In the light of this tradition, what ought to be the relationship among the various ideological groupings within the Jewish people today? Clearly, any expression of disrespect toward another Jew violates both the unity of destiny that has its origin in the covenant between God and Israel and the unity based on responsibility to which all Jews are called.
One may gain deeper insight into the importance of the right relationship to Jews whom one might consider “barren ones” or as being “without Torah and good deeds” from some words of Rabbi Shneur Zalman Shneurson, of blessed memory, founder of the Habad branch of the Hasidic movement. In his work Likutei Amarim (ch. 32), he discusses a talmudic statement that, at first, sounds unpleasantly abrasive. Advising someone who “sees that his fellow man sins,” the Talmud says it is a mitzvah, a commandment, to hate him. He is even ordered to tell the man’s teacher so that the teacher too might hate him. Rabbi Shneur Zalman notes, however, that the Hebrew word haver, which is usually translated as “fellow man,” actually has the literal meaning of “associate,” someone on our level in the study and the knowledge of Torah and the practice of the divine commandments. If such a person sins, one has to respond with reproof. If after repeated remonstrances he continues in his objectionable ways, then one may hate him. But this applies only to one who is close to us in Torah observance. If the person is not a haver, and is removed from us in his way of life, we are bound by the advice of Hillel the Elder: “Be you of the disciples of Aaron, loving peace … loving human beings and bringing them near to the Torah,” for the “cords of love” may guide them to Torah and to the service of God.
Rabbi Shneur Zalman continues: Even regarding the haver, he who is near to us, one is commanded to love him and to hate him simultaneously. One is to hate the evil in him, and love the good that is hidden in him, which is the divine spark that gives life to his soul. The good is, as it were, in exile, overpowered by the evil. Compassion will dissolve the hatred and awaken the power of love.
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We limit our discussion to the relationship between the various religious groupings within Judaism. Reform, Conservative, and Reconstructionist ideologies are, of course, opposed to the Orthodox interpretation of Judaism. Because of that, are non-Orthodox Jews to be considered disbelievers or heretics from an Orthodox standpoint?
Rabbi Yosef Albo (1380-1444), in his Sefer Ha’Ikkarim, has a significant discussion of the theme in which he defines the concept of heresy. Albo notes the strange fact that some of the leading rabbis quoted in Talmud, Midrash, and their commentaries occasionally disagree with each other in matters of basic belief. We find, for instance, that the Jerusalemite Amora, Rabbi Hillel, maintained that the Jews should not expect a future Messiah, since they already “forfeited” him in the days of King Hezekiah. Rabbi Yehuda, basing himself on the biblical counting of the first days of creation even before the sun, moon and stars were formed, asserts that there must have been an order of time even before the creation of the world. Rabbi Eliezer the Great inquires after the substance out of which heaven and earth were made, as if he rejected the belief in creation out of nothing. (Actually, the 14th-century philosopher Gersonides explicitly accepted the Aristotelian view of an uncreated original matter that was coeval with God and out of which God created the world.) There are also serious disagreements between Maimonides and Nachmanides on the nature of reward and punishment in the world to come, as well as on the doctrine of resurrection. Since these disagreements have a bearing on fundamental teachings, shall we say that the epithet “heretic” applies? Obviously not, maintains Albo. He reaches the following conclusion:
The correct and true way may be learned from what our teachers, of blessed memory, said about Elisha, the son of Abuha, about whom the decree was announced: “Return ye straying sons, except Elisha. For he knew his Creator, but intended to rebel against Him.” This proves that their opinion was that only one who knows the truth and yet denies it, he alone belongs to the category of the reshaim [wicked, transgressors], who do not deserve the opportunity of return. But he who has no intention to rebel, nor to depart from the way of truth, nor to deny what is contained in the Torah or transmitted by the Oral Tradition, but explains the verses [of the Bible] according to his own understanding, such a person, even if his explanation is contrary to the truth, God forbid that he should be called a heretic or infidel.
The essence of Albo’s theological interpretation emerges also from a statement that appears in the Shulhan Arukh, the authoritative code of Jewish law. A person who transgresses a biblical commandment is not trusted to testify in court. Yet, if one transgresses, even after receiving a warning, because one believes that what he does is permissible, one is to be admitted as a witness (Hoshen Hamishpat, Hilkhot Edut, ch. 34).
On this basis, one can say that Reform and Conservative rabbis certainly do not mean “to rebel, to depart from the path of truth and to deny.” Rather, they are convinced that their interpretation of Judaism is the correct one. They explain it according to their understanding, and their intention is le-shem shamayim, for the sake of heaven. Obviously, the Orthodox view is that they explain the Torah “contrary to the truth,” but, as we have seen, that does not make them heretics and disbelievers. They are toim, Jews in error. As such, they are not transgressors, and may be admitted as witnesses in a Torah court.
As to the rabbinical authorization of Reform and Conservative rabbis, it may be well to recall some words of the authoritative 16th-century scholar Rabbi Moses Isserles in his work Darkei Moshe. On the subject of semikhah (rabbinical authorization), Maimonides states: “A rabbinical court may grant semikhah in limited areas [of halakhic decisions], but only if the person is qualified in all areas …” (Sanhedrin, ch. 4). Explains Rabbi Isserles: “It seems that this applies only to the times when the law of semikhah [the original classical teaching and judging authorization] was in practice. But today’s semikhah is nothing but a privilege granted, and for whatever a person is qualified, he is qualified” (Yore De’ah 242). On this basis, it would seem that the general rejection of all marriages at which Reform or Conservative rabbis officiate is halakhically unjustified. All that is needed for a marriage to be legally binding is the espousal of an unmarried Jewess by an unmarried Jew in the presence of two witnesses. In our times there exists, in the overwhelming majority of cases, no problem regarding the qualification of the witnesses.
According to a decision of the Israeli chief rabbinate over 40 years ago, even a non-Orthodox Jew may be accepted as a witness. There were times when social trustworthiness was dependent on religious observance, and in those days a transgressor of religious commandments was also suspected of testifying falsely. However, “in these matters,” runs the decision of the chief rabbinate, “the reliability of a witness is to be determined in accordance with the conditions of the time and place.” Thus someone who does not adhere to the Sabbath laws is qualified to be a witness (see M. Elon, Ha-Mishpat Ha’Ivri, I, 85-86). It is true that, years later, another Israeli chief rabbinate overruled this opinion and restored the law as it had previously prevailed. But is the matter to be considered as settled for all conditions and for all times to come?
The Talmud itself actually records two opinions about this matter. According to Abaya, a person who desecrates the Sabbath knowingly would not be admitted as a witness. Rabba, on the other hand, is of the opinion that only a person who transgresses laws dealing with monetary matters, who is dishonest, is not fit to be a witness (Sanhedrin 27a). Even though disagreements between Abaya and Rabba are usually decided according to Rabba, this is one of the few exceptions when we rule according to Abaya. Nevertheless, if, because of changed conditions and circumstances, a rabbinical authority should rule that an honest person may be trusted as a witness, independent of his religious opinions and behavior, he would have the talmudic authority of Rabba to lean on.
In another context, Maimonides makes a revealing comment about the biblical rules regarding witnesses. According to the Torah, the testimony of two witnesses is required in order to establish a fact in court (Deut. 19:15). Yet, in the case of a woman whose husband’s whereabouts are not known, if one person testifies to his death, the testimony is accepted and the woman is considered a widow and may, if she so desires, remarry. A number of other biblical rules about the validity of testimonies were also overridden in order to free a woman whose husband has disappeared from her marriage bonds (Yevamot 87b). The question arises: How could the rabbis rule against the laws of the Torah on testimonies? Maimonides explains the matter in the following words:
The Torah did not insist on two witnesses and on the other rules concerning testimony, except where there is no other way of establishing the fact clearly but by the witnesses and their testimony…. However, when a fact may be ascertained independently of the witnesses, or where as in this case, there is sufficient reason to trust even only one witness, the Torah does not insist [on the literal adherence to the written word]. In this case, it would be far-fetched to assume that the testimony was false. Therefore, the sages were lenient and admitted even one witness… (Maimonides, Hilkhot Gerushin 13:2a).
Maimonides makes the important point that biblical rules regarding testimony were not meant as fundamentalist dicta without any reference to conditions and circumstances. Their only purpose is to establish the factual truth. If, therefore, that truth can be established in a different way, and a given situation requires that it be so established, then it is the meaning of the biblical law that we do not adhere to the written word. (See my Hebrew work, Ha-Halakhah, Koha ve-Tafkidah, p. 201.)
There is no doubt that in our own days it would be a monstrous act of injustice to declare hundreds of thousands of nonobservant Jews to be untrustworthy witnesses, so that their testimony could not verify a fact. Such a rule would not only contradict the purpose of the biblical law on testimony but would be a serious violation of fundamental principles of Jewish ethics. There can be no doubt that, in the present circumstances, religious observance cannot be the qualification of a person as a witness. Since there is no doubt that non-Orthodox rabbis would accept as a witness only a person who is trustworthy from an ethical point of view, one would have to say that many of the marriages at which they officiate are indeed halakhically binding.
Similarly, the general rejection of all conversions performed under the direction of non-Orthodox rabbis is halakhically not justified. It is an uncontested statement of Maimonides, based on the Talmud, that “a convert who was not examined [for his motivation] or was not informed of the mitzvoth and the seriousness of their transgression, but underwent circumcision and ritual immersion in the presence of three laymen, is accepted, i.e., he is a Jew in all matters” (Issurei Bi’ah, ch. 13; see also Talmud, Yevamot 47b). It is true that this is the law only be-di’aved, de facto, after the event. However, it is an accepted halakhic principle that bi-sh’at ha-dhak or tzorekh gadol, in a situation of need, whatever is admissible be-di’avad may be practiced le-khathilla, ab initio. I have argued for many years that the need for Jewish unity may well justify Orthodox acquiescence in many of the practices of non-Orthodox rabbis in these matters.
Needless to say, there are numerous deviations, especially by Reform rabbis, in matters of marriage and conversion that can never be approved halakhically -- patrilineal descent, not requiring a Jewish divorce, conversion without immersion and circumcision, the performance of mixed marriages. This, however, does not free us from meeting in responsible and mutually respectful dialogue in order to establish contact or even tolerable working relationships in certain areas. We are all equally under obligation to strive for the unity of the Jewish people.
The outright rejection of the validity of all marriages and conversions performed by non-Orthodox rabbis has very serious consequences. In fact, such an attitude actually annuls many halakhically binding marriages and ignores many halakhically effective conversions. The situation demands encounter, dialogue and rapprochement between the various ideological branches of Judaism. Even if we should not succeed in achieving a mutually accepted modus vivendi, the effort would be in keeping with the ethos of halakha and the comprehensive spirit of Judaism.
In addition to encouraging better communication and understanding among ideologically polarized rabbis and scholars, we might also attempt to promote better organizational coordination. One of the greatest achievements of the Jewish people during its centuries of exile was the institution of the kehillah, the local communal organization. Within its framework, all Jews in each community, regardless of ideological differences, administered their religious, educational, cultural and welfare activities. The kehillah functioned through the combined guidance of rabbis and lay leaders appointed by representatives of the people. Starting at the end of the 18th century and continuing on through the 19th century, increasing numbers of Jews rejected traditional Jewish practice, and this created inevitable strains within the kehillah structure. Nevertheless the kehillah maintained its effectiveness in most European countries until the Holocaust.
In our day, when ideological dogmatism has become a serious threat to Jewish unity, the renewal of the kehillah might be a helpful way of getting Jews to cooperate on matters transcending ideology. Perhaps all synagogues in a particular neighborhood could unite to form a kehillah within which all would strive to sustain and enrich Jewish life through joint consultation in an atmosphere of mutual respect. It is hard to think of a better way to “atone” for each other’s shortcomings.
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The need for unity is much greater in Israel than in the Jewries of the Diaspora, since the intensity of the ideological confrontation in Israel may endanger the very foundations of the State. There is a comment by our sages on the subject that seems to speak to the present situation in Israel. The first verse in the weekly portion of Nitzavim reads: “You stand today all of you, before the Eternal One, your God.” Said the rabbis: “When is it that you are standing? When all of you become one entity. When should it happen? Today!” (Yalkut Shimoni on Deut. 29:9).
One of the most serious stumbling blocks to unity in Israel is the law of the State in matters of “personal status.” Undoubtedly this affects the unity of the people, and leaving this subject to individual discretion would bring social chaos and destroy the very basis of national existence. Yet, while government legislation is necessary, its present form is subject to criticism, since, in all matters of personal status -- marriage and divorce, conversion, determination of Jewishness -- Israeli legislation recognizes only the Orthodox branch of Judaism. This is objectionable for ethical, halakhic and spiritual reasons.
From an ethical standpoint, we must not forget that for many long centuries the Jewish people suffered religious discrimination in the lands of its exile. How can we now apply the same injustice to millions of Jews who are not Orthodox in their ideology?
It would also seem that the Israeli legislation is contrary to halakhah. For many centuries now we have lived without a Sanhedrin. Nor has there been the institution of rabbinic ordination in the authoritative sense of the idea. This means that no rabbinate or rabbis may impose their halakhic decisions on anyone unless they have been accepted by an established community or by the individuals who asked for their opinion. For instance, a rabbi elected in one community has no rabbinical authority in any other one where he is not so acknowledged. Thus the authority of the rabbinical establishment in Israel rests completely on the law of the State.
But what is the significance of the legislation of the State from the halakhic point of view? What is its binding character? In former times, besides the law of the Torah interpreted and administered by the Sanhedrin, there also existed mishpat ha-melekh, the royal law, which covered the personal status of the king and the management of the affairs of the State, like taxes, criminal law, army and war. There are rabbis who maintain that the law of the modern State of Israel has the authority of mishpat ha-melekh. I do not agree, since, according to the halakhah, mishpat ha-melekh applies only to a king or a dynasty acknowledged by a Sanhedrin and appointed by a prophet, and this is not the case in Israel today. (See Maimonides, Hilkhot Melakhim, I, 3; also Tosafot, Sanhedrin 20b, sub. ha-melekh muttar.)
Another possible argument for the halakhic legitimacy of Israeli law defining Jewishness is the talmudic principle of Sh’muel that says dina de-malkhuta dina, the law of the State is law. There are actually two trends in the interpretation of the principle. One is found in the commentary of the Rashbam (see Bava Batra 54b), according to which the law of the State is valid law because it is freely accepted by the people; it is an expression of the will of the citizens, and would certainly apply to the democratic legislation of Israel. The other trend is represented by Rabbeinu Nisim, the Ran (see his commentary on Nedarim 28a). He takes the phrase dina de-malkhuta, which literally means “the law of the kingdom,” in the medieval sense, and maintains that the principle applies only to a non-Jewish kingdom. Its laws do not have true legal validity, but we must submit to them because the land belongs to the king, and if we disobey his decrees he will expel us. Thus the principle does not apply to Israel. There the decrees of the king are not necessarily the law, for all Jews are partners in the land. In a sense, even this view ultimately affirms democratic ideology as the source of the law in the Jewish State, where the law of the “kingdom” is not valid if it is enforced and not accepted. It follows that according to both the Rashbam and the Ran, the democratic legislative process in Israel results in halakhically acknowledged law, and therefore its acknowledgment of the authority of the rabbinate in Israel is binding.
However, halakhah places two limitations on the authority of the State. First, any law that discriminates among citizens is illegal (see Maimonides, Gezelah Ve-Avedah 14:5; Rosh on Nedarim 28a). Second, the principle that the law of the State is binding applies only in the sociopolitical field -- government administration, taxes, roads, war and peace, criminal law, welfare. It has no halakhically recognized validity in the area of religious faith and conscience (see, for example, the responsa of Tashbaz, I, 15:8).
Both these limitations -- nondiscrimination and inapplicability to religious laws -- were essential for the maintenance of Jewish life in exile. Both bespeak legal understanding and insight far in advance of the times in which they were promulgated, and testify to the courage and determination of the Jewish people in all the lands of their sojourn. Surely there is no halakhic reason why they should be given up in a Jewish State. Could one imagine, for example, that the Knesset, the Israeli parliament, should be authorized to legislate in matters of religious faith and observance, on a religious, halakhic basis? Since the Messiah has not yet come, since we are still without a Sanhedrin of constitutional authority, and since Israel is still not a Torah state, discriminatory laws on the basis of religious ideologies have no halakhic validity.
From a spiritual point of view, using religious compulsion is not only fruitless, but also counterproductive. It is not by legislation that a Torah state will be established. The only moral path open to us is that of persuasion by communication in the spirit of ahavat Yisrael, love for our people, Israel. Encounter and dialogue among the various ideological groupings are even more vital for our survival in Israel than in the Diaspora.