Wednesday, December 07, 2005

On bans and changing realia

There is a very interesting speech (read it, really) by Rabbi Francis Nataf, Educational Director of the Cardozo Academy called "Religious Censorship in the Information Age: Libertarian Implications of Contemporary Realia." The speech seems to have been part of a lecture series given about a year ago called 'Crisis in Judaism.'

The speech was delivered pre-Slifkingate and does not, therefore, pertain specifically to it although its themes are relevent, highly relevent, to that topic and the larger issues it represents. It begins by noting recent bans or near bans of books by Rs. Jonathan Sacks and Nosson Kamenetzky. R. Nataf goes on to say that he wishes to convince the audience of two points:
Number 1 -- I would like people to realize that they don't believe that censorship is always a bad thing.

Number 2 -- I would like people to realize that they don't believe that halacha does not change.
He explains that most people would agree that certain kinds of military censorship is a good thing (troop movements, battle plans and the like). There are extremists who disagree, but most people will not. A parallel example in halakhah is that one may not inform a sick person of his relative's death as it could aggravate their condition (Y.D. 337). If that's so, most people wouldn't agree that they really think censorship is always bad.

As for the second point, that many people believe that halakhah really does not change, this is because "in a polemical effort to create clear lines between Orthodoxy and other movements, we have created an intellectual Frankenstein," the notion that halakhah doesn't change. While Judaism lacks the equivalent of a legislative branch, it still has an equivalent of a judicial branch. Change occurs in the interpretation of the law as well as in legislation.

He gives as an example the old rule of hand signaling when driving. That was required by law prior to the automotive industry's successful implementation of working light signals. Once it was clear that hand signaling was obsolete, the law no longer required it. Changes in the realia=changes in the law.

To illustrate this point, R. Nataf supplies examples, and notes that the word "ha'idna" "nowadays", which indicates a historical change in the halakhah, is not unfamiliar to students of Talmud and Halakhah.

As an example, the positive commandment to write a sefer Torah. Many people do not realize that they have already fulfilled this mitzva according to many opinons, including the Shulhan Arukh and later authorities. The theory is that the purpose of the mitzva of writing a sefer Torah is "in order to facilitate individual Torah study, to allow one to study from it. Acquisition of a Sefer Torah was just a means to an end and, thus only relevant as long as it accomplished that end. Once people started studying exclusively from other books such as chumashim, gemaras and the like, the means metamorphisized into writing or purchasing such books."

In other words, the realia had changed and the chachamim recognized it and adjusted the halakhah accordingly. Other examples are provided, including the famous R. Moshe teshuva recognizing chalav stam and the requirement of a chatan to recite kriat shema, when they were originally exempted, and R. Shlomo Zalman Auerbach's hetter to walk behind a woman, because of a perceived change in facts on the ground, as it were.

Now, I know full well (that's me talking now, not R. Nataf) that more sophisticated individuals are already quite aware of these things. However, there does exist a group of people--most of them, actually--who are not quite aware of the many examples and do, in fact, think that halakhah is unchanging. I also know full well that some of the people who are more sophisticated and aware of these things are convinced that halakhah doesn't change, only situations change. According to them, in other words, built into the system there was always a caveat for the day that the FDA would regulate milk, to allow a posek to say "chalav stam is finally here!" But, in my opinion, this is just a case of tomato-tomahto. Saying "halakhah doesn't change, situations do" is no different than saying "halakhah changes", although I agree that attitude plays a role in how one sees the issue. But I digress.

Hoping to have made the case that people don't really believe that censorship is always a bad thing and that they don't really believe that halakhah doesn't change, R. Nataf the turns to a concept found in the Gemara, "halacha ve'ain morin ken" a halakhah which one should not teach. In this regard he quotes the most famous example as it pertains to the story of Pinhas, "Haboel aramit, kenaim pogim bo". Although the Gemara uses a different technical term, "ha'ba limlech, ain morin lo." R. Nataf then gets all cute telling his audience that he can't translate "Haboel aramit, kenaim pogim bo" since the Gemara says that its a secret halakhah. Noting audience members turning to each other, he quickly points out that the principles of "secret halakhot" is essentially meaningless today, when one can easily learn these laws.

In contrast, in earlier times there really was such a thing as a halakha "ve'ain morin ken." Three changes in realia have rendered the idea impracticible: 1) the writing down of Torah she-be-'al peh 2) recent educational trends in which Talmud and other advanced study is no longer the possession of an elite and 3) the internet. Simply put, you can't hide what used to be possible to hide. As it pertains to rabbinic biographies, the only way to truly whitewash information is to somehow destroy all factual information that exists about the subject. It can't be done. Maybe there was a time when it could be done, but the realia has changed, and ha'idna now it cannot.

R. Nataf then goes on to give an interesting example of halakhah ve'ain morin ken in a recent, practical application, that many of the astute among us might recognize. In the popular sefer Shmiras Shabbos Kehilchasa there are cases where the main text essentially says "assur" and a careful reading of the footnotes say "muttar."

In any case, if it is so that there are halakhos which can be misunderstood, which are dangerous, which are "ain morin ken" and if its so that it is impossible to suppress it so that eyes which ought not see it do not see it then it behooves us to do the following: learn them properly and teach them properly. It may be the bad luck of our present rabbinic leaders of living in the information age, presenting them with challenges that their forbears didn't face, but it cannot be banned away. If the issue is the literal truth of the Rambam's 13 Ikkarim or the question of the attitude of previous generations of chachamim to madda, there is no longer a "masses" who cannot find out the nuanced, more complicated truth. And they can do it on their own terms, on the terms of people who are opponents of Torah and halakhah or on the terms of our own rabbinic leaders, should they choose to recognize "ha'idna." (that was me, not R. Nataf)

This post is getting pretty long, so I strongly urge you, dear reader, to print and read his interesting speech. I more or less left off at the part labeled III, so you can skip the first two parts if you think its too long.

One more interesting quote:
I remember, when Rav Schach was at his most militant, he inevitably censored the people that we thought were doing the most for Judaism - Rabbi Steinsaltz, Nechama Leibowitz, the Lubavitcher Rebbe and the list went on. It reached such Kafkaesque proportions, that being censored seemed to be the best indicator that you were an outstanding Jewish leader. As such, for many in the audience, like myself, such bans have little credibility. If anything, when something gets banned, we immediately run to buy it!
Finally, it ends with the recognition that his message simply will not be heard or dignified by those who it perhaps applies to most. That said, if those who are open to the message want to positively influence Orthodoxy they must put their theoretical affiliation where there mouth is. They must wholeheartedly and passionately live a Torah permeated life, with all their hearts, souls and might. They must show that "an open Orthodoxy can work." Religious authenticity will beget religious influence.

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