Friday, July 30, 2004

The Adoption of Heterodox Practices

The following is the first installment from an article I have written. I submitted it for publication last year but it got rejected by a grumpy editor who wanted changes. I made those revisions but decided to just blog it instead of resubmitting it for publication. After I finish posting all of the pieces, I'll find somewhere on the web to post the entire article.

The traditionalist Jewish community does not live in isolation. Even among those who seclude themselves and restrict their interaction with "outsiders," there is still a necessary reaction to the practices of others. Perhaps the most famous example was the removal of the ten commandments from the daily liturgy so as not to unintentionally support the heresies of those who claimed that only these laws are binding.[1] Similarly, the addition of the blessing against "informers" was certainly a response against sectarians.[2] More recently, the Vilna Gaon’s abolition of the custom to decorate synagogues with trees on Shavuot reflects a reaction to Gentile religious practice.[3] These few examples, and there are many more, demonstrate an awareness of external developments and a need to adjust normative practice to accurately reflect old distinctions in a new reality. Additionally, any proposed innovation must be weighed within the inverse of this scale. We must carefully consider not only its internal implications but also its repercussions outside of our proverbial ghetto walls.

The primary consideration is certainly the biblical prohibition against following the ways of the Gentiles. This is a highly nuanced commandment that is widely discussed in the halakhic literature.[4] Another issue that reflects the impact of external practice on internal developments and also the potential effect of internal custom on external parties is the less famous, although certainly worthy of consideration, prohibition against imitating heretics and thereby encouraging them in their deviant ways. Out of a sensitive concern for their fates and a desire to not even slightly worsen their position vis a vis traditional Judaism, we must carefully ensure not to strengthen any of their misperceptions.

Confirming Sectarians

The Mishnah in Hullin (41a-b) records:

One may not slaughter at all into a pit. Yet, one may dig a pit in one’s own house for the blood to run into. In the street, however, one should not do so lest one confirm the sectarians (minim)[5] in their ways.[6]
The Mishnah here is somewhat unclear. It first states that one may not slaughter and have the blood fall into a pit. This is either because sectarians used this method in order to collect blood for their idolatrous sacrifices[7] or because they collected blood in this way to eat in their pagan services.[8] According to both opinions, this otherwise permissible method of slaughtering is prohibited because of idolatrous sectarian practice; because what is done outside of our community affects what may be done within it.

However, the Mishnah continues to permit the practice in one’s house but not in the street, which seems to directly contradict the immediately preceding prohibition. In the Gemara (41b), Rava authoritatively explains the Mishnah’s language as meaning that slaughtering directly into a pit is forbidden everywhere but slaughtering into a ditch that allows the blood to drip into a nearby pit is permitted in one’s house but not in the street. A baraita is brought to confirm Rava’s distinction and this baraita attaches to the prohibition against slaughtering in this way the verse "You shall not walk in their ways" (Lev. 18:3), the source for the prohibition against following Gentile practices.

The simple way to understand this passage is that these are all examples of idolatrous practices that we may not follow, consistent with the prohibition against “walk[ing] in their ways.” However, Rashi explains differently. As indicated above in our translation of the Mishnah, Rashi writes that slaughtering into a ditch that leads to a pit is prohibited because it will confirm the sectarians in their ways (yahazik yedeihem be-hukoteihem). According to him, the prohibition involved in this matter is not one of following prohibited idolatrous practices[9] but of imitating sectarian practice. Rashi explains that one may not slaughter into a pit, "even in [one’s] home because it looks like a sectarian practice."[10] Even when the prohibition against following Gentile or idolatrous practice no longer applies, we are still prohibited from appearing to follow sectarian practice so as not to strengthen their resolve and confirm their position.

Rambam has a different way of understanding this issue. In explaining the prohibition against slaughtering into a pit he writes, "because this is the practice of idolaters." This is Rambam's explanatory addition to the Mishnaic passage. Rather than maintaining the Mishnah's explanation of "lest he confirm the sectarians in their ways," Rambam offered his own explanation that seems to invoke the baraita's citation of "You shall not walk in their ways" (Lev. 18:3). This was in regard to slaughtering directly into a pit. However, in describing the prohibition against slaughtering into a ditch that drips into a pit, Rambam reverts to the Mishnah's "lest he confirm the sectarians in their ways." [12] Evidently, according to Rambam sectarians only slaughter directly into pits and, therefore, only this is considered to be a prohibited idolatrous practice. However, while slaughtering into a ditch that leads to a pit is not technically an idolatrous practice, it is a practice that conforms to sectarian rules and, therefore, gives the appearance of trying to follow sectarian regulations. This alone, appearing to intentionally obey sectarian rules, is prohibited because it strengthens their resolve.[13] When they see another person coming closer to their practices it legitimates them and reinforces their position.

This can be further seen from the exception to the general rule that the day following a holiday - is'ru hag - has a special status that includes a prohibition against eulogizing and fasting. The Mishnah in Hagigah (2:4) states that when Shavuot falls out on Shabbat, the next day, Sunday, is not given any unusual practices. The reason for this exception is that Second Commonwealth sectarians always observed Shavuot on the Sunday following the traditional Shavuot. Because observing a semi-festive day on the Sunday following Shavuot might be seen as partial agreement with sectarians, it is not practiced even though it would otherwise be required.[14] We must not strengthen the position of sectarians even to the point of omitting a rabbinically ordained observance.

The source for this prohibition is, presumably, the Mishnah and Gemara in Gittin (61a, 62a) that one may not encourage sinners in their incorrect ways. Even a mere verbal greeting that could be understood as encouragement is rabbinically forbidden.[15] It stands to reason that active encouragement, including imitation, would also be prohibited, as discussed above.[16]

From all the above, and particularly Rashi's explicit statement in Hullin, we see a prohibition against observing sectarian practice if it will strengthen the public stature of sectarianism. The application of this prohibition to modern heterodox movements seems self-evident. While the sectarianism referred to in the Mishnah was idolatrous, there is no indication that idolatry per se is a necessary requirement for falling under this prohibition. It is well established among historians that the term sectarian (min) refers to a broad category of deviants[17] and, as R. Samson Raphael Hirsch expertly demonstrated in his open debate with R. Seligman Baer Bamburger regarding Austritt, within the Maimonidean framework the term certainly applies to heterodox movements.[18] If so, and, as we shall see, numerous halakhic authorities have affirmed this, there is a prohibition against embracing heterodox practices when and if such adoption confirms the heterodox in their ways. What remains to be determined is what can be considered sufficient confirmation to be prohibited.

(to be continued be"H)

[1] Berakhot 12a
[2] Berakhot 28b-29a. Cf. Lawrence H. Schiffman, Who Was A Jew? (Hoboken, NJ: 1985), p. 53 ff.
[3] R. Avraham Danzig, Hayei Adam, 131:13. Whether the Vilna Gaon abolished only the custom about trees or also about flowers, see R. Yosef Levy, Minhag Yisrael Torah, vol. 2 p. 364.
[4] Cf. Shulhan Arukh, Yoreh Deah 178 and commentators; Encyclopedia Talmudit, vol. 13 sv. hukot ha-goyim.
[5] The Vilna Shas reads "Sadducees" but older versions have "Sectarians." See Dikdukei Soferim, ad loc. n. 7.
[6] So Soncino, n. 6 translates according to Rashi.
[7] Rashi, ad loc.
[8] Rashba, Torat Ha-Bayit, 1:3 p. 17a. Cf. Rashbam, Ramban, Rabbeinu Bahya on Leviticus 19:26; Seforno on Leviticus 17:7; R’ Yonatan Eybeschutz, Pleiti, 12:1.
[9] Perhaps because there is a rational reason to slaughter into a pit, namely cleanliness. However, this raises the issue of whether a rational idolatrous practice may be followed. See further the responsa of R. David Tzvi Hoffman (below note 22), R. Marcus Horovitz (note 23) and R. Yechiel Ya’akov Weinberg (note 30) where this is discussed.
[10] 41b sv. kol ikar
[11] Mishneh Torah, Hilkhot Shehitah 2:5
[12] ibid. 6
[13] Note that according to Rambam we only presume of being a sectarian someone who publicly slaughters directly into a pit. This is further evidence that Rambam’s view is that slaughtering into a pit was sectarian practice while slaughtering into a ditch that leads to a pit was only reminiscent of sectarian practice. Cf. Radbaz, ad loc.; Pri Hadash, Yoreh Deah 12:4.
[14] Cf. Tiferet Yisrael, ad loc. no. 31; Tosafot Rabbi Akiva Eiger, ad loc. no. 8. This seems to be a proof countering R. Daniel Sperber’s claim in The Edah Journal, 3:2 Elul 5763 p. 11 n. 26 that "the concern about appearing to emulate non-Orthodox movements does not arise as long as there are normative halakhic sources that may be relied on." As we have seen, even something that was permissible in a different time, as reflected by normative halachic sources from that period, can be forbidden in a later situation. This is a prohibition that greatly depends on time and place.
[15] Cf. Nedarim 22a. It is certainly noteworthy that "the ways of peace" override this prohibition, implying that there must be a genuine halakhic need to set aside this consideration.
[16] R. Zalman Nehemiah Goldberg, "Tefillat Nashim Befarhesyah" in Tehumin, 5758 p. 122 cites Avnei Nezer, Hoshen Mishpat no. 149 that such encouragement of antinomians or heretics is biblically prohibited.
[17] Cf. Lawrence Schiffman, ibid. p. 54
[18] R. Samson Raphael Hirsch, Collected Writings, vol. 6 pp. 277-287

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