Can We Redeem the Halakhah?
“Do you think that is fair to gentiles?” responded Rabbi Joseph Soloveitchik to the stunned Orthodox Union officer. Rav Soloveitchik had asked him what he was working on recently, to which the lawyer responded: “I am preparing legislation to ensure that Sabbath observers cannot be penalized for missing work on Shabbat.” Instead of the expected encouraging pat on the back, Rav Soloveitchik shocked him into thinking further. Of course Rav Soloveitchik was in favor of the Sabbath legislation, but he wanted his followers to be ever mindful of the critical importance of fairness and concern for others—particularly those distant from Orthodoxy. His response was a lesson in moral pedagogy, not an expression of legal disagreement.
In his essay “Catharsis” Rav Soloveitchik taught that every aspect of human life requires redemption. All of us fail at times, and our systems too are fallible and prone to corruption. Rav Soloveitchik astutely pointed out that even religion needs cleansing, for without it “our relationship with God may become self-righteous, insensitive and even destructive.” For Rav Soloveitchik, sober and moderate halakhah was the cathartic instrument capable of purging human experience from coarseness.
Rav Soloveitchik’s conception of Jewish life was deeply rooted in ethical commitment. Throughout his lectures on Avraham (published as “Abraham’s Journey”), Rav Soloveitchik described Avraham as the model Jew because “he substituted the ethical life for the immoral one” and “possessed an ethical system to be carried out and implemented.” Teaching tzedakah and mishpat to the world was the covenantal mission God gave to Abraham, and commanded him to bequeath it to us, his descendants (Gen. 18:19). How else could Avraham audaciously challenge God on moral grounds: “Will the Judge of all the earth, not do justice?”
Like Avraham, Rav Soloveitchik was resolutely dedicated to fairness and the sanctity of human life, as the opening dialogue indicates. His commitment to ethical integrity also moved him to demand that the Israeli government investigate the role the Israel Defense Forces in the Sabra and Shatila massacres in 1982. Although Israel was only indirectly involved in the mass killing, Rav Soloveitchik called the head of the National Religious Party, Dr. Yosef Burg, and told him that he could not continue as President of the Religious Zionist of America if the National Religious Party (Mafdal) did not vote in favor of the investigation.
Our contemporary experience bears out Rav Soloveitchik’s insight into the need for catharsis in religious life. We have all witnessed the recent scandals of religious organizations, Jewish (and Christian) clergy, and Orthodox public figures exposed as frauds rather than honest servants of God. Today it is commonplace to hear of religious leaders who, out of self-righteous zeal, are insensitive to those with whom they disagree. And religious extremism is now destructive on a global scale. Clearly these public religious phenomena require purging.
But catharsis also applies to each one of us: When I am honest with myself, deep down I know that I too need purification.
Today we stand in a different place, 50 years after Rav Soloveitchik wrote about catharsis. Yet his wisdom has new meaning for us: Too often it is the halakhic process itself that has lost its moral bearings and its commitment to ethical integrity. It too needs catharsis. I refer not to situations where halakhic Jews are aware of failing to live up to ethical standards, but where halakhic opinions themselves lack moral concern.
Here are three examples:
In 2010 the Rabbinical Council of America published a report http://www.hods.org/pdf/Determination%20of%20Death%20and%20Organ%20Transplantation%20-%20A%20Halakhic%20Study.pdf rejecting brain death as a criterion for halakhic death, and thus forbade removing a heart or lung from a brain dead person. But while the RCA rabbis prohibited donating such an organ, they permitted receiving one: “All [halakhic authorities] agreed that even if an organ was removed באיסור [illicitly], it still may be used. There is no merit in arguments that various talmidei hakhamim have supported organ donation since we find them permitting receiving such organs” (p. 47).
In other words, these halakhic authorities ruled that Jews may receive lungs and hearts but are forbidden to donate them to others. This “taking but not giving” violates the most fundamental principles of equity, justice and valid ethical reasoning. The entire medical community sees this as a self-serving and morally unjustifiable policy, as do ethicists and international transplant organizations. Were this policy to be adopted by all Jews, only gentiles would donate, and de facto, Jews would benefit from gentile organ donations but gentiles would never benefit from Jewish organs. “Do you think this is fair to gentiles?” Sadly, many rabbis espousing this position see themselves as Rav Soloveitchik’s disciples.
Primarily for cultural reasons Israelis are reluctant to donate organs despite their government’s urgings. Israelis are in dire need of vital organs and because Israel demands so many more organs than it donates, the Jewish State is viewed as a parasite nation by European medical professionals. As a result, the European Network of Organ Sharing no longer provides vital organs to Israel. Were this psaq to become the Israeli standard, according to the Israeli Health Ministry statistics more than 100 Israelis would die every year waiting for an organ transplant. In other words, the psaq seems oblivious to elemental fairness and the significant loss of life it would cause. The RCA wisely seems to have decided against further promoting the report, but there is no indication that the poseqim behind it have disavowed their ethically unjustifiable position.
Second, because of the increase in asymmetrical warfare around the world and Israel’s frequent need to go to war, there is now a robust discussion inside and outside of Israel about military ethical standards: How can an army fight morally yet effectively? What are the moral rules for engaging the enemy? The heart of just war thinking is “the principle of distinction,” i.e. a moral army must distinguish between combatants and non-combatants. While intentionally killing enemy combatants is justified (indeed necessary), it is not justified to target innocent non-combatants.
This principle of distinction is encoded in the IDF’s “purity of arms” doctrine (“tohar ha-nesheq”) and it is this principle more than anything else that distinguishes the IDF’s moral military tactics from those of Hamas and other terrorists. Yet shockingly, the principle of distinction is either overlooked or rejected by many contemporary poseqim. In a recent survey of halakhic opinions (www.koltorah.org/index2.html – Vol. 17, No. 18; “Halachic Perspectives on Civilian Casualties” – Part 3), the rabbinic surveyor concluded that there was only one contemporary poseq, R. Aharon Lichtenstein, who demands that Jews consider enemy civilian casualties when fighting according to halakhic standards, and as a lone exception he does not express accepted halakhah. The rabbinic consensus and normative halakhah is consistent with the opinion of R. Dov Lior who believes that “according to the Torah worldview there is no concept of innocent civilians in an enemy population.” The survey also favorably cites one halakhic scholar who claims that, “there is no halakhic source that takes cognizance of the likelihood of causing civilian casualties in the course of hostilities.” Yet if a Jew is permitted to intentionally kill a helpless infant or an elderly infirmed grandmother in the enemy camp, a fortiori there is no restraint whatsoever governing how a halakhic Jew may treat a non-threatening civilian in wartime.
Third, as recently as November 2014 a Yeshiva University Rosh Yeshiva spoke on the Torah approach to homosexuality, citing a therapist without professional credentials and recommending reparative (i.e. change) therapy for homosexuals. Far from being alone, this Rosh Yeshiva was echoing a “Declaration on the Torah Approach to Homosexuality,” (www.torahdec.org) signed by 223 Orthodox rabbis—mostly haredi but also some prominent YU and RCA rabbis. The declaration advocates “therapy and teshuvah,” where it is clear that the therapy referred to aims to change a homosexual’s orientation to “a natural gender identity.” Yet the American Psychological Association and medical professionals have concluded that there is no reliable data to indicate that such therapy is effective, and worse still, there is significant evidence that such therapy can cause serious harm to the patient. Because of this risk, a number of states have banned change therapy for minors. In sum, the continued rabbinic advocacy of conversion therapy rejects scientific judgment and neglects the welfare of individual homosexuals in order to sustain a traditional ideology. We all have an ethical responsibility to protect homosexual persons created b’Tzelem Elokim and hence a halakhic policy promoting change therapy is neither scientific, nor compassionate nor morally justifiable.
Some halakhic authorities see the logical independence of halakhah as justifying their amoral approach to halakhic reasoning. Yet as these cases demonstrate, what begins as a neutral approach ends up in immoral halakhic conclusions.
Of course there are also points of light. There are other halakhic voices, ones committed to moral integrity and keenly sensitive to ethical standards. These minority voices insist on the moral tenability of any halakhic approach to organ donation (http://organdonationstatement.blogspot.com/). In addition to R. Lichtenstein, Netziv and R. Goren also insisted that Jews may not wage war against civilians. And other Orthodox rabbis stress moral sensitivity toward homosexuals, urging concern for their physical and mental welfare, cite the widespread consensus of the ineffectiveness and potential damage of “change therapies” and affirm the religious right to reject such therapies (http://statementofprinciplesnya.blogspot.co.il).
These latter halakhic opinions carry less authority in the larger Orthodox community, yet there is no doubt that they are ones who are redeeming halakhah and restoring moral credibility to Orthodoxy.
All of us need to strengthen these moral voices and recover the authentic ethical dimension of halakhah. If we fail to achieve this catharsis, the law of cause and effect will prevail, and just as day follows night tragic results will ensue: Halakhah will become merely a technical discipline—like geometry—that holds no practical wisdom and commands little respect outside of parochial Orthodoxy. Poseqim who offer amoral halakhic opinions will be just sharp legal minds devoid of kedushah. And technical applications of halakhah without moral integrity will bring opprobrium upon Orthodoxy, causing many people—even Orthodox Jews committed to fairness, ethics and compassion—to hold halakhah in disrepute.
The good news is that most Torah Jews are committed to moral integrity and are ahead of insulated halakhic authorities on these issues. They feel the moral problematics of receiving but not donating organs; they agree with IDF’s ethical standards and reject the legitimacy of targeting innocent civilians; and they are against mistreating, misdiagnosing and harming homosexual persons in the name of halakhah. These Jews need to work with halakhic authorities, demanding that their rulings demonstrate elemental fairness and acknowledge recognized standards of justice, that they maximize human welfare and respect both scientific fact and practical wisdom. And committed Torah Jews need to publically reject rabbinic decisions violating ethical standards.
We need this moral catharsis not only for gaining the respect of thinking people outside Orthodoxy or to benefit from the scientific and professional expertise of doctors, ethicists, IDF leaders, psychologists or therapists. As Rav Soloveitchik insisted, the commitment to moral integrity and quest for ethical purity flows from the deepest springs of the Torah itself. We can fulfill God’s challenge for us be holy only when we lead lives of tzedakah and mishpat. No matter how acute our technical halakhic analyses, how punctilious our observance of mitzvot bein adam la-Makom or how many additional ritual prohibitions we adopt, our lives will lack kedushah if we remain deaf to the transcendent voice of ethical responsibility.
The Torah demands that we “do what is good and right in the eyes of the Lord.” Profound commitment to moral excellence in deciding halakhah and acting toward all people created b’tzelem Elokim is no simple task. Yet God requires nothing less from each one of us—rabbis and laypersons alike—if we are to fulfill the Torah’s aspiration for the Jewish people to be a mamlekhet kohanim and an am kadosh. Only then will we be able to be mekadshai Shem shamayim to ourselves and to the world.
Rabbi Dr. Eugene Korn is the Academic Director of the Center for Jewish-Christian Understanding in Israel and formerly the editor of The Edah Journal/Meorot.