The Culture of Debate – Kedoshim
וְכִי יָגוּר אִתְּךָ גֵּר בְּאַרְצְכֶם לֹא תוֹנוּ אֹתוֹ. כְּאֶזְרָח מִכֶּם יִהְיֶה לָכֶם הַגֵּר הַגָּר אִתְּכֶם וְאָהַבְתָּ לוֹ כָּמוֹךָ כִּי גֵרִים הֱיִיתֶם בְּאֶרֶץ מִצְרָיִם אֲנִי ה' אֱ-לֹקֵיכֶם (ויקרא יט, לג-לד).
As everyone is aware (it is almost impossible to not be), there is currently a major conflict raging within Am Yisrael regarding the conversion process in the State of Israel.
Ever since the State of Israel was established and the prophecies of קיבוץ גלויות began to unfold before our very eyes, we have been forced to grapple with complex realities that have resulted from almost 2000 years in exile and to find creative solutions for the dilemmas they create. The current crisis is the aftermath of an Israeli government amendment to the Law of Return in 1970, to grant Israeli citizenship to anyone whose grandfather or grandmother are/were Jewish and their spouse (even if the spouse has no Jewish lineage at all). This new clause in the law prompted many immigrants (primarily from the former USSR) to immigrate to Israel, in many case to improve their financial situation and standard of living. Fifty two years later, there are now a large number of immigrants (hundreds of thousands) who are legally citizens of the State of Israel but are halachically not Jewish, as their mother was not Jewish (only their great/grandparent was). This population group has been labeled by some as זרע ישראל.
These hundreds of thousands of citizens and especially their children, are totally integrated in Israeli society, they study in the Jewish schools, they serve in the IDF, they are part and parcel of what constitutes the “Jewish sector” of Israel (as opposed to the Arab sector) and they mix socially with the rest of Am Yisrael. As a result (as is usually the result in such cases) the children of these immigrants enter into relationships with other Israelis who are halachically Jewish and problems arise when they want to marry. The children of זרע ישראל have been born here, have grown up here in Israel, are totally part of the Israeli culture and reality, they consider themselves to be “Israeli/Jewish” in the national sense of the word but, in the vast majority of such cases, they are secular and their connection to Judaism is “cultural” at best.
The question is what to do about them? Most of them are not really interested in the Torah and Judaism (yet) and their sole motivation for converting is because they want to marry a halachically Jewish boy or girl. The current government wants to legislate a reform to the Law of Conversion that will allow them to “convert” and be considered halachically Jewish, despite the fact that it is patently obvious that they will not live as observant Jews.
I will already disappoint you by saying that I do not want to “enter the fray” and get into the debate whether the 1970 amendment to the Law of Return was ethically/morally correct or not. Neither do I want to express a personal opinion whether an “expedited” conversion of these people is halachically acceptable or not. I am not qualified to express a halachic opinion on the subject (although every “Tom, Dick and Harry” on the street, in the media and at the dinner table seems to think they are).
What I do want to do in this shiur is to address the atmosphere surrounding this debate and the acceptable format in which it is conducted. In doing so I will be touching on fundamental questions such as “Does the halacha reflect the absolute truth of the Torah?” “What constitutes an acceptable form of halachic debate?” “Is there such a thing as a ‘template’ halacha?”
To answer these questions I would like to explore a סוגיא in the Gemara (Bava Metzia 59a) concerning a debate about an oven called תנור עכנאי. The “technicalities” of the debate are not the essence of what I want to derive from this story, but I will explain them briefly. The bottom line of the debate is whether this specific type of oven transmits טומאה or not. There is no question that an “intact/integral” oven does transmit טומאה. A תנור עכנאי is not an “intact/integral” oven. It was originally an “intact/integral” oven, but has now been cut up into ring-like components and joined back together, connected with some “glue” component (sand in this case) so that it resembles vertebra in the spine separated by discs. The name עכנאי in Aramaic means snake, referring to the ring-shaped components, similar to a snake sitting in a circular posture.
The debate is between Rebi Eliezer (ben Horkenus) and the Chachamim (under the leadership of the Nasi, Raban Gamliel). Rebi Eliezer holds of the opinion that this is no longer an intact oven and therefore does not transmit טומאה and the Chacham say it is and it does.
Rebi Eliezer tries to bring proof after proof to support his opinion, but the majority of the Chachamim repeatedly reject his proofs. Finally, after exhausting all academic recourse, Rebi Eliezer went to the next level. He said “If I am right, this carob tree outside will uproot itself and relocate 50m away”. Lo and behold, the tree levitated and moved 50m away. The Chachamim responded “Sorry, we don’t accept a proof from the carob tree!” Rebi Eliezer said “If I am right, the water in the stream outside will flow backwards” And so it did. The Chachamim responded “Sorry, we don’t accept proof from a stream!” Rebi Eliezer persisted “If I am right, the walls of the Beit Midrash will testify to the fact” The walls of the Beit Midrash began to tilt inwards and were about to fall. One of the Chachamim, Rebi Yehoshua, angrily castigated the walls. “If Talmidei Chachamim are engaged in a debate – why do you interfere?” The walls stopped tilting, they did not return to their original position in honor of Rebi Eliezer, but they didn’t completely fall over, in honor of Rebi Yehoshua – they remained “half-mast”. Rebi Eliezer then dropped what he considered to be the “clanger” – “If I am right, Heaven will testify to the fact” A בת קול came down from Heaven and declared “Why do you argue with Rebi Eliezer? The halacha is like him in every matter!” An indignant Rebi Yehoshua stood up on his feet and said “It says in the Torah לא בשמים היא (Devarim 30, 12)”. In other words, when HKB”H gave us the Torah on Har Sinai, He said אחרי רבים להטֹת (Shmot 23, 2) – the halacha goes according to majority opinion. We have reached a majority consensus and this is our halachic ruling.
The Chachamim subsequently ruled that a תנור עכנאי is מטמא and reversed any prior rulings given by Rebi Eliezer to the contrary. In addition, Raban Gamliel, the nasi, put a נידוי (a חרם) on Rebi Eliezer so that he would not contradict their ruling. The Chachamim then discussed “Who will go tell Rebi Eliezer that we have put a חרם on him?” Rebi Akiva (who was Rebi Eliezer’s favorite student and close friend) replied “Let me go and tell him. I will be able to tell him in the right way. Do not send someone else who will tell him the wrong way, insult him and thus bring catastrophe down upon us!”
Rebi Akiva donned black clothes (the “charedim” back then did not wear black as their regular garb) as a symbol of grief and pain and sat the customary 4 amot away from Rebi Eliezer (as is the halacha with someone who is in חרם). Rebi Eliezer asked him “Akiva, why are you dressed so? Why do you sit so far away?” Rebi Akiva gently broke the news to him as only a devoted talmid and friend could. Rebi Eliezer then ripped his clothes, removed his shoes and sat on the ground (as is the halacha for someone who is put in חרם).
Tears of sorrow streamed from his eyes, and the entire world went into shock. A third of the olive, wheat and barley crops wilted and some say that every dough in Am Yisrael being kneaded that day spoiled. The Gemara continues to say that whatever Rebi Eliezer cast his eyes upon that day was burned to a cinder.
Raban Gamliel was on a ship at sea at this time and the sea turned into a tumult that threatened to capsize the ship. Raban Gamliel realized that this was because of the חרם he had ordered on Rebi Eliezer and pleaded to Hashem “Ribono shel Olam You know that that I did this for Your honor, not mine, so that there would not be any further machloket in Am Yisrael!” and the sea returned to normal.
The Gemara concludes this סוגיא by relating that that Rebi Eliezer’s wife (who was the sister of Raban Gamliel) was always vigilant in preventing her husband from davening tachanun and doing נפילת אפיים (when someone davens tachanun, they pour out their heart and soul to HKB”H) for she was afraid that Rebi Eliezer would pour out his sorrow and subsequently all those who had “wronged” him would be punished. One day she either miscalculated the calendar thinking it was Rosh Chodesh (when there is no tachanun), or was distracted by a poor man at the door begging for tzedakka. Either way, that day Rebi Eliezer did נפילת אפיים, and shortly after, she heard the sound of the shofar blast from the home of Raban Gamliel announcing that he had died. They asked her, how did you know that he would die if you didn’t prevent your husband from saying tachanun? She replied, “I learned this from my grandfather “All the gates (of Heaven) are locked, except for the gates of אונאה (someone who was caused grief by others)”.
This is an incredible story and there are multiple things to learn from it. In my shiur on Vayeilech I describe the background of the participants in this episode and why Rebi Eliezer davka brought the proofs that he did. I also use it in my sefer מאיר פנים to learn the principle that when HKB”H is pleased with Am Yisrael, He “smiles” כביכול.
In this shiur I want to learn other things from this iconic debate, things that relate to today’s topic.
The first thing we learn is that halacha does not always reflect the absolute truth of the Torah in Heaven. A בת קול came down and declared that the halacha was like Rebi Eliezer! The absolute halacha in Heaven was like Rebi Eliezer! But the halacha lema’aseh, the very same halacha that we follow to this day (if there would ever be a case of a תנור עכנאי, or its parallel) is not like Rebi Eliezer, but like the Chachamim. The mechanism of formulating halacha is not absolute. It is affected by the reality on the ground at the time and by human frailty. The determining factor is simply that it be a majority opinion. The possibility exists for error, but that is irrelevant. If the majority opinion has sound basis - it is the ruling, despite the “original intention” of Hashem when He created the Torah, regardless of the stature of the different participants in the debate.
The Gemara relates that Rebi Natan happened to bump into Eliyahu Hanavi soon after this episode (back then the Chachamim would have frequent direct conversations with Eliyahu Hanavi) and he asked Eliyahu Hanavi “What did HKB”H do when He heard the response of Rebi Yehoshua to the בת קול?” Eliyahu replied “HKB”H smiled and said נצחוני בני נצחוני בני!“ Hashem accepted the ruling of the Chachamim and derived great pleasure from it כביכול.
The second thing we learn from this episode is the incredible sensitivity the Chachamim had for Rebi Eliezer. They had no choice but to put a חרם on him, they could not have someone else contradicting their ruling and creating a rift in Am Yisrael. They didn’t just get up in front of a TV camera or post a pakshevil and declare that Rebi Eliezer is מנודה. They first sent his closest talmid and friend to break the news to him gently. You could say that they were afraid of Rebi Eliezer, his incredible מעלה and power to inflict harm on them (which the Gemara goes on to describe in detail). They did it simply out of derech eretz, because that was the culture of debate prevalent at the time. Rebi Eliezer could have stood on his hind legs, been indignant and refuse to accept the ruling of the Chachamim (which he knew to be contrary to the Heavenly ruling). But he did not, he (sorrowfully) accepted the חרם imposed on him and did not defy it. The hurt was there, it was between him and HKB”H and came out accidentally when his wife was not watching over him. However, it was not hung outside like a “flag” for everyone to see. Aside from that day of the ruling when things went haywire, life went on as normal for Am Yisrael. The machloket began and ended in the Beit Midrash, it didn’t drag the entire Am Yisrael into it.
We have a similar phenomenon that occurred a few generations before the above story.
Hillel and Shamai are the “model” for what constitutes an acceptable culture of debate (Pirkei Avot 5,17). Make no mistake, the debate between them was intense and fierce. The Gemara (Yerushalmi, Shabbat 1,4) describes that in one particular incident the talmidim of Beit Shamai stood with swords and spears and “killed” the talmidim of Beit Hillel. This is not to be taken literally, nobody was physically killed. Some explain it to mean they threatened them with swords and spears, others say it means their words were like swords and spears. The debate in the Beit Midrash was intense, fiery and even perhaps bordering on violence. However it began and ended in the Beit Midrash. Outside the Beit Midrash Beit Shamai lived together with Beit Hillel and vise versa.
The Gemara (Shabbat 31a) describes two instances of the debate between Hillel and Shamai, specifically related to our topic of discussion – גיור. In both cases Shamai rejected the גר and Hillel accepted him. This is conversion we are talking about – “Who is a Jew!” a vital, fundamental principle of the Torah, that could “make or break” Am Yisrael.
Inside the Beit Hamidrash the debate was fierce, but outside - the Mishna (Yevamot 1, 4) tells us that despite the difference of opinion, members of Beit Shamai married Beit Hillel and vise versa. Families of Beit Shamai married families of Beit Hillel! If Beit Shamai thought that Beit Hillel’s ruling was passul, this meant that members of Beit Hillel were not Jewish! - they had accepted גרים contrary to Beit Shamai’s opinion, who Beit Shamai did not consider גרים! But they still married them.
There was a halacha lema’aseh, a ruling and in most cases it was like Beit Hillel. The Mefarshim say that the opinion of Beit Shamai more accurately reflected the truth of the Torah in Heaven, in עולם האמת. However, down here in עולם הזה the halacha is like Beit Hillel, it does not need to be perfect, we live in an imperfect world.
Halacha is not template, it is לגופו של עניין/אדם. When there is a question, you go to your Rav/Posek and he paskens a halacha. The ruling is “tailor made” to the person asking it. You cannot apply a ruling given to someone else for yourself. The Rav/Posek knows the נפשות הפועלות and his ruling takes into account all the factors and circumstances involved. Certain rulings are for an individual and others are for an tzibbur. When paskening for a tzibbur - the same applies. The Rav/Posek who paskens takes into account the reality and circumstances for that specific tzibbur. Circumstances change, realities change and halacha lema’aseh reflects these changing realities. Obviously the Rav/Posek does not invent his own ruling, he draws on prior rulings adapting and applying them to the specific circumstances of the case. Subsequently a psak is not black and white. The Rav/Posek may give a different answer for the same question to two different people, because there are other factors to consider. In some cases the Rav/Posek may feel it is necessary to be מקיל in order to be mekarev. In another case with the same issue, the Rav/Posek may be מחמיר because he considers the person to be able to abide by it.
Conversion is one issue that is especially personal and not template. Only the Rav who is directly involved with the גר and knows him/her up close, can possibly get some idea of the viability of גרות or the lack thereof for that specific person.
What disturbs me more than anything else is the culture of the current debate. This is not an issue for debate in the Knesset, in the media or at the dinner table. This is an existential issue for Am Yisrael that must be resolved in the Beit Midrash between the Chachamim, Gedolei Yisrael. It begins and ends in the Beit Hamidrash. What the majority of the Chachamim decide – that is the ruling. Politicians are not part of the equation.
What disturbs me is the “spillover” of the debate outside the walls of the Beit Midrash. The Chachamim in the time of Raban Gamliel didn’t hold press conferences, they didn’t express their opinion in the press or on pakshevilim by the side of the road, demonstrate and hold public opinion polls. They formulated halacha the way it was supposed to be, between the Chachamim and amongst themselves in the Beit Midrash and the majority rules – even if the majority is not the opinion of the gadol hador!
What disturbs me is the flagrant lack of derech eretz between some of the so-called chachamim which filters down to their followers and results in unacceptable behavior, threats and even death threats. Yes there were “swords and spears” in the Beit Midrash, but outside was a “no weapon” zone! Beit Shamai married Beit Hillel and Beit Hillel married Beit Shamai. That is a מחלוקת לשם שמים. What we are experiencing now is far from that! In a מחלוקת לשם שמים there are no קנאים – on either side, no surreptitious tactics and innuendos and it is not personal.
We are in the period of the year when we are suffering the after effects of a מחלוקת that was not לשם שמיים, when derech eretz went out the window. Ironically it was the talmidim of the iconic figure of our Gemara above, Rebi Akiva, the epitome of derech eretz towards Rebi Eliezer. This just proves how fragile the culture of debate is.
The issue of זרע ישראל is an acute issue. A solution needs to be found for it - a solution that does not tear Am Yisrael apart. If such a solution exists, it does not begin with the leaders, but with Am Yisrael. Am Yisrael must forego the public debate. We must force our theological (not political) leaders, all of them, from all the sectors and all the opinions in Am Yisrael to sit in a room, around a table and thrash it out between themselves and leave the room with a decision and with the understanding that everyone will be obligated to that decision. The decision may not be absolute, it may not be perfect, it may not even reflect the Torah in Heaven. However, whatever it is - it applies to all.
The alternative is not contemplatable. The alternative is chaos and a reversal to the time of Bayit Sheini with all the sinat chinam and the destruction it entails. We haven’t endured 2000 years of galut for that! I believe that Am Yisrael today is wiser. Yes we still have our קנאים (on both sides), but I believe the vast majority of Am Yisrael now has the common sense to transcend the קנאים, to sideline them and to stand up and heal the wounds in our nation.
We need to be seeing demonstrations, not of one group against the other, but mass demonstrations demanding that our leaders, spiritual and political put aside their personal agendas and start working for Klal Yisrael and not for their own sectorial interests. Am Yisrael is tiring of sectoriality. We are tired of the conflicts within ourselves. We yearn for unity, but yearning is not enough. We have to each actively work towards unity and silence those who oppose it. If our leaders are deficient, it means we are deficient – they are a reflection of us. We need to look inside ourselves and begin by fixing ourselves. After that we need to sublimate leaders that will reflect and act to bring about what we yearn for most – unity and Geulah.
And it begins with the culture of debate.