The Chofetz Chaim (of blessed memory) states that a Torah written by a heretic must be burned. At an economic loss of $15,000 upwards, is it permissible ethically and according to Jewish values to make full disclosure of the defects of such a Torah, and sell it under those conditions to a Conservative or Reform (or any) congregation that is in need of one? It is assumed that the text of the Torah itself is without error or shmad (heretical defect).
To be honest, I originally had some difficulty with this question when I first read it. I could not understand exactly what the essence of the question was. It, in fact, touches upon many different issues and to approach it correctly, we have to systematically consider them all.
Before proceeding with this analysis, though, I should mention that this directive that such a sefer Torah must be burnt is actually not solely the words of the Chofetz Chaim. This statement is actually found in T.B. Gittin 45b and is presented as the halacha in Rambam, Mishneh Torah, Hilchot Yesodei HaTorah 6:8 and Shulchan Aruch, Yoreh De’ah 281:1.
1 Economic loss in doing a mitzvah
The first issue would seem to be the question of how much financial loss one must suffer in the fulfilment of a mitzvah. While there is actually some halachic discussion on this topic, Rema, Shulchan Aruch, Orach Chaim 656:1 concludes that one must be willing to give up all his/her money to avoid violating a negative command (Lo Ta’aseh) and one must spend up to 20% of his/her wealth to fulfil a positive command (Aseh) and. (See, further, Mishneh Brura in regard to these percentages referring to wealth and not income.) So it would seem that pursuant to this opinion, if the directive to burn this sefer Torah (worth $15,000) is deemed to be an Aseh, if one’s assets are less than $75,000, one would seem to be exempt from burning it. If, however, the directive is actually a derivative of a Lo Ta’aseh (do not allow this sefer Torah to continue to exist), the cost is irrelevant; it must be burnt. The fact is, though, that this analysis is not really an issue in this case.
This sefer Torah must, actually, already be looked upon as valueless. In that this sefer Torah was written by a heretic, Rambam states that it does not possess any holiness for the names of God, when written, must be written with proper intent. As the heretic did not possess this proper intent, these names cannot be considered to have any holiness and thus this sefer Torah does not contain any spiritual value. This is also the reason for why, although there is a general prohibition of destroying the written name of God, this is not a reason for not burning this sefer Torah. As such, in that the economic value of a sefer Torah would be tied to its utility as a religious item, and this sefer Torah would not possess this utility, we could not see it as worth this $15,000. In the view of the Halacha, it is deemed to have no value – and, in fact, that is why we do burn it. We are thereby declaring that such a sefer Torah, written by a heretic, is deemed to be worthless.
2. Selling such a sefer Torah
Given the above, what one is really considering through this offer of selling this sefer Torah is whether it is okay to sell something which I consider worthless to someone who gives it value. While in a regular transaction, this would not be a problem given full disclosure, it is still clearly one here. In a regular case, the fact that the vendor considers something to have no value is not a problem as long as the purchaser knows exactly what he/she is buying. The purchaser giving the object value gives it value. In this case, though, this is not the case. In that the very call to burn such a sefer Torah is to specifically demonstrate that it is worthless, the Halacha is making the specific point that, even if someone wishes to assign value to this object, we are to emphatically declare that it is actually without value. I am being called upon to reject the purchaser’s perspective that such a sefer Torah has value. The call to burn it is a call to declare it worthless regardless of what others may think.
It is important to recognize that your point about full disclosure is inherent within this conclusion as is the assumption that the sefer Torah is without textual error. The issue is its heretical defect. The fact that it was written by a heretic is defined within the Halacha as a heretical defect – in fact, a major heretical defect to the extent that one is called upon to destroy it to ensure that no one then gives it value. I would have to reject the option to sell it to a Conservative or Reform synagogue for I would then be giving it value.
3. Use by a Conservative or Reform synagogue
There are also other issues. We must ask: why would a Conservative or Reform synagogue be willing to purchase this sefer Torah if the Halacha defines it as unacceptable? There are two possible approaches in answering this question. One is that they do not feel bound by this law – a difference between Conservative and Reform Judaism being in why they feel a certain law (as defined within Orthodoxy) is no longer binding or valid. (Many do not recognize that the distinctions in the branches of Judaism are not simply reflections of differences in behaviour and practice. There are major theological distinctions between the branches that are often overlooked, I believe, under the false impression that greater knowledge of these differences will only foster friction and disunity within the Jewish People. I actually believe just the opposite – that greater knowledge of these theological differences will actually improve unity for discussion will then be based on knowledge and recognition of honest, different perspectives. See my Adjective and Non-adjective Jews on the Nishma website at www.nishma.org. I also believe that this is one of the important values of this website, Jewish Values Online, for this promotes intelligent dialogue within real parameters.)
So, returning to our issue, in this case, the Conservative or Reform synagogue may be interested in purchasing this sefer Torah because they feel that, even though it was written by a heretic, it is still valid. If this is so, though, the question of whether it is permissible to sell such a scroll to them would be similar to a question of whether I could give a follower of Reform Judaism something non-kosher to eat given that this movement does not believe that these general laws of kashrut are presently binding. The answer to this question is clearly no – and the same rule would apply to selling them this sefer Torah even given the difference in their view of the law.
Before continuing on this issue, though, it may first be important to highlight the even potentially further sensitive nature of this issue. The other reason that these non-Orthodox synagogues may be willing to purchase this sefer Torah is because, while they may agree that one should not use a scroll written by a heretic, they may not deem the person who wrote this sefer Torah under discussion to be such a person. The fact is that someone who, today, generally abides by the theological perspectives of the Conservative or Reform movement would, most likely, be defined as a heretic from an Orthodox perspective. So the case may even be that someone affiliated with this Conservative or Reform synagogue wrote this sefer Torah and they now wish to purchase it from the Orthodox synagogue which possesses it. The Orthodox synagogue which owns it, though, upon finding out that it was written by this person, now believes they have to burn it. (While there may be some question today of whether they actually have to burn it, they clearly have to ensure that it is no longer used.) They cannot sell it to these other synagogues. For our investigation of this issue, it is thus important for us to also briefly touch upon the issue of tolerance and mutual respect between the branches.
When the intolerance of one faith perspective for another is generally witnessed, what is usually encountered is not only a presentation that the other is incorrect in his/her belief but also a judgemental statement that the other thereby deserves punishment. What we effectively find is a response to the idea and a response to the person. What we find within the Halacha, though, is an adamant separation of the two. As with any system which believes itself to be true, Halacha, by definition, must also perceive other systems, which offer a different perception of reality, to be wrong. As such, in situations such as this one, Halacha demands that one approach such a situation solely within the perspective of its system. If it declares this sefer Torah unable to be used, this is deemed to be an objective conclusion that must be applied universally, notwithstanding that another may not share this conclusion. In terms of the object, Halacha demands its adherents, in their behaviour, to maintain its standard as objectively correct.
In terms of a person, Halacha, though, also takes a distinct stand of extensive tolerance. Just because one comes to a conclusion that, from the perspective of Halacha, is incorrect, does not mean that the one arriving at this conclusion is to be necessarily judged negatively because of it. The conclusion not to sell this sefer Torah to the Conservative or Reform synagogue, thus, should not be seen as a judgemental statement condemning these individuals negatively. Even the declaration that the one who wrote this scroll is a heretic is not to be seen in a judgemental way. This is simply the reality. Since the person did not have the thoughts about God which the Halacha deems to be correct, the scroll is deemed to thereby have no value. As to the scribe’s status in the eyes of God, only God knows that and it is emphatically not for us to judge. Not selling such a sefer Torah to a Conservative or Reform synagogue is simply a statement about the sefer Torah and not about the people.
So, in conclusion, in answer to your question, one would not be permitted to sell such a sefer Torah to another congregation. One must take the loss (although there may be a question today whether one would have to burn such a scroll or just bury it).
Thank you for writing to me about your concern. Now, let us take a look at the issues you raise.
Part 1: Defining the Problem
There are many issues and presumptions that you make in your question that are in my opinion, dubious in nature. For example, you presume that a Torah written by a “heretic” “ought to be burned.” However, you never define “Who is a heretic?” Just as the “Who is a Jew?” is a debate, so too is the question, “Who is a heretic?” Still and all, you never defined your terms and such assumptions can only lead to erroneous conclusions that are not warranted by the Halacha. Given the political nature of Judaism today, I must question whether it even proper to assert that “Reform” or “Conservative” rabbis are justly considered “heretics” because of their alleged “heretical” views.”
Historically, unlike Christianity that posits proper belief is essential for salvation, Judaism has historically been more concerned about “Ortho-prax,” proper religious behavior rather than the matter of “Orthodox” (“correct opinions”). According to Webster’s Dictionary, “orthodox derives from the Latin orthodoxus, Greek ὀρθόδοξος; ὀρθός right, true + δόξα opinion, δοκεῖν to think.” Webster goes on to add.
Sound in opinion or doctrine, especially in religious doctrine; hence, holding the Christian faith; believing the doctrines taught in the Scriptures;—opposed to heretical and heterodox; as, an orthodox Christian.
According or congruous with the doctrines of Scripture, the creed of a church, the decree of a council, or the like; as, an orthodox opinion, book, etc.
Approved; conventional.
As you can see, the very term that many “observant” Jews use to define themselves reflects—ironically and paradoxically—Christian influence. One might even say that many observant Jews today are oblivious to the Christianization of Judaic belief; throughout Jewish history, no one solitary rabbinical scholar has ever had the authority to speak “ex cathedra,” so to speak. (Please pardon my pun.) Pluralistic interpretations are essential because "The Torah has seventy facets" (Numbers Rabbah 13:15-16).
Part 2: The Talmudic Origin of the Law Regarding the Heretic’s Torah
Before going any further in answering the other halachic issues you raise, I think it is important to examine the origin of this particular halacha, which derives from the Talmudic tractate Gittin 45b:
R. Nahman said: We have it on tradition that a Torah scroll that has been written by a Min should be burnt, and one written by a heathen should be stored away.
In the interest of brevity, we need to define what exactly is meant by the term “min” and after we define this term, we need to determine whether one may apply “min” to anyone who happens to be a non-Orthodox rabbi or a member of a non-Orthodox synagogue.
According to the Soncino Talmud (which was written by Modern Orthodox scholars led by R. Isadore Epstein), the term “min” refers specifically to “either a heathen bigot or fanatic.” The reason that a Torah written by a pagan is forbidden to read is because the “Torah scroll may have been written for an idolatrous purpose.”
R. Adin Steinsaltz explains that the “heretic” in the Talmud probably refers to someone who was a member of the Christian faith. Since the element of intentionality is significant and has profound halachic importance whenever the scribe writes any of the Divine Names, we fear that the Jewish Christian scribe most likely associated God’s Name with Jesus and the Trinity.[1]
The Jerusalem Talmud [2] lists that twenty-four types of minim (heretics) existed in the first and subsequent centuries that followed the destruction of the Second Temple. Alleged heretical beliefs included many types of belief:
(1) Anyone who denies God’s unity.
(2) Dualism in all of its forms (Gnostic, Trinitarian, or Zoroastrian)
(3) Denial of Providence
(4) Denial of Israel’s mission to the world
(5) Denial of salvation
(6) Denial of Resurrection
(7) Denial of a Messianic Redeemer or Messianic Age[3]
Maimonides himself viewed minut as atheism, or anyone who denied the existence in the theological doctrine of creatio ex nihilo “creation from nothing”) or the notion that man requires an intermediary to worship God (MT Hilchot Teshuva 3:7).
Contrary to many Talmudists—both ancient and modern—there is an impressive list of Jewish thinkers who rejected the belief in creatio ex nihilo and argued that bara does not necessarily mean “creation from nothing.” Ibn Ezra and even Maimonides both felt that creatio ex nihilo need not necessarily be implied by the verb bara. The 15th-16th century Jewish philosopher, R. Josef Albo concluded that creatio ex nihilo is not a fundamental principle of the Torah.
Maimonides’ own views are far more nuanced than one might realize for he himself did not really believe in physical resurrection—a point that many of Maimonides’ greatest critics suggested. If you wish to familiarize yourself with this discussion, see Marc B. Shapiro’s brilliant book, The Limits of Orthodox Theology: Maimonides’ Thirteen Principles Reappraised (Portland Or; Littman Library, 2004), pp. 71-78; 132-157. Any Orthodox person reading this book must come to the inevitable conclusion that beliefs have always varied throughout Jewish history and that any attempt to create a Procrustean theology that consists of one voice is wrong-headed and foolish. [4]
Part 3: The “Heretic’s Torah Scroll”
It is astounding in my view how any responsible Orthodox thinker could think that profiting from a “heretical” Torah scroll is considered permitted—especially when one can make a tidy $15,000 profit selling such a scroll to a “heretical” place of worship such as a Conservative or Reform synagogue. One gets the distinct impression from your original letter that whenever there is a profit to be made, one can sell anything to the “heretic,” for all money is kosher.
Such an attitude is not God-centered, but it is mammon centered.
Halacha provides an interesting analogy to our situation: A person is forbidden by law to sell a forbidden unkosher mixture of meat and milk, or for that matter—any forbidden substance to a Jew. Aside from the fact that one is placing “a stumbling block before the blind” (Lev. 19:14). With regard to your original question, it seems to me that you have no right—ethical or religious—to financially benefit from a Torah scroll that you consider to be defective by selling it to members of a “heretical” Jewish community. The very use of such terminology when used regarding Jews of different beliefs is potentially incendiary and divisive; such attitudes lead only to more sinat hinnum.
Since Conservative or Reform Jews and their rabbis are clearly not the heretics that the Talmud was originally speaking of. I suggest to you that it is permitted to sell a defective Torah scroll provided you inform the purchaser that it needs repair. Heresy is a complete non-issue here. In short, under no circumstances should you burn the Sefer Torah. If its errors cannot be corrected, I suggest you give the Torah to a skilled scribe who knows how to repair it.
Notes:
[1]Peter Schäfer’s new book, Jesus in the Talmud, takes umbrage with the old Christian view that asserts “min” to be invariably “Christian,” whenever it appears in the Talmud.
[4] Incidentally, Shapiro completely demolishes the responsa of R. Moshe Feinstein who alleges that all Conservative and Reform rabbis are "heretics" and that it is even forbidden to answer "Amen!" to their prayers. See Igrot Moshe YD Vol.1, Responsa 172; OH Vol. 4: 91. Like Rabbi Schnersohn and R. David Bleich, R. Feinstein believed anyone who rejected Maimonides' Thirteen Principles was and is a "heretic."
There is no question that a Sefer Torah should be treated with respect, and that a Jewish community of any movement should also be treated with respect. While the Chofeitz Chaim (as well as RAMBAM and Rabbi Moshe Feinstein) make the argument that such a Torah--that is, written by a heretic--is only fit to be burned, we must ask the question of how to define heresy in this case.
Such laws were, I suspect, created with an eye against proselytization--those who would lure Jews away from Judaism. If a non-Jew gives you a text, do you treat it as sacred and, God Forbid, consider following their faith practice? Would the seller use this as an opportunity to insinuate himself into the community and try to undermine it through non-Jewish teaching? Or is the scribe 'merely' of questionable morals, or has some thoughts about Judaism or Torah learning that are acceptable to some communities but not others (example: would a sefer Torah written by a woman who is counted in her faith community's minyan be considered 'heretical' by some)?
Today we live in a pluralistic society and an open marketplace of ideas. While some communities might object--especially if there were 'strings attached' ('you can have the Torah scroll for a good price, but I get to come in and preach about how Judaism is bad for an hour' or some other such concept), if it is clear that the Torah is usable and a community is of need, it should be available for consideration. But the 'heresy' of the sofeir should be clearly defined as well. Who knows? Perhaps a congregation would prefer a Torah from a scribe who doesn't believe in God?
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