Moshe Kurtz
“Silence is violence.” “Silence is complicity.” These are common soundbites that are often used to compel disinterested parties to state their position on a given political issue. Following the 2020 racial unrest catalyzed by the death of George Floyd, Professor Jonathan Turley makes the following observation:
“Silence is violence” has everything that you want in a slogan from brevity to simplicity. But it can also be chilling for some in the academic and free speech communities. On one level, it conveys the powerful message that people of good faith should not remain silent about great injustices. But it can at the same time have a much more menacing meaning to “prove the negative” by demanding that people show that they are not racist…[1]
Following the October 7 mass terror attack on Israeli civilians and the atrocities that ensued, Bret Stephens, writing for The New York Times, observed how “Silence is violence―but not when it comes to Israeli rape victims.” The inconsistency of political leaders who advocated for the release of captives in previous crises, but either equivocated or were completely silent when it came to Israelis, has rightly incurred the ire of many Jews.
While the above example easily merits an ironclad condemnation from public officials, what remains less clear is how we determine which other geopolitical events merit a similar response―especially in a world with endless suffering in countries such as Ecuador, Ukraine, China (and even domestically within America!).
This quandary exists not only in the general political arena but also in religious contexts. When a scandal or significant event takes place, some will claim that if a rabbi or Jewish leader (particularly one they do not favor already) does not issue a public statement on the matter, then their silence is tantamount to approval, sometimes even employing the Talmudic principle of shtikah ke-hoda’ah: that their silence should be construed as admission. It therefore behooves us to clarify the actual parameters of this principle, which will in turn help us develop the ethical ramifications that naturally emerge.[2]
Silence Due to Disregard vs. The Expectation to Engage
There are several cases in which shtikah ke-hoda’ah appears in the Talmud―one of the iconic instances is found in Yevamot 87b:
And we also learned in a mishnah (Kareitot 11b) that if one witness says to someone: “You ate forbidden fat,” and the accused says: “I did not eat it,” the accused is exempt from bringing an offering. The Gemara infers: The reason he is exempt is that the individual in question said: “I did not eat it,” which indicates that if he had been silent and failed to deny the accusation, the lone witness is deemed credible. Apparently, one witness is deemed credible by Torah law with regard to certain issues… And from where do you infer that the reason is due to the fact that the one witness is deemed credible? Perhaps the accused must bring an offering because he remains silent, as there is a principle that silence is considered like an admission.[3]
Jewish law generally regards two witnesses as the gold standard, whereas a single witness’s testimony is only admissible in more limited circumstances. In the case above, while the single witness’s claim would not be sufficient to convict the accused of consuming forbidden fat, it does serve as a means to eliciting the accused party’s silence which is thereby construed as admission. In civil law we regard the principle of hoda’at ba’al din ke-meah edim damei―a litigant’s admission is equivalent to 100 witnesses (see Kiddushin 65b).[4] Thus, the accused party’s silence is admissible evidence in Jewish law.
However, not every case of silence constitutes admission―sometimes one’s silence is merely indicative of disinterest or disregard. Shulhan Arukh (H.M. 81:7)[5] rules:
Silence is only considered admission when it follows an initial verbal admission… but when he is silent from start to finish, he can claim: “I need not concern myself with responding to you.”
When one verbally concedes to an initial claim, we can construe any subsequent silence to additional claims as continued admission. However, by default, silence does not necessarily constitute admission―quite the opposite actually―there are times that the claim is so spurious that one may decide that it is not even worth engaging with it. To take a lighter and more recent example, if someone were to suggest that we should “reinvent Yom Kippur” with “goat yoga, mosh pits, [and] glow sticks,” as a Wall Street Journal article documented―would we expect that our synagogue rabbis should feel compelled to castigate it publicly? Or perhaps it is so exotic, shall we say, that it need not even be dignified with a response.
There are several occasions in Talmudic discourse in which Rav is silent. In the context of a debate regarding the proper configuration of a sukkah, Ritva (Sukkah 7a, s.v. Ve-Amrinan De-Shatik Rav) writes:
And it is unclear whether this silence is because [Rav] conceded or because he had no concern for their words and they were not worthy of a response.
Ritva concludes that since the conclusion of the Gemara records that the consensus was in line with the position of Rav, perforce Rav himself maintained his own stance. Thus Rav’s silence was simply a disregard for his opponents’ argumentation.[6]
Not only may one who remains silent claim to be disregarding a statement made against them, but even one who initially answers “yes” can later turn around and explain it was done in jest. The Talmud in Sanhedrin (29a) describes a case in which one party claims money from another and the latter can claim, “I was teasing you.” Since this scenario took place in an informal context with no designated witnesses, the claimee can reasonably respond in any future litigation that when he said “yes” it was done in order to dismiss the claimant from further pressing him.
Birkat Avraham (Sanhedrin 29a), in elucidating the position of Ketzot Ha-Hoshen, explains that the claim of jest in the absence of witnesses is a substantial rationale (amatla)[7] to the degree that it renders the initial admission as uprooted from the outset. From what we have seen, in general contexts people are not expected to engage with every claim made against them―and even if one does opt to initially engage, it can subsequently be dismissed as immaterial rather than a formal admission of guilt or obligation.[8]
We should note, however, that the calculus changes when we shift our context to the courtroom. Shulhan Arukh (H.M. 81:6) clearly rules that:
If a claim was made and he admitted in front of the court… he is not able to retract on the basis of jesting. However, he can claim that he already paid [in the interim].[9]
From what we have reviewed, one is not expected to engage with every arbitrary accusation leveled against him. However, if the claim takes place in a formal context, namely a courthouse―a makom mishpat―where one is supposed to be taking the matter seriously, his lack of protest can thus be construed as admission. Furthermore, a subsequent claim of jest would not avail the defendant, as one is obligated to take the judge’s interrogation with utmost seriousness. To return to our example of reinventing Yom Kippur with goats and glow sticks, if this was raised at a formal synagogue board meeting, it would behoove the rabbi to address it. Silence in such a circumstance would be unacceptable.
Silence as an Extrinsic-Circumstantial Mechanism
Rosh (Responsa 107:6), however, expands the application of shtikah ke-hoda’ah beyond our established norms. The case involves a claimee’s refusal to reply in the face of constant accusations outside of the courthouse (in addition to his recalcitrance within the court):
And I say that he should respond and provide a rationale and proof [as to] why he did not respond to the warnings of [the collector’s] agent. It would be expected that when the agent of Rebi Shlomo (i.e., the claimant) gave him the aforementioned warnings that Rebi Yisrael [i.e., the claimee] ought to rend his garments and raise a great and terrible cry to shake the world and let them know that the money he already paid is being claimed from him again a second time. He ought to reply to the agent, “How can you say these things to me―for he knows that I already paid him the money, and he gave me a receipt and it was torn up―for it was torn in front of you!” And [the claimee] ought not to disengage from the agent with silence, which is tantamount to admission.
Rosh asserts that anyone who is the subject of constant assaults on his integrity and reputation should naturally retort to defend himself―that is a fact of human nature. Thus, the accused individual’s silence raises a suspicion.
However, R. Yaakov Ariel (Responsa Be-Ohalah Shel Torah 6:36)[10] explains that Rosh is not employing the literal principle of shtikah ke-hoda’ah; rather, the judges are using their common sense to assess the unique nature of the case presented to them. This is evident from Rosh’s invocation of the guiding principle ein lo la-dayan ela mah she-einav ro’ot―a judge must rule in accordance with what he sees. While silence outside court generally does not constitute shtikah ke-hoda’ah, the court reserves the right to evaluate different instances of silence on a circumstantial level.[11]
In truth, while R. Ariel frames the circumstantial consideration of silence as an aberration beyond the framework of shtikah ke-hoda’ah, there is ample evidence, based on everything we have seen, to suggest that shtikah ke-hoda’ah is, in fact, fundamentally circumstantial in its very essence.
Let us return to the above-quoted passage in Yevamot in which a single witness accuses a person of consuming forbidden fat and the latter is silent. One way to understand this is to view the witness as instrumental in creating the circumstances in which the accused party’s silence can serve as an admission.[12]
However, both Tosafot (Yevamot 88a, s.v. De-shtikah) and Ran (Kiddushin 61a; Rif on Kiddushin 28b) claim that, in truth, the opposite is what is occurring.[13] Shtikah ke-hoda’ah does not operate as an actual admission from the accused party; rather, his silence lends credence to the testimony of the single witness.[14] According to this framework, Shtikah ke-hoda’ah is fundamentally circumstantial in nature. We interpret the claimee’s lack of opposition as lending sufficient basis to the claim leveled against him.[15] [16] With this understanding, it is clear how Rosh could have the latitude to apply shtikah ke-hoda’ah even when it does not occur before a courtroom nor before designated witnesses. Rosh could interpret the claimee’s silence as a bona fide instance of shtikah ke-hoda’ah because the court’s ability to invoke shtikah ke-hoda’ah is fundamentally a context-dependent decision.
Circumstantial Evidence: The Criminal Context
Unlike in civil matters (such as a financial dispute) in which we established that “a litigant’s admission is equivalent to 100 witnesses,” when it comes to criminal matters we generally apply the principle of ein adam mesim atzmo rasha, that categorically one is incapable of incriminating himself in court.[17] However, may the court interpret one’s silence against him? If shtikah ke-hoda’ah is literally a formal admission, then an admission as a result of silence should not be any more legitimate than an outright verbal admission which is not admissible in a criminal context. However, if we instead construe shtikah ke-hoda’ah as circumstantial evidence, perhaps it could be taken into account in criminal cases since it would not be in violation of ein adam mesim atzmo rasha. Indeed, some went so far as to claim that overwhelming circumstantial evidence could actually be utilized in a criminal setting as well.[18] Rivash (no. 234) writes:
Also nowadays, that which we only adjudicate capital cases based on immediate necessities is because that general authority has terminated [from earlier generations]. However, the court will administer lashes and punishments that are not strictly mandated by the law, based on immediate needs, and even absent absolute testimony, so long as we have clear bases which indicate that the accused committed the sin.[19]
Following the dissolution of the ancient Sanhedrin and the loss of the tradition for bestowing bona fide rabbinic ordination, modern Jewish courts are generally not authorized to hand out punitive rulings, from fines to capital punishment. Nonetheless, Rivash was willing to accept the ad hoc use of such measures, even on the basis of circumstantial evidence.
Rivash (and some other sources) aside, normative Halakhah does not take circumstantial evidence into account except, potentially, for exceedingly extenuating circumstances. It would thus stand to reason that, in general, we cannot apply shtikah ke-hoda’ah in criminal matters, even if it is generally a flexible circumstantial concept.
Silence vs. Protest: The Ethical Dimension
There are many sources in rabbinic literature which praise the virtue of silence. In Pirkei Avot (3:13), “Rabbi Akiva says… ‘A safeguarding fence around wisdom is silence.’” Likewise, in Avot De-Rabbi Natan (22:2),[20] it is recorded: “His son Shimon would say, ‘All my life, I grew up among the sages, and I never learned anything better for a person than silence. And if silence is good for the sages, how much more so for the foolish!’” Indeed, R. Ariel, in his aforementioned reponsum, commends silence in the face of spurious claims:
One is not required to engage with any claim that appears to him as provocative. His silence in such a case would constitute wisdom, not admission.
Sefer Orhot Tzaddikim (Ch. 21, “The Gate of Silence”) articulates which forms of silence are considered virtuous and which are ethically erroneous:
There are times when silence is good, as when Divine justice strikes against a man, as in the case of Aaron, as it is written: “And Aaron held his peace” (Leviticus 10:3). If a person hears people reviling him, he should be silent. And this is a great quality, to be silent in the face of one’s revilers. And one should also accustom himself to be silent in the synagogue, for this is modesty, and it requires great alertness properly to direct his heart in prayer. And if one is sitting among the wise, he should be silent and listen to their words; for when he is silent, he hears what he does not know, but when he speaks, he does not add anything to his knowledge. However, if he is doubtful as to the meaning of the words of the wise, he should ask them, for to be silent in such a case is very bad: King Solomon said, “A time to keep silence, and a time to speak” (Ecclesiastes 3:7)—there are times when speaking is good and there are times when silence is good… But there are times when silence can be evil, as it is written, “Answer a fool according to his folly, lest he be wise in his own eyes” (Proverbs 26:5). With respect to words of the Torah, if a person sees that the fools are scorning the words of the wise, he should answer in order to turn them back from their errors so that they do not imagine themselves wise in their eyes. If a man sees another man committing a transgression, he should protest and reprove him.[21]
The Talmud in Bava Metzia (84b) relates the terrible fate of Rabbi Elazar son of Rabbi Shimon. When prompted to explain why he suffered so terribly he explained, “One day I heard a Torah scholar being insulted, and I did not protest as I should have.” Thus we can observe how in certain contexts it is specifically passivity and inaction which yield negative results.[22] Similar to what we reviewed in Rosh’s responsum, certain situations should cause us such profound and untenable pain that our only natural response is to viscerally object with a ze’akah gedolah u-marah, a great and terrible cry.[23]
R. Elchonon Wasserman laments the fallacy that to be a righteous person is to always be passive and conciliatory. In Kovetz Ma’amarim (vol. 1, p. 262), he writes:
What should we do in a situation as terrible as this in which the Jewish people are not their own [empowered] nation? Should we give up and clasp our hands together until we receive mercy from Heaven? God forbid that such an idea should even occur to us! They say in the name of the author of the Nefesh Ha-Hayyim [R. Hayyim of Volozhin] of blessed memory―regarding the line in the Mishnah at the end of [Tractate] Sotah (49b): “And for us what can we rely on but our Father in Heaven”―that in this mishnah it lists that which will happen leading up to the Messiah. And the giant [R. Hayyim of Volozhin] explained that these final words in the Mishnah are also a curse―and they are worse than all the other curses which preceded it. For the God-fearing people who live in those days will give up, and their hands will loosen from waging the war of God―and this is a great error, for the verse (Psalms 68:35) declares: “Ascribe might to God…”
Some may justify their silence on the basis that they do not wield sufficient influence and thus mutav she-yiheyu shogegin―it is better to allow others to sin unknowingly. However, R. Aharon Lichtenstein in Leaves of Faith[24] debunks this erroneous suggestion:
Hence, where tokhahah [rebuke] will not result in the desired effect, and might even be counterproductive, it is best foregone. Meha’ah, by contrast, is publicly oriented. It is part of an ongoing struggle for communal spiritual integrity… Consequently, the restrictive term, amitekha, which singles out a spiritual confrere, “a member of the nation who shares in your observance of Torah and mitzvot,” for spiritual remedy of tokhahah, has no bearing upon meha’ah which is mandated by an event rather than by its agent.
Our goal is not always to change other people’s minds but to maintain our own. Addressing protests[25] against public desecrations of Shabbat,[26] R. Moshe Sternbuch writes (Responsa Teshuvot Ve-Hanhagot 7:42):
The basis of protest (meha’ah) is because when the “free people” [non-observant Jews] breach the observance of the holy Shabbat―it causes harm to us. For it influences the general public to lessen the severity of violating the holy Shabbat―and in particular it compromises the education of our children internalizing the gravity of violating the holy Shabbat.
Protesting and not remaining silent in the face of desecration of our faith not only helps others; it helps us―we are the beneficiaries. Thus, there is a value to speaking up for Torah values, even if only for strengthening our own “communal spiritual integrity,” as R. Lichtenstein put it. Lest our community see our complacency and conclude as the Talmud in Gittin (56a) formulated it: “Since the Sages were sitting there and did not protest, learn from it that they were content with what he did.” Let not our shtikah be construed as hoda’ah.
The interplay between silence and speech is a delicate balance that requires mindful navigation. While silence can foster contemplation and cultivate wisdom, there arise moments when the weight of our convictions and the pressing nature of the circumstance demand that we respond with vehement objections and protestations. In a personal and informal context, one may have the luxury of simply disregarding spurious claims. However, in more formal and public forums, the perilousness of allowing them to proliferate renders it necessary to respond―to the extent that silence is akin to acquiescence, if not tacit approval.
This creates a precarious minefield for public figures who are inclined to take overt stances on critical issues. While it is practically untenable for an organization or individual to be expected to issue a statement of opposition or solidarity for every crisis that emerges, perhaps each one would benefit from developing predetermined criteria as to what kind of topics fall within their purview. An Israel advocacy organization can commit to only issuing statements that are pertinent to Israel, or a local non-profit professional may be advised to refrain from opining on other communal organizations’ programming. Those not arguing in good faith will always find grounds for fault, but this should not deter an honest attempt at establishing consistent standards―at the very least to thine ownself be true.
[1] Jonathan Turley, “How ‘Silence is Violence’ Threatens True Free Speech and Public Civility,” The Hill, August 29th, 2020. See also Bret Stephens, “Silence Is Violence―but Not When It Comes to Israeli Rape Victims,” The New York Times, December 5, 2023.
[2] A brief caveat is in order: Minhat Hinukh (58:1), on the commandments pertaining to “Claiming and Denying,” presents an uncharacteristically truncated exposition on what should be a topic brimming with extensive commentary. He explains: “These laws span the wide seas of the Talmud and later legal literature; therefore, I have withheld my hand from writing about them.” In other words, there is virtually no limit to how deep down the rabbit hole one can go when addressing a topic as broad as the legal parameters of claims and admissions. Therefore, I have endeavored to provide a substantive survey of the pertinent aspects of the matter, without presuming to provide a comprehensive collection of the virtually limitless source material.
[3] Biblical and Talmudic translations are from Sefaria. The rest are my own, unless otherwise noted.
[4] See Ketzot Ha-Hoshen (34:4) and the extensive surrounding literature regarding whether this principle is rooted in a hermeneutical tradition, migo reasoning, or the creation of a new obligation akin to granting a gift.
[5] Based on Sanhedrin (29a); see Rabbeinu Yonah (ad loc).
[6] Cf. Bava Kamma (11a). Rama Mi-Fano (Shivrei Luhot, p. 15) suggests that Rav possessed an answer on a “hidden” level of Torah. Accordingly, Rav did not concede, but he also did not respond with his “hidden” approach.
[7] Regarding the nature of amatla, see Mishneh Torah (Hilkhot Issurei Biah 4:10), Ketzot Ha-Hoshen (81:8), and Responsa Iggerot Moshe (E.H. 1:84). There are times when an amatla will be of no avail, such as when one admits on their own initiative (Shulhan Arukh, H.M. 81:5) or when an entire group confesses collectively (Shulhan Arukh, H.M. 81:1, cf. Shakh 81:4).
[8] This is in essence what the Gemara (Sanhedrin 29b) teaches in the name of Rava: “People do not remember all frivolous matters.”
[9] This is not just true vis-a-vis explicit verbal admission but would likewise apply if his admission was inferred from his silence in court. The Talmud in Bava Metzia (6a) addresses a case in which both parties claiming ownership over a garment enter the courtroom holding it, when suddenly one party seizes it fully from the possession of the other in the presence of the judges. While the Gemara does not conclude what would happen in the case of only initial silence, what is clear is that if the claimee remains silent for the entire duration, then the principle of shtikah ke-hoda’ah would be applied. Rashba (Bava Metzia 6a, s.v. Mi-Deke’amrinan) elucidates that “specifically before the court does one need to cry out, for it is a place of rendering judgment, and therefore he should cry out before the court to adjudicate his case. Whereas when it is not in the presence of the court, he could reasonably claim: ‘Since there is no one to adjudicate my matter, why should I bother crying out.’ For one who has a matter that requires a judicial ruling should go to the courthouse; and there, he should put forth his grievance.” See also R. Binyamin Wolf Lau (Sha’arei Torah, Vol. 1, Klal 3, Prat 10, Par. 13), based on a responsum of Maharit (Vol. 2, E.H., no. 1) who likewise notes that the case in Bava Metzia is distinct from other scenarios we explored because “it is the norm to cry out before the court when false testimony is made against him.”
However, see Ramban (Bava Metzia 6a, s.v. Ha De-Ba’i), Ritva (s.v. Ba’i), and Ran (s.v. Ha Ka Hazu), who suggest the opposite―that when there is no court present, he should feel compelled to defend himself since the judges are not there to witness them snatching the item from him. See also Shakh (H.M. 138:6), who equates the context of witnesses with being in court. However, Urim Ve-Tumim (Tumim, H.M. 138:5) rejects Shakh, as none of the medieval commentators appear to be willing to equate silence in court with what occurs outside before witnesses.
[10] This responsum was originally published in the journal Tehumin (volume no. 24). Another important point he makes in this piece is that there is a distinction between the court and law enforcement. In the case of the latter, one may feel compelled to confess to something that he did not commit, due to the pressure exerted on him.
[11] A related example of judicial intuition is recorded by Shakh (H.M. 81:17), who cites Piksei Maharam Rikanti (no. 423)―that the court can determine that one was silent, since they required a moment to formulate their response.
[12] See Birkat Avraham (Yevamot 87b).
[14] See R. Elchonon Wasserman in Kovetz He’arot (63:2), who explains that a single witness is not simply weaker than two witnesses but is fundamentally in a separate category. Whereas two witnesses determine the truth, the single witness can sometimes just help us with making a pragmatic yet uncertain determination. This framework can further help us appreciate how silence is used to bolster the tenuous admissible claim of a single witness.
[15] This is conceptually similar to one of the approaches to modeh be-miktzat―that when one admits to part of a claim, they are obligated to take an oath to substantiate their denial on the remainder as their initial admission lends credence to the claim against them (see Kuntresei Shiurim on Bava Metzia 3:2, s.v. U-vebeiur).
One other concept that connects to this discussion, but that I will leave for a future analysis, is the principle of umdana de-mukhah which iconically appears in Bava Batra (146b). The concept of umdana is fundamentally tied to the principle of shtikah ke-hoda’ah as it essentially dictates that in some circumstances we can draw inferences from unspoken factors. One example provided is a father who, upon hearing of his only son’s death, bequeaths his entire inheritance to another party. Despite the fact that he did not append any explicit stipulations, it is evident from the sequence of events that he only intended to relinquish his estate because he was mistakenly led to believe that he had no son to inherit his estate. See Ritva (Bava Batra 146b) and Ketzot Ha-Hoshen (12:1), who reconcile umdana with the principle of devarim she-balev einam devarim―“the words of the heart are not words.” For a general analysis of the umdana de-muhakh, see Minhat Elazar (2:39) and Kuntrasei Shiurim (Kiddushin, essay no. 21).
[16] This is akin to how Ketzot Ha-Hoshen (138:2) explains that the silence in the case in Bava Metzia (6a) does not constitute admission but rather the defendant’s forfeiting the right to take an oath to help his case. See also R. Binyamin Wolf Lau’s Sha’arei Torah (Vol. 1, Klal 3, Prat 5, Par. 7), which discusses a dichotomy in whether shtikah ke-hoda’ah is admission or mehilah, forgoing. The latter would be consonant with Tosafot, et al. who argue that shtikah ke-hoda’ah merely lends credence to the claimant rather than serving as bona fide admission. See also Sha’arei Yosher (5:16) about the nature of mehilah vis-a-vis one’s possessions.
[17] See also Rabbi Dr. Norman Lamm’s essay “Self-Incrimination in Law and Psychology: The Fifth Amendment and the Halakhah” (Norman Lamm, Faith and Doubt: Studies in Traditional Jewish Thought [Jersey City: KTAV Publishing House, 2006], chap. 10) in which he analyzes how the concept of ein adam mesim atzmo rasha in Jewish law differs from American law: “The Halakhah does not distinguish between voluntary and forced confessions, for reasons which will be discussed later. And it is here that one of the basic differences between Constitutional and Talmudic law arises. According to the Constitution, a man cannot be compelled to testify against himself. The provision against self-incrimination is a privilege [emphasis added which differs from original] of which a citizen may or may not avail himself, as he wishes. The Halakhah, however, does not permit self-incriminating testimony. It is inadmissible, even if voluntarily offered. Confession, in other than a religious context, or financial cases completely free from any traces of criminality, is simply not an instrument of the Law. The issue, then, is not compulsion, but the whole idea of legal confession” (268).
[18] See Tosafot (Shevuot 44a, s.v. De-i).
[19] From a practical standpoint, this is line with what Rambam (Mishneh Torah, Hilkhot Rotzeah 4:8) codifies regarding someone who is clearly guilty of murder but gets off on a technicality, yet court still has legal recourse for dealing with them by incarcerating them in a kipah where “they are fed parched bread and small amounts of water until their digestive tract contracts. Then they are fed barley until their bellies burst because of the extent of the sickness, and they die.” See also Hilkhot Rotzeah (6:5) and Hilkhot Melakhim (3:10) for similar examples of super-legal mechanisms.
While Rambam codifies the use of alternative forms of punishment in instances of relying on circumstantial evidence, he nonetheless cautions in Sefer Ha-Mitzvot (Negative, no. 290) against using inferences to administer direct corporal or capital punishment: “That He prohibited the judge to declare punishments by way of strong conjectures, and even when it is almost certain… And when we do not declare punishments based on strong appearances, the end result is surely that we will acquit the sinner. But if we declare punishments based on appearances and conjecture, we would surely sometimes kill someone innocent.”
[20] Cf. Pirkei Avot (1:17).
[21] Translation from Sefaria.org.
[22] There are countless additional sources which discuss the imperative to speak up, such as Esther (4:13-14), Sotah (11a), Avodah Zarah (18a), and many more.
[23] Rosh’s language is adapted from Genesis 27:34 and Esther 4:1.
[24] Aharon Lichtenstein, Leaves of Faith: The World of Jewish Living, vol. 2 (Jersey City: KTAV Publishing House, 2003), 98. See Shabbat 55a regarding the distinction between rebuke and protest.
[25] Regarding the nature of protests and public demonstrations, see Rosh Hashanah (19a) and Ta’anit (18a). R. Yehuda Herzl Henkin (Responsa Benei Banim 2:51) employs these Talmudic passages as precedent for his support of the 20th-century demonstrations for Soviet Jews.
[26] See what R. Henkin writes in Benei Banim (Vol. 4, Mamar 11) in which, similar to R. Sternbuch, there is a value in protesting to remind ourselves of our own values (i.e., Torah values). See also R. Yosef Shalom Elyashiv’s approach to Shabbat protests in Kovetz Teshuvot (4:35). For a broader survey of rabbinic approaches to protesting, see the following articles: R. Alfred Cohen, “Protest Demonstrations” Journal of Halachah and Contemporary Society 25 (1993); R. Yitzchok Oratz, “Property Values: Rabbinic Ruminations on Property and Protest, Racism and Riots,” Journal of Halachah and Contemporary Society 76 (2021); and Yitzhak Grossman, “A Time To Keep Silence, and a Time To Speak” The Lehrhaus (October 26, 2020).
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