by R. Gidon Rothstein
First Steps in Nidui, to Maybe Get Out of Nidui La-Shamayim
Relatively early in our struggles with this et tzarah and magefah, time of trouble and plague, back when I was optimistic Gd might relieve us of it quickly, I suggested the need for social distancing was evidence we were menudim min ha-Shamayim, placed in nidui by Heaven, and offered some thoughts on how to “convince” Gd to release the nidui.
The pandemic continues, and my sense of nidui only increases, spurring me to delve deeper into the rules of human nidui, in the hopes our study will itself be a merit for it to be lifted and also help us focus us on acting in ways Heaven will appreciate, as it were, and free us to return to all and only the good parts of our former lives.
The Source and Basic Parameter
Arukh Ha-Shulhan Yoreh De’ah 334;1 starts with a reminder Jews always followed local laws and ordinances. In his time, only Muslim governments allowed Jewish communities to wield nidui as a form of discipline. European Jews obey the government, so nidui is entirely academic. Someone, perhaps Prof. Simha Fishbane, who published the section of Arukh HaShulhan on oaths and vows from manuscript, tells us he wrote this to assuage censors.
Arukh Ha-Shulhan characterizes the source verse for the idea of nidui as being from the Torah. Actually, it is a verse in Shofetim, Judges, a reminder of the complex halakhic interplay between Torah and the rest of Tanakh as sources of Jewish practice.
Mo’ed Katan 16a quotes the verse in the question, from the Song of Devorah, where she and Barak call for Meroz and his people to be cursed for not coming to Gd’s aid, as it were. Two side points of interest: Arukh Ha-Shulhan gives the whole backstory, Meroz was a wealthy man who stayed away from the war against Sisera, despite the call from Devorah and Barak. After their victory, as part of their Song, they discipline him for his failure. He apparently doubted his readers—who had to be somewhat educated to be able to read the book—knew the story.
Second, Shofetim 5;23 speaks of a malakh Hashem cursing Meroz, usually translated an angel of Gd. Arukh Ha-Shulhan reminds us Torah scholars and prophets are also referred to as mal’akhim in Scripture, because the word really means messenger, and they too are messengers of Gd.
Fundamentally, nidui announces a requirement to separate from a certain Jew, not to eat and drink with him/her, not to be within four amot (6-8 feet, depending on the length of an amah). The verse also tells us what Meroz did, telling us we are supposed to announce what a sinner did that led to his/her nidui.
What Causes Nidui
Shulhan Arukh itself did not give any background, jumped right in with the idea we declare nidui on anyone who violates a prohibition. Arukh HaShulhan 334;4 points out the halakhic lack of clarity around placing someone in nidui for violating a rabbinic prohibition. The Gemara clearly discusses makkat mardut, rabbinic lashes for such flouting, is less clear about nidui. Arukh Ha-Shulhan tells us Ran in Pesahim distinguished those rabbinic rules with a connection to a Biblical law from those purely rabbinic. Someone who doubts or denies the right of rabbis to make rules, however, would certainly be eligible for nidui, according to Kessef Mishneh, who also notes Eruvin 63a tells of rabbis putting a man in nidui for using a tree on Shabbat, a rabbinic problem. He leaves the question unresolved, although such people are certainly called sinners.
Nidui can come for financial crimes as well, like refusing to obey a court summons or adhere to its rulings, discussed in Hoshen Mishpat. There, warning is required, Monday/Thursday/Monday, before nidui will be declared. (The Monday/Thursday/Monday rhythm seems valuable to stress, because many in our times find ways to stretch and delay intolerably. While Rema wanted us to know financial nidui does come only after warning, it takes only a week.) Shakh adds sources from Beit Yosef who thought some warning was needed for other prohibitions as well, just not the formal Monday/Thursday/Monday.
The nidui here is assumed to last thirty days (Shakh has Beit Yosef with the example of a Torah scholar passing through who placed someone in nidui—a right of his—and then moved on; the local court removes the nidui after thirty days, on the assumption it was the scholar’s intent), in Israel. Outside of Israel, nidui was seven days, and nezifah, a lesser expression of displeasure with a Jew’s conduct, would be only one day instead of the seven in Israel.
Should the sinner stand firm, nidui can be repeated and, if repentance is still not forthcoming, the person will be put in herem. Shakh thought the faster pace of nidui outside Israel, would mean herem could be appropriate after two one-week niduiyim, where in Israel, the sinner would have two one-month niduiyim before hit with the more serious excommunication. Shakh recognizes the novelty of his suggestion, having seen no one else who agreed, and therefore refuses to enact it in practice, says to ramp up from nidui to herem seems to require two full thirty-day bans, sinner steadfast in his refusal to repent.
Nidui is not interrupted by holidays (in contrast to mourning).
The Danger of Discipline
Rema opens a can of worms with his codification of Terumat Ha-Deshen’s view a court should declare nidui regardless of how the sinner will react. Some sinners, he already knew, will rebel, leave the religion (and community), called going le-tarbut ra’ah, literally a bad culture. Terumat Ha-Deshen and Rema held a court must enforce discipline. Sinners’ bad choices in response is their problem, not the community’s.
Taz’ vigorous disagreement highlights the need to consider the balance between a community’s obligation to express its disapproval of wrong conduct and the worry it will backfire for the individual. Taz first assumes whoever leaves Judaism will not come back, so if the community’s actions tip him/her over the edge, the community thus dooms the person to a life of distance from proper observance.
Taz also thinks R. Isserlein (the author of Terumat Ha-Deshen) read too much into Kiddushin 72a, where R. Yehudah Ha-Nasi speaks of R. Aha berebbe Yehoshu’a having placed certain people in nidui, they then having abandoned Judaism. R. Isserlein thought R. Yehudah Ha-Nasi told the people around his deathbed about it to ratify R. Aha’s choice; if people deserve nidui, we put them in nidui, and leave their reactions to them.
Taz has another view of R. Yehudah Ha-Nasi, freeing him to also disagree about the use of nidui. He thinks R. Yehudah Ha-Nasi spoke of R. Aha as a way to prove he was at that moment at the level of prophecy, knew what was then occurring far away (R. Aha berebbe Yehoshu’a was in Bavel), to prove the truth of his other deathbed claims. Confident he is right, Taz could then ignore the story as a matter of whether to ban someone or not when that person might leave the religion.
To him, a passage earlier in Kiddushin, 20b, proves the opposite. The Gemara requires Jews to redeem a Jew who sold himself in servitude to a worship of a power other than Gd, chopping wood or whatever. Tanna de-bei R. Yishma’el inferred the rule from Vayikra 25;48, after he was sold, ge’ulah tihyeh lo, he should still be redeemed. The tanna refers to the Jew who sold himself as one who had gone and become a priest for a worship of powers other than Gd.
In other words, Taz says, the Jew has done wrong, yet the Torah tells us to redeem him; would we then imagine being the cause of a Jew joining another religion?
Before we look at one more proof of his, we already see the outlines of the disagreement. Taz thinks we save Jews from themselves even at cost to the community’s ability to promote or enforce correct behavior, where Terumat Ha-Deshen and Rema think communities act as needed, leaving each Jew to choose his/her reaction.
Letting a Couple Marry
Shu”t Mahari Mintz 5 is Taz’ last source. He cites only one line, where Mahari Mintz says he saw the need to save two Jewish souls from leaving the religion (with the same phrase, she-lo yetz’u le-tarbut ra’ah, they not go to a bad culture), and therefore allowed a nursing mother to marry. He permitted the couple to violate a rule to protect their Jewish observance (nursing mothers are not supposed to marry, for fear the new marriage will affect the mother’s willingness or ability to nurse, and endanger the baby; poskim today often find workarounds), implying to Taz we should certainly refrain from acting in a way likely to push someone away from observance.
The fuller responsum shows the analogy isn’t ironclad. The woman in question had moved to a town with rampant legalized prostitution, and was being pressured to join the ranks of the “sex workers,” as people today like to call them. A man had saved her from the original push, but the authorities had found her again, and were tempting her with promises of financial support she could not match or muster in any other way. She had suggested marrying her savior, and he was agreeable, but if it did not happen then, she would yield to the pressure.
It seems to me Taz’ enthusiasm for helping fellow Jews led him to elide a significant difference. The couple in Mahari Mintz’ question had to that point acted exemplarily, and were anxious for ways to continue staying within the dictates of halakhah. He was worried they might abandon religion, true, but they already had a hold on his sympathies because of their previous displays of commitment and dedication.
In Favor of Nidui, Where Needed
Once we think in those terms, the Jew who sold himself to an idol also matches up with the nidui case less well than Taz takes for granted. True, the Jew has mishandled the financial pressure bearing down on him, and we rhetorically call it becoming a priest to a power other than Gd. In fact, though, the Jew has only signed on for menial tasks that in no way constitute worship. The Torah’s telling us to redeem this Jew addresses a different question than when a Jew is flouting halakhah or the courts, as in the nidui case.
I think Peri Megadim agrees with me (so I got that going for me, which is nice), although he registers another distinction. He says all of Taz’ proofs can be refuted, because here it is a court putting the Jew in nidui, and without it, the whole Jewish legal system would fall into disuse (as is too close to true today, when courts and communities have power only over those who voluntarily submit to it).
Arukh Ha-Shulhan says “there is one who went on at length with proofs to dispute Rema’s idea,” then says many important Torah scholars agreed with Rema. He adds the caution the court should be matun, temperate, in making use of the disciplinary measure, and if the court itself or the community would be put at risk by banning a Jew (such as where s/he is politically well connected and can take revenge), the court need not. The crucial element is intention, that they act le-shem Shamayim, to honor Gd’s Name by standing up to malfeasance and abrogation of observance.
Nidui separates a Jew from the community, to call attention to his/her choice of nonobservance. It is limited, but can grow, and is a central way for the community to express its concern and disapproval over another Jew’s actions.