A Note on the Rhetoric of Genocide

Accusations of genocide serve to legitimate unrestrained violent resistance. No one thinks that a community facing genocide needs to abide by the rules of war if that means they lose. To accuse X of attempting genocide against Y means that Y can do whatever it takes to defeat X, up to and perhaps including counter-genocide.

Therefore, accusations of genocide are extremely dangerous. They are almost by definition incitements to the worst forms of violence. Sometimes that is necessary and salutary. But handle with extreme care.

THOSE WHO ACCUSE ISRAEL OF GENOCIDE AGAINST PALESTINIANS, REAL OR INTENDED, HAVE BLOOD ON THEIR HANDS. The accusation is absurd, trivializing, insulting, and murderous, all at the same time.

I need to put out a word of caution the other way as well. Rhetoric encouraging genocide is just as dangerous, even or especially if framed as counter-genocide. JEWS MUST NOT APPLY THE CATEGORY OF AMALEK TO REAL PEOPLE. Full stop. Every violation of this principle harms our cause.

This is true even with regard to real people who have genocidal intentions toward us (see links below). This is true even if the category Amalek is hedged about with qualifiers to obscure its genocidal implications. This is true even if one claims to be engaged purely in textual interpretation.

https://moderntoraleadership.wordpress.com/2020/02/07/amalek-the-risk-of-rhetoric/

Amalek and Evil

https://blogs.timesofisrael.com/how-not-to-talk-about…/

Are Students From Wealthy Families Halakhically Permitted To Accept Kollel Stipends?

by Rabbi Aryeh Klapper

I broke a long family tradition on my father’s side by becoming a professional Jew. That tradition was understood to be grounded in Rambam. I haven’t previously engaged with the relevant Rambams in depth. But for a number of reasons, including the Charedi draft controversy in Israel and my ongoing occasional series on Yissokhar-Zevulun relationships and, I think the time for avoidance has passed.

(Please note: I hope to send you soon ‘even’ more immediately relevant essays on the concepts of “milchamot reshut/mitzvah/chovah” as they relate to the Iran war, and on halakhah’s view of civil disobedience to government orders and actions reasonably seen as unethical. But they were not ready for this week.)

Rambam’s first relevant polemic is in his commentary to Mishnah Avot 4:5:

Rabbi Tzadok says:

Do not make (words of Torah) a crown to be exalted with, nor a shovel to dig with.

Rambam comments:

. . . as if to say: don’t consider it a tool for making a living. It goes on to explain that anyone who derives benefit from the honor of Torah in this world excises his soul from the life of the World to Come. But human beings averted their eyes from this explicit language and tossed it behind them, instead depending on superficial readings of statements they did not understand – I will explain them – and therefore imposed (financial) obligations on individuals and communities and made Torah offices into tax beneficiaries, and brought people to hold the complete nonsense that it is necessary and obligatory to (financially) assist sages and their students and people who engage in Torah to the point that Torah becomes their profession. But all of this is an error; there is nothing in Torah that verifies it . . .

One can derive from Rambam that his community had imposed an array of kollel-support taxes and fees on itself. His objection seems to be not to the expense per se, but rather to the routinization. He does not say that supporting full-time Torah students is a bad idea, only that it is not mandatory, either for individuals or for communities. On the other hand, it’s not clear how any scholar could accept even voluntary, spontaneous support without losing the World to Come.

In Hilkhot Talmud Torah 3:10, the theme is the same, but the details may be significantly different:

Everyone who takes to heart (meisim al lev) the possibility of engaging in Torah, not working for a living, and being supported out of charitable funds –

behold this one has desecrated the Name and disgraced the Torah and extinguished the light of religion and caused evil to himself and removed his life from the World to Come,

because it is forbidden to derive benefit from words of Torah in this world.

The Sages said:

Everyone who benefits from words of Torah removes his life from this world.

They further commanded:

Do not make them a crown to make yourself great thereby, nor a shovel to dig with.

They further commanded (Avot 1:10):

Love work, hate the RBNT, and (Avot 2:2) any Torah that is not accompanied by work – in the end becomes idle and causes sin, and this person ends up preying on people.

A linguistic point of interest here is the phrase meisim al lev. I translated it as “takes to heart the possibility”, where Sefaria has “comes to the conclusion”, because it seems to me that Rambam condemns the plan as much or more than the action. This is a stringency because it excludes commercializing Torah even as a backup plan, say if the plan to marry rich doesn’t work out.  But it is a potential leniency in that it opens the possibility that unforeseen circumstances might make it a legitimate option.

But does Rambam mean to rule out all public support for Torah study, and all professionalizations of Torah? R. Yosef Caro in Kesef Mishneh argues against this proposition:

Our master expanded his mouth and language in his commentary to Avot Chapter 4 regarding the stipends given to both students and rabbis, although it also seems from his words that most of the great Torah sages of that time, or all of them, acted thus. Here he follows the same line of thought.

Now he of blessed memory brought a proof there from Hillel the elder (Yoma 35B) who was a wood chopper and learner.

But that is no proof, because it happened specifically at the beginning of Hillel’s learning, and because in his time there were thousands and myriads of students – perhaps they only gave stipends to the most celebrated among them,

or perhaps anyone who had some way of not benefiting from the honor of Torah would act accordingly,

but once Hillel acquired wisdom and became a teacher of the people –

does it enter your mind that he remained a woodchopper?

My first level response to Kesef Mishneh is simply: “Yes, it enters my mind”.  It seems clear that he and Rambam are talking past each other. I am fascinated by his portrait of a society where kollel stipends are the equivalent of merit scholarships – the intellectually elite get eliter, while the much larger pool of less talented – or less self-advertising? – students are forced to work to support their studies and therefore have less time to study and advance in learning. (He does not tell us whether the selection process was done well – perhaps not, if Hillel was initially excluded.) This is what many suggest for Israel today. But Kesef Mishneh doesn’t see the element of competition as essential rather than an accident of limited resources.

On second reading, however, it seems clear to me that Kesef Mishneh is reading meisim al lev as I did. Here is the key:

But those words refer to one who has these intentions (to derive this-worldly benefits) at the outset of his learning,

or to one who has the capacity to be supported without receiving a salary for his learning;

but if he learned for the sake of Heaven and afterward he has no way of being supported without taking a salary – this is permitted.

. . .

The rule that emerges is:

Anyone who has no other means of support is entitled to collect a salary to teach, whether from students directly or from the community;

So too, it is permitted for him to take a salary from the community to judge, or from the litigants if all the conditions mentioned in Hilkhot Sanhedrin are maintained.

After Hashem has informed us of all this, perhaps we can say that our Master’s intention here is that a person ought not remove the yoke of work from himself so as to be supported by the community so that he can learn, rather he should learn a form of work that is capable of supporting him, and if that suffices – that is best, but if it doesn’t suffice – he may accept the difference from the community without concern.

This is what Rambam meant by writing “all who are meisim al libo” . . .

Once a reliably funded stipend system exists, however, it becomes very hard to know whether a beginning learner has it in mind – it’s hard for the learner to be honest with themselves about that!  Possibly the key point of disagreement is that Kesef Misheh believes that such compartmentalization is possible, while Rambam thinks that the existence of such a system ironically makes proper intention impossible.

Compare Rav Eliyahu Dessler’s objection to the founding of a Teacher’s Institute because yeshiva students would know they had a way of surviving economically even if their scholarship was not exceptional and therefore would inevitably be less motivated.

Kesef Mishnah concedes the necessity of at least credentialling oneself to make a living in other ways. But a living at what standard? And having asked that question, how large a stipend can one accept? Finally, are the stipends intended solely to facilitate learning, or do they allow the community to make demands for Torah services?  IyH we’ll address these issues in the next installment of this series.

Teaser for  Part 2:

Rambam attacked what he saw as an existing welfare state for Torah scholars – his objection was to public funding, not to funding per se. His position is perhaps analogous to that of America conservatives who oppose programs they conceptualize as coerced redistribution while encouraging extensive philanthropy . . .

Jewish Political Responsibility in the Light of Megillat Esther

by Rabbi Aryeh Klapper

Reading Megillat Esther without midrashim frees one from (some) external biases. The result is not an objective reading, but rather one that reflects internal biases. This is not bad; we each have unique contributions to make to the understanding of Torah based davka on our unique experiences, on our subjectivity. But recognizing that the goal is to relate our full selves to the text can make reengagement with midrashim liberating rather than constricting. This essay tries to model such an experience.

I have always been puzzled by 1:13-14, immediately following Vashti’s refusal of the king’s summons.

The king said to the sages, knowers of the times     

because that is the royal responsibility before all those who know custom and law

and those closest to him

Karshena, Shetar, Admata, Tarshish, Meres, Marsena, Memukhan

the seven officers of Persia and Medea

those with direct access to the king

who sit in the front row of the government.

וַיֹּ֣אמֶר הַמֶּ֔לֶךְ לַחֲכָמִ֖ים יֹדְעֵ֣י הָֽעִתִּ֑ים         

כִּי־כֵן֙ דְּבַ֣ר הַמֶּ֔לֶךְ לִפְנֵ֕י כָּל־יֹדְעֵ֖י דָּ֥ת וָדִֽין:

וְהַקָּרֹ֣ב אֵלָ֗יו

כַּרְשְׁנָ֤א שֵׁתָר֙ אַדְמָ֣תָא תַרְשִׁ֔ישׁ מֶ֥רֶס מַרְסְנָ֖א מְמוּכָ֑ן    

שִׁבְעַ֞ת שָׂרֵ֣י׀ פָּרַ֣ס וּמָדַ֗י

רֹאֵי֙ פְּנֵ֣י הַמֶּ֔לֶךְ

הַיֹּשְׁבִ֥ים רִאשֹׁנָ֖ה בַּמַּלְכֽוּת:

Traditional readers know that Memukhan is Haman, and that this is the moment that justifies his aggrandizement at the outset of Chapter 3. Whether one accepts this identification or not, Memukhan’s advice must somehow lead to Haman’s rise, or else why is it in the story?

The other six officers are stick figures – they exist only to emphasize that Memukhan is the only one bold enough to speak. In other words: all seven understand that Achashverosh does not really wish to consult them, and Memukhan is not seeking to offer advice. The goal is to say something that the king already agrees with. Memukhan is the only one willing to gamble that he properly understands the king’s desired outcome. (This is the gamble Haman loses when the king asks him how to reward an anonymous someone. He says exactly what the king wants to hear, but misses the context.)

Another midrash sees Vashti as a daughter of the previous dynasty. Achashverosh had so far overthrown her family but not the structure they created; Memukhan understands that this confrontation was his way of taking the revolution one step further. 

It seems clear that the seven named figures held the seven offices that formally guaranteed direct access to the king and front-bench seats in Parliament. But were they the same as the “sages, knowers of the times”, and the “knowers of custom and law”?

 Megillah 12b says they were not.

“The king said to the sages” – Who were the sages? The rabbis;

“knowers of the times” – who know when to make leap years and establish months (= the Sanhedrin).

He said to them:

Judge (Vashti) for me!

They said (to themselves):  

How shall we act?

If we say to him: “Kill her!” – tomorrow, his wine will wear off and he will demand (revenge for) her from us!

If we say to him: “Let her be!” – we’ll be (accused of) disrespecting the monarchy!

They said to him:

From the day that the Temple was destroyed and we were exiled from our land – the capacity for wise policy has been taken from us, and we cannot deal with capital cases. Go ask Amon and Moav . . .

Immediately “the ones closest to him: Karshena etc.”

ויאמר המלך לחכמים – מאן חכמים? רבנן;

ידעי העתים – שיודעין לעבר שנים ולקבוע חדשים.

אמר להו:

דיינוה לי! 

אמרו:

היכי נעביד?

נימא ליה: ‘קטלה”‘ – למחר פסיק ליה חמריה ובעי לה מינן!

נימא ליה: ‘שבקה’ – קא מזלזלה במלכותא!

אמרו לו:

מיום שחרב בית המקדש וגלינו מארצנו – ניטלה עצה ממנו, ואין אנו יודעין לדון דיני נפשות. זיל לגבי עמון ומואב . . .

מיד – והקרב אליו כרשנא שתר אדמתא תרשיש.   

    Achashverosh turned first to the Sanhedrin to ask what to do about Vashti. When they abdicate, he turns to the Seven; six of them are silent, and Memukhan seizes his chance.

The fundamental claim underlying Memukhan = Haman and knowers of the times ≠ the Seven is that the Megillah tells the story of a constitutional monarchy devolving into an arbitrary autocracy. The sages and the Seven never appear again in the story. Achashverosh moves on to make genocidal decisions without consulting them, or anyone. No one gets direct access to the king, and there are no front benches, only a king sitting in a throne room with the unchallenged power to kill anyone who dares approach him without advance permission. (In other words, Achashverosh’s throne room becomes the Holy of Holies.)

Yet what should the rabbis have done? Their analysis was reasonable – it was entirely possible that Achashverosh would blame them either way, or even that he was deliberately setting them up to be blamed.

Maybe we should praise them for recognizing that they had no role. In fact, the Sanhedrin did the same thing in Israel toward the end of  the Second Temple – they moved out of their Temple office (the Chamber of Hewed Stones) in order to give up jurisdiction over capital cases, so as to avoid being forced to decide between the pro- and anti-Roman factions of their constituency, or perhaps to avoid being directly pressured by the Romans to execute Jewish rebels.

But I think it is much more likely that the Talmud is blaming the Sanhedrin for the rise of Haman.

Granted, the genocide doesn’t actually happen, and there is room for someone to argue that the Sanhedrin’s failure was a necessary part of G-d’s subtle plan leading to Redemption. Yes but – the moral of the story then has to be that our job is to do what’s right, and not to try to anticipate His plan. Can you imagine the Sanhedrin thinking: “Let’s bring on an attempted genocide, so that we can be saved by a Jewish queen, so that in the next generation or so we’ll get permission to rebuild a Jewish state”? We believe that all paths, given infinite duration, will lead to Redemption; it makes little sense to say that Redemption could not have happened without X just because X happened first, even if you can construct a causal chain.  

What should the Sanhedrin have done? I suggest that the problem was that they asked the wrong question. They asked: What answer can we give that will protect us? The right question to ask was: What is the ethical and moral answer? That might lead to secondary questions such as: Must we tell the king that answer, even if he might kill us for it immediately or eventually? Is there a safe way to tell him? But they skipped the ethical deliberation stage and went straight to pragmatic political considerations.

(Another midrashic tradition asserts that Vashti was guilty of horrific and antisemitic sexual crimes against Jewish women. She got what she deserved. The problem was that the king wanted her punished for the entirely different “crime” of resisting the king’s demand that she exhibit herself publicly as a sexual object. Condemning her on the king’s terms ironically entailed condoning her actual evil deeds.)

As with Memukhan = Haman, accepting the point of the Midrash does not require accepting its historical claim literally. The Jews were a politically influential constituency whether or not the king specifically asked the Sanhedrin. They were also a desperately vulnerable constituency (perhaps because they were stateless, or perhaps their vulnerability would have been accentuated had their state also been vulnerable). When public questions of justice came up, they had to choose whether to focus on their responsibility or rather their vulnerability. They chose their vulnerability, and that became a self-fulfilling prophecy.

Let me be clear. Achashverosh was not a democratic leader. But at the outset of the Megillah, he functioned within a rules-based order to which he was in some way accountable. By the middle of the Megillah, he permits genocide for the sake of a bribe; by the end, he permits anticipatory mass killing out of sexual jealousy; and there is no hint that anything or anyone can constrain his choices.

The Jews by themselves could not have prevented this. They were in a Prisoner’s Dilemma; only a collective insistence by all the kingdom’s constituencies on following the rules could constrain Achashverosh. But some, perhaps many, perhaps all of the kingdom’s other constituencies were antisemitic and might cheerfully risk freeing the king from all constraints for the sake of killing the Jews. Or they might fall into the grip of fantasies in which the king was already giving the Jews unjust and undeserved influence. That is to say, they might take our midrash literally and believe that the king submitted all crucial policy decisions to the Elders of Zion, who in turn advised him solely in terms of their own interests.

All this argued for saying nothing and keeping our heads down except on matters that affected our interests directly. But the outcome was that we were not consulted, even or especially, on matters that affected our survival.

Some recent books have read Megillat Esther as a political handbook for surviving in the Diaspora, and maybe even taken Mordekhai and Esther as role models for a Jewish state seeking to survive in an international jungle. That may well be true. What I’ve tried to show is that these midrashim offer a plausible reading of the story in which the preferred strategy – with no guaranteed result – is to take on responsibility for maintaining the rules and norms necessary for a society to be capable of restraining the arbitrary exercise of power.

This is an almost unapologetically midrashic reading. That is to say, I make no apologies for using midrash, but I try quite hard to argue that the midrashim are exposing genuine aspects of the text.

My interpretation of those aspects is of course heavily influenced by my internal biases; your application of my interpretation to contemporary life will of course be influenced by your own biases. I ask two things: First, that you consider the idea that I raised at the outset that midrash, and all traditional interpretation, can be experienced as liberating rather than constraining. Second, that you evaluate my interpretation first as interpretation, to the best of your ability, and then afterward – if and only if you think it has some claim to truth – consider how it might influence your sense of your own religious responsibilities in our world.

What Does G-d Think of Yitro’s Advice?

by Rabbi Aryeh Klapper

Rambam writes (Introduction to the Commentary on the Mishnah) that the tasks of a prophet in the name of G-d can be divided in two. The first part is

That he prophesy in the name of Hashem

declare and caution regarding His service

and say that Hashem added a mitzvah or subtracted a mitzvah

from all the mitzvot included in the Torah.

It makes no difference whether this is done by adding or subtracting from the text

or rather by adding or subtracting from the received interpretation.

However, anyone after Mosheh Rabbeinu seeking to fill this prophetic role is by definition a false prophet and liable to execution. Post-Mosaic prophets are constrained by the Mosaic verse that Torah “is not in Heaven … rather the matter is very close to you, in your mouth and in your heart …”, which Rambam understands to refer to Written Torah (ironically in your mouth because recited) and Oral Torah (in your heart because derived intellectually). But while Mosheh lived, the Torah was still in Heaven, and Mosheh Rabbeinu himself continually added mitzvot and interpreted prior mitzvot via prophecy.

The second set of prophetic tasks is

To call to the service of G-d and caution regarding His Torah,

and to command people regarding observance of the Torah without addition or subtraction

as the last of the prophets said: Remember the Torah of Mosheh My servant . .

and to guarantee good things to those who observe it and punishment to those who transgress it

as did Yeshayah and Yirimiyah and Yechezkel and others

and to command commands and caution cautions that are not about religious matters,

for example to say ‘Make war on City X (or Nation X) now!’

as Shmuel commanded Shaul to make war against Amalek then,

or to caution not to kill . . .

Rambam may derive this expansive list from Mosheh’s self-justification to Yitro in Shemot 18:15-16.

Mosheh said to his father in-law:

Because the nation comes to me to lidrosh Elo-him

When they have a matter – it comes to me

I will judge between a man and his fellow

I will make known the chukkei haElo-him andHis torot.

We can read this as Mosheh as providing a long description of the single task of judging lawsuits (Rashbam) or read verse 16 as a detailed explanation of lidrosh Elo-him from verse 15 (Shadal, HaKtav veHaKabbalah). But I suggest that Rambam read lidrosh Elo-him as a separate phrase that referred specifically to prophetic statements about vital national policy questions.  This reading is also adopted by Seforno:

The nesi’im and the heads of the generation,

who come regarding the affairs of the public and how to organize them,

necessarily come to me,

because they encamped at the instruction of Hashem

Ramban fundamentally agrees as to the meaning of lidrosh Elo-him, but he provides a very different list of non-religious matters.

“Because the nation comes to me to lidrosh Elo-him” –

to pray regarding their sicknesses and to make known what was lost to them,

because this is called drishat Elo-him

and this is what they do with prophets, as Scripture says:

Earlier in Israel a man would say this when he went lidrosh Elo-him:‘Come, we’ll go to the seer’

so too: You will be doresh Elo-him from him as follows: ‘Will I survive this illness?’

meaning to pray for him and make known to him whether his prayer was heeded.

For Ramban, Mosheh’s time was not being taken up by vital national affairs of war and peace, but rather by quotidian pastoral tasks such as finding lost objects and praying for the sick. 

Netziv denies that praying for the sick was a prophetic function; one went to the prophet to find out what would happen, not to change it. However, he admits that one might respond to a prophetic doom by praying, and thereby seeking to change it, as Chizkiyah successfully did when Yeshayah prophesied his death.

But the most radical reorientation of the phrase lidrosh Elo-him I’ve found is in Keli Yakar and Or HaChayyim. They understand Mosheh as arguing to Yitro that it was necessary for him to sit as the sole judge, and inevitable that people would come to him regardless of how many other judges he appointed, because he judged on the basis of substantive rather than procedural truth. Mosheh judged not on the basis of heuristic rules and eyewitnesses, but rather based on what G-d told him had actually happened, and on what G-d told him would be the most just outcome.

Mosheh thought that people would never give up the confidence and certainty that their case had been decided justly. Yitro countered that people will give up a great many things to avoid standing in long lines.

One can see Mosheh as idealistic about human nature in this reading, and Yitro as cynically realistic. But I don’t see it that way. Rather, the real issue between them was that Moshe did not realize that time is a cost, and therefore correct justice inefficiently administered imposes unjust costs on both parties. Rabbi Abraham Halbfinger of blessed memory taught me this over and over again with regard to the Boston Beit Din.

Take an illustration from a different context: sometimes it takes so long to look at replays that the game itself is damaged, even though the specific decision is ultimately made correctly.

Or in a different beit din context: Suppose you implement a policy that every convert or child of a converted mother must have their Jewish status reexamined from scratch before being allowed to marry a Jew. Even if you eventually decide every case correctly, the psychological costs imposed on people whose status is left in doubt for long periods are so great that IMHO they overwhelmingly outweigh marginal improvements in accuracy.

Even worse, under such a policy no convert of child of a converted woman can ever be certain that their case won’t be reopened in the future, possibly under judges with different legal standards, or after crucial evidence gets lost.

I sadly concede that this policy has been implemented on and off in Israeli Rabbinic courts, and that some elements of the United States government seem now to be implementing a similar policy with regard to naturalized citizens. (Let us be clear: in Israel, specific ethnic groups may also be asked to prove that their parents were born Jews rather than converts. These policies eventually give one group the power to threaten everyone else with social and legal exclusion. Within the halakhic community, a group in the United States some decades ago goal tried to achieve that power through bullying and bribery. Conversion is the immigration/naturalization policy of the Jewish people.)

Perhaps Ramban correctly understands what Mosheh means by lidrosh Elo-him. Yitro responds that Mosheh is shortchanging the nation by dealing with so many details, even though he deals with them better than any substitute could.  The conceptual understanding of prophecy remains the same, but Yitro convinces Mosheh to budget much more of his time for national issues, in other words to implement the reading of Rambam and Seforno.

A more radical reading is that Mosheh in principle opposed the idea of lo bashomayim hi.  He did not understand that heteronomy is a cost, because tzalmei Elokim should, to the extent possible, play a role in determining the rules they live by. He thought that ideally everything would be directly decided by G-d. 

Yitro shakes Mosheh’s worldview by pointing out that G-d had not told him what was going through the minds of the people waiting on line, or how they would react if the system changed. Perhaps He would not have answered Mosheh if asked, because G-d did not want to decide everything at the cost of human responsibility and freedom. Mosheh shows that he understands this by not asking G-d before implementing Yitro’s advice.

We Told You So!

by Rabbi Aryeh Klapper

As the Egyptian army bore down on them, the Children of Israel resorted to poetic sarcasm:

They said to Mosheh:

Was it from lack of graves in Egypt that you took us to die in the desert?

What is this you have done to us, to take us out of Egypt?

Isn’t this the very thing we said to you in Egypt, quote:

Leave us be, and we will slave for Egypt!

Because it is better for us slaving for Egypt than our dying in the wilderness!

The Torah seems IMHO to regard this complaint as unjustified. But why was it unjustified? Because they were not at risk of dying, owing to Hashem’s protection, or rather because the risk of death should not have deterred them from seeking freedom?

Malbim is the only commentator I’ve found raising the question of whether Jews may and should pursue freedom even at risk of death.

“Some nations love liberty (chofshiyut) to the extent that they would choose death over being slaves slaving under grinding oppression (perakh), while some nations prefer a life of humiliation (boz) and slavery over death. “They said to Mosheh: If you thought that we prefer death to slavery, why did you find it necessary to take us out into the wilderness to die in battle? We could have rebelled and fought (Pharaoh) in Egypt and had him kill us there – was it because there were no graves in Egypt that you took us out to die here and find our graves?! There are graves in Egypt too! . . .”

All this assumes the side that we prefer death to slavery, but this is not true, because Is this not what we said – we told you that slaving for Egypt is better for us than death, and that we are not lovers of freedom to the point of death. Therefore, you have done evil to choose death on our behalf over oppression and slavery.”

However, even in Malbim’s version, the question remains unresolved. Mosheh Rabbeinu responds by assuring Bnei Yisroel that there is no risk.

“Hashem will war for you” – that which you think, that it will be necessary for you to go out to battle – Hashem will war on your behalf, because they are coming in order to war with Him, and the war is His and not yours”.

Yetziat Mitzrayim therefore cannot provide an unambiguous mandate or model for how Jews should behave when their freedom is threatened in ways they cannot oppose without risking their lives. Yet as Zionists and as Americans, we are obligated to think about what Mosheh would have answered had G-d promised only a chance at escape or victory.

(In a broader sense, we must think about whether there are reverse situations in which we are obligated to war on G-d’s behalf, and if there are, how to identify them.)

As a halakhist, my first reaction is that the question as stated is overbroad. Halakhah as I understand it tends to calibrate risks rather than going all Patrick Henry[1]: we ask for a precise definition of liberty, and a best estimate of the odds of achieving what degree and sort of liberty at what degree of risk.

For example, one might suggest that a Jew is permitted to risk his or her life only to prevent being forced to commit one of the sins that are “yehareg v’al ya’avor”, colloquially termed idolatry, adultery, and murder. Even this cautious suggestion can be challenged as going too far. Most likely halakhah does not obligate a Jew to risk his or her life in order to prevent being coerced into such a sin; the obligation is only to resist the coercion once it occurs, and even there, the obligation may only extend to not actively surrendering to the coercion.     

On the other hand, the fourth yehareg v’al ya’avor is public desecration of the Name, and that can be defined very broadly. For example, is it a public chillul Hashem for a Jew to cooperate with an oppressive regime when members of other religious or nonreligious or antireligious groups are risking their lives for collective political and religious freedom? Does it matter whether the individual is identified by the public as a representative of G-d and Torah?

On yet another hand, should the question be asked in terms of the community, or in terms of individuals? I suspect that public chillul Hashem, if defined as public perception that Torah-committed Jews behave less virtuously than people who aren’t Torah-committed, is often a matter of percentages. Apportioning dangerous communal duties fairly is a challenge that has no single solution, halakhic or otherwise.

The inverse of the possibility that halakhah obligated resistance only to extant coercion is the possibility that halakhah requires building the capacity for resistance if it is foreseeably necessary. For instance, a reasonable reading of the progression of Parshat Beshalach is that it moves from the moment when Mosheh tells Bnei Yisroel that their role is only to stand and wait (or, Deborah suggests, from G-d’s decision to take them the long way around) to the moment when G-d tells Mosheh to send Yehoshua with a picked force to battle with Amalek. This suggests that willingness to assume risk is ultimately essential. Minchat Chinukh argues along those lines that any mitzvah that justifies war must in some sense be yehareg v’al ya’avor.

A somewhat more complicated model of the parshah notes that the standard pshat meaning of vachamushim alu Bnei Yisrael me’eretz Mitzrayim, which precedes the verses describing the Egyptian pursuit, is that the Jews armed themselves before leaving Egypt. This suggests that they understood that war, and therefore risk, would eventually be necessary, perhaps on arrival in Canaan. They reacted as they did to the Egyptian pursuit because they were not YET ready for such a confrontation. But they understood that becoming ready was an obligation.

Malbim suggests fascinatingly that the Egyptian pursuit made the Jews fear that Mosheh Rabbeinu had exaggerated his mission, which actually was to ease the terms of their indenture and not to free them. This reading is hard to square with the text. But by making the claim of Bnei Yisroel so nuanced, Malbim highlights another important issue: Should we share his assumption that Bnei Yisroel were accurate and truthful in claiming to have made the same objection back in Egypt?  

Pa’aneiach Raza comments merely that “It’s a little puzzling: Where did they say this?” But most commentaries feel the need to explain further.

Ibn Ezra (commentary A) writes:

“Although we do not find written when Israel said this to him, we know that it was so, because many things we know only afterward.”

However, this argument at most establishes the possibility that it was so. Perhaps realizing this, Ibn Ezra offers a different formulation in commentary B:

“This is not found explicitly, but we know that it was so, because how would they say something to his face that was not so! Rather, this is included within “They did not heed Mosheh” (6:9)”

Abravanel cleverly suggests that only the first half of Bnei Yisroel’s remonstrance to Mosheh is a self-quote.

They said to Mosheh: “Leave us be, and we will slave for Egypt”; the reason we told you that was because etc. 

The abbreviated quote fits neatly into any of the earlier episodes in which the people reject Mosheh’s promise of redemption.

Mekhilta by contrast expands the quote by inserting another element missing from the narrative.

“It would have been better for us to remain as slaves than to have four fifths of us die during the plague of Darkness; and if that was not an option, it would have been better for us all to die properly buried and eulogized in Egypt than left for scavengers here in the desert. What, were there not enough graves in Egypt?”

Mekhilta thus frames the Jews as PTSD suffers rather than as cowards. 80% of them had already died in this attempt at freedom. Asking them to face war with faith in G-d’s protection was a bridge too far.

Judaism has high expectations for its adherents, but Hashem also understands that we are often not yet in condition to meet them, let alone trust them. Unready human beings placed into difficult situations will often lie, deny, and claim to have expressed reservations all along.

However, we have an obligation to become ready for challenges that are foreseeable even if they aren’t inevitable. After many years of astounding safety and security in the US, for which we owe Hashem immense gratitude, we may find ourselves forced to choose between maximizing (at least short-term) communal security and a grave risk of being mechalel shem shomayim. I suggest that Orthodox Jews in the United States, and the Modern Orthodox community in particular, must improve our ability to honestly, humbly, and courageously face political situations in which there are no genuinely safe choices.

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[1] At some point during debates in some Virginian context leading up to the Revolutionary War, Patrick Henry said something like “I know not what others may choose, but as for me, give me liberty or give me death!”

What If We Had Deported the Erev Rav to Sodom?

by Rabbi Aryeh Klapper

The children of Israel journeyed from Rameses toward Sukkot,

around 600,000 on foot, the men, aside from the children.

Also an erev rav went with them,

and flocks and cattle, a very heavy amount of livestock.

What is an erev rav (other than a consonantal rhyme)?

Since the end of the verse deals with domestic animals, and we’re not long after the plague of arov, it’s tempting to suggest that a large mixture of wild animals exited Egypt along with the Jews, perhaps even those involved in that plague. Sekhel Tov draws the linguistic connection:

The arov = a mixture of evil beasts, and the matter is similar to and also an erev rav.

However, I’m fairly certain that Sekhel Tov is using the parallel only to show that arov can mean a mixture whose contents are determined by literary context.

Let’s assume that erev in fact means mixture, and that rav means great or numerous. That’s how we get the King James translation “mixed multitude”. But mixture of what, and how many is a multitude?

Let’s put to one side the Zohar’s assertion that there are really two erevs, one rav and one small. Let’s keep in mind, however, the Zohar’s connection to erev=evening, which literally means a mixing of light and dark. Maybe the mixed multitude is of human beings who contain both light and dark in them.

That may seem obvious – don’t all human beings contain both light and dark? Indeed, Tzror Hamor comments:

This is a reference to the sinners of Israel,

who are as full of mitzvot as a pomegranate (is full of seeds).

But much of Jewish Tanakh commentary consigns the erev rav to the dark side. Moreover, the intent of doing so seems to be to assign all the dark in the narrative to the erev rav, and thereby leave the original bnei Yisroel as pure Children of Light. (I saw a suggestion that Amalek also has an erev rav, which would serve the reverse function.)

So – the people who pressured Aharon into making the Golden Calf were the erev rav. The asafsuf (Bamidbar 11:4) who “desired a desire” and asked “who will feed us meat” were the erev rav. And so on and so forth.

The problem is that it’s not only the erev rav who get punished for these sins. Why does G-d take his anger out on Bnei Yisroel if in fact the groups are distinct, i.e. if there is no erev of Bnei Yisroel and the erev rav?

Perhaps the simplest possibility is that the erev rav were the Egyptian wives and children of Bnei Yisroel,who lacked any relationship to Jewish religion, but were socially integrated. But then another way of asking the question is: Why were the erev rav allowed to come along (unlike the winnowing in the time of Ezra), and why weren’t they expelled after the Golden Calf (as the Kutim were later)?

A standard answer to that question is that attracting and integrating the erev rav was an essential part of Bnei Yisroel’s mission. Here for example is Shir Maon to Bereishit 14:21:

On Talmud Nedarim 32a they state:

“Because (Avraham) returned the people to the King of Sodom rather than bringing them under the wings of the Shekhinah – therefore his sons were enslaved in Egypt.”[1]

This is difficult: What is the ‘measure for measure’ of his punishment?

An answer: Chazal said (Pesachim 87b): “Israel was scattered amongst the nations only so that converts would be added to them” . . .

Therefore: Because Avraham Avinu returned the people of Sodom and did not convert them to bring them under the wings of the Shekhinah,

Therefore, measure, for measure, they were enslaved in Egypt in order for them to be removed from there, so that all the holy sparks in Egypt that were in Egypt amongst the terrible and licentious people would be removed along with them

= and also an erev rav went up along with them, who were converts,

to repair the failure to convert the people of Sodom.

Perhaps these converts were reincarnations of the people of Sodom.

Here the light and the dark mix in fascinating ways. Sodom becomes the worst culture ever, but the people who comprised that culture could have belonged to Bnei Yisroel if only Avraham had accepted spiritual responsibility for them. If attracting the erev rav is part of our mission, their failure is our failure.

We should be clear, however, that the redemption of the erev rav consigns the rest of Egypt to total blackness. No sparks are left there at all.

Another version identifies the erev rav as converts but argues that they were not part of our mission. Mosheh Rabbeinu accepted them even though G-d told him not to. That’s why G-d tells Mosheh at the Golden Calf: “Descend, for YOUR NATION has been destructive”.

However, it isn’t clear to me whether, in arguments between Mosheh and G-d, we are supposed to take G-d’s side.

Perhaps the most complex version of the story emerges from a dispute in Mekhilta about the number[2].

And also an erev rav –

120 myriads, in the opinion of Rabbi Yishmael;

Rabbi Akiva says: 240 myriads;

Rabbi Natan says: 360 myriads.

Where do these numbers come from?

Rabbi Yishmael’s position is easy: Bnei Yisrael in the previous verse are 60 myriads, so rav means double.

Rabbi Shlomo Ganzfried (author of Kitzur Shulchan Arukh) in his Biblical commentary Apiryon cites his son Yosef as (IMHO correctly) understanding that the number 5 is they key. Rabbi Akiva says that Bnei Yisroel  were one fifth of the total including the erev rav, while Rabbi Natan says that they were one fifth of the number of the erev rav.

Why does the number 5 matter? Because in next week’s parshah we will read that Bnei Yisroel went up from Egypt chamushim. 

Why does that connection matter? Because a midrashic tradition translates chamushim to mean cut down to a fifth, meaning that four fifths of Bnei Yisroel died in Egypt (during the plague of Darkness).

In other words, the erev rav replaced unworthy born Jews (who would perhaps have made a Golden Calf?). But was the replacement successful? The erev rav don’t seem to make it into the genealogy – they vanish, like the mysterious souls that (Avraham and Sarah) made in Charan.

I suggest that the erev rav are less important as a historical phenomenon than as a screen onto which Jews can project our anxieties about chosenness and conversion. The possibility of conversion, as Rabbi Yaakov Kaminetzky taught, is necessary to prevent us from perverting chosenness into a racist doctrine. (THE EREV RAV WILL NOT REPLACE US!) Yet we can’t believe – it wouldn’t be justice – that G-d chose us randomly, rather than as a result of some unique virtue or potential virtue. After all, isn’t every human being unique, and therefore possessed of unique potential virtue?

Conversion is the immigration policy of the Jewish people. I have used that analogy in the past to help people understand why the laws of conversion are so complex in practice even though they can seem very simple in theory. I’m hoping that you’ll use the analogy the other way around, and think about what this understanding of conversion can teach us about American attitudes toward immigrants.

I note in conclusion that Yechezkel 47:22 unequivocally promises converts a full share in the Land of Israel in the coming redemption. Abravanel asks: Why, then, did the erev rav not receive shares when Joshua distributed the Land? There are two sorts of answers: One is that they joined a bandwagon rather than first sharing in our oppression, and therefore were not ready for the responsibilities imposed by Torah; the other is that we failed to properly welcome and integrate them. Regardless, Abravanel points out, all the Torah’s commandments against oppressing converts applied to the erev rav as well.

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[1] Note that the alternative explanations for the enslavement are either that Avraham inappropriately demanded a guarantee from G-d or that he conscripted Torah scholars. The last position is cited regularly in Israeli discourse about the conscription of Charedim; I would like to see the other two mentioned more, with the possibility that they fundamentally disagree theologically and not just about why G-d tells Avraham about the enslavement at this point in his life.

[2] This one did not make it into the Haggadah, but should remind you of the dispute about the number of plagues.

Is Torah Priceless, or Only an Infinitely Valuable Investment?

by Rabbi Aryeh Klapper

A classic putdown refers to people who “know the price of everything but the value of nothing”. This putdown requires the concession (which we should not make hastily) that everything has a price.   

But imagine that you could produce something of infinite value if only you had X dollars to build it, and you don’t have any way to earn X dollars. Would you sell a half-share in the future product for X dollars? Would that mean that you and/or your investors care more about price than value?

The yeshiva student’s answer, of course, is that “It’s a machloket (dispute)”. This week’s essay develops that answer.    

Tur YD 246 writes:

A person who is unable to study Torah

because he has no idea at all how to study,

or because of the burdens on his time –

he should provide sustenance (yaspik laacherim) to others who learn,

and this will be considered for him as if he himself learned,

in the manner of the Sages’ interpretation of the verse Rejoice Zevulun in your goings out, and Yisokhar in your tents.

Rav Yosef Caro comments in Beit Yosef:

That which our master wrote: “A person who is unable to study Torah because they have no idea at all how to study, or because of the burdens on their time – he should provide sustenance to others who learn etc.” – this is in Sifri.

I could not find anything in Sifri to support the claim that one who supports learning is considered as if he himself learned. The Makhon Devorah edition of Tur provides no citation, and notes that the first edition of Beit Yosef did not contain the words “this is in Sifri”. Perhaps there is no relevant Sifri, and Tur’s source remains to be found.

However, Sifri regarding the verse Rejoice Zevulun etc. says that Tribe Zevulun functioned as the sarsur (=sales rep or middleman) for Yisokhar, thus enabling Tribe Yisokhar to remain in their tents and distinguish themselves in Torah. Perhaps this is what Beit Yosef understood Tur to be recommending for those unable to learn on their own. If so, his vision of the Yisokhar-Zevulun relationship assumes that Yisokhar has local industry or investment capital.

Rav Caro in Shulchan Arukh YD 246:1 quotes Tur that a person unable to study “should provide sustenance to others who learn”, but omits “as if he himself learned” and the reference to Yisokhar and Zevulun. Since Beit Yosef quotes no opposing source, omitting those elements most likely means that he sees them as rhetorical embellishments with no practical implications.

In Bedek HaBayit, the supplement to Beit Yosef, Rav Caro adds a citation of Rabbeinu Yerucham (Toldot Adam VaChavah 2:5):

One who engages in Torah –

before engaging – he can make a condition for his friend to engage in commerce and take a share of his learning, on the model of Yisokhar and Zevulun,

but once he has already engaged – if he gives him a share in exchange for money, that is meaningless,

           as Scripture says: If a man offered all the wealth of his house etc.

and this was the issue with Hillel and Shevna, as in Sotah.

It also seems reasonable that the one engaged in Torah loses (his reward),

because he has already nullified his own share.

To “take a share of his learning” seems a step beyond “considered for him as if he himself learned”. It suggests a zero-sum element not present in Tur. Rabbeinu Yerucham reasonably adds that this arrangement requires a prior stipulation between learner and the earner. He also adds that a post-facto sale of reward for past learning is invalid, and that the learner loses everything for trying to engage in such a sale.  

The simplest explanation is that in a post facto deal, the learner gets nothing but money, whereas in an advance deal, the learner gets the opportunity to learn more than she otherwise would have. The earner is therefore an investor entitled to a share of the profits, and the learner is not selling any reward in his possession. (Rabbeinu Yerucham”s stipulation therefore seems parallel to the shtar iska, which transforms a loan into an investment.)

Rav Caro does not cite Rabbeinu Yerucham in Shulchan Arukh. Since there is controversy as to whether Bedek HaBayit was written before or after Shulchan Arukh, the meaning of that silence is not clear.

Rabbi Mosheh Isserles (RAMO) in his glosses to Shulchan Arukh inserts versions of both the end of Tur and Rabbeinu Yerucham:

and this will be considered for him as if he himself learned (Tur).

And a person can make a condition for his friend that he will engage in Torah, while his friend will provide him with support, and he will divide the reward with him.

but once he has engaged – he cannot sell him his share for the sake of the money they will give him. (Rabbeinu Yerucham).

RAMO’s edits remove the references to Yisokhar and Zevulun and makes it explicit that to “take a share of his Torah” means to “divide the reward”. He leaves the basic distinction between investment and sale intact.

Rav Caro’s contemporary Maharam Alashkar (Responsum 101) was asked a seemingly related question:

Is there any substance to the actions of those who sell their merits to each other; has the buyer acquired, or the seller lost; and does this action have any basis?

Maharam Alshakar responds that he has found one relevant source: a responsum of Rav Hai Gaon that apparently was not available to Beit Yosef or RAMO. The key section begins as follows:

So too, one who feeds a poor person or a scholar so that they will bless him –

he earns reward for this, and he receives benefit from this in accordance with the blessing of that poor person or scholar.

So too, one who feeds mitzvah-doers so that they can fulfill the mitzvot –

he earns reward for this, and so do they;

And even more so, one who assists those engaged in Torah and mitzvot[1] to clear their minds to engage in it –

he earns reward for this, and the reward he earns is for his own action.

Anyone who convinces themselves to buy the reward of their friend for money or gifts – he is to be scorned and mocked . . .

The line “and the reward he earns is for his own action” seems intended to preclude any means of acquiring someone else’s reward. Numerous Achronim struggle to reconcile R. Hai and Rabbeinu Yerucham, but I find it hard to see R. Hai as compatible even with a pure investment model. On the other hand, I don’t see R. Hai as posing any challenge to Tur.   

Rav Hai and Rabbeinu Yerucham each develop their positions in the context of Talmud Sotah 21a’s discussion of Shir HaShirim 8:7:

“Mighty waters are unable to quench love, and rivers cannot sweep it. If a man offered all the wealth of his house for love, it would be utterly scorned”. 

The first part of the verse is read as referring to the merit of Torah study enduring through the studier’s subsequent sins. But what then is the scorned wealth in the last part? Ulla provides an oddly defensive answer:

Not like Shimon the brother of Azaryah,

Nor like Rabbi Yochanan of the House of the Patriarch,

Rather like Hillel and Shevna.

We deduce that each of these three pairs engaged in a transaction of wealth for Torah, but only the last transaction is scorned. The Talmud gives us information only about the last pair.

For when Rav Dimi came, he said:

Hillel and Shevna were brothers:

Hillel engaged in Torah; Shevna did business.

In the end, (Shevna) said to (Hillel): Come, let us mix and divide!

A Heavenly Voice emerged and said: If a man offered all the wealth of his house for love . . .

The story has fascinating elements in its own right: Why was the interjection of a Heavenly Voice necessary? (Full disclosure: In Rabbeinu Chananel’s text, there is no Voice, rather the Talmudic editor cites the verse.) But our question this week is: Why does the verse apply only to Shevna?

Rashi explains as follows:

Shimon brother of Azaryah . . . learned Torah by means of his brother, who engaged in commerce so that he would share in the merit of Shimon’s learning. Therefore (Shimon) is identified via his brother Azaryah.

And so too Rabbi Yochanan learned via the patriarch.

Hillel engaged in Torah in the midst of great poverty, as is explained in Tractate Yoma.

The implication is that ONLY Hillel engaged in Torah while impoverished, while Shimon and Rabbi Yochanan were supported from the start. This is the basis of Rabbeinu Yerucham’s reading, and Rashi’s language “so that he would share in the merit of Shimon’s learning” is certainly compatible with the investment model.

R. Hai presumably read the sugya as saying that Azaryah and the Patriarch supported Shimon and Rabbi Yochanan in advance with no zero-sum or quid pro quo element. They asked only that Shimon and Rabbi Yochanan learn, and trusted that G-d would reward them for enabling that learning, perhaps even to the same extent as if they had learned themselves.

Maharam Alshakar concludes:

“All (R. Hai Gaon’s) words are words of tradition,

and one should neither add to nor subtract from them”.

So it seems that the halakhic acceptability of Rabbeinu Yerucham’s model is in dispute, and Rabbeinu Yerucham himself raised the stakes by saying that if the transaction fails, neither party receives the relevant reward.  It is tempting to suggest that Ashkenazim should allow at least the investment model, following RAMO, while Sefardim should follow Maharam Alshakar and the silence of the Mechaber (R. Caro).

That is not how halakhah has played out. One possible reason for that, which we will see in the next installment, is that Rav Caro addresses Sotah 21a in a responsum of his own.

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[1] The version of Rav Hai in Teshvuot HaGeonim HaChadashot (Immanuel) #147 does not have “and mitzvot”

Yisokhar vs. Zevulun: Correcting Some Reversible Errors

by Rabbi Aryeh Klapper

R. Yosef Caro writes in Shulchan Arukh YD 246:1:

But someone who is unable to learn (Torah), because he doesn’t know how to learn at all, or because of his distractions/burdens – he should provide sustenance to others who learn

R. Moshe Isserles in Mapah glosses:

and it will be accounted to him as if he is learning on his own.

And a person may make a condition with his fellow that he will engage in Torah and he will produce support for him and he will share with him in his reward.

Rav Simcha Soloveitchik wrote to Rav Moshe Feinstein asking whether Ramo means that anyone who provides sustenance to a Torah scholar is considered as if they have learned on their own, or rather only if the learner explicitly accepts the condition that the earner will “share with him in his reward”. Rabbi Shlomo Blumenkrantz sent follow-ups including whether “the earner” also needs to make this condition explicitly, and if so, whether this needs to be done in a written shtar.

Last week, I pointed out that a key paragraph in Rav Mosheh’s response as printed posthumously in Igrot Moshe 4YD:37 contained the apparently nonexistent phrase שטר לברותא (shtar lBRuTha). Joshua Skootsky correctly noted that לברותא is used in the Talmud to exclude a text from the canon, or alternatively via Yad Malakhi, that it is always a typo for לבדותא (lBDuTha), meaning invented or useless. Perhaps that is what it means here. But my sense is that those terms are used specifically for Talmudic texts, not to describe a legally ineffective shtar.

Gemini suggested that it was a typo for לחברותא, but no such shtar appears anywhere in Rabbinic literature.

I tended last week to think that it was a typo for לרבותא, lRBuTha, meaning that it is intended to add something even though it is unnecessary.

However, this responsum was first published in 5743 in the journal Am HaTorah and again that year in the journal Moriya, and in each of those versions the text is לברורא (lBRuRa). After further research this week, I concluded that this is almost certainly the correct text, even though the phrase shtar lBRuRa appears nowhere else. The search term “lBRuRa” gets 53 results on the Bar Ilan CD, 30 of which are in Igrot Moshe. It is often paired with a version of “witnesses are only to prevent lying”, meaning that testimony is intended “to clarify the facts” rather than to play a formal role, e.g. as a means of acquisition. Here too, the meaning is that the document/shtar has only an evidentiary purpose.

With that realization, I retranslated the preceding sentence, which I got quite wrong last week:

ומה ששאל כתר”ה עוד שם באות א’:

דאם צריך להתנות אם צריך בכתב דווקא או סגי בדברים לבד?

הנה כתב ודאי לא צריך וגם לא בפני עדים, דלא ניתנו שטר וסהדי אלא לשקרי . . .

אבל פשוט שאם ישכר ירצה דווקא בשטר ועדים חתומין כדי שיוכל לתבוע בדינא את זבולון על הזמן שלא שמענו ממנו שחזר בו, משום שלא סמכה דעתו עליו בלא שטר ועדים – שלא יוכל לתובעו בב”ד,

That which your Honor asked in q#1:

if it is necessary to make the condition explicit, must it be in writing, or is an oral statement sufficient?

Certainly writing is not necessary, nor the presence of witnesses, because a shtar and witnesses are given only to prevent lying . . .

But it is obvious that if Yisokhar wants specifically a shtar and signed witnesses so that he can sue Zevulun in beit din (for backpayments of support) regarding the time that Zevulun has not sent notice of withdrawal – because he won’t rely on him without a shtar and witnesses – that he cannot sue him in beit din.

Having corrected that, I moved on to the sentence containing our problematic phrase:

ואף שהוא רק שטר לברורא,

(in smaller font: מ”מ אם נעשה בלא שטר – )

כיוון שלא סמכא דעתיה דישכר עליו בלא שטר ועדים –

אין להחשיב זה אף לא לדברים להחשיבו מחוסר אמנה . . .

And even though the shtar is only evidentiary,

(in smaller font: nonetheless, if (the agreement) was done without a shtar – )

since Yisokhar did not rely on him without a shtar and witnesses –

this should not be considered even an oral contract for the purpose of considering (Zevulun’s withdrawal) a breach of trust = mechusar amanah . . .

The case still made no sense to me – in what case would Yisokhar not rely on Zevulun without a shtar, and yet still not make a shtar? But now that I was sure the Igrot Mosheh version had a pure typo, I wondered again about the insertion in the smaller font, which was not in the earlier editions. Maybe a misunderstanding (like mine) had been generated by the typo? So I tried removing it.

And even though the shtar is only evidentiary,

since Yisokhar did not rely on him without a shtar and witnesses – 

this should not be considered even an oral contract for the purpose of considering (Zevulun’s withdrawal) a breach of trust = mechusar amanah . . .

This seemed to match R. Efraim Sternbuch’s interpretation of Rav Mosheh’s position:

At the end of his words, it seems obvious that he comes to make the creative point that Yisokhar loses by insisting on the shtar,

because without a shtar there would have been at least an issue of breach of trust,

but when Yisokhar demands a shtar – if so he doesn’t trust Zevulun, and if so, there is no breach of trust from Zevulun’s side.

But the language is not so clear, and also has been slightly changed by the ma’atikim/copyists, so it is hard to understand his intent with certainty . . .

Last week I dismissed R. Sternbuch’s position in harsh terms (“seems nonsensical”), but now I think he is right and I was wrong. I should have had Bava Metzia 49a in mind.

The sugya opens with Rav Kehana accepting a cash deposit for linen at the then-current market price. The market rises before the buyer pays in full. Rav rules that Rav Kehana must provide the buyer with linen at market value up to the amount of the deposit, but that he can demand a higher price for the rest. Why? Because with regard to the rest, there has been no act of acquisition, and breaching a verbal commitment is not viewed as a breach of faith (= mechusar amanah).

Abbayay explains that Rav holds that mechusar amanah requires conscious dishonesty. Unlike love, a verbal contract may legitimately be altered when it alteration finds.

The Talmud suggests that Mishnah Bava Metzia 7:1 supports Rav:

An incident involving Rabbi Yochanan ben Matya, who said to his son: “Go hire us laborers!”  The son agreed with the laborers as to what they would be fed.

But when he returned to his father, his father said to him:

“My son, even if you made them a meal equivalent to Solomon’s in his glory – you would not fulfill your obligation toward them, as they are descendants of Avraham, Yitzchak, and Yaakov. Rather, before they begin working, go out and say to them: “On condition that you have no claim on me for more that bread and legumes.”

Rabbi Yochanan ben Matya sees no issue with ordering his son to breach a verbal commitment (so long as the workers receive food that meets the local standard).

However, the Talmud concludes that the Mishnah’s case is unique, because the workers suspected that the son might have exceeded his authority. They came to work with no reliance that they would receive more than standard food. Breaching a verbal commitment on which another party relied would be mechusar amanah, but in order for there to be a breach of trust, there must first be trust.

This yields the perhaps somewhat perverse result that known liars cannot be sued for breach of trust, and on the other hand, that paranoids cannot sue for breach of trust. Consider as an analogy the American legal rule that product claims such as “made from the best stuff on earth” are not subject to suits for false advertising because a reasonable consumer would not rely on them as factual.  

The question for me then is: Should all Yisokhar-Zevulun contracts be considered “puffery”, because no one really trusts that G-d will give them a portion of the reward for someone else’s actions? And: How should we relate to websites that advertise such contracts?

Please stay tuned for further installments. (Hopefully, some degree of reliance on their accuracy is still reasonable.)

Interview with Rav Moshe Lichtenstein (translation edited by Aryeh Klapper from an AI translation posted by Tzvi Sinensky)

(the Hebrew orginal is at https://www.zman.co.il/653352/). Only the interview itself is translated here, not the article in which it was embedded. This translation has not been reviewed by Rav Lichtenstein.

Two years after October 7, what is the state of the yeshiva and its students?

“These have been two long years, with many different emotions. On October 7 the entire yeshiva was mobilized: Students from abroad and young Israelis who had not yet undergone military training remained, but everyone who had served in the army was called up for reserve duty.

The yeshiva emptied out. Usually we have hundreds of people here, but from October 7 onward, the number of students from the third year and up who were present was in the single digits.

In one sense, it was inspiring. A core component of the hesder paradigm, and of the justification for shorter service, is that everyone serves in combat units unless the army disqualifies them for medical reasons, and that when there is a war everyone goes out at a moment’s notice. I am convinced that we fulfilled our mission and justified the logic of the dual track that combines book and sword.

We made a policy decision that the learning would continue to the extent possible via those who remained here. I told the students that they owed this to themselves, to Jewish history, to the Torah, and to God — that in times like these, the fire of Torah must continue to burn and be expressed with even greater intensity.

On another level, there was much pain. Another component of the hesder model is that the great majority of hesder students continue to serve in the reserves for many years. Therefore  we had hundreds of students and alumni in combat units, and we endured heavy losses; six students and alumni were killed. All of those students were forced to contend not only with the pain and trauma they experienced, but also with the need to wrestle with the many moral and ethical dilemmas they encountered.

We are not mental-health professionals; the army provides such. but for many people, conversation, advice, and support from their spiritual mentors regarding these experiences is an important component of their emotional needs when they contend with the pain and trauma they experienced. When a person encounters tragedy, the search for an anchor and a connection to God and to Torah is a spiritual and emotional necessity. I had several such students.”

One of the central issues in public discourse today is the question of drafting the charedim. Given what you have described, it is hard not to pay attention to the different approach. What is your view on this topic?

“My primary role is that of educator, and an educator must focus on what he believes he can change. It is possible to change your own community, because you have a relationship with them and you share a common approach to the questions you are dealing with. If I were to preach to the charedim, that might be very satisfying personally, but it would move nothing.

I certainly have much criticism, but I think that the more they feel attacked, justly or not justly, the lower the odds that anything will change.

Now, if you ask me what I think the Torah wants of us, the fact that I am in hesder says everything, and it’s clear that I do not accept their attacks on the ability to learn Torah and serve in the army, or to observe mitzvot in the army.

This yeshiva is considered the representative of the Religious Zionist sector in Israeli society. In your opinion, is it correct to describe Religious Zionism in Israel as a single community?

“From a sociological perspective, in the broadest possible sense, Religious Zionism is a single community, but within Religious Zionism there are groups with very different ideological perspectives, and I think that It is important for us and for the broad public, the non-dati public, to recognize this.

We can think about those whom it is possible to title the founding fathers. The philosophical-metaphysical world of Rabbi Abraham Isaac Kook differs sharply different from that of Rabbi Yosef Dov Soloveitchik. This difference ultimately permeates the manner in which you live your life and manner in which you approach reality.

Can you explain the difference between these worldviews?

“Rabbi Kook essentially sees the manifestation of God’s glory as a central point of religious life. For Rabbi Soloveitchik, the focus is the human-God relationship. This translates to many areas. [For Rabbi Kook], the State of Israel is a foundation of God’s glory in the world. Rabbi Soloveitchik sees [the state] as something important, but functional and utilitarian. One can use a metaphor: If we think about building a structure, for example a house, its main purpose is for you to live in it, to express your love to your spouse and your children.  Now,  the house strengthens the family, but without the house, the family remains. On the other hand,  one can think of a different structure as an artistic and spiritual statement. That is approximately how Rabbi Kook sees the world, as G-d’s spiritual statement, in which the building itself has significance.

What in your opinion is the influence of the existence of a political party that calls itself “Religious Zionism”, just like the community itself?

“If one wants to turn Religious Zionism into a positive force, the central tool is education. The fundamental message needs to be transmitted via education., and is where we need to invest efforts and energy. Political parties are an expression of the manner in which you were educated and of your values.

With that, there is a false representation when they take the name of a movement that, as I said previously, included many ideological approaches, and use it for a specific political party . In my opinion this a robbery of the name.”

In recent years, the general public often hears about Religious Zionism in connection with the Hilltop Youth and the violence that accompanies that. What is your point of view?

“The violence that is taking place is terrible and wrong morally and ethically. One can debate where the line between self-defense and violence lies, but there is no doubt that much of what is happening is violence.

Ramban declares that in Sefer Bereishit, when Sarah our foremother oppressed Hagar, that all we have endured through the generations at the hands of Yishmael’s descendants, meaning the Arab world, is an effect of that. He wrote this in the thirteenth century, and it is no less relevant today.

“In religious terms, I think that this violence risks causing us, God forbid, to lose our claim and our right to hold onto the land.

With that, an important point that to my mind is not stressed sufficiently is that ten years ago people denied that there was a problem. Today many acknowledge that there is a problem, even those much closer ideologically [to the perpetrators]. But they tend to minimize its seriousness by presenting them as wild and troubled youth, and therefore the mainstream sees the violence as an educational problem and not as an ethical problem.

Permit me to cite Rambam again. Ramban says that Sarah sinned, but also Avraham did not prevent Sarah from doing this, and this is the deciding point. I have spoken with not a few people who say that there is no reason to speak with these [youth], they won’t listen. But I do believe that the extremes are influenced by where the mainstream stands.

If rabbis would condemn this from central platforms, it would have an influence. Or in other words, The perpetrators do these actions because to a large extent society demonstrated tolerance for them.

The extent to which the members of the community will be convinced that this is s chillul Hashem or simply regrettable behavior depends on what central Religious Zionist communities  will hear on Friday night in their rabbis’ drashot. If they hear sharp denigration, this will generate a certain dynamic.

In my opinion, at this moment the failure is that the government, meaning the police and the army, are not preventing this. Contending with this failure and repairing it must be done by means of moving the mainstream.”    

What are the challenges?

“We have a double challenge, perhaps a triple one.

“First: People relate to these people with leniency.  Why? Partially because in the past thiry or forty years, an approach has developed that says “I wouldn’t do this, but if this advances our hold on the land, I will close my eyes”. I believe this is one thousand percent wrong. Never, ever, will you advance your claim on the land by means that are immoral or unethical.

The second problem is lack of information. When you speak with people and tell them that a portion of the Hilltop Youth have caused damage to Arabs, this seems very abstract. When you see the videos –  but there is a lack of desire to spread them. I believe that if my neighbors, my friends, and my students would see them, the whole approach would change. I think that the great majority of them are ethical people, but I think it is obvious that often they are uninformed.

The third problem is that there is a specific ideology that seen no problem at all with this violence.

I think that Itamar Ben-Gvir and his entire group are violent people. It is hard to expect that the police will do anything when in other circumstances, those who are now in power would have been among those groups, with their mantle of power, the unrestrained use of power, and their lack of readiness to recognize the humanity of the other side. In place of this, it is upon us to recognize the humanity even of evildoers, even of our worst enemies.

In the past, you have expressed positions that are not popular in the community: for example, you supported the ending of the war for the sake of the hostage deal. Why in your opinion are your positions unusual?

“Part of the problem is the dynamic of the quarrel, becauseIn times of conflict everything becomes black and white, us against them. I think it doesn’t have to be that way: even in times of conflict we must recognize the humanity of the other side, and conflict does not permit us to do unethical things.

Additionally, there are two groups [within the political movement of Religious Zionism]. One is the disciples of Rabbi Kook. I believe that they are ethical and moral people, but their love for the Land of Israel blinds them with regard to certain problems.  

The second group is Otzma Yehudit and the chasidim of the late extremist rabbi and politician Meir Kahana. I think that this is a distortion of Judaism. Judaism does not believe in violence and revenge. Judaism does not believe in power as a value. The readiness of various components of Religious Zionism to align with them on the basis of political calculations is a serious ethical mistake.  

What does it mean to you and to this yeshiva to be here in Alon Shvut in Gush Etzion, with is itself a settlement?

“I believe that we have a right to all of the Land of Israel, because G-d gave it our father Avraham. But I recognize that our narrative clashes with the narrative of another strong group, which has different beliefs. When there are two completely different narratives, the only possible path is to reach a compromise, even if that implies paying a price.

The Talmud speaks about two people dispute over an object, to whom it belongs. There are two different solutions. One is to let them quarrel the other is to let them divide it.

What this essentially says is that you should prioritize peace over truth. The truth is that it doesn’t belong to both of them, but since we have not way of determining this, we choose to prioritize peace.

With that, the problem is that this has failed in practice, I say this with deep pain, because there is no partner for peace. For a not insignificant period I was sent to various dialogues with Palestinians, here and in Europe. There is no partner. This is my experience and the experience of others I am acquainted with.

What is required for Israel’s future?

“We must reduce the polarization in society. We need much more dialogue, much more readiness to compromise, internally as well. We are currently reading Sefer Bereishit, and the central message is that it is possible to overcome external threats, but internal divisions lead to exile.

An additional thing we need is accountability. Our society had undergone a powerful trauma, and absolutely think there is need for an independent commission of inquiry into October 7, and it must be a commission that can provide sufficient accountability and close the circle.

We are also obligated to contend with the ethical problems of what happened in Gaza. In my opinion, we need to acknowledge the ethical difficulties in Gaza and establish policies for the future. We need to acknowledge that there needs to be a political solution. Force will not solve all the problems. Both are necessary.

Zevulun and Yisokhar: The Lawsuit

by Rabbi Aryeh Klapper

Imagine a Torah essay that upends a popular belief, exposes a possibly new kind of AI hallucination, raises concern about possible financial fraud, and most exciting of all – corrects crucial typos that led to radical misunderstandings of a responsum by Rav Mosheh Feinstein! Now imagine all that in about 1500 words! I couldn’t get it anywhere near that short. But here is a 1500 word first installment of a series that has all those ambitions.

We’ll start with the popular belief. “Everyone knows” that Yisokhar and Zevulun formed a partnership, in which Zevulun traded half of his worldly profits for half of the reward Yisokhar received for his study of Torah. Rashi on this week’s parshah (49:13) is a standard source:

שהיה זבולון עוסק בפרגמטיא,

וממציאים מזון לשבט יששכר, והם עוסקים בתורה,

Zevulun was engaged in commerce,

and they would produce food for the tribe of Yisokhar, who were engaged in Torah.

However, Rashi does not describe the arrangement as a quid pro quo = material support in exchange for the reward of studying Torah. Rashi might mean just that Zevulun received a separate reward for his support of Torah.

Rashi’s source, Bamidbar Rabbah 13:17, provided more support for the popular understanding.

שלולי זבולן – לא היה יששכר יכול לעסוק בתורה

שהוא היה מאכילו ונותן לתוך פיו . . .

זבולון ויששכר

שניהם היו נוטלין שכר תורה ביחד

ושניהם היו מתפרנסין ביחד

Because without Zevulun – Yisokhar would have been unable to engage in Torah,

Because he would feed him, putting the food into his mouth . . .

Yisokhar and Zevulun

The two of them would take the reward for Torah together

and they would support themselves together.

However, even if we understand “took the reward of Torah together” as implying a split of Yisokhar’s reward, this midrash does not say that the brothers/tribes formalized their arrangement, nor does it specify the percentages that each took of what the other brought to the table. It describes a fraternal rather than a legal or contractual relationship.

Formalized versions of this kind of arrangement have actually been the subject of great ambivalence from Chazal’s day to our own, because it cheapens Divine reward to say that it can be exchanged for any amount of this-worldly goods. We solve this partially by condemning anyone who sells reward they’ve already earned; with regard to future reward, the arrangement can be conceptualized as accepting an investment rather than a sale, because the scholar will now gain more reward than otherwise, and likely gain overall.

Framing the arrangement as an investment has a second advantage. It is demeaning to the scholar to be an object of charity, and furthermore, Zevuluns might be tempted to direct their charitable funds to those unable to support themselves, rather than to those who engage in Torah instead of supporting themselves.

However, the investment model also has costs. Making Zevulun’s reward depend on a quid pro quo creates risk for the investor – what if they choose the wrong Yisokhar? Offering Yisokhar the prospect of matching Zevulun’s standard of living, which he has no way of sustaining independently, makes him (and generally his wife and children) dependent on one individual – what if Zevulun becomes impoverished, or dies, or reneges? What if the parties disagree as to whether they are meeting their obligations?

The standard way to manage these sorts of risks is to write up a formal contract. However, perhaps because of the theological discomfort discussed above, Yisokhar-Zevulun relationships generally avoided or resisted extensive halakhicization until February 14, 1982, when Rav Moshe Feinstein responded to a list of halakhic questions sent by Rabbi Simcha Soloveitchik, along with follow-up questions he received from Rabbi Shlomo Blumenkrantz. 

Rav Mosheh’s responsum is printed as 4YD:37 in a posthumous volume of Igros Moshe. Our interest is in Section 14. (The translation below is mine; I’ve provided the Hebrew for the last section. The words in a smaller font were added by the editors of that volume of Igros Moshe where they thought clarification was necessary.)

That which your honor (= R. Blumenkrantz) asked in your first section,

that if I reply to Rav Soloveitchik that a Yisokhar-Zevulun relationship becomes binding only if the parties made a condition (=an explicit quid pro quo) with each other,

then must that condition be made via shtar (= in writing), or is an oral agreement sufficient?

Writing is certainly not necessary,

and there is also no need for (the oral agreement to be made in) the presence of witnesses, because written contracts and witnesses serve only to prevent lying,

(Editors: but here, where the whole condition is) related to mitzvah-reward,

a matter to which only the Holy Blessed One can be a contracting party, because only He gives reward,

which means that in terms of what Yisokhar gives – there is no need for a written contract of witnesses, and therefore Zevulun, since he wishes to acquire that reward (and cannot secure it via shtar), commits fully (via oral agreement).

Anyway, if a formal kinyan (= act of acquisition, such as the transfer of a shtar) were necessary, (it would be impossible), because it would apply to things that don’t yet exist (and halakhah does not regard things that don’t yet exist as subject to kinyan) . . .

ולכן פשוט שאין צריך בזה קניין ושטר.

אבל פשוט שאם ישכר ירצה דווקא בשטר ועדים חתומין –

כדי שיוכל לתבוע בדינא את זבולון על הזמן שלא שמענו ממנו שחזר בו –

משום שלא סמכה דעתו עליו בלא שטר ועדים שלא יוכל לתובעו בב”ד,

ואף שהוא רק שטר לברותא,
(Editors: מ”מ אם נעשה בלא שטר)
– כיוון שלא סמכא דעתיה דישכר עליו בלא שטר ועדים – אין להחשיב זה אף לא לדברים להחשיבו מחוסר אמנה . . .

Therefore, it is obvious that no kinyan or shtar is needed for this.

However, it is obvious that if Yisokhar wishes to insist on a shtar signed by witnesses

so that he can sue Yisokhar for (any money owed) for any time that Yisokhar had not paid without providing notice of termination,

because he doesn’t rely on him in the absence of a shtar and witnesses and having no ability to sue him in beit din,

and even though this is just a shtar LBRThA,
(Editors: nonetheless, if it was done without a shtar)
– since Yisokhar did not rely on him without a shtar and witnesses – one should not consider this even as an oral agreement so as to consider Yisokhar a “breacher of trust” (if he does not pay) . . .

My translation indicates that the shtar is effective in making Yisokhar a “breacher of trust” if he fails to pay while the arrangement is in effect. However, I had trouble making sense of the phrase “since Yisokhar did not rely on him without a shtar and witnesses”, how especially since the editors’ note described the case as “done without a shtar”.

I also had no idea what a “shtar LBRThA” was. Attributing this to ignorance, I searched for the phrase on Bar Ilan, and then for just LBRTha alone, and discovered that this was the only instance in the database. So I Googled it and received this summary from Gemini:

שטר לברותא (Shtar Le’bruta’) is a Talmudic/Halakhic term referring to a legal document that serves as a proof or support for an oral agreement or a promise, especially in contexts like supporting a son in-law or a student, where a formal, legally binding deed (like a loan document) isn’t strictly necessary, but a written record helps establish the commitment in court (Beit Din), ensuring the recipient’s reliance is justified.

The definition seemed a perfect fit for the context, and there were footnotes to Rabbi Dovid Lichtenstein’s “Halacha Headlines” and Rabbi Zvi Ryzman’s “Olamot”.

Unfortunately, it turned out that those footnotes were simply citations of the Hebrew teshuvah. Gemini did a marvelous job of coming up with a context-appropriate translation of a hapex legomenon (= word that appears only once), but I still had no independent evidence of the phrase’s meaning.

Or that the phrase existed. Google also asked me if I instead meant shtar ChBRTha, substituting a chet for the initial lamed. That shtar, Gemini informed me (in Hebrew), was written among friends as an expression of mutual trust. That also seemed a possible fit for my context. Perhaps Google was correct, and there was a typo in Igros Moshe?

Unfortunately, shtar ChBRTha is not a hapex – it simply doesn’t exist. It’s not clear to me whether Gemini invented the definition by literally translating chavruta, or whether it did so on the assumption that this was in fact the correct text of Igros Mosheh.

So I had gotten nowhere. Searching now on Otzar, I found that Rabbi Efraim Sternbuch, in his 1998 Sefer Yisoschor uYisokhar Volume 1 (Hebrew) had been puzzled by the same paragraph. (Aside: From one teshuvah to VOLUME 1! Halakhicization proceeded at an extraordinarily rapid pace). Here is what he wrote:

ובסיום דבריו נראה בפשטות דבא לחדש דע”י שטר מגרע

דבלא שטר היה כאן עכ”פ ענין של מחוסר אמנה

אבל כיששכר דורש שטר – אם כן, אין הוא מאמין לזבולון, ואם כן, אין כאן מצד זבולון מחוסרי אמנה.

והלשון לא ברור כ”כ

וגם נשתנה מעט ע”י המעתיקים וקשה לעמוד על כוונתו בבירור . . .

At the end of his words, it seems obvious that he comes to make the creative point that Yisokhar loses by insisting on the shtar,

because without a shtar there would have been at least an issue of breach of trust,

but when Yisokhar demands a shtar – if so he doesn’t trust Yisokhar, and if so, there is no breach of trust from Yisokhar’s side.

But the language is not so clear, and also has been slightly changed by the ma’atikim/copyists, so it is hard to understand his intent with certainty . . .

Rabbi Sternbuch’s understanding is almost the diametric opposite of mine. I said that the shtar is necessary to create the issue of breach of trust; he says that the shtar eliminates the issue of breach of trust.

Honestly, Rabbi Sternbuch’s understanding seems nonsensical to me, and he himself calls it “creative” on the part of Rav Mosheh, which is not always a compliment. But his comment about “changes on the part of the copyists” made me wonder – what changes was he referring to? And looking more closely, I realized that his text was not shtar LBRTha, but rather שטר לברורא = shtar LBRRa. Where did that come from, and was it a real phrase?

Please send in suggestions, comments, questions, and research! Please stay tuned for the next installment!

Warning: Pray Only With Caution

by Rabbi Aryeh Klapper

In American English, “falling flat on one’s face” is a comic fail. In Jewish tradition, however, it is a prayer posture of terrible power and danger, known as nefilat apayim.

After the Oven of Akhnai incident, Rabbi Eliezer’s wife prevented him from praying prostrate. She knew that he blamed her brother, Rabban Gamliel, for his excommunication, and feared that G-d would avenge his pain. One day, she was distracted, and her brother died.

Many siddurim still refer to the “Tachanun” prayer following the morning and afternoon amidahs as nefilat apayim. We however limit prayerful prostration on any surface to the High Holidays. There are many reasons for that choice[1], but I think at least one of them is a fear of praying too successfully.  

Another possible reason is that prostration on a stone floor is permitted only on the Temple Mount; anywhere else, the same action is a violation of even maskit, a prohibition closely related to idolatry.

However, there is no violation of even maskit if something separates between face and floor. Around 3.5 minutes into his recorded OU shiur on 2Divrei HaYamim Chapter 7, Rabbi Shalom Rosner contends that this is why we put our heads on our arms when saying tachanun. The practice is a vestige of a time when we did nefilat apayim. The arm was used to separate between our head and the floor, just in case.  

On this basis, Rabbi Rosner asserts that it is a mistake to believe that there is a halakhic  requirement for the relevant arm to be clothed, for example in a long-sleeved garment. “There is no such halakhah!” It is true that the arm by itself would not suffice as a separation. However, one can say tachanun on a shtender, or over a table, and the furniture serves as an adequate separation. The point is to separate face from floor, not face from arm.

However, the ArtScroll siddur’s instructions say that: “The head should not rest on the bare arm, rather the arm should be covered with a sleeve, tallis, or even a cloth”. Mr. Mitchell Klausner was bothered by Rabbi Rosner’s seemingly cavalier dismissal of a position endorsed by ArtScroll and brought it to my attention.

I initially responded based on my high school girsa deyankuta that ArtScroll is merely channeling Mishnah Berurah 131:3:

ונוהגים לכסות הפנים בבגד,

ולא די כיסוי היד שנופל פניו עליה,

לפי שהיד והפנים גוף אחד הם, ואין הגוף יכול לכסות את עצמו [מ”א]:

The custom is to cover the face with a garment,

and the covering of the hand that his face falls onto is not sufficient,

because the hand and the face are one body, and the body cannot cover itself.

But this only intensified the problem. While Rabbi Rosner might not be aware of the ArtScroll instructions, he surely was familiar with the Mishnah Berurah, and with the Magen Avrohom that the Mishnah Berurah cites.

One might respond that Rabbi Rosner understands those sources as discussing cases where there aren’t enough tables for the people saying tachanun. But this is a weak reading of Mishnah Berurah’s statement that “The custom is”.    

On the other hand, Mishnah Berurah states that the custom is “to cover the face”, and not the hand, which I think fits well with Rabbi Rosner’s contention that the issue is about separating face and floor, with the hand having no per se significance.

However, Magen Avraham does not say quite what Mishnah Berurah ascribes to him. Here is Magen Avraham 131:2:

ומ”מ נוהגין להפסיק בבגד,

דיד לא חשיב כיסוי, 

דמין במינו אין חוצץ, 

כמ”ש סימן צ”ח: 

Regardless, the custom is to separate via a garment,

because the hand is not considered a covering,

because a thing does not legally separate between its own kind (and something else),

as is written in Siman 98.

Where Mishnah Berurah speaks of “one body”, Magen Avrohom speaks of “one kind”. I thought of connecting the dispute between Rabbi Rosner and ArtScroll to this difference. But I worried that I was overreading mere stylistic variations, so I looked in Siman 98 – and found nothing obviously relevant.  However, Machatzit Hashekel corrects the citation to Siman 91, and adds a citation to Siman 74 as well.

Here is Shulchan Arukh OC 91:3-4:

יש אומרים שאסור להוציא אזכרה מפיו בראש מגולה;

וי”א שיש למחות שלא ליכנס בבהכ”נ בגלוי הראש.

כובעים, (קפיל”ה בלעז) הקלועים מקש – חשיבא כסוי,

אבל הנחת יד על הראש – לא חשיבא כסוי;

ואם אחר מניח ידו על ראשו של זה – משמע דחשיבא כסוי.

Some say that it is forbidden to speak a Divine Name with one’s head uncovered;

and some say that one should express an objection in order to prevent someone entering a Beit Knesset with an uncovered head.

Hats woven of straw – are considered a covering,

but placing a hand on the head – is not considered a covering;

but if another person puts their hand on this person’s head – the indications are that this is considered a covering.

The distinction between the same person’s hand and another’s demonstrates that Mishnah Berurah’s formulation is just a more precise formulation of his source Magen Avrohom. All hands and faces are of the same kind, but my hand is part of the same body as my face.

However,  Rav Yosef Caro (=“the Mechaber”) in Shulchan Arukh OC 74:2 does not distinguish between hands.

הרוחץ ערום במים צלולים, ורוצה לשתות –

יכסה בבגד ממטה ללבו,

כדי שלא יהא לבו רואה את הערוה כשיברך.

ודוקא בבגד, אבל בידים – לא הוי כיסוי. 

A person who is bathing in clear water, and wishes to drink –

must cover with a garment under their heart,

so that their heart will not see their genitals while they bless/

Specifically with a garment, but with their hands – this is not a covering.

Perhaps the distinction should be imported/assumed; but again, the temptation is to make a conceptual distinction between the contexts and connect it to our issue. For example: Siman 91 is discussing whether the head is covered, while Siman 74 is discussing whether the heart and genitals are separated. (The separation here would be accomplished by putting an arm across the chest) Someone else’s hand suffices to cover, but not to separate.[2]  Does someone else’s hand suffice for tachanun? If yes, would that prove that the issue there is about covering the face and not about separating it from the floor, and that’s why ArtScroll insists on long sleeves?

Unfortunately, this speculation is disproven by Ramo’s (=Rabbi Moshe Isserles, Mapah) gloss:

A gloss:

The same is true if he covers his head with his hands – this is not considered covering the head.

See Siman 91.

(Terumat HaDeshen in the name of Or Zarua).

Ramo explicitly equates the separation of heart and genitals with the requirement to cover the head, and even cites Siman 91!

We could still say that while Ramo equates the two contexts, Rav Caro distinguishes them; but that seems a bridge too far without clear evidence. More likely, Rav Caro assumed that one would understand the law regarding headcovering from Siman 91.

The upshot is that the standard for all these contexts is the same, and our issue can’t rest on a dispute about which standard applies.

With that avenue exhausted, I reconsidered Rabbi Rosner’s argument from first principles, and asked myself: If the need for an anti-even maskit separation can be satisfied by a table, why is the arm necessary at all? I’m not aware of anyone suggesting that leaning on an arm, sleeved or otherwise, is necessary for tachanun only when there is no furniture to put one’s head on.

Moreover, why retain a concern for even maskit if we no longer put our faces anywhere near the floor? Moreover, why are anti-even maskit precautions necessary at all if the floor isn’t stone? This question is hotly debated even regarding Yom Kippur, when we do put our faces to the ground!

The historically correct answer is that there is another reason for covering the arm.  Here is Eliyah Rabbah 131:2:

כתב בספר המנהיג לכסות פניו בטלית או בסדור,

ולא ביד עצמו, מפני שכתובין שם עונותיו:

The Sefer HaManhig wrote that one should cover his face with a tallit or sudar,

and not with the hand itself, because his sins are written there.

This is cited by a host of Acharonim (always as “HaManhig quoted by Eliyah Rabbah”; it seems that they were unable to find the source in HaManhig, and I have not found it either). This rationale obviously cannot be satisfied by saying tachanun over furniture, and is the source for those who require long sleeves.

Elyah Rabbah does not explain why the hand is necessary at all, only why it must be covered. Let’s assume that the purpose is to prevent any risk of actual nefilat apayim, as Rabbi Rosner argues (and as did Rav Elyashiv). Regarding even maskit, this seems hopelessly overdone, requiring the law to stack precaution upon precaution. But what if the true concern is lest we damage others with our prayer?  

My custom is not to say tachanun whenever I am conscious of being angry with someone else for personal reasons.

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[1] See e.g. Peninei Halakhah at https://ph.yhb.org.il/20-15-13/#_te01ftn15_18

[2] The halakhic discussion is based on traditions about Rabbeinu Tam’s bath etiquette that would make for a fascinating historical article, if this has not already been done.