Thursday, June 30, 2011

R. Yaakov Ariel's Response to 'Torat Ha-Melekh'

The following is the translation of an excerpt from R. Yaakov Ariel's letter of approbation to Derekh Ha-Melekh (The Path of the King): Racism and Discrimination of Gentiles in Halakha, a halakhik and meta-halakhic alternative to the book Torat Ha'Melekh.

The entire Derekh Ha-Melekh can be downloaded here. The introduction appears on pp. 6-8. Only the beginning and very end of the letter have been translated, as they give R. Ariel's general agreement with the content of the work and state why he believes it to be valuable. The rest of the letter is a more detailed discussion of some of the work's finer points.
Translated by Rabbi David Derovan

Office of the Rabbinate – Ramat Gan
Chief Rabbi
Rabbi Ya'akov Ariel
9 Kislev 5771 (November 16, 2010)

To Rabbi Ariel Finkelstain,

          All power to you (Yasher ko’ach) for your book, Racism and Discrimination against Gentiles in the Halakha, which deals very seriously and in depth with the book, Torah Ha-Melekh. This terrible issue will not be resolved through proclamations to the media or by police investigations, but by taking the Way of the King (Derekh Ha-Melekh) that you are traveling on, the path of the rabbis – for "Who are these kings? The rabbis" – who delve into the depths of halakha and bring its truth to light.
          You have succeeded in refuting the main arguments of the authors of Torat Ha-Melekh from top to bottom: beginning with their outrageous, prejudiced presumption that gentile blood is cheap, and ending with their alleged proofs and supports from halakhic sources, which were interpreted tendentiously and erroneously.
          You have publicly sanctified God's name with your book, by preventing the unsubstantiated denigration of Israel’s Torah. You have proven that the Way of the King – the King of the universe and the giver of the Torah – is to bestow compassion on all of His creatures. This is also the Way of the Kingdom of Israel. It logically follows that to ensure the life and compassionate treatment of all God's creatures, it may also be necessary to destroy the might of those seeking to kill us. These are both the words of the living God, the God of justice, compassion, and peace – each at the proper place and in the right time, under the guidance of the Torah.
 . . .
Once again, yasher ko’ach on your knowledge, effort, and the depth in presenting these life-and-death issues. You have succeeded in adducing the truth of the Torah, whose ways are pleasant and whose paths are peace.

With the blessing of Torah,
Rabbi Ya'akov Ariel
Ramat Gan

Monday, June 6, 2011

Rav Bigman on Coercing a Divorce

By R. David Bigman, rosh yeshiva of Yeshivat Maaleh Gilboa

Over the opposition of women's organizations, the Committee for the Appointment of Rabbinic Judges recently selected Rabbi Nahum Prover to serve on the Supreme Rabbinical Court. According to these women’s organizations, Rabbi Prover uses a strict religious approach that is consistently against women. While I cannot speak to this general characterization of R. Prover’s approach, in the following lines I want to analyze the main halakhic source on which he and many other judges in the rabbinic courts base themselves when they refrain from forcing recalcitrant husbands to proffer a get.

I am speaking of a responsum penned by the 16th century sage, Rabbi Shmuel ben Moshe de Medina ( Responsa Maharshdam, Even HaEzer 41). In this responsum, the Maharshdam addresses an extraordinary story involving the details of the laws of divorce and levirate marriage. Unfortunately, this source is misapplied by many contemporary rabbinic court judges who fail to appreciate a number of central issues in this responsum.

The Case:

The question that came to the door of the Maharshdam describes a complex and fascinating family situation and a moving human story. At the center of this story is a girl who was betrothed to a boy her age who died unexpectedly. Because the two had not married, the girl of course was left with no children. Therefore, the boy’s brother (the yavam), an older man with a wife and children, became obligated either to marry this girl through the mitzvah of yibum or to perform the rite of chalitzah and thereby permit her to marry another man.

But here the picture becomes complicated. The yavam knew that this young woman had an elderly uncle who wanted to marry her despite her preference to marry a younger man of her own age. Moreover, the uncle’s wife was a relative of the yavam. He was worried that if he performed chalitzah and freed this young woman, the uncle’s wife (his relative) would be adversely effected. Perhaps the uncle would divorce her in order to marry the girl or would take the girl as a second wife into his home.

In this situation, wanting to protect the wife of the uncle from becoming abandoned or marginalized, he refused to perform the rite of chalitzah unless the uncle would obligate himself in some way to refrain from marrying his young niece after the chalitzah. Under these complicated circumstances, the Maharshdam was asked, can the yavam be forced to perform chalitzah and "liberate" the young woman.

The response of the Maharshdam to the case before him is unequivocal. One may not force the yavam to perform the rite of chalitzah. This case is similar to coercing a divorce, and the Mishnah and Gemara explicitly limit such coercion to cases where the husband suffers from extreme defects. At the end of his responsum, the Maharshdam brings a proof for his position from a discussion of divorce laws, quoting a tradition of the school of the Rosh brought in the book Chazeh Hatenufa (also quoted in the Beit Yosef of R. Yosef Karo). According to this position, it is permitted to coerce a get from a man who declares that he will divorce his wife only on the condition that she agrees never to visit her father’s home. According to the Rosh, because this is an unreasonable condition that will never actually be fulfilled (for there is a presumption that a woman will visit with her parents after divorce), it is permitted to force the husband to give the get without the fulfillment of his outrageous condition. From this tradition, the Maharshdam draws conclusions for our story. In a case where the husband makes conditions that are easily fulfilled (in this case – a guarantee from the uncle that he will not marry the girl), there is no reason to force the divorce. Should the court deem a divorce to be the proper resolution of the case, it can do so by ensuring that the reasonable condition be upheld.

A Lack of Sincerity

As noted, much use of this responsum has been made in the rabbinical courts in cases of recalcitrant husbands. Following the Maharshdam’s ruling, the judges say that a husband who conditions the giving of a get on exorbitant financial demands (for example – the abrogation of any obligation to pay child support) cannot be forced to give a get. They claim that if the woman's desire is to divorce, it is incumbent upon her to meet her husband’s conditions. This use of the Maharshdam’s position under contemporary circumstances of a delayed delivery of a get is fundamentally mistaken for several reasons.

Firstly, in many cases where a husband refuses to give a get in the rabbinical courts, the responsum of the Maharshdam is not relevant at all. The Maharshdam addresses a case where the husband sincerely wants to divorce his wife, but puts certain conditions on the granting of the get. In many contemporary cases of recalcitrant husbands, the men do not want to divorce their wives at all. In order to delay and prevent the divorce, they declare their desire to divorce under certain conditions that are very difficult for their wife’s to fulfill, thereby pushing off over and again the giving of a get. As this is not a situation in which the husband is looking to divorce his wife, it stands in contradiction to the Maharshdam’s words “since the yavam desires to perform the rite of chalitzah but his intention is that his yevamah will not marry her married uncle, therefore it is impossible to force him to perform the chalitzah in any way.” In other words, where there is a desire to perform chalitzah or divorce, but a condition stands in the way, it is impossible to force the divorce/chalitzah. However, in a case of a recalcitrant husband, who only ostensibly wants to give the get, but in fact intends only to delay the process – there is no impediment to coercing him to give a get.

This gap between the two cases reflects a fundamental difference between the halakhic discussion reflected in the Responsa literature and the legal system currently operating within the Rabbinic courts. For it is clear that one of the important details in the event that the Maharshdam addressed was the sincerity of the yavam. Indeed, the impression of the judges before whom the case was presented was that the yavam sincerely wanted to perform the chalitzah for the girl, but only hesitated out of concern for the fate of the uncle’s wife. Often in today's courts, a litigant’s claim (usually given through his rabbinic attorney or under legal recommendation), presented as his formally declared position, is accepted without investigation into its sincerity or true motives. This is the result of a process of “over-legalization” in the rabbinic court system that has adopted the more formal paradigm of the secular courts. In contrast to this paradigm, the halakhhah’s concern is predominantly with the husband’s motives, not his statement before the court. Therefore, the sincerity of a recalcitrant husband’s declaration of his desire to give the get but only on a certain condition must be investigated.

Bargaining Terms

Furthermore, even in cases where the husband indeed intends to eventually divorce, he may often demand exorbitant financial conditions as part of the negotiations of the divorce settlement. In actuality, these stipulations that he proposes are not absolute preconditions for him to give a get to his wife, but rather are part of the “game” of negotiating a more favorable financial settlement for him. Since the responsum of the Maharshdam focuses entirely on actual absolute preconditions posed by the husband, the question of whether these preconditions are realistic or not is paramount. In most of our cases of recalcitrant husbands, the question of preconditions is not relevant. Any stipulations made by the husband are meant only as bargaining chips with no intention that they actually be fulfilled as presented. As noted, judges in the rabbinic courts unfortunately rarely address the question of the motives behind the claims of the husbands. They address the conditions only on a formal level that leads them to preclude the possibility of coercing the get. Therefore, after the declaration of the husband’s conditions, the couple is usually advised to continue their negotiations toward a financial compromise. Because in these cases the husband’s conditions are excessive, and because time is on the side of the husband, such negotiations take place under extremely unfair conditions.

Incidentally, problematic insincerity in the rabbinic courts takes place in an opposite fashion as well: A husband who knows that eventually he will divorce his wife can claim that he is not willing to divorce at all, and thereby buy time in order to improve the settlement in his favor. Here too, the judges accept his declaration of refusal to divorce at face value, and advise the couple to work out their issues. Of course, in this situation time is on the side of the husband, who only improves his chances for a more favorable settlement from his perspective.

The Gray Area in the Middle

Another flaw in the use of the words of the Maharshdam in contemporary cases of recalcitrant husbands lies in the interpretation of the following quote from his responsum: "But only (in a case of) a condition of this (type) which is nearly impossible to fulfill [ie the terms that the woman not visit her father’s home] do we compel to divorce without (its fulfillment), however other conditions that are easy to fulfill - there is no doubt that one who compels a get where said condition is not fulfilled increases cases of mamzerim...".

The prevailing interpretation of these words in the rabbinic courts understands that only in a case where the husband puts impossible conditions (such as preventing the woman's visits with her parents) - only then can one force him to give a get; for any other conditions that he may place the court’s hands are tied. But this interpretation ignores the end of the passage that points in a different direction. There the Maharshdam states that when the husband puts conditions that are easily fulfilled (such as in this case – a request for a guarantee that the uncle won’t marry her), then there is an impediment to force the get. From here one might conclude that when the condition is not "easy", the law would be different.

In other words, Maharshdam discusses two extreme cases: when the husband sets impossible conditions, and when he sets easy conditions. In the first case, giving the get can be coerced; in the latter case one does not compel him. But what is the law for all the possibilities in between these two extremes - for example, when the husband puts excessive financial requirements as a condition of granting the divorce? This is a condition that is not "impossible" but also not "easy"; for such cases, which are of course the overwhelming majority of cases conducted in the courts, the responsum of the Maharshdam is ambiguous.

The Human Dimension

From all the analysis above, the responsum of the Maharshdam, a cornerstone of the rabbinic opposition to coerce a divorce, is not relevant to most of the cases of get refusal nowadays -- certainly not for those who refuse to divorce because they do not want a divorce, and not for those who wish to divorce but demand excessive conditions as part of negotiating a financial settlement. Under what circumstances might this responsum be relevant to prevent the coercion of a get? Imagine a husband who appeared before a court and claimed that he wanted to divorce his wife, but could not do so because he was unable to make alimony payments and proved that indeed he had a financial problem that prevented him from paying the alimony. If the court was convinced of the sincerity of his words, it would be possible to consider whether the sum of money that he demanded his wife forgo is a condition that is "easy to uphold" for the woman, and then and only then, could the position of the Maharshdam be used to prevent the coercion of the giving of the get. However, because the number of cases of women who are refused a get under these circumstances is practically nil, it seems incumbent upon the courts to drastically reduce their use of the Maharshdam’s responsum.

[Incidentally, even in situations where this position of the Maharshdam is relevant, it must be known that great sages such as Rabbi Shlomo Dichovsky claim that one need not be concerned for the position of the Maharshdam. And furthermore, from the discussions of the great authorities of recent generations, it becomes clear that the non-physical coercive methods that the courts make use of today (from taking away a credit card to prison sentences) are not considered the type of coercion that halakhah finds problematic (An exhaustive of the literature can be found in Heichal Yitzchak, Even Haezer Vol. I:2-3 and Yabia Omer Vol. III Even Haezer 20).]

Besides the halakhic analysis above, there is an important meta-halakhic point I want to make. Maharshdam’s responsum was related in the context of a familial case of extreme sensitivity. It is apparent that Maharshdam identified with the yavam’s attempt to protect both his relative (married to the girl’s uncle) and the girl herself. With attentiveness to the complexity of the situation, he refrained from compelling a get for fear that it would effect these women adversely. Among the important things for rabbinic court judges to draw upon from this responsum is an appropriate attitude to the plight of the litigants before him, a delicate attention to the whole human situation in all its complexity, and a combination of commitment to the letter of the law with the wisdom to see into the hearts of the litigants and examine their sincerity. A wholesale and indiscriminate application of an interpretation of Maharshdam’s responsum that ignores its context as is common in rabbinical courts today is entirely contrary to the internal spirit of the words of the Maharshdam. It is like throwing away wheat and keeping the chaff.

Tuesday, May 3, 2011

R. Meir Simcha of Dvinsk on Celebrating the Downfall of an Enemy

Meshekh Chokhma on Exodus 12:16, s.v. “hineh
Hebrew text available here.
Bio of R. Meir Simcha here.
Translated by Rabbi Shmuel Herzfeld

When Passover was observed in Egypt [during the year of the Exodus] the prohibition of eating chametz was only for one day, and so too the full festival was not practiced.

And in my opinion, the reason why nevertheless he now taught them something that would pertain to future generations [i.e., the full 7-day holiday] was in order to teach them the wholesomeness of God’s commandments, for other nations, with their sophisticated religions, turn the day of victory, the day of their enemy’s downfall, into a holiday, a victory celebration.

Not so in Israel.  They do not rejoice at the downfall of their enemies.  They do not joyously celebrate this, as it states (Proverbs 24:17-18), “Do not rejoice when your enemy falls… lest God see and it will be bad in His eyes and He will turn His wrath upon him.”  Thus, a refined person should not rejoice in the downfall of his enemy, for such joy is bad in the eyes of God. And that which is bad in the eyes of God needs to be hated!
Thus, with respect to Passover it does not state, “The Festival of Matzot, on account of God bringing Egypt to justice,” but rather, “on account of God leading the Israelites out of Egypt.”

But regarding the downfall of enemies there is no festival and holiday for Israel.

Thus regarding the holiday of Chanukah, the day instructs us only about the lighting of the olive oil and the dedication and purification of the Temple, and the Divine Providence of God over His people at a time when there was no prophet or seer in Israel.  Thus, we light the candles to commemorate a little-known matter—the lighting of the flames for 8 days in the Temple—for the leaders and officers of the army were the great Kohanim, the Hasmoneans, and God was concerned lest people might say, “I did this through my own strength and power” and military strategy. Therefore, God showed His Providence in the Temple, which was known only to the Kohanim, so that they would understand that the hand of God did this, and that they were saved by a miraculous manner.

So too, with respect to the holiday of Purim: they did not make a festival on the day that Haman died or on the day that they killed their enemies, as this not a cause for rejoicing among His people Israel.  Instead, the holiday is only “on the days that they rested from their enemies” (Esther 9:22).  It is as though, they needed to rest, and there were snakes on the path and the snakes were killed, is it appropriate to rejoice on the day that the snakes were killed?  Their joy was from their relief.

Thus, “Mordechai wrote…the days on which the Jews rested.”  For the rejoicing is only on account of their relief and not on the day that the enemies were killed.  {Meshekh Chokhmah proceeds to prove this point at greater length}

And indeed, in Egypt they drowned in the sea on the seventh day of Passover.  If God would say that they should make the seventh day a festival, then it would seem to some that God was commanding them to make a festival on the day of the downfall of their enemies.  And indeed, we know that the angels did not sing that day as it states, “and they did not come near each other” – for God does not rejoice in the downfall of the wicked.

Thus already in Egypt the Israelites were taught to make the seventh day into a festival: in order to demonstrate that the festival of the seventh day does not derive from the drowning of the Egyptians in the sea, as they were commanded about it before the Egyptians drowned!

So too the Midrash teaches that for this reason the word “Simcha” (rejoicing) is not written with respect to the holiday of Passover and Hallel is not recited for the entire holiday, since “Do not rejoice when your enemy falls.”

Wednesday, March 16, 2011

Rabbi Lichtenstein to Zionist rabbis: “Some humility, please”

By Motti Levi, Walla! Editorial / News
Tuesday, March 15, 2011, 7:30 am
Translated by Susann Codish
Original Hebrew article can be found here.
The translation has not been reviewed by Rav Lichtenstein

A conversation with Rabbi Aaron Lichtenstein, one of the senior/leading rabbis of the religious Zionist stream, who harshly criticizes rabbis trying to explain current events as being the will of God: “I don’t have God’s phone number, the way some others seem to have”

This time, Walla! News’ weekly discussion with a rabbi was with Rabbi Dr. Aaron Lichtenstein, one of the heads of the hesder yeshiva in Alon Shvut, and one of the senior rabbis of the religious Zionist movement. Rabbi Lichtenstein was born in 1933 in France, and in 1940 fled with his parents from the Nazi occupation to the United States. He received his rabbinic education at Yeshiva University in New York, where he was ordained as a rabbi by Rabbi Joseph B. Soloveitchik, one of the leading Modern Orthodox figures in the United States and a leader of the Mizrachi Movement of religious Zionism, who would later become Rabbi Lichtenstein’s father-in-law. As befits someone who was raised on the principle of “Torah umada” – Torah combined with general knowledge – Rabbi Lichtenstein completed a doctorate in English literature at Harvard, and briefly taught English at YU. In 1971, Rabbi Lichtenstein immigrated to Israel with his family in order to serve as the head of the Har Etzion yeshiva, and has since then served as its leader along with the yeshiva’s founder, Rabbi Yehuda Amital ob”m. R. Lichtenstein is considered a moderate among Zionist rabbis.

Unlike many Zionist rabbis, you refrained from expressing an opinion on the withdrawal from the Gaza Strip. Why?
“To express a position is a fine thing when you have a position, when things are clear, unequivocal, when you have the sense that you understand not just the intricacies of the political moves but also what God would want. I didn’t feel I had the tools or ability to express a position. I don’t have God’s phone number, the way some others seem to have. I was raised on the words of the Talmud about Balaam: he claimed having knowledge of ‘the will of the Supreme.’ He couldn’t even tell what his own beast wanted, and he claimed to know the will of the Supreme?!
“Please, have a little humility. Not the fake kind, but the kind that rises from a person’s understanding of who the Almighty is and who man is – a base, ignominious creature. I understand there were people for whom it was clear where the disengagement was leading and what God wanted. That’s not how I grew up. Humility is not only an expression of religious awe bit also an expression of wisdom.”

Are you insinuating criticism of the rabbis who opposed the disengagement?
“I don’t have to insinuate anything. It’s no secret that there are large, self-confident segments of the public, that have the sense that you can take a chapter of the book of Isaiah or Malachi and find a perfect match between the text and what’s happening before our eyes. I’m not comfortable with that; I’m uncomfortable with that also from a religious perspective. It’s true: those of us within the religious Zionism camp have for years continued to march forward spiritually, economically and socially, with trust in God. Without that belief, it is doubtful that the religious Zionist stream would have come into existence to begin with. It began out of belief and hope, out of the feeling that mankind has a role to play in history. But the difference between that and the sense that I can explain exactly why a bus explodes and kills 22 children is enormous. It is religious arrogance. It also smacks of people over-stepping their limitations.

Lately, the separation of religion and state has again become a subject of public debate. Many feel that religion is destroying the state and vice versa. Is it time for such a separation?
“I think that would represent a tremendous risk. I’m not sure that ‘riches endure forever.’ I’m not sure we can continue to suspend public transportation on the Sabbath in the long term, but if, God forbid, public transportation becomes available on the Sabbath I’d view it as a change for the worse and a significant defeat in terms of Israel’s religious landscape. Similarly, with civil marriage, it’s not only a problem in the sense of the religious prohibition people would be transgressing as a result of making it available, but also in terms of what this would do to the nature of Jewish society in general. If, as a result, there would be a huge increase in the number of mamzerim it would be a dreadful tragedy. On the other hand, we’re also liable to see a situation in which the possibility of getting married solely through the rabbinate creates friction and divisions; as it is, a growing segment of the population is not getting married the traditional, halakhic way. If we get to a point where continuing the current state of affairs is no longer possible, unless we outright make it impossible for people to get married, we’d obviously have to rethink the issue. I hope that day never comes. Even in the current situation where we have no civil marriage, and there is no concern about mamzerut or about destroying the fabric of life here by creating the need for separate books of marriageability for religiously observant folk, I still feel we’d have to think twice before manning the barricades.”

You came out against the rabbinic open letter forbidding Jews to sell or rent housing to Arabs. You wrote, “The wisdom seems flawed.” If Jewish religious law does, in fact, determine that it is prohibited to sell or rent to non-Jews, why oppose the letter?
“Here I take the position of Rabbi Eliyashiv. There may be things we want that are unattainable. Wisdom includes the ability to apply principles, of having desires encounter reality. In this case, even if discussing the issue from the halakhic point of view, it’s not so simple or clear. So, are we supposed to hurry to publish an open letter on an issue that cannot be implemented and that furthermore stains our reputation, both internationally and internally within the larger community in Israel? You have to know how to choose your battles and that choice involves wisdom: people have to understand where their choices lead them, and here, unfortunately, ‘the wisdom of their wise shall perish,’ quote the prophet Isaiah, and we’re paying a price for that.”

You recently signed an open letter of protest opposing the rabbis who announced their support for President Katzav. What was the basis for your position?
“I approach this issue not out of a sense that I know if he [former President Katzav; ML] is guilty or not. I didn’t read the material and I don’t have the tools to make a determination on the issue itself. But that’s not the point. The point is, and was, the attitude we, as citizens of the State of Israel, have to a civilized system of justice. Here were some rabbis who wrote an open letter that dismissed, with the stroke of a pen, the entire legal system and its many layers, saying in effect that the whole system is either stupid or evil. I know the verses the rabbis cited from the book of Isaiah just as well as they do. But what do they want? To have no legal system whatsoever? To live in total social anarchy?
“I think we find ourselves in an odd position here. I’m considered illegitimate by many in the religious Zionist camp. I’m not Zionistic enough. I grew up in the Diaspora, I came to Israel at a relatively late age, and some argue that I carry my Diaspora education like a hump on my back. I think I’m a super-Zionist compared to those who would delegitimize the entire legal system and its institutions here in Israel. Would I like to see the vision of ‘Restore our judges as of old’ realized? Of course I would. But for now, there needs to be some kind of system of justice.”

What would you like to tell the readers of Walla! News?
“That they should construct their lives on the basis of holiness and purity [kedusha v’tahara] – on the basis of moral and Torah-inspired ideals. That’s the general direction. As for the details, well, that’s up to each one of us: who one is, where one lives, to which world one belongs. But the general directions must be devotion to the past of the Jewish people coupled with the good and beautiful elements one can find also in general culture, though the center of gravity must lean to devotion to the Torah.”

Wednesday, February 16, 2011

Ruling of Rav Ovadia Yosef and Rav Shlomo Amar on Conversions

Shlomo Moshe Amar
Rishon Lezion Chief Rabbi of Israel
President of the Great Rabbinical Court

[Translation by Elli Fischer. Original Hebrew appears here. Interpretation and analysis appear here.]

This is the Law that Emerges from the Three Aforementioned Court Rulings:

Conversion (geirut) is a purely halakhic concept. It is not subject to substitution or punditry (parshanut). It is thus mandatory that geirut be in accordance with the halakha as explained by Maimonides and the Shulchan Arukh

a. A convert who was circumcised and immersed but did not accept the commandments (mitzvot) of the Torah in the presence of three who are qualified to judge, is not a convert at all. Even if he accepted the mitzvot upon himself, if it was not in the presence of three who are qualified to judge, it is meaningless.

b. The rabbinical conversion court (beit din) must adequately examine whether the prospective convert has studied and knows the rudiments of faith, and also has studied the basic halakhot of Judaism (as practiced in Israeli rabbinical courts).

c. Similarly, they will examine his motives and objectives for conversion. They will examine whether he is sincere in saying that he accepts the Torah and mitzvot upon himself, and is not deceiving the rabbinical court.

d. If their assessment is that he will certainly not uphold the mitzvot, they should not accept him as a convert.

e. A convert who was circumcised and immersed and accepted the mitzvot of the Torah in the presence of three who are qualified to judge, and everythings was done properly and halakhically, and he then reverted to his mistaken ways and violates the mitzvot of the Torah, he is like an apostate Jew: his wine is forbidden, but his marriage and divorce are valid, as is stated explicitly in the Talmud, the code of Maimonides, and the Shulchan Arukh.

[Handwritten portion:]
The aforementioned statements are the conclusions of responsa that I wrote regarding matters of conversion. I have already made it clear that according to Maimonides, of blessed memory, acceptance of mitzvot in the presence of three who are qualified to judge is indispensable (le-ikuva). I explained in detail his [=Maimonides’s] statements in Chapter 12 of the Laws of Forbidden Relations, in a responsum from 5764 which was printed in Responsa Shema Shlomo VI (Yoreh De’ah 12). I have now clarified the matter again, and these words were viewed by the decisor (poseik) of our generation, our master, the Rishon Lezion, the prince of Israel’s sages, the author of Yabia Omer [=Rav Ovadia Yosef] shlita. He agreed and signed with his own hand and even added, in his own handwriting, that this is the truth of the Torah and that it is a law that must not be violated (chok ve-lo ya’avor. I have also sent all of this to the [secular] Supreme Court, to negate the opinion of those who were mistaken on this matter.
Regarding army conversions, it is clear that in addition to the circumcision and immersion being in the presence of a lawful rabbinical court of three, each convert accepts the yoke of Torah and the yoke of the mitzvot upon himself in the presence of a rabbinical court of three. This is after they are taught the rudiments of the mitzvot, as is known, are tested, and spend time with Torah- and mitzva-observant families who have even recommended them.
I grab the coattails of our master [=Rav Ovadia Yosef], shlita, and sign,
S. M. Amar

All of the aforesaid is the truest truth (emet le-amitah) of the Torah
The obvious needs no proof,
Ovadia Yosef

Friday, December 17, 2010

Round-up of Rabbinic Statements

  • Rav Elyashiv's position prohibiting walking to the Kotel on Shabbat due to the presence of cameras has been widely reported. Rav Yisrael Rozen of Machon Tzomet responds, explaining why it is permitted. A fuller (Hebrew) correspondence between R. Rozen and Rav Zalman Nechemiah Goldberg on this issue, in which they rule leniently, is available here.
  • Rav Shlomo Aviner explains why he signed the ban on selling homes to gentiles. Rav Yehuda Gilad explains his opposition. Rav Haim David Halevy's lenient position on discrimination against non-Jews in the democratic state of Israel is excerpted in translation here and addressed more fully, with links to further reading, here.
  • Yad Vashem's interview with Rav Yehuda Amital on religious life during the Holocaust has been translated. The original is available here.

Tuesday, December 14, 2010

Rabbi Aharon Lichtenstein's Response to the Letter Banning Sale of Homes to Gentiles in Israel

Response to the Esteemed Rabbis, Signatories of the Letter Forbidding the Sale of Homes to Gentiles in the Land of Israel
Rabbi Aharon Lichtenstein
6 Tevet, 5771

[Translated from the Hebrew by Elli Fischer; the translation has not been reviewed by R. Lichtenstein]

I have read the document that you have disseminated throughout the country. As I read your words, I was impressed enough by the dogged determination inherent in your love of the land and your love of the nation that dwells therein to advance your approach. However, I am concerned that in this instance your love has affected your judgment. To say the least, it must be asked whether this is a battle worth fighting. Aside from the judgment, the wisdom of it seems faulty as well.

Indeed, almost the entire unfolding of events that resulted from the dissemination of this letter was foreseeable and, to a large extent, obvious. The public furor, both social and ideological, the rift that has opened among the citizens of the state—between camps and within camps, the op-eds in the various media outlets, the various positions, often impassioned and overheated, the attack on the religious-Zionist rabbinate from the right and from the left, even from Torah giants—it was all foreseeable. One reads it and wonders what happened to the wisdom of those who are enjoined to consider future ramifications?

It has been particularly painful for those faithful to the Torah and mitzvot who fear for the stature and character of the state; it has upset the spiritual leaders who work hard to make the Torah and adherence to halakha beloved and who strive to set the State of Israel on the pillars of tradition and ancestral heritage. This pain stems from the shortcomings that the document manifests in precisely those areas that should have been its strong point. The document speaks in the name Halakha, and its signatories see themselves as its envoys and propagators.

But therein lies the problem; the prohibition of selling homes to gentiles is presented as the exclusive halakhic position in the manner at hand, and the voice that bursts forth from the throats of the signatories is made to sound like the single unequivocal word of God, that is, halakha. Here one asks, is that indeed so? Without a doubt, the position expressed in the letter is based on rabbinic sources and a long halakhic tradition. Yet taken as a whole, the document leaves one with the impression that its conclusions are based on presumptions that characterize a particular—but not exclusive—halakhic approach. This impression is generated in part by what the document states, and no less by what the document omits. For example:

A. The first paragraph of the letter gives the impression that Rambam linked intermarriage, selling a parcel of land to gentiles, and the desecration of God’s name. It further implies that there is no escaping the conjunction of these elements, and there is no way to minimize or neutralize their linkage. However, there is no such formulation in the writings of Maimonides.

B. The concluding paragraph states that one who sells a residence to a gentile must be excommunicated. This ruling is patently erroneous. The excommunication discussed by the Talmud and Rishonim addresses harm to Jewish neighbors in context of the issue of a neighbor’s right of first refusal (dina de-bar metzra)—unrelated to the questions of lo techanem or lo yeshvu be-artzekha, the prohibitions that set the tone of the letter.

C. Regarding that which was not said: any position or opinion that could have been relied upon to moderate the stance taken in the letter simply does not exist. There is no mention of Ra’avad’s position that limits the prohibition to the seven aboriginal nations of Canaan. For some reason, the opinion of the Tosafists—that if the gentile is willing to pay a higher price than a Jew for the property, there is no prohibition against selling it him—has been ignored. At the same time, the letter never addresses the position among the Rishonim, based on Bava Batra 21a, that the prohibition against leasing is limited to craftsmen who wish to set up shop in the neighborhood—indicating that they were concerned about the neighbors fleeing, not about the sanctity of the land and all it entails. The opinion of Ramban and his disciples, that the prohibition of lo techanem does not apply to transactions rooted in the grantor’s interests—which admittedly relates to the granting of a gift or a favor, but may also be applicable to the granting of a tract of land—directly contradicts the position expressed in the letter.

D. In addition, the document is based almost exclusively on Rambam’s position, which, as it approximates the perspectives discussed in the Talmud, left its mark on the Shulchan Arukh. Yet every school child knows that for whatever reason there is a wide gap between Rambam’s position and the approach of the Tosafists. It is sufficient to leaf through the first pages of the talmudic Tractate Avoda Zara with an eye on the prohibitions discussed there, or through the end of the first chapter of that tractate, to see the degree to which the Tosafists exploited every loophole and leniency with regard to these prohibitions. For example, several Tosafists maintained that the prohibition to lease a home to a gentile was limited to an instance in which the gentile is expected to bring foreign gods inside. I certainly do not wish insert myself into a dispute among giants or presume to decide between Rambam and the Tosafists; I merely note that the required willingness to examine approaches that would limit the prohibitions associated with this issue, given that there are tools and materials that enable such limitations, is completely absent from the letter.

I conclude with what should be self-evident. At stake are key questions that involve meta-halakhic considerations. The willingness and ability to consider and assign appropriate weight to wide-ranging components related to halakhic content and its connection to both historical and social realities mandates a much wider discussion. We, who dwell in the beit midrash, remain committed to our belief and desire “to proclaim that God is upright, my rock in whom there is no wrong.”