Category Archives: ethics

Separating a Person from their work: What do we do with Carlebach’s music?

A provocative and important article from WhoKnowsOneBlog

One of the more obscure ‘secrets’ of the Jewish community involves the legacy of Rabbi Shlomo Carlebach. Anyone who has been to a Friday night prayer service has almost certainly sung some of the many tunes composed by Carlebach. Many have heard stories of his unique ability to bring people closer to Judaism by focusing on the unique, spiritual potential of every individual. What is not as well-known about Carlebach, however, is that he allegedly committed an almost unfathomable number of sexual assaults.

….What do we do with his legacy — specifically his music which has become a staple in the Jewish community? Phrased a bit differently, I think that this is a good case-study of whether or not we can separate a morally deficient person or event from the “objective” work that they produce.

Separating a Person from their work: What do we do with Carlebach’s music?

Homosexuality

In Jewish thought, sexuality has both a positive and negative potential, depending on the context in which it is expressed. The commandment to procreate is the first mitzvah in the Torah. Yet aside from procreation, Judiasm recognizes that sexual need (Yitzra De’arayot) are essential.

 

Traditional understanding of the laws

Many religious believers (Jewish, Christian) are again homosexuality, because the Bible seems to explicitly prohibit homosexuality in the strongest terms. See Leviticus ch. 18, v. 22: Do not mishkevei ‘ishshah (“lie with a male as one lies with a woman”) it is an abomination.”

Understanding the verse in context

The JPS Torah Commentary – Leviticus. Commentary by Dr. Rabbi Baruch Levine.

Leviticus 18:22 – Do not lie with a male as one lies with a woman.

Hebrew mishkevei ‘ishshah means literally “after the manner of lying with a woman” by the introduction of the male member. Male homosexuality is associated with the ancient Canaanites, if we are to judge from biblical literature. Two biblical narratives highlight this theme, one about the men of Sodom in Genesis 19, and the other concerning the fate of the concubine at Gibeah in Judges 19. Although Gibeah was an Israelite town, the story clearly implies that Gibeah’s Israelite residents had descended to the abominable ways of the surrounding Canaanites.

Both of these accounts place the phenomenon of male homosexuality in a particular context: xenophobia. This extreme fear of strangers induces a community to attack visitors. In both of the stories cited here, the form of attack was homosexual assault. It is also thought that the pagan priests, called kedeshim, regularly engaged in homosexual acts (cf. Deut 23:18; I Kings 14:24; and Job 38:14). The term mehir kelev, “the pay of a dog,” mentioned in Deuteronomy 23:18-19, refers to the wages of a male prostitute, who usually serviced men, not women, in ancient societies.

Male homosexuality is called to’evah, “abhorrence, abomination,” a term that occurs frequently in the admonitions of Deuteromony. It occurs no fewer than four times in this concluding section of our chapter. In Genesis 46:34 and Exodus 8:22, it serves to characterize what Egyptians considered abhorrent, principally pastoral pursuits (This was suggested by W. F. Albright in From the Stone Age to Christianity, 423f).

There has been considerable speculation as to why lesbianism is not explicity forbidden in the Torah. In due course, rabbinic interpretation added this prohibition, as well (See The Code of Maimonides: The Book of Holiness (Book V), trans. L. I. Rabinowitz and P. Grossman, 135).

Non-halakhic bigotry towards homosexual women and men

(section to be written)

Nothing shows the hypocrisy and illiteracy shown by some religious believers towards homosexuality better than this photo.

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Conservative Jewish responses

Homosexuality, Human Dignity and halakhah: A Combined responsum for the Committee on Jewish Law and Standards. By Rabbis Elliot N. Dorff, Daniel S. Nevins and Avram I. Reisner

Homosexuality, Human dignity, and Halakhah

Homosexuality, Choice, and Jewish Law: If homosexuality is not chosen, then there is precedent in Jewish law for condoning it. By Rabbi Elliot Dorff, from Matters of Life and Death: A Jewish Approach to Modern Medical Ethics, Jewish Publication Society

Homosexuality, Choice, and Jewish Law:

“Dear David – Homosexual Relationships: A Halakhic Investigation” by Rabbi Simchah Roth.  http://www.bmv.org.il/ab/dd.asp

Orthodox Jewish responses

I. Statement of Principles on the Place of Jews with a Homosexual Orientation in Our Community

Recently a number of Orthodox rabbis and educators have been preparing a statement of principles on the place of our brothers and sisters in our community who have a homosexual orientation. The original draft was prepared by Rabbi Nathaniel Helfgot. It was then commented upon by and revised based on the input from dozens of talmidei chachamim, educators, communal rabbis, mental health professionals and a number of individuals in our community who are homosexual in orientation. Significant revisions were made based upon the input of Rabbi Aryeh Klapper and Rabbi Yitzchak Blau …

Statement of Principles on the Place of Jews with a Homosexual Orientation in Our Community

We, the undersigned Orthodox rabbis, rashei yeshiva, ramim, Jewish educators and communal leaders affirm the following principles with regard to the place of Jews with a homosexual orientation in our community ….

Statement of Principles on the Place of Jews with a Homosexual Orientation in Our Community

II. Hakirah, Metzitzah, and More.
By Marc B. Shapiro, Modern Orthodox rabbi and historian of Judaism

http://seforim.blogspot.com/2013/01/hakirah-metzitzah-and-more.html

Hakirah has performed a valuable service in dealing forthrightly with the matter of homosexuality. Issue no. 13 (2012) contains R. Chaim Rapoport’s “Judaism and Homosexuality: An Alternative Rabbinic View,” which I think is an outstanding presentation of the alternative to what has seemingly become the “official” haredi position in this matter. This “official” position is, in my opinion, so misguided that I would like to say a few words on the topic, since R. Rapoport did not go far enough in his criticism.

To remind readers, Hakirah no. 12 had a discussion on homosexuality with R. Shmuel Kamenetsky. This was followed by the publication of a document signed by many rabbis which follows R. Kamenetsky’s approach. It is available here. (The document is also signed by an assortment of mental health professionals,  rebbitzens and “community organizers”.)

There are so many problems with the approach found in this document (called a “Torah Declaration”), some already noted by R. Rapoport in his response to R. Kamenetsky, that it would take a lengthy piece to go through them all. Let me just call attention to a few points that I don’t think have been made yet. To begin with, while many rabbis have signed this document, including a number that I know personally, I have yet to speak to someone who actually believes what the document says, and this includes the people who have signed it!

Many will regard what I have just said as pretty shocking, in that I have declared that people who signed the document do not believe what it says. Yet I know this to be true, at least with regard to some of the signatories (those that I know personally), and I suspect that other than R. Kamenetsky, it might be that no one who signed the document really believes what it says (and it wouldn’t be the first time that people sign declarations that they really don’t believe in).

Let me explain what I mean. According to the document,

Same-Sex Attractions Can Be Modified And Healed. From a Torah perspective, the question whether homosexual inclinations and behaviors are changeable is extremely relevant. . . . We emphatically reject the notion that a homosexually inclined person cannot overcome his or her inclination and desire. . . . The only viable course of action that is consistent with the Torah is therapy and teshuvah. The therapy consists of reinforcing the natural gender-identity of the individual by helping him or her understand and repair the emotional wounds that led to its disorientation and weakening, thus enabling the resumption and completion of the individual’s emotional development.

The ideas just quoted are the very foundation of the Torah Declaration, and as we see in his Hakirah interview, R. Kamenetsky has been convinced by the dubious proposition that homosexuals can change their sexual orientation. He goes so far as to say that “no one is born gay with an inability to change” (p. 34 [emphasis added]. Not long after the appearance of the interview and the Torah Declaration, the man most prominently identified with the notion that gays can change publicly rejected his earlier viewpoint.)

Whether people can change their sexual orientation is a scientific or psychological issue, no more and no less. The first objectionable point of R. Kamenetsky’s approach is turning this into a matter of theology. Indeed, R. Kamenetsky has created a new dogma in Orthodoxy. According to him, believing that a homosexual can change his orientation is a basic Torah value. The reason for this is stated in the document: “The Torah does not forbid something which is impossible to avoid. Abandoning people to lifelong loneliness and despair by denying all hope of overcoming and healing their same-sex attraction is heartlessly cruel. Such an attitude also violates the biblical prohibition in Vayikra (Leviticus) 19:14 “and you shall not place a stumbling block before the blind.”[1]

There you have it. Human beings are deciding what God can and cannot do and declaring that it is impossible for someone to be created with an inalterable homosexual nature. That this is completely incorrect is acknowledged by none other than the most extreme advocates of reparative therapy. They themselves acknowledge that there is a significant percentage of people who cannot change their orientation. They have never claimed that everyone can change. What the document gives us, therefore, is a theological statement that is rejected by all scientists and psychologists, including the ones who provide the very basis for reparative therapy. That itself should be reason enough to reject it. (On Nov. 29, 2012 the RCA acknowledged “the lack of scientifically rigorous studies that support the effectiveness of therapies to change sexual orientation.” See here.)

 

III. Homosexuality: Another Orthodox Perspective

Rabbi Gil Student, Centrist Orthodox

A modern scientific approach to homosexuality maintains that for most (if not all) homosexuals, change therapy is at best useless and can be harmful. In addition, there is a strong biological and genetic component to the same sex attraction. Psychoanalytical theories of homosexual tendencies due to family conflicts or arrested development have not held up to scientific scrutiny. If this is the case, can halakhah then relate to the homosexual in a different way? Clearly, Rabbi Feinstein’s approach of homosexuality as a willful rebellion against God does not ring true to modern sentiments and while Rabbi Lamm’s view of acting under duress eliminates the punitive aspect, it still maintains that homosexuality is at best a mental illness.

The Noda Bi-Yehudah has suggested that there is a halakhic category called “Shoteh Li-Dvar Echad,” someone mentally incompetent on a single issue. He writes in the context of a responsum on the famous Get of Kleiv case:

A Shoteh Li-Dvar Echad, even if it is not one of the things mentioned in Chagigah, and is not considered a shoteh because he has no signs of those things [mentioned in Chagigah], is not considered a shoteh in general. However, for that thing that disturbs his mind and with which he is obsessed, it is clear that for everything related to that thing he is considered a shoteh. Therefore, mitzvoth related to that thing are not relevant to him, even though for all other mitzvoth he is considered a wise man [and obligated in them] [6]

Rabbi Moshe Farbenstein explains, “the Noda Bi-Yehudah has originated a new idea, and writes that a Shoteh Li-Dvar Echad is exempt from individual mitzvoth that relate to his specific condition and is obligated in all other mitzvoth.” [7]

Can one extend this idea of the Noda Bi-Yehudah to other areas which are biologically driven but not necessarily considered mental illness (and just to be absolutely clear I am in no way suggesting that homosexuality is a mental illness)?

If the basis of the Noda Bi-Yehudah is that someone who cannot prevent his behavior in a specific area is not obligated in mitzvoth related to that area, can one then apply that principle to biologically driven homosexuality? I am aware that this is an enormous intellectual leap but it might play a role in relating halakhically to any rabbinically prohibited acts that might occur in private between homosexuals.
Can one perhaps use this approach (or others along these lines) in adapting an inclusivist Orthodox approach towards homosexuality?

http://www.torahmusings.com/2013/05/homosexuality-another-orthodox-perspective/

Mamzer

A mamzer (ממזר‎‎) is a person born from certain relationships forbidden by Jewish law. The common English translation is “bastard”, which has some similarities to a mamzer, but it is not the same as “illegitimacy.” Jewish law does not consider a child illegitimate if the mother happens to have been unmarried. As such, to avoid confusion we do not use “bastard” as a translation. We simply use the Hebrew word.

A mamzer is a person born out of adultery by a married Jewish woman and a Jewish man who is not her husband, or a person born out of incest.

Mamzer status is not synonymous with illegitimacy, since it does not include children whose mothers were unmarried.

Biblical origin

A mamzer (ממזר‎‎) shall not enter into the congregation of the LORD; even to his tenth generation shall he not enter into the congregation of the LORD.
— Deuteronomy 23:2

Understanding of this term in rabbinical Judaism

A mamzer is the offspring of a biblically forbidden union (Yevamot 4, Mishnah 13: “כל שחיבין עליו כרת בידי שמים”. – Circa 200 CE

According to the Shulchan Aruch, a mamzer can only be produced by two Jews (Shulchan Aruch, “Even haEzer” 4:19). Circa 1560’s CE

A child born of a married woman’s adultery is a mamzer. The child of a single woman and a man she could lawfully have married is not a mamzer (Shulchan Aruch E. H. 4.) It is irrelevant if the man is married or not.

If one of the parents is not Jewish then the child can’t be a mamzer.

In order to make certain that almost no child would have the status of mamzer, the rabbis canonized legal fictions that prevented the term from being used in many cases, for instance:

A child born within 12 months of a woman’s most recent meeting with her husband is presumed to be legitimate (Shulkhan Arukh 4:14)

Any child born to a married woman, even if she is known to have been unfaithful, is nonetheless halakhically presumed to be her husband’s (Shulchan Aruch, “Even haEzer” 4:15)

In the last century, much of the Orthodox Jewish community has made significant, and some would say harmful, changes to Jewish law on this issue. People being educated in Orthodox yeshivas are no longer even taught the wide array of traditional views on the subject, and students graduating even as rabbis are unaware that halakha has a “Don’t ask, Don’t tell” policy on this subject: It is literally forbidden to ask if someone is a mamzer.

The concept of mamzerim was discussed in the Rabin Mishna Study Group: Daily Mishnah Study in the climate of Masorti (Conservative) Judaism. Rabin Mishnah Study Group, by Rabbi Simchah Roth.

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Mamzer: A person who was born of parents who were prohibited from marrying each other by Torah law. For this reason translations such as “bastard” and “illegitimate” are misleading. In western law a bastard is a person whose parents did not happen to be married at the time of his birth. A Mamzer [or Mamzeret] is a person whose parents were prohibited by Torah law from marrying at the time of her conception; the parents could not have married even if they had wanted to. The main cause of mamzerut is adultery by the woman.

The non-adulterous union of a Kohen with a woman otherwise prohibited to him, does not cause mamzerut. (Many Conservative rabbis today consider the restrictions on the marriageability of a Kohen to be obsolete, and they have substantial halakhic reasons to support their opinion. In any case, this has nothing to do with mamzerut.)

Halakhically speaking, the ‘mamzer’ suffers no disabilities except one: a ‘mamzer’ can only marry a ‘mamzeret’ (and vice-versa) and their descendents will be ‘mamzerim’ in perpetuum! This is such a terrible situation for a human being to find himself in that not only Conservative rabbis, but all decent-minded rabbis, make every effort to obviate the situation. This cannot be done, halakhically, by erasing the status as if it did not exist; the best approach has always been to find some valid reason why the person is not, in fact, a ‘mamzer’ as at first thought.

Halakhic solutions which get rid of the problem:

Solution #1

Rabbi Tarfon says that Mamzerim can become rehabilitated. How? If a Mamzer marries a Canaanite servant-woman [shifchah kena’anit] the offspring will be a Canaanite servant [Eved kena’ani]. If he grants the servant manumission his son has become a free man. Rabbi Eliezer says that he is but a Canaanite servant who is also a mamzer! (His suggestion was feasible only in his time.
Rabbi Tarfon says that a mamzer can become rehabilitated. The Hebrew word that I have translated thus is “litaher”, which really means “can become purified” or “purged” – of
the taint of mamzerut. We learned at the end of the previous mishnah that the offspring of both the Canaanite servant and the mamzer take their status from the mother.
[Unlike Jewish servants, under Torah law non-Jews held in service to Jews are partially “Jewish” and can regain their freedom only by manumission. The status of the Eved Kena’ani and the Shifchah Kena’anit was amply discussed on RMSG between 16th November and 5th December.]

Rabbi Tarfon’s idea is that if a free Jewish man who is also a mamzer takes a gentile woman as his Canaanite servant and has a child by her, the child is automatically also a Canaanite servant. The father, who is also the master, has the right to grant his slave-son his freedom at any time. The son, upon being manumitted, becomes a fully-fledged Jew and can marry any Jewish woman he chooses! I suppose that in Rabbi Tarfon’s time this was ‘neat’. I wonder whether anyone noticed that it only solved half the problem: a mamzeret could not ‘pull the same stunt’ by marrying an Eved Kena’ani, since her offspring would take her status. Rabbi Tarfon’s elder contemporary, Rabbi Eliezer, denies the feasibility of the halakhic ‘trick’.

The Gemara [Kiddushin 69a] discusses whether Rabbi Tarfon’s proposal is acceptable ‘a priori’ – as a valid halakhic procedure in all cases. The final conclusion is that this is the case and that the halakhah is according to Rabbi Tarfon (and not according to Rabbi Eliezer).

Something to think about: All lines of descent from antiquity are suspect…Given the long tumultuous history of the Jews, there were many periods when records of personal status were not kept accurately, and certainly not universally from community to community. People of mamzer ancestry definitely married within the general Jewish community without the community realizing it.

In fact, in Temple times no Kohen was permitted to officiate in the Bet Mikdash unless he had a certified pedigree lodged in the Temple secretariat. All others who claimed to be kohanim (let’s say because their father told them so) but could not bring authorized proof of their status, were still considered to be priests, but could not officiate as such. This is the status of ALL kohanim today.

Question: Hmm, might this not this mean that we are all mamzerim?

No! In Western jurisprudence there is a basic ‘presumption’ – that all people are innocent of wrongdoing, and even those accused of a crime benefit from this presumption until it has been conclusively proven to be untenable in a duly constituted court of law. This is what we call the ‘presumption of innocence’.

In halakhah there is a similar presumption as regards personal status: “kol Yehudi be-chezkat kasher” – every Jew is presumed to be of unblemished pedigree unless there are solid and factual reasons for denying him or her the benefit of that presumption.

Cf. Rambam Issurei Biah 19:17; Tur Even ha-Ezer 2, Bet Yossef Even ha-Eezer 2:2:a, Shulchan Aruk ibid.

Solution #2

Another “cure” for mamzerut is “assimilation” – and it is the obvious solution for our own times. This matter is deliberated in the Gemara, Talmud Bavli, Kiddushin 71a, as part of the discussion on the first mishnah of Chapter Four. The Jews of Babylon were of the opinion that the Jews in Eretz-Israel were not as meticulous as they should have been concerning the ‘kashrut’ of families suspected of not having a pure Jewish pedigree. Rabbi Yochanan, probably the most influential and most prestigious of the Amoraim of Eretz-Israel (he died around the end of the third century C.E.) virtually admits the accusation … “but what can I do about such a family, seeing that some of the most illustrious people of our age have assimilated into it?” The Gemara explains that Rabbi Yochanan is of the opinion that “once a family [of impure pedigree] has become assimilated [into the fabric of Jewish society] – it is assimilated [and accepted]”.

This opinion became accepted halakhah! Rambam [Maimonides] codifies as follows:

“If an impure element mixes in the pedigree of a family, and this fact is not generally known, ‘once it has assimilated, it has assimilated. Anyone who knows of this is *forbidden* to publish the information, but must let the family continue in its presumption of unblemished pedigree.”

Solution #3

We must also recall the famous dictum of Rabbi Yehoshu’a ben Levi [Kiddushin 71a, top] that “money purifies mamzerim” [“kessef metaher mamzerim”].

Rashi interprets this extraordinary statement as follows: when mamzerim become affluent, other people cease to be concerned with the blemish on their pedigree! Another interpretation from the Middle Ages links the Hebrew word “kessef” with the same root in Aramaic which also means “to blanch with shame”: if mamzerim are ashamed of their status and ‘keep it quiet’ they will soon assimilate and the status will disappear.

Solution #4

Most rabbis would keep no records of presumed mamzerut, would do their best to prove that the person was not a mamzer (as did Goren), and the mamzer would do well to move to an area where he/she was not known, so that they could eventually assimilate into the general community, as we have previously discussed. If the matter is not known it will not be a problem.

The possibilities that exist for modern mamzerim who are _aware_ of their halakhic status are:

(1) to refrain from procreation altogether so as to prevent this “curse” falling upon a new generation;

(2) to brazenly ignore the halakhah altogether;

(3) to procreate with a life-partner “without benefit of clergy” (i.e. without Chuppah and Kiddushin);

(4) to reside in an area where their relative anonymity can be maintained and their halakhic status is unknown, to choose a life-partner and to procreate with that life-partner after Chuppah and Kiddushin have been performed.

I do not believe that as Conservative rabbis we have the power to demand option #(1), so I do not see the point in discussing its ethical aspects. We cannot condone option #(2). So we have to choose between options (3) and (4). I know which option I would prefer. [ #4 ]

Related articles

Morality, Halakha and the Jewish Tradition

Ethical kashrut

Launched by Uri L’Tzedek, the Tav HaYosher is an initiative to bring workers, restaurant owners and community members together to create just workplaces in kosher restaurants.
The Shamayim V’Aretz Institute is a Jewish animal welfare organization that educates leaders, trains advocates, and leads campaigns for the ethical treatment of animals.
Article – “A call for transparency in the kashrut industry.” The Jewish community must grapple with the fact that the vast majority of kosher animal products are produced within the cruel factory farm industry.
The Magen Tzedek Commission has developed a food certification program that combines the rabbinic tradition of Torah with Jewish values of social justice, assuring consumers and retailers that kosher food products have been produced in keeping with exemplary Jewish ethics in the area of labor concerns, animal welfare, environmental impact, consumer issues and corporate integrity. From Conservative Judaism’s Rabbinical Assembly.
What Is Next for Kosher Living? Modern Orthodox group takes up one aspect of eco-Kashrut.

How should we treat each other?

There are many halakhot (laws), minhagim (customs) and aggadot (non-legal points statements) that view gentiles in a negative light.

Looking at Judaism to the historical reality in which it developed, this is understandable. In the Bible, the Israelites were the only monotheists, and were surrounded by people who hated them. Israelites suffered near-genocidal wars against them. As such, the Bible’s polemics against pagans are completely understandable. There are no Biblical racist attacks against all non-Jews in general, God is clearly described as a God of all people, but polemics against pagans are clearly there.

This carries over into the classic works of rabbinic Judaism: the Mishnah, the two Talmuds, and the various Midrash compilations. The rabbis writing during this era (200 BCE to 800 CE) were surrounded by people who hated them. This includes what we see in the writings of the Church Fathers : anti-Semitic diatribes that are so specific and violent, they have incited followers to murder Jews in the name of the Church for nearly two millennia. As such, it is not surprising that classical rabbinic literature has polemics against not only pagans, but against Christians, – nearly all of whom, at the time followed the teachings of the Church Fathers. Jews knew of no gentile society in which we were treated as equals, as human beings.

During the Golden Age of Jewish life on the Iberian peninsula (700 CE to 1100 CE) , while not ideal, there were some sustained periods of tolerance and intellectual respect by both Christians and Muslims towards Jews. In this age and region, Jews, Christians and Muslims occasionally worked, traded and intellectually sparred together in a way not to be seen again until The Enlightenment (18th century Europe and America)

Since the The Enlightenment, Jews have lived more often in communities where non-Jews treated Jews as equals, as human beings. Modern liberals do need to “check their privilege”, as the saying goes, because even then, Europe teetered from there towards the Holocaust, and large pockets of anti-Semitism are still flaming up across Europe, America, and the middle-east. The majority of non-Jews still do not treat Jewish people as equal, even to the point of denying Jewish people the right to exist as a free people, within safe borders, in their indigenous homeland, the land of Israel (yes, anti-Zionism is anti-Semitism.)

So where does that leave us today? If you are traditionally observant, the codes of Jewish law do not always have us treat non-Jewish people with respect. There are aggadot, non-legal midrashim, which view non-Jewish people as having essentially no purpose, other than the value they have of potentially serving Jewish people in some way. In historical context, this view is less dangerous and violent than the 2,000 years of gentile calls for Jewish submission, conversion or extermination! Yet it certainly is inconsistent with today’s liberal views of equality (at least, among the few people today who actually are tolerant to all, including to Jewish people.)

There is little that we can do to change the behavior of those who treat us disrespectfully. But we can change our interpretations of these classical rabbinic texts, so that at least we can say : being a light unto the nations means treating and talking about others should be done in the same way that we’d have others treat us. This is the golden rule of Rabbi Hillel.

Rabbi Dr. Nathan Lopes Cardozo, has written articles (How Halakha Must Transcend Itself) on this topic. He grew up in an environment in which non-Jewish people treated Jews as equals, actually married Jews, and most amazingly, in which people who were not halakhically Jewish even considered themselves to be in some way part of the Jewish people! But upon becoming strictly religious, perhaps ultra-Orthodox, the young Nathan Cardozo, found that he had to treat non-Jewish people in a way that hurt their feelings, a way that only caused people to move apart, instead of together, and which exposed some bigoted feelings among some in the Jewish community This episode had a great effect on the progressive Orthodox rabbi that Nathan Cardozo would later become.

Historical context allows us to understand why the ultra-Orthodox take so seriously the aggadot that describe gentiles in a dismissive light. But at the same time, two wrongs do not make a right. Many of us live in a world where non-Jewish people treat us as equals, and so it is incumbent upon us to interpret our own traditions in a way that speaks to the common equality and decency of all humanity.

As such, I would like to recommend reading this piece by Rabbi Cardozo.

I should point out that his piece is aimed at an Orthodox Jewish audience; the changes in teaching and practice that he is proposing have, in practice, largely already been adopted by those in the Conservative & Masorti Jewish communities (see for example the works of Rabbi Elliot N. Dorff, and the responsa of the Committee on Jewish Law and Standards)

How Halakha Must Transcend Itself (Part 1 of 3)

The Punishment of Amalek in Jewish Tradition: Coping with the Moral Problem

In “The Punishment of Amalek in Jewish Tradition: Coping with the Moral Problem”, Professor Avi Sagi deals with the extensive Jewish literature on this subject. The article appeared in the Harvard Theological Review Vol.87, No.3 (1994) p.323-46. Avi Sagi is associated with Bar Ilan University and the Shalom Hartman Institute, Jerusalem, Israel.

Avi Sagi, Shalom Hartman Institute

A summary follows:

Gustave Dore

Gustave Dore

No less an authoritative text than Talmud Bavli, in Yoma 22b, notes that punishing children for the sins of their parents is wrong. In this gemara, on the basis of a ritual pointing to the sanctity of an individual life in biblical tradition, the Talmud derives a fortiori that inflicting grievous harm on many human beings must certainly be forbidden. Some might point out that there is another place in the Talmud, where the Talmud does seem to obligate Jews to kill Amalekites. Sanhedrin 20b states that the obligation to destroy Amalek os one of the three duties incumbent on Israel after conquering the land of Canaan. However, there are a number of fatal problems for this view:

(A) Not every statement in the Talmud is meant to be taken literally.

(B) Not every statement in the Talmud is codified as law. In fact, most statements in the Talmud are not halakha.

(C) This part of the Talmud contradicts Yoma 22b.

(D) Sanhedrin 20b is further contradicted by another place in the Talmud, Sanhedrin 96b. The Talmud notes that Haman is a descendent of Amalek. (Whether this is a historical fact or not is irrelevant to questions of Jewish law). And contrary to Sanhedrin 20b, it is clear that Jews are not obligated to “cut off the seed of Amalek”. Rather, Sanhedrin 96b, reads “The descendants of Haman studied Torah in Bnei Brak [and they included Rabbi Samuel ben Shilath]! So the Talmud flat out states that we know who some of the Amalekite descendants are, yet we not only not kill them, we accept them as converts, and rabbis! [Some editions of the Talmud have the section in parenthesis about R. Samuel b. Shilath, some do not]
Several nineteenth century Orthodox halakhists assumed that despite the enormous problems that exist with this imperative, one should theoretically consider Exodus 17:14 as a literal commandment to wipe out Amalekites, thus precluding their acceptance as converts. However, in their writings they are troubled by the unethical implications of this, so they creatively pasken that this rule is one that can never be carried out. They relied on a principle dating from Tannaitic times in order to justify their innovation. For instance, Rabbi Hayim Falaggi (1788-1896) wrote that descendants of Amalek were not to be killed. In fact, Amalekites could convert to Judaism, because we can rely on the maxim that in ancient times, Senaherib confused the lineage of many nations. [Eynei Kol Hai, 73, on Sanhedrin 96b]

This approach was also supported by other halakhists. Yosef ben Moshe Babad (1800-1875) explicitly stated that we are not commanded any longer to blot out Amalek, for the same reasons as stated by Rabbi Falaggi. [Minhat Hinukh, 2.213, commandment 604]. Other Orthodox rabbis supported this view as well, for instance Haim Hirschensohn, in Malki ba-Kodesh 1.33, and Avraham Karelitz in his Hazon Ish al ha-Rambam, 842]

Avraham Bornstein (1839-1910), one of the best known Orthodox halakhists of his generation, writes:

I believe they teach that the seven nations have themselves sinner and committed all iniquities and become liable to die. And we would think that this means that repentance will not help…. But Amalek is punished for the sins of their fathers. Yet it is also written [in the Torah] ‘Fathers shall not be put to death for their children, neither shall children be put to death for their fathers.’ “…If they have repented and accepted the seven Noachide commandments, this means that they do not persist in their ancestor’s deeds, and should not be punished for their iniquities.
[Avnei Netzer, part 1: Orah Hayim, 2.508]
The Netzer goes further. He not only states that Jews are forbidden from harming descendants of Amalek, but that even the gentile nations of the world are similarly forbidden from doing so. [Ibid, Unnumbered footnote to 2.508]

Rabbi Moshe Amiel (1883-1946), ruled that we should not understand Amalek as being a particular ethnic group. Rather, he viewed Amalek as the symbol of armed might. In Rabbi Amiel’s view, a permanent war prevails between the sword and the book, and “one can only be built on the ruins of the other”. [Derashot el Ami, 3.132, 3 volume set, Tel-Aviv, 1964]

Rabbi Amiel directly confronts the moral problem that exists from the excessive view, which states that descendants of Amalek must die, which of course is a contradiction to the Torah’s injunction that a child may not be punished for the sins of its parents. Rabbi Amiel concludes that Jews must not harm Amalekites, and writes “the view of Judaism is that the prosecution cannot turn into the defense, evil cannot be extirpated by evil means, terror cannot be eliminated from the world through the use of counter-terror”. [Ibid, 3.132] Rather, Jews wage “war” against Amalek with the book – “Write this for a memorial in a Book” Exodus 17:14. Thus, Rabbi Amiel states that the blotting out of Amalek is not meant as physical destruction.

In Talmud Bavli, Berachot 10a, Beruriah states that it is only the sins of Amalek that must be removed, not Amalekites themselves. No less an Orthodox authority than Rabbi Amiel relies on this as a source for normative halakha. He quotes this to show that the obligation to blot out the memory of Amalek should not be understood literally:

Because it is written [in Psalms 104:35] “let sins be consumed out of the Earth, and not “let the sinners”. And as for Amalek too, the Torah stresses mainly the
“remembrance of Amalek”, when Amalek turns into a memory, a culture, a lofty ideal, a sublime notion….It is this remembrance of Amalek that we are commanded to blot out. [Derashot el Ami, 143]

Rabbi Samson Raphael Hirsch (1808-1880), the founder of Neo-Orthodoxy, progenitor of Modern and Centrist Orthodoxy, holds a view similar to that of Rabbi Amiel. Hirsch notes that Jews do not kill Amalekites, rather Jews only remove the remembrance and glory that Amalek desired. He elaborates on this in his exegesis of the verse ” ‘I will utterly blot out the remembrance of Amalek’ – not Amalek, but rather its remembrance and glory.” [Commentary on Exodus, 171, Exodus 17:14]

SomeOrthodox authorities claim that no Amalekite can ever convert to Judaism. [For instance, Avraham Danzig, Hayei Adam, Hilkhot Megillah, 155a] They state this as a plain fact, so plain that they see no need to present any proof for their claim. However it is hard to understand why they have done so, as the Mishneh Torah is quite clear on this issue: Amalekites may indeed convert to Judaism. [details below].

Maimonides approach to this subject provides a broad and comprehensive approach. He states that “all heathens, without exception, once they become converts…are regarded as Israelites in every respect…and they may enter the congregation of the Lord immediately…excepting the four nations”.

[Mishneh Torah, Laws concerning forbidden intercourse 12.17, in “The Code of Maimonides”, volume 5, The Book of Holiness, Yale Judaica Series]

However, this in only a general guideline: Maimonides then cites the Tannaitic principle of commingled nations, and rules that members of even the four nations may enter the congregation of the Lord, i.e. become Jews. [Ibid. 12.15] When specifically considering Amalekites, he notes that neither their conversion nor inclusion in the community poses any problem. Maimonides approach regarding 2 Samuel 1:13-16 and the slaying of the Amalekite stranger differs from that adopted in the Mekhilta (a midrash collection):

It is a scriptural decree that the court shall not put a man to death or flog him on his own admission [of guilt]. This is done only on the evidence of two witnesses. It is true that Joshua condemned Achan to death on the latter’s admission, and that David ordered the execution of the Amalekite stranger on the latter’s admission. But those were emergency cases, or the death sentences pronounced in those instances were prescribed by the state law.
[The Book of Judges, Laws concerning Sanhedrin 18.6]
Maimonides thus assumes that the only grounds for slaying the stranger were the fact that it was either an immediate emergency, or a penalty prescribed by state law, and not that he was an Amalekite. Whereas the Mekhilta assumes that slaying the Amalekite stranger complies with the biblical injunction to destroy Amalek, Maimonides assumed this killing, unless justified in terms of another legitimate principle, would be unacceptable.

How then did Maimonides understand the injunction to blot out the memory of Amalek? He took a different and severely restricted view of this phrase. An analysis of several other of his rulings allows us to understand the extent of his restrictions. Maimonides writes “No war is declared against any nation before peace offers are made to it. This obtains both in an optional war and a war for a religious cause, as it is said: ‘When you draw near to a city to fight against it, then proclaim peace unto it’. (Deut.20:10) If the inhabitants make peace and accept the seven [Noachide] commandments enjoined upon the descendants of Noah, none of them is slain, but they become tributary.
[Mishneh Torah, The Book of Judges, Laws concerning Kings and Wars 6.1]

Before declaring an optional war – one not commanded by the Torah – as well as before declaring a war for a religious cause, such as “the war against the seven nations, and against Amalek”, a peace offer must be made [Ibid. 5.1] This peace offer should propose to renounce war if the enemy agrees to three conditions (1) to accept the Noachide commandments (2) pay tribute, and (3) submit to servitude. [Ibid. 6.1]

The requirement that a peace offer be made even prior to waging a war for a religious cause would appear to deviate from the biblical command to blot out the memory of Amalek. Deuteronomy 20:10, which Maimonides quoted, concerns only optional wars, as it is made clear further on: “Thus shalt thou do to all the cities which are very far off from thee, which are not of the cities of these nations. But of the cities of these peoples, which the Lord thy God gives thee for an inheritance, thou shalt save alive nothing that breathes” (Deut. 20:15,16). The Sifre commentary on this explicitly states “When you draw nigh unto a city – Scripture speaks here of a non-obligatory war”.

In fact, Maimonides could well have noted even more biblical support. Among other examples, Deut. 2:24-26 suggests that a declaration of war must be preceded by a peace offer, and Moses offers peace and doesn’t slay Sihon King of the Amorites, although Sihon is a king of a nation condemned to destruction. In accordance with such biblical examples, Talmud Yerushalmi notes that before embarking on the conquest of the land of Canaan, Joshua offered the Canaanite nations three options: to make peace, leave the land, or go to war. [Yerushalmi Shevi’it 6.5; also see Nachmanides commentary on the Torah to Deut. 20:10]

All these biblical and Talmudic sources can be relied upon to support the lenient view, but these apparently only refer to the Canaanite nations. Maimonides understanding of the situation was innovative: Maimonides explicitly includes Amalek in the lenient policy, equating them with the seven nations.

“In a war waged against the seven nations, or against Amalek, if they refuse to accept the terms of peace, none of them is spared, as it is said ‘But of the cities of these peoples…you shall save nothing alive that breathes’. So too with respect to Amalek, it is said ‘blot out the remembrance of Amalek’ “. [Laws concerning Kings and Wars 6.4]

Relying in rabbinic exegesis which made the destruction of the seven nations contingent upon their behavior, Maimonides concluded that the command to blot out Amalek should also be considered contingent, and restricted to specific circumstances in which Amalek refused to accept a peace offer.

Why does Maimonides do all this? Because he understood that Judaism and Torah stand for the highest expression on ethics, as he writes “There is no vengeance in the commandments of the Torah, but compassion, mercy and peace in the world.” [Laws concerning the Sabbath 2.3]

As Avi Sagy notes: “Maimonides moral interpretation is in accordance with the spirit of the Torah and its fundamental premises regarding human justice, premises that should come into play in our behavior toward all human beings. It is on this basis that Maimonides radically restricted the ruling to destroy Amalek, “seeing neither obligation (nor merit) in eradicating or harming this nation without a moral justification

[Gerald J. Blidstein, Ekronot Mediniyim be-Mishnat ha-Rambam (Ramat Gan, Bar Ilan Univ. Press, 1983), p.223]