Religion and Science: My Letter to Scientific American

Regarding January 2009's "The Latest Face of Creationism", Glenn Branch and Eugenie C. Scott.

The authors point out the vagaries of religious-motivated and politically-pursued creationism in the public schools. They point out that we must combat this with likewise political means, such as coalitions and grassroots responses.

I would like to point out two other ways in which this travesty of miseducation must be combated. The first is extremely obvious, but the most important: greater scientific education is necessary. My mother, a chemist for the USFDA, has repeatedly noted how tragic and harmful is the general scientific ignorance of the laity. The success of the DHMO farce, for example, is a case in point. Similarly, as my mother has noted, people believe that an herbal supplement is healthy and safe by virtue of its being "all natural", despite the fact that, as she puts it, "rattlesnake poison is also 'all natural'". (Cf. what I wrote in comment to Popular Science at http://www.popsci.com/scitech/article/2004-08/healthy-glow-drink-radiation#comment-29498). In the case of evolution, one of the most critical facts to be stressed, I believe, is that any currently enduring scientific ignorance regarding evolution, is but in the mechanism, and not in the fact. We also do not understand gravity's mechanism, especially as regards a unified theory, but will anyone claim that the fact of gravity is thereby impugned? If the laity were to understand this, they would realize that however much doubt exists regarding evolution's mechanism, there is little to none regarding the fact of evolution per se. (In any case, as far as I understand it, the relatively recent revelations regarding the function of so-called "junk DNA" clear up much of the ignorance regarding the mechanism; preexisting genes are simply used in different ways, rather than being catastrophically altered. Thus, Darwin's famous puzzlement regarding the eye is clarified; rather than the eye suddenly appearing "ex nihilo", which is a serious challenge on the **mechanism** (not fact) of evolution, the eye rather gradually evolved from previous genes and organs which carried out other functions, and were jury-rigged for new roles.)

The second means by which we must combat this, is one which is not within the scientific community's purview, but nevertheless, it is something which must be said publicly, and people must be made to hear it: regardless of how legitimate religion is per se, religion nevertheless must be enlightened by critical thinking and awareness to the advances of human knowledge. Already more than 100 years ago, Rabbi Samson Raphael Hirsch, a 19th century German Orthodox Jewish rabbinic scholar wrote (as quoted by Rabbi Natan Slifkin in a letter to the Jewish Observer, http://www.zootorah.com/controversy/LetterToJOHirsch.pdf),

Judaism is not frightened even by the hundreds of thousands and millions of years which the geological theory of the earth’s development bandies about so freely… Our Rabbis, the Sages of Judaism, discuss (Midrash Rabbah 9; Talmud Chagigah 16a) the possibility that earlier worlds were brought into existence and subsequently destroyed by the Creator before He made our own earth in its present form and order. [Cf. Rabbi Yisrael Lipschutz (1782 - 1860)'s essay in the Tiferet Yisrael mishna commentary, in the back of Nezikin. There, Rabbi Lipschutz's waxes at the wonders of recent geological discoveries, and suggests that the previous sedimentary layers are prior "worlds" of creation, and that Genesis deal only with a later layer, and that Genesis does not discount older, previous layers.] However, the Rabbis have never made the acceptance or rejection of this and similar possibilities an article of faith binding on all Jews. They were willing to live with any theory that did not reject the basic truth that “every beginning is from God.” (p. 265 in Collected Writings vol. VII)

Rabbi Hirsch is echoing the method of the medieval Jewish philosophers, especially Maimonides. The medieval philosophers were confronted with the contradiction between Scripture and then-regnant scientific theory, and sought to reduce if not solve the contradiction. One of their primary methods was to allegorize Scripture. They suggested that while literalism is preferable to understanding passages allegorically, this is only when a literal interpretation does not challenge the findings of reason or science. But where reason and literalism contradict, allegorical understanding must prevail over literalism. Thus, for example, whenever the Torah speaks of G-d's hand or over tokens of corporeality, Maimonides said this must perforce be understood allegorically. Similarly, in an extended and famous passage of his Guide to the Perplexed, Maimonides deals with the contradiction between creation ex nihilo, and the respective creation theories of Aristotle and Plato. Maimonides first rejects Aristotle's understanding (viz. that existence inexorably and unintentionally emanates from God, as the rays of light from the sun, without will or volition on His part), as being utterly untenable theologically. But as regards Plato, that existence is eternal (contra creation ex nihilo), Maimonides says we are in fact able to accept this theologically. Maimonides says that Plato's theory has not been proven, and therefore, we can accept Scripture here unaltered. Nevertheless, were Plato vindicated, Maimonides says he would simply allegorize the first chapter of Genesis. Rabbi Dr. Isidore Epstein, in his The Faith of Judaism (Soncino Press) summarizes Maimonides on this, and explicitly and enthusiastically utilizes this same thought to justify evolution in Orthodox Judaism today.

As regards evolution in particular, Rabbi Hirsch writes (quoted in Slifkin, op. cit.),

Even if this notion [viz. evolution] were ever to gain complete acceptance by the scientific world, Jewish thought, unlike the reasoning of the high priest of that nation [viz. Darwin], would nonetheless never summon us to revere a still extant representative of this primal form (an ape—N.S.) as the supposed ancestor of us all. Rather, Judaism in that case would call upon its adherents to give even greater reverence than ever before to the one, sole God Who, in His boundless creative wisdom and eternal omnipotence, needed to bring into existence no more than one single, amorphous nucleus, and one single law of “adaptation and heredity” in order to bring forth, from what seemed chaos but was in fact a very definite order, the infinite variety of species we know today, each with its unique characteristics that sets it apart from all other creatures.

In other words, Rabbi Hirsch is saying that even if evolution is true, Judaism will simply say that God instituted the laws of evolution, and that this is the means by which He performed that which is described in Genesis 1. Genesis 1 tells but what happened, while evolution is how it happened. And this being the case, evolution poses no challenge to the idea that man is created in the image of God, as God intended to create His counterpart, via the evolution of apes.

Rabbi Avraham Yitzhak Kook, the late chief rabbi of British Mandate Palestine, also reconciles evolution with Judaism. He says that Judaism is more concerned with God's moral will for mankind, than He is with imparting technical scientific truths. (Cf. Hirsch, previously quoted, that, "They were willing to live with any theory that did not reject the basic truth that “every beginning is from God.”".) It may be then, that Genesis chapter one is portraying creation overly simplistically, in order to focus rather on the moral crucial fact that one way or another, God alone is the cause of existence, and that He created everything we see for some purpose, and that there is higher meaning in this universe. Rabbi Kook notes that Maimonides and others read the story of the Garden of Eden as an allegory (cf. the ubiquitous Orthodox Jewish Hertz Pentateuch (Soncino Press), which takes a similar approach to Eden) for the human condition. Rabbi Kook notes that just as the lessons of Eden are far more important than whether Eden actually ever happened, so too with creation. See Rabbi Kook's view summarized at "Rav Kook on Noah: The Age of the Universe", by Rabbi Chanan Morrison, http://www.ravkooktorah.org/NOAH60.htm. To quote Rabbi Kook in the original (Igrot 134, translated in Tzvi Feldman, Rav A. Y. Kook - Selected Letters (Ma'aliot Publications of Yeshivat Birkat Moshe; Ma'aleh Adumim, Israel, 1986, pp. 11f, 14),

I necessarily find myself obligated to awaken your pure spirit in regard to the theories that have emerged from new research, which for the most part contradicts the literal meaning of the Torah. My opinion on this is, that anyone with common sense should know that although there is no necessary truth in all these new theories, at any rate we are not in the least bit obligated to decisively refute and oppose them, because the Torah's primary objective is not to tell us simple facts and events of the past. What is most important is the [Torah's] interior - the inner meaning of the subjects, and this [message] will become greater still in places where there is a counterforce, which motivates us to become strengthened by it. The gist of this has already been recorded in the words of our Rishonim, headed by The Guide for the Perplexed [Maimonides devotes a major portion of the first 49 chapters of the first part of the Guide to explaining biblical terms ascribing human characteristics and form to God. Maimonides argues that these terms have an allegorical meaning when applied to God. Many Rishonim, the great legal authorities of the Middle Ages (including Josef Albo, Yehuda Halevi, and others) interpret the story of the Garden of Eden allegorically.], and today we are ready to expand more on these matters. It makes no difference for us if in truth there was in the world an actual Garden of Eden, during which man delighted in an abundance of physical and spiritual good, or if actual existence began from the bottom upwards, from the lowest level of being towards its highest, an upward movement. We only have to know that there is a real possibility that even if a man has risen to a high level, and has been deserving of all honors and pleasures, if he corrupts his ways, he can lose all that he has, and bring harm to himself and to his descendants for many generations, and that this is the lesson we learn from the story of Adam's existence in the Garden of Eden, his sin and expulsion. And the Master of all souls knows just how deeply this lesson should be impressed in people's hearts in order that they may avoid sin, and according to this depth were the exact number of letters written in the true Torah. When we accept this view, we no longer have any particular need to fight against the descriptions that have gained fame among the new researchers, and having become unbiased in the matter we will be able to judge fairly, and now we will be able to refute peacefully their conclusions as much as truth will show the way.

Rabbi Kook even countenances the possibility that the Torah wrote words that are literally false, in order to teach moral truth. He writes (Igrot 478, Feldman, op. cit., pp. 17f),

And if we find in the Torah certain things which other people think were based on the widely accepted notions of the distant past, but which are incompatible with the scientific knowledge of today, indeed, we do not know at all if today's research is absolute truth, and even if it is true, certainly there is also some important and sacred objective for which certain matters [in the Torah] needed to be presented in the commonly accepted description and not the exact one, as is plain in the spiritual concepts and in certain foundations of practice, for "the Torah provided for man's evil passions" {i.e., the Torah made certain laws as concessions to man's nature - M. M.} or "to make [its words] intelligible {by using human idioms and language usage - M. M.}," and upon all of them appears the living endearing divine wisdom.

And again, Rabbi Kook, this time from his Eder Hayakar, pp. 42-43 (translated in Ben Zion Bokser, The Essential Writings of Abraham Isaac Kook, Amity House: Amity, New York, 1988, p. 48, "Assyriology and the Bible"),

As to the similarities in teaching [between the Torah and the Code of Hammurabi], it was already made clear in the days of Maimonides, and before him in the teachings of the Talmudic sages, that prophecy reckons with man's nature, for it is its mission to raise his nature and his disposition by divine guidance, as is implied in the statement that "the commandments were only given so as to refine the nature of people" (Genesis Rabbah 44:1). Hence, whatever educational elements there were in before the giving of the Torah, which gained a following among the [Jewish] people and the world, if they only had a basis in morality and it was possible to raise them up to a high moral level - the Torah retained them.

As regards science in general, I have explained the implications of Rabbi Kook's words in my "Scientific Developments that Contradict the Torah: Do Not Have a Kneejerk Reaction", at http://michaelmakovi.blogspot.com/2009/02/scientific-developments-that-contradict.html. As regards evolution and creation in particular, I have suggested, in my "Genesis Chapter One and Science", at http://michaelmakovi.blogspot.com/2009/03/genesis-chapter-one-and-science.html, that the Torah is actually teaching the Babylonian creation myth of the Enuma Elish, except that the Torah changed whatever details were needed for its own theological agenda (such as replacing many gods with one God).

The upshot of all this, is that theologians must realize that rather than fleeing from science and evolution in fear, theologians must rather confront science with creative thinking, especially by reanalyzing their dearly held religious teachings. Perhaps there is another way to interpret certain religious beliefs, in a way that the central import of the belief remains, even as it becomes possible to reconcile it with science. Thus, science and religion may go hand-in-hand. But to do this, theologians must first recognize how imperative respect for science is, that science is not something that can be casually brushed aside. They must also learn to critically analyze their religious beliefs, as the rabbis I have quoted have done. As Rabbi Hirsch wrote, more than one hundred years ago (as quoted in Rabbi Dr. Yehuda (Leo) Levi, "Rabbi Samson Raphael Hirsch—Torah Leadership for Our Times", Jewish Action, Fall 5769/2008, at http://www.ou.org/pdf/ja/5769/fall69/18-27.pdf, http://www.ou.org/index.php/jewish_action/article/44012/),

It would be most perverse and criminal of us to seek to instill in our children a contempt, based on ignorance and untruth, for everything that is not specifically Jewish, for all other human arts and sciences, in the belief that by inculcating our children with such a negative attitude we could safeguard them from contacts with the scholarly and scientific endeavors of the rest of mankind…You will then see that your simple-minded calculations were just as criminal as they were perverse. Criminal, because they enlisted the help of untruth supposedly in order to protect the truth, and because you have thus departed from the path upon which your own Sages have preceded you and beckoned you to follow them. Perverse, because by so doing you have achieved precisely the opposite of what you wanted to accomplish…Your child will consequently begin to doubt all of Judaism which (so, at least, it must seem to him from your behavior) can exist only in the night and darkness of ignorance and which must close its eyes and the minds of its adherents to the light of all knowledge if it is not to perish (Collected Writings 7: 415-6).

I realize that all this is not within Scientific American's purview, but nevertheless, I feel theologians must be aware of these matters. Perhaps readers of Scientific American can benefit from these words, in conversations with their religiously-conservative friends and acquaintances.

Sincerely,
Michael Makovi

Minhag: haMakom or Avot?

Tonight, I had a scintillating conversation with my friend Evan Gadol about minhag, between minhag avot and minhag haMakom. Virtually all of my arguments, I had voiced earlier, on the Aishdas Avodah board (which is filled with talmidei hachamim who all know 100 times more than I do), to which exchange I repeatedly referred to in my discussion with Evan.

So let us quote that Aishdas Avodah discussion, from Minhag Avos and Sephardim :

Rabbi Rich Wolpoe, at http://www.aishdas.org/avodah/vol26/v26n040.shtml#10, asks,

Several Sephardic rabbis have told me point blank that while Talmud has several references to minhag hamaqom there is no talmudic basis for minhag avos.

...

[But] I...questioned the logic. If Sephardim subscribe to no minhag avos that would imply that following 1492 there were no more Sephardim born? Also minhag EY at time of GRA could not have been Sepharidc since all Spanish natives were long gone. Similar argument for America circa 1654.

At http://www.aishdas.org/avodah/vol26/v26n045.shtml#11, I replied,

When the Spanish left Spain in 1492 and spread across North Africa and the Middle East, they were indeed no longer Spanish in the sense that the Spanish minhag no longer applied to them, since they had left the makom.

BUT, in their new homes, if they reestablished the old minhagim, then it is a question of terminology; minhag haMakom of Morocco, Israel, Tunisia, Turkey, Greece, whatever, would be a reproduction of minhag haMakom of Spain.

Perhaps, then, in their new homes, had they put the matter up to a vote, and asked whether or not to continue the old minhag haMakom of Spain, they could have decided to drop that whole minhag and adopt a new one. But once the new makom adopts the minhagim of the old makom, the decision is done.

Personally, I'd argue that today, Ashkenazim and Sefaradim are no longer bound by those minhagim; there is no minhag haMakom today, as evidenced by the fact that a Sefaradi can eat kitniyot in full plain view of Ashkenazim, without reprisal. Were there minhag haMakom, a Sefaradi couldn't eat kitniyot in an Ashkenazi locale. But this is a separate issue, I'm just opportunistically taking a moment on my soapbox.

Rabbi Wolpoe replied, at http://www.aishdas.org/avodah/vol26/v26n045.shtml#14,

Follow up question. Some of the same Sephardim assert that when ashkenazim came in numbers they should have followed minhag hamakom in. Both EY and NYC. And to surrender their minhag avos.

Why?

If Michael's model is accurate it might make sense if they had voted and established it already.

Otherwise if Sephardim were following minhag avos from Spain then Ashkenazim should follow their minhag avos too.

Rabbi Micha Berger replied to Rabbi Wolpoe, with words that I will agree with, at http://www.aishdas.org/avodah/vol26/v26n047.shtml#06, saying,

I think both should, and will, follow minhag hamaqom, once one congeals in our new meqomos. And assuming mobility hasn't rendered the entire concept of stable maqom moot.

I think the establishment of minhag takes consensus, not (as RMM [Michael Makovi] suggests) majority. It's not a matter of formal vote, but eventually norms emerge. Because of that lag of time, we living in a reconstruction period are still clinging on to our minhag avos. For people who actually lived through it, the formation of minhag Ashkenaz took forever.

But someday, Bet Shemesh may have its own minhag, and someone moving there would abandon one minhag to conform to the society (shelo yaasu agudos agudos).

I replied to Rabbi Berger, at http://www.aishdas.org/avodah/vol26/v26n048.shtml#09, saying,

I'd agree. I was overly simplistic, bombastic even, when I suggested the formal vote. That's the problem with electronic communication; tone of voice and gesticulations get lost. According to Wired, at http://www.wired.com/science/discoveries/news/2006/02/70179, people understand each other's tones in email, FIFTY percent of the time. So if you're not sure whether someone is angry or joking in an email, rolling dice will serve you just as well.

The point is that I emphasize minhag haMakom over minhag Avot, and the Spanish refugees (rather than carrying a minhag Avot that is obligatory in any place irrespective of minhag haMakom, rather) transplanted their minhagim to a new makom, and made the new makom's minhag be the same as the old makom.

Thus, in America (and dati leumi communities in Israel), if everyone is merely following minhag Avot, and there is no minhag haMakom, then, in reality, everyone has a right to do whatever he pleases, as far as minhag goes.

Of course, there may be minhag haMakom in some practices, and not in others. Perhaps there is no minhag haMakom regarding kitniyot (thus, the American Sefaradim aren't sinning), but there is indeed a minhag haMakom to say the bracha for the State of Israel.

Finally, Rabbi Daniel Israel notes, at http://www.aishdas.org/avodah/vol26/v26n048.shtml#17,

Nitpick: I don't think the latter is a good example, for two reasons. One, the State of Israel is relatively recent, I'm not sure that we have any clear minhag in America regarding such a bracha (certainly many kehilos don't say one). Second, this may be a matter of halacha, not minhag. Certainly many of those who don't say such a bracha would object on halachic grounds.

All of which is tangential to the point you are making.

I might note that all these individuals, all of whom are talmidei hachamim leagues above me, had no substantive disagreements with me, that there is no such thing as minhag avot, and that there is only minhag haMakom.

I'll also note that when Rabbi Wolpoe says, "Otherwise if Sephardim were following minhag avos from Spain then Ashkenazim should follow their minhag avos too.", I completely agree. That is, if the Sefaradim and Ashkenazim were all doing what they were doing, based solely on minhag Avot, then indeed, neither can impose their practices on the other, and indeed, this is what we do in America and Israel today. On the other hand, if there is a real minhag haMakom, then minhag Avot is trumped. In days of yore, a Sefaradi who moved to an Ashkenazi land, or vice versa, the immigrant abandoned his own custom and adopted that of his new home. Wherever there is true minhag haMakom, it is irrelevant what your father did.

---

After my conversation with Evan, I, later that night, had the same discussion all over again, at Mia Rut's A “Traditional” Passover Seder or How to Make Everyone Happy Around Your Table":

J. commented,

Sephardic and Ashkenazic Jews do *not* disagree on what constitutes Chametz. That’s a pretty glaring error. Rather, Sephardic Jews do not have the minhag of avoiding Kitnyot during Pesach, as do Ashkenazic Jews. And re: family tradition. Those without a family minhag follow the minhag of their rabbi.

I replied,

J. is correct that kitniot is not an issue of hametz, but rather, a separate matter. Everyone agrees nuts and beans are not hametz, but the Ashkenazim avoided them because they were stored in the same sacks, or appeared similarly when ground into flour, or other similar reasons. In fact, some Sefardim do not eat rice (although they do eat nuts and beans), for similar reasons. ("Kitniot" means "little thingies", from the root "katan", "small". The translation "legumes" is a very poor one. One of the first sources to refer to kitniot, a 12-13th century Ashkenazi whose name I cannot remember, says we cannot eat kitniot because, he says, they are cooked into porridges like hametz ("maaseh kadira"), and because they are stored in silos as grainy substance, like hametz. Such a definition would cover many non-legumes.)

However, one need not follow the minhag of his rabbi. Minhag is based either on minhag Avot (what your forefathers did), or, more often, on minhag haMakom (community bylaws and practices). In Europe, the Jewish communities all refrained from kitniot, and so individual members had to do so as well. Similarly, any community practices regarding kashering meat, marriage and divorce, etc., also had to be honored by the individual. When an individual moved to a new locale, he had to adopt the new locale’s practices.

Obviously, in America, there is no minhag haMakom. And of course you, Mia Rut, have no minhag Avot. So either which way you cut it, you have no reason to refrain from kitniot, even if (for reasons that I cannot understand), nearly everyone besides me refuses to make this logical conclusion (based on the absence today of minhag haMakom) that we need not keep kitniot anymore.

J replied,

You’re right that Mia has neither Minhag Makom nor Minhag Avot. However, the overwhelming practice is for gerim to take the minhagim of the rav who does their gerut. If her gerut had been done by a Sephardic rabbi, she would eat kitnyot (presumably –there are variations in practice there as well.) Of course, she could marry a Sephard and increase her dietary options that way! Something to consider...

I replied,

And J., my point is if a ger takes on his rabbi’s customs, simply because he believes he has to, he is wrong.

In 1492, a massive immigration of Sefaradim to Ashkenazi lands occurred. In some communities, the Sefaradi immigrants outnumbered the Ashkenazi natives, and the question was, should the minhag haMakom [local custom] of the native Ashkenazim triumph, or rather should the more numerous Sefaradim triumph? Unfortunately, I don’t remember what the responsa say, but in any case, note that no one had a hava amina [suggestion] that everyone should do whatever his father did, i.e. have two different minhagim [customs] in one town. Everyone agreed minhag haMakom [local custom] trumps, but they didn’t know which minhag haMakom.

In other words, minhag, by and large, is based on geography, not parentage. Obviously, in America and Israel, or, at least, in Modern Orthodox communities, there is no minhag haMakom, at least for issues such as these. Perhaps there is a minhag haMakom to say the bracha for the State of Israel, but no one has a minhag haMakom to avoid kitniot, or else even Sefaradim wouldn’t be allowed. In days of yore, a Sefaradi who moved to an Ashkenazi land, or vice versa, the immigrant abandoned his own custom and adopted that of his new home. Wherever there is true minhag haMakom, it is irrelevant what your father did. So the fact that Sefaradim can eat kitniot in America and Israel, shows there is no minhag haMakom, and therefore, even Ashkenazim are allowed to eat kitniot as well.

-----------------------

Update: I might note the Rabbi David Bar Hayim employs logic similar to mine - see http://forward.com/articles/104483/ and http://hirhurim.blogspot.com/2007/03/kitniyos.html. We both reject the post-Enlightenment concept of minhag haMakom (geographically-based minhag), and reject a person's individual minhag avot.

Rabbi bar Hayim's opponents (http://hirhurim.blogspot.com/2007/03/kitniyos.html) also miss the point. To quote that Hirhurim URL,

However, as Ashkenazim moved to Israel and established communities, their posekim ruled that they should not abandon their customs.

and

However, from the time that other communities became established here, they retained their ancestral customs that they brought with them from various coutnries, and they have already practiced that the entire community follows its own customs.

This misses the point. This may be true of separatist Haredi communities, that have their own binding minhagim (usually staunchly Ashkenazi, thick Yiddish accents, and long black coats), but we are not discussing them; we are discussing Modern Orthodox and Religious Zionist communities, which have mixtures of Ashkenazim and Sefardim, and no binding communal customs. Regardless of whatever separate Sefardi and Ashkenazi communities were formed in Israel, the fact remains that a Sefardi may walk in an otherwise Ashkenazi area, eating kitniot, and no one will protest. This, ipso facto, proves that there is no minhag haMakom (local custom) to avoid kitniot, whether for Ashkenazim or Sefardim, whether in Israel or America. When the Spanish refugees arrived in Ashkenazi communities, no one ever contemplated the idea that perhaps everyone should keep his own personal custom; everyone agreed that everyone should follow one local geographic custom. This concept of Ashkenazim keeping Ashkenazi custom and Sefardim keeping Sefardi, has no basis as far as I know.

So I find his thought in this area to be agreeable. For example,

Bar-Hayim argues that maintaining practices unique to Ashkenazic Jews in Israel is undesirable. By definition, he said, the Jewish state should find Jews more “united in their religious practice,” not “living here as if they are in the old country.”

and

To Bar-Hayim, the critics’ approach is irrationally attached to the past and is “not halachic,” possibly even “anti-halachic.” “Just as it is forbidden to allow what is prohibited, it is forbidden to prohibit what is allowed,” he said.

And of course, we both argue based on the fact that Israel lacks a minhag haMakom to avoid kitniot; we simply disagree on what Israel's minhag haMakom is, if not Ashkenazi, and we disagree on America.

At http://www.haloscan.com/comments/hirhurim/4952055428357433438/, commenting to http://hirhurim.blogspot.com/2009/04/kitniyos-ii.html, I said, inter alia,

Somehow, I suspect that if kitniot weren't written down by the Ramah, no one would be keeping it today. That is, it is only textual Orthodoxy that insists on kitniot, not because of any compelling reason, but because the rulebook says so, stam.

Yesterday, someone was telling me of a friend whose child has asthma. The child's inhaler prescription lapsed, and so, when the child had an asthma attack, the childcare center refused to administer his inhaler (even though the prescription lapsed, the inhaler itself was still in their possession, obviously), even though his life was in danger. After all, the prescription has expired, and according to the book, they cannot administer the medicine!

My point is that it is no longer a minhag that people actually do (and by definition, a minhag is what people do), but rather, it is a minhag that people do against their will, because the book says so. Were it not for the minhag's being written down, I'm sure that people would have by now simply stopped doing it, naturally. But the minhag has ceased to be a practice-defined minhag, and has rather become a ontological halacha that is binding irrespective of what people do.

Al tosif. [Do not add onto the mitzvot.]

Someone else ("Shimon") there replied,

Michael,

your comments remind me of Rav Eliezer Berkowitz's opinion that the codified halacha killed the torah shpb and the we became karaites of the shulchan aruch.

I replied,

Shimon, in my view, you have just paid me an extraordinary compliment. I have been greatly influenced by Rav Berkovits's thought, and I have found that this has progressed to the point that quite unintentionally, I often will say things that are, in my view, reminiscent of his thought. You here have confirmed my suspicion; I made no attempt here to imitate or follow Rav Berkovits, but apparently, I could not help myself.

At that same URL, I also enjoyed "Lisa" (http://lamrot-hakol.blogspot.com/)'s comment:

I think part of the problem comes down to the relatively modern idea that minhag follows families, rather than locations. Minhag avoteinu b'yadeinu has never meant that the halakhot you keep should go by what your great-grandfather did in Prague.

We live in a crazy time in Jewish history, where people are told that they have a halakhic obligation to speak in Ashkenazis if their father did. Where it actually matters what part of Europe my great-great-great grandfather lived in.

You know, R' Bar Hayim can trace his ancestry back to the Spanish Expulsion. When his ancestors left Spain, they wound up in Ashkenazi areas. So they took on Ashkenazi customs. Because that's what you do.

In modern times, Jews migrated both to Israel and to America in huge numbers. And they went to areas that had no prior Jewish community. So it was decided that they should maintain their community minhagim until a central beit din would make a determination.

No one ever intended this lunatic situation to continue on indefinitely. I mean, Chazal say "in order that the Torah not become like two Torahs." Halevai that it should be like only two Torahs.

And quite frankly, the fact that people are complacent about the shattering of Klal Yisrael into "kehillot ha-kodesh" is probably worse than the shattering itself. We're one nation. When we were scattered the world over without any real ability to communicate in real time, there was some sense to this, but for it to continue today... well, pardon me if it seems like the heads of each community simply want to hold onto their power. I see no lishma here whatsoever.

I also very much enjoyed Lisa's comments. Her comments, with brackets before each line, followed by my response, unbracketed:

> Halakhic customs (minhagim) are not
> hereditary. They are geographic in
> nature, and not dependent upon your
> ancestry.
> ...
> When Jews go to a new place, they
> should follow the minhagim of the
> new place. If there isn't an
> already established community, they
> should obviously keep the Torah,
> but they have no obligation to
> maintain any customs that were
> unique to the place they came from.


AMEN.

> If their rabbanim determine that
> customs which were kept in the old
> country are pertinent to the new
> country, they can always
> reinstitute them in the new country
> (of course, this refers to a case
> where no established community
> already existed).

Beautiful. I've said that the Sephardi countries (Morocco, Algeria, Turkey, Greece, etc.) were all "Sephardi" insofar as they consciously and deliberately reinstituted the customs of Spain; NOT because the customs of Spain automatically applied by heredity.


> This is all a part of the cultural
> sickness within the Jewish people,
> where we try and wrap ourselves in
> prohibition after new prohibition,
> like some sort of conceptual
> bullet-proof vest. The Chumra-
> ization of Judaism is not
> protecting us. It's driving our
> children away. It's so utterly
> foreign to Judaism that words
> simply can't express it.
>
> When I hear about crazy new chumras > and bans, all I can think is, "Give
> me my religion back!"
>
> ... Judaism is a sane religion. A
> religion that prizes the intellect,
> as opposed to so many others which
> dismiss or condemn it. It makes me
> physically ill to see scared people
> trying to turn us into another
> medieval superstition.
>
> Lisa - http://lamrot-hakol.blogspot.com/

Rabbi Yom Tov Schwarz, in his Eyes to See, devotes a chapter to the fact that the essence of the Jewish people is a perspicacious and audacious search for the truth. Avraham smashed the idols and defied his whole generation, and we distrusted Moshe and G-d, because, as Rabbi Schwarz explains, the nature of the Jewish people is a stubborn and staunch refusal to accept anything without rational and intellectual verification.

I've noted that whereas Avraham went out and smashed the idols of his age, Haredism today is afraid of the world's knowledge, and tries to shy away and build barriers to protect itself, in cowardice.

I've also said that Haredism has extinguished my eish-dat.

Tzniut: Married Orthodox Woman Covering Her Hair (or Not)

Shimshonit, discussing her being Orthodox, but not covering her hair, at http://shimshonit.wordpress.com/2009/03/22/tzniut/.

I found her comments to be very interesting indeed. There, I comment as follows:

Shimshonit: very interesting post.

I was recently reading Rabbi Avraham Shamma's heter on kol b'isha (see http://michaelmakovi.blogspot.com/2009/02/kol-bishah-new-analysis.html), where, inter alia, Rabbi Shamma quotes the Maharam Alkashar, a Spanish refugee, as saying, "Response: Indeed, there is no concern about that hair [that is outside of the braid], because it is customary to reveal it ... and that [which is said] ‘a woman’s hair is a sexual enticement’ is only referring to hair that it is usual to be covered, but a person is accustomed to that which is usually uncovered [and therefore is not aroused] and it is permitted ... Likewise, the Ravya”h [of 12th-13th century Ashkenaz] wrote that all those [things] that we mentioned for [concern about] sexual enticement are specifically for things that are not customarily exposed, but an [unmarried] maiden who customarily has exposed hair – we are not concerned about sinful thoughts. ... all is according to the customs and the locations."

According to this, there'd be no basis to cover our hair at all today. So many gentiles and non-religious Jews leave their hair uncovered, that the religious Jews are by now inured to this, and there is no longer any sexual enticement. Already, the Aruch haShulhan has ruled that a woman's uncovered hair is not an impediment to a man's saying Shema, since he will not be enticed.

Thus, we can eliminate reasons 3 and 4, viz. enticement and saving the hair for the husband. But what of 1 and 5, viz it being an unequivocal halacha that pleases G-d, etc., regardless of enticement?

The Maharam Alkashar would say that 1 and 5 are simply false; he'd say that then need to cover hair is based exclusively on enticement, and the absence of enticement nullifies the law.

But the Aruch haShulhan holds that the two are separate; covering hair is an unequivocal law, that is not based on any enticement, and that because women followed this law, it eventually lead to a separate enticement issue. The absence of the enticement issue today, however, does not nullify the law of hair-covering itself. In his ruling that uncovered hair does not prevent Shema anymore (due to lack of enticement), he continues on to note, vociferously in fact, that women are in fact sinning by not covering their hair.

Moreover, I'd personally say that even if the Maharam Alkashar is correct, nevertheless, there is a minhag haMakom to cover hair, regardless of any intrinsic halacha or sexual enticement. Religious women cover their hair, and this is a minhag, even if not a halacha.

Most follow the Aruch haShulhan, obviously. But I'd say that even if he is correct, we should realize two things:
(1) There is still a significant opinion that hair covering depends only on enticement, and nothing else. Even if (hypothetically) this is a minority opinion, it is a strong minority opinion, and we shouldn't criticize women who follow it.
(2) Even if a woman IS sinning by not covering her hair, even if the Aruch haShulhan is the only valid opinion, even if my theory of minhag haMakom in this is correct, nevertheless, we should judge a person's religiosity by what he does in general. If you keep Shabbat and kashrut and taharat haMishpaha and tzniut, etc., in general, and you are generally a G-d-fearing Torah-observing individual, we should cut you some slack; no one is perfect. It is wrong to let one mitzvah be a deal-breaker, especially one such as this. It should depend on (1) the halachic severity of the mitzvah (Shabbat is ontologically more important than most mitzvot, for example), and (2) the sociological significance (keeping kosher and Shabbat is almost a badge of being Orthodox, and breaking them is tantamount to a conscious and deliberate declaration of non-Orthodoxy).

We should not scoff at the idea that a sociologically-bound mitzvah is nevertheless binding even when the reason no longer applies, as the Aruch haShulhan has it here. For example, Rambam says many mitzvot are designed to combat idolatry, including the entire system of sacrifices. But no one would suggest that the lapse of classical polytheism negates these mitzvot.

--------------------------------------------------------------
Update:
--------------------------------------------------------------

I'd like to note one thing: although my opinions tend to be lenient, and tend to create permissions rather than obligations, this is not always the case; I am not, G-d forbid, trying to blithely erase the difficulty and grandeur of being a Torah Jew. Rather, I simply take my opinions to wherever they lead. Case in point: at http://michaelmakovi.blogspot.com/2009/03/minhag-hamakom-or-avot.html, I argue, based on the concepts of minhag avot and minhag haMakom, that Ashkenazim today are permitted to consume kitniot. However, one will have seen above that based on the exact same concept, I conclude that even though a woman unconvering her hair is no longer erva (sexually immodest anymore), it is nevertheless a binding minhag on all Orthodox women. That is, even if the lenient opinion is correct, that there is no tzniut (sexual modesty)-related obligation (at all, whatsoever) today for women to cover their hair, nevertheless, I argue that it is still a minhag today for Orthodox women to cover their hair. I have applied my minhag opinion universally, whether this leads to a stringency or to a leniency.

In the comments section below, "Skeptic" notifies me of Professor Marc B. Shapiro's "Another Example of Minhag America", http://www.jofa.org/pdf/Batch%201/0060.pdf. This article comes to the exact same conclusion as the Maharam Alkashar, and Professor Shapiro tells me that as far as his memory serves him, Rabbi Isaac Hurewitz (about whom the article is) relies on the Maharam Alkashar in his reply to the controversy (not cited in Professor Shapiro's article).

Also, there is a particular opinion, controversial to be honest, which has made the rounds, particularly in the writings of Rabbi Marc D. Angel. Rabbi Angel, in an interview with the Jewish Press (http://www.urimpublications.com/Merchant2/merchant.mv?Screen=PROD&Store_Code=UP&Product_Code=Search), regarding his new novel, The Search Committee:

JP: In the book, Mrs. Mercado [the wife of Rabbi David Mercado, the book's protagonist] says women no longer need to cover their hair. Is that your opinion?

[Rabbi Angel answers] My opinion is that there are various opinions on the subject. There's a wonderful teshuvah by Rav Yosef Messas (a great Moroccan rabbi and later chief rabbi of Haifa). He says that not only do married women not have to cover their hair but that they shouldn't cover their hair. First of all he's 100 percent against a sheitel because it looks better than a woman's own hair. And to cover with a snood, hat, etc. is not healthy, he says, because they will become less attractive to their husbands who constantly see women with uncovered hair in the streets.

Not too many poskim follow him; he's a yachid. But when I was a kid there certainly were many rabbis' wives who didn't cover their hair. So, I'm not giving a psak. I'm saying there are different opinions.

In Rabbi Angel's book, Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel, we find the following on page 183. Whereas Rabbi Uziel was strict on women's hair covering, holding like the Arukh haShulhan that it is still obligatory,

Rabbi Yosef Messas, writing in Meknes Morocco in 1955, responded to a questioner who wanted to know the halakhic justification of wives of religious functionaries who kept their hair uncovered (Mayyim Hayyim, vol. 2, no. 110). The question made clear that even the wives of the most traditional and most learned members of the community no longer followed the age-old practice of hair-covering. Rabbi Messas, unlike Rabbis Israel and Epstein [previously cited] of the previous century, did not condemn the new practice. On the contrary, he viewed the rulings on hair covering to be in the category of custom rather than law. Since in olden times all women - Jewish and non-Jewish - kept their hair covered, our sages felt that any woman who did not follow this style was to be judged as being immodest. "However, since in our time all the women of the world have voided the previous practice and returned to the simple practice of uncovering their hair, and there is nothing in this which constitutes brazenness or a lack of modesty ... therefore the prohibition of uncovering one's hair has been lifted."

"Orthodoxy, Then and Now", by Dr. Yitzchok Levine

"Orthodoxy, Then and Now", by Dr. Yitzchok Levine, at http://www.jewishpress.com/pageroute.do/38591/

An absolutely vital article, a must-read.

I there respond:

Regarding the humanization of Orthodoxy and the depreciation of yashrut, I'm particularly a fan of Rabbi Marc D. Angel's works, and I'll refer to him on these matters, for words more eloquent than mine. Suffice it to say, Dr. Levine's quotations of Rav Hirsch, resound within me. As Rav Hirch was fond of noting, "Glatt kosher? Glatt yoshor". If the sine qua non of being Jewish is (as Rav Hirsch has it, in turn as interpreted by Rabbi Shelomo Danziger and Dr. Judith Bleich), tikkun olam, i.e. of the building of mankind's socio-political reality under the aegis of G-d's kingdom, I fail to understand how anyone can undervalue derech eretz. If one discards that which the mitzvot are intended to engender, of what use are the gufot of the mitzvot? Whether one follows Rambam that the mitzvot are utilitarian, engendering the Mean and correcting certain historical behaviors of man, or whether one follows Rav Hirsch that the mitzvot have pedagogical and symbolic lessons, the fact remains that it is an inescapable conclusion that the mitzvot bein adam laMakom, divorced from the mitzvot bein adam l'havero, the former have very little value indeed. As Rabbi Joseph Telushkin (quoting his friend Dennis Prager) and Rabbi Benjamin Blech (following the Midrash) put it, G-d would much rather that His children have peace with each other and war with Him, than vice versa - any human parent would agree, the respective punishments of the Mabul and Babel corroborate this, and the midrash on Yeremiyahu explicitly states this (saying that G-d would be thrilled if we kept His Torah, even if we denied belief in Him).

But aside from this...

I did not grow up Orthodox, but I was always taught, NEVER refer to elders by their first names. I have "Mom", "Dad", "Grandma", "Grandpa", "Bubbe", "Zeide", "Aunt Marti [her first name]", and "Uncle Paul [his first name]". NEVER would I even contemplate referring to any of them by their first names. I am now 21 years old, and I've wondered at what age I'll be allowed to refer to non-relatives by their first names. But in the meantime, I still refer to everyone above 35 or so, by their first names.

Religious/Political Right-wing Martial Ideology, and Disregard of Gentile Life: A Link?

Regarding Ethan Bronner's "A religious war within the Israeli Army", http://www.iht.com/articles/2009/03/22/africa/22bronner.php#, March 22, 2009, in the International Herald Tribune:

This article's observations often have a core of truth, but nevertheless, one feels that matters have been painted in an overly simplistic dichotomous manner, which obfuscates the truth.

Rabbi Rontzki is criticized for making a slogan out of "He who is merciful to the cruel will end up being cruel to the merciful." One is hard-pressed to determine why he should be criticized for this. This aphorism originates in the Talmud, with regard to King Saul, who neglected to execute the enemy king of the Amalekites, and who (viz. King Saul) later proceeded to murder an entire town of innocent kohanim (Jewish priests), due to their non-political collaberation with King David, then a rival to the throne. Would anyone dare suggest that King Saul should have executed these innocent priests? Similarly, today, we see that often, the same political elements in Israel today that negotiate with the Palestinians, are often the same to release unrepentant terrorists, who (viz. the terrorists) solemnly swear that they will not hesitate to commit further terrorist acts upon their release. However much one criticizes this aphorism, it cannot but ring true. In the world at large, we see that the most vocal criticism of Israel, peculiarly emanates from those who are silent on Arab atrocities in Darfur. If one aids the wicked, he shall soon condemn the innocent.

Rabbi Rontzki is cited, "He has also said that the main reason for a Jewish doctor to treat a non-Jew on the Sabbath, when work is prohibited but treating the sick and injured is expected, is to avoid exposing Diaspora Jews to hatred." Now, it is true that one may certainly find sources for such a notion in Jewish tradition, but nevertheless, the foremost Orthodox Jewish authorities of recent times (including Rabbi Samson Raphael Hirsch (the father of German Modern Orthodoxy), Rabbi Yehiel Yaakov Weinberg, Rabbi Yitzhak Herzog (the late Chief Rabbi of Israel), Rabbi Avraham Yitzhak haKohen Kook (the ideological father of the Israeli "settler" movement), and others, according to Yeshiva Univerity's Rabbi Dr. David Berger in "The Egalitarian Ethos") have all ruled unambiguously (following the Medieval Provencal authority, Rabbi Menahem haMeiri) that any Talmudic discriminations against gentiles, all apply only to ancient immoral heathens, of the sort that would commit murder, incest, thievery, and the like, and they do not apply to contemporary gentiles. Rabbi Nahum Eliezer Rabinovitch (of the Hesder Yeshiva of Petah Tikva; "hesder" means the students also serve as religiously and politically right-wing soldiers, of the sort that this article criticizes) and Rabbi Shlomo Riskin (current Chief Rabbi of Efrat) have both ruled like Nahmanides (Rabbi Moshe ben Nahman, Medieval Spain) that the duty to violate Shabbat to save a life applies to Jews and gentiles alike, and Rabbi Immanuel Jakobovits (late Chief Rabbi of Britain, based on Rabbi Isser Yehuda Unterman, late Chief Rabbi of Israel), has ruled (based on some peculiar legal hermeneutics that need not detain us here) likewise, that there is no logic to sustain the opinion that one would do anything but violate Shabbat for a gentile's life. Thus, one would be hard-pressed, within the confines of Orthodox Jewish law, to sustain the notion that one should not save a gentile on Shabbat. Nevertheless, the same religious Jews who obey this law to save a gentile on Shabbat, are the same religious Jews who see it as a sacred mission to defend the land of Israel from its enemies. There is little connection between saving a gentile on Shabbat and being (or not being) a political hard-line right-wing "settler"; the same who will save any gentile on Shabbat, are the same who will go to war to fight for Israel's safety from its enemies.

It is said "The religious left argues that the right has made a fetish of the land of Israel instead of letting life take precedence, he [Professor Moshe Halbertal] said. The religious left also rejects the messianic nature of the right's Zionist discourse, and it argues that Jewish tradition values all life, not primarily Jewish life." There are several major flaws in this statement. (However, the quote is correct regarding messianism, I will concede.) First, the religious right's ideology is not based only on value for the land per se, but also based on value for life and human sanctity. The Talmud and Shulhan Aruch (the Code of Jewish Law) rule, that if an enemy attacks a Jewish *border*-town, with intent only to *plunder* and not to kill, one is nevertheless to mount a military defense, even on the Shabbat. On the other hand, if the enemy attacks to *plunder*, but within the *heart*-land, not on the *border*, no such defense is to be mounted on Shabbat. The rationale given for all this, is obviously not one of sanctity for the land, for sanctity of the land would dictate defending both borderlands and heartlands equally. Rather, the rationale is that attacks on the border (as distinguished from attacks on the heartland), even only for plunder, are particularly liable to compromise material security of the land, especially its borders, in turn ultimately leading to loss of life in the case of future attacks. In other words, any compromise on borderlands is liable to lead to loss of life, since a strong defense against the enemy, demands strong and secure borders; compromising on borderland will enable future military attacks on civilian targets. On the other hand, attacks for plunder within the heartland will not to inexorably lead to loss of life, as they do not enable external military invasion. A hard-line martial ideology is upheld, not for reasons of holiness of the land qua land, but rather, for reasons of the sanctity of life.

[Update: See http://michaelmakovi.blogspot.com/2009/04/halachic-sources-re-gush-katif.html, the end of page one, for a similar argument. The author there notes that this halacha of defending against plunder, was written regarding the Jewish settlement in Babylonia. Nevertheless, it commanded Jews to defend the border-zone, based on fear of threat to human life. As there is no sanctity to Babylonia, the argument cannot be a fetishist reverence for the holy land per se.]

As for the accusation that Jewish tradition values all life, and not only Jewish life, this is very true. But surprisingly, religiously right-wing Jews follow Jewish tradition as well! The political-right, which in Israel, is largely religious, is motivated not by hatred of the gentile qua gentile, but rather, by hatred of the wicked qua wicked. Israel's enemies are usually gentiles, but this is purely coincidental; were a Jew to detonate an Israeli cafe, he would be vilified as surely as any Arab terrorist is. The terrorists' being gentiles is purely coincidental; all criticism voiced by the Israeli political/religious-right, is voiced only at those who commit or support the terrorist acts, and not at non-Jews per se. A noted religious-right hardliner of previous days, would often note that he has nothing against Arabs per se; he explicitly upheld the Talmudic rule of the "ger toshav", the non-Jewish resident of Israel, who is allowed to live in Israel. The Talmud even mandates that Jews contribute charity to support his, the non-Jewish resident's, material welfare! This authority noted extremely explicitly, that all his words were directed at Arabs who commit and/or support terrorism, and no one else. If the religious-right ever speaks of the "Arabs" or "Palestinians", it is to be taken for granted that the target is specifically those Arabs and Palestinians who commit terrorist acts, and not those who are innocent. And obviously, it goes without saying that any the recent operation in Gaza, was intended to kill only terrorists, not the innocents. Any deaths were due to accidents or oversight by the leadership or the individual soldiers (as the case may be), but they were not ideologically motivated by any agenda against innocent Gazan civilians. Their deaths are tragic, and perhaps even due to mistakes and negligence by Israel (investigations are required), but they were not deliberate, and certainly they were not ideologically motivated.

To summarize, this article is utterly incorrect in attributing the religious/political right-wing's martial zeal to lack of care for human, particularly gentile, life. A concern and appreciation for human (including gentile) life, does not contradict a right-wing martial ideology. In fact, the right-wing claims that its martial zeal is due to a concern to protect human life; "He who is merciful to the cruel will end up being cruel to the merciful." He who is soft on terrorism, will ultimately succumb to inhumane treatment of the innocent.

Michael Makovi
Jerusalem, Israel (formerly of Silver Spring, MD, USA)
The author is a student of Machon Meir, a religiously and politically right-wing "settler" yeshiva (seminary) in Jerusalem. I have not served in the IDF, but I am known as one of the more right-wing students in my school, and the most outspoken supporter of the IDF's actions. I was also an honorary member of my American public high school's Muslim Student Association, thanks to a letter I wrote in the Washington Post about the need to respect Muslims. Religio-political right-wing ideology, and respect and appreciation for non-Jews, are not mutually exclusive.

WIG's Nadia Matar Re: Abbas/Fatah: She's Got Her Head on Straight

To quote (unabashedly without commentary) two recent articles from Arutz Sheva / Israel National News, regarding Women-in-Green's Nadia Matar.

(As an aside, I'll note that in any photo of me involving my right hand, including the above blog photograph of me, one will note an orange Women-in-Green bracelet, declaring, ארץ ישראל לעם ישראל "The land of Israel for the people of Israel".)

Nadia Matar in New York: Kill Abbas

Activist Nadia Matar told a fervent pro-Israel crowd in a New York City synagogue Wednesday night that Israel must kill all the terrorist leaders, starting with Mahmoud Abbas.

"Today we must destroy all the terrorist organizations. We must kill all the terrorist leaders, starting with Mahmoud Abbas, and all others," she said in a speech at the Edmond J. Safra Synagogue.

"Nobody had any moral qualms at destroying the Nazi regime," she told an appreciative audience. "We have to abolish the Oslo Agreements; there is no difference between the PA, the Islamic Jihad, the Hamas, whatever names you have. They are all terrorists and we cannot have peace with them."

(Abbas, whose terrorist name is Abu Mazen, bankrolled the murder by terrorists of 11 Israeli athletes at the 1972 Olympic Games in Munich. He also has writen a thesis supporting the denial of the Holocaust, frequently has said that violence must be used if diplomatic pressure does not succeed in establishing a new Arab country with mass immigration of foreign Arabs into Israel.)

Nadia Matar: No Difference Between Hamas and Fatah clarifies:

Women-in-Green Cofounder Nadia Matar said Sunday that a remark that she made after a New York speech last week in which she called to eliminate Palestinian Authority chairman Mahmoud Abbas was a plea to the judicial system and the IDF, and not a call for people to take the law in their own hands. In response to a question from the audience, she said that Israel should not differentiate between the Hamas and Fatah terrorist organizations or their leaders.

The Gush Etzion-based nationalist leader stated, "Clearly I was talking about the need to bring Abbas and other terrorists to justice for crimes against the Jewish People and humanity as the job of the government of Israel and not of any private individual as some malicious e-mails are trying to claim through distortion and defamation."

Matar said that Israel should not differentiate between Hamas, which the United States has outlawed as a terrorist organization, and Fatah (headed by Abbas), which the United States, the Olmert government and most media call a "moderate." [My, i.e. Michael Makovi's note: Orwellian Newspeak, anyone?]

"Must we remind our public that Mahmoud Abbas was the financier of the Munich massacre of the Israeli athletes; a man whose doctorate from Moscow University consisted of outright Holocaust denial; a man who has for decades been a close aid to the mass murderer Yasser Arafat and an active figure in the terrorist PLO hierarchy."

Noting that Abbas frequently has called for violence if diplomacy does not work for his conditions for a new Arab state within Israel’s current borders, she said Abbas and other terrorists leaders should be brought to trial or targeted by the IDF.

My mother has said that she hates to hate any human being, but that the Palestinians make this awfully difficult. To paraphrase Golda Meir, we can perhaps forgive the Palestinians for hating us, but we cannot forgive them for forcing us to hate them. The Palestinians have robbed us of moral naivety and innocence; I hate to have to declare that any human being deserves to die, but vermin like Abbas have robbed us of this purity. For this, I cannot forgive his ilk. As Rabbi Benjamin Blech points out in his Understanding Judaism, We don't want to be "Yisrael" [G-d's warrior]; we just want to be "Yaakov" [Jacob], the ish tam [simple man] dwelling in tents.

A Challenge from Reb Zalman Schachter-Shalomi

A Challenge from Reb Zalman Schachter-Shalomi

My response:

Reb Zalman Schachter-Shalomi writes, "So my challenge to my friends in your camp is that while we want to get rid of superstition, we must be aware of the new emerging cosmologies that point to spiritual realms beyond our own physical one. Ideas contained in the Kabbalah should be taken seriously. Without a vital and irrational weekday prayer life, connected with the living God, observance will not be a sustainable part of the life of the people who participate in centrist Orthodoxy."

Now, I might disagree with his insistence on Kabbalah specifically, I myself, at least, am highly skeptical and suspicious of anything Kabbalistic. That is, I, like Rav Hirsch, question whether Judaism properly will deal with anything theosophical or thaumaturgical.

Moreover, Rambam and Rav Hirsch (according to the interpretation of Rabbi Shelomo Danziger), and the rest of the rationalist school, would not have held by anything Kabbalistic per se, in terms of their davening kavanot. Rambam obviously did not have (or, at least, did not accept as legitimate), what we today would call Kabbalah, while Rav Hirsch treated Kabbalah like we treat the Midrash Rabbah, as an allegory. (Dr. Nachum Klafter has pointed out that Rav Hirsch is similar to an ikkar b'tachtonim [temporal and material, this-worldly] interpretation of Habad, while similarly, Rabbi Aryeh Carmell, following Rabbi Dessler, believes Rav Hirsch interpreted Kabbalah as a metaphorical analysis of psychology.)

Nevertheless, the rabbi is certainly correct that we do need to have some otherwordly sense of G-d's presence, beyond the mundane physicality of this world. Now, there are caveats to this; Dr. Klafter has pointed out that to a rationalist like Rabbi Hirsch, material actions in this world *are* spiritual; to give tzedaka to a poor person, is as metaphysically transcendent as a mystic's meditation. But however one achieves it, one certainly must have some sort of spiritual connection with G-d, by whichever means and route one finds appropriate for himself. One way or another - whether by deed, by meditation, by study, by prayer - one ultimately must feel that G-d and he have some sort of relationship. (I'll prefer to see the deed as the highest connection to G-d; as a Habad rabbi I heard yesterday put it, if G-d's will and His essence are one, then by doing mitzvot, fulfilling His will, and making His will into our will, we are actually joining with G-d Himself, if one can speak in such a way. I'd also see tikkun olam, the practical temporal and material rectification of the physical and sociological reality, as His highest aim; as that same Habad rabbi put it, "hitava Hashem dira b'tachonim" [Hashem craved for a dwelling place in the lower worlds], and, as Rav Hirsch is fond of noting in connection with the sanctification of mundane physicality, "ikkar shechina b'tachtonim" [the Shechina principally rests among the lower beings]. As Hazal put it, "sanctify yourself with that which is permitted to you", by using the mundane for holiness, as Rav Hirsch and Rav Kook alike emphasize.)

So I would disagree with Rabbi Schachter-Shalomi that this must all be Kabbalistic, but I agree with him that one way or another, we must have some sort of spiritual connection with G-d. The danger he points out is real; if we spend too much energy combating superstition and intellectual obscurantism, we are liable to become overly critical, overly intellectual, and overly skeptical.

I myself am naturally not a very spiritual individual in the first place (I was attracted to Orthodoxy due to a combination of intellectual "ethical monotheism", as well as loyalty to tradition, but not due to any spiritual or "religious" feeling), but I feel that my constant battle to discern obscurantism and parochialism and chauvinism and ignorance in the Orthodox world, has caused a sort of auto-immune reaction in myself; I am almost afraid, I think, to feel anything spiritual or religious, for fear that this will descend into emotional and intellectually-unsound charismatic cultism, of the sort that pervades Orthodoxy today. That is, I am so afraid of becoming overly superstitious and irrational, that I have fled in the opposite direction. Part of this is due to my inborn inclination (I have joked that if I weren't Orthodox, I'd be an ultra-left secularist; meanwhile, my rabbi likes to jokingly make fun of me for my Yekke-ish emotional distance), but part of it is due to overcompensation, to avoid that which I fear. Rabbi Shechter-Shalomi observes, "When I read your [Rabbi Angel's] article in Conversations 3 that dealt with superstition, with which I agree in the main, I felt the absence of a devotional approach to prayer.", and I believe his observation has much truth in it, based on my own personal experience.

Genesis Chapter One and Science

At http://www.haloscan.com/comments/hirhurim/2039419467877581369/?a=51825 Nachum said,

There's a nice picture used in various books- the Anchor Bible Dictionary, Nahum Sarna's books, etc.- that shows how the ancients saw the universe. We're going to have to face facts and realize that they literally believed in a dome that covered the Earth which constituted the "sky." They believed this for thousands of years before the Torah was written. That's the "firmanent" which the Torah speaks of.

And it doesn't exist.

Micha replied,

The post-Kantian approach would be to say that the raqi'os [hemispherical firmaments] are that which we perceive as those great spheres, and their actual nonexistence doesn't impede us from talking about them. We are demanding a level of scientific orientation we don't demand from the weatherman when he tells us when "the sun will rise tomorrow".

My reply is as follows:

(1) Approach Number One: The Six Days Were Non-Temporal; Creation in "Thought" and "Deed"
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One tantalizing approach would be something along the lines of Rambam, i.e. a non-temporal hierarchical "mental" establishment by G-d. That is, the six days of creation were NOT in time, and nothing "happened". The six days occurred in G-d's "mind" (so to speak), and were essentially His mental creation of natural law. Afterwards, He instantiated the natural laws of science, and these laws inexorably went on their way, creating the world as we know it. See David Guttmann, "Miracles in Rambam’s Thought—a Function of Prophecy", Hakira vol. 3:

It would seem that Rambam understands the first days of creation not as describing temporal events but rather as a hierarchical and sequential description of the causes and effects that make up the physical universe.[23] We would therefore translate the first verse - the principle[24] underlying the creation of heaven and earth from nothing is the system of causes and effects described in the following verses. The differentiation or the actual coming into existence is a subsequent, possibly ongoing, process.

[Quoting Rambam in Moreh 2:30] They have compared this to what happens when an agricultural laborer sows various kinds of grain in the soil at the same moment. Some of them sprout within a day, others within two days, and others again within three days, though everything was sowed at the same hour.[25]

The Divine will, which has within itself these laws that brought about physical existence, is described as sowing.[26] The image that comes to mind when using the term "sowing" is the placement of a seed in the ground. Once the seed is placed, the plant grows on its own. By sowing, man causes plants to grow just as the Divine will is the cause of Creation. The subsequent six days reflect the sequence of cause and effect that bring about the development, in actu, of that original Divine will. As the laws of nature are activated, there is a sequence of events where one event causes another. ... Rambam understands that the six days of creation reflect the sequence of cause and effect that end up in the actualization of our current universe.

23: R. Moshe Narboni understands Rambam this way as do Abarbanel, Shem Tov, and Ralbag. See Klein – Braslavy, p. 246.

24: Pines translates, "origin." The idea is that rather then seeing nature as a series of unrelated events possibly brought into existence independently by God, the universe exists as a result of a sequential cause and effect system where everything is interrelated, self-generated and self-regulating.

25: For a detailed discussion of this quotation and the whole issue see Perush ha-Rambam le-Sepur Bri’at ha-Olam by Sarah Klein – Braslavy, Tel Aviv, 1992, pp. 229 - 259.

26: Abarbanel, Narboni and Shem Tov understand sowing as total creation. They explain Rambam as saying that the entire universe was created in an instant and that the days refer to causal relationships and not time. However, the words “gradually all things became differentiated” indicate that after the instantaneous creation there was still an evolutionary process. I prefer to see instantaneous creation as the simultaneous inception of all the laws of nature which then brought physical existence into actuality in an evolutionary process. We need to look at Rambam as a guide on how to read the Torah and make it conform to reality and not be rigidly bound by the philosophy of his day. See Sarah Klein - Braslavy (above) for different interpretations.

One advantage of using Rambam in this, is that it solves the problem of Genesis chapter one being "out of order". That is, the Torah has birds preceding insects, and other such scientific difficulties. So if we say the six days were physical and temporal, then we have the problem of flying creatures preceding creepy-crawlies, etc., is quite difficult. But, if we say, following Rambam, that the six days were not temporal, and were only mental, then we can say they are out of order, because sof ma'aseh b'mahshavah tehila [last in deed, but first in thought]. I believe this is Rabbi Slifkin's approach; he says the six days are a hierarchy, in order of importance, not in order of their actual physical temporal creation.


Rabbi Aryeh Kaplan also suggests this approach, in his lecture on Shitat Sefer haTemuna. He first offers one possibility, viz that between "In the beginning G-d created" and "The spirit of G-d was hovering", the tohu v'vohu (chaos) existed and developed for 15 billion years, with multiple worlds created and destroyed in the interim. He bases this on the Kabbalistic work Sefer haTemuna, which posits that the world will exist for seven shemita (Sabbatical) cycles, each of which is 7000 years long. Thus, the world will exist for 49,000 years (7 cycles * 7000 years per cycle). Today, we are in the sixth cycle, 5769 years into that cycle's 7000 years. Thus, today's year would appear to be 40,769 (5 cycles * 7000 years each + 5769 years of the 6th cycle's 7000 years = 40,769). However, Rabbi Kaplan then adds another point: according to Psalms, one of G-d's days is 1000 of our years. Therefore, since there are 365.25 days per year, one of G-d's years is 365,250 of our years. Assuming that Genesis is using Divine years and not human years, each shemita (Sabbatical) cycle of 7000 years is actually (7000*365,250) 2,556,750,000 (2.5 billion) years long. Today, we are in the 5,769th year of the sixth cycle, so today's year is 12,783,755,769, i.e. 12 billion years (5 cycles * 2,556,750,000 years per cycle + 5769 years of this present sixth cycle's 2,556,750,000 years).

[Rabbi Kaplan's final figure differs; in the end, his calculation is that today is the year 15,340,500,000, i.e. 15 billion years. However, his calculation appears to me to be in error. He multiplies 6 cycles * 7000 Divine years per cycle * 365,250 human years per divine year to get 5,340,500,000. However, I protest: today is not the end of the sixth cycle, i.e. year 42,000. Today, we are only 5769 human years into the sixth cycle. Therefore, our calculation must be (5 cycles * 7000 *Divine* years per cycle * 365,250 human years per divine year) + 5679 years of the sixth cycle, which is 12,783,755,769.]

But to this whole approach, Rabbi Natan Slifkin objects in his own works, saying that according to this, the six days of creation of our present sixth Sabbatical cycle (starting at "The spirit of G-d was hovering") happened 5769 years ago, and prior to that, was the tohu vaVohu (chaos) and 12 or 15 billion years of worlds being created and destroyed during the five previous Sabbatical cycles; if so, then apparently, 5769 years ago, at the beginning of our present sixth cycle, something spectacular happened, viz. the alteration of natural law and the recreation of the world - but science knows of no such thing. That is, Rabbi Kaplan's view suggests that the order went:
(1) In the beginning, G-d created
(2) 12 or 15 billion years of chaos, of worlds being created and destroyed for five Sabbatical cycles
(3) The spirit of G-d was hovering, 5769 years ago, at the beginning of our present sixth cycle
But science knows of nothing particularly spectacular or noteworthy happening 5769 years ago. Thus, this whole approach must be rejected, at least based on what we know today.

Rabbi Kaplan then offers another possibility, which I will quote in full:

There is also a more sophisticated approach, alluded to by the Shelah HaKadosh and a number of Midrashim.

One of the puzzles of the Torah involves the two accounts of creation. We are not speaking of what Bible critics say, since they are on a completely wrong track, and their opinion has no bearing on our discussion. But in any case, there are two accounts of the creation of man, one in Bereshis Aleph [chapter one], and one in more detail in Bereshis Bais [chapter two].

Of course, it has often been pointed out to me that in the 32 middos of Rabbi Yosi HaGalili [the 32 methods of Rabbinic homiletical exegesis], this is given as an example of middos, klal achar maaseh [a general summary after an act of many individual deeds]. Although one may think that these are two stories, they are actually one.

However, the question in Bereshis Aleph is also raised in the Gemara. In relation to Adam and Chavah, the Torah first says, "He created them male and female" indicating that they were both created simultaneously. In Bereshis Bais, the Torah says that Adam was created first, and then Chavah was created from his side or rib. This is discussed in the Gemara in Berachos, Eruvin, and Kesuvos.

Two answers are given. One is that Adam and Chavah were created as siamese twins, and then separated. The other answer that the Gemara gives is that one account is speaking of thought, and the other of deed. The first account, where Adam and Chavah were created simultaneously occurred only in thought. In action, Adam was created first. In the Gemara in Kesuvos, Daf 7, this makes a difference as to how many sheva berachos are said – six or seven.

According to this, the Torah is actually telling two different stories about the creation of man. One is discussing thought – the planning stage of man’s creation and the other is maaseh – deed. Thus, there are actually two accounts of creation.

Tosafos in Rosh Hashanah actually says that there was an entire creation in thought. Tosafos asks a question. We posken [legally rule] that the world was created in Nissan. Still on Rosh Hashanah, we say, HaYom Haras Olam, "Today is the world’s birthday." Tosafos answers that in Nissan there was a creation in maaseh [deed], but in Tishrey there was a creation in thought.

It is possible to say that the creation in thought occurred in Nissan over 15 billion years ago. Then, very much later, less than 6000 years ago, G-d created the world in maaseh [deed]. The first account was thus before the first sh’mitah [Sabbatical cycle], and the second account in this sh’mitah [Sabbatical cycle].

This is also alluded to in another Midrash which asks why the name Elokim is used in the first account of creation, and the names HaShem Elokim in the second account. The Midrash answers, “At first G-d wanted to create the world with Middos HaDin, but then he combined it with Middos HaRachamim.” (This is cited by Rashi). Thus, there is one creation with Middos HaDin, and another one with Middos HaRachamim combined.

However, we see that during the entire first account of creation, including the creation of man and the first Shabbos, the name Elokim is used. Thus we must say that Middos HaRachamim was added after the first Shabbos, and that the Torah is speaking of a second creation. But as seforim say, according to the Sefer HaTemunah, the first account is speaking of a sh’mitah of din, and the second one is speaking of our sh’mitah, which is rachamim.

There is another pertinent Midrash. We all learned at the beginning of Mishpatim that the word aleh ["these"] alone is pose les ha-rishonim – breaks off from the previous narrative. Only where the Torah says ve-aleh ["and these"], does the narrative continue. But the second account begins with the words, Aleh toldos ha-shamayim ve-ha-aretz, "These are the chronicles of the Heaven and Earth." The Torah uses the word Aleh [without "and"]. The Midrash says that this "breaks off from the previous narrative, since the previous narrative discusses tohu and bohu." Thus, the Midrash indicates that everything before Bereshis Bais is speaking of tohu and bohu. The world had only been created in thought but not in deed, so it was tohu and bohu.

But what is the meaning of "creation in thought"? For this, we must go back to my third introduction, at the beginning of this talk. I said that when HaShem created the universe, He had to create its matter with very precise and particular properties. At the very instant of creation, at the very beginning, HaShem had to create all the forces and all the properties that matter would have. He created the force of gravity, He created the electromagnetic interaction, which makes most physical and chemical reactions possible. He created the nuclear forces. He created gravity so that water would gather to one place, then He refined matter more so that plant life, animal life, and eventually, human thought, could exist.

The six days of creation therefore speak of the creation in thought, where HaShem adjusted the properties of mater in anticipation of all the things that the universe would eventually contain. Following the Gemara, the creation of man on the sixth day was creation in thought. Therefore, all six days had to be in thought (following Tosafos). This was creation in Midas HaDin, which was called tohu and bohu. This was the creation in six days that took place at the very beginning of the first sh’mitah, over 15 billion years ago. With not too much difficulty, all this can be fitted into the pesukim themselves.

(2) Another approach: The Torah is Taking Ancient Babylonian Mythology Into Account
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Nachum says that the Torah's words reflect ancient erroneous science, and Micha replies that post-Kantists would read the text as speaking from our subjective (and sometimes erroneous) human perspective.

Micha's approach is also the R' Yishmael - Rambam approach of the Torah speaking in the language of man.

Rabbi Professor Yaakov Elman pointed out to me that the Torah's order of creation follows the Babylonian Enuma Elish (http://en.wikipedia.org/wiki/Enuma_Elish).

Now, one could say like Rav Kook (Eder Hayakar, pp. 42-43, translated in Ben Zion Bokser, The Essential Writings of Abraham Isaac Kook, Amity House: Amity, New York, 1988, p. 48, "Assyriology and the Bible"), that the Babylonians got their tradition from Noah, Shem, and Ever, and this way, their writings (including Hamurabbi's Code) agree with ours on many cases.

However, one could also say (again like Rav Kook), that (Igrot 478, trans. Tzvi Feldman, Rav A. Y. Kook - Selected Letters, Ma'aliot Publications of Yeshivat Birkat Moshe, Ma'aleh Adumim, Israel, 1986, pp. 17f):

And if we find in the Torah certain things which other people think were based on the widely accepted notions of the distant past, but which are incompatible with the scientific knowledge of today, indeed, we do not know at all if today's research is absolute truth, and even if it is true, certainly there is also some important and sacred objective for which certain matters [in the Torah] needed to be presented in the commonly accepted description and not the exact one, as is plain in the spiritual concepts and in certain foundations of practice, for "the Torah provided for man's evil passions" {i.e., the Torah made certain laws as concessions to man's nature - M. M.} or "to make [its words] intelligible {by using human idioms and language usage - M. M.}," and upon all of them appears the living endearing divine wisdom.

Likewise, back to "Assyriology and the Bible", we read,

As to the similarities in teaching [between the Torah and the Code of Hammurabi], it was already made clear in the days of Maimonides, and before him in the teachings of the Talmudic sages, that prophecy reckons with man's nature, for it is its mission to raise his nature and his disposition by divine guidance, as is implied in the statement that "the commandments were only given so as to refine the nature of people" (Genesis Rabbah 44:1). Hence, whatever educational elements there were in before the giving of the Torah, which gained a following among the [Jewish] people and the world, if they only had a basis in morality and it was possible to raise them up to a high moral level - the Torah retained them.

I might note that this sort of approach heavily influences Rabbi Hertz's essays in the back of the Hertz Humash.

Rabbi Chanan Morrison, based on a letter of Rav Kook's on this subject, writes, inter alia,

...

3. The fundamental belief of the Torah is that God created and governs the universe. The means and methods by which He acts, regardless of their complexity, are all tools of God, Whose wisdom is infinite. Sometimes we specifically mention these intermediate processes, and sometimes we simply say, 'God formed' or 'God created.'

For example, the Torah writes about "the house that King Solomon built" [I Kings 6:2]. The Torah does not go into the details of Solomon speaking with his advisors, who in turn instructed the architects, who gave the plans to the craftsmen, who managed and organized the actual building by the workers. It is enough to say, 'Solomon built.' The rest is understood, and is not important. So too, if God created life via the laws of evolution, these are details irrelevant to the Torah's central message, namely, the ethical teaching of a world formed and governed by an involved Creator.

4. The Torah concealed much with regard to the process of creation, speaking in parables and ciphers. Creation - which the mystics refer to as Ma'aseh Bereishit - clearly belongs to the esoteric part of Torah [see Chaggigah 11b]. If the Torah's account of creation is meant to be understood literally, what then are its profound secrets? If everything is openly revealed, what is left to be explained in the future?

God limits revelations, even from the most brilliant and holiest prophets, according to the ability of that generation to absorb the information. For every idea and concept, there is significance to the hour of its disclosure. For example, if knowledge of the rotation of the Earth on its axis and around the sun had been revealed to primitive man, his courage and initiative may have been severely retarded by fear of falling. Why attempt to build tall buildings on top of an immense ball turning and whizzing through space at high velocity? Only after a certain intellectual maturity, and scientific understanding about gravity and other compensating forces, was humanity ready for this knowledge.

The same is true regarding spiritual and moral ideas. The Jewish people struggled greatly to explain the concept of Divine providence to the pagan world. This was not an easy idea to market. Of what interest should the actions of an insignificant human be to the Creator of the universe? Belief in the transcendental importance of our actions is a central principle in Judaism, and was disseminated throughout the world by her daughter religions. But if mankind had already been aware of the true dimensions of the cosmos, and the relatively tiny world that we inhabit, could this fundamental concept of Torah have had any chance in spreading? Only now, that we have greater confidence in our power and control over the forces of nature, is awareness of the grandiose scale of the universe not an impediment to these fundamental ethical values.

To summarize:

...

3. The purpose of the Torah is a practical one - to have a positive moral influence on humanity, and not to serve as a primer for physicists and biologists. It could very well be that evolution, etc., are the tools by which God created the world.

4. Some ideas are intentionally kept hidden, as the world may not be ready for them, either psychologically or morally.

In short:
(3) The Torah's purpose is to teach morals, not science. The "what/why" is more important than the "how". The "how" may be via evolution or in six literal days, but it doesn't matter. We are more concerned with the "what/why", that He did create the world one way or another, for a reason, and that it was good, etc.
(4) Sometimes, G-d must hide information for our own good, until we are ready for it. In the meantime, He teaches the moral truths that He wants to teach, even if this means obscuring the scientific truths. If teaching us the moral truth of creation demands "lying" that creation was in six literal days, so be it.

In any case, with all this, we will say that the Torah imitates the Babylonian creation myth, false though it may be, because that's what people knew, and (as Rav Kook points out) G-d's point wasn't to teach science, but rather, to teach morals. As Rav Kook says elswhere, whether the Torah is literally true, or whether the Garden of Eden is allegorical, is far less important than what we learn from it. In any case, we learn that G-d
(1) created the world
(2) deliberately
(3) it was tov m'od
(4) we have the mitzvah of p'ru u'rvu u'm'lu ukavshah.

Returning A Lost Object to a Gentile

A friend of mine alerted to me http://janglo.net/index.php?option=com_content&task=view&id=116949&Itemid=99999999/. There, we read

advice : someone found a bag with things inside like wallet, candies etc. that does not belong to a Jew, found in Jerusalem. It belongs to a Christian. Do I have to return it?
Opinions appreciated.
Thanks
Devora

I replied,

Absolutely you MUST return it. According to the Meiri, any Talmudic discrimination against gentiles (such as not returning lost goods), applied only to ancient heathens. According to the "gedolim", including Rabbi Yosef Eliyahu Henkin, Rabbi Yitzhak Herzog, Rabbi Samson Raphael Hirsch, Rabbi Yehiel Yaakov Weinberg, Rabbi Hayim David Halevi, Rabbi Ahron Soloveichik, and Rabbi David Zvi Hoffmann, all have ruled that the Meiri is halacha l'maaseh [practical binding law] today.

In other words, to discriminate against a Christian today, we have no warrant whatsoever. Besides, hillul hashem [desecration of G-d's name and the Jewish religion] would be enough to warrant returning it; now that you've already posted your question online (an anti-Orthodox friend of mine alerted me to your post), hillul hashem is definitely an issue.

We also learn from the Gemara, from Rabbi Shimon ben Shetah, who returned a gem to an Arab trader, that hearing "Blessed be the G-d of the Jews", is greater than any monetary gain, and overrides any halakhah discriminatory against gentiles.

See also Rabbi Ahron Soloveichik, at http://uriltzedek.webnode.com/news/rav-ahron-soloveichik-civil-rights-and-the-dignity-of-man/, who notes that in truth, there never was a permission to cheat even an ancient evil immoral heathen. Rather, as per the Meiri, cheating him was not the crime of theft (whereas cheating gentiles today IS theft), but rather, it was a different crime, viz., "The remnant of Israel shall not do inquity or speak lies" (Zephaniah 3:13).

In other words, to retain this item, you have not the slightest warrant whatsoever.

I also remember Rabbi Joseph Telushkin, in The Book of Jewish Values, saying that someone told Rabbi Telushkin that he left Orthodoxy, because his rabbi told him that a Jew does not have to return lost goods to a gentile. Rabbi Telushkin replied that this man's rabbi lied; this law only applied to ancient immoral heathens, because you cannot have a double standard in civil law (one must realize that, at least according to the Gemara, the gentiles in that time and place were quite often involved in murder, theft, adultery, etc.). But once the gentiles are willing to deal with us equitably, we have no right whatsoever to do anything less with them.

I just saw in Rabbi Dr. Yehuda (Leo) Levi's עם ישראל ואומות העולם [The Nation of Israel and the Nations of the World],

ובס' חסידים כתב (סי' שנח): "נכרי הזריז בז' מצוות שנצטוו לבני נח, הזהר מטעותן שטעותן אסור, ותשיב לו אבידה, ואל תזלזלהו, אלא תכבדהו יותר מישראל שאינו עוסק בתורה".

[My translation: And in Sefer Hasidim, par. 358: "A gentile who is punctilious in the Seven Noahide Laws, be careful [not to benefit from] his mistakes, for [benefiting from] his mistakes is forbidden. Return his lost objects to him, and do not scorn him, but rather honor him more than a Jew who does not keep the Torah."

...

ועי' בתורה תמימה (דברים כ"ב ג' ס"ק כ"ב ופרק ל"ג ס"ק ג') שכתב: "כל המפרשים כתבו בכלל הדין הזה [היתר אבידת הגוי] דאיירי בעובדי אלילים הפראיים" ומצא מקור לדבר בגמרא (ב"ק ל"ח.): "ראה הקב"ה שאין האומות מקיימות ז' מצוות, עמד והתיר ממונן... אבל אלה המקיימים ז' מצוות, והם רוב האומות שבזה"ז ובכל המדינות הנאורות (!) נעלה על כל ספק שדינם שוה בכל לישראל".

[My translation: And see in Torah Temimah [R' Baruch Epstein, the son of the Aruch haShulhan], where it is written: "All the commentators have written that this law [viz. returning a lost good to a gentile] is referring to uncouth and uncivilized idolaters", and he found a source for this idea in the Gemara (Bava Kamma 38): "G-d saw that the nations of the world were not fulfilling the Seven Noahide Laws, so He made their money permitted to Israel ... but those [gentiles] who keep the Seven Noachide Laws, and they include most of the nations in our day, in all the enlightened nations, there is no doubt that their law is like that of a Jew".]

Secular Legalists On Jewish Law, And: Saving a Gentile on Shabbat, Agunot

Speaking of Noah Feldman's infantile diatribe in the New York Times, where Feldman noted, among things, that halakhah, but for apologia and amoral utilitarian legal correctives, mandates abandoning a gentile to die on Shabbat, Rabbi Dr. Norman Lamm replies (http://seforim.traditiononline.org/index.cfm/2009/1/28/Marc-B-Shapiro-Thoughts-on-Confrontation--Sundry-Matters-Part- quoting http://www.forward.com/articles/11308,

Surely you [Noah Feldman], as a distinguished academic lawyer, must have come across instances in which a precedent that was once valid has, in the course of time, proved morally objectionable, as a result of which it was amended, so that the law remains "on the books" as a juridical foundation, while it becomes effectively inoperative through legal analysis and moral argument. Why, then, can you not be as generous to Jewish law, and appreciate that certain biblical laws are unenforceable in practical terms, because all legal systems -- including Jewish law -- do not simply dump their axiomatic bases but develop them. Why not admire scholars of Jewish law who use various legal technicalities to preserve the text of the original law in its essence, and yet make sure that appropriate changes would be made in accordance with new moral sensitivities?

In like vein, Professor Marc B. Shapiro says http://www.lukeford.net/blog/?p=2595,

You have to violate the Sabbath to save everyone, but the reason given in the sources is utilitarian (non-Jews won’t save us if we don’t save them). Rabbi Soleveitchik said he was troubled by this. My point was that all legal systems have to operate in a legal fashion. That doesn’t mean there aren’t moral considerations pushing you, but those are not in themselves enough to get to the result you want. You have to go through the system, the halakhic rules. When you get to the utilitarian factor, that’s the rule. That’s the way to get to where you want to go. That no more means you are ignoring ethical factors than when a rabbi tries to free an agunah [a woman "bound" to her marriage] whose husband is missing. He’s certainly motivated by ethical factors, by great concern for the suffering of the woman, but that’s not enough. You need to work within the system.

Likewise, discussing Rabbi Shalom Carmy's response to Feldman, a blogger says, at http://myobiterdicta.blogspot.com/2007/07/shalom-carmy-on-noah-feldman-and.html,

I've thought a lot about this issue lately, and I've come to two conclusions. First, any fine moral impulse must still find its expression within the terminology of the Law. Sometimes, indeed oftentimes, that terminology is somewhat jarring to the non-professional ear. Thus, making all sorts of allowances for non-observant Jews because they are 'תינוקות שנשבו' sounds paternalistic, arrogant and dismissive of the rich cultural context within which someone might have been raised. That, however, is the legal tool we have. That, however, does not mean it should be bandied about supercilliously and hurtfully. (Indeed, I've often thought we should create some sort of new category.)

The same is true, or so it seems to me, about the allowance of Sabbath violation for a non-Jew on Shabbat. As Carmy points out so well, saving a Life is not always an absolute value. Even saving a Jew on Shabbat requires special license. Recall that, according to the First Book of Maccabees (2, 32-40) there were those who fled Antiochus' decrees and were slaughtered because they thought that self-defense did not justify desecrating Shabbat. Modern society is based on absolute human autonomy, together with a very strong dose of narcissism. Thus, the idea that Human Life takes second place to anything is at best impossible, at worst, an anathema.

Jewish Law realized that the question of treating a non-Jew on Shabbat had to be addressed and allowed. Halakhah came up איבה. Yes, in marketing terms it's terrible. That, however, is not the point. The genuine, Jewish moral impulse did find a cogent, principled legal category within which to function. Halakhah doesn't operate in philosophical categories, it operates in legal categories. One might add, though, that it's not much of a stretch to go from absence of hostility to co-fraternity. Or, alternatively, who says that Hobbes was wrong? Perhaps, Hazal and Rishonim had a more Hobbesian view of man than we (ostensibly) possess? Certainly, based upon the empirical evidence, Hobbes has the competition beaten, hands down.

According to classical Jewish law, you do not violate Shabbat to save a gentile, period. Feldman delightfully reveals this fact in the New York Times, for all to see, and delights in noting that while Orthodox Jews universally will not hesitate to save a gentile on Shabbat, this is only because of a principle called "mishum eiva" (lit: "due to hatred"), which basically means that if we don't save the gentiles, they'll pick up their pitchforks and kill us.

Lamm explains that Judaism conservatively tries to maintain the actual letter itself while changing its meaning. So the books may say not to save a gentile, and the reasoning to do otherwise may be utilitarian and amoral, but this is all just a legal tool. Shapiro, then, says similarly, that Jewish law works legally, not ethically. We all know that the ethics underpins it, but we must use technical legal tools to achieve our moral goals.

We might note in passing that several other approaches have been offered, all of whom will satisfy the conscience, all relying on the fact that gentiles are created in the image of G-d no less than Jews. See:
-- The Meiri, and others, holding that all Talmudic discrimination against gentiles only applies to ancient immoral heathens, and not to gentiles today: http://michaelmakovi.blogspot.com/2009/01/shitat-hameiri-universalism-for.html
-- Rabbi Nahum Eliezer Rabinovitch arguing, based on RambaN/Nachmanides, that the law to save a gentile's life, is the same law as saving a Jew's life. In other words, Rabbi Rabinovitch denies that any discrimination ever existed: http://michaelmakovi.blogspot.com/2009/02/saving-life-on-shabbat.html
-- Rabbi Immanuel Jakobovits, arguing that the law not to save a gentile on Shabbat is only a strict logical ontological one (based on the reasoning that we violate Shabbat so that more Shabbats will be kept in the future; this only justifies saving a Jew), but that Jewish law has a built-in moral override, which overrides any law which is logical but ultimately unethical: http://www.edah.org/backend/coldfusion/search/document.cfm?title=A%20Modern%20Blood%20Libel&hyperlink=jakobovits1%2Ehtml&type=Document&category=Jews%20and%20Gentiles%3A%20%93Other%94%20in%20Modern%20Orthodox%20Thought&authortitle=Rabbi&firstname=Immanuel&lastname=Jakobavits&pubsource=Tradition%2C%208%3A2%201966&authorid=433
-- An explanation I wrote in Hebrew, summarizing every halakhic position on the subject which I've found. I really need to translate it to English, but in the meantime: http://michaelmakovi.blogspot.com/2009/01/blog-post.html
-- Rabbi Eliezer Samson Rosenthal, chief halakhic decisor for the Movement for Torah Judaism (in turn famously associated with Professor Ephraim Urbach) http://www.lookstein.org/articles/reflections.pdf, especially p. 17:

Our relationship to people who are not of the Covenant [i.e., non-Jews] is, first and foremost, a question of opinion and proper conduct. A person—including a Torah sage—must determine his understanding of “the law of persons” before moving on to the halakhot of the Sabbath, for the latter determination depends on the former, rather than the other way around. A person must choose in this regard between two fundamental and comprehensive opinions. On the one hand, he may adhere to the fundamentalist position, includes nothing (except, perhaps, for a greater or lesser measure of Jewish chauvinism, perhaps mystical and certainly archaic) beyond what is written in the usual halakhic decisional literature, construing its simple words broadly. Alternatively, he may take the informed and autonomous position of a man of culture, whose education and understanding make it clear to him that “this is the book of human history” [Gen. 5:1] is a great principle from which there is no ethical or intellectual escape. [In the Talmud, ben Azzai famously chose this verse as representing a fundamental Jewish principle; this verse encompasses Jew and gentile alike, and suggests that the Torah's focus is universal.]

But going back to Lamm and Shapiro's explanations, with time, it becomes more evident that a lawyer could really be at advantage in studying halakhah. Cf. The Main Institutions of Jewish Law (Rabbi Dr. Isaac Herzog - http://www.soncino.com/product_info.php/cPath/25/products_id/28) and Defending the Human Spirit (Rabbi Dr. Warren Goldstein - http://www.amazon.com/Defending-Human-Spirit-Warren-Goldstein/dp/158330732X).

Both are by chief rabbis (Herzog: Ireland and Israel, Goldstein: South Africa) who also have secular law degrees, and for both of them, their legal backgrounds come into play in their books.

Herzog, while decrying the tendency of many to delegitimize halakhah until itis compared to Western Law (i.e., halakhah cannot stand on its own), nevertheless analyzes Jewish law with a lawyer's eye, seeking to explicate Jewish law for Western legalists, that they may adopt whatever is found to be good in halakhah.

Goldstein seeks to compare Jewish and Western law in several areas of human values and rights (poverty, women's rights, etc. - hence, the title), and show that Jewish law has been consistently ahead of the West, and that the West, from Greco-Roman times until today, has been consistently evolving to be more in keeping with what halakhah has said all along.

At Amazon, on reviewer negatively reviews Goldstein, saying

The message of the book is that Judaism, with its concern for the powerless, which the author refers to as the "Vulnerability Principle", has shown the way, and only now is Western society catching up with Jewish law. It deals with four areas, political power, oppression of women, criminal justice and finally, poverty and the law. It is seriously misleading in all four areas.

I have space only for one illustration of the partial nature of what we are told and have chosen the section on the oppression of women. There is a good summary of the condoning within Western Society of the vile crime of rape in marriage. To the credit of Judaism this has always been a crime in Jewish law. Likewise, Judaism bans the pornographic depiction of women because men should be sexually interested only in their wives. Throughout, Rabbi Goldstein cites the distinguished American feminist MacKinnon as though she would be a fellow spirit, and remarks
"In many examples of sexual repression, including pornography and sexual harassment, the views of Jewish law depart from those of Western law and converge with those of modern feminists. The vulnerability principle again forms the basis of a useful explanation of the unusual convergence of "radical" feminism and Jewish law."
There is nothing about the history of asymmetry in Jewish marital law. Nor is there mention of Agunot, the refusal of Judaism to allow a woman a divorce if her husband refuses to grant it. A Jewish woman may have been beaten mercilessly daily by her husband, she may have obtained a civil divorce under a proper legal system, and yet under current Jewish law she is not allowed to remarry.

It seems sad that what might have been an instructive work is fatally flawed because the author has repeatedly allowed his zeal to override his judgment.

Robert Segall

I replied to him,

Mr. Segall certainly does have a point. The same point occurred to me, viz. that Rabbi Goldstein selectively omits that data which might conflict with his thesis. (I therefore marked that I found this review to be helpful; Mr. Segall's point is very true.)

On this point of agunot, however, Rabbi Goldstein could easily reply that halakhah, properly understood, would obviate the aguna concern. Rabbi Dr. Eliezer Berkovits (following his teacher, Rabbi Yehiel Yaakov Weinberg, the late unofficial chief rabbi of pre-WWII Germany), and Rabbi Dr. Michael J. Broyde (a rabbinic judge for the Modern Orthodox Rabbinical Council of America, following Rabbi Weinberg and the renowned contemporary giant Rabbi Ovadia Yosef), for example, have both argued that the proper use of prenuptials could easily avert the situation of agunot. Rabbi Broyde's teacher, Rabbi Emmanuel Rackman, noted that Rabbis Weinberg's and Berkovits's proposal would indeed have totally ended this situation.

As proposed by Broyde (see "An Unsuccessful Defense of the Beit Din of Rabbi Emanuel Rackman: The Tears of The Oppressed by Aviad Hacohen", Edah Journal 4:2, pp. 15ff, s.v. "VI. Can There Be Solutions to the Agunah Problem?") the prenuptial would dictate that the wife is entering into the marriage on the assumption and condition that if she ever desires a divorce, the husband will be forthcoming in offering it. According to the Talmud (and as universally codified), a marriage entered into under false pretenses, is retroactively annulled, without rabbinic intervention. Therefore, if the husband later refuses to divorce his wife, this prenuptial guarantees that the marriage is immediately dissolved, without any necessary intervention. (Other conditions given by Broyde are (1) if the husband disappears, and (2) if this entire prenuptial is found to be halakhically invalid, the marriage is retroactively annulled. Also, the husband, in the prenuptial, thereby appoints anyone reading the prenuptial to be his agent, even against his express will, to deliver a divorce document to his wife.)

The reason why such practices are not done today, is that the Israeli Rabbinate, as controlled by the Ultra-Orthodox (as appointed by the secular authorities), does not approve of these measures. This is hardly Jewish law's fault; it is widely acknowledged in the Orthodox public that the Ultra-Orthodox are intolerant in their practices, and they hold power, not due to greater following or greater legitimacy, but only because the secular authorities have appointed them. Any failings in Jewish law in this area, therefore, are due not to Judaism's failure, but rather, to the secular authority's failure.

According to the RCA's present-day practice, all marriages are to be entered with a prenuptial that mandates a husband to pay 50% of his wages to his wife, should he refuse to give a get. This removes any financial incentive for the husband to withhold the divorce (usually, he does so as a bargaining tool), and is virtually equivalent to the Medieval practice of whipping recalcitrant husbands.

Also, we might note that, as mentioned, classical Jewish law mandates whipping the recalcitrant husband. The reason this is no longer done, is not because of Jewish law, but because secular Western law no longer permits it. Therefore, it is disingenuous and unfair to accuse Jewish law of being sexually discriminatory in this area, when it is secular western law that imposes the hardship on her.

Thus, Rabbi Goldstein could easily answer this objection, that Jewish law is sexist in this area. But I will agree with Mr. Segall that it would have been nice to see Rabbi Goldstein offer these answers, in lieu of silence which could easily be mistaken for disingenuous admission that Jewish law is not always ahead of Western law in these areas.

Therefore, to stand on one foot, Jewish law in the area of agunot (as put forth by the eminent rabbis above, all of whom are considered top-notch Orthodox rabbis) is not sexist, at least in that women ultimately have equal access. (Some may desire that women be made absolutely equal, i.e. that they too may initiate the divorce proceedings, and that she may divorce her husband via her own divorce document. However, Jewish law is conservative, like all legal systems, and prefers to evolve its institutions rather than fundamentally alter them. Therefore, in lieu of offering the woman an ability equal to the man's in kind, it rather offers her an outlet that is ultimately equal to his. He will utilize the ability to hand her the divorce document, while she will use prenuptials to either retroactively annul the marriage, or to force his hand in granting the document.) If Judaism is sexist in this area, it is not due to Jewish law, but rather, it is because certain bigoted and misogynistic factions (appointed to their posts by the secular authorities) prefer to maintain sexist status quo, or because secular authorities are tying Jewish law's hand. Neither is the fault of Orthodox Jewish law.

If someone tries to claim that the Ultra-Orthodox are actually representative of Jewish law in this area, he will find this a difficult claim to make. The classic Talmudic case of agunot was a husband who had physically disappeared without a trace, without evidence of his death. In this case, the Talmudic drastically loosened the laws of testimony and evidence (as compared to the corresponding laws in every other area of Jewish law), and this was sufficient to solve the problem. In the rare case of a recalcitrant husband, the man was whipped until he divorced his wife, and if he died first, well, this also freed her to remarry. Never did any authorities show the slightest lack of concern for the woman's plight. If then, the Ultra-Orthodox authorities are blamed for lacking concern, one will be hard-pressed to show that their lack of concern has any precedent in the Talmud and halakhic literature. Thus, neither Rabbi Goldstein nor Jewish law per se have any need to answer for this state of affairs.