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Rebuking a Fellow Jew: Theory and Practice (3)

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Translated by Rabbi Dr. Michael Berger

 

PUTTING A STUMBLING BLOCK BEFORE THE BLIND

 

     One of the more common problems that arises today is whether or not one is permitted to invite an unobservant Jew to a Shabbat meal when it is clear that he will be returning to his home by car and will thus violate the Shabbat.  With regard to the Friday night meal, most rely on the famous ruling that if we offer such a Jew a place to sleep, thereby affording him the opportunity not to desecrate the Shabbat, then we need no longer concern ourselves about his violation, even though it is clear that he will decline such an invitation.  There are situations, however, where such a reasoning cannot be employed.  It is well known that in a number of communities around the world, many Jews have been influenced by the Bnei Akiva movement to return to observant Judaism.  The major activity of this movement is Shabbat afternoon meetings, and it often happens that teenagers who live quite a distance from the meeting location apply for membership in Bnei Akiva.  The question, of course, is whether to accept them and ignore their probable desecration of the Shabbat or not, and thereby run the risk of "losing" them entirely.  On the one hand, there is more room to be lenient here, for what is at stake is merely a rabbinical prohibition against riding on a bus.  On the other hand, we are dealing with a regular, ongoing violation, not a one-time event.  In addition, there is also the issue of the public nature of this conduct, since the other members of the group will surely be aware of it.  Moreover, such behavior may also at times result in violating the Torah prohibition against carrying in the public domain, which the young adult may do.

 

     Rabbi Shlomo Zalman Auerbach suggests an approach with regard to the prohibition against "putting a stumbling block before the blind" that has far-reaching and novel halakhic consequences.  He suggests that while we do not allow someone to commit even a minor violation in order to save others from a greater sin, nevertheless it is permitted to "put a stumbling block before the blind" (e.g. offer food to someone who will not make a berakhah and thereby cause him to violate a particular detail of the law) in order to help him avoid stumbling over an even greater "obstacle" (i.e. doing something that may result in distancing him entirely from Torah and mitzvot, the concern being that if he is not offered the food, he will totally reject Judaism).  The reasoning behind this is that "it turns out that there is no sin here at all, for in this case there is no obstacle being set.  On the contrary, it is the removal of a very great obstacle, by actively exchanging it with a less serious one."(25) Similarly, he writes that if someone sees his friend drink the wine of 'orlah,(26) and is totally unable to prevent him from violating this biblical prohibition unless he hands him, instead, either wine from untithed grapes (tevel) or wine made by non-Jews (stam yayin), which are only rabbinically prohibited, he does not violate the prohibition of placing an obstacle before the blind since he is sparing his friend from an even greater stumbling block.

 

     The basic question is how far can we extend the scope of Rabbi Auerbach's insight, a subject which demands a thorough analysis.  For example, does this mean that we can allow a woman to immerse herself in a mikveh without washing her hair, a procedure normally prohibited, because she refuses to do so and would not immerse herself at all otherwise?  Would we permit a woman to count only the "seven clean days" after her period, but not the five days of her menstrual flow itself, before resuming sexual relations with her husband if otherwise she would not "count any days" at all?  The range of considerations here extend beyond the limited scope of "placing a stumbling block before the blind," and discussions of this subject have already appeared in the responsa literature of earlier generations.

 

     Simply put, are we permitted to instruct sinners to violate minor infractions of the halakhah in order to prevent them from committing greater sins or even just to bring them closer to observance and belief in general?

 

     The Rambam was the first to address this issue.  A Mishnah in Yevamot states explicitly:  "One suspected of having relations with a maidservant who was later freed, or with a non-Jew who later converted should not marry her, but if he did, we do not force him to divorce her (24b)."  In his Mishneh Torah, the Ramabam ruled in accordance with this Mishnah.(27) In one of his responsa, he addressed the questions as to whether a Jewish court was obliged to coerce a man to send a non-Jewish maid with whom he had sexual relations out of his house.  He wrote:

 

     It is clear that according to Torah law, he must remove her, even while she is still non-Jewish, for the Torah made concessions only to man's strongest desires, and this is not the proper way [of satisfying them]... Therefore, the Jewish court, after hearing such a report, must use every means at its disposal to force the person either to send the girl away, or free her (by which means she becomes Jewish) and marry her.  And even though we   rule that a person may not marry a freed maidservant with whom he has been suspected of fornication, here we rule the opposite in order to facilitate his repentance, saying it is better that he eat gravy and not the fat itself, and we rely on the statement of the rabbis:  When there is a need to act for the sake of God, then [one may] violate his Torah.  So here he is permitted to marry   her, and may God in heaven atone for our sins.(28)

 

     Subsequent scholars relied on this responsum to permit the conversion of a non-Jewish woman who had married a Jew civilly, when her intention is to marry him in accordance with Jewish law after she had converted.  R. Chayyim Ozer Grodzinski (1863-1940), for example, permitted the conversion of a non-Jewish woman under these circumstances, writing that "the Rambam's words are a fundamental principle."(29) R. Chayyim of Sanz (1793-1876) apparently had not seen this responsum of the Rambam and nevertheless, in a similar case, wrote that "we permit him a minor violation so that he will not come to commit more serious ones... Many have leaned towards leniency in such matters...  But we should not, God forbid, permit this easily, and it requires the consent of the rabbis in your surrounding area."(30)

 

     However, in regard to the rabbis' edict (Yevamot 42a) prohibiting one from marrying a pregnant or nursing woman until her child is twenty-four months old (the age an infant usually finishes nursing), there is a disagreement as to whether or not this prohibition can be waived in the event that the woman would engage in promiscuous behavior while single.  In this case, R. Yosef Karo (1488-1575) maintained that it is not permissible to suspend this minor prohibition in order to prevent the violation of an even greater one (promiscuity).  He considered the view which permits a promiscuous nursing mother to marry to be "an errant decision" and called upon "all wise scholars whose hearts have been touched by God to strongly oppose it."(31) R. Yehudah Mintz (c. 1408-1506), however, did permit such a woman to marry before her child reached twenty four months.  Although he acknowledged the novelty of his lenient decision, he felt that the circumstances necessitated such a ruling.(32) Based on R. Mintz's ruling, followed by R. Moshe Isserles (the Rama; c. 1525-1572), R. David Halevi (the Taz; 1586-1667) ruled that one should not excommunicate someone who would most assuredly cease observance as a result of the excommunication.(33)

 

     However, two caveats must be considered if we choose to follow this more lenient position:  1) R. Yechezkel Landau (1713-1793) pointed out that the Rama permitted only such a violation if it would be temporary, but if a lenient ruling would lead to the individual permanently violating the law then it could not be followed.(34) 2) The Otzar Haposekim records that most rabbinical decisors also reject the Rama's lenient position in cases where the couple will live together in violation of the laws of family purity.(35) One must therefore be very careful in drawing any inferences from the Rama's ruling.

 

     R. Naftali Tzevi Yehudah Berlin (the Netziv; 1817-1893) was asked about a case in which a woman who was suspected of not having observed the laws of family purity was "now moved by a desire to cleanse herself in pure waters," but only on the condition that she be allowed to immerse during the day, and not at night, which is the lawful time for immersion.  If permission was not granted her, she claimed that she would continue to sin and not immerse at all.  Despite the fact that immersing during the day is a relatively minor prohibition, the Netziv was unsure whether such behavior could be permitted, even under such circumstances, in light of the fact that the very prohibition was instituted lest other women see her immersing during the day and think that on the seventh day (rather than after seven complete days, i.e., the eighth night) a woman is permitted to immerse.  The response implies that if the considerations had been limited only to the conflict between a minor violation and a more serious one he would have permitted it.  However, the Netziv concludes his response by stating that "the principle that one may suspend one prohibition for the sake of another must be exercised most sparingly."(36)

 

     R. Yechiel Yaakov Weinberg (1885-1966) was approached by a French ritual slaughterer, appointed to be in charge of the community's butchers, who saw that those belonging to the more liberal segments of the community were not concerned at all with the laws of terefot.(37) If he were to check the animals and inform the butchers which ones were not kosher, they would eat the meat themselves anyway and also sell it to others, thereby violating a Torah prohibition.  He asked whether, under these circumstances, it would be better not to check at all and rely on the fact that the majority of animals are not blemished in a way that would render them unfit for eating, for Torah law allows an animal to be eaten even without checking.  In his response, R. Weinberg deals at length with the definition and scope of "putting obstacles before the blind" and "abetting sinners," leans towards a lenient position, but then concludes that "all I have written is for academic purposes [only], and not for a practical ruling.  The final decision should come from the leading scholars of the generation, in Israel and the Diaspora."(38)

 

     Similarly, Rabbi Ovadyah Yosef (b. 1920) was approached by a slaughterer who had been asked by a nonobservant Jew to slaughter a chicken for him.  In the course of handling the bird, the slaughterer detected that its wing was broken near the joint next to the ribcage, a defect that renders it automatically unkosher.  However, he felt that were he to refuse to slaughter the bird, the owner would slaughter it himself with a regular kitchen knife (which is invalid for ritual slaughter), and would eat the chicken despite the warnings of the slaughterer.  Should he therefore slaughter the blemished chicken himself or not?  Rabbi Yosef cited the responsum of R. Tzevi Pesach Frank (1873-1960) who was asked by a slaughterer for a kibbutz that did not observe kashrut whether or not he had to check the animals. He concurred with R. Frank's decision not to require it, and added parenthetically, "and I ruled similarly here in Tel Aviv to allow ritual slaughter without an inspection of the lungs, in order to spare some from the potential prohibition ('obstacle') of slaughtering the animal with their own invalid knives."  Rabbi Yosef cited many responsa of recent scholars who absolutely forbid the suspension of a rabbinical ordinance in order to spare someone from a more serious offense.  Yet, he concludes:

 

     The principle of permitting a minor violation for the sake of [avoiding] a more serious one must be exercised most sparingly.  Just like in the case of healing the  body, a doctor sometimes decides to amputate the hand to prevent the spread of the disease to the rest of the body, and sometimes decides to leave things as they are, all decided upon with the counsel of other doctors, so too should this procedure be followed with the healing of the soul.  One must consult many erudite and esteemed Torah scholars, so that the decision should not cause any damage, God forbid.(39)

 

     It is noteworthy that a large proportion of the recent responsa dealing with such matters relates to problems arising with individuals who may become entirely unobservant if we do not permit them a certain leniency, or refer to nonobservant individuals whom we want to help avoid more serious violations.  The major question for us is whether, in our time, given the grave situation in which Judaism finds itself, the general, more strict considerations here outlined should be reconsidered and, as a broad guiding principle, we should be required to adopt a more lenient posture, in order to draw the hearts of Jews nearer to God. 

 

Notes: 

*    A more elaborate Hebrew version of this essay appeared in Sefer Hayovel Le-Rav Mordekhai Breuer.  This translation originally appeared in Jewish Tradition and the Non-Traditional Jew, ed. R. Jacob J. Schacter, 1992. 

25. See Rabbi Shlomo Zalman Auerbach, Sefer Minchat Shlomo (Jerusalem: Makhon Sha'arei Ziv, 1986), no. 35:1.  This principle had already been formulated by R. Akiva Eger in his commentary to Shulchan 'Arukh, Yoreh De'ah 181:6. 

26. 'Orlah is the Torah prohibition against deriving any benefit from the fruit of a tree during the fist three years after it was planted.  This applies to vines and their grapes as well. 

27. Hilkhot Gerushin 10:14. 

28. See Rambam's book of responsa, Sefer Pe'er Hador, no. 132. 

29. See R. Chayyim Ozer Grodzinski's Teshuvot Achi'ezer 3:26. 

30. See R. Chayyim of Sanz's She'elot Utshuvot Divrei Chayyim, Even Ha'ezer, no. 2:36. 

31. See R. Yosef Karo, She'elot Utshuvot Beit Yosef, Even Ha'ezer, in the responsa following the Laws of Ketubot, no. 1. 

32. See R. Yehudah Mintz, She'elot Utshuvot Mahari Mintz, no. 5.  This dispute is cited in the Shulchan 'Arukh (Even Ha'ezer 13:11).  Rabbi Yosef Karo is consistent with the opinion expressed in his responsum and forbids such behavior while R. Moshe Isserles follows the opinion of R. Mintz. 

33. Taz, Yoreh De'ah 334:7. 

34. See R. Yechezkel Landau, Noda Bihudah, Mahadurah Tinyana, Even Ha'ezer, no. 34. 

35. Even Ha'ezer, ad loc. 

36. See R. Naftali Tzevi Yehudah Berlin, Meshiv Davar, no. 2:43, 44. 

37. If a blemish is found on an animal, usually on the lung, but also on other organs and tissues, such that the animal would most likely have died within twelve months had it not been slaughtered, then the animal is not considered to be kosher (i.e., it is terefah), and cannot be eaten by Jews. 

38. Seridei Esh, no. 2:57. 

39.  Yabia' 'Omer, Yoreh De'ah, no. 6:3.

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