Finishing the Laws of Torah Study: Discipline and Authority

I started this series to refresh mine and your memories about Torah study, what it consists of, how to do it best, and its absolute necessity to a well-lived Jewish life.  Last time and this time, the conversation has taken a turn to nidui and related versions of informal communal pressure, which don’t obviously fit.

Technically, we got there because a Torah scholar has the right to ostracize someone who mistreated him. Once on the topic, we saw that that version of communal discipline was also used to enforce community standards in other areas as well, financial and religious.

The system depends on the buy-in of all involved, the מנודה, the person ostracized, and his or her friends, relatives, and acquaintances.  Without that, it falls apart (as it pretty much has), with consequences for our ability to build communities that stand for important values.

Working our way to that conclusion will show us how insightful Rambam was in recording the view that mistreating Torah scholars (and not having to worry about being ostracized) was the necessary opening to the Destruction. If so, we can hope that trying to improve our handling of communal discipline might contribute to reversing that, returning us to a fully rebuilt Jerusalem.

But first, the building blocks, the technicalities of nidui and the like.

Easy In, Easy Out

An important framing point: Nidui can be instituted relatively informally—by a Torah scholar or a court announcing that so-and-so is in nidui—and released equally informally, that same body (or sometimes another; if the Torah scholar has gone away, for example, a court can assume he’d have intended to release the person) saying that ban has been removed. The way to achieve that is for the person involved to apologize and commit to not repeating the behavior.

I stress that before we dive into the harsh discipline of nidui, so that we stay clear that the goal here is acquiescence and submission to communal discipline, not punishment.  Along those same lines, Aruch haShulchan 334;3 notes that the Tur required warning a person 3 times (Monday, Thursday, Monday) before banning him or her.

The Tur limited that to a person being put in nidui for monetary transgressions—for violations of Torah or rabbinic law, nidui could be immediate. Aruch haShulchan, though, thinks it would still be necessary (or advisable) to warn the person beforehand, to give time to reconsider and repent.

A Lighter Stage: נזיפה, Reprimand

Before we get to nidui, there is a lighter form of discipline, נזיפה, when an אדם גדול, a truly important person (usually a Torah scholar) expresses displeasure with someone’s actions. The example in Yoreh De’ah 334;14 is that the person says “how impudent is so and so!”

The person involved is supposed to retreat from public life for a period of time, making clear that s/he is ashamed of what s/he had done. Shulchan Aruch prescribes seven days but both Shach and Aruch haShulchan note that outside of Israel, we shorten such reactions—where nidui was thirty days in Israel, communities outside did seven, and נזיפה would be a day rather than a week.

However long, this was a time when the recipient of the reprimand was supposed to avoid the one who had administered it, was supposed to reduce his or her laughter, conversation, and business involvements, and make clear to all who see him (or her) that s/he is in distress over what had happened.

And that’s it.  An important person made clear another Jew stepped wrong, that Jew was supposed to take it to heart, and be bothered by this personal failure. It doesn’t require release, or apology, just a Jew reacting properly to a teaching moment. It is an excellent introduction to nidui, however, since it highlights our need to be open to another person (or a court) having the right to tell us that we have done wrong, to accept their remonstration and grow from it.

Crucial skills to apply to the institution of nidui.

The מנודה’s Side

The first step of nidui is that the banned (or ostracized, or shunned: I have not found an exact translations) person has to act in some ways as if s/he is in mourning. The מנודה is not allowed to take haircuts or shave and is not allowed to launder his or her clothing.

Rambam does not mention a requirement to avoid leather shoes, despite the fact that R. Eliezer b. Hurcanos removed his shoes when he was put into nidui. Pause to note that R. Eliezer b. Hurcanos, a leading rabbi of his generation, was placed in nidui. Nidui wasn’t for the dregs of society alone, it was for those who needed to be brought back into line with the community (I don’t have space to discuss the different ways such discipline works for Torah scholars; while there needs to be effective discipline for when scholars misstep, it is handled differently than with ordinary people).

Kessef Mishneh 7;4 cites Ramach, who understands Rambam to think R. Eliezer undertook an unrequired practice of mourning. Ramach notes, though, that the custom in Sefarad is for the מנודה to remove his or her shoes.

But the more significant issues are how others act towards the מנודה. As you read that, ask yourself whether you’d go along if a court pronounced נידוי on a friend or relative.  To make it practical: imagine a close friend of yours refused to give his wife a get, and you understood his reasons (either you agreed, which would make it hard to feel like following the נידוי, or you didn’t agree but you understood, and he’s a very good friend or close relative). A reputable court declares him in נידוי; here’s the list of how we’d be obligated to act. Would you be ready to do it?

The Community’s Reaction to the מנודה

In 7;4, Rambam notes the rest of the community is not supposed to include a מנודה in a zimmun (the special opening for Birkat HaMazon when three men or three women eat together, showing them to be a group joined in thanking Hashem for their food) or count the מנודה for a minyan (so if there were only ten men present, and one was in נידוי, they couldn’t say kaddish ), or sit within four amot of the person (about six feet; spouses and children are exempted from this).

If a person passed away while still מנודה, the court would send a stone to be placed on the coffin, to symbolically stone this person for having maintained their rebellion against their community. And, Rambam points out, that includes (it goes without saying), not eulogizing the deceased or accompanying the coffin to its burial.

That’s serious stuff (although חרם is worse, as we’ll see). Would you be willing to do that? If not, that contributes to the powerlessness of courts and communities.  As the Rokeach noted, if a מנודה continues to be part of our communal functions—zimmun and minyan—there’s no incentive to change. The point of נידוי is to exclude the person. Without that, there will be no impact.

Rema in 334;2 says that the custom was to eject the מנודה from shul. This isn’t an actual part of the nidui (unless the ostracizing body decides it should be in this instance, see below), but since everyone has to stay six feet away, there was often not enough room for the person to be there.

The first step of is excluding an offender from some communal functions, putting barriers in place to complicate their social lives (all of which could be ended by apologizing).

חרם: Not Quite Complete Exclusion

If the מנודה did not apologize and acquiesce to the community’s discipline, the court would usually impose a second term of nidui and then, if the offender remained recalcitrant, might choose to excommunicate the person (we’ll see that Radvaz already stressed the importance of care in how and when to apply these mechanisms).

חרם, excommunication, took nidui several steps further.  As Rambam writes in 7;5, such a person was not allowed to study Torah with others, learning or teaching. Considering how central Torah study is to a Jewish life, that’s remarkable.  The excommunicated person is also not allowed to hire or be hired (so an employee of a wealthy person who gets put into חרם might be obligated to cease working for him or her), and others may not do business with him or her, except the bare minimum to sustain the person in חרם.

Rivash thinks that we also may not offer a casual social greeting to someone in חרם, although we can speak with that person, as necessary.

Enforcing חרם

If people continue to do business with a מוחרם—and remember, it’s plausible that this person is the only place that the rest of the community can do that piece of business; if a rich man refuses to give his wife a get, and is excommunicated, and then offers you a well-paying job, or an enticing and profitable business deal, could you resist?—the courts have the right to excommunicate those people as well.

The Geonim went further, struggling to maintain their communal power.  They said that a community should refuse to circumcise the son of a person who was excommunicated (the child could become circumcised as an adult), remove his wife from shul (not just him), and his children from schools.

Highlighting part of the challenge: with insistently resistant people, unless those around that person are willing to be part of a harsh reaction, communal discipline will fail. Which will mean the community will no longer be able to insist on what seems important to the community in any area. Communities will turn into conglomerations of individuals, each of whom do what they think is right, and get annoyed when they see others doing what they think is right, but have no mechanism by which to forge a community, a group united around common ideas that they work to promote.

Part of the lesson of נידוי and חרם is that if you’re not willing to stand against something because communal leaders say it’s necessary, you won’t find others willing to stand with you when you find it necessary.  That highlights the necessity of good communal leaders, Torah scholars and otherwise; part of why this falls apart is that our leaders don’t handle it well, are sometimes so clearly deficient that they lose the obedience and fealty of their communities.

Which doesn’t mean this isn’t without consequences. Let’s consider some of those.

Why We Ignore the Danger of Pushing Someone Away

Shulchan Aruch says flatly that a court can/should ostracize someone even if there’s a worry that person will leave the religion. I think that’s for two reasons. First, a community cannot let itself be held up by the threat of a person doing something rash or self-destructive; if the מנודה decides to break more rules in reaction to being disciplined for his first infractions, that’s his problem, not the community’s.

Second, and probably more important, the community needs nidui to work. Working communities have to be able to rein in community members who go down unacceptable paths.  The loss of one person might be a regrettable but necessary loss in the name of the broader goal, viable and working communities.

Just Because It’s Allowed

Doesn’t mean we should necessarily do it. Pitchei Teshuvah 334;1 mentions a slew of authorities who agreed with Shulchan Aruch that the court does not have to concern itself with how the מנודה will react. Then he quotes Radvaz, who lived earlier than any of those authorities, and urged the leader of the generation (and, presumably, the leader of any other נידוי-assessing body) to act במתון, with moderation and deliberation, because not all people or all sins were the same.

There is room to decide, in other words, that this person should not be put in נידוי because it would be counterproductive, but this person could be. Or that this iteration of a sin was not נידוי-worthy, even though another very similar version was.

Judging case by case is important, but will also raise questions in the eyes of observers, who will criticize the leaders’ judgment in applying נידוי without across-the-board rules. So it’s  not easy.

What About the Kids?

Chatam Sofer 322 wondered what to do if the person who deserved נידוי had children, whom he would likely take with him as he left the religion if he were ostracized. His answer is that it depends: a person being placed in נידוי for a specific act is someone we should probably leave alone, to avoid harming the children.

But if the person has already shown an ideological streak to his divergence from the community (such as Reform, against which hespent much time and energy struggling, although in this responsum he refers to Sabbateanism), there’s no point in trying to keep him in the fold (or his kids), since they will already have absorbed the father’s heresies.

Respect for Torah Scholars and Communities as the Key to Destruction and Redemption

Rambam closes these laws by noting that Torah scholars should properly and generally ignore when people mistreat them in private. In public, though, their obligation to the honor of Torah mandates a harsh and insistent response, bringing the malfeasant to heel.

And that’s the underlying call of these kinds of halachot, with particular relevance to this time of year: if we want healthy communities, we need leadership structures, and those structures must start with (but not be limited to) Torah scholars.  We treat Torah scholars differently, because they’re Torah scholars.

Beyond Torah scholars, we recognize the necessity of a communal leadership able to impose discipline and to demand of other community members to follow that lead when it comes to disciplining a communal member.

The loss of those mechanisms, I believe, has weakened our communal structures, leading to a failure, in many cases, to insist on leadership that takes its roles seriously (either Torah scholars or lay leaders) or that can effectively enact those roles when they do take them seriously.

Which brings us back to Rambam’s idea that denigrating Torah scholars was what led to the Destruction of Jerusalem. If my analysis has hit the mark, perhaps part of his point was that mistreating Torah scholars is actually a symptom of a dysfunctional community. When communities cease to function well, destruction is certain (although it can take misleadingly long to happen).

As we face yet another Tisha B’Av without the full Redemption, one productive avenue to take is for us to think carefully about our communities, and the extent to which we allow and contribute to them creating a structure that fosters our service of Hashem, and is an effective force in keeping us in line when we need reminders to that effect. Best wishes for an easy and meaningful fast.