Rabbi Simcha Feuerman, LCSW-R & Chaya Feuerman, LCSW-R
Reprinted Courtesy of the Jewish Press
What is faster than a speeding bullet, more powerful than a locomotive, able to leap tall buildings in a single bound…is it Superman? No, not in this article. Rather, it is the halakhic shaalah! Think about it. How many times have you been involved in an organization, shul, workgroup, or interfamilial dispute and the one question that stops everybody in their tracks is, “Did you ask a Daas Torah?” The best part is you don’t have to be halakhic expert to raise a shaalah. As long as you don’t agree with or don’t want to see a plan succeed, you can make sure to raise a shaalah even if you have no idea what you are talking about. Examples of this might be a rebbe or Morah who comes up with an innovative approach or program at a school staff meeting. Versions of this approach include accusing another person of being a heretic. This is an especially useful tactic when a person is making a logical point, but you don’t agree, or perhaps even feel that the logical point suggests a course of action that is halakhically incorrect. Another variant on this theme is to argue that you are right because you asked a shaalah. This can be a great way to avoid apologizing or taking responsibility for inflicting emotional and interpersonal injuries. For example, you ruin a friend’s, relative’s or neighbor’s shidduch or job opportunity because you gave over information that was true but not flattering. The answer of course is, “I asked a shaalah and I was told I can say this.” This may be absolutely true and moral, and at the same time, the injured party may need a more humane and empathic response. If you accidentally run over someone’s puppy, the first response is not: “It says in Choshen Mishpat that I am patur.” The first response is to show empathy and compassion for the horrible loss. There seems to be some confusion for some people about the difference between our fealty and loyalty to halakha and our normal human responses. The Torah was not given to Malachei Hashares, nor does the Torah expect us to behave as emotionless robots. While we may indeed be obligated at times to take actions, or hold back on actions, based on the halakha’s position on what is “the greater good”, it does not exempt us from compassion, empathy, and basic kvod haberiyos (human decency) and respect.
An interesting example of this comes from personal testimony of Dr. Isaac Steven Herschkopf, an attending psychiatrist at the NYU Medical Center. He relates a mortifying experience he had as a yeshiva bochur, when a less observant but well-meaning relative of his greeted Rav Moshe by “kissing him affectionately on the cheek.” The thoughts running through the bochur’s mind were: Rav Moshe and his attendants turned and looked at me, I thought accusingly. I wanted to die. In a panic, I walked over to him and started to apologize profusely: “Rabbi Feinstein, I apologize. My aunt, she isn’t frum [religious]. She doesn’t understand…” He immediately placed his fingers on my lips to stop me from talking. He then softly spoke two sentences in Yiddish that I will remember to my dying day: “She has numbers on her arms. She is holier than me.”
Assuming this testimony is accurate, it is even more surprising given that Rav Moshe’s halakhic position is that a mere handshake with a woman is considered derech chibah (an intimate act) and thus may be forbidden medoraysa (according to Biblical law) not just rabbinically. Because of this, Rav Moshe ruled one should not shake a woman’s hand even if it would cause some embarrassment or insult, since emotional duress may be a lenient factor in rabbinic prohibitions but not Biblical prohibitions. (See Igros Moshe O.H. I:113, E.H I:56, and E.H. IV:32.9) Now, if Rav Moshe considered shaking hands to be an act of intimacy, all the more so would he consider a kiss on the cheek as intimate and thus forbidden?!
Are we suggesting Rav Moshe paskened one way, and behaved a different way? Not specifically, nor likely. After all, in the case of the kiss on the cheek Rav Moshe was utterly passive, while in the case of shaking hands, one must take part in the action. (It is not normal to offer a limp, passive hand for a handshake.) In addition, the woman might have caught Rav Moshe completely by surprise, and there was no time for him to stop her even if he would have objected. The point we are making is, that Rav Moshe cared enough about the person in front of him, that his instinctive reaction was not horror, contempt nor disdain, and thus this may have allowed him to see halakhic alternatives that would not have been available if he was not empathic.
This begs the question, are we suggesting that a posek can be influenced by emotion instead of pure logic? The traditional answer taken by many is that while certain poskim seem to be more lenient and others more strict, their personality is not a factor at all, as this would be a corruption of Torah integrity. Instead, Torah is decided based on the sincere quest for truthful analysis of the sugya, and nothing else. While this might make sense as an absolute ideal, in practice it strains logical credibility. It is not, in fact, how humans behave. The Torah itself testifies that a bribe can confound the words of the righteous and blind the eyes of the wise (Devarim 16:19). Rashi notes that it is forbidden to accept a bribe even to rule “the truth”. In addition, the Gemara (Kesubos 105b) relates an incident where the great Amora Shmuel refused to serve as a judge when he learned that one of the petitioners merely extended his hand to help steady him as he was walking. We see that the Torah does not underestimate the power of the subtlest emotions to influence judgment.
However, one can use these same sources to prove that we see how careful the Torah was in guarding against emotional influence, and so this can be used as a proof that there is an expectation that every posek strives to attain a level of objectivity. We would agree that there is a need for a posek, or for that matter any responsible person, to maintain objectivity and equanimity, especially at moments of high tension and passion. Yet, that is not the same as being robotic, emotionally remote and non-empathic. In fact, we submit for your consideration that it is cruel and distorted for a posek to hold himself to be remote and above caring about the individuals he guides. In fact, many halakhos are influenced by subjective emotional concerns. Here are briefly a few examples of emotional factors that influence halakha, which the reader can study and investigate further:
(1) K’vod Haberiyos (human dignity) see Gemara Berachos 19a;
(2) Darkei Noam (The Torah is meant to be pleasant, see Succah 32b);
(3) HaTorah Chasa al Mamonam Shel Yisrael (The Torah has concern for the financial welfare of the Jewish nation) see Mishna Negaim 12:5, and Menahos 76b;
(4) Lo Dibra Torah Ela K’Neged Yetzer Hara (The Torah makes concessions and allows that which might ordinarily be considered immoral or forbidden when the overall desire is deemed as too strong to completely resist, Kiddushin 21b);
(5) Lo Nitena Torah Le-Malachei Ha-Sharet (The Torah was not given to angels, i.e. commandments must be achievable within the realm of normal human abilities, Berachos 25b);
(6) Ein HaKadosh Barukh Hu Ba Batronia im Beriyosayv (The Holy One Blessed be He does not behave as a tyrant toward his creations, i.e. He does not demand obligations or rituals which would be excessively burdensome, Avodah Zara 2a);
(7) Be-Makom Tza’rah lo Gazru Rabbanan In certain situations of physical distress and pain, the rabbis did not enforce their rules, see Kesubos 60a.
One might argue, indeed the halakha asks that the posek consider the subjective emotional need of the person, but from where do we see that the posek should have empathy or concern, and even if he should, from where can we argue that it is an ideal? Perhaps, the posek should be objective as a robot, and merely weigh and measure the other person’s emotional distress as a doctor interprets the results of an MRI -- just the facts, and nothing else.
We note that the traditional approach would assert that while certain poskim seem to be more lenient and others more strict, their personality is not a factor at all, as this would be a corruption of Torah integrity. Instead, Torah is decided based on the sincere quest for truthful analysis of the sugya, and nothing else. However, there are two interesting proofs from the Torah that this is not the case. And, in fact, the ideal is for the posek to be in a warm and empathic state toward the persons he is guiding. One of the strongest proofs to this point is that the halakha invalidates an “older” person or a person who is incapable of having children to preside as a judge on a Jewish capital court (Sanhedrin 36b). Rashi clearly explains the reason for this as “Since the older person has already forgotten the travails of raising children, he will not be merciful, and likewise an infertile person.” There is no question about it, that at least in some aspects of Jewish law, having mercy is not just considered an option, but actually a requirement. The halakha goes as far as disqualifying such a person who is likely to be lacking in empathy from presiding on a matter of life and death! (We thank our dear father, Rabbi Chaim Feuerman, Ed.D. for this bringing this wonderful Torah insight to our attention.)
Another powerful idea we see from the Rashi quoted above, is that the travails of raising children, when taken with the correct measure of humanity, increases empathy and mercy. This should serve as a “telegram from G-d” to all parents out there having difficulty with their adolescent children. Not only is it wrong to be too rigid with them and might be a form of religious bullying, but Rashi even suggests that the difficulties we experience with them are supposed to teach us to be compassionate and merciful. Getting into rages, power struggles and hassles is not helpful, nor does it seem to be the Torah way.
While we are on the topic of anger and rage, this brings us to our second proof. Vayikra Rabbah (13) tells us that during the three times in Moshe Rabbenu’s life when he became angry, his halakhic insight was occluded. This suggests, at the very least, that being too angry and emotional is an obstruction to being attuned to the truths of the Torah. While this also may suggest that being too emotional, perhaps even too empathic or passionate also can blur understanding of the halakha, we do think it is fair to say that one of the best ways to avoid self-righteous rage and anger is to empathize and be compassionate toward others. Thus, while this second source is not as strong a proof as the first source, it does at least suggest that one should maintain a balanced, empathic and compassionate stance when ruling on halakha, at the very least to inoculate against self-righteous anger which, as the midrash seems to say, even affected Moshe Rabbenu.
Of course, there are genuine reasons why people who want to be guided by halakha ought to seek rabbinic guidance, however there are several issues to keep in mind so that the quest for correct and moral behavior does not become a club to bully other people with. That some particular course of action is permitted is not the same as it being an obligation. Even when something is an obligation, it does not mean that it is helpful or wise to bully or pressure others to comply. Furthermore, persons who ask shaalos, may commit two serious mistakes: (1) They may confuse advice with psak. Psak is a requirement and directive from a rav obligating one to do or refrain from certain acts by the force of how he interprets the halakha. However, often times, rabbis, in their roles, will provide advice and suggestions. It is wise and respectful to consider such advice seriously, however it is not as binding as psak and should not be taken that way. (2) Questions may be asked and facts given over with a certain unconscious bias that can influence the answer. This is because subjective distress is an important factor in halakha, as we have shown ample proof for in earlier articles of this series. Even the same exact question, can have widely variable answers based on the amount of subjective pain that is at stake. Therefore, the one who is asking the question may minimize the other affected person’s needs and subjective distress and emphasize his own. This can definitely affect the halakha.
Abusers will use any tool at their disposal to control, intimidate and crush their victims. Therefore, a sad but real concern in regard to religious bullying is that since we know physical and emotional abuse exists within the Jewish community, whether it is toward children or toward spouses, those who are abusers and have some knowledge of Torah can distort halakha and use it as a form of emotional abuse. Some examples or religious abuse, that sadly are not made up, but told to us by our clients are:
(1) “The Torah says that I am not obligated to support a child who is over six years old, so if you don’t listen to me, I can throw you out onto the street.”
(This is based on a ruling of Gemara Kesuvos 65b, which is obviously not relevant in our modern world. There are no apprenticeship opportunities for six year old blacksmiths or shoemakers. If we are obligated to take care of the poor and needy, how can any foolish person imagine that the Torah deems it acceptable for a parent to cast out a six year old child onto the street? Just threatening this is emotionally abusive, let alone doing it!)
(2) “You are obligated to go to the mikvah and perform the mitzvah, otherwise it is grounds for divorce.”
This is a complicated halakhic issue the details of which are not for a public column, but rest assured, while husband and wife have mutual responsibilities to each other, it is not to the extent of suffering abuse. In fact, Judaism may be the first culture in the world that formally recognized the prohibition of marital rape (Shulkhan Arukh, E.H. 25:2) Any person who finds herself in such a situation should consult with a competent posek who is also knowledgeable about the psychological and power dynamics of abusive spouses.
(3) “A husband is allowed to beat a wife in order to teach her how to behave properly.”
The source of this is the Rambam Hilchos Ishus 21:10. It is sometimes hard to understand cultures that are far more authoritarian than our current standard. Most societies, up until recently used force, shaming, and social ostracizing to maintain expected norms. Regardless, there are opinions that the Rambam held that a husband can do this himself, while others maintain that physical punishment can only be enacted by bais din. No doubt as with all legal institutions, regardless of the particular law, humane and respectful people carry them out with compassion, and exercise discretion and judgment. While disturbed individuals use laws as a mandate to carry out their sadistic tendencies under the cover of religion, that is not what the tradition supports. The bottom line, is humane and decent behavior is always a requirement and religion should not be used by individuals to bully other individuals for interpersonal power and agendas.