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BRIDGING THE SPECTRUMOF ORTHODOX JEWISH SCHOLARSHIP MENDELGOTTES MJ!J'

Editor in Chief

Shlomo Huttler

Associate Editors-in-chief Executive Editors Alan Stadtmauer Joseph Huttler Gerald Zimmerman Lawrence Kwass David A. Silver

Copy Staff: Isaac Corre, Uri Gordon, Nathaniel Helfgot, Joshua Hoffman, Moshe Orenbuch

Staff: D. Greenberg, Abraham Katzman, Mark Lehrman, Gidon Rothstein, Jonathan Silver, Harry Zinn

L.t.M.s.g. Editors: Benjamin Fusman, Joshua Hoffman, Judd Lesser

Student Organization of Yeshiva Executive Board '83-'84 President Shlomo Huttler Vice President Yakir Muszkat Secretary - Treasurer Shlomo Hyman

'84-'85 President David Feder Vice President Shalom Menora Secretary - Treasurer David Schmeltz

... '

Rabbi Isaac Elchanan Theological Seminary, an affiliate of Yes hiva University, Student Organization of Yeshiva, Dedication The Editorial Board of Gesher Join in expressing prc,found appreciation to This issue is dedicated to The Executive Committee of the Bernard ], and Helen Sheftman Foundation, Inc, Or, Israel Miller, Jack Sharf, Presiden t, and Sherman S. Lawrence, Secretary, for their generous grant which has helped whose unflagging efforts to make this publication possible. on behalf of student causes insured Gesher 's publication.

© All Rights Reserved 1985, by Student Organization of Yeshiva, Rabbi Isaac Elchanan Theological Seminary.

2 CONTENTS

PREFACE ...... Editor-in-Chief 7

Articles

PHILOSOPHICAL PERSPECTIVES REFLECTED IN THE DIETARY CODE ...... Judith Bleich 9

THE HALACHIC PERCEPTION OF CHURCH-STATE RELATIONS IN u.s. HISTORY ...... Zevulun Charlop 33

AESTHETICS AS MYSTICISM: RAV KOOK'S INTRODUCTION TO SONG OF SONGS ...... Daniel Landes 50

MARKET ETHICS AND JEWISH BUSINESS ETHICS- COMPARED ...... Aaron Levine 59

AZARIAH DEi ROSSI AS A CRITIC OF THE SEPTUAGINT ...... Adam Mintz 89

THE " KEDOSHIM" STATUS OF THE HOLOCAUST VICTIMS ...... Aaron Rothkoff-Rakeffet 99

THE APIKOROS- EPICUREAN, ATHEIST OR SCOFFER ...... Stanley M. Wagner 109

THE MAIMONIDEAN MATRIX OF RABBI JOSEPH B. SOLOVEITCHIK'S TWO-TIERED ETHICS ...... Walter S. Wurzburger 118

Hebrew Section

BACHER'S " AGADA IN MAIMONIDES ' WORKS" ...... Meir Havazelet 169

"THOU SHALT SURELY REBUKE THY FRIEND" ...... Norman Lamm 176

MAIMONIDES' CONCEPTION OF THE PROHIBITION OF NETIRA ...... Mark Dratch 179

5 ' PREFACE

The present volume of Gesher contains some novel items which we hope will pleasantly surprise our readers. The translations of important works that appear in this issue, for example, commemorate significant events that are occuring at this time. The widely celebrated 850th birthday of Maimonides is represented here by Meir Havazelet's translation of W . Bacher's Die Agada in Maimunis Werken into Hebrew. This monograph originally appeared in a volume entitled Moses hen Maiman, Sein Leben, Sein Werke und Seine Einfluss, edited by W. Bacher, M. Brann, and D . Simonson, Leipsig 1908-14. Hopefully, the publication of this translation will spark a renewed interest in the exegetical views of Maimonides, since this subject has not undergone intense, scholarly analysis. This year also marks the 50th Yahrzeit of Rabbi Abraham Isaac Kook. We are pleased to publish Daniel Landes' transla­ tion of Rav Kook's introduction to Shir ha-Shirim into English and thereby make this poetic work available to our English­ speaking readers. The unusual bibliographical information regarding the original appearance of this piece is discussed by Daniel Landes at some length on page 50 of this issue. The changes in format and emphasis in this issue of Gesher require some clarification. The publication of articles in Hebrew broadens the scope of our journal - as well as providing it with the opportunity to publish the work of many fine scholars who prefer to write in Hebrew. The increased emphasis on Jewish thought and Halachot governing Bein Adam le-Haveiro is deliberate. In an age when religious com­ mitment is measured by an ever-increasing devotion to the chumrot we adopt, the ethical relationships between fellow Jews and fellow human beings have been curiously neglected. The publication of serious, scholarly consideration of these is­ sues epitomizes our belief that Jewish scholarship is not and has never been devoid of moral implications.

Shlomo Huttler Editor-in-Chief

7 T

Judith Bleich

Professor of Judaic Studies at Touro College. 11:l.

PHILOSOPHICAL PERSPECTIVES REFLECTED IN THE DIETARY CODE

The basic corpus of the biblical laws of forbidden foods I constitutes the concluding section of Parshat Shemini

(Leviticus 1:1-23 and 41-47) . The dietary laws are reiterated I and amplified in Parshat Re'eh (Deuteronomy 14:3-21). These passages deal primarily with identification of permissible and forbidden species of animals, fish and fowl. In addition, there are specific prohibitions regarding a limb torn from an animal while the animal is yet alive (Genesis 9:4), against eating the sciatic sinew (Genesis 32:33), the laws of trefah (Exodus 22:3) and nevelah (Deuteronomy 14:21), as well as the thrice reiterated proscription, "Thou shalt not seeth a kid in its mother's milk" (Exodus 33 :19; Exodus 34:26; and ... Deuteronomy 25:21). The eating of blood "for the Hfe of the flesh is in the blood" is also repeatedly prohibited (Leviticus 3:17; Leviticus 17:10-12; and Deuteronomy 12:16), as is "helev", the fat covering certain portions of an ox, sheep or goat (Levi tic us 7: 23 ). There are various other categories of foods proscribed un­ der specific circumstances, such as orlah, hadash, kile hakerem, hamez on Passover, sacrificial offerings, foods consecrated to idol-worship and several foods prohibited by the rabbis such as life-endangering substances or foods prepared by gentiles.' Moreover, to be permitted as meat, Jewish dietary law pre­ scribes that animals must be slaughtered in accordance with the rites of shehitah and prepared according to the manifold prescriptions and regulations of the Shulhan Arukh .

9

j GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Philosophical Perspective Reflected in the Dietary Code

DIVINE REGULATION have no specific inherent purpose other than as dictates of The Sages of the Talmud classify the dietary laws among the God's will or, as products of divine wisdom, does each of them hukkim, divinely ordained statutes which the Jew must have a definite intrinsic value and aim, albeit one that may be observe if for no other reason than divine fiat. Thus in the clas­ unknown to man and beyond the limited scope of his com- sic talmudic discussion (Yoma 676) in which the mizvot are prehension? divided into two major categories, laws whose rational basis is Saadia Gaon classified a significant portion of the mizvot as perceived readily and those which must be accepted as a divine rational precepts (sikhliyot) and regarded even the remaining imperative, the laws of forbidden foods figure prominently in laws, those he termed traditional (shimiyot), as incidentally the latter group: having" a slight justification from the point of view of reason." " My judgements shall ye do" such matters which if they were not written He believed that although the chief importance of the latter [in Scripture] they should by right have been written and these are category is that they "represent the command of our Lord and they: [the laws concerning] idolatry, immorality and bloodshed, robbery enable us to reap a special advantage , yet ... most of them and blasphemy . " And my statutes shall ye keep" such commandments to have as their basis partially useful purposes. " 0 which Satan [other versions: and the nations of the world] objects[s] and Maimonides goes even further , asserting that there is most they are the eating of swine, the wearing of sha'atnez, the halizah per­ formed by a sister-in-law, the purification of the leper, and the he-goat to assuredly an intrinsic reason for every single precept. To as­ be sent away. And perhaps you might think those are vain things, sume that hukkim have no inherent objective whatsoever therefore Scripture says " I am the Lord," I the Lord have made it a statute would be to brand God's actions as purposeless. Hence the dif­ and you have no right to criticize it. ' ference, in his view, between mishpatim and hukkim is that As expressed in the Midrash (Tanhuma, Shemini 11), the whereas the purpose of the mishpat is self-evident the reason source of these commandments is divine sanction " and God underlying the hok is merely not readily apparent. In line with showed Moses the different species of animals and said, 'These this rationalistic approach Maimonides interprets the perplex­ ye may eat, and these not' " and their purpose is "to test and ing midrashic passage cited above as follows. Each command­ purify Israel." Their observance should be based not on the ment has a distinct objective. However, the details of the personal predilection of the individual but simply on obedience commands are arbitrary . It is thus permissible to kill animals to the divine decree. As stated by R. Eleazar ben Azariah, "I for the purpose of obtaining sustenance but the particular would indeed like them [forbidden foods] but what can I do details of ritual slaughter are tests of man's obedience.7 since my Father in heaven has imposed these decrees upon Throughout the years numerous rabbinic authorities have me?' sought to uncover the reasons and purposes underlying the In fact, the seemingly arbitrary nature of divine command mizvot. Since the middle ages scholars have striven to is emphasized by the Sages precisely in connection with the demonstrate the truth of Maimonides ' proposition that all laws dietary laws: " What difference does it make to God whether a of the Torah reflect the divine wisdom which ordained them beast is killed by cutting the neck in the front or in the back? and have endeavored to show that these laws can be made intel­ Surely, the commandments are only a means of trying' man in ligible even "to a non-Jew and even to Jews who conceive of accordance with the verse, 'The word of God is tried' " religion as involving only metaphysical principles and ethical 5 (Bereshit Rabbah, 44:1). Establishing the intent of this dictum command men ts . " s is crucial with regard to the entire question of whether or not it Turning in particular to the question of ma'akhalot assurot, is possible to offer ta'ame ha-mizvot. Do the individual mizvot one may ask what are the reasons underlying this complex body of law? Are there central motifs which recur in the varied 10 ' 11 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Philosophical Perspective Reflected in the Dietary Code

literature regarding this subject? How are the concepts "tame" which may be dangerous from the standpoint of health and (unclean) and "tahor" (clean) to be understood within the con­ suggests that some of the forbidden foods may even have a text of the dietary laws? deleterious effect on a person's reproductive system and future progeny. A similar statement is cited by Abraham Ibn Ezra, HYGIENE Commentary on the Bible, (Exodus 22 :30) with regard to trefah; namely, that in the opinion of a certain R. Moshe ha­ One of the most popular explanations of the dietary laws is Kohen, flesh of an animal that is trefah contains a type of that they are related to our physical well-being and health. This dangerous poison which may harm a person's offspring . Ac­ concept is expressed as early as the Pseudepigrapha and alluded cordingly, trefah, unlike nevelah, may neither be given to the to in the works of Philo. Although these writings are not "stranger in your gates" nor sold to a non-Jew. authoritative and did not directly affect the mainstream of rab­ Similarly, Gersonides maintains that, apart from their binic thought , it is of interest to include them in our discussion spiritual value, the laws of the Torah result in " wondrous as illustrative of a very early approach to ta'ame ha-mizvot physical benefits." In his opinion, the permitted animals are and, as shall be noted, as important examples of the allegorical those most suited nutritively to the composition of the human method of interpretation. The relationship of forbidden foods body. 10 Rashbam, Commentary on the Bible, Leviticus, 11 :3 to bodily welfare is referred to in IV Maccabees 5:25-27: also declares that those animals forbidden by God are termed " Therefore, do we eat no unclean meat; for believing our Law "unclean-tame" because they are repugnant and destructive to to be given by God, we know also the Creator of the world, as a the body. This interpretation he considers most consistent with lawgiver feels for us according to our nature. He has com­ the literal meaning of Scripture and most useful as a rebuttal to manded us to eat the things that will be convenient for our heretics. Hygienic reasons are also included by R. Aaron ha­ souls, and he has forbidden us to eat meats that would be the Levi of Barcelona, author of the Sefer ha-Hinnukh , in his contrary." Philo, whose emphasis is on the moral and ethical analysis of these mizvot. Blood and helev produce especially intent of these laws, does note the hygienic factor with regard bad physical after-effects, he avers (no. 147), and in -the case of t to the eating of nevelah which he presumes was forbidden trefah there is some indication of sickness in the animal likely because " eating such food is a noxious and insanitary practice to harm anyone who would partake of its flesh (no. 72). Thus , since the body contains the dead serum as well as blood."• the general principle applicable to the dietary laws, declares Maimonides, Guide, III, chap. 48, maintains that the for­ Sefer ha-Hinnukh, is that God, in his infinite kindness has bidden foods are unwholeshome and injurious to the body. He removed from us all harmful foods. Elaborating on this theme, believes that blood and the flesh of nevelah and trefah are he notes that of ten the adverse physical effect is unknown to harmful and cause digestive difficulties and that helev likewise man but for him therefore to deny its existence would be folly. has an adverse effect on the body, producing cold and thick For " the true physician who has warned us against them [ these blood and being more fit for fuel than for human consumption . foods] is wiser than you ... and how foolish and confounded is A host of other philosophers and commentators follow this line he who believes there is no harm or value to him in these things of reasoning. Citing medical authorities who assert that the other than that which he [himself] can determine. " 11 milk of swine may cause leprosy, Nahmanides (Commentary In modern times scientific studies and statistical surveys on the Bible, Leviticus 11: 13) concludes that doubtless all other have been undertaken in an attempt to prove that the dietary forbidden foods are possessed of debilitating properties. He laws have contributed to the endurance and physical health of dwells on the physical characteristics of forbidden animals the Jew. Specifically, sturgeon, shellfish, scaleless fish and the

12 13 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Philosophical Perspective Reflected in the Dietary Code

flesh of the pig have been singled out as causing various dis­ In modern times, this approach is found in the writings of eases.12 Certainly, however, no comprehensive analysis can be R. Samson Raphael Hirsch and R. David Zevi Hoffman . 16 cited to warrant conclusions of a sweeping nature regarding the Although Hirsch, in specific instances, did recognize an in­ hygienic value of the dietary laws. This hypothesis has, indeed, cidental hygienic value, as in the case of the concrete physical 11 often been challenged on purely scientific grounds. ' 3 With the components of blood, . he rejects medical considerations as a rapid advances of medicine and technology any possible general underlying motif. Remarking on the use of the term hygienic value of kashrut is commonly believed to have been "tame," Hirsch declares that this expression denotes " that superseded and those who base their observance on this dietary health considerations are not what lies at the root of the rationale alone consider the dietary laws obsolete. prohibition, but rather that the reasons are to be sought in that Bearing in mind these current criticisms of the hygienic sphere in which the idea tumah has its meaning." 18 rationale, it is most significant to note the opinions of those rabbis who took sharp issue with the hygienic interpretation of CONTRAVENTION OF IDOLATRY the laws of forbidden foods. Striking to the root of the problem, Isaac Abravanel comments: Opposition to idolatry has also been considered a Heaven forfend that I should believe so [that the reasons for the forbidden motivating factor of the dietary laws. As early as the beginning foods are hygienic). For if this were so the Book of God's Law would be in of the third century, Origen, one of the early Church Fathers, the ca tegory of a brief work among medical books . .. This is not the way wrote that the sacrificial code and the designation of certain of God's Law and the depth of its intentions." animals as unclean had as its aim contravention of the Egyptian In the first place, he notes, people who eat the forbidden foods cult of animal worship . 19 Saadia Gaon, in his explanation of the appear to be quite healthy and robust. Secondly, the Torah rational aspect of what he considers to be essentially a mizvah fails to enumerate poisonous herbs among the prohibitions. All shimi'it, also sees abstention from forbidden foods as a deter­ this points to the conclusion that the divine law rent to idol worship. These laws should prevent man from ii did not come to heal bodies and promote their physical health but to seek comparing the Creator to animals, either those he eats or those I,, the health of the soul and to heal its sickness .. . Scripture terms them forbidden to him. Similarly, one is not likely to worship either I [these forbidden animals] neither harmful nor inducive of sickness but I that animal which one eats or that which has been declared un­ I rather temeim, unclean, and toevah, an abomination, indicating to us that clean. 20 the reason for their having been forbidden is on account of the soul, not on account of the body and its well-being." In Maimonides' analysis of the forbidden foods, eradication In almost identical language, Isaac Arama (Akedat Yi:r.hak, of idolatrous practices is seen as an important motif. With Parshat Shemini, sha'ar 60) criticizes that view which would regard to the prohibitions against eating a limb severed from a " lower the status of the divine law to the status of any brief living animal and meat boiled in milk, he notes that these ac­ medical composition." He forsees the dangers of offering a tions were probably part of pagan rituals which, in all purely hygienic rationale, noting that if medical methods to likelihood, took place in conjunction with heathen festivals. combat the alleged physical ills should be discovered " the The biblical injunction which twice appears following the laws prohibition would not remain in force and the Torah would be concerning Jewish festivals is understood as emphasizing that festivals should not be marred by heathen practices. 21 More made a fraud." The Kie Yakor commentary, Leviticus 11 :1, and Menahem ha-Bavli, Ta'ame ha-Mizvot, negative com­ particularly, with regard to the prohibition of blood, he mandments, no. 84 , make essentially the same point. emphasizes the need to oppose and discredit idolatry, in this in-

14 15 GESHER : Bridging the Spectrum of Orthodox Jewish Scholarship Philosophical Perspective Reflected in the Dietary Code

stance worship of spirits which was intimately bound up with delicious as pig, nor among the aquatic animals as the scale­ blood rituals. Some heathens drank blood; a Jew is enjoined to less." The laws aim to train man to live in accordance with the abstain from blood. Another heathen pr.actice was to collect the mean. For the divine Lawgiver approved "neither of rigorous blood in a vessel for spirits to partake of; a Jew is told to austerity like the Spartan legislator nor of dainty living like he sprinkle and pour out the blood of sacrifices. One ritual in­ who introduced the Donians and Sybarites to luxurious and volved feasting in a circle around the blood; a Jew is com­ voluptuous practices. Instead, he opened up a path midway manded, " You shall not eat around the blood." Similarly, the between the two. He relaxed the overstrained and tightened the blood of a bayah or of birds must be covered with earth to lax. Consequently, he neglected nothing and drew up very preclude gatherings around the blood. Maimonides notes that careful rules as to what they should or should not take as the admonition against eating blood concludes with the words, food."H " I will set My face against the soul that eateth blood" Maimonides, as well, sees virtue in seeking the mean and (Leviticus 17:10) an expression used elsewhere in reference to avoiding either extreme. Divine law aims at teaching man to idolatrous practices and a further indication of the close con­ conquer his desires, for sensuality impedes man's ultimate nection of the prohibition of blood with the idea of pagan perfection. Man must not think of food and drink as the goals rites. 22 of existence. Rather should temperance and self-control pave At the conclusion of his analysis of the spiritual importance the way for the attainment of holiness. 25 of the dietary prohibitions, Abravanel also cites Maimonides' Similarly, in Hovot ha-Levavot, Bahya ibn Paquda under­ view regarding the identification of forbidden foods with scores the necessity to restrict physical desire lest untrammeled idolatry and indicates his agreement with this general princi­ lust undermine man's intellect. The intellect is preserved by ple, noting that the word "toevah " used both in connection Torah: "The Torah is the remedy for such spiritual maladies with idol-worship and with certain " unclean" foods is in­ and moral diseases. The Torah therefore prohibits many kinds dicative of their intrinsic relationship.2 3 of food apparel, sexual relations, and certain acquisitions and 2 practices all of which strengthen sensual lust." • This in­ MORAL AND ETHICAL LESSONS terpretation is in the same vein as the concept expressed in the Talmud, Kiddushin 306: Temperance The Torah is like a life-giving drug. It is as if a man had severely wounded his son and placed a poultice upon the wound, saying, "My son, so long as A primary objective of the mizvot is to teach man to control this poultice is on your wound, you can eat and drink and bathe as you and sanctify his natural desires. One of the most powerful please and you need not fear. If you remove it, however, the wound will become ulcerous." Thus spoke God unto Israel, "My son, I have created physical drives is the craving for food. Teaching self-control in the evil instinct but I have also created Torah as an antidote. Study and the gratification of instincts, the dietary laws remind man that observe the Torah and you will not be delivered into its hand .. . If you he does not live by bread alone. wish you can even become its master." Philo emphasizes the fundamental importance of these laws in teaching restraint and in curbing gluttony and ultimately Cruelty other physical excesses. He considers the forbidden animals to be those whose flesh is "finest and fattest . . . none is so One of the moral lessons inculcated by the dietary laws is an abhorrence of violence and cruelty. This message underlies 16 the laws of shehitah as well as many of the specific dietary

17 Philosophical Perspective Reflected in the Dietary Code GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship effect of what is eaten in transforming the nature of the eater. prohibitions . 21 The most obvious example is the ban against This approach is echoed in the works of a much later commen­ eating a limb cut from a living animal. Many of the commen­ tator, Malbim, Commentary on the Bible, Genesis 32 :33, who tators also see an ethical lesson in the prohibition of mingling observes that " the flesh of the animal eaten becomes part of the meat and milk. Philo comments on the impropriety of using the person who is fed and therefore [does the Torah] forbid un­ milk which sustained an animal to flavor it after death and clean foods and abominations for in partaking of them one ac­ views the person who partakes of such fare as cruelly brutal in quires the nature and cruelty of a predatory animal. " character and utterly devoid of compassion. 28 For man to eat the flesh of an animal torn by wild beasts is to descend to their level of cruelty and savagery.29 The laws of the Torah are Moral Order designed to foster precisely the opposite character traits : " With One explanation offered for some of the dietary laws is that such instructions he [Moses) tamed and softened the minds of they teach man to preserve the moral order of the universe. the citizens [of Israel). " 30 Thus Philo deemed it contrary to nature for men to eat blood, Maimonides, too, Guide III, chaps. 26 and 48, notes the the essence of the soul that sustains the life which both man ethical lessons implicit in many of these laws. If man must not and animal possess in common. 32 Similarly, the prohibition of cause grief to animals, must he not be all the more careful in his nevelah teaches us that the " fitness of things bids us to keep dealings with his fellow man? Abraham ibn Ezra, Commentary untouched what we find deceased and respect the fate which on the Bible, Exodus 23:19; Rashbam, ad lac; 31 and Nab­ the compulsion of nature has already imposed." 33 In discussing manides, Commentary on the Bible, Deuteronomy 14:21, all the prohibition of mingling meat and milk Sefer ha-Hinnukh, view the prohibition against mingling meat and milk as an ad­ no. 62, suggests that this would be contrary to the divinely or­ monition against cruel and heartless behavior. dained laws of nature , creating a mingling of various systems Some of the commentators view the eating of certain animals of natural laws which are intended to dominate different as having an actual, concrete physical effect on personality. spheres. These forces are incompatible and their merging is Hence, ingestion of cruel and predatory animals, they assert, harmful and destructive. Similarly, Kie Yakor, Exodus 23 :19 , may literally produce these cruel traits in the one who partakes remarks that the mingling of contrary elements is a distortion of them. We find this approach in the CoTT}mentary of Nab­ of nature. 34 manides, Leviticus 11:13 , who mentions that the Torah prohibits predatory fowl because the individual who consumes Symbolism of the Simane Taharah the flesh of such birds is affected thereby and acquires a cruel nature . In like manner, Sefer ha-Hinnukh, no. 148 , notes that A recurrent theme explaining dietary laws is that they are partaking of the blood of an animal is detrimental to character designed to advance moral lessons by means of symbolism. for thereby a person may acquire animal-like traits. In a rather Maimonides, Guide, III , chap. 48 , writes that the presence of novel interpretation, Kie Yakor, Leviticus 11:1, illustrates this simane taharah (the distinguishing characteristics of permitted approach with regard to different character traits. Thus, for ex­ species) is not the intrinsic reason that the particular animal is ample, the behavior of a swine, who deceivingly stretches forth or is not to be permitted but is merely a sign whereby one can a split hoof, although lacking the second prerequisite of per­ differentiate between what is forbidden and what is permitted. mitted animals, epitomizes hypocrisy. He who eats this animal Without necessarily departing from this premise, many of the imbibes hypocrisy. This interpretation is not intended as sym­ commentators did yet see secondary reasons or symbolic les- bolic but rather as describing a very real occurrence, viz., the 19 18 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Philosophical Perspective Reflected in the Dietary Code

sons which could be drawn from the physical characteristics of bolizes the manner in which a pupil should prolong the learn­ the various types of animals described in the Torah. These les­ ing process. Wisdom cannot be apprehended immediately; the sons were not to be construed as the underlying purpose of the student must recall facts by searching his memory and through dietary laws but were ethical teachings woven in to the constant rethinking arrive at firm conceptions . The cloven wondrous fabric of divine law. hoof symbolizes the discrimination and discretion needed in This allegorical method of interpretation was prevalent in distinguishing concepts. With a different allegorical twist, the Hellenistic period and in the Pseudepigrapha. In particular Philo sees the cloven hoof as indicative of the twin paths of vir­ the writings of Philo present striking examples of the symbolic tue and vice and the clear choice between them. Unclean approach. In the Letter of Aristeas the ordinances concerning animals represent either a single hoof implying that good and forbidden foods are presented as an important vehicle for the bad are identical or a multiform hoof indicating a variety of transmission of moral precepts. Unlike those commentators roads among which it is difficult to select the best path . The who espoused what might be termed a " psychophysical " ap­ fins and scales on permitted fish illustrate their ability to resist proach, i.e., that partaking of forbidden food actually trans­ the force of the stream; those lacking such characteristics are forms the physical composition of the eater's body and soul, swept away by the current. Reptiles which crawl on their the Letter of Aristeas presents a purely symbolic approach. stomachs are symbolic of the lowliness of those who devote Wild and carnivorous birds arc proscribed " as a sign .. . that themselves to gratification of the stomach. Four-footed and those for whom the legislation was ordained must practice many-footed reptiles signify subjugation to a multitude of pas­ righteousness in their hearts and not tyrannize over anyone .. . sions. On the other hand, creeping creatures such as grass­ nor rob them of anything but steer their course of life in accor­ hoppers, with legs above their feet enabling them to leap up dance with justice ... It is by such methods as these that in­ from the ground, are classified as tahor for here too " by sym­ dications were given to the wise ... " 35 In like manner, it is as­ bols he [Moses] searches into the temperaments and ways of a serted that the prohibition against touching the carcass of an reasonable soul ... Blessed are they who have the strength to unclean animal is a precaution against association with that leap upward from earthbound things into the ether and the which may destroy character. The division of the hoof and the revolving heavens." separation of the claws is symbolic of the necessity to dis­ Centuries later other commentators described the cha­ criminate between different modes of conduct Chewing of the racteristics of permitted animals as embodying moral lessons. cud is representative of that gift of memory so necessary to a These interpretations are, of course, presented by them in a people who must continually be mindful of the God of the homiletic vein, not as the literal meaning. Thus one interpreta­ Universe and the purpose of whose entire life is " to practice tion notes that the fins and scales of permitted fish express righteousness before all men being mindful of Almighty God. symbolically the need for a person to cover his body with the And so concerning meats and things unclean, creeping things protective armor of mizvot. 37 Another sees the emphasis on the and wild beasts, the whole system aims at righteousness and non-predatory nature of permitted animals as teaching the righteous relationships beween man and man. " 30 need to identify with the underdog . 38 An unusual example is Philo (De Specialibus Legibus, IV, 103-131) also remarks the comment of R. Shabetai ha-Kohen (Shakh) who discerns on the moral lessons implicit in the physical characteristics of moral connotations in the very names of the animals. " Paras" forbidden animals. He interprets the signs of the cloven hoof symbolizes an individual whose effort is directed solely to the and the chewing of the cud as symbols of the method whereby acquisition of reward (paras) ; " nesher" may be etymologically knowlege should be acquired. The cud-chewing process sym- derived from the root " nashor" -one who falls away, sym-

20 21 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Philosophical Perspective Reflected in the Dietary Code bolizing a person who discards the mizvot. Conversely, the the mizvah may serve a~ a reminder that they [Israel] remain names of permitted animals represents traits worthy of emula­ firm in their faith and their righteousness ... " assured that tion as for example "arbeh" symbolic of one who increases just as Scripture relates that "the sun shone for him [Jacob] to (marbeh) Torah and good deeds. 39 heal him and he was released from his agony, so too, shall the sun of the Messiah shine forth for us and heal us from our af­ 42 Symbolism of the Sciatic Sinew fliction . . . " Many symbolic lessons are derived from the prohibition of the sciatic sinew. Tradition teaches that the angel who fought PRESERVATION OF IDENTITY with Jacob was the guardian spirit of Esau. The Midrash in­ Particularly in the writings of modern-day scholars there is terprets the incident of the gid ha-nasheh symbolically to the emphasis on the role of mizvot in preserving the Jewish people effect that the angel of Esau "touched all the righteous who as a distinctive nation. In this frame of reference, the dietary were to be born from Jacob; he hinted to him the generation of laws can be seen as an obvious deterrent to carefree intermin­ apostacy." Nabmanides understands the Midrash as relating gling and assimilation. Assuredly, the rabbinic prohibitions that the angel indicated the destiny of Jacob's descendants and against gentile wines and foods cooked by gentiles, which were the coming of a time of overpowering persecution as in the enacted for the specific purpose of forestalling the intimacy days of R. Judah ben Baba. The prohibition may thus serve as a which may lead to intermarriage, proved effective in guarding reminder of Israel's historic destiny. 40 Gersonides, who ex­ the separatism of the Jew. plains the struggle as a prophetic vision, sees the prohibition The Letter of Aristeas takes note of this function of the miz­ not only as a symbol of Israel's history and the salvation vot and states that lest Israel assimilate "God hedged us round wrought by faith but as a deep religious affirmation of the fun­ on all sides by rules of purity affecting alike what we eat or damental importance and veracity of prophecy. 41 drink or touch or hear or see ... (142) ; the laws must teach dis­ A slightly different explanation of the same theme is to be crimination . . . because we have been distinctly separated from found in Menahem ha-Bavli, Ta'ame ha-Mizvot, neg. comm., the rest of mankind (151). " This theme is stressed by Abraham no. l. The negative precepts parallel the 365 days of the year. Ibn Ezra in his comments on" stam yenam" and in particular in Appropriately, the gid ha-nasheh, representative of the as­ his interpretation of the prohibition of gid ha-nasheh. Of the cendency of Edom, of Esau's guardian angel, is parallel to the Patriarchs it was only Jacob whose progeny were all committed ninth of Av. For a Jew to eat this part of the animal would be to the service of the true God; Abraham and Isaac both sired tantamount to incorporating into his body his bitterest adver­ offspring who were not destined to become Jews. It is most fit­ sary. ting therefore, commencing with the gid ha-nasheh, to recall Finally, note should be taken of the comments of the author God's kindness to Jacob and to continue to preserve the ethnic of the Sefer ha-Hinnukh in his beautiful and moving portrayal purity of the Jewish people by separating from the food and of this mizvah. Just as Esau's angel strove to destroy Jacob but drink of non-Jews and thus erecting barriers against as­ succeeded only in inflicting pain upon him, so too, declares similation.43This motif is also suggested by Isaac Arama in his Sefer ha-Hinnukh, the descendants of Esau may afflict Jacob's Akedat Yizhak, Shemini, sha'ar 60. The laws governing food children but can never annihilate them. This mizvah is an allu­ restrict the contact of Jews and non-Jews. These social barriers sion to Israel's ultimate redemption and is a spur to greater create a distance between them similar to that which exists faith and trust: " Remembering this whole matter by means of "between the peasant or provincial and the prince" who feasts

22 23 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Philosophical Perspective Reflected in the Dietary Code on the bread and wine of the king. Just as they are separate in The special nature of Israel's destiny is basic to the discus­ their foods so are they to be different from others in their sion of the dietary laws in the Zahar. Israel may not defile thoughts and deeds. themsleves with unclean animals in which the spirit of im­ purity dwells. To partake of such foods is to imbibe the im­ purity of idolatrous nations. The role of Israel is different: A CHOSEN PEOPLE Happy is the portion of Israel in that the Holy King delights in them and Many of the biblical commentators formulate the concept desires to sanctify and purify them above all others because they cling to Him. It is written "Israel in whom I am glorified." If the Holy One, that the laws are intended to separate Israel from other nations blessed be He, takes pride in Israel, how can they go and defile themselves in a manner which does not reflect nationalistic sentiments but and cling to the sitra ahara? ... Whoever eats of those unclean foods religious ones. The goal is expressed in terms of Israel's role as cleaves to the sitra ahara and defiles himself." a holy people. This concept can be found in the words of the In a very similar vein, R. I:Iayyim ibn A tar, Or ha-Hayyim, Bible itself: " For you are a holy people unto the Lord your God, (Commentary on Leviticus 11:1), envisions these laws as a and the Lord has chosen you to be His treasured people from special sign of privilege and honor. He emphasizes the notion among all the peoples on the face to the earth. Ye shall eat of Israel's separatism in terms of their singular mission. Com­ nothing abominable" (Deuteronomy 14 :2-3). 44 menting on the Scriptural reference "for I am the Lord your Adherence to these laws indicates recognition of the unique God and ye shall be holy," (Leviticus 11:44), Or ha-Hayyim nature of Israel's redemption from Egypt. God commands states, "the Israelite people is unique in its propensity for Israel (Leviticus 11:44-45) to differentiate between clean and holiness and purity." Only with regard to Israel did God allow unclean foods and demands such behavior because "I am the Himself to be referred to in the genitive case and therefore, in­ Lord who has brought you up from the land of Egypt to be deed, must they separate themselves from impurity. •9 your God." The Midrash comments that the Exodus occurred for the express purpose that Israel accept the laws: " Who­ soever takes upon himself the yoke of mizvot attests to the Ex­ ATTAINMENT OF HOLINESS odus from Egypt." 45 But more is involved than the special Among later thinkers emphasis on these laws · as a sym­ nature of Israel's deliverance. The Sages view the dietary code bol of Israel's separateness and unique destiny is found in the in particular as indicative of the peculiar status of the Jewish writings of the noted Enlightenment figure, Samuel David Luz­ people, i.e. , of their having been selected from among the na­ zatto. In his opinion, the various prohibitions of trefah and tions of the world in order to maintain a singular standard of nevelah, for example, serve to eliminate that which might pos­ holiness. Observance of the laws is portrayed by the Midrash sibly be degrading and to present a way of life suitable for a as the unique privilege of the Jewish people, marking the great holy people. The dietary laws serve to isolate Israel from the distinction between them and the other nations.• 0 Midrash surrounding heathen peoples and to impress upon them their Tanhuma expresses a similar concept. Explaining the word high station. 49 However, many of the commentators further " hayah" as an expression denoting " life," the Midrash develop this concept. They see these laws not merely as cre­ observes that Israel alone among the nations was given the ating a separate modus vivendi for a holy nation, but in a dietary laws for Israel alone is destined for eternal life. The case metaphysical sense, as necessary for the spiritual elevation of is analogous to that of a physician who imposes no restrictions the people and their attainment of holiness. Thus , R. David on an incurable patient but gives detailed prescriptions to the Ze~i Hoffmann (whose approach is modelled on that of Hirsch patient who may recover. 47 which we shall discuss below) observes pointedly that he ac-

24 25 GESHER : Bridging the Spectrum of Orthodox Jewish Scholarship Philosophical Perspective Reflected in the Dietary Code cepts Luzzatto's above analysis only in part; namely, that dietary laws are binding on Israel in their role as a holy people. to that of Abravanel, discusses the grave effect of ma'akhalot However , their purpose is not merely to serve as an external assurot which " harm the souls to heal which this entire [body means of distinguishing between Jew and non-Jew. Rather, he of laws] was designed." So powerful is the effect of forbidden argues, forbidden foods concretely affect the degree of holiness food on the soul that it can sever the special bond between the Jew attains. If a Jew partakes of them he defiles his body Israel and God. Or ha-Hayyim (Leviticus 17 :10) explains the and his ability to perform his divine mission is impaired. so punishment of " karet" in connection with the prohibition of The concrete effect of forbidden foods is portrayed gra­ blood as a manifestation of a cause and effect relationship. phically by Nahmanides . In his Commentary on the Bible, Blood so degrades the person who partakes of it that the special Deuteronomy 14 :3, he writes, " Forbidden foods are an 'abo­ tie which binds his soul to the Creator is severed. Conversely, mination ' to the pure soul . .. for forbidden foods are gross and by eating permitted foods, a Jew maintains a high degree of breed coarseness and impurity in the soul. " The food ingested holiness; his eternal soul is preserved and he is enabled to becomes part of the body and soul of the individual who par­ emulate the ways of God: " Ye shall therefore sanctify your­ takes thereof. By imbibing the blood of an animal one incor­ selves for I am holy."s3 porates into one's soul the " animal soul" and becomes imbued These thoughts form the basis upon which R. Samson with the animal's nature.s 1 Raphael Hirsch constructs his comprehensive exposition of the The manner in which mind and body interact is discussed fo rbidden foods and the laws of " tumah" and " taharah" as by Menahem Recanati, a thirteenth-century Kabbalist, who, in fu ndamental to the destiny of Israel as a kingdom of priests his Ta'ame ha-Mizvot , illustrates how the forbidden foods in­ and a holy nation. fluence a person's spiritual well-being. The body is the instru­ The priestly ideal of the nation is symbolized in the Sanc­ ment of the soul, serving as intermediary between the physical tu ary; it becomes a reality only in the lives of the community of world and the spiritual soul. Just as a craftsman requires fine the faithful. Hirsch views tum'at maga, uncleanliness of touch, tools for his work so too, to fulfill its task, the soul requires a referring to the carcasses of dead animals, as symbolic purity , cooperative body. Thus, ultimately the body affects the degree parallelling the symbol of the Sanctuary. Concrete ·tum 'ah, in of holiness the soul attains. Forbidden food coarsens the body, which category he classifies the dietary laws, parallels and in­ awakening the animal in man. By demeaning the quality of the flu ences the actual moral holiness, the essential kedushah, of body as an instrument of the soul and deadening its finer the people. To Hirsch tum'ah represents the absence of moral qualities, such food literally clogs the heart, is metamtem et freedom. The purpose of both symbolic and concrete tum'ah is ha-lev. 52 that man be ever conscious of his moral freedom: A common way of expressing the baleful effect of The free moral energy which should oppose the immoral paths into which prohibited foods is that they breed spiritual malaise. Thus, the demands of our desires have been driven, is weakened by eating Sefer ha-Hinnukh , no. 159, declares, " This 'tumah' damages ma'akhalot assurot. And so such eating has a baneful influence on . . . our the soul, causing it to become somewhat sick . .. The fount of spiritual lives ... it effects tumah, a laming of that sense of Godlike mastery of ourselves and certainty of being free of will and not bound the mind, the soul, becomes defective through ' tu mah.' " sl_aves to our passions . . . I have made you participate in My Nature , have Abravanel, Commentary on the Bible, Leviticus 11:13, also f ven you the power of moral self-determination, so that you reign in the speaks of forbidden foods as detrimental to spiritual well­ ittle world of forces which I have made part of your material sensuous being, stupefying the heart and deadening the spirit. Ak edat nature for you to master as a small god, accomplishing My Will of your Yizhak (Shemini, sha'ar 60), again in language almost identical own free will and determination, even as I, as the absolute Free-willed f0 d, reign over all the great forces in the great cosmos. The completely l ree personal God is the warranty of free personal Man. " Because I am ho­ 26 y, you are to be holy, and can become holy! ""

27 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Philosophical Perspective Reflected in the Dietary Code

Whereas tumah makes a person unfit for holiness, "shekez" has a singular importance above and beyond its rationale. The (abomination) stands in total opposition to spirituality. Both mizvah qua mizvah has a significance which is sui generis. In these qualities, inherent in forbidden foods, contaminate the fact, in his elucidation of mizvot, Rabbi Joseph Ber body. Only the permitted foods are suitable to preserve the Soloveitchik, author of the Bet ha-Levi, goes much further. body as the ready instrument of the soul. 55 Speaking parti~ular~y of tho~e _mizvot which a_re _com­ Turning to some of the details of the laws, Hirsch explains memorative of h1stoncal events, m light of the talmudic dictum nevelah and trefah as unsuited to a holy person for moral con­ " He [God] looked into the Law and created the world," he siderations. Blood, the essence of the animal, and helev, the postulates that God ordai~ed histo,ry to pro~ide _a ra_tionale for quintessence of selfish animal purpose, 56 are completely the mizvot. In order to satisfy mans natural mclmahon to seek heterogeneous to man. If man partakes of such food "the in­ an understanding of the mizvot, God created historical events fluences of the animal soul which still adhere to it enter with it to give meaning, in human terms, to mizvot which intrinsically into the human ... body ... 57 [It) is prone to bring about ... ar~ beyond human comprehension. Thus, in effect, " the miz­ such a depravement of human nature that could be capable of vah" was not created on account of the reason; rather the robbing the aptness for the moral heights which God's Torah reverse took place, on account of the mizvah was the reason has set for the vocation of a Jew. " 58 created. " 59 Accordingly, the dietary laws and all other mizvot of the Torah, quite apart from any specific rationalistic base, are seen BEYOND REASON as constituting the unique expression of the relationship The nature of the various rational bases for the dietary laws between God and Israel. The mitzvot alone establish commun­ are thematically correlative with diverse intellectual climates. ion between man and God. Alluding to the verse, 'That ye During the Hellenistic period, the allegorical method pre­ may remember and do all my commandments and be holy unto dominates and humanistic and ethical reasons are proposed. your God" (Numbers 15:40), the Sages declare in the Midrash : Centuries later, rationalists such as Maimonides and Rashbam Heart and eyes are the two middlemen of sin to the body, leading him favor logical explanation of the laws on hygienic grounds. In astray .... The matter is to be compared to a man drowning in water, to the religious sphere they emphasize the role of Judaism as the whom the shipmaster threw out a cord, saying unto him, " Hold fast to this cord, for if thou permit it to escape thee there is no life for thee." Likewise one purely monotheistic religion of antiquity and, in this the Holy One, Blessed be He, said to Israel, " As long as you cling to my framework, explain the significance of some of the specific laws, you cleave unto the Lord your God [which means life). .. . " Be holy, prohibitions in discouraging idolatrous practices. Mystics and for as long as you fulfill my commandments you are sanctified ... but if Kabbalists such as Nahmanides and Or ha-Hayyim portray the you neglect them you will become profaned."•• subtle psycho-physical effect of forbidden foods on body and soul. Toward the modern era we find increasing emphasis on the sociological and psychological role of mizvot in preserving NOTES the identity of Israel as a nation and in refining the character and enhancing the morality of its individual members. l. The details of both biblical and rabbinic prohibitions are discussed by Maimonides, Mishneh Torah, Hilkhot Ma 'akhalot Assurot. It must, however, be underscored that at no time did rab­ 2 binic commentators consider any particular rationale as ex­ · This concept is found in very similar language in Sifra, Ahare 13. 3· Sifra, Kedoshirn 2. hausting the implications of the mizvah. The reason offered is 4· See note 7 below. but one aspect of the mizvah; the mizvah as divine/command 29 28 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Philosophical Perspective Reflected in the Dietary Code

5. Cf., Tanhuma, Shemini 12: 17. Commentary on Leviticus, 7 :26. o1n11Jerusalem, 1965), I, 195. for all civilized persons has utterly passed away. " But even those whose 27. Cf., Rackman, pp. 72-75, for an analysis of the ethical significance of the approach is more sympathetic find these laws to be devoid of removal of blood, of the rites of shehitah and of the piety requisite in a significance to them and incongruous in present-day society and feel shohet. that "to a person raised in Western culture, it simply does not make 28. De Virtutibus, 153. sense to classify dietary prohibitions as a part of ethics. " Harold 5. Stem , 29. De Specialibus Legibus, IV, 119. "The Ethics of the Clean and the Unclean," Judaism , VI (1957), 320. 30. De Virtutibus, 161. 9. De Specialibus Legibus, IV, 119. Translated by F.H. Colson (Cambridge, 31. Heinemann, I, 149, note 4, points out that Joseph Bekhor Shor advanced 1939), VIII, 71. a similar interpretation. 10. Cited in Isaac Heinemann , Ta'ame ha-Mizvot be-Sifrut Yisra'e/ 32. De Specialibus Legibus, IV, 123. (Jerusalem, 1959),1, 98. 33. Ibid., 199. 11. Sefer ha-Hinnukh, no. 72 . 34. Cf., Hirsch, Commentary on Exodus 23:19, regarding the natural order 12. See studies cited by Kaufmann Kohler, " Dietary Laws," Jewish En- and the " Law of the Species." cyclopedia (New York, 1903), IV, 598. 35. LettP.r of Aristeas, 147-148. 13. See Claude Montefiore, ]. Q.R., VIII, 392-413. 36 . Ibid., 167. One of the specific symbols discussed in the Letter of 14. Commentary on Leviticus, 11:13. A risteas, 166, pertains to the weasel and appears to be based on a 15. Loe. cit. peculiar notion of the physical structure of that animal: "It conceives 16. Cf., Heinemann, II, 79-80. Samuel David Luzzatto points out that the th-rough the ears and brings forth through the mouth. " By disdaining the camel, forbidden by the Torah, is commonly eaten by Muslims with no weasel, man learns to avoid the mischief of expressing in speech all that adverse effect. Ha-Mishtadel, Leviticus 11 and Perush al ha-Torah, he receives through his ears. Leviticus 11:1. 31 30 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship

37. Orot ha-Mizvah cited in Isaac Sahler, Yalkut Yizhak (Warsaw, 1900) , mizvah 157, no. S. Zevulun Charlop 38. Ez ha-Hayyim, cited in ibid., mizvah 155 , no. 4. 39. Siftei Kohen on Shemini cited in ibid., mizvah 158, no. 6. 40. Bereshit Rabbah 77:4 and Nahmanides, Commentary on Genesis 32:26. Director, Rabbi Isaac Elchanan Theological Seminary and the 41. Commentary of Gersonides, Parshat Vayishlah (Venice, 1547) , pp. Mazer Yeshiva Program; Lecturer, American History, 4la-b. . Yeshiva College 42. Negative Commandments, no. 3. Malbim, Comentary on Genesis 32:33, sees another symbol in this law. Taking the gid ha-nasheh as a symbol of physical lust he sees the prohibition as enjoining austerity. THE HALACHIC PERCEPTION 43. Yesod Mora , 5, cited in Heinemann , I, 70. OF CHURCH-STATE RELATIONS 44. Hoffman , Commentary on Leviticus, chap. 11, emphasizes that the Torah enjoined separatism not to insure distinctiveness per se but IN U.S. HISTORY because of the pagan character of the surrounding nations. In refutation of a commonly-held theory that these biblical laws were borrowed from American separation of Church and State was a radical other ancient religions, he presents a comparison of Torah laws and departure from all previous relationships that existed between Zoroastrian ideas of the clean and the unclean. government and religion. 1 Although its roots can be found in 4·5. Sifra, Shemini 12. the experiments of several of the colonies, in the writings of 46. Cf., Shemot Rabbah 30:9. 47. Tanhuma Shemini 6, cited by Rashi, Leviticus 11:2. Locke and Voltaire, in the Reformation and Renaissance, in the 48. Zahar, Leviticus 416. Magna Carta and perhaps above all in the Bible, separation 49. Ha-Mishtadel, Leviticus 11. was, in actuality, a unique American invention that evolved in 50. Commentary on Deuteronomy 14. Hebrew translation by Zevi Har- the incredibly short span of 16 years , from 1776 to 1791. At Shefer (Tel-Aviv, 1959), I, 204. the outset of the Revolution, Church establishment was the 51. Commentary on Leviticus 17:10. Cf., Or ha-Hayyim, ad lac., i1Ji11" 2 "• 7Ki1 1V!'.ll:l i1l'.l1j?l'.l T1'l'.li1:li1 1V!'.ll i1J1j? ill'.lil:l • 7)'.) • 7Ki1 l;,,::i1<:l. rule in every colony with the exception of Rhode Island. Nor 52. See I. Grunfeld, " Dietary Laws, a Threefold Explanation," Tradition , was that green and lush oasis of liberty, where first were heard vol. IV, no. 2 (1962), p. 244. In general the Kabbalistic view portrays the the nascent rustlings of separation, without its bigotry. effect of the laws of the Torah not only on the individual but on the har­ Contrary to the "soul-liberty" advocated by Roger Williams, mony of the entire cosmos. its founder, citizenship and eligibility to public office were 53. Seforno, Leviticus 11:2 and 11:44. 3 54. Hirsch, Commentary on Leviticus 11:43 and 44. Citations from the limited to Protestants. Even in colonies such as Maryland and English rendition by Isaac Levy (London, 1958), pp. 302-303. Pennsylvania, where citizens enjoyed considerable liberty of 55. Ibid., verses 43 and 47. conscience, full toleration was granted only to Trinitarians or 56. Ibid. , 7:26. to those professing~ as the Saviour of the World. 4 57. Ibid., Deuteronomy 12:23. ''J: c." 58. Ibid., Leviticus 17:10. 59. Bet ha-Levi al ha-Torah, Parshat Bo. 60. Bamidbar Rabbah 17:6. To the visionary and doughty Williams belongs the distinc­ tion of having founded the first American basis for Church-

~ (Adapted from a monograph on "The History of the Evolution of the Doctrine of the Separation of Church and State in the United States")

33 32 GESHER : Bridging the Spectrum of Orthodox Jewish Scholarship Halachic Perception of Church-State Relations in U.S. History

only 25 and still wet behind the ears politically, parted com­ State separation. Not uncharacteristically of his times, it was a pany with "his older and wiser" colleagues Patrick Henry and theological one. Finding, as always, chief buttress for his views George Mason and audaciously pushed his own draft of the ar­ in the Bible, Williams, as early as 1636, broached the doctrine 11 of the Two Tablets. Government, he contended, should not in­ ticle instead. The contrast between the original draft and the one that terfere with or punish a breach of the first tablet of the Madison proposed reveals the nature and scope of the transi­ Decalogue, since these were the duties which man owed ex­ tion from establishment to disestablishment and full separation clusively to his creator. The Ten Commandments, he said, had of Church and State. Madison 's principal dissatisfaction with been writter of two tablets of stone in order to distinguish the committee's version was its limited promise of "the fullest between tho,;e duties which are purely religious and spiritual toleration in the exercise of religion, according to the dictates of and those which are secular and civil. 5 conscience. " Although the word "toleration" at one time con­ Unfortunatel y, seventeenth-century America was not yet noted the greatest liberality, it in truth restricts the full and un­ ready for Willams and when disestablishment finally came a fettered exercise of conscience. For it implies a system which hundred and fifty years later it could only indirectly be con­ makes freedom a favor sanctioned by an established church, nected with the Rhode I slander's earlier efforts. rather than a natural and inalienable right. 12 Thomas Paine in his "Rights of Man " reexpressed Madison 's view in the oft­ quoted passage, " Toleration is not the opposite of intolerance, The first blow for disestablishment was struck at the but is the counterfeit of it. Both are despotisms. The one as­ Virginia convention in 1776, one of the significant landmarks sumes to itself the right of withholding liberty of conscience, in America's quest for human liberty. Two acts of epochal the other of granting it." Madison, who early perceived these statesmanship emanated from its proceedings: an order to its obnoxious implications, urged upon the convention the alter­ delegates in Philadelphia to call for a break with the mother nate language, "all men are equally entitled to the full exercise country, and a Declaration of Rights which antedated by of (religion) according to the dictates of conscience." several weeks the Declaration of Independence and was ... Freedom of religion, in Madison 's eyes, belonged to all men by precursor to the Bill of Rights of the Constitution! right, not by grace. Thus, for the first time in any colony where The Declaration of Rights was, in largest part, little more a State-Church prevailed, an official amendment calling for than a luminous summary of the great principles of freedom outright disestablishment and elimination of all tithes and inherited from our British ancestors.• Only its last article, arti­ privileges enjoyed by the recognized church was formally in­ cle sixteen on religious freedom, represented an historic ad­ troduced.14 vance over the doctrines of Locke and Otis. 9 At that time, a For the Jew in particular, this leap beyond toleration steady stream of petitions poured into Philadelphia from signified an altogether unprecendented advance, both in degree various parts of the colonies urging the disestablishment of the and kind, in his struggle for religious freedom. It obliged him Church of England, as well as demanding exemption from to reevaluate his relationship to the greater society about him. " payment of all taxes for any church whatever", and protec­ F:om the time of his dispersion to the founding of the U.S., the tion "in the full exercise of their modes of worship. " 10 The 1st_ory of the Jew was a long dark night relieved now and then original draft of article sixteen disregarded these petitions g Y intermittent, although shortlived, bursts of light. almost entirely and conceded little if anything to the dissenters. In every case before the birth of America, it was to the in- It merely formulated what even most Episcopaleans had already accepted. Whereupon James Madison, w~o was then 35 34 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Halachic Perception of Church-State Relations in U.S. History dulgence and sufferance of an emperor, king or pope that the commenting on this contradiction between principle and prac­ Jew owed whatever measure of liberty or well-being he en­ tise, wrote: joyed. Always there remained, however, the palpable and too "t he present state of our laws on the subject of religion is this. The often realized fear that this light would be eclipsed wantonly (Virginia) convention of May 1776 , ... declared it to be a truth, and a and without notice, suddenly casting the Jew back into the national right that the exercise of religion should be free; but when they proceeded to form on that declaration the ordinance of govern­ dark shadows of persecution. Always, even in oriental lands ment instead of taking up every principle declared in the Bill of Rights, under benevolent caliphs, or in Poland during the liberal reign and guarding it by legislative sanction, they passed over that which as­ of Sigismund Augustus; or in the golden era of Spain; or in the serted our religious rights, leaving them as they found them. 1• Austria of Franz Joseph, in the background was heard the in­ The same convention , meeting again in October 1776 , this sistent and uneasy whisper of Al Tivtchu Bindeevim (Do not time as the General Assembly, " repealed all acts of parliament put your trust in Princes). 15 America represented the first in­ which circumscribed freedom of worship and suspended the stance in which a government declared that freedom of con­ laws giving salaries to the clergy, which suspension was made science is not dependent upon state favor but is rather the in­ peremanent in 1779. " 19 violable right of every individual. The old notion of Chessd However, much remained to be righted. While statutory L'umim Chatos (The kindness of nations is sinful) 16 hardly ob­ oppression of religion was being eliminated, religious restric­ tains in the American experience, for the very essense of tions imposed by common law were still extant. Under com­ America's contribution to religious liberty is the absolute denial mon law, for example, heresy was a capital offense punishable of "Chessed" (or "tolerance", its political synonym) as an ele­ by burning. Such a state of affairs could not be long tolerated. ment at all involved in its practise. Jefferson asserted that, " . .. rulers have no authority over ... Not unexpectedly, Madison 's amendment was rejected. natural rights, any as we have submitted to them. The rights of High Church forces were still, albeit precariously, in the saddle. conscience we never submitted, we could not submit. We are Madison presently offered a watered-down version of the arti­ answerable for them to our G-d. " 20 cle which was more favorably received and from which the final phrasing of the article was ultimately drawn: That religion, or the duty which we owe to our Creator, and the man­ Led by the reboubtable Patrick Henry, high Church forces ner of discharging it can be directed only by reason and conviction, not attempted a comeback during the May 1784 session of the by force or violence, and therefore all men are equally entitled to the Virginia General Assembly. 21 They proposed the incorporation free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance love of the Episcopal Church and a general assessment for the sup­ 22 and charity towards each other. "a port of the Christian religion. After extensive modification Although Madison only partially achieved. his aims, his had apparently all but stripped it of its original intent to restore endeavors for disestablishment having failed, in truth his vic­ to the Episcopal Church, or more accurately, to the Episcopal tory regarding principle was almost complete. For the clause clergy, some of the favored status it had previously enjoyed, "all men are equally entitled to the free exercise of religion ... " the bill for incorporation was passed. 23 logically precluded an established church. The friends of the The main battle for separation, however, was fought over 2 church had merely succeeded in eliminating the section that the general assessment bill. • Prospects for its passage were in­ 25 spelled out this principle. There can be no question but that itially bright. The eloquence of Henry alone was almost suf­ Madison's amendment sounded the death knell for the es­ ficient to carry it through the legislature. Again Madison was tablished church. Thomas Jefferson, in his Notes on Virginia called upon to man almost singlehandedly the ramparts of full

36 37 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Halachic Perception of Church-State Relations in U.S. History religious liberty. Jefferson was away in Paris, and his prestige came Madison's "Memorial and Remonstrance" - regarded to 2 and influence were sorely missed. • this day as the classic statement on the question of separation Madison's objections to the bill were threefold: a) Religion of Church and ~jate. was not within the purview of civil authority; b) History had The quick attainment of full religious freedom in America shown that religious establishment leads to a decline in morals was the result of a variety of practical and ideological factors. and in religion itself, and c) Since the law was expressly limited There is a tendency to ascribe almost entirely the achievement to Christian churches, an improbable task fraught with the of church-state separation to practical considerations, such as greatest danger would devolve upon the court. namely the deci­ the maintainence of amity in a pluralistically religious society, sion of the guestion "what is Christianity?" 21 the rise of commerce, the fear of immigration and not least of Adherents of the bill, in an effort to take some of the wind all the Revolutionary War itself. Wars tend to submerge inter­ out of Madison's sails, amended the measure to include all nal differences, and concessions had to be made to the dis­ religions, not only Christian sects. This version, however, was senting churches to ensure their undivided loyalty and un­ short-lived. 28 The word Christian was reinstated, although the qualified cooperation. 35 amendment was now altered to include the Presbyterians, as The Memorial'• is notable for the emphasis it places upon well as several other Christian denominations, in addition to such ideological influences. I ts stress was on natural rights, the the Episcopal church. 29 Throughout these changes, Madison social contract and the government's lack of jurisdiction over opposed any form of assessment for religion. matters of religion. While Madison by no means neglected the To Madison's profound disappointment, the Presbyterian practical considerations involved, he also gave full due to the clergy who, prior to the emendations made in the bill, were role of ideology. He said, in effect, that it would be shameful numbered among its most vociferous critics, reversed for a nation which had just severed its political bonds with the themselves completely, now that they too were assured a piece King of England because he had violated the self-evident truth of the pie. "I do not know of a more shameful contrast than "that all men are created equal" to turn around and justify in­ might be found between their memorials on the latter and equality in religious treatment. former occasion," Madison ruefully remarked. ' 0 He managed, Recognition of the ideological posits of separation is impor­ however, the next best alternative. He joined with Henry's tant. For if separation is understood as having been merely the friends in successfully pushing the old patriot's candidacy for necessary price paid for religious comity, then government the governorship of Virginia. Virginia boasted the weakest ex­ support of religion is implicitly permitted if it can be ac­ ecutive office of any state; once removed from the legislature, complished in a manner that is fair and equitable to all sects. Henry could no longer exercise decisive influence. ' 1 On the other hand, if separation is conceived of as a govern­ Bereft of Henry's leadership, proponents of the assessment, ment disability to intervene in religious affairs by reason that in order to give the bill an aura of an educational measure and such power was withheld by the people from those delegated to camouflage its true intent,32 changed its name to a bill "for es­ govern, the support of religion violates the principle of separa­ tablishing a provision for teachers of the Christian religion.'' tion even if all sects agree on the manner of sharing the state's But this and other ploys availed them little. Madison and his favor. supporters pressed their advantage and secured almost a year's The political effect of the Remonstrance was staggering. postponment 34 before the bill would ostensibly be called up for The legislature was inundated with a deluge of angry petitions a vote. Out of the war of petition and pamphlet that ensued protesting assessment. Supporters of the bill became resigned to its defeat and made no attempt even to have it called up for a 38 39 ' GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Halaahic Perception of Church-State Relations in U.S. History

37 vote. . Exploiting the favorable climate created by his the Cons ti tu tion implicitly establishes Christianity as the Memorial, Madison dusted off Jefferson's historic Bill for national religion. He adduces a similar proof from a phrase in Establishing Religious Freedom, which had previously failed the second article of section seven, "if any bill shall not be adoption in 1779, and steered it triumphantly through the returned by the President within ten days (Sundays excepted)." legislature. This signified complete disestablishment in The exception of Sunday signifies, he claims, official recogni­ Virginia. The operative part of the enactment reads: tion of the Christian day of worship, which in turn implies recognition of the Christian religion in the law of the land. •0 Be it therefore enacted by the General Assembly of Virginia that no man shall be compelled to frequent or support any religious worship, place or However, much more revealing than any of these doubtful ministry whatsoever, nor shall be enforced, restrained, molested or interpretations is the complete absence of G-d's name in the burdened in his body or goods, nor shall otherwise suffer on account of constitution. This omission, which was never rectified by any his religious opinions or beliefs, but that all men shall be free to profess, amendment, should b.e sufficient to lay to rest any doubts and by argument to maintain, their opinions in matters of religion, and about the Constitution 's secular nature. that the same shall in no wise diminish, enlarge or affect their civil capacities.,. · In a tactful and politic reply to a group of Presbyterian churches in New England which questioned him regarding the There has been a running debate throughout most of absence of any reference to the Christian religion in the con­ Amer:ica's history regarding whether or not America is a Chris­ stitution, President Washington wrote, "I am persuaded that tian country. In the first hundred years of its existence, several the path of true piety is so plain, as to require but little direc­ strenuous efforts, some enjoying wide public support , to for­ tion. To this consideration we ought to ascribe the absence of mally establish Christianity as the official religion of the any regulation respecting religion from the Magna Carta of our United States were essayed and seriously threatened the country. To the guidance of the Ministers of the Gospel, this country's non-sectarian character. Indeed, during the Civil important object, is, perhaps, more properly committed. It will War, a member of the Supreme Court itself, Justice William be your care to instruct the ignorant, and to reclaim the Strong, unabashedly served as President of the " National devious. And in the progress of morality and science, to which Association to Secure Certain Religious Amendments to the our Government will give every futherance, we may confident­ Constitution", which was formed for the express purpose of ly expect the advancement of true religion, the the completion 1 incorporating into the preamble of the Constitution explicit of our happiness."• . recognition of national faith in God and ~ .39 Possibly the only official government statement on the mat­ The Constitution itself was singled out~s ca source of sup­ ter was the following provision of a treaty the United States port for both those who claimed America was a Christian entered into with Tripoli in 1797: "As the government of the country and those who vehemently rejected this notion. Dr. United States is not, in any sense, founded on the Christian Joseph Adams, one of the cheif exponents of Christian religion, as it has in itself no character of enmity against the America, pretended to find in the Constitution justification for laws, religion or tranquility of Musselman; and as the said the assertion that "the people of the United States profess States never have entered into any way or act of hostility themselves to be a great Christian nation. " His argument fol­ against any Mohometan nation, it is declared by the parties lowed syllogistic reasoning. The Constitution contains the that no petext arising from religious opinion shall ever produce phrase "in the year of our Lord 1787". The word "our" ob­ an interruption fo harmony existing between the two viously refers to the opening words "We the people of the countries. " 42 United States." The word "Lord" of course means~ Frao! But it was Thomas Jefferson, referring to his bill for es-

40 41

~ GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Halachic Perception of Church-State Relations in U.S. History tablishing religious freedom which was passed by the Virginia safeguards were mandatory. For who could guarantee that the general assembly in 1786, who rendered spurious and specious generous temper of the country would persist even in periods the strained attempts to designate America a Christian country of strain and duress, or would not erode with time?• 0 when he noted in his Autobiography that "When the preamble The First Amendment provides that " Congress shall make declares that coercion is a departure from the plan of the holy no law respecting an establishment of religion, or prohibiting author of our religion, an amendment was proposed, by in­ the free exercise therof." Does this rule out all and any serting the word Jesus, so that it should read a departure from government-religion relationship or does it merely preclude the the plan of-.., the holy author of our religion. The insertion, state from favoring one religion over another? Some historians, rejected by a great majority, in proof that they meant to com­ looking to previously rejected drafts of the Amendment , place prehend, within the mantle of its protection, the Jew and the great weight upon the fact that an original version which stated Gentile, the Christian and Mahometan, the Hindoo, and the in­ that no " national" religion be established by law was unaccep­ fidel of every denomination. 43 table to the convention. It was abandoned, they claimed, Agitation for official acknowledgement of America's Chris­ because the word "national " could be construed only to forbid tian character reached a climax in the famous Sunday Mail con­ government from establishing and favoring one denomination troversey of the early nineteenth centure. Concerted and vocal over others but would in no way bar it from supportin g all attempts on the part of powerful Protestant groups to halt all religions on an equality basis.• 1 An examination, however, of mail handling on Sunday - on the premise that America as a the relatively scant discussion surroundin g this amendment Christian country must safeguard the sanctity of the Christian recorded in the Congressional Journ al, does not justify such an sabbath - very nearly succeeded. The effort's ultimate failure explanation. The word " national" was dropped , it would seem, was largely due to the courageous and articulate chairman of th more out of fear of offending anti-federalists who were House Committee on Post Offices and Post Roads, Richard N. suspicious of any language that tended to support a strong Johnson. In a celebrated report issued by the committee, national government, than because of any confirming or Congressman Johnson, restating the non-religious nature of qualifying properties of the word. 4 8 However, it was not until the Constitution, wrote:" ... The Spirit of the Constitution ... 1940, a century and a half after its ratification, that the regards the General Government in no other light than that of a Supreme Court finally began to provide a definitive interpreta­ civil institution wholly destitute of Religious authority." 44 As tion of the First Amendment's ban on laws respecting an es­ to the arguments that assert Christianity to be implicitly es­ tablishment of religion.• 9 tablished in the Cons ti tu tion, Johnson declared," the Constitu­ For those who are bound to a Judea-centric aunschaunng of tion regards the conscience of the Jew as sacred as that of the history, the issue of Church-State separation in the United Christian, and protects equally the conscientious scruples of States can easily be conceived as one touching the very heart­ the single individual as well as those of the whole commu­ stone of Jewish eschatology. Our founding fathers, more so nity. "•5 than any previous group of nation builders, incarnated in Just as important as the Religious Test Clause was the First themselves, both individually and collectively, the halachic Amendment which Madison engineered through Congress. criteria of Chasidei Umos HaOlam. 50 And it would not be un­ There were some who opposed the Amendment on the grounds true to say that they were representative Americans of their that it was unnecessary to spell out what already was implicit in times. Maimonides, in his code, 5 1 defines the Chas id Umos Ha the constitution and had become accepted national policy. Yet Olam as one who consciously embraces the seven Noachite others felt, and they prevailed in the end, that express commandments and assumes their observance, not merely

42 43 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Halachic Perception of Church-State Relations in U.S. History because of their intrinsic reasonableness, but as divine obliga­ cult of atheism or "con nivance in lowered moral standards." tions promulgated in Moses' Torah. The prevalence of enlightened theistic ideas among the Unlike the French fraternalists, the architechts of our founders of America was undoubtedly, responsible, at least in Republic were essentially religious men who admitted the in­ part, for the absence of any committment whatsoever, even in dispensability, if not of religious practice, of religious training the most general terms, to any Christian ideas. 57 And while and belief, to a well-ordered, decent and free society. They es­ organized Christianity many have sorely deplored this state of tablished separation almost as much out of solicitude for the affairs, from the point of view of Jewish monotheism, such ultimate good of religion as for the well-being and preservation belief and practice on the part of non-Jews, consonant as it was of free government. In the Zorach 52 decision of 1952, the with the expectations of Noachite law, could hardly be 58 Supreme Court avowed, "we are a religious people whose in­ faulted. • structions presuppose a Supreme Being." The noted American It may well be that this peculiarly Jewish insight into the critic Edmund Wilson has written: "Our conception itself of religious consciousness of early America provides the historic America as a country with a mission in the world comes down logic that best explains the tensions and incongruities that have to us from our Mosaic ancestors." 53 Even Christian divines always characterized church-state relations in the United preceding and during the revolution built their sermons almost States. Purists, since the founding of the Republic, have exclusively upon texts drawn from the Hebrew Bible. The agonized over the contradictory reality of this church-state preeminent influence of the "Old Testament " upon the separation. While the Constitution, as its authors themselves molders of our Republic is an of ten-told and well-known story. have clearly attested in their writings and utterances, calls for Although exact figures for that period are not available, the absolute divorce of government and ecclesia, there exists, in authorities generally agree that colonial America immediately actuality, a wide range of exceptions that palpable deny this prior to the Revolution obtained" the largest proportion of un­ principle and yet enjoy official sanction and acceptance. 5 churched in Christendom." • This can be directly traced to the This circumstance, we believe, flows almost inevitable out spirit of Uniterianism and deism which, as the Beards put it, of a basic religious dilemma that inheres in the national soul - hastened "the retirement of historic theology from its empire how to preserve unbreached the proverbial wall of separation over the intellect of American leaders." 55 Indeed the first four dividing church and state, which, for all intents and purposes, presidents of the United States were either Deists or is chiefly directed against Christian trespass into civil affairs, Unitarians. They are usually denominated as Deists, but , in (as Christianity constitutes the overwhelming and predominant fact, the dictionary definition of Deist, in almost every in­ majority of our society,) and yet remain a religious and God stance, is a misnomer when applied to the founding fathers. fearing nation? Even Thomas Paine and Benjamin Franklin, who were the chief In truth, American Church-State separation, precisely in its targets of religionists, believed in a providential God. Paine inconsistencies, represents probably the most practical even acknowledged a Hereafter and the Doctrine of Reward response that the expedient genius of our nation could devise and Punishment. 50 They were marked by the layman's familiar to cope with this inescapable dilemna. The fact remains that the impatience with theological controversy, and his readiness to religious test clause and the First Amendment have succeeded, invoke "a plague on all your houses." While they disallowed by in large, in frustrating explicit sectarian intrustions into our many, if not most, of the orthodox beliefs of the Christian body politic while at the S?me time allowing Americans to church, they believed unquestioningly, however, in a divine maintain themselves as a religious people whose common creator to whom reverence is due. There was among them no denominator, it would be fair to say, is mosaic monotheism and

44 45 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Halachic Perception of Church-State Relations in U.S. History

the Hebrew scriptures. Tampering unduly with separation may 8. H.A. Washington, A. Discourse, (Richmond ; Va. Historical Society. thus be halachically highly questionable as it threatens to un­ 1952). dermine the only institution the Umos Ha Olam have ap­ 9. Irving Brant, James Madison; The Virginai Revolutionist (Indianapolis-New York; the Bobbs-Merril Co., 1941) p. 190. parently ever been able to develop which fosters the establish­ 10. Sanford H. Cobb, The Rise of Religious Liberty in America, (N.Y. ment of a religious, yet non-denominational state fully con­ Mac-Millan Co. 1922. pp. 490 , 491. forming, or nearly so, with the requisites of Jewish law. 11. Brant, Virginia Revolutionist, pp. 200-201: also William C. Rives, Life & Times of James Madison (1859) I. pp. 141 , 142 . Interestingly, its coming into being coincided with a whole 12. Brant, Willaim & Mary Ouarterly, series 3, Jan. 1951 , p. 6. complex of other events - including the renaissance of Israel 13. Rives, Madison, p. 142. 14. Brant, Virginia Revolutionist, p. 430. on its land - which in their totality signify what we are dis­ 15. Psalms 146 :3 posed to call Aschalta D'Geulatha, (the beginning of Redemp­ 16. Proverbs op. cit. tion). 59 As if sensing their porten tious connecton, Maimonides 17. Brant, Virginia Revolutionist, p. 247. in his Mishne Torah sets down the laws pertaining to the com­ 18. Joseph L. Blau, Cornerstones of Religious Freedom in America (New ing of the Messiah in the same section and immediately fol­ York: Harper & Row , Revised Edition 1964) p. 80. 19. Ibid. lowing his detailed codification of the Seven Noachite laws. 20. Ibid, p. 81. Is it exaggeraed patriotism to believe that the novel inven­ 21. Gaillard Hunt , Editor, The Writigs of James Madison (N.Y. & London: tio n of American Church-State separation and religious free­ G.P. Putnam Sons , 1901) 11, 94. dom are integral to the whole progress of history of the last 22. Journals of the House of Delegates of the Commonwealth of Virginia, in the City of Richmond , May 3, 1784, (Richmond: Thomas Whit e, two cehturies pointing imminently to the ultimate and full 1828) p. 8. 00 redemption ? 23. Ibid, pp. 66 , 77 - (Madison , although in principle opposed to ec­ cleciastical incorporation , voted for the bill in order th stave off ap­ proval of the much more dangerous general assessment. Later, NOTES however , he claimed closer scrutiny of the bill showed it not to be as in­ nocuous as was first believed. 1. Philip Schaff , Church & State in the U.S. (G.P. Putnam 's Sons: New 24 . Ibid, p. 8. York & London , 1888) p. 12 25. Ibid, p. 21. Proverbs (14:43) . For a brief but excellent comparative summary of 26. Julian Boyd, editor, The Papers of Thomas Jefferson, Vol. VIII , State-Church relationships in history see Schaff pp. 12-18. (Princeton: Princeton University Press, 1953), Madison to Jeferson , 2. Loe Pfeffer, Church, State & Freedom, (The Beacon Press: Boston, May 14, 1784, p. 87. 1953) pp. 63-79. 27. Elizabeth Fleet, " Madison 's ' Detached Memorandum ' or essay 'Moon ­ 3. Ibid, pp. 78, 79. polies, Perptuities, Corporations Ecclesiastical Endownments ,' " Wil­ 4. Ibid. liam and Mary Ouarterly , III, series 3, (Oct. 1946 , 17.) 5. Greene , Evorts B., Religion and the State (New York University Press, 28. Brant, Madison, Mationalist, op. cit. 345. New York , 1941) p. 47, also Johnson , A.W. & Yosh , F.H., Separation 29. Boyd, Jefferson Papers, Madison to Jefferson , VII, 594 . of Church & State in the U.S. (Univ. of Minn. Press, Minneapolis , 30. Hunt , Madison Writing, op. cit. II, 31. 1948) p. 11. 31. Hunt, Madison's Writings, op. cit., Madison to Monroe , II pp. 94, 97. 6. Joseph L. Blau, Cornerstones of Religious Freedom in America. 32. Brant, Madison, Nationalist, op.cit., p. 346. (Harper & Row, N. Y. et al 1964) p. 35. 33. Journal, Oct. 1784, p. 52. 7 . Danile L. Pulliam, The Constitutional Convention of Va., (Richmun,l: 34. Ibid., p. 81. John T. West, 1902) pp. 11, 12. 35. Blau, Cornerstones, op. cit., 07pp. 84-90.

46 47 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Halachic Perception of Church-State Relations in U.S. History

36. H.]. Eckenrode, The Separation of Church and State in Virginia (Rich- 54, William Warren Sweet, Religion in Colonial America (New York: mond, Virginia State Library, 1910) Chapter V. Charles Scribner's Sons, 1941) p. 334. 37. Brant, Madison, Mationalist, op. cit. p. 347. 55. Charles A. and Mary R. Beard, The Rise of American Civilization 38. Blau, Cornerstones, op. cit. pp. 77-78. (New York: The Macmillan Co. 1947) I, p. 449. 39. Schaff, op. cit. p. 38. 56. Laski, The American Democracy, op. cit. p. 267. 40. Blau, Cornersones, pp. ll0, lll. 57, W.L. Sperry, Religion in America (London: Cambridge University 41. Stokes and Pfeffer, op. cit., p. 92. Press, 194.'i) p. lll. 42. Schaff, op. cit. p. 41. 58. For a revealing analysis of the religious beliefs of our founding fathers, 43. Stokes and Pfeffer, op. cit. p. 71. see Norman Cousins, " In G-d We Trust. " (op. cit.) 44. Anson Phelps Stokes, Church and State in. the United States, op. cit. II, 59. Talmud Bavli, Magillah 17a. p. 16. 60. Mishneh Torah, Melachim (Kings), Chapters 8-10. 45. Blau, Cornerstones, op. cit., pp. ll5, ll6 . 46 . Schaff, op. cit., p. 32. 47. Pfeffer, Church, State and Freedom, op. cit., p. 142. 48 . Joseph Gales, Debates and Proceedings in the Congress of the United States (Washington: Gales & Seaton, 1934) I, pp. 757-759. 49. The Supreme Court was late in meeting the issues an challenges of the First Amendment as it related to religion because it had generally been assumed that the principle of Church-State separation applied only to the Federal Government and, more specifically, to Congressional action and not to the States. It wasn't until the Supreme Court decisions in Cantwell vs. Connecticut, 310 United States 296, and Minersville School District vs. Gobitis, 310, United States 586, that there was a significant breakthrough which allowed much broader application of the protections of the First Ammendment, and which, in turn, may have produced strong counteraction for less rigid barriers between State and Religion which are evident today. Leo Pfeffer, Western Reserve Law Review, December 1961. The Cantwell vs. Connecticut case involved a Witness's right to engage in missionary activities, even to the point of arousing public animosity, so long as there is no clear and present manace to public peace. For the first time, the court explicitly held that the freedom of religion guaranteed in the First Amendment was applicable to the states no less than to the Federal government. Later in the same year, Mr. Justice Frankfurter spoke for a majority of the Court in the first flag salute cases, Minersville School District vs. Gobitis, 310 US 586, in as­ serting that the Fourteenth Amendment "absorbed" the First. This belated development opened the door to many cases that would not have reached the Supreme Court in earlier times but now come under its jurisdiction. 50. The Righteous of the Peoples of the World, Tosefta Sanhedrin 3. 51. Mishneh Torah, Melachim (Kings) IX:ll 52. op. cit. 53. Underlining ours, New York Times Book Review, May 30, 1965. p. 16.

48 49 Rav Kook's Introduction to Song of Songs Daniel Landes toward His creatures. And there is a form of love, felt in the soul, which stems from the essential ascent of the soul to the Founding Faculty Member of Y.U.L.A., where he teaches love of the Absolute Good. This latter love is fundamental and Talmud and Jewish Thought ; and of Simon Wiesenthal is more precious than that love rooted in a spiritual perception Holocaust Center, where he serves as National Educational Projects Director. of reality. In order to accurately portray this fundamental love one needs all the many and great descriptions employed in the Song of Songs. Therefore " the entire world is in itself not as AESTHETICS AS MYSTICISM : worthwhile as the day in which the Song of Songs was given to RAV KOOK'S INTRODUCTION lsrael. " 5 TO SONG OF SONGS " ... For all of Writings is holy and the Song of Songs is the Holy of Holies." Literature, painting and sculpture 6 have the potential to realize all the spiritual concepts impressed into the depth of the human soul. As long as even a trace of a line­ Rav Kook's introduction to the Song of Songs was first concealed within the depth of the soul-is lacking realization, published in HaMizrah (Cracow, 5663 ). 1 It was reprinted in the the service of art is still obligated to bring it forth. It is under­ journal, Almah (Jerusalem, 5696) 2 and in a slightly expanded stood that it is good and proper to open only those treasures revised version with Olot Rayah, 3 Rav Kook's prayer book. In whose opening will perfume the air of reality. "Every utterance Almah, it was preceeded by a short note by Dr. Benjamin which departs the mouth of the Holy One Blessed Be He per­ Manasseh Lewin, the noted Talmudist and a student of Rav fumes the entire world" (Shabbat 88 : b ). Kook, explaining the piece's origin: Indeed, in response to (even hearing) foul matters-whose On one of the daily walks that I took with our glorious and holy Master (commanded) burial is its (deserved) destruction-is fixed that and Teacher-may the memory of the righteous be for a blessing-on the 'spike' (fingers) to dig (into) and to cover up (one's ears)! And outskirts of Bausk (Kurland) in 5661, the following ideas flowed from his woe to he who uses his 'spike' in an opposite action, (to write) holiness' mouth. Immediately I placed my pencil in his hand, and sitting 8 on a rock by the ruins of a wall he recorded, with my pencil, these words. for seductive intent. Soulful agitation arising from the feel­ Afterwards I sent them to HaMizrah, and they were first published there ings of natural love which play a large role in reality, both in under the title Ayin A'Y'H.• ethics and in life, are fittingly explicated through all of This translation follows the Olot Rayah version; significant li_terature's means of realizing the concealed. But this process differences between this version and the earlier two are noted. must be accompanied by the highest guarding from a potential The context of Rabbi Akiva's statement is the famous discus­ inebriation latent within these feelings, which would pervert sion in the Mishnah as to the place of the Song of Songs within their natural purity into wretched impurity. Only holy people the canon. are fit to be poets of holiness. It is considered to be a fundamental lacuna in any literature TEXT when the innermost inscriptions of natural love are not Rabbi Akiva said, " The entire world is in itself not as brought forth. How much more fitting is it to consider as a worthwhile as the day in which the Song of Songs was given to lacuna the high and sublime agitations which influence, have Israel, ... " (Yadayim 3: 5 ). There is a love directed toward the influenced and will influence all good men and especially the Blessed Name which stems from creation and its splendor-the community of Israel, all flowing from the love of the Master of Grace of God which fills the universe and His Goodrress All Actions, the source of good and of graciousness-if these

50 51 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Rav Kook's Introduction to Song of Songs beloved feelings are not inscribed in a book and their place is departed; only he could decare that " the whole world is in itself empty. Can the depth of this emotion of love be plumbed? Will not as worthwhile as the day in which Song of Songs was given it be spent in the course of many days or can it be contained by to Israel, for all of Writings is holy and the Song of Songs is the even the uppermost heavens? Holy of Holies. " This vacuum of expression has, in truth, been filled for us Indeed, as with a drop of water from the sea, as with a in that love song which is the Holy of Holies, The Song of spark from a torch flame ascending to the heart of heaven, or Solomon. An ass in matters of love cannot even sense what with a single letter from a large and weighty tome-this lofty romantic poets desire to express in their personal poems. If it soul knew how to set personal love in the proper setting. He were possible to distort these yearnings in order to fit his gross possessed pure, natural love, an enlightened, patriotic love, and tastlessness, he would do so with a joyous heart and a willing the holy divine life full of splendour-all set in a harmoniou s spirit. Similarly, there is the uncircumcised heart, who has array " as the tower of David well built. " (Song of Songs 4:4) never tasted the ascent to the heights of holy thoughts and has How lowly, in contrast, are those bleary-eyed pygmies who never intuited the pleasant light of the Rock of All the Worlds. creep around the base of the stone columns of the citadel's Such a foolish and unwise person cannot contain the thought tower. They attempt to estimate its height, which reaches to the that the many personal sublime yearnings expressed in The clouds, in accordance to their puny arm span and through a Song of Songs are the reflectior.s of a treasure concealed within bespotted and cataractal vision. And if those at the cap of the the soul of that nation which has chosen God for His Sake and tower call down the message that they can sight a star awash in Commemoration. He denies this thought for he does not feel at splendour and beauty, those at the bottom will immediately all any deficiency in the absence of a locus for such an emotion conclude that this glorious star must, in actuality, be quite low­ which he himself has never known. ly. Such souls see in Rabbi Akiva only a shepherd who loved But one whom God has not denied wisdom will perceive the beautiful9 daughter of Kalba Savu'a. They cannot fathom and intuit the nature of the canon of Holy Scripture of that his wondrous decision that the Song of Songs is the Holy of holy nation whose history is replete with manifestations of Holies of the Writings. They can only understand the decision soulful love for the Strong Rock-in its age of development to include it in the canon as emanating from his simple per­ and splendour evoked through a sublime graciousness filled sonal love for Kalba Savu' a. 10 But the pure of heart see Rabbi with splendour, and in the age of poverty and depression Akiva in his greatness: laughing even as the foxes exited the aroused strengthened and brought to a felt reality by rivers of Holy of Holies because within his giant soul the distant future blood and a flood of great and evil calamities. It is completely · was an imminent present; full of mirth even within the sound and totally impossible that these yearnings would not be of the approaching Roman army, for the love of God which recorded in a book written for that communal treasury of flowed from the innermost recesses of his heart instructed him Scripture wherein all our thoughts of holiness lay. till it was clear as a living picture that Rome and her idols will Truly, only he who when they tore his flesh with iron totally disappear and the light of Zion will shine forever. Th e combs could respond, "all my life I was troubled by the verse " love with delight" (Song of Songs 7:7) of this vision of th e 'You shall love the Lord your God with all your heart and soul future certainly so filled his pure heart until it had no place for .. .' when shall I have the opportunity to fulfill it" (the implied heartrending sighs at the trembling present which he perceived command "even if they take your soul" -that is, martyrdom); as only a wispy cloud blocking the face of the sun, bright in th e and at that moment could prolong the recital of "(Hear 0 heavens. Only from the mouth of he whose soul departed with Israel, the Lord is thy God the Lord is) One" until his soul the utterance of " One " was it suitable to state that " all of th e Writings is holy but the Song of Songs is the Holy of Holies." 52 53 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Rav Kook's Introduction to Song of Songs

TRANSLATOR'S ANALYSIS results from the soul being true to itself, discovering its source The power, and often confusion, of Rav Kook's evocative of existence within God. This soulful love may well be prose in this piece stems from his transversing several planes of preceeded in the life of faith by love aroused through creation. discourse simultaneously. In this regard, mysticism is not only Nonetheless, soulful love remains, essential, fundamental and the content and the flavored language of the discussion, but therefore automonous. As . can be expected in a mystical also forms its spiral structure: diverse strands , winding up and scheme, all else-the world and even the love of God inspired around in ever-finer elucidation, finally twist into one. The fact by it-pales into insignificance before it. that they do so effectively is even more startling, or more The difficulty with soulful love lies in its description. Yet in revealing, upon consideration of the essay's history. Emanating order to be internalized soulful love must be communicated ; its from reflections upon a highly suggestive text that burst into uniqueness places it outside of scientific language. The solu­ peripatetic conversation, and heatedly written down under the tion is not to define, but rather to evoke it. The most powerful urging and watchful eye of a devoted and brilliant student who language available is the worldly descriptions of the Song of converted it into an essay of literary criticism, it is itself a small Songs. The Romantic sexuality which lies at the heart of the literary gem. Eventually the piece was returned to his prayer Song of Songs expresses the unique intimacy, full under­ book and placed underneath the Song of Songs, producing the standing, excitement and danger, and shyness and boldness classic" Jewish merging of text and commentary and serving as a that exists between true partners. The implication of Rav starting point for further commentary. The result is a Kook's position is that the Song of Songs's worldiness cacophony of voices: quiet personal reflection; intimate demonstrates the fact that the world exists in terms of ultimate dialogic teaching; critical polemic. At the same time the essay/ significance only as a metaphor for the soul's communion with commentary contains, both directly and more subtly, a wide God. The entire world itself-even as it inspires love of God range of strong human experiences: the reciprical courtship of through mediation or experience of creation-only becomes the Shulamite and her lover; sexuality and romantic love; Rab­ worthwhile when it is used for the purpose of exploring the bi Akiva's loves; and the people of Israel's relationship to God. ultimate meaning of the soul's attachment to God. Also, at the beginning and at the end is the mystical vision of The rapid ascent of the soul would seem to lead to a con­ the soul's ascent to the love of God. Clearly these arguments comitant degradation and denial of the validity of life lived on and their assumptions must be analyzed strand by strand, with the lower levels. The world becomes a snare to avoid, a chain to the recognition that they are not meant to stand alone. be unlocked or a dream from which wake. Rav Kook, who is The direction of the argument is to posit a two-tiered ap­ bound and committed to the world from both concrete proach to the love of God. The first is inspired by an apprecia­ Halakhic and nationalistic presuppositions and tasks, under­ tion of nature, either in the medieval philosophic mode which stands the world not as being threatened, but as actually being saw the evident perfection of the universe as a philosophic supported, with its existence validated by the ultimate reality of proof for God and a compelling reason to love Him, or the the Divinity. Man's task is to fulfill each level-or in a mode suggested by Psalms, Hassidic stories and Mussar reflec­ historical linear fashion, each stage-in order that it might be tions in which the force and beauty of nature brings the one ex­ ready for a transformation to the next level. Thus , there is a periencing its charms to intuit and love God who stands behind religious need to explicate all forms of natural (that is romantic) it. The worth of the world lies solely within its capacity to bring love, as well as other emotions hidden within the human con­ one to God. Standing qualitatively apart is the second tier, the sciousness. While working in an overtly secular context, art ac­ love that is not inspired by external causation, but rather tually performs a spiritual task: it helps us to develop our humanity through making us more aware of it. This readies it for a spiritual transcendence. 54

55 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Rav Kook's Introduction to Song of Songs

This potential for transcendence becomes Rav Kook's most and later as Master, his love for Rachel, daughter of the important criterion of aesthetic validity. Depiction of sexuality wealthy Kalba Savu' a, is perhaps the romantic love story of the undertaken for 'seductive intent' is decried for its limited vision Talmudic sages. His love of nation was exemplified in his sup­ of pleasure as an end in itself. The ontology of this world de­ port of Bar Kochba's revolt. As the Master of aesthetic judge­ pends upon its possibility for tral'l.scendence. It is guaranteed ment who adorns the Torah's letters with crowns, his love an existence only if it remains rooted in that ultimate reality. If brought him to identify its study with life itself and to th-ereby it ends its attachments to that truth it shall be left dangling in a put his own life at risk in its propagation. This martyrdom as a sea of meaninglessness. Kadosh-a holy one-with the declaration of God's unity on Rav Kook's political vision parallels his aesthetic theory. In his lips was a culmination and confirmation of these values. order for the soul of Israel to reach its highest plateau, it is Most importantly, Rabbi Akiva is depicted as an integrated necessary to have at first a complete physical renewal of the personality whose loves were arranged harmoniously , each in people within its own land. Here too, it is only by bringing their proper place-all accepted, none denied. The placing of forth all potentialities on the natural level that the spiritual the Song of Songs in the canon is in the end an aesthetic judge­ level is able to have its due. With this affirmation comes a chal­ ment. While aesthetic theory can be rationally described, its lenge. Rav Kook summonded the haluzim to discover the premises and applications to individual works are notoriously spiritual dimension of their pioneering activities in the land. subjective. At some point it comes down fo taste and sen­ Similarly, he called for the Hebrew maskilim to retrieve and ex­ sitivity-either one can see or hear what is going on in the plicate the topic of the soul's spiritual needs and yearnings. He work and how effective it is or one can't. Rabbi Akiva is presents the Song of Songs as a paradigm of worldly material depicted as the individual with the sharpest intuitions in the which has been made to represent a spiritual reality. Artists are matters of love and literature. His aesthetic judgement and in­ urged to respond to Solomon's model in explication of this tuition decided canon. most true and concealed of human emotions. In his spiritual The effect of Rav Kook's description of Rabbi Akiva's diary, Rav Kook summarized this view: work here is profound. Rav Kook deals with the Song of Songs The faculty of love must be developed in all its details so that it will ahistorically. He does not even mention Solomon, much less at­ demonstrate all of its treasures of cognitive, emotional and imaginative tempt to prove the book 's validity on the basis of his personal life. And then will God's treasure be brought (into our existance)-that is the ascent to that emanated love that bears the Name of God. In a like authority . By refusing to do so he frees the Song of Songs from fashion, the aesthetic faculty is generally needed to be well-developed to being locked into a specific time and place. This ahistoricity the point in which the soul, strengthened by a picture of emanated Glory, contributes to the book 's identification as representing a will be able to stand at the very apex of its potential height. Consequently primary experience. A worldly book, like the world itself, has this generation 's literature together with the desire for expansion of no meaning until one is imputed , or discovered within. Rabbi beauty which has seized it-although both incline toward secular matters, at times becoming greatly defiled-are none other than the steps and Akiva was the revealer of the Song of Song's meaning which preparations to the exalted purity of the sublime splendour that will ap­ rendered it a new and central element of the canon. Rabbi pear in the world. 11 Akiva is the critical and sensitive reader-as-author. With this Rabbi Akiva, in Rav Kook's eyes, becomes the perfect com­ revelation came a revelation of the world's mystical meaning as bination of lover and aesthete who alone can recognize the true a metaphor for a higher level of being. meaning of the literary paradigm which is the Song of Songs. Rav Kook revels in Rabbi Akiva's own disregard for his­ Rabbi Akiva's biography-rather than his scholarship tory's categories. Rather than engaging in apologetics for Rab­ alone-is his authority in this matter. As Akiva the hired hand bi Akiva's overt messianism with Bar Kochba, Rav Kook sees it as one of his most compelling attributes. Rabbi Akiva is 56 57

.. GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Rav Kook's Introduction to Song of Songs

This potential for transcendence becomes Rav Kook's most and later as Master, his love for Rachel, daughter of the important criterion of aesthetic validity. Depiction of sexuality wealthy Kalba Savu' a, is perhaps the romantic love story of the undertaken for' seductive intent' is decried for its limited vision Talmudic sages. His love of nation was exemplified in his sup­ of pleasure as an end in itself. The ontology of this world de­ port of Bar Kochba's revolt. As the Master of aesthetic judge­ pends upon its possibility for transcendence. It is guaranteed ment who adorns the Torah's letters with crowns, his love an existence only if it remains rooted in that ultimate reality. If brought him to identify its study with life itself and to th'ereby it ends its attachments to that truth it shall be left dangling in a put his own life at risk in its propagation. This martyrdom as a sea of meaninglessness. Kadosh-a holy one-with the declaration of God's unity on Rav Kook's political vision parallels his aesthetic theory. In his lips was a culmination and confirmation of these values. order for the soul of Israel to reach its highest plateau, it is Most importantly, Rabbi Akiva is depicted as an integrated necessary to have at first a complete physical renewal of the personality whose loves were arranged harmoniously, each in people within its own land. Here too, it is only by bringing their proper place-all accepted, none denied. The placing of forth all potentialities on the natural level that the spiritual the Song of Songs in the canon is in the end an aesthetic judge­ level is able to have its due. With this affirmation comes a chal­ ment. While aesthetic theory can be rationally described, its lenge. Rav Kook summonded the haluzim to discover the premises and applications to individual works are notoriously spiritual dimension of their pioneering activities in the land. subjective. At some point it comes down to taste and sen­ Similarly, he called for the Hebrew maskilim to retrieve and ex­ sitivity-either one can see or hear what is going on in the plicate the topic of the soul's spiritual needs and yearnings. He work and how effective it is or one can't. Rabbi Akiva is presents the Song of Songs as a paradigm of worldly material depicted as the individual with the sharpest intuitions in the which has been made to represent a spiritual reality. Artists are matters of love and literature. His aesthetic judgement and in­ urged to respond to Solomon's model in explication of this tuition decided canon. most true and concealed of human emotions. In his spiritual The effect of Rav Kook's description of Rabbi Akiva's diary, Rav Kook summarized this view: work here is profound. Rav Kook deals with the Song of Songs The faculty of love must be developed in all its details so that it will ahistorically. He does not even mention Solomon, much less at­ demonstrate all of its treasures of cognitive, emotional and imaginative tempt to prove the book's validity on the basis of his personal life. And then will God's treasure be brought (into our existance)-that is the ascent to that emanated love that bears the Name of God. In a like authority. By refusing to do so he frees the Song of Songs from fashion, the aesthetic faculty is generally needed to be well-developed to being locked into a specific time and place. This ahistoricity the point in which the soul, strengthened by a picture of emanated Glory, contributes to the book's identification as representing a will be able to stand at the very apex of its potential height. Consequently primary experience. A worldly book, like the world itself, has this generation's literature together with the desire for expansion of no meaning until one is imputed, or discovered within. Rabbi beauty which has seized it-although both incline toward secular matters, at times becoming greatly defiled-are none other than the steps and Akiva was the revealer of the Song of Song's meaning which preparations to the exalted purity of the sublime splendour that will ap­ rendered it a new and central element of the canon. Rabbi pear in the world. 11 Akiva is the critical and sensitive reader-as-author. With this Rabbi Akiva, in Rav Kook's eyes, becomes the perfect com­ revelation came a revelation of the world's mystical meaning as bination of lover and aesthete who alone can recognize the true a metaphor for a higher level of being. meaning of the literary paradigm which is the Song of Songs. Rav Kook revels in Rabbi Akiva's own disregard for his­ Rabbi Akiva's biography-rather than his scholarship tory's categories. Rather than engaging in apologetics for Rab­ alone-is his authority in this matter. As Akiva the hired hand bi Akiva's overt messianism with Bar Kochba, Rav Kook sees it as one of his most compelling attributes. Rabbi Akiva is 56 57 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship

Aaron Levine depicted as knowing the truth that the present is only " a wispy cloud blocking the sun, bright in the heavens," ready to be blown away. For Rav Kook progress through history was, at its Professor of Economics at Yeshiva College heart, an act of consciousness raising. 12 Rabbi Akiva stood at the end of history waiting for the rest of his people and for time MARKET ETHICS AND to catch up. The major midrashic tradition which understood JEWISH BUSINESS ETHICS­ the Song of Songs as representing the history of the Jews up COMPARED through the Messianic era is represented here. In Rav Kook's presentation, Rabbi Akiva's understanding of the Song of Songs is as much a judgement about history as it is one con­ cerning history. Both aesthetic and historical categories are MARKET ETHICS ultimately elided into the mystic vision. Proponents of the free enterprise approach claim that a NOTES competitive environment acts as an automatic check against fraud and unethical conduct in the market place. Fear of losing 1. pp .. 352-354 . a customer to a competitor will restrain the seller from charging 2. pp. 43-44 . above the competitive norm, inhibit him from misrepresenting 3 . Olot Rayah (" The offering of Rabbi Abraham Isaac Ha-Kohen Kook" ), Vol. 11, edited by Zvi Yehudah Kook. (Mosad Ha-Rav Kook and his product, and discourage him from adulterating it. Agudath Lehotzoat Sifre Harayah Kook, Jerusalem, 5710) pp. 3-4. The growing complexity of the products of the modern in­ 4. " The Eye of A(vraham) Y(izhak) H(akohen Kook)." dustrial economy has not dampened the faith of many propo­ 5. This paragraph , found in the Olot Rayah version, does not appear in the nents of free enterprise in the efficiency of the marketplace as a other two versions. self-regulating mechanism against fraud. While individuals 6. This reading follows the earlier two versions. The phrase haziyur vehahituv is replaced in Olot Ha Rayah by ziyurah vehituvah sur- may not be capable of judging the quality of complex products, rounded by commas as an appositive phrase modifying hasifrut. Th e specialists capable of such assessment, to be sure, exist. The resulting translation would be " Literature, its design and structure ," an success of these specialists, such as department stores and other awkward phrase which adds nothing to the discussion except to middlemen, hinges heavily upon the reputation of reliability eliminate the plastic arts from the discussion (which might well have they build up among their customers. 1 been the object of this edition which came after Rav Kook's death)' Faith in the disciplinarian force of the competitive process 7 . Deuteronomy 23:14 commands concerning the armed camp ready for battle: " With your gear you shall have a spike, and when you have does not make free enterprise advocates oblivious of the need squatted you shall dig a hole with it and cover up your excrement." for contract law and provisions for the enforcement of these Ketuvot SA comments " do not read azanekha-gear-but rather laws. 6znekha-ear; that if a man will hear an improp er matter, he shall place Contract law provides an essential ingredient for the ef­ his finger in his ear ... (for) human fingers are similar (in form) to ficient functioning of the economic system. By furnishing spikes." 8. Literally : " to increase with a woman. " prospective transacting parties with information regarding the 9. This word is missing in Olot Rayah. consequences of commitments, including the contingencies 10. In Almah the following is added: (This path was taken by a venerable that may defeat an exchange, contract law fosters voluntary ex­ writer in Luah Ahiasaf). change. Besides maintaining appropriate incentives, contract 11 . 'arple Tohar (HaMakhon Al Shem Ha R'Z'Y' H Kook, Jerusalem, 5743) law reduces the costs of entering into voluntary exchange by p. 42 . 12 . Ibid, pp. 131 -132. 59 58

~ Market Ethics and Jewish Business Ethics-Compar ed GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship

marketplace. These regulations include a disclosure obligation supplying a set of normal terms, which, in the absence of con­ for the seller; the appointment of market comissioners to en­ tract law, the parties would have to negotiate themselves. Final­ force the price ceilings set for essential foodstuff; the appoint­ ly, without contract law, parties would be discouraged from ment of commissioners to supervise the manufacture and com­ entering into exchanges in which the performance by one party mercial use of weights and measures; and judicial redress called is def erred. 2 for to invalidate or otherwise modify transactions concluded at While fear of punitive consequences deters amoral man variation from the competitive norm. Discussion of the from market misconduct, his need for social approval and specifics of these regulations will not be undertaken here, as we desire to advance his economic well being impel him to trans­ have treated these topics elsewhere. 4 Instead, our task will be to act ethically. Given that the preference of the marketplace is for present the general ethical principles to which Judaism subjects integrity and quality products and services, excelling in these market participants. Concentration will be on aspects of Jewish standards will confer the participant with social approbation morality that appeal to man's fear of G-d and to the nobility of 3 and economic well being. his spirit. Specific moral principles to be discussed include the Relying on the competitive environment and society's legal following concepts: veYoreta me'elokekha ; lifnim meshurat institutions to check fraud and deceit in the marketplace may hadin; and kofin al midat s'dom. pro~uce very disappointing results. When competitive forces are weak and the information channels are poor, the automatic VEYORETA ME'ELOKEKHA check of the marketplace against fraud and deceit is rendered nugatory . Moreover, man's avaricious side may convince him Cunning and shrewdness can of ten camouflage deceitful that artful cunning and sophisticated deceit will go undetected and fraudulent conduct and avoid for the perpetrator both legal and represent for him the best route to large profits. consequences and social outrage. With this possibility in mind, Evidencing society's rejection of the notion that the the Pentateuch invokes the exhortation And thou shalt fear thy marketplace exerts an automatic check against fraud and deceit G-d in connection with those of its moral prescriptions which is the current consumerism movement. This movement has all are likely to be viewed as easily violated without detection.5 but transformed the operational philosophy of the marketplace Two of these prescriptions, applicable to the marketplace, are from one of caveat emptor ("let the buyer beware") to one of the prohibition against offering ill suited advice (lifnei ivver lo seller responsibility and accountability. Legislative acts and titan mikhshal, Leviticus 19:14) and the injunction against judicial rulings have imposed higher standards on the seller in causing someone needless mental anguish (ona'at devarim, the areas of disclosure, product safety, warranties, and truth in Leviticus 25:17) . Both of these injunctions illustrate the in­ packaging and advertising. In addition, judicial rulings have herent weakness of a system of ethics rooted in economic self­ voided business contracts on the grounds of unconscionability interest. and unequal bargaining power between the parties involved. Let us first take up the lifnei ivver interdict. Modern market participants such as real estate agents, stock brokers and JEWISH BUSINESS ETHICS salesmen are frequently thrust into the role of counselor and adviser. Economic gain may tempt these specialists to offer Jewish law rejects the notion that the competitive market­ their clientele ill-suited advice. Given their professional place serves as an automatic check against fraud and deceit. standing and the relative naivete of their clientele the automatic Evidencing this rejection are the manifold regulations halakha check against this tendency may at times prove very weak. To institutes for the purpose of safeguarding the integrity of the illustrate, a shrewd real estate agent may be able to persuade a

60 61 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Market Ethics and Jewish Business Ethics-Compar ed young, naive couple to buy a generally undesirable home. His ill-suited advice may never be fully or partially detected as the small and offer only a limited number of models with no expert young couple may come to stoically accept all the unexpected salesmen at hand. These establishments do, however, provide repairs and financial problems associated with their home as their customers with catalogues which display color photo­ problems common to all homeowners. graphs of the models not available in the store along with in­ Another example of a circumstance that produces a tempta­ structions regarding the proper use and maintenance of the tion on the part of a professional to offer counsel that serves product. Due to the savings effected by maintaining a skeletal his own economic interest, but not necessarily the best interests sales force, a limited range of samples, and so forth, the of his client, is the travel agent's dealing with an inexperienced catalogue stores, in some instances, can manage to undersell the client. Out of confidence that his judgment will be relied upon, showroom outlets. Pricing an article, such as a piece of fur­ the travel agent may enthusiastically recommend an un­ niture, at the showroom establishment, and taking advantage seasoned traveller to stay at a commission-arrangement hotel of its display service and then ordering the same item at the during his overseas vacation. The appropriateness of the advice catalogue store is, in our view, morally objectionable. Since the may never be questioned as the client is not likely to engage in consumer has no intention of purchasing the item at the further inquiries regarding available accomodations. showroom store, the disappointment the salesman experiences The prohibition against causing someone needless mental when the inquiry does not consummate into a purchase anguish (ona'at devarim) provides another example of the need amounts to a violation of the ona'at devarim interdict. to evoke ethical conduct by appealing to the nobility of man's With shrewdness and tact enabling the unscrupulous con­ spirit rather than to his economic self-interest. Ona'at devarim sumer to elicit from showroom salesmen both a demonstration in a commercial setting is illustrated when an individual prices of the product and all other information he desires, all along an article while having no intention to buy it.• What is objec­ camouflaging the real intent of his inquiry, discouragement of tionable here, according to R. Menahem b. Solomon of Per­ such conduct can only be achieved by appealing to the nobility pignan (1249-1316), is that pricing an article creates an an­ of man's spirit, rather than to his economic self-interest. ticipaiton on the part of the seller that he will make a sale. This anticipation is dashed when the inquirer decides not to pursue LIFNIM MISHURAT HADIN the matter further.' While the prospective buyer need not con­ Judaism directs man in his interpersonal relations to exhibit cern himself with the disappointment a vendor may experience a measure of generosity and benevolence towards his fellow should his price inquiry not consummate into a purchase by man. Adherence to this standard requires him to occasionally him, pricing an article he has no intention of buying causes the waive his own legal rights in order to advance the economic vendor need less distress and hence is prohibited.• well being of his fellow man, and is referred to as lifnim mis­ Within the context of the modern consumer durable hurat hadin, i.e., acting above and beyond what one is expected market, economic gain may delude an individual into thinking to do according to strict legal rights and du ties. This moral that he can violate the ona'at devarim interdict without detec­ principle is exegetically derived by R. Joseph from the verse: tion. Modern retail outlets serving the consu'mer durable ... and make them know the way wherin they must go, and market essentially fall into either of two categories. One set of the deeds that they must do (Exodus 18:20}. and the deeds-­ stores offer an elaborate showroom displaying a variety of means strict law; that they must do-means lifnim mishurat models along with expert salesmen who demonstrate their had in.• proper use and maintenance. Another set of stores are typically Underscoring the importance Judaism attaches to the lifnim mishurat hadin behavioral expectation is R. Johanan 's dictum: 62 63 GESHER : Bridging the Spectrum of Orthodox Jewish Scholarship Market Ethics and Jewish Business Ethics-Compared

Jerusalem was destroyed only because they gave judgment would circulate. Upon learning of his mistake, R. Hiyya, acting therein in accordance with the law of the Torah and did not ... lifnim mishurat hadin, chose to reimburse the woman for her act lifnim mishurat had in. 10 loss. Since a professional money changer is usually not liable in Providing an operational guideline as to the extent of the this case, R. Hiyya chose to waive his special privilege pro­ lifnim mishurat hadin obligation is the taxonomy Tosafot of­ ceeding from his status as an authoritative money changer, fer.11 Sorting out the various Talmudic cases dealing with the even though doing so incurred for him a monetary loss. lifnim mishurat hadin concept, Tosafot divide the cases into 15 Lifnim mishurat hadin conduct of a less demanding nature three separate categories. is expected of man when halakha generally exempts everyone The first category deals with cases where halakha pre­ from a particular duty, but waiving the privilege and perform­ scribes a general behavioral norm for a particular cimcum­ ing the duty does not generate a monetary loss for the ex­ stance, but exempts certain people from this norm. Here, lifnim empted party. Illustrating this circumstance is Samuel father's mishurat hadin requires the exempted person to waive his conduct in restoring lost donkeys to their owner. By the strict privileged status and conform to the general legal norm, even if letter of the law, the finder of a lost animal must make a public so doing would involve for him a monetary loss. announcement of his find. If the animal is capable of working Illustrating the above rule is R. Hiyya's behavior in the cur­ to earn its keep, the finder must hold it no more than twelve rency validation case discussed in Bava Kamma 99b. What fol­ months until the owner makes his claim. After this period, the lows is the background information connected with this case. finder may sell the animal and hold the proceeds for the right­ In Talmudic times, merchants were offered for payment coins 16 ful owner. Since holding on to the donkeys instead of selling which they were uncertain would circulate in the marketplace. them involved no monetary loss for Samuel's father, lifnim Money changers were frequently approached for advice in this mishurat hadin conduct required him to hold on to them until regard. they were claimed. Determining whether a particular coin would be accepted When the legal right consists of a damage claim against an as a medium of exchange was regarded by the Sages as a very employer, lifnim mishurat hadin conduct, according to Tosafot precise art. Only an authoritative expert, i.e., one whose exper­ does not require the employer to waive his claim. Another tise was consummate to the extent that he needs no further in­ moral principle of special piety, as the following Talmudic text struction in the art, was therefore really qualified to make such in Bava Metzia 83a, illustrates, may, however, at least recom­ judgements. Consequently, money changers who have not yet mend him to do so: achieved authoritative status bear full responsiblity to replace coins they erroneously determine will circulate. 12 To be sure, Some porters broke a barrel of wine belonging to Rabbah b. Bar Hannan . Thereupon he seized their garment; so they went and complained to Rav. the authoritative expert, too, bears responsibility for his error; 1 'Return them their garments,' he ordered. ' Is that the law?' he inquired. in the event he stipulated a fee for his service. ' While his judg­ 'Yes,' he rejoined : That thou mayest walk in the way of good mer, ... ment cannot be viewed as a form of negligence, the fee arrange­ (Proverbs 2 :20). Their garments having been returned, they observed, 'we ment makes it clear that the client relied on his judgment. Since are poor men, have worked all day, and are hungary , are we to get the damage results directly from relying on the expert's advice, nothing?' 'Go and pay them' he ordered. 'Is that the law?' he asked. 'Yes,' he rejoined, . and keep the path for the righteous.' (Proverbs 2 :20). 1 .. the latter's action is regarded as a form of garme. • Under the assumption that the wine barrels were broken Against the above background, the Talmud relates that R. 1 Hiyya, who was an authoritative money changer, once er­ through the negligence " of the porters, Rabbah b. Bar Hannan roneously advised a woman gratis that the coin she was offered had a legitimate damage claim against them. While the behavioral expectation to act lifnim mishurat hadin did not re­ quire Rabbah b. Bar Hannan to forego his damage claim, Rav 64

65 Market Ethics and Jewish Business Ethics-Compar ed GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship strict letter of the law requires, he must return the lost property to an urged him to do so on the basis of the moral principle that thou Israelite who identifies it. 22 mayest walk in the way of good men. Upon learning that the Curiously, Maimonides omits in his Mishneh Torah any porters were indigent, Rav even urged Rabbah b. Bar Hannan mention of what constitutes lifnim mishurat hadin conduct in to pay them their wages on the basis of the ethical imperative the money changer and porter cases. This omission leads R. and keep the path of the righteous.' 9 These latter ethical Shilo to find in the Maimonides' view a further restrictive teachings evidently demand of man an even more generous and implicaiton for the operational significance of the lifnim mis­ selfless nature than the lifnim mishurat hadin imperative. hurat hadin moral principle. If acting lifnim mishurat hadin While T')safot understands the ethical principles pro­ entails a monetary loss, even the hassid is not expected to waive 2 ceeding from the verse in Proverbs as constituting a moral his legal rights. ' principle distinct from the lifnim mishurat hadin behavioral Nahmanides (1194-1270), however, regards the lifnim mis­ expectation, R. Solomon b. Isaac (1040-1105) et alia regards hurat had in imperative as being addressed to the ordinary man. these teaching as forming an integral part of the latter con- Understanding the verse And thou shalt do that which is right cept. 20 and good in the eyes of the Eternal (Deuteronomy 6:18) to im­ The operational significance of the lifnim mishurat hadin part the admonition to act lifnim mishurat hadin, Nahmanides conc~pt is a matter of Rishonic dispute. connects this verse with the previous verse: Ye shall diligently One aspect of the dispute concerns the question of whether keep the commandments of the Eternal your G-d, and His the lifnim mishurat hadin behavioral imperative is directed testimonies and His statutes, which He hath commanded thee. only to the ethical elite of society or is prescribed even for the After enjoining man to obey all G-d's commandments in his in­ ordinary man. terpersonal relations, the Torah bids him, with respect to what Adopting the former view, Maimonides teaches that lifnim he was not commanded to do, to display accommodation and mishurat hadin conduct is expected only of the hassid, i.e., the generosity towards his fellow man, i.e., to act lifnim mishurat individual of extraordinary piety. What G-d requires of the or­ hadin. 24 dinary man is not to be a hassid, but merely to "walk in His Adopting a viewpoint intermediate between Maimonides ways"-meaning, the middle way, not the extremes even in and Nahmanides is R. Azaria Figo (Venice, 1579-1647). In his piety and goodness. Man, according to Maimonides, is not bid­ view, lifnim mishurat hadin is an absolute behavioral require­ den to waive his legal rights and act lifnim mishurat hadin, but ment (din) for the hassid. Since the man of extraordinary piety if he voluntarily does so, his conduct is regarded as commen­ usually waives his legal right in order to display generosity to dable. 21 Illustrating Maimonides' voluntarism approach to the his fellow man, consistency of character demands such conduct lifnim mishurat hadin behavioural expectation is his treatment of him in any situation that may arise. For the ordinary person, of the lost property case: however, lifnim mishurat hadin is merely recommended con­ If the majority of the inhabitants are heathen , the rule is that if one finds duct. 25 lost property in a part of town which is chiefly frequented by Israelites, he Nahmanides ' view evidently represents mainstream Jewish must advertise it. But if he finds it in a public highway or a large square, or thought, as the lifnim mishurat hadin moral principle is in assembly halls or lecture halls frequented regularly by heathen or in any other place frequented by the general public, whatever he finds belongs to routinely incorporated in judicial proceedings. The nature of him.even if an Israelite comes along and identifies it. For the owner will this integration will be discussed below. abandon hope of its recovery as soon as he loses the property , since he thinks that a heathen will find it. Yet even though it belongs to the finder, 67 if ,r,.,P.wishes to follow the good and upright path and do more than the

66 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Market Ethics and Jewish Business Ethics-Compar ed

LIFNIM MISHURAT HADIN employer to conduct himself lifnim mishurat hadin and waive AND JUDICIAL COERCION his claim against the driver. 30 Another dimension of the operational significance of the (3) Another area of labor relations in which Jewish courts lifnim mishurat hadin concept concerns the question of found appropriate application for the lifnim mishurat hadin whether halakha empowers the Jewish court to force an in­ behavioral expectation is the issue of severance pay. Unless ex­ dividual to give up his legal rights and act in accordance with pressly stipulated in the labor conract, an employer bears no this legal principle. responsibility to pay his worker severance pay upon the ter­ Espousing judicial coercion in the above matter, R. mination of his labor relationship with him. Nevertheless, if Mordekhai b. Hillel (Germany, 1240-1298) validates the prac­ after determining both the circumstances surrounding the ter­ tice only if the individual who is asked to give up his legal mination of the labor relationship, and the relative financial rights is a man of wealth. 26 Following the above line, R. Joel position of the parties involved, the court assesses that equity Sirkes (Poland, 1561-1640) validates the practice even when the demands that severance should be paid, the court, according to legal right involved is a damage claim against an employee, R. Ben Zion Uziel (1881-1953), should order the employer to pay the worker the appropriate amount. 3 1 similar to the Talmudic porter case. 21 Another school of thought led by R. Hananel b. Hushi 'el, In constrast to R. Uiiel's call for coercive judicial interven­ does ·not legitimize the use of judicial coercion to force a party tion in the severance pay case, a Haifa Rabbinical Tribunal to a law suit to act lifnim mishurat hadin. The judicial role, ac­ merely urged such conduct on a religious institution. After cording to this school of thought, is confined to informing the pointing out that the religious institution bore no legal obliga­ party what lifnim mishrat had in conduct consists of. 28 tion to pay the worker severance, the court took note of both Indicative of both the widespread and profound impact the the long tenure of the employee and his impoverished state. lifnim mishurat hadin concept has on the Jewish legal system is Equity considerations, in the opinion of the court, recom­ the following sampling of court cases: mended that the religious institution act with compassion and furnish the employee with severance. 32 (1) In the 12th century , R. Eiliezer b. Nathan of Mainz (ca. 1090-1170) invoked the lifnim mishurat hadin principle to per­ THE LAW OF THE ABUTTER suade a tenant to acquiesce to his landlord's request to tem­ porarily move out so that alterations could be made in the Basing themselves on the lifnim mishurat hadin beha­ house. With the lessee promised adequate housing in the in­ vioural imperative, the Sages enacted the 'law of the abutter." 33 terim and the temporary move generating for him only an in­ What follows is a description of the essential details of this law: convenience but no loss, R. Eliezer b. Nathan urged the tenant With the aim of affording the abutter " first refusal" the to waive his legal right and accommodate the landlord's re­ Sages prohibited an individual from buying property con­ 2 34 quest. • tiguous to someone else's property. The interdict applies to (2) In a case similar to the Talmudic porter case, R. David immovable property including land, real estate3 5 and even a b. Moses (1769-1836) urged an employer to waive his legal seat in a synagogue. 36 Violation of the ordinance gives the abut­ claim against his driver. The driver was given money to ter the legal right to displace the purchaser by paying the sale purchase salt in the city of Pinsk and the money was stolen price to the vendor. 37 Since the purchaser should have yielded from him before he arrived there. Comparing the circumstance to the abutter, the former is regarded as having concluded the to the Talmudic porter case, R. David b. Moses urged the sale as the abutter's agent. Consequently, provision of the purchasing price to the vendor allows the abutter to 68 69 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Market Ethics and Jewish Business Ethics-Compar ed automatically secure title to the property without performing right nugatory becomes less severe. No formal kinyan is re­ quired. Forfeiture of the displacement right obtains here when any symbolic act (kinyan). 38 The abutter's displacement right is recognized, however, the behavior of the abutter makes it evident that he waives his only if he initiates his protest as soon as the antecedent sale right. Helping the non-abutter work the contiguous land or 46 became public knowledge and the vendee began making use of renting the land from him provide examples of such conduct. his purchase. 39 Delay in lodging a protest beyond this interval 40 THE LAW OF THE ABUTTER AND is taken as an implicit waiver of his right. THE INTERESTS OF THE SELLER Forfeiture for the abutter's displacement right obtains also AND OTHER INTERESTED BUYERS when the latter refuses the seller's offer to allow him to match the price he negotiated with someone else for the sale of his Realizing that the law of the abutter may come into conflict contiguous property .•1 Nonetheless, in the event the non­ with the best interests of both the vendor and non-abutting abutting interested party did not actually consummate his prospective buyers, the Sages limited application of their or­ purchase of the contiguous property, the abutter, according to dinance to instances where it would not impose a loss on these R. Hayyim b. Israel Benveniste (1603-1673), retains his right to parties. insist that his equivalent bid be given preference. 42 While the seller's prior consultation with the abutter PROTECTION OF THE SELLER'SRIGHTS renders the latter's displacment right nugatory, no such similar Halakhic concern for the interests of the seller is evidenced adverse impact on the abutter's right obtains when he advises a from the following considerations: bidding rival to take up the seller on his specific offer to sell the (1) The abutter enjoys his right of first refusal only when contiguous property to him. 43 Credence is given to the abutter's he will match any off er other prospective buyers are prepared claim that the misleading advice he gave the rival bidder was a to make. necessary ploy to prevent the seller from taking unfair advan­ Illustrating non-equivalence is the abutter's offer to pay the tage of him. Out of confidence that the abutter particularly purchasing price in currency that is not as negotiable in the values the property that adjoins his land, the seller might very marketplace as the currency a non-abutter offers to pay. 47 well respond to the abutter's direct approach by hiking up his Providing another case in point is the timing of the pay­ asking price. Far better from the standpoint of the abutter ments offered by the competing bidders. Should the abutter of­ would be to allow the non-abutter to conclude the transaction fer to match the non-abutter 's ready cash offer but request time at fair market value and then secure the property for himself by to liquidate his assets in order to raise the necessary cash, his exercising his displacement right. 44 offer may be rejected by the seller as non-equivalent. 48 Delay in With the consultation stratagem failing to provide the non­ receiving payment consitutes a legitimate opportunity cost for abutter with a guarantee against subsequent displacement by the seller. 49 Nonetheless, in the event the abutter is a man of the abutter, the only recourse open to him to prevent this even­ known wealth, a request by him to be given time to fetch the tuality would be to secure from the abutter, prior to the necessary cash from his home makes his offer equivalent to the purchase, a formal renunciation of his abutter right. To be ef­ ready cash offer and hence entitles him to first refusal. 50 fective, the abutter must make the renunciation by means of Another factor that may legitimately enter into the kinyan. 45 equivalency calculation is the creditworthiness of the bidding Once the non-abutter takes formal possession of the parties. In the event the contiguous property is being sold on property, the mechanism called for to render the displacement 71 70 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Market Ethics and Jewish Business Ethics-Compared

59 credit, deference must be given to the seller's assessment that orphans were regarded by the Sages as being at a disadvan­ he regards the abutter as less creditworthy than other prospec- tage in the immovable property commercial market. It is un­ 51 natural for these people to engage in search activity in these tive buyers. 60 (2) Recognizing that the abutter's displacement right effec- markets. With acquisition of moving property coming very tively lengthens the time necessary to conclude a sales trans­ hard to these people, the Sages felt that it would be a matter of action, the Sages suspended the privilege when the motive kindness to them not to recognize the abutter's displacement behind the sale is either the desire to finance a pressing need or right in the event they bought property contiguous with his 60 to take advantage of a fleeting investment opportunity. 52 property. Should the abutter, however, submit a simul­ Whether the abutter loses preference here even when he sub­ taneous and equivalent bid, preference, according to R. Asher mits an equivalent offer at the same time as the other prospec­ b. Jehiel, must be given to him.62 Nahmanides, however, sus­ tive buyer is a matter of dispute among decisors. While pends entirely the abutter's privilege when the competing 63 Maimonides et alia suspend the abutter's privilege entirely in buyers are women and orphans. the time constraint case, 53 R. Solomon b. Isaac, on the in­ Relatedly, in recognition of the difficulties women and 64 terpretation of R. Israel of Krems (fl. mid. 14th cen. ), holds that orphans generally have in transacting business, the Sages, ac­ the abutter's preferential status remains intact in the cording to some authorities, disallowed the abutter from dis­ 5 54 placing anyone who purchased property from them.6 With the simultaneous bid variant. Relatedly, suppose the seller is confronted with an offer to law of the abutter entirely inoperative when the seller is buy all his fields which are scattered in various different loca­ a woman or orphan, the sale of their property is greatly tions. Such an offer is regarded as a rare business opportunity facilitated as interested buyers would not hesitate to submit for the seller. Out of concern that the inevitable delay caused bids on account of concern for possible dealings with an abut­ by the practical necessity55 of first informing the abutter of the ter. R. Jacob b. Judah Weil (Germany, d. before 1456), unusual offer might jeopordize the deal entirely, 56 the Sages however, holds that the abutter's displacement right remains suspended here the abutter's displacement right57 Indeed, intact in the above instance.66 In any case, all authorities agree preference for the abutter presumably does not arise as an issue that if the woman or orphan is confronted by the abutter with a unless he makes a simultaneous and identical offer to buy the simultaneous and equivalent offer, the latter must be given 67 same parcel of properties for which the other prospective buyer preference. The abutter's displacement right is not recognized, ac­ is bidding. cording to some authorities, when the original purchaser was in PROTECTION OF THE RIGHTS financial straits and was also a fellow resident of the seller's 8 OF NON-ABUTTING PROSPECTIVE BUYERS town.6 Non-recognition of the abutter's displacement right here, according to R. Joshua ha-Kohen Falk, is derived from Recognizing that the law of the abutter may conflict with the suspension of this right in the instance where the purchaser the economic interests of other prospective buyers, the Sages was a woman or an orphan. 69 Given this assimilation, whether either modified or suspended entirely the privilege of the abut­ the abutter's simultaneous and equivalent bid gives him ter when equity demands that primacy be given to the interests preference over the individual in financial straits would, in our of the non-abutting bidder. view, be subject to the same dispute, cited above, in connection (1) Figuring prominently as an equity factor in considering with the woman and orphan case. whether the abutter's privilege should be modified is the per­ Other authorities, however, are of the view that the abut- sonal status of the other interested bidders. Women 58 and 73 72 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Market Ethics and Jewish Business Ethics-Compared ter's displacement right remains intact even when the originai purchaser was in financial straits as well as a fellow resident of unless he pays him the fair market value of the property. 77 the seller's town.7° In the event the contiguous property was sold to a non­ A variant of the above case occurs when the property abutter above market price, the abutter may not displace him purchased was a house and the original buyer bought it not for unless he furnishes him with the purchasing price!" Should the investment purposes but for living quarters. Here, all dispu­ purchasing price depart so widely from the fair market value tants would deny the abutter a displacement right, provided that the transaction involved price fraud (ona'ah), the abutter another house, even inferior to the one purchased, was not has the right to cancel the original sale, 79 provided the non­ available to the poor man who bought the house adjoining the abutter does not want the original transaction to remain in­ abutter's house. tact. "0 The abutter's right to cancel the original sale is, however, Another aspect of personal status the Sages take into ac­ recognized only when the non-abutter concluded the sale un­ count is the relationship of the non-abutter to the seller. aware that it involved ona'ah. Should the non-abutter Equity demands that the abutter's right be suspended en­ knowingly have entered into an ona'ah transaction, the abut­ tirely when the competing bidder owns a partnership interest ter 's displacement right is recognized only if he provides him in the immovable property up for sale. Here, the abutter must with the purchasing price. 81 refrain· from purchasing the property in order to give the partner the privilege of first refusal. Moreover, should the INTENDED USE AND abutter ignore the procedure and make the purchase, the THE LAW OF THE ABUTTER partner is entitled to displace him. 12 Intended use also plays a role in deciding which competing The abutter's right is modified when a competing bidder bid the seller must give pref~rence to. Promotion of population enjoys a filial or business relationship with the seller. While settlement is the criterion halakha adopts in deciding which of submission of a simultaneous and equivalent bid requires the the competing bids should be given precedence. Application of seller to give the abutter preference,73 the latter's displacement this criterion results in giving both a house-building and tree­ right is not recognized in the above instances.7 4 planting"2 land use intent preference over a sowing intent. Ac­ With the aim of affording the original owner the oppor­ cordingly, should a non-abutter express an intent to use the tunity to recover his inheritance plot,7 5 the abutter's right land for either tree planting or building, his bid must be given against the original owner is modified in the same manner as preference over an abutter's identical bid who wants to use the when the competing bidder enjoys either a filial or business land for sowing purposes. 83 Noting the greater permanence of relationship with the seller.7 6 the tree planting land use over the house building land use, R. Halakhic concern for the interests of the non-abutting Joshua ha-Kohen Falk would deny the abutter preference if his buyer manifests itself also in the compensation with which it land use intent is house building while another interested party entitles him when the displacement right is operative. wants to use the land for tree planting. 84 Disputing this view, Displacing the original buyer by merely furnishing him R. David b. Samuel ha-Levi denies the abutter his privileged with the purchasing price may not suffice when the sale to the status only when his intended use cannot even minimally be non-abutter was concluded below fair market value. Here, regarded as promoting population settlement while the land should it be evident to the court that the discount the seller use intentions of other interested parties do meet this standard. tendered the non-abutter was due to a special relationship Should the abutter's land use intention promote population between them, the abutter may not displace the original buyer settlement, his privileged status remains intact despite the

availability of competing tenders involving superior land use. 85 74 75 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Market Ethics and Jewish Business Ethics-Compared

SUSPENSION OF THE LAW OF THE ABUTTER rights an~ contractura~ obligation~. 88 Illu~trating the later sup­ WHEN THE BUYER IS AN OUT-OF-TOWN RESIDENT plication 1s the following TalmudIC text m Ketubbot 103a: By increasing the transaction costs for the sale of A certain man once leased his mill to another in (consideration of the lat­ ter's services in) grinding (his corn). Eventually he (the former) became immovable property, the law of the abutter could well have the rich and bought another mill and an ass. Thereupon he said to the other, effect of inhibiting commercial transactions in this market. 'Until now I have had my grinding done at your place but now (that I have This problem becomes particularly acute when the immovable another mill in which to grind my corn) pay me rent.'-'I shall,' the other property is located in one area and the owner finds a prospec­ replied, 'only grind for you (but will pay no rent). Rabina (in considering tive buyer in a different town. Operation of the law of the the case) intended to rule that it involved the very principle that was laid down in our Mishnah: The two husbands cannot plead, 'we will maintain abutter in this instance might make it almost impossible for the her jointly' but one must maintain her and the other allows her the cost of owner to effect the sale of his property. Lacking any first-hand her maintenance. R. Awira, however, said to him: Are (the two cases) information regarding the possible existence of an abutter, the alike? There (the woman) has only one stomach, not two; but here (the prospective buyer might very well back off, despite assurances lessee) might well tell the owner, 'Grind (in your own mill) and sell; grind given to the owner. Realizing the acute inhibiting effect (in mine) and keep.' This , however, has been said only in a case where (the him by lessee) has no (other orders for) grinding at his mill, but if he has (suf­ the law of the abutter would have on the ability of the owner to ficient orders for) grinding at his mill he may in such circumstances be effect a sale in the above instance, the Sages, according to R. compelled (not to act) in the manner of Sodom. Joseph Caro, their here. suspended ordinance Rishonic interpretation of the above Talmudic text under­ Concluding the sale outside the area of the location of the stands the possible loss the lessor may suffer as a result of the subject cannot, however, be used as a device to evade property co ntinuation of the old terms of the lease to be irrelevant in the law the abutter. the seller and of When conspiracy between deciding whether the lessee may be forced to accede to the the is evident, the Jewish will the of­ non-abutter court punish farmer's request to henceforth make cash payment of the rent. fenders of excommunication. 86 R. by means Going further, W hat is crucial in evaluating the merit of the lessor's request is Hayyim b. Israel Benveniste confers the abutter with a dis­ solely its economic impact on the lessee. Refusal on the part of placement right when it is evident that the seller and the non­ the lessee to change to a cash payment is legitimized only when abutter conspired to meet of town in order to evade the out the demand he faces for his grinding services is not brisk law. 87 enough to allow him to replace the grinding time he did for the KOFIN AL MIDA T SEDOM lessor with other customer orders. When this is not the case, refusal to change to a cash payment amounts to Sodomitic Another dimension of the measure of generosity Jewish law behavior. 89 demands of man in his interpersonal relations is the kofin al Without the constraint imposed by the kofin principle, A's midat sedom principle. This moral imperative calls for the changed circumstances might afford B an opportunity to Jewish court to coerce an individual not to act in the manner of renegotiate his lease on more favorable terms. This occurs Sodomites. One is guilty of Sodomitic behavior when he when A cannot sell or otherwise make use of the wheat he refuses to allow another to infringe upon his right even though usually grinds in B's mill. Here, insistence on the old terms of such infringement generates for him no loss and at the same the lease would generate a loss for A. Shrewd negotiation by B time affords the other the opportunity to secure for himself a could allow him to reduce his rent in exchange for waiving his benefit or avoid a loss. legal right to pay the rent in the form of a grinding service. We will focus on how the kofin principle alters property 77 76 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Market Ethics and Jewish Business Ethics-Compar ed

What prevents this exploitation is the kofin principle. Since 50 domitic when the intrusion generates for him no loss. changing the rent payment from a grinding service to a cash Illustrating this case is A's petition to be allowed to extend transfer generates no loss for B, he must accommodate A, a drainage pipe over B's land. If the intrusion involves no loss despite his ability to extract from him a consideration for agree- or inconvenience for B, the court will force B to accede to A's 92 ing to the change. request. A circumstance analogous to the Talmudic miller case came LIMITATIONS ON THE OPERATIONAL SIGNIFICANCE to the Rabbinical court of R. David b. Zimrah (1480-1574): A OF THE KOFIN PRINCIPLE sold land to B. The terms of the agreement called for B to pay half the purchasing price in cash and the balance in the form of The operational significance of the kofin principle is providing A with tailoring services. Subsequently, A's finan­ limited from several standpoints. One limiting factor is the cial position worsened and he was no longer in need of B's liberality the Jewish court adopts as to what constitutes tailoring services. Given his changed circumstances, A legitimate loss for the party who is asked to waive his right, demanded to be paid the balance due him in cash instead of in which, in turn, is used as a basis for rejecting the kofin petition. tailoring services. Noting that B had sufficient customers to fill A second limiting factor is that halakha regards some rights as his .time without A's business, R. David b. Zimrah invoked the inalienable in the sense that even if infringement of the right kofin principle to force B to accede to A's cash payment re­ would generate no loss to the possessor, he may not be forced quest.90 Here again, without the constraint the kofin principle to waive the right. imposes on B, the latter would be able to extract from A some consideraton in exchange for not insisting on paying the ELASTIC DEFINITION OF LOSS balance of the debt in the form of tailoring services. Though A Evidencing the elastic attitude the Jewish court adopts would presumably pay some price to persuade B to give up his regarding what constitutes loss for the party who is asked to legal right, this potential gain is not regarded as a legitimate give up his right are several aspects of the laws protecting inva­ loss from the latter's perspective. Refusal to accede to the cash sion of privacy: request when other customers would take up the slack of the Privacy invasion law prohibits A from constructing a win­ loss of A's business amounts therefore to Sodomitic behavior. dow in his wall located on his own property when the window would overlook a neighbor's (B's) courtyard. A's desire to al­ THE LESSEE'S RIGHT TO MAKE IMPROVEMENTS low light to enter his property is denied on the ground that the IN HIS RENTED APARTMENT overlooking window could invade B's privacy. Following R. The kofin principle was again invoked by R. David b. Elai's opinion, Talmudic codifiers deny A's request even when Zimrah to dismiss a landlord's objection to allowing his tenant he offers to build the window at an elevation above his own to make improvements in his rented apartment. Since the height. Sympathy is found with B's fear that A might on occa­ improvements enhanced the market value of the apartment, the sion place a stool at the foot of the wall and reach the overlook­ landlord's objection could only be described as Sodomitic. 01 ing window by standing on it. Taking into account this con­ tingency characterizes A's window building as a privacy inva­ INTRUDING UPON THE AIR SPACE sion act and his kofin petition is therefore rejected. 93 OF A NEIGHBOR'S PROPERTY Moreover, A's request for a window construction permit is While an individual may object to a neighbor making use of denied, according to R. Solomon b. Abraham Adret (Spain ca. the air space of his property, such objection is regarded as 1235-ca. 1310), even when the window would overlook B's

79 78 Market Ethics and Jewish Business Ethics-Compar ed GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship

property. 99 The barter exchange may be refused even if the ex­ ruin. Insofar as private activities are not usually performed in a change would admittedly leave the owner better or no worse ruin, A's window constructing activity presents no immediate off than before, while enhancing the welfare of the party re­ privacy invasion detrimental to B. Nevertheless, credence is questing the deal. 100 Similarly, a property owner may given to B's claim that he plans to eventually renovate the ruin. legitimately refuse to sell his property to someone even if the Should A be allowed to build or maintain his window, B will former admits to having no use of it. 101 suffer at once at that time from A's visual penetration of his A further limitation of the incursions of the kofin principle domain. To spare B the nuisance of a possible future court bat­ may make into the property right apparently proceds from R. tle, A will be immediately enjoined from building the window Jacob Tam's (France, ca. 1110-ca. 1170) interpretation of the fol­ or required to board it up if he has already constructed it. lowing Talmudic passage: Moreover, A's offer to draw up a document promising to close A certain man bought a field adjacent to the estate of his father. When up the window immediately should B actually renovate the ruin they came to divide the latter's estate, he said: Give me my share next to may also be rejected by B. Sympathy will be found with B's my own field. (The usual manner of dividing an estate is by lot.) Rabbah protest that the proposal would generate for him the in­ said: This is a case where a man can be compelled not to act after the man­ convenience of having to safeguard the document. Given the ner of Sodom. R. Joseph strongly objected to this, on the ground that the predilection of most people to secure what is righfully theirs brothers can say to him: We reckon this field as especially valuable like the property of the family of Marion. The law follows R. Joseph. with a minimum amount of litigation and nuisance, B's protest 9 4 In sharp contrast to other commentaries, R. Jacob Tam in­ is not regarded as Sodomitic in character. terprets R. Joseph to allow the other brothers to run up the RIGHTS THE KOFIN PRINCIPLE price of the field the adjoining brother seeks even when it is no MAY NOT INFRINGE UPON more valuable to them than the other fields of the estate. Profiteering from the extra value the adjoining brother attaches The kofin principle does not invest an individual with a to the field by allowing him to have it only at an inflated price blanket license to infringe upon his neighbor's property right. is not regarded as Sodomitic. 103 Certain infringements are regarded as unreasonable and Strongly objecting to R. Jacob Tam's line, R. Asher b. Jehiel resistence to the incursion even when no loss is involved does points out that every kofin application entails a request to not amount to Sodomitic behavior. secure some advantage for which the petitioner presumably One example of an unreasonable intrustion is a request to stands ready to pay some price in the event the court would settle on a neighbor's land against his will. To be sure, settling refuse to order the defendant to allow him to enjoy it gratis. R. on a neighbor's land without the latter's knowledge may at Tam's line, therefore, leads by logical extension to the rejection times allow the squatter to escape paying rent to the owner of 10 of the kofin principle entirely. • the property . This occurs when the owner was not in the R. Tam's position, in our view, rests on the proposition that market to rent his land. With the squatter causing the owner no forcing an individual to renounce an ownership claim, even if it loss, the owner's rent claim is denied. 95 Nevertheless, the owner is not definite in nature, lies beyond the ambit of the kofin is fully within his rights to object, in the first instance, to the principle. What follows is the unreasonableness of the adjoin­ squatter's desire to settle on his land90 and, for that mattter, to 97 ing brother's request that the other brothers should exchange evict him should he discover him there. their possible title in the field he seeks in exchange for another Other aspects of the property disregard the kofin principle estate parcel of equal quality and value. may not make incursion into include the right to refuse a barter

exchange98 as well as a right to tum down a bid to buy the 81

80 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Market Ethics and Jewish Business Ethics-Compared

Delimitation of kofin to such an extent is apparently not NOTES held by R. Tam's disputants. These disputants understand the rejection of the adjoining brother's kofin application to be 1. Milton Friedman, The Economics of Freedom. 2. Richard Posner, Economic Analysis of Law, 2nd ed. (Boston: Little grounded in the fact that the field he seeks is in some way more Brown, 1977), pp. 65-99. 10 valuable than the other fields of the estate. Nahmanides, ' for 3. The Economics of Freedom, op. cit. instance, interprets R. Joseph to allow the other brothers to run 4. Aaron Levine, Free Enterprise and Jewish Law: Aspects of Jewish up the price of the field the adjoining brother seeks only when Business Ethics (New York: Ktav, Yeshiva University Press, 1980), pp. 89-130. it is superior in quality to the other fields of the estate. Should all the fields of the estate be of equal quality, exploiting the ex­ 5. R. Solomon b. Isaac (1040-1105), Rashi commentary at Leviticus 19:14. The Pentateuch makes use of the phrase And thou shalt fear thy G-d in tra value the adjoining brother attaches to the field by allowing connection with the following moral imperatives: (1) the prohibition him to have it only at an inflated price is regarded as Sodomitic. against offering ill-suited advice (Leviticus 19:14); (2) the duty to bestow R. Tam's disputants, in our view, could very well agree that honor to a Talmudic scholar (Leviticus 19:32); (3) the interdict against A's request to B to exchange property with him amounts to an causing someone needless mental anguish (Leviticus 25:17); the interdict unreasonable encroachment upon the latter's rights. Conse­ against charging interest (Leviticus 25:36); and (5) the prohibition against working an Israelite slave oppressively (Leviticus 25:43). quently, B's refusal would not be regarded as Sodomitic even if 6. Mishnah, Bava Me1-ia IV:10; R. Isaac b. Jacob Alfasi (1012-1103), Rif, he does not protest that the exchange would make him any ad locum; R. Asher b. Jebiel (1250-1327), Rosh, Bava Me1-ia IV:22; R. worse off than before. What these disputants do regard as Jacob b. Asher (1270-1342); Tur, /:foshen Mishpat 228:l; R. Joseph Sodomitic, however, is for B to refuse to renounce his in­ Caro (1488-1575), Shu/ban Arukh, /:foshen Mishpat 228:4; R. Jebiel Michel Epstein (1829-1908), Arukh ha-Shu/ban, /:foshen Mishpat heritance title to a particular field in the estate in exchange for 228:2. another field of the estate of equal quality and value. 7. R. Menabem b. Solomon, Beit ha-Bebirah, Bava Me1-ia 59a. Pricing an Providing an alternative rationalization of the disputants' article with no intention to buy it is prohibited, according to R. Samuel b. position is the proposition that division of an estate by means Meir (ca - 1080-1174 ), Rashbam, Pesabim 1146, on account of the possi­ 10 of lot is an expedient • rather than mandated by law. This ble financial loss this behavior might cause the vendor. While the vendor is preoccupied with the insincere inquiry, serious customers may turn method is resorted to only when division of the estate in some elsewhere. manner is not dictated by some legal principle, or, in the 8. See commentary of R. Solomon b. Isaac at Leviticus 25: 17. absence of the legal principle, when the brothers cannot volun­ 9. Bava Kamma 100a. tarily come to an agreement of how they should divide up the 10. Bava Me1-ia 306. 1 I. Tosafot Bava Me1-ia 246. estate. With division by lot merely an expedient, the kofin principle makes the adjoining brother's plan of dividing the es­ 12. R. Pappa Bava Kamma 996; Rif ad locum; Maimonides (1135-1204), Yad, S 'khirut X:5; Rosh, Bava Kamma IX:16; Tur, op. cit. 306:10; Sh. tate the operative method. R. Tam, however, would hold that Ar., op. cit. 306:6 ; Ar. haSh., op. cit. 306:13. Some of the above division of an estate by means of lot is a mandated method authorities (R. Isaac Alfasi, Maimonides and R. Joseph Caro) would not rather than merely an expedient. Consequently, running up the hold the non-consu mmate money changer liable for his erroneous free price of the field the adjoining brother seeks in exchange for advice unless it is evident to the court that the inquirer relied upon his giving up his possible lottery-conferred title to the field is not judgment. R. Asher b. Jebiel, however, holds the non-consummate money changer liable even if the above condition is not met. R. Moses ls­ regarded as Sodomitic. · series (1525 or 1530-1572, Rema, Sh . Ar., loc. cit.) rul es in accordance with R. Asher b. Jebiel. 13. Rif, loc. cit.; Yad, loc. cit.; Rosh, loc. cit.; Tur, loc. cit.; Sh. Ar., loc. cit.; 82 Ar. haSh., loc. cit.

83 Market Ethics and Jewish Business Ethics-Comp ared GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship

31. R. Ben Zion Uziel quoted in R. Moshe Findeling, }jukat Avodah, p. 133. 14. Ar. haSh., loc. cit. 32. Piskei Din Rabanniyim, vol. 3, p. 95. 15. Tosafot Bava Me?-ia 24b. 33 . Nehardai Bava Me:{.ia 108a; Respon sa R. Abraham b. Maimonides 16. R. Solomon b. Isaac (Rashi, Bava Me?-ia 24b), however, und erstood (1186-1237), Sefer Kinyan no. 63, Shu/singer ed.; Rosh, Bava Me:{.ia Samuel's father to have found the donke ys more than twelve months IX:24. after their owner reported them lost. By the strict letter of the law, 34 . Me:{.ia 108a; R. Joshua Falk, op. cit. Samuel's father was not obligated to return the donkeys as constructive Rashi, Bava ha-Kohen Sma, Sh . Ar., 175 notes 7, 63, 67; . cit. 175:1. abandonment on the part of the owner could safely be presumed after Ar. haSh. , op 35 . op. cit. 175:83 ; op. cit. 175:53; op. cit. 175:59. such a prolonged period of loss. Acting lifnim mishurat hadin, Samuel 's Tur, Sh. Ar., Ar. haSh., 36. R. Abraham b. David (c. 1125-1198) quoted in Tur, op. ci t. 175:85; Sh. father restored the donkeys to their owner. Ar., lac. cit.; Ar. haSh., op. cit. 175:60. 17. Tosafot Bava Me?-ia 24b. 37. Nehardai Bava Me:{.ia 108a; Yad, Shekhenim Xll:5; Tur, op. cit. 175:6; 18. Most commentaries (Rashi, Bava Me?-ia 83a, Tosafot Bava Me?-ia 24b op. cit. 175:6; op. cit. 175:2 . and Tur, l;foshen Mishpat 304:1 on interpretation of Beit Yosef ad Sh . Ar., Ar. haSh., 38. Yad, op. cit. XIII :7; Tur, op. cit. 175:7; Sh . Ar., op. cit. 175:6 ; Ar. haSh., locum) interpret the incident to refer to the circumstance where the bar­ rels were broken through the negligence of the porters . R. Samuel Eliezer op. cit. 175:1. 39. R. Asher b. Jebiel in op. cit. 175:50-52; op. cit. b. Judah ha-Levi Edels (1555-1631), however, understood Rabbah b. Bar quoted Tur, Sh. Ar., I-:{annan to have instructed the porters to transport the barrels over an in­ 175:32; R. Akiva Eger (1761-1837), Sh . Ar., op. cit. 175s.v. Shakh ot. cline. The porters could therefore not be held responsible for the subse­ 26; Ar. haSh., op. cit. 175:21. 40. R. Joshua ha-Kohen Falk, Sma, Sh. Ar., op. cit. 175 note 57. quent breakage. Rav wryly indicated this to Rabbah b. Bar I-:{annan by 41. R. Meir Abulafia (ca. 1170-1244) quoted in op. cit. 175:47 ; R. Israel quoting to him the verse: That thou mayest walk in the way of good Tur, of Krems (fl. mid-14th cen.), Me:{.ia IX :22; (men). A play on the word way was meant. Since Rabbah b. Bar I-:{annan Haggahot Asheri, Rosh Bava op. cit. 175:31; op. cit. 175:20 . instructed the porter to transport the barrels over an incline instead of a Sh. Ar., Ar. haSh., good way (i.e., smooth and even road), the porters cannot be held 42. R. f:layyim b. Israel Benveniste, Kenneset ha-Gedo/ah, }joshen Mishpat 175 notes on Beil Yosef 37. responsible for the breakage. 43 . Yad, op. cit. XIV:2; Tur, op. cit. 175:46; Sh . Ar., op. cit. 175:29 ; Ar. 19. Tosafot Bava Me?-ia 24b. op. cit. 175:18. 20. Rashi, Bava Me?-ia 83a; Tur, loc. cit.; R. Joel Sirkes (1561-1640), Ba/:i, haSh., Tur, op. cit., 304 note 1; R. Menabem Mendel Krochmal (1600-1661), 44 . Sma, Sh . Ar., op. cit. 175 note 50. Responsa ;iemah ;iedak 89; R. Moshe Teitlebaum (1759-1841), 45 . Yad, lac. cit.; Tur, lac. cit.; Sh. Ar., Joe. cit.; Ar. haSh., loc. cit. 46. Yad, lac. cit. quoted in Tur, op. cit. 175:48; Sh. Ar., op. cit. 175:30; Ar. Responsa Heshiv Moshe Yoreh De'ah 48. haSh., loc. cit. 21. Yad, De'ot I:5. 47. Bava Me:{.ia1086 ; Rif ad locum; Yad, op. cit. XIV:l ; Rosh, op. cit. IX:32; 22. Yad, Gezelah ve'Avedah XI:7. Tur, op. cit. 175:37; Sh . Ar., op. cit. 175:23; Ar. haSh., op. cit. 175:12. 23. R. Shmuel Shilo, " On One Aspect of Law and Morals in Jewish Law: 48. Bava Me:{.ia 1086; Rif ad locum; Yad, loc. cit.; Rosh, op. cit. IX:33; Tur, Lifnim Mishurat Hadin, " in Israel Law Review, (Hebrew University , op. cit. 175:41 ; Sh. Ar., op. cit. 175:25 ; Ar. haSh., op. cit. 175:11 . 1978, vol. 13 no. 3, pp. 371-74). · 49 . Sma, Sh. Ar., op. cit. 175 note 37. 24. Nabmanides, commentary on Deut. 6:18. See also his commentary on 50. Bava Me:{.ia 1086 ; Rif ad locum; Yad, loc. cit.; Rosh, loc. cit.; Tur, loc. Lev. 19:2. cit.; Sh . Ar., loc. cit.; Ar. haSh., loc. cit. R. Meir Abulafia (quoted in Tur, 25. R. Azaria Figo, Bina Le'ltim no. 12. op. cit. 175:42 and Sh. Ar., lac. cit.) expresses a minority opinion here. 26. R. Mordekhai b. Hillel (ca 1240-1298), Mordekhai, Bava Me?-ia 11:257. Provided the abutter did not approach the seller with his proposal af ter 27. R. Joel Sirkes, Bab, Tur, op. cit., 12 note 4. having already known the details of the competing offer, his offer to go 28. R. I-:{ananel b. Hushiel, Bava Me?-ia 24b; Rosh, Bava Me?-ia 11:7; R. Yom and fetch the necessary cash must be regarded as equivalent to th e non­ Tov Ishbili (1270-1342), Bava Me?-ia 24b; R. Joseph Carn , Beit Yosef, abutter's ready cash offer even if the former is not known to be a man of Tur, op. cit. 12:6; R. Shabbetai b. Meir ha-Kohen , Sh . Ar. l;fosh e11 wealth. With the abutter unaware of the details of the competing offer Mishpat 259 note 3; Ar. haSh., op. cit. 304:11. prior to his approaching the seller, his offer to go and bring the necessary 29. R. Eliezer b. Nathan of Mainz quoted in Responsa R. Meir of Rothen - cash should not be regarded as a dilatory tactic. Approaching the seller burg no. 687. with such an offer after having already being aware of the details of the 30. R. David b. Moses (1769-1836), Galya Masekhet, l;foshe11 Mishpat 13.

85 84 Market Ethics and Jewish Business Ethics-Compared GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship

73, Tur, op. cit. 175:56; Sma, Sh. Ar., op. cit. 175 note 88; Ar. haSh., op. cit. competing offer does, however, create a suspicion of a stalling tactic. 175:33. Such a suspicion is removed only when the abutter is known to be a man 74. Responsa Bab 13; Ar. haSh. op. cit. 175:23; Bava Me;.ia 108b; Rif ad of wealth. Hence, only when the abutter is a wealthy man can his offer locum; Yad, op. cit. XII:S; Rosh, op. cit. IX:31; Sh. Ar., op. cit. 175:49; be regarded as equivalent to the ready cash offer of the non-abutter. Ar. haSh., op. cit. 175:33. 51. Sh. Ar., op. cit. 175:8; R. Binyamin Rabinowitz - Teumim, fjukat 75. Ar. haSh., op. cit. 175:23. Mishpat (Jerusalem, Harry Fischel Foundation, 1957), p. 229. For a 76. Bava Me;.ia 108b; Rif ad locum; Yad, op. cit. XII:6; Rosh, op. cit. IX:27; variant view see Rosh, op. cit. IX:24. Tur, op. cit. 175:55-56; Sh. Ar., op. cit. 175:37 and Rema, loc. cit.; Ar. 52. Bava Me;.ia 108b; Rif ad locum; Yad, op. cit. Xll:9; Rosh, op. cit. IX:29; haSh., op. cit. 175:23. Tur, op. cit. 175:63; Sh. Ar., op. cit. 175:43; Ar. haSh., op. cit. 175:25. 77. Bava Me;.ia 108a; Rif ad locum; Yad, op. cit. XIV:4; Rosh, op. cit. IX: 24; 53. Yad, loc. cit.; R. lj.ananel b. Hushi'el and Talmedei ha-Rashba on in­ Tur, op. cit. 175:13; Sh. Ar., op. cit. 175:7; Ar. haSh., op. cit. 175:3. terpretation of R. Israel of Krems (Haggahot Asheri, Rosh, Bava Me;.ia 78. Bava Me;.ia 108a; Rif ad locum; Yad, op. cit. XIV:4; Rosh, op. cit. IX:25; IX:29). Tur, op. cit. 175:14; Sh. Ar., op. cit. 175:9; Ar. haSh., op. cit. 175:4. 54. Haggahot Asheri, loc. cit. 79. Sma, Sh. Ar., op. cit. 175 notes 14; R. Jacob Moses Lorberbaum (1760- 55. Sma, Sh. Ar., op. cit. 175 note 63. 1832), Netivot ha-Mishpat, Sh. Ar., op. cit., 175 note 8. 56. Rosh, op. cit. IX:27. BO. fjukat Mishpat, p. 229. 57. Bava Me;.ia 108b; Rif ad locum; Yad, op. cit. Xll:6; Rosh, loc. cit.; Tur, 81. R. Israel lsser b. Ze'ev Wolf (d. 1829), Sha'ar Mishpat, Sh. Ar., op. cit. op. cit. 175:54; Sh. Ar., op. cit. 175:36; Ar. haSh., op. cit. 175:22. 175:9. 58. Preferential treatment is extended to divorced and widowed women. A 82. See R. David b. Samuel ha-Levi, Turei Zahav, Sh. Ar., op. cit. 175:26; married woman, however, is conferred the privilege only when we are Sma, Sh. Ar., op. cit. 175 note 44. reasonably certain that she is transacting in behalf of herself rather than 83. Bava Me;.ia 108b; Rif ad locum; Yad, op. cit. XIV:1; Rosh, op. cit. IV:33; acting in behalf of her husband. See R. Joseph lj.abib (beginning of 15th Tur, op. cit. 175:43; Sh. Ar., op. cit. 175:26; Ar. haSh., op. cit. 175:55. cen.), Nimmukei Yosef Bava Me;.ia 108b; R. Solomon b. Abraham Adret 84. Sma, loc. cit. (ca. 1235-1310), quoted in Beit Yosef, Tur, op. cit. 175:69; and in Rema, 85. Turei Zahav, loc. cit. Sh. Ar., op. cit. 175:47. 86. R. Joseph Caro, Beit Yosef, Tur, op. cit. 175:48. 59. For an orphan to qualify for privileged status he must be a minor too. 87. R. Hayyim b. Israel Benveniste, Kenneset ha-Gedo/ah l;-foshen Mishpat See R. Vidal Yorn Tov of Tolosa (fl. 14th cen.); Maggid Mish11eh, Yad; 175 comments on Tur note 55. Xll:13. 88. For an excellent survey and analysis of the kofin principle in the 60. Yad, op. cit. Xll:13-14; Rosh, op. cit. IX:30; Tur, op. cit. 175:6Q; Ar. Talmudic and Responsa literature see R. Shmuel Shilo, "Kofin Al Midat haSh., op. cit. 175:29. S'Dom: Jewish Law's Concept of Abuse of Rights," in Israel Law 61. Bava Me;.ia 108b; Rif ad locum; Yad, loc. cit.; Rosh, Joe. cit.; Tur, \or. Review, (Hebrew University, 1980, vol. 15 no. 1, pp. 49-78). cit.; Sh. Ar., op. cit. 175:47; Ar. haSh., loc. cit. 89. Rosh, Ketubbot XII :S; Maimonides and R. Joseph Caro, on the in­ 62. R. Asher b. Jebiel quoted in R. Bezalel Ashkenazi (1520-lSQl ), ed , terpretation of R. Joshua ha-Kohen Falk (Sma, Sh. Ar., op. cit. 318 note Shitah Mekubbe;.et, Bava Me;.ia IOBb. 2). Although Tosafot (Ketubbot 103a) expresses an opposing view, R. 63. Nahmanides, Milhamot, Rif, Bava Me;.ia 108b. David b. Samuel ha-Levi (Turei Zahav, Sh. Ar. op. cit. 318:1) reconciles 64. Sma, Sh. Ar., op. cit. 175 note 87. both views. 65. Authorities quoted in Rema, Sh. Ar., op. cit. 175:47. 90. R. David Jbn Zimrah, Responsa Radbaz vol. II, no. 1002. 66. R. Jacob b. Judah Weil, Responsa Maharyu 99 quoted in Sma, \or. cit. 91. R. David lbn Zimrah, Responsa Radbaz vol. I, no. 146. 67. R. Elizah b. lj.ayyim quoted in Kenneset ha-Gedo/ah, 175 comment~ on 92. Rosh, Bava Batra 111:72; Tur, op. cit. 153:13; Rema, Sh. Ar., op. cit. Beit Yosef note 92. 153:8. 68. Some authorities quoted in Rema, Sh. Ar., op. cit. 175:4Q. 93. R. Elai, Bava Batra 59a; Rif ad locum; Yad, Shekhenim VII :4; Rosh, 69. Sma, Sh. Ar., op. cit. 175 note 89. Bava Batra 111:73; Sh. Ar., op. cit. 154:6; Ar. haSh., op. cit. 154:12. 70. Some authorities quoted in Rema, loc. cit. 94. R. Solomon b. Abraham Adret, Responsa Rashba 1:1, 143. 71. See Sma, Sh. Ar., loc. cit. 95. R. Kahana reporting in the name of R. Yobanan, Bava Kamma 206; Rif, 72. Rosh, op. cit. IX:30, quoted in Tur, op. cit. 175:S; Rema, Sh. Ar., op. cit. ad locum; Yad, Gezeilah IIl:9; Rosh, Bava Kamma 11:6; Tur, op. cit. 175:S; Ar. haSh., op. cit. 175:32. 363:6; Sh. Ar., op. cit. 363:6; Ar. haSh., op. cit. 363:6.

86 87 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Adam Mintz

96. Tosafot Bava Kamma 206; R. Israel of Krems, Haggah ot Asheri, Rosh, Bava Kamma Il :6 ; Rema, Sh. Ar., op. cit. 363:6 ; Ar. haSh., op. cit. Student at Rabbi Isaac Elchanan Theological Seminary; Holder of an M.S. degree in Medieval Jewish History from 363 :16. Bernard Revel Graduate School. 97 . Sma, Sh . Ar., op. cit. 363 note 14. 98. R. Shmuel de Medina (1506-1589 , Turkey), Responsa Maharashdam no. 409; R. Aaron Sasson (c. 1553-1626 , Turkey), Responsa Torat £met no. AZARIAH DEi ROSSI 129 . 99. R. Shalom Shvadron (1835-1911 , Galicia), Responsa Maharasham V:5 . AS A CRITIC 100. Responsa Maharashdam no. 409 ; Responsa Torat £met no. 129. OF THE SEPTUAGINT 101. Responsa Maharasham V :5. 102. Bava Batra 126 . 103 . R. Jacob Tam, Tosafot Bava Batra 126 . 104. Responsa Rosh 97 :2, quoted in Beit Yosef, Tur, op. cit. 174:2 . 105. Nabmanides, Ramban Bava Batra 126 . For other interpretations of th e Azariah dei Rossi was the greatest scholar of Hebrew letters Talmudic text see Rashi ad locum and R. Abraham b. David (1120 - during the Italian Renaissance. Born to one of the most promi­ 1198), Rabad in Shittah M'kubbezet Bava Batra 126 . 106. For a development of this theory see R. Moshe Feinstein, Dibberot nent Jewish Italian families c.a. 15131, Azariah received both Mosheh, Bava Batra vol. 1 , pps. 84-92. his Talmudic and secular education in Mantua . He became proficient early in life in Italian, Latin, and Hebrew literature, and studied both Greek and Christian history. 2 Me'or Einayim, Azariah's major work, was not published until late in his life. In 1571, while he was living in Ferrara, the city was struck by a disastrous earthquake . The first part of his book, "Kol Elokim," describes the terrible tragedy and its ef­ fect on the inhabitants of the city. While outside the city during the earthquake, Azariah was asked by a Christian scholar to translate into Hebrew the " Let­ ter of Aristeas," a description of the translation of the Torah into Greek. This work was originally written in Greek, but Azariah translated it from a Latin translation. He claims that the Latin translation was superior to the Greek original. However, since Azariah did not know Greek sufficiently, it would appear that he used the Latin translation out of con­ venience. Azariah prepared this translation in twenty days and inserted it as the second part of Me'or Einayim, called "Hadarat Zekenim. " 3 The third and most important part of this work, "lmrei Binah," deals with the ancient history of the Jewish people. The novelty of Azariah 's approach is that he makes use of non­ Jewish sources to criticize Jewish sources. He has a knowledge

89 88 GESHER : Bridging the Spectrum of Orthodox Jewish Scholarship Azariah Dei Rossi As a Critic of the Septuagint of these non-Jewish scholars unequalled by previous Jewish scholars, quoting over a hundred such authors.• In this section account for the differences in the manuscripts of the Septu­ of the book Azariah revives the interest of Jewish writers in agint. • Philo of Alexandria after he had fallen into oblivion for over Azariah 's second difficulty is that Aristeas claims that this 1,500 years. 5 translation, done for Ptolemy, was accurate. However, if this is Azariah's work became very controversial due to his critical true, why was there a need, in the first century C.E. , for new treatment of Midrashim and his questioning of the Jewish translations of the Torah by Aquila, Symmachus, and chronology found in the Talmud. In 1574, the rabbis of Venice Theodosian? It must be, Azariah claims, that something oc­ proclaimed a herem against his book. This was followed by curred to render the first translation unacceptable. 10 similar declarations in other Italian cities. Even R. Joseph Caro The final problem is how Philo of Alexandria, when quo­ of Safed was willing to sign such a herem but died before he ting passages from the Torah, could follow the Septuagint ex­ was able to carry out his wish. 6 Before his death, Azariah wrote clusively, even when it contradicts the Maso rah." Philo writes Mazref La-Kesef, a reply to his critics, which deals with the that he believes that the passages he quotes are the original question of Talmudic chronology . The ban on Me'or Einayim Masorah given to Moses on Mt. Sinai. Azariah felt it impossi­ lasted over a hundred years, and renewed interest in the work ble that the man he considers " one of the noblest of our was aroused only when the maskilim found Azariah' s ideas people" could err so blatantly and consider the Septuagint as similar to their own. 7 the au then tic Maso rah. 12 When dealing with the history of the Jews during the Hel­ Because of these difficulties, Azariah claims that at the time lenistic period, Azariah discusses the origins of the Septuagint. of Ezra two Torahs came into existence. One was the Masoretic He claims that the translation of the Torah into Greek was not text in Hebrew letters and language which Ezra corrected from done from the Hebrew original, but rather from an Aramaic earlier corruption; the second Torah was written in Aramaic. Targum that was prevalent among the people at that time. This This Aramic translation of the Torah, whether written at the paper will attempt to show that Azariah formulated his theory time of Ezra or before, was composed because Aramaic was the concerning the translation of the Torah due to the high regard spoken language of the Jews at that time. This text, according in which he held Philo.• Philo, when quoting the Torah, con­ to Azariah, became the popular and accepted text even though siders the Septuagint to be the original text. To Azariah that a it had been translated inaccurately. He claims that it had un­ man as great as Philo could make such a blantant error was in­ dergone great corruption over the generations so that by the conceivable. Azariah presents other arguments that necessitate time of Ptolemy it was a much corrupted text." Azariah brings his theory, but they are only secondary to his concern about two proofs to this hypothesis from rabbinic sources and two Philo. proofs from Christian sources. These sources will be analyzed Azariah mentions three problems that forced him to for­ later. mulate his theory. The first problem is that the rabbis mention Why however, did the translators translate from the cor­ thirteen places where the translators were divinely inspired to rupted Aramaic text and not from the original Hebrew text? deviate from the original text. However, none of the manu­ Azariah posits that since the Aramic was the accepted text scripts of the Septuagint contains more than four changes. As among the nations, the translators relied on it. He says that well, the Septuagint contains thousands of variants that are not they wanted to gain favor in Ptolemy's eyes and felt that he mentioned in the Talmud. As an observant Jew, Azariah would prefer a translation from the accepted text." wanted to accept the rabbinic view, however he felt the need to Azariah claims that this theory solves his three difficulties. Indirectly, it explains the appearance of only four of the thir- 90

91 Azariah Dei Rossi As a Critic of the Septuagint GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship

only later applied to the translation. teen rabbinic changes in the Septuagint as due to the corrup­ While Azariah attempts to justify the questionable opi­ tion of the Aramaic Targum. It also, by inference, explains the nions of Philo, he hesitates to express a completely pro­ need for the first century CE. translations. The corrupted text Philonic view. At the end of his discussion on Philo he writes: was being disseminated and this trend had to be halted. However, these problems were not presented by Azariah as his I will not pass judgment on him or acquit him or condemn him absolutely ... he will be treated like one of the Gentile scholars, to whose words we central theme. listen only when they deal with secular matters and those that do not con­ With this theory, Azariah directly answers why Philo cern principles (of religion). But, in all the rest of his words and books the quotes passages from the Septuagint. Since the Aramaic was reader may everywhere judge as seems best to him. ' 0 the popular version of the Torah even before the translation, While Azariah feels that Philo's statement do not contradict Philo mistakenly felt that it was the authentic Masorah given rabbinic doctrine, Azariah believes that Philo must be seen as on Mt. Sinai. Therefore, Philo felt it proper to quote from the merely a Gentile scholar and not equal in stature to the Septuagint, the translation of this Aramaic version of the Talmudic sages. This in no way lowers the status of Philo, as Torah. Azariah's main concern in formulating his theory was Azariah considers Gentile scholars to be on the highest intellec­ the justification of Philo' s position. 15 tual level. Azariah first discusses Philo in an earlier chapter of Me'or To understand Azariah's high regard for Philo, it is impor­ Einayim. 16 He begins his discussion of Philo saying: tant to analyze the proofs that he brings to maintain his thesis He was recognized as one of the noblest of our people, living a little before that an Aramaic Targum was written at the time of Ezra. the destruction of the Second Temple, and he thought and wrote much The first Talmudic source brought by Azariah interprets a that is worthy of notice. Although this man is suspect in my eyes of not verse from Nehemiah as referring to an Aramaic translation. being wholly orthodox, still I do not wish to pass arbitrary judgement on Azariah claims from here that there was an Aramaic translation him." as early as the time of Ezra, a contemporary of Nehemiah. 21 Despite Azariah's questioning of Philo's orthodoxy in cer- However, this proof only indicates the presence of an early tain instances, it is clear that he awards Philo the highest translation, not that it was the accepted text. respect. Azariah then quotes the Talmudic passage that the Targum Azariah mentions four places where Philo diverged from was forgotten and later re-established by Onkelos. Azariah orthodox thought. 18 First, Philo quoted the Septuagint as the asks: If Aramaic was the common language of the people, how authentic Masorah. Azariah excuses this error since Philo had could they have forgotten the Targum? So, he claims, the no knowledge of the authentic Torah. Philo believed that the Targum must have been corrupted and there was a need for Septuagint was translated from the Aramaic Targum, which he Onkelos to re-establish the correct text. This proof, too, in no felt was the authentic Torah. He was convinced of the authen way proves that the translation was taken from the Aramaic ticity of the Aramaic Targum due to the myth circulating Targum but only that a corrupted Aramaic Targum was in ex­ among the people. Azariah then discusses the other three faults istence. 22 he found in Philo's orthodoxy. Two of the arguments are Azariah then quotes two proofs from the works of early philosophical, the last is that Philo did not follow the rabbis' 10 Christian scholars. He quotes Je_rome in his Preface to the Book interpretation of verses but explained them literally • This dis­ of Samuel, that Ezra created new letters in restoring the Torah. cussion appears in chapters prior to the discussion of the Sep­ Until that time, Jerome claims, the le__ttersof the Hebrews and tuagint. Therefore, it would appear that this theory regarding the Samaritans were identical. 23 Azari-ah infers from here that a the Septuagint was introduced to justify Philo's position and 93 92 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Azariah Dei Rossi As a Critic of the Septuagint

Targum had been prevalent before Ezra and continued to be in Talmud was burned in Italy, and in 1562 the Jews were ex­ use among the common people even after Ezra's time. 24 pelled from all Papal territories except Rome and Ancona. However, this too fails to prove that the Targum was accepted These anti-Jewish tactics strengthened Catholic orthodoxy by as the authentic text and only deals with the existence of such a deflecting some of their energies from the problematic ques­ Targum. Azariah then quotes Eusebius that Ezra restored the Torah tions facing the Roman curia. As well, the missionary senti­ ment at this time was growing , and many were willing to suffer to the people of Israel, and so that they should not mingle with death for the sake of even one convert. the Samaritans he changed the letters to uniquely Hebrew 30 ones. 25 This proof does not prove his theorv in any way as it A further intellectual crisis facing the Jews was in regard to Judea-Christian disputations . In the Middle Ages, the Chris­ merely verifies the existence of such a Targum. tian arguments centered on Christological dogmas, which th e Azariah brings a proof from Philo's writings that the Jews had been able to However, to the general translation must have been done from the Aramaic. Philo refute." due decline of Italian Jewry, Christians realized that Jews were no writes, "In ancient times the laws were written in the Chaldean less vulnerable than Christians themselves when confronted tongue." 26 Azariah interprets this passage that Philo believed with inconsistencies in their own rabbinic literature. Th e that the Torah Moses received was written in Aramaic.27 He ex­ logical inconsistency of using rabbinic literature to both prove plains this error that Philo believed that the Jews came to Egypt from Babylonia so their native tongue was Aramaic. Based on Christianity and to demonstrate Judaism 's faults never bothered Christian polemicists. 32 this interpretation, Azariah claims that the Septuagint must have been translated from Aramaic for Philo to consider it It is against this background that Azariah 's work must be viewed. Professor BonFil claims that Me'or Einayim was an authentic. For if the Septuagint had not been translated from apologetic to against the backlash the Aramaic, Philo, in his attempt to quote the most work written defend Judaism of the contemporary situation. Azariah felt that the only way to authoritative text, would have quoted the Aramaic Targum directly; the authentic text in Philo's mind. defend Judaism was to prove its truth and consequently its strength. It is through this quest for truth that he can justify Indeed, this proof seems to be the most compelling one claiming rabbinic was faulty s­ brought by Azariah. While Philo does not say it explicitly, it that chronology without que can be inferred from his writings not only that the Aramaic tioning the authority of the Talmud as a whole. This analysis also explains Azariah 's extensive use of Gentile literature. H e Targum was the accepted text of the Torah but more important­ writes that he uses Gentile literature to find evidence " to sup­ ly that the Septuagint was translated from the Aramaic. This port any part of the Torah. " 33 proof is presented before all other proofs, and it seems that the later proofs are brought only to substantiate an already proven We can now understand why Azariah occupies himself point as they at best prove only the existence of this popular with Philo, a Jew forgotten for over a millennium. Philo, a Targum and do not deal with the Septuagint at all.'" Once Jewish scholar of the first century C.E. , is a testimony to the in­ again, Azariah's major concern is in the writings of Philo. tellectual truth of Judaism. His works on Jewish history bring The one remaining question is why Azariah felt the need to honor to the Jewish people. As well, his description of th e defend the long forgotten Philo of Alexandria. Robert BonFil translation of the Torah gives credence to Aristeas' account and suggests that Me'or Einayim must be seen as a reaction to the again strengthens Judaism in the eyes of the Christians . It is for 2 this reason that he attempts to defend Philo's orthodo xy at Italian Renaissance and Counter-Reformation. • The Counter­ such great length. Reformation caused strong anti-Jewish sentiment. In 1553 the

94 95 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Azariah Dei Rossi As a Critic of the Septuagint

This paper has attempted to prove that while Azariah pre­ sents several reasons for formulating his revolutionary theory 9. Rossi (Vilna, 1863), p. 119. Jewish attitude toward the Septuagint was seemingly contradictory. The Talmud, Megilah 9a quotes the story of the concerning the translation of the Torah, it was indeed a concern translation in a favorable light. The Talmud says that the translation was for Philo that troubled him most. This theory only solves com­ done with divine assistance and it follows with a praise of Greek. pletely the difficulties from the writings of Philo and the other However, in Soferim 1:7, the rabbis conclude that "the day the Torah proofs are not sufficient without the proof from Philo's work. was translated was as bad for Jews as the day the Golden Calf was Since the time of the Talmud, it had been accepted by Jewish worshipped, for the Torah could not be translated properly." Azariah is clearly following the rabbinic tradition that the translation was a positive scholars that the Septuagint was translated from the original act but is troubled by the variant manuscripts. While Azariah does not Hebrew text. Due only to the high regard that Azariah had for hesitate to contradict the rabbis in non-normative matters, he maintains the authority of the Talmud in normative issues. See f.n. 33. Philo was he able to formulate such a revolutionary theory. 10. Ibid. , p. 120. Azariah, the first Jewish scholar to deal with Philo in 1,500 years, views him as "one of the noblest of our people." He 11. Marcus, p. 46, n. 55. Professor Marcus points out that occasionally (though rarely) Philo did follow the Masoretic text against the Sep­ deals with Philo at length at the beginning of the third section tuagint. He is unsure whether Azariah, who does not mention it, was of his book and grapples for several chapters with his un­ aware of this fact. 12. Rossi (Vi Ina, 1863 ), pp. 92-93. orthodox positions. While Azariah did not conclude with a 13. Ibid. completely pro-Philonic position, he took a giant step in reviv­ ing interest in this controversial figure and opening the way for 14. Ibid. This hypothesis is corroborated by the Talmudic account that Ptolemy initiated the translation and it is understandable that the further study of Philo and his philosophy. translators would want to fulfill his wishes completely. 15. Ibid. 16. Azariah's lengthy discussion of Philo extends from chapters three through six. 17. Ibid., p. 76, as translated by Marcus, p. 37. 18. For a detailed analysis of these unorthodox positions, see Marcus, pp. NOTES 46-58. 19. Rossi (Vilna, 1863), pp. 92-102. 1. L. Zunz, "Life of Azariah dei Rossi," Me'or Einayim (Vilna, 1863), p. 1, 20. Ibid., pp. 112-113, as translated by Marcus, pp. 57-58. places Azariah's birth in 1513 or 1514. 21. Ibid., p. 126. It could have been argued that the verse in Nehemiah refers 2. Encyclopedia Judaica (Jerusalem: Keter Publishing House, 1971 ), 14: 315. to a Hebrew Targum, See Pesachim 117a and )1Jl11!1 '"ll i1"1 Olll 0":llll1. 3. Azariah dei Rossi, Me'or Einayim (Vilna, 1863), p. 3. However, the discussion in Megilah 3a clearly assumes this verse to be 4. Azariah dei Rossi, Me'or Einayim (Jerusalem, 1970), 3: 161-174. Cassell, referring to an Aramaic Targum. 22. Ibid. at the end of his edition, quotes all the Gentile authors and works quoted by Azariah. 23. St. Jerome, The Principal Works of St. Jerome: A Select Library of 5. Judaica, p. 316. Nicene and Post-Nicene Fathers of the Christian Church, ed. W.H. 6. L. Zunz, "Life of Azariah dei Rossi," p. 9, claims that R. Caro never Freman tie, 6 (Grand Rapids, Michigan: Erdman's Publishing Co., 1892), agreed to such a herem. 489. 7. Judaica, p. 316. 24. Rossi (Vilna, 1863), p. 128. 8. Azariah calls Philo "Yedidya the Alexandrian" the Hebrew name that 25. Eusebius Pamphili, Ecclesiastical History Books: The Fathers of the corresponds to the Greek name Philo. This shows Azariah · s high reg.ird Church, A N ew Translation, trans. and ed. Roy J. DeFarrari, 19 (New for Philo as other Jewish writers know him simply as '"the Alexandrian" York: Fathers of Church, Inc., 1953), 301. This translation omits the See Ralph Marcus "A Sixteenth Century Critique of Philo, " Hebrew phrase " in order not to mix with the Samaritans, he switched the letters Union College Annual, 21 (1948), pp. 30, 37. for his people." This would remove all significance from this passage. 26. Philo, On the Life of Moses: Loeb Classical Library, trans. and ed. F.H. 96 Colson, Book II (London: Harvard University Press, 1959) , 26.

97 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship

27. Rossi (Yilna, 1863), p. 93. Marcus, p. 45, claims that Azariah is mis­ Aaron Rothkoff-Rakeffet taken, and when Philo refers to " Chaldean" he is talking about Hebrew, the language of Abraham. Azariah is aware of such an argument, quoting it as the opinion of the Provencal Brothers (Rossi, 1863, p. 124). Instructor at Joseph and Caroline Gruss Center in Jerusalem. Azariah rejects this opinion. Philo, Ort Abraham: Loeb Classical Library, trans. and ed. F.H. Colson (London: Harvard Univ. Press, 1959), 99 says that Abraham's wife's name was Sarah in Chaldean. This would appear to prove Marcus ' point. See Philo, Index: Loeb Classical Library, trans. and ed. F.H. Colson (London: Harard Univ. Press, 1971), pp. 298-299, for further references in Philo's works that Chaldean means Hebrew. fl Azariah doe5 not accept this seemingly clear fact since it would under- m1ne his strongest proof. THE "KEDOSHIM" STATUS 28. While the other proofs brought by Azariah are not convincing, they are presented as a literary technique to emphasize the key proof from Philo. OF THE HOLOCAUST VICTIMS 29. Robert BonFil, " Some Reflections on the Place of Azariah dei Rossi's Me'or Einayim in the Cultural Milieu of Italian Renaissance Jewry," Jewish Thought in the Sixteenth Century, ed. Bernard Cooperman (Cambridge, Mass: Harvard University Press, 1983), pp. 31-43. The victims of the Holocaust are generally credited with 30. Kenneth R. Stow, Catholic Thought and Papal Jewry Policy 1555-1593 (New York: JTS, 1977), pp. 5-1. Stow claims that the emphasis of all having attained the status of Kedoshim since their deaths were Papal policy towards Jews was not merely to separate Jews from Chris­ a Sanctification of G-d's Name (Kiddush Hashem). This term, tians, but to convert the Jews en masse. He proves this mainly from his however, should not be utilized indiscriminately. It usually in­ interpretation of the Bull Cum Nimis of Pope Paul IV. David Berger, dicates that a Jew has chosen to sacrifice his life rather than "Cum Nimis Absurdem and the Conversion of the Jews," J.Q.R., 70 transgress a commandment. The Talmud relates: (1979), pp. 41-49, while agreeing that conversion was an emphasis of Papal policy in the sixteenth century, feels that this was not the purpose By a majority vote, it was resolved in the upper chambers of the house of Nithza in Lydda that in every other law of the Torah, if a man is com­ of the Bull Cum Nimis. 31. David Berger, The Jewish-Christian Debate in the High Middle Ages manded: "Transgress and suffer not death," he may transgress and not suffer death, excepting idolatry, incest and murder. (Philadelphia: Jewish Publication Society, 1979), pp. 3-32, presents ,1 ... When R. Dimi came, he said: This was taught only if there is no royal general background of medieval polemical works. decree (forbidding the practice of Judaism). However; if there is a royal 32.33. BonIbid., Fi\, p. p.39, 37. BonFil claims that Azariah distinguished between normative decree, one must incur martyrdom rather than transgress even a minor and non-normative issues. He felt it permissible to disagree with the rab­ precept. When Rabin came, he said in R. Johanan's name: Even without a bis in non-normative matters such as chronology and Midrashim, but royal decree, it was only permitted in private; but in public one must be still maintain the authority of the Talmud in normative matters. martyred even for a minor precept rather than violate it. What is meant by a "minor precept"? Even to change one's shoe strap. (The shoe latchets worn by Jews were white, those worn by heathens black.) And how many make it public? R. Jacob said in ~- Johanan's name: The minimum for publicity is ten. (Sanhedrin 74a-b). · Implicit in the Talmudic discussion of Kiddush Hashem is the element of choice. Without the alternative of having the option of transgressing, and thereby saving one's life, the vic­ tim would not be deemed a martyr. Maimonides clearly in-

99

98 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship The "Kedoshim" Status of the Holocaust Victims dicates this factor in his codification of the law. He actually obligates the Jew to transgress in instances of the " other laws status of kadosh should therefore not be accorded to the Holocaust martyrs. 2 of the Torah." One who rather suffers death is considered a suicide and not a martyr. Maimonides writes: Rabbi Isser Yehuda Unterman, the late Ashkenazic chief rabbi of Israel, also stressed this viewpoint. He wrote: The entire House of Israel is commanded to sanctify His glorious Name as it is written, "A nd I will be hallowed among the children of Israel" (Lev. The cruel edicts which the barbaric tyrants issued against the Jews in the 22:31) .... How is this fulfilled? Wh en an idol-worshipper threatens to concentration camps also influenced their religious life. Nevertheless, this kill a Jew unless he transgresses one of the mitzvot written in the Torah, tampering with the halakhah should not be construed as a "roya l decree the Jew must transgress and not suffer death ... If he died rather than forbidding the practice of Judaism." Even those Jews who totally severed transgress, the Jew is held culpable for his death. their connection with Judaism also suffered because of these edicts. This This law applies to all mitzvot except for idolatry, incest (which in­ proves th at the evildoers only wanted to satisfy their insatiable desire for cludes adultery), and murder. In these three cardinal sins one must blood and were not concerned with solely uprooting Judaism. It was sacrifice his life rather than transgress (" Hilkhot Yesodei ha-Torah" therefore permitted to transgress the minor precepts since the principle of 5:1-2). force majeure applies (Shevet mi- Yehudah, p. 47). There is also an Ashkenazic tradition which grants the Nevertheless, there was a widely quoted source which status of a kadosh to the individual who incurs death rather granted the status of kedoshim to all Jews who perish at the than transgress even one of the minor precepts. Rabbi Israel hands of gentiles. Among the documents recovered from the Isserlein, the spiritual leader of Austro-German Jewry during Ringelblum Archives in the Warsaw Ghetto was a volume by the first half of the fifteenth century, was asked regarding Rabbi Simon Huberband. The latter participated in Emanuel sacrificing one's life rather than transgress the other command­ Ringelblum's Oneg Shabbat, which was a code name for secret ments. The question read: documentation work of the Warsaw Jewish underground movement. Huberband wrote: Regarding all the other commandments which a person may transgress rather than be killed ... what shall we advise the individual who wishes to Kiddush Hashem is achieved in three different fashions : die instead of sinning? commandment.1. When a Jew surrenders his life rather than transgress a religious After quoting the conflicting opinions of Maimonides and 2. When a Jew endangers his life to save another Jewish soul, and cer­ the Ashkenazic sages, Rabbi Isserlein ruled that the universal tainly when many Jewish souls are involved. principle of being lenient when in doubt about a capital case is 3. When a Jew falls in battle while defending the Jewish people. not applicable here. He wrote: Maimonides already declared that when a Jew is killed because of his Where it is a question of Kiddush Hashem the Torah is not apprehensive Jewishness, he is called a kadosh. This status is attained even where religious persec ution is not at issue. for the loss of a Jewish life. We are rather commanded to sacrifice ourselves for the Sanctification of G-d's name. Therefore the univers.il The Hatam Sofer went even further and declared that any Jew killed principle of leniency in case of doubt does not apply. Accordingly, it by a gentile, even a robbery victim, is a kadosh.' seems that we allow our ruling to be guided by the circumstances and the Maimonides, however, never ruled that the term kadosh motives of the enquirer.' could be applied indiscriminately. He clearly reflected the Nevertheless, where there is no choice, the victim would choice.•Talmudic consensus that it is only revelant when the Jew had a not be considered a kadosh. During the Holocaust, the Jew could not save himself by transgressing the tenets of the Torah. Rabbi Moses Sofer, popularly known as the Hatam Sofer Both religious and irreligious suffered the final solution. The after the title of his published writings, did grant the honorific Third Reich did not differentiate between Jew to Jew. The epithet of kadosh to a murdered Jew. This was done in an in­ direct fashion and not in response to a straightforward ques­ 100 tion. The Hatam Sofer related the following story:

IOI GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship The "Kedoshim" Status of the Holocaust Victims On the Friday before the Sabbath of Parshat Shoftim 1811, the remains of a kadosh who was killed by a gentile murderer were brought to our com­ It may also be that the status of kedoshim is achieved not munity. The burial took place on Sunday. His name was R. David Sacralam, may G-d avenge his death. Since the elders of the Hevra only in a negative sense but a'Iso in a positive fashion. It is not Kadisha were at the fair in Pest, and those who remained here were not ex­ only the courage to choose death which grants this title, but pert in the local burial customs, I was asked about the victim's burial. also the ability to live properly. The Talmud states: They questioned whether he could be interred in his family's plot or Abaya explained: As it was taught: " And thou shalt love the L-rd thy G-d whether he should be buried in a different location. Their doubt was (Duet. 6:5) , i.e. that the Name of Heaven be beloved because of you. If because they heard that the four death penalties were still in effect. someone studies Scripture and Mishnah, and attends on the disciples of Therefore a person killed in a manner which indicated that he had in­ the wise, is honest in business, and speaks pleasantly to persons, what do curred a death penalty was not to be interred in his family's sepulcher. I people say concerning him? " Happy the father who taught him Torah, have searched the writings of the Rishonim and the Shu/khan Arukh and happy the teacher who taught him Torah; woe unto people who have not found nothing on this topic. Nevertheless, if the elders were here, I would studied the Torah; for this man has studied the Torah-look how fine his not interfere with their customs in this matter. However , I would never ways are, how righteous his deeds!" Of him does Scripture say: " And He rule like this. Instead he should be buried in this family's plot in accor­ said unto me: Thou are My servant Israel, in whom I will be glorified." dance with the honor that is due to him.' (Isaiah 49:3 ; Yoma 86a). In the middle of his analysis of this problem, the Hatam Maimonides, while codifying this concept, also stresses that Sofer once again infers that the victim is a kadosh. He wrote: exemplary living constitutes a Kiddush Hashem. He stated: " Cerainly a killed a be person by bloodthirsty murderer should Likewise, if the sage conducts himself in a pleasant fashion with his fellow given the benefit of his previous righteous deeds. We should man ... is honest in his business dealings, and constantly is seen studying declare him holy (kadosh)." the Torah, adorned in Ta/lit and Tefillin . .. such deportment is a Kiddush It may be that the Hatam Sofer utilized this term figurative­ Hashem. Regarding such an individual, the Scripture states, "And He said unto me: Thou are My servant Israel, in whom I will be glorified. " (" Hil­ ly and not in a strict Halakhic sense. There is, however , a khot Yesodei ha-Torah" 5:11). Talmudic source which would justify granting the appellation of hasid to Jewish victims of gentiles. The rabbinic discussion Likewise, in his lgeret Shemad which was also known as concerns the expiation of sins granted at the moment of death. Mamar Kiddush Hashem, the Rambam stresses this positive The text reads: concept of the Sanctification of G-d's name. 7 During the Holocaust, this positivism took on special significance. Despite Said Raba to him (Abaye): Doest thou compare one who was executed in his wickedness to one who died in his wickedness? In the latter case, since the vicissitudes of daily life under the German conquest, the he dies a natural death, he attains no forgiveness (by mere death without Jew continued to evolve a purposeful existence. This concept repentance). However , in the former case, since he does not die a natural was aptly expressed by Rabbi Isaac Nissenbaum in the Warsaw death, he obtains forgiveness (by the execution). In proof thereof, it is Ghetto. The latter, a Volozhin Yeshiva graduate, was a central written, 'A Pslam of Asaph, 0 G-d, the heathen are come into Thine in­ figure in the Zionist movement, particularly among the heritance; they have defiled Thy Holy Temple ... They have given the dead bodies of Thy servants to be food unto the fowls of the heaven; the Orthodox Mizrachi element. During the trying days of life in flesh of Thy saints unto the beasts of the earth." Who are meant by "Thy the Warsaw Ghetto he was reported to have stated: servants," and who by " Thy saints"? Surely, " Thy saints" means litel'al · This is the time for the Sanctification of Life and not for the Sanctification ly, saints, whereas, " Thy servants" means those who were at first liable to of G-d 's Name through death. In the past our enemies demanded our sentence (of death), but having been slain, are designated "se rvants. " souls. Under such conditions, the Jew sacrificed his life for the Sanctifica­ In accordance with this point of view, the victims of the tion of G-d 's name. Now the enemy demands the Jewish body. Under Holocaust could certainly be designated saints or hasidim. In hissuch lif conditionse.' it is obligatory for the Jew to defend his being, to protect popular usage, people utilized the more familiar term of kedoshim rather than hasidim. Since kedoshim was applied to those who chose to be martyrs it was likewise used for the 103 Holocaust sufferers.

102 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship The "Kedoshim" Status of the Holocaust Victims

Rabbi Nissenbaum's words were widely quoted in the Ghetto and were a source of encouragement to its inhabitants. prayer and the study of Torah did not cease. 10 An entire gamut A similar notion was reportedly put forward by Rabbi of Holocaust Responsa literature evolved reflecting the deter­ Menachem Zemba. The latter was a hasidic Talmudic scholar mination of the victims to safeguard the sanctity of the Halakhah during the Nazi Inferno." Indeed they were worthy who became a member of the Warsaw rabbinical council in of the kedoshirn appellation. 1935. At the meeting of the surviving Ghetto leaders on January 14, 1943, Rabbi Zemba gave rabbinic approval for the In instances of those who fell while actively fighting the uprising. Among the thoughts he expressed were the follow­ Germans there may be another explanaion for their gaining the ing: title of kedoshirn. This reason could apply both to those who joined the Partisans and those who fell during the uprisings. Of necessity, we must resist the enemy on all fronts . . . . We shall no defining the wars by the Torah, longer heed his instructions. Henceforth, we must refuse to wend our way When concept of commanded to the Umschlag-platz, which is but a blind and a snare-a veritable Maimonides included "saving the Jewish people from an

stepping-stone on the road to mass annihilation . ... Had we lived up to enemy that has come upon them" among such conflicts. 12 our presumed status of a " people endowed with wisdom and understand­ There is even a contemporary opinion that fighting the ing," we would have discerned ab initio the enemy's plot to destroy us as a Germans was subsumed under the commandment to wipe out whole, root and branch , and we would have put into operation all media of information in order to arouse the conscience of the world. As it is now, Amalek. " The concept of Amalek does not mean only those ac­ we have no choice but to resist. We are prohibited by Jewish law from tually descended from Amalek. It rather refers to any people betraying others, nor may we deliver ourselves unto the hands of the arch­ who continue the tradition of Amalek to destroy the Jewish enemy. people .... Therefore the cursed Germans were like Amalek Sanctification of the Divine Name manifests itself in varied ways. and it was an obligatory war to wipe them out. " 13 Those who Indeed, its special form is a product of the times we live in. Under the fight such wars are advised by Maimonides to do so with total sway of the first crusade, at the end of the eleventh century, devotion and the intention of sanctifying G-d's Name. He Halakhah-as an echo of political events of the times-determined one wrote: way of reacting to the distress of the Franco-German Jews, whereas in the middle of the twentieth century , during the onrushing liquidation of Jews Once the soldier is on the battlefield he must rely upon the Hope of Israel in Poland, Halakhah prompts us to react in an entirely different manner. and its Savior at times of despair. The soldier must know that he is In the past, during religious persecution, we were required by law " to give fighting for the principle of the unity of G-d. He must be brave and not al­ up our lives even for the least essential practice." In the present, however, low himself to be distracted from his military tasks. The soldier should not when we are faced by an arch foe, whose unparalleleled ruthlessness and think about his wife and children, but should rather totally concentrate on total annihilation purposes know no bounds , Halakhah demands that we his military tasks . ... Whoever fights with all his heart, without fear, and fight and resist to the very end with unequaled determination and valor with intention to sanctify the Name of G-d may be assured that no harm for the sake of the Sanctification of the Divine Name.' will befall him. He will build a faithful house in Israel and gain everlasting life for himself and his children. This is in accordance with (Abigail's In conformity with this viewpoint, that a proper and blessing to King David): " For the L-rd will certainly make my lord a sure significant lifestyle constitutes a Sanctification of G-d's Name, house, because my lord fighteth the battles of the L-rd ... yet the soul of then the Holocaust victims may generally be termed kedoshim. my lord shall be bound in the bundle of life with the L-rd thy G-d. "" Many retained their human dignity under the most trying of Since those Jews who did resist fought an obligatory war in conditions. Legendary are the stories about concentration camp defense of the Jewish people, the exhortation of Maimonides inmates who smuggled in prayer books and scraps of rab­ Would apply to them. If their intentions were to uphold the un­ ity of G-d and the sanctification of His Name, they may cer­ binical texts. Even in the "valley of the shadow of death," tainly be termed kedoshirn.

104 105 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship The "Kedoshim" Status of the Holocaust Victims

Granted that this title can be applied to the religious victims of the Holocaust, but is it likewise applicable to those who NOTES deviated from the path of Torah? Such individuals generally do I. Terumot ha-Deshen, question 199 in the appendix. not think in terms of the Sanctity of Life and G-d's Name. For details of Rabbi Israel lsserlein and his period see Shlomo Notwithstanding these differences, the Remah did equate Eidelberg, Jewish Life in Austria in the XVth Century (Philadelphia: th e them. After ruling that one does not mourn for a habitual sin­ Dropsie College, 1962); and Eric Zimmer, Harmony and Discord (New ner, he still held that mourning is applicable for such an in­ York: Yeshiva University Press, 1970). 2. This problem was also raised by Jonathan Gerard, Sh 'ma, April 16, 1982, dividual when murdered by gentiles. The Remah ruled: p. 94; and Zev Rab-Hon, Amudim , lyar 5742, p. 264. It is not customary to mourn for a habitual sinner and certainly not an idol The Hebrew Encyclopedia 29:148 also alludes to this problem. It worshipper .. . . When such sinners are murdered by gentiles the mourn­ stated, " During the Holocaust the term kadosh was applied for the first ing rituals are observed (Yoreh Deah 340:5). time to Jews killed because of their Jewishness, although they had no The Taz (3) learns that the reason is that "such a death was choice in avoiding their fate by transgressing religious precepts. " 3. Simon Huberband, Kiddush Hashem (Tel Aviv: Zechor established by an expiation for their sins." The Shach (10) explains that we Simcha Holtzberg, 1969), p. 23. can "assume that they repented before their death." Similarly it This passage was later cited by Yitzhak Raphael is his opening could be assumed that the Holocaust victims either repented or remarks to the Torah She-be-al-peh Conference of Mossad Har av Kook, · that their death was an expiation for their shortcomings. Under 1972. See Torah She-be-al-peh (1972), 14:7. these circumstances, they too would be considered kedoshim. 4. Pesach Schindler, " The Holocaust and Kiddush Hashem in Hassidic A contemporary religious Zionist leader, Shlomo Zalman Thought ," Tradition, Spring-Summer 1973, p. 88. See his footnote (5) on p. 99 in which he stated: " A search of Maimonides' works and con­ Shragai, similarly equated all the Jewish Holocaust victims. He sultation with scholars failed to reveal such a source."

wrote: This author has likewise reached the same conclusion after ,1 The Mei he-Shiloach already stated: "Even when a Jew falls into thorough search of Maimonides ' writings and consultation with th e falls-he leading Jerusalem scholars. the lap of G-d."This is the secret of repentence. No Jew is ever totally cut off and alienated from G-d. Even when he stumbles, he still remains in 5. Shea'lot U-Teshuvot Hatam Sofer: Yoreh Deah, responsum 333. G-d's abode. Therefore, the gates of repentence are never entirely The' concept of burying those who have incurred a more severe closed ... penalty in a separate area is found in Sanhedrin 6:5. It is based upon th e principle that " a wicked person may not be buried beside a righteous Those killed by the gentiles in our generation were not executed one" (Sanhedrin, 47a). because of their refusal to transgress the Torah. They were rather 6 . Sanhedrin 47a citing Psalms 79:1-2. murdered because they were Jews, the children of Abraham , Isaac, and Jacob-an integral part of the nation of the L-rd of Abraham. This nation My rebbe muvhak , Rabbi Joseph B. Soloveitchik, explained that this is always holy since G-d dwellf. in their midst even when there is defile­ Talmudic text is the source for granting the status of kedoshim for ,ill ment ... Jews killed by gentiles. My conversation with my rebbe took place on May I also stress that at the time when Jews were led to the gas February 2, 1983, when I visited Yeshiva University in New York. chambers they all sang the refrain "Ani Ma'amin." Certainly there were 7. lgeret Shemad (Rambam Le-Am edition of Mossad Harav Kook), p. 55. among them some who were not totally committed. Nevertheless, their Also see the discussion of this idea by Rabbi Shlomo Coren , Torat ha­ Jewish sparks were also ignited at this moment. They too sang, " Ani Moadim (Tel Aviv : Abraham Zioni, 1964), pp. 202-03. Ma 'amin." " 8. Nathan Eck, Sho'at ha 'Am ha 'Yehudi be-Europa (Jerusalem: Yad Vashem u-kibbutz ha-Meuchad , 1975), p.74; and Isaac Nissenb,ium , In accordance with these viewpoints, the designation of Alei Heidi (Jerusalem: Reuven Mass, 1969), p. 360. kedoshim is appropriate for all the Jewish Holocaust victims. 9. Hillel Seidman, Diary of the Warsaw Ghetto (New York : the Jewish Week, 1957), pp. 219-21, 281-85; and Aaron Rothkoff , " R,ihbi Menachem Ziemba of Warsaw," Jewish Life (November-December 106 1969), pp. 41-46.

107 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship

10. Ani Ma'amin, ed. Mordecai E\iav (Jerusalem: Mosad Harav Kook, 1965) , Stanley M. Wagner 11. pp.Among 91-136. the books entirely devoted to Holocaust Responsa Literature are the five volumes of Rabbi Ephraim Oshry, She'elot u-Tshuvot Mi­ Rabbi of BMH Congregation, Denver, Colorado; Director, Ma'amakim (New York, 1959-1978); and the two volumes of Shimon Center of Jewish Studies, University of Denver; Eva and Efrati: Me-Emek ha-bacha (Jerusalem, 1948), Mi-geh ha-Haregah Emile Hecht Professor of Jewish Studies. (Jerusalem, 1961). 12. "Hilkhot Melakhim" 5:1. for a detailed analysis of the principle see THE APIKOROS- Shlomo Joseph Zevin, Le-Ohr ha-Halakhah (Tel Aviv: Abraham Zioni, EPICUREAN, ATHEIST OR SCOFFER 1957),Also pp. see 9-16. Eliyahu Ben-Zimra, "Kedushat ha-Hayyim u-Mesirot Nefesh bimei ha-shoah al-pi Halakhah," Sinai 80: 3-4 (Kislev-Tevet, 5737), pp. 3-5. 13. Rabbi Yehudah Gershuni, "Milchemet Reshut v-Milchemet Mitzvah," Beginning with Biblical times and down to the present, a Torah shel-beal Peh (1971) 13:151-153. On p. 151, he cites the tradition that Amalek is more than just a lineage in the name of Rab Hayyim very special nomenclature has been applied to Jews who did not conform to the established norms of religious behavior. Soloveitchik of Brisk. · 14. " Hilkhot Melakhim" 7:15 , citing I Samuel 25: 28-29. Thus, for example, in the Bible we find references to the Naval 1 The inferences of this ruling of Maimonides would certainly apply to and Bnai Belial; 2 in Talmudic literature to the Mumar,3 the those who fall in defence of the State of Israel. See Rabbi Hayyim Meshumad • and Poresh MiDarkei Tzibur; 5 in Maimonidean Schmuelowitz, " Torah Hayyim: Sichot Mussar me'Maran," Sefer ha­ Zikarart le-Rebbe Hayyim Schmuelowitz, ed. Joseph Buksbaum times we find references to a whole classification of Jews who had "no share in the world to come";• and today, we speak col­ (Jerusalem: Moriah, 1980), p. 209. 15. Unpublished letter to Isaiah Furstenberg, student in the Ma'aleh loquially of the "Shoygetz" and the "Kopher." Some appella­ Adumim Hesder Yeshivah, 21 Kislev 5742. tions for dissidents have tenaciously remained part of the pop­ The Mei ha-Shiloach was authored by the Hasidic Rebbe Mordecai ular jargon for centuries. But it is interesting to note that often Joseph Leiner of Izbica. For details of the hasidut of Izbica see Shlomo Zalman Shragai, be-Netivei Hasidut Izbica-Radzyn (Jerusalem, 1972- the precise meanings of the terms changed with the passage of years. 1974), 2 volumes. One such name, accorded to the Jewish non-conformist as early as the second century of the common era, the Apikoros, shall be the subject of our analysis in this paper. It must be at once made clear that the Apikoros of today is not the Apikoros of the Tannaitic literature. Nor is he the Apikoros of Amoraic literature, as shall be shown, nor of post-Amoraic literature. Thu s, for example, Maimonides classifies the Apikoros as a theological dissenter (see infra. p.115) and Rashi considers him to be an insolent person {Erubin 63a). A person who is called an Apikoros today is a Jewish "free thinker," an "atheist," one who does not consider the Torah teachings valid and who is not, therefore, a practicing Jew.

109 108 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship The Apikoros-Epicurean, Atheist or Scoffer

But it is the origin of the term Apikoros that intrigues us let us fill ourselves with costly wine and perfumes ... let there be no most, the in this appellation was first applied, manner which meadow without traces of our proud revelry .. . " 11 and the way in which its meaning was subsequently Josephus, too, takes pains to point out that, by virtue of the broadened. fulfillment of Daniel's prophecies, "Epicureans are in error who cast Providence out of human life; and do There is little doubt that the word Apikoros is Greek in not believe that God takes care of the affairs of the world; nor that the origin, and that by no strange coincidence corresponds with the Universe is governed and continued in being by that blessed and immortal name of the founder of a great Greek philosophical school, nature; but say that the world is carried along of its own accord, without a Ruler and Curator .. .'' 12 Epicurus. 7 Its verbal and adjectival forms, as shall be shown, develop only later, as the word becomes inclusive of a wider Philo, the great first century Jewish philosopher of Alexandria, openly disagreed with the Epicureans on the most essential scope of dissident behavior. Since, therefore, there exists an in­ 3 trinsic connection between the word Apikoros and the Greek points in their doctrine'. In physics, he rejected their notions of philosopher Epicurus, it will be necessary to examine how this atomism; in theology he denounced the belief in the existence association came about. Was Epicureanism extant in Judea? of Gods in the form of human beings, as taught by Epicurus in Did it pose any threat to the Jewish community? his popular writings; and he denounced also the denial of Providence and the doctrine that the world is governed by

chance, as taught by Epicurus in his philosophic writings. ' The Epicurean school was, by no means, one of minor 1 proportions. It was founded by Epicurus in Athens precisely at The Gospel literature also reflects a profound awareness of the time that the Hellenistic culture began its world-conquering Epicureanism. In Paul's exhortation to the Corinthians , for ex­ ample, he reasons, " if the dead are not raised, let us eat and advances 8 and, among all the Grecian philosophies, drink for tomorrow we die," 15 which precisely echoes the " his was the only creed that attained to the dimensions of the world Epicurean sentiments. philosophy . For the space of more than seven centuries, three before the common era and four afterwards, it continued to command the devotions of multitudes of men. It flourished among Greeks and barbarians alike, in It should not be surprising, then, to learn that there were Greece, Asia Minor , Syria, Judea, Egypt, Italy, Roman Africa, and Gall. "' Jews in the second century of the common era who were suf­ The penetration of this philosophy into Judea can be more ficiently influenced by the Epicureans to adopt both their specifically traced to the establishment of a flourishing school beliefs and their behavioral patterns. Unfortunately, we find in Antioch in the second century C. E. which served as a "base but one clear-cut reference which links the Apikoros with of operations for the forceable introduction of Epicureanism Epicurean doctrine. In the Mishna, Rabbi Elazar, disciple of into" the Jewish community. 10 Since the Hellenistic culture Rabbi Yochanan Ben Zakkai, sage of the late first century of had, in general, no small effect upon Jewish life, it is not un­ the common era, states: reasonable to assume that Epicureanism, in particular, made ',ny i1!1t< ,n 'J~', y11 on,p,~t<, :::l'lll!1lll i1n Y11 i11111 im',', ,,pw '1i1 some impress upon the Judaism of that period. Thus, for exam­ -711?1.lJ~ 1:Jlll 7', • ?lll'lll 711:JK?lJ 7.lJ:J K1i1 'nl ple, the author of the Wisdom of Solomon in his tirade against " Be eager to study the Torah ; know what to answer an Apikoros; know the wicked in 2 obviously refers to the Epicureans, before whom you toil, who your employer is, who will pay you the reward Chapter of your labor. "" although without mentioning them by name, when he states: In this passage the Apikoros is clearly linked to the Epicurean " For they said within themselves ... none was ever known that returned denial of reward and punishment. It is interesting to note that from Hades come therefore and let us enjoy the things that now are. ... the exhortation does not suggest to refrain from coming in to

110 111 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship The Apikoros-Epicurean, Atheist or Scoffer

contact with the Epicureans, who were probably too ubiquitous 21 to make such a recommendation feasible, but it rather specifies empty mummery. " This may be the reason that we find no that one become prepared to refute them. Moreover, since the Talmudic injunctions against the Apikoros, as we find con­ word Apikoros is found in an early Mishna, in which other cerning th~ Meshumad, the Min and the Sadducee. We do, however , find that they are considered (1) excluded from the categories of Jewish heretics are mentioned, 22 world to come, (2) condemned to receive an eternal p.r<1 i171ni1 p~ • 'nl'.li1 n,nn p.r< il'.l1.Ki1 .K:Ji1 • ,,y,p,n • i1, p.r

Torah and its disciplines as an infringement upon their per­ neglects to quote his teacher in issuing a statement ; (5) One sonal freedom; and (4) they resented Rabbinic attempts to es­ who says: " of what use are the Rabbis to us? They have never trange Epicureans from the Rabbinic community by virtue of permitted us the raven nor forbidden us the dove." (6) One their constant castigations. That such condemnation was who speaks irreverently to the Rabbi; (7) One who renders an directed essentially against the Rabbis and not against Scrip­ opinion without consulting his teacher; (8) One who calls his ture or Pentateuchal law made their attitude the more teacher by name; (9) One who is a plagiarist; and (10) One who dangerous, since this did not involve a complete alienation derides the words of the Sages. from Judaism.

It may seem strange that among all of these definitions of It is no small wonder, therefore, that the Rabbis seized the Apikoros none approximate the meaning of the word in its opportunity, when defining Apikoros, to utilize the root 7p!:l, original usage. This has led many to assert that, even originally, meaning to abandon, and characterize their behavior in terms the word Apikoros encompassed all of these meanings. The of disrespect for the Rabbis. 33 Thereafter, all such irreverance, fact remains, however, that the Seder Olam Rabba, a Tan­ whether stemming from the Epicureans or not, was deemed naitic work, speaks of eternal perdition for a group of heretics behavior becoming of an Apikoros. 2 including the Apikoros and those who deride the Sages. • This indicates that their dissidence was originally mutually ex­ It must be pointed out, however, that such behavior was, clusive. Secondly, Amoraic association of the root 7p!:l with more of ten than not, termed xnnp!:lx, which, save for a o,p,!:lx points to an extension of meaning, as we shall see. phonetic similarity, has nothing to do with the word onip,!:lK There is no Tannaitic source which contains the form7p!:l in Neither does the root 7p!:l stem from the Greek 01,,p,!:lX nor is describing the behavior of the Apikoros. ' 0 the word onip,!:lx Semitic in origin. Thus , passages such as p:n ,7_yyn7 ,,,p,!:lx ,n,:JIV", and xni7p!:lx:J xmnn ,n,s and Since, then, the Amoraim did describe the Apikoros as a ,,i1 ,'7,:J ,,,p!:l ,lJ 36 , may refer to any type of dissident behavior scoffer and a disrespectful person, the cause for such an exten­ involving an antipathy towards the Sages, not particularly sion of meaning must be established. It would seem that the Epicurean. And , owing to the phonetic similarity between 7p!:l Rabbis associated ridicule and irreverance with Epicurean and onip,!:lx, the original meaning of Apikoros gradually lost behavior. Epicurus himself paved the way for such demeanor its identity. Even the Amoraic sources containing the word in by flouting his own teachers and masters.' 1 There is, further­ its original form infer a general type of antagonism towards the more, ample proof in the Gospel that the Epicureans behaved Rabbis. in this manner. 32 In regard to their relationship with the Sages, it is quite conceivable that they held Rabbis and tradition in The definition of Apikoros was, in post-Amoraic genera­ contempt for the following reasons: (1) The Rabbis belittled tions, extended to include those antagonistic not only to the and prohibited the study of Greek culture. The Epicureans who Rabbis, but to Jewish theology in a far broader sense. were, undoubtedly, saturated with Greek culture, scorned such Maimonides asserts that: attitudes; (2) The Rabbis emphasized the necessity of living a " Th ere are three who are called Apikorsin; one who says that there is no Godly life in this world so that one would be assured of a por­ prophecy at all and there is no science that stems from the Creator and tion of the world to come. The Epicureans scoffed at such no­ enters the hearts of men, he who contrad icts the prophecy of M oses our tions; (3) The Epicureans viewed Rabbinic attempts to preserve teacher, one who says that the creator is not aware of th e works of man. Each one of these three is in the class of Apikorsin. ""

114 115 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship The Apikoros-Epicurean, Atheist or Scoffer

The conspicuous omission of a Talmudic source here indicates 15. I Cor. 15, 5. For a comprehensive study of Christianity & Epicureanism the extent of the departure from the Talmudic meaning of the see Norman W . Dewitt , St. Paul & Epicurus, Minneapolis , 1954, who word. The modern interpolation of the Apikoros as a "free­ concludes that " Epicureanism functioned as a bridge of transition from Greek philosophy to the Christian religion" (p. 5). thinker" is but slightly removed from this nomenclature. 16. Mishna, ~V:14 l~ed. Herford, p. 61; also, see note 19. 17. Mishna , • X, I. £,,.,n\..t~ '" The metamorphosis in the usage of the appellation 18. B.T. Sanhedrin 386; Also see A. Marmorstein , " Les ' Epicuriens' Dans La Apikoros is by no means atypical, especially in the Literature Talmudique , RE], Vol. 54, p. 188. nomenclature used by Rabbinic authorities for describing the 19. R.T. Herford, Christianity In Talmud & Midrash. " The Talmud speaks of the Minim as a definite or distinct body or sect." (pp. 365-367). See Jewish non-conformist. A study of the diverse connotations ac­ also Gratz 's article in the RE], XXXVIII, pp. 194-203, " Encore Un Mot corded in different ages to many of the other terms merits our Sur Minim, Minout et Grulinim Dans Le Talmud. " consideration. 20. Ulsener's Epicurea, 387; also, see Cicero, De Nat. Deor. I, 85. 21. Quoted by E. Taylor, Epicurus, N.Y. 1910, p. 30, M.J. 22. Mishna , Sanh . X, I; J.T., Sanh. 27d. 23 . Seder Olam Rabba, lac. cit. ; Tos. Sanh . XIII, 5; B.T. Sanh . 17a. 24. Sifri on Numbers, ed. Friedman, Chap. 112, p. 33a. 25. Targum Jonathan on Deut. I, 12; also see Sifri on Deut ., ed. Friedman , NOTES Chap . 12, p. 676. 26 . J.T. Sanh. 27d and Sifri on Deut., lac. cit., Mishna , Sanh . X, I. 1. As in II Sam. III, 33; Is. XXXII, 6; Jer. XVII, 11; Psalms XIV, 1. 27. The conjecture of Kaempf , " Horae Semiticae," Monat., 1863, pp. 145- 2. As in Deut. XIII, 14; Jud. XIX, 22; I Sam. I, 16; II Sam. XVI, 7. 148 to identify the Apikoros with the Min is unacceptable since the Seder 3. As in B.T. Sanhedrin 27a; B.T. Erubin 696; B.T. Hullin 46; B.T. Horayot Olam Rabba, lac. cit., includes both as separate categories of heretical lla. behavior. 4. As in Tos. Hullin I, l ; Tos. Horayot I, 5; Sifra, ed. Weiss, p. 216; Tanna 28. B.T. Sanh. 996 and 100a. D'be Eliahu, ed. Friedman, Wien, 1902, Chap . 7 (6), p. 35. 29. Seder Olam Rabba, loc. cit. 5. As in Seder Olam Rabba, ed. Rattner, Wilna, Chap. III, p. 16; B.T. Rosh 30. The one seeming exception is the word 11:imo7p!:l1< found in the Targum Hashana 17a; B.T. Semachot II, IO; B.T. Taanit lla. Jonathan on Deut . I, 12. This , however , is a denominative of the noun 6. Hilchot Teshuva, II, 6-14. 0171iJ'!:ll< (Dictionary, Jastrow, Vol. I, p. 104) rather than a verbalization 7. Greek,ErriKvpoc;; See Aruch Completum, ed. Kohut , s.v. 0171iJ'!:ll<, Vol. I, of the root. I. , p. 233 ; Krauss, 5., Lehnworter, s.v. 0171iJ'!:ll<, Vol. II , pp. 107-108; See 31. Cicero, De. Nat. Dear. , 26. also Krauss, loc. cit. , Vol. 1, p. 193, where he describes many Talmudic 32. For example, see II Peter III , 3, 4 (" knowing this first, that there shall come in the last days walking after their lusts and saying, Greek borrowings ending in 0'1 . scoffers own 8. Paul E. More, Hellenistic Philosophies, London , 1923, p. 18. where is the promise of his coming? For since the fathers fell asleep, all 9. Norman W . Dewitt , Epicurus & His Philosophy, University of Min­ things continue as they were from the beginning of creation" ); see, also , nesota, 1954, p. 3. Dewitt, St. Paul & Epicurus, pp. 54-56; 77-78; 125-127, where he as­ 10. Ibid., p. 29 & p. 334. sociates the "sco ffers" in the Gospels with the Epicurea ns. 11. Apocrypha & Pseudipigripha of the Old Testament, ed. R.H. Charles, 33. For an analysis of the Semitic origin of 7p!:l , and its usage in T c1lmudir Oxford , 1913, Vol. I, p. 537. literature, see Kaempf , op cit, pp. 143-144; and Ben Yehuda 's Dictionary, 12. Jos., Ant. X, 2,7. Vol. X, p. 5126, note 1. 13. Wolfson , Philo, Harvard University Press, 1948, Vol. I, pp. 108-lOq. See 34. B.T. Nedarim 23a. also, notes. 35 . B.T. Erubin 63a. 14 . See Ibid., Index, Vol. II , Epicurus & Epicureans, pp . 511-512, for further 36. B. T. Sanh. 60a. 37. Hilchot Teshuva , III , 8. references concerning the ex tent to which Philo dealt with the Epicurec1n philosophy in his writings.

116 117 Walter S. Wurzburger Maimonidean Matrix of Rabbi Soloveitchik's Ethics

Adjunct Professor of Philosophy at Yeshiva College. upon the raw data of our experience, in keeping with the divine mandate " to conquer the universe." 1 At other times, however, THE MAIMONIDEAN MATRIX OF he calls attention to our inability to ground ethics in reason. 2 In his view, any attempt to establish a purely secular ethics is RABBI JOSEPH B. SOLOVEITCHIK'S doomed to failure. It is, however, not quite clear whether in his TWO-TIERED ETHICS* opinion, the failure of secular ethics is due to its inability to provide the kind of incentives and motives for ethical conduct which religion can supply; or to the intrinsic limitations of Rabbi Soloveitchik's philosophy revolves around the secular ethics which preclude the construction of an adequate primacy of the Halakhah. Because Halakhah figures as the system; or to the one-sidedness of a success-oriented secular revealed will of God, all other considerations are subordinated ethics that fails to account for the dimension of the " ethics of to its dictates. This approach to Halakhah is typical of Orthodox humility," which, according to Rabbi Soloveitchik, represents thinkers. But for Rabbi Soloveitchik, Halakhah's role is not one of the indispensable components of morality. limited to providing evaluative standards; instead, it functions The ambivalence encountered in Rabbi Soloveitchik's as the matrix of his entire philosophy. thought can in large measure be attributed to the fact that the One may, therefore, seriously question whether one is at all various components of his "system" are not in a state of justified in employing the term " ethical" within the context of equilibrium, but in constant dialectical tension. Because he is such a thoroughly theocentric system, where the property of willing to reconcile himself to the irreduciblity of this tension, being commanded by God is the only relevant criterion for he is under no pressure to force disparate experiential data into determining the validity of any norm. After all, Chukim, a procustean bed for the sake of forming a neat and coherent positive laws obeyed solely on the basis of their being com­ system. Instead, he unabashedly advocates a pluralistic, multi­ manded by God, enjoy no less authority than so-called ethical tiered ethics, eschewing the pitfalls of a reductionist approach, laws, which, apart from the authority deriving from their being which in the interests of neatness and economy glosses OV\:'rthe commanded by God, can also be buttressed by appeals to disparities and incongruities that abound in the human condi­ reason, conscience, or moral sentiment. But since in such a tion. monistic system the property of being commanded by God is The emphasis upon the irreducibility of dialectical tensions, both a necessary and sufficient condition of normative which are grounded not in socio-cultural factors but in the very significance, one is hard-pressed to assign any real significance nature of the human condition, permeates not only Rabbi to the ethical qua ethical. Soloveitchik's ethics, but all facets of his philosophy. To resort 3 To complicate matters even further, Rabbi Soloveitchik to the typology of " The Lonely Man of Faith," Adam I and displays a somewhat ambivalent attitude toward secular ethics. Adam II represent two disparate components of human nature Occasionally, he points to the development of ethical norms as which account for the dialectical tension within man. a legitimate manifestation of human creativity, which itself Reflecting the distinctive features assigned to them in the . forms an integral part of the human quest to impose order respective chapters of Genesis, Adam I, as portrayed in Genesis, chapter 1, creatively utilizes his reason and imagina­ *Reprinted with permission of the publisher from"Through the Sound of tion to subdue the forces of nature and harness them to his Many Voices : Writings Contributed on the Occasion of the 70th Birthday of purposes. Adam I engages in the process of "filling the earth W. Gunter Plant", Lester and Orgen Dennys Limited, Toronto , 1982 . and conquering it" in order to realize his potential as a creature

118 119 GESHER : Bridging the Spectrum of Orthodox Jewish Scholarship Maimonidean Matrix of Rabbi Soloveitchik 's Ethics

bearing the image of God, the Creator. By exercising dominion Soloveitchik's opm1on, in order to be adequate, ethics must over the forces of nature, man not only asserts his dignity but involve continuous oscillation between the ethics of victory responds to the mandate of becoming a co-creator with God, and the ethics of defeat. 0 Purely rationalistic ethics as for­ who relegated to man the task of helping perfect the universe. mulated by Kant or Hermann Cohen is marred by one­ In striking contrast with the Promethean myth , which dis­ sidedness. While taking account of the human quest to impose parages human creativity as an arrogant intrusion upon the rational structure upon the world of experience, it is totally divine realm, the Bible encourages man to employ his rational oblivious of those dimensions of the human personality that faculties to mold his environment in accordance with his needs. strive not for autonomy, mastery, and control, but for redemp­ In the biblical conception, man is not intended to be a passive tion through self-sacrifice. victim of circumstances or conditions. The function assigned to In the light of Rabbi Soloveitchik's ethical doctrines as set him in the divine economy is to achieve majesty by dint of his forth in his recently published "Majesty and Hum ility," 7 we skill, resourcefulness, and creativity. Hence, science and must reject Professor Lawrence Kaplan's thesis that, according technology reflect not human hubris, the improper arrogation to Rabbi Soloveitchik, only ritual mitzvot qualify as sacrifi cial of powers reserved for a higher being, but the fulfillment of a acts which, because they ar e performed in humble submis­ divine imperative mandating "conquest " of the natural siveness to an incomprehensible divine will, involve the universe. covenantal community .8 Ethical mitzvot, on the other hand , But there is another facet of human nature where scientific supposedly address themselves exclusively to man qua member triumphs or technological accomplishments play no role what­ of the majestic community , since ethical norms express the ma­ soever. Success in manipulating the universe cannot assuage jestic human quest to impose rational order upon conduct. But the existential loneliness of Adam II, who even under the idyl­ such a sharp line of demarcation between the ethical and the lic conditions enjoyed in the Garden of Eden must come to ritual spheres can hardly be maintained on the basis of the opi­ grips with the fact that " it is not good for man to be alone" nions expressed by Rabbi Soloveitchik in his " Majesty and (Gen. 2:18) . But in the final analysis, it is only through forma­ Humility." As the very term ethics of defeat suggests, t_he need tion of a covenantal community with God that Adam II 's sense for humble submission to an unfathomable divine will of isolation can be overcome. Unlike Adam I, who seeks characterizes not only the ritual sphere, but applies to the dignity through control over his environment , Adam II yearns ethical sphere as well. for redemption through self-surrender and self-sacrifice.• In fairness to Professor Kaplan, it should, however, be Halakhah , in Rabbi Soloveitchik's opinion, recognizes the pointed out that he offered his interpretation of Rabbi legitimacy of the two separate domains. 5 Since the dialectical Soloveitchik's doctrine long before the appearance of " Majesty tension between Adam I and Adam II is inevitable, Halakhah and Humility, " which in our opinion is crucial for an under­ makes no attempt to resolve it, but seeks to provide a nor­ standing of the latter's position. We must also concede to mative framework designed to make man function as a citizen Professor Kaplan that the specific illustrations provided for his of two worlds-the majestic as well as the covenantal com­ ethics of humility in the essay " Majesty and Humility" really munity . involve Chukim, the ritual laws, and not ethical requirements. Similar considerations rule out the construction of any But Rabbi Soloveitchik's repeated emphasis upon the inade­ homogeneous ethics that would accommodate the requirements quacies of a one-sided, success-oriented ethics further confirms of the disparate components of human nature. In Rabbi our opinion that for Rabbi Soloveitchik the ethical domain in­ volves both the majestic and the covenantal communities. 120 121 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Maimonidean Matrix of Rabbi Soloveitchik's Ethics It has been suggested that Rabbi Soloveitchik's conception of the dialectical tension arising from man's ontological status have little in common with those inferred by his ancestor, Rab­ mirrors the tensions between the neo-Kantian (Adam I) and the bi Chaim of Volozin. The latter, employing Kabbalistic existentialist strands (Adam II) of his thought. In Professor categories, was concerned with an entirely different sort of Kaplan's view, the emphasis upon human creativity which creativity. For him, the study of the Torah and the performance predominates in the " Ish Hahalakhah " 9 and . which of mitzvot were deemed creative acts because, in keeping with characterizes the typology of Adam I can be traced back to the the doctrine that " stirrings below precede stirrings above," impact of Hermann Cohen 's neo-Kantianism .10 The influence they initiate chain reactions extending to the highest reaches of of existentialist thinkers , on the other hand, supposedly makes being. Human creativity manifested itself in the creation of itself felt in his Adam II, who, a la Kierkegaard, surrenders in a spiritual values which affect the relationship of God to His spirit of sacrificial submission to an unfathomable divine will. world and are instrumental in helping bring about the Professor Kaplan contends that a gradual shift can be detected reunification of the Holy One Blessed Be He and His 1 in Rabbi Soloveitchik's thought, with existentialist elements Shekhinah. • When human creativity is interpreted in such acquiring increasing prominence. 1 1 pietistic fashion, it obviously cannot provide religious justifica­ Actually, this is a misconception that has arisen largely tion for science and technology. What mattered to Rabbi because of historical accidents relating to the publication of Chaim were not the empirically observable consequences of Rabbi Soloveitchik's writings. For many years, " Ish human actions, but their supernatural repercussions. Hahalakhah " was his only major contribution to religious In contradistinction to this approach, which even nowa­ days permeates the " yeshivah world" and results in total indif­ philosophy that was accessible to the general public. 1 2 Moreover, without the balance provided by some of his later ference to scientific pursuits , Rabbi Soloveitchik extols the writings, the thrust of his thought lent itself to misunder­ merits of whatever activities enlarge the human capacity to ex­ standing. Regrettably, some interpreters were not aware that an ercise control over the environment and to achieve the dignity 1 5 early draft of his existentialist " Ubikashtem Misham " was due to man as the bearer of the image of God. Science and already completed by the time " Ish Hahalakhah " had made its technology no longer are dismissed as purely secular 1 enterprises. They are cherished as invaluable instruments first appearance. ' Small wonder, then, that in many circles the impression prevailed that Rabbi Soloveitchik's description of facilitating the religious guest of imitating the creative "ways " Halakhah as a discipline calling for the exercise of activity, of the Creator. spontaneity , and innovativeness, rather than blind submission There can be no doubt that this openness to science repre­ to the divine will, betrayed the influence of Hermann Cohen, to sents a major shift from the ethos and value system of Eastern whom the "given " was merely a question posed to the human European Orthodoxy. But we must not jump to the conclusion mind. that this transformation was due to the influence of Hermann Similarly, Rabbi Soloveitchik's enthusiasm for science and Cohen. Perusal of the " Ubikashtem Misham " clearly reveals technology was seen as evidence of Hermann Cohen 's in­ that Maimonides (especially in relation to the apparent conflict fluence, especially since Rabbi Soloveitchik' s views on this is­ between the first and second chapters of Hilkhot Deot), rather sue diverge so much from those prevailing in his early environ­ than Cohen, provided the matrix for the development of Rabbi ment. To cite a telling example: from the premise that man is Soloveitchik's philosophy. In this context, it should also be mandated to emulate his Creator, he draws conclusions which borne in mind that, as Aharon Lichtenstein has pointed out, Rabbi Soloveitchik had originally planned to submit a disserta­ 122 tion on Maimonides, not on Hermann Cohen . 10 Rabbi

123 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Maimonidean Matrix of Rabbi Soloveitchik 's Ethics

Soloveitchik was forced, however, to abandon the project imitatio Dei. Hence, according to Cohen, there are strata of because no member of the Philosophy Department in Berlin Maimonidean ethics which are mere " survivals" of a pruden­ possessed sufficient expertise to supervise such a thesis. tial ethics; they should be overcome and transcended in the It must, however, be admitted that some aspects of Rabbi quest for religious ideals. Soloveitchik's own highly original approach to Maimonides , Rabbi Soloveitchik categorically rejects this doctrine. He which in turn provides the basic foundation of his entire shares Shimon Rawidowicz 's view that the middle road cannot religious , can in some measure be traced to philosophy back be dismissed as the intrusion of Greek elements upon biblical Cohen 's insistence upon the predominance of Platonic ele­ 1 morality,2° especially since Maimonides explicitly mentions the ments in Maimonidean ethics. ' Rabbi Soloveitchik subscribes middle road as one of the features included in " Walking in His to Cohen 's basic premise that, notwithstanding the Ways." 21 prevalence of Aristotelian notions and categories in his ethics, The ethics of the wise, not merely the ethics of the pious, Maimonides could not accept the basic premises of Aristotle, constitutes imitatio Dei, because for Maimonides it is indispen­ which relegated ethics to an inferior branch of knowledge. In sable to Yishuv Haolam, the settlement of the world. Cultiva­ the Aristotelian scheme, ethics figured as a to politics. prelude tion of traits of character that are required for the proper func­ As a low-grade science, its function was to provide practical tioning of society ceases to be merely a prudential dictate of guidelines, useful for the attainment of personal or communal social utility. It is transformed into a religious imperative which well being, but unworthy of the high status commanded by a is based upon the obligation to pattern ourselves after the theoretical science. But for Maimonides , ethics transcends model of the Creator. In keeping with this interpretation , teleological or eudaemonistic considerations. Acquisition of Maimonides allows no dichotomy between a religious and sup­ virtue is not merely a prudential requirement , but a religious posedly secular (Aristotelian) ethics. Rather , there are two obligation (in other words, imitatio Dei). ' 8 Moreover , the con­ separate strands of religious ethics which are in a state of cluding chapter of Maimonides ' Guide of the Perplexed treats dialectical tension. If my thesis is correct, it can be put moral virtue not merely as a means to an end, that is, schematically: the ethics of the wise represents imitatio Dei on knowledge of God, but as an integral part of the summum 1 bonum . • the part of Adam I (the majestic community), whereas the ethics of the pious reflects the quest for redemption through Although Rabbi Soloveitchik agrees with many features of self-sacrifice characterizing Adam II (the covenantal com­ Cohen 's approach , there are vital differences. Of special im­ munity). But, according to Rabbi Soloveitchik, both ethics seek portance are their divergent views concerning " middle road" to appropriate divine moral attributes . Adam I emulates divine ethics. Cohen had contended that only the ethics of the pious creativity. Through his acts of renunciation and withdrawal , really qualified as genuine religious ideals. Whatever features Adam II imitates the divine Tzimtzum, self-contraction, which of the Aristotelian golden mean Maimonides had incorporated Kabbalistic doctrine regards as the preconditon of the act of into his Hilkhot Deot were dismisses as totally incompatible Creation.22 Significantly, Maimonides , in chapter 2 of Hilkhot with the ethico-religious ideals that reflect the ultimate thrust of Maimonides . Deot, advocates extremism rather than the middle road precise­ ly in those areas that come under the purview of the ethics of In Cohen 's view, the standards contained in the ethics of humility. the wise are merely counsels of prudence which fail to satisfy To be sure, it is no simple task to satisfy the claims of two the higher requirements of a religious ethics based upon distinct levels of ethics which at times confront us with con­ flicting demands . But it should be realized that even without 124 125 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Maimonidean Matrix of Rabbi Soloveitchik's Ethics

the superimposition of an ethics of the pious, the ethics of the these assumptions are beset by serious difficulties, fnasmuch as wise would still be plagued with all sorts of moral ambiguities Rabbi Soloveitchik maintains that the dialectical tension and dilemmas. There is no formal principle that can be invoked between Adam I and Adam II is at least in principle capable of to determine the precise nature of the golden mean. Aristotle resolution. Extraordinary individuals, such as the Patriarchs, already noted that guidance on matters pertaining to virtue can find it possible to live simultaneously in the majestic and be provided only by the experience of individuals who excel in 26 23 redemptive comm uni ties. But it is difficult to envisage even practical wisdom. What renders the task of determining the the theoretical possibility of acting simultaneously in accor­ requirements of the middle road even more difficult in the dance with the requirements of both the ethics of the pious and Maimonidean system is the fact that for him the conception of the ethics of the wise since, by definition, the ways of the pious the middle road is dynamic rather than static. Whereas for deviate from the middle road. Aristotle the golden mean is patterned after the Greek ideal of Notwithstanding the seriousness of this problem, there is balance attained in a state of equilibrium, the Maimonidean no question that Rabbi Soloveitchik totally disagrees with the religious ideal of the middle road reflects creative tension aris­ thesis of Hermann Cohen and Steven Schwarzschild, who ing from oscillation between polar values. 24 Maimonides , like reduce the ethics of the wise to a second-class ethics, which is Aristotle, was unable to furnish a satisfactory definition of the intended merely as a stepping-stone to the higher plateau of the desirable traits of character. It is only through the imitation of ethics of the pious. 27 According to Rabbi Soloveitchik, the the proper model, the Torah scholar, that we can develop the dialectical tension between the two indispensable elements of intuitive f acuities needed for the formation of proper ethical religious ethics, both of which reflect polar phases of imitatio judgments. 25 Dei, does not disappear even in the ideal situation. To be sure, the addition of another tier (in other words, the To be sure, in any given situation we cannot be certain ethics of the pious) to the structure of morality further exacer­ whether we should act in accordance with the standards of the bates the difficulties. If decision-making at the level of the ethics of the wise or those of the ethics of the pious. But uncer­ ethics of the wise is beset by problems, they become com­ tainty and ambiguity characterize the entire ethical domain. pounded when we must wrestle with the additional question There are numerous instances when conflicting moral claims whether, in a given existential situation, we should invoke the leave us no alternative but to rely on our admittedly exceeding­ standards of the ethics of the wise or those of the ethics of the ly fallible intuitions for guidance in ethical decision-making. pious. But these added difficulties amount merely to dif­ There is a corollary of our analysis with important ferences of degree, not of kind. As we have noted previously, ramifications for contemporary moral issues. Since, according because it must accommodate numerous conflicting values, the to our interpretation of Rabbi Soloveitchik's ethics, the dialec­ entire ethical domain is replete with moral ambiguities and tical tension between the two types of ethics is inherent in the dilemmas. Unfortunate though this may be, there is no magic human condition itself, the ethics of the wise can never be formula that can be applied to settle conflicting ethical claims. totally transcended. Hence, Rabbi Soloveitchik is bound to re­ Our analysis so far has proceeded on the assumption that ject the utopian, messianic ethics of Hermann Cohen, which Rabbi Soloveitchik's ethics of majesty (Adam I) is the contributed so much to the latter's utter disdain for Zionism. equivalent of Maimonides ' ethics of the wise, while the ethics Professor Schwarzschild, following in the footsteps of Her­ of humility (Adam II) is the counterpart of the ethics of the mann Cohen, went so far as to identify Maimonides ' ethics of pious. But it must be admitted that for all their plausibility, the pious with messianic ethics which, in his opinion, ideally 2 should totally supersede the ethics of the middle road. " This 126 127 GESHER: Bridging the Spectrum of Orthodox Jewish Scholarship Maimonidean Matrix of Rabbi Soloveitchik's Ethics messianic perspective accounts for Professor Schwarzschild's 3. Soloveitchik, " The Lonely Man ," pp. 11-20 . aversion to the "militarism" of the State of Israel, which ob­ 4. Ibid., pp. 23-25 . viously does not conform to his standards of a utopian, mes­ 5. Ibid., pp. 50-51. sianic ethics. 6. Soloveitchik, " Majesty and Humility," p. 36. 7. Ibid., p. 26. Fortunately, Rabbi Soloveitchik's ethics is far more 8. Lawrence Kaplan, " The Religious Philosophy ," Tradition, Fall 1973 , p. realistic. He would oppose any form of pacifism that would 58. deny the legitimacy of Israel's policies to secure survival, if 9. Soloveitchik, " !sh Hahalakhah ," Talpiot, 1944 , pp. 651-735 . necessary, through reliance on military means. In his view, it 10. Kaplan, " The Religious Philosophy," p. 44. 11 . Ibid., p. 59. would hardly make sense to apply to an unredeemed world the 12. Soloveitchik, "Ubikashtem Misham ," pp. 1-83 . kind of moral norms that are suited to a perfect, redeemed 13. Ibid. world. Nonresistance to evil, be it on the individual or the col­ 14. Chaim of Volozin, Nefesh Chaim 1, no. 4 lective level, can hardly qualify as a moral desideratum. To in­ 15. Soloveitchik, " The Lonely Man ," p. 15-16 . See, also David Hartman , vite the liquidation of the State of Israel through the advocacy Joy and Responsibility (1978), pp. 198-231. 16. Aharon Lichtenstein, " R. Joseph Soloveitchik," in Great Jewish of a radical, utopian ethics would be utterly incompatible with Thinkers of the Twentieth Century, ed. Simon Noveck (1963), p. 285 . the requirements of an ethics that mandates continuous oscilla­ 17. Hermann Cohen , " Charakteristik der Ethik Maimunis ," Judische tion between the claims of majesty and humility. Schriften III (1924) , 221-89. To be sure, even for Rabbi Soloveitchik, the messianic 18. Maimonides, Mishneh Torah, Hilkhot Deot, 1 :5, Sefer Hamitzvot, doctrine is not just an eschatological article of faith, but posses­ Mitzvot Aseh, 8. 19. Maimonides, Guide of the Perplexed, III, p. 54. 29 ses ethical significance. It is the matrix of the ethical postulate 20. Shimon Rawidowicz, " Perek Betorat Hamussar Larambam," in Sefer to strive for everything possible to help bring about the realiza­ Hayovel Lichvod Mordekhai Menachem Kaplan (1953) , p. 236. But tion of the messianic goal. But this kind of messianism has there is a pronoun ced difference between Rabbi Soloveitchik's and nothing in common with utopian ethics. It rather reflects the Rawidowicz's views, inasmuch as the latter regards the " middle road" as an inferior brand of religious ethics, which serves merely as the gate realism of a Maimonides, according to whom the need for a to the higher ethics of the pious. state will not wither away completely even in the messianic 21. See my " Alienation and Exile," Tradition, Spring-Summer 1964. era.' 0 Not the abolition of power but its exercise in accordance 22. Soloveitchik, " Majesty and Humility," pp. 35-36 ; 48-50 . with ideals of the Torah is the ultimate objective of the ethico­ 23 . Aristotle, Nicomachean Ethics, Book III. religious thrust of halakhic Judaism. 24. I have elsewhere discussed Rabbi Soloveitchik's view that for Maimonides th e " middle road emerges as the resultant of an ongoing creative tension"; see my essay " Alienation and Exile." lac. cit. 25. Maimonides, Mishneh Torah, Hilkhot Deot, b:2 . 26. Soloveitchik, " The Lonely Man ," p. 52. 27. Cohen , " Charakt eris tik"; Steven S. Schwarzschild, " Moral Radicalism and 'Middlingness' in the Ethics of Maimonides," Studies in Medieval NOTES Culture, pp. 65-92. While not going quite as far as Schwarzschild, Rawidowicz also essentially adopts this approach ; see Rawidowicz, 1. Joseph B. Soloveitchik, " The Lonely Man of Faith," Tradition, Sum­ " Perek Betorat," p. 236. mer 1965 , p. 15 ; idem, " Majesty and Humility," Tradition, Spring 28. Schwarzschild , " Moral Radicalism," pp. 81-83 . 1978 , pp. 34-35 . 29 . Soloveitchik, '!sh Hahalakhah ," p. 722-23; idem, " Ubikashtem 2. Soloveitchik, " Ubikashtem Misham," Hadarom, Tishri 5739 , pp. 25- Misham ," p. 39. 26, Joseph Epstein, ed., Shiurei Harav, pp. 47-48, 60-63; Abraham R. 30. Maimonides, Mishneh Torah , Hilkhot Melakhim, chapter 11. Besdin, Reflections of the Rav, pp. 104-5 .

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