Thursday, January 04, 2007

boycotts and halacha

I have had a hard time convincing my son that halacha does not come about because a Rabbi declares it so – proof from from text, mesorah, and reasoning are required, not simply the personal authority and say-so of anyone. This issue came up with regard to various “piskei halacha” regarding boycotts, both of a local store in the 5T as well as the El Al issue. When someone tells me that the “gedolim paskened” that one should not fly El Al because the airline had flights on Shabbos, I don’t think it is out of line to ask what source in halacha is there which dictates that one must avoid patronizing a company which desecrates Shabbos? Can one buy goods made in an Israeli factory open on Shabbos? Can one shop in a store which is open on Shabbos and owned by a Jew, or go to a doctor or lawyer who is not shomer Shabbos? I don’t know of any source that would prohibit any of these actions, unless it falls under mesa’yeia y’dei ovrei aveira, but that seems a bit of a stretch as in all of these cases your business has no direct connection with the act of chilul Shabbos. Yes, there is a mitzvah of tochacha that demands we speak out against transgressors and encourage them to change their ways, but that mitzvah has many detailed conditions not the least of which is a consideration of whether the person will listen, and certainly tochacha does not in and of itself obligate a boycott.

I guess this press release from Agudah partially answers my question,. Apparently the feeling is that supporting El Al is a chilul Hashem and therefore there is no heter even b’makom hefsed. By extension, there should be no heter to fly El Al even for cases of pikuach nefesh either, but that is not made explicit. I'm simply reporting this as is and offering no personal comment other than to ask that if anyone has seen a written tshuvah that I am unaware of from any of those who signed onto the boycott explaining the halachic parameters involved, please get me a copy and I will update this post as needed.

29 comments:

  1. Bill Selliger10:42 AM

    The chachomim have been interfering with free markets since the time of the tana'im (There's a mishna - in Kodshim??? - that a tanna threatened to pasken that only one korbon was needed for a yoledes in order to reduce the price of birds.) They can do whatever they want (assuming the appropriate processes are followed). There are many examples, some of the most explicit of them at Sanhendrin 46a and 81b. V'im begufo kach, b'mamono al achas kama v'kama.

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  2. The Mishna you refer to is at the end of perek 1 of Kerisus and invokes 'eis la'asos' as a justification. Does any Bais Din in our times have the authority to invoke eis la'asos? You hedge your bets by saying the appropriate process must be followed, but that begs the question of what the process is and what authority an individual Rabbi or group of Rabbis has to invoke such stringent measures. Also, these statements apply to those who blatantly flaunt religious authority in disobedience - I am sure you are aware of the Chazon Ish on moridin v'lo ma'alin, and the same applies here.

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  3. yehuda11:19 AM

    Chaim-I think everyone agrees that halacho isn't decided based on who says what but rather based on the reasons behind that psak.However it apears to me that certain people carry a certain stature that the fact they said something carries the axiom of being grounded in halacha or Torahs haskafa (albiet it must be properlly understood)To give 2 examples.
    The gem occaisanlly says comments indicating that despite his kashe A should not be arguing with B(e.g. ana rav v'smuel amret v'at k'mavey m'rav binyoin bar yefes-inexact quote).
    The Thesuvos hagaonim,some moiney hamitzvos, The emuneh v'deos of RSG as well as the moreh nevochin don't always bring mekoros yet they are accepted by many even if the gem seems to imply differently from them.

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  4. Chaim Markowitz11:34 AM

    FWIW I've always understood the psak on El Al to be a question of Chilul Hashem. I know someone who dicussed this issue with Rav Dovid Cohen and Rav Dovid Cohen looked at the issue through these parameters.

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  5. Chaim,

    don't you agree that even if something is not techinically assur there could be public policy reasons to take or refrain from taking certain actions? Presumably these public policy decisions are made by the leaders of any given community and hence, many of these "piskei halacha" are simply public policies set by various gedolim. That's what seems to be really going on. I will grant you that the term "psak" is then somewhat of a misnomer, but presumably the public policy has halacha as the motivating agenda so even if the action at issue is not strictly assur, there is (presumably) a knowledge and sensitivity to halacha underlying the policy.

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  6. >>>that despite his kashe A should not be arguing with B

    1) I agree wholeheartedly that in a debate of conflicting reasons, te greater authority wins. If I learn up a sugya and find that R' Akiva Eiger or the Ketzos learned differently, it probably means my head is not screwed on right, not theirs. Now, how is this relevant to what I wrote?
    2) Some of your examples (Moreh, RSG) touch on aggadita, an area to which psak halacha does not apply as the Rambam writes in many places.
    To return to my question, if there is some din in hilchos shabbos that you can point to that suggests a boycott is warranted, you have every right to press me to the wall to defer to various poskim's interpretation of that din based on the virtue of their greater Torah knowledge than my own. The only exception would be if other authorities of equal weight or who are my rebbes disagree. But until you have a source, blanket 'because we say-so' does not validate a psak.
    All I am doing is asking a real simple question that anyone who learns any area of Torah has a right to ask: what are the sources that justify the decision rendered?

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  7. Bill Selliger12:33 PM

    The Mishna you refer to is at the end of perek 1 of Kerisus and invokes 'eis la'asos' as a justification

    Neither the mishna or gemara makes any mention of 'eis la'asos'. Please provide a source.

    but that begs the question of what the process is and what authority an individual Rabbi or group of Rabbis has to invoke such stringent measures

    This is really the crux of your question (and not, "what are the sources that justify the decision rendered?". The sources are clear. They can do whatever they want to.) The shaila is, what makes them "they"?

    I've seen R. Zevin in a review of a journal quote RMF that today's morei hora'a have the same halachic status as the Sanhedrin hayoshvin b'lishkas hagazis for certain inyanim. (R. Zevin felt the RMF was mafriz al hamida, by the way.) I will bl"n try and find you the source.

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  8. >>>don't you agree that even if something is not techinically assur there could be public policy reasons to take or refrain from taking certain actions?...I will grant you that the term "psak" is then somewhat of a misnomer,

    Absolutely! In which case let's call a spade a spade and stop muddling the waters. The misnomer creates a lot of confusion regarding halacha and rabbinic authority.

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  9. >>>Neither the mishna or gemara makes any mention of 'eis la'asos'. Please provide a source.

    Bartenura on the spot. See other meforshei hamishna who as well.

    >>>The sources are clear. They can do whatever they want to.

    I agree - Sanhedrin can exercise extra-legal punishment when the blatancy of the crime warrants it. So you have two factors to consider: 1) the authority of the court imposing sanctions; 2) the blatancy and context of the crime. If there is a tshuvah that deals with those issues in this context, I will gladly post it!
    BTW, IIRC on the first siman in hilchos Shabbos achronim write that a boycott of fish merchants can be declared and oneg shabbos forfeited if they practice price gouging. But of course, in that case the price of fish directly affects my Shabbos table; how El Al spends Saturday does not.

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  10. I have had a hard time convincing my son that halacha does not come about because a Rabbi declares it so – proof from from text, mesorah, and reasoning are required, not simply the personal authority and say-so of anyone.

    I don't know how old the son in question is, but in light of your comments in this thread, his hava amina doesn't seem to be so much outright incorrect as it is an oversimplification such as is common by children.

    The halacha does not come sbout merely because of personal authority and say-so, but rather because someone with sufficient personal authority invokes such to declare a reason for a given halacha (assuming that no one of requisite stature and position argues with him). Your objection seems to be the lack of a teshuvah stating the specific reason for the invocation of the personal authority of The Gedolim, but if the reason exists, the lack of a teshuvah is not so much an impediment to the legitimacy of the gezeirah as it is a source of frustration to those who would like to learn the sugya b'iyyun (The gezeirah against g'vinas akum as discussed in the Mishnah comes to mind as an example of a similar case, despite its difference in that it involves a real Sanhedrin).

    One could theoretically posit that the reason is insufficient to enact the gezeirah in question and The Gedolim either are mistaken in their reasoning or are overstepping the bounds of their capabilities within the halachic system (for reasons proper or improper), but I would not place those words in someone's mouth without asking for prior clarification.

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  11. Bill Selliger2:08 PM

    Chaim, you don't get it. They can do whatever they want to. If they say you can't eat vanilla ice cream on Tuesdays, you have to listen to them. There doesn't need to be a blatant crime. They don't even have to disclose their reasons immediately (see A"Z 35a). The issue is only one of their authority.

    Afilu al yamin shehu smol!

    (Of course, the hope is that those invested with such authority are fit to fill the postion, and only make such decrees using discretion and careful judgment - kishehasha'a tzricha likach. But if it happens that you disagree with them about something, that's just your tough luck. Dissention, when taken to the extreme, is 'mamrus' and punishable by death.)

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  12. There is a significant difference between daas talmid chochom and daas torah. Before we classify a statement as daas torah, we should determine whether it was based on torah. The bald-faced opinion of a talmid chochom does not carry the same weight as daas torah. If you choose to follow a particular rav, fine, but that doen't imply a divine imprimatur.

    It is interesting to note that Rav Rav Eliashiv initially said that it is always a sakanah to fly el al, the quasi-official israeli/jewish airline. It is only in zechus of kiyum shabbos that its passengers were safe. I would feel safe flying el al.

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  13. >>>If they say you can't eat vanilla ice cream on Tuesdays, you have to listen to them...Dissention, when taken to the extreme, is 'mamrus' and punishable by death

    The Rambam speaks of the ability to make gezeiros by B"D hagadol b'Yerushalamil (hil mamrim ch 1) i.e. Sanhedrin. Even if I agreed with everything you wrote, how does it relate to the present situation?

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  14. "When someone tells me that the “gedolim paskened” that one should not fly El Al because the airline had flights on Shabbos, I don’t think it is out of line to ask what source in halacha is there which dictates that one must avoid patronizing a company which desecrates Shabbos?"

    I agree with some commenters above, that the issue is not hilchos Shabbos per se, rather the power of Gedolim to make Takkanos and Geziros for the benefit of the Jewish character of the State of Israel, ie, Daaas Torah.

    Nevertheless, the reasoning needs to be explained clearly, analogous to "proof from text, mesorah, and reasoning are required...". Explanation is needed to explain why (A) EL AL Shabbos desecration affects the character of the Jewish State and (B)why a confrontational approach was adopted. See my comments below, from Rabbi Rosenblum's recent thread on Cross Currents. *

    On the general subject of Daas Torah, I link Rabbi Alfred Cohen's article which supports a nuanced concept thereof, as well as an article by Yitzchak Kasdin which quotes sources that the concept is related to the authority of kingship.

    http://www.jlaw.com/Articles/cohen_DaatTorah.pdf

    http://www.jlaw.com/Articles/observ-on-daat.html

    ---

    * While agreeing with the essence of a recent editorial about demonstrating pain over Shabbos desecration, I disagree with some of the arguments used, and think that they are completely unconvincing for someone struggling with the cogency of the boycott:

    “Gedolim have called for a boycott of El Al because the airline’s top management did not honor an agreement to avoid flying on Shabbos. Do we really have to know all the details? Is it important for each of us to know the minutia of the negotiations? Is it really that difficult for us to fly on a different airline until the matter is settled? ....”

    Actually, it is important to know the details of negotiations, as some might say that a less confrontational approach might have avoided the current crisis. If there are additional details which the Vaad is privy to, perhaps they should be made available to the public. I recall reading a Kol Koreh issued a number of years ago declaring a boycott on an Israeli bank because one of its branches was built on certain gravesites. The text stated that serious negotiations took place before a boycott was called for. As Rabbi Alfred Cohen wrote in his article on Daas Torah, “I think [the community] could handle serious discussions of communal issues, or appreciate in-depth explanations of certain aspects of current hashkafa”.

    “When visibly religious Jews board one of their planes it sends a message that they are indifferent to the trampling of the Shabbos and that they don’t feel its pain…When you cross that threshold into the fuselage, it is if you have taken a Sefer Torah, thrown it on the ground and walked on it for your convenience.”

    This argument is portraying the issue in black and white with no shading, and does a disservice to the cause. A more cogent explanation would be that if one is identified as part of a community, and one acts contrary to what assumingly is understood by the observer as the communal Halachic norm(assuming an observer can not discern a reasonable explanation for one’s conduct), than there is problem concerning the issue of Chillul Hashem.

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  15. >>>There is a significant difference between daas talmid chochom and daas torah.

    Before a can of worms gets opened, that terms (da'as torah) is off limits because I have no idea what it means and I'm not getting into a side track of discussing possiblities. Lets stick with halacha - good 'ol shas and poskim. (Isn't that the basis by which we determine the legitimacy of an argument?)

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  16. Bill Selliger3:06 PM

    The Rambam speaks of the ability to make gezeiros by B"D hagadol b'Yerushalamil (hil mamrim ch 1) i.e. Sanhedrin. Even if I agreed with everything you wrote, how does it relate to the present situation?

    That's the point! The whole question is whether this body (assuming it was a body, and not some individuals) has the appropriate authority to issue a binding decree. Hence the RMF that I quoted earlier. As I've said now 4 times, that is the one and only issue that needs to be dealt with here. Everything else is tafel.

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  17. Baruch Horowitz3:11 PM

    "See my comments below, from Rabbi Rosenblum's recent thread on Cross Currents".

    Should be Rabbi Adlerstein's "Afterword" thread linked below.

    http://www.cross-currents.com/archives/2007/01/02/afterword/

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  18. >>>As I've said now 4 times, that is the one and only issue that needs to be dealt with here.

    Nu, so deal with the issue and give me a makor that says contemporary poskim can make ad-hoc gezeiros without any need to reveal their reason or to justify their thinking. From the Rambam it seems you have no case.

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  19. Bill Selliger3:40 PM

    I done told you I'm going to find the Rav Moshe! Let me at least get home from work! :)

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  20. I expect kol hatorha kula on your fingertips : )

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  21. "that terms (da'as torah) is off limits because I have no idea what it means and I'm not getting into a side track of discussing possiblities."

    Your welcome to declare the term off limits on this thread, but I believe that it is the crux of the issue. Shas and Poskim do not say that one should boycott El Al, rather the "Fifth Shulcan Aruch" does. That is "meta-Halacha", and is an excellent illustration of Daas Torah, IMO.

    Without the Daas Torah of Gedolim, each person can follow their individual Rav who can say adopting a less-confrontational approach is the way to go. Daas Torah creates a communal authority.

    If you want, however, to broaden your discussion to examples from Aggadah and takkanos of Rishonim, that would be relevant as well(Rav Elchanon's writings on the Daas Torah concept makes reference to Takkanos of Rishionim and Acharonim) . However, I think it's besides the point to bring Aggadic models from centuries ago, as there is a lot of leeway to judge each situation differently, and ultimately, it's to a large extent a hashkafic issue, and a judgment call.

    There actually was an article a while ago by Rabbi Alfred Cohen in Journal of Halacha and Contemporary Society analyzing the obligation to protest and demonstrate, if at all. This might be what you are interested in.

    But I would think that such a quasi-Halachic analysis lends itself to much more fluidity, and hence, the relevance of Daas Torah as the ultimate reason for action. When a Rav or a Dayon uses his "shikul Haddas" to Pasken a halachic question in favor of two valid reasoning, that is less fluid than intuition involved in Daas Torah, and hence it doesn't go by the former name.

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  22. This comment has been removed by a blog administrator.

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  23. Bill Selliger8:03 PM

    Reb Zevin in his review of the journal "Hapardes" (Nisan-Elul 5699) discusses an article by RMF. (RZ's review is in one of the volumes of his "Sofrim v'Sforim" - which today are difficult to come by. I'd be surprised if you can find one in the Five Towns. Maybe, if you know a collector. You're chances are better of actually finding the journal he was reviewing.)

    His quotes of RMF are clear:

    And as far as hora'as and takonos are concerned, a large body of talmidei chachomim and communal leaders have the same authority as the Beis Din Hagadol b'Lishkas ha'Gazis during the time the B"H existed...except for laws regarding karbonos and the ability to kill a zakein mamrei, but the prohibition of zakein mamrei still exists (today).

    RZ has some hasagos, but thus spake RMF. Not leaving much to the imagination.

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  24. This is a chiddush gadol which you would need ra'ayos for - unless, of course, you base yourself solely on RMF's say-so, which is tautological (and quite ironic!). The Rambam is explicit that lo tasur is a din in B"D hagadol, see also the notes to the Minchas Chinuch by the mitzvah of lo tasur. The Derashos haRan writes (also quoted by the Abarbanel) that there are 2 sources for the authority of B"D - 1) acharei rabim l'hatos; 2) lo tasur. The former refers to interpretation of law and applies to all chachmei hadoros; the latter refers to the ability to legislate takanos and applies only to Sanhedrin.
    So maybe RMF meant this as a guzma - I don't know without seeing it - but I'm not willing to chuck out explicit statements of Rishonim to the contrary of what you are telling me unless you come up with some hesber or some rishonim who argue. I don't know of any who do. (But again, this just me with my bias for religion based in interpreted codes of law and such. Sorry to be cynical, but do gemara and rishonim matter any more as tests of validity, or does personal authority trump all?)

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  25. Bill Selliger10:18 PM

    I'm not arguing one way or another. It clearly is a chiddush gadol (and, to tell you the truth, RMF's shita irritates my sensibilities greatly). But you asked for a makor, and you got one. From one of the most accepteded poskim in the last century, no less.

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  26. yehuda11:46 AM

    I'm unaware of RMF saying anywhere that a majority consensus creates halacha in regard to takonos but in YD 2:4 he writes that one may not eat from from the schita of a shocet who uses a microphone on shabbos and justifies it on the basis of the current and previos orthodox rabbis of his shul allowing it.RMF says that once the agudas harobonim ruled against microphone use on shabbos their psak is binding on everyone as they are the majority.Any rabbi who feels otherwise is 'botleh daatoy'
    Chaim-Doesn't the minchas chinuch you refer to say that lo sosur is relevant today?

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  27. The chinuch is the only rishon (at least that I know of) who holds that there is a mitzva d'oraysa not only to listen to beis din hagadol, but even to listen to the 'shofeit b'yamecha'. The M.C. discusses.

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