(2016/5776)

Introduction

In last week’s issue, we began our discussion on the Halachic and moral issues associated with Mamzeirut. In this issue, we present numerous approaches to dealing with the seeming immoral nature of Mamzeirut.

Conflicts between a Divine Command and Our Perception of Morality

Being that Rav Dr. Wurzburger is a staunch believer in the divine authorship of the Torah, it is hardly surprising that he asserts that when our ethical intuitions conflict with the Torah, the Torah enjoys priority (Ethics of Responsibility, page 29):

It would be the height of arrogance to challenge the validity of an explicit divine imperative on the ground that it runs counter to our own ethical intuitions. Indeed, to permit humanistic considerations to override divinely revealed commandments, amounts to a desecration of the Divine Name. In the event of conflict with explicit halakhic requirements, all ethical, aesthetic, intellectual or prudential considerations must be set aside.

Moreover, Rav Wurzburger (pages 19-20) sets forth a profoundly important point:

Judaism has no need for the Kierkegaardian doctrine of “the suspension of the ethical” which demands that whenever moral imperatives clash with religious commandments, we must subordinate our ethical concerns to the higher authority of the religious. Once God is defined as the supreme moral authority, obedience to divine imperatives emerges as the highest ethical [Rav Wurzburger’s emphasis] duty. Thus, Abraham’s readiness to sacrifice Isaac cannot be invoked as a paradigm of the “suspension of the ethical.” On the contrary, it was a perfectly moral [Rav Wurzburger’s emphasis] act…..Compliance with the demands of the highest possible moral authority, which combines omnibenevolence and omniscience, is bound to lead to the best possible consequences, even in situations where divine imperatives clash with our ordinary ethical rules that generally bring about the greatest good. Obedience to an omniscient and omnibenevolent God must, by definition, yield the greatest possible good, even if our limited intellectual capacities prevent us from seeing how and why certain divine imperatives engender the most desirable consequences.

The issue of Mamzeirut is one such situation where our moral intuitions conflict with the divine command. We must yield to the divine command in this instant, as Avraham Avinu did at the Akeidah, knowing that all Hashem does is for our good (“Kol Mai DeAvid Rachmana LeTav Avid,” Berachot 60b).

Minimizing the Gap between the Divine Command and Our Moral Intuitions

Although our moral intuitions do not enjoy veto power over Halachah (an expression of the divine command), they do have a vote. Rav Wurzburger explains (page 29):

Conscience…. functions as a hermeneutical principle to help ascertain the meaning and range of the applicability of laws when their formulations contain an element of ambiguity. Since the Torah is characterized in the Book of Proverbs (3:17) as “its ways are the ways of pleasantness and all its paths are peace,” we should assume that, in case of doubt concerning the meaning of a divine ordinance, the interpretation that is in accordance with our moral sensibilities was intended by the divine Legislator.

Rav Wurzburger cites the Gemara (Sukkah 32b) as a source for this important principle. This Gemara supports the traditional identification of “VaAnaf Eitz Avot” (VaYikra 23:40) with Hadasim:

Our Rabbis taught, [Soncino translation] "Branches of a thick tree" [means the kind of tree] whose leaves completely cover its stem. Now what [tree] is this? You must say that it is the myrtle (Hadas). But perhaps it is the olive? It must be wreathed, but [the olive] is not. But perhaps it is the plane tree? The leaves must cover its stem, which is not the case [with the plane tree]. But perhaps it is the oleander (a bitter plant with stinging leaves)? Abayei said, “Its ways are the ways of pleasantness" and [with the oleander] this is not the case.

The Gemara rejects the possibility of the taking of bitter plants with stinging leaves based on a moral consideration. The Gemara never would have rejected the use of this plant had the Torah explicitly commanded us to take the oleander; however, since there the Torah uses the ambiguous phrase, “branches of a thick tree,” we presume that Hashem’s intention was not for us to take a noxious plant.

We will endeavor to show that Posekim very much apply this hermeneutical tool when adjudicating situations of Mamzeirut. Whenever possible, in ambiguous situations, Posekim limit the scope of Mamzeirut, adopting an approach (in Rav Wurzberger’s words) “in accordance with our moral sensibilities” and assuming that this was therefore intended by the divine Legislator.

Clarifying the Minimization of the Gap between Moral Intuition and Divine Command

We must clarify, however, that Chazal and Posekim do not indiscriminately interpret the Torah based on our moral intuitions. The hermeneutical tool we speak of applies only to moral intuitions that are rooted in the values articulated in the Torah and Chazal’s writings. For example, the moral intuition motivating us to not punish a child for the sin of the parents and brand him with the stigma of Mamzeirut is rooted in Torah thought, as expressed in the aforementioned Midrash and the Pasuk, “UVanim Lo Yumetu Al Avot,” “children should not die due to [the sins of] their parents” (Devarim 24:16)[1].

The Torah’s respect for moral intuition is expressed by the Torah’s command of “And you shall do the good and the right in the eyes of Hashem” (Devarim 6:18; Rashi and Ramban ad loc.). How are we to know what the right and the good are? In response to this question, the Torah writes, “in the eyes of Hashem,” to explain that moral intuitions must emerge from values articulated in the Torah that teach what is good and right in the eyes of God. As Rav Wurzburger explains (page 28):

The Torah validates only the intuitions of a moral conscience formed within the matrix of Torah teaching. To be sure, such a conception of the authority of conscience differs radically from the notion that conscience can impose its own laws because it is endowed with independent, autonomous authority.

Similarly, Rav Yosef Dov Soloveitchik stated (as presented in Jewish Action, Summer 2011)

“Torah study is a yoke because we lack the authority to change its laws. Shinuy, change, is unacceptable. Chiddush, innovation, creative interpretation, is the very heart of halachah. It is the engine of halachic continuity throughout the ages. But these chiddushim must be within the discipline, internal to the system of halachah and not originating from the outside (emphasis added). They must soberly represent the humble and fearful surrender to the Torah we have learned from the Sages. They must respect the past and continue the mesorah whose responsibility of transmission rests on our shoulders”.

Rav Tzvi Freeman (http://www.chabad.org/library/article_cdo/aid/624196/jewish/Is-It-Really-the-Torah-Or-Is-It-Just-the-Rabbis.htm) presents the Maharal of Prague providing a parable that helps us understand Rav Soloveitchik’s point.

“He likens our situation to a man who moves into a home built by a master architect. The man finds all in place, in exquisite design and order. Yet, in one place, it seems a door is missing. There is a lintel, there are doorposts, even hinges in place. Within is a room that needs to be shut off from the rest of the house. So the man fashions a door, in accordance with every other door in the house, to match the fittings of the open doorway.

So, too, says the Maharal, when the story of Esther occurred and the rabbis established the festival of Purim; when merchants began to trade on the Shabbat and the rabbis established the laws of muktzah; when Jewish society became primarily mercantile and the rabbis established the pruzbul. And in our day, as we deal in medical halachah and supervision of the food industry—at each step along the way, we find the lintel, the doorposts and the hinges awaiting our finishing touches”.

Our responsibility is to fashion the doors in accordance with every other door in the house, namely, that our rulings fit with the spirit and ideas of the Torah. We must avoid fashioning doors that our not in accordance with every door in the house, referring to improper introduction of values foreign to Torah.

Some have made the argument that Halacha “evolved” to outlaw bigamy (Cheirem D’Rabbeinu Gershom) and is not rooted in our Mesorah. One may respond with the oft-cited Talmudic teaching “Kol D’Tikkun Rabban K’Ein D’oraita Tikkun”, whatever the rabbis instituted was done in the spirit of the Torah (Gittin 65a). Cheirem D’Rabbeinu Gershom is no exception. The Da’at Mikra commentary to Bereishit 2:24 notes that this Pasuk’s teaching of “V’Davak B’ishto”, he shall cleave to his wife, articulates monogamy as a Torah ideal. The Pasuk in Kohelet (9:9) “R’eih Chayyim Im Isha Asher Ahavta” similarly articulates this ideal. The Midrash Tanchuma (Bereishit 11; cited in Rashi’s commentary to Bereishit 4:23 regarding the hapless Lemech pathetically begging his two wives for companionship) and Gemara (Sukkah 27a, the story of the minister of King Agrippas who had two wives and therefore was unable to fulfill the Mitzvah of Sukkah) present stories that ridicule bigamists. The Aruch Hashulchan (Even haEzer 1:32) observes that none of the Talmudic sages married more than one wife. Moreover, every bigamous relationship described in the Tanach works out poorly. The Torah thereby communicates to us that a bigamous family structure is unhealthy and inevitably leads to dysfunction. Thus, Rabbeinu Gershom merely institutionalized that which was always the Torah vision of an ideal and proper monogamous marital relationship.

Conclusion

Next week we iyH conclude our discussion of Mamzeirut and morality with a review of how great Halachic authorities of the past half century manage potential situations of Mamzeirut.

[1] The Navi Yechezkeil (Perek 18) also legitimates the complaint that it is unfair that “fathers have eaten sour grapes, and the children's teeth are set on edge?” For an analysis of Yechezkeil Perek 18, see Makkot 24a and Rav Hayyim Angel’s Vision from the Elders and Counsel from the Elders (pages 153-162).