Halacha has never been confined to ritual precision or individual piety. From its biblical origins, it presents itself as a comprehensive system designed to govern the entirety of Jewish life: private conduct and public order, personal devotion and communal responsibility. Yet in the modern era, a glaring void has emerged. Vast domains of public policy – such as traffic regulation, building and fire safety, crowd control, and the handling of abuse or internal threats – remain halachically under-theorized and under-legislated. This gap is not a mere a theoretical oversight; it breeds concrete dangers: inconsistent observance and, at times, preventable loss of life. Over time, it erodes trust in rabbinic authority and leads to chilul Hashem.
This essay argues that rabbinic leadership must confront
this void head-on by promulgating a new, explicit category of halacha dedicated
to public policy. Grounded in classical sources, enforced through established
rabbinic powers, and articulated with the precision expected in other areas of
law, such takanos would transform indirect obligations into direct,
binding imperatives – leading to preserving pikuach nefesh, communal
welfare, and the viability of halacha as a governing system in the modern
world.
The Current Challenge and Its Manifestations
The problem is not that halacha lacks relevant principles;
on the contrary, contemporary observance already draws on indirect mechanisms
to bridge the gap. Pikuach nefesh (threat to life) and sakana (danger)
justify safety rules by prohibiting endangerment of self or others. Darkei
shalom (peaceful ways) and kiddush Hashem encourage civic compliance
to promote harmony and sanctity. Dina d’malchuscha dina validates secular
law, at least in the Diaspora, with poskim like Rav Moshe Feinstein and
Rav Asher Weiss extending it to traffic and safety regulations. However, in
Israel – a Jewish sovereign state – its applicability is hotly contested, as
many Rishonim (e.g., the Ran and Rashba) limit it to non-Jewish kings or
monetary matters.
These mechanisms, while valuable, are used unevenly and
often without clear standards. Pikuach nefesh is invoked forcefully for
medical treatment but far less rigorously for statistical risks on roads or at
mass events. Lashon hara prohibitions are sometimes overextended to
silence legitimate reporting of danger or abuse, creating a chilling effect on
protective action. Without explicit takanos (halachic enactments),
enforcement remains vague and discretionary, fostering denial, selective
stringency, and communal paralysis. Paradoxically, this disconnect is most
pronounced among the most scrupulous Jews, particularly in Israel, where civil
regulations are often dismissed as “goyishe” rules – external, secular
impositions lacking intrinsic halachic force. In these “frummer” sectors
– those most meticulous in ritual observance – compliance is viewed as
optional, pragmatic, or secondary. This leads to flouted speed limits, bypassed
safety permits, ignored capacity limits, and mishandled internal wrongdoing – not
out of malice but because the halachic imperative has never been articulated
with clarity and authority. This creates a situation that undermines public
safety, may erode trust in Torah leadership, and associates observant
communities with lawlessness, leading to chilul Hashem.
Real-World Consequences
The consequences of this void are no longer theoretical;
they are tragically real. The Meron disaster stands as a stark indictment. Engineers
and officials repeatedly flagged structural and crowd-control risks, yet
compliance lagged in this sacred setting because no authoritative halachic
framework translated those warnings into Torah obligations. Professional safety
standards were dismissed as secular intrusions. The result was preventable loss
of life and widespread scandal.
Abuse scandals follow a similar pattern. Rigid adherence to
criminal-law standards of evidence – requiring two kosher witnesses and hasra’ah
(warning) – combined with misplaced fears, has created systems that shield
perpetrators more effectively than their victims. Credible reports are
dismissed or suppressed, allowing grooming, serial abuse, or endangerment to
persist under the guise of procedural formality. In each case, the absence of
explicit halachic legislation – not a deficit of moral concern – has proven
deadly, paralyzing responses and fostering environments where harm thrives
unchecked.
Frum education
exacerbates the issue, emphasizing Gemara and mussar while rarely
dedicating shiurim to “halachos of road safety” or “communal
responsibility in abuse prevention.” The result is a bifurcated existence:
Torah governs the beis midrash and home, while the public sphere
defaults to minimal civil compliance – or less. This leads to higher traffic
violations in certain frum neighborhoods, resistance to inspections, and
hesitation in confronting threats when “proof” falls short of biblical
thresholds.
The Pitfalls of Stretching Existing Categories
In the absence of explicit takanos, some have
attempted to force modern public policy problems into existing halachic
frameworks, often stretching concepts beyond their natural limits. This
approach, while well-intentioned, reflects halachic avoidance rather than
strength, creating distortion and inconsistent outcomes.
Consider the problematic expansion of rodef.
Classically, rodef is a narrow, severe category that permits preemptive
lethal force only against an individual who is actively and imminently pursuing
another with intent to kill or commit a capital crime (e.g., physical pursuit
with a weapon). The Gemara and Rambam (Hilchos Rotzeach) insist on strict
proportionality and immediacy: If the threat can be neutralized non-lethally,
killing is forbidden. Yet in recent decades, rodef has been rhetorically
inflated to encompass probabilistic harms, such as drug distribution, smoking,
vaccine refusal, or unsafe behavior – often without rigor. A drug dealer
lacking intent to kill, or someone offering a cigarette, does not fit the
classical paradigm; labeling them rodef collapses distinctions between
negligence, policy disagreement, and imminent murder. The litmus test is
operative: if halachic logic would not permit lethal force, the classification
is suspect. Invoking rodef rhetoric while discarding its consequences is
not principled; it is ad hoc borrowing. Classical rodef requires
immediacy and intent; modern policy issues generally do not meet that
threshold.
A similar distortion occurs with pikuach
nefesh, the foundational principle that permits suspending most mitzvos to
preserve life in cases of immediate or probable danger (e.g., violating Shabbos
to summon medical aid, as per Yoma 83a–85b and Rambam Hilchos Shabbos 2:1). We
saw this extended usage during the Covid crisis. Classically, it demands a
tangible threat – safek nefashos (doubtful life-risk) suffices – not
abstract or negligible probabilities. The laws of Shabbos are set aside for pikuach
nefesh. In modern public policy debates, however, it is often stretched to
encompass diffuse, long-term, or statistical harms, such as mandating vaccines
under emergency rubrics or overriding communal norms for perceived “greater
good” without rigorous thresholds.
This move creates real problems. It allows people to redefine danger to
suit their position, where personal convenience masquerades as life-saving
necessity (e.g., reckless driving justified as hurrying to a “potential”
emergency). It erodes the sanctity of overridden mitzvos by normalizing
exceptions, potentially leading to widespread laxity in observance. It fosters
communal division through inconsistent application, as differing risk
assessments breed accusations of stringency or leniency. And finally, it
ultimately weakens halachic authority by transforming a precise, life-affirming
tool into a vague catch-all, bypassing the need for tailored takanos
that could address such issues more coherently and equitably.
A parallel issue arises
with raglayim ladavar (“legs to the matter,” i.e., circumstantial
indication). Talmudically, it justifies suspicion, investigation, or
provisional measures but is not equivalent to full edus (complete
testimony). Nor does it justify criminal punishment.
In contemporary discourse on abuse or safety, it is sometimes elevated as a
robust evidentiary doctrine capable of replacing witnesses and safeguards. This
is a category error: halacha distinguishes
standards for biblical punishment, monetary liability, communal regulation, and
emergencies. Collapsing them undermines coherence. When Chazal relied on
circumstantial evidence for serious consequences, they did so under hora’as
sha’ah (extraordinary necessity) or through takana (halachic decree),
not by redefining evidence law.
Stretching these concepts fails on multiple fronts: it lacks
universality, eroding acceptance in resistant communities; it breeds distrust
through visible strain; and it impoverishes halacha by bypassing its
legislative mechanisms. Halacha does not need to pretend that every problem is
solved in Sanhedrin 73a; it needs confident application of the adaptive tools
it already possesses.
Halachic Tools for Responsible Expansion: Authority and
Precedents
Crucially, halacha already possesses the instruments to
address these failures – no theological innovation is required, only
responsible deployment. The Torah grants rabbinic authorities legislative power
for communal welfare: “Lo sasur min hadavar asher yagidu lecha yamin u-semol”
(Devarim 17:11). From this derive takanos hakahal and gezeiros – binding
enactments beyond strict law to protect society. Jewish history abounds with
examples: Rabbenu Gershom’s ban on polygamy, medieval commercial regulations, communal
enforcement, and modern enactments like heter mechira or public eruvin.
These were confident exercises of rabbinic authority.
During the Middle Ages, Jewish courts further exemplified
this adaptability, devising creative, results-based approaches to crime and
punishment that prioritized communal safety and deterrence while navigating
evidentiary constraints – such as employing indirect methods or communal
sanctions to achieve justice without violating procedural norms. This system
was explored in depth by Rabbi Dovid Katz in the foundational lecture series, “Jewish
Courts of the Middle Ages,” especially “Jewish Courts in Christian Europe, the
Age of the Rishonim,” available on YouTube.
For physical safety, the Torah is explicit: The mitzvah of ma’akeh
(Devarim 22:8) mandates a parapet on roofs to prevent bloodguilt. Extended by
the Rambam (Hilchot Rotzeach 11:4) and codified in Shulchan Aruch (Choshen
Mishpat 427), it obligates removing any foreseeable hazard – uncovered pits,
dangerous animals, unstable structures. Modern building codes, fire-suppression
systems, emergency exits, and capacity limits are contemporary applications,
informed by engineering and statistics. Chazal routinely integrated
professional knowledge in medicine, astronomy, and agriculture. Embracing
proven safety standards is fidelity to Torah, not secular capitulation.
For insidious threats evading ordinary procedures – such as serial
abuse, grooming, or endangerment – halacha provides hora’as sha’ah. The
Rambam (Hilchot Sanhedrin 24:4–6; Hilchos Mamrim 2:4) authorizes qualified
courts to impose extraordinary measures, even departing from evidentiary norms,
when community integrity or safety is at stake. This is tailored for
emergencies where strict formalism fails, allowing protection without
abandoning due process. For instance, while the Torah prohibits executing someone
without two witnesses and proper procedure, hora’as sha’ah grants
rabbinic courts the authority to act decisively in exigent circumstances,
including potential deviations for the sake of preserving life and order – though
such power must be wielded judiciously, as true authority stems from Torah
legitimacy rather than mere coercion. While classical halacha did not develop a
prison system as we know it, Chazal did authorize confinement in extreme cases
(Sanhedrin 81b). This at least shows that restraining a dangerous individual is
not foreign to halacha.
A critical dimension of this framework must explicitly
incorporate the halachic principle of sakana, which extends beyond
immediate, visible threats to encompass probabilistic risk management for
communal safety. Rooted in sources like the Rambam’s Hilchos Rotzeach (11:5–6)
and the Shulchan Aruch (Choshen Mishpat 427:8–10), sakana obligates
proactive mitigation of dangers based not on conjecture but on empirical
evidence – drawing on statistical data, factual analysis, and the specialized
expertise of professionals such as engineers, scientists, and field-specific
authorities. Chazal themselves modeled this deference to expert knowledge,
consulting physicians for medical halachos (e.g., Shabbat 129a) and astronomers
for calendrical calculations (Rosh Hashanah 25a), recognizing that the Torah’s
imperative to preserve life demands integration of reliable worldly wisdom
rather than its dismissal as “secular.” Yet in contemporary practice, sakana
is applied inconsistently, often minimized for statistical risks like road
hazards or overcrowding despite their proven lethality. Explicit takanos
must therefore mandate that rabbinic authorities incorporate such professional
assessments as binding criteria for identifying and addressing sakana. This
would transform vague precautions into precise, enforceable obligations that
align halacha with the Torah’s unyielding demand for vigilant, evidence-based
protection of human life.
Resolving the Tension: From Misuse to Proper Application
Before outlining the proposed takanos, we must
address an apparent tension. We have criticized the stretching of categories
such as rodef, sakana, pikuach nefesh, and dina
d’malchuscha dina, yet we now propose grounding new enactments in those
same principles. This is not contradictory. The tension disappears once we
distinguish between redefining categories and applying them honestly. The
problem is not the concepts themselves but their use as substitutes for
legislation. When rodef – classically limited to an imminent pursuer – is
expanded to cover broad or probabilistic harms, its definition is altered. When
sakana and pikuach nefesh are invoked selectively, without
consistent standards rooted in contemporary empirical reality, they become
rhetorical devices rather than legal tools. When dina d’malchuscha dina
is overextended beyond its traditional scope, it loses coherence. In each case,
ad hoc reasoning fills a legislative vacuum, producing inconsistency and weak
enforcement.
Our proposal takes a different approach. We preserve
classical definitions but apply them using accurate modern knowledge. The
category of sakana, for example, remains intact; what changes is our
understanding of what constitutes real danger. Where modern conditions create
genuine risk, halacha should recognize that risk – without redefining the
category itself.
More importantly, these principles should anchor explicit takanos
with defined scope, authority, and consequences. Instead of scattered
justifications, we create structured rules. This preserves halachic integrity,
promotes consistency, strengthens rabbinic backing, and replaces improvisation
with binding obligation.
In short, we are not expanding categories through
redefinition; we are applying them responsibly through clear legislation.
Proposal: Comprehensive Takanos for Public Policy
What is missing is not authority but articulation. Rabbinic
leadership must issue comprehensive takanos translating these principles
into concrete policy, documented with clarity: defined rules, obligations,
sanctions, and sources. We offer that a dedicated compilation should cover at
least three categorical domains, issued by a broad coalition of gedolim
representing the Orthodox spectrum:
1.
Traffic
and road safety rules: Mandatory
adherence to speed limits, signals, licensing, and seatbelts as gezeiros
against sakana, rooted in piku’ach nefesh and lo sa’amod al
dam re’echa. Punishments: communal fines, temporary driving
restrictions, or loss of privileges (e.g., community vehicle use); prison for
persistent threats to life.
2.
Building,
fire, and event safety rules:
Mandatory permits, inspections, sprinklers, emergency exits, and capacity
limits as direct fulfillment of ma’akeh, incorporating professional
engineering standards to identify hazards. Punishments: fines; withholding
communal services (e.g., aliyos, kevurah privileges) until
rectification; prison.
3.
Protection
from abuse and internal threats rules:
Zero tolerance, mandatory confidential reporting channels, prevention
education, and professional investigations with flexible evidence (raglayim
ladavar, patterns, expert input). Lashon hara is not an issue where
reporting is leto’eles (per Chofetz Chaim). Punishments: graduated,
including supervised restrictions, ostracism, prison or “imprisonment” via
hora’as sha’ah (e.g., confinement in a kippah per Sanhedrin 81b); and
designation as a rodef for ongoing threats. Anonymity for victims;
safeguards for accused. Notably, while historical precedents include public
whippings, we must avoid reinstating such measures in a modern context – we are
not Iran - and halacha’s adaptive framework allows for humane alternatives
focused on rehabilitation and deterrence without spectacle.
These takanos should reform evidence: biblical
stringency for punishment, flexible probability for protection. Enforcement via
communal batei din and coordinating with state authorities where
permissible ensure real consequences without overreach.
Implementation and Why It Will Succeed
Implementation requires a convened council of gedolim,
with texts disseminated widely, integrated into yeshiva curricula, rabbinic
training, and communal education. History demonstrates success: When leadership
speaks collectively, even stringent communities respond with discipline, as
seen in the kol korehs on technology or health.
This approach will work because it provides the clarity
observant Jews crave, framing policies as Torah imperatives rather than
impositions. It avoids stretching categories, builds trust through
transparency, and leverages halacha’s adaptive strength. Resistance from frum
circles diminishes when authority is unambiguous and sources explicit.
The stakes are immense. Without explicit engagement, Torah
risks appearing exquisitely detailed in ritual yet silent on life, safety, and
dignity – ceding ground to secular frameworks and fostering discord.
Conversely, robust takanos would save lives, protect the vulnerable,
prevent chilul Hashem, and reaffirm halacha as governing society.
We have merited a sovereign state – a platform for Torah’s
full manifestation. The tools exist. The authority exists. What remains is
whether we will use them. May our gedolim rise boldly to ensure that we
live v’chai bahem – thriving safely and righteously under Hashem’s law.
The hour demands it.
