Chulin 5: The Stroke of a Pen

By: rabbi jay kelman |

In the fall of 1860, Rav Yaakov Ettlinger penned what is likely the most revolutionary responsa of modern times; one that opened the door to allowing, for the first time in Jewish history, those who publicly desecrated the Shabbat to remain part of the (observant) Jewish community.

This teshuva (Binyan Tzion[1] Hachadasot #23) set the stage for the existence of the "non-Orthodox, Orthodox" and successfully kept many within the fold despite their very public desecration of laws for which the Torah calls for the death penalty.

Without this teshuva the ba’al teshuva movement would have been stillborn; we would be required to basically chase away any and all who were not Shabbat observers. Without this teshuva it would have remained a gross violation of Jewish law to encourage people to come to shul who live beyond walking distance. And those who might have come would have been unlikely to stay. The men would not have been counted in a minyan, could not have received aliyot and we would not have been able to drink from the wine they may have touched at kiddush.

Yet 2,000 years of halachic tradition was wiped away with the stroke of a pen. So radical was this teshuva that there is a note appended to it, explaining that it is “shelo lehalacha lemasheh”, that it is a theoretical legal discussion and may not be adopted in practice[2]. Yet so accepted is this teshuva—and similar ones that followed—that many today find the entire discussion rather strange. Of course, we welcome Shabbat violators if and when they come to shul and we surely would not consider a Shabbat violator to be akin to a non-Jew. But such “liberalism” is a product of modern times.

“When a man from [among] you brings a sacrifice to the Lord; from animals, from cattle or from the flock you shall bring your sacrifice” (Vayikra 1:2). The word mikem, from you, is redundant; obviously if you bring a korban it is from you. Hence the Gemara understands the word mikem as excluding some from the privilege of being able to bring korbanot; “From some of you, but not all of you, this comes to exclude an apostate[3]”. Korbanot are a means to an end, a mechanism to literally bring us closer to G-d, and even more—as emphasized by the prophets—to bring us closer to those created in the image of G-d, our fellow man. Even under the remote possibility that an apostate would care to bring a korban, why accept an offering from one who rejects the basic fabric of Judaism?

Yet at the same time, in a fascinating interpretation, the Gemara explains that “from animals” does not refer only to the "what" of a korban but is also a reference to those who are bringing the korbanot; “’from animals’ – to include people who are like animals; from here it was said we accept sacrifices from the sinners of Israel so that they may repent” (Chulin 5a). While there is no point in accepting a korban from an apostate we can, should and must accept korbanot from regular sinners i.e. all of us. We may sin but that does not mean we reject—we just have difficulty controlling our urges and are unwilling to put in the hard work necessary to steer ourselves away from sin.

However, the Gemara notes two exceptions to the notion that a sinner may bring a korban, namely, those who pour wine libations to idolatry and those who desecrate the Shabbat in public. It is easy to understand why one who worships a foreign god is enjoined from bringing sacrifices—after all, how one can who rejects the G-d of Israel offer sacrifices[4]. Why a public Shabbat violator should be barred from bringing a korban is less clear. Rashi simply explains that violation of Shabbat is akin to idolatry. Shabbat testifies to our belief that G-d created the world and thus one who desecrates Shabbat “denies G-d”.

The Binyan Tzion is at a loss regarding the status of Shabbat violators “of our times”. Some, he notes, even make kiddush on Friday night and go to shul making it impossible to say they deny the existence of G-d. By observing Shabbat in their own way— even if not according to halacha—they actually testify that they do believe in G-d. Hence, the wine they touch would not be considered yayin nesech, wine of idolaters.

Effectively, the Binyan Tzion argued that the Gemara’s equation of Shabbat desecration and idolatry was not a halachic principle but a social reality. For some two thousand years Jews who desecrated the Shabbat were making a statement about their relationship to G-d. And that statement was one that equated public desecration of Shabbat and atheism. But as we moved to modern times it became clear that such was no longer true. Jews expressed their belief in G-d in non-traditional ways and the halacha was forced to respond to such a reality[5].

Yet in a traditional society such an innovation as doing away with a clear Talmudic principle is not done easily[6]. Rav Ettlinger himself writes “that one who wants to be strict and declare the touching of wine, upon them shall come a blessing. However, those who are lenient also have something on which to rely.” I think it is fair to say that some 160 years later, those who have been lenient have accomplished much.

 

[1] Rav Ettlinger named his teshuvot, Binyan Tzion, Building of Zion, reflecting the nascent religious Zionist movement of his time. His first four teshuvot discuss, respectively, whether we should bring korbanot in our day; where on the Temple Mount a Jew may walk; the original sanctity of Jerusalem; and a clarification of Rashi’s view on the dimensions of the Temple. 

[2] As noted by Dr. Marc Shaprio, and explained in the introduction to his teshuvot by his son, this line was inserted by his children who published his works. There is every reason to belief that Rav Ettlinger very much meant it lemaseh.

[3] This teaching serves as a rejection of the view of Rav Anan discussed in our last post, that an idolater can be a shochet

[4] The Israeli Supreme Court concurred with this notion when they did not allow Brother Daniel—born to Jewish parents but himself a convert to Christianity—to attain Israeli citizenship under the Law of Return. While he technically may have been Jewish his identification with another religion disqualified him from being considered a Jew. For an analysis of this case from a halachic perspective see Rav Aharon Lichtenstein, "Brother Daniel and the Jewish Fraternity," in Leaves of Faith: The World of Jewish Learning (Jersey City, NJ: KTAV Pub. House, 2004), 57-83. 

[5] It is worth noting that he does not invoke the notion of a tinok shenishba, a sinner who does not know better. The Shabbat violators to which he is referring knew quite well what Shabbat was all about. It is only their children, children who never were exposed to a Shabbat environment, who could be classified as such.

[6] It hardly need be stated that in certain circles this teshuva and others like it have not been accepted and Shabbat violators are viewed, if not as actual non-Jews, then at least as unwelcome outsiders.