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. Many poskim assert that gezel akum (stealing from idolaters) is technically mutar* And almost all of them believe that cheating idolaters is allowed. (Legally, cheating refers to a case where one does not physically grab the money from the owner but instead cheats and misleads them so that they volitionally hand over their money or possessions)
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.
But, if 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; that if halakha at some point saw the “other” as inferior, those people will retain that status in perpetuity. Therefore, if according to the simple letter of the law gezel akum is mutar according to some, and cheating them is allowed according to many, one may, with a clear conscience, embezzle money from the government.
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.
This is a legitimate concern. As Jewish history has shown, a radical historicity of halakha could potentially obliterate it.
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. Living the observant life puts one at a crossroad of two danger-filled paths.
One path champions a halakhic system whose interpretation and application crystallizes over time but, at the same time, poses the risk that your practice might become devoid of authenticity. Halakha’s sacred original core could be drowned out by constant modification and incessant qualification. The other path is originalist and unaffected by historical developments, but could very easily become stale and atrophied as a result of its refusal to allow prevailing norms to infuse the system with relevance and vitality.
The choices are difficult, but we must choose, that is our religious mandate: ראה נתתי לפניך את החיים ואת המות את הטוב ואת הרע ובחרת …
*Rashi, Sanhedrin 57a; Marshal Bava Kamma, Perek HaGozel; Rema, EH 28 and others.
** R. Tam, Meiri, Sefer Yeraim, etc