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.

Prelude to the lawgiving: is Judaism a regular religion?

As we look ahead and prepare ourselves for the upcoming festival it is striking how much attention is focused on the Ten Commandments – the nature and content of the great revelation at Sinai. There is very little mention, by contrast, of the careful preparation which took place among the nation in the days leading up to the lawgiving: a process of purifications and distancing of the people from the mountain.

The people were first instructed, three full days in advance, 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. These rules are described and repeated in detail: God instructs Moshe, who instructs the people. Moshe then confirms with God that the people have been separated from the sacred site. Not satisfied, God then issues a further warning that no person – or even animal – may approach the mountain. Presumably this emphasis and repeated warning is intended to relay a highly important message.

Judaism Reclaimed develops an idea of Rabbi S. R. Hirsch, who sees in these instructions a principle of profound importance. These laws, he understands, symbolise how Judaism is conceptually distinct from “religion” as it is commonly perceived. The fields of anthropology and sociology view religion, like arts and culture, as a mere projection of the social values of society. This approach treats religion as little more than a means by which we can understand the behaviour and beliefs of the social unit formed by its adherents. Emile Durkheim expressed this when he claimed that religion is a mere “projection of the social values of society".

R' Hirsch argues that, in this sense, 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. God’s instructions to the Jewish people to purify themselves for several days in advance of receiving the Torah represent a principle of fundamental importance: that its recipients were not inherently worthy of hearing God's word.

Additionally, the prohibition against drawing near the mountain during the Ten Commandments reinforces the distinction between the source of the communication and the people to whom it was addressed, thereby emphatically rejecting the notion that the Torah emanated from the people themselves. Each of these rules was intended to emphasise the reality that the Torah was communicated to the Jews from an external superior source, and did not emanate from within them.

This message is powerfully reinforced by the episode of the golden calf which took place shortly after this revelation. With the Ten Commandments still ringing in their ears, the nation collectively disobeyed God’s word, creating and worshipping an idol. God’s immediate response was shocking and uncompromising: the people were considered to be thoroughly unworthy of the recently-received Torah. God even suggests to Moshe that He annihilate the entire nation, replacing it with a new chosen people to be drawn from Moshe's own descendants.

All of this points to the idea that the Torah did not emerge from within the nation as a reflection of their own values – its teachings profoundly challenged them and imposed laws which the nation as a whole would struggle to observe throughout Jewish history.

First posted to Facebook 1 June 2022, here.

The Ten Commandments -- according to Moshe?

The unique dynamics of the book of Devarim are examined in several chapters of Judaism Reclaimed. It emerges already from Talmudic sources that Devarim was arranged and structured by Moshe, rather than being dictated word-for-word by God as was the case for the rest of the Torah. As the Vilna Gaon summarises it: the first four books were God speaking via the throat of Moshe, whereas Devarim was a prophecy recorded subsequently, when Moshe was no longer 'under the influence' of the prophecy which he had experienced earlier.

Building from these sources which indicate that Devarim was composed on the basis of a different type of prophecy from that of the rest of the Torah, we show how this appears to form the basis of Ibn Ezra’s fascinating explanation for the discrepancies between the Torah’s two accounts of the Ten Commandments – in Yitro and Va’etchanan.

The version which appears in Yitro is understood to constitute a word-for-word account of the Ten Commandments as revealed by God. This reflects the more direct divine influence over the content of the first four books of the Torah. When it comes to the repetition of these commandments in Va’etchanan however, writes Ibn Ezra, they are presented and structured by Moshe, even containing elements of his own commentary. This distinction may be alluded to in the Torah’s respective descriptions of its accounts: while Devarim declares “these words God spoke”, the original Yitro text introduces the commandments with “God spoke all these words…”.

To provide one example of how Ibn Ezra applies this principle, the initial version of the Commandments mentions first that one should not covet his neighbour’s “house” and only then his neighbour’s “wife”. This, Ibn Ezra explains, is the proper sequence in terms of the progression of a person’s correct order of life priorities: first to establish a house and then to marry. Moshe however switches the order for didactic reasons, on the basis that the temptation and coveting of a neighbour’s wife naturally begins earlier in a person’s life than jealousy of his house.

But why might God have chosen to communicate the book of Devarim in a different way to the first five books?

Judaism Reclaimed addresses this question through an unusual combination of rabbinic thinkers: Rabbi S. R. Hirsch and the Lubavitcher Rebbe. What emerges is that the 40-year sojourn in the desert represented a spiritual cocoon within which the nation of newly-released slaves was provided with a crash course of intense exposure to direct divine providence, constant miracles and the Torah’s revelation. This miraculous existence was not, however, the Torah’s ultimate goal.

The nation needed to witness God’s presence. But the ideal was to take that intense spiritual existence and be able to apply it to the mundane realities of everyday life in the Land of Israel. The compromises and trade-offs that are required in nation-building. This needed flexibility and “less intense light” of the oral tradition over God’s direct word.

This shift in the mode of relationship between God and the Jews was to be mirrored in a shift in the style and dynamics of the Torah: the rules which govern this relationship. Thus, with the Jews on the threshold of entering the Land, the direct “face-to-face” style of prophecy which had formed the basis for the first four books was supplemented with the final book in which Moshe not only recorded what God had dictated, but was also involved in structuring and explaining its content. This introduction of human involvement in its final book served as an interface to ease the transition and underscore the legitimacy of the greater focus on the Oral tradition which was to take on increased significance for the Jews upon entry to the Land of Israel.

Upon entering the Land of Israel, the Jewish people would no longer relate to God in this direct manner, rather they would be required to fulfil the purpose of creation by “building a home for God in the physical world” — relating to Him through His natural order.

This ultimately represents the Torah’s function. It is not simply a set of detached ideals revealed to perfect “ministering angels” – rather it guides those attempting to build a holy nation and society – battling to realise the Torah’s goal of a holy, refined godly nation with a Torah that could speak to, inspire and refine ALL people wherever they are in that process of human

First posted on Facebook 14 August 2022, here.