IJII

The Discourse
of Halakhic Inclusiveness

Rabbi Dov Linzer

Rosh HaYeshiva and
Dean, YCT Rabbinical School

Since the beginning of the modern
era, the halakhic community and its decisors have had to grapple with the
question of what halakhic status to give to the majority of Jews who were now
non-observant. The Talmud (Eiruvin 69b)
had ruled that a public desecrator of Shabbat was considered invalid to perform
certain halakhic acts and Rambam (Laws of Shabbat 30:15; Laws of Divorce 3:15)
declared that he was categorically invalid, going so far as to state that such
a person was to be considered like a non-Jew in all areas of halakha. What, then, was to be done in the period
following the Haskalah, when most Jews were no longer Sabbath observers? Were the large majority of the Jewish people
to be considered halakhically as non-Jews?

While
a number of decisors did, and continue to, rule in such a way, other great
decisors found halakhic means to adopt a more inclusive policy. The groundbreaking responsum on this issue
was penned in 1861 by Rabbi Jacob Ettlinger, teacher of Rabbi Azriel Hildesheimer and Rabbi
Samson Raphael Hirsch, and author of the Arukh La-Ner. Rabbi Ettlinger posits using the principle of
tinok she’nishba, the infant taken captive and brought up in a
non-Jewish household, and who, as an adult, is unaware of his Jewish
identity. The Talmud (Shabbat 68b) had
ruled that such a person was not to be held liable for his transgressions, and
Rambam, later in his life (gloss to Mishna Commentary, Hullin 1:2, gloss to
Laws of Rebels 3:3), had applied this category to Karaites who grew up in Karaite
homes and could thus not be held responsible for not adhering to Rabbinic
beliefs and commitments. [It is worth noting that in those passages Rambam only
ruled that we were not to seek out their destruction, and did not actually use
this principle to argue for genuine inclusion.
See, however, his responsum #449, where he does promote a proactive
inclusive policy in regards to Karaites.]
While Rambam’s ruling had been debated, it was by-and-large accepted by
later decisors (see, for example, Mishneh Berurah 385:1). On the basis of this precedent, Rabbi
Ettlinger ruled that the children of the Reformers who had broken away from
traditional Judaism, but who themselves had been raised in a Reform household
and did not know any better, should be placed in the category of tinok
she’nishba (Binyan Tzion HaHadashot 23).
Following his lead, almost all poskim who have adopted a more inclusive
position have used the principle of tinok she’nishba to justify their
rulings. While the tinok she’nishba category
would seem to exclude a now-secular person who was raised in an observant
household, Rav Kook called for a welcoming and inclusive stance here as well,
using the principle of ‘ones, involuntary compulsion, and stating that
even such people have been seduced by the almost irresistible cultural and
intellectual forces of the larger society (Iggrot Reayah I:138).

It would seem, then, that for those wishing to adopt a more
inclusive policy, the halakhic groundwork has been well laid and firmly
established, and no more conceptual grappling or deliberations are left to be
done. This is not the case. For while the desired end result has been
achieved, the path that has brought us there and the resultant discourse that
we have created is less than ideal. Is
not the use of tinok she’nishba vis-à-vis our coreligionists patronizing
and infantilizing? Imagine if the
situation were reversed. Consider a
responsum from one of the other denominations deliberating on whether it was
appropriate to count an Orthodox Jew towards a zimmun, or whether one
could fulfill one’s obligation of keriat
megilah if the megilah were read by an Orthodox
Jew. Given that Orthodox Jews affirm such
“unethical” religious institutions as mehitsah, mamzerut and agunah,
this responsum would argue, they should be excluded from performing such
religious functions. This
imaginary responsum (and responsa such as this do, in fact, exist) would
conclude, however, that Orthodox Jews are indeed valid inasmuch as they cannot
be held responsible for their “unethical” beliefs, as they are all tinokot
she’nishbu. What would be our
reaction to such inclusiveness? Would it
be satisfaction with the end result, or anger and frustration over how our
beliefs and commitments had been trivialized?
The truth is, that if non-Orthodox Jews are tinokot she’nishbu as
a result of their education and upbringing, then Orthodox Jews are as
well. Indeed, every person on this planet
is a tinok she’nishba, to the degree that his or her beliefs and
commitments are historically, societally, and environmentally conditioned. If we are prepared to make this claim
regarding others, we must make it regarding ourselves. Both out of self- respect for my own
convictions, and out of respect for the differing convictions of others, I, for
one, am profoundly reluctant to use the category of tinok she’nishba or
its related category of ‘ones.
Whether these are the arguments we give to our congregants and
colleagues, or whether they are just the arguments we articulate to ourselves,
they produce a discourse that does not do justice to a truly inclusive and
respectful approach towards our fellow Jews.

What other justifications for inclusion, then, are available?
Interestingly, in Rabbi Ettlinger’s responsum two other justifications appear
before he posits the tinok she’nishba category. Those two arguments warrant revisiting. The penultimate argument he gives is that in
the past, Sabbath observance was a critical boundary issue because to violate
the Sabbath was to deny God and Creation (see Rashi, Hullin 5a. See also Rambam Laws of Shabbat 30:15).
Today, he argued, Sabbath violation does not necessarily reflect a rejection of
these faith principles, as many non-Sabbath observers recognize Shabbat in some
way and may, regardless, believe in God.
Such Jews, then, should not be halakhically excluded. This approach, which recognizes the religious
beliefs of other Jews, produces a very different discourse. It is a discourse which is inherently
validating rather than patronizing, and one that is much to be preferred (there
is some precedence to this approach in discussions regarding Karaites – see
Responsa Radvaz 2:796. See, also, Ramban
Bemidbar 15:22, regarding an alternate belief system embraced by a
community.) It is, however, more limited
in scope, in that it would not warrant inclusiveness regarding Jews who
avowedly do not believe in God or in Creation.

Here we must turn to Rabbi Ettlinger’s first argument. The Talmud in a number of places deals with
the phenomenon of omer mutar, one who believes that a given forbidden
act is permissible. The Talmud (Shabbat
72b, Makkot 7b and 9a) at times relates to such a person as ‘ones, free
from any blame, at times as shogeg, negligent, and at times as shogeg
karov le’meizid, negligent on the verge of willful violation. The difference seems to be the degree to
which one can say that such a person should have known better (see Tosafot
Makkot 9a s.v. d’omer and Ramban, Makkot 7b, s.v. prat). Rabbi Ettlinger accurately described the
non-Sabbath-observant Jews of modernity as omer mutar. Here was an entire category of Jews – the
majority of the Jewish people – who did not believe that the traditional categories
of prohibited work on Shabbat were binding.
What status of omer mutar should apply to them? In dealing with first-generation Reformers,
Rabbi Ettlinger considered them as karov le’meizid­­ – they should have
known better. However, in our current
post-advent-of-Modernity reality, where religious truths have completely lost
their taken-for-granted nature, it is impossible to argue that anyone who is
not observant – even someone who grew up observant – should have known better
than to hold his beliefs. It is true
that such a person may very well know what the beliefs of observant Jews are,
and may well know that observant Jews believe that he is also obligated, but
how can we argue that he should have known well enough to have adopted this
belief as his own? No matter how
strongly we personally aver our own beliefs and convictions, is it not – in
today’s world – just as reasonable for a person not to believe as to
believe? A look at the ratio of
non-observant Jews to observant-Jews should certainly clear up any lingering
doubt in this matter.

This argument, then, is structurally similar to that of tinok
she’nishba, but in terms of the discourse it is drastically different. Rather than taking a patronizing stance
vis-à-vis other Jews, we are actually adopting a more humble and self-aware
position. We recognize – we are saying –
that since the advent of Modernity there is no presumption of the truth of a
given community’s religious claims. As
such, while we firmly believe in our religious truths, we have no expectations
that someone else would believe them to be binding. We must, however, ask ourselves how our
halakhic system treats people who do not believe, and are not expected to
believe, that this system applies to them.
To this, our answer is that such people are not to be held liable or
excluded as a result of their non-compliance with this system. Omer mutar accurately describes
today’s reality of the multiple and competing faith claims (and non-faith
claims) that exist within Judaism. It is perfectly descriptive and
non-judgmental, and should be a major part of our inclusive discourse.

The use of these two arguments, then, is an important and
critical part of reshaping our discourse of inclusion. Recognizing that many non-Orthodox Jews are
also believers in God and Creation, and approaching the non-observance of other
Jews in descriptive, and not judgmental or patronizing, language, is necessary
if we are to create an inclusive discourse that is also a discourse of respect. What these two arguments share is an
affirming of the traditional halakhic boundaries of the community (belief and
observance), but succeeds in including those who might otherwise be considered
outside of those boundaries (by recognizing shared belief, or by not judging
non-observance). What remains unexplored
in this article is the possibility of defining the boundaries of the community
in other ways, in ways which would be inclusive in the very drawing of the
boundaries themselves. The discussion of
this approach – both the halakhic feasibility of it and the pragmatic and
religious costs and benefits that it entails – will have to await a future
article.

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