Laws of Torah Study, Chapter Six: A Lost World of Informal Communal Discipline

How do societies maintain their standards? This is a question that can apply to any sized society, from a family to a nation.  Part of the answer, I think we will see from this week’s discussion, is the informal application of social pressure. Three related institutions, נזיפה, נידוי, and חרם, nezifah, nidui, and cherem, show us how that used to work.  At the same time, seeing how they were meant to work makes clear why people would be uncomfortable with them.

The Dangers of Disrespect for Torah Scholars

In 6;11, Rambam notes that it is a great sin to disparage Torah scholars, adding the view of R. Yehudah from Shabbat 119b, that Jerusalem was not destroyed until they ridiculed Torah scholars. The prooftext is II Divrei HaYamim 36;16, which explains why Hashem brought the Babylonians to capture Jerusalem, destroy the Beit haMikdash, and exile Jews young and old.

It was because Hashem had long sent מלאכיו. We often translate that as angels, but it can also mean messengers, who tell the people the error of their ways. Instead of listening, the people insulted the messengers and disparaged Hashem’s words.

In using that verse in the context of mistreating Torah scholars in general, R. Yehudah (and Rambam by quoting it—note that he does not quote any of the other ideas for why Jerusalem was destroyed) is saying both that Torah scholars are the messengers of Hashem, whom we are supposed to heed, and, second, that to mistreat a Torah scholar is ipso facto to show contempt for the word of Hashem.

Kessef Mishneh adds that Sanhedrin 99b has a discussion of the definition of apikoros, and one version had it that Rav and R. Chanina held that an apikoros is one who mistreats a Torah scholar (the other view was that it was a person who reviles a friend in front of a Torah scholar, meaning that even just acting inappropriately in front of a Torah scholar earns that title).

Why We’re Uncomfortable With This

After I spoke about this this past Shabbat, a listener approached me to say that this was obviously a way for Torah scholars to bolster their communal standing. This was the second time this happened to me recently; I spoke on Shavuot night and mentioned the necessity of the Oral Law for understanding Torah, and the tradition that both were given at Sinai. Afterwards, a woman approached me to express her view that it was obvious that the Rabbis claimed the Oral Law had been given at Sinai to pad their authority.

Interestingly, Sanhedrin 99b also cites R. Yosef, who says an apikoros is someone who says, “how have Torah scholars helped us; they learn Torah and Mishnah for their own purposes.” (Rashi adds, “and don’t realize that they—Torah scholars—are the ones who keep the world going.”)

The assumption that Torah scholars consciously bend Torah to their own purposes (where one does not have solid evidence that it has happened), aside from possibly being the definition of apikorsut, is itself a barrier to the whole system we are about to explore.  Halachah makes clear that Torah scholars are different than ordinary people and need to be treated differently, which many of us instinctively reject.

One reason, perhaps, is that we live in a time when great knowledge is—unfortunately– no guarantee of good behavior (that reaches back to issues of the obligation of a teacher to be sure he only teaches worthy students, as we’ve discussed).  Too, we no longer trust systems like that because we have seen them abused, both in the name of authority figures and by society in general; shunning has a bad history in many circles, and many of us assume Jews would handle it just as badly.

It is a case of allowing problematic applications of an idea to convince us not to apply it at all. True, Torah scholars sometimes act wrongly and need to be reined in (we’ll see how next week). True, some societies or communities are too quick to shun those who do not deserve shunning. But there is a positive side to these practices that we can only see by examining where they were meant to come into play.

The Seeds of Failure

We’ll get into the specifics of how נידוי works, for Torah scholars and for ordinary Jews, next time; for now, it’s enough to say that it involves the מנודה, the person who has been ostracized or shunned, accepting that status and acting in certain required ways, and the rest of the community restricting their interactions with that person (such as by not counting him for a quorum for certain religious rituals).  Even that brief description shows how dependent the system is on communal buy-in—if the person refuses to cooperate, and finds those willing to ignore the call for his or her ostracism, it becomes very tenuous.

Once a relatively small group of people are willing to disregard an announced nidui, it has no teeth. This is often true, for example, for men who refuse to give their wives a get; such men often also refuse to appear before the beit din, the court, that summons them, which itself deserves nidui. Yet they continue their lives, with their friendships and communal participation intact. We all cluck our tongues at how horrible that is, but don’t realize we might respond the same if such an edict was issued for some reason we didn’t immediately find convincing.

Some Jews, I think, don’t mind this all that much, because they have lost faith in the ability of a homegrown court system to handle these problems, and certainly not to handle them with anything so informal as nidui.

I think the opposite is true: as I heard R. Moshe Lichtenstein say about financial issues in halachah, it is when halachah is practically applied that it functions best and finds practical solutions to problems that arise.  I think the same is true of these versions of communal discipline, and that our loss of it in fact has hurt our communities.

Who Metes It Out?

In 6;11 of Laws of Torah Study, Rambam had said a person who reviles a Torah scholar loses his or her share in the World to Come. 6;12 adds that despite that consequence, it is also true that if there were witnesses to the misdeed, a court would ostracize the perpetrator.

Once that happens, the decree stays in effect until the one ostracized appeases the Torah scholar in question (next week, we’ll see that Rambam recommends the Torah scholar being lenient about this, where possible, and not excessively invested in his honor. But, as we will also see, sometimes the honor of Torah obligates scholars to insist on proper treatment, even by ostracizing the one who refuses to).

Without that, a Torah scholar still has the authority and right, in public or in private, to punish someone this way. That’s a two-edged sword: one of the other ways to earn nidui is by wrongly declaring nidui on someone else.  But one important context of nidui is when a Torah scholar is mistreated; by ostracizing the person who does that, we remind that person and all of us that knowledge of Torah is an important communal resource, and that we all owe a different kind of respect to such people than to ordinary Jews.

For those who worry about Torah scholars acting inappropriately with impunity, one of the ways to incur nidui is to be a Torah scholar who sparks scandalous rumors. Ritva to Mo’ed Katan 17a says that this refers to one whose conduct gives reason to suspect he is not as careful about sexual matters as he should be.

Mistreating Torah Scholars or Their Laws

When Rambam speaks of giving nidui for mistreating Torah scholars, he includes doing so after their deaths.  That comes from a story in Eduyot 5;6 about Akavya b. Mahallel, a man learned enough to be worthy of being second in command of the Sanhedrin.  He disagreed with the other Sages on four halachic issues, refusing to recant (Sanhedrin 88a says he wasn’t killed for being a rebellious elder only because he did not rule practically on these matters).

What got him shunned was the claim that Shemayah and Avtalyon acted halachically wrongly in one case, which Rambam understood as disrespectful.

R. Yehudah claims Akavya was too righteous to have been put in nidui. He says it was Elazar b. Chanoch, ostracized for doubting the obligation to wash hands; Rambam expands that to include anyone who denies the obligation to follow any Rabbinic law (violating the second day of holidays is its own category, since the second day might be “only” a custom).

The Ostracisms of Shimon b. Shetach

Berachot 19a tells us of two cases where Shimon b. Shetach told someone prominent he deserved to be ostracized. The first is independently famous, Honi ha-Me’agel’s drawing a circle and saying he would not leave it until Hashem sent rain. There’s a whole story there, but the upshot is that the rain in fact came.

What is less well known is that the Mishnah reports that Shim’on b. Shetach, the head of the Sanhedrin, sent Honi a message that he deserved nidui, but for the fact that Hashem accepted his inappropriate prayer, like a parent with a wayward child. The Gemara defines Honi’s wrongdoing as having been מגיס דעתו כלפי מעלה, acting arrogantly towards Hashem. Meiri takes that at face value, that Honi prayed with presumptuous certainty he would be answered.

Rambam, however, records the problem as his risking a desecration of Hashem’s Name. Had his prayer gone unanswered, for whatever reason, people would have learned a wrong and negative lesson. Opening that door opened Honi to nidui.

Todos of Rome received a similar missive from Shim’on b. Shetach, for encouraging Jews of his community to eat roasted goat at their Pesach Seder.  Since people might assume they were actually offering a Paschal sacrifice, they might then offer and eat sacrifices outside of the Beit haMikdash.

Note that these last two cases, while they establish situations of appropriate ostracism, also show that a leading Torah scholar can refrain from imposing it. Shimon b. Shetach seemed to think that noting that a person’s actions merited ostracising was sufficient in those situations.

Rejecting the Authority of Beit Din

We don’t have space to review the entire list, nor are all of the ways of incurring nidui immediately interesting. I do want to note that three causes are failures to accept beit din’s authority. Mistreating the messenger of the court, refusing to respond to a court’s summons, and refusing to follow a court’s verdict are, each of them, sufficient cause for being ostracized.

For that second one, I hasten to add that a court cannot always require us to adjudicate a case in front of it, but we are required to respond to its’ summons, even if only to inform the court that we plan to try the case somewhere else.

Because even a court’s authority, let alone smaller or larger groups’, cannot be backed solely by official proceedings and punishments.  Just as a family cannot operate if its members question each step as it’s being taken— so that the parental “because I said so” is valid in many situations—societies function smoothly only when its members adhere to, and require of others that they adhere to, the fundamental rules of that society (consider the West Point honor code “A cadet will not lie, cheat, steal, or tolerate those who do”). To require behavior necessitates the members of society, not just law enforcement officials, refusing to cooperate with or even shunning those who violate social norms and mores.

When Jewish society lost this as a viable tool, it also lost one of its main ways of effectively espousing certain values. While some communities still have enough of that system to hold to certain standards of conduct, many Jewish communities do not.  Which means that when someone flouts community standards, there’s not much to do other than wring hands and gossip.

That wasn’t how it was supposed to be.  Part of our engagement with Torah and the scholars who acquire, maintain, and pass on that Torah knowledge was supposed to be the reminder that we need such avenues of discipline, both from Torah scholars and from the community at large.  חבל על דאבדין ולא משתכחין, it is a sad loss for us that do not have it (judiciously administered, as we’ll discuss next week). Sadder still that most of us do not realize what we’ve lost.

About the Author
Rabbi Dr. Gidon Rothstein has served in the community rabbinate and in educational roles at the high school and adult level. He is an author of Jewish fiction and non-fiction, most recently "We're Missing the Point: What's Wrong with the Orthodox Jewish Community and How to Fix It." He lives in Bronx, NY with his wife and three children.