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Shabbat Shalom: Parshat Shoftim
Deuteronomy 16:18-21:9
By Shlomo Riskin
Efrat, Israel – “Judges and officers shall you provide in all your gates…and they shall judge the nation in righteous judgment” (Deut 16:18)
Does Judaism, even Orthodox Judaism, ascribe to pluralism?
Judaism is first and foremost a judiciary system, in which “the path” or the law (Halakha) is studied and debated not only with great skill and dexterity but also with religious intensity and passion. After all, the great corpus of Jewish law and theology – compiled during these past 4000 years and including the Bible, the Talmud, the Commentaries, the Codes, the Liturgies, and the Responsa up to the very last moment – are considered to be the revealed word of G-d in His ongoing dialogue with the religio – legal leadership of the Jews in their joint quest to establish a “sacred nation, a light unto the nations of the world.”
The form of this fascinating literature – or virtual library – is that of open and no-holds-barred debate: multiple positions concerning the meaning of a Biblical verse, concerning the logic of what can be deduced by reason in order to properly extrapolate a solution for a novel situation, and even concerning which fundamental beliefs are cardinal for the faithful Jew.
The infrastructure of this avidly intellectual pursuit is a profound pluralism, a respect not only for radically different positions but also for the various individuals professing those divergent views; not only does Talmudic debate reject the “law of the excluded middle: - if A is right then B is wrong, the tyranny of the “or” – but it lionizes the truth of dialectic, that A and B must be taken together since “these and those are the words of the living G-d”, with “and” serving as the preferred substitute for “or”.
And the Goal of this intellectual culture is to create a super-structure of open-minded, dedicated and fervently pious judges and lawyers, teachers and students, masters and disciples, who attempt to direct their people towards a committed life of Divine service which includes every aspect of our human enterprise.
If you will join me in the analysis of a famous case-study in the application of the law to a difficult life situation, you will understand the significance of what has been written heretofore. But first, the Mishnah (compiled between 100 BCE and 200 CE, but we believe containing traditions which hark back to Sinai) which sets the stage for Jewish pluralism:
“Why (does our legal tradition) record the minority opinion together with the majority opinion since the law is decided in accordance with the majority? It is because a (later) Judicial Court can decide the issue in accordance with the minority opinion, and reverse the earlier majority opinion, despite the principle that no court can overturn a previous Court’s ruling unless it is greater in wisdom and in number…” (Mishnah Eduyot 1, 5 in accordance with the interpretation of the Raavad). In other words, a latter court can overrule an earlier and more authoritative Court’s decision as long as it has a minority opinion to “hang its kippah on”
This means that a minority opinion in Jewish law is never nullified; indeed, the overwhelming number of religio-legal decisors do activate – and decide in accordance with – a minority opinion in cases of exigency (Rav Moshe Feinstein, Iggarot Moshe, Orah Haim 1, Siman 51), and some do so not only in matters of Rabbinic law but even in matters of Biblical law (Ramo, Shulhan Arukh Even HaEzer 157).
Now to our case study. Rav Moshe Isserless served as the Chief Rav of Krakow, Poland during the sixteenth century. He was considered one of the outstanding experts and judges in Jewish law, and his religio-legal decisions are accepted as authoritative for Ashkenazic Jewry until this very day; he is the author of “the tablecloth” (Mappah) to the “Set Table” Code of Jewish Law which was authored by Rav Yosef Karo, Sefardic authority of sixteenth century Safed. One of Rav Moshe Isserles’ responsa (no. 125) opens, “I hear behind me a great rushing noise,” the roar of an angry community who questioned – and even were thinking of deposing – him from his rabbinical position because he had performed a wedding on Friday night!
It must be remembered that the Mishnah (Betzah 5, 2:20a) forbids conducting a wedding ceremony on the Sabbath, which is explained in the subsequent discussion of the gemara “lest you come to write out the Ketuba marriage document,” without which the couple cannot live together as man and wife. Nevertheless, Rav Moshe Isserles performed such a ceremony.
He went on to explain, in a rare introduction to his responsum, that the brides parents had promised a considerable dowry to the groom’s parents, but that the bride’s father had died shortly before the wedding. No dowry money (or, in this actual case only half of the promised sum) meant that the wedding had been called off at the last moment. Ten-thirty Friday evening an aunt of the groom had convinced her nephew to get married to the bride despite his parent’s objections; when they arrived at the Rabbi’s home at that hour, and since the Rabbi understood that the groom could easily change his mind were there to be a delay, the Ramo immediately performed the ceremony; it was only an immediate wedding which would save the bride from the shame that would most assuredly have doomed her to spinsterhood.
Rav Moshe Isserles goes on his responsum to cite the minority view of the Rabbenu Tam (Beitzah ad loc) that the Sabbath wedding ceremony prohibition only applied to a couple who already had children from a prior marriage, and even the Rabbenu Tam himself would only permit a Sabbath marriage “under extreme duress” (bedohak gadol). But apparently the Ramo felt that this minority opinion was sufficient to rely on in the case of the couple who stood before him!
I know of no more ringing declaration of pluralism than the words of the Talmud themselves: “These and those are the words of the living G-d, and the law is like the Academy of Hillel. But if these and those are the words of the living G-d, why is the law like the Academy of Hillel? Because they are sweet-tempered, modest and accepting of rebuke; moreover, when asked the law, they first present the opposing opinion of the Academy of Shammai and then present their own view” (B.T. Rosh Hashanah 14).
Shabbat Shalom
Shlomo Riskin
Chancellor Ohr Torah Stone
Chief Rabbi - Efrat Israel
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