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From Principles to Rules and from Musar to Halakhah: The Hafetz Hayim's Rulings on Libel and Gossip

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My work on the subject of this article began with courses that I taught on the Hafetz Hayim at Beit Morasha (2002-3) and the Hebrew University (2003-4). I further developed ideas relating to this topic in a lecture that I delivered at the 14 th World Congress of Jewish Studies, 2005, on ''Jewish Law and Religious Ethics { Toward an Abstract Research Model.'' The comments of Profs. Avi Sagi, Yedidiah Stern and other colleagues on that lecture helped crystallize some of the ideas relating to this research. I am grateful to my students in these courses and to all those who helped, as well, to crystallize the ideas on the subject. I am also grateful to Profs. Leib Moscovitz, Moshe Halbertal and Arye Edrei for their helpful comments on a draft of this article. 1 The late Professor Ta-Shma did not remember the exact details of what he had heard, and I am not certain that I recall all that he recounted. The essential points, however, are etched in my memory. Unfortunately, I only met Professor Ta-Shma a few times, and only two of those were long meetings { one in 1995 and one in 2003. This story was shared in the latter meeting. Both conversations were fascinating intellectual experiences in which Professor Ta-Shma demonstrated astute insights into halakhic research and recounted anecdotes and historical details that were no less fascinating. Although I summarized some of our discussions in writing, this story was not included. I am, therefore, relying solely on my memory.
From Principles to Rules and from
Musar to Halakhah:
The Hafetz Hayim’s Rulings on
Libel and Gossip
Benjamin Brown
*
I would like to open this article with a nice little story that was related
to me by the late Prof. Israel Ta-Shma.
1
He himself questioned the
credibility of this story, but even if it never actually took place, I think
that it can teach us something about the pioneer rulings of Rabbi Israel
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* My work on the subject of this article began with courses that I taught on
the Hafetz Hayim at Beit Morasha (2002-3) and the Hebrew University
(2003-4). I further developed ideas relating to this topic in a lecture that I
delivered at the 14
th
World Congress of Jewish Studies, 2005, on ‘‘Jewish
Law and Religious Ethics
{
Toward an Abstract Research Model.’’ The
comments of Profs. Avi Sagi, Yedidiah Stern and other colleagues on that
lecture helped crystallize some of the ideas relating to this research. I am
grateful to my students in these courses and to all those who helped, as
well, to crystallize the ideas on the subject. I am also grateful to Profs. Leib
Moscovitz, Moshe Halbertal and Arye Edrei for their helpful comments on
a draft of this article.
1 The late Professor Ta-Shma did not remember the exact details of what he
had heard, and I am not certain that I recall all that he recounted. The
essential points, however, are etched in my memory. Unfortunately, I only
met Professor Ta-Shma a few times, and only two of those were long
meetings
{
one in 1995 and one in 2003. This story was shared in the
latter meeting. Both conversations were fascinating intellectual experiences
in which Professor Ta-Shma demonstrated astute insights into halakhic
research and recounted anecdotes and historical details that were no less
fascinating. Although I summarized some of our discussions in writing, this
story was not included. I am, therefore, relying solely on my memory.
Meir ha-Cohen (1839-1933), known as the Hafetz Hayim, on the laws
of lashon ha-ra (libel; lit. ‘‘evil tongue’’ ) and rekhilut (gossip).
2
This is
how the story goes:
In the year 1873, when the Hafetz Hayim finished writing his book
Hafetz Hayim on libel and gossip, he wished to publish it with
rabbinical endorsements, as was customary. Since he also wanted
to distribute the book among the Hasidim, he wished to get an
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Benjamin Brown
2 Rabbi Israel Meir ha-Cohen (Kagan), Hafetz Hayim (Jerusalem, 1999); re-
ferences will be made to this widespread edition. This book, by which its
author is known, has already become a classic, as reflected in the large
number of commentaries, addenda, and abridgments that it has engendered.
Some of these works have been published with the original text of the
Hafetz Hayim. I will mention a few of these works that have impacted on
my research and that I refer to in this work: M. Kaufman, Netivot Hayim al
Sefer Hafetz Hayim (Bnei Brak, 2005); B. Cohen, Helkat Binyamin al Sefer
Hafetz Hayim (New York, 2004); S. Rosner, Ali Beer u-Mekor ha-Beer al Sefer
Hafetz Hayim (Jerusalem, 2005); H. Levi, Marpe Lashon (Rekhasim, 1991).
Above them all, the DBS software, which includes the Hafetz Hayim in its
database, was of tremendous help to me.
Additional evidence of the importance of the book is the number of critical
comments written on it, including: S. Z. Kook, ‘‘Hearot le-Sefer Hafetz
Hayim,’’ included in his son’s book: A. Y. Kook, Mitzvat Reayah (Jerusalem,
1985), 100-103 (some of his comments are among the most insightful and
persuasive that I have seen on the Hafetz Hayim); A. Y. Kook, Mitzvat ha-
Reayah (Jerusalem, 1985), 97-98; S. A. Wertheimer, Sheelat Shelomo (Jer-
usalem, 1932), vol. 1, Section 58, p. 52; S. B. Werner, ‘‘Hearot ve-Iyunim be-
Sefer Hafetz Hayim,’’ in Volume in Memory of Shmuel Baruch Werner zt’’l,ed.
Y. Buxbaum (Jerusalem, 1996), 109-10; O. Hadaya, Shelom Avdo (Jerusalem,
1996), 222-33; Y. Hutner, ‘‘Hearot ve-Hagahot Al Sefer Hafetz Hayim,’’ in
Volume in Memory of Maran ha-Pahad Yitzhak zt’’l(Jerusalem, 1984), 329-36;
R. Grozovsky, ‘‘Hearot be-Limmud Sefer Hafetz Hayim,’’ Kol ha-Torah 55
(Tishrei, 2004); see also there the comments of H. Sacks (the grandson of the
Hafetz Hayim), S. H. Lafaire and M. M. Maggid, 58-68; S. Z. Auerbach,
‘‘Heara be-Inyan Lashon ha-Ra,’’ in Derekh Aliyah, ed.D.Z.Eliach(Jer-
usalem, 1976), following the endorsements (no page numbers). In addition,
many comments appear in periodicals, such as: Shofar ha-Hafetz Hayim,
Areshet Sefateinu,andMarpe Lashon. Of particular note is M. Samsonovitch,
‘‘Kuntres Min ha-Mayim Meshitihu,’’ Marpe Lashon 3 (1984): 33-97.Special
thanks to Avi Katz who referred me to some of these critiques.
endorsement from one of the prominent Hasidic masters of the time.
He therefore sent an emissary to the Rebbe of Alexander,
3
as well as
to a few prominent rabbis, to give them a copy of the new book and
ask for their endorsements. The emissary reached the Polish rebbe,
and requested his endorsement.
‘‘What is the book about?’’ – asked the rebbe.
‘‘About the laws of libel’’ – he replied.
‘‘And why do we need a book on the laws of libel?’’ – the rebbe
continued.
Embarrassed by the strange question, the emissary answered plainly:
‘‘The book teaches that one may not hurt his neighbor even by
speech.’’
To this the rebbe responded: ‘‘To hurt one’s neighbor one does not
need a tongue or speech; it’s enough just to make an ’eh!’’’ – and he
made a slight dismissive gesture with his hand.
Seeing that the rebbe refused to give him the desired endorsement,
the emissary continued on to the other personalities, all of whom
complied willingly. When he came back to the Hafetz Hayim, the
emissary reported that all the referees gave him their endorsements,
except for the Rebbe of Alexander. ‘‘The Rebbe of Alexander? –
’eh!’’ – the Hafetz Hayim responded, and made a slight dismissive
gesture with his hand...
The emissary told him about his meeting with the rebbe and the
content of their conversation. Hearing that, the Hafetz Hayim
hurried to add an article to the book, stating that ‘‘there is no
difference between one who speaks libel about another person ex-
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3 Professor Ta-Shma was not certain at all as to whether the rebbe in the
story was the Rebbe of Alexander, but remembered that it was a Polish
rebbe. In fact, it could not have been the Rebbe of Alexander. The first
Rebbe of Alexander, R. Feivel of Gritza, died in 1848. His son R. Yehiel,
who succeeded him, only began to serve in 1878. The interim rebbe,
Hanoch Henich of Alexander, who was not in the direct line of the dynasty
but held the title of Rebbe of Alexander, died in 1870. Thus, in the year
that the Hafetz Hayim was published, 1873, there was no Rebbe of Alex-
ander. Nevertheless, I have recounted the story here as I heard it.
plicitly and one who does it by intimation; in any case it is con-
sidered libel.’’
4
The story is light and simple, and we should not attribute too much to
it, particularly when we do not know its original source and the degree
of its historical credibility. Nevertheless, I would like to suggest a
somewhat creative interpretation of its message, that may help us
understand the Hafetz Hayim’s influential enterprise in the field of libel
laws. This enterprise is virtually the peak of a process in which libel was
transformed from a principle-based domain into a rule-based discipline, in
the Dworkinian sense of these terms. When the Rebbe of Alexander
insinuated that there is no need for a book that articulates the laws of
libel, he meant that it would be better to leave this topic in the realm of
principles – in this case the principle that ‘‘ one may not hurt his
neighbor even by speech.’’ In the example that he gave, he wanted to
intimate that one cannot cover all of the possible cases of libel in rules,
and that the formulation of the norms in the form of rules would,
therefore, needlessly diminish the force of the principle. The Hafetz
Hayim’s response represents the opposite tendency: he thought that the
norms for libel should definitely be formulated as all-inclusive rules.
Therefore, when he was confronted by a case that the existing rules did
not cover, he sought to articulate it, too.
As I will clarify later on, the traditional rule-centered genre in
Jewish tradition is halakhah, while the principle-centered one is known
as musar. The Hafetz Hayim’s literary enterprise in this branch should
therefore be considered as the halakhization of musar,
5
or, if we allow
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Benjamin Brown
4Hafetz Hayim, Part. 1, 1:8. In n. 13 there, he points out that the same
applies to the wink of an eye. According to Professor Ta-Shma’s re-
collection, the said section was added at the end of the book, since it came
to the Hafetz Hayim’s attention after the book was practically completed.
Thefactthatitappearsattheendofthefirstpart,andthattheHafetz
Hayim refers to its location in other places in the book, seem to indicate
that it was not a last minute addition, and strengthens the doubts regarding
the credibility of this story.
5 A few have already pointed to the fact that the halakhization of musar is
ourselves a less accurate term, a legalization of ethics.
6
In the fol-
lowing sections, I will analyze this process. I will not discuss the Hafetz
Hayim’s motivations for the halakhization of the prohibition against
libel,
7
but will focus on the normative essence of the process itself. First
I will introduce the theoretical framework for the examination of the
relationship between halakhic literature and musar literature. I will then
demonstrate that the prohibition against libel had usually been con-
sidered a branch of musar, and that it was the Hafetz Hayim who
transformed it into a branch of halakhah. After having analyzed the
methods used to implement this transformation and its consequences, I
will try to evaluate its degree of success.
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Principles to Rules, Musar to Halakhah
the path of the Hafetz Hayim. See: Z. Kaplan, ‘‘Israel Meir ha-Cohen,’’ in
The Hebrew Encyclopedia,21:196(Hebrew);J.D.Epstein,Mitzvot ha-Musar
(New York, 1973), 11, 15; idem, Mitzvot ha-Bayit (New York, 1975), 1:427,
(quoting S. Schwab); M. Dadon, ‘‘The Prohibitions against Libel according
to the Hafetz Hayim and according to Israeli Law,’’ Hemdaat 3 (2001): 32;
N. Rottenberg, ‘‘Guarding One’s Tongue: Between Halakhah and Musar in
the Writings of the Hafetz Hayim,’’ in Hogim ba-Parasha, ed. N. Rottenberg
(Hebrew; Tel Aviv, 2005), 325-36; M. M. Yoshor, The Chafetz Chaim – the
Life and Works of Rabbi Yisrael Meir Kagan of Radin (New York, 1984),
I:185,190-92.
6 I will later (below, text related to nn. 37-40) clarify that I have reservations
about the characterization of musar literature as ‘‘ethics.’’
7 The motivation of the Hafetz Hayim to implement a halakhization of musar
still requires research. In the introduction to his book, he himself writes that
the transgression of this prohibition is the primary cause of the extension of
the exile, the degradation of the Jews by the non-Jews, and the divisiveness
among the Jews, and that it in general prevents them from receiving divine
blessings (Hafetz Hayim, Introduction, 9-12). These comments, however,
could have been made about other commandments as well, and could have
been written by other personalities in different periods of history. The
Hafetz Hayim’s son, Rabbi Leib, writes that a particularly ugly struggle over
a rabbinical post that took place in his home town of Radin provoked the
Hafetz Hayim to deal with this issue. See A. L. ha-Cohen, ‘‘Kitzur Toledot
Hayav’’ in Kol Kitvei he-Hafetz Hayim ha-Shalem (Complete Writings of the
Hafetz Hayim) (Jerusalem, 1990), 3:12. Another biographer of the Hafetz
Hayim, D. Katz, views the Hafetz Hayim’s work as part of the Musar
Movement, and sees his sensitivity to libel as a continuation of the approach
1. Theoretical Framework: Halakhah and Musar
-
Rules and Principles, Morality of Duty and
Morality of Aspiration
Previously, I characterized halakhah as rule-centered and musar as
principle-centered. The rule/principle distinction is one of Ronald
Dworkin’s most influential models, and even if it was created in reference
to the world of modern law, it is no less applicable to the normative
systems of Jewish tradition. However, in order to apply them to the
latter, we must explain and refine them slightly.
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Benjamin Brown
of Rabbi Yisrael Salanter, which derived from his ‘‘ musar method.’’ See Katz,
Tenuat ha-Musar (Jerusalem, 1996), 4:19-20; L. Eckman claims that the Ha-
fetz Hayim’s focus on libel reflects his personality and ‘‘pietistic concern,’’ as
well as his struggle against informers in the Jewish community. See L. S.
Eckman, Revered by All – The Life and Works of Israel Meir Kagan – Hafets
Hayim (1838-1933) (New York, 1974), 183-86. In a personal conversation
with me, Prof. Shaul Stampfer suggested that the Hafetz Hayim was more
bothered by the petty gossip that was rampant in the Jewish community in
those days. Another explanation that Stampfer raised was that the Hafetz
Hayim was reacting to the criticism of the Maskilim by demonstrating that
Jewish law is sensitive to interpersonal issues, an idea that is found in some
of his other writings. Yeshayahu Steinberger, also in a personal conversa-
tion, noted that the book appeared at a time when there was a noticeable
development in communications, which facilitated a much easier and more
effective spread of information, and naturally increased the potential for
libel. We might add another possible explanation: in the Hafetz Hayim’s
writings, the prohibition of libel is closely related to the ‘‘ prohibition against
conflicts’’ (issur mahaloket) (see: Shemirat ha-Lashon, Shaar ha-Zekhirah, 16-
17). These prohibitions may be understood as parts of his attempts to
promote unity within the Eastern European Orthodox community, and to
exclude the non-observant Jews from it (see: Mishnah Brurah 1:5, and Be’ur
Halakhah there). All of these explanations are partial and undeveloped, and
some certainly are questionable and subject to criticism. For a detailed
clarification on this issue, systematic historical research on the topic is re-
quired. Such research is not among the goals of this article, which aims to
analyze the normative nature of the Hafetz Hayim’s project.
In his definition of rules, Dworkin seems to follow in the footsteps
of the positivists, while for principles he offers a definition of his own.
8
Nevertheless, he does not define the concept of a principle in its own
right, but elucidates its precise essence as a contrast to rules. Dworkin
defines the concept as follows:
I call a ‘‘principle’’ a standard that is to be observed not because it
will advance or secure an economic, political or social situation
deemed desirable, but because it is a requirement of justice or fair-
ness or some other dimension of morality.
9
The values that Dworkin mentions here are values of humanistic-
autonomous morality, because he deals with modern legal systems. In
contrast, in a religious system that is not necessarily committed to such
values, we will be able to find other values, such as holiness, purity,
piety and the like.
10
We should therefore expand the scope of the term
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8 I did not find in Dworkin’s writings any well-formed definition for this
concept, but the definition utilized here arises from Hart’s discussion of the
issue, which in this matter seems to have been adopted by Dworkin with
certain reservations that are not relevant at this point. See H. L. A. Hart,
The Concept of Law (Oxford, 1961), 8-13, 48-58; and R. Dworkin, Taking
Rights Seriously (Cambridge, 1978), 17-22.
9 Dworkin, ibid., 22.
10 My own use of the term ‘‘moral’’ and ‘‘ morality’’ hereinafter will always
refer to morality as a system of humanistic/universal/autonomous/‘‘nat-
ural’’ norms. Of course, I am aware of the problematic nature of these
generalized distinctions between humanistic/universal/autonomous/‘‘nat-
ural’’ and religious/particularistic/heteronomous/‘‘revealed,’’ particularly in
our time, when the intellectual trend is to challenge the boundaries be-
tween them. However, I utilize them here not in order to characterize them
for their own sake, but to emphasize that the problem under discussion is
not one of conflict between halakhah and musar, i.e. a religious and par-
ticularistic normative system versus one that is predominantly humanistic
and universal. Rather, the issue at hand is the relationship between two
normative systems within the religious particularistic tradition. Many
works have been dedicated to the conflict between religion and ethics (in
the former sense). For example, see: E. Goldman, Expositions and Inquiries –
Jewish Thought in Past and Present (Hebrew; Jerusalem, 1997), 265-305; A.
‘‘principles’’ to any values that the normative system views as desirable,
beyond the satisfaction of material needs. Indeed, Dworkin himself
hints that the distinction between the two types of standards is less
about their content (humanistic-moral or religious), than ‘‘ a logical
distinction’’:
Rules are applicable in an all-or-nothing fashion. If the facts a rule
stipulates are given, then either the rule is valid, in which case the
answer it supplies must be accepted, or it is not, in which case it
contributes nothing to the decision.
11
Principles, on the other hand, work in a different manner:
A principle like ‘‘no man may profit from his own wrong’’ [...] states
a reason that argues in one direction, but does not necessitate a
particular decision. If a man has or is about to receive something as a
direct result of something illegal he did to get it, then that is a
reason which the law will take into account in deciding whether he
should keep it. There may be other principles or policies arguing in
the other direction – a policy of securing title, for example, or a
principle limiting punishment to what the legislature has stipulated.
If so, our principle may not prevail, but that does not mean that it is
not a principle of our legal system, because in the next case, when
these contravening considerations are absent or less weighty, the
principle may be decisive.
12
The distinction between rules and principles has a significant
implication:
Principles have a dimension that rules do not – the dimension of
weight, or importance. When principles intersect [...], one who must
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Benjamin Brown
Sagi, Judaism: Between Religion and Morality (Hebrew; Tel Aviv, 1998); M.
Halbertal, Interpretative Revolutions in the Making (Hebrew; Jerusalem, 1997),
15-41. Later on I will dwell further on this distinction.
11 Dworkin, (supra,n.8),24.
12 Ibid., 26.
resolve the conflict has to take into account the relative weight of
each. [...] Rules do not have this dimension. [...] If two rules conflict,
one of them cannot be a valid rule. The decision as to which is valid
and which must be abandoned or recast must be made by appealing
to considerations beyond the rules themselves.
13
The example that Dworkin gave, ‘‘no man may profit from his own
wrong’’, can definitely be classified as derivative of a more basic and
abstract principle – such as justice, for instance. Dworkin, nevertheless,
views it as a principle because a principle apparently need not be a basic
concept. Some principles are indeed basic and abstract, while others are
on a lower level of abstraction and still fall into the category of
principles. This is one of the issues which Dworkin disputes at length
with Joseph Raz, who claims that the difference between rules and
principles is a difference in their levels of abstraction. Dworkin further
argues that there is no ontic difference whatsoever between rules and
principles. Rather, the difference is in the ways we apply each of them.
The very same standard – for example, the prohibition to lie – can be
conceived as a principle, i.e., as a value that one should aspire to realize
but may sometimes balance with other values, or as a rule, i.e., an act
which is always seen as an offense.
14
In view of this notion, we are now able to phrase the rule/principle
distinction in another manner: rules are standards that determine the
normative status of concrete actions, while principles determine goals
that the actions are supposed to achieve.
15
A person cannot perform two
conflicting actions, but he can undertake different goals that may be
found in conflict in particular circumstances, and nevertheless not forego
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13 Ibid., 26-27.
14 Ibid., 72-73, 78.
15 In this formulation, principles become similar to a third concept that
Dworkin calls ‘‘policies.’’ We will not address ‘‘ policies’’ here, but suffice it
to say that principles are set and constant in the legal system, while
policies are situational social goals that are transient. See Dworkin, supra,n.
8, p. 22. This distinction, however, is not a ‘‘logical’’ one.
any of them. These goals may be more abstract (such as ‘‘justice’’ )or
less abstract (such as that ‘‘no man may profit from his own wrong’’ ).
This understanding brings Dworkin’s distinction close to a dis-
tinction made by another famous philosopher of law, Lon Fuller. Fol-
lowing a line of preceding philosophers, Fuller distinguished between
‘‘morality of duty’’ ’ and ‘‘ morality of aspiration.’’ The morality of as-
piration is ‘‘the morality of the Good Life, of excellence, of the fullest
realization of human powers.’’
16
It shows man the ideal goal that he
ought to achieve, and the closer he approaches it, the better. In contrast,
he describes the morality of duty as follows:
Where the morality of aspiration starts at the top of human
achievement, the morality of duty starts at the bottom. It lays down
the basic rules without which an ordered society is impossible, or
without which an ordered society directed toward certain specific
goals must fail of its mark.[...] It speaks in terms of ’thou shalt not’
and, less frequently, of ’thou shalt’. It does not condemn men for
failing to embrace the opportunities for the fullest realization of their
powers.
17
Indeed, even if this distinction relates to a different theoretical plane
than that of Dworkin’s, practically there is a great deal of overlap
between the two: the morality of aspiration is a morality of goals, and
in this respect it is a morality of principles. The morality of duty, on the
other hand, is a morality of concrete actions, and therefore of rules.
However, Fuller’s terminology might be somewhat misleading, and
in need of refinement. The contrast between ‘‘ duty’’ and ‘‘ aspiration’’
may imply that the ‘‘morality of aspiration’’ is not obligatory. This
characterization is not accurate, perhaps even according to Fuller him-
self. The morality of aspiration does not obligate a person to achieve
the goal fully, but it does obligate him to aspire toward it. It neither
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Benjamin Brown
16 L. L. Fuller, The Morality of Law (New Haven and London, 1969), 5.
17 Ibid., 5-6.
demands nor expects that he reach the top of the ladder of human
virtue, but it does demand and expect of him to begin climbing it and
achieve the best that he can. We are not referring here to a duty to
commit a concrete action, but we are talking about a duty to aspire.
Indeed, the duty to aspire is weaker than the duty to act or not act in a
particular manner, as one can fulfill it even by a minimal deed or
perhaps even by mere intention. Nevertheless, it is still a duty.
Dworkin related to principles primarily within the context of their
functioning in a legal system, which is a rule-centered system, and his
observations are thus applicable to the parallel Jewish system – the
halakhah. But there are also principle-centered systems – characterized
in Western rational thought as morality, and characterized in the Jewish
tradition as musar. In classical Jewish literature there is only minimal
reference, if at all, to the distinction between musar and halakhah, but in
more recent generations we find trends that are similar to those I have
suggested here. Thus, for instance, when Rabbi Aharon Lichtenstein
formulated the distinction between the two, he convincingly adopted
Fuller’s model,
18
and identified the halakhah as a ‘‘morality of duty’’ and
musar as a ‘‘morality of aspiration.’’ Apart from ‘‘ duties to aspire’’ Rabbi
Lichtenstein included in the category of musar norms which are not
binding at all, such as lifnim mi-shurat ha-din (going beyond the letter of
the law),
19
and others may add middat hasidut (pietistic virtue) and
similar categories.
20
These norms, needless to say, are also closer to
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18 A. Lichtenstein, ‘‘Does Jewish Law Recognize an Ethic Independent of Ha-
lakhah?’’ in Modern Jewish Ethics: Theory and Practice, ed. M. Fox (Columbus,
1975), 62-88. Lichtenstein’s position has been disputed by several scholars,
including, among others, Eugene Borowitz, David Novak and Marvin Fox. A
summary of the disputing positions and references to their articles can be
found in S. Magid, ‘‘Ethics Differentiated from the Law,’’ in Blackwell
Companion to Religious Ethics, ed. W. Schweiker (Malden, 2005), 177-79.
19 Since these norms are not binding, Lichtenstein tends to see them as de-
rived from autonomous morality. As mentioned above, I do not accept this
identification.
20 See A. Kirschenbaum, Equity in Jewish Law: Halakhic Perspectives in Law:
principles than to rules. Yeshayahu Tishbi and Joseph Dan wrote si-
milarly regarding the relationship between halakhah and musar:‘‘ The
halakhah cuts to the minimum that the servant of God is required to do
in order to fulfill his obligation to his Creator [...] The musar literature
seeks not the minimum, but the maximum – the path by which man will
reach the zenith of religious life, of approaching and clinging to God.’’
21
Since rules are supposed to achieve the goals manifested in the
principles, we may conclude that at the core of every rule there are
underlying principles. This understanding is central to Dworkin’s
thought. Above all, rules give concrete expression to principles, thus
enabling the observers of the law to better understand what they have
to do. In addition, and no less important, rules enable them to find their
way when facing contradictory principles. When there is a conflict
between principles, the rule mediates when one principle should prevail
and in what circumstances the other should be followed. It also de-
termines the concrete characteristics that the action should exhibit.
Rules, therefore, often represent the legislator’s view of the proper
balance between various principles. This is why a conflict between rules
is an untenable logical problem, while a conflict between principles is a
tolerable condition, which is resolved through compromise. This is also
the reason why rules cannot ascend to the lofty and abstract level of
goals, but must remain ‘‘down to earth,’’ on the practical level. The legal
system is based on principles, but they have to be articulated in the
form of rules. The principles remain present, in the depths of the rules,
but are primarily referred to only when the rules do not supply a
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Formalism and Flexibility in Jewish Civil Law (New York, 1991), 46-53; idem,
Equity in Jewish Law: Beyond Equity: Halakhic Aspirationism in Jewish Civil
Law (New York, 1991), 59-136; M. Golding, ed., Jewish Law and Legal
Theory (Dartmouth Publishing, 1993), 131-264. The literature about this
subject is vast, and these references represent only a small selection.
21 I. Tishbi and J. Dan, ‘‘ Musar Literature and its History,’’ in Mivhar Sifrut ha-
Musar, ed. I. Tishbi and J. Dan (Jerusalem, 1971), 23. Later on, the authors
write that musar demands the norms of ‘‘going beyond the letter of the law,’’
but in light of the ensuing analysis, this is too sweeping a generalization.
sufficient answer to the legal question at hand. Even then, the role of
the judge, or the interpreter, is to reach a new balance of principles
which already renders a new rule. The legal system is therefore inclined
to be phrased in rules, or, in Stanley Fish’s words: ‘‘The law wishes to
have a formal existence.’’
22
The same state of affairs exists in the world of halakhah. The lit-
erature of halakhic research is full of examples in which the rabbis
turned to principles – such as ‘‘paths of peace’’ or ‘‘thou shalt do the
right and the good’’ – but it is quite clear that they did not remain in
the sphere of principles but formed well-defined rules out of them, such
as the prohibition against preventing Gentiles from gathering crops
that have been left in the field for the poor, the regulation to call up
individuals in a particular order for the reading of the Torah (a priest,
followed by a levite, etc.),
23
or the law requiring a person selling a field
to offer it first to the owner of the adjoining field.
24
These are not cases
of turning a vague rule into a clear one, as we find in the development
of the laws of Sabbath for instance, but cases of shifting from one type
of standard (principle) to another (rule). This interpretive endeavor was
carried on as well by the halakhic authorities of the later generations, in
the various fields of halakhah. They, too, focused mainly on the rules,
and only made reference to the underlying principles in cases of lacunae
or other interpretive difficulties.
The rule-centered nature of the halakhah explains the character of its
theoretical discourse. The halakhic theoretical discourse, often con-
sidered legalistic and reflecting technical and pedantic scholasticism,
25
is
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Principles to Rules, Musar to Halakhah
22 S. Fish, ‘‘The Law Wishes to Have a Formal Existence,’’ in The Stanley Fish
Reader, ed. A. Veeser (Malden, Mass. & Oxford, UK, 1999), 165.
23 These two examples are from mGit 5:8; see there (5:8-9) a series of other
examples of laws enacted for ‘‘paths of peace.’’
24 bB.M. 108a; there the law is derived from ‘‘ thoushaltdotherightandthe
good.’’
25 On this point, see: Y, Lorberbaum, ‘‘Reflections on the Halakhic Status of
Aggadah,’’ Dine
´Israel 24 (2007): 40-46.
not conducive to the analysis of principles, which is generally more
philosophical. Furthermore, a great deal of the halakhic discussion is
about discovering and resolving contradictions. As we have already
noted, the elimination of contradictions arises mainly with regard to
rules. The rule-centered nature of the halakhic text is reflected, there-
fore, not only in its bottom-line norms, but also in the nature of the
intellectual discourse that it engenders.
What, then, is the nature of the musar literature? Shmuel Verses
defined it as ‘‘a diverse popular literary enterprise that provides in-
struction for the life of the individual and the community.’’
26
This,
however, is quite a general definition that may also fit the genre of
popular halakhic literature. Joseph Dan defined it as ‘‘a broad collection
of literary genres, whose main purpose is to transmit ethical-religious
values of behavior by means of a unique literature, sometimes with set
aesthetic features.’’
27
He did not, however, specify what exactly those
literary means and aesthetic features are. In their excellent introduction
to the anthology Sifrut ha-Musar ve-Toldoteha, Dan and Tishbi write
that musar literature is characterized by two purposes – first, ‘‘ teaching
the path that a person should follow in his religious and social life in
order to achieve a high religious level, more than the minimum stan-
dards set by halakhic literature,’’ and secondly, ‘‘ giving ethical-religious
instruction through literary genres that are designed to draw the hearts
of the readers to the content and provide literary enjoyment through its
special style, particularly the use of literary stylistic features.’’
28
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Benjamin Brown
26 S. Verses, ‘‘StudiesintheMusarLiteratureoftheJewsofSpainfromthe
Beginning of the 13
th
Century until the End of the 15
th
Century’’ (Hebrew;
unpublished PhD diss., Hebrew University of Jerusalem, 1947), 6. For other
characterizations, see A. Bar-Levav, ‘‘Magic in the Musar Literature’’ (He-
brew), Tarbiz 92 (2003): 389-414; idem, ‘‘Story, Ritual and Metaphor: The
Recollection of the Day of Death as a Spiritual Exercise and the Concept of
Inner Struggle in Musar Literature,’’ in Shalom u-Milhamah ba-Tarbut ha-
Yehudit, ed. Avriel Bar-Levav (Hebrew; Jerusalem, 2006), 145-46.
27 J. Dan, Sifrut ha-Musar ve-ha-Drush (Jerusalem, 1975), 3.
28 Tishbi and Dan, supra, n. 21, p. 11.
All of these definitions may be helpful, but, in order to understand
the nature of this literature, which developed in the Middle Ages, we
have to go back to the world of the talmudic sages. In their literature,
we find the distinction between halakhah and aggadah. The definition of
these terms is also difficult, and a scholarly debate over this question
has recently erupted anew.
29
We may say that aggadah can to a large
degree be defined as a ‘‘residuary discipline’’ of the halakhah. In other
words, aggadah consists of all that is not considered as halakhah in
rabbinic literature.
30
Refusing the common philosophical distinction
between is and ought, or between descriptive and normative proposi-
tions, aggadic literature includes both types. Of the descriptive state-
ments, relatively few deal with metaphysical or other theological
matters, while most are primarily tales about biblical and rabbinic fig-
ures. The normative statements of the aggadah are instructions of
various types, beginning with advice and recommendations for proper
religious conduct,
31
passing to the valuation of different behavioral
characteristics,
32
and ending with statements expressing the principles
and values of the halakhic system,
33
and sometimes their interrelation-
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Principles to Rules, Musar to Halakhah
29 B. Lifshitz, ‘‘’Aggadah’ and Its Role in the History of Oral Law,’’ Shenaton ha-
Mishpat ha-Ivri 22 (2001-2003): 233-328; idem, ‘‘’Aggadah’ versus ’Hagga-
dah’: Towards a More Precise Understanding of the Distinction,’’ Dine
´Israel
24 (2007): 11-28; Y. Fraenkel, ‘‘Aggadah in the Talmudic Literature: Return to
Tried and Tested Principles,’’ Netuim 11-12 (2004): 63-80; B. Lifshitz, ‘‘For
the Early Principles We are Unhappy,’’ Netuim 11-12 (2004): 81-94.
30 On this definition and its source, see: Y. Fraenkel, Midrash ve-Aggadah (Tel
Aviv, 1997), 20-22; Lifshitz, Midrash va-Aggadah (Tel Aviv, 1997), 235-38;
H. Mack, The Aggadic Midrash Literature (Hebrew; Tel Aviv, 1989), 9-11.
31 For example: ‘‘Make your house a meeting house for the sages’’ (mAvot
1:4); ‘‘Make your house open wide, and make the poor as members of your
house’’ (mAvot 1:5).
32 For example: ‘‘There are four temperaments among men: easy to provoke
and easy to appease
{
hislossiscanceledbyhisgain;hardtoprovokeand
hard to appease
{
his gain is canceled by his loss; hard to provoke and
easy to appease
{
he is a saintly man; easy to provoke and hard to appease
{
he is a wicked man’’ (mAvot 5:11).
33 For example, there are a large number of aggadic sayings that laud the
ship.
34
The connection between these types of statements is not as
coincidental as it may seem. The world of the Sages is heavily norma-
tive, and even the tales are usually designed to demonstrate some moral
lesson. Since this lesson is not phrased in rules referring to concrete
actions – it finds its place together with other sayings of the same sort.
The Middle Ages brought with it a split in the subject matter of the
aggadah. Presumably following the Greek distinction between Physis
and Nomos, that later brought about the is/ought or descriptive/nor-
mative distinction, Jewish literature in the Gaonic period began to
adopt a differentiation between theological works, that dealt mainly
with descriptive questions, i.e., the questions of belief, and musar lit-
erature, that focused mainly on the normative questions, i.e., the
questions of ’virtues’ or character traits (middot).
35
Among those virtues
we find: pride and modesty, shame and insolence, love and hatred,
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value of Torah study, which is a halakhic concept, such as: ‘‘He who does
not increase [his Torah learning] decreases it; he who refuses to learn
[Torah] deserves death’’ (mAvot 1:13); ‘‘The entire world is not equal to the
value of one word of Torah; [...] Even all of the commandments of the
Torah are not equal to the value of one word of Torah.’’ (yPeah 1:1). For a
discussion of aggadic literature as, among other things, an expression of
the principles that govern the halakhic system (in the Dworkinian sense of
principles and rules), see Lorberbaum, supra, n. 26, pp. 58-60; Suzanne L.
Stone, ‘‘On the Interplay of Rules, ’Cases’ and Concepts in Rabbinical Legal
Literature: Another Look at the Aggadot on Honi the Circle-Drawer,’’ Dine
´
Israel 24 (2007): 128-29.
34 For example: ‘‘Great is the study of Torah combined with worldly pursuits
[...] All Torah study that is not joined with work will cease in the end and
leads to sin’’ (mAvot 2:2); ‘‘Anyone who has Torah study but not fear of
heaven is like a treasurer who has been given the inner keys, but not the
outer keys. How does that help him?’’ (bShabb 31a-b); ‘‘Any Torah scholar
who does not have wisdom
{
a carcass is better than him’’ (Lev. Rab. 1:15).
35 On the strong connection between musar literature and aggadah, see: Tishbi
and Dan, supra, n. 21, pp. 15-17; Dan (supra, n. 27), pp. 6-7; idem, Jewish
Mysticism and Jewish Ethics (Seattle and London, 1986), 3-8; S. D. Breslauer,
Contemporary Jewish Ethics (Westport and London, 1995), 10. On the
emergence of musar literature as a distinctive genre in the Gaonic period,
see Dan (supra, n. 27), pp. 8-13.
mercy and cruelty (to cite the first eight chapters of the musar book
Orhot Tzaddikim); the fear of God, the love of God, penitence, holiness
and modesty (to cite the first five ’gates’ of Reshit Hokhma); and caution,
diligence, cleanliness, abstinence, purity and piety (to quote the topics
of the first chapters of Mesillat Yesharim). These ’virtues’ are religious
values that the musar books explain, and advise how to attain them.
According to the broad definition that I proposed earlier for ‘‘ princi-
ples,’’ we can certainly characterize them as such, since the main concern
of the author is these goals, and the concrete actions that should be
taken to attain them are only accessories for them. Unlike the legal
system, in which these rules are at the center (as I suggested above), in
the musar system they only serve as illustrations, designed to manifest
those principles, exemplify them and help to understand them – and as
such they come along with other means of illustration, like the tales of
the Bible and the Sages.
36
This system is therefore principle-centered,
not rule-centered. From then on we consequently witness three main
genres in Jewish tradition: halakhah, as a rule-centered normative lit-
erature; musar, as a principle-centered normative literature; and theol-
ogy, focusing on the descriptive discussions.
Some translate the term ‘‘musar’’ as ‘‘ ethics,’’ and call musar literature
‘‘Jewish ethics.’’ This translation, even if convenient, may be misleading,
and we must be aware of its weaknesses. Musar is not ‘‘ ethics’’ in the
same sense that we talk about professional ethics, because the latter is
very often rule-centered. On the other hand, it is not the same ethic we
talk about in philosophy, because musar does not deal solely with
autonomous or universal-humanistic values,
37
but also with particular-
religious ones, often heteronomous, whose meaning is drawn from the
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36 Dan, supra,n.28,pp.10,13.
37 I would like to clarify that in the term ‘‘morality,’’ I understand a system of
norms whose contents are extracted from the human mind, and in particular
from ‘‘practical reason’’ (see above, n. 10). This sense is contrasted to broader
senses of morality that are sometimes suggested in current literature. Indeed,
I adopt an approach that sharpens the distinction between the two systems
(religion and humanistic morality), but this distinction does not necessitate
particular context of Jewish tradition, such as penitence, holiness and
purity.
38
In fact, the term ‘‘musar’’ is ambiguous because it has a dual
meaning in Hebrew. It is important to distinguish between the two
meanings in order to maintain a systematic discourse on the subject. On
the one hand, there is the philosophical concept designating ‘‘ morality’’
as the body of universal-humanistic norms. On the other hand, there is
the traditional Jewish concept of principle-centered literature, some of it
universal-humanistic and much of it particularistic-religious.
39
As Tishbi
and Dan wrote, musar literature, as biblical and aggadic literature, ‘‘ did
not make a fundamental and consistent distinction between religious
commandments and individual and social ethics.’’
40
It may thus be
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the position holding that the contents of religious norms are essentially
contradictory to those of morality. See A. Sagi and D. Statman, Religion and
Morality (Amsterdam, 1995), 119-64. It is enough for me to maintain that
these two systems are characterized by their turning to two different truth-
sources (revelation or human reason), even if the contents of their norms
often overlap. It is noteworthy that this sense of the term ‘‘morality’’ is the
one that is commonly used in classical philosophy, even without stating it
explicitly, whereas the very discourse of this literature is a discourse of
analyzing normative questions by human, rational tools. See W. Schweiker,
‘‘On Religious Ethics,’’ in Blackwell Companion to Religious Ethics,ed.W.
Schweiker (Malden, 2005), 1-2; R. W. Lovin, ‘‘Moral Theories,’’ in Blackwell
Companion to Religious Ethics, 19-20. Actually, even the contemporary ap-
proaches that argue for a strong dependency of morality in religion (an
approach usually linked with Patterson Brown; and see Sagi and Statman,
Religion and Morality, 27-28) talk, at the end of the day, about morality in the
humanistic sense, that takes religion as an anchor for its justification and
validity rather than as a source of normative contents.
38 Needless to say, the same duality is also true for the halakhah:onefindsin
it norms that may be also found in humanistic-universal systems side by
side with many norms of particular-religious and heteronomous nature.
39 Musar in the first sense, the universal one, is always pronounced with the
last syllable accentuated, as in the Modern Hebrew accent that adopted the
Sepharadi accentuation, while musar in the second sense, the particular-
Jewish one, is often pronounced with the first syllable accentuated, fol-
lowing the traditional Ashkenazi accentuation that prevails in the Ortho-
doxyeshivahworld.
40 Tishbi and Dan, supra, n. 21, 13. The authors add and clarify: ‘‘Musar
appropriate to classify musar as ‘‘religious ethics,’’ thus emphasizing that
it is a system of norms that belongs to the particular-religious tradition
and its values.
There are at least two more widespread misunderstandings re-
garding musar, which necessitate clarification. First, since musar dis-
cusses character traits, it is sometimes conceived as dealing with man’s
‘‘heart,’’ or inner world. This is correct only to a very limited degree,
because the main concern of musar literature is man’s practical conduct.
Insofar as it refers to matters of the heart, it is in order to have them
internalized into one’s personality and thus eventually come to action.
Second, musar principles are often conceived simply as recommenda-
tions that are not binding unless embodied in rules of halakhah.AsI
have already intimated above, this is true for only some of the prin-
ciples of musar, such as modesty and expeditiousness, but not for
others, such as the fear and love of God, or penitence, that were
counted by most of the authorities who enumerated the precepts as
outright Torah precepts. Some of the musar writers, such as Bahya,
objected to the fact that these norms were conceived of as non-binding,
and emphasized their obligatory status in various ways.
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Principles to Rules, Musar to Halakhah
literature, in all of its variations and all of its components, has always been
a classically religious literature in both its inward-oriented [
=
particularistic]
nature and in its goals. Although one can find works of musar that focus on
only one of its aspects, this is a literary distinction and not an ideological
{
principled one. There is no secular musar, although at the beginning of
its history in the Middle Ages there was apparently some attempt to create
one. As a result, the history of musar literature is an organic part of the
history of religious thought and life, and can only be understood within
that context’’ (13-14). I am aware that there are other definitions of ‘‘Jewish
ethics,’’ which view it as a response to the question of ‘‘What does Judaism,
whether in the guise of halakhah or any other format, teach us about ethics,
in the sense of universal morality?’’ See M. Kellner, ‘‘The Structure of
Jewish Ethics,’’ Contemporary Jewish Ethics and Morality, ed. E. N. Dorff and
L. E. Newman (New York and Oxford, 1995), 13. It is important for me to
stress that this definition and similar ones that appear frequently in popular
scholarly literature, although they may be helpful in other contexts, will
not be employed here. See also supra, nn. 11, 38.
The non-binding image of these precepts is a direct result of the fact
that they are principles that are difficult to translate into rules of con-
crete action. Even when the musar writers endeavored to exemplify
them by such rules, they did not pretend that these rules were ex-
haustive. Here, too, we can utilize Dworkin’s language: since principles
are not formulated in an ‘‘all-or-nothing’’ fashion as are rules, but rather
as a long ladder of many stages, one can climb it stage by stage, and its
full attainment remains an ‘‘ideal in infinity.’’ This, however, does not
exempt man from ‘‘the duty to aspire’’ to attain them. This is especially
correct for those virtues that are considered as Torah precepts, like the
ones I mentioned above. If a person does not achieve a high degree of
the love of God, for instance, he will not be judged as a sinner.
However, a person who sees himself as altogether uncommitted to this
principle will definitely be considered a sinner, at least because his
stance expresses a disbelief in the very validity and binding nature of
the Torah that enacted these principles as precepts.
We can summarize that musar includes two types of norms: binding
norms to which one has the ‘‘duty to aspire,’’ and merely recommended
norms, that are often presented as ‘‘pietistic virtue’’ (middat hasidut), or
the like. Whereas both are ‘‘ weak’’ in comparison to halakhic norms, the
boundary between them is sometimes blurred. Rabbi Menahem Trei-
vitsch, a 19
th
century musar author, rightly said about the authors of
classical musar that they did not state ‘‘which [norm] is a biblical precept
and which is a rabbinical one [...], which is legally binding and which is
but a pietistic virtue.’’
41
Among those who ‘‘contributed’’ to the blurring of the differ-
entiation between religious law and religious ethics, or halakhah and
musar, was Maimonides, who in his great halakhic code, the Mishneh
Torah, referred to all of the sections as ‘‘laws’’ even though some of
them do not deal with laws in the accepted sense.
42
But he, too,
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41 M. Treivitsch, Orah Meisharim (Jerusalem, 1969), Introduction (unnumbered
pages).
42 Maimonides referred to all of the sections of the Mishneh Torah as ’halakhot’
dedicated to the norms of musar a distinct section of the Mishneh Torah
– Hilkhot Deot (‘‘ the laws of virtues’’),
43
and added musar norms and
theological assertions at the end of some halakhic sections of this work.
This structure shows that he was cognizant of the uniqueness of the
musar sections, a uniqueness that he wished to preserve. Among other
writers, the distinction between the two spheres was preserved more
sharply, as they dedicated different books to halakhah and to musar.
Indeed, even if the Jewish thinkers of all generations gave little
attention to the theoretical question of the distinction between halakhah
and musar,
44
the living Jewish tradition knew very well how to dis-
tinguish between them. Even without being equipped with analytical
conceptual tools, every bookseller of religious literature knows that the
Mishneh Torah, the Tur and the Shulhan Arukh should be placed in the
section of halakhic books, while Hovot ha-Levavot,Shaarei Teshuvah,
Orhot Tzaddikim,Mesillat Yesharim and the like should be placed in the
collection of musar books. If at times uncertainties arise, it does not
undermine the distinction, as the existence of the grey area does not
negate the black and the white. This distinction was created throughout
the generations by a healthy intuition, but it seems that the test I
proposed above – principle-centered vs. rule-centered literature – can
reflect ex post facto the premise underlying it.
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Principles to Rules, Musar to Halakhah
(laws), whether dealing with rules, principles or even theological dogmas,
which he conceived as duties imposed on the mind. This fact alone may
teach us that the word ’halakhot’ in Maimonides should not be taken in its
plain sense, but as referring to bindingnormsofalltypes:rulesaswellas
principles, halakhah as well as musar.
43 These laws expectedly emphasize principles, but also enumerate rules as
illustrations. The fact that Maimonides placed Hilkhot Deot as the second
section of laws in his book, between the theological section Hilkhot Yesodei
ha-Torah and regular halakhic sections, shows that he was aware of the
special character of these laws, and of the special status of musar as a more
principled normative area. See also Dan (supra, n. 27), 108.
44 I emphasize that I refer here to musar in the sense of religious ethics and
not in the sense of universal/autonomous morality, for which there are
elaborate discussions and fruitful distinctions already among Jewish thin-
kers in the Middle Ages and even in talmudic literature.
The tool that Dworkin equipped us with – the distinction between
rules and principles – is therefore useful in the Jewish context no less
than it is in the secular legal context. Besides the fact that it helps us to
analyze different categories of norms in the halakhah (which parallels
the legal system), it also helps us to analyze and compare two types of
normative systems – halakhah and musar – and to identify their ways of
thinking more accurately. We will now broaden our use of this tool to
help us analyze the interrelationship between these two systems by
examining our test case: the prohibition against libel.
2. Libel before the Hafetz Hayim: A Branch of Musar
In rabbinic literature, the prohibition against libel developed as an
integral part of the area of musar. Indeed, the prohibition ‘‘Thou shalt
not go as a talebearer among thy people’’ (Lev 19:16)
45
was clearly
considered a binding norm, but apparently it was conceived throughout
the generations as a ‘‘duty to aspire,’’ and not as a duty that can be
articulated in concrete actions.
In the Mishnah we find the term lashon ha-ra only once
46
– and that
one is in an aggadic context. The term motzi shem ra (sullying a person’s
reputation) appears several times, and in halakhic contexts, but only in
the sense of ascribing improper sexual behavior to a woman.
47
In this,
the language of the Sages clearly follows the language of the Torah
(Deut 22:14, 19), and this is indeed the limited sense that the term had
in their world, in contrast to the broader sense that Maimonides and his
followers (including the Hafetz Hayim) attached to it. The latter con-
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45 A few Jewish religious authorities distinguish between the prohibitions of
libel and gossip and only learn the latter from the verse cited. According to
many other authorities, however, the verse includes both prohibitions. I
have not dealt with this question. For a discussion of this issue, see
Kaufman (supra, n. 2), 279-82.
46 mArak 3:5.
47 mShev 10:2; mSotah 3:5; mGit 4:7; mSan 1:1; mBek 8:7; mArak 3:1, 5.
ceived it as referring to any untrue libel. The term rakhil (gossip, ta-
lebearing), too, appears in the Mishnah only once,
48
in the sense of
revealing a secret, and the context there seems halakhic, yet it is not
decisive.
The Sages of the Talmud mention these terms more frequently, but
generally these references are short and offhanded. The short length is
not in itself evidence of the non-halakhic nature of the prohibition, but
it is clear that it was not developed using the standard tools of halakhic
discourse. The only place where the talmudic sages deal with this topic
at length, in bArakhin 15b-16a, we find both halakhic and aggadic
sayings integrated, with the latter in clear majority (and it is note-
worthy that the two main halakhic sayings are permits!). Here, too the
halakhic sayings are not attacked and defended, as is familiar to us in
the halakhic texts of the Talmud. This fact strengthens the aggadic
character of the text, and gives the impression that even the halakhic
sayings are not real rules, but rather coincidental examples of the
principle. Apart from these, there are several sayings throughout the
Talmud indicating that the Sages allowed one to berate and degrade
another person in certain mitigating circumstances, which we will dis-
cuss in greater detail in section 4. This demonstrates the fact that they
did not conceive the prohibition against libel as categorical.
The Sages give us no reasons as to why they decided to develop a
certain prohibition as a branch of the halakhah and another norm as a
branch of the aggadah. The verse ‘‘Thou shalt not go as a talebearer
among thy people’’ is phrased in normative language that is not much
different than ‘‘Observe the Sabbath day to keep it holy,’’ but the latter
was nevertheless transformed by the Sages into a ‘‘ meager biblical text
with plenty of laws,’’ while the former remained a ‘‘ meager biblical text
and meager laws.’’ Somehow, the intuition of the talmudic authorities
taught them that this area is not appropriate for articulated rules, nor for
analytical discourse.
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48 mSan 3:7.
The medieval authorities followed the same path, except for one:
Rabbi Isaac al-Fasi, the Rif. This halakhic authority’s major work ex-
tracted from the Talmud the gist of the legal discussion while filtering
out aggadic sayings. Although his work did not include bArakhin, he
cited the sayings of the Sages on libel in his rulings on bShabbat,
49
so
they are included in his legal summary. The inclusion of these sayings
within an outright halakhic work constitutes a clear declaration that the
author sees them as part and parcel of the halakhah.
50
The Rif, however, was probably the last major halakhist who
viewed the prohibition against libel in this way. If we rely on the
conventional classification of books as halakhic or musar, this subject
found its place in the latter. Indeed, although Maimonides included it in
his halakhic code, the Mishneh Torah,
51
and wrote extensively about its
severity,
52
it appears only in a musar context: first as a small part – six
paragraphs – in the section of Hilkhot Deot, which, as demonstrated
above, is a musar text, and then again in a small paragraph at the end of
the laws of the impurity of leprosy, the placement of which also implies
its musar-theological character.
53
Both texts rely heavily on biblical
tales and aggadic literature. In contrast to halakhic convention, Mai-
monides does not present in these sections the exceptions to the
prohibition, except for one (the permission to speak libel in the presence
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49 Isaac al-Fasi (Rif), bShabb pp. 13b-14a (Rif pagination).
50 Indeed, in the Rif’s time (11
th
century), the dawn of the Jewish Middle
Ages (between the periods of Geonim and Rishonim, in the traditional
periodization) the halakhah/musar distinction had not yet been formed, and
actually the musar literature had not yet ripened into an independent genre,
as would happen in the 12
th
century (Dan, supra, n. 27, pp. 8-16, 105-66,
264). Nevertheless, the halakhah/aggadah distinction was well rooted since
thetimesoftheTalmud.ThefactthattheRifdidnotclassifythesayings
about libel as aggadic implies that neither would he classify them as musar,
in the later terms of distinction.
51 Maimonides, Mishneh Torah,Hilkhot Deot,7:1-6.
52 Ibid., 1-3, 6.
53 See Rottenberg, supra, n. 5, 323; W. Z. Harvey, ‘‘ AggadahinMaimonides
Mishneh Torah,’’ Dine
´Israel 24 (2007): 204-206.
of three or more people),
54
but suffices with the presentation of the
prohibition itself, together with words of reproach on its severity.
These words of reproach, needless to say, are also in the style of the
musar genre. All of these facts corroborate the thesis that Maimonides
meant to depict libel as a principle, and not to confine it to specific
rules. Although there are some hints in Maimonides’ Commentary on the
Mishnah that might indicate that he considers the prohibition of libel to
be a ‘‘morality of duty,’’ there are, in my opinion, stronger hints that he
classifies it as a ‘‘morality of aspiration.’’
55
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54 Mishneh Torah,Hilkhot Deot 7:5.
55 Maimonides, Commentary on the Mishnah, mAvot 1:16. Maimonides refers
to the prohibitions against libel and gossip in his commentary to the aggadic
tractate mAvot. He discerns five types of speech: ‘‘obligatory and forbidden,
despised and beloved, and permitted.’’ Maimonides classifies libel under the
category of forbidden speech, rather than under the category of despised
speech, a classification that might be interpreted as viewing the prohibitions
against libel and gossip as halakhic. Yet, this classification does not ne-
cessarily mean that Maimonides excluded them from the realm of musar,
because the terms ‘‘obligatory’’ and ‘‘ forbidden’’ must be read in the Mai-
monidean context in the same way we suggested above for the term ‘‘ha-
lakhah,’’ i.e., as a binding norm of any variant
{
whether a ‘‘duty to act’’ or a
‘‘duty to aspire.’’ In other words, the categorization of Maimonides does not
sufficiently correspond to the distinction between halakhah and musar as
defined above. Therefore, we may conclude that Maimonides’ classification
of libel and gossip as ’forbidden’ speech cannot teach us anything about the
classification of these prohibitions as halakhah or musar in our own model.
On the other hand, Maimonides utilizes several expressions with regard to
libel that would indicate that he classifies it as a ‘‘ duty to aspire.’’ One of
them is the fact that a few lines later Maimonides recommends that one
should desist not only from forbidden and despised speech, but also from
permitted speech. He adds that if one could speak only obligatory and
beloved speech, ‘‘that is the purpose’’ (of man). Maimonides then expands
on the extent to which people transgress this prohibition, and cites a
number of biblical and aggadic sources that demonstrate its severity. He
concludes by justifying his expansive discourse on the subject by stating
that ‘‘a person should distance himself from it (libel) as much as possible,
and aim at utter silence with regard to this category of speech.’’ This
language is clearly the musar style of a duty of aspiration.
In post-Maimonidean literature, where the boundary between ha-
lakhah and musar crystallizes, the classification of libel as a part of musar
is further strengthened. The authors of the great codes of that period,
the Tur and the Shulhan Arukh, did not allocate any room in their
comprehensive halakhic works to the issue of libel.
56
In contrast, ela-
borate and systematic discussions on this subject, often in chapters
dedicated solely to it, are found in R. Yonah’s Shaarei Teshuvah, in the
anonymous Orhot Tzaddikim, in R. Yehiel of Rome’s Maalot ha-Middot,
in the Maharal’s Netivot Olam and in R. Eliyahu de Vidas’ Reshit
Hokhmah – all outright musar books.
57
Libel, just like all the other
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Yet, it seems to me that the strongest proof that Maimonides classified the
prohibition of libel within musar is the apparent contradiction that he
expresses within that very source. On the one hand, he defines libel as a
speech of degradation, even when true, ‘‘for libel does not mean telling a
lie about a person or attributing to him things he did not do, [... but]
condemning him even for things he actually did’’ (Commentary on the
Mishnah, mAvot 1:16; he also emphasizes this point in Hilkhot Deot 7:2).
On the other hand, only a few lines earlier, in enumerating the actions of
beloved speech, he mentions among them ‘‘to condemn the wicked for
their demerits, so that their deeds and their image be despised by men, and
they shun them [the wicked] and not follow in their ways’’ (Commentary on
the Mishnah, mAvot 1:16). Though the two assertions appear to be a
contradiction (as Dworkin taught us), the need to reconcile them only
arises when we perceive the norms as ‘‘all or nothing’’ rules. Conversely,
things are much simpler if we perceive those norms as principles, i.e., there
is a principle of not condemning another person even for something
condemnable, and there is a principle of condemning the wicked, and there
are suitable balances between them in the changing circumstances of life.
This normative line is, of course, most suitable to the realm of musar as a
principle-centered discipline
{
and thus it corroborates the conjecture that
Maimonides considered libel to be part of it.
56 For more support for the claim that Joseph Caro did not view libel as part
of halakhah, but rather as part of musar, see text cited in n. 253 below. For
analysis of R. Caro’s position, see B. Z. Rosenfeld, ‘‘Mekoman Shel Hilkhot
Deot be-Shulhan Arukh,’’ Shanah be-Shanah (2001): 129-43; and n. 264
below.
57 Even before Maimonides, we find the topic dealt with in separate volumes
such as Kad ha-Kemah of Rabbenu Bahya, which is a work of musar.
subjects covered in these books, is treated in the spirit of musar lit-
erature: the emphasis is on principles, while rules serve only as illus-
trations, and they are accompanied by citations of non-halakhic sources,
such as the Bible and aggadah.
There is also a linguistic indicator, not terribly significant but inter-
esting nonetheless, that the talmudic Sages and the medieval rabbis did
not perceive libel as a halakhic prohibition. There is a halakhic category –
mumar le-davar ehad (a ‘‘habitual sinner with regard to one matter’’) – that
relates to a person who repeatedly violates one particular prohibition.
There are clear halakhic sanctions that are imposed on individuals who
fall into that category, among them the loss of legal credibility in re-
ligious spheres that relate to his transgression.
58
This category is utilized
only with regard to violations of halakhah, and not with regard to vio-
lations of musar, even when defined as a duty of aspiration. Thus, for
example, we find ‘‘habitual sinners’’ with regard to idolatry, desecration
of the Sabbath, failure to perform circumcision, and the like, but we never
hear of the term ‘‘habitual sinner’’ with regard to not loving God or
failing to achieve holiness. So too, we do not find in rabbinic literature the
concept of a ‘‘habitual sinner with regard to libel’’ (mumar le-lashon ha-ra).
As Rabbi Yosef Caro points out, a person who ‘‘ is accustomed to
speaking libel’’ is branded as a ‘‘baal lashon ha-ra’’ (approximately: a
person of evil tongue, or libel-inclined), and not a ‘‘ mumar le-lashon ha-
ra.’’
59
He even perceived the transgression of ‘‘baal lashon ha-ra’’ as a
different kind of sin than that of one who speaks libel only once,
60
an
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58 The laws of shehitah (ritual slaughter) are the prototype fore these sanc-
tions. See Shulhan Arukh,Yoreh Deah,2:2-5.Forotherimplications,see
Mishnah Brurah 39:6 and the Be’ur Halakhah there (the text in Shaarei
Teshuvah on which he relies is problematic, though, as he apparently refers
to ’moser’
{
informer
{
and not to ’mumar’). But see also 11:7. According
to some opinions, if a mumar (even with regard to one matter, and a non-
ideological one) is held captive, there is no duty to ransom him (ibid.,
251:1, and see the commentaries on that paragraph).
59 Joseph Caro, Kesef Mishneh,Hilkhot Deot,7:2.
60 Ibid. He interprets Maimonides as having four categories of transgression
approach that is not typical of halakhic thinking, where the mumar is
generally considered a more severe degree of the same sin.
This was the face of the prohibition against libel until the time of the
Hafetz Hayim. Yet, for the sake of precision, we must note that the
Hafetz Hayim did not initiate the halakhization of libel ex nihilo. He was
preceded by a few important halakhists, who noticed the lack of ‘‘laws of
virtues’’ in the Shulhan Arukh, and came to ‘‘fill the gap.’’ It was in this
spirit that R. Abraham Gumbiner, known as the Magen Avraham, added a
few musar subjects in his interpretation of Shulhan Arukh, Orah Hayim
}161 (entitled ‘‘laws of [fairness in] business’’ ), and his interpreter, R.
Shmuel of Cologne, author of Mahatzit ha-Shekel, followed the same
path. In both texts, there are only very short references, mostly repeating
Maimonides’ words in Hilkhot Deot. Following their model, Rabbi Shneur
Zalman of Lyadi integrated those instructions in his Shulhan Arukh ha-
Rav, where the laws of libel comprise three paragraphs.
61
No doubt,
these references prepared the ground for the Hafetz Hayim’s project, but
were minor in scope and lacked talmudic-style analysis and discussion.
Needless to say, they did not have the cultural impact that a book
dedicated to a single subject can have. The book that is sometimes
mentioned as the precedent to the Hafetz Hayim, R. Raphael of Ham-
burg’s Marpe Lashon, is a classical musar style book. An approach closer
to that of the Hafetz Hayim is demonstrated in a forgotten musar book
that was published only 15 years before Hafetz Hayim, entitled Orhot
Mesharim by Rabbi Menahem Treivitsch.
62
But this book, which was not
at all well publicized, was probably not known to the Hafetz Hayim. In
any case, it is considered a book of musar rather than a halakhic one.
63
It is
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for lashon ha-ra: gossiping, speaking libel, speaking mendacious libel, and
baal lashon ha-ra
{
one who habitually transgresses. See n. 253 below.
61 Shnayer Zalman of Lyadi, Shulhan Arukh HaRav 156:10-12.
62 M. Treivitsch, Orhot Meisharim (Jerusalem, 1969). Thanks to Rabbi Joseph
Kamenetsky for referring me to this book.
63 See the endorsements of S. Z. Karlin and Y. Y. Kanievsky (‘‘The Steipler’’)
in the front section of this book.
possible that further research into Eastern European musar literature from
the 18
th
century until the time of the Hafetz Hayim will uncover addi-
tional sources on this topic that were influential.
64
However, even if such
works with an orientation similar to that of the Hafetz Hayim are found,
it is clear that they did not have widespread influence.
We may therefore summarize that until the 17
th
century, the laws of
libel were classified clearly as part of musar, not of halakhah. The only
possible exception was the Rif, who lived at the end of the Gaonic
period, and in this matter his influence was insignificant. From the 17
th
century and on, a few steps were made toward the halakhization of
some musar norms, among them the prohibition against libel, but these
were minor and did not considerably change the normative situation.
The significant turning point in that direction was made by the Hafetz
Hayim, who composed a ‘‘Shulhan Arukh of Libel and Talebearing,’’ as
one of his contemporaries characterized it.
65
For this purpose, the
Hafetz Hayim needed to develop relatively novel tools, which we will
now examine.
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Principles to Rules, Musar to Halakhah
64 The common impression from scholarly research is that musar literature
flourished in Eastern Europe from the end of the 18
th
century until the
middle of the 20
th
century only within the context of the major ideological
movements of the time
{
hasidism, enlightenment, and the musar movement
(Dan, supra, n. 27, p. 265). Although this is primarily correct, we do have
remnants from this period of tens of musar publications written by authors
who did not belong to those movements. Most of these publications,
however, did not leave a lasting impression and were ultimately forgotten.
It seems to me that in order to have a full understanding of Eastern
European Jewish culture, fundamental research on this rich literature must
be done.
65 M. M. Yoshor, supra, n. 5, 1:113, 185, in his own name. Yoshor (ibid.,
2:503) also saw the Hafetz Hayim as a completion of what was lacking in
the Shulhan Arukh. Similar statements are made by others, such as Yisrael
Salanter (ibid., 1:185); Simcha Zissel Ziv, ‘‘the Alter of Kelm’’ (ibid., 1:125);
and Shlomo Polachek, known as the ‘‘Illuy of Meytchet’’ (ibid., 1:193). See
also n. 5 above.
3. Libel in the Works of the Hafetz Hayim:
A Branch of Halakhah
The Hafetz Hayim planned to write his book Hafetz Hayim in three
parts: the first on the laws of libel, the second on the laws of gossip, and
the third on the musar and aggadah aspects of the subject. Yet, the book
that appeared in 1873 consisted only of the first two parts, while what
was meant to be the third part was published three years later as a
separate book – Shemirat ha-Lashon. The fact that the Hafetz Hayim
knew very well that libel could also be the subject of a musar book
accentuates even more his desire to impart a halakhic character to his
book Hafetz Hayim. This desire is expressed in the layout of the book,
which the Hafetz Hayim divided into two: the central text, entitled
Mekor ha-Hayim, which is formulated as a collection of short rules, and
an accompanying text of comments and elucidations, entitled Beer
Mayim Hayim. In the latter, the Hafetz Hayim gives references to the
sources of his rulings and discusses them in a quasi-talmudic manner,
raising difficulties and resolving them, in the conventional style of
halakhic literature. He stated his intent clearly in the opening of his
book:
And know, my brother the reader, that even for every simple matter
that is found within, I have demonstrated its source in the Beer
Mayim Hayim, so that it will be clear to all that I did not write this
book from the perspective of pietist virtue (middat hasidut), but from
the perspective of law.
66
It is noteworthy that between the lines of this text is an important
premise of the process of halakhization. It appears that the Hafetz
Hayim actually recognizes only two types of norms: ’law,’ which
includes all the obligatory norms, and the norms of ’pietist virtue,’
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66 Hafetz Hayim, Introduction, 15.
which are only recommended. Norms that are obligatory, not as law
but rather as ’duty to aspire,’ are not known to him. Consequently, any
commandment is prone to be discussed in halakhic terms. And in a
parenthetical comment he adds:
And I entreat the agreeable reader that if he finds something that
does not appear to him at first glance to be a requirement of law, but
rather a stringency, or an expansion or abbreviation of language, he
should not be quick to judge it to be in error until he has studied
well the Beer Mayim Hayim and all of the rules that are essential to
this law. For, if he is lacking one component rule of this law, he will
not completely understand the law. For I have truly studied in depth
each and every paragraph in this book (in consultation with col-
leagues who are preeminent Torah scholars), and I have done a
thorough search so that it does not contradict any talmudic source.
On a number of occasions, I spent days investigating one matter,
until I clarified the true law, with God’s help. The reader who will
heed these words and study well all of the legal rules will rightly see
that every word in this book was written with legal precision.
67
Yet, halakhic style is not sufficient to label a work as ’halakhic,’ nor is
the citation of talmudic sayings, if they are aggadic. Above all, a
halakhic work must rely on halakhic sources. A traditional halakhic
authority cannot invent laws ex nihilo, and the identification of his
sources is, therefore, of crucial importance.
Theoretically, we could expect that the Hafetz Hayim would carry
out the halakhization of libel through a deduction of rules from the
principles developed in the musar literature. Actually, musar offers only
two or three major principles: one is the prohibition to damage another
person’s reputation; a second, contrasting, principle is the allowance for
such damage in cases of need (’benefit’); a third, maybe derivative of the
second, calls for the condemnation of the wicked.
68
Traditional rabbinic
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67 Ibid.
68 The question of whether the stigmatization of evil people is a third principle
literature, whether halakhah or musar, recognizes no principle of free-
dom of speech, and in general it is quite remote from ‘‘ rights talk’’
69
and
its associated dilemmas, including the dilemma of the balance between
free speech and the individual’s right to a good reputation. As a con-
servative legal authority that kept away from problems evoked by
modernity, the Hafetz Hayim found no interest in these dilemmas.
Rather, he focused on the two or three traditional principles and tried to
strike the balance between them. Yet, in balancing between these
principles, his way of thinking was not deductive. Nor did he try to
develop systematic tools for such deduction, or for the balancing be-
tween principles. Such a formulation would not fit the traditional pat-
terns of halakhic writing.
Having rejected the path of systematic deduction from the musar
principles relating to libel, the Hafetz Hayim adopted two other paths:
on the one hand, he turned to halakhic literature and extracted from it
short sayings, often sayings that were stated in other contexts, and
through exegesis developed them to much larger dimensions than they
had in their original sense. On the other hand, he turned to musar
literature, to the aggadah and even to the Bible, and constructed rules
out of them. He often analyzes these sources legalistically in Beer
Mayim Hayim as if they were ordinary halakhic sayings. As I men-
tioned above, turning to the Bible and the aggadah as sources for
principles was a common practice of musar literature, but was not at all
common in halakhic literature as sources for rules. In the latter, the
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or derivative of the second depends largely on whether we view punish-
ment from the retributivist perspective or from the utilitarian one. In
western philosophy, the former position is advocated by Kant, and the
latter is advocated by Bentham. If we adopt the utilitarian perspective, then
we would view the stigmatization of the evil as a means of distancing the
general public from their ways, thus viewing it as a public benefit reflecting
the second principle. If we adopt the perspective of retribution, we would
view it as a separate principle.
69 H. H. Cohn, HumanRightsinBibleandTalmud(Hebrew; Tel Aviv, 1988), 9.
maxim prescribed that ‘‘one does not learn [law] from [...] aggadah.’’
70
The Hafetz Hayim took a method that naturally belonged in musar
literature and adapted it to his halakhic writing. Let us now examine a
few examples of these two paths.
The halakhic sources utilized by the Hafetz Hayim are primarily
those of the talmudic Sages. For example, when the Talmud discusses
the laws of invitation to trial, it relies on the measures taken by Moses
when he summoned Korah and his followers to him (Num 15:12-14).
Relating to this biblical section, the Talmud asks: ‘‘ How do we know
that if the defendant abused the court agent, and the latter reported it
[to the court], we do not consider it libel? As it is written (Num 16:14):
‘‘’Will you put out the eyes of these men?’’’
71
Rashi explains that the
rule is properly derived from the verse because if the agent had not
reported the defendant’s behavior to Moses, he would not have known
it and consequently could not have recorded it in the Bible.
72
From this
brief and tangential source, the Hafetz Hayim learns the following laws:
that libel is forbidden even when the information is true;
73
that gossip is
forbidden even when the information is true;
74
that the Talmud’s al-
lowance to speak libel in front of three or more people, which the
Hafetz Hayim tries very hard to limit, was only said with regard to an
agent of the court;
75
that it is forbidden to tell an offended party about
libelous comments that were made about him, even if he is a respectable
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70 yPeah 2:4 (for Gaonic sources, see M. Elon, Jewish Law – History, Sources,
Principles [Philadelphia and Jerusalem, 1994], vol. 1, 95, n. 12). Certainly,
there are many exceptions to this rule (ibid., 94-104). Turning to aggadah is
a form of returning to principles when the rules do not provide sufficient
answers to the question at hand.
71 bM.Q. 16a.
72 Rashi, ad loc.TheSefer Meirat Enayim explains it differently: ‘‘If it would be
considered libel, Moses our Teacher would not have written it in the
Torah’’ (Hoshen Mishpat 8:24). This interpretation implies that even writing
forbidden information in the Torah would be considered libel.
73 Hafetz Hayim,Part1,1,Beer Mayim Hayim 1.
74 Ibid., Part 2, 1 in Beer Mayim Hayim.
75 Ibid., Part 1, 2, Beer Mayim Hayim 1-2.
person, those who spread the libel were of lesser importance, and the
one reporting it is motivated by ‘‘keenness for truth,’’ unless the latter is
an agent of the court;
76
that the permit that appears in the Jerusalem
Talmud to speak libel about quarrel-mongers, which the Hafetz Hayim
also tries very hard to minimize, applies only when it has the potential
to end the conflict or if it relates to an agent of the court;
77
and that it is
forbidden for a person to tell about a wrong committed against him,
unless it is of ‘‘benefit’’ (as defined by the Hafetz Hayim).
78
There are other examples of this approach in the Hafetz Hayim. For
example, from the law that prevents a judge from revealing, following a
guilty verdict, that he voted for exoneration while his colleagues were
responsible for the guilty verdict,
79
the Hafetz Hayim extrapolated
three laws: that it is forbidden for a public official to reveal who ad-
vocated a position that benefited a particular individual and who op-
posed that position;
80
that it is forbidden to spread gossip even
indirectly, e.g., by revealing what another person said;
81
and that it is
forbidden for a person to transmit information that was already said in
front of three people, if those people are not expected to spread it
further.
82
In another example, from a responsum of the Maharik for-
bidding a husband from accepting testimony from one witness that his
wife had been unfaithful unless the credibility of the witness is beyond
reproach,
83
the Hafetz Hayim derived various gradations of libel, some
of which he deemed acceptable because of the benefit that they bring.
84
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76 Ibid., Part 1, 10, Beer Mayim Hayim 20.
77 Ibid., Part 1, 8, Beer Mayim Hayim 17. It is interesting to note in this case
that there is someone who disagrees with the Hafetz Hayim and adopts a
more stringent position: S. A. Wertheimer rules that even libel that might
settle a conflict is forbidden. See Wertheimer, supra,n.2,p.52.
78 Hafetz Hayim, Part 1, 10, Beer Mayim Hayim 31.
79 bSan 29a.
80 Hafetz Hayim,Part1,2,Beer Mayim Hayim 21.
81 Ibid., Part 2, 3, Beer Mayim Hayim 5.
82 Ibid., Part 1, 2, Beer Mayim Hayim 12.
83 Joseph of Cologne, Responsa Maharik, #82.
These are only a few examples among many instances in which the
Hafetz Hayim transformed tangential halakhic texts into rich sources for
rulings in the area of libel.
As mentioned, the second path taken by the Hafetz Hayim was to
utilize musar and aggadic sources, including narrative sections of the
Bible, in order to derive halakhic norms.
85
Nevertheless, in general, the
Hafetz Hayim was very selective in his reliance on musar literature. For
example, he does not cite from well known musar works such as Hovot
ha-Levavot,Orhot Tzaddikim, Maalot ha-Middot, or Reshit Hokhmah,
even though they deal to a significant degree with the issue of libel.
These he saves for his book Shemirat ha-Lashon. In isolated instances, he
cites musar works of aharonim, such as the Maharal of Prague,
86
the
Shlah (Shnei Luhot ha-Brit),
87
and the Vilna Gaon.
88
In contrast, he
frequently quotes the various books of commandments, composed in
the Middle Ages, which fall on the border between halakhic and musar
works,
89
and also Sefer Haredim which ‘‘integrates issues of halakhah and
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84 Hafetz Hayim,Part2,6,Beer Mayim Hayim 12. This deduction is proble-
matic because it is clear that testimony regarding adultery (and the asso-
ciated issues of lineage) requires a higher degree of certainty than regular
matters.
85 This path is well known in halakhic literature as a way to fill in normative
gaps and lacunae (see n. 70 above), but note that, by turning to principles
embodied in the aggadah in order to solve discrete ‘‘hard cases,’’ the ha-
lakhah moves in a typically Dworkinian course. On the other hand, the
Hafetz Hayim takes a much more radical course as he uses this method to
legalize a whole normative domain.
86 Ibid., Part 1, 2 Beer Mayim Hayim 1, on Netivot Olam.
87 Ibid., Part 1, 2, 12; Beer Mayim Hayim 1, 4; ibid., 3, 11.
88 Hafetz Hayim,Part1,9:5,andthenotethereonIggeret ha-Gra.
89 I primarily refer here to Sefer ha-Yereim by Eliezer of Metz, Sefer Mitzvot
Gadol (Smag) by Moshe of Coucy, which is quoted very many times by the
Hafetz Hayim and is mentioned as one of his primary sources (Hafetz Hayim,
introduction, 14), Sefer Mitzvot Katan (Smak) by Yitzhak of Corbeil, and Sefer
Ha-Hinnukh by an unknown author in the 13
th
century (regarding the
identity of the author, see I. Ta-Shma, Knesset Mehkarim – Iyunim ba-Sifrut
ha-Rabbanit bi-Ymei ha-Beinayim [Studies in Medieval Rabbinic Literature]
musar.’’
90
Above all, he often cites the book Shaarei Teshuvah by
Rabbenu Yonah Gerondi. The latter work was the book that most
extensively dealt with the issue of libel prior to the time of the Hafetz
Hayim.
91
In his introduction, the Hafetz Hayim lists Shaarei Teshuvah as
one of his central texts, along with Maimonides and the Sefer Mitzvot
Gadol.
92
He was aware of the problematic nature of relying on a work
of this nature as a source for halakhic rulings, and therefore added the
following in a footnote:
The reader should not wonder about the fact that in this book,
which is entirely based on halakhic sources, I refer several times to
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[Jerusalem, 2004], vol. 2, pp. 196-201). Hayim Tchernovitz (‘‘Rav Tzair’’ )
and Menahem Elon classify these works as halakhic literature (H. Tcher-
novitz, Toledot ha-Posekim (New York, 1937), vol. 2, pp. 76-77; Elon, supra,
n. 70, vol. 3, p. 1259). Since he does not refer to them in his book on musar
and derash (supra, n. 27), J. Dan also apparently views them as halakhic
works.Atthesametime,RavTzair notes that these books also contain
clear signs of musar and aggadic literature which are typically not used
directly for halakhic rulings (regarding Sefer ha-Yereim,seeToledot ha-
Posekim, 85-86; regarding Sefer Mitzvot Gadol, see ibid., 89; regarding Sefer
Mitzvot Katan, see ibid., 95; regarding Sefer ha-Hinnukh, see ibid., 98-100).
Even though these works are often included in halakhic discussions, I prefer
to view them as works that integrate halakhah and musar.D.Epstein
presented a similar position in Mitzvot ha-Musar (New York, 1972), 32. He
uses these works to prove his theory that the two domains are connected.
90 See Dan, supra, n. 27, p. 209.
91 B. Septimus already posited the noticeable sensitivity of Rabbenu Yonah to
this subject in his ‘‘Piety and Power in Thirteenth Century Catalonia,’’ in
Studies in Medieval Jewish History and Literature,ed.IsadoreTwersky
(Cambridge, Mass., 1979), 202-203. Rabbenu Yonah’s central place in the
development of ‘‘rabbinical’’ musar literaturewasnotedbyJ.Dan,‘‘ The
Socio-Ideological Background of the Formation of the Traditional Musar
Literature in the 13
th
Century,’’ Shlomo Pines Jubilee Volume, ed. Moshe Idel
(Hebrew; Jerusalem, 1988), 1:250-52.
92 Hafetz Hayim, Introduction, p. 14. The reference to Maimonides is to
Hilkhot Deot, which we indicated above (n. 43) cannot be classified as
halakhah. Sefer Mitzvot Gadol is categorized with the books of mitzvot,
which we indicated are for the most part on the border between musar and
halakhah.
Rabbenu Yonah’s Shaarei Teshuvah, which belongs to the musar
literature. For it is evident to anyone who has delved into his holy
words that he was very careful not to traverse the parameters of the
law. It is particularly so in the area of libel, where everything that he
wrote has a source in the Talmud, as we will clarify in the book, God
willing, but, being committed to brevity, he did not cite these
sources, in the manner of the rishonim (medieval rabbis). Never-
theless, I generally relied on him alone only in places where his
words imply a leniency (as I did regarding other musar works), but
for stringencies, I almost always brought other sources, as one who
examines [my book] will see inside.
93
It is clear from this comment that the Hafetz Hayim tried to exclude
non-halakhic citations from his sources, and that Shaarei Teshuvah was
an exception which he was willing to accept, under certain conditions
and limitations, because of its unique qualities.
94
It seems, however, that
the Hafetz Hayim ‘‘viewed with grace’’ works that straddle the line
between halakhah and musar, as well as with musar texts that were
integrated into halakhic works (such as Hilkhot Deot in Maimonides’
Mishneh Torah), and placed them in the domain of halakhah. This
approach is also mentioned by the Hafetz Hayim in his introduction to
a pamphlet entitled ‘‘Kevod Shamayim,’’ where he includes Hilkhot Deot
of Maimonides, Sefer Mitzvot Gadol, and Sefer Ha-Hinnukh as ‘‘legal
works that discuss this issue (libel) as a matter of halakhah.’’
95
Furthermore, in referring to musar works, we detect a preference for
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93 Ibid., Introduction, p. 15, in a footnote.
94 It seems when reading between the lines that the Hafetz Hayim was
prepared to view Shaarei Teshuvah as a halakhic source in every way, in
spite of the fact that it is a book of musar,becauseofitsauthorsinsistence
on making rulings based on talmudic sources. Apparently, his reluctance to
rely on Shaarei Teshuvah was primarily to satisfy the needs of his readers
so that they would not be ambivalent about the halakhic authenticity of
Hafetz Hayim.
95 I. M. Ha-Cohen, ‘‘Kuntres Kevod Shamayim,’’ in KolKitveihe-HafetzHayim
ha-Shalem (Jerusalem, 1990), vol. 1, chapter 3, 65.
authors who were known as halakhists, such as the Vilna Gaon,
apparently based on the assumption, as with Rabbenu Yonah, that they
did not ‘‘traverse the parameters of the law.’’
More striking than the reliance of the Hafetz Hayim on Shaarei
Teshuvah is his use of biblical and aggadic texts to derive halakhic rules.
The biblical character who is most appropriate for this purpose is
Miriam, who, according to the Torah, suffered from leprosy because she
spoke libel against her brother, Moses. The Torah commands that the
incident be remembered throughout the ages in order to preserve the
lesson that it teaches (Num 24:9). On this issue, the Hafetz Hayim
establishes a broad exegetical principle: ‘‘ It is known that we deduce
[laws] from everything that was said about Miriam, as it is written:
’Remember what the Lord your God did to Miriam’.’’
96
He applies this
maxim in a list of laws that he derives from the story of Miriam,
including the following: that to be guilty of libel, unlike gossip, it is
enough to bring others to speak libel, and it need not lead to a quar-
rel;
97
that a person can transgress the prohibition of libel even if he did
not intend to hurt the offended party, but only meant to speak the
truth, provided that he did not formally rebuke him prior;
98
that the
prohibition of libel applies to relatives, as well;
99
that the prohibition of
libel applies even if the offended party does not feel offended by it;
100
and that the prohibition of libel applies to women as well as to men.
101
Yet, the Hafetz Hayim learns not only from the incident of Miriam,
but also from countless other biblical stories, as well as from aggadic
and midrashic literature. For example, the story of Doeg the Edomite,
who reported to King Saul that Ahimelekh the Priest had helped David
when he was fleeing from Saul (1 Sam 22), serves as an important
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96 Hafetz Hayim,Part1,3,Beer Mayim Hayim 11.
97 Ibid., Part 1, 3, Beer Mayim Hayim 6.
98 Ibid., Part 1, 3, Beer Mayim Hayim 11; ibid., 8, Beer Mayim Hayim 1.
99 Ibid., Part 1, 8, Beer Mayim Hayim 1.
100 Ibid., Part 1, Beer Mayim Hayim 2.
101 Ibid., Part 2, 7, Beer Mayim Hayim 1.
source for the Hafetz Hayim. From this story he derives, among others,
the following laws: that it is forbidden for a person to speak libel about
another even if his friend entreats him to do so – ‘‘ even if his father or
teacher whom he is required to honor [...] requested that he tell
something about another person [...] he may not obey them’’ ;
102
it is the
obligation of a person who hears libel about another to give him the
benefit of the doubt if there are arguments in both directions;
103
and
that the prohibition of gossip applies even if the offended party would
not feel ashamed by what was said about him.
104
In another example
from the long list of stories, the Rabbis fault David for listening to
Tziva’s denigration of his master, Mephiboshet, the son of Saul (2 Sam
9), even though it was said in front of a large number of people.
105
Based on this source, the Hafetz Hayim sought to limit the permission
that the Rabbis gave for saying libel in front of three or more people.
106
The Hafetz Hayim also derived from the same source a number of laws
relating to speaking libel in a situation in which the circumstances
indicate that the report is true.
107
Similarly, from the fact that Nathan
the Prophet spoke to David in a denigrating manner about Adoniyahu
his son (1 Kgs 1:24-27), even though he had not previously rebuked
Adoniyahu himself, the Hafetz Hayim learned that in cases where it is
permissible to speak libel, one is not required to rebuke the person
beforehand if the rebuke will be disregarded, and will just cause
harm.
108
From the readiness of David to listen to the reports about his
son’s behavior, and the fact that it subsequently led to a reduction of
tensions in the kingdom, he learned that the permission to speak libel is
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102 Ibid., Part 1, 1:5, 1:7.
103 Ibid., Part 1, 6, Beer Mayim Hayim 20.
104 Ibid., Part 2, 1, Beer Mayim Hayim 4.
105 bShabb 56a.
106 Hafetz Hayim,Part1,2,Beer Mayim Hayim 2.
107 Ibid., Part 1, 7, Beer Mayim Hayim 22, Beer Mayim Hayim 26, Part 2, Beer
Mayim Hayim 5.
108 Ibid., Part 1, 10, Beer Mayim Hayim 22.
related to its ability to reduce controversy.
109
From the fact that King
Yehu was punished for destroying the house of Ahab, even though he
was commanded to do so, the Hafetz Hayim learned that it is forbidden
to impose sanctions against a person even if it is justified (which in-
cludes a prohibition to speak libel against him even if the circumstances
allow it) if he is not on a higher religious-moral level than his collea-
gue.
110
From the words of Isaiah, ‘‘Woe is me! for I am undone; because
I am a man of unclean lips, and I dwell in the midst of a people of
unclean lips’’ (Isa 6:5), for which he was punished according to the
Midrash, the Hafetz Hayim learns that it is forbidden for a person to
denigrate another, even if he is at the same time denigrating himself.
111
From the story of Gedaliah (2 Kgs 25:23-26), who refused to believe the
warnings of Yohanan ben Kareah that Yishmael planned to kill him,
112
the Hafetz Hayim learns that even though the murder eventually took
place, ‘‘he acted according to the law in that he did not accept it (the
libel),’’ i.e., that it is forbidden to accept libelous statements even from
two suitable witnesses.
113
From the story of Yehudah b. Gerim, who
caused the persecution of Rabbi Shimon b. Yohai by reporting his
disparaging remarks about the empire to the Roman authorities,
114
the
Hafetz Hayim learned, in the footsteps of the Kesef Mishneh, that the
prohibition of libel applies even when the perpetrator does not intend
to denigrate the offended party.
115
The Hafetz Hayim found in the
same story a source for the rule that we mentioned above that it is
forbidden to speak libel even in ‘‘indirect speech,’’ such as retelling what
someone said to another person.
116
From the fact that God did not
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109 Ibid., Part 1, 5, Beer Mayim Hayim 17.
110 Ibid., Part 1, 10:3.
111 Ibid., Part 1, 1 Beer Mayim Hayim 15.
112 Jer 40:13-14, as interpreted in bNid 61a.
113 Hafetz Hayim,Part1,7:6.
114 bShabb 33b.
115 Hafetz Hayim,Part1,2Beer Mayim Hayim 1, 4; 1, 10; Part 2, 1 Beer
Mayim Hayim 1, 7. See the comments of S. Z. Kook, supra, n. 2, 101.
116 See n. 81 above.
reveal to Joshua the name of the person who had caused the military
defeat at Ai, but rather forced him to utilize a lottery to identify the
culprit,
117
the Hafetz Hayim concluded that even when it is permissible
to speak negatively about a person because of a particular benefit, libel
should be avoided if it is possible to achieve the benefit in an alternative
manner.
118
And from the talmudic story in which Rav Yehudah de-
monstrated to his son the definition of an evil woman by saying ‘‘ like
your mother,’’
119
the Hafetz Hayim learned that it is permissible to
speak libel if the negative traits of the woman are well known, or if it
helps in understanding the Torah.
120
I again emphasize that the previous are just a few examples among
many cases in which the Hafetz Hayim uses biblical and aggadic sources
to derive halakhic rules, the second path that I referred to above. This
path, which was fruitful in the musar literature as a means of deriving
principles, was rarely used to derive laws in the halakhic tradition.
Nevertheless, in his work on the issue of libel, the Hafetz Hayim
transformed it into the primary method of deriving rules, and applied
the classical halakhic analytical techniques to these sources as if they
were indeed legal texts.
It appears that in certain instances, the Hafetz Hayim takes norms
that are explicitly or implicitly considered middat hasidut (pietistic vir-
tue), and transforms them into binding norms. Rabbi Tzvi Aryeh
Frummer, the Rabbi of Kozhilgov, made this point in a fascinating
analysis that he communicated in a letter to Rabbi Abraham Mordecai
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117 bSan 11a; Tanna de-Vei Eliyahu, ch. 18.
118 Hafetz Hayim,Part1,10Beer Mayim Hayim 11. S. Z. Kook, supra,n.2,p.
102, comments on this that, on the contrary, God did not want to reveal
the identity of the guilty party in secret, as is generally done in speaking
libel, but chose a public forum so that others would ‘‘see and be afraid.’’
119 bYev 63b; bSan 22a.
120 Hafetz Hayim,Part1,1Beer Mayim Hayim 13. See also n. 190 below. The
Hafetz Hayim mistakenly related this story to Rabbi Hiya and Rav, ap-
parently because the previous section of bYev related to them.
Alter, the Rebbe of Gur (known as the Imrei Emes).
121
He discusses the
teaching of the Hafetz Hayim that it is forbidden to speak in a degrading
manner about a person ‘‘even if he himself saw him from close proximity
doing something that is inappropriate according to the law.’’ This
protection of the sinner applies to cases in which the sin observed was
‘‘in the category of laws between man and God,’’
122
and that the person
who committed it was ‘‘an intermediate person, as the average Jew, who
usually tries not to commit sins.’’
123
In such circumstances, the Hafetz
Hayim explains, it is possible to interpret his behaviour favourably, and
‘‘even if he saw him transgress several times, he can certainly attribute it
[to some special circumstance], and it is forbidden to reveal it lest he be
disgraced in the eyes of his people or even in his own eyes.’’
As a source for this law, the Hafetz Hayim relies on the following
citation from Shaarei Teshuvah of Rabbenu Yonah:
124
And know, that if a person saw his friend transgress a Torah pro-
hibition in secret, and he revealed it in public, he himself has
transgressed, for perhaps the transgressor already repented from his
evil ways, is distressed in his thoughts, and the heart knows the
bitterness of his soul. And it is incorrect to reveal it, except to a
discreet rabbi who will not publicize it to others. However, he
should distance himself from his friend until it is clear that he has
repented from his evil ways.
125
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121 Z. A. Frummer, Shu’’tEretzTzvi, vol. 1 (Bnei Brak, 1990), #4 (70-71). I am
grateful to Mr. S. Eilbert for bringing this text to my attention. It is
noteworthy that the Imrei Emes recommended the books Hafetz Hayim
and Shemirat ha-Lashon to his Hasidim and testified that they had ‘‘a good
effect’’ upon him. See A. M. Alter, Imrei Emet (Israel, 1988), Likkutim
(Miscellanea), 258.
122 Hafetz Hayim, Part 1, 5:1. Regarding one who transgresses a law between
man and man, there are several distinctions. See Hafetz Hayim,ad loc., ch. 10.
123 Ibid., 5:3.
124 Ibid., Beer Mayim Hayim 13. The reference is to Rabbenu Yonah Gerondi,
Shaarei Teshuvah, Gate 3, Articles 215, 218, 219 and 220.
125 Shaarei Teshuvah, Gate 3, Article 215 (emphasis mine).
And if the transgressor is not a God-fearing person, such as one
who has abrogated the yoke of the commandments and is not
careful about transgressions that are recognized as such by every-
body, then it is permissible to shame him by telling about his
indiscretion. [...] But if he transgressed by chance, and he generally
refrains from transgressing, one should not reveal his sin.
126
Rabbi Frummer claims that the language used by Rabbenu Yonah – ‘‘it
is incorrect to reveal’’ and ‘‘one should not reveal’’ – both imply ‘‘ that
this is not a real prohibition, and Rabbenu Yonah is only teaching a
desired pietistic virtue (middat hasidut).’’ He tries to prove his point by
claiming that had Rabbenu Yonah wanted to teach that this is a real
prohibition, he would have written ‘‘it is forbidden’’ or ‘‘ one may not.’’
The fact that he did not refer to it as a prohibition implies that ‘‘this is
not a prohibition, but an additional level of carefulness and holiness.’’
127
Rabbi Frummer’s argument seems stronger in relation to the first
expression (‘‘it is incorrect to reveal’’ ), and weaker in relation to the
second (‘‘one should not reveal’’ ), even though he brings exegetical
precedents for the latter, taken from parallel usages in earlier halakhic
literature. However, it is this interpretive difficulty that manifests so
strongly Rabbi Frummer’s lenient tendency, even at the price of being
somewhat at odds with the text. Indeed, no less than the ruling itself,
the basic tendency is important, which Rabbi Frummer states clearly:
‘‘And since many people fail in this, one ought to find them a
defense.’’
128
This emphasizes the difference between the interpretive
approach of Rabbi Frummer, whose goal is to make the halakhic
standard compatible with accepted communal practice, and that of the
Hafetz Hayim, whose approach, as we will see below, is to be stringent.
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126 Ibid., Gate 3, Article 219 (emphasis mine).
127 Frummer, supra, n. 121.
128 Ibid.
4. The Tendency of Halakhization: Stringency
There is no question that the halakhization of the area of libel had a
significant impact on its content. Essentially, the transition from
principles to rules certainly contains the potential for increased
stringency, but it also has the potential for increased leniency.
Nevertheless, in this instance, there is an added element of the personal
approach of the Hafetz Hayim, which significantly strengthened the
tendency toward stringency.
When discussing criminal (or ethico-religious) norms, the transition
from principles to rules is generally a movement toward greater
stringency, at least in the particular domain in which it is applied.
Dworkin established this idea in an almost tangential point, discussed
above, that included an important example. In his dispute with Raz,
Dworkin asserted that the prohibition to lie is usually perceived as a
principle, but he raised the possibility that a person might adopt this
prohibition as a rule. The distinction, according to Dworkin’s frame-
work, is that as a principle, the prohibition to lie remains a value that
must at times be balanced with other values, while as a rule it becomes
sweeping and categorical. Essentially, Dworkin describes the ‘‘ halakhi-
zation’’ of the prohibition to lie. Even though this process might lead to
greater leniency in other areas that must now be deferred when they
come into conflict with this rule, it leads to greater stringency with
regard to lying, which now cannot be deferred. In Fuller’s framework, as
well, it is clear that the morality of aspiration, although it includes a
duty to aspire, poses a weaker norm than the morality of duty. Thus, in
our case, the halakhization of the prohibition of libel includes eo ipso a
tendency toward greater stringency.
Yet, there is another, somewhat softer side of this coin. Particularly
because musar literature urges its readers to aspire to certain principles
and goals, it does not have to present the limitations to these principles,
nor the competing principles that may need to be balanced with them.
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An excellent example of this is Hilkhot Deot of the Mishneh Torah,in
which Maimonides includes only one limitation of the prohibition, even
though he certainly was aware of many more.
129
The assumption that
underlies this phenomenon is that there are so many possible situations
in which there will be conflicts between principles, that it would be
impossible to clarify all of them. Furthermore, it is impossible to know
which principles would take precedence in every possible circumstance.
Thus, it is sufficient to inform the reader of the principles, and to
encourage him to strive for its fulfillment to the best of his ability. In
the codification of rules, on the other hand, the potential conflicts
between principles and their resolution in specific circumstances must
be expressed, and, in fact, that is one of the very goals of formulating
rules. Thus, a halakhic authority who writes about a particular com-
mandment without including its limitations has not been true to his
task. In fact, the Hafetz Hayim included at the end of each section of his
book a chapter indicating situations in which libel or gossip is per-
mitted.
130
Similar elaboration is spread throughout the work. From this
standpoint, the halakhization of the prohibition of libel served as a
catalyst for the creation of leniencies.
We see, then, that from a theoretical point of view, the halakhi-
zation process can provide openings for both stringencies and le-
niencies. In utilizing these terms, I do not refer to the ease or difficulty
of performing the particular rule (which I will relate to later), but pri-
marily to the exegetical perspective as it contrasts with rulings that
preceded it. The terms ‘‘leniency’’ and ‘‘ stringency’’ are only relevant
when the authoritative text provides an opening for extrapolation,
which allows for a ruling in either direction.
131
In reality, the Hafetz
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129 As we have seen above (n. 55), in his commentary on mAvot he presents
a principle that may override the prohibition of libel
{
i.e., the principle
in favor of the condemnation of the wicked. It is obvious that the bal-
ancing of these two principles generates limitations to the application of
the prohibition of libel.
130 Hafetz Hayim, Part I, chapter 10; ibid., Part II, chapter 9.
131 See my ‘‘Stringency: Five Modern Era Types,’’ Dine
´Israel 20-21 (2001): 127.
Hayim utilized both options, but the dominant trend in his book is in
the direction of stringency.
132
This trend finds expression in his efforts
to limit the application of a number lenient positions relating to libel in
rabbinic literature. The following are several examples of such rabbinic
statements that appear to express leniencies regarding the prohibition
of libel:
A. The Babylonian Talmud explains the statement of Rabbah b. Rav
Huna that ‘‘anything said in front of three people is not con-
sidered libel,’’ based on the assumption that it will spread in any
case: ‘‘Your friend has a friend, and your friend’s friend has a
friend.’’
133
B. Rabbah stated that it is permissible to say libel in front of the
offended party: ‘‘Anything said in front of the person is not
considered libel.’’
134
He bases this statement on the opinion of
Rabbi Yosi: ‘‘I never said anything and turned around.’’ Rashi
broadens this leniency even further, holding that to remove the
statement from the category of libel, it is not necessary for the
person to actually say the statement in front of the offended
party, but enough that he is prepared to do so.
135
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132 Dadon also acknowledges this, and assumes that the Hafetz Hayim’s
stringent policy is explained by the fact that the prohibition of libel is a
biblical precept, and especially by the fact that the Hafetz Hayim
‘‘thickened’’ it by attaching to it numerous of other prohibitions (supra,n.
5, 40-44).
133 bArak 16a; bB.B. 39a.
134 bArak 15b.
135 Rashi suggests two explanations, both of which extend the leniency. In
one explanation, Rabbi Yosi testified about himself that he never turned
around in order to see who was standing there, because he would have
been prepared to make his statement even in front of the person under
discussion. According to the second explanation, Rabbi Yosi never made
his statement in front of the offended party, but always admitted to what
he had said.
C. The Jerusalem Talmud cites the following statement in the name
of Rabbi Yonatan: ‘‘It is permissible to speak libel about quarrel-
mongers.’’
136
D. bYoma states: ‘‘One may publicize the [identity of] hypocrites in
order to prevent desecration of God’s name.’’
137
E. Rav Ashi stated that ‘‘it is permitted to call a person who has
acquired a bad reputation a ’gimmel’ora’shin’.’’ In other words,
one about whom there are negative rumors
138
can be degraded
and called ‘‘son of a whore’’ and ‘‘ son of a rotten one’’ (or ‘‘ son of
a stupid whore,’’ or ‘‘son of a Gentile,’’ or ‘‘ son of a slave,’’
according to other interpretations), which casts aspersions not
only on him, but also on his mother.
139
Similarly, Rav said: ‘‘One
may flog a person for negative rumors.’’
140
Rashi explains that ‘‘a
person about whom it is reported that he transgressed is given
lashes.’’ bM.Q. records a story in which Rabbi Yehudah allowed
himself to excommunicate a scholar because ‘‘bad rumors had
been heard about him’’.
141
Also among the rishonim (medieval
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136 yPeah 1:1.
137 bYoma 86b. The word ’hanefim’ (hypocrites) can also be translated as
’wicked’.
138 Rashi there explains that the statement refers to rumors relating to
adultery, but in another place, he speaks about ‘‘bad rumors’’ in general
(bM.Q. 17a; but see Tosafot there who explain that he is ‘‘suspected of
illicit sexual behavior’’). See also the commentary of Ovadiah of Bartenura
on mAvot 1:13.
139 According to Rashi, in the name of the Geonim, ‘‘gimmel’’ and ‘‘shin’’ are
abbreviations for ‘‘girta’’ and ‘‘ sarya’’
{
i.e., whore and rotten one. Yet,
according to Rashi, in the name of his teachers, they are abbreviations for
‘‘gayofa ve-shaita’’ /‘‘ shatya’’
{
i.e., stupid whore. According to the Rif
(bM.Q. 16b in the pagination of Alfasi), the abbreviation is for ‘‘goiya’’
and ‘‘shifha’’
{
i.e., Gentile and maidservant. Alfasi also refers to bSan
52a, which indicates that it is permissible to call an evil person an ‘‘evil
person the son of an evil person,’’ even if his father was righteous.
140 bQidd 81b, based on 1 Sam 2:24.
141 bM.Q. 17a.
rabbis),we find that it was permissible to impose sanctions based
on rumors.
F. We often find sages making demeaning comments to their fellow
sages. Thus, Rabbi Yehudah ha-Nasi said about his disciple Rabbi
Levi that ‘‘it appears to me that he has no brain in his skull.’’
142
Resh Lakish called two sages ‘‘cowherds,’’ and they, on their part,
saw him as a ‘‘a troublesome fellow’’ (or ‘‘ a nuisance’’).
143
When
Rav Kahana, previously described by Resh Lakish as ‘‘a lion,’’ did
not ask even one critical question in Rabbi Yohanan’s lessons, the
latter said: ‘‘The lion you mentioned has become a fox.’’
144
Rava
called Rafram b. Pappa ‘‘patya ukhma’’ (literally: ‘‘ black pot,’’ but
the pun alludes to ’fool’) and castigated Rav Illish as being like
‘‘dayanei hatzatzta’’ (according to Rashbam – incompetent judges
who decide the cases by dividing the sum in dispute in half).
145
The term ‘‘Bavlaei tipshaei’’ (foolish Babylonians) appears often as
a derisive label for Babylonian sages.
146
Indeed, we may find
many more expressions of this type in rabbinic literature.
147
When viewing all of these statements together, one gets the strong
sense that the Rabbis viewed libel as a prohibition to which quite a few
limitations are attached, and consequently as a relative one. This point
strengthens the assumption that they saw it as a principle that at times
had to be balanced with other principles. As such, it was not necessary
to formulate as rules how to resolve conflicts between libel and other
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142 bYev 10a; bMenah 80b.
143 bSan 26a.
144 bB.Q. 117a.
145 bB.B. 133b.
146 bPesah 34b; bYoma 57a; bBetzah 16a; bKetub 75a; bNed 19b; bZevah
60b; bMenah 52a; bBek 25b.
147 I took almost all of the examples in this paragraph from Urbach’s illumi-
nating
{
and amusing
{
discussion on this matter: E. E. Urbach, The Sages:
Their Concepts and Beliefs (Jerusalem, 1979), 620-27. The medieval autho-
rities are likewise known for their sardonic and disparaging statements.
principles. However, in addition to expressing the normative status of
this prohibition, these statements also provide a window into the
cultural world of the Rabbis, a world in which rumors were considered a
legitimate, and at times necessary, element of communication – i.e., that
the degradation of an individual by means of rumors was considered a
normal social sanction and not libel. It seems that the Rabbis allowed a
certain level of offensive expression against one whose behavior was
deemed inappropriate, and that the parameters that they established for
themselves were only slightly higher than the standard accepted in
society in general. Although the medieval commentators subsequently
tended to interpret these norms in a more limited fashion, they still did
not establish for themselves an unreasonable standard, as is clear in the
parameters that they utilized for expressing themselves in their own
internal discourse. It was not uncommon for them to exchange sharp
comments in the heat of their controversies. The harsh comments of the
Rabad against Maimonides and the severe remarks of Nachmanides
against Rabbi Zerahiah ha-Levi are well known. Apparently, they did
not view this as a violation of the prohibition of libel.
Post-talmudic rabbinic literature could have utilized these state-
ments to derive a host of leniencies regarding the prohibition of libel. In
addition, since several of these statements refer to the public interest,
they might have been utilized for a modernistic interpretation pro-
moting a doctrine similar to that of freedom of speech in modern law.
Nevertheless, the post-talmudic authorities did not try to extend these
openings for leniency. On the contrary, they tried to limit them. As
previously stated, rabbinic literature in the Middle Ages for the most
part attempted to restrict the application of these statements through
interpretation. The Hafetz Hayim took this trend to an extreme and
tried as much as possible to neutralize or minimize them.
In the introduction to his book, the Hafetz Hayim cites several of
these statements as examples of the temptations of the yetzer ha-ra, i.e.,
that a person’s evil inclination could rationalize from them that it is
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permissible to transgress the prohibition of libel.
148
In addition, he
discusses each of the statements from rabbinic literature cited above in
various places in his work. The following are summaries of these dis-
cussions as they relate to statements A-F, above:
A. The Hafetz Hayim dedicates an entire chapter to the issue of
speaking libel in the presence of three people. It is clear to him
that logically, if it is prohibited to speak libel in front of one
person, then it is certainly forbidden in front of many people. He
surveys the opinions of the medieval authorities, who provide
four different explanations of this saying. Tosafot in bB.B. ex-
plained it literally, i.e., as an unlimited permit to speak libel in the
presence of three people.
149
Tosafot in bArakhin understood it
to refer to comments that could be interpreted as libel, but that
are not categorically libelous.
150
Rashbam explained it to mean
that a person who hears libel within a group of three or more
people can tell the offended party that someone spoke nega-
tively about him, because it will eventually get back to him
anyway.
151
According to Maimonides, only after libelous com-
ments are made in the presence of three people can one of the
people spread it further, and only if ‘‘he does not intend to
spread the rumor and reveal it to a greater degree.’’
152
The
opinion of Rashi
153
is unclear: according to one understanding,
he adopts a position similar to that of Rashbam, while according
to another understanding, he holds that if the offended party
spoke against himself in the presence of three people, he thereby
showed that he relinquished his right and allowed others to
transmit the information further.
154
A fifth, particularly lenient
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148 Hafetz Hayim, Introduction, pp. 12-13; Negative Commandments, 14.
149 Tosafot, bB.B. 39a, ‘‘Leit bei.’’
150 Tosafot, bArak 16a, ‘‘Kol milta.’’
151 Rashbam, bB.B. 39a, ‘‘De-Mitamra be-appei telata.’’
152 Mishneh Torah,Hilkhot Deot,7:5.
153 Rashi, bArak 16a, ‘‘De-Mitamra be-appei telata.’’
154 Hafetz Hayim,Part1,2Beer Mayim Hayim 1.
position adopted by the Maharal of Prague is not even en-
umerated by the Hafetz Hayim. The Maharal states: ‘‘ It is only
considered libel if a statement is made by one person to another
individual about a party who is not present. But if it is said in
front of the offended party, it is not considered libel.’’
155
The
Hafetz Hayim only relates to this position in a short footnote, in
which he dismisses it completely.
156
In his opinion, the lenient
position of Tosafot in bB.B. is not possible, and was in fact
revoked by Tosafot in bArak, who refute it. On this basis, the
Hafetz Hayim concludes that the ‘‘opinion which is the con-
sensus among the halakhic authorities’’ is as follows: ‘‘It is for-
bidden to speak libel about another person, even if it is true, in
front of one person, and more so in the presence of many people.
The transgression is magnified corresponding to the number of
people that hear it.’’
157
In practice, he accepts the opinion of
Tosafot in bArakhin,
158
and cites the opinion of Maimonides
only as an alternative position.
159
Nevertheless, he does utilize
the opinion of Maimonides in another place to reconcile a tal-
mudic passage that he considers difficult.
160
After this entire
discussion, the Hafetz Hayim adds a series of other qualifications
that apply to the statement regarding speaking libel in the
presence of three people, including: that the person should not
add anything beyond what he heard from others;
161
that he
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155 Maharal of Prague, Netivot Olam,Netiv Ha-Lashon,1,andintheappendix
to ch. 7. The Hafetz Hayim claims that in the incident of Miriam, ‘‘ which
isknowninalloftheTorah’’ as libel, the comments were made in the
presence of the offended party (Moses), at least according to Rabbi
Nathan in Sifre Numbers }100.S.Z.Kookalreadyquestionedthis(supra,
n. 2, pp. 100-101), claiming that it is impossible to learn anything from
that incident since the libelous statement was false.
156 Hafetz Hayim,Part1,2Beer Mayim Hayim 1inanote.
157 Ibid., Part 1, 2:1.
158 Ibid., 2.
159 Ibid., 3.
160 See below, text at n. 187.
161 Hafetz Hayim,Part1,9.
should not transmit it to someone who might embellish it;
162
etc.
He rightfully adds that in light of the many qualifications, ‘‘ this
leniency [...] has almost no place in practice.’’
163
B. The Hafetz Hayim relates in a number of places in his book to
cases in which the libel is stated in front of the offended party, or
that the perpetrator would be willing to say it in his presence. As
we have seen, the permissive opinion of the Maharal relating to
this issue is summarily dismissed by the Hafetz Hayim as erro-
neous.
164
He also gently criticizes the lenient position of Rashi
(‘‘his explanation requires explanation’’ ),
165
and suggests that
Rashi’s permit only applies if the comment might be understood
as libelous but is not categorically libelous,
166
or if the comment
is permissible for other reasons, such as that the person making
the comment is trying to protect another person from being
swindled. In the latter instance, it is permitted only if he has
previously rebuked the person personally.
167
In any case, the
Hafetz Hayim emphasizes that even if the teller ‘‘believes that he
would say it in front of the offended party, or if he actually said
it in his presence, it is also forbidden and considered libel. From
one perspective, saying it in his presence is a greater prohibition
than when it is not in his presence, for in front of him, in addition
to the prohibition of libel, he takes on the qualities of insolence
and impudence, which inflame controversy, and at times also
lead to embarrassment.’’
168
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162 Ibid., 10.
163 Ibid.
164 See supra,n.156.
165 Hafetz Hayim,Part1,3Beer Mayim Hayim 1.
166 Ibid., 2 Beer Mayim Hayim 2.
167 Ibid., 3 Beer Mayim Hayim 1.
168 Ibid., 3:1. See also 2; Part 2, 3:1, and Beer Mayim Hayim on these sections.
C. The Hafetz Hayim dedicates a long and detailed discussion to
speaking libel about people involved in a conflict.
169
First of all,
he points out that this permit is only an alternate opinion, and
hints that there is no indication that it was concluded as law.
Second, he establishes that the permit applies ‘‘specifically if by
doing so, he reveals to the parties involved the degree of their
deceit in this matter, and they will realize that the law is not in
their favor, which will lead to an end to the controversy. But if
not, then there is no difference.’’ Third, he stipulates that the
permit is only applicable if the person making the comment is
personally aware of the circumstances and is thus certain that a
conflict actually exists. Fourth, he requires that the person be
motivated not by hatred, but by a desire to reconcile the quarrel.
Fifth, he stipulates that the permit applies only if the conflict
cannot be reconciled by any other means. Sixth, he requires that
it be clear to the person making the comment that he is casting
aspersions on the guilty party in the controversy: ‘‘If he is unable
to clarify in his mind whom the law supports, it is better to be
passive and not act.’’ In another place, the Hafetz Hayim adds
that even in a situation in which it is permissible to speak libel
about people involved in a controversy, it is still forbidden for a
third party to listen to it and give it credence.
170
It is clear that
after all of these qualifications, little remains of this permit.
D. With regard to permission given to publicly disclose hypocrites,
the Hafetz Hayim stipulates that the permit is only given to
prevent damage. Therefore, it cannot be done if the damage has
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169 Ibid., Part 1, 8:8 .
170 Ibid., 8 Beer Mayim Hayim 26. The Hafetz Hayim here negates a maxim
that he himself formulated: ‘‘It is not reasonable to be more stringent with
the listener than with the teller’’ (Part1,7:10).Ifthatisnotenough,this
maxim, on its part, is itself problematic, for the Hafetz Hayim accepts the
principle elucidated by the Rabbis that ‘‘greater is the sin of the one who
hears it than the one who says it’’ (Part 1, 6:3, 6:1).
already occurred. Thus, for example, a person is allowed to warn
his friend against entering a business relationship with a parti-
cular person under the following conditions: ‘‘They only said
(bYoma 86b) that it is a commandment to publicly disclose the
hypocrites in order to warn another person not to get involved
with him a priori so as not to suffer loss, or even if he is already
involved with him, and he knows the nature of the person that
he is telling about, only so he will consider his words and protect
himself, but not to cause him actual damage.’’
171
Similarly, the
Hafetz Hayim stipulates that the permit applies only to a hy-
pocrite who is known to habitually cheat, but not to one who
might have done so only once.
172
E. The Hafetz Hayim dedicates several long discussions to speaking
libel about someone who has a bad reputation. In general, he
objects to relying on rumors, and prohibits spreading them fur-
ther: ‘‘If a rumor was perpetrated about someone claiming that he
did or said something that is inappropriate according to the
Torah, be it a severe prohibition or a lighter one, it is nevertheless
prohibited to believe it in a resolute manner [...], and how much
more so must he be careful, if he wishes to mention it to another
person, not to spread it further and publicize it more.’’
173
He
explains the permit to denigrate, censure, excommunicate, or
punish based on rumors in a manner consistent with his general
approach, i.e., that it is only for the purpose of censuring ‘‘ evil
people’’ and excluding them from the protection of the prohibi-
tion of libel.
174
He therefore limits this permit by establishing a
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171 Ibid., Part 2, 9, Beer Mayim Hayim 17.
172 Ibid., 28.
173 Ibid., Part 1, 7:4.
174 I intend to dedicate separate research to this topic. For the time being, I
will quote the Hafetz Hayim’s main text on this issue: ‘‘ And this entire
prohibition of libel relates to a person who is by Torah law in the
category of ’your friend’, i.e., one who is with you in the observance of
Torah and the commandments. However, those people whom he knows
series of qualifications. First, the permission to speak libel about a
person who is the subject of rumors does not apply to a person
about whom there are isolated rumors, but only to one who is
regularly the subject of rumors.
175
The Hafetz Hayim agrees that
for this type of person, ‘‘it is permissible to conclude that he is
evil and to denigrate him, even a person who does not know him
well.’’
176
Second, the permit applies only to rumors about the
transgression of offenses ‘‘that are well known among all Jews to
be prohibited.’’
177
Third, one who degrades a person about
whom there are rumors can only do so in his presence (‘‘ to his
face’’).
178
Fourth, even after all of these qualifications, the Hafetz
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to be heretics, it is a commandment to degrade and debase them, whether
in their presence or not, regarding anything that he hears about them or
sees them do, as it is written, ’Do not wrong your friend’ (Lev 25:14) and
’You shall not be a tale-bearer among your people’ (Lev 19:16), and they
are not included in these rules because they do not act in accordance with
the behavior of your people. Furthermore, it is stated: ’I hate them with
utmost hatred; I count them mine enemies’ (Ps 139:21). Now, the heretic
is considered one who denies the Torah and the prophecy of Israel,
whether the written Torah or the Oral Law, and even if he says, ’All of
the Torah is from Heaven, except for one verse, or one afortioriargument
or one argument by comparison or one grammatical derivation,’ he too is
in this category’’ (Hafetz Hayim,Part1,8:5).
175 Ibid., 7, Beer Mayim Hayim 8. He arrives at this conclusion based on an
analysis of Rashi’s use of the plural, reasoning that ‘‘ it is impossible that
all of the people of the city would always be wrong.’’ In the continuation
of his comments, he indicates that this permit only applies to one who is
assumed to act inappropriately, ‘‘which is not the case if it was heard
coincidentally about a person that he did something inappropriate, but
was not strengthened. In such a case, he cannot rely on it and hate him,
or more so speak libel against him and degrade him, even if he heard it
from many people.’’
176 Ibid.
177 Ibid., 8:7.
178 Ibid., 4, Beer Mayim Hayim 30. It is interesting to note that the Hafetz
Hayim interpolated the word ‘‘be-appei’’ (‘‘ to his face’’ ) into the text in
such a manner that the simple reader would not know that it is not part of
the source. This limitation contradicts another assertion that we saw
Hayim adds an interesting note: ‘‘And I was very much afraid to
write this law because of the libel-inclined persons who upon
hearing one negative thing, will immediately assume that person
to be evil and degrade him, and will justify their behavior as
being based on this book. Nevertheless, I did not delete it, for as
our Sages said in Bava Batra (89b) about Rabban Yohanan b.
Zakkai: ’He said it [openly – a law that the transgressors may
abuse] and his source [for that] was this verse (Hos 14:10): For the
ways of the Lord are right, and the just do walk in them; but trans-
gressors do stumble on them’.’’
179
F. As for the Rabbis’ sardonic words toward one another, the Hafetz
Hayim passes with silence on most of them. Of the above say-
ings, he refers only to Rabbi Yohanan’s words, ‘‘the lion you
mentioned has become a fox,’’ and contends that they are not
problematic, ‘‘because R. Yohanan did not reveal anything un-
known by his statement, for even without this, everyone had
seen that Rav Kahana did not ask R. Yohanan any critical ques-
tion.’’
180
He did not generalize this interpretation into a per-
missive rule.
There is yet another example from which we can learn the Hafetz
Hayim’s stringent tendency in the interpretation of the short halakhic
texts of the Sages. We have seen that the Hafetz Hayim deduced a
series of halakhic rules out of the saying in bM.Q. that an agent of the
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previously regarding the prohibition of libel, which states: ‘‘On the one
hand, the prohibition is greater in front of him than when he is not
present,’’ since it adds the vices of impudence, insolence, inflaming con-
flicts and causing embarrassment (see the text at n. 168 above). The
Hafetz Hayim does not try to reconcile this contradiction. It appears
however that there, the question of speaking libel in front of the offended
party arises as a possible reason for leniency, which the Hafetz Hayim
wishes to reject, while here it arises as a possible reason to delimit the
permit (i.e., to be stringent), which he wishes to adopt.
179 Ibid.
180 Ibid., Part 1, 5, Beer Mayim Hayim 8.
court that fell victim to the defendant’s abusive conduct may tell it to the
court without being guilty of libel.
181
The common denominator
between all of these rules is the exegetical premise upon which they are
based, namely, that since the statement in the Talmud relates particularly
to an agent of the court, the permit that was issued also relates only to
agents of the court. In other words, we can assume that in other
instances with similar circumstances, hurtful language would be
forbidden. But this interpretive premise is not necessary at all. For the
purposes of comparison, it is interesting to note that Rabbi Shlomo
Zalman Kook suggested the very opposite conclusion. He claimed that
the Talmud spoke specifically about an agent of the court because in that
case there is a particular concern about libel, because of ‘‘ the concern that
he will influence the court to judge unlawfully against him.’’ In other
cases with similar circumstances, however, this type of speech would be
permitted because there would be no such concern!
182
The logic of both
interpretive premises is one and the same, which means that the choice
between them is based on the interpreter’s predisposition – to be lenient
or stringent. The Hafetz Hayim opted for stringency.
The Hafetz Hayim adopts a stringent stance not only regarding the
few halakhic sources that appear on the topic in talmudic literature, but
also with regard to relevant aggadic sources. In the opening of his
book, in an attempt to prove that the prohibition of libel also relates to
true statements, he quotes the following passage in bSotah: ‘‘There are
four groups among whom the Divine Presence does not dwell.’’ Sub-
sequently, the Talmud indicates that two of the groups are ‘‘liars’’ and
‘‘those who speak libel.’’ Since these two groups were listed separately,
the Hafetz Hayim concludes, following Rabbenu Yonah, that libel is not
necessarily false, for if it were, there would be no need to list it sepa-
rately.
183
On the other hand, when another statement in bSotah dis-
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181 Supra, n. 72.
182 S. Z. Kook, supra, n. 2, p. 101. See also p. 103.
183 Hafetz Hayim,Part1,1:1.ItisnoteworthythatintheopinionofM.
Gruzman, the rabbis held that the punishment of leprosy for libel only
tinguishes between ‘‘those who are haughty’’ and ‘‘ those who speak
libel,’’ the Hafetz Hayim draws no such conclusion and states that one
who speaks libel also falls prey to haughtiness,
184
even though Rabbenu
Yonah did find similar significance in the fact that they were listed
separately.
185
The stringent tendency of the Hafetz Hayim also manifests itself in
the way that he deals with the talmudic report that in the Land of Israel,
it was customary to ask the bridegroom if he ‘‘ found’’ (matza)oris
about to ‘‘find’’ (motze), i.e., if his marriage is described by the verse ‘‘ he
who found (matza) a wife found goodness’’ (Prov 18:22), or by the
verse ‘‘Ifind (motze) the wife more bitter than death’’ (Eccl 7:26).
186
The
Hafetz Hayim was troubled by this passage, because the custom seems
to give an opening for speaking libel about the wife. On its face, the
talmudic passage is speaking playfully and does not refer to an inten-
tional expression of libel. However, this understanding would be ade-
quate for one who views the prohibition of libel as a ‘‘morality of
aspiration,’’ but not for the Hafetz Hayim who viewed it as a ‘‘ morality
of duty.’’ He therefore explains this custom by utilizing the position of
Maimonides, which he was previously not completely prepared to
accept,
187
stating that libel already said in front of three people can be
spread by one of those who heard it, as long as he does not intend to
strengthen the rumor and disclose it further. ‘‘ If so,’’ he concludes, ‘‘ we
can simply say that it is usual that in the case of an evil woman about
whom it can be said that she is more bitter than death, that the matter
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applies if the libel is false (see n. 250 below). If this claim is correct, it
brings into question the interpretations of Rabbenu Yonah and the Hafetz
Hayim.
184 Hafetz Hayim, opening chapter, Negative Commandments 5. This ques-
tion was already raised by Rabbi Hadaya (supra, n. 2, pp. 229-30) but not
sufficiently answered. A. Y. Kook (supra,n.2,p.97),too,claimsthatnot
all libel indicates haughtiness, but he bases it on his own reasoning.
185 Shaarei Teshuvah, gate 3, 174.
186 bYev 8a.
187 See supra,n.153.
was certainly disclosed already in the presence of three people. Thus, a
husband who subsequently talks about her wickedness without the
intent of spreading it further has not transgressed the prohibition of
libel.’’
188
Here, too, the interpretation could be extended to permit any
libelous statement where it could be assumed that it is already common
knowledge, but the Hafetz Hayim does not do so. On the contrary, he
relegates the comment to an obscure footnote and does not include it in
the chapter on permits. Nor does he adopt the permit embodied in
Maimonides’ opinion as a general rule, even though he based his un-
derstanding of this passage upon that opinion.
The Hafetz Hayim deals similarly with a different section of the
same talmudic passage, which reports that when Rabbi Yehudah taught
his son the verse ‘‘I find the wife more bitter than death,’’ his son asked
‘‘Like whom?,’’ and his father responded ‘‘ Like your mother.’’
189
In this
case, the Hafetz Hayim also explains that the story relates to a woman
who was known to be difficult, and the statement was not for the
purpose of spreading the rumor further. He adds that in this instance,
the son ‘‘knew the nature of his mother, but asked ’like whom?’ as if to
ask to what extent the woman must be evil [to be in this category]. And
when the father responded ’like your mother’ it was certainly his intent
to explain the verse and not to demean her. This is similar to one who
achieves certain benefit by revealing the truth.’’
190
Here too, it is clear
that the explanation is forced. The Hafetz Hayim himself does not
generalize from this permit, and never establishes a rule that it is per-
missible to utilize examples that denigrate a particular individual for
purposes of demonstration in study.
The same is true for his use of musar books. We have seen above
that the Hafetz Hayim took the liberty to decide the law on the basis of
Shaarei Teshuvah, even without finding its source in the talmudic lit-
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188 Hafetz Hayim,Part1,1Beer Mayim Hayim 13.
189 bYev 63b; bSan 22b.
190 Hafetz Hayim,Part1,1Beer Mayim Hayim 13. See also n. 120 above.
erature, but ‘‘only in places where his words imply a leniency.’’
191
One
may understand from this that he sought to be lenient in his rulings.
However, at least on one point, Rabbenu Yonah rules leniently but the
Hafetz Hayim seeks to limit the scope of the leniency. The question at
stake is whether a person who saw another person transgressing the
halakhah may tell others about it. Rabbenu Yonah alludes to a dis-
tinction between transgressing laws ‘‘between man and God’’ and laws
‘‘between man and man.’’ On the latter he tends to be lenient:
On matters between man and man – such as stealing, oppression,
damage, pain, embarrassment, or deceptive language – one may tell
the deeds to other persons. Even if there was only one person who
saw the act, he must tell them, so as to help the victim of those
deeds and fight for truth.
192
The allowance seems to be sweeping, and its purposes – help for the
victim and fighting for truth – do not seem to be preconditions but
rather justifications for the categorical permit. The Hafetz Hayim,
however, reads it differently. He preserves the distinction between
‘‘man and God’’ and ‘‘ man and man’’ and comments that regarding the
latter ‘‘there are many ramifications’’ which he articulates in the chapter
on permits, but rules decisively that in case where a person refuses to
lend money to another, one may not tell it to other people even though
the refusal is considered a transgression.
193
Furthermore, even if the
transgressor acts the same way on a regular basis, he still enjoys the
protection of the prohibition against libel. The Hafetz Hayim explains
that a refusal to lend money is misconceived by the public as not being
a genuine transgression, and therefore we may assume that the person
at stake did not refuse to do it as part of ideological disobedience but
rather as a result of a mistake. He adds: ‘‘ And thus we have explained in
several similar instances where there is a side to permit and a side to
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191 Supra, n. 93.
192 Shaarei Teshuvah, gate 3, 221.
193 Hafetz Hayim,part1,4:1;ibid.,5:1.
prohibit, and he transgressed it in a manner that is prohibited – that
even so, this does not negate his status as ’your friend,’ and it is
therefore prohibited to denounce him for this.’’
194
It is easy to notice
that in this approach, he deviated sharply from Rabbenu Yonah’s
leniency. Even the discussion in the chapter on permits, to which the
Hafetz Hayim refers the reader, is still very distant from the sweeping
permit found in Shaarei Teshuvah.
In general, it is enough to take a quick glance at the two chapters in
the Hafetz Hayim on permits for speaking libel and for speaking gossip,
to discern that the author’s approach is to create a series of stipulations
that restrict their application.
195
For example, the permit to speak libel in
order to help a person who has been harmed is qualified by seven
conditions: that the person speaking saw the harm himself, and did not
hear it from others; that he clarified that the incident was indeed within
the category of damage; that he tried first to rebuke the perpetrator; that
the libel will not increase the damage; that his intention is to be helpful,
and ‘‘not God forbid to benefit from the flaw that he causes to his
friend’’; that there is no alternative way to rectify the situation; that the
harm caused to the perpetrator not be greater than the harm that he had
caused. On this the Hafetz Hayim adds the somewhat strange condition
that the person who tells the libel be on a higher ethico-religious level
than the person about whom he tells it.
196
A similar list can be found in
the laws of gossip.
197
These conditions are practically impossible to
fulfill, but the Hafetz Hayim emphasizes that ‘‘one must be very careful
in this permit that none of the above details are lacking.’’
198
The ‘‘opening chapter’’ of the entire work goes above and beyond
these examples. In this section, the Hafetz Hayim lists all of the po-
tential prohibitions that a person might transgress by speaking libel.
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194 Ibid., Beer Mayim Hayim,5.
195 See supra,n.130.
196 Hafetz Hayim, Part 1, 10:2. See also 14.
197 Ibid., Part 2, 9:2.
198 Ibid., Part 1, 10:14.
The list includes 17 negative commandments, 14 positive command-
ments, and 3 curses. As Mordechai Dadon pointed out, this ‘‘thicken-
ing’’ of the prohibition results in the fact that ‘‘there is in practice no
other prohibition in the [halakhic] system that has a similar standing.’’
199
Yet, a closer look at the list reveals quickly that some of these prohi-
bitions are only relevant if the libel is accompanied by other conditions,
such as: the motivation of hatred,
200
revenge or a grudge;
201
inflaming
a conflict;
202
causing damage to the income of the offended party;
203
specific circumstances like speaking libel in the synagogue,
204
about an
older person,
205
about a priest,
206
or about an older brother;
207
or
telling lies.
208
Another portion of the list of prohibitions could apply to
any transgression, particularly with the far-reaching interpretations that
the Hafetz Hayim adopted. This is the case, for example, with regard to
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199 Dadon, supra,n.5,p.40.
200 Hafetz Hayim, opening chapter, Negative Commandments, 7. With regard
to this prohibition, the Hafetz Hayim adopted a very broad interpretation
to include even hatred within one’s heart. He rejects a more restricted
interpretation which limits it to hatred that comes to expression in an act
of violence, and ignores the fact that the latter interpretation was adopted
by J. Caro (Kesef Mishneh on Maimonides, Mishneh Torah,Hilkhot Deot
6:5), as rightfully pointed out by O. Hadaya (supra, n. 2, p. 230). A. Y.
Kook holds like the Hafetz Hayim that ‘‘hatred in the heart is specifically
in the heart,’’ which leads him to a different leniency, namely that once
the hatred is expressed in words, it no longer qualifies as hatred in the
heart (supra,n.2,p.97).
201 Hafetz Hayim, opening chapter, Negative Commandments 8-9. Rabbi
Avraham Yitzhak Kook rightfully points out that the Hafetz Hayim
greatly broadened the scope of this prohibition, which in halakhic terms
refers only to monetary matters (supra, n. 2, pp. 97-98).
202 Hafetz Hayim, opening chapter, Negative Commandments, 12.
203 Ibid., Positive Commandments, 4.
204 Ibid., 7.
205 Ibid., 8.
206 Ibid., 9.
207 Ibid., 10. The same is true of the husband of his mother.
208 Ibid., 13.
the commandments of ‘‘lest you forget the Lord your God,’’ which is a
prohibition against haughtiness,
209
‘‘do not profane my holy name,’’
210
‘‘fear the Lord your God,’’
211
‘‘and you shall walk in his ways,’’
212
or the
positive commandment of Torah study, which the Hafetz Hayim con-
nects to the prohibition of libel because one who speaks libel could
have been learning Torah at the same time.
213
The same is certainly
true of commandments that govern interpersonal relations.
The development of a list of negative commandments, positive
commandments, and curses by the Hafetz Hayim aroused the attention
of many of his interpreters and critics, and many of the comments on
his work relate to it. Not in vain did Rabbi Avraham Yitzhak Kook
comment on a discussion relating to one of these details, that ‘‘we
should not increase the number of negative commandments un-
necessarily.’’
214
A contemporary commentator, Rabbi Moshe Kaufman,
alludes gently to this criticism, but immediately ‘‘ corrects’’ it in defense
of the Hafetz Hayim:
Now our teacher [the Hafetz Hayim] gathered together many po-
sitive and negative commandments that relate either directly or
indirectly to the prohibition of libel, most of them connected to
Hilkhot Deot of Maimonides or issues that branch off from there. In
truth, it would have been possible to take this pamphlet [the list of
potential transgressions] and attach it to [each of] many com-
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209 Ibid., Negative Commandments 5. In contrast to the Hafetz Hayim’s
expansive approach, A. Y. Kook held that not all libel constitutes
haughtiness (supra,n.2,p.97).
210 Hafetz Hayim, opening chapter, Negative Commandments 6. A. Y. Kook
pointed out that desecration of God’s name occurs only when the
transgressor perpetrates the sin without any benefit, ‘‘but one who in-
tends to benefit is not included in this category.’’ This position differs
from the one implied by the Hafetz Hayim (supra,n.2,p.97).
211 Hafetz Hayim, Positive Commandments 11.
212 Ibid., 13.
213 Ibid., 12.
214 A. Y. Kook, supra,n.2,p.97.
mandments that are mentioned here, for the issues of virtues [deot]
and of interpersonal relations is like one piece, and the violation of
one commandment draws along its companion as on a thread.
However, our teacher related them to the laws of libel, which is the
subject of his book.
215
It is clear to the reader that the Hafetz Hayim’s approach was motivated
by a desire to impress upon his audience the seriousness of this
transgression, and additionally to point out that an awareness of this
seriousness is directly tied to the stringent definition of its parameters.
Of the two approaches available to the Hafetz Hayim in the ha-
lakhization of the prohibition of libel, he clearly chose the stringent
approach. Indeed, he developed a set of extremely demanding norms
that very few individuals are able to maintain. In spite of the fact that he
was very much aware that many viewed the laws of libel in this light,
he did not spare any attempt to convince his readers that the fulfillment
of this mission is indeed not impossible. Clearly, the transition from a
‘‘morality of aspiration’’ to a ‘‘ morality of duty’’ caused the maximum
standard that characterizes the former to become the minimum standard
characteristic of the latter.
5. Truly Halakhization?
-
An Evaluation of the
Hafetz Hayim’s Work on Libel
Let us now evaluate the work of the Hafetz Hayim in the area of libel,
and examine the degree to which his process of halakhization was
successful. This examination can be done on two levels: the literary-
normative and the socio-cultural. The latter requires a sociological
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215 M. Kaufman (supra, n. 2), p. 1. Kaufman also comments in a number of
places relating to the positive and negative commandments that the in-
terpretation of the Hafetz Hayim was not necessary, was too broad, or
was disputed.
analysis, which is outside the parameters of this paper. I will, therefore,
focus on the former. After doing so, however, I will permit myself to
make a few points regarding the latter as well.
First of all, we might ask whether the Hafetz Hayim succeeded in
creating a normative branch relating to libel that is based on rules rather
than on principles. It appears that he did. The Hafetz Hayim dis-
tinguished between the prohibitions of libel and gossip (although the
distinction is not always sharp), organized the laws relating to each in
an orderly fashion, systematically detailed the conditions under which
particular acts would be considered a transgression, listed the exemp-
tions (that primarily appear in his book in the chapters on permits), and
provided a number of practical examples and their solutions. Although
the book contains some contradictions and tensions, some of which I
discussed previously, these exceptions prove the fact that the Hafetz
Hayim succeeded in transforming the discourse on libel to the domain
of rules, for contradictions, as Dworkin pointed out, are relevant only
with regard to rules.
The Hafetz Hayim realized that his system of laws and cases could
not exhaust the principle of the prohibition of libel, and at the end of his
book he added a supplementary general guideline, phrased in the spirit
of a ‘‘duty of aspiration,’’ stating that the principle that must govern a
person’s behavior is as follows: ‘‘To be very careful about his paths, and
particularly on the utterances of his lips, to not intervene in matters
between man and man if he doesn’t clearly know the details of the
matter in truth at the outset, and to not act out of hatred but to aim for
a positive outcome, and to see to it that the consequences of his speech
not cross over the parameters of the law, God forbid.’’
216
Indeed, it is
apparent from the context that this wording, which is formulated as a
principle, is not a substitute for rules, but an attempt to cover normative
lacunae, and to enable a person to function in a situation in which he
does not know the law sufficiently. This use of the principle does not
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216 Hafetz Hayim,Part2,p.261.
undermine the halakhization, as the same approach is utilized in similar
circumstances in rule-centered systems.
The Hafetz Hayim himself saw the test of halakhization in its
connectedness to the letter of the law. As we have seen, in the in-
troduction to his book, he states: ‘‘This book is not written from the
perspective of middat hasidut (pietist virtue), rather from the perspective
of law.’’
217
So far I have shown that the Hafetz Hayim actually did not
refrain from taking sources that prescribed pietistic virtues and giving
them the form of ’morality of duty’, but, in addition, Hafetz Hayim’s
own language sometimes slipped over to terms of ’morality of as-
piration’. In truth, in many instances we find him posing higher stan-
dards than those of the basic requirements or recommending
stringencies that are beyond the letter of the law.
218
Yet, this also does
not seem to impair the legal, rule-based nature of the work, as the use of
‘‘soft stringencies’’ (recommendations to act in a stringent fashion), are
found in texts that are clearly legal, and are particularly prevalent in the
greatest halakhic work of the Hafetz Hayim, the Mishnah Brurah.
219
Nevertheless, in spite of it all, it seems that from particular per-
spectives, the book Hafetz Hayim did not succeed in removing the
prohibition of libel from the domain of musar. It seems that the
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217 Seetextatn.66above.
218 For example, he suggests that ‘‘a person who guards his soul will distance
himself’’ fromthepermittospeaklibelbeforethreepeople(Hafetz Hayim,
Part 1, 2:10). He utilizes a similar expression when discussing the issue of
speaking praise about another person, when it may cause the person
listening to counter with negative comments (Hafetz Hayim,Part1,4Beer
Mayim Hayim 37). He rules similarly with regard to believing libel from a
person who states it in innocence (Hafetz Hayim, Part 1, 7:16). In another
place, he specifically uses the expression ‘‘beyond the letter of the law’’
(lifnim mi-shurat ha-din), when he teaches that a person should accept
responsibility for an act that he did not do in order to prevent libel about
another person (Hafetz Hayim, Part 1, 10:16).
219 For more on this point, see my ‘‘’Soft Stringency’ in the Mishnah Brurah:
Jurisprudential, Social and Ideological Aspects of a Halakhic Formulation,’’
Contemporary Jewry 27 (2007): 1-41.
strongest proof of this claim is that the book includes so many explicit
and implicit norms that are incompatible with human nature. According
to the Hafetz Hayim, a person cannot say anything negative about
another person, whether a living person or dead, in the presence of that
other person or in his absence, explicit or implied, oral or written, true
or false, said seriously or in jest, stated as a fact or as an opinion.
220
According to the Hafetz Hayim, if my wife asks me about my lecture
today, and I reply that it was mediocre, I transgressed the prohibition of
libel (and maybe she did, too), which applies even to discussion be-
tween spouses; even to cases in which the subject of the libel is the
speaker himself; even if he were simply expressing a disrespectful
opinion on ‘‘sermons’’ ; and even if he were using understatement. The
prohibition against gossip embraces even the recounting of non-ne-
gative facts. All of the exceptions that the Hafetz Hayim imposes on
the application of the prohibition relate to the act itself and do not
reflect leniencies relating to outcomes, such as the degree to which the
libelous statement spreads, the actual damage caused to the offended
party, the possibility that the offended party does not even sense the
offense, and the like. This approach to the prohibition can lead to
misunderstanding regarding the distinction between a serious trans-
gression, a minor transgression, and an offensive remark that is for-
givable by the standards of normal human society. This would be
within the realm of acceptability were we talking about principles, but
when talking about rules, it impairs the normative applicability of the
standards, and makes their implementation considerably difficult.
The all-embracing approach of the Hafetz Hayim to the prohibition
is sharpened when we see how the later interpreters of the book dealt
with it. In attempting to be true to the Hafetz Hayim’s approach of
seeing the whole topic as a legal issue, some of the rabbis raised the
following questions: does a person have to forfeit money in order to
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220 Modern law also refrains at times from making these distinctions, but it is
hard to find a modern legal system that comes close to the level of
stringency imposed by the Hafetz Hayim.
not transgress the prohibition of libel, as is the case with all negative
commandments? Is a person permitted to mock another person within
the context of a Purim party, which traditionally includes satirical
teasing? Is it permissible for a father to inquire about his son’s progress
in school if it is not for a direct purpose? It is probable that these
questions were not discussed before the time of the Hafetz Hayim
because their permissibility was taken for granted, primarily because the
prohibition of libel was perceived as a principle of musar. They only
became ‘‘halakhic questions’’ when libel was transformed into a legal
issue. The answers given to these questions by the authorities that
addressed them are often interesting. With regard to forfeiting money,
Rabbi Shlomo Rosner ruled, in the footsteps of Rabbi Shmuel Houmi-
ner, that a person is indeed required to forfeit money in order to refrain
from transgressing the prohibition of libel.
221
Rabbi Moshe Kaufman
rules similarly, but only with regard to speaking libel, not to hearing
it.
222
With regard to the satires on Purim, Rabbis Kaufman, Cohen and
Levi all agree that it is forbidden.
223
Of the three, Rabbi Kaufman is
somewhat more moderate in that he is prepared to permit it if the
object of the teasing foregoes his honor and permits it, but suggests
that it is best not to do so in any case. With regard to the right of a
father to check on his son’s progress, Rabbi Levi rules that ‘‘the father is
permitted to check on his son’s academic progress only if he does so in
order to help him.’’ He emphasizes that ‘‘if his interest is motivated
solely by curiosity, he cannot inquire. This law applies to all relatives as
it does to all others.’’
224
In contrast, Rabbi Kaufman feels that such a
demand is not reasonable. He has difficulty finding a halakhic source to
support this permit, and therefore turns to human feelings – almost in
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221 Rosner (supra,n.2),42.
222 Kaufman (supra, n. 2), 295-96.
223 Ibid., 324-26; Cohen, (supra, n. 2), Part 1, 3:12, 91 (in the footsteps of O.
Yosef, Sheelot u-Teshuvot Yehavve Daat,vol.V,50);Levi(supra,n.2),Part
1, 21 84; and Part 2, 2, 201-203.
224 Levi (supra,n.2),Part1,12:6,77.
the spirit of natural law – as he rules that ‘‘ it is permissible, because this
is the meaning of the appellation ’father,’ that he is connected to his son
with a deeply imbedded love and always takes interest in him.’’
Nevertheless, he admits that ‘‘many might utilize this permit to ask or
tell out of curiosity under the guise of a valid purpose.’’ However, he
continues, ‘‘I have nevertheless not refrained from stating what appears
correct in my humble opinion – that the permit is necessary, and that
God will not withhold goodness from those who proceed with com-
plete integrity.’’
225
All of these distinctions are designed to blunt the
sweeping character of the Hafetz Hayim’s rulings, to make the prohi-
bition more complex and consequently more practical for application.
Another problem regarding the halakhization of the prohibition of
libel relates to the degree to which it gives solutions to the difficulties
that face the individual in the social situation in which he is to imple-
ment the law. Rules, in contrast to principles, are intended to give clear
normative guidance for actual life situations. Indeed, the Hafetz Hayim
does not simply present the rules, but also provides examples. As we
saw above, however, these examples relate primarily to the areas of
matchmaking and business, which are the most common scenarios for
the average person. It is these issues, rather than more public or more
innovative problems, that engage the Hafetz Hayim. From this stand-
point, we could characterize the approach of the Hafetz Hayim as ‘‘ retail
rulings.’’ As such, the halakhization of the prohibition of libel, which
was supposedly designed to provide answers to all situations in which
the problem manifests itself, falls short. First and foremost, it should
relate to situations in which it faces the classical tension between
freedom of expression and the right of a person to his good reputation,
which is a major topic in modern law. This theoretical dilemma, how-
ever, is foreign to the spirit of the traditional halakhah, which is a
‘‘duties talk’’ rather than a ‘‘ rights talk.’’ It is consequently foreign to the
Hafetz Hayim as well. Seemingly, one could try to anchor the freedom
of expression in his principle of ‘‘benefit,’’ which at times balances the
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225 Kaufman (supra, n. 2), 339.
prohibition of libel in his writings; after all, the freedom of expression in
modern culture is also not a categorical imperative, but rather a means
toward achieving ‘‘benefits.’’ However, if we examine the four ratio-
nales for freedom of expression in modern democracy, we find that for
the most part, they do not relate to the world of the Hafetz Hayim.
These rationales relate to freedom of expression as an instrument for
clarifying the truth, as a component of the self-actualization of the
individual, as a condition for the democratic process (namely, elections),
and as a means of letting off ‘‘societal steam [...] through the quiet path
of expression, rather than through the violent path of action.’’
226
Even if
each of these is a ‘‘benefit,’’ they relate to long-term outcomes on the
general societal level. In contrast, the considerations of the Hafetz
Hayim were short-term concerns relating to the level of the individual
(except for issues relating to the denunciation of heretics and evil
people). Consider the fact that the Hafetz Hayim, in raising the pos-
sibility of permitting libel in the case of one who stole from or damaged
another in the hope that it would pressure him to give back the stolen
object or compensate the damage, rejects this possibility on the basis of
his own reasoning, contending that this hope is ‘‘ very distant,’’ parti-
cularly in comparison to the more immediate damage that might be
caused by the libel.
227
If this ‘‘benefit’’ is considered ‘‘ very distant’’ in
his eyes, then how much more so would he find the ‘‘ benefits’’ con-
tained in the above rationales, which are less imminent and more
general, to be distant. There is no question that this approach is the
opposite of the modern-democratic perspective, which is expressed in
the well-known statement of Justice Louis Brandeis: ‘‘Sunlight is said to
be the best of disinfectants.’’
228
No less than this expresses the gap
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226 These four rationales of freedom of expression are taken from a decision of
Judge A. Barak in Kahane vs. the Board of Directors of the Israel Broadcast
Authority, PD (Israel Supreme Court Decisions) 41:3 (1987), 272-79.
227 Hafetz Hayim,Part1,10Beer Mayim Hayim 18.
228 L. Brandeis, Other People’s Money and How the Bankers Use It (New York,
1932), 92.
between the modern and the Jewish legal systems with regard to their
essential values and different ways of thinking: traditional halakhic
thought refrains, at least openly, from taking account of ‘‘ distant future
[events]’’
229
and systemic considerations, preferring to focus on directly
observable outcomes that are imminent.
230
And indeed, the approach of
‘‘retail rulings’’ is characteristic of the Hafetz Hayim, not just in the area
of libel, but essentially in all of his rulings, which prefer to focus on
questions that are pointed and traditional, taken from the world of the
simple man, and not on larger-scale and more novel questions.
231
This approach is reflected as well in the identification of the areas in
which the Hafetz Hayim wanted to systematize norms. The modern
tension between freedom of expression and the individual’s reputation
arises regularly in a variety of areas including journalism, academic
freedom, and artistic freedom, which applies as well to art criticism. The
Hafetz Hayim does not discuss any of these issues systematically, in
spite of the fact that some of them were already relevant to the Jewish
community in his time.
The Hafetz Hayim does not relate at all to freedom of the press in
his work on libel, nor does he refer to newspapers or other more
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229 This is the expression used by the Hazon Ish. See Hazon Ish on Oholot,
22:32.
230 This does not reflect narrow-mindedness, but rather a latent theological
position that expresses a lack of confidence in the ability of man to
consider the complex connections between means and ends, and, on the
other hand, a confidence in the Torah that already maximally integrates
these considerations.
231 Thus, for example, his magnum opus, the Mishnah Brurah,dealswith
issues of daily life, and refrains from dealing with new issues of tech-
nologies that were already raised in generations that preceded him, such
as riding on a train on the Sabbath, machine-made matzah, machine-made
tzitzit, or the use of electricity on the Sabbath. With regard to machine-
made matzah, his son reports that he ‘‘did not wish to express his opinion
on issues disputed by the authorities of the generation.’’ A. L. ha-Cohen,
‘‘Kitzur Toledot Hayav,’’ in KolKitveihe-HafetzHayimha-Shalem,supra,n.
95, vol. 3, 76.
advanced forms of communication. It is important to point out that the
question was clearly relevant at his time, for in the year that his book
was published (1873), a number of Jewish periodicals flourished in the
Russian Empire in Yiddish, Hebrew, and Russian. He reserved dealing
with them to later publications and letters, in which he expressed a
sweeping ban on reading newspapers.
232
There is no indication that this
ban excluded ultra-orthodox newspapers or other ‘‘ kosher’’ journals.
This prohibition was so extreme that even the Hafetz Hayim could not
maintain it. We know of quite a few instances from his later years in
which he wrote to Orthodox newspapers in Poland,
233
and of several
instances in which he responded to articles that had been published in
secular or Haskalah newspapers.
234
In general, he negates the value of
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232 See for instance his ‘‘Iggrot u-Maamarim,’’ in KolKitveihe-HafetzHayim
ha-Shalem,supra, n. 95, vol. 3, text no. 42 (p. 84); idem, ‘‘Dugma mi-
Darkhei Avi,’’ in KolKitveihe-HafetzHayimha-Shalem, article 82 (31).
233 Yoshor, supra,n.5,vol.II,760-70.
234 See his son’s account in ‘‘Kitzur Toledot Hayav’’ (supra, n. 231), 65-66; M. M.
Yoshor, The Hafetz Hayim – His Life and Works (New York, 1961), I:367
(Hebrew). I parenthetically point out at least one other incident in which
the Hafetz Hayim did not maintain a standard that he established in the
Hafetz Hayim: the book emphasizes the strict prohibition of publicly
embarrassing another individual (Hafetz Hayim, Negative Commandments
14 ff.), and establishes that when rebuking a person or demeaning a person
for a permitted outcome, it must be done privately in order not to em-
barrass him (Hafetz Hayim,Part1,4:5,3,Beer Mayim Hayim 1, 4, Beer
Mayim Hayim 15 and 23, etc.). Yet, the Hafetz Hayim’s son, R. Leib, tells
that at his Bar Mitzvah celebration, when he boasted a bit about the speech
that he had given, his father hit him in front of the guests and said ‘‘ agreat
[Torah scholar] will not come out of you, because of your words.’’ The son,
who recounted the story decades after it had occurred, indicated that it left
an indelible mark on him (A. L. ha-Cohen, ‘‘Dugma mi-Darkhei Avi,’’ in Kol
Kitvei he-Hafetz Hayim ha-Shalem,supra, n. 95, vol. 3, article 31, 9). It is
important to point out that this type of behavior was very rare, and is
inconsistent with the descriptions of the Hafetz Hayim that characterize
him as extremely careful about such things. It is also inconsistent with
Leib’s own description of his father’s almost-friendly relationship with his
children (ibid., 63:33, 25). Nevertheless, I see no room to question the
veracity of this story.
‘‘the right of the public to know,’’ even in absolutely public issues. For
example, the rabbinic prohibition for a judge to reveal to a defendant
after the trial that he advocated a minority opinion to exonerate
235
is
extended by the Hafetz Hayim to other public institutions and to non-
judicial processes.
236
Neither did the Hafetz Hayim relate at all to academic freedom or
art criticism, ideas that were completely foreign to his cultural world.
The tension between freedom of expression and libel arises most
strongly with regard to the study of history. Given the prohibition
expressed by the Hafetz Hayim to speak libel about the deceased
237
and
his very limited definition of significant outcomes that might justify
libel, not only is it clear that he would limit academic freedom in this
regard, but he applies these concepts even to biographies of the tra-
ditional type. Moreover, even when the rabbinic Sages saw fit to de-
nigrate a contemporary, the Hafetz Hayim was careful to make sure that
it not be extrapolated to create a more general permit.
238
Here too, the
fact that this approach cannot be taken for granted stands out on the
background of the sharp criticism of Rabbi Shlomo Zalman Kook, who
wrote:
Ignorant as I may be, I do not know what corroboration to the
prohibition one can find in a general event that was well known in
its time and that the Rabbis recorded for the ethical principle that
can be derived from it. If you do not take it this way, how can we
understand the existence of all the stories [containing denigrating
information about some figures] in the Bible, and what analogy is
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235 mSan 3:7.
236 Hafetz Hayim, Part 1, 2:11.
237 Ibid., 8:9.
238 When the Mishnah denigrates particular families for not revealing certain
trade secrets relating to the Temple worship, thereby causing them to be
forgotten (mYoma 3:11), the Hafetz Hayim, relying on his own reasoning,
recreates the special circumstances that must have existed in order to
justify mentioning them in a negative light (Hafetz Hayim,Part1,4,Beer
Mayim Hayim 11).
there between these [stories of general value] to personal matters
that are not well known, and in the present day?!
239
It is clear that the approach of Rabbi Kook values historical
documentation of matters that are not ‘‘personal events’’ because of
the fact that it is possible to learn lessons from them. As such, he opens
the door to a more or less free discussion of history, an approach that is
not found in the works of the Hafetz Hayim.
As for the freedom of artistic criticism, the closest that the Hafetz
Hayim comes to relating to it is his discussion of derisive reactions of
the audience to a sermon that they heard. As expected, the Hafetz
Hayim is stringent in this matter, forbidding critical reactions and
censuring those who express them.
240
He even includes criticism of a
craftsman who is incompetent within the parameters of prohibited li-
bel,
241
and if the comments threaten the livelihood of the craftsman,
they also constitute a transgression of the commandment that ‘‘ your
brother should live with you.’’
242
As I have noted before, he does not at
all try to deal with the fact that in the words of the Sages and in the
works of the medieval authorities (the Rishonim), there are quite a few
stinging remarks about the arguments of their antagonists.
243
It is
worth noting that the Hazon Ish, who revered the Hafetz Hayim and
was largely responsible for the elevation of his authority in the post-
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239 S. Z. Kook, supra,n.2,101.
240 Hafetz Hayim, Part 1, 2:12. H. Levi limits to some degree the sweeping
prohibition expressed by the Hafetz Hayim. See Levi (supra,n.2),Pa