In the spring of 1960, a friend of mine, an American who made frequent trips to the Soviet Union, entrusted to me a curious sheaf of Hebrew manuscripts. Several months later, I personally delivered the papers to the addressees: rabbinical scholars in Israel. What I handed over to them consisted of some twenty sheets of responsa—opinions on points of Jewish law—by Soviet rabbis, in several handwritings and on two kinds of paper: long, lined sheets, scissored from a schoolchild’s notebook, which had been brought out from Russia by my friend, and regular old-fashioned letterfold sheets which had followed him in the mails after his departure, under the guise of family correspondence.
There was nothing subversive about these documents. They had been sent circuitously only because their authors knew that evidence of the mere functioning of Jewish religious law inside the Soviet Union, and of juridical consultations with rabbis abroad, could bring down disaster. The Soviet rabbis’ purpose was innocent enough. Dealing in their responsa with several novel situations, they wished to place their own opinions before the larger synod of the world rabbinate. They were themselves too much a part of the Soviet circumstance to be aware, perhaps, how revealing the several situations they discussed were of the entire Soviet Jewish condition.
These were not the first responsa to have slipped out of the Soviet Union. Some came out in the 1920’s and in the 1930’s. But that, in the 1960’s, there should still be Jews in the Soviet Union who seek rabbinical advice about Jewishness, and rabbis who offer it—including some extremely young rabbis—seems to me amazing. I have since learned that such recent Soviet responsa have been got hold of by others than myself. Some have even appeared in print, under their authors’ names, in rabbinical periodicals both here and in Israel. But these have dealt with innocuous opinions on ritual—to which the Soviet authorities could hardly object. Their authors have been Rabbi Yehuda-Leib Levin, of the Moscow synagogue, and other “official rabbis” whose names show up repeatedly on Soviet Foreign Office releases denouncing Israeli “imperialism,” acclaiming the paradisiacal state of Soviet Jewry, and exhorting Jews abroad to make “war on the warmongers.” There is no intent here to prejudge such rabbis morally. A Talmudic adage says that you must not judge your fellow man until you have personally experienced his circumstances. Perhaps the Soviet “official rabbis” have found in their responsa on rituals a way of “keeping the embers of Judaism burning.” The responsa we shall discuss here, however, are by men whose rabbinical status has probably been forgotten by the authorities, who indeed have spent a lifetime in other occupations, but who still function as supreme religious arbiters among those to whom they can make their opinions known.
Responsa literature has at least a fourteen-century tradition. It probably came into being as correspondence between the great Babylonian academies and the legal authorities in Palestine who retained their preeminence long after the destruction of the Second Temple and Jewry’s total dispersal. Ultimately, when the Palestine center had fallen into complete decline, its authority passed on to the Babylonian academy heads, the Gaons, who were consulted even by the remote German and Far Eastern communities. Responsa are case law. No constitution or statutes can provide for all future contingencies and specific cases. The Talmud is a vast body of jurisprudence that itself reflects the accommodations of many generations to their times. The Talmudic exegetes reflect further accommodation and application. But each generation of rabbis since has been confronted by problems which no predecessors had to deal with. Hence if a rabbi was asked a she’ela—a question of law—that was new, and he was compelled to give a new t’shuva—response—he would write out his responsum and circulate it among his colleagues for their verification and endorsement, or for their edification. If his view was challenged, debate ensued, putting in circulation a kind of legal round-robin in which the entire rabbinate of the world engaged.
Responsa today are still living law for truly Orthodox Jews. They are certainly basic law to the closed Hasidic communities of Brooklyn and upstate New York, and to a majority of Orthodox Jewry in Israel. Even among the non-Orthodox rabbinate in America there has been a renascence of responsa interest. The Conservative rabbis have always taken Halachah—hence responsa—seriously. The Reform rabbinate initiated in Germany had disclaimed Oral Law but eventually accepted it, with radical modifications to be sure, in America. In recent years, Reform rabbis have shown an especially close interest in responsa. Halachah, in application, requires responsa—not necessarily as binding law, but as “guidance,” to borrow the phrase from Rabbi Solomon Freehof, an eminent Reform authority and author of the fascinating volume Responsa Literature (Jewish Publication Society, 1955). I suspect that this revived interest by the non-Orthodox denominations is related to the kulturkampf in Israel. The Reform rabbinate is determined to prove that their interpretations of Jewish law derive from the same source as the Orthodox, and have an equal validity.
The first question posed concerning any responsa is whether they are compatible with the civil law. The principle on this point—and it has never been controverted—was already formulated in the 3rd century C.E. by the Babylonian Gaon Rabbi Samuel. He ruled that “the law of the kingdom is binding law,” excepting, always, that which would compel Jews to disavow their faith. The richest responsa law has been created whenever Jews in any country were granted autonomous internal rule over their own community, the kehillah; and most of Diaspora Jewry enjoyed such autonomy up to the period of the Emancipation. Polish Jewry, from the mid-16th to the mid-18th centuries, provided an excellent example of self-government, with its federal legislature, Vaad Aratzot, its provincial legislatures, its two-tier judiciary, and its circuit and federal courts. Here was a period rich in responsa.
Early responsa encompassed everything: legal matters (e.g. involving contracts); questions of labor law and in some countries questions of criminal law (including capital offenses); philosophy; science. After the expulsion from Spain, Diaspora Jewry, suffering a deep depression, turned from free inquiry to mysticism; consequently, responsa became more purely judicial. Indeed, responsa literature has provided a valuable source of historical material on the customs, mores, and occupations not only of the Jews but also of the peoples among whom they lived. Historians of Polish Jewish life have drawn heavily on the responsa material, as have students of the history of the Spanish and French Jewries during the Middle Ages.
_____________
Several eras stamp themselves with particular poignancy on the responsa literature. The Marrano period—analogous in many ways to the present Soviet period—began with the attempt of North African Moslem fanatics, the despoilers of Spanish Arabic culture, to compel Jews to the Moslem faith, and continued with the repeated attempts of the Christians to compel the Jews to Christianity. When Maimonides (1135—1204) was only a child, his family fled from Cordova to escape Islamization by the North African invaders. But when the family later, by peculiar circumstance, crossed over into Africa, it there apparently was forced to embrace Islam. Subsequently, Maimonides settled in Egypt. But while still in North Africa, he published an opinion taking sharp issue with a rabbinical authority who had denounced Islamized Jews as guilty of idolatry, which was a capital offense. Maimonides argued that Islam required merely the pronouncement of Mohammed’s name, but not disavowal of the essentials of the Jewish faith and the worship of idols: hence those who became Islamized should be readmitted to the body of Israel. Martyrdom was meritorious and praiseworthy; but not all were capable of heroism, he explained.
Later generations had also to rule on forced apostasy to the Christian faith, and the responsa of the period were charitable toward forced meshumadim, baptized Jews, when they wished to revert to the fold. Rabbi Gershom, author of the ban on polygamy, and Rashi, the immortal exegete, were among the first to rule for their re-admission. (Rabbi Gershom’s own son had converted under compulsion, but never asked to be re-admitted into Jewry.) Some Marranos, compelled by fear, converted more than once, back and forth, to Christianity and to Judaism. The issue was raised whether the church marriage of a husband and wife who wished to revert to Judaism was valid, and whether the children were legitimate. The church marriage was sometimes preceded by a secret Jewish wedding. The question of witnesses was posed regarding both ceremonies. The issue of witnesses, we shall see, has now also been raised in the Soviet responsa.
The 13th-century Rabbi Meir of Ruthenberg was a celebrated martyr who left a vast volume of responsa dealing with martyrdom. Caught in Lombardy in the act of leading a group of immigrants to Palestine, he was returned to Germany, where the Emperor Rudolph imprisoned him, but pledged to release him on payment of twenty thousand marks ransom. The Rabbi put the congregation under oath not to pay, lest a precedent be set for other rulers to impoverish Jewish communities by seizing their rabbis and holding them for outrageous ransom. Rabbi Meir died in his cell in the seventh year of his incarceration. Visited regularly by his disciples, he passed on through them his responsa in reply to queries addressed to him from many lands. This was the time when, rather than submit to apostasy, entire communities of Jews committed suicide. A man in one such community who had survived after destroying his wife and children sought penance. The martyred Rabbi Meir ruled that in killing those he loved the man had also destroyed himself. Captive women, after their release, were not permitted to their husbands since they might have been at the disposal, however much against their will, of other men. What of women released from a convent where they had been held in an attempt to convert them? These, Rabbi Meir ruled, were not captive women.
A rich store of what we might call frivolous responsa has been handed down from the 16th-century Venetian Jews. Was the use of a gondola, and card games if not for stakes, permitted on the Sabbath? Were Jews allowed to join a hunt? On the last, rabbinical opinion was undivided: Jews must not hunt.
The devastating Chmielniki-led pogroms in 17th-century Poland and the Ukraine again raised the poignant issue of captive women and of grass widows—agunot—who are not permitted by Jewish law to remarry without incontrovertible proof of their husbands’ deaths. World War I and the subsequent civil war in Russia, and more recently the Nazi occupation, added to the voluminous responsa on this subject. The Soviets also made their contribution with the problem of agunot whose husbands had fallen into the hands of the secret police and disappeared without a trace. Earlier, America figured prominently. From the 1880’s on, rabbinical responsa in European towns were much concerned with petitions of women whose husbands, having left for America, were never heard from again. To be sure, Landsmanschaften, the societies of people in America from the same home town, would often help the grass widows resolve the problem by tracing the vanished husbands and compelling them either to bring their wives over to America or grant them a get, a decree of divorce—generally there was another woman in the picture.
_____________
Responsa embrace a wide range of social law. The famous Rabbi Mendel Krochmal of the 17th century, a member of the Polish Vaad Aratzot, declared for universal suffrage within the Jewish community when the poor petitioned against a community ruling which gave the vote only to persons in high tax brackets. German rabbis, seeking to protect the poor against an unequal burden, had in earlier responsa repeatedly ruled against personal exemptions granted by barons or kings to Jewish tax fanners in return for collecting the Jewish tax. Responsa also ruled firmly against informers—an issue again raised in Soviet responsa—and against those who accepted appointment to Jewish office from Christian authority without Jewish consent. Such instances of conflict between responsa rulings and civic law have inevitably occurred whenever the state has committed a flagrant injustice. Rabbi Moses Sofer, better known as Chatam Sofer, the name of the famous compendium of his responsa, set down a truly radical ruling (1809) during the Franco-Austrian war. The lower classes in Bratislava, where he lived, had been impoverished by bankers who foreclosed, black-marketeers who raised prices, and a government which taxed inexorably and unequally. Queried as to whether they must meet their financial obligations to the government, Chatam Sofer answered his impoverished petitioners that “state law is not binding law”—thus reversing the Babylonian Samuel’s tradition that had been in effect for sixteen centuries. It was an emergency ruling, of course, but insurrectionist: the city was then under military law, and the rabbi would have faced a court martial if friends had not intervened for him at the royal court in Vienna.
_____________
It is against this background that we should consider the responsa which were forwarded through me to their Israeli destination. Was it permissible, the Soviet rabbis asked of their Israeli colleagues, to perform a marriage without the usually required number of witnesses? We have seen that this question of witnesses was raised, after the fact, in connection with Marrano marriages performed by the church: there the problem was knottier, the ruling more liberal. In the Soviet case, the question is brought up as a general one, and Soviet rabbinical opinion is split. Some insist on the full quorum, others waive it. What is involved is that some young Soviet Jews are prepared to submit to a religious marriage either out of conviction or to please their parents. But they risk expulsion from the party and economic downgrading, if discovered, and therefore cannot afford too many witnesses to the ceremony. In effect, then, responsa which rigidly insist on the provision of witnesses would serve to discourage religious marriages.
Another question, on the surface seemingly ritualistic, raises a dialectic issue and reveals the condition of Jewish religious observance in Russia. A Soviet postal employee, in the course of his routine duties, handled a shipment of esrogim that had been sent by the chief rabbinate of Israel as a gift to Soviet Jewry, which could not otherwise obtain them. The shipment was addressed to Rabbi Levin of the Moscow synagogue with the request that he see to its distribution. The fruit is part of the Succoth service, and the postal employee, hoping to delight the pietists in his hometown in the provinces, had removed one of the esrogim and sent it to his father. Afterward, he became worried. Would his people back home be so delighted if they learned that it was a stolen esrog? Jewish law disqualifies stolen objects for sacred uses: the end does not justify the means. But the responsum ruled that it was not a stolen object. The esrog was no longer the possession of the Israeli rabbinate, nor of the post office, which was a disinterested forwarding agent, nor of Rabbi Levin, who was likewise an agent. It was intended for the Soviet Jewish communities ; the man’s home town qualified for this designation. It was only necessary that Rabbi Levin be informed that the esrog he had perhaps missed had already reached its destination.
The issue of means and ends is raised in still another responsum, which reveals also the martyrdom of Jewish pietists under Soviet rule. A group of Orthodox Jews (including the author of this particular responsum), inmates of a Siberian forced labor camp assigned to felling trees for a railway clearing, decided to set up a succah. The commandant had granted them permission to use several planks from a pile in the yard. The planks were too long, so they cut them to size. Now Jewish law provides that a borrowed object must be returned in its original condition. Had they transgressed? The responsum ruled on two grounds that they had not. The planks were state property. The state is its citizenry. They are part of the citizenry. The planks, therefore, were their property. The second ground offered was that an object is not deemed borrowed unless it has been removed from the lender’s possession. In this case, the planks had not been removed from the camp, hence not been borrowed, and what has not been borrowed cannot be returned, which disposes also of the question of original condition.
Another responsum tells how, in 1959 in the Ukraine, some Jewish elders had surrendered a synagogue—the responsum gives its name—to the municipal authorities who had threatened, otherwise, to forbid all public worship and even the private minyan. Pietists of the community had criticized the decision of the elders as a very serious breach, arguing, rather let all minyanim be shut down than give up the synagogue. They cited an ancient legal precedent: if an enemy besieges a city and demands the surrender of one individual on threat of decimating all, or the surrender of a certain woman on threat of violating all the women, the individual may not be surrendered—in the case of the woman, even if she be a harlot. The rabbinical responsum, conversely, approved the elders’ action, on the ground that the original precedent did not hold here, since it dealt with the case where the person or persons being demanded could not be identified by the enemy, unless the city or congregation acted as informer. The synagogue, in the present case, is known to the authorities, and the surrender of its keys is only a technicality; it can be easily broken into. The responsum considers an auxiliary question. The synagogue would not be violated if used for storing grain for the populace, or some similar purpose; it would be desecrated if converted into a Komsomol club. However, even if the latter be the municipality’s intent, the authorities, not the elders, are responsible. This raises an additional problem. The municipal officials did not comprehend the gravity of their deed, they were “like unto the blind.” Had the Jewish elders, by handing over the keys, “placed obstacles before the blind”? No, the responsum ruled, since the officials were Gentiles, not bound by Jewish law.
_____________
Jews in a Rumanian city were forbidden by the authorities to celebrate collectively the shalosh seudot, the third Sabbath meal, which is eaten at dusk. Should they have defied the ban? The responsum ruled in the negative. Most commandments are suspended where human life is imperiled. The ill need not fast on Yom Kippur. If the head of a foetus has not yet emerged from the womb, it may be sacrificed to spare the mother’s life. Only if a Jew is ordered to renounce his faith and worship idols, must he yield up his life: Sanctification of the Name. The Rumanian authorities claimed that their target in this case was not the Jewish faith. All public assemblies in the city had been banned for security reasons, and the shalosh seudot was classified as a public assembly, banned for this reason and no other—so the authorities said.
Sanctification of the Name is raised in yet another responsum. It reveals, inter alia, the working of popular anti-Semitism in the Soviet Union. A Lithuanian Jew had migrated to Russia and obtained employment there, passing as a Lithuanian. Rabbi Israel Isserlein, in 15th-century Germany, had been asked whether Jews might pass as non-Jews in countries where they were forbidden to enter. The question in the Soviet responsum was whether, by passing as a Lithuanian, this Jew had renounced his faith? Renunciation would be unforgivable, even if life itself were imperiled. But here, the Jew from Lithuania would only have suffered ridicule from his fellow employees—at worst, dismissal from his job. The responsum ruled, however, that he had not been guilty of renouncing his faith. Asked where he had come from, he replied, “Lithuania”: a true statement; asked his nationality, he also replied, “Lithuanian.” Nationality is an ambiguous term—it has one meaning in some countries, another in others. Under Soviet law, nationality means descent, and the Jew had obviously denied his descent, but only under that law. Soviet questioners do not inquire about religion. On this score, the responsum acquits the Jew from Lithuania of renouncing his faith.
It is true that the sheaf I studied contained only a single responsum for each issue raised; we may assume that there were other responsa formulated on each of the questions, especially on the last, perhaps refuting the opinions here reported which exonerate the Lithuanian Jew. It must be remembered that no responsum is absolute law. This has been the case throughout Jewish history. A responsum can only be law where a single authority has been acknowledged by his colleagues as their absolute superior. But even Maimonides was not recognized by all, and was challenged by many.
The Impression conveyed by most of these responsa may be that the Soviet rabbis are quietists. Their very pursuance, tenacious and intransigent, of their function proves the contrary. One particular respon-sum indicates that some of these men—none an “official” rabbi—are skirting some very heroic enterprises. It deals with a “person who helped talmidei chachamin [scholars] across the border.” Thus we learn of the underground smuggling of rabbis out of Russia. The Soviet secret police got on the trail of the “smuggler,” and he fled for his life. A Jewish informer pursued him across the border, apparently into a satellite country. The issue of Jewish informers had already engaged responsa authors in medieval Germany. The manner in which the “smuggler’s” encounter with the present Soviet Jewish informer was resolved is obliquely stated in the responsum: “The issue was life and death. It was self-defense.”
_____________
The Soviet Rabbinate is of course at some disadvantage in considering current questions. Responsa are based on the Talmud, the exegetical literature, and fourteen centuries of case-law tradition, and Soviet rabbis can draw on little of all this. The Moscow synagogue is reputed to have a rich library. Talmudic folios, though probably little else, may be available also in synagogues in several other cities. But rabbis, especially non-official ones, in cities only infrequently visited by foreign tourists, have no facilities at all. Their private libraries were disposed of, even over their protests, by alarmed relatives during the prosecutions of the last years of the Stalin regime, and cannot be restored. Hence, their Halachah—law—is truly Oral Law. Like the rabbis in medieval European cities after the confiscation and burning of the Talmud, they circulate in manuscript whatever they can recollect. The memories of some of these men have developed into virtual store-houses of Jewish jurisprudence. At least one rabbi has produced, working at first from memory alone, an entire commentary on the Talmud which may never see print. Some are afraid even today to preserve complete collections of their responsa and content themselves with putting into circulation single responsa as the various issues arise. A friend of mine recently met a Soviet rabbi whose legal and philosophical opinions were included in a collection of correspondence among Soviet rabbis published in Tel Aviv in the 1930’s. The collection was titled Letters of Research and Criticism on the Subject of Judaism and the Rabbinate in Our Times, edited by the late Rabbi Shmuel Alexandrov of Bobruisk. The Soviet rabbi mentioned above had never seen the volume. “I should like to see the book,” he mused. “I have retained no copy of my letters”; but he added as an afterthought, “If it contains any erroneous statement, I would rather you did not send it to me.” My friend did not press him for an explanation; in the words of Ibn Ezra, “the perceptive will understand.”
This Alexandrov correspondence which dates back to the first decade and a half of Communist rule, and the responsa I have seen which date through 1960, display a tendency toward a liberal application of Jewish law. Rabbi Alexandrov perhaps was the first to formulate such a policy in his advice to colleagues concerning a rabbi’s conduct of his flock in the new Soviet society: “Instruct them in the love of Torah and the fear of God. Impose no obligations, post no demands, be not harsh with those who appear lax in the observance of the mitzvot.” Nor have even the underground rabbis been hostile to the Communist economic order. Jewish tradition has always been more concerned with man’s dignity than with the state of his property, and some of these rabbis have even been sympathetic to the professed egalitarian purposes of Communism. But their one and abiding concern, from which nothing could deflect them, has been religious freedom, the right of men to live in accordance with the beliefs and ethical dictates of their religion. That and nothing else. In the USSR this is a great deal to ask. Hence, some of the rabbis have perished Sanctifying the Name.
_____________
