by R. Gidon Rothstein
8 Kislev: R. Kook on Nidui and Cherem
On the eighth of Kislev, 5676 (1915), R. Kook, Shu”t Da’at Kohen Yoreh De’ah 193, responded to a rabbi in Basel about whether he could punish a shul by not giving speeches there (because in 1915 in Basel, a rabbi refusing to give Divrei Torah was experienced as a punishment!).
The precipitating event was Maftir Yonah one Yom Kippur. A wealthy man had brazenly violated the day, eating, drinking, and doing melachah, creative labor, then bought the right to read that haftarah at Minchah. The rabbi writing R. Kook had decided to refuse to address that community unless and until they suspended the sinner’s right to be called to the Torah.
The continuing relevance to questions of how to respond to those who flout conventions is clear. In some cases, the convention is already well on its way to being disregarded; here, it seems that people still agreed that it was prohibited to eat, drink, or work on Yom Kippur, so that the man’s violation was a very public refusal to adhere to accepted standards. His then buying Maftir Yonah was a thumb in the community’s eye.
How to respond? Today, we might expect the rabbi to approach that man, try to work with him on changing his behavior, work with the lay leader who let him buy the Maftir, and so on—education and friendship being what many today see as the sole keys to communal change. This rabbi had taken a stricter path; let’s see how R. Kook responds.
R. Kook’s Discouraging Start
Baba Metzia 97a says that a rabbi who regularly gave certain public lectures was משועבד, beholden, to the community on those days. R. Kook is sure that some members of the shul in question did not have the power to punish the wayward wealthy man (that power, he assumes, rested only with the head of that community; the question of where power and therefore responsibility lies seems to me very vexed, but we’re discussing R. Kook’s letter, not my views), and is therefore unsure, originally, as to why those innocent people could be punished for others’ misdeeds—the Talmud in several places remarks in surprise when one person acts wrongly and another is punished.
There are times when punishment can be more severe than prescribed by Torah law. Especially when there’s a chillul Hashem, a desecration of God’s Name (as in this case, since a public violation of Yom Kippur was ignored), the Gemara allows for punishing beyond what the system sets up. For example, it tells of a court killing a man for riding a horse on Shabbat, despite that not being a Biblical violation.
That does not, however, allow punishing the uninvolved innocent.
Not Punishing Some for the Sins of Others
As support, R. Kook notes an opinon of Taz, Choshen Mishpat 2 (and elsewhere) that Chazal cannot be stringent about that which the Torah explicitly treats leniently, a limitation on the general principle that Chazal can call for violating the Torah to meet some specific needs.
If Taz’ idea applies even when the purpose is to foster better Torah observance, punishing someone who did not sin would be an example, since the Torah says לא יומתו אבות על בנים, fathers should not be killed for the sins of sons, and vice verse. If so, rabbis cannot do it even as an extraordinary measure to foster Torah observance.
That seems to R. Kook the implication of Sanhedrin 44a’s questioning how Yehoshua could have killed the children of Achan. The answer was that they weren’t killed (which is not the simple reading of the verse), they were forced to watch, to learn a lesson. If Yehoshua was allowed to kill the children as an object lesson to others, the Gemara’s question makes no sense. It seems clear, he says, that the verse prohibits killing (or punishing) sons for the sins of the father, even if it would help make an important point.
We Don’t Abandon the Literal Meaning of the Text
That’s particularly interesting, since the Gemara uses that verse to establish the פסול of קורבה, the rule that relatives cannot testify. R. Kook asserts that such Talmudic inferences add a layer of meaning to the text, but do not nullify the plain meaning, so that the verse also means that people cannot be killed for the sins of others, even close relatives.
That explains a puzzling passage in II Melachim 14, where Amatziah kills those who had killed his father. The verse then pointedly notes that he left their sons alive, as the Torah required, that sons not be killed for the sins of their father. For R Kook, Melachim is showing us that the plain sense of the text is not disregarded even when there’s another halachic ramification to that verse.
The Exception to the Rule
The Gemara’s reading of another Biblical story throws a wrench in that construct. Yevamot 79a wonders how David could have given seven of Shaul’s descendants to the Giv’onim (to atone for Shaul’s mistreatment of them), answering that it’s better to violate the Torah than allow a public chillul Hashem, a public desecration of God’s Name. In that case, David acted with Divine input, in that he consulted with prophets, and passed Shaul’s living descendants before the מזבח, the altar, which showed David which ones to give to the Giv’onim.
At this point, R. Kook points out that even if we reject Taz, even if we hold that Chazal can uproot even that which is explicit in the Torah, that cannot be true of punishing the innocent for others’ sins, since that verse is unqualified, clearly applying to all possible circumstances in which one might kill people, officially in court, by prophetic command, or a court deciding to do it for reasons of the moment.[It is not our issue here, but I think it’s fascinating and important to note that R. Kook—and many others—understand the Gemara to equate the extrajudicial powers of a court with those of a prophet. That is, if a prophet could determine that we should kill a person, or otherwise act differently than the Torah said, for the needs of the moment, that power would have to extend to a court as well. This is at least partially because we hold לא בשמים היא, that the Torah is not in heaven, meaning that a prophet’s powers cannot exceed those of a court].
David’s case, R. Kook says, was a public chillul Hashem, the one case where we are indeed allowed to punish even those who are not at all culpable. Another example is Rema’s permitting (Yoreh Deah 334;6) expelling the children of a public sinner from school, and his wife from shul. That’s obviously less serious than killing, but it’s the same idea, that we can punish a man’s relatives for his sins, in cases of chillul Hashem.
If so, a man eating and working on Yom Kippur is a serious chillul Hashem, leading to the same conclusion, that this rabbi could punish the whole community for the sins of the few [the public violation of Yom Kippur and then allowing that person to buy Maftir Yonah].
Direct Punishment or Coincidental?
Another avenue to permitting this rabbi’s choice comes from carefully delineating at whom the punishment is directed. If the rabbi’s main intent is to punish the head of the community, that is punishing the actual miscreant. That the rest of the community suffers might not be his worry.
For R. Kook, that is the thrust of Sukkah 56b, which speaks of a group of kohanim who always divided their share of certain offerings in the south of the Azarah, the Temple courtyard, instead of the north, because one time a female member of that clan had married a Greek, joined in the Greeks’ invasion of the Temple, and acted disgracefully towards the Beit haMikdash itself.
When pressed as to how that allows punishing her parents, the Gemara answers that what children say in public is what they heard at home [not our issue, but a reminder that the Gemara assumes that much of what a child ends up believing has roots in what was heard at home].
What about the rest of the group? Abbaye says, אוי לרשע ואוי לשכנו, it’s bad for the evildoer, bad for his/her neighbors. Sounds like, concludes R. Kook, that being a neighbor of evildoers can be sufficient to bring punishment on a person, when necessary.
Who Can Be Mechallel the Name?
While in one sense the story helps R. Kook, it also poses a problem. Since he had held that chillul Hashem was an exception, allowing a court to punish even the innocent, why did this Gemara need the reason of being a neighbor to an evildoer? Wasn’t the chillul Hashem of her actions enough? His answer isn’t so relevant to the case at hand, but has important ramifications for how we look at Jews who have left the religion.
He says that the woman in question, the one who reviled the Beit HaMikdash publicly, had already left the religion before this incident. Any of her actions after that did not count as a chillul Hashem, since it was to be expected from a woman like that. For R. Kook, it is obvious that a chillul Hashem only involves an otherwise observant Jew who publicly desecrates the Name. Once this woman was out, her sins were still serious, but were not chillul Hashem.
Back to Basel
In the case at hand, R. Kook agrees that this rabbi, as a bulwark of observance, has the right to do what he needs to fight nonobservance. Then his right hand takes away what his left had given.
Before taking such action, he suggests, the rabbi might want to check whether the purchaser of Maftir Yonah had the financial wherewithal to cause problems. If he did, the leader of the shul might not be at fault. Rema in the 1500s wrote that one reason we today do not rebuke or remonstrate with public sinners is that we worry they will slander us to non-Jewish authorities, fabricating reasons for those authorities to decide to punish us.
There is some debate as to how prevalent a danger that has to be—Be’er haGolah seemed to hold that that’s true even if there’s any worry, others held it had to be a majority worry (meaning that in the majority of cases, the worry would come to fruition). Taz Yoreh Deah 341;5 says monetary loss also counts, so if this Yom Kippur violator could cause financial harm, that might be enough to permit yielding rather than provoking him. R. Kook thinks that’s true even for chillul Hashem, such that if the community leader had sufficient reason to fear retaliation had he refused to sell him the maftir, he is not to be blamed.
If he, or the rest of the community, did have the power to stand up to him, they were required to. Rambam famously held all the citizens of Shechem liable for their failure to stop their prince from taking Dinah. All the more so Jews, when they have nothing to fear (the surprise in R. Kook’s quoting this is that there is no unanimity about Rambam’s view regarding the people of Shechem, yet R. Kook seems to accept it as true about communal responsibility in general).
A Delicate Balance
This last section sets up a hard calculation before calling out those who act wrongly, and even more so for those who might feel the obligation or right to reprimand them for a failure to do so. If they have the power to resist a wrongdoer without consequences, they’re required to. If they do not, they don’t, and then others can’t step in and complain about their not so doing. (Once again, this is not a venue for me to raise my own views, but R. Kook’s citing this would seem to me to need to be qualified—there are clearly some times when we are required to risk or bear financial loss in the name of standing up for Torah values. I assume R. Kook would have agreed, but he doesn’t elaborate, and neither will I).
Hard judgment call, but that’s where R. Kook leaves us on the eighth of Kislev.