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How far can a government or community go to limit what an individual does or practices in their private life?
Based on a Shiur by Rabbi Micha Cohen
Introduction
In secular law, there is an ongoing discussion about whether a government can or should limit an individual’s private life choices. One example of this is the Supreme Court’s 1923 decision in Meyer vs. Nebraska. The State of Nebraska enacted a law forbidding people to teach their children languages other than English. Robert T. Meyer violated the law and taught Bible in German, and was fined $25. The case made its way to the Supreme Court, which ruled that Mr. Meyer had the right to teach in the language of his choosing. Part of the explanation given for this decision was as follows:
“A person has a right to acquire useful knowledge, to marry, to establish a home, and bring up children, to worship G-d according to the dictates of his own conscience, and enjoy the privileges essential to the orderly pursuit of happiness by free men.”
Essentially, the Court ruled that a person has the right to teach in a way that befits their conscience, and the government doesn’t have a right to get involved. This ruling was applied and expanded upon in later Supreme Court case such as the famous case of Roe vs. Wade, in which this idea was applied to permit a woman to have an abortion, should she so choose. The Court argued that since a woman has the right to pursue happiness according to the dictates of her own conscience, the law cannot impose upon her a decision as to whether she may abort her fetus or not.
The Halachic Standpoint
While the stance of Halacha on matters of abortion is a discussion unto its own, and in no way resembles the secular discussion around this matter, in this article we will focus on some of the general concepts pertaining to an individual’s freedom.
Does a community or communal institution have the right to impose a certain Halachic position on a person who follows a different approach? Does Halacha agree with the perspective of secular law concerning the ability of an individual to take their own approach in this regard? When do we say that a community cannot establish certain rules and regulations that impact a person’s personal practice due and when can a governing institution tell a person how to lead their lives?
This issue was quite relevant for hundreds of years, where Jewish communities had considerable self-rule, and passed many rules and Takanot (enactments). Although most communities today do not possess the degree of self-autonomy and government that was once prevalent, this issue may have some contemporary applications as well – such as with regard to members of a community, synagogue or Jewish organization that wishes to impose certain Halachic standards or behavior codes upon its members.
Breakaway Minyan
Ribbi Shemuel DiModena, the Maharshdam, who lived during the times of the Spanish Inquisition, was asked about some individuals who left the community shul in order to create their own shul in accordance with their own practices. The rest of the community was quite upset and refused to allow them to separate. In order to prevent this, they instituted many rules against them. Was it permitted for the community to force them to remain in the main shul?[1]
The Maharshdam in his Teshuva strongly supports the right of the individuals to separate. He asserts that one may not force others to pray in any specific shul that those individuals wish to avoid. The reason for this, explains the Maharshdam, is that a person has a right to serve Hashem in the manner which he desires, similar to the Gemara’s statement (Avoda Zara 19a) that a person will only successfully learn the topics of Torah that he desires to learn at that particular time. Here too, if a person feels they will pray better in a different environment, they cannot be forced to remain.
This appears to be a model example of our issue: Although the community may say, “We want you to be part of our shul, and it’s to our and your benefit to do so,” the person may respond: “My service of Hashem is personal, and I can decide for myself how to best serve Hashem.”[2] Although we may feel that the person is in error and will not truly pray “better” elsewhere, or that the needs of the community outweigh those of the individual, nevertheless, the Maharshdam feels that since such factors are quite subjective, the individual has the right to decide for himself, and need not follow the will of the community.
The Secret Jews
Another interesting example in which similar subjective considerations may exist in evaluating an individual’s personal practices is discussed in the responsa of Rabbi Shimon Bar Tzemah, known as the Tashbatz, who lived in the same era as the Maharashdam. He discusses Jews who had suffered through the Spanish Inquisition and decided to hide their identity as Jews, rather than attempt to leave the country. These Jews, who kept Judaism in secret, but publicly identified as Christians, were known as Anoussim. Although some of the Anoussim may have been capable of leaving Spain, many did not do so because they would likely lose all of their wealth, and would be separated from their family, as well as other reasons.
The Halachic authorities of that time grappled with the question of whether the Anoussim violated the prohibition against idol worship and classified as heretics. The Rambam had written many years earlier about people that may have the ability to leave but choose not to, and regarded them to be intentional transgressors, “because they have the ability to [flee], even if it means leaving their family, if they choose not to, they is as though they have intentionally given up the Torah.”
Nevertheless, the Tashbatz disagrees with the opinion of the Rambam, and maintains that a person who outwardly gave up his religion because he didn’t want to leave his family or his livelihood, but still tried to keep whatever he could, may still have the status of Oness – one who is compelled to violate a prohibition against his will. Although the right thing would have been for them to be more courageous and attempt to leave, yet, we will still consider the situation to be as one that is beyond their control. He even suggests that the Rambam, who appears to disagree, may have written his opinion simply “to encourage people to leave”. Thus, the Tashbatz concludes, such a person cannot be held accountable for wrongdoing, as “we can’t judge the person in his situation”.
As in the Maharshdam’s case, the case brought before the Tashbatz appears to be an ambiguous one where various subjective factors are relevant to the situation. In his conclusion, the Tashbatz supports the notion of giving the Anoussim the right to decide for themselves as to the correct mode of action. Therefore, he writes, one may not impose other Halachic or communal enactments or sanctions against them.
In Conclusion
In conclusion, it seems from these Teshuvot, that in a case where the individual is acting within the Halachic confines, he is entitled to pursue these rights and not be sanctioned by the communal institution. As we explained, each issue can depend on many different variables and thus a Bet Din should be consulted in each situation.
Footnotes:
[1] The issue of separation from an existing shul and creating a new one is actually quite a complex one in Halachic literature (despite the clear ruling of the Maharshdam in this particular case), with a range of opinions and factors to consider. For a summary of this question in English, see Steven Oppenheimer, “The Breakaway Minyan,” Journal of Halacha and Contemporary Society, Spring 2003.
[2] This rule may not apply if the person chooses to participate in an act that is forbidden. In that case, it is possible that the community has the obligation of tochacha, rebuke, that would allow them to impose certain rules to prevent this. However, the rules of contemporary tochacha are somewhat complex and subjective, and are beyond the scope of this article.