Petihah Kollelet, Fourth Part: Starting with a Mumar

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by R. Gidon Rothstein

It’s Easier to Leave Religion Than You Might Think

This fourth part of the Petihah is much shorter (we’re in the homestretch), and starts with a discussion of people who have left the religion to various extents [sadly, a topic still very much alive in our times, one in which I take particular interest, because we often excuse all mumarim, all those who do not keep the Torah (whether as a matter of birth or choice), as tinnokot she-nishbu, as raised in an environment so deficient they are not responsible for their nonobservance; I think the categories Peri Megadim elaborates suggest we have leaned too far to the side of accommodation.]

Spiteful Transgression of Just One Sin

mumar le-hakh’is for any one mitzvah counts as a mumar le-kol ha-Torah kulah, someone who has left all observance. Le-hakh’is means committing the sin to make a point of one’s rebellion against Gd, Gd forbid. It’s very hard to define exactly, since most people will come up for some justification for their actions; rarely do people say, “I am doing this for spite.” (Seinfeld aside). Whatever the definition, were a Jew to violate any part of the Torah with such nefarious intent, that one act would stamp him or her with the status of one who has abandoned all of Torah, regardless of the person’s other actions.

[If a Jew eats pig as an act of conscious rebellion against Gd, Gd forbid, that Jew has made him/ herself overall, 100% nonobservant; s/he might eat matzah on Pesah night, keep Shabbat, etc. yet will still be a mumar le-kol ha-Torah kulah. The key and easily overlooked idea: any deliberate rebellion against Gd excludes a Jew from full membership in the covenant, until s/he repents.]

Surprisingly, halachah treats any such truly le-hakh’is transgression more stringently than violating Shabbat or worshipping a power other than Gd. Only three commissions of those latter two sins qualify a Jew as a mumar le-kol ha-Torah, one who has left all observance, where a mumar le-hakh’is incurs this status with just one. In addition, Shabbat violation must happen in public, where the spiteful sin can happen in private and still put the person outside the camp.

[Note: Shabbat or avodah zarah makes one a mumar for the whole Torah with three deliberate even if not le-hakh’is transgressions. A Jew who cannot resist the temptation to cook on Shabbat, knowing it violates the Torah, acts be-mezid, but not le-hakh’isLe-hakh’is is if the Jew decided to cook just to make a point of his refusal to be bound by Torah law. With other sins, mezid but not le-hakh’is never make one a mumar for the entire Torah. This has ramifications for the extent to which people count as full Jews. For most of the last two thousand years, public Sabbath violators would not have been counted in a minyan, for example; we today tend to treat all Jews as too misled by surrounding culture to ever count as mumarim le-kol ha-Torah kulah.

His point about private vs. public also bears elaboration. The Jew who violates Shabbat deliberately but only privately implicitly recognizes the value of observance by avoiding the public eye. The spiteful sinner makes a point of rejecting observance, so we do not care where it happens.

Much later in this introduction, he concludes this idea applies only to death penalty versions of Shabbat desecration or avodah zarah; deliberate but not le-hakh’is violation of a plain Biblical prohibition of Shabbat or avodah zarah likely would not make a Jew an overall mumar.]

Obligations and Rabbinic Prohibitions

Shach to Yoreh De’ah 2;16 wondered whether refusal to fulfill an obligation would impose this status on a Jew as well. A Jew who refused to eat matzah on Seder night, to make a le-hakh’is point, has not done anything against the Torah, but has made clear his/her rejection of Gd, Gd forbid. The person sins spitefully but in inaction, and inaction is often less serious than action.

After a digression to rabbinic versions of being a mumar, Peri Megadim notes Tevu’ot Shor, a very respected authority, seemed to ignore Shach’s suggestion, was sure a le-hakh’is refusal to observe a commandment made someone a mumar for the whole Torah as well (and therefore, for one example, not believed about any matters related to observance). He proved it from a discussion in Rashi, Hullin 4b and Kessef Mishneh about someone who did not circumcise le-hakh’is; where Rashi implies and Kessef Mishneh says more clearly this would count as a mumar le-khol ha-Torah.

[Circumcision shows how hard it can be to define le-hakhis; I know people who refuse to circumcise their babies because of the pain. In a world where many non-Jews have their sons circumcised, where just about all Jews have their sons circumcised, does this still count as yielding to some temptation or desire, or is it le-hakh’is? Not simple.]

To come back to rabbinic law. Beit Hillel, a commentary to Shulhan Aruch, wondered whether one who deliberately stopped observing some rabbinic aspect of Shabbat—his example was carrying in a karmelit, an area the rabbis defined as similar to public spaces [such as most neighborhoods where we have an eruv; without the eruv, the place is a karmelit]—was a mumar le-khol ha-Torah.

Peri Hadash thought it impossible to define a Jew as an apostate for violating rabbinic laws, but for the side that rabbinic transgressions can count, he did think a le-hakh’is violation of a rabbinic law, such as eating chicken with milk, would render one a mumar le-kol ha-Torah kulah. (Sadly, I knew a prominent member of the Jewish community who made a point of drinking stam yeynam, wines not certified as kosher; true, he liked those wines, and I think he grew up in a nonobservant home, but he at least once expressed himself to me as doing it as a matter of rejecting this element of rabbinic law. I think that’s le-hakh’is. He is no longer with us, so it’s not our concern, but it’s an example of the possible broad impact of a specific area of le-hakh’is.)

As he said earlier, neglecting observances might count, meaning even making a le-hakh’is point of avoiding lighting Hanukkah candles or hearing Megillah on Purim could turn a Jew into a mumar le-kol ha-Torah kulah. A step less far, Peri Megadim says it certainly seems that someone who acts le-hakh’is about rabbinic laws makes him/herself a mumar le-kol ha-Torah on rabbinic law.

[He is raising the possibility rabbinic law counts as a corpus interwoven enough and independent enough of Biblical law for spiteful rejection of one part to count as spiteful rejection of the whole.]

Consequences of Being a Mumar

The Talmudic concept of moridin ve-lo ma’alin applies to a mumar for the whole Torah. This is not an idea we put into practice today for at least two important reasons, governments do not allow it and we today hesitate greatly before defining someone as a mumar le-kol ha-Torah. Conceptually, I believe it nonetheless worth considering that the Gemara thought such people deserved death, thought it proper for other Jews to actively arrange their death, although not directly kill them [the phrase means “we find a way to get them down and do not help them up,” referring to their being in a pit from which they need a ladder or other assistance to leave].

[I stress both sides, we would and should not do this today and we should think about what the Gemara means in theory. We can agree about the great dangers of vigilantism; we can agree we do not trust ourselves to be sure we know who counts as a mumar le-kol ha-Torah, especially when so many people today do clearly count as tinnokot she-nishbu. At the same time, I think we do ourselves a disservice in our understanding of Judaism, especially its view of the sanctity of life, if we ignore this category. Rejecting Gd willfully and spitefully, rejecting the broad framework of Torah, means the person deserves to die, regardless of whether we are supposed to be involved in bringing about that result. We can and should hope for change, but as it stands at the moment…]

More practically, some sources say any ritual slaughter performed by such a person is la-avodah zarah, is assumed to be as if he had in mind to kill the animal as an act of worship of a power other than Gd, meaning the animal becomes assur be-hana’ah, prohibited to Jews in all ways, including just benefit. Shulhan Aruch Yoreh De’ah 20, however, wrote the person is like a non-Jew, whose killings of an animal leave the animal permissible for benefit. Peri Megadim thinks the issue depends on whether we assume non-Jews generally think of their religion when they act; if they do not, this Jew, too, could kill an animal in a way that leaves it open to benefit.

Assumed Le-Hakh’is

Horayot 11a lists disgusting actions a Jew could do that would justify categorizing them as le-hakh’is, such as eating not properly slaughtered meat or insects. That passage also lists drinking yayn nesech, wine libated for an idolatrous purpose. Peri Megadim is surprised by the inclusion, R. Eisenberger suggests because that would not seem to be so obviously religiously odious as to prove the Jew is acting to spite the religion. [R. Eisenberger quotes Hazon Ish, the wine in the Gemara had been actually libated as part of a service to some other god, and Jews were so turned off by such worship, they would not have ever drunk such wine. Another social assumption I am not sure stands today, another reminder of how we have lost our visceral reaction to wrongful worship.]

A Yom Kippur Mumar

Tosafot in Hullin 14a implied Yom Kippur violation would not turn a Jew into an overall apostate, an idea Beit Yosef included in Yoreh De’ah 11. Tevu’ot Shor (in another of his works, Simlah Hadashah) thought Rema disagreed, because in Even Ha-Ezer 123;5 Rema declared a scribe who wrote a get on Yom Kippur, and the witnesses, mumarim.

Peri Megadim resists the idea, because Shabbat violation implicitly denies the Jewish view of Gd’s creation of the world, where Yom Kippur violation does not. He suggests Rema invalidated the get because someone willing to violate a more serious sin loses the right to be trusted about a less serious one, so we cannot trust such a Jew’s writing or witnessing of the bill of divorce.

Agency and the Mumar

It is not clear a mumar can serve as a shaliah, a Jew’s agent, or have a Jew act as his/her shaliah, since s/he counts in many ways as a non-Jew. Should a Jew want to be sure a mumar sold his/her hametz before Pesah, to be able to use it after Pesah for example, Peri Megadim thinks the mumar would need to appoint both a Jew and a non-Jew to sell it for him, since if we count the mumar as fully a non-Jew, the non-Jewish messenger can function, and if he is still Jewish, the Jewish one can.

Two other complications of making a messenger of a mumar : First, we ordinarily say ein shaliah li-dvar averah, if a Jew asks/orders another Jew to violate the Torah, the ensuing sin is a blot on the messenger’s record, since s/he was supposed to know divrei ha-rav ve-divrei ha-talmid, divrei mi shom’in, we have to listen to Gd rather than humans. Since the mumar clearly does not accept that idea, Peri Megadim thinks it plausible the Jew who makes the mumar the agent will have done so effectively enough that the sin counts against him/her, not just the mumar.

It also brings up a lifnei iver question, whether an observant Jew still sins by asking the mumar to violate the Torah if we know it is something the mumar would do on other occasions voluntarily. In the same general area, does it count as lifnei iver when someone not obligated in a certain rule performs it on behalf of someone who is obligated? The messenger is not listening to a human rather than Gd, because Gd did not tell this person not to do it [although I could have imagined saying the person acting this way knows Gd prohibited the sender from doing so]; however, the messenger is leading the other into sin, and that’s lifnei iver. A non-kohen might be technically able to betroth a woman prohibited to a kohen on his behalf because the Jew is not listening to a human rather than Gd, except the Jew is making a sin available to a fellow Jew, and that violates the Torah, making it again a question of listening to the person rather than Gd.

Really, the simple advice is don’t become a mumar. Sadly, simple advice often is hard to live up to in real life, and produces all sorts of practical questions for Torah giants to mull. Next time, we will start with the idea mitzvot are not vehicles of hana’ah, benefit.

About Gidon Rothstein

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