My position has been alluded to by several Sefardic halakhic authorities. As is well known, the famous Menachem Meiri (1249-1316, France) already stated his opinion that non-Jews are moral people who have left idol worship behind them. He therefore concluded that many discriminating talmudic laws concerning non-Jews are no longer applicable. (20) He was clearly a believer in redemptive Halakha.
However, Meiri did not go so far as to abolish the law of yayin nesech. The person who came closest to doing so was none other than the Rama (1520-1572), Rabbi Moshe Isserles, the foremost Ashkenazic sub-commentator on Rabbi Yosef Karo’s Shulchan Aruch. He brings a view that if a ger toshav (a non-Jewish resident) touches a bottle of wine, it is still permitted to drink that wine. Whether or not today’s non-Jew, who is no longer an idol worshipper, fits the definition of a ger toshav is a matter of debate. (21)
Another great halakhic authority who came very close to doing this was the eminent Rabbi Yosef Messas (1892-1974) from Algeria, Morocco, and later chief rabbi of Haifa. He was one of the most daring halakhic authorities of our days. Dr. Marc Shapiro writes about Rabbi Messas: “…he defends drinking alcohol which contains wine that had been handled by Muslims. He quotes a responsum by an earlier Moroccan rabbi who even permitted drinking the wine itself — [Rabbi] Messas didn’t go this far — and who had justified this decision as follows: ‘There is no unity [of God] like the unity found in Islam; therefore, one who forbids them to handle [wine] turns holy into profane by regarding worshippers of God as worshippers of idols, God forbid.’” (22)
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But there is more. The famous philosopher, talmudist and halakhic expert Rabbi Eliezer Berkovits argues that over the last 2,000 years Halakha has become increasingly defensive. (23) It has had to deal with aggressive anti-Semitism, as Judaism and Jews were constantly attacked in the Diaspora. Under those circumstances, rabbinical authorities built many walls between us and the Gentiles. This was very understandable; it was the only way to survive. But it also meant that Halakha became stagnant. It couldn’t develop naturally because it had to constantly look over its shoulder to make sure that Jews wouldn’t be affected by the non-Jewish world whose practices and ideologies might oppose Jewish ethical values. It had to ensure that in no way, neither directly nor indirectly, would Jews be influenced by or support non-Jewish idolatrous traditions and immoral acts. During all of these 2,000 years in exile, Halakha was forced into a waiting mode, in anticipation of redeeming itself when Jews would again return to their homeland and live in freedom.
While Rabbi Berkovits does not discuss the issue of yayin nesech, it is very clear that the law prohibiting it originated under these circumstances. It’s a law that is based on fear.
But times have changed. The waiting mode has come to an end. Halakha’s longtime dream, to liberate itself from its defensiveness and fear, is being fulfilled in our own days! The Jews’ situation has drastically changed, specifically since the establishment of the state of Israel. We no longer have to be defensive, as we were in the ghettos. The state has given us our long-awaited independence. We run our own affairs and are no longer afraid of the anti-Semitic world. If attacked, we will strike back. And just as the Jewish state has freed the Jews from defenselessness by building a powerful army with tens of thousands of soldiers and the most sophisticated weaponry, which has made the Israeli army into the world’s best, so must Halakha abandon its fear, take a courageous, assertive approach, and make a radical turnabout.
Instead of fearing the corrupt influence of the non-Jewish world, we should now show ourselves and the world the enormous spiritual and moral power of Judaism. Instead of building high walls around us, we should create transparent partitions. It’s time for the world to be awestruck by the power of Judaism. It’s time for exposure, and the export of Jewish spirituality and ethics. The world needs it. The world is ready for it. Jews would find great meaning in religious Judaism, and non-Jews would be astonished and impressed. Assimilation will not come to an end by enacting laws rooted in fear and weakness, but by a halakhic ideology of strength and courage. Judaism has more than enough strength to face head-on the many negative powers that surround us and win the war. Yes, there will be victims, as we have in any Israeli war, but war can only be won if you take that risk, no matter how painful. Today’s weak approach creates more victims, by far.
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Even more important is the fact that all of this will have an immediate effect on our own youth. Judaism will be something people want to be part of. It will again become a mission to fight for and be proud of.
One of the great tasks of Jewish education is to deliberately create an atmosphere of rebellion among its students. Rebellion, after all, is the great emancipator. To paraphrase English writer Charles Caleb Colton (1780-1832): We owe almost all our knowledge and achievements not to those who agreed but to those who differed. It was this quality that brought Judaism into existence. Avraham was the first great rebel, destroying idols, and he was followed by his children, by Moshe, and by the Jewish people.
What has been entirely forgotten is that the Torah was the first rebellious text to appear in world history. Its purpose was to protest. It set in motion a rebellious movement of universal proportions second to none. The text includes all the heresies of the past, present and future. It calls idol worship an abomination, immorality a scandal, and the worship of man a catastrophe. It protests against complacency, imitation, and negation of the spirit. It calls for radical thinking and radical action, without compromise, even if it means standing alone and being condemned or ridiculed.
This reality seems lost on our religious establishment. We are teaching our students and children to obey, to fit in, to conform and not stand out. We teach them that their religious leaders are great people because they don’t want to rock the boat. They would never think of disturbing the established religious or social norm. But these teachers don’t realize that they are teaching a tradition of protest, and if they want to succeed they must communicate that message.
By using clichés instead of the language of opposition, we deny our students the excitement of being Jewish. Excitement, after all, comes from the knowledge that you make a difference, and you take pride in it, whatever the cost. It comes from being aware that you are part of a great mission for which you are prepared to die, knowing that it will make the world a better place.
When we tell our children to eat kosher, we need to tell them that this is an act of disobedience against self-indulgence, by which human beings are prepared to eat anything as long as it tastes good. When we go to synagogue, it is a protest against man’s arrogance in thinking that he can do it all himself. When young couples are asked to observe the law of family purity, it is a rebellion against the obsession with sex. The celebration of Shabbat must be taught as an enormous challenge to our contemporary world, which believes that happiness depends on how much we can produce.
As long as our religious teachers continue to teach Jewish texts as models of approval, instead of manifestations of protest against the mediocrity of our world, we will lose more and more of our young people to that very mediocrity.
Judaism is in essence an act of dissent, not of consent. Dissent means renewal. It creates loyalty. It is the stuff that world growth is made of.
But all of this can be achieved only if we re-establish Halakha as an ideology and practice by which courage and determination will lead to great pride and a strong feeling of mission.
To achieve this goal, we have to de-codify Jewish law and dispense with the official codes of law by which Judaism was able to survive in past centuries. Codification stagnates. (24) While it was necessary in order to overcome the enormous challenges of exile, it has now become an obstacle, outdated and unhealthy, which to a great extent blocks the natural development of Halakha. Jewish law must move and grow, taking into account various developments in our world and giving them guidance. And that can happen only if it is fluid and allows for a great amount of flexibility, which codification cannot offer. Certainly, some conformity is necessary, such as in the case of civil law, but unlike non-Jewish codifications, Jewish law is foremost a religious and spiritual tradition. As such, it can never be translated into immutable rules to be applied at all times, under all conditions, and for everyone, without considering the personal, religious and practical components. These elements vary drastically, as can be seen by the many differing and even opposing opinions in the Talmud, which the Sages were not only aware of but seem to have actually encouraged. (25)
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What we need now is prophetic, New Age Halakha, dedicated to the great, authentic, ethical mission of the Jewish people as conveyed by the prophets, and combined with the demands of the Torah. The prophets preached a rare combination of particularism and universalism. They strongly advocated Jewish particularism, so as to keep the Jews separated from the rest of the nations. But they always viewed this in terms of universalism. (26) There was a need for a central driving force, full of spiritual and moral energy, that would enable the Jews to inspire all of mankind and be “a light unto the nations,” conveying the oneness of God and the significance of justice.
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We must continue to be different and marry only among ourselves, or with those who have joined our people. We should make our own wines and not drink those produced by our Gentile friends, because wine is a sacred drink that needs to be sanctified by the beliefs of different religious communities. I would even suggest that each monotheistic religion produce its own wine, since it is not the liquid itself that is sacred but the winemaker’s intentions that have suffused the wine.
It is nonsensical to believe that the world would be a better place if all differences would be eliminated. Distinctiveness is a most important aspect of our society. It gives it color and allows people to belong. But it should not lead to a form of separation, which serves no real goal and is the outgrowth of something that was meant for a different time.
Should the law of yayin nesech be abolished altogether? Definitely not! We should not drink kosher wine that has been handled by anti-Semites, terrorists, rapists, financial swindlers, men who refuse to grant divorces to their wives, self-hating Jews, and the like.
After all, the purpose of the law is to protest, not to discriminate.
It is high time that the rabbis consider revisiting this ancient law and adapting it to our new reality.
My brother would agree.
20. See Note 8.
21. See Shulchan Aruch, Yoreh De’ah 124:2. And especially 124, 24. See also Dr. Asher Ziv, ed., Shu”t HaRama 124, where Rabbi Moshe Isserles is melamed zechut (judges favorably) those who drink wine produced by non-Jews. See also Marc Shapiro: Changing the Immutable, The Littman Library of Jewish Civilization, pages 96-7, where the author mentions that several Orthodox rabbis and halachic authorities used to drink wine that was produced by gentiles.
22. See Rabbi Yosef Messas, Otzar HaMichtavim vol. 1, nos. 454, 462; Shu”t Mayim Chayim vol. 2, Yoreh De’ah no. 66. Rabbi Messas expresses a similar opinion concerning bishul akum (kosher food cooked by non-Jews). See Dr. Marc B. Shapiro, “Rabbi Joseph Messas,” Conversations – The Journal of the Institute for Jewish Ideas and Ideals, Spring 2010/5770, pp. 100-101. See also Rabbi Ovadiah Hadaya, Responsa Yaskil Avdi, vol. 1, Yoreh De’ah, No. 4. See also: Marc Shapiro: Changing the Immutable.
23. Eliezer Berkovits, HaHalakha, Kocha V’Tafkida (Jerusalem: Mossad HaRav Kook, 1981). A shortened English version is Not in Heaven: The Nature and Function of Halakha (NY: Ktav Publishing House, 1984) ch. 4.
24. See Rabbi Shlomo Luria (Maharshal), Yam Shel Shlomo, introduction to Bava Kama and Chulin; Rabbi Yehudah Löw ben Betzalel (Maharal), Netivot Olam 16, end; Rabbi Chaim ben Betzalel, Vikuach Mayim Chaim, 7. See also my essay “On the Nature and Future of Halakha in Relation to Autonomous Religiosity,” Conversations – The Journal of the Institute for Jewish Ideas and Ideals, Spring, 2010/5770, pp 66-82.
25. See Eruvin 13b.
26. See, for example, Shemot 19:5-6; Yeshayahu 42:6. See my book Between Silence and Speech: Essays on Jewish Thought (Northvale, NJ and London: Jason Aronson, 1995) chapters 3 and 5.