The Current Hafganos – Why Everyone Holds They Are Forbidden – A Halachic Analysis -

[By Rabbi Yair Hoffman for the Five Towns Jewish Times]

Let no one think that the protests happening in Israel are by any means justifiable. They are a clear violation of many prohibitions in the Torah. But before we get to that, let’s get some background as to what is currently happening.

THE DEBATE

There is a great debate in the Chareidi world in Eretz Yisroel about how to best deal with the forced registration for the draft of Yeshiva students. Rav Aron Leib Shteinman Shlita is of the opinion that the Yeshiva students should register for the army at the induction centers, and rely upon the tacit understanding that they will not be drafted.

Rav Shmuel Auerbach Shlita, head of Peleg Yerushalmi, is of the opinion that the Chareidi yeshiva students should not register for the draft at all. A number of Chareidi families have switched their schools on account of this debate.

It should be noted that both Rabbis are brilliant Gedolei HaDor and Tzaddikim. The debate is thus a rather painful issue in the Torah world – somewhat akin to the pain of children whose parents are divorcing, r”l. The debate has not only torn apart the Chareidi world in Eretz Yisroel, it has also torn apart families.

THE YESHIVA STUDENT

This past Sunday evening, a 24 year-old Jerusalem yeshiva student was arrested at a protest in Yerushalayim. The young man is a follower of Rav Shmuel Auerbach Shlita and is following his instructions. According to an article in HaPeles, the young man was arraigned in the Jerusalem Magistrate Court after his arrest. He was to be released under house arrest with restrictions, as often happens in such cases. However, instead of releasing him, he was handed over to military police, who now are holding him without bail in a military jail because he had not registered for the draft.

THE NATIONWIDE PROTESTS

In reaction to this arrest, on Monday night, hundreds of Peleg Yerushalmi affiliated yeshiva students took to the streets and highways across the country.

On Tuesday evening, some 50 demonstrators who tried to block major roads and junctions in Jerusalem, Modiin, Beit Shemesh and Bnei Brak were arrested.

At the Bar-Ilan Junction in Yerushalayim on Tuesday, dozens of protesters intermittently blocked the road and caused heavy traffic congestion in the approaching roads. Police arrested 15 people at that demonstration. Other protesters tried to block Shivtei Yisrael Street in Jerusalem and were dispersed by police.

On Tuesday night, 25 Peleg Yerushalmi students stopped an entire highway and began singing, “Aye aye aye tzion.” The cars that were blocked waited until the police either escorted or arrested the protestors.

The protests have caused a groundswell of anger among Israelis across the country. Police officers have been injured. The protestors have caused massive delays and forced closures of highways. Rocks have been thrown, trashbins have been set on fire. People missed flights, arrived late home from work, etc. Ambulances were delayed. Tens of thousands of people were inconvenienced.

Rabbis who encourage the protests are unaware of both the repercussions of the actions of the protestors or the more extreme measures that the protestors have taken up by themselves. Those close to these Rabbis tell them that such information are fabrications – lies. But they are not. It is thus incumbent on those who have entry to the Rabbinic supporters of protestors to explain the repercussions.

Rav Eliezer Menachem Shach zt”l, however, was aware of some of the repercussions and extreme measures that protestors take. He spent time and effort clarifying to his followers that at all times protestors must act with the utmost derecho eretz – like true Bnei Torah. The enclosed video is just one example of such a speech that Rav Shach zt”l had given.

THE UNDERLYING ISSUES

There are seven or more serious issues involved in hafganot; damage to third parties, danger to both the participants and others, chillul hashem, possible lifnei Iver, Bitul Torah, and the possibility of making things worse.

DAMAGE

The first underlying issue is third-party damage. Regardless of what one holds about the issue being protested, it is absolutely forbidden to cause damage to a third party because one wishes to protest – even if the reason for his protest is a perfectly correct view. No longer is a protest a mere temporary delay, like it once was when Gedolei Torah allowed protests in the early twentieth century. Now, the damage is quite more extensive. If Reuvain is upset with Shimon, he simply may not damage Levi. The Tur in the beginning of Choshain Mishpat chapter 378 writes that it is forbidden to do damage to someone else – just like stealing is forbidden. Damaging is also a negation of the Mitzvah of V’ahavta lerayacha kamocha according to the Steipler Rav (Kehilas Yaakov Bava Kamma Siman 1) and quite possibly a number of other Torah injunctions.

DANGER

A second issue is whether one is permitted to protest in an illegal manner – without a permit.. The Belzer Rebbe is cited among other Gedolim as forbidding participation in a hafgana unless the protest had a legal permit – on account of the danger of sakanas nefashos – aside from the issue of Bitul Torah (hashkafas hanetzach l’sh’ailos hazman p321).

The baser tendency of some human beings is to enjoy violence – this is true on both sides of the fence. Policeman have a tendency to hit, beat shoot with rubber bullets and taser protestors. This is true in America, foreign countries, and in Israel. Most responsible parents do not want their children participating in events where they can get bloodied up, facial fractures, and the like. These things happen.

Shtadlanus,behind the scenes activity, is clearly the better way to go. It is also true that the very people picketing also get out of hand. Why are there people throwing rocks at police officers? The answer is because they get in the spirit of things. A hafganah in Israel is as fun as a tackle football game in the snow for Americans.

CHILLUL HASHEM

And while the Satmar Rebbe zt”l, as well as numerous Gedolim in Eretz Yisroel understand the idea of protest as Kiddush Hashem (VaYoel Moshe Shalosh Shavuos Siman 113-114), as did the Brisker Rav zt”l, Rav Moshe Feinstein zt”l and Rav Aharon Kotler zt”l did not. They were attuned to the possible repercussion of Chillul Hashem.

In the 5748 edition of HaPardes Volume III page 9, the views of Rav Aharon Kotler zt”l and Rav Moshe Feinstein zt”l are cited in regard to the idea of protests. The American Moetzes Gedolei Torah at the time felt that protests were highly counter-productive. Instead, they opted for the time-tested method of shtadlanus. This method has been used effectively for centuries.

In the 5753 edition of HaPardes (Vol. IV p. 25), Rav Moshe Feinstein zt”l also came out strongly against the idea of protests in regard to atrocities done to graves by archaeologist, and instructed the Agudas HaRabbonim to send a strongly worded telegram to then PM Yitzchok Rabin. He also stated that strong condemnations should be made from each shul.

On Monday, Sept 2, 1957, (the 6th of Elul 5717) representatives of Agudas HaRabbanim approached the Satmar Rebbe in regard to a protest at Union Square. They told him that it was unbecoming of Talmidei Chachomim to behave in such a manner and that hatznea leches should be the operative principle. The Satmar Rebbe rejected this view.

GEZEL SHAINA – STEALING PEOPLE’S SLEEP

It is said in the name of the Chofetz Chaim that stealing people’ sleep is one of the worst forms of Gezel – theft. His reason is that it can never be paid back. The recent hafganot, in many places, were held until the wee hours of the morning – and boisterously so. Babies, children, mothers and fathers could not sleep. Is this not Gezel Shaina?

Rav Shmuel HaLevi Vosner, zt”l the rav and av beis din of the Zichron Meir section of Bnei Brak, discusses the situation in the seventh volume of his responsa (Shaivet HaLevi #224).

Rav Vosner begins his response with the position that the term “theft” can only truly be used when one steals an actual item and the thief either uses that item or benefits from it. He writes that preventing someone from sleeping is prohibited because one person is not allowed to cause damage to another or to prevent another from realizing a benefit, but there is no actual theft involved. Rav Vosner admits that there is definitely a proof from Bava Basra 20b that preventing someone from sleeping is prohibited, as well as from Choshen Mishpat siman 156:2 and 3.

The Shulchan Aruch discusses whether someone is permitted to open a commercial store in a residential neighborhood. Rav Karo writes as follows:

“The immediate neighbors may prevent him from opening up such a store and tell him, ‘We cannot sleep, on account of the noise of those who are entering.’ He may only do his work in the house and sell it in the marketplace. However, they may not stop him and say, ‘We cannot sleep, because of the sound of the hammer, or the mill.’ This is because he already began doing this and they did not stop him from doing it earlier.”

Clearly, this would forbid hafganot in residential areas too.

Although the parameters of what is permitted in a residential area and what is not are somewhat complex, the essential issue that preventing someone from sleeping is generally prohibited can be established from this ruling of the Shulchan Aruch –especially in the areas where the hafganot were held.

Rav Vosner concludes his response with the idea that the term “gezel” is somewhat of a misnomer.

We do find, however, that Chazal perhaps define the term “gezel” in a broader fashion than Rav Vosner understands it. The term is used in the Talmud (Berachos 6b) in a situation that may not quite be considered “stealing an actual item and using or benefiting from it.” Rav Chelbo quotes Rav Huna as saying, “Whoever knows that the other generally greets him, should greet him first, as it says, ‘Seek peace and pursue it.’ If the other gave him a greeting and he did not return it, he is considered a thief, as it says, ‘For you have devoured the vineyard, and the theft of the poor is in your house’ (Yeshayah 3:14).”

Likewise, the term is used by Rav Chanina bar Pappa (Berachos 35b) regarding someone who eats and does not recite a blessing. It is considered as if he stole from Hashem and from knesses Yisrael. And the term is used in Sanhedrin (91b): “Whoever prevents a student from learning Torah, it is as if he stole his inheritance from him.” In both of these instances, no actual item is being taken and benefited from.

The Midrash Tanchuma (Bamidbar 27) also uses the term to describe someone who quotes a halachah and does not quote the name of the one who said it, in violation of the verse “Do not steal from the destitute for he is destitute” (Mishlei 22:22). The Midrash traces this back to the zugos, and ultimately traces it back to Moshe Rabbeinu from Har Sinai.

Similarly, in a Tosefos in Kiddushin 59a, Rabbeinu Tam’s father, Rav Meir, is quoted as understanding that in a case where fisherman A set out his net and fisherman B afterward set out a net nearby with a dead fish inside (to attract more fish), it is considered as if fisherman B stole from fisherman A—even though the fish had not yet arrived. (Fishermen: please note the fishing advice from Rabbeinu Tam’s father.)

We see that the term theft is used more loosely than as defined by Rav Vosner. There is also a responsum from Rav Zalman Nechemia Goldberg Shlita printed in the Av 5762 edition of Koveitz Beis Aharon V’Yisrael that the case in Berachos 6b (regarding one who does not return a greeting) is considered theft only because it is the negation of a debt. Even though the debt is non-monetary in nature, it is still considered a debt, and the negation of this debt thus falls under the rubric of theft.

LIFNEI IVER

The issue of Lifnei Iver is also an issue. Let’s not kid ourselves, the overwhelming masses of people in Israel and elsewhere look at religious Jews as if they are a bunch of hooligans and such behavior causes a lifnei iver of hating, yes, hating Torah Jews. It is hard to imagine a better way of getting other people to violate lo sisneh es achicha bilvavecha. Behaving in a manner that just gets other people to hate us – fosters lifnei Iver. This says nothing of the Lifnei Iver caused to the police officers. And while it is true that Rav Elyashiv dismisses the specific Lifnei Iver of Shabbos violation involved in Shabbos hafganot, many other Poskim do not.

BITUL TORAH

Rav Shach (cited in Torascha Shashu’ai p. 441) was approached by two students as to whether to partake in hafganot regarding archaeological digs. He cited the Gemorah in Yevamos 63b that explains that they and their fathers would be punished. What does Hashem then want of us? That we not violate bitul Torah!

In Orchos Rabbeinu about the Steipler page 385, a story is cited concerning the Chazon Ish that when a person had asked him whether there was an issue of Bitul Torah in partaking in a hafganah – he responded, “For you it would be a problem of bittul Torah since you expressed concern for it.” Numerous other Gedolim forbade going to hafganot because it constituted Bitul Torah.

DOES IT HELP OR HINDER?

The last question involves whether it helps or hinders. Has the Israeli government stopped the draft on account of the hafganot? Most people say no, and that it has rather served to infuriate the populace against the Chareidim. Others claim that they did help change matters. In this case, it seems that it made things worse.

Whenever there is a question about something helping or hindering we usually adopt a shaiv v’al ta’aseh approach. This should be done here as well. The leaders of the Peleg Yerushalmi movement used to identify with Rav Shach zt”l as well as Rav Elyashiv zt”l. They do not identify with Rav Shteinman Shlita. However, we have seen that the path of the previous leaders was to discourage this type of behavior. The vast majority of the Lithuanina Torah community, including Rav Chaim Kanievsky Shlita is against these hafganot. It should be stopped.

The author can be reached at yairhoffman2@gmail.com