Mail.Liberal-Judaism

• guberman@mediaone.net (David Guberman)

• Marian H. Neudel <gmneudel@govst.edu>
• Scott Ryan <sandgryan@worldnet.att.net>

• sandgryan@att.net (Scott Ryan)

• Jerry Blaz <ffdog@earthlink.net>
• Marc Sacks <msacks@Incert.com>

From: guberman@mediaone.net (David Guberman)
Date: Tue, 21 Mar 2000 17:54:40 -0500
Subject: The Malleability of Halakha

I claim no competence to say whether a halakhic solution can be found to
sanction homosexual activity.  The clear proscription in Leviticus is a
significant hurdle.  Yet, Robert Kaiser has presented strong arguments why a
halakhic solution is desirable.

Here, I want to address a related, but distinct, issue: Is there precedent
within the Tanakh itself for disregarding (or changing) apparently clear
verses?  One affirmative example concerns changing attitudes towards the
possibility of repentance and holding children liable for their parents' sins.

Another, according to a d'var torah by R. Michael Graetz a few years ago on
Pekudei, has potentially far-reaching consequences.  R. Graetz observes that
the Torah says the Bezalel "made all that the Lord had commanded Moses."
(Ex. 38:22.)  If I understand him correctly, R. Graetz then notes that, in
fact, Bezalel did things that Moses had _not_ commanded.  R. Graetz writes:

   Rabbi Shemuel Bar Nahmani in the name of Rabbi Yonatan points out that this
   verse informs us precisely of Bezalel's "wisdom" and that his name is a
   direct expression of that wisdom. How so? God told Moses to make, in this
   order, a Tabernacle, ark and vessels. But, Moses turned the order around!
   Perhaps he was confused and excited by the incident of the golden calf. In
   any case, Moses told Bezalel to make, in this order, an ark, vessels, and a
   Tabernacle. Now, Bezalel could have just accepted Moses' word without
   question. This is, after all, Moses, the prophet who had spoken to God face
   to face, why should Bezalel not just take Moses' word for it?

   What are the qualities in a person which would lead them to question Moses'
   word? According to our text that is exactly what he does!! Bezalel says to
   Moses: "Moses, our Rabbi, the logical way of the world is that first one
   builds a home, and afterwards puts in the furniture.  But, you tell me to
   build the ark and vessels and then the Tabernacle. Where shall I put the
   vessels I make until the Tabernacle is finished? Perhaps God really said to
   you a different order, Tabernacle, ark, vessels?" To this query Moses
   responds: "perhaps you were under God's shelter ("be-zel el") and knew what
   God intended?"

   This is an astounding understanding of the transmission of God's word to
   Israel. One of the questions which most nags at us about revelation is the
   possibility of misunderstood communication. . . . Even if we assume that
   Moses wrote down everything, here we have a case where Moses reversed the
   order! Bezalel's courage and willingness to question what was commonly
   accepted as the undisputed word of God, through the prophet, and his
   application to that word of human logic and research IN ORDER TO QUESTION
   IT are what makes Bezalel who he is, in the "shelter of God". IN THIS CASE
   IT IS LOGIC AND INQUIRY WHICH REVEAL GOD'S INTENTION, NOT THE TRANSMITTED
   WORD OF REVELATION!

R. Graetz goes on to discuss the Talmud Yerushalmi's treatment of this verse.
According to R. Graetz, "the Yerushalmi takes an even bolder approach to the
question of Bezalel's initiatives (Yer.  Peah 3 side a). The Yerushalmi starts
from the same verse, but says simply that 'even the things [which Bezalel did]
which he did not hear from his teacher [Moses], was accepted just in the same
manner as what was said to Moses on Sinai'. There were other things that
Bezalel did, such as the copper coverings for the boards, which Moses did not
tell him at all. But, since they were the result of human 'wisdom, insight and
knowledge' they have the force of Divinely revealed rules."

Most interestingly, and perhaps of relevance to the issue of homosexual
activity, R. Graetz notes that the Yerushalmi applies this same principle to
Joshua:

   Yohanan in the name of R. Banay quotes Joshua 11:15, which includes the
   same phraseology as our verse "[Joshua] did not deviate from all that the
   Lord had commanded Moses." They apply the same inference to this case,
   namely, even though Joshua did things OTHER than what Moses had commanded
   him, those things are really what God intended.

   What was it that Joshua did that was NOT in accord with Moses' charge to
   him? He did not carry out the Herem to kill every man, woman and child in
   Canaan! After Jericho and Ai, Joshua stops the killing. Even though he
   could have carried out this command against the Gibeonites, for a treaty
   arrived at by trickery is legally void, still he kept the treaty, which
   meant abandoning Moses' specific words. It is this decision which comes in
   for praise in the Yerushalmi.

Like Robert Kaiser, R. Graetz cautions that "[t]here is danger in calling into
question the 'certainty' of the word of God delivered by Moses."  But if
R. Graetz is correct, the rabbis of the Talmud apparently hold that it
possible and has been done.

David A. Guberman         guberman@post.harvard.edu
_tov shalom m'eretz yisrael ha'shlema_
Peace is Greater than Greater Israel

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From: Marian H. Neudel <gmneudel@govst.edu>
Date: Tue Mar 21  7:16:09 US/Pacific 2000
Subject: Re: Study of Overlap/Interface between Halacha and Secular Law

>Bankruptcy: the concept doesn't exist in Jewish law.

That's not exactly true.  The fact that, in common law in the English-speaking
countries, one can go bankrupt only once every seven years suggests strongly
that the idea originated with the Biblical notion of forgiveness of debts in
shmittah.

Marian Neudel

Literasy rox!

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From: Scott Ryan <sandgryan@worldnet.att.net>
Date: Tue Mar 21 14:30:01 US/Pacific 2000
Subject: Re: Study of Overlap/Interface between Halacha and Secular Law

In his last reply to Rabbi Arthur Waskow, Eric Simon raises an important point
with which I should like to deal more fully under the present heading. Eric
writes:

> [W]hat do _you_ think is going on in the longer sweep of history that so
> many Jews no longer celebrate Shabbat, or fast on the day before Purim or
> Tisha B'Av, or keep any semblence of kashrut, or [refrain from]
> intermarry[ing]?
> 
> My own answer, which relates to the discussion on
> halacha-vs-classical-liberal-law is as follows: Western society is dominated
> by the classical libertarian notion that we should be allowed to do anything
> we want so long as it doesn't hurt anyone else.  Or, more specifically as it
> relates to Reform Judaism, the Kantian notion that each person has supreme
> autonomy for his/her own decisions and actions, so long as they don't harm
> anyone else.  Thus, we get "informed choice" for Reform.

Eric is very much on the right track here; there _are_ "pop libertarians" who
have characterized classical liberalism in this misleading fashion, and there
_are_ those who, taking a lead from Kant, have made something of a fetish of
"autonomy." (Whether they have correctly _understood_ Kant is another
question, beyond the scope of this list. For the record, I don't think they
have.)

But a mischaracterization it is, and it will be fruitful to see why.

In fact the view Eric is describing here would be, I think, better and more
precisely characterized as the view that anything not forbidden by man-made
positive law is, for that reason, morally permissible. And please note that it
is a view common both to the sort of "degenerate" libertarianism Eric
describes _and_ to the sort of "state-olatry" that gave us the Nazis and the
Soviets. The shared premise is this: that there is no moral authority beyond
the laws of the state.

Now, this is just what genuine classical liberalism denies. That there is a
moral law binding on all mankind, and that this law imposes "unchosen"
obligations on us, is a cardinal tenet of classical liberalism. And this view
did _not_ have its origins in the Enlightenment.

As I have remarked before, classical liberalism does not hold that man-made
positive law is a complete guide to morality and that anything not illegal in
this positivistic sense is morally permissible. Far from it. What classical
liberalism _does_ maintain is that objective moral law, the very same moral
law which places us under obligation to God and to one another, _also_ imposes
limits on what man-made positive law may permissibly regulate and how it may
do so.

Nor does classical liberalism deny that there are moral authorities other than
the state. Again, far from it; in fact the express purpose of classical
liberalism is to leave those moral authorities free to operate.  Classical
liberalism might, for example, deny that it was the business of the state to
regulate tzedakah among Jews. But it would hardly deny that it was the
business of the rabbi and the synagogue; that this is the legitimate
responsibility of non-state religious authorities is precisely the point.

Interestingly, however, the "nobody-can-tell-me-what-to-do" version of
"libertarianism" would deny just this. And so -- not by coincidence -- would
nearly _any_ variety of statism (most of which begin by denying any authority
or credibility to religion at all, and the rest of them end that way). The two
are opposite sides of the same false coin.

Please note that each of these views errs in collapsing all moral law into
man-made positive legislation. Jewish law is much more comprehensive than
this; there is no aspect of life which is not informed and limited in _some_
way by the divine mandates. However, _not_ all of Jewish law entails
"punishment" by earthly authorities -- state _or_ rabbinic -- when violations
occur. For quite a bit of it, we are on our own recognizance, as it were, and
it is left to God to dispense the rewards and punishments.

The point is that Torah/Halakha is not simply identifiable with the sort of
"law" we think of when we use the term in a political context. Halakha
_includes_ this sort of law, of course, but it also includes much that in the
modern world we would call "ethical" law -- i.e., laws that have to do with
sins other than civil crimes.

A better way to say this is that not all of our obligations under Jewish law
entail legally enforceable duties. In contrast, "libertarian" law deals
_solely_ with legally enforceable duties and lays no claim to ethical
exhaustiveness. Miss this point and we will continually see conflicts where
none exist.

And in what we would call its strictly political aspects -- that is, as
regards those laws that call for punishment by civil authorities -- Torah is
on the whole _fairly_ closely aligned with the legal standards of classical
liberalism. Again, this is not a coincidence.

Torah insists that the civil, secular authorities are bound by the laws of
God; that the theft of property be punished not by death but by restitution to
the victim; that murder is a capital crime; and so forth. Classical liberals
insist likewise. Where, may I ask, do we think they got this stuff?

In fact I think it is possible to see classical liberalism itself, in at least
its secularized variants, as a sort of "heretical" or "degraded" version of
what I'm really after here: what, for want of a better term, I shall call a
"Noahide commonwealth."

At any rate, one closing point must be made very clearly. Throughout the last
two millennia of Jewish history, with rare and isolated exceptions, the _only_
means of "law enforcement" at the direct disposal of the rabbis have been (a)
various kinds of positive encouragement, and (b) such social sanctions as
shunning and ostracism, and in extreme cases the cherem. All of these methods
depend, for their sole support, on the maintenance of positive social
_respect_ for the rabbinic function.

_Not one_ of these methods can be even remotely construed as a violation of
anyone's "libertarian rights," however much libertines of various stripes may
whine about them. But secular laws that prevent the use of such measures --
and such laws are many, various, and in some cases not at all obvious -- _do_
violate the libertarian rights, and the religious liberty, of those who would
otherwise employ them. Such laws therefore also undermine the very foundations
of individual ethical development about which Eric is justifiably concerned.

Scott Ryan
SandGRyan@worldnet.att.net

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From: sandgryan@att.net (Scott Ryan)
Date: Tue Mar 21  7:22:27 US/Pacific 2000
Subject: Re: Toward a New Jewish Sexual Ethic

I shall pick and choose a bit from Robert Kaiser's two posts on this topic in
v9n132 and v9n133, trying to reply on some of the points not already addressed
in other responses.

Robert writes:

> Sometimes the rules of halakha are in conflict with the moral sensitivities
> of a new generation. . . .  To get around a morally objectionable law, [the
> rabbis] used various techniques [of which the following is one]: . . .

> Issue a takkanah, which basically is halakhic legislation which openly and
> directly changes the existing halakha.  This method is dangerous, since it
> could undermine the law's authority by severing its connection to its basis
> in the Torah.  But when historical circumstances required extraordinary
> measures, such decrees were issued, more often than one might expect.  See
> Menachem Elon's "Jewish Law: History, Sources and Principles" for many such
> examples.

However, see Mendell Lewittes's two helpful volumes _Jewish Law: An
Introduction_ and _Principles of Rabbinic Jurisprudence_ for a good
introductory discussion the rationale behind such examples. It is not the case
that takkanot "openly and directly change[] the existing halakha" if this
means the cancellation or overruling of mitzvot min ha-Torah. As with the
prosboul (with which Rabbi Yaakov Menken has already dealt), Robert's examples
here do not show what he wants them to show.

As regards the prohibition on homosexual acts: takkanot may serve any of
several ameliorating functions by way of adjusting to special circumstances
not directly addressed in Torah itself. But no takkanah can cancel a clear
Torah prohibition. And please note that the reasoning behind a takkanah is
_not_ that a Torah law is "in conflict with the moral sensitivities of a new
generation." I suppose this might at times, in isolated instances, be the case
as regards _rabbinic_ law. It is not true as regards _Torah_ law.

> It is wrong for us to assume that the tradition's interpretation is always
> right and just.

With this statement I agree (except for the use of the singular term
"interpretation," as though rabbinic tradition were univocal on all
points). However, its application to Halakhic jurisprudence of the sort in
question here is not obvious. The particular interpretations of particular
rabbis in particular _human_ laws may of course be erroneous in any of several
ways. However, as I noted above, Robert is arguing here for a cancellation of
a mitzvah min ha-Torah, not of a rabbinic proscription.

> In fact, there have always been changes in Jewish law motivated by ethical
> concerns.  Examples include (i) the abolishment of the Torah's prescription
> for the execution of a rebellious son . . .

But note that the proscription on rebelliousness itself was _not_
abolished. Halakha does not say that it's all right for sons to be rebellious;
it simply says that "such a son" -- i.e. the son so rebellious, or rebellious
in such a way, as to deserve a civil death penalty -- "was never born." What
is cancelled is the civil penalty, not the sin.

Rabbi Michael Lerner cites this same alleged parallel in _Jewish Renewal_, and
I simply do not find it convincing.  At most, a ruling that "such an act was
never performed" could amount to a ruling that no homosexual act ever actually
performed could be of the degree or kind that deserves to be punished by a
civil death penalty. But Halakha has _already_ granted that homosexual acts do
not receive a civil death penalty, so the parallel is already complete. To go
on and declare that (some) homosexual acts were not sins at all would be to go
considerably beyond the rebellious-son example.

> (ii) abolishing the death penalty in practically all circumstances . . .

Again, this is problematic. The death penalty has not been "abolished" merely
because it has been made very difficult to impose.

At any rate, the relevance to the question at hand is still not obvious to
me. There are certainly sins which are said to merit death but for which the
carrying out of the actual punishment (on solid textual grounds, by the way)
is left to God. There are certainly crimes which are said to deserve a civil
death penalty but for which the (entirely Torah-based) rules of evidence are
so strict as to make the penalty extremely hard to impose. But there are, as
far as I know, no "capital sins" forbidden in Torah which Halakha has gone on
to declare unsinful. If Robert knows of any examples here, I should very much
like to see them.

Scott Ryan
SandGRyan@worldnet.att.net

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From: Jerry Blaz <ffdog@earthlink.net>
Date: Tue, 21 Mar 2000 00:20:45 -0800
Subject: Re: Update: Barnes and Nobel Boycott re: Protocols

Rabbi Eric Silver's message protesting Barnes & Noble and the sale of the
Protocols of the Elders of Zion, a forged account supposedly depicting a
meeting of a conspiring group of Jewish leaders, is spreading all over the
Jewish internet, and, I suppose, a bit beyond.  Today, the rightwing, the
fascist wannabees, they are disunited and probably among the most lonely
people around.  A new study I've read about them coined the term
"groupuscules" to describe them, because they are too small to be groups.  In
light of this, I would venture to say that the majority of copies of the
Protocols of the Elders of Zion are being bought by Jews and social scientists
who want to see this Anti-Semitic forgery up close, or are studying it as a
part of studying Anti-Semitism as a phenomenon.

I am a used book dealer, and I have bought many hate books, but few of them
were aimed against Jews.  I would state that most of them were anti-Catholic,
and more than a few disdainful of African-Americans.  Very few were
anti-Jewish.  (I kept those and did not resell them; I could not bring myself
to do so, but that is my own decision.)

A few years ago there was a publishing house by the name of Angriff (which I
believe is German for "Attack") that published a great deal of Nazi material.
I called them because I was curious about one of their publications which they
published about the scientist Nicolas Tesla and his "weather machine," and I
requested some rather innocuous information about their publication, and the
person on the other side became very agitated, and demanded to know how I got
their phone number (the num-nums had published it on the versa of one of the
title pages of a book they published).  So these folks are a very paranoid
lot.

However, it is also difficult for me to tell somebody else what he or she can
or cannot sell.  It is my decision not to sell books promoting Anti-Semitism
or books instructing people to make bombs and explosives (or botulism in the
bathtub).  In terms of hate, there is a lot of hate around, but considering
the highly-developed lachrymose school of Jewish history, I do not consider it
a priority to condemn Barnes & Noble or anyone else about it.  I think that
the reason why Barnes & Noble put it in their Judaica section was because they
probably believe Jews are more interested in it than anyone else.

Now if I were like the guy I spoke to at Angriff I would be thinking, "Hmmmm.
Barnes and Noble.  They were bought by Bartelsmann recently, and Bartelsmann
is that German publishing titan; well, of course, so that's why they're
pushing an Anti-Semitic tract."  I didn't know Rabbi Silver did not want
people "filling up his email box," so I sent him a similar note like this
explaining my feelings about his campaign.

Jerry Blaz 		Member of IOBA/a mark of online trustworthiness
The BOOKie Joint 		            mail-order
7248 Reseda Blvd.			P.O.Box 572168
Reseda, CA 91335			Tarzana, CA 91357
(818)345-2983/(818)343-1055		ffdog@earthlink.net

Outside of a dog, a book is man's best friend. 
Inside of a dog, it's too dark to read. [G. Marx]

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From: Marc Sacks <msacks@Incert.com>
Date: Tue, 21 Mar 2000 13:36:11 -0500
Subject: Re: Update: Barnes and Nobel Boycott re: Protocols

There is a discussion going on on H-ANTISEMITISM concerning amazon.com's
carrying this book.  What inflamed the posters was not that they have the book
on the shelves but that their comments do not clearly identify the book as an
antisemitic forgery.

Marc Sacks
msacks

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"It is not our task as liberal Jews to complain about the Orthodox attitude or to be bullied by it, but rather to choose our legitimate path according to the inner logic and development of liberal Judaism" (Rabbi Walter Jacob)

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