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B"H
When There’s a Will There’s a Way
Unlike many of today’s leading rabbinic authorities, the rabbis of yesteryear left an indelible impression upon me. Instead of using their positions of authority to legislate, they used ingenuity and creativity to alleviate the burdens faced by those trying to adhere to Torah law. While they may have complied with all the Torah’s rigidities, they didn’t hold their constituents to the same rules. Instead of lecturing their students that all God does is for mankind’s benefit, they managed to circumvent many Torah laws though legal loopholes in order to mitigate the suffering of the average person.
The Torah states that a Jew may not charge interest to another Jew. While in theory an interest free loan may seem magnanimous, ultimately its consequences have a negative impact on those who need it most. Since it was forbidden to charge interest, people stopped loaning the poor money. And those who needed loans were unable to procure them. Thus, the rabbis came up with a novel concept called a Heter Iska. The legal (fiction) modifies the contract from a loan to an investment. Since one is permitted to take dividends on an investment, they found a means around the biblical law. Another Torah law that at first glance seems very helpful to the poor is the law that cancels all debts every seven years. At the conclusion of the shemitah, the Sabbatical year, all previous loans become null and void. Instead of helping the poor by cancelling their debt, the ramifications were that no one was willing to loan money for fear that the borrowers’ debts would be cancelled before they got paid. Once again, the rabbis showed creativity by initiating a program called Pruzbul which transfers loans owned by private individuals to the courts. By modifying who owns the debt they were able to once again circumvent the Torah law.
Similarly, almost every Orthodox Jewish community relies on an Eruv in order to permit people to carry in the public domain on shabbat. Even though it is forbidden to carry in public on shabbat, the rabbis circumvented this law by instituting a mechanism in which the public domain becomes private. They ruled that natural or other boundaries can be used to privatize the area within. (This article is not intended as an in-depth analysis on the rules of Eruv). And they went even further and ruled that regarding the laws of eruv one should always follow the lenient position.
Of course, nothing is as blatant as selling one’s chametz before Pesach. Even though the Torah states that any chametz in your possession must be destroyed before Pesach, the rabbis were cognizant of the financial burden to the community. Therefore, they came up with a plan to make Passover slightly less burdensome and expensive.
I bring up these issues after attending a rally in support of a woman whose recalcitrant husband refused to give her a get – Jewish divorce for 13 years. While he has gone on with his life and remarried in a civil ceremony, his refusal to give his ex-wife a get impacted on her ability to have a lasting or meaningful relationship. I just learned today, two days after the rally, that our efforts succeeded and he finally consented to give his wife a get. While I’m delighted that her freedom has finally been granted, it’s not fair that our women can be subject to this prolonged mental anguish. So I ponder, why won’t our rabbinical leaders follow the ways of their predecessor and find a legal loophole to assist women who are in this dire predicament? A cabal of rabbis expressing their moral outrage isn’t enough. A friend of mine recently told me that Judaism is a religion of kindness, but why isnt that kindness expressed in a more tangible way to our married woman? The rabbinical organization implementation of a prenup can help limit her strife, but it would be far more compassionate to create a system that ensures that she never has to have any strife.
In my opinion, many of our religious institutions spend more time highlighting their accomplishments, yet failing to realize how much more there is to do. It seems crystal clear: if there would be a rabbinic will, there would be a rabbinic way. If they truly wanted to remedy the plight of the agunah (the chained woman), they could find halachically acceptable solutions. Sadly, I can only surmise there is insufficient will and therefore no creative solutions.
Shabbat Shalom and Chag Sameach,
Rabbi Jack Engel
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