Among the findings of the recent Pew survey on Jewish identity, 19% of those surveyed said they believed that observing Jewish law was essential to their identity as Jews. Yet Judaism is defined by Jewish law [halakhah]; it has for centuries been the Jewish people’s guide to life concerning matters both prosaic and significant. Just as there is a Jewish way to mark all of life’s major events, from birth to death, so there is a Jewish way to tie our shoelaces and trim our fingernails.
In the following interview, Rabbi Chaim Rapoport, an expert in applied halakhah and bioethics, shares his thoughts on attitudinal approaches to halakhah, and how halakhic issues are decided, especially in instances where they impose inordinately, directly and personally on the individual.
An advisor for over ten years in matters of Jewish medical ethics to British Chief Rabbi Lord Jonathan Sacks, Rabbi Rapoport is currently the dean of Machon Mayim Chaim, a London based institution that provides ‘unique opportunities in Jewish Learning.’
In this capacity he also lectures internationally on matters of topical concern and does not shy away from controversy. He has authored several scholarly books and dozens of articles on matters of Jewish Law and Theology, including his highly acclaimed Judaism and Homosexuality:An Authentic Orthodox View.
Baila Olidort: In a culture that prizes self-expression and individual rights, many think Jewish law, which is essentially about obligation rather than privilege, is too rigid to be relevant. The halakhically committed life, they feel, may exact too much of a sacrifice.
Chaim Rapoport: Halakhah is not intended to be a strait-jacket, a system that is designed to oppress and deprive. While halakhah does not allow for a life of unbridled indulgence and enjoins us to undertake many duties and responsibilities, it is ultimately an edifying discipline.
Life without discipline may be more pleasurable but with halakhic discipline it is more meaningful. It restrains us from falling prey to many tempting vices and keeps us focused on the noble, altruistic and the sublime. Commitment to any legal system (other than self-imposed laws) naturally interferes with our autonomy and egocentric pursuits, but this does not mean that it cannot be gratifying even for those who have absorbed the values of the secular west.
Many westerners have found that a life of commitment to the goals of halakhah is much more meaningful than a life bereft of such discipline. With self imposed rules and regulations the goal-posts can easily be shifted when personal bias and prejudice prevails. Halakhic rigidity does not allow for such maneuvers.
To what extent is halakhah or the rabbinical jurist in touch with the broader facts and context of a question? Is halakhah circumstance sensitive or not?
In halakhah there are many absolutes, which would not change even in circumstances where they cause great inconvenience for the individual.
Any system of law, as Maimonides writes in his Guide, is designed to be good for most of the people most of the time. Yet there will be people who will be affected negatively, who may even experience suffering as a result of the law. This is because any value system, once it has assumed legal form, requires a degree of intransigence and rigidity in order for it to remain law.
If open-ended flexibility were to obtain, it would no longer be law. Law, by definition, is decisive. The law can’t always accommodate exceptions and Jewish law is no exception in this regard.
Yes, but if halakhah is of Divine origin, can’t we expect more of it than we do of other legal systems? Shouldn’t the law reflect some kind of Divine perfection in which there is no collateral damage?
Can G-d make a circle which is a square? Maimonides would say that even G-d can’t make 2 plus 2 equal 5. You can’t have G-d make laws which are both rigid and flexible simultaneously. Now in the times of the Prophets, G-d would sometimes issue an extraordinary exception to the law, as in the case of the prophet Elijah, when He allowed sacrifices to be offered outside of the Temple. But absent direct Divine intervention, such as in the post-prophetic era this is, generally speaking, not possible.
On a deeper level, a mystic may say that the Maimonidean approach is inadequate. He would say that G-d’s omnipotence knows no limits and that any unfairness that comes as a result of Divine law is by Divine providence. So if someone suffers, there is a deeper reason to it.
I am involved in a case now where a deeply spiritual individual is sincerely interested in converting to Judaism. There are complications (conversion requires circumcision and this may not be possible for bio-medical reasons), and while we are working to try to find a way around this problem, it is possible that ultimately he will not be able to convert.
In a case like this, I am convinced that the Lubavitcher Rebbe, of righteous memory, for example, speaking from a mystical perspective, would say that it is a clear divine indication that this individual is meant to achieve his purpose and his fulfillment in life as a non-Jew.
The tension between individual and community is often exquisitely experienced in halakhah, when something might be decidedly beneficial for the individual, but is forbidden by a general rule that has been established to benefit the majority.
Someone driving down the road must stop at the traffic light. Even if there is no pedestrian or traffic within three miles in every direction, he still must stop, even if he will miss something of great importance. Now that may not always make sense—running the light in such a case would cause no harm to anyone, and yet, the law prevents him from doing this.
The value of having traffic lights is that it gives us an organized traffic system to avoid injury. When we take these values and translate them into a legal system, you will have to pay a fine if you violate them, even if no harm was done to anyone, even if you had a perfectly valid reason to violate the law. This is essentially the idea expressed by the above-mentioned Maimonides, Guide, vol. 3, section 34.
So as in every legal system there are obviously standards that have to be maintained. The intransigence of the legal system is due to the fact that it looks primarily – not at the subjective needs of a particular individual, but rather at that which is overall beneficial for society.
One now popular approach in the rationalization of the laws of niddah is that they were designed essentially to make marriages happy. The Talmud suggests that when keeping these laws, the couple reunites monthly as if newlywed. Now that’s a very general principle. It may work for 9 people out of 10, but every 10th may not find it a positive experience. The same is true with many laws, which are predicated on a certain premise. (To be sure, there are other explanations for the laws of taharat hamishpachah, yet the case of niddah still serves as a useful illustration of the above-mentioned phenomenon).
Once again, the mystically orientated would argue that if some individuals experience great difficulty due to the laws of niddah it is because of a specific providential purpose that they have been given such a challenge.
Having said that, there is a lot of room within law for sensitivity to subjective circumstances and compassion for the individual. There is a balance between the focus on the collective and concern for the individual, and at times halakhah provides special provisions for the exception.
Does the process of arriving at a halakhic decision entail any creativity?
Indeed so. Many would describe halakhah as being more of an art than a science. (Nahmanides alludes to this in his introduction to his Milhamot Hashem). There’s a lot of truth to that, because even though halakhah is law, it is an extremely nuanced tradition. The law contains numerous subtleties and caveats, and there are circumstances in which the law can be overridden in order to relieve pain or suffering or in order to prevent disharmony and familial or communal fissures.
Many rabbinic laws, for example, can be overridden out of concern for human dignity. That’s a built-in caveat. The rabbinic laws in contrast to biblical laws are overridden in cases where they lead to an offense to human dignity or cause undue humiliation. This is one example of how Jewish Law provides exceptions for individuals and their subjective circumstances.
Many specific laws are subject to parameters that are built into the very fabric of halakhah that limit the law’s inflexibility. There is often latitude in Jewish law based on the variant opinions even in the most sensitive areas of halakhah. So if a truly qualified rabbi is both deeply learned and sensitive to circumstances, he will know when and how to accommodate the critical concerns of an individual or the extra-legal values of Judaism in order to render a decision that is loyal to the letter of Jewish law, the spirit of Jewish tradition, and is pleasant and ‘user-friendly’ to human beings.
Can you give me an example of an instance in which the concern for the human condition motivated a halakhic decision?
Despite the consensus of rabbinic authorities that the usage of electrical devices is strictly forbidden on Shabbos, prominent halakhic authorities have permitted the use of hearing aids and certain types of electric wheelchairs on the Shabbos out of concern for the hard of hearing and the physically infirm.
As one recent jurist put it: “It would appear that there is no greater case for the preservation of human dignity than the prevention of the disgrace and shame that would result from a deaf man’s inability to hear those who wish to speak to him . . .”
Although euthanasia is usually considered by Jewish Law to be equal in its severity to the cardinal sin of murder, and halakhah also emphasizes the obligation to save life even in circumstances where such life apparently lacks any positive “quality,” recent halakhic authorities have allowed for the rejection of life-sustaining medical treatment for terminally ill patients who can live no longer than a few weeks or so and who are experiencing excruciating pain. If the treatment can only temporarily prolong their life of agony, it has been argued, non-treatment is appropriate. In a similar vein other twentieth century authorities have ruled that it is permissible for a person to refuse surgery that, even if successful at saving his or her life, would cause the patient to remain paralyzed for life.
So a qualified, trained halakhic decisor [posek] who is in touch with real life conditions, empirical reality and human psychology will, in a given situation take recourse to a genuinely relevant legal clause to make the requisite allowance where and when possible. The value system and sensibilities of the rabbi are going to affect his decisions.
However, it is important to emphasize that sometimes halakhah may appear to be insensitive to the human condition when in reality this is not the case. Rather it is because halakhah recognizes values that are not necessarily shared by modern society. Examples of this may include the relatively dogmatic stance of halakhah with regard to feticide, euthanasia and assisted suicide in the case of the terminally ill.
The sanctity that Judaism attributes to human life influences what will be the ‘subject’ of our compassion. The concern for the life of the unborn fetus may well be a manifestation of compassion even though this concern may cause sociological or economical difficulty for the parents.
Today, autonomy, privilege, and choice are the “sacred” avenues to self-affirmation. Can you make an argument for the value of a life committed to halakhah as something that is not confining, but rather perhaps even liberating?
Jewish law is about the human responding to the Divine call. Judaism is a revelatory tradition which believes that there is something transcendental which we as humans cannot grasp, and we therefore need to listen to the Divinely revealed truths. That is the Jewish attitude to halakhah, to mitzvot.
Now some people find certain mitzvahs revitalizing or meaningful, and some will find them valuable because observance of commandments cultivates self-discipline. In areas of ethical and moral conduct, the notion of a divine commandment elicits a stronger sense of accountability and responsibility, substantive reasons for compliance and commitment.
Yet some of these reasons are ultimately utilitarian, sentimental if not self-serving and egocentric. Reason is not the highest force in human life. One of the most powerful forces in the life of a person is love. Love is not always the product of a logical imperative, yet it is arguably more deeply rooted in the human psyche and more powerful a force. The same is true for faith. Belief in G-d, for example, is neither a logical imperative nor is it a logical impossibility. It is a logical plausibility. The unyielding faith of the religiously devout is based on an innate force that transcends reason. The faith of the Jew and his consequent commitment to the observance of the commandments is rooted in the transcendental vantage point of his or her soul. For a person who espouses such a faith, halakhah is experienced as elevating rather than repressing, liberating rather than confining.
I think people who don’t experience this, while they may enjoy greater autonomy and greater indulgence, are ultimately deprived of the existential recognition of the Divine calling and the opportunity to respond to it. They don’t experience a full and wholesome relationship with G-d.
If that Divine calling is nothing more than a reflection of our own ideas or desires, then it really is nothing more than self-expression. The semantics don’t change the facts. I may believe that society should be vegetarian, democratic, not materialistic, so I project all this back on G-d, but it is ultimately an expression of the human not the divine.
Where traditional Judaism breaks from this is that it hears a voice that transcends even the most profound and sophisticated notions of refinement, of spirituality, that can be products of the human mind.
Many people, as the recent Pew study showed, seem to have the false impression that religious society is really more about culture than halakhah. The idea of being in relationship with the Divine as expressed through our fulfillment of mitzvahs, is indeed very foreign to western ears, so yes, it needs to be revived.
The full interview is available in the print issue of the Nov/Dec 2013 issue of Lubavitch International. To obtain your copy, email firstname.lastname@example.org.