2018 CMTL Shavuot Reader

The Center for Modern Torah Leadership is pleased to present its 2018 Shavuot Reader, with articles about Matan Torah and the Aseret HaDibrot, Talmud Torah and Pedagogy, and Megillat Rut, written by Rabbi Klapper and CMTL Alumni.

http://www.torahleadership.org/categories/cmtl_shavuot_reader_2018.pdf

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Judging the Judging of the Judges: A Sample from the 2018 CMTL Shavuot Reader

by Rabbi Aryeh Klapper

See the full version of the 2018 CMTL Shavuot Reader here!

Chazal read Tanakh. This may seem too obvious to bother saying, but I think it bears repetition and emphasis, because there is a popular misimpression that Chazal instead used or mined Tanakh. One cause of this misimpression is that we generally encounter Chazal’s readings in the context of public performances. These performances were generally intended to convey the outcomes of Chazal’s readings with pedagogic and mnemonic effectiveness, rather than to convey their methodology.

Here is a parable: A teacher of astronomy taught the names of the planets from the following verse: My Very Eager Mother Just Set Up NinePins. A student mistakenly concluded that the teacher had learned of the planets by unpacking the mnemonic, rather than by looking at the stars. So too, Chazal often used clever manipulations of verses to convey their readings memorably, but one must not conclude that they derived their readings from those manipulations.

Furthermore: The records of Chazal’s performances often leave out many of the direct justifications of their readings. Reading Midrash is often akin to reading a technical article from which the footnotes have been removed, and concluding that the author was ignorant of all colleagues and predecessors. Often the key footnote is simply the instruction to read every verse cited in its own context.

Here is an example relating to Megillat Rut: Tehillim 50:7 reads

שמעה עמי ואדברה

ישראל ואעידה בך

א-להים א-להיך אנכי:

Listen, My nation, and I will speak;

Israel, and I will testify about you;

E-lohim, I am E-lohekha.

One of the formal performances (petichtaot) that introduces Midrash Rut Rabbah presents this as follows: The word E-lohim is a reference to Exodus 22:27, which reads

א-להים לא תקלל

You must not curse E-lohim

which is understood halakhically as a prohibition against cursing human judges. But the word E-lohim also refers to G-d. Tehillim 50:7 therefore is simultaneously a reminder to Israel that G-d has bestowed His authority on human judges – they are called Elohim – and to those judges that G-d judges them – they are subordinate to E-lohim. Therefore human beings must treat human judges with the respect due to Divine agents, but those agents must remember their subordinate status.

This reading superficially depends on translating verse 7

O Judges! I am your Judge

rather than the more likely

By G-d! I am your G-d.

However, verse 7 is the introduction to a paragraph – not cited in the petichta – which builds toward the declaration in verses 16-18

ולרשע אמר א-להים

מה לך לספר חקי ותשא בריתי עלי פיך:

ואתה שנאת מוסר ותשלך דברי אחריך:

אם ראית גנב ותרץ עמו ועם מנאפים חלקך

To the wicked said E-lohim:

“What right have you to tell My statutes, and to have assumed My covenant in your mouth?

You have hated rebuke, and thrown My words behind you;

If you have seen a thief – you ran with him, and you share fortune with adulterers.

So the rebuke in 7 is indeed to those who tell G-d’s statutes, and who run with thieves when they are responsible for restraining them.

Now Tehillim 50:6 – also never cited in the petichta- reads as follows:

ויגידו שמים צדקו

כי א-להים שפט הוא

סלה

Heavens declare His righteousness

that E-lohim is a judge

Selah

This likely stimulates – although it does not compel – a connection to Rut 1:1:

ויהי בימי שפוט השופטים

It was in the days when the judges (were) judged

אוי לדור ששופט את שופטיו

ואוי לדור ששופטיו צריכים להשפט

Woe to the generation which judges its judges,

and woe to the generation whose judges deserve to be judged.

In other words: Tehillim 50:7 aspires to a society in which judges are respected and deserve that respect. Tehillim 50:16-18 acknowledges the breakdown of that ideal in part – the judges do not deserve respect. It does not discuss whether they should nonetheless be treated as if they deserved respect. Rut Rabbah may not take a position either – but it recognizes explicitly that there is a cost to treating judges with disrespect even when they don’t deserve respect, and so a decision to treat them disrespectfully must not be taken lightly.

Now is this reading derived from ויהי בימי שפוט השופטים? Put differently, is this how the author of the petichta read Rut 1:1? I suggest that a close reader would note immediately that the word שפוט seems unnecessary – tautologically, “shoftim” engaged in “shefitah”. If this reader has a bias – let us call it a Rabbi Akiva bias – toward assuming that such redundancies are substantively significant rather than inefficient idioms, s/he will argue either that

  1. the text is seeking to contextualize itself more precisely than would be accomplished by “In the days of the shoftim”, or that
  2. the reference is to a particular form of shefita, or that
  3. the phrase שפוט השופטים takes advantage of the syntactic ambiguity of שפוט, as in the awkward English translation “the judging of the judges”, which can mean either “the judging (of others) by the judges” or else “the judging (by others) of the judges”.

This petichta takes option 3.

But why does it take option 3? Not because option 3 is linguistically compelling, but rather because option 3 seems to be a proper frame for the book. In other words, option 3 is contextually compelling. Having read Megillat Rut, the author of the petichta concludes that one useful background for the story is a recognition that it occurs during a time when respect for authority has collapsed.

It must be understood as well that option 3 itself has two branches:

  1. “the judging (by others) of the judges”
  2. “the judging (by Another) of the judges”

The apparent redundancy of שפוט is adequately accounted for if one takes option 1. The petichta’s decision to take both options together reflects a reading of the entire megillah, and possibly as well of the entire Sefer Shoftim. This reading is derived in the petichta by noting that Shoftim 2:17 seems to criticize Israel for not following the shoftim, and yet that such shoftim as Shimshon and Gid’on seem not to have been models of propriety – although here again, other footnotes are almost certainly missing.

To sum up: The petichta, taken naively, cleverly overreads Rut 1:1 on the basis of a clever overreading of Tehillim 50:7. I argue that the substantive reading of Tehillim 50:7 is actually well-grounded in the full text of Tehillim 50, and that the substantive reading of Rut 1:1 is rooted in a well-grounded reading of the entire megillah and of Sefer Shoftim.

Please turn to the 2018 CMTL Shavuot Reader for an exposition of those readings of Rut and Shoftim; a presentation of a petichta that adopts option 1 above; a discussion of whether one can choose both 1 and 3; and especially for a new edition/presentation of the astonishing Rut Rabbah, which may not be a midrash after all, but rather a Chazalic commentary al derekh hapshat.

Shabbat shalom v’chag sameiach!

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Slaves, Wage Slaves, and Divine Service

by Rabbi Aryeh Klapper

What is the difference between slavery and employment?

Western society has a linguistic commitment to opposing slavery.  If you call something slavery, we’re against it.  This reality does credit to our society.

However, we sometimes define slavery too narrowly.  We treat slavery and freedom as absolute opposites, when really there are degrees of freedom, and degrees of slavery.  Our opposition to slavery should not be satisfied because we have eliminated its absolute form.  We need to be advocates for freedom as well.

There are reasons to be cautious when advocating freedom.  The word is susceptible of many meanings.  Freedom can mean license – and we do not mean to support license. Most of us acknowledge that individuals must surrender some of their freedoms to a state in order for all of us to live free of fear of violent crime.  Most of us acknowledge that we sometimes need to surrender some of our “freedom from” in order to gain “freedom to”, because many things are possible only in the context of genuinely committed relationships.

Two verses in Parshat Behar, Vayikra 25:42 and 25:55, exemplify this tension.

כי עבדי הם

אשר הוצאתי אתם מארץ מצרים

לא ימכרו ממכרת עבד:

כי לי בני ישראל עבדים

עבדי הם

אשר הוצאתי אותם מארץ מצרים

אני יקוק א-להיכם:

Because they are my avadim

whom I have taken out of the land of Mitzrayim;

they must not be sold in the way an eved is sold.

Because the Children of Israel are avadim to Me;

they are My avadim 

whom I have taken out of the Land of Mitzrayim

I am Hashem your G-d.

Why do we owe gratitude for being saved from one avdut, if our redeemer now claims us for Himself?

Chazal note that G-d’s claim here is used exclusively to protect us from human masters.  We cannot be sold in the manner that humans sell their slaves; we cannot be subjected to pointless commands whose only purpose is to demonstrate dominance (avodat perekh); we cannot be sold permanently.  But why does G-d allow any form of avdut at all?

A spectacular passage on Bava Metzia 10a offers a subtle and brilliant meditation on the problem of avdut.

The passage starts with a formal legal statement that seems utterly irrelevant to our topic:

Rav Nachman and Rav Chisda both said:

 “One who picks up a lost object in order to acquire it for his fellow – 

his fellow has not acquired it.

On the surface, this seems morally questionable.  If the law allows me to acquire a lost object selfishly, why should it deny me the capacity to do so altruistically?

The Talmud explains:

Why?  

Because he is viewed as one who seizes something on behalf of a creditor

 when that seizure harms the interests of third parties, 

and one who seizes something for a creditor when that seizure harms the interests of third parties 

does not acquire the seized object.

This requires some unpacking.

To acquire something on behalf of someone else, I must be their agent.  If they appoint me, I essentially become them legally. But if they have not appointed me, my agency is a construction, a sort of legal fiction, which the law allows only when it benefits my fellow and harms no one else.

A sample case where it works is when I seize property from a defaulting debtor on behalf of a creditor.  A sample case where it doesn’t work is when I seize the same property, and by doing so ensure that other creditors will not be fully repaid.

How does this relate to lost objects?  Lost objects are a financial opportunity for everyone in the world.  When I acquire a lost object for one person, I am depriving everyone else of that opportunity.  So lost objects cannot be acquired on behalf others except by appointed agents.

Rava challenges Rav Nachman (and Rav Chisda) from the following beraita:

What a worker/poel finds – he keeps for himself.  

These words apply when the employer said to him: 

“Weed with me today, hoe with me today”. 

But if the employer said to him 

“Do work with me today” 

his findings belong to the employer”.

It seems from this beraita that one person – specifically a worker – can acquire lost objects for another person – specifically their employer – even if they were not hired explicitly for that purpose!?

Rav Nachman replies:

Workers are different 

because his hand is considered as if it were his employer’s hand.

The simplest way of explaining Rav Nachman is to say that the default employment contract includes a clause appointing the employee as the employer’s agent for the purpose of acquiring lost objects.  But this is true only if the hiring language is generic – “do work”.  If the hiring language is task-specific – “hoe”, or “weed” – then all other tasks, for example acquiring lost objects, are excluded.

Now Rava raises the stakes.  Rav Nachman’s response is wrong, he says, because it contradicts a statement by Rav:

A worker can back out of his contract, even in midday.

What is the contradiction?  How does the right to withdraw from a contract change the terms of the contract while it is in force?

The answer is that Rav Nachman’s argument was not really about implicit contract clauses.  Rather, he regarded employees as fundamentally slaves – his language is parallel to language that prevents slaves from acquiring property even for themselves.  Rava objects that workers are not slaves, because workers can free themselves.

But Rav Nachman has an answer this time as well.

So long as he hasn’t backed out, his hand is as if it were his employer’s hand.  

When he reneges, another factor comes into play – 

“For to Me are the Children of Israel avadim (servants/slaves), they are My avadim” – 

they are My avadim, not avadim of avadim.

Rav Nachman holds that there is no fundamental difference between employment and slavery.  Just – the Torah states that we can only be subcontracted, because G-d holds our primary contract, and He allows us to break the subcontract.  (This is true even for the eved ivri, but because he was paid in advance, he cannot break his contract without returning a prorated portion of his advance.) For all other legal purposes, employees are slaves (perhaps even without the legal protections that the Torah grants slaves specifically).

Except this is not fully true.  Not all workers are slaves, only those who were hired without task-specific language.  Workers hired to “hoe” or “weed” own their own “hands”, and therefore they cannot acquire lost objects for their employers.

We end up with a hierarchy of avdut.

Absolute avadim are bound to do whatever their master wills them to do.  They cannot choose to end the relationship, and they have no task-autonomy.

An eved ivri has no task-autonomy, but he can theoretically end the relationship.  However, it is unlikely that he will be able to do so in practice, since he must return a prorated portion of his advance, and he entered the relationship because he needed the advance.

An employee who is hired per-time, without designated tasks, is still a slave while at work.

An employee who is hired for designated tasks, and who can end the relationship. is much closer to freedom.

But absolute freedom means working only at what you want to do now. That’s why Mishnah Bava Metzia 75a declares that it is morally wrong to trick someone into working for you instead of independently, even if they do the exact same work and end up with exactly the same profit.  Absolute freedom means never being bound even by your own commitments to others.

The Torah takes simultaneous stands against slavery and absolute freedom by grounding the former in our subordination to G-d’s will. Halakhic People can recognize that there are times and ways in which we should permit or require people to make commitments that they cannot undo unilaterally.  But we should also see freedom as the default, and countenance the surrender of autonomy only grudgingly.  This attitude should be at the core of Jewish labor ethics, and should affect our conceptions of psak and I suggest our theologies as well.

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PSHAT and MEANING: AN I on an EYE for an Eye-IN

by Rabbi Aryeh Klapper

There is a perhaps apocryphal story about Jacques Derrida, a prolific literary critic who believed that words were incapable of transferring meaning from the author to the reader.  Derrida was asked: “Why do you write, if you don’t believe that anyone will understand your intent?”  He responded: “I am a determinist; I don’t believe I have a choice.”  This dvar Torah is in a less extreme version of that spirit.

Words don’t mean anything by themselves.  At least, not after Migdal Bavel; my preferred interpretation of that story is that it describes a transition from a natural language to artificial languages. In a natural language, sound, orthography, and meaning are intrinsically connected. The Rabbinic term for this may be “lashon hakodesh”.  In artificial languages, sound, orthography, and meaning are connected to each other only arbitrarily.  Onomatopoeia is a vestigial example of natural language, for example bees buzzzzzzing instead of hissing.  You can see from the “u” that the correspondence is not really crucial; a buzz would sound the same if it were a bizz or a bazz or a bezz or a bozz, or a bzzz, or for that matter a hiss.

Let us take a perhaps provocative example: What is the pshat of the phrase “I’ll kill you for that”?  I’m asking this question not philosophically, but rather as a matter of practical law.  The halakhah famously works on the principle habo lehargekha hashkem lehargo =”one who comes to kill you – anticipate and kill him first”.  In order to apply this principle, what evidence does one need of the other person’s intent?  Is a stated threat sufficient?  One halakhic authority held that it depends on whether the threatener is a talmid chakham or rather an am ha’aretz.  A scholar means by that phrase only that s/he is very angry with you, whereas an ignoramus vaday yaaseh kemo sheamar =will certainly do as he said.

Taken at face value, that scholar meant the following.  Scholars are so psychologically distant from the possibility of violent action that their threats of murder must legally be understood as hyperbole.  When said by a scholar, “I’ll kill you” means “I’m very angry with you”, or at most “I’m so angry with you that if I were not a scholar I would kill you”.  When said by an ignoramus, “I’ll kill you” is an expression of actual intent to commit violent action.  In other words, the pshat of “I’ll kill you” resides not in the words themselves, but in the interrelationship of words and speaker.

Some readers may find that interrelationship intuitively compelling.  Of course intellectuals, or at least Torah intellectuals, or at least people who have spent significant effort on understanding certain texts about Jewish law, are less likely to engage in violence.

Other readers, perhaps based on personal experience of yeshiva politics, will not find the interrelationship even plausible.  If nonetheless committed to the position of the unnamed halakhic authority above, they may develop cynical explanations.  For example, they may claim that any talmid chakham with actual murderous intent would be clever enough not to express that intent and put the intended victim on guard.  Or even more cynically, they might claim that the law was formulated by a talmid chakham so as to give talmidei chakhamim an advantage in potentially deadly confrontations; the am haaretz is never permitted to go for his gun first.

Other readers may claim that the interrelationship is itself dependent on a broader social context.  In some times and places, talmidei chakhamim are less likely to mean their threats than amei haaretz; in other times and places, the reverse is true.  They may suggest as well that it depends on the subject matter that lead to the threat, or on the physical and social context in which the threat is offered, or even on which yeshiva educated the threatener.

To close this section, I need to note that “anticipate and kill him first” does not legally mean that one is encouraged or even permitted to do so when other means of effective self-protection are available, such as calling the police (and letting them and the judicial system decide whether the threat was intended literally).

Now – what does all this tell us about the pshat of ayin tachat ayin =“eye for eye”, in Vayikra 24:20?  (Readers can decide for themselves whether to presume that it has the same meaning in Shemot 21:24, or whether their horror of Torah redundancy forces them to the opposite presumption, that it cannot have the same meaning in both places.)

The Halakhah of course is that judicial authorities are not permitted to remove or blind the eye of someone who caused someone else’s eye to become blind.  There are fundamentally three approaches to asserting that this is the “original intent” of the law as it is found in Chumash.  (I want to be clear that “ayin tachat ayin” may appear in legal codes that either precede Chumash, and there is no reason to assume that the meaning are consistent across contexts.  The same is true for later non-Halakhic codes.  Modern “back to the pshat” movements might very well produce codes which intend the phrase literally.)

  1. No legal system could ever have intended the phrase literally, because there are inevitable corollary consequences (such as loss of blood) that would prevent exact proportionality.
  2. The literary context of the phrase makes clear that it refers to financial compensation.
  3. The Torah as a legal document must be interpreted in accordance with its own rules of statutory construction, and not in the same way as one would interpret a text written in ordinary language.  Those rules demonstrate that it refers to financial compensation.

I find some versions of each of these approaches compelling.  But my purpose here is not to explicate those arguments – for summaries, see for example Ibn Ezra and Ramban.  Rather, I want to try a fourth approach in response to those who believe that Rabbinic interpreters consciously changed the meaning of the phrase from physical retaliation to financial compensation because they had independently and self-consciously acquired a moral discomfort with the literal meaning.

My argument is that

  1. In order to demonstrate morality-based reinterpretation, you have to show that interpreters read these texts differently than they would have read the same texts absent moral pressure.
  2. In order to demonstrate self-conscious morality-based reinterpretation, you have to show that interpreters understood morality as different in kind than the tools they used to interpret texts in accordance with the texts’ original meaning.

In other words,

  1. If it can be shown that the Rabbis might have understood “eye for eye” as referring to financial compensation even if they had had no moral objection to understanding it literally, then there is no evidence that they engaged in morality-based reinterpretation
  2. If it can be shown that the Rabbis thought that reasonableness was a way of determining the original meaning of texts, then there is no evidence that they engaged in self-consciousmoral reinterpretation.

Now with regard to all these arguments, we can argue that there is also a qualitative element.  If understanding “eye for eye” as referring to financial compensation is more radical textually than rabbinic moves which have no plausible moral motive, then one can argue that this particular move must still have a moral motive.  But if it turns out that this is just a garden-variety rabbinic interpretive move, then there is no basis for assigning morality a role.

My parade countercase in this week’s parashah is the law found in Vayikra 22;28:

ושור או שה

אתו ואת בנו

לא תשחטו ביום אחד

An ox or a sheep

It (masculine) and it(masculine)’s son

You must not slaughter them in one day.

On Talmud Chullin 78b we find the following Tannaitic text:

“אותו ואת בנו” –

נוהג בנקבות ואינו נוהג בזכרים

חנניה אומר: נוהג בין בזכרים ובין בנקבות.

(The law of) “It (masculine) and it(masculine)’s son” – 

applies to females and not males.

Chananiah says:

It applies to both males and females.

It seems to me that the anonymous first position is by any measure a more radical textual move than saying that “an eye for an eye” is a metaphor. There is no morality motive for this move. (It seems necessary to say that willingness to be fluid about gender in grammar says nothing about willingness to be fluid about gender in practice).  Therefore, I contend, there is no basis for assigning such a motive to the Rabbinic understanding of “eye for eye”, except insofar as moral intuition was an ordinary Rabbinic tool for determining the reasonableness of an interpretation.

Shabbat shalom!

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Did a Rabbi Really Just Say That?!

by Rabbi Aryeh Klapper

A conversation with the groom’s father at a homospeciesist heterosexual wedding may be the worst possible context for jokes about the Biblical prohibitions against acts of bestiality, incest, and male homosexuality. Yet that is the context in which the tanna Bar Kappara chooses to ply his humor on those topics.

Bar Kappara’s “jokes” are a series of riddles about the meaning of the terms “zimah”, “tevel”, and “toeivah”, which are used in Vayikra 18 and 20 to describe those sexual sins.  The folk etymology he offers for “toeivah” is “toeh atah bah”, meaning “You go astray when engaging in it”.  This etymology has been used variously to deny the reality of homosexual desire – “You only think you want it” – and to deny that the prohibition has any moral significance- “it is merely an error”. Neither of these approaches explains why Bar Kappara offers roughly identical etymologies for zimah – “zeh mah hi”, “What is this”, and tevel – “tavlin yesh bah”, or “Does this have any spice”.  More significantly, neither makes any effort to explain the joke.

Nor will I.  But I hope to make some contribution toward understanding the context.  Maybe if we move closer to understanding why Bar Kappara said these things there and then, we can eventually understand what he meant.  I look forward to your suggestions.

The story I’ve referred to takes place at the wedding of Rabbi Yehudah HaNasi (known as Rebbe)’s son Shim’on.  As told on Bavli Nedarim 50b-51a, the story begins:

רבי עבד ליה הלולא לר”ש ברבי.

 כתב על בית גננא:

עשרין וארבעה אלפין ריבואין דינרין נפקו על בית גננא דין

ולא אזמניה לבר קפרא.

אמר ליה:

אם לעוברי רצונו כך, לעושי רצונו על אחת כמה וכמה!

אזמניה.

אמר:

לעושי רצונו בעולם הזה כך, לעוה”ב עאכ”ו!

Rebbe made a wedding for Rabbi Shimon son of Rebbe.

He wrote on the wedding house: 

24000 myriad dinarim were expended on this wedding house

but he did not invite Bar Kappara.

He said to him:

If to those who violate His will such, to those who do His will how much more so!

He invited him.

He said:

To those who do His will in this world such, in the Coming World how much more so!

The immediate narrative difficulty is that we are never told why Bar Kappara wasn’t invited.  Rashi suggests that Rebbe knew Bar Kappara would make him laugh, and he did not want to; the Shitah Mekubetzet quotes an anonymous suggestion that Rebbe simply forgot.

Rashi’s reading assumes that Bar Kappara’s graffiti extends for two lines: “You spent a fortune on the hall, and yet you were too cheap to invite me!” Rebbe eventually simply gives in to Bar Kappara.  This sets the tone for the entire relationship.  Rebbe tries to find Bar Kappara insufferable, for good reason, but in the end cannot resist him.

The Shitah, however, may be telling a very different story.  Very likely he had the version preserved in the Eyn Yaakov, which moves line 4 up to line 2.

רבי עבד ליה הלולא לר”ש ברבי.

ולא אזמניה לבר קפרא.

כתב על בית גננא:

עשרין וארבעה אלפין ריבואין דינרין נפקו על בית גננא דין

Rebbe made a wedding for Rabbi Shimon son of Rebbe.

But he did not invite Bar Kappara.

He wrote on the wedding house: 

24000 myriad dinarim were expended on this wedding house!

In this reading, Bar Kappara’s responds to the accidental noninvitation with an attack on Rebbe’s conspicuous consumption that is not leavened by any humorous comparison to the added expense of a single guest.  He adds to the attack by calling Rebbe a transgressor of G-d’s will.  Rebbe nonetheless extends the invitation that he had intended in the first place, and Bar Kappara acknowledges the invitation with a blessing.

There is a third possibility, based on the standard text.  Rebbe made a wedding for his son, intending to invite everyone. Bar Kappara reacts to what he sees as unjustified extravagance by graffitiing the hall, so Rebbe decides not to invite him.  But when he sees that Bar Kappara can cause more damage outside than in, he extends the invitation after all.

At this point the Talmud interrupts to provide a backstory.

יומא דמחייך ביה רבי אתיא פורענותא לעלמא.

א”ל לבר קפרא:

לא תבדיחן ויהיבנא לך ארבעין גריוי חיטי.

א”ל:

ליחזי מר דכל גריוא דבעינא שקילנא

שקל דיקולא רבה, חפייה כופרא וסחפיה על רישיה, ואזל ואמר ליה:

ליכיל לי מר ארבעין גריוי חיטי דרשינא בך.

אחוך רבי, א”ל:

לאו אזהרתך דלא תבדחן?

א”ל:

חיטי דרשינא קא נסיבנא.

On the day that Rebbe laughed, catastrophe came to the world.

Rebbe said to Bar Kappara:

“Don’t make me laugh, and I will give you four measures of wheat.”

Bar Kappara said to Rebbe:

“Sir will see that I can take whatever measures I want.”

He took a large basket, tarred it, and put it on his head, and went and said to Rebbe:

“Let sir give me the four measures of wheat that you owe me.”

Rebbe laughed and said to him:

“Didn’t I warn you not to make me laugh?

Bar Kappara replied:

“I just came to get the wheat you owe me.”

This interjection is clearly the basis for Rashi’s reading, and fits it extremely well.

The next line, however, seems off-key and ominous.  Bar Kappara says to Rebbe’s daughter: Tomorrow I will drink wine while your father dances and your mother sings.”  On the assumption that this takes place the day before the wedding, why can’t he just celebrate together with them?

Here the Talmud inserts as background that Rebbe had a very wealthy son in-law named Ben El’asah, who was invited to the wedding.  We then flash to the wedding, where Bar Kappara tells his riddles.  He won’t give the answers – or stop talking – until Rebbe and his wife agree to his demands for dancing and singing, so that his prediction to Rebbe’s daughter comes true. Ben El’asah and his wife leave in disgust. The Talmud ends the narrative arc by citing a beraita in which Rebbe defends Ben El’asah’s extraordinarily expensive haircut by saying that is was a demonstration of the otherwise unknown priestly haircut described in Yechezkel 44:20.

The literary structure is: We start with Bar Kappara’s critique of Rebbe’s conspicuous consumption, and we end with Rebbe’s defense of Ben El’asah’s conspicuous consumption.  Bar Kappara and Ben El’asah are the opposing poles.  One has to wonder whether the daughter of Rebbe to whom Bar Kappara made his prediction is the wife of Bar El’asah; whether the expense of Rabbi Shimon’s wedding was partially underwritten by his wealthy brother in-law; and whether Bar Kappara had not at some point harbored the hope of becoming a son in law himself.

Here we need to introduce two other stories about Bar Kappara, Rebbe, and Rebbe’s son and son in-law.

1) Bavli Moed Kattan 16a:

רבי שמעון בר רבי ובר קפרא הוו יתבי וקא גרסי,

קשיא להו שמעתא.

אמר ליה רבי שמעון לבר קפרא:

דבר זה צריך רבי.

אמר ליה בר קפרא לרבי שמעון:

ומה רבי אומר בדבר זה?

אזל אמר ליה לאבוה.

איקפד.

אתא בר קפרא לאיתחזויי ליה, אמר ליה:

בר קפרא, איני מכירך מעולם.

ידע דנקט מילתא בדעתיה,

נהג נזיפותא בנפשיה תלתין יומין.

Rabbi Shimon son of Rebbe and Bar Kappara were learning together.

They found something difficult.

Rabbi Shimon said to Bar Kappara:

This requires Rebbe.

Bar Kappara said to Rabbi Shimon:

What would Rebbe have to say about this?!

(Rabbi Shimon) went and told his father.

(Rebbe) was insulted.

When Bar Kappara came to see him, he said to him:

“Bar Kappara, I will never prefer you”.

He knew that Rebbe had taken offense, so he acted as if excommunicated for thirty days.

2) Yerushalmi Moed Kattan 3:1:

ר’ הוה מוקר לבר אלעשא.

א”ל בר קפרא:

כל עמא שאלין לרבי ואת לית את שאל ליה

א”ל

מה נישאול

א”ל

שאול

משמים נשקפה הומיה

בירכתי ביתה מפחדת כל בעלי כנפים [איוב כט ח]

ראוני נערים ונחבאו וישישים קמו עמדו הנס

יאמרו הו הו

והנלכד נלכד בעונו.

הפך ר’ וחמתיה גחיך

אמר רבי:

איני מכיריך זקן.

וידע דלית הוא מתמנייא ביומוי.

Rebbe gave great respect to Bar El’asa.

Bar Kappara said to Bar El’asa:

“Everyone is asking Rebbe questions, and you have no questions!?”

Bar El’asa said to Bar Kappara:

What should we ask?

Bar Kappara said to him:

“Ask

{Elaborate riddle}.”

Rebbe turned and saw (Bar Kappara) laughing.  

Rebbe said:

“I will never prefer you as an elder.”

Bar Kappara knew that he would not get semikhah in Rebbe’s lifetime. 

Neither of these stories fit with a reading in which Rebbe appreciates Bar Kappara’s humor.  Moreover, Alei Tamar reads the Yerushalmi as a deliberate attempt by Bar Kappara to get Ben El’asah to humiliate himself by asking a riddle when lomdus was expected.  Netziv suggests that Rebbe originally refused to invite Bar Kappara to the wedding because he would insult Ben El’asa’s Torah learning rather than appreciate his character and generosity.

Yet I have to admit that my reading does not explain at all why Rebbe’s laughter is a disaster for the world, and why he nonetheless laughs at Bar Kappara’s charade.  I also need to say that very different versions of our story can be found in various midrashim, in which the lack of invitation is explicitly accidental, and there is no critique of conspicuous consumption.  Your turn!

Shabbat shalom!

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Drunkards vs. Angels: Of Yetzer Anthropology and Sachar Agnosticism

This week’s alumni Dvar Torah is by Rabbi Shlomo Zuckier

We may be accustomed to the idea that great religious individuals face greater spiritual challenges than their coreligionists. As the oft-quoted line goes: ‘the greater the person, the greater their evil inclination’: kol hagadol me-havero, yitzro gadol heimenu (bSuk 52a).

Or, as is expressed in longer form there:

כדדרש רבי יהודה: לעתיד לבא מביאו הקדוש ברוך הוא ליצר הרע ושוחטו בפני הצדיקים ובפני הרשעים. צדיקים נדמה להם כהר גבוה, ורשעים נדמה להם כחוט השערה. הללו בוכין, והללו בוכין. צדיקים בוכין ואומרים: היאך יכולנו לכבוש הר גבוה כזה! ורשעים בוכין ואומרים: היאך לא יכולנו לכבוש את חוט השערה הזה! 

Rabbi Yehuda lectured: In the future, Hashem will take the yetzer hara and slaughter him in the presence of both the tzaddikim and the reshaim. To the tzaddikim he will appear like a high mountain and to the reshaim he will appear like a thin hair. Both, however, will cry. The tzaddikim will cry “How could we have overpowered such a high mountain?” and the reshaim will cry: “How could we not have subdued such a thin hair?

Although this phenomenology is certainly well-represented in traditional Jewish literature, I believe that we can identify an alternative account, really an opposite account, that appears in a midrash commenting on our parsha.

Vayikra Rabbah 24:8, commenting on the opening charge of kedoshim tihyu – “be holy” (Lev. 19:1), offers the following parable:

רבי אבין אמר תרתין רבי אבין אמר משל למלך שהיה לו מרתף של יין והושיב בו המלך שומרים מהם נזירים ומהם שכורים לעת ערב בא ליתן שכרם נתן לשכורים שני חלקים ולנזירים חלק אחד אמרו לו אדונינו המלך לא כלנו שמרנו כאחד מפני מה אתה נותן לאלו שני חלקים ולנו חלק אחד אמר להם המלך אלו שכורים הן ודרכן לשתות יין ולפיכך אני נותן לאלו ב’ חלקים ולכם חלק אחד כך העליונים לפי שאין יצה”ר מצוי בהם קדושה אחת שנאמר (דניאל ד) ובמאמר קדישין שאלתא אבל התחתונים לפי שיצר הרע שולט בהם הלואי בשתי קדושות יעמדו הה”ד דבר אל כל עדת בני ישראל וכתיב והתקדשתם והייתם קדושים

Rabbi Avin said: [The sanctity noted in the biblical statement “be holy” is] double. Rabbi Avin said, “A parable: A king had a cellar full of wine and he hired watchmen, some of them nazirites and some of them drunkards. At the end of the day he came to pay them, and he paid the drunkards twice as much as the nazirites. They said to him: “Master King, didn’t we all watch equally? Why are you giving them twice as much as us?” The King said to them: “These are drunkards and it is their way drink wine, and therefore I am giving them twice as much as you.” So too for the [angels] above (elyonim), since the evil inclination is not found with them, they have one degree of sanctity, as it says “And with the word of the holy ones is a question” (Dan. 4:14). But the [humans] below (tahtonim), because the evil inclination rules within them, hopefully they will withstand  [to their religious challenges and receive] two counts of holiness. This is what it says: “Speak to the entire congregation of the Israelites [and say to them “be holy”] (Lev. 19:1), and it says “And you shall sanctify yourselves and be holy” (Lev. 20:7).

Now, the application of this parable is ostensibly speaking of angels in comparison to humans, where the former receive a single reward of holiness and the latter a double reward of holiness for following the divine command. Although the discrepant holiness level is attested in the verses, it reflects a distinctly odd understanding of reward. If sanctity is conceptualized as a reward for following the divine will, as the parable establishes, why should angels receive one at all? They lack any free will (as angels do in the Jewish view), merely following the divine command as automatons. What did they do to deserve a reward? Angels are utterly unlike the nazirite who guards the cellar, who – first of all, may very well have an appetite for wine, albeit a suppressed one, and who furthermore is still willfully providing a service by guarding the cellar instead of undertaking other activities. By contrast, angels, appointed on high for a particular task, have no alternative option and thus no opportunity cost in following the divine will, so why should they receive a reward? Additionally, at risk of entering angelic theology, what would it even mean for an angel to receive a reward? Aren’t angels non-physical beings, exempted from any need and removed from any pleasure? What would an angelic reward even look like?

I would suggest that, although this Midrash is explicitly formulated as about angels, it can be also understood as relating to different types of people. We might countenance reading elyonim as those who are seen as a religiously successful elite, and the tahtonim as run of the mill religionists, who make up the bulk of kol adat benei yisrael, “the entirety of the Jewish people,” attested in our verse. From this perspective, the parable fits very well: some have greater challenges and some have lesser challenges in following the Torah; those facing the greater challenges – often those seen as “less religiously elite” – are rewarded in greater proportion for the mitzvot they do fulfill.

[For those unwilling to go out on a limb with this reading of the Midrash, it is still possible to accept the principle that at times those who are the most religiously successful face fewer challenges along the way than those who fail to achieve such success. It can be inferred from Rav Dessler’s nekudat ha-behira and other concepts less tied to our parsha.]

While one might question this interpretation, given its divergence from the Talmudic principle above, I am not sure that the two truly conflict; it is possible to reconcile these apparent contradiction in one of several ways. One might argue that different types of people track along these two phenomenological anthropologies of the yetzer. Maimonides in the sixth of his Shemonah Perakim entertains the question of whether the greater tzaddik is one who struggles and overcomes their yetzer or one who has faces no challenge from their inclinations, and presumably different types of resha’im also exist reflect a differential yetzer quotient. Some tzaddikim struggle to achieve spiritual greatness while others have it easy; similarly, some don’t live up to religious challenges as well because they are crushed by overwhelming challenges of the yetzer while others remove themselves from Torah with less of a struggle.

Alternatively, one might say that one’s experience depends on the prohibition at hand. Some yetzarim are subdued when their beckon is ignored, while others strengthen by virtue of neglect. Human experience more broadly bears itself out – certain natural urges such as hunger intensify if ignored and weaken when attended to, while certain routines like having a cup of coffee in the morning intensify the more it is attended to and atrophy when ignored. Different forms of the yetzer hara might similarly react dichotomously to being suppressed, with some growing and others diminishing.

However one resolves this apparent contradiction, our Midrashic reading, and the alternative it offers to the standard Talmudic account, holds an important moral lesson. The mishnah in Avot 2:1 tells us הוי זהיר במצוה קלה כבחמורה שאין אתה יודע מתן שכרן של מצות, “Be careful with a minor commandment as with a severe one, because you do not truly know the reward for particular commandments.” In a similar vein, we can never know the degree of someone else’s challenge to follow any particular Halakha, or even Halakha overall. With our Midrashic principle teaching that reward correlates to the size of the challenge and yetzer, we can never know the reward a particular Jew receives for keeping Torah to whatever extent they succeed.

Korah was wrong when he said we are all automatically and equally holy; holiness is a function of merit, based on the degree to which one strives to follow the Torah. At the same time, we are each vouchsafed kedusha and reward – even a double reward! – if we keep the Torah. The magnitude of that reward, who has overcome great challenges and who has it easy, God only knows.

Keeping this in mind, we should all merit to optimize our battle of the wills and focus our energies on our own religious growth and supporting our fellow coreligionists, rather than on deigning to judge the success of others.

Have a wonderful Shabbat!

Rabbi Shlomo Zuckier (SBM ’12) is a Fellow of RIETS’s Kollel Elyon, a PhD candidate in Judaic Studies at Yale University, the former Director of OU-JLIC at Yale University and a Founding Editor at thelehrhaus.com

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Facebook, Data Privacy, and Halakhah

by Rabbi Aryeh Klapper

Celebrations of modern interconnectedness alternate in op-ed columns with concerns about loss of privacy.  In a nutshell, this is the gift and price of Facebook.  What guidance can Jewish tradition give us as we try to maximize the gift and minimize the price?

I suggest that we look carefully at the halakhot of speech.  These are usually conceptualized as being about preventing negative speech about others (lashon hora), slander (hotza’at shem ra) and rumor-mongering.  But Jewish speech laws can also be read as providing a highly relevant ethic of data privacy.

On Talmud Yoma 4b, Rabbi Menasya Rabbah states:

מניין לאומר דבר לחבירו שהוא בבל יאמר, עד שיאמר לו לך אמור – שנאמר וידבר ה’ אליו מאהל מועד לאמר.

From where in Tanakh do we learn that if someone says something to his fellow, repeating it is a violation of “Do not say”, until he tells him “Go say”?  Because Scripture says “[He called to Mosheh,] and Hashem spoke to him from the Tent of Meeting, leimor”.

The moral is drawn directly by Meiri:

וממה שנאמר שם “לאמר”, כלומר שאמר לו דברים אלו על מנת שיאמרם –

למדנו דרך ארץ למי שאומר דבר לחבירו, אף על פי שלא מסרה לו בסוד, שהוא בבל יאמר אא”כ אמר לו בעל דבר שהוא אומר לו אותן הדברים בלך אמור,

והוא ענין אומרו “נאמן רוח מכסה דבר”, כלומר דבר אף על פי שאינו סוד, “והולך רכיל מגלה סוד” = אף על פי שנאמר לו בסוד:

From it saying there “leimor”, meaning that He told him these things so that he would say them – 

We have learned derekh eretz toward someone who says something to his fellow, that even though he did not give it over to him as a secret, the recipient is bound by “Do not say”, unless the original speaker tells him that he is saying these things to him in the context of “Go say”

This is the intent of “One who is faithful in spirit conceals a matter”, meaning even though it is not a secret, and “One who goes as a peddler reveals secrets” = even though it was said to him as a secret.

If the presumption of privacy is true of random information that was deliberately communicated to one person, it seems reasonable to say that it is certainly true of information that has not been conveyed to anyone, and all the more so of personal data.  The default setting of Jewish law is privacy.

However, this conclusion is complicated by a discussion on Talmud Arakahin 15b.

היכי דמי לישנא בישא?

(רבא אמר) [אמר רבה]: כגון דאמר: ‘איכא נורא בי פלניא’.

אמר ליה אביי: מאי קא עביד?! גלויי מילתא בעלמא הוא!? אלא דמפיק בלישנא בישא, דאמר: ‘היכא משתכח נורא אלא בי פלניא, [דאיכא בשרא וכוורי]’.

What is an illustration of “evil speech”?

Said Rabbah: If for example he said: “There is a (cooking) fire in X’s house”.

Abbayay said to him: But this is mere exposure?!  Rather it must be that he said it in the manner of evil speech, saying “Where would there be fire except in X’s house, [where there is meat and fish].” 

Rabbah apparently holds that simply sharing information about someone else is forbidden.  Abbayay thinks this goes too far.  He instead sets up a standard.  This standard can be understood in at least three ways. It can be understood as saying that the disclosure of nominally neutral data about someone else is prohibited only with

  1. malicious intent, meaning that the speaker conveys information in order to damage the subject.
  2. malicious form, meaning that the speaker makes clear to the listener that they should think less of the subject because of this data
  3. undesirable outcomes, meaning that regardless of the speaker’s intent, the subject may be damaged in some way by the disclosure

These different understandings reflect fundamentally different, but not necessarily contradictory, conceptual frameworks for lashon hora.

The first is virtue ethics, under which our primary concern is the soul of the speaker.  Thus the determining factor is the speaker’s intent, why they want you to know that someone’s house likely has a fire going.

The second is about politeness.  Speech should not be weaponized. People can and should decide on their own how the facts affect their view of someone else; negative “spin” is forbidden.  So I’m entitled to know that someone’s chimney is always smoking.  But I don’t need to know your opinion that this reflects gluttony, or indifference to the suffering of others, or that their wealth must have been gained on the backs of the poor.

The third sees speech ethics as a subcategory of tort law. The effect of making it known that someone always has a fire going may be that everyone who wants a hot meal congregates there.  The household may be overwhelmed, or impoverished, or forced to change its presently hospitable ways.

This third framework seems most parallel to the rule in Yoma.  But Abbayay’s rejection of Rabbah means that we were overhasty in extending the absolute presumption of privacy from communications to data.  Perhaps there is a public interest in allowing truth to be known, and therefore the presumption of privacy can be overcome if disclosure causes no harm.

The discussion in Arakhin is followed by citation and discussion of three further principles.

אמר רבה: כל מילתא דמיתאמרא באפי מרה – לית בה משום לישנא בישא.

אמר ליה: כל שכן חוצפא ולישנא בישא!

אמר ליה: אנא כרבי יוסי סבירא לי, דאמר רבי יוסי: מימי לא אמרתי דבר וחזרתי לאחורי.

אמר רבה בר רב הונא: כל מילתא דמיתאמרא באפי תלתא – לית בה משום לישנא בישא.

מ”ט? חברך חברא אית ליה, וחברא דחברך חברא אית ליה.

כי אתא רב דימי אמר: מאי דכתיב: מברך רעהו בקול גדול בבוקר השכם קללה תחשב לו? כגון דמיקלע לאושפיזא וטרחו קמיה שפיר, למחר נפיק יתיב בשוקא ואמר: ‘רחמנא ניברכיה לפלניא דהכי טרח קמאי’, ושמעין אינשי ואזלין ואנסין ליה.

Said Rabbah: Anything said in front of its subject is not a violation of lashon hora.

Abbayay said to him: All the more so – it is both chutzpah and lashon hora!?

Rabbah replied: I hold like Rabbi Yose, for Rabbi Yose said: In all my life I have never said anything and then looked round.

Said Rabbah bar Rav Huna: Anything said in front of three people is not a violation of lashon hora.

Why? Your friend has a friend, and your friend’s friend has a friend.

When Rav Dimi came he said: What is the meaning of the verse “One who blesses his fellow in a loud voice early in the morning, it will be considered a curse for him”? For example, if he comes to a host and they put forth an excellent effort for him, and next morning he goes out and sits in the marketplace and says ‘May the Merciful bless X who made such an effort for me”, so that people hear and go overwhelm the host.

In reverse order:

The ban on excessive public praise teaches us that we are responsible not only for our intent, but also for consequences that a reasonable person could anticipate.

The exception for statements that the other person has already made public teaches that privacy can be waived.

The exception for statements made in the subject’s presence means that transparency is both important and a reasonable defense against a claim of privacy violation.

Plugging all these rules into the Facebook issue yields a policy in which even the most innocuous data is presumed private.  This presumption can be waived, and in some cases can be overcome if the subject is completely aware of what is being done.

The near-absolute presumption of data privacy, and not just act-privacy, and the recognition that breach of privacy can be reasonably expected to cause damage in a wide variety of manners, may be valuable contributions to contemporary discourse.

I need to make clear that I am not arguing that halakhah was prescient about the web, or that the framework I have set out represents a normative halakhic consensus. Far from it!  As with all genuinely new issues, a serious halakhic response requires creativity.  For example, even if one accepted all the readings offered above, application to social media would require a complete reformulation of the “three people” standard. We should make clear that we are seeking not to pasken but rather to influence; psak may or may not follow in the wake of influence, but should not precede it.  Halakhists should also carefully follow trends and outcomes in other legal systems and carefully incorporate the lessons of their experiences.

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