On the Spiritual Significance of Sandwiches

by Rabbi Aryeh Klapper

וַיְעַנְּךָ וַיַּרְעִבֶךָ

וַיַּאֲכִלְךָ אֶת-הַמָּן

אֲשֶׁר לֹא-יָדַעְתָּ וְלֹא יָדְעוּן אֲבֹתֶיךָ

,לְמַעַן הוֹדִיעֲךָ

כִּי לֹא עַל-הַלֶּחֶם לְבַדּוֹ יִחְיֶה הָאָדָם

כִּי עַל-כָּל-מוֹצָא פִי-יְהוָה, יִחְיֶה הָאָדָם

He afflicted you, and He made you hungry

and He fed you the manna

which you had not known, and which your ancestors had not known

for the sake of informing you

ki lo al halechem levado yichyeh ha’adam

ki on all that emerges from the mouth of Hashem yichyeh ha’adam

“Man doth not live by bread alone” is the King James Version’s brilliantly memorable translation of lo al halechem levado yichyeh ha’adam in Devarim 8:3. Western tradition generally assigns this phrase one of two meanings:

1)     Physical life is less important than spiritual life. This is the intent of Jesus when he quotes this verse to the Devil in Matthew 4:4.

2)      Human beings cannot survive unless there is some experience beyond survival at stake. Thus freedictionary.com has: In order to survive, people need more than physical things like food and shelter. People need mental or spiritual things like satisfaction and love.

Neither of these makes much sense in context. The Torah says that this lesson should emerge from the experience of eating manna for forty years – how would that teach either of these messages?

Targum Yonatan (and possibly Targum Onkelos as well) offers a contextually superior translation. “Man need not live only by bread – rather, man can live on anything that is created by G-d’s command”. All the law of nature are just illusions that G-d can sweep away at will.

But if that was the message, why send manna, rather than letting them live without food at all (as Mosheh Rabbeinu did while atop Sinai)? And why did this message require forty years of reinforcement?

All three of the above reading have the starting assumption that “bread” stands for “basic physical needs”. But what if “bread” is pure metaphor, and stands for something metaphysical as well?

The midrash (Sifri Eikev 48) suggests the following:

;כי לא על הלחם לבדו יחיה האדם” – זה מדרש”

כי על כל מוצא פי ה'” – אלו הלכות והגדות”

“Bread” – this refers to midrash

“That which emerges from the mouth of Hashem” – this refers to halakhot and aggadot

But in what sense is midrash like bread, and manna like “halakhot and aggadot”?

Rabbi Chaim Yirmiyahu Flensberg (1841-1913), who deserves to be much better known in Modern Orthodox circles, offers an original explanation in the introduction to a collection of his drashot. His starting assumption is that the study of the nonhalakhic components of the Talmud has suffered from a lack of critical rigor, and that this lack of rigor was then projected onto midrash aggada and aggada themselves. If aggada were studied with the same rigor as law, we would discover that it is as intellectually rigorous as legal reasoning. (Rabbi Flensburg makes a strong case in his Nezer haNitzachon that Chazal were familiar with and competent at Athenian philosophic reasoning, and that aggadic narratives often encode formal philosophic arguments.)

Here is Rabbi Flensberg’s commentary on our verse:

,ע״כ מפרש הספרי את הפסוק שהוא מדבר בשתי כתות בני אדם

,הכת האחת הם האנשים המצוינים ברוחב לבבם בתורה

,אשר להם הכח לעמוד בהיכל הפלפול לחדש דברים בהלכות עמוקות

,והם חפצים להתגדר בלמודם רק במקצוע זה, ולהניח שאר המקצעות שבתורה

 – ונגדם אמר: למען הודיעך כי לא על הלחם לבדו יחיה האדם

זה מדרש, דהיינו פלפול הגמרא

ונגד הכת השנית, והם הלומדים הבינונים הבוחרים ג״כ רק במקצוע אחד דהיינו ללמוד הלכות, ולהניח את  האגדות

,אמר: כי על כל מוצא פי ה׳ יחיה האדם – אלו הלכות ואגדות

,ומלות ״למען הודיעך״ שבראש הפסוק סובב גם על סוף הפסוק

כאלו אמר

למען הודיעך

כי לא על הלחם לבדו יחיה האדם

ולמען הודיעך

,כי על כל מוצא פי ה׳ יחיה האדם

,כי יש בפסוק זה שתי הודעות, לשתי כתות הלומדים – להגבוהים ולהבינונים

,שעל כולם החובה ללמוד גם אגדות

באשר גם הן מוצא פי ה׳ ועליהן יחיה האדם

Sifri therefore explains that the verse is speaking of two groups of human beings.

The first group are the people who have exceptionally broad Torah hearts,

who have the power to stand in the sanctuary of pilpul, to be creative in the deepest areas of law.

They wish to advance in their learning only in this department, leaving aside all other departments of Torah. To forestall them the Torah says: “for the sake of informing you that man does not live by bread alone -” – this refers to midrash, meaning Talmudic dialectic.

To forestall the second group, which is composed of the middling learners who also choose only one department, namely the study of laws, and leave aside aggadot,

it says: “man lives by all that emerges from the mouth of Hashem” – these are halakhot and aggadot.

The words “in order to inform you” at the head of the verse apply also to the end of the verse, as if it said

He afflicted you, and He made you hungry

and He fed you the manna

which you had not known, and which your ancestors had not known

for the sake of informing you

that man does not live by bread alone

and for the sake of informing you

that man lives by all that emerges from the mouth of Hashem

This verse includes two proclamations, to the two groups of learners, the advanced and the middling,

that the obligation to learn aggadot rests on all of them,

since they too emerge from the mouth of Hashem and the human being must live by them.

For Rabbi Flensburg, “man does not live by bread alone” teaches that intellectuals must also study dry law; “rather by all that emerges from the house of Hashem” teaches that rule-loving people must also study aggada.  What is not elaborated on, though, is an explanation of how the manna taught these lessons. This would be fine if we assumed that his introduction was “mere drush”; but his whole point is that midrash aggada should be studied with intellectual rigor! I therefore feel justified in filling this gap.

The first mention of bread in Chumash is in the curse of Adam: “By the sweat of your brow you shall eat bread”. In other words, bread is a symbol of sustenance achieved through human effort, and k’b’yakhol in the face of Divinely ordained obstacles. Manna, by contrast, is the symbol of passive dependence. Nothing human beings do can affect how much manna will rain down, and it cannot even be stored against a non-rainy day.

The manna lasted throughout the lifetime of Mosheh Rabbeinu. Talmudic dialectic appears only after Mosheh’s death, as per Temurah 16a:

A beraita taught:

During the mourning for Mosheh 1700 kal vachomers, gezerot shavot, and close readings were forgotten.

Said Rabbi Abahu:

Nonetheless, Otniel ben Kenaz restored them via his dialectic

Rabbi Flensburg’s challenging psychological insight is that even in Torah study there is a natural – and laudable – human desire for autonomy and for the sense of accomplishment that comes about by overcoming, especially by overcoming obstacles that G-d Himself put in place.  Torah scholars properly want to learn the hardest sugyot rather than read simple codes.  The Vilna Gaon turned down an angel’s offer to teach him the entire Torah effortlessly.

We do not really wish to be returned to Eden intellectually. Moreover, we should be highly suspicious of Torah that appears to be produced without great human effort; beware of snakes offering organic fruit.

But the study of Torah can’t be all about making G-d laugh when his children defeat Him.  

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The Right and the Good

This week’s alumni dvar torah is by Shira Krinsky

“שמור תשמרון את־מצות ה’ א-להיכם ועדתיו וחקיו אשר צוך

ועשית הישר והטוב בעיני ה’ למען ייטב לך ובאת וירשת את־הארץ הטבה אשר־נשבע ה’ לאבתיך”

(דברים ו:יז-יח)

You shall diligently keep the commandments of the Lord your God, and His testimonies and His statutes, which He has commanded you.  

And you shall do what is right and good in the sight of the Lord, that it may go well with you, and that you may go in and take possession of the good land that the Lord swore to give to your fathers.”

(Devarim 6:17-18)

Rabbi Lord Dr. Jonathan Sacks asks regarding the juxtaposition of these verses: “The difficulty is obvious. The preceding verse makes reference to commandments, testimonies and statutes. This, on the face of it, is the whole of Judaism as far as conduct is concerned. What then is meant by the phrase ‘the right and the good’ that is not already included within the previous verse?”

Rashi and Ramban, in their comments on these Pesukim, both answer this question. Rashi answers that the second verse refers to acting beyond the letter of the law.  Ramban answers that while “the Torah gives us many commandments, such as “do not hold a grudge” or “do not curse a deaf person”, it cannot command us specifically how to act in every single situation,  and that is where the commandment to “do the right and the good” comes in.

Rabbi Sacks cites Rashi and Ramban, but then makes his own suggestion.  “There are aspects of the moral life that cannot be reduced to rules of conduct, because what matters is not only what we do, but the way in which we do it: with humility or gentleness or sensitivity or tact. Morality is about persons, and no two persons are alike.”

Building off of Rabbi Sack’s last sentence, I would like to suggest another message that can be learned from the juxtaposition of these verses.

The Rav, in his essay Community, talks about the dichotomy in Judaism between  the individual and the community. “Both the community-related and the lonely individual, be he man, be she woman, were created by God . . . He is a single, lonely being, not belonging to any structured collectivity. He is also a thou-related being, who co-exists in companionship with somebody else.”

Perhaps this is what our verses are hinting to as well. Everyone must follow all of the mitzvot that Gd has commanded; there is an objective, communal truth to Judaism. On the other hand, everyone must do what is right and good to them; there is a subjective, individualistic truth to Judaism as well.

This dichotomy also emerges from contrasting the writings and beliefs of two other recent Jewish philosophers, Yeshayahu Leibowitz and Abraham Joshua Heschel.

Leibowitz believes that the religious experience is fundamentally objective. He brings as an example the fact that  everyone says the same Shemonah Esrei prayer, in a language that they might not have any relation to, whether it be someone who is burying a close family member, or a groom on his wedding day. Prayer is just a statement of one’s acceptance of halacha, and to follow halacha, according to Leibowitz, is to waive your right to a subjective religious experience.

Heschel believes in an experiential Judaism, a quest to feel one’s self as in the presence of Gd. Before one must accept the yoke of all of the mitzvot, one must feel a degree of genuineness in their religious life and connection to Gd.  Heschel, as well, describes multiple paths to religious truth.

The juxtaposition in our parsha of “diligently keeping the commandments” and “doing the right and the good” addresses the question: Who is right, Heschel or Lebowitz? The answer — Yes.

Shira Krinsky (SBM 2016) is a junior in Stern College studying psychology.

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Why “Why” Questions Belong in the Beit Midrash

by Rabbi Aryeh Klapper

Does the study of halakhah lead to philosophic depth?  Or are the disciplines of halakhah and hashkafah utterly separate and distinct?

These questions present a false choice, and the failure to recognize the falseness of the choice is part of what ails Modern Orthodoxy.  Let me explain briefly.

Rabbi Joseph Dov Soloveitchik argued that in the modern era[1] halakhah – by which he meant a descriptive conceptualization of Jewish law, not an array of prescriptive details – should be the source of hashkafah.  He was less successful in conveying the need for serious philosophic training, or at the least for a developed philosophic sensibility, to make the leap from one to the other.  The result too often was a culture with an impoverished hashkafah, and worse, an inability to recognize its own lacks.  And even worse, an incapacity to appreciate the contributions and integrity of those who saw the relationship between halakhah and hashkafah differently.

For example: The Rav brilliantly argued that a halakhah-generated hashkafah looks for imperatives rather than for explanations when confronted by tragedy.  But to make a normative response to tragedy meaningful, one has to genuinely understand why the question matters, why tragedy can change the nature of faith.  Someone who genuinely understands the available theological alternatives will likely also understand why the normative response doesn’t satisfy everyone, and appreciate the value of profound classical and contemporary theodicies even as they choose a different path.

Intense and conceptually rigorous study of halakhah can, but does not necessarily, lead to hashkafic depth.  A key pedagogic challenge for Modern Orthodoxy is to teach Talmud and Halakhah in a way that nurtures philosophic sensibility as organic to the development of passionately committed Jews who care deeply about the depth, breadth, and rigor of their learning.

I think it can be done. Here’s an example of how, via a discussion beginning from Devarim 5:16.

כַּבֵּ֤ד אֶת־אָבִ֙יךָ֙ וְאֶת־אִמֶּ֔ךָ

כַּאֲשֶׁ֥ר צִוְּךָ֖ יְקֹוָ֣ק אֱ-לֹהֶ֑יךָ

לְמַ֣עַן׀ יַאֲרִיכֻ֣ן יָמֶ֗יךָ

וּלְמַ֙עַן֙ יִ֣יטַב לָ֔ךְ

:עַ֚ל הָֽאֲדָמָ֔ה אֲשֶׁר־יְקֹוָ֥ק אֱ-לֹהֶ֖יךָ נֹתֵ֥ן לָֽךְ

Honor your father and your mother

as Hashem your G-d commanded you

so that your days will be extended

and so that it will be good for you

on the ground which Hashem your G-d is giving you.

What is the meaning of “on the ground which Hashem your G-d is giving you?  Perhaps it implies that honoring parents outside Israel does not generate extended life. This topic is addressed in an essay (#245) by Rabbi Yaakov Chaim Sofer in the journal Mevakshei Torah.  Among the sources he cites is the Midrash Tannaim to our verse:

;כשאתם על האדמה – יש אריכות ימים ויש טובה מצויה

.הא אינן מצויין לא בגולה ולא בתושבות

When you are on the ground – there is extension of days and good is to be found;

But these are not to be found neither in the golah/exile nor in the toshavot/settlements.

What are these toshavot/settlements, which seem to be neither in Israel nor in exile?  Rabbi Dovid Tzvi Hoffman (as cited by Rabbi Sofer) defined them as follows:

תושבות הם מקומות שהיהודים נתיישבו שם בחוץ לארץ

כמו אלכסנדריה של מצרים והעיר של רומי

Toshavot are places where the Jews settled there in “outside the Land”

such as Alexandria of Egypt and the City of Rome

Here we appear to have an early recognition of – and perhaps resistance to – the idea that a thriving Jewish community outside the Land of Israel is not fully in exile.  This is our first philosophic opportunity.

Regardless, this midrash clearly held that honoring parents outside Israel does not generate extended life.  Rabbi Sofer himself, however, believes that a story on Chullin 110 furnishes conclusive evidence that the Babylonian Talmud held otherwise.

,רמי בר תמרי

,דהוא רמי בר דיקולי מפומבדיתא

…איקלע לסורא במעלי יומא דכפורי

…אייתוהו לקמיה דרב חסדא

?חזייה דלא הוה קא רמי חוטי. אמר ליה: מאי טעמא לית לך חוטי

:אמר ליה

,טלית שאולה היא

:ואמר רב יהודה

.טלית שאולה, כל שלשים יום – פטורה מן הציצית

.אדהכי, אייתוה לההוא גברא דלא הוה מוקר אבוה ואמיה

.כפתוהו

:אמר להו

,שבקוהו

:דתניא

– כל מצות עשה שמתן שכרה בצדה

.אין בית דין שלמטה מוזהרין עליה

:אמר ליה

!חזינא לך דחריפת טובא

!אמר ליה: אי הוית באתריה דרב יהודה, אחוינא לך חורפאי

Rami the son of Tamri/Datepalms,

who is the same as Rami the son of Dikkulei/Datepalms from Pumbedita

arrived in Sura on the eve of Yom Kippur . . .

They brought him before Rav Chisda . . .

[Rav Chisda] saw that he was not wearing tzitzit.  He asked him:  Why don’t you have tzitzit?

He replied:

My tallit is borrowed,

and Rav Yehudah said:

A borrowed tallit is exempt from tzitzit for the first thirty days.

Meanwhile, they brought in a man who would not honor his father and mother,

They prepared him for flogging.

[Rami] said:

Leave him be!

for we learned in a beraita:

“Every mitzvah that has its reward (written) next to it –

the courts Below are not commanded regarding it.

[Rav Chisda] said to him:

I see that you are very sharp!

[Rami] replied:

If you were in the territory of Rav Yehudah, I would show you my sharpness!

Why are such mitzvot exempt from humanly administered punishment? Rashi (following Mekhilta d’Rabbi Yishmael) explains that the Torah can be interpreted via implication: If the reward for such mitzvoth is X, it follows that the (only mandated) punishment for them is NOT X.   By this logic, the exemption is derived from the reward, and therefore, the exemption applies only where the reward does, and therefore, as the story takes place in Babylonia, the reward must apply even outside Israel.

But there are at least two ways to reject this proof.

A)

Devarim 25:15 reads

אֶ֣בֶן שְׁלֵמָ֤ה וָצֶ֙דֶק֙ יִֽהְיֶה־לָּ֔ךְ

אֵיפָ֧ה שְׁלֵמָ֛ה וָצֶ֖דֶק יִֽהְיֶה־לָּ֑ךְ

:לְמַ֙עַן֙ יַאֲרִ֣יכוּ יָמֶ֔יךָ עַ֚ל הָֽאֲדָמָ֔ה אֲשֶׁר־יְקֹוָ֥ק אֱ-לֹהֶ֖יךָ נֹתֵ֥ן לָֽךְ

 A complete and accurate weight-measure there must be for you

A complete and accurate weight-measure there must be for you

so that your days will be extended on the ground which Hashem your G-d is giving you

Yerushalmi Bava Batra 5:5 derives from “there must be for you” an obligation to appoint inspectors.  Since the commands in this verse also “have their rewards written next to them”, this obligation seems to contradict the beraita cited by Rami, which he claimed meant that such obligations were unenforceable.  The Yerushalmi, after citing that beraita, therefore reinterprets it to mean that a Rabbinic court is not punished for failure to enforce such laws, but it is nonetheless obligated to try to enforce them.  This reinterpretation undermines Rabbi Sofer’s proof.  He can still argue, however, that the Bavli stands by Rami’s reading.

B)

On Chullin 142a and elsewhere, the Talmud seems to accept the position of Rabbi Yaakov that “extended days” refers to the Word to Come, or to Resurrection, rather than to an extended life in the here-and-now.  Indeed, Masekhet Chullin closes with the declaration that the apostasy of Elisha ben Avuyah (known as Acher) could have been prevented had he known of this interpretation.

It seems to me that this interpretation of the verse is also incompatible with Rami’s argument.  If the reward referred to in the verse is metaphysical, or eschatological, it seems likely that the excluded punishments are as well, and the verse poses no bar to here-and-now physical punishments.

Given these weaknesses in Rami’s argument, it may be that we have mistaken the entire episode.  Maybe Rami is showing off his cleverness, rather than consistently making arguments that he actually believes.  There is no indication in the story that Rav Chisda actually releases the man he intended to flog.

Rabbi Yaakov’s interpretation is part of his broader position that שכר מצוה בהאי עלמא ליכא (there is no reward for mitzvoth in this world).  This position enables him to sideline the otherwise pressing issue of theodicy, of why bad things happen, especially to good people.

WRAPUP

Our apparently small opening questions led us to at least two major hashkafic issues – the status of Jewish life outside Israel, and the connection between virtue and success in this world.

At this point, it is the teacher’s choice whether these questions are seen as irrelevant or rather as essential, and if the latter, to convince the students that properly approaching them requires learning the halakhic topic and texts that triggered them more deeply – and yet to recognize that this is not all that is required.

This, I submit, is what the Modern Orthodox classroom should be like, and I believe that our community will be much healthier to the extent that it absorbs and models this sensibility.


[1] On some other occasion I hope to flesh out why the Rav’s statements were intended only for the ‘modern’ era, and to discuss whether their claims apply in the intellectual environment of today’s West.

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A Cry for Generations

This week’s alumni dvar torah is by Davida Kollmar

 

This week we read Parshat Devarim. One of the major topics of the Parshah is the sin of the Meraglim. Moshe sends out spies to tour Eretz Canaan, but the spies deliver a report which causes the Jews to not want to enter the land. As a result, Hashem punishes them by forcing them to wander in the desert for forty years as that whole generation dies.

It is significant that this Parshah is read this week. This Sunday we will be commemorating the fast of Tisha B’Av, although the actual date of 9 Av is on Shabbat. One of the most well known reasons for the fast is the destruction of the two Batei HaMikdash, which happened on that date. However, the Gemara in Taanit 29a lists three other reasons for the fast. One of them is that the sin of the Meraglim happened on the night of Tisha B’Av. The Gemara first uses dates to prove that the sin aligned with the 9th of Av. It then cements its proof with a Drashah:

וכתיב (במדבר יד:א) ותשא כל העדה ויתנו את קולם ויבכו העם בלילה ההוא. אמר רבה אמר רבי יוחנן: אותה לילה ליל תשעה באב היה.אמר להם הקדוש ברוך הוא: אתם בכיתם בכיה של חנם – ואני קובע לכם בכיה לדורות

And it says (Bamidbar 14:1), “And the whole nation raised their voices and they cried on that night.” Raabbah says in the name of Rabbi Yochanan: That night was the night of the 9th of Av. Hashem said to them: You cried a cry of no purpose, and I will set for you crying for generations.

The Gemara is honing in on the language of crying and relates the crying of the spies to the cries of Tisha B’Av for generations to come. Bamidbar Rabbah on Parshat Shelach elaborates on this, and says that at the time of the sin of the spies, Hashem decreed that the Beit HaMikdash would be destroyed and that the Jews would be exiled.

(As a side note: Drawing on the language of crying in Eichah 1:2, the Midrash in Eichah Rabbah also quotes the crying at the sin of the Meraglim as a source of the crying on Tisha B’Av. However, it adds another source – the crying of the Jews in the desert in Parshat BeHaalotchah that they wanted meat. This incident led to the appointment of the elders, an event to which it can be argued that the appointment of judges in the beginning of this Parshah is related.)

What is interesting, however, is that the Parshah read this week is not Parshat Shelach, where the story of the spies originally occurred; rather, it is Parshat Devarim, where the story is repeated to that generation’s children, the generation of Jews who are about to enter the land. Other than the technical reason that this is how the calendar falls out, what is the significance that it is the repetition of the story which we read before Tisha B’Av?

The Maharsha in his Chiddushei Aggadot on Taanit 29a discusses the difference in tellings between the two Parshiyot. One of the differences that he notices is that in Parshat Devarim (1:22), Moshe says, “ותקרבון אלי כלכם”, and all of you came before me. The Maharsha asks how Moshe could say this. After all, it was not his current audience who came before him, it was their parents’ generation. The Maharsha, quoting a Midrash, answers that in fact, the children were involved in the sin. Their fathers responded to the spies’ report by crying in their tents in fear of what would happen to their children if they entered the land, and the children cried along with their fathers. The Maharsha continues that the reason why Moshe rebuked the next generation was so that they would improve their ways as well, because if they would not, it would be them who would be experiencing the crying for generations that was caused by the sins of their fathers.

This focus on the children relates to our commemoration of Tisha B’Av. The Gemara in Sanhedrin 27b notes a contradiction between 2 Pesukim: Shemot 34:7 seems to indicate that Hashem punishes children for their parents’ sins, whereas Devarim 24:16 states that children will not die for their parents’ sins. The Gemara resolves the contradiction by saying that the children will die for their parents’ sins if they continue in the ways of their sinning parents.

This idea of children following in the ways of their parents is precisely what Moshe is warning against. The crying of generations would be a result of the cry of the parents only if the children would follow in their parents’ footsteps. Unfortunately, generations later, that is exactly what happened. Because of the Jews’ sins, they were punished with the destruction of the Batei Mikdash on the exact day of their parents’ original sin. And the fact that the Beit HaMikdash has not been rebuilt is a testament to the fact that we have not yet completely left our ancestors’ path of sin.

This Shabbat afternoon, immediately preceding Tisha B’Av, we will read the beginning of Parshat Va’Etchanan. In this part of the Parshah, Moshe pleads with Hashem for the opportunity to enter Eretz Yisrael. Unfortunately, Hashem refuses to give in to his request and only allows him to see Eretz Yisrael from a distance. May it happen soon that the requests of Moshe and of subsequent generations to enter the land of Israel and rebuild the Beit HaMikdash will be granted.

Davida Kollmar is an alumna of SBM 2014. She rejoined CMTL this summer to act as the Program Administrator for SBM and Midreshet Avigayil.

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The Power of Language

This week’s alumni dvar torah is by Elie Lerea

ב) וַיְדַבֵּר מֹשֶׁה אֶל רָאשֵׁי הַמַּטּוֹת לִבְנֵי יִשְׂרָאֵל לֵאמֹר)

:זֶה הַדָּבָר אֲשֶׁר צִוָּה יְקֹוָק

ג) אִישׁ כִּי יִדֹּר נֶדֶר לַיקֹוָק אוֹ הִשָּׁבַע שְׁבֻעָה)

:לֶאְסֹר אִסָּר עַל נַפְשׁוֹ לֹא יַחֵל דְּבָרוֹ כְּכָל הַיֹּצֵא מִפִּיו יַעֲשֶׂה

In this week’s Parsha, the Torah introduces the basics laws of making a Neder. A person who makes a vow, according to the Torah, is required by law to ensure that “he shall not violate his word; according to whatever came out of his mouth, he shall do” (Numbers 30:3). Explaining this brief obligation, the Sifrei comments: “Heb. לֹא יַחֵל דְּבָרוֹ, like לֹא יְחַלֵּל דְּבָרוֹ ‘he shall not profane his word,’ he shall not treat his word as being unholy.” Using this reading as a springboard to ponder the essence of Nedarim, the Netivot Shalom articulates a two-part question about the entire concept of a vow. How is it, the Slonimer asks, that the words spoken in the form of a vow have an actual status of Kedusha, and moreover, what is it about a Neder that allows for a prohibition to befall upon an object or action that is otherwise permitted? In other words, how can it be that humans have the ability to use language in such a way that they can actually affect and change the spiritually determined concepts of issur v’heter?

Beginning his exploration of this question, the Slonimer quotes Rabbeinu Yonah’s commentary on Pirkei Avot, who writes (Avot 21:17): “כי יהודי המקדש את פיו נעשה פיו ככלי שרת” (“if a Jew makes his mouth holy, his mouth becomes like one of the vessels used in the mikdash”). As such, just as a holy tool has the ability to transform anything placed inside of it into a status of Kedusha, so to does the mouth have the ability to make words holy and eternally meaningful. But having answered the technical question of a Neder’s ability to provide an object or action with the chalot of a prohibition, it remains to be explained what it is about the mouth that has so much unique power and influence to deemed a holy tool.

In Isaiah 43, the prophet, speaking in the name of God, proclaims: “This people I formed for Myself; they shall recite My praise” (Isaiah 43:21). The Slonimer explains that, in linking the formation of Israel with their reciting praise of God, Isaiah is hinting at the fact that the primary reason for the creation of Israel is in order to praise God. With this in mind, it becomes clear why the mouth is considered above all else in its ability to affect and shape Kedusha in this world. Unlike any other body part, the mouth has the sole ability to articulate praise of God through human language.

Somewhat contradictory to his praise of language, however, the Slonimer closes with a peculiar remark. Using Shabbat as an example of a time in which people should refrain from trivial, unholy talk, he concludes that it is actually best on Shabbat to refrain from any speech as each moment of Shabbat should best be experienced in silence. If language has such powerful potential, though, why is it that the Kedusha of Shabbat is best experienced in silence?

Considering this approach to the unique role of the mouth and language in the worship and praise of God in light of contemporary philosophy of language can help clarify the appropriate centrality of language in the spiritual endeavor. Writing in 20th century Europe, Ludwig Wittgenstein thought of language as being the sole mechanism through which humans comprehend and think about the world. With such a model, language not only becomes the most useful tool for praising God, but such spiritual praise actually reflects back on the mind’s comprehension of the world and reframes humanity’s experience of the world to be one filled with God and Kedusha. But, like the Slonimer Rebbe, Wittgenstein, too, recognized the necessity for silence in the search for transcendence. In his famous proposition, Wittgenstein states that “Whereof one cannot speak, thereof one must be silent” (Tractatus 7). Despite language’s phenomenal ability to articulate and shape the ways in which humans think about the world, there are some experiences that cannot be quite articulated in words. When one encounters something beyond human comprehension, it is through silence, and not through language, that one responds to and recognizes its meaning.

Similar to Wittgenstein’s philosophical articulation, perhaps the Slonimer is also subtly hinting at the importance of recognizing certain experiences, presumably ones connected to God, as being best had in silence. In these moments without language and concepts, these moments of a still small voice, one can come to approach the infinite beyond by paradoxically articulating nothingness through silence. In this way, a Neder can help provide a model for structuring language in way that is productive for the worship of God by recognizing its unique power and influence. The Slonimer, however, keeps the Torah in check by maintaining a space for silence in the pursuit of Kedusha within human experience.

Elie Lerea (SBM 2016) is currently a rising senior at The Cooper Union for the Advancement of Science and Art where  he is studying Electrical Engineering.

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Excerpt from Teshuvah for SBM 2016

by Rabbi Aryeh Klapper

Excerpted from Rabbi Klapper’s SBM 2016 Teshuvah – stay tuned for the full teshuvah and teshuvot from the SBM Fellows!

What are we seeking to achieve as dinei mammonot (halakhic financial law) judges?

In his methodological essay Darkah Shel Torah, R. Eliyahu Bloch of the Telshe Yeshiva contends that dinei mammonot have all the general aims of secular economic regulations, but in addition contain elements with purely transcendent purposes.  Fundamentally, this suggests a utilitarian stance moderated by humble awareness that one cannot know G-d’s purposes in their full depth.

The purposes of secular economic regulation are order, justice, and equity.  Order requires predictability, and favors simplicity; people cannot follow the law if they don’t know or understand what it is.  Order can be just or unjust, equitable or inequitable.

Justice will be defined here as being treated in accordance with objective rules that whose principles are compatible with ethics.  Justice cannot exist in the absence of order.  But justice can lead to inequity, as a rule-based system sometimes cannot account for individuals and individuality, or for unusual specific circumstances.  The catch-22 is that one can lose order and justice if one seeks equity too aggressively.  

The ideal is to develop laws that yield justice and conform to equity the vast majority of the time, so that the need for equitable adjustments is low enough that it does not undermine order.

How can dinei mammonot judges accomplish this?  One key challenge is that they must pasken in ways that both shape and respond to expectations.  The ethical outcome in a financial transaction is often defined as having the parties get what they expected.  But not always!  For example, some transactions are entered into under duress, or in the expectation of bullying or fraud.  

The expectations of contemporary Jews, in both Israel and the United States, are largely shaped by contemporary Western notions of contract law rather than by formal halakhic precedent.  For example, in nonritual matters, parties generally conceive of contracts as self-enacting rather than as dependent on a subsequent giving of consideration, or on a separate maasei kinyan.1  

However, Western law has a host of doctrines (such as those of frustration and impossibility) that enable one to break a contract in light of unconsidered subsequent events.  These doctrines are regularly litigated, even though that litigation rarely succeeds.  This suggests that there is a tension between expectations and the secular law, and perhaps even between intuitive ethics and the secular law.2

Under those circumstances, it seems reasonable to say that where halakhah is not formally bound by dina demalkhuta/secular law (as it would be if the arbitration agreement explicitly required this, or if the parties signed a contract accepting this, and perhaps even if we were dealing with a case that fell within the parties’ range of expected outcomes and the secular law were clear), dinei mammonot should focus on shaping expectations rather than on conforming to them.

On that basis, I suggest that we revisit the question of halakhah’s approach to contractual obligations in light of unconsidered events.

My argument thus far has been that attempts to explain our precedents on the basis of either pure da’at (determination of actual intent) or else formal principles of construction have been unsuccessful.  On the other hand, attempts to explain them on the basis of a set of decision principles that are interlocking, less sweeping, and perhaps less formal, have produced a muddle that is unconvincing and impractical.  

Let me note briefly here three phenomena that to my mind are clear evidence of both muddle and of impracticality.

  1. The claim that a type of evidence applies only to maintain possession but never to transfer it.
  2. The claim that a rule can be applied only in cases addressed explicitly in the Talmud or in cases that are really, really clear (to the judge in a particular case).
  3. The claim that there is enough legitimate controversy about a rule that the party in possession can win the case if its possession agrees with (=asserts קים לי regarding) any of a broad and contradictory variety of understandings of that rule

One may say that in such circumstances, halakhists should simply surrender.  They can argue that there is a mitzvah to submit oneself to the halakhah as it is, however muddled and impractical, while conceding that it would be better were halakhah otherwise; when rabbinic authority is reconstituted, we will make takkanot to improve things.  

We must recognize, however, that such concessions will in practice make batei din unpopular destinations even for the most halakhically committed Jews.  I prefer, therefore, to see whether the halakhah can be reconstituted on the basis of honest interpretations of precedent, and thus the creation of new precedents.  I believe that the language of pesharah kerovah ledin used in the standard halakhic arbitration agreement allows us to be more prescriptive about the law in our decisions than is usual for halakhah.  We can decide in accordance with what the law should be, and thus over time transform ought into is.

I contend that there is an alternative to the da’at, formalist, and hodgepodge approaches presented above.  This alternative is implicit in many past precedents, and some aspects of it have been formulated by great decisores, but I suspect that it has not previously been fully articulated.  For convenience sake I will refer to it as the “ta’aninan” approach.

In a variety of cases, for example when a party is a minor orphan who inherits a claim without personal knowledge of the underlying facts, halakhah permits batei din to interpose legal claims on behalf of that party.  My suggestion is that when dealing with implicit conditions regarding unconsidered events, halakhah’s default setting is to treat all the parties as orphans.  We therefore make on their behalf all the conditions they would have made had they in fact anticipated the events.

Many of these conditions will directly conflict, of course.  We resolve conflicting claims by a game-theory method – we ask first whether party B would have walked away from the transaction rather than accept party A’s condition, and conversely, whether party A would have walked away from the transaction were party B to refuse their condition.  Whichever party would have walked away, wins.

I need to acknowledge that in reality, the parties would likely have negotiated, and agreed on a price for the condition.  This is in principle a fine tool for achieving equity and/or pesharah, and therefore should be available to batei din for those purposes.  However, no use of it is even hinted at in the precedents I have seen.  My sense is that it would generate results that are too subjective and speculative for law, along the lines of נתת דבריך לשיעורין.  

Therefore, I believe that halakhah as such must play the game artificially, with the parties having no options other than accepting a condition or refusing the transaction.

Similarly, each condition must be analyzed independently, even though in actual negotiations they would be bundled or traded for one another.

I note again that this is a mechanism for dealing with the hypothetical, not for figuring out what the parties’ actual intentions were – we are dealing with cases where there were by definition no such intentions.

I also need to mention that Professor Robert Aumann has previously theorized that at least one tanna, Rabbi Natan, thought in game theory modes.  Finally, I need to thank my friend Chava Evans, whose gift to me of Game Theory and the Law many years ago was enormously productive to my thinking.

I also need to make clear an aspect of this theory which may strike some as cheating, or as creating epicycles of its own.  Since this is fundamentally a tool of equity, like ta’aninan, the legal system is not ethically obligated to allow every possible move in the game.  Thus we may “penalize” a player for having acted unethically, or we may bar certain moves because they will have unfortunate general economic consequences for the community.  It particularly allows us to bar moves in some areas of law, such as marriage and divorce, while allowing them in others.  My contention is that the system will remain “elegant” because all allowed moves are evaluated in the same fashion.

Thus far theory.  What I need to do now is explain how the theory works to explain the primary sources on this issue, and according to which secondary sources.  Following that I will – at long last – return to the specific case at hand…

Notes:

  1. This paragraph owes much to presentation notes generously shared by Professor Chaim Saiman of Villanova Law School.
  2. This paragraph owes much to a presentation by Professor David Phillips of Northeastern University Law School at SBM 2016.  Any errors are of course my responsibility.

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2016 Summer Beit Midrash Shayla

by R’ Aryeh Klapper

After five weeks of learning about Halakhot relating to contracts, the SBM fellows have been posed the following Shayla. Stay tuned for R’ Klapper’s response!


Shulamit Moskowitz Cherchofsky and Ezra Stiebel are a married couple in their early thirties. respectively, a Hebrew teacher and entrepreneur living in small rental quarters in Maalei Adumim.  But they have a dream, embodied in a mortgage (51% paid off!) on a plot and a building permit on an as-yet-unbuilt-up hill in Efrat.

Reality intervenes.  In January 2016, Shulamit is offered a job as a Hebrew teacher in a community Jewish school in Oklahoma City, Oklahoma.  It seems a great opportunity for her, and they begin preparing for the transition.  They plan to arrive on Oklahoma City on August 10, and get in touch with real estate agents immediately, hoping to buy.

First they sell the mortgaged land, to the American Orthodox developer Donald Chevreman, closing on February 28.  Chevreman owns many other lots in the same area, and has been pressing them to sell for several years.   Then Ezra puts in an order for 100 handpainted t-shirts featuring Kevin Durant in his OKC Thunder uniform at $15 each, from the local designer Olga Cassini.

All seems in order until July 4.  On that date, Kevin Durant chooses to sign with the Golden State Warriors.  Within two weeks, Durant’s restaurant in OKC closes, and there is no market at all, certainly in OKC, for T-shirts of him in a Thunder uniform.

Then, on July 28, they receive the news that the school is closing, for lack of funds.

Shulamit and Ezra sue Donald in a local beit din to undo the transaction. and get their land back.  Donald counterclaims that the mere association of his name with their plot of land has raised its value significantly, and that he is at the least entitled to its current market price.  He also asks for ZABLA.  Meanwhile, Olga sues them for payment for the t-shirts, 50 of which she has already made.  An arrangement is made to consolidate the cases in an ad hoc international beit din, and you have been appointed to the panel.

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