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In Melbourne Shabbat begins Fri 22 Dec 2017 08:23 PM and ends Sat 23 Dec 2017 09:24 PM

Rebuking a fellow Jew - Theory and Practice

בס׳ד
י"ד אב ה' אלפים תשס"ט

YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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Rebuking a Fellow Jew - Theory and Practice*
Part 1 of 3

By Harav Yehuda Amital
Translated by Rabbi Dr. Michael Berger

The commandment of tokhachah (rebuke) requires Jews to reprimand each other for sins they may commit.  In an expression of mutual concern and responsibility, the Torah (Vayikra 19:27) bids every Jew to assist one another's observance of mitzvot with constructive criticism.  Clearly, such an imperative assumes that the entire community subscribes to the same law and authority, an assumption considered reasonable in premodern times.  But is this mitzvah normative even when it is obvious that the object of the reproof will not heed the reproach?  This issue is clearly relevant in contemporary times, and a clear analysis of it is urgently needed in today's  Jewish world.(1)

It would appear that this question directly depends on the more fundamental matter of whether the goal of the rebuke - helping one's neighbor to avoid sin and return to complete religious observance - is part of the very definition of the mitzvah itself, or is only the reason for the mitzvah, and therefore of no intrinsic halakhic consequence.(2) If it is considered part of the obligation itself, then the commandment cannot simply be understood as an obligation to rebuke but must be expanded to include all means of influence that could be brought to bear to help another person avoid sin.  Indeed, the vast majority of rabbinic authorities follow this approach and therefore include other means, such as persuasion, under the mode of behavior required by this commandment.

Strikingly, and somewhat paradoxically, while this mode of reasoning results in expanding the parameters of the mitzvah in one respect, it circumscribes it in another.  For if the purpose of the mitzvah - bringing a fellow Jew closer to God - is an intrinsic aspect of it, then it would not be required in a case where the end result will not be achieved, such as when it is known that the rebukee will not listen or respond.  In fact, if it is clear that the sinner will not heed the words of the rebuker, most authorities maintain that there is no obligation to admonish.  On the contrary, the obligation is to refrain from saying something that will not be heeded.(3) Others disagree and maintain that there always exists an obligation to admonish a sinner, if only once, whether it will be effective or not.(4) However, the strength of the admonition depends on whether the reprimand is directed at an individual (where more of an effort is required) or at a group. Moreover, it is likely that even these authorities maintain that if it appears probable that a reprimand will be not only ineffective but counterproductive, that it will lead the sinner wither to sin further or even only to hate the rebuker, then there is no obligation to fulfill the mitzvah of tokhahah.(5) If, for example, the sinner belongs to a community known to be unresponsive to criticism, then reprimanding him or her is treated in the same manner as communal reproof and should be avoided.  In such a case, if it is clear that the collective group to which the individual belongs would not accept the reprimand, then there is no such obligation with respect to the individual within it either.

A distinction must also be made between cases where those committing the sin are aware that what they are doing is prohibited and those where they actually believe their activity to be permissible. In the latter case, their unwillingness to heed the reproacher is not due to any obstinacy or rebelliousness, but simply to the fact that they have been trained to believe that their behavior is acceptable, and the person admonishing them must be considered to be unnecessarily stringent.  With respect to those who are convinced that what they are doing is correct, some authorities maintain that there is no obligation of tokhahah.(6) If, however, the sinner is merely acting out of ignorance, then the commandment to correct his or her misconception does obtain.(7) Similarly, a distinction may exist depending on the nature of the violation, whether a Torah law is at stake (in which case rebuke is more seriously required), or merely a rabbinic ordinance;(8) and whether the violation was committed willfully (bemezid) or mistakenly (beshogeg).(9)

All this, however, concerns only the obligation of an average individual Jew to reproach his or her fellow coreligionist.  What about the obligation of the leaders of the community, such as rabbis, whose responsibility extends throughout the entire Jewish community?  What are the limits, if any, to their obligation to rebuke?

On this subject, the insightful words of the Rashba (R. Solomon ibn Adret; c. 1235-1310) deserve careful attention:

Be aware that a soft spoken word shatters bones, and different ways will clear a path before the people to remove obstacles from them.  [Therefore,] one must  progress from the easy to the difficult, and not attempt  the entire package all at once.  These words are directed towards the intentions of the heart, and you are already familiar with that which is stated in Nazir (23b), "A sin for its own sake is greater than a good deed not performed for its own sake."

[Our Rabbis] have already shown us good and clear counsel, as it states in 'Avodah Zarah (15a) with reference to the house of Rabbi Judah the Prince which was under an obligation to send a fatted bull to the Caesar on the Roman holiday.  Rabbi Judah then paid 40,000 coins to the Caesar for the concession that they would not sacrifice it at all.  [The Talmud] comments on it that Rabbi Judah intended to uproot the entire practice, and therefore uprooted it slowly, bit by bit.

Furthermore, you should know that it is impossible to deal with all people equally.  Recall that David, our  lord and king, decided to overlook the misconduct of Joab and Shim'i, even though they deserved death,...for to everything there is an appropriate time, and ignoring something sinful is occasionally a positive commandment, and everything must be measured by the need of the hour...(10)


While the Rashba's advice certainly applies to every individual, it was clearly intended for communal leaders, who are required to adapt their actions to contemporary exigencies all the more.  Even though, generally speaking, it is improper to ignore the behavior of a sinner, at times it is a mitzvah, if the situation so requires.  What emerges from this is that even in a case where the normative requirements of tokhachah call for an obligation to reprimand, if the leaders of the community believe that the times require refraining from such activity, then it is their obligation to do so.  Indeed, the Rashba says further in the responsum: 

"And if silence, employed to ultimately yield positive results, is occasionally ineffective, the use of force will only engender the opposite."


Rebuking a Fellow Jew - Theory and Practice*
Part 2 of 3

THE VALUE OF PERSUASION

In light of the previous discussion, it is clear that there are a number of different reasons why there is no obligation to rebuke Jews who do not believe in the sanctity or binding force of the Oral Torah: (1) it is clear that they will not heed the words; (2) they are part of a group with respect to which it is said that "just as it is a mitzvah to speak words that will be heeded, so too it is a mitzvah not to speak words that will go unheeded" (Yevamot 65b); (3) in the sinner's own opinion, his conduct is permissible.  In all of these cases, the authorities cited above do not require rebuke.  Indeed, R. Yechiel Mikhel Epstein (1829-1908) deemed it obvious that with respect to such Jews, the entire notion of rebuking them simply does not apply:

Understand that all [the laws of rebuke] apply only to a Jew who believes but has been overtaken by desire to commit [his sin].  In such a case [the mitzvah of] tokhachah applies.  But with respect to those who totally deny the words of the Rabbis, reproach simply does not apply, for they are apostates and heretics and one should not argue with them.(11)


Nevertheless, even though formal reproof is ineffective and hence inappropriate, there is still room for other means of persuasion and influence.  According to those who maintain that the aim of tokhachah - returning errant Jews to the path of Torah and mitzvot - is actually part and parcel of the definition of the commandment, then it is possible to expand the scope of the mitzvah to include the use of other kinds of persuasive means, as was suggested earlier.

Some might argue, however, that in order to fulfill this commandment, the other Jew at whom the persuasion is being directed must at least be considered "your neighbor ('amitekha),"(12) a title nonobservant Jews lack according to R. Israel Meir Hakohen (the Chafetz Chayyim; 1838-1933).(13) However, as is well known, many great scholars have already dealt with the status of today's nonobservant Jews and determined that such an extreme position is inappropriate.  For example, R. Jacob Ettlinger (1798-1871) wrote:

As to the sinners of our time, since, due to our overwhelming sins, [lack of observance] has reached epidemic proportions, such that the majority deem desecration of the Shabbat to be permissible, I do not know whether to treat them as those who view their behavior as permissible (i.e., omer muttar) and do not willfully desecrate the commandments.(14)


It was his considered opinion that nineteenth-century German nonobservance was not to be treated as harshly as it should have been in earlier periods.  Similarly, R. David Tzevi Hoffman (1843-1921) stated:  "There is room to be lenient [in regard to counting mechalelei Shabbat to a minyan] for today they are not called public desecrators of the Shabbat, since the majority of them act thus."(15) Be that as it may, the views of R. Abraham I. Kook (1865-1935) and R. Isaiah Karelitz (the Chazon Ish; 1878-1952) are our most reliable guides:  we must try to attract the unobservant and return them to Torah observance "with bonds of love."(16) Moreover, R. Joseph Babad (1800-c.1874) implicitly disagrees with the Chafetz Chayyim's opinion and writes that

"it appears to me that if there is a reasonable possibility that he [the unobservant Jew] will accept the reproof, then one is obligated to reprimand him, so that he may return to the correct path and be considered, once again, a brother."(17)


Therefore, even if the formal mitzvah of tokhachah may not be applicable, communal leaders have a special responsibility and a unique obligation to engage in other forms of persuasion.  Further corroboration of this position is found in a passage of the Jerusalem Talmud.  Commenting on the verse, "Cursed be the person who does not fulfill the words of this Torah to observe them, and the entire nation will say 'Amen'" (Devarim 27:26), it states:

Rabbi Assis said in the name of Rav Tanhum bar Hiyya:  If one learned, taught, observed and performed [mitzvot] but was in a position to encourage others in their observance and did not do so, such a person is included in this curse.  This is interpreted as referring to the king and the Nasi who, by virtue of their power, have the ability to force violators of the Torah to observe it.  Even if he [i.e., the leader] was an impeccably righteous person in his own conduct, but had in his power to encourage Torah observance among the wicked and did not, then he is accursed.(18)


Clearly, these words are applicable also to those who have the ability to enhance Torah observance through persuasion.  In fact, one's responsibility in this regard is measured precisely according to the degree of one's powers of persuasion, as the Talmud (Shabbat 54b) states: 

"Anyone who is able to protest the behavior of his family members and does not, is held responsible for his family members; [if he is able to protest the activities] of the members of his town and does not, then he is held responsible for the conduct of the people of his town; if for the whole world, then he is held responsible for the entire world." 

"Protest" here refers not only to rebuke in the conventional sense but also to the use of persuasion.(19)

ARGUMENTS FOR TEMPERING REBUKE

However, the effective use of persuasion to help the unobservant return to Judaism raises a number of halakhic problems that we must consider.  The Rambam (1135-1204) writes in connection with the Great Sanhedrin that "if they see that the situation requires the suspension of a positive commandment or the violation of a negative one in order to bring many back to proper observance, or to save many Jews from stumbling in other areas, they may enact whatever they feel the moment requires."(20) The problem that the Rambam identified in connection with "many" Jews (a "rabbim") may also arise in our day when dealing with individuals.  At times, in order to assist individual Jews to return to observance, and to spare individuals from stumbling, there is a need to ignore certain violations of rabbinic or even Torah laws; at times, there is a need to rule permissively, and even to abet the violator indirectly.  Such halakhic questions arise daily, as we shall shortly see.  Moreover, the halakhic considerations in any given case cannot be exercised in a vacuum, limited exclusively to the particular situation under discussion.  Every deliberate overlooking of a sin, and every dispensation given in a specific case, may result in a cumulative negative affect with regard to the public at large.  There is a need for tremendous caution and a large measure of divine assistance to help us refrain from destroying in one case when we want to improve in another.  In the same vein, many questions arise in the domain of "putting a stumbling block before the blind" and assisting sinners," where the one who is doing the influencing may himself be violating the law, as will be shown below. As a result, persuasion as an alternative to rebuke is a dangerous route, "on which the righteous travel safely but the frivolous stumble."(21)

In his responsum cited above, the Rashba afforded us wide latitude in overlooking a sinner's misconduct, based on a consideration of long-term goals.  He explicitly noted that "looking the other way from the sinner is, at times, a positive commandment."  Indeed, it is standard procedure to ignore a whole host of violations when dealing with penitents at the outset of their return to observance (chozerim bitshuvah), out of a concern that if the burden imposed upon them is too heavy at the beginning, they might become frustrated and revert to their former (mis)behavior.  I heard from a reliable source that one of the leading halakhic authorities in Israel instructed those who work in kiruv not to discuss the laws of family purity with those married individuals taking their first steps toward renewed observance. Furthermore, he suggested that even if the subject is broached by the penitent him\herself, the instructor should plead ignorance.

Rabbi Dov Katz relates that when R. Israel Salanter (1810-1883) arrived in a port city in Germany, he discovered that those Jewish merchants who had business at the port  would load and unload their goods on Shabbat as on any other day.  When R. Salanter arrived in the synagogue where those merchants prayed, he asked if he could give a sermon about Shabbat.  However, after discovering that there were Lithuanian visitors present, he refrained from doing so.  On the next Shabbat, after he had determined that there were no such guests, he delivered an inspiring sermon on the importance of Shabbat which was perfectly suited to his audience.  He concluded the sermon by saying that "while loading and unloading at the port is necessary, writing is not," and the merchants accepted his suggestion and refrained from writing on Shabbat.  After several Sabbaths, R. Salanter offered another sermon in that same synagogue and told his audience that "removing one's goods [at the dock] is essential, but surely loading is not," and the merchants accepted this as well.  A while later, he again delivered the sermon, and spoke of the prohibition of unloading also, and thus the Jews were slowly brought to observe Shabbat properly.(22) The novelty of this tale is that it allows for much more than simply looking the other way.  Indeed, R. Salanter explicitly permitted behavior which was prohibited by law in order to attract his audience to observe Shabbat completely.(23)

Quite frequently, Orthodox synagogues do not refrain from allowing unobservant Jewish families to celebrate their bar mitzvah celebrations in them.  They do so even though it is obvious that many members of the family will drive to the synagogue on the Shabbat.  As long as they park their vehicles out of sight of the synagogue, the rabbi and the congregants ignore the Shabbat desecration that such celebrations necessarily entail.  They are clearly not concerned with violating the prohibitions of "putting a stumbling block before the blind" or "assisting sinners" in their transgressions.  Moreover, it is also an everyday occurrence in Israeli rabbinical courts, on which sit very distinguished Torah scholars, to spare no effort in trying to reconcile an unobservant couple which has come to them for a divorce despite the fact that they obviously do not observe the laws of family purity.

Apparently, in both these cases the rabbinical authorities are relying on a statement in the Mishnah:

"Beit Shammai says that one should not sell a cow for plowing to those who work their fields during the Sabbatical year (when the law requires the land to lie fallow), and Beit Hillel permits it, for the buyer may slaughter it (and not use it for plowing)."(Shevi'it 5:8). 

R. Ovadya Bartenura (c. 1450 - before 1516; ad. loc.) explains Beit Hillel's reasoning by noting that "if any conceivable possibility can be suggested (that will not entail violation of the law) we accept it."  So too in these cases of the potential violation of either Shabbat or taharat ha'mishpachah, we consider any possibility, however remote, that will not necessarily result in any violation of the law.

However, R. Abraham Gombiner (the Magen Avraham; c. 1637-1683) stipulates that one may not lend tools to a person suspected of doing work on Shabbat unless there exist permitted uses for these tools that are not farfetched but standard.  If, however, their use for permissible purposes is only unlikely, then such lending is forbidden, unless refusal to lend will lead to strife - "mippenei darkei shalom."(24) According to this, it would appear that a more stringent position would also have to be taken in the cases above, as well, where the possibility of not violating Torah law is highly unlikely. Nevertheless, one may distinguish between the two circumstances, claiming that in the cases under discussion here the demands of peace in the home or the intention of drawing the unobservant to Torah is identical to the consideration of "mippenei darkei shalom," thus allowing for the overlooking of probable Torah violations, as long as it is possible - however unlikely - that they will not take place.

Incidentally, an occurrence similar to the one described by the Magen Avraham occurred to me about twenty-five years ago.  An observant, God-fearing Jew asked me whether he could buy a truck in partnership with a nonobservant Jew, where the latter had conditioned his participation on his being allowed to use the vehicle to take his family to the beach on Shabbat.  I consulted two great rabbinical scholars and both upbraided me, for opposite reasons.  The first, who is no longer alive, claimed:  "I don't understand your question.  What argument can possibly be made to permit this?"  The other, the great Rabbi Shlomo Zalman Auerbach [zt"l], claimed:  "I don't understand you.  What argument can possibly be made to forbid this?"  I asked him if his permissive stance was based on the consideration described above, that is, that we consider any feasible possibility in such a case, and he answered:  "Yes," despite the fact that the other Jew had openly stated his intention to drive the truck on Shabbat.

Rebuking a Fellow Jew - Theory and Practice*
Part 3 of 3

PUTTING A STUMBLING BLOCK BEFORE THE BLIND

One of the more common problems that arises today is whether or not one is permitted to invite an unobservant Jew to a Shabbat meal when it is clear that he will be returning to his home by car and will thus violate the Shabbat.  With regard to the Friday night meal, most rely on the famous ruling that if we offer such a Jew a place to sleep, thereby affording him the opportunity not to desecrate the Shabbat, then we need no longer concern ourselves about his violation, even though it is clear that he will decline such an invitation.  There are situations, however, where such a reasoning cannot be employed.  It is well known that in a number of communities around the world, many Jews have been influenced by the Bnei Akiva movement to return to observant Judaism.  The major activity of this movement is Shabbat afternoon meetings, and it often happens that teenagers who live quite a distance from the meeting location apply for membership in Bnei Akiva.  The question, of course, is whether to accept them and ignore their probable desecration of the Shabbat or not, and thereby run the risk of "losing" them entirely.  On the one hand, there is more room to be lenient here, for what is at stake is merely a rabbinical prohibition against riding on a bus.  On the other hand, we are dealing with a regular, ongoing violation, not a one-time event.  In addition, there is also the issue of the public nature of this conduct, since the other members of the group will surely be aware of it.  Moreover, such behavior may also at times result in violating the Torah prohibition against carrying in the public domain, which the young adult may do.

Rabbi Shlomo Zalman Auerbach suggests an approach with regard to the prohibition against "putting a stumbling block before the blind" that has far-reaching and novel halakhic consequences.  He suggests that while we do not allow someone to commit even a minor violation in order to save others from a greater sin, nevertheless it is permitted to "put a stumbling block before the blind" (e.g. offer food to someone who will not make a berakhah and thereby cause him to violate a particular detail of the law) in order to help him avoid stumbling over an even greater "obstacle" (i.e. doing something that may result in distancing him entirely from Torah and mitzvot, the concern being that if he is not offered the food, he will totally reject Judaism).  The reasoning behind this is that "it turns out that there is no sin here at all, for in this case there is no obstacle being set.  On the contrary, it is the removal of a very great obstacle, by actively exchanging it with a less serious one."(25) Similarly, he writes that if someone sees his friend drink the wine of 'orlah,(26) and is totally unable to prevent him from violating this biblical prohibition unless he hands him, instead, either wine from untithed grapes (tevel) or wine made by non-Jews (stam yayin), which are only rabbinically prohibited, he does not violate the prohibition of placing an obstacle before the blind since he is sparing his friend from an even greater stumbling block.

The basic question is how far can we extend the scope of Rabbi Auerbach's insight, a subject which demands a thorough analysis.  For example, does this mean that we can allow a woman to immerse herself in a mikveh without washing her hair, a procedure normally prohibited, because she refuses to do so and would not immerse herself at all otherwise?  Would we permit a woman to count only the "seven clean days" after her period, but not the five days of her menstrual flow itself, before resuming sexual relations with her husband if otherwise she would not "count any days" at all?  The range of considerations here extend beyond the limited scope of "placing a stumbling block before the blind," and discussions of this subject have already appeared in the responsa literature of earlier generations.

Simply put, are we permitted to instruct sinners to violate minor infractions of the halakhah in order to prevent them from committing greater sins or even just to bring them closer to observance and belief in general?

The Rambam was the first to address this issue.  A Mishnah in Yevamot states explicitly:  "One suspected of having relations with a maidservant who was later freed, or with a non-Jew who later converted should not marry her, but if he did, we do not force him to divorce her (24b)."  In his Mishneh Torah, the Ramabam ruled in accordance with this Mishnah.(27) In one of his responsa, he addressed the questions as to whether a Jewish court was obliged to coerce a man to send a non-Jewish maid with whom he had sexual relations out of his house.  He wrote:

It is clear that according to Torah law, he must remove her, even while she is still non-Jewish, for the Torah made concessions only to man's strongest desires, and this is not the proper way [of satisfying them]...
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Therefore, the Jewish court, after hearing such a report, must use every means at its disposal to force the person either to send the girl away, or free her (by which means she becomes Jewish) and marry her.  And even though we rule that a person may not marry a freed maidservant with whom he has been suspected of fornication, here we rule the opposite in order to facilitate his repentance, saying it is better that he eat gravy and not the fat itself, and we rely on the statement of the rabbis:  When there is a need to act for the sake of God, then [one may] violate his Torah.  So here he is permitted to marry her, and may God in heaven atone for our sins.(28)

Subsequent scholars relied on this responsum to permit the conversion of a non-Jewish woman who had married a Jew civilly, when her intention is to marry him in accordance with Jewish law after she had converted.  R. Chayyim Ozer Grodzinski (1863-1940), for example, permitted the conversion of a non-Jewish woman under these circumstances, writing that "the Rambam's words are a fundamental principle."(29) R. Chayyim of Sanz (1793-1876) apparently had not seen this responsum of the Rambam and nevertheless, in a similar case, wrote that

"we permit him a minor violation so that he will not come to commit more serious ones... Many have leaned towards leniency in such matters...  But we should not, God forbid, permit this easily, and it requires the consent of the rabbis in your surrounding area."(30)


However, in regard to the rabbis' edict (Yevamot 42a) prohibiting one from marrying a pregnant or nursing woman until her child is twenty-four months old (the age an infant usually finishes nursing), there is a disagreement as to whether or not this prohibition can be waived in the event that the woman would engage in promiscuous behavior while single.  In this case, R. Yosef Karo (1488-1575) maintained that it is not permissible to suspend this minor prohibition in order to prevent the violation of an even greater one (promiscuity).  He considered the view which permits a promiscuous nursing mother to marry to be "an errant decision" and called upon "all wise scholars whose hearts have been touched by God to strongly oppose it."(31) R. Yehudah Mintz (c. 1408-1506), however, did permit such a woman to marry before her child reached twenty four months.  Although he acknowledged the novelty of his lenient decision, he felt that the circumstances necessitated such a ruling.(32) Based on R. Mintz's ruling, followed by R. Moshe Isserles (the Rama; c. 1525-1572), R. David Halevi (the Taz; 1586-1667) ruled that one should not excommunicate someone who would most assuredly cease observance as a result of the excommunication.(33)

However, two caveats must be considered if we choose to follow this more lenient position:  1) R. Yechezkel Landau (1713-1793) pointed out that the Rama permitted only such a violation if it would be temporary, but if a lenient ruling would lead to the individual permanently violating the law then it could not be followed.(34) 2) The Otzar Haposekim records that most rabbinical decisors also reject the Rama's lenient position in cases where the couple will live together in violation of the laws of family purity.(35) One must therefore be very careful in drawing any inferences from the Rama's ruling.

R. Naftali Tzevi Yehudah Berlin (the Netziv; 1817-1893) was asked about a case in which a woman who was suspected of not having observed the laws of family purity was "now moved by a desire to cleanse herself in pure waters," but only on the condition that she be allowed to immerse during the day, and not at night, which is the lawful time for immersion.  If permission was not granted her, she claimed that she would continue to sin and not immerse at all.  Despite the fact that immersing during the day is a relatively minor prohibition, the Netziv was unsure whether such behavior could be permitted, even under such circumstances, in light of the fact that the very prohibition was instituted lest other women see her immersing during the day and think that on the seventh day (rather than after seven complete days, i.e., the eighth night) a woman is permitted to immerse.  The response implies that if the considerations had been limited only to the conflict between a minor violation and a more serious one he would have permitted it.  However, the Netziv concludes his response by stating that "the principle that one may suspend one prohibition for the sake of another must be exercised most sparingly."(36)

R. Yechiel Yaakov Weinberg (1885-1966) was approached by a French ritual slaughterer, appointed to be in charge of the community's butchers, who saw that those belonging to the more liberal segments of the community were not concerned at all with the laws of terefot.(37) If he were to check the animals and inform the butchers which ones were not kosher, they would eat the meat themselves anyway and also sell it to others, thereby violating a Torah prohibition.  He asked whether, under these circumstances, it would be better not to check at all and rely on the fact that the majority of animals are not blemished in a way that would render them unfit for eating, for Torah law allows an animal to be eaten even without checking.  In his response, R. Weinberg deals at length with the definition and scope of "putting obstacles before the blind" and "abetting sinners," leans towards a lenient position, but then concludes that "all I have written is for academic purposes [only], and not for a practical ruling.  The final decision should come from the leading scholars of the generation, in Israel and the Diaspora."(38)

Similarly, Rabbi Ovadyah Yosef (b. 1920) was approached by a slaughterer who had been asked by a nonobservant Jew to slaughter a chicken for him.  In the course of handling the bird, the slaughterer detected that its wing was broken near the joint next to the ribcage, a defect that renders it automatically unkosher.  However, he felt that were he to refuse to slaughter the bird, the owner would slaughter it himself with a regular kitchen knife (which is invalid for ritual slaughter), and would eat the chicken despite the warnings of the slaughterer.  Should he therefore slaughter the blemished chicken himself or not?  Rabbi Yosef cited the responsum of R. Tzevi Pesach Frank (1873-1960) who was asked by a slaughterer for a kibbutz that did not observe kashrut whether or not he had to check the animals. He concurred with R. Frank's decision not to require it, and added parenthetically, "and I ruled similarly here in Tel Aviv to allow ritual slaughter without an inspection of the lungs, in order to spare some from the potential prohibition ('obstacle') of slaughtering the animal with their own invalid knives."  Rabbi Yosef cited many responsa of recent scholars who absolutely forbid the suspension of a rabbinical ordinance in order to spare someone from a more serious offense.  Yet, he concludes:

The principle of permitting a minor violation for the sake of [avoiding] a more serious one must be exercised most sparingly.  Just like in the case of healing the body, a doctor sometimes decides to amputate the hand to prevent the spread of the disease to the rest of the body, and sometimes decides to leave things as they are, all decided upon with the counsel of other doctors, so too should this procedure be followed with the healing of the soul.  One must consult many erudite and esteemed Torah scholars, so that the decision should not cause any damage, God forbid.(39)

It is noteworthy that a large proportion of the recent responsa dealing with such matters relates to problems arising with individuals who may become entirely unobservant if we do not permit them a certain leniency, or refer to nonobservant individuals whom we want to help avoid more serious violations.  The major question for us is whether, in our time, given the grave situation in which Judaism finds itself, the general, more strict considerations here outlined should be reconsidered and, as a broad guiding principle, we should be required to adopt a more lenient posture, in order to draw the hearts of Jews nearer to God.


Notes:

* A more elaborate Hebrew version of this essay appeared in Sefer Hayovel Le-Rav Mordekhai Breuer.  This translation originally appeared in Jewish Tradition and the Non-Traditional Jew, ed. R. Jacob J. Schacter, 1992.

  1. See Hagahot Maymoniyyot, Mishneh Torah, Hilkhot De'ot 6:3 for a preliminary discussion of the issue.  However, only the views of the Yere'im and the Semak are cited there.  See n.4 below.
  2. This matter falls under the rubric of the more general question of whether or not we may engage in darshinan ta'ama dikra, interpreting the reason for a commandment, and investing that reason with halakhic significance.  The ruling is that we are not to engage in such activity and, therefore, whatever is deemed to be only a reason for a mitzvah remains outside its  halakhic boundaries.  See, for example, Kiddushin 68b and the other references cited there in Masoret Hashas.  The Chida, Birkei Yosef, Orach Chayyim, no. 608, makes this connection explicitly.  See, too, She'elot Utshuvot Avnei Nezer, Yoreh De'ah, no. 461:4.
  3. See Rambam, Sefer Hamitzvot, 'Aseh no. 205; Hilkhot De'ot 6:7; Semag, Mitzvah no. 11; Rashi, Yevamot 65b, s.v. lomar davar hanishma'; Rif and Me'iri on Yevamot 65b; Rosh, Beitzah 4:2; Tosafot, Bava Batra 60b, s.v. mutav; Shabbat 55a, s.v. ve'af 'al gav; Rabad, cited in Chida, Machazik Berakhah, Orach Chayyim 208; Shitah Mekubbetzet, Bava Metzia' 31a; Sefer Yere'im Hakatzar, no. 37; Hagahot Hagra, Orach Chayyim 608:4; Sefer Hachinukh, no. 239; Sefer Chasidim, no. 413 (no. 938, in another edition; although there the emphasis is on the negative impact such a rebuke may have [i.e., the rebukee might be motivated to sin even more], not its futility.  See Magen Avraham, Orach Chayyim 608:3).

    There is another related source for restricting the application of tokhachah based on the continuation of the verse "and you will not bear a sin over him" (Vayikra 19:17).  Based on Targum Onkelos's interpretation, this means that a Jew will be held responsible for a sin committed by his friend only if he could have rebuked him and did not do so.  This interpretation is echoed by Ibn Ezra and the Ramban in their biblical commentaries on this verse as well as by Rabbenu Yonah, Sha'arei Teshuvah 3:59, 72, 196.  Such accountability is reasonable only if such a rebuke would have been successful had it been attempted (see Shabbat 54b-55a).  However, if one knows in advance that his rebuke will go unheeded, he is not obligated to go through with it.
  4. See Yere'im, no. 223; Semak, no. 114; Ritva and Nimmukei Yosef, Yevamot 65b; Rama, Orach Chayyim 608:2.  See too Bi'ur Halakhah, ad loc.
  5. See Sefer Chasidim, no. 413; Taz on Rama, Yoreh De'ah 334:3; Nekudot Hakesef, ad loc.
  6. See Mordekhai, Beitzah, no. 689.  This distinction is also found in a responsum attributed to Rabbenu Chanan'el, printed in Teshuvot Rashi (ed. I. Elfenbein) (New York: Shulsinger Bros., l943), no. 20, pp. 14-16; S. Hasidah, Sefer Shibbolei Haleket, vol. 2  (Jerusalem:  Makhon Yerushalayim, 1988), no. 47, pp. 195-196.
  7. Interestingly, the Ra'avan (no. 25, end) applies the principle of mutav sheyihyu shogegin (it is better that they sin out of  ignorance) to such a circumstance and does not require rebuke even in a case where the possibility exists that they may respond favorably.  He requires rebuke only when the efficacy of the act is assured in advance.
  8. Rama, Darkei Mosheh, Orach Chayyim 608 (based on the Sefer Ha'ittur) requires rebuke whenever an explicit law of the Torah is being violated since, as he clearly assumes, there is no one who is ignorant of the Torah's lucidly formulated written laws and, therefore, the violation must have been committed willfully (see below).  The Rashba understands the distinction based on the inherent severity of the commandment, considering a biblical law to be more serious than a rabbinic one.
  9. See She'elot Utshuvot Avnei Nezer, Yoreh De'ah, no. 461:4; Sefer Yere'im Hakatzar, no. 37.  there is also a distinction made between whether or not the rebuker has the power to enforce his will on the recalcitrant sinner.  See Bi'ur Halakhah, Orach Chayyim 608, s.v. mohin beyadam, citing Chida, Birkei Yosef, ad loc.
  10. She'elot Utshuvot Harashba 5:238.
  11. 'Arukh Hashulchan, Orach Chayyim, no. 608:7.
  12. After all, that is the text of the biblical verse "Reproach your neighbor" (Vayikra 19:17).  This is the opinion of  Tanna Devei Eliyyahu.
  13. See R. Israel Meir Hakohen, Bi'ur Halakhah, Orach Chayyim 608, where he takes the position that public violators of the Sabbath are not considered "neighbors" with respect to the observance of Torah and mitzvot and hence are not in the category of those toward whom an act of tokhahah would be a fulfillment of a mitzvah.
  14. See She'elot Utshuvot Binyan Tziyyon 2:23, end.
  15. Sefer Melamed Leho'il, Orach Chayyim, no. 29.
  16. This term is found in Chazon Ish, Yoreh De'ah 2:16.  See also Rabbi Abraham Kook, Iggerot Hare'ayah, vol. 1 (Jerusalem:  Mossad Harav Kook, 1961), no. 138, pp. 170-72.
  17. See Minchat Chinukh, Mitzvah no. 239.
  18. See Talmud Yerushalmi (Sotah 7:4).  This passage is cited by the Ramban in his Commentary on the Torah, Deuteronomy 27:26.
  19. See Rashi, Shabbat 54b, s.v. bekhol ha'olam kulo.
  20. Hilkhot Mamrim 2:4.
  21. This is a play on the words of Hoshea' 14:10.
  22. See D. Katz, Tenu'at Hamusar, 5th ed. (Jerusalem, 1974), 1:184.
  23. I am aware that this book on the Musar movement is not a halakhic work, despite the well-known erudition of its author.  Nonetheless, I think that it is appropriate to mention this story because it is relevant to our subject.
  24. Magen Avraham, Orach Chayyim 347:4.  See, too, Machatzit Hashekel, ad. loc.
  25. See Rabbi Shlomo Zalman Auerbach, Sefer Minchat Shlomo (Jerusalem: Makhon Sha'arei Ziv, 1986), no. 35:1.  This principle had already been formulated by R. Akiva Eger in his commentary to Shulchan 'Arukh, Yoreh De'ah 181:6.
  26. 'Orlah is the Torah prohibition against deriving any benefit from the fruit of a tree during the fist three years after it was planted.  This applies to vines and their grapes as well.
  27. Hilkhot Gerushin 10:14.
  28. See Rambam's book of responsa, Sefer Pe'er Hador, no. 132.
  29. See R. Chayyim Ozer Grodzinski's Teshuvot Achi'ezer 3:26.
  30. See R. Chayyim of Sanz's She'elot Utshuvot Divrei Chayyim, Even Ha'ezer, no. 2:36.
  31. See R. Yosef Karo, She'elot Utshuvot Beit Yosef, Even Ha'ezer, in the responsa following the Laws of Ketubot, no. 1.
  32. See R. Yehudah Mintz, She'elot Utshuvot Mahari Mintz, no. 5.  This dispute is cited in the Shulchan 'Arukh (Even Ha'ezer 13:11).  Rabbi Yosef Karo is consistent with the opinion expressed in his responsum and forbids such behavior while R. Moshe Isserles follows the opinion of R. Mintz.
  33. Taz, Yoreh De'ah 334:7.
  34. See R. Yechezkel Landau, Noda Bihudah, Mahadurah Tinyana, Even Ha'ezer, no. 34.
  35. Even Ha'ezer, ad loc.
  36. See R. Naftali Tzevi Yehudah Berlin, Meshiv Davar, no. 2:43, 44.
  37. If a blemish is found on an animal, usually on the lung, but also on other organs and tissues, such that the animal would most likely have died within twelve months had it not been slaughtered, then the animal is not considered to be kosher (i.e., it is terefah), and cannot be eaten by Jews.
  38. 38. Seridei Esh, no. 2:57.
  39. 39. Yabia' 'Omer, Yoreh De'ah, no. 6:3.

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