practices or their actions need to be agreed upon by everyone. However according to these poskim they have no power to make any changes in law in situations where there is benefit to one party and loss to another or to appropriate someone’s money without his agreement. Nevertheless one should follow the practices of the city. And surely these powers exist in fact everyone member of the community accepts that the leaders have these powers. The achronim mention in their responsa that some who is deserving of lashes should give 40 gold coins as a substitute for the 40 lashes. This is not according to the letter of the law but is only an emergency measure. Therefore the court has the emergency power to administer lashes or to take money according to what they see are the needs of the times (migder milsa).

Netziv(Approbation to Ahavas Chesed): ….It says in Yevamos (79a): There are three inherent characteristics of the Jewish people – they are merciful, shy and they do acts of kindness to others. … Nevertheless there are explicit commands in the Torah to do acts of kindness such as Vayikra (25:35): You shall support your brother who has become poor, Shemos (22:24): Do not lend money with interest. The reason for this is to teach us that besides being obligated to do acts of kindness because we are human beings we have an addition obligation from the Torah – just as we have for all the mitzvos which we wouldn’t know from commonsense. The consequences of having both an inherent commonsense obligation as being part of mankind as well as an explicit command in the Torah is illustrated by the obligation to honor parents. The Torah command teaches that even though there is a command from commonsense that all of mankind is obligated to keep and receives reward for do it, nevertheless G‑d has in addition explicitly commanded us to do it as an aspect of the Torah (Shemos 20:11)… As a Torah mitzva honoring parents is a statute which must be done simply because it was commanded and not because it makes sense. For example if a non‑Jew fathers a child with a Jewish woman, than according to the Torah that child has a mother but no father. Therefore there is a greater obligation of honoring the mother than the father because the honor of the mother is dictated by not only commonsense but also from the Torah. …There are also consequences for lending money to a needy person. Even though it is clearly a commonsense obligation but it is also governed by Torah law. In this case the obligation from commonsense is inconsistent with the obligation of the Torah. The contradiction occurs in regard to charging interest. For example, in the case of a person whose life depends upon lending money with reasonable interest. From the commonsense point of view he still performs a great mitzva of lending money – even with interest – to sustain another person who desperately needs the loan. However the Torah specifically prohibits charging interest. Therefore according to the Torah a Jew would not be able to lend the money and thus he is prohibited from doing the kindness to the other person as well as sustaining himself. [This was explained in Harchev Davar - Bereishis 48:19 – concerning the Tabernacle at Shiloh…]


Rav Kook(Shemonah Kevatzim (1:463):  The people who rely solely on their commonsense - because they are not learned - actually have an advantage in many respects over those who are learned. That is because their natural understanding and sense of decency has not become corrupted by errors that result from scholarship and or by the exhaustion and emotional frustrations that result from the burden of study. Nevertheless the unlearned masses obviously need the guidance of the scholars to know the particulars of the halacha. On the other hand, the scholars need to adopt and utilize as much is possible of the unadulterated commonsense of the unlearned masses – whether it is the approach to life or recognizing the natural moral values. This will result in the continued proper development of their understanding. This approach is even for tzadikim and even for those wicked people who retain a natural part which provides them with the potential to build on their natural power and purity to the same degree as the righteous at their highest level. The same can be said in regards to the nations in their relationship with each other – in particular non-Jew and Jews.


Toras Avraham(Toras HaSeichel HaEnushi #1) basing himself on Rabbeinu Nissim Gaon says "The general rule is for mankind is – everything that commonsense can comprehend – man is obligated to do and he is punished if he transgresses. The more obvious it is the greater is the obligation and the greater is the corresponding punishment. That is because man is beloved in that he was created in the 'image of G‑d' and has wisdom which corresponds to Heavenly wisdom

Toras Avraham[(Toras HaSeichel HaEnushi #2) Seichel is not simply intelligence the faculty which a person understands and comprehends. Seichel is the Truth of Uprightness with which G‑d created Man in order to guide him in life. Man has the obligation that this Uprightness does not get corrupted and distorted and that he be an honest judgment to bring things to fulfillment. Man's Torah thus consists not only those of mitzvos which Man was directly commanded by G‑d but also those mitzvos which are dictated by seichel.

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