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Civil Rights: The View From an Orthodox Yeshiva

Halachic thoughts on the present unrest

Cole S. Aronson
June 25, 2020
Mo Gelber
BLM protest in Crown Heights, Brooklyn, June 7, 2020Mo Gelber
Mo Gelber
BLM protest in Crown Heights, Brooklyn, June 7, 2020Mo Gelber

The Jewish tradition speaks about all things, including the questions George Floyd’s killing prompts Americans of conscience to ask: What do we owe to the harmed? What do we owe to those closest to them, and to our life together in a nation dedicated to certain propositions?

I study near Jerusalem at Yeshivat Har Etzion, an Orthodox yeshiva which for 50 years has taught and shown the civic importance of Judaism, in Israel and in America as well. We all read about the famous acts of Jews involved in the Civil Rights Movement. Many were secular, but they executed a commitment made in the Bible, extended by the Talmud and its interpreters, and received by sages of mid-20th-century Orthodoxy. Even if you believe, as I do, that religion often underdetermines politics, it is clear that our texts place some impulses—racism, meanness, anarchy—out of Jewish bounds.

Beginning at the beginning, in Genesis: “Whoever sheds the blood of man, by man shall his blood be shed, for in His image did God create man.” We matter because we represent Someone Else. We’re all deputized to enforce the honor of our one source of value, and none of us can be replaced. The Mishna likens God to a king engraving coins—human beings, each with a bit of the infinite, each able to say, “The world was created for me.” The Lord’s basic word on justice equates regard for Him with respect toward each other.

No two figures defended God’s image quite like Abraham and Moses. In one of His two main tests of the first patriarch, God informs Abraham that He intends to destroy Sodom and Gomorrah. “For I have known [Abraham], that he will instruct his children and his house after him to keep the way of the Lord to do the just and right. …” Abraham beseeches the Judge of the World to judge justly. If 10 good people remain, perhaps the cities aren’t forfeit. Like the caring parent of difficult children, writes the 19th-century Lithuanian sage known as Netziv, the future “father of many nations” ought to show and implore the Lord for mercy. Moses prevents goons from hounding some Midianite women, total strangers at the time. This follows his vigilante defense of a beaten Israelite, and augurs his return to Egypt to liberate his wretched brethren. These two exemplars of “mercy, modesty, and disinterested grace,” three essential Jewish traits according to the Talmud, teach that a main task of the Jews is leveling up the moral floor on which all mankind stands.

So what does this mean politically? The Bible’s prophetic narratives are the first study in Judaism of what William Seward, who became Abraham Lincoln’s secretary of state, called the politics of the “higher law.” Here is Samuel reminding Saul that all kings rule by the rule of the King of kings: “… Obedience is greater than an offering, to listen than fat of rams. … You are disgusted with the Lord’s command—He is disgusted with your kingship.” Nathan, Amos, and Eliyahu also accosted unfitting kings. As Michael Walzer notes in Interpretation and Social Criticism, prophets spoke particularly, recalling rulers (and subjects) to an inherited covenant with God—of which the prophets themselves were members, and which misrule and vice betrayed. The lesson isn’t just that, tactically, you’re better off appealing to personal pride than an abstract sense of right and wrong. Violating a moral law is worse when the law’s been accepted as ours. The prophets are always comparing a deviant Israel to an adulteress, suggesting that infidelity salts the wound cut by wickedness.

Prophets spoke mainly to sovereign Jews, but the Talmud and its interpreters wondered how their exiled heirs could cope with laws the justice of which they could not alter. The first question is about the status of gentile law as such. There is the halachic principle dina d’malchuta dina—the law of the land is the law. Mainly it’s commercial: For instance, an act might effect a sale just because gentile law says so. But any arbitrariness in the law traduces law’s basic purpose. So therefore acts of attainder are no good—writing in the 12th century, Maimonides ruled that a king who appropriates the field of a disfavored citizen is a thief, the act halachically void. Laws also have to be public, according to Maimonides, Nachmanides, and Rashba (the latter two are 13th- and 14th-century Sephardic sages). Here is Nachmanides: “when [the principle that] ‘the law of the land is the law’ is stated, what is meant are the acts of king that are known in his whole realm, and that the kings preceding him abided by, and that are writing down … but what the king does according to the hour, or a new law meant to punish the nation, as was not done previously, this is called ‘theft of state.’”

Nachmanides’ conservatism—part of what makes law legal is its grounding in precedent rather than whim—and suspicion of acts of emergency find allies in the Ritva, the Mordechai, and the Meiri (respectively Sephardic, Ashkenazic, Provencal, all 13th century). Across these sources is a commitment to legal equality, between individuals, and, writes the Or Zarua, of 13th-century Bohemia, between groups: “[I]f [a king] changes [laws] for one of the peoples, they are not laws ….”

So say a law is unjust, and the standard means of redress haven’t worked. What to do about the rulers? What to do for their victims? On the first question, the Halacha is extremely cautious. The Mishna endorses the practice of Rabbi Chanina, who would “pray for peace in the realm, without which each man would fear his fellow.” The Talmud clarifies: “without fear of the government, the strong would swallow the weak.” Anarchy is simply the advantage of the stronger. The Midrash nixes rebellion versus even harsh kings, going no further than to say that Jews should disobey a ruler who orders them to violate a mitzvah.

Toward those suffering, the Halacha prescribes public solidarity and private fellowship. The Talmud calls good people who don’t emulate Abraham’s protest against injustice “incompletely righteous.” Expanding the normal writ of protest, Rabbeinu Yonah, the 13th-century Catalonian rabbi, adds that the pious should fast and rend garments in response to the pain of the world (and not only of the Jewish world). Maimonides, following the Talmud, says that even with regard to pagans, Jews are to care for their poor, to visit their ill—in short, to feel their pain, for the Torah’s ways are “the ways of pleasantness, and all her paths of peace.”

Racism is nothing new in America, and of the great 20th-century Orthodox figures, two in particular, Ahron Soloveichik (1917-2001), who founded a yeshiva in Chicago before teaching at Yeshiva University, and Chayim Dovid Regensberg (1895-1977), who headed the yeshiva in Skokie, Illinois, distinguished themselves for traditionalist clarity.

Soloveichik, in his essay “Civil Rights and the Dignity of Man” (written in the 1960s, it seems, but collected in 1991’s Logic of the Heart, Logic of the Mind), is unequivocal: “From the standpoint of the Torah … Any discrimination shown to a human being on account of the color of his or her skin constitutes loathsome barbarity.” Soloveichik invokes the ethic of k’vod ha’briyos, respect for creation, which peaks in the image of God inherent in man. “The guidelines of respect for all people are endowed with so much significance that the Halacha states that any commandment in the Torah can be passively violated to preserve the reputation and respectability of another human being. It should be noted that k’vod habriyos also supersedes every rabbinic law, whether the subject be a Jew, a non-Jew or a pagan.”

And we are not only to help those in need, but also to reform those who harm. Soloveichik cites an episode from the Jerusalem Talmud of a rabbi forgoing his legal right to a diamond so that its erstwhile, pagan possessor will praise the Almighty—and presumably, by extension, care more for His creatures.

Regensberg’s 1964 responsum, “Investigation into Civil Rights,” is just as emphatic: “Our perfect Torah was given for the perfection of man’s character, and his way in this world, as expressed in the dictum ‘holy shall you be unto Me.’” Regensberg quotes Nachmanides’ famous comment on the verse just cited as prescribing the obligation, beyond the letter of the law, to let its spirit infect all acts. The Shlah of early modern Prague echoes Nachmanides’ ambition, prescribing a veritable duty to go beyond duty. Addressing America directly, Regensberg writes that all nonpagan gentiles are protected by the prohibition against molesting a stranger living among Jews. And he goes further, deploring racism’s effects not only on housing, labor, and law, but its baleful disturbance of warm society between human beings.

Soloveichik and Regensberg were not alone. Former Yeshiva University President Norman Lamm, who died in May, wrote of the moral obligation of Americans, and the covenantal obligation of Jews, to dignify the image of God in people of all races. My friend Ari Lamm has related his grandfather’s views in Tablet, in particular the latter’s teaching, in biblical language far older and more potent than today’s turbid academese, of the religious evils of racism: “When the economy of a great nation,” Norman Lamm said of pre-Civil Rights America, “is built upon such patent injustice, it is a crime of avodah zarah [idolatry], it is a breach of faith.”

Shlomo Riskin, who founded Lincoln Square Synagogue in New York and then the Efrat community in Israel, protested throughout the South for civil rights, distributing yarmulkes (as he called them, “freedom caps”) to his fellow marchers, black and white. Saul Berman, a prominent rabbi who teaches Jewish studies at Stern College for Women, recounts joining the famous march from Selma to Montgomery in 1965. The week before the march, on the Fast of Esther, he and other activists were arrested. A colleague brought him a salami and a megillah, and Berman read the Purim story for the detained marchers.

Berman recalls that at one point during his confinement, an officer asked the group if a Jacob Gumbiner, formerly a rabbi in Selma, had been arrested. Gumbiner identified himself, and Berman joined him to meet outside the jail with emissaries from the Selma Jewish community. The local Jews were sympathetic to the marchers, but the black boycott of white businesses had cost Jewish shop owners. The less the Jews of Selma were identified with civil rights, the better the chance of retaining white customers to compensate. So Berman asked the frustrated locals whether, if Jews charged European Christians who did not object to Nazism with complicity, Jews should offer less when others are mistreated?

Principles and texts can almost never say what precisely is to be done, but they encourage certain virtues. I think that in this case, the virtues are as ancient and steady as evil, which, the Lord concedes, after condemning postlapsarian man to politics (“… and he shall rule over you”), is man’s tendency even from youth.

Cole S. Aronson resides in Eli, Israel, and is writing a defense of traditional Judaism.