Yitro, the spirit of Sinai: legal loopholes, halachic fictions and approaching homosexuality

The chapters of Judaism Reclaimed which relate to parashat Yitro open with Rabbi S. R. Hirsch’s interpretation of the various instructions governing the conduct of the Jewish people in the lead-up to the Sinai revelation. The people were first instructed to prepare and purify themselves for the forthcoming Divine revelation. Then, at the time of the law-giving, they were warned not to approach the mountain. Each of these rules was intended to emphasize that the Torah was being communicated to the Jews from an external superior source and did not emanate from within them.

The fields of anthropology and sociology view religion, like arts and culture, as a mere projection of the social values of a society, a means by which we can understand the behaviour and beliefs of the social unit formed by its adherents. In this sense, R’ Hirsch continues, Judaism stands apart and cannot be truly defined as a religion, since the Torah’s rigorous and demanding laws do not reflect the religious and moral status of the nation which first received them. An earlier chapter of Judaism Reclaimed discussed the ways in which the Torah’s religious and moral teachings were revolutionary in the Ancient Near East. That the Jewish People were required to prepare themselves for several days in advance of receiving the Torah combined with the prohibition against drawing near the mountain during the revelation reinforces the distinction between the source of the communication and the people to whom it was addressed, and emphatically rejects the notion that the Torah emanated within the people themselves.

We highlight further potential implications of this distinction between the Lawgiver and the Torah’s recipients, examining the extent to which it is considered legitimate to assert reasons for mitzvot and, by extension, the presence of a ‘spirit of halachah’. In his Shemonah Perakim, Rambam notes an apparent aggadic contradiction on this subject. On the one hand there is a Talmudic statement that “even if certain commandments had not been written in the Torah, we could legitimately claim that they ought to have been”, which presumes that we are able to discern reasons and spirit for the mitzvot. This is contrasted with the teaching that “One should not say that he does not wish for non-kosher food [etc]; rather, he should say, I would like to partake of it but my Father in Heaven has forbidden it to me”. Rambam shows how mitzvot which he labels mefursamot (widespread) – i.e. those which are commonly legislated in society (e.g. not to steal, murder…) – are understood to be in accordance with the Torah’s broader spirit and we would therefore expect to be prohibited. By contrast, mitzvot which have bear no clearly apparent reason (chukkim) such as prohibitions against certain foods and clothing mixtures are observed out of obedience to God’s word.

The chapter continues with an extended analysis in which we attempt to demonstrate how Rabbinic legislation from the Mishnah and Gemara takes considerable notice of this distinction. When the Rabbis were dealing with chukkim, since our understanding of these is limited to the letter of the laws themselves, there can be no objection to making use of and even devising original legal loopholes and fictions (commonly found in laws such as vows and non-charitable tithes). After all, it can hardly be claimed that one is abrogating a spirit of a law that can be neither detected nor fathomed. By contrast, widespread mefursamot laws which typically guide people towards moral and religious goals can be understood to contain a spirit which must be guarded and maintained – the Rabbis thus responded powerfully to those who sought to use halachic loopholes to do things like avoiding repaying a debt or discharging their charity obligations. Numerous sources are brought to support these contentions and particular focus placed on the concept of a legal fiction as it exists in secular legal systems and halacha.

The chapters conclude by relating this principle to a burning contemporary issue in modern Orthodox Judaism: the extent to which halachah can/must legitimately pursue flexibility and loopholes in order to assist homosexuals struggling to reconcile their religious beliefs with their sexual inclinations. Based upon the principle proposed in these chapters, the first stage of Rabbinic engagement with this question is to determine the correct categorisation of the prohibition of “mishkav zachor” -- a task which proves to be highly complex. If the prohibition is to be viewed as mefursam(widespread) then scope for Rabbinic intervention is strictly limited whereas, if it is an unintelligible chok, this could pave the way for potential loopholes and leniencies.*

While the prohibition against homosexuality was once considered mefursam, fathomable and widely accepted in Western societies, recent years have seen a shift in public opinion, which may place it in the category of chukkim rather than mefursamot. But can the spirit of a mitzvah be subject to change? Do we attempt to measure by public opinion at the time of the giving of the Torah? Do we follow the mefursam status for the majority of human history? Or in order to be categorized as mefursam does a law need to have been consistently and universally applied? How much can be read into the Torah’s epithet of to’eivah – a term which is heavily analysed in an earlier chapter? Judaism Reclaimed does not propose a solution to this difficult question.

*Practical halachic questions on the subject of homosexuality are not addressed in Judaism Reclaimed,which directs its readers to the outstanding analysis by Rabbi Chaim Rapoport in Judaism and Homosexuality: An Authentic Orthodox View.

First posted to Facebook 13 February 2020, here.