Rabbi Katz has done it again. Only this time it is worse. He has repeated his vile and untrue accusations that it is widespread for Lakewood poskim to pasken that גזל עכו”ם is permissible and hence such גזילה is widespread in the community. He has repeated his wild theory that this is because they are stuck on some psak in the past that says that it is mutar. This is because, in his mind, they have a fossilized approach to halacha. Having found their Rishonim (who say it is assur but still…), they are now impervious to any changes both in their environment and in the halacha that were established at the time of the Rishonim. This is all a figment of his malicious imagination.
To condemn an entire community, as if they are all busy setting up shell companies, funneling money through relatives and the like in the secular press – that is beyond the pale.[1] To do it without substantiation is a malicious, libelous accusation. Yet, he claims in his response to me that, “It was merely the musings of a soul that perpetually searches for divine truth that, on the surface, seems elusive and out of reach.”
The reason I am addressing your remarks (now for the second time) is not because of anything personal. We have never met. It is because you did great damage. You attacked an entire Torah community to a secular audience and an audience that includes many non-Jews. In the end of the day, they will not make the fine distinctions you wish to make. They will all be turned against Torah. I am not sure whether that damage can be undone. This is serious stuff.
I feel constrained to address your remarks in the hopes that you won’t ever do this again. I hope you understand and respond accordingly with your own regret and teshuvah.
This is now the third time that Rabbi Katz has brought up such issues. In an earlier article, he accused the Torah world of being “small, purist, and exclusionary.” Rabbi Katz felt that this awful indictment needed also to be delivered to a predominantly secular Jewish and non-Jewish readership. (Again in The Times of Israel). And this from a man who can only dream of doing as much outreach to the non-Orthodox world and teach them as much Torah as the “exclusionary” targets of his vile.
But Rabbi Katz’s העזת פנים is not done. He states further in that article that “My deep love for the Jewish community forces me to cast my lot with the second group (who are open, inclusive, and creative.” So, Rabbi Katz is now the outreach man! Beware of those lovers of the Jewish community whose poisonous pen they direct against just those they should feel the most love for!
Back to Lakewood. Rabbi Katz’s footnote purports to show that the positions of many Rishonim and Achronim are the basis for allowing Lakewood poskim to posit that gezel akum is permissible. Yet not a single source he quotes says that it is mutar. They all say clearly that it is אסור. How did he get it so wrong? How did he manage to come up with: “The authoritative status of the lenient opinions towards gezel akum has a very strong basis in halakha, it is a view held by many of the classical Rishonim and Achronim”?! and “An unadulterated read of halakha may in fact permit this kind of cheating. Many poskim assert that gezel akum (stealing from idolaters) is technically mutar.”
To understand how much poor scholarship went into the footnote, you can read the Appendix at the end of this article where I show that R. Katz’s “learned” presentation is at best irresponsible scholarship (especially for a person serving as Chair, Department of Talmud and Director of the Lindenbaum Center for Halakhic Studies at Chovevei.) And at worst, he aggravated and caused a Chillul H’, a most serious transgression.
Rabbi Katz, without retracting anything he wrote in the first Lakewood article, now writes that what he meant by saying stealing is “technically” permitted by many Rishonim and Achronim was that, according to them, this was not the סיבת האיסור. (He doesn’t quite manage to get those words out, but that is his intent.) Now remember that Rabbi Katz was writing to a secular audience. So, I showed his original sentence to some students of mine and asked them what they thought the author meant. All of them said the same thing. “Technically” permitted means that it is permitted but is not in the spirit of the law. But that is not what those commentators Rabbi Katz quotes in his footnote say! They say it is forbidden because of חילול ד’ – as a Torah prohibition, or מדרבנן, for various reasons. Rabbi Katz, you are being dishonest when you communicate something which clearly means one thing, and then, when you are caught on that, say that it means another. You are being dishonest if you don’t clearly retract the fact that you stated “An unadulterated read of halakha may in fact permit this kind of cheating” and instead try to fudge it. (I have shown in the Appendix how poor this attempt is.)
Anyone reading this would understand that essentially the איסור is only a חומרא. But Rabbi Katz again means by this that the סיבת האיסור is not לא תגזול or לא תעשוק. The underlying reason that Rabbi Katz plays with acceptable definitions is beyond exploration right now, but it reflects a part of a radical new approach to Judaism that is not within the consensus. To do this, he needs a new vocabulary. Torah Jews are now branded as “originalists” by R. Katz’s slight of pen that goes a long way to reveal the Open Orthodox movement’s agenda.
But it gets worse. Because, according to Rabbi Katz, if the סיבת האיסור of גזילה is because of חילול ד’ (or if it is דרבנן) then “it is not considered prohibited stealing and therefore one only needs to refrain from doing it for secondary reasons.” The Gra says that the prohibition of stealing from a non-Jew is because of חילול ד’. Ah! He does not say that it is because of the prohibition of stealing. But actually, חילול ד’ is worse than the prohibition of stealing. Stealing is a straight לאו. The Rambam states that we receive atonement on Yom Kippur for a straight לאו. But for חילול ד’ we only get a final כפרה upon our death.
And what, Rabbi Katz, will you do with the Tosefta which says that stealing from a non-Jew is WORSE than stealing from a Jew, because of the חילול ד’ involved!
Rabbeinu Bachaya explains that when one steals from a fellow Jew, his fellow Jew blames only him, not G-d. But when one steals from a non-Jew, the non-Jew questions the entire faith of the Jewish people as well as their Torah. (Similarly, one who does not return a lost article to a non-Jew in a place where the majority population is Jewish will cause the non-Jew to say, אין אמונה בישראל.) “Secondary reasons,” Rabbi Katz?
The ספר חסידים tells us that the גדולים wrote that they have seen with their own eyes that those people who gained from the mistakes of non-Jews did not succeed and lost their possessions as well. By contrast, those who were מקדש שם שמים and returned טעות עכו”ם became successful, affluent, and left much wealth to their descendants.
In contrast, according to R. Katz, the license to steal is rooted in a sense of superiority to the non-Jew. How could any honest reading of these sources lead to that conclusion?
I suggest that R. Katz go and read the Shaarei Teshuva, beginning of Shaar Gimmel where he talks about the implications of disobeying a rabbinic mitzvah.
The Ramban writes on Chumash about the reasons for the mitzvos in general (to מתקן our own midos, etc.). According to R. Katz, when, this shows a disdain for our fellow Jew, for the סיבת האיסור is not for the intrinsic value of the Jew we are giving to, but rather for our own benefit. Similarly, all the mitzvos relating to צער בעלי חיים. According to the Ramban, it is not because of the intrinsic worth of the animal but rather to develop our sensitivity towards the animal. According to R. Katz, God is introducing a moral insensitivity to the animal world.
Rabbi Katz, let me ask you a question. The Gemorrah cites two לא תעשה’s to prohibit גזילה – לא תגזול and לא תעשוק רעך. These overlap, though the Gemorrah already discusses their possible differences. There are also potentially two עשה’s involved as well. לא תעשוק רעך prima facie excludes non-Jews, because it says רעך. לא תגזול doesn’t. Would we then say that לא תעשוק teaches us that non-Jews are inferior (since there are places where the two don’t overlap) while לא תגזול teaches us the opposite? Clearly, no-one can learn Gemorrah with this kind of philosophizing and come out with the right conclusions. In fact, I could write a whole book on the absurdities that would arise from such an approach.
The distortions emerging from Rabbi Katz’s approach arise because he came with an agenda. He shot an arrow and then proceeded to draw the target by looking for “proofs” that would back him up. This reminds me of the early Conservative writers. They would decide something like, “It is permissible to drive to shul on Shabbat.” Sure enough, someone would then go and write a detailed teshuvah with a lot of sources to show just this. Of course, we know that this was false scholarship; that the conclusions did not emerge from a reading of the sources. But we knew what target they were going to draw in advance!
With that in mind, let’s repeat R. Katz initial assertion: “An unadulterated read of halakha may in fact permit this kind of cheating. Many poskim assert that gezel akum (stealing from idolaters) is technically mutar.”
The problem that R Katz is facing is that no one, not one Rishon, says that such stealing is mutar. And the pashtus of the majority of them is that it is an איסור דאורייתא. Moreover, the entire שלשלת ההלכה from the time of the Shulchan Aruch pasken that it is assur – the Mechaber, the Rama, the Shach, the Nesivos, the Gra, the Sma, the Chacham Tzvi, the Aruch HaShulchan – all the discussion is only about what this or that Rishon holds the סיבת האיסור is. And it is clear from the Shulchan Aruch, the Gra and others that this is an issur Deoraaisa. (See Appendix for full discussion.)
So, Rabbi Katz is making a fantastic claim about Lakewood rabbis permitting such a thing. He is saying that they made something up – here are his words: “It is also true that the opinions that believe that gezel akum is “technically” mutar have normative status in my native community (the community in which I grew up),” and “The refusal by the poskim to emphatically promote the stringent opinions that prohibit gezel akum is undoubtedly informed, at least partially, by philosophical attitudes about “others” and theological notions about the immutability of halakha.”
According to R. Katz, the Lakewood poskim rely on a תמיה-dik Rashi, the dochek פשט of the Kesef Mishneh on the Rambam, the Bach on the Tur, etc. – all not accepted by the mainstream שלשלת הפסק (see Appendix below). But, even these approaches say that stealing from a non-Jew is prohibited. According to R. Katz, since they don’t say that such stealing is prohibited as a Torah prohibition of לא תגזול, “and therefore one only needs to refrain from doing it for secondary reasons”, like חילול ד’, the Lakewood rabbanim are able to take the leap and say thatגזל עכו”ם is מותר altogether! After all, “There are those who say “technically” gezel akum is mutar, meaning that it is not considered prohibited stealing.” Even Rabbi Katz’s weak scholarship cannot make that leap without a sinister motive.
The tragedy of all this is that I suspect Rabbi Katz is capable of learning up these sugiyas properly. Rabbi Katz wants to get to, “They do not believe that psak is a process whereby nuances are crystalized over the course of many years” as if there is no שלשלת הפסק amongst these poskim. How sobering to see what happens when someone with an agenda applies that to לימוד התורה!
So far off the edge has this man gone that he claims not to know what I am talking about. “I, therefore, am at a loss when it comes to making sense of your implied critique…” Let’s see, a man claims that “Chareidi poskim,” (no longer just Lakewood poskim) “many of whom are resolutely wedded to an originalist approach to halakha on this matter,” are simply inclined to ignore a clear and undisputed psak of the Shulchan Aruch, because of a new label. They are “originalists!”
Having failed as a למדן, Rabbi Katz tries his hand at sociology. This is his attempt. He is going to make a vicious claim against an entire community and its poskim – that they widely support גזל עכו”ם. He won’t be able to bring a shred of evidence, because it is all kept oral. But should someone defend them, this will be so baffling to him that it must be that said person doesn’t know the community well enough. All those tens and tens of beautiful families I know in Lakewood, it is all a front. Secretly, they steal from goyim! In his words about me:
“At the same time, I am surprised by your seeming ignorance as to the normative nature … of the opinions that say that gezel akum is “technically” mutar.”
And….“[your] dislike of liberal Orthodoxy made it impossible for you to take my words at face value.”
Rabbi Katz’s evidence? None. Remember what happens to you if you ask for any: You are out of touch and biased. Remember that all this is enough for Rabbi Katz to publically condemn the Lakewood community (and all those of their ilk) to a secular and non-Jewish audience!
A miniscule percentage of a certain tzibur sins. Its poskim and rabbanim publically condemn their behavior. But you, Rabbi Katz, know that what was behind this was a particular approach to psak, an entire approach, backed up by it leaders and thinkers and you go public.
Rabbi, in the social sciences, there is a rule. You can have a hunch and all sorts of theories. But if you want to go public you had better have evidence. Otherwise, keep your hunches to yourself.
Okay, so Rabbi Katz is not a lamdan. He is certainly not a sociologist. So, perhaps he is a philosopher.
“‘How could people with such high religious standards commit these inexcusable crimes’ we wonder. The jurisprudential philosophy of this community could at least partially explain this conundrum.
“The seemingly blasé attitude towards stealing from the government is partially informed by the belief that halakha is static; that its meaning and application do not at all change through perpetual clarification and constant crystallization.”
The approach to Judaism of the Lakewood world is that: “allowing halakha to accommodate human moral intuition could jeopardize the absoluteness and religious supremacy of halakha.” is “an originalist approach toward halakha.” What happened in Lakewood, “plausibly accentuates the pitfalls of such an approach to psak.”
The solution? Rabbi Katz wants “halakha to accommodate human moral intuition.” Rabbi Katz stays clear of uttering anything more than abstract babbling on the subject, his only example seems our case at hand, i.e. that he with his moral intuition was able to understand that the halacha says that גזל עכו”ם is אסור but the Lakewooders, who lack this, couldn’t figure this out!
But we already know of many other instances of Open Orthodoxy, of which R. Katz is a leader, where people use their moral intuition: on intermarriage, on whether the miracles of the Exodus really took place, and many others. For Open Orthodoxy, intuition is a referee for influencing what should or should not be Torah. In this light, R. Katz’s pathetic attempt to learn a sugiya is directly guided by his moral intuition.
So, Rabbi Katz is not a lamdan. He is no sociologist. And now we see that he is no philosopher. What he is – a spokesman of a dangerous and distorted approach to Judaism – is something outside of the Torah consensus. Rabbi Katz states that I misrepresented his “understanding of the halakhic process” – a view which he maintains is “held by many, perhaps even most, Modern Orthodox thinkers.” This is outrageous. Rabbi Katz, let me be clear. There is no daylight between myself and my Modern Orthodox colleagues on everything that I have written above.
You have damned the people of Lakewood. You have damned their rabbis. By implication you have damned the great rabbis who guide those rabbis in turn. You have done injustice to an audience that will react by feeling further away from Torah as a result.
Instead of your libelous and condemnatory remarks about the Lakewood community, here are the facts. The community is overall shocked. Their rabbanim condemned the theft. They all adhere to the Shulchan Aruch/Ramah who state unambiguously that it is forbidden to steal from a non-Jew. Those who stole represent a minuscule percentage of the population.
“An unadulterated read of halakha may in fact permit this kind of cheating. Many poskim assert that gezel akum (stealing from idolaters) is technically mutar. And almost all of them believe that cheating idolaters is allowed.” (R. Katz, first article)
Rabbi Katz has climbed down from his tree on טעות עכו”ם. Nor did he mention in his second article his first sentence quoted here, the most problematic one, that “an unadulterated read of halakha may in fact permit this kind of cheating.” But the whole point of both his first and second articles was that Lakewood poskim pasken that גזל עכו”ם is מותר based on these opinions.
In his second article, Rabbi Katz redefines what he means by “technically mutar” i.e. that if the סיבת האיסור is not because of לא תגזול then it is technically מותר. But what Rabbi Katz has inadvertently done – and he was forced to do so by the halachik facts – is to make his claim even more absurd. Now, the Lakewood poskim, according to him, pasken that גזל עכו”ם is mutar even though all opinions say that it is assur. In short, Rabbi Katz cannot make any opinion say what he wants them to say.
But I was bothered by something else as well. Despite Rabbi Katz’s impressive bekius, he presents an accumulation of errors – be they of judgment, or proportion, or selectivity – which together misrepresent what the mainstream Torah opinions say.
First, one has to get the sugiya right. The issue is that some Lakewood families are accused of stealing from the government. True, that is an issue of גזל עכו”ם. But it is also an issue of דינא דמלכותא דינא, which he failed to mention at all. And it is much worse than cheating on taxes. The three greatest poskim of our age, Rav Feinstein, Rav Shlomo Zalman Auerbach and Rav Shalom Elyashiv all paskened that it is prohibited to cheat on your taxes in America. The question of permissibility in our case does not begin. Actively soliciting undeserved moneys from the government is much worse than stealing on your taxes. So let me repeat, since R. Katz did not get my comment the first time around: No posek – none – allows what the couples in Lakewood are currently accused of.
Secondly, one has to quote what is the main highway of the sugiya before one begins quoting unusual pirushim. There are two main sugiyas in the Bavli on גזל עכו”ם of which the sugiya in Bava Kama (דף קיג עמא-ב) is the עיקר. We pasken like Rebbe Akiva there who says that גזל עכו”ם is אסור. The vast majority of the Rishonim say that גזל עכו”ם is Deoraaisa. This was lacking from Rabbi Katz’s presentation.
Thirdly, you have to avoid mixing up Rishonim and Achronim and quoting them all as one cholent. The Achronim are responding to the Rishonim and they do not have equal status. Once again, the vast majority of Achronim – the Mechaber, the Rama, the Shach, the Beis Shmuel, the Nesivos, the Gra, the Sma, the Chacham Tzvi, the Aruch HaShulchan and many more – say גזל עכו”ם is Deoraaisa.
Fourthly, if a Rishon has a פשטות of understanding according to the majority but there is also some Acharon who understands this Rishon in an unusual way, then one has to lay out the main way of understanding that Rishon before quoting the unusual פשטים. One has to know what is a דוחק pshat and what is not. This would apply to the Bach’s understanding of the opinion of the Tur as being only דרבנן – which he only made because otherwise he thought that the Tur contradicts himself. But this is not the normal way we understand the Tur. And, in any case, the Tur is not talking about the איסור of גזילה there, he is talking about לא תעשו עול במדה ובמשפט.
This would also apply to the Kesef Mishneh’s understanding of the Rambam. Firstly, it is disingenuous of Rabbi Katz to quote the Bach and the Kesef Mishneh as part of the same proof, because it is pashut to the Bach that the Rambam holds that גזל עכו”ם is דאורייתא (which is what forced him to say that the Tur must hold otherwise) whereas the כסף משנה says that the Rambam holds that גזל עכו”ם is דרנבנן.
The Kesef Mishneh we know as Rav Yosef Karo. In his Beis Yosef he seems to hold that the Rambam holds that גזל עכו”ם is מדאוריייתא and he certainly doesn’t give his pshat in the כסף משנה any credence in his psak in the Shulchan Aruch. It does not seem consistent with other places in the Rambam. And it is not consistent with how most other meforshim understand the Rambam.
Rabbi Katz does something else here, subtle and manipulative. The opinions that say the Rambam holds that גזל עכו”ם is דאורייתא are not mentioned by name at all, whereas those who hold that the Rambam says that גזל עכו”ם is דרבנן are quoted in detail. This focuses one’s attention on the latter and doesn’t allow one to properly asses the issue.
Then there is Rashi, one of only two Rishonim who say clearly that גזל עכו”ם is דרבנן. (The other is the Ran.( The Gra says that Rashi is a תמיה. The שו”ת חוט המשולש agrees with the Gra. In fact, the חוט המשולש goes further. He rejects the understanding of the Maharshal on Rashi – and shows that learning like this would lead to this Rashi contradicting himself in Bava Kama. He proves that Rashi in Sanhedrin only meant to say his opinion according to one מאן דאמר.
The Maharshal paskens like Rashi. But the words of the Maharshal are seen as תמוהין מאד in the eyes of the חכם צבי, (not just האריך להקשות as Rabbi Katz downplayed it) and he left out the reason that the Maharshal was so difficult to the הר צבי. And yes, the מהרש”ל has his defenders, but once again, the balance of the presentation did not reflect the overall balance of opinions fairly.
The custom is, Rabbi, to quote exact sources. Not just the דף but the עמוד. Not just the עמוד but the דברי המתחיל. In an exceptionally long תשובה in particular, you need to cite the דברי המתחיל of the paragraph. If the language of the quoted source is not crystal clear you need to bring it and comment what the דיוק is. Your piece is so full of these problems – sometimes with just the person quoted and no source at all! – that it is not only poor scholarship, but it is designed to make it extremely difficult for anyone to independently verify what you are saying. This approach is not transparent.
One also has to understand and explain each quoted source properly. Rabbi Katz, the Minchas Chinuch is coming to מחדש a distinction between גניבה and גזילה – and hence what he says about גניבה cannot be used for גזילה.
Most notably you were misleading about the Meiri. The Meiri makes it clear that even the opinion in the Gemorrah which we don’t pasken like, who says that גזל עכו”ם is מותר, would agree that today (in his time and onwards) it is an איסור דאורייתא. But you wrote “”וכן הוא דעת הר”ן והמאירי שם, i.e. that the Meiri holds that גזל עכו”ם is only דרבנן. The Meiri only held that for עכו”ם mamash, who lived in the time of חז”ל. Astonishingly, he says that we are even חייב in השבת אבידה to non-Jews of our time. He states that: