In Defense of Public Policy (Derashah Ki Tisa 5769)

Science fiction revels in the “What if” – as in, “What if Lincoln had not gone to Ford’s Theater on the night of his assassination?” “What if Napoleon had not invaded Russia in 1812?” and so on.

The Torah’s key moments are likewise open to an imaginative re-write. From “What if Adam and Chavah had not eaten the fruit,” to “What if Moshe had not struck the rock,” we can ask all sorts of open-ended questions and speculate about the answers.


Our own parshah presents a fascinating “What if” possibility, regarding the עגל הזהב, the Golden Calf: What if Aharon had said No?

As Ibn Ezra explains the story of the עגל, the Jews asked Aharon to create a physical symbol of Gd’s presence. Aharon saw nothing halachically prohibited in this request, and so he cooperated – only to have the project hijacked, the calf turned into an idol.

In our alternative universe, what if Aharon had looked at the proposed Calf not through a Halachic lens, but through a Public Policy lens? Aharon says to himself, “Hmm… where is this going?” And Aharon refuses. The nation is angry; they call him a machmir. They accuse him of being overly suspicious. They decry his “slippery slope” argument.

But, in the end, Moshe comes down from the mountain to find a righteous nation, instead of a nation of idolaters. The Luchos are never broken. There is no need for a central Mishkan, or even a central Beit haMikdash. Every city becomes a Yerushalayim, every home a Beit haMikdash, every table a true altar for Gd. The course of Jewish history, down to today, is forever changed.


Aharon’s Policy decision to permit the Calf changed Jewish history – and similar decisions, by other critical figures, have done likewise.
Dovid haMelech, King David, actually went both ways on matters of Policy:

• Dovid haMelech saw Batsheva, and fell for her. He calculated that Batsheva was Halachically permitted to him, and he had her brought to him, regardless of obvious Policy considerations.The result was Divine wrath and severe punishment, affecting both Dovid and the nation.
• On the other hand, later in his career Dovid haMelech had the opportunity to confiscate property using his royal powers. Halachically, he could have done it - but he declined because it smacked of theft, and he was praised for the decision.

The course of Jewish history has changed, and changed again, because of such Policy choices. Beyond Halachah, good Policy decisions have aided us, and bad Policy decisions have been our ruin.


What is Policy?

We often describe “Halachah” as a system that encompasses all of Jewish life, but it does not cover many situations:

• Within the bounds of Halachah, I could spend all day, every day, surfing the Internet, never working, and living off of tzedakah.
• Within the bounds of Halachah, I could purchase minority shares in companies that sell weapons to terrorists.
• Within the bounds of Halachah, I could, to cite a rabbinic mentor of mine, let my teenage daughter hold a co-ed slumber party.

This is why we need to establish Policy beyond Halachah, studying our values and using our human intuition and predicting the results of our actions, to chart a future course.

• Policy choices can be constructive, recommending that we do certain things.
• And Policy choices can be restrictive, recommending that we not do certain things.

Policy was what told Dovid haMelech not to confiscate property.
Policy would have told Dovid haMelech not to take Batsheva that way.
And Policy would have told Aharon not to create the עגל.


The Torah empowers our Jewish leadership to make these Policy decisions, to think ahead and plan and legislate for the sake of the community.

The Torah commands our sages, “ושמרו את משמרתי, You shall guard My preserve,” and the gemara explains, “עשו משמרת למשמרתי, Make a (rabbinic) preserve beyond My (biblical) preserve.” This is the source for rabbinic law.

The Torah instructs a rabbinical court, “ובערת הרע מקרבך, You shall eradicate evil from your midst,” and a properly certified court may take measures it deems appropriate to protect society.

Chatam Sofer, as we will discuss in the class this afternoon, argued that sages who calculate Policy actually possess רוח הקודש, a prophetic inspiration which guides them in their decisions and guarantees they will not err. Others suggest that Policy-making is a more earthly process, and that sages can, indeed, make mistake, just like anyone else. However we understand it, our rabbinic leadership is charged with the responsibility of trying to create Public Policy.


But the Torah does not stop with sages – it also places responsibility for Personal Policy on the shoulders of every Jew - every individual and every family.

Ramban explains, when the Torah says “קדושים תהיו, You shall be holy,” that is a sacred charge for every Jew: “קדש עצמך במותר לך, Restrain yourself even from that which is technically permitted, in order to sanctify yourself.”

Chatam Sofer put it more positively, writing, “He who would achieve piety before his Creator will be recognized by his deeds – by those practices which he originates for the sake of heaven...”

We make policy for ourselves, both the Ramban’s restrictions and the Chatam Sofer’s positive institutions, in order to sanctify ourselves. This is our responsibility, and this is our privilege.

HaShem did not tell Aharon and Dovid what to do, and HaShem does not tell us what to do, HaShem neither legislates against every possible danger nor institutes every possible piety. Rather, HaShem offers us the leeway to make a reasoned calculation, and to create sanctity for ourselves.

(We are celebrating an Engagement this Shabbat, so here I discussed the couple, and the role of Policy in shaping a Jewish home.)

-
Notes:
1. For Dovid's restraint, see Bava Kama 60b. For the empowerment of courts to make policy decisions, see Moed Katan 5a, Yevamot 90b and Sanhedrin 81b for various examples.

2. Chatam Sofer's remarkable statement about personal originality is part of a great teshuvah, in 1: Orach Chaim 197. His comments on prophetic policy-making are a major theme in his derashot. See the work of Maoz Kahana, Tarbiz 76:3-4 (2007): 519-556. (Hat-tip to Menachem Butler for highlighting this article.)

3. Of course, in that alternative Eigel universe, the nation might simply have killed Aharon as the midrash explains they killed Chur. But you get the point.

4. Also re: the Alternative Eigel universe: The replacement of Mishkan for Eigel is Rashi's stance; Ramban disagrees.

5. Further re: the Alternative Eigel universe: Without a Beit haMikdash Yerushalayim might still have held primacy as the site of the Akeidah, but I wonder what practical role it would have played.