We have all read about the arrests of Orthodox Jews in Lakewood for alleged public assistance fraud. Although the accused are deemed innocent until proven guilty under American law, the mere imagery of over a dozen Jews with beards and yarmulkes being handcuffed and charged with federal crimes is enough to make one cringe and ponder the immense chillul Hashem (desecration of God’s Name).

Who is to blame for this situation? Obviously, if they are guilty, the accused are to blame. It does not take much to come to this conclusion.

However, Rabbi Ysoscher Katz, in Understanding Lakewood, Understanding Ourselves, in large measure places blame for this situation on – believe it or not – the Torah itself, or, to be more precise, on Lakewood’s rigid approach to Halacha. Yes, Rabbi Katz posits that it is the adoption of an immutable understanding of Halacha, rather than a progressive one, that is substantially to blame for this episode.

Rabbi Katz writes:

Over a dozen ultra-Orthodox individuals from Lakewood are arrested for allegedly embezzling large sums of government money and we are scratching our heads, unable to make sense of this enigma. ‘How could people with such high religious standards commit these inexcusable crimes’ we wonder.

 

The jurisprudential philosophy of this community could at least partially explain this conundrum.

 

“The seemingly blasé attitude towards stealing from the government is partially informed by the belief that halakha is static; that its meaning and application do not at all change through perpetual clarification and constant crystallization…

 

An unadulterated read of halakha may in fact permit this kind of cheating 

 

However, as these halakhot encountered new historical realities and changed societal norms the poskim crystallized their meaning and qualified their application. As time went by we moderated our attitude towards the “other”; “other” was no longer necessarily a synonym for inferior. Jurisprudentially discriminating against non-Jews, consequently, no longer felt appropriate. Halakha responded in kind. It nixed the applicability of these seemingly discriminatory halakhot that may allow theft from non-Jews. Rereading these halakhot and thereby revealing nuances that were not apparent to earlier poskim allowed medieval Rabbinic authorities to modify and qualify them out of existence.

 

(I)f you believe that halakha is static and immutable, you will operate with the assumption that these leniencies which allow theft from non-Jews are perpetually operative…

 

While such extreme fidelity to the letter of the law seems anathema to most of us, there is a good reason why certain communities refuse to let interpretation of halakha be informed by history and changing realities. Letting halakha dialogue with history, they believe, is a dangerous enterprise because its contours are amorphous and boundaries unclear. One does not know where history’s modification of halakha will meander…

 

What should then one do? Should one champion a halakhic system which is in dialogue with history, occasionally allowing itself to be clarified and qualified in consonance with new knowledge and more sharply articulated social mores? Or does one embrace and preserve halakha in its pristine original form, ignoring any external attempt at moderation and qualification?

 

Unfortunately, there is no definitive answer…

Although we will soon examine the halachic material presented by Rabbi Katz, it is clear that he maintains that rabbinic authorities of old reinterpreted Halacha in conformity with contemporary social beliefs and “nixed the applicability of these seemingly discriminatory halakhot” – a notion popular in Conservative and Reform thinking, used by these groups to justify the discarding of parts of Halacha which do not reflect modern values. Rather than interpret Halacha objectively, Halacha becomes fluid and pliable, and is expected to change with the sentiments of the times.

Rabbi Katz’ suggestion about “rereading these halakhot and thereby revealing nuances that were not apparent to earlier poskim allowed medieval Rabbinic authorities to modify and qualify them out of existence“ is not atypical within Open Orthodox thought. Rabbi Dov Linzer, rosh yeshiva at Yeshivat Chovevei Torah, which is the epicenter institution of the Open Orthodox movement, wrote an article in February of 2013 regarding the mitzvah of Zechiras Amalek (“Remembering Amalek”), in which he professed that the original mitzvah was one of physical obliteration (“Mechiyas Amalek”), but that rabbinic authorities were uncomfortable with the original mitzvah and that they therefore fabricated the mitzvah of Zechiras Amalek or made it loom large, and thereby consciously eliminated the mitzvah of Mechiyas Amalek:

God is a vengeful God.   Violence must be met with violence.  Even innocents – the infants and the future descendants of the original nation – can be slaughtered by the hand of Israel when Israel is following God’s command and is the agent of God’s justice.  Is this the message of Amalek?  Is this the story that we tell?

 

We know that it is not.  It is not the story that we as a people have told.  Having as a people been persecuted and slaughtered in the name of religion, and as witness today to the evils that can be perpetrated by a murderous, fundamentalist religious belief – this also is not the story that we can ever tell.

 

(T)his mitzvah has effectively been erased.  We have erased not Amalek, but the mitzvah to destroy them… 

 

We are truly an amazing people. We have taken the mitzvah to destroy Amalek, a mitzvah that disrupts our moral and religious order, a mitzvah that embraces violence and, through interpretation, through choosing how we will tell the story, we have transformed it into a mitzvah of memory, a mandate to restore moral order and to repudiate violence

 

Rabbi Linzer presents the Torah’s command about Amalek as vicious and repulsive to our sensitivities, explaining that the rabbis of old reformed and reinterpreted the general mitzvah, in line with the (otherwise) deeper sensitivity of the Torah, into a mitzvah of symbolism and passivity.

This Open Orthodox approach to Halacha, which is almost identical with Reform and Conservative theology, is one of the many reasons that the general Orthodox establishment has shunned Open Orthodoxy. To proffer that Halacha is not the objective Word of God which we accept and follow even if it clashes with modern values, but that Halacha instead is reformed and reinterpreted in accordance with modern values, violates the most basic tenets of our tradition and our faith, and is decidedly non-Orthodox. (Please also see Maimonides – Hil. Teshuvah 3:8.)

Rabbi Katz’ explanation of the Lakewood episode reveals an indictment of the (traditional) halachic system on his part, as he argues that adherence to Halacha in a traditional manner permits theft. Following the “traditional approach” toward Halacha can lead to criminality, writes Rabbi Katz:

How could people with such high religious standards commit these inexcusable crimes’ we wonder.

 

The jurisprudential philosophy of this community could at least partially explain this conundrum

 

Should one champion a halakhic system which is in dialogue with history, occasionally allowing itself to be clarified and qualified in consonance with new knowledge and more sharply articulated social mores? Or does one embrace and preserve halakha in its pristine original form, ignoring any external attempt at moderation and qualification?

 

Unfortunately, there is no definitive answer. 

The above words can actually assist to excuse or justify the commission of crime, engendering a defense of “the criminals were just following the traditional approach to Halacha”. The fact one could pen the words in the above quote is extremely disturbing.

Rabbi Katz then proceeds to declare that “An unadulterated read of halakha may in fact permit this kind of cheating”, and he imprecisely cites a few sources: “Rashi, Sanhedrin 58a; Marshal Bava Kamma, Perek HaGozel; Rema, EH 28 and others.” Let’s take a look.

Marshal Bava Kamma, Perek HaGozel” probably refers to Yam Shel Shlomo on Bava Kamma 113A – who writes specifically that Rashi (on Sanhedrin 57A – not 57B) holds that Gezel Akum/cheating the government is forbidden. This totally contradicts Rabbi Katz’ implication.

Similarly, the Rema in Even Ha-Ezer 28:1 speaks of an after-the-fact case of a man who married a woman using a ring (or other object) that turned out to be Gezel Akum; the Rema rules that one need not redo the marriage in that specific case. The Rema does not write anything at all to permit stealing or cheating; the Rema only speaks about the need to redo a marriage after the fact. Hence, there is absolutely no support from this source for Rabbi Katz’ contention.

And on the contrary, in Choshen Mishpat 348:1, the Shulchan Aruch strictly prohibits such stealing/cheating, with the Rema’s concurrence to the prohibition. So too in Choshen Mishpat 359:1 does the Shulchan Aruch strictly forbid it, and the Rema again concurs. Likewise does Maimonides unconditionally prohibit such stealing/cheating (Hil. Geneivah 1:1 and Hil. Gezeilah 1:2). And such is the ruling of the Rif, Smag, Smak, Rosh, Tur, and halachic authorities from time immemorial. To claim that “halakha in its pristine original form, ignoring any external attempt at moderation and qualification” permits stealing/cheating, and that Halacha was only later reinterpreted to prohibit such stealing/cheating, as Rabbi Katz writes, is wholly inaccurate and is quite damaging.

We must follow Halacha with integrity, we must be honest, and we must never cause a chillul Hashem. And we must understand and present Halacha honestly and accurately as well.