Some time ago, I had a long talk with my only brother Dr. Jacques Lopes Cardozo, age 68 and two years my junior. We spoke about our early years, growing up in our parents’ home in the Netherlands. Although we were children of a mixed marriage (Jewish father, non-Jewish mother), we took a keen interest in Judaism. Our father was a very proud Jew, and our mother was raised in a strong Jewish cultural milieu in Amsterdam where she felt completely at home. If not for her “Jewishness,” my father would probably not have married her. In fact, our mother was in many ways more Jewish than some members of my father’s family who were halachically Jewish but completely disconnected. I decided to do giyur at the age of 16, and my mother followed suit many years later.[1] After 27 years of married life our parents remarried, this time by the same rabbi who officiated at my wedding three months later. Both chupot took place in the famous Esnoga, the Portuguese Synagogue in Amsterdam.
This put my brother in a very strange position. From then on, all members of his immediate family were Jewish, and while he did not have the halachic status of a Jew, he continued to feel very Jewish. This was, to say the least, an atypical Jewish family.
During our conversation, my brother referred to a particular Pesach seder that I conducted at our parents’ home when I was about 17. An incident took place that profoundly shocked him and caused one of the most painful moments in his life. Fifty years later, with great emotion, and tears in his eyes, he told me that he had taken a bottle of kosher wine to pour for our many guests. He felt very much a part of the Jewish tradition and immersed himself in this religious experience, wanting to participate fully. After all, those who had left the bondage of Egypt that very night and would cross the Red Sea a few days later were also his ancestors! But instead of realizing my brother’s enormous religious dedication to that experience, I snatched the wine bottle from his hands and told him he should not touch it since he was not Jewish, and that when a non-Jew touches the wine, according to Jewish law it could be cursed. The latter statement proved my complete ignorance. As a newcomer to Judaism, I had been told that the Halacha determines that non-Jews should not touch our wine, and I probably concluded that this meant the wine would be cursed. Our sources state nothing of the sort. The only thing indicated is that the wine is no longer permissible to drink (and according to some opinions it forbidden to derive benefit from it).[2]
My brother froze, and then sat down without uttering a word.
Now a dental surgeon of fame, and a man of great integrity, my brother told me that to this day he is deeply hurt by the incident and, although he forgave me for what I had done, he could not emotionally make peace with it. Not only because he considered himself to be very Jewish and could not imagine that this law would apply to him, but also because he could not believe that such a law would be part of this beautiful tradition called Judaism, which he dearly loved.[3] My gut feeling tells me that this incident played a huge role in his decision not to covert, though he came very close to doing so.
I wonder whether God will ever forgive me for the pain I caused my brother, and I am sure this was not the only time I hurt him. I can well imagine that there were other similar occurrences when because of my religious fanaticism I pained him deeply. He is a righteous person, and I can learn a lot from him.
Yayin Nesech
Surely some readers will argue that when I snatched the wine bottle from my brother’s hand, I did the right thing halachically. After all, this law appears in the Shulchan Aruch: One may not drink kosher wine that was handled by a non-Jew. This prohibition is called issur yayin nesech or, more accurately, issur maga nochri[4] – loosely translated as the prohibition of using wine that has been handled by a non-Jew, meaning the bottle is not only touched but moved as well.[5] The law applies only when the bottle has already been opened.[6]
The big question is: How did this law ever become a part of Judaism?
Looking into the history of this prohibition, we can clearly see that the reason why the initial Talmudic Sages forbade the drinking of wine after it was handled by a non-Jew is that most non-Jews of that time were idol worshippers.[7] This worship is identified with evil and immoral behavior, not much different from that of the Nazis, or the terrorists of today. In fact, the same law applies to a wicked Jew; we are also forbidden to drink wine that he handled.[8]
Protest against the Non-Jewish World
It is clear, then, that the motive for this prohibition was one of the great principles behind Judaism: protest. Protest against the kind of abomination that was an integral part of idol worship. The Sages wanted to ensure that Jews would never come close to this sort of behavior or to these kinds of people, and as a protest they forbade the drinking of wine that had been handled by them. It reminds me of the Dutch people who, after World War II, refused to have anything to do with Germans, or even bring German-made products into their homes. It was taboo.
But a law like issur yayin nesech should have no relevance to gentiles who behave morally and believe in the unity of God. In fact, this position has been alluded to by several Sefardic halachic authorities. And it should surely not apply to my dear brother who feels very Jewish, sincerely believes in one God, and is a most ethical person.
As is well known, the famous Rabbi Menachem ha-Meiri (1249-1316, Provence) already stated his opinion that non-Jews in the Western Hemisphere are moral people who have left idol worship behind them. He therefore concluded that many discriminating Talmudic laws concerning non-Jews are no longer applicable.
But at the time, I didn’t know the background of this law, and it seems that my teachers who taught me this halacha did not realize the history, the ideology, and the consequences of this prohibition in our days.
Defensive Halacha amd the Waiting Mode
But there is more. The famous philosopher, Talmudist and halachic expert Rabbi Eliezer Berkovits argues that over the last 2,000 years Halacha has become increasingly defensive.[9] It has had to deal with aggressive anti-Semitism, as Judaism and Jews were constantly attacked in the Diaspora. Under those circumstances, rabbinical authorities built many walls between us and the Gentiles. This was very understandable; it was the only way to survive.
But it also meant that Halacha became stagnant. It couldn’t develop naturally because it had to constantly look over its shoulder to make sure that Jews wouldn’t be affected by the non-Jewish world whose practices and ideologies might oppose Jewish ethical values. It had to ensure that in no way, neither directly nor indirectly, would Jews be influenced by or support non-Jewish idolatrous traditions and immoral acts. During all of these 2,000 years in exile, Halacha was forced into a waiting mode, in anticipation of redeeming itself when Jews would again return to their homeland and live in freedom.
The dream made real
But times have changed. The waiting mode has come to an end. Halakha’s longtime dream, to liberate itself from its defensiveness and fear, is slowly being fulfilled in our own days! The Jews’ situation has drastically changed, specifically since the establishment of the state of Israel. We no longer have to be defensive, as we were in the ghettos. The state has given us our long-awaited independence. We run our own affairs and are no longer afraid of the anti-Semitic world. If attacked, we will strike back.
This means that Halacha can now develop in its original innovative way and be herself again. We don’t need to reform or update it. The reverse is true. We need to simply return it to where it truly belongs. We should remove the many foreign branches that have for centuries concealed its ancient roots. It requires a purifying process so as to bring it to complete spiritual fulfillment.
Yes, it has to be done slowly, with great care, and in a way that does not harm the core. But I haven’t the slightest doubt that we will discover a beautiful canvas with many different but harmonious colors that will deeply impress many of our fellow Jews and make Judaism irresistible.
De-Codification
To achieve this goal, we have to de-codify Jewish law and dispense with the official codes of law by which Judaism was able to survive in past centuries. Codification stagnates. While it was necessary in order to overcome the enormous challenges of exile, it has now become an obstacle, outdated and unhealthy, which to a great extent blocks the natural development of Halacha.
Jewish law must move and grow, taking into account various developments in our world and giving them guidance. And that can happen only if it is fluid and allows for a great amount of flexibility, which codification cannot offer. Certainly, some conformity is necessary, such as in the case of civil law, but unlike non-Jewish codifications, Jewish law is foremost a religious and spiritual tradition. As such, it can never be translated into immutable rules to be applied at all times, under all conditions, and for everyone, without considering the personal, religious and practical components. These elements vary drastically, as can be seen by the many differing and even opposing opinions in the Talmud, which the Sages were not only aware of but seem to have actually encouraged.[10]
Prophetic Halacha
What we need now is prophetic Halacha, dedicated to the great, authentic, ethical mission of the Jewish people as conveyed by the prophets, and combined with the demands of the Torah. The prophets preached a rare combination of particularism and universalism. They strongly advocated Jewish particularism, so as to keep the Jews separated from the rest of the nations. But they always viewed this in terms of universalism.[11] There was a need for a central driving force, full of spiritual and moral energy, that would enable the Jews to inspire all of mankind and be “a light unto the nations,” conveying the oneness of God and the significance of justice.
After all, universal ideas are impersonal and therefore ineffective unless they are actualized by a particular group that sees them as their raison d’être. Only by personal commitment to a universal mission can moral and religious values be activated, become concrete, and be effective.
Laws such as issur maga nochri become an obstacle to the universal mission of the Jewish people when they are applied to those to whom they are not applicable.[12]
Instead of bringing non-Jews closer to our ethics and beliefs, this law concerning touching wine discriminates against gentiles and gives the impression that Jews look down on them and see them as secondary citizens of the world. It does the opposite of what Judaism really wants to accomplish. It undermines the possibility for Jews to become a “light to the nations,” which should be its main objective.[13] Ultimately, the mission of the Jewish people will collapse under the contradictions of their own laws. This law has caused even many Jews to look down on Judaism, keeping them away from our beautiful tradition.
Does this mean that we should remove all marks of separation? Definitely not! We must continue to be different and marry only among ourselves or with those who have joined our people. We should make our own wines and not drink those produced by our gentile friends, because wine is a sacred drink that needs to be sanctified by the beliefs of different religious communities. I would even suggest that each monotheistic religion produce its own wine, since it is not the fluid itself that is sacred but the winemaker’s intentions that have suffused the wine. Just as others have their customs, so should we.
It is nonsensical to believe that the world would be a better place if all differences would be eliminated. Distinctiveness is a most important aspect of our society, but it should not lead to a form of separation, which serves no real goal and is the outgrowth of something that was meant for a different time.
Should the law of yayin nesech be abolished altogether? Definitely not! We should not drink kosher wine that has been handled by terrorists, rapists, financial swindlers, men who refuse to grant divorces to their wives, self-hating Jews, and the like.
After all, the purpose of the law is to protest, not to discriminate.
It is high time for the rabbis to consider revisiting this ancient law and adapting it to our new reality.[14]
My brother would agree.
Notes
[1] See my essay, “Lonely but Not Alone: An Autobiography by a Jew Who Should Not Have Been,” Conversations 16(Spring 2013/5773): 1-35.
[2] See Shulchan Aruch, Yoreh De’ah 123:1 (note the dispute between R. Joseph Karo and the Rema); Mishneh Torah, Hilchot Ma’achalot Asurot 11:4.
[3] Once my brother told me about this incident, I realized there are other laws as well that are very disturbing, such as bishul akum (the prohibition of eating food that was cooked by Gentiles), the saving of non-Jews on Shabbat, the institution of the “shabbes goy,” and the prohibition of doing a favor for a non-Jew. This is not the place to discuss each one of them, but it will become clear to the reader that all of these laws, or customs, are the result of circumstances that prevailed in ancient times, and they should no longer apply today.
[4] See Shulchan Aruch, Yoreh De’ah 123:1.
[5] See Shulchan Aruch, Yoreh De’ah 124:10-11, 17-18. Wine that has merely been touched by a non-Jew is not prohibited. Maga means handling. Two actions have to take place: touch and movement. See Shulchan Aruch, Yoreh De’ah, ad loc. When the non-Jew touches the bottle without intent, the wine is permitted for the purpose of drinking, see Shulchan Aruch, Yoreh De’ah 124:10.
[6] See R. Joseph Chaim of Baghdad, Ben Ish Chai, Second Year, Parashak Balak, 11.
[7] For a general overview, see Talmudic Encyclopedia, s.v. Yayin Shel Goyim, 24:330-. See also the following three works by Prof. Haym Soloveitchik, Yeinam: Sachar Be-Yeinam Shel Goyim al Gilgulah shel Halakha Ba’-Olam Hama’aseh (Tel Aviv: Alma, 2003) [Hebrew]; HaYayin BiMei HaBeinayim: Yayin Nesech [Wine in Ashkenaz in the Middle Ages: Yayin Nesech – A Study in the History of Halakha] (Jerusalem: Zalman Shazar Center for Jewish History, 2008) [Hebrew]; “Can Halakhic Texts Talk History?” AJS Review 3 (1978):153-196.
[8] See Talmudic Encyclopedia, s.v. Yayin shel goyim, 24:395-397. The wicked Jew is foremost identified as a mumar (an apostate), one who deliberately rejects Judaism and violates its demands. Nowadays, many authorities are of the opinion that this term no longer applies, since it is not malice that motivates him but ignorance, as well as the lack of revealed divine providence, which would convince him of the Torah’s truth. See Chazon Ish on Yoreh De’ah, Hilchot Shechita 2:16, 28. See also Ya’akov Ettlinger, Binyan Tzion Ha-Chadashot, no. 23; David Zvi Hoffman, Melamed Leho’il, Orach Chayim, no. 29; Rav Ovadia Yosef, Yabi’a Omer, vol. 1, Yoreh De’ah, no. 11; Rav Yitzchak Yosef, Yalkut Yosef, Hilchot Shabbat, volume 4, 329 n1.
[9] See Eliezer Berkovits, Ha-Halacha, Kocha ve-Tafkida (Jerusalem: Mossad HaRav Kook, 1981), translated and abridged in English as Not in Heaven: The Nature and Function of Halakha (NY: Ktav, 1984) chapter 4.
[10] See BT Eruvin 13b.
[11] See, for example, Shemot 19:5-6, Yeshayahu 42:6. See my book Between Silence and Speech, Essays on Jewish Thought (Northvale, NJ: Jason Aronson, 1995), chapters 3 and 5.
[12] There are other reasons for the prohibition against drinking wine that has been handled by a non-Jew. One reason is that drinking with non-Jews could lead to assimilation due to too much familiarity. It seems that the prohibition was more symbolic than practical, since other alcoholic drinks were not prohibited in this context. In the olden days, wine was by far the most popular alcoholic drink and was used specifically in religious settings. But this was wine that was not boiled. Once it was boiled, it was no longer used for worship; therefore the sages were lenient about boiled wine (yayin mevushal) and non-Jews were permitted to handle it. Strangely, this has no effect on the issue of familiarity. Jews and non-Jews could share a glass of wine together once it had been boiled. It is therefore clear that the rabbis wanted to establish a symbolic separation as a deterrent against assimilation. But they kept it to a minimum, prohibiting only wine that had not been boiled and that could be used for pagan libations. (Boiled wine was probably not known in ancient times.) Had they truly believed that it was imperative to make a pragmatic separation, they would have prohibited every kind of alcoholic drink. For a general overview of this complicated issue, see Israel Poleyoff, “Stam Yeinom”, Journal of Halacha and Contemporary Society, Vol. 14 (Fall 1962) pp. 67-82. Also, Encyclopedia Talmudit, Vol. 24, “Gentile Wine,” See especially pp. 390-398 concerning the reason for the prohibition against yayin nesech. While too much familiarity is still one of the primary causes of assimilation, one can hardly argue that the drinking of wine plays any role in this unfortunate situation. Religious Jews would not marry non-Jews even if they would drink wine with them, and those who run the chance of assimilating are the ones who don’t care about this law. So what does this prohibition accomplish? One can only claim that the law reminds religious Jews of their special status; but this is accomplished by prohibiting the drinking of wine produced by non-Jews, for reasons I describe in this essay.
[13] Several of my students informed me that they felt very uneasy when they had to remove a bottle of wine from the table and whispered to each other so as not to embarrass their non-Jewish friends, who eventually realized that something bizarre was taking place. This is even more embarrassing when the non-Jewish friend brings a kosher bottle of unboiled wine to the table.Those who are strict in this law, or know that others are, should use only yayin mevushal, so as not to embarrass their gentile friends.
[14] I admit that I have been deeply influenced by the incident with my brother, but I hope that my readers are thoughtful enough not to argue that the law would otherwise not have disturbed me. Should it not bother all thinking Jews? Subjectivity is a major factor in halachic decision making! See Dr. Aaron Kirschenbaum, “Subjectivity in Rabbinic Decision Making”, in Rabbinic Authority and Personal Autonomy by Moshe Z. Sokol (ed.) The Orthodox Forum Series (Northvale, NJ, and London: Jason Aronson, 1992) pp. 93-123.
