Sunday, November 24, 2013

The Hellenists or the Maccabees – Which side are we Open to?

The story of Chanukah is well known and beloved by all. It is a thrilling tale of the fight of the Jews against the Syrian-Greek oppressors, who oppressed us and tried to take our religion away. The heroic Maccabees fought the military occupation and miraculously won. Upon entering the Temple they found only one completely pure flask of oil and it lasted for eight days. Accordingly, we light candles, eat latkes, spin dreidels, give some gifts, say Al Hanissim, and . . . that's about it. To quote a popular formula regarding all Jewish Holidays, “They tried to kill us. We won. Let's eat.”

Of course, our Sages found far more depth in the story, and there is much commentary about why they instituted this longest of Jewish Holidays (There are really only seven days of Pesach, and Succot & Shmini Atzeret are separate holidays). It is a Yom Tov that is full of meaning and relevance to those who take the time to look a little bit below the surface. To illustrate, we really need go no further than the Rambam's famous formulation “The Mitzvah of Chanukah is exceedingly beloved חביבה היא עד מאוד" (Laws of Chanukah 2:14). Surely the Rambam was not referring to latkes and dreidels, but pointing to something far more important.

If one looks then at the sub-text of the story, it is clear that the main message of Chanukah that is important to us is not centered on the struggle between the Jews and the Syrian-Greeks. There were many military battles between the Jews and their neighbors (fought by the Shoftim, Kings, etc) that are not eternally memorialized with a Holiday. Rather, the struggle that made Chanukah eternally important was the battle between two groups within the Jewish people: The mainstream Jews and the Hellenists.

The Hellenists felt that the mainstream Jews were backward, stuck in the past, close-minded to all the wonderful new ideas that Grecian culture represented, which were in fact amazing and mesmerizing. Perhaps no other nation in the history of Mankind has so influenced the art, poetry, architecture, math, science, government, theater, philosophy, and sports of the world as did Greece. To be open to Greek culture was to be modern, progressive, in step with the times, and current with the latest and greatest notions of ethics, morality and freedom. How much more exciting was it to subscribe to this great new modern culture than to the (at the time) over 1,000 year old dusty Judaism! If you were serious about being a modern Jew – you wished to be a Hellenist!

The Hellenists ultimately broke completely with Torah and tradition, and openly maligned and rebelled against all that was Holy to the Jewish people and Torah values. They became allies of the Greeks in defiling the Holy Temple and abusing the Torah, and engaged in activities such as reversing their circumcision, eating pork, bowing to idols and even became self-hating enough to side with the enemies of Israel. Hellenism threatened to annihilate the Jewish world through assimilation in ways tyrants tried but could not do by force, as they succeeded in influencing between one third and one half of the entire Jewish people to join them.

Although the Maccabees won the battle against the Hellenists in the Chanukah story, it is questionable whether they won the long term war. The problem of Hellenism continued throughout Jewish history until our day, albeit in different forms and under different names. The basic premises of the Hellenists were later adapted by the Saducees, later by the Karaites, and closer to our time, by Reform. Although there were clear differences between these groups, the common themes of an over-emphasis on assimilating with the predominant culture, the negating of the primacy of traditional Torah values, the denigration of the authority of the Sages in determining Jewish law, and the self-hating shame with which they looked at the parts of Torah and Halacha that they found distasteful are very clear.

I took a particular interest this year in trying to understand how Hellenism began. Most sources point to the very good relations that were established between Alexander the Great and Shimon HaTzaddik as a starting point. Although it brought much good to live under the benign rule of a friendly government, there were those who were overly impressed by the allure of Grecian culture as above, and began measuring their values, including their Torah values, by what was consistent with the new, modern, progressive, “scientific” ways of thinking, instead of having Torah and Halacha remain the yardstick by which to measure how much of secular values were appropriate.

Many of the early Hellenists did not outright reject the Torah and Halacha . . . they merely wished to modernize it and bring it up to contemporary standards. They did away with what was no longer in vogue, or politically correct, and emphasized new innovations that were in keeping with Greek, as well as some Jewish, values. They were an amalgam of Torah and modernity, refusing to be bound by precedent, and focused more on what they perceived would be relevant to the young, searching Jew.

Of course the story of Chanukah is a story of the rejection of those notions – of the idea that Judaism had to bend to the times and to be in step with Western values; that the Torah and Halachah had to be remade to that conform to modernity. By contrast, the Maccabees stood for Torah as the golden standard to measure all new ideas. We must not seek to conform Torah to modernity; modernity must fit with Torah values, or be rejected.

This lesson of Chanukah is thus as timeless as it is vital.  We must forever be on guard of knowing when, to what degree, and how much we can take in contemporary values, as we strive to forever keep the Torah as our golden standard, as our light in the darkness of the surrounding world. Particularly so for those of us who do not take a blanket rejectionist stance vis a vis' the secular world we live in, the light of Chanukah reminds us to keep Torah as our ultimate standard by which all else must be judged.

This brings me to a painful topic; the developing schism between those in the Orthodox world who have traditional respect for the Halachic process and precedent on the one hand, and those, particularly those associated with Yeshiva Chovevei Torah and Yehivat Maharat, who unfortunately seem to feel that it is their sacred duty to break with tradition on the other hand.   Their modus operandi is to espouse Liberalism as the highest value, and to twist the Halacha to fit their pre-conceived objectives by making any possible argument that they are still within the Halachic process, relying on minority positions that have clearly been rejected by most Poskim, or by new readings into fundamental matters of faith that will “prove” their contentions. As long as they can be seen in the eyes of their adoring public as progressive, and to be upholding the causes of Liberalism against the outmoded traditionalists, they will not stop from creating new Halacha and rejecting traditional norms.

And yet, they bristle when their fealty to Orthodoxy is called into question.

Let me clear – I am not accusing practitioners of Open Orthodoxy of being Hellenists – yet. The leadership of those institutions is made up of passionate Jews, some of whom I have met and know, who consider themselves deeply committed to Torah and Yirat Shamayim. I contend, nevertheless, that they have gone much too far on the slippery slope that is leading away from Orthodoxy, and that if they do not reverse direction immediately, it may be too late before they lead thousands of our sisters and brothers towards the road that can only lead to a modern form of Hellenism.  There is much written on this topic that I am in full agreement with . . . please see here, here, and here for starters.

May the leaders of Orthodox world find the way to continue to proudly represent traditional Jewish values while engaging with the contemporary world and the many Jews that are enmeshed in it, and to stand firm in the face of the modern-Day Hellenists that plague our communities.

Happy Chanukah

Thursday, November 7, 2013

When There Is A Legal Will, There Might not be a Halachic Will

It is apparent in the parshiyot of Bereishit that although the Patriarchs were concerned with many matters, one thing, above all, was crucial. They were determined to pass down to future generations the Bircas Avraham – the blessing that Hashem gave to Avraham Avinu – that of a special relationship between the Almighty and the Jewish People, and between the Jewish People and Eretz Yisrael. This desire is considered a crowning achievement of Avraham:

For I [Hashem] have known him [Avraham] because he will instruct his 
children and his household after him, that they should keep the way of Hashem 
to perform righteousness and justice, so that Hashem will bring upon Avraham 
that which He spoke concerning him. [Bereishis 18:19]

This desire – to pass down our legacy to our children – is something that we think about more and more as we get older, which we certainly ought to. In our society, the main legal vehicle for formalizing the way that legacy is passed down is generally by writing a will. There are three main types of wills that every person should have, in order to ensure that their intent and desire is carried out by their children and heirs. These three types are:

  • Ethical Wills – a document in which one communicates their hopes and dreams for the next generation. This is the type of will that the Patriarchs implicitly provided for their children.
  • Living Wills – These are documents in which instructions are laid out for decisions regarding health care should a person be incapacitated from making those decisions themselves.
  • Regular Wills – a document that provides instructions for how one's estate and personal effects are to be distributed after their life ends.
    (In the case that there are minor children involved, it is also very important in that a legal guardian can be appointed and methods can be put in place for providing for one's children should the parents G-d forbid die while the children are still minors.)

Each of these areas should have an article unto themselves to describe even the most basic fundamentals. In this essay I would like to deal with regular wills, and to emphasize the importance of dealing with the Halachic requirements of a will which many people are not aware of. I hope to get to the other types of wills in a subsequent essay.

A will is a document in which a testator (person wishing to give instructions as to the disposition of their assets) executes a written record of all of his/her wishes, which is signed with appropriate legal formalities, and then set aside in a safe place until the end of the testator's life. The will has no legal significance until the testator's death, after which it springs into irrevocable legal effect, which can not be changed. And this is the source of a very great Halachic problem.

The problem we shall describe is only one of several Halachic problems. Among the most significant problems are the following:

According to the testamentary system set out in the Written Torah, there is no such thing as a will. The Torah sets out a system whereby a Man (who is the sole owner of his and his wife's possessions with few exceptions) is inherited by his sons (not his daughters unless there are no sons), and if the sons are not available, then successively by various paternal relatives. The wife's inheritance is limited to the value of her Ketubah (generally understood to mean somewhere in the realm of $25,000 -$50,000). The sons do not receive equal shares; the Bechor – first-born son – receives a double portion.
Furthermore, there are considerations of how the testator's debts are to be paid, what bequests might be made for other persons and/or charitable causes, and what arrangements are to be made for minor children. The basic Halachic default provisions are generally not consistent with the way that most people today, including Orthodox Jews, wish their estate to be divided. Unless another Halachically legitimate way can be found to effect those wishes, one would be in Halachic violation if they do not follow these guidelines.

Of course, this is not a new problem, and various forms of a Halachic will, or “Tzava'ah”, have been proposed by Poskim throughout the centuries. Nevertheless, of course, people wish to have not only a tazva'ah enforcable in Bet Din, but a legally effective will that can be entered into Probate Court. And here is where the largest Halachic problem lies.

The problem is this. Under the laws of New York State (and every other state) a will is a worthless piece of paper, completely lacking in legal effectiveness, until the moment of death. The testator is completely free to change it, invalidate it, discard it as he/she sees fit. In fact that it why wills always begin with the claim of being the “last will and testament”; it is a simple way to invalidate any prior will, which is automatically invalidated by the writing of a later one. (One should still get competent legal help to make sure that the previous one is indeed invalidated). The point I am stressing is that the will takes effect only after death, not a moment before.

Under Halacha, however, one loses all rights to one's property upon death; all property that has not been given or sold before death automatically passes to the heirs according to the Torah scheme of inheritance, with no right of the deceased to direct any bequests whatsoever.

In other words, according to Halacha, bequests can only 
be made to take effect BEFORE death, 
while the testator is alive; after he/she dies there remains nothing for the testator to give

 By contrast, under NY (or any other state) law, bequests only be made AFTER death.  
The testamentary intent as expressed in the will has absolutely no effect and can be changed anytime inter vivos
(while the testator is still alive)

Thus a person who relies only on a will that is valid under NY law is in effect setting up a terrible situation for his/her heirs. For example, if a man dies and provides in his will that he wishes his property to go 50% to his wife, and the other 50% to be divided equally between his three sons and one daughter, and does nothing to make this halachically valid, he will be setting up a situation whereby the heirs will be engaged in theft if they follow this plan. Under Halacha, the wife is entitled only to the Ketubah, ans the estate is to be divided in four parts, with the eldest son getting two parts, the other two sons getting 25% each, and the daughter nothing. (If the daughter is a minor, her brothers would have a responsibility to provide for her basic care from their inheritance.) If the wife or daughter take under the will, or if the two younger brothers take more than their 25% share, they will be guilty of genevah, assuming that the deprived do not waive their rights.

It is thus crucial that when setting up a will there be a consultation with a Rabbi and/or attorney who is knowledgeable in Torah to make sure that it will be valid both in the Bais Din as well as the Probate Court. This expert can help advise about what should go into a properly executed will and Tzava'ah, as well as being knowledgeable about other forms of expressing testamentary intent, such as the many different kinds of trusts which may be more appropriate than a will for a particular individual.

I would be very happy to discuss these matters further with anyone who has an interest in making sure that they are providing for their heirs in a most beautiful way, both materially and spiritually .

Note:  This essay does not constitute legal advice.  In some jurisdictions it might be construed as a legal advertisement