BS"D  11 Menachem Av, 5765

Question Sent to HaGaon Rav Avraham Shapira, shelita

To the Rosh Yeshiva of Yeshivat Merkaz HaRav
HaGaon Rav Avraham Shapira, shelita:

	A halakhic ruling issued a few days ago by His Honor has been brought to my attention. With His Honor's permission, I wish to raise several questions of clarification, so that I may understand His position more clearly. Let me preface my remarks by saying that I come not, God forbid, to provoke, nor in the role of one who feels insulted or offended. May Heaven be my witness that were it not for the importance and urgency of the matter – many see it as bordering both on a breach of the honor of God's name and on issues of life and death – I would have remained silent. My objective is merely to clarify positions and draw people closer together.

I have questions regarding a number of specific points, and I hope, towards the end of my remarks, to relate to several examples. My primary bewilderment, however, relates to the general line that characterizes the aforementioned ruling. Many of the assertions found in the ruling are clear and obvious to any schoolboy – that one is forbidden to steal, to demolish a synagogue, to assist in the commission of a transgression, and the like – and they are equally accepted by men of learning who oppose refusing orders. As for the relevancy of these directives to our case, however, two arguments may be raised, which, to a certain degree, have a common denominator.

1)	With respect to values and principles that divide Israeli society, regarding which there is no agreement that defines a particular initiative as patently illegal or immoral, selective refusal of orders is impossible. Refusal on the right invites refusal on the left, and vice versa. The result is a divided and disjointed army, part of which dissents and abstains from an initiative in one direction, and the other part from an initiative in the opposite direction. The damage to the unity and cohesion of the army and to the readiness for mutual dedication and sacrifice is clear. And as a result, the I.D.F.'s ability to carry out its missions and its power of deterrence become eroded. One need not be a great general or statesman to understand the significance of the possible consequences. In short, argue the proponents of this position, when we consider the issue from a wider perspective, in depth, and in the long-term – and let us not forget, they warn, Rav Chayyim permitted the performance of biblically forbidden labors on Shabbat in order to save a person from being sent to jail because of which he is liable to die in another twenty years – we are dealing with a concern about the loss of human lives and the weakening of the state and its army.

2)	At the same time, argue the proponents of this position, there are military and political professionals who maintain that there is a reasonable chance that the present government's plan will save – again, in the long term – human lives, and/or it will preserve the Jewish demographic character of the state. There is no certainty regarding these issues, but in the opinion of many, there is also no certainty in the opposite direction. It is difficult to predict the future, and only a few days ago we read of prophets who saw "vain and foolish visions," and, as opposed to Yirmiyahu, fed the public, who thirsted for their words, "burdens of falsehood and deceit." In any event, according to this argument, we should define the present decision as one involving the possible saving of lives (they obviously admit that there exists a danger to lives in the opposite direction, that in the short term the disengagement might put people's lives in greater danger, but, according to them, the matter remains uncertain), and examine every halakhic ruling connected to the matter accordingly.

The ruling that His Honor has issued totally ignores these arguments. Thus, I come to my first question: Does His Honor simply reject, in absolute manner, the possibility of these scenarios, he being convinced, beyond any shadow of a doubt, that rightness and logic are to be found exclusively among the professionals with whom he has consulted? And if so, here the son asks, what is the basis for this absolute certainty – a realistic appraisal of the situation, faith and trust, or God's secret revealed to those who fear Him? Or, alternatively, does His Honor agree that the dangers exist, but they do not suffice to tilt the balance when deciding the Halakha - either because of the severity of the prohibitions, that does not allow them to be set aside by the possibility of saving lives, or because of the importance of preserving the integrity of the Land of Israel, the weight of which is greater than that of saving lives.

In a similar context, a parallel question arises. His Honor asserts that whoever fails to obey His ruling "will not be cleared" (lo yenake). This expression is exceedingly harsh; it is what moved our Sages to include the prohibition of taking a false oath, because of the prohibition of taking God's name in vain, among the severe transgressions, even though it is a simple negative commandment. What are the principles and sources, on the basis of which even the evacuation of a settlement in the Land of Israel is included among the severe transgressions, when both the Sages and the Rambam mention only the prohibition of taking God's name in vain as being exceptional in this regard? From one point to another, but within the same general topic, I assume that His Honor's ruling was given to someone who regards himself as subordinate to His authority. Does He think that the ruling is valid, and to the same degree of severity, for members of other communities, whose leaders have not expressed themselves in the spirit of His Honor, and perhaps have even ruled in the opposite manner? For example, what advice would His Honor give to a disciple of my revered teacher, Rabbi Yosef Dov Soloveitchik, ztz"l, who resolutely asserted that there is no prohibition to hand over portions of the Land of Israel to the nations of the world when there are considerations of saving lives, and even said that when we come to define these considerations, we must take into account the views of military and political leaders? And if someone thinks that, from a purely political perspective, the prospects of removing the settlements are greater than the dangers, and he anticipates that it will contribute to the saving of lives, and he wishes to participate in the initiative relying on the Rashba (Responsa, I, 413): "And even the most pious of the pious are not permitted to do their work by way of trust [in God], but only in the manner of the world" – does His Honor think that such a person may be granted an allowance?

I am aware that His Honor presumably rejects this appraisal of reality, and I too am not convinced that it is correct. But is it so simple to say that anyone who adopts it and acts accordingly "will not be cleared"? Is there no room to clear him, even according to the assumptions of His Honor's ruling, in line with the Rambam (Hilkhot Shabbat 2:16): "If a person heard that a child drowned at sea, and he spread out a net to rescue him, but he only caught fish, he is exempt from all liability" – that is to say, that in cases where a person's actions are motivated by the desire to save lives, he is exempt from liability because we take into account his motivation? Or perhaps a distinction must be made between a failure in execution and a mistake in appraising reality?

In conclusion, with His Honor's permission, I wish to receive clarification, with respect, for example, to two specific points:

1)	His Honor opens with the assertion that removing Jewish settlements is forbidden by Torah law because of the prohibition of "Lo techanem"? However, it is common knowledge that His Honor permits the sale of land in the Land of Israel in order to deal with the problems of the Sabbatical year, and that He even encourages people to rely on this allowance. The problem of "Lo techanem" also arises in connection with this sale, and as is known, the leading halakhic authorities have discussed the issue since the days of Rav Kook, ztz"l. Among the arguments in support of the allowance, it has been suggested that the prohibition only applies to the seven Canaanite nations, or, at the very least, that it is limited to idolaters, a category that does not include Moslems. I believe that some authorities maintain with respect to allowing non-Jews to acquire property as do the Ramban and others with respect to a gift, that there is no prohibition when the donor is motivated by his own needs and benefits as opposed to the needs of the recipient. Does His Honor reject these positions outright, and allow the sale of land for the Sabbatical year for different reasons, or does he rely on them only in a case of dire need – and were he to believe that a security need exists in the present situation, he too would rely on these positions to resolve the problem of "lo techanem"?

2)	His Honor asserts as obvious that someone who demolishes part of a synagogue building or its accessories violates a biblical prohibition. This appears to be the position of the Rambam, as noted in his count of the mitzvot (though this point is omitted both in Sefer ha-Mitzvot and in the Mishne Torah, as has been discussed at length by the Acharonim). But many Acharonim have suggested that according to some Rishonim we are dealing here with a rabbinic prohibition.  This is especially true according to those who maintain that the very sanctity of a synagogue is only by rabbinic decree, but perhaps it is so even according to those who think that a synagogue's sanctity is by Torah law. For the Gemara only mentions one who demolishes one of the stones of the Sanctuary or of the Temple courtyard, or burns consecrated wood; and minor sanctuaries, i.e., synagogues, were not explicitly added. Does His Honor ignore these opinions because He accepts the view of the Yerei'im that the sanctity of a synagogue is by Torah law? Or is He of the opinion that while the sanctity of the synagogue building itself is only by rabbinic decree, demolishing a synagogue is forbidden by Torah law, because it is intended for Divine service, and its destruction involves an insult, as it were, to God - this being precisely what is forbidden according to a close reading of the verse, "You shall not do this to the Lord, your God"?

Furthermore, the Rambam clearly states, both with respect to demolishing a stone of the sanctuary or the courtyard and with respect to burning consecrated wood, that a person guilty of these offenses is not liable to lashes – and, presumably, does not even violate a biblical prohibition – unless he acted "with destructive intent" [derekh hashchata] (Hilkhot Yesodei ha-Torah 6:7). This expression appears in several areas of Halakha, and its precise definition is unclear. Does His Honor think that it comes only to exclude one who demolishes in order to build? Or perhaps, whenever there is no malicious intent to inflict damage, it is not called "with destructive intent"? If we adopt the second understanding, is it unreasonable to suggest that a soldier who destroys a synagogue, innocently thinking that his action is part of a positive mission, is not defined as acting "with destructive intent," even if in objective terms, he is in fact mistaken, so that the halakhic conclusion on this point as well revolves around one's appraisal of reality?

Despite Chazal's assertion that at the time of the destruction of the Beit HaMikdash, God performed an act of lovingkindness with the Jewish people when he spilled His wrath on wood and stones, limiting thereby the loss of human lives, there is no doubt that in our case the fate of the synagogues is especially painful – both because of their own sanctity and because they symbolize the social and communal fabric that is liable to be destroyed as a result of the evacuation. The problems stems especially from the fact that on the face of it, according to all opinions – including those who maintain that the disengagement will in the long term have a positive outcome – the desired results can be achieved even if the synagogues remain standing. From here there arises halakhic and emotion confusion that is not simple. If the disengagement plan is indeed executed – a scenario that His Honor obviously prefers not to consider – and if we assume that the future of the synagogues of Gush Katif has no security ramifications or political significance, where is the way that light dwells and which of the two difficult options, each like wormwood and gall, is to be preferred? From a purely halakhic perspective, if there is no third alternative (for example, agreement regarding the fate of the synagogues after they are transferred, similar to what is stated in Megila 27b regarding the sale of a synagogue), and there exists a reasonable danger that if they remain standing they will turn into mosques, in which will be sounded words of incitement and blasphemy against God and His anointed one – is it preferable to destroy them – and especially so that "they tell not in Gat" and "lest the daughters of the uncircumcised triumph"? Or perhaps, because of the fear of violating the prohibition of demolishing a synagogue, mentioned by His Honor, it is preferable to adopt a sit back and do nothing (shev ve'al ta'ase) approach, despite the emotional difficulty of seeing the entry of desecrators, which, especially in this area, pushes us towards a scorched earth policy? And what is the weight to be given in this situation, one way or the other, to the view of the Ramban that a synagogue that no longer serves its purpose loses its sanctity, like an etrog after the holiday of Sukkot, and other things used for mitzvot that may be thrown away after their time has passed? From His Honor's ruling regarding the prohibition of demolishing synagogues in our case, I understand that he did not take this position into account. It is not clear to me, however, whether this is because He maintains that this view was not accepted as normative law, or because His Honor thinks that even according to the Ramban, the matter depends upon the will of the townspeople, and not cruel reality. I do not know the extent to which the decision-making process regarding this matter rests today in the hands of the halakhic authorities. I do, however, see importance, both halakhic and ideological, in voicing the Torah's position on this complicated and painful matter.

I conclude in the same manner as I began. I have not come, God forbid, to provoke, but to clarify and seek elucidation. In the event that His Honor will agree to relate to my questions and is able to take the time to answer them, it will contribute to the understanding of a complicated issue that deeply touches our very souls. Would that the Master of the Universe grant us to discuss more joyful and heart-warming issues, in an atmosphere of calm and tranquility, both personal and communal.

With the blessing of Torah and mitzvot,
And with amity and esteem,

Aharon Lichtenstein 

(Translated by David Strauss. This translation has not been reviewed by HaRav Lichtenstein.)