Is the Law an Ass?


 

I was once asked by a respected rabbi to perform a task which I pointed out to him is criminal under Israeli law.

His response has troubled me ever since.

The rabbi did not respond by quoting from a classic Jewish halachik authority to justify his illegal instruction, such as from the Shulchan Aruch, from the Tor or from Rav Elyashiv….

The rabbi wrote to me that “if the law supposes that, then the law is an ass”.

He was quoting from Charles Dickens. Actually from Dickens’ fictitious buffoon, Mr Bumble, in Oliver Twist.

I could have written this off as one-time buffoonery by the Rabbi – we all make slips and errors of judgment.

However, the same Rabbi then went on to give the same advice, to similarly break the Law, to his whole community. (Without even bringing Mr Bumble as a source – just “take-it-from-me”).

In too many of my dealings with members of ultra-orthodox communities, they have taken such a frivolous, dismissive, nay, derisive approach to the Law – "zilzul".

There seems to be a recognition that the Law has an Authority of Power – ie Don’t Get Caught.

But there is no acknowledgement that the Law has any Moral Authority.

I was brought up in England to stand in respect for my teachers, stand in honour for the National Anthem and to honour and respect the Law. A policeman, or bobby, was someone you asked for street directions, and turned to when there was crime or danger. We were taught we are all on the same side – of lawfulness against criminality, of civilization against anarchy and primitivism. In other words that the Law has a moral authority.     

In many orthodox circles, the sole moral authority is the Torah.

Whether the issue is declaring & paying taxes; fraud in managing businesses and institutions; breaking employer protection laws; ignoring building regulations; failing to report crimes; or covering up child abuse incidents – the dominant ethos appears to be that “the law is an ass”.

This is not entirely a chareidi vs national religious issue. We have recently seen from the fringe “tag mechir/price tag” incidents, that some national religious youth also put their understanding of the Torah, to be above the Law*.

I asked my 18 year old son Yonatan, who is studying at Mercaz HaRav (Kook) in Jerusalem, whether he holds that the Law has moral authority, or solely the authority of power?

Yonatan quoted Rav Kook as saying that the Law has moral authority; this authority is derived from the 7 Laws of Noach – of which one is the Law to develop a system of law and order.

Furthermore, in Orot Hakodesh, Rav Kook writes that man has an inherent understanding of right and wrong, and that anyone who learns Torah, and they find a contradiction with their innate sense of morality, then they should trust their sense of morality. Torah learning, which results in behaviour which is immoral, has no value. 

I would point out that Rav Kook was recognizing the moral authority of the society and Laws around him in the early 20th Century – in Poland, and then under Turkish/Ottoman and British Mandate rule in Palestine.

In today’s democracies, such as in the USA, UK and Israel, the Law is not designed simply to protect the ruling classes, but is a malchut shel chesed, and aims to protect the weak.

There are numerous layers of checks and balances, to ensure that the Law is as close as possible to the inherent ethical and moral justice, acknowledged 100 years ago by Rav Kook.

Of course the Law is imperfect. This is the reason for the checks and balances, parliaments, committees, judiciary and practical policing and implementation. Laws may be sometimes unreasonable and unjust, or simply archaic – and therefore the mechanisms are in place to correct these aberrations. This is a dynamic process which is sophisticated and self-correcting.

There is no comparison with Halacha.

Halacha, for all its sophistication and intricacy, has not developed criminal codes of justice for over a thousand years – due to the self-declared/acknowledged lack of jurisdiction of Batei Din for criminal matters in the diaspora/Galut. Batei Din have not been  authorized, by Halacha itself, for example to even fine a thief (Kefel), or administer punishments to violent criminals.

Retaining a position that Halacha is morally authoritative and that the Law is not, is a zero-sum game. If not the Law, and Halacha has no jurisdiction, then what are we left with? The answer is a dangerous hefkerut (anarchy) and lawlessness.

This discussion has come to a head, in the USA, in a dispute between Agudas Yisrael and the more left-leaning Rabbinical Council of America (RCA), following the death of Leiby Kletzky, the nine year old boy, who was murdered and butchered in Borough Park by an orthodox Jew.

The RCA Statement demanded that laws which mandate reporting of suspicions of child abuse to the authorities must be followed, and that, beyond this, also people who are not mandated to report should also report child abuse, due to the Biblical admonition "not to stand by the blood of your neighbor". The RCA appealed for people to use their “common sense” to decide when to report suspicions of child abuse to the police - and only if still perplexed, to consult with experts, including Rabbis.

The Agudah stepped back from demanding that their flock respect and obey the Law, or should report of their own volition. Instead the Agudah demanded that people should always, without exception, refer such issues to their rabbis, who would tell them what to do.

No innate understanding of morals and ethics (“common sense”) is recognized by Agudah. Nor any moral authority of the Law. 

In the Aguda’s books, the sole and exclusive moral authority is the Torah, via their rabbonim. As for the Law itself, if pushed, and acquainted with Oliver Twist, perhaps the Agudah would quietly whisper “the Law is an ass”.

This is the same discredited strategy which has shattered the Catholic Church - and has caused untold suffering and chilul Hashem in frum communities.
----

* Note: "Tag Mechir/Price Tag" is actually a politically motivated, tactical response in light of an historical event (the failed passive resistance to the evacuation of Gush Katif), and to a specific issue (how to avoid such evacuations at Outposts), rather than a general zilzul/disdain of law and order.  

 

Comments

  1. The similarity is actual quite profound...Mr Bumble and Rav. ***

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  2. This article was a breath of fresh air contrasting the brainwashing of charedi 'above the law' mentality with the MO 'do what is right' before G-d and man.

    Perhaps the rabbonim think they are doing us a favor by poskining in a lenient manner on theft against a goy, or the state, or in order to do a mitzva, etc. But what it really causes is an internal struggle for the Jew who learned very early in childhood, basic morals and values against lying, stealing, cheating. They face cognitive dissonance and the only way to reconcile the sheker is with emunas chachamim. My rav said it was ok (even though it goes against everything I know and was taught and believe to be true.)

    So when a parent is faced with the sexual molestation of their child, and their natural (correct) reaction is to want to protect their child and stop the perp, but their rav says "don't report", by now they're used to ignoring or doubting themselves and obeying the rav. Now they have to battle a new cognitive dissonance, believing in emunas chachamim at any cost.

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  3. The real problem is that there are people who learn Torah all day and night, yet do not know any Pirkei Avot, Hoshen Mishpat, Rambam, halachot about Nezek, etc - and they certainly do not recognize that Timeless Torah applies in our days too.

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  4. PS - while we agree that there are some right wingers who have issues with the army since the hitnatkut, the fact is that no one has been arrested yet for being associated with Tag Mehir, and at least one "activity" was eventually traced to some soccer fans from Haifa.
    All this makes one wonder if it might not be a provocation in the style of Avishai Raviv, ("champagne" in the Shabak's "Jewish Department").

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  5. There is only one moral authority - that is HKB.

    His definition of 'morals', is the Torah.

    And the Torah is represented by our rabbonim.

    Therefore, of course the rabbonim are the sole & exclusive address for all issues - including criminality (especially where this involves frum Jews on frum Jews).

    And, practically, our Halacha, Rabbonim and Batei Din are fully up to the job of legislating against criminal behavior, investigating crimes and bringing criminals to justice.

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  6. i loved this post. but i am not sure if the last anonymous poster was writing tongue in cheek... does he/ she really believe that the rabbonim "represent the torah?" or that they "are fully up to the job?" where does this person live? it is these wonderfully wise rabbonim who condone screaming vile invective at 7 yr old girls... yep they are sure ready to investigate thefts in our homes. you bet i want to trust them.

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  7. Interesting and thought provoking post. Thanks for posting it.

    BTW, I would most certainly not say the RCA is 'left leaning'. A look at published RCA position statements should show a balanced, maybe 'centrist' tendency - but certainly not 'left leaning'. And, as far as the membership goes, it is all over the religious-political map; which shows more of a 'balance' than any particular 'leaning'.

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  8. Mordechai: "I would most certainly not say the RCA is 'left leaning'."

    I'm not so up on US rabbinical politics etc.

    I took a look at the RCA website, www.rabbis.org and it seems to be quite YU influenced.

    By the standards of Agudat Yisrael, YU is quite left leaning.

    Please let me know if I missed something?

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  9. Food for thought:

    In Israel, it is illegal to spank your child. Ever. (2000 Supreme Court ruling)

    As far as many people are concerned - not just Charedim - in that case, the law is an ass. See http://www.azure.org.il/article.php?id=278

    So if a rabbi were to tell his followers that they should spank their kids if they run out into the street, he would be guilty of your critique in this article.

    But would he be doing the wrong thing?

    To be sure, a general dismissive attitude to secular law is wrong. But to dispute the moral authority of one particular law is surely different from a general dismissive attitude. What is a religious Jew, who believes that a particular secular law conflicts with Torah law and morality, supposed to do?

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  10. There is a clear difference of approaches towards the law depending on haskafa. This is a very complex issue and I believe that you are "biting off more than you can chew" and by doing so shooting yourself in the foot. Stick to your correct position regarding child-abuse and stay away from questions of when one should feel that a given law is binding or not. That can be left to the realm of "eilu v'eilu divrei elokim chayim." That having been said, I personally do lean towards the position that generally speaking the law should be observed so long as the law does not go against a Torah commandment.

    By getting yourself involved in those issues you effectively neutralize yourself as a serious player in the charedi community which desperately needs your continued help.

    Tactically, it would much more clever if so as to continue having your positive influence you would limit your pronouncements to the utilitarian and pressing need to adopt your positions with regards to child abuse.

    David, I love you and your important work. Don't delegitimize yourself by getting involved in issues with which the charedi world has fairly clear positions.

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  11. You wrote:
    "in Orot Hakodesh, Rav Kook writes that man has an inherent understanding of right and wrong, and that anyone who learns Torah, and they find a contradiction with their innate sense of morality, then they should trust their sense of morality. Torah learning, which results in behaviour which is immoral, has no value. "

    What is the precise source for this?

    What are its limitations in your mind when it contradicts an explicit law in the Torah (Biblical or Rabbinic)? For example if my innate sense of morality says shechita is inhumane, killing the children of Amalek is cruel, same sex marriages are beautiful ... should I reject the approach of the Torah and follow my morality or the approach of secular law?

    I think that chas v'shalom that any Orthodox Jew would reject what the Torah clearly states in these cases. Please clarify your opinion.

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  12. I've been out-and-about and see there's several challenging comments here - keep 'em coming!

    I'll respond to these, to the best of my ability, one by one.

    R.Natan - I readily acknowledge that the Law is not perfect, in my posting. What's more important is that the Law itself ackowledges that, which is why there are numerous mechanisms in place to change or modify the Law.

    In your example, if you feel particularly strongly in favour of corporal punishment in the home (the case you refer to was a mother who punched her son in the face breaking his teeth and struck her daughter with a vacuum cleaner) - then you are encouraged to take to the streets, set up a protest camp, lobby your friendly MK, hire a good lawyer, etc, etc.. even go to the town square and demonstratively potch your kid in front of a policeman. R.Natan - go for it!!

    There is a big difference between challenging a law, and rejecting the moral authority of the law.

    In your terms, between pointing out that lice
    reproduce like other creatures (and therefore, logically, should not be killed on shabbat), and yet respecting the moral authority of the Torah.

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  13. Anonymous: "Biting off more than you can chew".

    True, what I am saying jars against a whole culture - and that's a lot to bite off.

    I am addressing a question which has bothered me for a while. How can a good frum person be a criminal?

    I believe the answer is not halachik, but cultural. And yes, that culture must change.

    Too much to chew?

    Nibble by nibble, it can be done!

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  14. Anonymous: "precise source for this"

    I was shown it (by someone far more learned than me) at the beginning of the third volume of Orot Hakodesh. Where Rav Kook talks about musar hativi. (If I have misunderstood this, please put me straight).

    Your next point about when there is a conflict between the Law and Halacha....

    If Ploni's understanding of halacha is that it's beneficial (even halachikly required)for a school teacher to beat the pupils, and the Law says its a criminal offense, then the bottom line is Ploni's halachic understanding is irrelevent.

    When it comes to criminal matters, halacha is absent. And it has been so for centuries.

    Waving Ploni's halachik psak at the Judge, will not influence the court one iota.

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  15. David you didn't relate to my examples:
    If my innate sense of morality says shechita is inhumane, killing the children of Amalek is cruel, same sex marriages are beautiful ... should I reject the approach of the Torah and follow my morality or the approach of secular law?

    I assume here you do agree that Halacha takes precedence over my personal code of morality and secular law. So you (hopefully) practically also reject the moral authority of the law in favor of halacha in certain cases. Please confirm or disagree with this.

    The question now becomes is in what cases do you feel the halacha or leading gedolei Yisrael can have a halachik opinion. For example - reporting someone to the police entails halachik issues: lashon hara, moseir, lo tamod al dam reicha, rodef ... The halacha may be for or against reporting but it is a halachik issue that should be decided by the experts in Torah and halacha.

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  16. Hi Anonymous,

    I'll address your list of exaples...

    "If my innate sense of morality says shechita is inhumane,"

    DM: Then become a vegetarian.

    "killing the children of Amalek is cruel,"

    DM: cruel AND murderous.

    If you think someone is a child of Amalek - even if your rav tells you it's a mitzva to kill that child - DO NOT DO IT.

    You (and the rav) will both go to prison for many years.

    " same sex marriages are beautiful "

    DM: Where same sex marriages are legal, and where you think this is beautiful, then you will NOT get a mazaltov from me.

    "... should I reject the approach of the Torah and follow my morality or the approach of secular law?"

    DM: With all respect, I don't think you get this.

    If you plan to commit a crime, and hope that halacha will give you an exit strategy, you are living in cloud cuckoo land.

    If your rabbi tells you to break the law, such as by not reporting child abuse when required to do so, it is (your example) as if he is telling you to kill a child of Amalek.

    DO NOT LISTEN TO HIM.

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  17. David,

    You don't seem to understand. If the "law" says to do something, either reporting or say eating pork every november 7th, and the Torah says that reporting in certain instances would be forbidden, or that pork is forbidden to eat, then naturally one does not report or eat the pork. Does that mean the person might not have to be punished? Of course not, but one must be prepared to accept the punishment, but certainly not because the secular law has more moral authority then Torah law.

    That's exactly what many were prepared to do when they refused to evacuate Gaza.

    This o

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  18. Let's put it another way. If Torah law says that a woman can't get married to another person unless her husband gives her a get, and secular saw says 'no get..no problem." If the woman decides to follow her moral barometer and go ahead and get married anyway, then certainly she is not going to be able to hide behind the veil of "morality" in the world to come.

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  19. If you plan to commit a crime, and hope that halacha will give you an exit strategy, you are living in cloud cuckoo land.


    Nobody is suggesting that. Nobody is arguing that you don't go to jail for breaking the law. The question is not whether the law always has punitive authority. The question is whether it ALWAYS has MORAL authority. Which, for a religious Jew, is an especially difficult question.

    Now you yourself, in your response to me, apparently agreed that the law is not always moral. But you say that it has mechanisms to change. Fine - but irrelevant. As long as the law is not yet changed, it can be justly called immoral. In which case, you cannot say that the law automatically has moral authority!

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  20. David Morris from what you are writing it seems that you would prefer to follow secular/personal morality even if it would contradict an explicit pasuk in the Torah that has been seconded by the Sanhedrin. WOW - if true the gap between you and most Torah Jews (Chareidi and non-Chareidi) is huge.

    The fact that secular law may punish someone and send them to jail is a totally separate issue that a reliable Halachik authority can advise if/when is necessary.

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  21. Anonymous - with all respect, you are putting an awful lot of words in my mouth.

    I am not saying if the law says we should eat pork, that we should eat pork.
    Of course, we should refuse to eat pork, and demonstrate, etc etc to get that law changed.

    While on our way to the demonstration, we should stop at red lights, not assault any old ladies, make sure our tax is paid on the car, and that our kids in the back are using seat belts.

    YES (R.Natan), as I keep saying, there are laws which do not reflect our personal or religious morality. The law itself does not claim ABSOLUTE morality. This acknowledgement gives it the innate ability to change and adapt.

    These specific laws (which I, you, your third cousin, believe don't reflect our morality) do not change the fact that the law itself, has both the Authority of Power, and (in USA, Israel, UK and other malchuyot shel chesed) Moral Authority.

    On the other hand, by claiming that Halacha has Moral Authority, in areas where it has no jurisdiction (such as criminal law - ie a frum Jew murders someone, without two kosher witnesses etc, or because they believe the victim was a child of Amalek) ie where Halacha has No Authority of Power, is to enter a world of dangerous delusions.

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  22. So the law does not necessarily reflect our understanding of morality, or religious morality, nor does it claim absolute morality.

    So in what possible sense of the term do you claim that it has Moral Authority?

    And if you advocate theoretically breaking the law if it conflicts with your own standard, as in the case of a law that one must eat pork (while, of course, making an effort to get the law changed), then you can't possibly criticize others for advocating breaking the law. Sure, you can say that in THAT SPECIFIC CASE, the law is correct and they are wrong to advocate it breaking it. But you can't criticize them on the grounds that the law has Moral Authority and it's morally unthinkable to ever dispute it.

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  23. David the difference between us is that you limit the extent of Halacha to only certain areas of our life. Others feel that the Torah can and does guide us in all areas.

    "should stop at red lights" is not just secular morality this relates to halachas of: mazik , shimat hanefesh, dinna dimlchta dinna that obligate us to stop.
    "not assault any old ladies" - we shouldn't assualt anyone old or young, male or female based on psukim in the Chumash.
    "make sure our tax is paid on the car" - may be based on halachas: dina dimalchuta dinna, sheker, chilul Hashem, nosai ba'ol im chavero, hakarat hatov...
    "our kids in the back are using seat belts." - these relate to halachas of shirat hanefesh.

    The Torah can guide is in all areas and tell us what to do. The Torah does have an opinion on when/how one can go to secular courts. To ignore this is denying the supremacy of the Torah in all areas of our life. The Gadol may advise one to report someone to secular authorities - but it is based on the Torah.

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  24. Anon above- if seatbelts are "shirat Hanefesh", then you should speak to Kupa Tzedaka about paying their fines for not wearing seatbelts during their Purim parade.

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  25. Jewish Mom :

    That is irrelevant to the discussion. Many poeple Charedi and non Charedi make mistakes and violate laws of the Torah. The fact that sinners exist doesn't diminish the authority and greatness of the Torah.

    However, you bring up a more basic issue with this whole blog. Why does this blog every few posts feel a need to attack the Charedim and their Rabbanim.

    This clear anti-Charedi agenda is clear sinat chinam and totally NOT productive. It also is clearly not the approach of Rav Kook who had tremendous ahavat chinam for all Jews (even Charedim).

    Let us all focus on ahavat chinam and fixing our own mistakes instead of bashing other sectors of society.

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  26. R.Natan: "that the law has Moral Authority and it's morally unthinkable to ever dispute it."

    Please can you point to where you think I have written that?

    Rather, I have said the law is NOT perfect, and the Law itself recognises that, which enables numerous checks, balances, 20 different political parties, to all dispute it and play their part in self-correction & modification of the law.

    However, even in a case when a specific law is considered not moral, by an individual or group, then this does not detract from the moral authority of the legal code and process, per se.

    In contrast, the Halachik process has not tried a man for murder in many centuries.

    So whereas the Chumash may instruct releasing the suspect due to lack of two kosher witnesses, warning, etc, or sentence the convicted murderer to be hanged, for any practical purposes, this is absolutely irrelevant.

    Halacha is ABSENT from the criminal legal process. It has neither the authority of power, nor any moral authority.

    This has nothing to do with the State of Israel. Halacha has not had a word in these matters for centuries.

    This is fact.

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  27. Anonymous: "To ignore this is denying the supremacy of the Torah in all areas of our life."

    I believe you are paraphrasing the relatively modern concept of daas torah.

    Daas torah may be a supreme value, but it is not the exclusive moral authority.

    If you give your rav a ride to his home, and he says he's in a hurry, please drive faster...

    ..the blue flashing lights, thousand shekel fine and six points on your licence, should pop your bubble.

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  28. So the legal system as a whole has moral authority, but specific laws might not have moral authority.

    I don't understand at all what you mean by that. But be that as it may, I then do not see the difference between you, and the Rav that you castigate in this article, WITH REGARD TO THE ABSTRACT PRINCIPLE (I am, of course, aware that you differ with him with regard to whether this particular law is morally correct). He says that a particular law is morally deficient; you acknowledge that particular laws might be morally deficient.

    Also, I am no fan of the modern Daas Torah concept, but that is not what "Anonymous" was arguing for. And your response about traffic cops is as irrelevant as your earlier comments - nobody is denying that secular law has punitive authority!

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  29. David how do you respond to what Anonymous wrote above:

    "Why does this blog every few posts feel a need to attack the Charedim and their Rabbanim.

    This clear anti-Charedi agenda is clear sinat chinam and totally NOT productive. It also is clearly not the approach of Rav Kook who had tremendous ahavat chinam for all Jews (even Charedim). "

    This has also bothered me and I agree with him/her that it is not the right and productive approach. It just turns me off.

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  30. The Torah guides all our activities including that we need to wear a seatbelt, but really, nowhere does the Torah tell us to wear a seatbelt. That law just seems morally correct, so you were able to apply Torah halacha to it to make it acceptable.

    True, the Torah has final moral authority for the Jews, in that we listen to Him ultimately. But many things are not explicitly covered by Torah. When someone wants an excuse to do xyz, even if it means breaking the law of the land, one may find a way to stretch or misapply Torah to allow it, even though the pshat is that we abide by the law of the land (unless it goes explicitly against the Torah).

    I suggest, try learning the laws of the land and see if they may be found morally binding by the Torah, just like seatbelts.

    An example: Pedophilia is against the law, and one must report suspected abusers. Now, check in the Torah about child sexual abuse. What does it say? Nothing. The closest is about rapists or gays. Now we can choose to take a stance on pedophiles by either: finding ways to protect them by misapplying Torah concepts, or we can abide by the secular law because it isn't forbidden by Torah, or Since the secular law on this issue seems at least as moral as seatbelts, lets look in the Torah to see how it really is a mitzva to turn in and stop a pedophile.

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  31. On the topic of charedi bashing, I think that when you stop your fellow charedim (esp certain rabbonim) from misusing the Torah to allow hateful things, you will stop the sinas that so turns you off. Really though, I think you are overly sensitive and take these challenges or discussions as threatening and therefore want to call it charedi-bashing. Why not be brave and think this topic through. You know that one can try to manipulate the Torah to his way of thinking, which is why it is important to have a Rav or a chavrusa to keep on the straight path.. I suggest that due to the lack of accountability of rabbonim (a sad result of emunas chachamim) no one has challenged the fact that in regard to serious ethical and moral issues, many which are the law of the land, some charedim have gone off the derech. Advocates are just trying to push you all back on the right path. It hurts and you want to call it charedi bashing, but it really is emes.

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  32. To clarify-I was not Haredi bashing-I AM HAREDI. My girls are in Beis Yaakov, my sons in Yeshiva Ketana, I just get really really annoyed every year by the Purim parade when it is a flagrant flounting of the law and could cause sinas chinam by doing so. Especially when I see Hazala drivers and yes, my own Haredi paediatrician driving without seatbelts. Follow the law of the land says the Torah!

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  33. Anon: "Why does this blog every few posts feel a need to attack the Charedim and their Rabbanim."

    I try carefully to steer clear of attacking people - particularly whole groups of people.

    Instead I make every effort to focus on policies (shittas) and actions (maasim).

    I have seen, close up, problems in many communities in RBS/BS. Including shittas and actions which I consider harmful, including in the chareidi sector.

    Members of the chareidi community themselves, who consider leveling criticism of shittas and leadership policies, are often fearful of 'consequences'.

    Unfortunately, they risk being labelled as traitors, their families ostracized, their kids removed from the community schools, shidduchim damaged - even physically put in danger.

    And so they keep quiet.

    I don't need to be nearly so brave.

    I am perhaps uniquely positioned in that I am painfully aware of these problems and the suffering they cause; these shittas disturb and pain me enough that I consider them "my business" to help where I can; and I can spotlight and even criticise the shittas, without being subjected to fearful countermeasures.

    Worst comes to the worst, someone will accuse me of being a "charedi basher" on this blog...

    A term I find offensive, and an allegation which I strongly and totally deny.

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  34. I just found your blog and I am enjoying reading your posts. Kol Hakavod!

    I also have been disturbed by the apparent disdain shown for secular law amongst some charedim, and it is particularly upsetting to see them caught and shown on the front page of a secular newspaper. There is no greater chilul Hashem than that.

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