Story from Professor Israel Ta-Shma:
In the year 1873, when the Hafetz Hayim finished writing his book Hafetz Hayim on libel and gossip, he wished to publish it with rabbinical endorsements, as was customary. Since he also wanted to distribute the book among the Hasidim, he wished to get an endorsement from one of the prominent Hasidic masters of the time. He therefore sent an emissary to the Rebbe of Alexander, as well as to a few prominent rabbis, to give them a copy of the new book and ask for their endorsements. The emissary reached the Polish rebbe, and requested his endorsement.
‘‘What is the book about?’’– asked the rebbe.
‘‘About the laws of libel’’– he replied.
‘‘And why do we need a book on the laws of libel?’’ – the rebbe continued.
Embarrassed by the strange question, the emissary answered plainly: ‘‘The book teaches that one may not hurt his neighbor even by speech.’’
To this the rebbe responded:‘‘To hurt one’s neighbor one does not need a tongue or speech; it’s enough just to make an ’eh!’’’– and he made a slight dismissive gesture with his hand.
Seeing that the rebbe refused to give him the desired endorsement, the emissary continued on to the other personalities, all of whom complied willingly. When he came back to the Hafetz Hayim, the emissary reported that all the referees gave him their endorsements, except for the Rebbe of Alexander.
‘‘The Rebbe of Alexander? –’eh!’’– the Hafetz Hayim responded, and made a slight dismissive gesture with his hand…
The emissary told him about his meeting with the rebbe and the content of their conversation. Hearing that, the Hafetz Hayim hurried to add an article to the book, stating that ‘‘there is no difference between one who speaks libel about another person explicitly and one who does it by intimation; in any case it is considered libel.”
Benjamin Brown writes: When the Rebbe of Alexander insinuated that there is no need for a book that articulates the laws of libel, he meant that it would be better to leave this topic in the realm of principles – in this case the principle that‘‘one may not hurt his neighbor even by speech.’’In the example that he gave, he wanted to intimate that one cannot cover all of the possible cases of libel in rules, and that the formulation of the norms in the form of rules would, therefore, needlessly diminish the force of the principle. The Hafetz Hayim’s response represents the opposite tendency: he thought that the norms for libel should definitely be formulated as all-inclusive rules.Therefore, when he was confronted by a case that the existing rules did not cover, he sought to articulate it, too. As I will clarify later on, the traditional rule-centered genre in Jewish tradition is halakhah, while the principle-centered one is known as musar. The Hafetz Hayim’s literary enterprise in this branch should therefore be considered as the halakhization of musar, or, if we allow ourselves a less accurate term, a legalization of ethics.
First I will introduce the theoretical framework for the examination of the relationship between halakhic literature and musar literature. I will then demonstrate that the prohibition against libel had usually been considered a branch of musar, and that it was the Hafetz Hayim who transformed it into a branch of halakhah. After having analyzed the methods used to implement this transformation and its consequences, I will try to evaluate its degree of success…
In classical Jewish literature there is only minimal reference, if at all, to the distinction between musar and halakhah, but in more recent generations we find trends that are similar to those I have suggested here. Thus, for instance, when Rabbi Aharon Lichtenstein formulated the distinction between the two, he convincingly adopted Fuller’s model, and identified the halakhahas a‘‘morality of duty’’and musaras a ‘‘morality of aspiration.’’ Apart from‘‘duties to aspire’’Rabbi Lichtenstein included in the category of musar norms which are not binding at all, such aslifnim mi-shurat ha-din(going beyond the letter ofthe law),19and others may add middat hasidut(pietistic virtue) and similar categories.20 These norms, needless to say, are also closer to principles than to rules. Yeshayahu Tishbi and Joseph Dan wrote similarly regarding the relationship between halakhah and musar:‘‘The halakhah cuts to the minimum that the servant of God is required to doin order to fulfill his obligation to his Creator […] The musar literature seeks not the minimum, but the maximum – the path by which man will reach the zenith of religious life, of approaching and clinging to God.’
…Indeed, even if the Jewish thinkers of all generations gave little attention to the theoretical question of the distinction between halakhah and musar, the living Jewish tradition knew very well how to distinguish between them. Even without being equipped with analytical conceptual tools, every bookseller of religious literature knows that the Mishneh Torah, the Tur and the Shulhan Arukh should be placed in the section of halakhic books, while Hovot ha-Levavot, Sha‘arei Teshuvah, Orhot Tzaddikim, Mesillat Yesharim and the like should be placed in the collection of musar books…
In rabbinic literature, the prohibition against libel developed as an integral part of the area of musar. Indeed, the prohibition‘‘Thou shalt not go as a talebearer among thy people’’(Lev 19:16)45 was clearly considered a binding norm, but apparently it was conceived throughout the generations as a‘‘duty to aspire,’’and not as a duty that can be articulated in concrete actions. In the Mishnah we find the term lashon ha-raonly once46– and that one is in an aggadic context. The term motzi shem ra (sullying a person’s reputation) appears several times, and in halakhic contexts, but only in the sense of ascribing improper sexual behavior to a woman.47 In this,the language of the Sages clearly follows the language of the Torah (Deut 22:14, 19), and this is indeed the limited sense that the term had in their world, in contrast to the broader sense that Maimonides and his followers (including the Hafetz Hayim) attached to it. The latter conceived it as referring to any untrue libel. The term rakhil (gossip, talebearing), too, appears in the Mishnah only once,48 in the sense of revealing a secret, and the context there seems halakhic, yet it is not decisive. The Sages of the Talmud mention these terms more frequently, but generally these references are short and offhanded. The short length is not in itself evidence of the non-halakhic nature of the prohibition, but it is clear that it was not developed using the standard tools of halakhic discourse. The only place where the talmudic sages deal with this topic at length, in bArakhin 15b-16a, we find both halakhic and aggadic sayings integrated, with the latter in clear majority (and it is note-worthy that the two main halakhic sayings are permits!). Here, too the halakhic sayings are not attacked and defended, as is familiar to us in the halakhic texts of the Talmud. This fact strengthens the aggadic character of the text, and gives the impression that even the halakhic sayings are not real rules, but rather coincidental examples of the principle. Apart from these, there are several sayings throughout the Talmud indicating that the Sages allowed one to berate and degrade another person in certain mitigating circumstances, which we will dis-cuss in greater detail in section 4. This demonstrates the fact that theydid not conceive the prohibition against libel as categorical.The Sages give us no reasons as to why they decided to develop a certain prohibition as a branch of the halakhah and another norm as a branch of the aggadah. The verse‘‘Thou shalt not go as a talebearer among thy people’’is phrased in normative language that is not much different than‘‘Observe the Sabbath day to keep it holy,’’but the latter was nevertheless transformed by the Sages into a‘‘meager biblical text with plenty of laws,’’while the former remained a‘‘meager biblical text and meager laws.’’Somehow, the intuition of the talmudic authorities taught them that this area is not appropriate for articulated rules, nor for analytical discourse.
The medieval authorities followed the same path, except for one: Rabbi Isaac al-Fasi, the Rif. This halakhic authority’s major work extracted from the Talmud the gist of the legal discussion while filtering out aggadic sayings. Although his work did not include bArakhin, he cited the sayings of the Sages on libel in his rulings on bShabbat,49 so they are included in his legal summary. The inclusion of these sayings within an outright halakhic work constitutes a clear declaration that theauthor sees them as part and parcel of the halakhah.50 The Rif, however, was probably the last major halakhist who viewed the prohibition against libel in this way. If we rely on the conventional classification of books as halakhic or musar, this subject found its place in the latter. Indeed, although Maimonides included it in his halakhic code, the Mishneh Torah,51 and wrote extensively about its severity,52 it appears only in a musar context: first as a small part – six paragraphs – in the section of Hilkhot De‘ot, which, as demonstrated above, is a musar text, and then again in a small paragraph at the end of the laws of the impurity of leprosy, the placement of which also implies its musar-theological character.53 Both texts rely heavily on biblical tales and aggadic literature. In contrast to halakhic convention, Maimonides does not present in these sections the exceptions to the prohibition, except for one (the permission to speak libel in the presence of three or more people),54 but suffices with the presentation of the prohibition itself, together with words of reproach on its severity.These words of reproach, needless to say, are also in the style of the musar genre. All of these facts corroborate the thesis that Maimonides meant to depict libel as a principle, and not to confine it to specific rules. Although there are some hints in Maimonides’ Commentary on the Mishnah that might indicate that he considers the prohibition of libel to be a‘‘morality of duty,’’there are, in my opinion, stronger hints that he classifies it as a‘‘morality of aspiration.’’
In post-Maimonidean literature, where the boundary between halakhah and musar crystallizes, the classification of libel as a part of musar is further strengthened. The authors of the great codes of that period, the Tur and the Shulhan Arukh, did not allocate any room in their comprehensive halakhic works to the issue of libel.56 In contrast, elaborate and systematic discussions on this subject, often in chapters dedicated solely to it, are found in R. Yonah’s Sha‘arei Teshuvah, in the anonymous Orhot Tzaddikim, in R. Yehiel of Rome’sMa‘alot ha-Middot, in the Maharal’s Netivot Olamand in R. Eliyahu de Vidas’ ReshitHokhmah – all outright musar books…
There is also a linguistic indicator, not terribly significant but interesting nonetheless, that the talmudic Sages and the medieval rabbis did not perceive libel as a halakhic prohibition. There is a halakhic category –mumar le-davar ehad(a‘‘habitual sinner with regard to one matter’’) – that relates to a person who repeatedly violates one particular prohibition. There are clear halakhic sanctions that are imposed on individuals who fall into that category, among them the loss of legal credibility in religious spheres that relate to his transgression.58 This category is utilized only with regard to violations of halakhah, and not with regard to violations of musar, even when defined as a duty of aspiration. Thus, for example, we find‘‘habitual sinners’’with regard to idolatry, desecration of the Sabbath, failure to perform circumcision, and the like, but we never hear of the term‘‘habitual sinner’’with regard to not loving God or failing to achieve holiness. So too, we do not find in rabbinic literature the concept of a‘‘habitual sinner with regard to libel’’(mumar le-lashon ha-ra)…
This was the face of the prohibition against libel until the time of the Hafetz Hayim. Yet, for the sake of precision, we must note that the Hafetz Hayim did not initiate the halakhization of libelex nihilo. He was preceded by a few important halakhists, who noticed the lack of‘‘laws of virtues’’in the Shulhan Arukh, and came to‘‘fill the gap.’’It was in this spirit that R. Abraham Gumbiner, known as the Magen Avraham, added a few musar subjects in his interpretation of Shulhan Arukh, Orah Hayim}161 (entitled‘‘laws of [fairness in] business’’), and his interpreter, R.Shmuel of Cologne, author of Mahatzit ha-Shekel, followed the same path. In both texts, there are only very short references, mostly repeating Maimonides’ words in Hilkhot De‘ot. Following their model, Rabbi Shneur Zalman of Lyadi integrated those instructions in his Shulhan Arukh ha-Rav, where the laws of libel comprise three paragraphs.61 No doubt,these references prepared the ground for the Hafetz Hayim’s project, but were minor in scope and lacked talmudic-style analysis and discussion. Needless to say, they did not have the cultural impact that a book dedicated to a single subject can have. The book that is sometimes mentioned as the precedent to the Hafetz Hayim, R. Raphael of Ham-burg’s Marpe Lashon, is a classical musarstyle book. An approach closer to that of the Hafetz Hayim is demonstrated in a forgotten musar book that was published only 15 years before Hafetz Hayim, entitled Orhot Mesharimby Rabbi Menahem Treivitsch.62 But this book, which was not at all well publicized, was probably not known to the Hafetz Hayim. In any case, it is considered a book of musar rather than a halakhic one.
We may therefore summarize that until the 17th century, the laws of libel were classified clearly as part of musar, not of halakhah. The only possible exception was the Rif, who lived at the end of the Gaonic period, and in this matter his influence was insignificant. From the 17th century and on, a few steps were made toward the halakhization of some musar norms, among them the prohibition against libel, but these were minor and did not considerably change the normative situation.The significant turning point in that direction was made by the Hafetz Hayim, who composed a‘‘Shulhan Arukhof Libel and Talebearing,’’as one of his contemporaries characterized it.65 For this purpose, the Hafetz Hayim needed to develop relatively novel tools, which we will now examine…
Having rejected the path of systematic deduction from the musar principles relating to libel, the Hafetz Hayim adopted two other paths:on the one hand, he turned to halakhic literature and extracted from it short sayings, often sayings that were stated in other contexts, and through exegesis developed them to much larger dimensions than they had in their original sense. On the other hand, he turned tomusarliterature, to theaggadahand even to the Bible, and constructed rulesout of them. He often analyzes these sources legalistically inBe’erMayim Hayimas if they were ordinary halakhic sayings. As I mentioned above, turning to the Bible and the aggada has sources for principles was a common practice of musar literature, but was not at all common in halakhic literature as sources for rules…
More striking than the reliance of the Hafetz Hayim on Sha‘arei Teshuvahis his use of biblical and aggadic texts to derive halakhic rules. The biblical character who is most appropriate for this purpose is Miriam, who, according to the Torah, suffered from leprosy because she spoke libel against her brother, Moses. The Torah commands that the incident be remembered throughout the ages in order to preserve the lesson that it teaches (Num 24:9). On this issue, the Hafetz Hayim establishes a broad exegetical principle:‘‘It is known that we deduce[laws] from everything that was said about Miriam, as it is written:’Remember what the Lord your God did to Miriam’.’’96 He applies this maxim in a list of laws that he derives from the story of Miriam,including the following: that to be guilty of libel, unlike gossip, it is enough to bring others to speak libel, and it need not lead to a quarrel;97 that a person can transgress the prohibition of libel even if he did not intend to hurt the offended party, but only meant to speak the truth, provided that he did not formally rebuke him prior;98that the prohibition of libel applies to relatives, as well;99 that the prohibition of libel applies even if the offended party does not feel offended by it;100 and that the prohibition of libel applies to women as well as to men.101 Yet, the Hafetz Hayim learns not only from the incident of Miriam, but also from countless other biblical stories, as well as from aggadic and midrashic literature…
I again emphasize that the previous are just a few examples among many cases in which the Hafetz Hayimuses biblical and aggadic sources to derive halakhic rules, the second path that I referred to above. Thi spath, which was fruitful in the musar literature as a means of deriving principles, was rarely used to derive laws in the halakhic tradition.Nevertheless, in his work on the issue of libel, the Hafetz Hayim transformed it into the primary method of deriving rules, and applied the classical halakhic analytical techniques to these sources as if they were indeed legal texts. It appears that in certain instances, the Hafetz Hayim takes norms that are explicitly or implicitly considered middat hasidut (pietistic virtue), and transforms them into binding norms…
4. The Tendency of Halakhization: Stringency
There is no question that the halakhization of the area of libel had a significant impact on its content. Essentially, the transition from principles to rules certainly contains the potential for increased stringency, but it also has the potential for increased leniency.Nevertheless, in this instance, there is an added element of the personal approach of the Hafetz Hayim, which significantly strengthened the tendency toward stringency. When discussing criminal (or ethico-religious) norms, the transition from principles to rules is generally a movement toward greater stringency, at least in the particular domain in which it is applied…
Particularly because musar literature urges its readers to aspire to certain principles and goals, it does not have to present the limitations to these principles, nor the competing principles that may need to be balanced with them.
An excellent example of this is Hilkhot De‘otof the Mishneh Torah,in which Maimonides includes only one limitation of the prohibition, even though he certainly was aware of many more.129 The assumption that underlies this phenomenon is that there are so many possible situations in which there will be conflicts between principles, that it would be impossible to clarify all of them. Furthermore, it is impossible to know which principles would take precedence in every possible circumstance. Thus, it is sufficient to inform the reader of the principles, and to encourage him to strive for its fulfillment to the best of his ability. In the codification of rules, on the other hand, the potential conflicts between principles and their resolution in specific circumstances must be expressed, and, in fact, that is one of the very goals of formulating rules. Thus, a halakhic authority who writes about a particular commandment without including its limitations has not been true to his task. In fact, the Hafetz Hayim included at the end of each section of his book a chapter indicating situations in which libel or gossip is permitted.130 Similar elaboration is spread throughout the work. From this standpoint, the halakhization of the prohibition of libel served as a catalyst for the creation of leniencies.
Hayim utilized both options, but the dominant trend in his book is in the direction of stringency.132 This trend finds expression in his effort sto limit the application of a number lenient positions relating to libel in rabbinic literature. The following are several examples of such rabbinic statements that appear to express leniencies regarding the prohibition of libel:A. The Babylonian Talmud explains the statement of Rabbah b. Rav Huna that‘‘anything said in front of three people is not considered libel,’’based on the assumption that it will spread in any case:‘‘Your friend has a friend, and your friend’s friend has afriend.’’133B. Rabbah stated that it is permissible to say libel in front of the offended party:‘‘Anything said in front of the person is not considered libel.’’134 He bases this statement on the opinion of Rabbi Yosi:‘‘I never said anything and turned around.’’Rashi broadens this leniency even further, holding that to remove the statement from the category of libel, it is not necessary for the person to actually say the statement in front of the offended party, but enough that he is prepared to do so.13
C. The Jerusalem Talmud cites the following statement in the name of Rabbi Yonatan:‘‘It is permissible to speak libel about quarrel-mongers.’’136D. bYoma states:‘‘One may publicize the [identity of] hypocrites inorder to prevent desecration of God’s name.’’137E. Rav Ashi stated that‘‘it is permitted to call a person who has acquired a bad reputation a ’gimmel’ora’shin’.’’In other words,one about whom there are negative rumors138 can be degraded and called‘‘son of a whore’’and‘‘son of a rotten one’’(or‘‘son o fa stupid whore,’’or‘‘son of a Gentile,’’or‘‘son of a slave,’’according to other interpretations), which casts aspersions not only on him, but also on his mother.139 Similarly, Rav said:‘‘One may flog a person for negative rumors.’’140 Rashi explains that‘‘a person about whom it is reported that he transgressed is given lashes.’’bM.Q. records a story in which Rabbi Yehudah allowed himself to excommunicate a scholar because‘‘bad rumors had been heard about him’’.141 Also among the rishonim (medieval
rabbis), we find that it was permissible to impose sanctions basedon rumors.F. We often find sages making demeaning comments to their fellow sages. Thus, Rabbi Yehudah ha-Nasi said about his disciple Rabbi Levi that‘‘it appears to me that he has no brain in his skull.’’142 Resh Lakish called two sages‘‘cowherds,’’and they, on their part,saw him as a‘‘a troublesome fellow’’(or‘‘a nuisance’’).143 When Rav Kahana, previously described by Resh Lakish as‘‘a lion,’’did not ask even one critical question in Rabbi Yohanan’s lessons, the latter said:‘‘The lion you mentioned has become a fox.’’144 Rava called Rafram b. Pappa‘‘patya ukhma’’(literally:‘‘black pot,’’but the pun alludes to ’fool’) and castigated Rav Illish as being like‘‘dayanei hatzatzta’’(according to Rashbam – incompetent judges who decide the cases by dividing the sum in dispute in half).145 The term‘‘Bavla’ei tipsha’ei’’(foolish Babylonians) appears often as a derisive label for Babylonian sages.146 Indeed, we may find many more expressions of this type in rabbinic literature.
When viewing all of these statements together, one gets the strong sense that the Rabbis viewed libel as a prohibition to which quite a few limitations are attached, and consequently as a relative one. This point strengthens the assumption that they saw it as a principle that at times had to be balanced with other principles. As such, it was not necessary to formulate as rules how to resolve conflicts between libel and other principles. However, in addition to expressing the normative status of this prohibition, these statements also provide a window into thecultural world of the Rabbis, a world in which rumors were considered a legitimate, and at times necessary, element of communication – i.e., that the degradation of an individual by means of rumors was considered a normal social sanction and not libel. It seems that the Rabbis allowed acertain level of offensive expression against one whose behavior was deemed inappropriate, and that the parameters that they established for themselves were only slightly higher than the standard accepted in society in general. Although the medieval commentators subsequently tended to interpret these norms in a more limited fashion, they still did not establish for themselves an unreasonable standard, as is clear in the parameters that they utilized for expressing themselves in their own internal discourse. It was not uncommon for them to exchange sharp comments in the heat of their controversies. The harsh comments of the Rabad against Maimonides and the severe remarks of Nachmanides against Rabbi Zerahiah ha-Levi are well known. Apparently, they did not view this as a violation of the prohibition of libel.Post-talmudic rabbinic literature could have utilized these statements to derive a host of leniencies regarding the prohibition of libel. In addition, since several of these statements refer to the public interest,they might have been utilized for a modernistic interpretation promoting a doctrine similar to that of freedom of speech in modern law. Nevertheless, the post-talmudic authorities did not try to extend these openings for leniency. On the contrary, they tried to limit them. As previously stated, rabbinic literature in the Middle Ages for the most part attempted to restrict the application of these statements through interpretation. The Hafetz Hayim took this trend to an extreme and tried as much as possible to neutralize or minimize them…
In general, it is enough to take a quick glance at the two chapters in the Hafetz Hayimon permits for speaking libel and for speaking gossip,to discern that the author’s approach is to create a series of stipulations that restrict their application.195 For example, the permit to speak libel in order to help a person who has been harmed is qualified by seven conditions: that the person speaking saw the harm himself, and did not hear it from others; that he clarified that the incident was indeed within the category of damage; that he tried first to rebuke the perpetrator; that the libel will not increase the damage; that his intention is to be helpful, and‘‘not God forbid to benefit from the flaw that he causes to his friend’’; that there is no alternative way to rectify the situation; that the harm caused to the perpetrator not be greater than the harm that he had caused. On this the Hafetz Hayim adds the somewhat strange condition that the person who tells the libel be on a higher ethico-religious level than the person about whom he tells it.196 A similar list can be found in the laws of gossip.197 These conditions are practically impossible to fulfill, but the Hafetz Hayim emphasizes that ‘‘one must be very careful in this permit that none of the above details are lacking.’’
…The Hafetz Hayim does not relate at all to freedom of the press inhis work on libel, nor does he refer to newspapers or other more advanced forms of communication. It is important to point out that the question was clearly relevant at his time, for in the year that his book was published (1873), a number of Jewish periodicals flourished in the Russian Empire in Yiddish, Hebrew, and Russian. He reserved dealing with them to later publications and letters, in which he expressed a sweeping ban on reading newspapers.232 There is no indication that this ban excluded ultra-orthodox newspapers or other‘‘kosher’’journals.This prohibition was so extreme that even the Hafetz Hayim could not maintain it. We know of quite a few instances from his later years in which he wrote to Orthodox newspapers in Poland,233 and of several instances in which he responded to articles that had been published insecular or Haskalah newspapers.234 In general, he negates the value of ‘‘the right of the public to know,’’even in absolutely public issues. For example, the rabbinic prohibition for a judge to reveal to a defendant after the trial that he advocated a minority opinion to exonerate235 is extended by the Hafetz Hayim to other public institutions and to non-judicial processes.236
Neither did the Hafetz Hayim relate at all to academic freedom or art criticism, ideas that were completely foreign to his cultural world.The tension between freedom of expression and libel arises most strongly with regard to the study of history. Given the prohibition expressed by the Hafetz Hayim to speak libel about the deceased237 and his very limited definition of significant outcomes that might justify libel, not only is it clear that he would limit academic freedom in this regard, but he applies these concepts even to biographies of the traditional type. Moreover, even when the rabbinic Sages saw fit to denigrate a contemporary, the Hafetz Hayim was careful to make sure that it not be extrapolated to create a more general permit.
…A study of the halakhization of the prohibition of libel is not complete without a discussion of the issue of sanctions. In most modern legal systems, the publication of libel is considered both a criminal offense and a civil wrong. In the Talmud, by contrast, it is considered a‘‘negative commandment that does not relate to an act.’’As a result, it carries no corporeal punishment or compensation for damages.246 Nevertheless, already in the times of the Geonim, ordinances were enacted that imposed excommunication on one who acted abusively toward another, and in later generations we find the imposition of flagellation, compensation, and public apology.247 Very surprisingly,the Hafetz Hayim does not relate at all, either positively or negatively,to the issue of punishment, and gives no references to sources that deal with the issue. This is a resounding silence.
Marc B. Shapiro writes in Changing the Immutable: “Much of what the Hafets Hayim includes in his halakhic codification of leshon hara was not regarded by earlier sources as having real halakhic standing… Not noted by Brown is R. Jacob Emden’s view that you an speak leshon hara about someone who has ‘sinned’ against you. See his note on Mishnah Avot 1:17 in the Vilna Romm edition of the Talmud, and the complete version of this note (from manuscript) published in Emden, Megilat sefer, 6.” (113)