"Judging the Sinner Favorably": R. Hayyim Hirschensohn on the Need for Leniency in Halakhic Decision-Making

Among the myriad of transformations that the Jewish community underwent during the late eighteenth and nineteenth centuries, the most significant and disturbing for its religious leadership were certainly the radical change in the rabbi's role and authority and the profound alterations in religious beliefs and practices that emerged among the majority of Jews. Premodern Jewish society was also the home for Jews with disparate commitments to tradition; it witnessed occasional rebellions against the authority of the rabbis. But Jews generally accepted the dictates of their rabbinic leaders (at least in theory) and ideological deviance was rarely tolerated. In contrast, with the advent of the modern liberal state, the rabbis' authority weakened as the number of tradition-bound Jews diminished. Jewish scholars responded by debating the proper theological, social, and legal approaches that could best address this unprecedented secularization. ¹

One particularly innovative voice in this debate was that of Rabbi Hayyim Hirschensohn (1857–1953). ² Hirschensohn was an important—although not particularly influential—religious Zionist theoretician and legal scholar. He served as an Orthodox rabbi in central New Jersey from 1903 until his death and authored over ten works on legal, theological, and historical issues. ³ He corresponded extensively, particularly regarding halakhic issues, with other religious Zionist rabbis such as R. Abraham Isaac Kook and R. Ben Zion Meir Uziel, and engaged in numerous legal disputes with his American Orthodox rabbinical colleagues. Hirschensohn examined the proper response of Orthodoxy to secularization often in his many works, particularly in Malkei ba-Kodesh, six volumes of responsa and letters published between 1909 and 1928. In this context, he discussed extensively the question of whether leniency or stringency is the proper method of halakhic decision-making at a time of widespread nonobservance.

This central question in modern halakhah occupied a more marginal role previously in the Jewish legal tradition. It is true that in premodern Jewish legal literature, statements advocating stringency and leniency were bandied about. We read, for example, in the Talmud and in later halakhic literature: "The method of leniency is preferable." ⁴ Likewise, one can find the notion "may a blessing come to one who is more stringent" in medieval Jewish legal responsa and Talmud commentaries. ⁵ Neither method, however, was employed generally as a broad policy of halakhic decision-making. Moreover, the rabbinic leadership of premodern Jewish traditional society, which was populated by Jews of diverse levels of observance, was averse to placing an onerous burden on its citizens and looked askance at excessively stringent rulings. ⁶

In contrast, the profound secularization of Jewish communities with the disappearance of traditional society encouraged Orthodox rabbis to thoroughly consider the questions of stringency and leniency. Apart from providing legal rulings that varied in stringency, Orthodox decisors and scholars often argued for either stringency or leniency as the proper approach in an age of increased laxity towards halakhic observance. They debated: Should halakhah be interpreted in a lenient manner so that observance among Jews with a weakened commitment would perhaps increase? Or are stringent rulings preferable, because leniency encourages further disobedience and stringency brings about greater meticulousness toward the mitzvot among the truly committed? ⁷

Hirschensohn was well known, and often condemned, ⁸ for his numerous lenient rulings. Among his many permissive judgments are his positions permitting Jews to enter the area of the Temple Mount, ⁹ his responsum allowing priests to study medicine if the cadavers used are those of gentiles, ¹⁰ and his decision authorizing autopsies when they can contribute to the understanding and possible cure of an illness. ¹¹ He also penned a responsum during the fierce debate regarding woman's suffrage that not only allows women to vote and to hold elected office, but also permits women to serve as judges in halakhic disputes. ¹² Moreover, Hirschensohn argued that the use of electric doorbells, telephones, and inner-city subways on the Sabbath is...