A legal system carries with it the obligation to be obedient. Those whose actions are covered by a body of law are required to respect the law and the rulings of those who have the authority to decide. We may not agree with certain legislation or judicial interpretations of what is on the books, but we must be obedient. The alternative is either anarchy or the use of coercion to obtain compliance.
The obligation to be obedient extends to those who decide. When the law has been settled by prior legislative and judicial actions, judges are not free to impose their views and disregard precedent, although some do. They have more freedom when the law is not settled, but even in those situations there are conceptual and procedural guidelines that cannot be disregarded.
It’s obvious that there is slippage from the ideal of obedience. Violations of tax and traffic laws are commonplace and whether crime is on the increase or going down, there is always plenty of criminal activity. The point about obedience is not that there is perfect compliance or anything close to it. What is critical is the sense of legitimacy, of recognizing that civil society requires acceptance of what has been duly enacted or decided. This is what we mean by the rule of law and the ideal of the rule of law is scarcely undermined because there are violations. Wholesale violations – if relatively few pay their taxes or many jump traffic lights – would be another matter.
While it is a legal system, in key respects halacha differs from the codes of law that govern how societies operate. There is the fundamental principle of the Torah being given at Sinai, received by Moses and transmitted to subsequent generations by Torah leaders whose status was determined by their spiritual and intellectual transcendence and not by elections. In the development of halacha throughout our history, there have been in some places and in different periods processes at work that can be identified as legislative. Even in such instances, the halachic process differs importantly from the legislative process that is a key component of democratic societies.
The authority of halacha and therefore also the obligation to be obedient is fortified by it being our mesorah, the fundamental heritage that we have received. Because of this, halacha is accorded a different and also greater degree of legitimacy than what is accorded to the legislation and legal rulings of temporal political and judicial systems.
Yet it is also true that especially in the modern period and certainly in the context of broader Jewish life, the authority of halacha has been weakened because Jews can walk away from Judaism, as so many have during the past two generations.
As suggested, another distinguishing characteristic of halacha is that the authority of those who decide religious issues is derived from their personal qualities, from their spiritual dignity and intellectual stature and not necessarily from the formal positions that they may hold. This is evident in contemporary Jewish life. In an interview years ago, Israel Shenker, a noted writer at the New York Times, asked Rav Moshe Feinstein, ztl, about the source of his authority as a posek. Rav Moshe essentially responded that over many years Jews turned to him with their halachic questions, he wrote responses and somehow they came to be accepted.
We religious Jews readily accept the obligation to be obedient, an obligation that for all practical purposes comes into play when we are adversely affected by a ruling or may disagree with it. There is, just the same, a certain fragility to halachic decisions, in part because they can be ignored by the many Jews who do not accept halachic authority and, as well, because among religious Jews, rabbinic authority is dispersed rather than centralized. Rav Moshe was the foremost authority on religious Jewish law for the yeshiva world of which we are a part and for many others, yet his rulings are not always accepted by Orthodox Jews in other sectors of the community. In Borough Park where I live, there are chassidim who carry outdoors on Shabbos, claiming that there is an acceptable eruv in place and that they have eminent rabbis to rely on, this despite Rav Moshe’s prohibitory ruling.
Even without communal division, halachic authority rests to an extent on the willingness of those who are affected by decisions to accept what has been decided. Likely, this idea of willingness seems to be inconsistent with the obligation to be obedient. Upon reflection, there is no inconsistency, although how to allow for both obedience and a measure of freedom within the context of the halachic system cannot be easily determined. Rav Moshe’s modest comment to Israel Shenker may shed light on the subject, for he was acknowledging that his authority depended somewhat on the receptivity accorded to his rulings.
This sounds like the democratic principle of the consent of the governed, a concept that ordinarily refers to elections and representative government. While the halachic system is emphatically not meant to be democratic as that term is understood, there is a consensual factor in the way religious issues are decided. A notable example is the Talmudic requirement that religious judges be wary of imposing a prohibition that a majority of the community cannot accept. This rule may be designed to protect rabbinic authority from being weakened by massive disobedience or, as likely, to protect the masses against violating a prohibition that they cannot or will not accept. Whatever the reasons, at least in certain instances receptivity to potential prohibitions is a legitimate factor in determining whether a prohibition should become actual.
One such instance may be provided by the several books written all or in part by respected Orthodox Jews and whose contents have been challenged. We are confronted by the question of how to deal with publications that may be regarded as objectionable on hashkafa or other religious grounds. One approach is maximalist, to rule that the offending publications are entirely off limits, that they are not to be sold or bought or allowed into one’s home. A more modest approach is to attempt to isolate the passages that are regarded as objectionable, to indicate why they are objectionable and to deliberately stop short of a ban.
It is tempting because it is in a way easier to condemn outright and to prohibit outright. This relieves those who issue the ban and those who might read the offending works of any obligation to consider what is objectionable and why this is so. This maximalist approach apparently is the fate of a well-intentioned but problematic two-volume work on Torah leadership. While the intention of those who issued the prohibition was probably not to condemn the author and subject him to public calumny, all that we have is very strong language of a prohibitory nature by eminent authorities.
This is not the end of the story, if only because at least in the contemporary world it is rather difficult to successfully ban publications. There is evidence that many who would ordinarily accept rulings from Torah authorities are anxious to read the book and more than a few of those who have read the book are wondering what all the fuss has been about. It is evident that the prohibition has whet the appetite of some who would not be interested in reading the work.
There is additional unfortunate fallout in the cheap talk that has been generated by the condemnation of certain works. We are constantly admonished about wrongful speech, about lashon hora. In fact, there is a mini-industry that has arisen within Orthodox ranks exploiting the obligation to be careful in speech. I wonder whether it is sufficiently recognized that when books are banned or other extreme actions are taken, much of what has been accomplished regarding proper speech is severely undermined.
Consideration needs to be given, as well, to whether prohibitory statements, specifically regarding books, impact adversely on efforts to draw marginal Jews closer to their great heritage. This is a priority goal of contemporary Orthodoxy and there have been significant achievements, although more needs to be done. Perhaps more than any other prohibitory action, book-banning can turn prospective returnees away from Judaism.
We often point to the life and example of the outstanding Torah personalities who led our community during the formative post-Holocaust years, people of great stature who gave us inspiration and direction. There is a lesson to be learned from how they exercised their vast and essentially unchallenged authority, how they led by example and teaching and not by issuing a constant stream of prohibitory rulings.
The foremost of these Torah giants was the great Rosh Yeshiva of Lakewood. In the twenty years of his fervent and fevered activity on behalf of the Torah world, he essentially was responsible for just one major prohibitory ruling, it being against Orthodox membership in rabbinical bodies with non-Orthodox Jews. This ruling came more than fifteen years after he arrived on these shores. In that great period of the development of American Orthodox Jewry, the Gedolei Torah were constantly occupied with major issues. They did not shirk their obligation to lead and they did not lead by prohibiting that which perhaps should have been criticized and not prohibited.