Loopholes

Recently in Emes V’emunah, Rabbi Saul Berman was taken to task for officiating at a wedding ceremony where supposedly rings were exchanged between the bride and groom under the chupa. Penned by my friend Rabbi Harry Maryles, this blog piqued my interest because I didn’t know that orthodox Rabbis performed such ceremonies. It was news to me! One of Rabbi Maryles’ issues with the whole business was that it smacked of using a loophole in order to circumvent the halacha. He’s probably right.

One of the major differences between Judaism and Christianity is that while they are faith based we are practice and outcome oriented. The Rambam was one of the first to hone in on the theological dogma, faith and belief system that he believed was fundamental to Judaism. His point of view wasn’t accepted universally by the establishment as is today. How does one, according to Rabbi Hasdai Crescas, know what another truly believes in their heart? Concepts such as “mitoch shelo leshma…” take on new meaning when understood in this light. One may not believe in the oneness of G-d, but that doesn’t excuse him from saying Shema Yisrael. And even if he doesn’t believe it now, by saying it, and thus performing the mitzvah, he will eventually come to believe it too. The concept of “mitoch shelo leshma….”is a wonderful concept and I believe it may very well be responsible for much of the normative behavior among our people.

As mitzvah, or “practice” oriented people, we have to depend on an intellectual superstructure which provides the means by which mitzvoth can be performed. Not all mitzvoth are black and white and thus may prove difficult. For example, the dietary laws could not be understood without a legal/intellectual superstructure, and as such we have a rather complicated and detailed codification of hilcot basar v’cholov, taarovus, etc. Carrrying on the Shabbat is also illustrative of the need for a legal superstructure. Without the expanded codes it would be very unclear as to the intent of the text. (i.e. what constitutes carrying on Shabbat). Thus the legal system evolved in the embodiment of the Mishna, Talmud, Rabbinic literature, from the Gaonic period to the Acharonim.

Our oral tradition, originally not intended for codification was done so with great reluctance. Our sages were afraid that by reducing the oral tradition to codification, a situation would be created where our oral mesorah was no longer organic by nature. The beauty of our tradition is that it has elasticity, and flex, enabling us to tackle, and take on new issues, as the Jewish people encounter new experiences based on land, culture and technology.

Any legal system that is organic in nature, such as ours, will respond to place, time and circumstance. As such, it will attract the best minds that not only understand the law, and interpret the law, but also love and respect the law. Mandated by our tradition to interpret the law, by-products associated with the interpretation oftentimes are seen as loopholes or circumvention, thus resulting in accommodation. By definition one who understands the law will know how to circumvent the law.

Loopholes can be a good thing or a bad thing. Our codified system thus had built into it a system by which loopholes could be applied when, for the good of the people, they were necessary. They can be a corrupting influence in our lives or they can enrich our lives by providing the means to perform the mitzvah and at the same time enhance our emunah. Some good examples of loopholes for the good of the tzibur was the institution of the Prosbol. Enabling the community to function was of paramount importance thus the accomodation of mechirat chametz. The Shach in Yoreh Deyah goes in to great detail on discussing the usage of loopholes in conjunction with mechirat chametz. The Heter Mechira was also employed in the 19th century in Eretz Yisrael with reference to Shemita. The Tosafists and later the Ramah refer to accommodation of the tzibur on Shabbes when the winter cold front was too much to bear. How to halachically permit one to instruct a gentile on shabbes to put logs on a fire in order to provide heat and thereby avoid a freezing shabbes was a significant development. Nineteenth century Europe has a plethora of examples of poskim that had to deal with issues of businesses being run on shabbes by gentile partners. The shtar mechira was dealt with by great notables such as R. Joshua Horovitz, R. Aryeh Leibush, and R.Jehiel Epsein. To be sure, they weren’t a unified voice on loopholes. There were also purists such as the Chasam Sofer who understood the “slippery slope” and where it could lead. His fears
weren’t exaggerated. The slippery slope resulted in some unsavory types of loopholes which evolved later but which the Chasam Sofer was indeed afraid of. An example of this kind of loophole is the “shabbes clock”. To what extent ought the “shabbes clock” be permitted. Should it be allowed to provide just the minimum light and heat in order to keep shabbes an enjoyable day, or should we sit in the cold and dark. On the other hand, assuming that it is reasonable to assume that a “shabbes clock” can be used as a light source, can that be extended for operating a dishwasher or television (without sound)?

It seems to me that the concept of the loophole should not contradict the spirit of the law, nor should it fly in the face of the existing norm. When it does come in conflict with the spirit of the law, and contradicts the norm then it becomes a corrupting influence in our lives. There is a growing prevalence of the loophole mentality which is corrupting the spirit of halacha. The “eruv”, is one example. No matter how cleverly thought out the reasoning is to allow for the eruv, it isn’t convincing, especially in view of how it has been exploited. I think it is to this aspect that Rabbi Maryles had reference when he says in connection with the double ring ceremony that a loophole was being utilized to accommodate individuals who wished to tailor the ceremony to their wishes. The orthodox community doesn’t endorse the double ring ceremony whether you are modern orthodox or whether you are haredi. This is certainly one of those times when the wisdom of the Chassam Sofer can be appreciated.