Thursday, September 03, 2009

RJJ Newsletter - September 2009

In accordance with the precept that a misdeed breeds additional misdeeds, what took place during the summer in what may be referred to as the Syrian affair was enveloped in misdeeds. Without excusing any person who is guilty of a crime – and money laundering is a crime and also unethical – the FBI, police, prosecutors and media committed a multitude of wrongs. There were the early morning raids and arrests by hundreds of armed agents, accompanied by a perverse public relations mentality aimed at presenting the alleged crimes as far worse than they actually were. The media dutifully, even eagerly, played their customary nasty role. There was the wrongful linking together of entirely separate criminal activities, the obvious aim being to distort the reality. The ploy worked. There was the glee evident in the secular Jewish media, including the newspaper where my column appears, over the opportunity to present the arrests as evidence of massive Orthodox wrongdoing, indeed massive charedi or fervently Orthodox wrongdoing. There was the issue of entrapment, a matter that I shall return to later in this Newsletter.

The arrest provided an opportunity that wasn’t going to be missed, even if this meant that the wrongdoing would beget additional wrongdoing.

Still, it appears that laws have been broken by religious Jews who to one extent or another apparently used instrumentalities of our religious life as accessories in their wrongful acts. This constitutes a chilul hashem and serves as yet another example that aveira gorreres aveira, a sin drags along with it another sin.

It may be odd to do so, but I feel compelled to note here that in the thirty-six years that I have been privileged to serve as RJJ’s president, there has been no opportunity to say no to money laundering or anything similar because no one has attempted to ask or suggest that we engage in such behavior.

Judaism is a religion of commandments, of mitzvos, a great many instructing, “Thou shalt not.” Observant Jews regard the negative commandments as part of the natural order of our religious life. We do not struggle against contrary forces to keep Shabbos. We regard Shabbos as a blessing. Even persons who are addicted to cigarettes do not wage a battle not to smoke. When Shabbos ends, quickly the cigarette is in the smoker’s mouth. Nor do we struggle to avoid eating food that isn’t kosher. Keeping kosher, like keeping Shabbos and many other mitzvos, is in our religious DNA and food that isn’t kosher is usually looked at as repulsive.

Jews who are not observant do not yield to an uncontrollable desire to work on Saturday or to eat what isn’t kosher. Their behavior is a consequence of how they were raised or the result of their own choices, as essentially they do not accept such commandments and not because they have been overcome by intense urges to violate them.

There are categories of mitzvos where the obligation to be observant is challenged by strong desires compelling people away from fulfilling their obligations as religious Jews. Near the end of Hilchos Issurei Bi’ah (The Laws of Forbidden Relations), Rambam writes, “There is no commandment in all of the Torah that is as difficult for the majority of the nation to separate from as sinful relations and forbidden sexual conduct.” He adds, “A man’s soul [emotions] yearns for theft and sinful relations and ardently covets them. There is no community in any period without people who engage in illicit sexual relations. Our Sages taught, The majority are engaged in theft, a minority in wrongful sexual conduct and everyone is guilty, at least indirectly, of speaking ill of others.”

Rambam then briefly describes steps to be taken to distance oneself from situations that may lead to improper sexual behavior. This is in accordance with the Torah’s commandment, Kedoshim Tihyu, that we are to be a sanctified people. As Rashi comments, we are to separate ourselves from wrongful sexual conduct and sin, for wherever there is a fence in sexual matters there in sanctity.

Our religious life is ingrained with the notion of fences or barriers regarding sexual behavior. Why aren’t we likewise commanded to establish barriers in our business dealings and in all monetary matters? There obviously are numerous religious laws regarding financial behavior and we are taught not to steal, cheat or engage in any of a number of financial improprieties. We are, of course, required to take precautions to shield against wrongdoing, such as recording certain transactions and documents that are attested to by witnesses. Yet, there are relatively few Rabbinic ordinances that proscribe commercial transactions altogether. If theft is more prevalent than sexual misdeeds, should not our religious life be likewise informed by barriers that are designed to prevent financial wrongdoing?

A possible answer is that special precautions are taken in sexual matters because they are more serious, both in the consequences of wrongdoing and in the punishments enumerated in the Torah. However, even if we grant the premise of greater severity, the concept of fences is instituted in other areas of halacha that are clearly less severe. As examples, there are Rabbinic decrees relating to Torah laws affecting agriculture, even though these religious requirements cannot be regarded as severe as sexual improprieties.

At the risk of being in error, my suggestion is that the halachic concept of fences is applicable only where it is practicable. When it is not practicable, the halachic process relies substantially on individual self-control. This means that we are to practice restraint and show judgment in determining how to act regarding financial matters. Put otherwise, fences and barriers proscribe otherwise permissible behavior in order to deter us from engaging in behavior that the Torah forbids. This process is not practical in monetary matters.

Economic activity is inherently interactive and it is fundamental in one form or another in all societies. Nearly all of us engage on a daily basis in what can be described as economic activity. People with jobs work for employers who pay them. All buying and selling involve two or more participants. Investments are made in business entities and with individuals. Loans are given or received from others. In each of these activities, there is a relationship and in each, as well, there are the seeds of conflict and the strong possibility of wrongdoing. We need only to be mindful of the huge volume of commercial litigation, as well as the far greater number of instances where conflict and even wrongdoing do not engender litigation.

Halacha acknowledges, I believe, that to erect fences in commercial activity would throw out the baby with the bath water, would result in greater harm than good by stifling economic activity and this would be to the detriment of many. Should employment opportunities be curtailed because either the worker or employer may take undue advantage or not act properly? Are goods and services not to be sold because there may be fraud in what is being exchanged? Or should the seller not sell because the buyer may not pay? Are investments to be shunned because of the prospect of deceit? Are loans not to be made because of the possibility of no repayment? The answer to each of these questions is no, meaning that in Torah law and, generally in society, the recognition of potential wrong cannot serve to abort activity that is necessary and beneficial to society. There are rules governing proper conduct in all financial matters. Their enforcement depends largely on self-control and self-policing and where this does not happen, there is conflict and processes for adjudicating disputes. There are few roadblocks at the outset.

The paradox is that the high incidence of wrongdoing in monetary matters serves as a barrier to instituting barriers. These matters are powerfully affected by self-interest. There are internalized forces that in purely emotional terms are less powerful than the urges and emotions impelling people toward wrongful sexual conduct. Yet, in other ways, monetary matters are more resistant to self-control. People who engage in sexual improprieties generally know that they are behaving wrongfully and, ordinarily, they do not justify their wrongdoing. They recognize that there are desires that they cannot overcome. Sexual wrongdoing is, accordingly, not rooted in the intellect. Financial improprieties, on the other hand, trigger processes of justification, of a person believing with full faith that what he is doing is proper, that he is getting no more than what is coming to him. Here are the words of Rabbi Moshe Chaim Luzzatto in Mesilas Yeshorim (The Path of the Just, chapter 11):

“We are witness that although most people are not overt thieves, that is they do not actually stretch out their hand and take another person’s money and possess it as their own, nonetheless, a majority engage in the scent of theft in their financial activity in that they teach themselves that it is permissible to enrich themselves through another person’s loss. They say, ‘To make profit is different.’”

He adds further on:

“This is the principle of the matter: As the lust for money is great, so are its pitfalls. For a man to be rightfully pure of them, great introspection and care are required. For many are meticulous in the ways of piety, yet when it comes to resisting the opportunity for ill-gotten gains, they are not capable of achieving perfection.”

That is why the Sages taught that most people are engaged in theft.

There are barriers, but while they may be regarded as sanctioned by Halacha they are not imposed on us as are the barriers in sexual matters. Rather, they are self-imposed through a person’s recognition that monetary matters can be an ethical minefield. They require self-control and where there is self-control they can serve as guards against improprieties. A close friend speaks of a smell test, of walking away from financial arrangements that may promise much but simply do not seem right. At times, what does not seem right is an incredibly high rate of return. In other situations the smell test serves as a barrier against becoming involved with people who have shown themselves not to be reliable or truthful. There are other situations where there is a red flag or a message that says “stay away.” When the red flag and the message are ignored, self-control has been abandoned and there is a heightened prospect of wrongdoing.

Because we are prone to ethical and judgment lapses, perhaps the primary barrier that a person should seek to erect is to avoid rationalizing that which is wrong. When we have to justify on legal, halachic or ethical grounds an economic or commercial activity, a prima facie case can be made for staying away. The more the intellect must be employed to justify that which is dubious, the better it is to stay away. This can be illustrated by a situation that is close to home. In the best of times, yeshivas struggle to meet their obligations, mainly to meet payroll for faculty and staff, nearly all whom are greatly underpaid. When an opportunity that promises financial relief but which does not look or smell right comes along, it may be easy to justify yielding to the arguments that the greater moral obligation is to pay people what is coming to them and to disregard the ethical or legal question marks. That is wrongful.

It may be suggested that the greater the need to rationalize wrongdoing, the more the intellect is employed toward achieving that end. Invariably, the sin is, therefore, also greater. As we have seen, when financial improprieties are embraced on the ground that a noble cause is being served, there is a good prospect that what is being justified is a Chilul Hashem.

I write this although I have empathy for those who seek to meet an institution’s obligation or to assist someone in desperate shape and who stumble in their judgment. There is much to condemn in the rush to condemn these people publicly. Although it is not in our religious canon, there is much to the notion that those who are without sin can cast the first stone. As Rabbi Luzzato has written, there are few who are without sin in monetary matters.

It is precisely this vulnerability of most of us to improprieties in monetary matters that should cause those who do the tempting to pause and consider whether they are without sin. As in sexual situations, so too in financial relations: Seduction is sinful, which is to say that entrapment is sinful. There is a remarkable passage in the Talmud (Berachos 32a) that touches on this point. Prior to the Jewish nation entering the land of Israel, the Torah mentions Di Zahav as one of their final stopping places. The Gemara asks:

“What is meant by and Di-zahav? In the academy of Rabbi Yannai, they said: Thus said Moses before the Holy One, Blessed is He, Master of the Universe, because of the silver and gold that You lavished upon Israel until they said, ‘Enough,’ that is what caused them to make the Golden Calf.”

And, “Rabbi Chiya bar Abba said in the name of Rabbi Yochanan: ‘This is analogous to a person who had a son. He bathed him and anointed him with oil, amply fed him and supplied him with drink, and hung a purse full of money on his neck and sat him down at the entrance of a house of prostitutes. What should that son do that he not sin?’”

When G-D instructed the Jewish people upon leaving Egypt to take silver and gold with them, the stage was set for their creating the Golden Calf. Therefore, He was, in a metaphorical sense, an accomplice to their sin. Surely, in the scenario of entrapment that we have read about, the sin of government is great because beyond mere temptation, there was also active involvement in constructing details of the crimes that were to be committed.

The sin of those who tempt cannot get those who yield to temptation off the hook. We have free will. That is surely the lesson of the Golden Calf, for it was a transcendental sin for which our people were immediately and thereafter severely punished. Where there was just the possibility that our actions will constitute a Chilul Hashem, when we utilize our intellectual capacities to justify that which may well lead to wrongdoing, we are committing a grievous sin.