Over the last several pages of Talmud we have learned the ways in which the rules of mourning share common features with the rules of a person who was excommunicated from the Jewish community. This act was known as herem, although there were varying degrees to which a person could be banned from the interacting with the community. On today’s page of Talmud the rabbis further discuss these rules, and their origin:
מועד קטן טו, א
מַר רָבָא: מְנָלַן דִּמְשַׁדְּרִין שְׁלִיחָא דְּבֵי דִינָא וּמַזְמְנִינַן לֵיהּ לְדִינָא — דִּכְתִיב: ״וַיִּשְׁלַח מֹשֶׁה לִקְרֹא לְדָתָן וְלַאֲבִירָם בְּנֵי אֱלִיאָב״. וּמְנָלַן דְּמַזְמְנִינַן לְדִינָא — דִּכְתִיב: ״וַיֹּאמֶר מֹשֶׁה אֶל קֹרַח אַתָּה וְכל עֲדָתְךָ״
Rava said: From where do we derive that a court agent is sent to summon the defendant to appear before the court before he is ostracized? As it is written…
מְנָלַן דְּאִי מִתְפַּקַּר בִּשְׁלִיחָא דְּבֵי דִינָא, וְאָתֵי וְאָמַר, לָא מִיתְחֲזֵי כְּלִישָּׁנָא בִּישָׁא — דִּכְתִיב: ״הַעֵינֵי הָאֲנָשִׁים הָהֵם תְּנַקֵּר״
And from where do we derive that if the summoned person behaves disrespectfully toward the agent of the court, and the agent comes back and reports his conduct, that this is not considered slander? As it is written…
וּמְנָלַן דְּכָפְתִינַן וְאָסְרִינַן וְעָבְדִינַן הַרְדָּפָה — דִּכְתִיב: ״הֵן לְמוֹת הֵן לִשְׁרוֹשִׁי הֵן לַעֲנָשׁ נִכְסִין וְלַאֲסוּרִין״. מַאי לִשְׁרוֹשִׁי? אָמַר אַדָּא מָרִי אָמַר נְחֶמְיָה בַּר בָּרוּךְ אָמַר רַב חִיָּיא בַּר אָבִין אָמַר רַב יְהוּדָה: הַרְדָּפָה. מַאי הַרְדָּפָה? אָמַר רַב יְהוּדָה בְּרֵיהּ דְּרַב שְׁמוּאֵל בַּר שִׁילַת מִשְּׁמֵיהּ דְּרַב: מְנַדִּין לְאַלְתַּר, וְשׁוֹנִין לְאַחַר שְׁלֹשִׁים, וּמַחְרִימִין לְאַחַר שִׁשִּׁים
And from where do we derive that we may shackle his hands and feet, chain him, and apply pressure? As it is written…
Samuel Hirzenberg. Spinosa. 1907. From here.
KInds of EXCOMMUNICATION
As mentioned, there are various degrees of excommunication within Jewish law. There is niddui, a sort of stage-one of excommunication, which excluded a person from the community for thirty days (see the Rambam here). The person placed in niddui, called the menudeh, was still allowed to study with others and to have business interactions. The next step was complete excommunication, called herem. Once this was imposed, the person had had to conduct themselves as if they were in a state of mourning; they could not cut their hair, or wear laundered clothes. They were forbidden to wash, (except for the face, hands, and feet) and they had to live in confinement with only their family. No one else was allowed to come near to them, eat and drink with them, greet them, or give them any enjoyment. If the medudeh was male, he could not be counted for a minyan, and if he died while in herem, his coffin would be symbolically stoned, by placing a single stone on it.
Maimonides on Herem
Maimonides carefully gathered twenty-four behaviors which are grounds for being put in herem (based on the Talmud in Berachot 19a,). He lists them (interestingly enough) in the Laws of the Study of Torah. Here they are:
רמב׳ם הל׳ תלמוד תורה 6:14
א) הַמְבַזֶּה אֶת הֶחָכָם וַאֲפִלּוּ לְאַחַר מוֹתוֹ. ב) הַמְבַזֶּה שְׁלִיחַ בֵּית דִּין. ג) הַקּוֹרֵא לַחֲבֵרוֹ עֶבֶד. ד) מִי שֶׁשָּׁלְחוּ לוֹ בֵּית דִּין וְקָבְעוּ לוֹ זְמַן וְלֹא בָּא. ה) הַמְזַלְזֵל בְּדָבָר אֶחָד מִדִּבְרֵי סוֹפְרִים וְאֵין צָרִיךְ לוֹמַר בְּדִבְרֵי תּוֹרָה. ו) מִי שֶׁלֹּא קִבֵּל עָלָיו אֶת הַדִּין מְנַדִּין אוֹתוֹ עַד שֶׁיִּתֵּן. ז) מִי שֶׁיֵּשׁ בִּרְשׁוּתוֹ דָּבָר הַמַּזִּיק כְּגוֹן כֶּלֶב רַע אוֹ סֻלָּם רָעוּעַ מְנַדִּין אוֹתוֹ עַד שֶׁיָּסִיר הֶזֵּקוֹ. ח) הַמּוֹכֵר קַרְקַע שֶׁלּוֹ לְעוֹבֵד כּוֹכָבִים מְנַדִּין אוֹתוֹ עַד שֶׁיְּקַבֵּל עָלָיו כָּל אֹנֶס שֶׁיָּבוֹא מִן הָעוֹבֵד כּוֹכָבִים לְיִשְׂרָאֵל חֲבֵרוֹ בַּעַל הַמֵּצָר. ט) הַמֵּעִיד עַל יִשְׂרָאֵל בְּעַרְכָּאוֹת שֶׁל עוֹבְדֵי כּוֹכָבִים וְהוֹצִיא מִמֶּנּוּ בְּעֵדוּתוֹ מָמוֹן שֶׁלֹּא כְּדִין יִשְׂרָאֵל, מְנַדִּין אוֹתוֹ עַד שֶׁיְּשַׁלֵּם. י) טַבָּח כֹּהֵן שֶׁאֵינוֹ מַפְרִישׁ הַמַּתָּנוֹת וְנוֹתְנָן לְכֹהֵן אַחֵר מְנַדִּין אוֹתוֹ עַד שֶׁיִּתֵּן. יא) הַמְחַלֵּל יוֹם טוֹב שֵׁנִי שֶׁל גָּלֻיּוֹת אַף עַל פִּי שֶׁהוּא מִנְהָג. יב) הָעוֹשֶׂה מְלָאכָה בְּעֶרֶב הַפֶּסַח אַחַר חֲצוֹת. יג) הַמַּזְכִּיר שֵׁם שָׁמַיִם לְבַטָּלָה אוֹ לִשְׁבוּעָה בְּדִבְרֵי הֲבַאי. יד) הַמֵּבִיא אֶת הָרַבִּים לִידֵי חִלּוּל הַשֵּׁם. טו) הַמֵּבִיא אֶת הָרַבִּים לִידֵי אֲכִילַת קָדָשִׁים בַּחוּץ. טז) הַמְחַשֵּׁב שָׁנִים וְקוֹבֵעַ חֳדָשִׁים בְּחוּצָה לָאָרֶץ. יז) הַמַּכִשִׁיל אֵת הָעִוֵּר. יח) הַמְעַכֵּב הָרַבִּים מִלַּעֲשׂוֹת מִצְוָה. יט) טַבָּח שֶׁיָּצְאָה טְרֵפָה מִתַּחַת יָדוֹ. כ) טַבָּח שֶׁלֹּא בָּדַק סַכִּינוֹ לִפְנֵי חָכָם. כא) הַמַּקְשֶׁה עַצְמוֹ לְדַעַת. כב) מִי שֶׁגֵּרֵשׁ אֶת אִשְׁתּוֹ וְעָשָׂה בֵּינוֹ וּבֵינָהּ שֻׁתָּפוּת אוֹ מַשָּׂא וּמַתָּן הַמְּבִיאִין לָהֶן לְהִזָּקֵק זֶה לָזֶה כְּשֶׁיָּבוֹאוּ לְבֵית דִּין מְנַדִּין אוֹתָם. כג) חָכָם שֶׁשְּׁמוּעָתוֹ רָעָה. כד) הַמְנַדֶּה מִי שֶׁאֵינוֹ חַיָּב נִדּוּי
He who disgraces the wise even after his demise;
He who disgraces a messenger of a tribunal;
He who calls his fellow a “slave”;
He whom a tribunal summoned to appear and set a date for his appearance and he did not come;
He who scoffs at a matter enacted by the scribes, needless to say, a matter mentioned in the Torah;
He who did not carry out a judgment of a tribunal is ostracised until he will comply;
He who keeps in his premises something which may cause damages, such as a bad dog, or a broken step ladder, is ostracised until he will remove the damaging article;
He who sells his immovable property to an idolater is ostracised until he will assume responsibility of any mishap that may be brought about by the idolater against his fellow, the Israelite, his erstwhile adjoining neighbor;
He who testifies against an Israelite in the idolatrous court, and judgment is obtained against him as a result of his evidence to pay money contrary to the laws of Israel, is ostracised until he will make restitution;
A priest who is a butcher and does not separate the priestly gifts and give them to another priest is ostracised until he will give;
He who disgraces the second day of a holiday in Diaspora, even though it is but a custom;
He who does servile work during the afternoon of Passover Eve;
He who mentions the Name of Him Who is in heaven in vain or takes oath by the Name in non-essential matters;
He who causes many to commit blasphemy against the Name;
He who causes many to eat holy food outside of Jerusalem;
He who calculates years and appoints months in Diaspora
He who causes the blind to stumble;
He who deprives many of performing a mandatory commandment;
A butcher who underhandedly deals out terefah;
A Sho'het who practices She'hita without having his slaughtering knife examined by and obtained authority from a Rabbi;
He who consciously brings on erection;
He who divorced his wife and then forms a partnership between himself and her, or establishes a business which brings them together, when they appear before a tribunal, they should be ostracised;
A scholar of a universally evil reputation;
He who excommunicates one who was not guilty of an offense punishable by excommunication.
How the Herem was used
This is a long list, and covers both very public and very private sins, very consequential ones, and ones that seem very minor. Not content with only twenty-four opportunities, the twelfth-century French rabbi Avraham ben David of Posquieres (Ra'avad) added some more of his own (“ויש אחרים הרבה”). Over the centuries the threat or reality of excommunication was used many times, and with great effect. Perhaps the most famous general edict was made by Rabbenu Gershom (c.960-1040) who banned polygamy under threat of excommunication; the ban is still in force to this day. Others used the threat to prevent price gouging, like the herem against raising the price of wine, or to prevent unwanted behavior, like the herem against gambling (but not against playing chess). The Jerusalem rabbi Nachman Koronol (1810-1890) cites a lengthy text used for the ceremony of excommunication. It involved burning and then dramatically extinguishing black candles, reading a list of curses from the Torah, and sounding the shofar. We will look at two of the many people who were placed in herem over the centuries: Baruch Spinoza and Mordechai Kaplan. The first was probably placed in herem because he turned his back on traditional Jewish teaching, and the second because he wanted to modernize it.
The Excommunication of Baruch Spinoza
Spinoza (1632-1677) was born in Amsterdam where he studied at the local talmud torah. He did not complete his studies to become a rabbi, for when his half-brother, Isaac died in 1649 he was needed to help in the family’s importing business. He slowly moved away from Judaism, but the exact process by which he was judged to be dangerous enough to be placed in herem is not known. It was certainly long before the publication of his his TractatusTheologico-Politicus which came out anonymously in 1670, or his Ethics, which was only published after his death. But whatever the cause, in July 1656, when Spinoza was only twenty-three years old, he was excommunicated by the Jewish community of Amsterdam. The original Hebrew version (if there was such a thing) has been lost, but there is a version written in Portuguese.Here is a translation:
Ban in Portuguese of Baruch Spinoza by his Portuguese Jewish synagogue community of Amsterdam, Amsterdam, 6 Av 5416 (27 July 1656). From here.
The Lords of the ma'amad, having long known of the evil opinions and acts of Baruch de Espinoza, have endeavoured by various means and promises, to turn him from his evil ways. But having failed to make him mend his wicked ways, and, on the contrary, daily receiving more and more serious information about the abominable heresies which he practised and taught and about his monstrous deeds, and having for this numerous trustworthy witnesses who have deposed and borne witness to this effect in the presence of the said Espinoza, they became convinced of the truth of the matter; and after all of this has been investigated in the presence of the honourable chachamim [sages], they have decided, with their consent, that the said Espinoza should be excommunicated and expelled from the people of Israel.
By the decree of the angels, and by the command of the holy men, we excommunicate, expel, curse and damn Baruch de Espinoza, with the consent of God, Blessed be He, and with the consent of all the Holy Congregation, in front of these holy Scrolls with the six-hundred-and-thirteen precepts which are written therein, with the excommunication with which Joshua banned Jericho, with the curse with which Elisha cursed the boys and with all the curses which are written in the Book of the Law. Cursed be he by day and cursed be he by night; cursed be he when he lies down, and cursed be he when he rises up; cursed be he when he goes out, and cursed be he when he comes in. The Lord will not spare him; the anger and wrath of the Lord will rage against this man, and bring upon him all the curses which are written in this book, and the Lord will blot out his name from under heaven, and the Lord will separate him to his injury from all the tribes of Israel with all the curses of the covenant, which are written in the Book of the Law. But you who cleave unto the Lord God are all alive this day.
We order that no one should communicate with him orally or in writing, or show him any favour, or stay with him under the same roof, or within four ells of him, or read anything composed or written by him.
The ban didn’t do much to stop him. Spinoza left the community, and went on to become one of the most famous Jews in western civilization.
“It was the harshest writ of herem, or religious and social ostracism, ever pronounced on a member of the Portuguese Jewish community of Amsterdam. The community leaders witting on the ma’amad that year dug deep into their books to find just the right words for the occasion. Unlike many of the other bans of the period, this one was never rescinded ”
From the Brown Family Archives.
In 2012 at the JCC in Washington DC, Spinoza’s heresies were discussed before an audience (including yours truly) who then voted on whether or not to rescind the herem. It was, as I recall, a wonderful debate, and in the end the vote was 108 to 41, and the herem was ceremoniously lifted. Actually, this is not as odd as it sounds, because according to Ameimar on today’s page of Talmud, “the halakha is that if three people ostracize another person, three others may come and nullify the decree of ostracism.”
אָמַר אַמֵּימָר: הִלְכְתָא, הָנֵי בֵּי תְלָתָא דְּשַׁמִּיתוּ — אָתוּ בֵּי תְּלָתָא אַחֲרִינֵי וְשָׁרוּ לֵיהּ
The excommunication of Mordechai Kaplan
Another person excommunicated from the Jewish community was Mordechai Kaplan, the founder of Reconstructionist Judaism. “On 12 June 1945,” wrote Zachary Silver in a paper on the subject “a group of Orthodox rabbis known as Agudat HaRabbanim assembled in the Hotel McAlpin in New York and burned the siddur of Rabbi Mordecai Menahem Kaplan of the Jewish Theological Seminary (JTS). His ceremonial book burning concluded the formal excommunication of the founder of Reconstructionism. Just one month after the Allies declared victory over Nazi Europe, a group of rabbis used religious principles and a symbolic act to attempt to stifle a dissenting voice within their midst, even going to the extreme act of burning a prayer book that contained the name of God to underscore their point.” Here is the original description of the ceremony, published in the Daily News Briefing of the Jewish Telegraphic Agency on June 14, 1945:
And there is a report about the herem in the Hebrew journal HaPardes published in July 1945, which included the language that was used:
“It is not surprising that, just one month after America declared victory over Nazi Germany, Agudat HaRabbanim’s declaration of the herem sent a jolt through American Jews’ collective conscience. Particularly when combined with the burning of a holy book, an excommunication marks a refusal to engage in democratic discourse; a herem launches a group attack upon an individual, attempting to render him incapacitated in every segment of his life. Such an act might have caused a similar reaction in any era. But in 1945, with the backdrop of World War II and a rising spirit of cultural pluralism in peacetime American religious life, the herem and, particularly, the burning of a prayer book—recalling Nazi tactics—marked a decisive clash in values between Agudat HaRabbanim and American norms of tolerance.”
Enough already with the threats
Rabbi Shimon ben Zamach Duran (1361-1444), known as the Tashbatz, was asked about whether another rabbi had correctly used the threat of excommunication. This other rabbi, by the name of Yitzhak, had threatened to excommunicate anyone who spread the rumor that his grandson had bribed a government official. In his responsa (Volume 1, #55), the Tashbatz wrote that Yitzhak had no right to issue this threat, and that his excommunications were of no legal standing. But there is one precious sentence in his responsum that is worth pausing over:
שאם באנו להחרים ולנדות המלמדים לשונם לדבר שקר אין נקי והיתה כל הארץ חרם
If we start excommunicating anyone who teaches that which is untrue, it would be incorrect, for the entire land would be filled with those who were excommunicated.
The Jewish community of Amsterdam issued more than one hundred other bans and excommunications. They are listed in the same Book of Ordinances that contains the one against Spinoza. But did they ever work? Do bans and threats of excommunication work today? (The correct answers are possibly and certainly not.) Writing in 1945, then young philosopher (and JTS alum) Sidney Morgenbesser (1921-2004) thought the excommunication of Kaplan was an exercise in hypocrisy.
If Judaism consists in accepting all of the mitzvot of the Torah as binding, why should Bialik and Brandeis be recognized as Jews? Why are even the Orthodox so proud of Einstein and Herzl? Seriously, why not excommunicate all Jews who “keep their places of business open” on Saturday? Why not excommunicate all who accept money from such sources? Why not excommunicate all who suspect that the Greeks may have had something to contribute to human values? Why not excommunicate all who may believe that the world is at least 100,000 years old or those who proclaim in public that America is their home and not a temporary purgatory? The truth is that the Orthodox cannot. There would be no one of any consequence left.
Let’s end with the wise words of the late Rabbi Dr. Norman Lamn, and his reaction to the herem placed on Dr. Kaplan. They are from an interview he gave in 2007 to The Commentator, the student newspaper of Yeshiva University.
If we want to win people over to Orthodoxy, we need to present ourselves as measured, mature, and moderate people with deep faith and the right practice, but we do not insult others and we do not damage or condemn them. Coming out with issurim [decrees that forbid particular actions] against everyone else is like another Fatwa.
When I was younger there was a heretic by the name of Mordecai Kaplan, and the Agudas HaRabbonim had this whole big book burning party. I thought it was ridiculous to have a book burning in the twentieth century. It didn’t make anybody decide to become more religiously observant. Nobody who was reading his books said[,] “If important Orthodox rabbis burned them, we’re not going to read them.” If anything, it aroused interest in people who otherwise would not have wanted to read these books.
But in addition, what it accomplished was that it got people to look at the Orthodox as fanatics. that’s no way to make friends and win people over to Orthodoxy.
“דְּהָהוּא כַּלְבָּא דַּהֲוָה אָכֵיל מְסָאנֵי דְרַבָּנַן וְלָא הֲווֹ קָא יָדְעִי מַנּוּ, וְשַׁמִּתוּ לֵיהּ. אִיתְּלַי בֵּיהּ נוּרָא בִּגְנוּבְתֵּיהּ וַאֲכַלְתֵּיהּ
There was a certain dog that would eat the shoes of the Sages, and they did not know who it was causing this damage. So they excommunicated whoever was doing it. Soon thereafter, the dog’s tail caught fire and got burnt. ”
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