Jonathan Muskat

Why do rabbis create halachic loopholes to solve some problems and not others?

One of the questions that we often hear is why can’t the Rabbis create a loophole in order to allow something that is viewed as a pressing need in today’s society.  I’m sure we can think about a number of current examples, such as freeing agunot, allowing kohanim to marry divorcees, or providing greater opportunities for women’s spiritual leadership. After all, the Rabbis have found ways for us to lend money with interest to Jews and to ensure that loans aren’t automatically canceled in the shemitta year, so why can’t they come up with loopholes for the pressing needs of 2021?  First, I would like to provide two approaches to explain in general when loopholes are recommended or not.  I will apply the rationales underlying these approaches to a number of common halachic loopholes.  Then I would like to share one additional important caveat to the entire discussion followed by a suggestion of how we would apply this analysis to some of the current issues that are commonly discussed when the topic of halachic loopholes is raised.

Black’s Law Dictionary defines a loophole as, “An ambiguity, omission, or exception (as on a law or other legal document) that provides a way to avoid a rule without violating its literal requirements.”  An early example of this is the Gemara in Masechet Brachot 35b.  There the Gemara states that whereas earlier generations would bring in their produce by way of the front door in order to make it liable for tithing, later generations would bring their produce by way of roofs, yards or enclosures to exempt the produce from tithing. Clearly, this statement reflects the negative attitude of our Sages towards the moral legitimacy of later generations who avail themselves of these loopholes. Why do they frown upon this loophole but are supportive of other loopholes?

In his Sefer “B’Ikvei Tzon,” Rav Herschel Schacter suggested that we frown upon a loophole if it’s created to avoid observing a positive mitzvah.  However, we are supportive of a loophole if it’s created to avoid violating a prohibition.  If I have the opportunity to perform a mitzvah and I employ a loophole to avoid performing that mitzvah, then we are unhappy with that loophole.  That’s why the Gemara frowns upon bringing my produce through the roof of my house because in doing so, I am exempting myself from performing a mitzvah.  In an article entitled, “Ha’arama in Halakha – The Facts, The Mechanism, and the Objective,” Rav Mosheh Lichtenstein wrote, “Observance of the mitzvot is not just a command and an assignment, but also a favor that God performs for His creatures.  In other words, the mitzvot are an expression of God’s love for His creations and His desire to fill them with merit.”  Why would we want to engage in a halachic loophole to exempt ourselves from such an opportunity?  It is akin to someone saying I don’t want to eat bread because then I will need to wash and recite Birkat Hamazon. Halacha frowns upon someone who wants to avoid these beautiful spiritual opportunities. However, if the purpose of the loophole is simply to avoid violating a prohibition, then that is an acceptable loophole.

Rabbi J.D. Bleich wrote an article in the sixth volume of “Contemporary Halakhic Problems” where he doesn’t make the distinction between exempting ourselves from a positive mitzvah and avoiding the violation of a prohibition.  Rather, he distinguishes between whether the reason for the loophole is legitimate and desirable or not.  He explains that the purpose of tithing produce is to provide a livelihood for the Leviim who were required to serve in the Mikdash and to teach the nation.  If there were no tithes, then the Leviim would have been compelled to seek employment as workers, thereby making it extremely difficult for them to discharge their sacred duties.  Therefore, our Sages frown upon evading this clearly positive goal.

A second example of a loophole is the mitzvah of “bechor.”  The bechor, or the first-born male offspring of a cow or sheep belonging to a Jew, is sanctified from birth to be brought to the Mikdash as a sacrifice.  With the destruction of the Mikdash, sacrifices were no longer brought.  However, the sanctity of the first-born animal was not mitigated.  After the animal is born, the animal is supposed to be given to the kohen and the kohen waits for the animal to develop a blemish and then the kohen can slaughter the animal.  The animal may not be used as a beast of burden and it may not be sheared for wool until it develops a blemish.  This is a sin waiting to happen because someone may forget and shear the animal for its wool before it develops a blemish.  That is why the Shulchan Aruch (Yoreh Dei’ah 320:6) rules that nowadays there is a mitzvah to engage in a halachic loophole by transferring ownership of the pregnant animal to a non-Jew before birth and then reacquire it after birth.

Why do we recommend a halachic loophole in this instance?  Rabbi Schacter argues that the goal of the loophole is not to avoid performing a positive mitzvah.  After all, we cannot sacrifice a first-born animal nowadays.  Rather, the goal of the halachic loophole is to avoid the possibility that we will violate a prohibition, which is permitted. Rabbi Bleich argues that this circumvention of the law represents a situation in which fulfillment of the underlying purpose has become impossible and the loophole deals with the current reality that there is only a downside and little halachic upside of not utilizing the loophole.

A third example of a halachic loophole is selling chametz before Pesach to a non-Jew and then repurchasing it after Pesach. Some poskim, like Rav Soloveitchik, frowned upon using this loophole for real chametz. Rav Schacter disagreed with this position. For Rav Schachter, using a loophole to avoid the prohibition of owning chametz on Pesach should be acceptable.  However, by selling the chametz to a non-Jew instead of destroying it, am I avoiding the positive mitzvah of “tashbitu,” of destroying the chametz (assuming that we can only fulfill this mitzvah by actually destroying it and not simply selling it)?  Nevertheless, even according to Rav Schacter, if I sell most of my chametz to a non-Jew, as long as I destroy the last bit of my chametz before Pesach, then I would fulfill the mitzvah of “tashbitu.”  As such, using the halachic loophole of selling my chametz to a non-Jew should not pose a problem according to Rav Schacter.

Rabbi Bleich believes that that halacha is neutral regarding whether you can sell the chametz to a non-Jew.  After all, there is a mitzvah to simply ensure that you don’t own chametz on Pesach and there are at least three equally acceptable ways to accomplish this goal.  I can burn or destroy the chametz, I can eat the chametz or I can give the chametz away.  As such, there is no prohibition to sell the chametz to a non-Jew before Pesach and then, in a separate transaction, purchase the chametz from the non-Jew after Pesach.

A fourth example of a halachic loophole is the heter iska.  During the Middle Ages, Jews turned to commercial pursuits, particularly when they were forbidden to own land.  Very often they were in the business of buying and selling goods and this often required an investment in capital which few individual Jews possessed.  In the sixteenth century, Rav Mendel Avigdors of Cracow composed the earliest version of the heter iska.  The goal is to create a heter iska, a partnership arrangement as distinct from a loan agreement.   Rabbi Bleich argued that in Biblical loans, the purpose of the loans for the most part was perceived as an act of charity.  Indeed, the Torah characterizes the recipient of the loan as a poor person.  Lending someone money was perceived as a higher form of charity because the recipient of the loan receives funds without being deprived of dignity.   The Torah is very clear that the goal is for the poor person to sustain himself.  The lender is obligated to help a person in need but he has no obligation to assist a person in amassing wealth.  Therefore, a heter iska for a commercial loan would not violate the spirit of the law and would be an acceptable loophole.

According to Rav Schacter, it would seem that using a heter iska would simply avoid the prohibition of lending with interest, which should be acceptable according to his theory of when halachic loopholes are acceptable.  However, there also is a Torah obligation of “v’hechezakta bo… v’chai achicha imach,” of supporting the person, and of lending the person money so that he could live amongst us.  By transforming the loan into a partnership and effectively charging interest through the use of a loophole, are we avoiding the positive mitzvah of lending money without interest?  In response to this issue, Rav Baruch Ha-Levi Epstein (Torah Temimah, Vayikra 25:36) asserts that in the Middle Ages when we became a nation that sustained ourselves solely on commerce, then if we would lend people money without interest then we would not be able to fulfill the Torah’s requirement of “v’chai achicha imach,” of ensuring that our brother would live amongst us, because we would not be able to survive by making commercial loans without profiting from the loans.  Indeed, in the last century, Rav Chaim David Ha’Levi, the Sephardi Chief Rabbi of Tel Aviv, argued that I am prohibited to use a heter iska to lend money to a poor person so that I can evade the technical prohibition of charging interest, but I may use a heter iska to lend money for commercial purposes.

We should note that in ascertaining the legitimacy of a halachic loophole, Rav Schacter is asking a simple question of whether we are avoiding a positive mitzvah or whether we are avoiding a prohibition and Rabbi Bleich is trying to ascertain the underlying goals of the mitzvah and if we can determine that the halachic loophole does not undermine the goals, then we may utilize the loophole.  Rabbi Mosheh Lichtenstein made the important point that “[T]here is no need to emphasize the danger lying in the attempt to examine each and every mitzva in light of its reason, for the reasons for the mitzvot are concealed from us and how can we know the mind of the Almighty. Many reasons have been offered by many commentators; who can say which are more correct or less correct, and what are the esoteric that are hidden from us, and how can we rely on such a distinction. Indeed, the concern about error is real and sets a great warning sign before us.”  At the same time, he acknowledged that sometimes the underlying reasons for a particular mitzvah are quite evident.  For example, regarding the halachic loophole of prozbul, which allows the lender to avoid releasing debts during the shemitta year, he explains that, “Releasing debts was intended to provide a poor person who had been forced to take a loan with the opportunity to open a new page once every seven years, without the burden of past debts preventing him from ever rehabilitating himself. The classic borrower in the Torah is a poor person who needs a longer economic breathing space (“If you lend money to my people, to the poor man among you…”), and if he fails to rid himself of the burden of debt that is oppressing him, the mitzva of charity requires that the debt be released. It is clear as day that the Torah never meant that every seven years this mitzva should give a windfall profit to large economic concerns like banks or insurance companies.”  As such, Rav Lichtenstein agrees that at times it is justifiable to make the claim that a halachic loophole is legitimate because we are aware that the underlying goal of the mitzvah will not be undone through the use of the loophole.

Dr. Elana Stein Hain, resident scholar of the Shalom Hartman Insitute, wrote her doctoral dissertation in Columbia University on the topic of “Rabbinic Legal Loopholes: Formalism, Equity and Subjectivity.”  In this paper, she compared deontologists to consequentialists.  Consequentialists only are concerned with what is right and equitable, whereas deontologists value the law itself and are constrained by the law.  Deontologists may not change the law even if they feel that it is equitable to do so.  Therefore, in order to create a legal loophole, we need both a legal mechanism plus desirable goals that doing so is equitable.  She provides an example to explain the difference between deontologists and consequentialists.  “If there is only one respirator available and a terminally ill patient is connected to it, should the hospital administrator demand that the respirator be disconnected and given to a more promising patient?  According to consequentialists, the answer is yes: in order to save a person whose chances for survival are great (or simply superior to other patients), one may actively remove the necessary life sustaining resources from someone who shows little or no hope of recovery. For deontologists, however, there is a constraint: maximizing the good cannot come at the expense of moral behavior. Deontologists instead offer the following scheme. Ordering respirators that must be disconnected for servicing and repair every few weeks may solve the problem. When the respirator connected to the terminally ill patient is disconnected for servicing, the hospital staff would simply not reconnect it to that patient, but would connect it to a more promising patient. For deontologists, the passive process is more acceptable than the active removal of care, and so this may be done in order to maximize positive results.”  In applying this analysis to halachic loopholes, it is important for us to realize that halachic authorities are deontologists.  Even when halachic authorities desire certain end goals, sometimes they feel constrained by the legal mechanism necessary to create the loophole.

How would we apply this analysis of halachic loopholes to some of the most sensitive issues facing our halachic community today?  When it comes to issues like mamzerim and kohanim marrying divorcees, I think that there is a clear desire by the YU Rabbinic community with which I associate to try to find a way, in the case of the kohen and divorcee, to annul the first marriage where it is possible and, in the case of the mamzer, to try to ensure that a child should not be considered a mamzer such that he cannot marry anyone.  In the case of potential mamzerim, there is a general policy not to investigate when there’s a possibility of mamzerut and not to rely on circumstantial evidence. There is a story with Rav Moshe Feinstein, where he was officiating at a wedding.  At the last moment the groom’s mother came over to Rav Moshe and said that her son was born from a different man while she was a married woman. Without batting an eyelash, Rav Moshe said to continue the wedding as “Aid Echad Aino Ne’eman B’isurim” — we do not trust one witness by such cases.

However, if someone is found to be a mamzer according to the high evidentiary standard from the Torah, e.g., if there was a bona fide first marriage, no Get, followed by a civil divorce and then a civil marriage to another husband and the second marriage produces a child, there may not be much to do despite how tragic the situation is.

I believe that the same analysis is true with regard to the agunah issue.  I think that there is a clear desire by the rabbinic community with which I associate myself to try to solve the agunah problem and to use every legitimate legal loophole to accomplish this goal. In fact, in halacha we try to be as lenient as possible when it comes to agunah issues. The Gemara states, “mishum iguna akilu bah rabanan,” that more lenient standards were adapted for the agunah, in this case evidentiary standards to determine if a husband is dead.  The trick with many agunah situations is how to dissolve a bona fide marriage.  When it comes to prozbul and heter iska, the Rabbis created a structure to allow for a loan without interest or without shemitta invalidating it so, too, they tried to create a structure of Jewish marriage that won’t fundamentally alter the sanctity and structure of Jewish marriage and will try to solve the agunah problem.  The Rabbis came up with the prenup which has proven to be successful in solving the problems of agunah for those couples who signed this agreement.  Some people have provided other solutions like annulling any marriage where the husband doesn’t want to give a Get.  The reasons why many halachic authorities may not accept some of these solutions is not because they do not desire to end the agunah’s suffering, but the limits are based on deontology as to what can be done.  Indeed, if they truly believed that some of the proposed solutions do not work halachically, then by allowing these loopholes and allowing the woman to remarry and start a new family then you could potentially create mamzerim.  That being said, the agunah issue is not a completely deontological issue because we could essentially eliminate the halachic institution of marriage and replace it with a type of union modeled after the “pilegesh,” the concubine, a union of sorts between man and woman that might not require a Get to dissolve.  The reason why this solution hasn’t been seriously considered by the overwhelming majority of halachic authorities is the overwhelming concern that eliminating the halachic marriage contract would destroy the sanctity of marriage,  weaken the strong bond between man and woman created by marriage, and likely lead to a more promiscuous society.  As such, creating a halachic loophole to solve the agunah problem by nullifying existing marriages would present an insurmountable deontological issue.  Doing away with the marriage contract altogether would present a utilitarian issue which would be catastrophic to the Jewish notion of family, and as such is not a viable option.

When it comes to women’s spiritual leadership, my feeling is that the hesitancy among some halachic authorities to use loopholes is not based on deontology, on the technical ability of creating halachic loopholes, but the issue is perhaps more of whether the goals are desirable,  and there is an ongoing halachic conversation about this issue.  The Rambam holds that the prohibition of serarah applies not just to female monarchs but to all positions of authority and a Rabbi would be included in this prohibition.  However, other Rishonim disagree with the Rambam and, in practice, women do have certain positions of authority in other areas of life that seem to be acceptable in the orthodox community.  The consensus of Rishonim seems to be that women cannot be judges.  At the same time, in many communities, women do many of the same things that a shul Rabbi does.

It would seem to me that for a number of halachic authorities, the question of the parameters of women’s spiritual leadership does not stem from a deontologist perspective, that there is no way that we can create a loophole to allow for increased spiritual leadership on the part of women.  Rather, it seems that the debate relates to the consequentialist issue, the desirability of such a position in Jewish communal life.  Very often, the discussion regarding certain aspects of women’s spiritual leadership revolves around the question of “halachic ethos,” which to me is a question of meta-halacha and not necessarily pure halacha.  I think that the halachic authorities in my camp may be divided on this issue.  The needle has moved in the past number of years to include Yoatzot Halacha, for example, and the discussion to expand women’s spiritual leadership roles may continue in this vein, in a way that it cannot, let’s say, when it comes to permitting mamzerim to marry.

Hopefully, we can appreciate some of the variables that go into the decisions about when to create halachic loopholes and when not to create them and perhaps what future solutions may look like in dealing with some of these challenging situations.  For example, maybe new creative halachic loopholes might be discovered to deal with agunah situations when a couple didn’t sign a halachic prenup.  Maybe certain attitudes about the desirability of certain religious behavior and practices may change regarding women’s spiritual leadership as a result of continued conversations between our community and our halachic authorities, like the shift that occurred in our community regarding Yoatzot Halacha.  I don’t know.  Only time will tell.

About the Author
Jonathan Muskat is the Rabbi of the Young Israel of Oceanside.
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