Schisms and Lo Tisgodedu (Halachic Methodology 14)

Last week we dealt with the topic of minhag.  We discussed the different types of minhagim, the parameters of when they are binding, and the rationale behind their prominent place in the Halachic system.  This shiur dealt with the other side of that coin – the prohibition of lo tisgodedu (לא תתגודדו).  Chazal derive from the possuk prohibiting cutting oneself in mourning another issur – לא תעשו אגודות אגודות- don’t splinter into different groups.  This prohibition in some circumstances binds people to the practices of the community to prevent them from splitting into factions.  We will not get into the technical issues of how this is derived from the possuk and what its relationship is to the prohibition concerning mourning.  I tried to give a framework to understand the legal and philosophical issues involved in this prohibition.   Shiur and sources are available here.  

The main sugya is found in Yevamos 13b-14a, and also appears in the beginning of Megillah.  In the contexts of discussing a dispute between Beis Hillel and Beis Shamai concerning some rules in Yibum, the Gemara wonders how we can have different parts of the community practicing different things, as it seems to violate לא תתגודדו.  One it worries about is the institution of Krias Megillah, where Chazal allowed people to read the Megillah (depending on location) anywhere from the 11th to the 15th of Adar.  Another example, which we saw in our shiur on minhag, was the Gemara’s acceptance of varying customs concerning whether one should or should not work in the morning of Erev Pesach.  The third example, which is the context in Yevamos is the opposing positions of Beis Hillel and Beis Shamai about some Yibum issues, assuming that Beis Shamai actually implemented their position in practice.

The Gemara raises several distinctions to justify these practices.  One possible distinction is between cases of minhag and cases of issur.  In the former there is no לא תתגודדו  and in the latter there is.  This would remove the problem from Pesachim.  The Rishonim differ on whether there was actually a dispute, with one position thinking that people cannot even vary regarding customs and the other limiting the prohibition to different practices on issurim.  Ritva thinks that no one really applied the prohibition to minhag, while Tosfos thinks they did.

The Netziv (and others) suggests this distinction depends on the two explanations for the prohibition offered by the Rishonim.  The Rambam suggests it was meant to prevent machlokes.  Rashi argues that it was to prevent the Torah from looking like two Toros, a phrase taken from Sanhedrin 88 where the Gemara bemoans the fact that the students of Beis Hillel and Beis Shamai were derelict in their studies and thus were not able to resolve dispute, leading to the development of two separate camps.  Netziv argues that while people may fight about minhagim, different customs do not imply that there are two Toros – only varying Halachic practices do.  Of course, one could argue that people do fight about minhagim – allowing the Rambam’s svara to explain both positions easily.

LeHalacha, the Rama rules that there is לא תתגודדו  even by minhagim, and the Magen Avraham argues.  Most poskim follow the Magen Avraham, which allows R. Ovadiah and R. Moshe to explain why Sfardim and Ashkenazim can have different minhagim.

Other distinctions raised by the Gemara are either 1) the prohibition only applies when there are two camps in one town, but different towns can have different practices or 2) even within one town there is only a prohibition for one Beis Din to fail to come to a conclusion.  Different courts can have different opinions.  R. Ovadiah notes that many Rishonim follow the latter position, and he therefore claims that Ashkenazim and Sfardim in one town are like two courts (as they follow the Rama and Beis Yosef), making their divergent practices mutar.  The Rambam rules like the first position, but R. Ovadiah claims that even he would agree in the case of Ashkenazim and Sfardim where everyone knows about the different mesoros and will not fight about it.  [R. Ovadiah, as we have mentioned was partially driven by a desire to defend Sfardim from Ashekenazi hegemony, especially the attempt to formally force Sfardim to accept Ashkenazi psak.  He accuses R. Uziel, the Sfardi chief rabbi who was willing to give in for unity of Klal Yisrael of allowing love to corrupt his mind.]  Note, that R. Moshe rules similarly, but adds that a Chazan should follow the minhag of the shul, even if there is no problem of people following their own minhagim privately.

Many poskim suggest based on the above that the issur applies primarily to poskim.  However, once poskim have failed to agree, the laity who follow them have no prohibition.

In many modern contexts, the prohibition seems to be negated because there is not a single minhag in a place.  However, on some level, the problem is exacerbated.  The Gemara suggests at one point that when it comes to Shabbos issues which are chamur, לא תתגודדו would even apply across cities.  Presumably, the assumption was either that when it comes to big things people will fight for uniformity nationwide, or that they are public enough that it will make the Torah look split even when the people acting in different ways live in different cities (see Netziv).  This is rejected in the Gemara.  However, it is not clear whether the rejection is fundamental – namely the prohibition is definitionally limited to one city, or practical – that the Gemara assumed that across city lines people would not fight or perceive that the Torah was split.  If it is the latter, one must wonder whether in the age of the internet, where the world is one big community, לא תתגודדו, at least for big things, would apply across the world.  R. Lichtenstein has suggested something along these lines concerning the legitimacy of choosing a posek who does not live close to you.

Whether the prohibition applies formally across the world or not, the philosophy behind the mitzvah may.  Let us return to it.  R. Klapper notes that at some level, the reason suggested by Rambam is the opposite of that of Rashi.  When people fight about what the Halacha should be, they tacitly admit there is one Torah.  They just disagree about what it does or should say.  It is when they agree to disagree that fighting is mitigated but the problem of two Toros gets worse.  Phrased differently, agreeing to disagree as a shita implies pluralism, the belief that more than one thing is correct, a belief that does not exist at the core of religion (though in small quantities it might, depending on how one understands Eilu V’Eilu).  This is problematic religiously.  On the other hand, finding ways of living together without relinquishing the right to argue implies tolerance, a laudable quality.  To cite R. Lichtenstein:

Toleration is not to be equated with pluralism.  Indeed, in a sense, it is its very antithesis.  Full blown religious pluralism acknowledges the radical legitimacy of conflicting faith commitments. As such, it need not, it cannot, ‘tolerate’ them.  To tolerate is to suffer the pressure of what is not only different but, by my lights, thoroughly erroneous; and to refrain, nonetheless, from the exercise of power to coerce its devotees to cease and desist.

 

I argued in an article several years ago (the link is attached to the shiur on YUTorah) that there is a value to not creating schism in the community simply so we can stop arguing.  Yes, if we were to define ourselves as separate from the Charedi community we would not have to defend ourselves on many issues, such as women’s learning, for example.  However, we would be asserting that we are not the same type of Jew as them.  This is something we should run from.  It is better for us to be a bit more defensive about our Halachic positions, even if we don’t give in, if it means that we recognize that all parts of the community are valuable and have things to teach us.  The same problems exist if we choose to split from the left.  Yes, there are cases where schism is legitimate, but there are real Halachic and Hashkafic issues we should think about before we advocate for it.

One last point – the Chinuch underscores how difficult it is to actual enforce this law.  He writes:

From my teacher, may Hashem protect him, I learned that this prohibition applies only within one fellowship where some are divided against others and they are equivalent in wisdom, that it is forbidden for each group among them to act in accordance with its own opinion as this causes division among them. Rather, they should converse extensively about the matter until they all agree to one opinion, and if this is impossible they should all act in accordance with the more stringent opinion if it is a matter of Biblical law, but two separate rabbinic courts, equal in wisdom, “lo titgodedu” was not said with regard to them .

R. Klapper comments:

Sefer HaChinnukh’s qualifications illustrate the fundamental impossibility of making effective rules against fighting. What if one party thinks they are of equivalent wisdom, but the second thinks themselves much wiser? What if the dispute is about whether an issue is deoraita or derabbanan? Most importantly, what if one group sees the second as part of it, but the second sees itself as always having been independent, or declares itself now independent?

That being the case, the only thing that will prevent us from violating the letter and spirit of the law is our own integrity.   No one else can convince us our fight or divisiveness is illegitimate.  However, while that makes the law all the more difficult to implement, it in on way mitigates our responsibility to ourselves and Klal Yisrael.

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