by R. Gidon Rothstein
2 Tammuz: R. Ezriel Hildesheimer on Facing the Threat of Abandoned Affiliation
My study of these responsa has confirmed my original instinct that I (I hope we) would benefit from exposure to a broader range of Torah scholars than my learning had brought into my orbit until that point. R. Ezriel Hildesheimer is a good example, a Torah scholar remembered perhaps most for the rabbinical seminary he founded in Berlin in 1874, which functioned until the Nazis, yemach shemam, closed it down in 1938. He also taught much Torah.
My attachment to experiencing his Torah first hand partially pushed me to summarize this responsum, even though his style makes me not completely sure I know which ideas were his and which the views of the man writing him. As opposed to question/answer, R. Hildesheimer chooses to append notes to the original letter (like footnotes). I’ll do my best, and hope I not misrepresent anything he meant.
When Leaving Becomes an Option
One R. Moshe Diamant [he signs his name without a title, but his questions show a knowledge of Torah and halachah that lead me to believe he was a rabbi] wanted to explore the choices of a rabbinical court when faced with a rebellious Jew, a discussion recorded in Shu”t R. Ezriel Hildesheimer 1; Yoreh De’ah 252, dated 2 Tammuz 5622 (1862).
The Jew violates Shabbat in public and/or refuses to circumcise his sons, and R. Diamant wonders about the ways a rabbinical court can/should react, in the face of a danger the Jew would use any discipline on their part as an excuse to leave religion entirely [he refers to a specific case, making clear this was not a theoretical discussion.
Sadly, the problem continues into our day. Halachah intends rabbinic authorities to enforce observance, much as the police and judges enforce a society’s laws. Nineteenth century Germany was one place where rabbis faced similar problems to ours, when Jews’ ability to exit made discipline often ineffective and perhaps counterproductive].
R. Diamant starts from Yoreh De’ah 334;1, where Rema explicitly obligates a court to impose nidui (a ban on some social interactions with a particular Jew, a first stage of excommunication), without regard for whether the menudeh, the person placed in nidui, will then choose to leave the religion (Rema’s source was the fifteenth century Terumat HaDeshen, a reminder we are by far not the first generation to grapple with such difficult choices).
Rema and Terumat HaDeshen saw Kiddushin 72a as their source. The Gemara tells of a deathbed prediction by R. Yehudah HaNasi, who seemed to anticipate an incident where a man left the religion rather than tolerate a nidui by R. Achai beRebbe Yoshiyah. Terumat HaDeshen thought the Gemara was telling us R. Yehudah HaNasi had ratified R. Achai’s choice of strategy. When nidui is called for, the court should announce it, regardless of how the Jew in question will react.
But Taz Disagrees
R. Diamant seems to prefer the view of Taz, who demurred. Taz asks how we could allow our concern with one violation lead us to cause him to go to tarbut ra’ah (literally, an evil culture, which here means a broader abandonment of the religion), with slimmer odds of his return? Taz also disputes the reading of Kiddushin; he thought Rebbe intended to warn his listeners against going to certain places in Bavel (that’s the focus of the rest of his statements in that passage), without any evaluation of R. Achai’s decision to place the man in nidui,
Taz offers a counterproof, Kiddushin 20, which discusses a Jew who sold himself into service to a place of idol worship, yet the Torah obligates the Jewish community to redeem him, to buy him out of that servitude. Tanna De-Bei R. Yishmael tells us the Torah came to forestall our understandable reaction, that we need not care for a man who brought this upon himself (phrased as “he sold himself to be a priest to idolatry”). If we nonetheless must redeem such a man, says Taz, it should be more clearly true of a Jew who thus far violated only one precept.
Taz also cites Mahari Mintz, who allowed a man to marry a nursing mother (despite halachah’s general fear her new marriage will lead her to neglect the baby), because the two would leave the religion otherwise. Here, too, the likelihood of apostasy leads us to forego our usual standards, so Taz doesn’t see why the problem shouldn’t also stay the hand on the nidui button.
The Obligation to Stand Against Sin
R. Diamant sees problems in all the proofs offered. He goes further than Taz in objecting to Terumat HaDeshen’s citation of Rebbe. It’s clear to him Rebbe was warning against R. Achia’s choice because of its clear negative outcomes. R. Hildesheimer notes Shu”t Chavvot Yair 142 agreed with R. Diamant’s reading, but takes away as much as he gives, since he then notes the conflicting readings mean we have no proof either way [an important general point; if qualified readers disagree over how to read a text, no matter how convinced either or both are of their reading, they cannot use the text as a proof, since others read it another way].
R. Diamant also thought Terumat HaDeshen put Rebbe in contradiction with himself, since in Eruvin 32 he thinks Torah scholars should violate a minor prohibition to avoid causing a less observant person to violate a more serious one. Applied to our case, Rebbe’s rule should mean a court should violate the lesser prohibition of refraining from announcing a ban to the more serious one of the person leaving the religion.
R. Hildesheimer disagrees once again, because Eruvin discussed direct causation, the Torah scholar’s act setting the other Jew directly on the path to the more serious sin. Here, the other Jew will make a free choice in reaction to the court’s actions. In addition, the Jew here has already violated the Torah and might do more, where the Jew there was, so far, innocent.
Nor does R. Hildesheimer concede R. Diamant’s characterization of a court’s refraining from putting someone in deserved nidui as a minor prohibition. Jewish authorities are tasked with protecting the Torah system; they bear a major obligation to stand in the breach when Jews begin to step away from proper observance. Many sources discuss the judgment awaiting those who fail to take action when they could have stopped violations of the Torah, so this is not at all obviously a minor issue.
Taz Isn’t That Much Better
R. Diamant recognized weaknesses in Taz’s reasoning as well. The man who sold himself to chop wood for a place of worship of a power had not created a court obligation to punish him, whereas this man has. R. Hildesheimer again points to Chavvot Yair, who made the point as well; he also defends Taz, since perhaps selling oneself to an idolatrous worship violates a Rabbinic prohibition and therefore does put the court in the position of having to be menadeh.
R. Diamant also rejected Mahari Mintz’ proof, because he might have worried these people would cause others to sin, so therefore allowed them to marry. R. Hildesheimer agrees, as Chatam Sofer had said that as well.
R. Hildesheimer thought Taz’ comparison to a man who sold himself doesn’t quite work for another reason: in both cases, the court acts to protect the community’s interest. Redeeming the one individual reinforces our message that Jews should not serve powers other than Hashem (let alone worship; I think R. Hildesheimer thinks abandoning the man will not send such a message, since people will not hear our choice as loudly as they will hear our redemption of him), and placing a man in niduihelps the community recognize proper standards of behavior. The actions each communicate the same values, although in different specific ways. They are complementary rather than contradictory.
Causing Passive vs. Active Torah Violation
R. Diamant cited a different passage to conclude we should not place such a person in nidui. Yevamot 90 discusses Chazal’s right to be ‘oker davar min ha-Torah, to legislate violation of the Torah for some other valid purpose. The Gemara more readily allows passive violations, shev ve-‘al ta’aseh, such as the well-known Rabbinic rule not to blow shofar when Rosh Hashanah happens on Shabbat.
R. Diamant thought the Gemara disallowed rabbis from ordaining active violation of the Torah (being ‘oker davar min ha-Torah be-kum ve-‘aseh), and defines our case as doing just that—the discipline of nidui will lead this Jew to actively violate the Torah. He concedes the Gemara allows rabbis to do so to protect the Torah more broadly, which Terumat HaDeshen may have thought was true of the Jew threatening to leave the religion.
R. Hildesheimer rejects the whole comparison, again because of the difference between direct and indirect causation. Yevamot discussed where a Rabbinic rule necessarily requires violation of the Torah, actively or passively. Good reason to believe a Jew will react a certain way is not causation, that’s the Jew making a poor choice [to me, a much neglected point: we are not always responsible for others’ reactions to our actions. If our action was correct and necessary, we may not need to feel implicated by the Jew’s choices. R. Hildesheimer points to Rambam, who also thought our need to maintain and uphold communal standards outweighs our concern with a particular Jew’s outcomes].
What’s Important Enough to Ignore the Consequences
R. Diamant argues that the right to protect the Torah even at cost to individual Jews only comes into play when the issue is idolatry or loss of the religion generally, such as the Jew who sold himself to an idolatrous worship, or who was violating the Torah in a she’at hashemad, a time of religious persecution, leading other Jews to loosen their observance as well.
R. Hildesheimer thinks he has simplified the case, which was one of a man riding a horse on Shabbat, a Rabbinic prohibition. If we treat public Sabbath violation of a Rabbinic level as akin to idolatry, R. Diamant’s idea still holds water; if not, it seems the court has broader powers than just for idolatry [I’m not sure how this responds to R. Diamant’s point, since he had explained that case away as a she’at ha-shemad, where religious observance was generally endangered.]
For all his nod towards the weaknesses in Taz’s view, R. Diamant’s argument largely accepts his conclusion; he is more troubled by Terumat HaDeshen and Rema’s seeming unconcern with the damage discipline might cause. Without ruling on the matter, R. Hildesheimer reminds him of countervailing pressures in such situations, where treading gently with one sinner might lead to a larger loss for the Jewish people in toto.