How Halakha must transcend itself (part 1 of 3)

Some time ago, I had a long talk with my only brother Dr. Jacques Lopes Cardozo, age 66 and two years my junior. We spoke about our early years, growing up in our parents’ home in the Netherlands. Although we were children of a mixed marriage (Jewish father, non-Jewish mother), we took a keen interest in Judaism.

Our father was a very proud Jew, and our mother was raised in a strong Jewish cultural milieu in Amsterdam, where she felt completely at home. If not for her “Jewishness,” my father would probably not have married her. In fact, our mother was in many ways more Jewish than some members of my father’s family, who were halakhically Jewish but completely disconnected. I decided to do giyur[1] at the age of 16, and my mother followed suit many years later. After 27 years of married life our parents remarried, this time by the same rabbi who officiated at my own wedding three months later. Both chuppot took place in the famous Esnoga, the Portuguese Synagogue in Amsterdam.

This put my brother in a very strange position. From then on, all members of his immediate family were Jewish, and while he did not have the halakhic status of a Jew, he continued to feel very Jewish. This was, to say the least, an atypical Jewish family.

During our conversation, my brother referred to a particular Pesach seder that I conducted at our parents’ home when I was about 17. An incident took place that profoundly shocked him and caused one of the most painful moments in his life. Fifty years later, with great emotion, and tears in his eyes, he told me that he had taken a bottle of kosher wine to pour for our many guests. He felt very much a part of the Jewish tradition and immersed himself in this religious experience, wanting to participate fully. After all, those who had left the bondage of Egypt that very night and would cross the Red Sea a few days later were also his ancestors! But instead of realizing my brother’s enormous religious dedication to that experience, I snatched the wine bottle from his hands and told him he should not touch it since he was not Jewish, and that when a non-Jew touches the wine, according to Jewish law, it could be cursed.

The latter statement proved my complete ignorance. As a newcomer to Judaism, I had been told that the Halakha determines that non-Jews should not touch our wine, and I probably concluded that this meant the wine would be cursed. Our sources state nothing of the sort. The only thing indicated is that the wine is no longer permissible to drink (Shulchan Aruch, Yoreh De’ah 124:11; Mishneh Torah, Hilchot Asurot 11:4).

My brother froze, and then sat down without uttering a word.

Now a dental surgeon of fame, and a man of great integrity, my brother told me that to this day he is deeply hurt by the incident and, although he forgave me for what I had done, he could not emotionally make peace with it. Not only because he considered himself to be very Jewish and could not imagine that this law would apply to him, but also because he could not believe that such a law would be part of this beautiful tradition called Judaism, which he dearly loved. My gut feeling tells me that this incident played a huge role in his decision not to convert, though he came very close to doing so.

(Once my brother told me about this incident, I realized there are other laws as well that are very disturbing, such as bishul akum (the prohibition of eating food that was cooked by Gentiles), the saving of non-Jews on Shabbat, the institution of the “shabbes goy,” and the prohibition of doing a favor for a non-Jew. This is not the place to discuss each one of them, but it will become clear to the reader that all of these laws, or customs, are the result of circumstances that prevailed in ancient times, and they should no longer apply today.)

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Although I studied for more than 12 years in Chareidi (ultra-Orthodox) yeshivot, which are hardly, if at all, concerned with the non-Jewish world, I admit that I may be more sensitive than others about matters relating to non-Jews. After all, how could I not be? My own background, as well as my brother’s situation, forces me to confront this issue on an almost daily basis.[2] At the same time, I am fully aware of the fact that more and more thinking religious Jews are becoming highly uncomfortable with this and similar laws, and are asking why these rulings are necessary. What is it about non-Jews that makes their touching kosher wine forbidden for us to drink?

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During the almost 40 years that I have been living in Jerusalem, I have discussed this law with yeshiva students, both Chareidi and Dati Leumi (Modern Orthodox). Most of them were born in Israel and have had almost no exposure to non-Jews aside from the Arab population. When I challenge them and ask whether they are uncomfortable with this law, and whether they feel that it is discriminatory and perhaps racist, they do not understand my question. Their argument is straightforward: Since according to Judaism, non-Jews are secondary inhabitants of this world, and most if not all are anti-Semitic, they should definitely not touch our wine. On top of that, it is their task to serve the Jews, and the law makes it clear who are the servants and who are the masters.

When I tell them that billions of non-Jews around the world are living in countries where they never meet a Jew and therefore cannot serve Jews, their response is either complete silence or that these non-Jews have nothing to live for and are sadly unable to fulfill their mission on earth. When I press them further and ask whether they believe that God treats all His creatures fairly and whether His failure to allow these non-Jews to fulfill their mission would not highly compromise this belief, they are dumbfounded. Their astonishment increases when I explain that since there are so few Jews and there are billions of non-Jews, it would mean that every Jew would have a few thousand non-Jews as servants and that I wonder whether this would not be a little overdone! Moreover, doesn’t our tradition teach us that one of the functions of the Jewish people is to aid Gentiles and be concerned about their spiritual and physical welfare?[3]

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Surely some readers will argue that when I snatched the wine bottle from my brother’s hand, I did the right thing halakhically. After all, this law appears in the Shulchan Aruch: One may not drink kosher wine that was handled by a non-Jew. This prohibition is called issur yayin nesech or, more accurately, issur maga nochri — loosely translated as the prohibition of using wine that has been handled by a non-Jew, meaning the bottle is not only touched, but moved as well. The law applies only when the bottle has already been opened.[4]

The big question is: How did this law ever become a part of Judaism?

Looking into the history of this prohibition, we can clearly see that the reason why the initial talmudic sages forbade the drinking of wine after it was handled by a non-Jew is that most non-Jews of that time were idol worshippers. This worship is associated with evil and immoral behavior, not much different from that of the Nazis, or the terrorists of today. In fact, the same law applies to a wicked Jew: we are also forbidden to drink wine that a Jewish evil-doer has handled.[5]

It is clear, then, that the motive for this prohibition was one of the great principles behind Judaism: protest. Protest against the kind of abomination that was an integral part of idol worship. The Sages wanted to ensure that Jews would never come close to this sort of behavior or to these kinds of people, and as a protest they forbade the drinking of wine that had been handled by them. It reminds me of the Dutch who after World War II refused to have anything to do with Germans, or even bring German-made products into their homes. It was taboo.

It is important to understand that the Sages were not so much concerned with idol worship per se. Had idolatry not led to such excessive abominations, they would most likely not have made such an exacting decree concerning wine. What really prompted them to issue these rulings were the accompanying loathsome and abhorrent acts, particularly gluttony and orgies.[6]

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Yet another reason for this prohibition is that drinking wine with non-Jews increases familiarity, which could then lead to assimilation. It seems, though, that the proscription was more symbolic than practical, since other drinks, even alcoholic ones, are not included in this prohibition.[7]

In the olden days, wine was by far the most popular alcoholic drink, and was used specifically in religious settings. The fact that a person could become intoxicated and lose control increased the possibility that boundaries between Jews and non-Jews would be blurred. There was some discussion about beer, which was also very popular in ancient times, but the Sages did not prohibit it probably because it was a life sustainer and safer than water! The Sages decided to apply this law only to bona fide wine, not to kosher wine that was pasteurized or cooked (known in halakhic literature as yayin mevushal), because once wine was boiled[8], it was no longer used for idol worship and therefore no longer considered “real” wine (see Shulchan Aruch Orach Chayim, 275:8 for discussion of boiled wine being used for Kiddush). The fact that the bracha “al pri ha-gefen” is still recited over yayin mevushal, and it remains an alcoholic drink that could still lead to familiarity in social settings, clearly indicates that this law is mostly symbolic.[9]

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While too much familiarity is still one of the primary causes of assimilation, one can hardly argue today that drinking wine plays any role in this unfortunate situation. Religious Jews would not marry non-Jews even if they would drink wine with them, while those who run the chance of assimilating are the ones who don’t care about this law. So what does this prohibition really accomplish? It would seem that its only claim is to remind us Jews of our special status.

•  •  •

Over the years, however, this law has taken on a life of its own. It has created a psychological condition among many religious Jews that exceeds by far what the Sages wanted to accomplish. Since the law was never officially abolished, it created an ontological view of non-Jews. No matter what their beliefs, non-Jews are by definition idol worshippers and depraved people. This is their very nature, and they cannot escape it. This view on the part of many religious Jews is not conscious and deliberate, but it is deeply ingrained in the Jewish religious psyche. It points to a kind of Jungian archetype. What this means is that many religious Jews believe not only that the law concerning wine should not be changed but also that non-Jews are not meant to and are unable to change. After all, this law reflects Judaism’s authentic view of non-Jews. In other words, there is nothing wrong with the Jewish tradition for still applying this law. On the contrary, there is something wrong with the non-Jewish world for changing and no longer fitting the description that the Jewish tradition attributes to them.

While this perspective may sound very foreign to those living in the Diaspora, this view is widespread in Israeli religious communities, whether Chareidi or Dati Leumi, with few exceptions (I refer to native Israelis, not to those who came on Aliyah from Western countries).

This attitude is tragic and extremely dangerous. It completely contradicts one of the most important teachings of the Jewish tradition, that human beings — both Jew and Gentile — can and must change. In fact, this belief is not only a misrepresentation of Judaism; it is the very antithesis of all that Judaism stands for. If non-Jews will always be looked upon as idol worshippers, no matter how far behind they have left that world, then Jews cannot be a light unto the nations, nor do they have anything to offer them. That would mean that Judaism was doomed to fail from the start.

To Be Continued…

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Footnotes

1. See my essay, “Lonely but Not Alone: An Autobiography by a Jew Who Should Not Have Been,” Conversations, Spring 2013/5773, pp 1-35.

2. Human subjectivity is a major factor in halakhic decision making. See Dr. Aaron Kirschenbaum, “Subjectivity in Rabbinic Decision Making,” Rabbinic Authority and Personal Autonomy, by Moshe Z. Sokol, ed. (Northvale, NJ, London: Jason Aronson, 1992) pp. 93-123.

3. It’s true that certain sources, many of them kabbalistic, seem to point out that non-Jews should serve the Jews, but such notions are much debated and not generally accepted. These beliefs may be the result of historical developments. When the Talmud states that Gentiles will serve the Jews in the messianic age, it means they will do it voluntary, out of respect for the Jews, not because it is their duty. See Yeshayahu 49: 22, 23; Eruvin 43b, Ben Yehoyada’s commentary. See also Nathan Lopes Cardozo, “On Jewish Identity and the Chosen People,” Between Silence and Speech (Northvale, NJ, London: Jason Aronson, 1995) pp. 35-75.

4. See Shulchan Aruch Yoreh De’ah 124:11. Wine that has merely been touched by a non-Jew is not prohibited. Maga means handling. Two actions have to take place: touch and movement. See Yoreh De’ah, ad loc. When the non-Jew touches the bottle without intent, the wine is permitted for the purpose of drinking. Mishneh Torah, Hilchot Asurot 13:11; Yoreh De’ah 124: 7, 24.

5. The wicked Jew is foremost identified as a mumar (an apostate), one who deliberately rejects Judaism and violates its demands. Nowadays, many authorities are of the opinion that this term no longer applies, since it is not malice that motivates him but ignorance, as well as the lack of revealed divine providence, which would convince him of the Torah’s truth. See Chazon Ish on Yoreh De’ah, Hilchot Shechita 2:16, 28. See also Yaakov Ettlinger, Responsa Binyan Tzion HaChadashot, no. 23; David Zvi Hoffman, Responsa Melamed Leho’il, no. 29; Rav Ovadia Yosef, Yabi’a Omer, vol. 1, Yoreh De’ah no. 11.

6. Some of my halakhic “opponents” may claim that I am overstating the case of wickedness and immorality as the reason for the law concerning yayin nesech, while the only real reason is idol-worship and its libations. However, this seems to me incorrect. What really bothered the Torah and Sages about idol worship were the abominable, immoral acts that were inherent to paganism and their accompanying libations. Under those circumstances, ethical monotheism could never succeed and flourish. For a careful study of this topic, see Menachem Meiri (1249-1316, France), Beit HaBechirah on Avodah Zarah, 15b, 22a and 26a. Much literature has been published on the Meiri’s understanding of the Gentile world. See Dr. Marc Shapiro, “Islam and the Halakhah,” Judaism: A Quarterly Journal of Jewish Life and Thought, vol. 42, no. 3, Summer 1993. See also Dr. David Berger, “Jews, Gentiles and the Modern Egalitarian Ethos: Some Tentative Thoughts,” in Formulating Responses in an Egalitarian Age by Marc D. Stern, ed. (Lanham, MD: Rowman and Littlefield, 2005) pp. 83-108. Whether or not ongoing libations and immoral acts actually took place is a matter of dispute. See Sacha Stern, “Compulsive Libationers: Non-Jews and Wine in Early Rabbinic Sources,” Journal of Jewish Studies, vol. 64, no. 1 (Spring 2013). See also Sanhedrin 63b.

7. It is most revealing that several early commentators on the Talmud were at one time not concerned about mixed marriages, since the non-Jews prohibited such marriages. See Ramban on Avodah Zarah 35b. See also Encyclopedia Talmudit, vol. 18, s.v. “Chatnut,” pp. 362-366.

8. See Avodah Zarah 29a. For a discussion on when wine is considered to be yayin mevushal, see RaN on Avodah Zarah 30a; Yoreh De’ah 123:3; Rabbi Moshe Feinstein, Igrot Moshe Yoreh De’ah 2:55 and 3:31.

9. For a general overview, see Encyclopedia Talmudit, vol. 24, s.v. “Yayin Shel Goyim,” pp. 330-498 and vol. 18, s.v. “Chatnut,” pp. 362-366. See also the following three works by Prof. Haym Soloveitchik: Yeinam: Sachar Be-Yeinam Shel Goyim al Gilgulah shel Halakha Ba’Olam Hama’aseh (Tel Aviv: Alma, 2003, Hebrew); HaYayin BiMei HaBeinayim: Yayin Nesech [Wine in Ashkenaz in the Middle Ages: Yayin Nesech – A Study in the History of Halakha] (Jerusalem: Zalman Shazar Center for Jewish History, 2008, Hebrew); “Can Halakhic Texts Talk History?” AJS Review, vol. 3 (1978) pp. 153-196.