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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A Framework for Tumah: Understanding Childbirth

This week’s alumni Dvar Torah is by Michal Kaufman-Gulko

Parshiot Tazria and Metzora are difficult to make sense of.  Their detailed descriptions of blood, lesions, inflammations and bodily discharges have a medical ring to them, but the person who suspects that he is afflicted with tzaraat consults a Kohen rather than a doctor.

Parshat Tazria deal mostly with the skin afflictions called tzaraat. During the time that tzaraat is present or spreading on the body of a metzora, he must separate from the camp after the Kohen’s declaration of Tumah; for questionable afflictions the Kohen returns to make a determination after a seven-day quarantine.  Parshat Metzora is concerned with the purification after the Kohen determines the affliction is healed.  On that day, there is a ceremony performed with the blood of a sacrificial bird, after which the metzora must stay outside of the camp for seven days.  At the end of that week, he brings sacrifices for the Kohen to consecrate on his behalf and he is Tahor.

It is interesting to compare this process to the woman who has undergone childbirth.  She too must bring sacrifices to the Kohen to enable her purification, but she has to wait 40 days after the birth of a male and 80 days after the birth of a female to do so.  We can’t know for certain the cause of tzaraat, although a strong tradition among our Sages is that it results from impure speech and is an impetus to evaluate our actions and do teshuvah. The cause of impurity for a woman after childbirth is black and white – she needs to spend over 1 month (at least) away from the Temple and bring a sin offering afterward simply because she gave birth to a child.

This raises a host of vexing questions: Given the primacy of the mitzvah to have children, why would the act of childbirth lead to Tumah? Why does the impurity apply only to the mother and not the father of the child? Why is the Tumah for such an extended time period, and why does the length depend on the gender of the child?  How is the Tumah after childbirth related to the other forms of Tumah in these parshiot (tzaarat, discharges, menstruation) and the most well-known source of Tumah – that conferred by a dead body?

The laws of ritual impurity for temple service are not practical for our daily lives, and we can always fall back on the familiar trope, “These laws are chukkim and human logic cannot understand the calculus of the infinite.”  While true, this isn’t a satisfying answer to give a student or child.  Furthermore, if the law makes us feel uncomfortable, finding a fresh meaning can turn the source of that discomfort into a source of inspiration.

One can never presume to know the reason behind a mitzvah, especially chukkim, but the exercise of thinking about a reason is valuable.  In his book about Ta’Amei Ha-Mitzvot (1), Professor Josef Stern explains that while Ramban and Rambam are thought to have fundamental disagreement on chukkim, there is a broad shared ground between the two.  They both give multiple reasons for many commandments, as there is no one definitive reason.  As a mother, I always think of how to explain complex issues to my inquisitive children.  When they ask about the reasoning behind a chok, I respond “as humans we’ll never really know the reason, but one idea that resonates with me is…”

With this disclaimer behind me, the writings of Rav Samson Raphael Hirsch shed light on Tumah generally, as well as specifically for the mother after childbirth.  In Horeb, Rav Hirsch explains, “The term ‘Tumah‘ is often translated as ‘unclean’. This translation is entirely misleading because it suggests a physical, material quality. The term Tumah, however, is never used in Scripture in a material sense but always in a moral or metaphysical sense. For this reason, the view that the laws of Tumah and Taharah (purity) are of a sanitary or hygienic character is completely untenable.  The real meaning of this term can best be discovered by looking at the opposite term. We find that there are two terms which form an antithesis–namely, Kedushah and Tahara. This is no linguistic accident because there are two kinds of Tumah. One belongs to the sphere of morality, and its contrast is Kedushah; the other belongs to the sphere of metaphysics, and its contrast is Tahara. The first one (termed ‘concrete’ Tumah) has an effect on the moral character of man and comprises the spheres of idol-worship, dietary laws and sexual immorality. The second form of Tumah (termed ‘symbolic’ Tumah) is not concerned with man, but with the Sanctuary as representing the Divine Presence.”

The childbirth impurity law of Tazria is symbolic and contrasts to Tahara.  The word Tazria itself is only used in two other places in the Torah, both in reference to the seeding and growth process of plants during creation. From בראשית 1:11:

ויאמר אלהים תדשא הארץ דשא עשב מזריע זרע עץ פרי עשה פרי למינו אשר זרעו־בו על־הארץ ויהי־כן

And God said, “Let the earth sprout vegetation: seed-bearing plants, fruit trees of every kind on earth that bear fruit with the seed in it.” And it was so.

Rav Hirsch explains that by utilizing the expression Tazria in our parsha, “the mother’s role in progeny is looked at in the purely physical character of its physiological process…The highest and noblest occupation, on which the future of the human race is built…is of a purely physical nature. If anywhere, it is surely here that the fact must be established, that in spite of all this, once he is born, Man is a morally free agent.”

In Rav Hirsch’s view, the ultimate form of symbolic Tumah is contact with a dead body.  This is because “moral freedom is the central conception of Judaism. Man consists of body and soul; with his bodily existence he seems to be subject to the law of causality or the doctrine of necessity (i.e. lacks free-will). Anything that endangers or constricts his conviction of moral freedom is a danger to man’s inner harmony…Therefore one who has touched a dead body cannot enter the Sanctuary–the living symbol of the Divine Presence which causes him to be morally free.”

In this way, the pain, danger and pure biology of the birthing process is a reminder of (wo)mankind’s limitations and of death.  Unlike the father of the child, it is the mother alone who undergoes the intense physicality of having children.  While childbirth has gotten considerably safer for mothers with the advent of modern medicine, any woman in its throes experiences a brush with her own mortality.  Moreover, after giving birth a woman experiences a form of death as the life force residing within her is released to the world.  This can explain why a mother is impure for twice as long after a birth of a daughter as she is from the birth of a son.  The daughter’s life force is much greater than a son’s as she too has the potential for bearing children.

Unlike the Tumah from tzaraat, the mother after childbirth does not have to remove herself from the midst of the people.  She is welcome in the community and must only refrain from the Sanctuary for the 40 to 80 days (and refrains from relations with her husband for 1-2 weeks).  The Torah may be conveying the message that this momentous experience calls for contemplation and transition.  Hirsch writes, “Above all, the Mother herself, under the fresh impression of her physically completely passively and painfully having to submit to the forces of the physical laws of Nature at the most sublime procedure of her earthly calling, has to re-establish again the consciousness of her own spiritual height.”

Michal Kaufman-Gulko (WWBM 2018) lives in the greater NYC area with her husband and four children and works for Bloomberg LP.

I am indebted to my friend, Professor Sarah Rindner, whose research on the topic made for an engaging conversation.  See her thoughtful essay here.

(1)   Problems and Parables of Law: Maimonides and Nahmanides on Reasons for the Commandments Pg 7

 

Blithe Spirit

by Rabbi Aryeh Klapper

Once upon a time there was a chasid who changed the text of a Mishnah.  Where the text of Pirkei Avot 2:4 is “Do not have faith in yourself until the day of your death”, he recited “until the day of your old age”, and commented “Such as me” (meaning that he had reached old age).  Forthwith a spirit came and tested him . . . Immediately he had regrets.  The spirit said to him: “Don’t be in distress – I am only a spirit”.  He went off and recited the Mishnah with the same text as his peers.  (Yerushalmi Shabbat 1:3)

Popular retellings of this story, as reported by the commentary Alei Tamar, differ as to the cause of the chasid’s distress.  In some versions he actually succumbs to the succubus; in some he flirts verbally with her, but does no wrong action; and in still others he merely has a momentary thought of succumbing.

On Bavli Kiddushin 81a, the story appears to be a twice-told tale.

Rabbi Meir would mock transgressors. One day the Satan appeared to him as a woman on the far side of a river.  There was no ferry, so he grabbed onto a rope that was strung from one bank to the other and began crossing.  When he was halfway across, he let him be.  He said to him: “Had it not been decreed in Heaven ‘Be cautious with Rabbi Meir and his Torah”, I would have made you worth two nickels’.

Rabbi Akiva would mock transgressors.  One day the Satan appeared to him as a woman atop a date tree.  He grabbed the tree and began climbing.  When he was halfway up, he let him be. He said to him: “Had it not been decreed in Heaven ‘Be cautious with Rabbi Akiva and his Torah’, I would have made you worth two nickels”

Putting the Bavli stories together with the Yerushalmi tempts us to assign them the common moral that no one should mock sexual sinners.  But I am not prepared to surrender more than halfway to that temptation.

Let us begin by cataloguing differences. The Yerushalmi story is about a chasid, a man known for piety rather than for brilliance.  The man’s spiritual self-confidence is based not on accomplishment but rather on decay. The temptress spirit is not described as Satanic, and she apparently makes a free choice to leave the chasid be.

We might say that she does him a favor.  Several very pious but very aged men, now of blessed memory, frequently told me that a man with no yetzer hora also has no joy in living.  The chasid’s “Such as me” may reflect depression rather than ego, a sense of being as-good-as dead (chashuv k‘meit). The encounter recalls him to life.  Indeed, it ends with her telling him he need not worry about consequences for his soul, as she is not a real woman.

Contrast this with Rabbi Akiva and Rabbi Meir.  Their spiritual confidence is founded on the belief that mastery of Torah leads inevitably to self-mastery.  They have faith in themselves even while in full possession of their physical powers. They fall for the (male) Satan himself in drag, a double illusion.  Unlike the chasid, they lack the internal resources or self-awareness to stop their actions, or even to regret them.  The Satan let them go only under duress, and seeks to humiliate them while doing so.

Subsequent halakhists – including very recent and important decisors – wonder whether such a positive reading of the chasid is viable.  Are sexual fantasies not sinful? What about the prohibition against wasting seed?  Perhaps the spirit intended to do the chasid a favor, but accidentally or deliberately misrepresented the halakhah in her consolation?

When the conversation turns to women and incubi, different and more ineluctably practical questions arise.  Do we treat sex with spirits as pure fantasy? For example: If an unmarried women succumbs to an incubus, may she marry a kohen thereafter? If a married woman succumbs to an incubus, may she return to her husband?  How should we react to a confession of infidelity that simultaneously claims that the paramour was a demon?  What if the demon/dybbuk had taken possession of a physical male body?  Are the children of an ensuing pregnancy legitimate or mamzerim?

All this material is collected by Rav Ovadiah Yosef in Yabia Omer 9EH:16. Rav Ovadiah’s historical survey indicates that previous halakhists were often unaware of key precedents in the rishonim and lacked access to versions of the story found in midrashim.

However, I have seen in Or Zarua Hagadol 124 that he wrote: 

“Lo tin’af (Do not commit adultery) etc. – that one must not commit niuf whether by hand or foot, but with spirits there is no issue of niuf, 

as they say in Midrash Tanchuma on the verse “This is the book of the descendants of Adam”, that all those years (that Adam separated from Chavah in the aftermath of their expulsion from Eden) the (female) spirits would come to him and be aroused by him and give birth to demons etc.  

And also from that incident that happened to one chasid, that a demoness appeared to him in the image of a woman and seduced him and he coupled with her – and it was Yom Kippur! and that chasid was deeply grieved by the matter, until Eliyahu came to him and said to him: “You are exempt, as she was only a demoness”, and his mind was calmed.

Now were he liable (in the manner of a forbidden sexual act), Eliyahu would not have appeared to him and spoken with him and exempted him.  Rather, you learn from here that it is not like zenut and one is exempt.”

I have also seen in Bereshit Rabbah of Rabbi Mosheh haDarshan that he brings this story in the following words:

A story about a chasid who was contesting the words of the Sages who taught: Do not have faith in yourself until the day of your death” etc. Once he left the synagogue. It was Yom Kippur, and he entered his yard to relieve himself.  The Holy Blessed One send him a spirit who appeared to him as an adorned young woman of incomparable beauty.  He said to her: “Be persuaded by me!”.  She replied: “But it is Yom Kippur!!” “I am a married woman!”.  He said to her: “I accept upon myself the entire sin. He did not move from there until she was intimate with him.  He went and fell into a heavy illness as the result of his great distress at having such a sin happen to him, until the Holy Blessed One saw his distress, so that the spirit came before him and said: “Rebbe, I am the woman who was intimate with you, and I am a spirit and not a woman, and I have come to inform you that you should recant and recite as do your colleagues: Do not have faith in yourself until the day of your death”.  He was happy and recanted and recited as did his colleagues.

In these versions, there is no question that the intimacy was consummated, and there is also no question that the consolation is authentic and reliable.  Unlike in the Yerushalmi, every effort is made to accentuate rather than mitigate the chasid’s potential guilt.  He is not elderly, and the story takes place on a day that even marital intimacy is forbidden. There is no way to claim that the chasid gains any benefit other than spiritual humility.

Near the end of this responsum, which is uncharacteristically short and lacking a practical bottom line, Rav Ovadiah cites Rabbi Yosef Zechariah Stern (late 19^th century) as protesting that on these grounds one could permit an extramaritally pregnant wife to her husband if she claimed that the father was a demon, and that as for the Yerushalmi and the Tanchuma – one cannot learn halakhah from aggadot!  Rav Ovadiah comments that Rabbi Stern’s arguments are not compelling. It seems that Rav Yosef is prepared to exonerate pregnant adulteresses if they plausibly claim to have consorted only with demons.

We have come a long way from a morality tale about not mocking sinners.  Our story takes place in “the middle ground between light and shadow, between science and superstition, between the pit of man’s fears and the summit of his knowledge.” But can we derive halakhah from events in the Twilight Zone?

Regarding the Two Berakhot

This week’s alumni Dvar Torah is by Tuvy Miller

Parshat Shemini opens at the climax of the miluim process, whereby the Mishkan and kohanim are inaugurated into God’s service.  After the last sacrifice is brought, we read in Vayikra 9:22-23 that:

וַיִּשָּׂא אַהֲרֹן אֶת ידו יָדָיו אֶל הָעָם וַיְבָרְכֵם וַיֵּרֶד מֵעֲשֹׂת הַחַטָּאת וְהָעֹלָה וְהַשְּׁלָמִים:
וַיָּבֹא מֹשֶׁה וְאַהֲרֹן אֶל אֹהֶל מוֹעֵד וַיֵּצְאוּ וַיְבָרֲכוּ אֶת הָעָם וַיֵּרָא כְבוֹד יְקֹוָק אֶל כָּל הָעָם:

Aaron lifted up his hands toward the people. He blessed them. He came down from offering the sin-offering, and the burnt-offering, and the peace-offerings.

Moses and Aaron went into the tent of meeting.  They came out. They blessed the people. The glory of the LORD appeared unto all the people.

What was the content of these two blessings, the first by Aharon alone and the second by Aharon and Mosheh? What was their purpose?

Rashi explains that the first blessing is Birkat Kohanim, while the second is the last verse of Psalm 90 and asks God to bless the nation’s handiwork.  Psalm 90 opens by identifying itself as a Prayer offered by Mosheh.

Both elements of this explanation seem difficult.  The straightforward reading of Bemidbar ch. 6 indicates that Birkat Kohanim is only revealed to Aharon and his sons then, so how can Aharon have used it here? And while the specific verse that Rashi quotes from Psalm 90 fits this context well, the overall tone of that psalm seems inconsistent with this presumably joyous occasion.

Ramban concludes that the content of Aharon’s first blessing is unknown. He makes no direct comment regarding the content of the second blessing. Nonetheless, his understanding of both these blessings can be teased out from his connection of this story to Shelomoh’s dedication of the newly constructed Bet HaMikdash in Melakhim 1 Chapter 8.  That episode, it turns out, also contains odd and redundant blessings.

Shelomoh gathers the nation in Jerusalem and conducts an elaborate consecration ceremony. In verse 14, we are told:

וַיַּסֵּב הַמֶּלֶךְ אֶת פָּנָיו וַיְבָרֶךְ אֵת כָּל קְהַל יִשְׂרָאֵל

The king turned his face about. He blessed all the congregation of Israel

In verse 55, we are told again of a blessing:

וַיַּעְמֹד וַיְבָרֶךְ אֵת כָּל קְהַל יִשְׂרָאֵל קוֹל גָּדוֹל לֵאמֹר . . .

He stood. He blessed all the congregation of Israel with a loud voice, saying . . .

Radak notices that the first ‘blessing’ is strange because what follows is not a blessing, but rather praise of God for fulfilling His promise to King David that Shelomoh would build the Mikdash. He solves that problem and the apparent redundancy by claiming that there was really only one blessing, and that it is the one that appears in verse 56-61.  This approach does not explain why the blessing is mentioned at the beginning of the chapter.

I therefore suggest that there are in fact two blessings here. The first blessing’s content is not mentioned because it was a personal and private supplication to God. Even though Shelomoh was standing in front of the whole nation, he took a moment to focus on his private relationship with God, and he kept the specifics of that moment private.  It was enough for the people to see the intense devotion on his face as he communed with the Almighty.

Shelomoh’s second blessing asks God to always be with the nation and to allow them to keep the spiritual commitments that they have made in this moment of religious fervor. Here, his focus is national rather than personal. He is attuned to the fact that while momentous occasions can inspire heightened spirituality, this inspiration can be fleeting. He prays for the Mikdash to provide a place where the nation could come to recommit and relive this dedication moment.

Now we can return to Parshat Shemini.  Ramban argues that the content of Aharon’s first blessing is not recorded.  Why then is the fact of the blessing mentioned? I believe that Ramban learned from the Shelomoh story that it is important for us to know that great leaders – even in public moments – can take the time to have whispered private conversations with their Creator.  Aharon had just completed the intense process of becoming Kohen Gadol and needed to recognize the intensity of the moment and what it meant for his own relationship with God. He took the time to offer a blessing to God, allowing the nation to gaze upon him as he did, offering them a modest glimpse of his personal relationship with the Almighty.

Similarly, at the auspicious occasion of the dedication of the Mishkan, Mosheh and Aharon offer a prayer and blessing in response to the same challenge that Shelomo would recognize hundreds of years later. How can powerful moments of spirituality be sustained?    

Jewish leaders must both model and inspire a continuing relationship with God.  Like Aharon and Shelomoh, we need to find ways to be private in public, and to make sure that we maintain our own rich inner lives  while remaining sensitive and responsive to the spiritual needs and experiences of the entire people.

Tuvy Miller (SBM 2013) is in semikha at RIETS while also teaching Talmud at SAR High School.

Did Women Do Shechitah in Medieval Ashkenaz? Part 2

by Rabbi Aryeh Klapper

A beraita cited on Pesachim 4a states that “Everyone is believed regarding the elimination of chametz, even women, even slaves, even minors.”  The Talmud’s discussion of this beraita concludes that “the rabbis believed them about Rabbinic prohibitions”.  This seems to say that women have halakhic credibility only about Rabbinic prohibitions.

Tosafot Pesachim 4a assert that this conclusion contradicts the everyday experience of their halakhic community.

אף על גב דכל דבר שהוא בידם

מהימנינן להו לנשים ועבדים ואפילו מדאורייתא

דמעשים בכל יום שאנו מאמינים לאשה ועבד על השחיטה ועל הניקור 

Even though regarding all matter that are in their hands 

we believe women and slaves, even regarding deoraita law

as happens every day, that we believe a woman or a slave regarding shechitah or deveining.

Taken at face value, this Tosafot certainly supports a claim that in Medieval Ashkenaz, women and slaves regularly engaged in shechitah with the approval of the rabbis.

However, we should not rush to reach historical conclusions on the basis of a first reading of a single halakhic source.  We need to establish that we have an accurate text, and that the text means what we think it does. We must also acknowledge that Medieval Ashkenaz covers a variety of halakhic cultures for a duration of several hundred years, and therefore even an accurate and accurately read text may reflect the reality of only some of those places and times.

Primary evidence for limiting the text in time and/or location is found in the 15^th Century German work Sefer HaAgur, Hilkhot Shechitah Section 1062.

אף כי התוס’ כתבו בביאור שנשים שוחטות אפילו לכתחלה.

מנהג בכל גלות ישראל שלא ישחטו

ומעולם לא ראיתי נוהג לשחוט

ולכן אין להניחם לשחוט.

כי המנהג מבטל הלכה ומנהג אבותינו תורה היא.

Even though the Tosafot wrote clearly that women may do shechitah even lekhatchilah,

the custom throughout the Jewish Diaspora is that they do not do shechitah

and I have never seen a woman practice shechitah.

Therefore they should not be permitted to do shechitah.

Because custom nullifies law, and the custom of our ancestors is Torah.

On the reasonable assumption that Agur is accurately and honestly conveying his subjective impression of reality, it seems at the very least unlikely that woman regularly engaged in shechitah in his time and place.

But Agur makes much broader claims.  In terms of geography, he asserts that there is a custom “throughout the Jewish Diaspora” for women not to shecht.  In terms of time, he shows no sense that this custom has a known origin in time, in other words he indicates that to his knowledge it has been in place for more than a generation, and probably his use of the phrase מנהג אבותינו indicates that he believes that it has been in force for many generations.

Are these claims compelling to us?  With regard to geography, a search of Agur indicates that he generally makes circumspect claims.  He recognizes Ashkenaz, Tzarfat, Sefarad and Italia as distinct halakhic cultures, as well as Reines (perhaps as a subculture).  Within Ashkenaz, he distinguishes common custom from that of chakhamim, chassidim, and baalei nefesh respectively. Nowhere else in the book, so far as I have found, does he make a geographic claim this sweeping.

I have found only two uses of the phrase “throughout the Jewish Diaspora” preceding Agur, and both of these are in ROSH.  Moreover, it seems to me that Agur’s reports of Sefarad practice are all secondhand, out of books rather than out of his own experience.  Therefore, I very tentatively suggest that he is unlikely to have made the claim we are dealing with on his own.  Rather, he is conveying an earlier claim and buttressing it with the limited evidence of his own experience, namely that he has never seen this practiced.

We must also consider the possibility that Agur’s strong rhetoric is motivated by the substance of this issue.  As evidence for this position, we can note his comment regarding the position reported in the name of Rabbeinu Simchah that women can be counted as the tenth in a zimmun.

ספר האגור הלכות ברכת המזון סימן רמ

ובנות הר”ר אברהם מאורלינ”ש חמיו של ר”י היו מזמנות לעצמן על פי אביהם

ומיהו לא נהגו העולם כן.

ורבי’ שמחה עשה הלכה למעשה לצרף אשה לעשרה.

מרדכי פ”ח /פ”ז/ דברכות.

ואני המחבר לא ראיתי מעולם נוהגים כך ולא שמעתי מקום שנוהגין כן.

The daughter of R. Avraham of Orleans son in-law of the RI would create a zimmun amongst themselves,

But the world did not adopt this practice.

Rabbeinu Simchah acted in practice to include a woman as the tenth.

Mordekhai.

But I the author have never seen anyone practice thus, and I have not heard of a place where they practice thus.  

These two positions together make it plausible that Agur is reacting to a real or perceived effort to change women’s ritual roles.  It seems to me less likely that he is actively seeking to change those roles, although the possibility cannot be dismissed.

However, there may be nothing unusual about Agur’s rhetoric here.  Quite similar rhetoric is found here:

ספר האגור הלכות כתמים סימן אלף שעד

כתב בספר המצות

חומרא גדולה החמירו על עצמן בבבל ובארץ ישראל ובספרד ובארץ המערב היא מלכות מרו”ק שאין נותנים דם טוהר ליולדת. וכל דם שהיא רואה בתוך מלאת סופרות ז’ נקיים כמו אחר מלאת. אבל בלומרדיא”ה ואשכנז ואגפיה וצרפת וארץ האי בועלים על דם טוהר כדין התלמוד שאמרו חומרא דר’ זירא אינה ביושבת על דם טוהר ע”כ.

ואני המחבר לא ראיתי מעול’ באשכנז וכן מכל רבותי שנהגו לבעול בדם טוהר.

It is written in the Book of Mitzvot:

“They imposed a great stringency on themselves in Bavel and Israel and Sefarad and the Western Land, namely the Kingdom of Morocco, that they give no period of “tahor blood” to a woman who has given birth, and all blood that she sees during the Torah period of tahor blood, she counts seven clean days just as she does after that period. But in Lomardia and Ashkenaz and its extensions and Tzarfat and the Island Land they have marital intimacy during the period of tahor blood, as is the law in the Talmud, because they said that the Chumra of Rabbi Zeira does not apply to a woman during the period of tahor blood.”

But I the author have never seen in Ashkenaz or heard from any of my teachers that they practice intimacy during the period of tahor blood.

And here:      

ספר האגור הלכות איסור והיתר סימן אלף רסג

לא ראיתי ולא שמעתי נוהגים בשום מדינה שיהיו מטעימין האסור לקפילא ארמאה. ר”ל רוקח עובד כוכבים המתקן המאכל. כמו שאמר רבא בפרק גיד הנשה. אמור רבנן בטעמא. אמור רבנן בקפילא. אמור רבנן בששים.

והכל נוהגים לשער בששים

I have neither seen nor heard that they practice in any jurisdiction giving food that has absorbed a prohibited substance to a “kfeilah Aramai” (to see whether the forbidden substance has added flavor), meaning to a non-Jew who prepares food, as Rava said in Chapter Gid HaNasheh: The Rabbis said that the prohibition is a matter of whether it adds taste, and the Rabbis said that on can give it to a kfeilah, and the rabbis said up to 1/60.

But everyone has the custom of measuring by 1/60 . . . 

So from the language of Agur alone we can’t demonstrate either the scope or the interestedness of his claim, nor its relationship to the very contrary assertion in Tosafot.

Before bringing this installment to a close, we need to mention that our citation of Agur was partial.  Earlier in that section, Agur cites two earlier texts that each add elements of complexity to our story.

The first is ascribed to a work called Hilkhot Eretz Yisroel, which in turn is attributed to a very mysterious man named Eldad HaDani.  This work, which seems to claim a direct line back to Yehoshua, asserts that shechitah “from the hands of” a woman, a castrate, or a male above 80 or below 18 years old is not kosher.  This position is consistently rejected out of hand by medieval Ashkenazi halakhists, yet it can be suggested that it has influence.

The second is attributed by Agur and others to the Sefer Mitzvot Ketanot, a.k.a Sefer HaMitzvot and Amudei Golah, written by the 13^thcentury R. Yitzchak of Korbeil (although our text of the book lacks the key word of the citation, and the attribution may be mistaken). This position states that knowledgeable women can shecht “לעצמן”, and some (but not necessarily Agur) understand this (according to Beit Yosef incorrectly) to mean that woman are permitted to shecht for themselves, but not for others. This position may also have had influence on practice, even if it was never accepted as baseline halakhah.

Bottom line: The position that shechitah by women was common in medieval Ashkenaz cannot have been true for all medieval times and places, unless we simply discount Agur’s report that it was unknown to him in 15^th century Germany.  Moreover, Agur makes a claim about all Europe, and he may be retransmitting an earlier report.  There were also two legal arguments against women’s shechitah circulating long before Agur.  If Tosafot’s report stands, we need to explain what changed by the time of Agur.  But does Tosafot’s report stand?  Stay tuned for Part 3.

The Poetry of Ish HaHalakhah

This effort at presenting Ish HaHalakhah as poetry was first published on Lehrhaus, where it included one egregious error, which this version removes.  Professor Lawrence Kaplan had other critiques, linked below, and almost of all of them are well-taken – and nonetheless I hope there is some value here.

I first tried to read Ish HaHalakhah as a high school student.  I didn’t get far – the first or second quote in Greek characters defeated me – but I got far enough that I’ve never been able to escape the gravitational pull of the Rav’s thought.  The vision that was planted in my brain still remains.  I still think of serenity as a goal of Christian Science rather than Judaism, and tend to relate to Talmud Torah as the ultimate and potentially all-encompassing religious experience.

Its broad impact notwithstanding, there is no denying that the Rav’s works often frame the experience of Talmud Torah in categories that are marginal to both the public and the academy today.  I continue to be struck by the irony that when Halakhic Mind critiques the Rambam sharply for binding Judaism to obsolete Greek , its clinching argument is that Rambam thereby fails to conform to Hegel.  So what?

For many of my students, therefore, the Rav is, le-havdil, like Simon and Garfunkel.  The greatest hits are acknowledged classics, and worth listening to on occasion, especially in an intergenerational crowd.  But it is not their music.  It does not speak to the religious issues that are burning in their life.  No one will be writing passages from Halakhic Man on bus shelters to compete with na-na-Nachman.

There is nothing inherently wrong with this, and over time (a censored version of) the Rav may become more persuasive to Haredim than to the Modern Orthodox world, in the manner of the Hovot ha-Levavot.  But I would rather defer that epoch to the extent I can.  Here is one attempt at regenerating immediacy.

I take it as given that most of Modern Orthodoxy experiences the Rav in English.  I further suspect that the initial power and attraction of Ish HaHalakhah even in its glory days was affective more than cognitive, as it was for me in high school, and that this affective power is hard to access today through the heavy philosophic jargon.

is Professor Lawrence Kaplan’s classic translation of the Hebrew ; as with other classics, even the best translations grow dated.   I want to offer here a new translation of one brief but central section, in the hope that it will serve the same social role as Disturbed’s cover of Sound of  .

My fundamental intent, to be fully honest, is to re-appropriate this section as poetry rather than philosophy.  To that end my basic unit is the line rather than the paragraph.  I also privilege the literal and the literary over the expository.  example, I translate על ידי הדין וההלכה as “via the law and the Law” where Professor Kaplan has “by means of the law and the Halakhah,” and האימה פורחת לה כחלום יעוף as “the terror evaporates like an evanescent dream” instead of “the fright accompanying death dissipates.”

Professor Kaplan has many  well-taken critiques of my effort on Lehrhaus here.  I wrote in response that:

I am fully supportive of the idea of producing a full scholarly edition of a revised version of his translation, and if he would have me, I’d love to participate in such a project.

But I think the fundamental point I tried to make stands, and I was profoundly gratified by the spontaneous enthusiastic messages I received from scholars and friends I greatly respect. I’m very aware that there were also people I greatly respect who simply didn’t see the point of the effort. That difference of sensibility may be a crucial datum as we engage together in the holy work of trying to build a deeply learned, intellectually rigorous, passionate, and compassionate Orthodoxy that looks forward to yeshuah by building on the past, rather than confining itself to any specific past iteration of the depths of Torah.

איש ההלכה עמ’ סו-סז

איש ההלכה הוא איש החוק והעיקרון, איש הדין והמשפט, ולפיכך יש לו תמיד בהוויתו, אפילו כשתהגה נכאים, נקודה ארכימידית, קבועה ומוצקת, הנמצאת מחוץ להמיית נפשו, מעבר למעורבלות החיים האפקטביים, שממנה נובעת שלווה ומנוחה.

גם את פחד המוות המושרש, כפי שנתבאר לעיל, בהשקפת עולמו של איש ההלכה, מנצח הוא על ידי הדין וההלכה ומהפך את התופעה, שהוא מפחד, לאובייקט של הכרת האדם.  וכשצל-מוות המטיל אימים עליו לובש צורה אובייקטיבית של נשוא המשועבד לנושא, של חפצא הכפוף לנברא, האימה פורחת לה כחלום יעוף.

שח לי אבא מרי, כשפחד המוות היה תוקף על ר’ חיים, היה הלה מתמכר בכל מוחו ורוחו להלכות אהלות וטומאת מת,

והלכות אלו הסובבות סחור-סחור לעניינים חמורים ושאלות מסובכות של טומאת קבר, טומאת אהל, טומאת רצוצה, חציצה בפני הטומאה, צמיד פתיל באהל מת וכו’, היו משקיטות את המיית נפשו ומשרות עליה רוח של שמחה וחדווה.

כשאיש ההלכה ירא את המוות, הנשק היחידי להילחם בפחד נורא זה הוא החוק הנצחי של ההלכה.

פעולת האובייקטיפיקציה כובשת את אימת המוות הסובייקטיבית.

My Retranslation

The Man of Halakhah –

He is a man of rule and of principle, a man of law and of judgment.

Therefore he always has in his being – even while experiencing depression –

an Archimedean point, fixed and firm,

existing outside the turmoil in his soul, beyond the entangledness of affective life,

from which tranquility and calm flow.

Even fear of death –

which is rooted (as was explained earlier) in the Man of Halakhah’s worldview –

he defeats via the law and the Law

by transforming the phenomenon –  that he is afraid – into an object of human re-cognition.

When the shadow-of-death which imposes terrors on him

wears the objective form

of a carried subordinated to a carrier, of an object that must bow to a subject,

the terror evaporates like an evanescent dream.

My father-and-teacher once said to me in conversation:

When R. Chaim was powerfully subject to the fear of death,

he would utterly commit all his brain and spirit to the halakhot of enclosures and death-tum’ah.

These halakhot –

which come round and round to weighty matters and complex questions regarding grave-tum’ah, enclosure-tum’ah, contained tum’ah, barricades to tum’ah, utensil lids in a death-enclosure, etc. –

would quiet the turmoil of his soul and spread over him a spirit of joy and gladness.

When the Man of Halakhah fears Death,

his sole weapon with which to fight this dreadful fear is the eternal rule of the halakhah;

The act of objectification conquers the subjective terror of death.

Halakhic Man (Lawrence Kaplan translation) pp. 74-75

Halakhic man is a man of the law and the principle, a man of the statute and the judgment, and, therefore, he always possesses in his being, even if at times it should be afflicted with a deep melancholy, a fixed, firm, Archimedean point that is outside and above the turbulence of his soul, beyond the maelstrom of the affective life, a true source of peace and tranquility.  Halakhic man vanquishes even the fear of death, which, as was explained above, is rooted in his world perspective, by means of the law and the Halakhah, and he transforms the phenomenon, which so terrifies him, into an object of man’s observation and cognition.  For when death becomes an object of man’s cognition, the fright accompanying death dissipates.  Death is frightening, death is menacing, death is dreadful only so long as it appears as a subject confronting man.  However, when man succeeds in transforming death-subject into death-object, the horror is gone.  My father related to me that when the fear of death would seize hold of R. Hayyim, he would throw himself, with his entire heart and mind, into the study of the laws of tents and corpse defilement.  And these laws, which revolve around such difficult and complex problems as defilement of a grave, defilement of a tent, blocked-up defilement, interposition before defilement, a vessel with a tight-fitting cover on it in a tent in which a corpse lies, etc., etc., would calm the turbulence of his soul and would imbue it with a spirit of joy and gladness.  When halakhic man fears death, his sole weapon wherewith to fight this terrible dread is the eternal law of the Halakhah.  The act of objectification triumphs over the subjective terror of death.

The Mission of the Summer Beit Midrash (v. circa 2000)

Rabbi Joseph B. Soloveitchik of Blessed Memory taught the following syllogism:

• Humanity is created b’tzelem Elokim, in the image of G-d.

Therefore the purpose of man is imitatio dei, l’hidamot lo k’mah she’efshar – to imitate G-d’s ways.

• The Torah introduces G-d to humanity as the borei, the Creator.

Therefore the purpose of humanity is to be creative.

• But Jews were specifically instructed to center their lives around Torah!

Therefore the ultimate Jewish purpose is creativity within Torah, chiddushei Torah.

Ironically, this argument of the Rav is often used, exactly so, as someone else’s speech.  I think myself more in accord with its spirit in offering a perhaps creative extension of the Rav’s thought.

For those who spend much of their time laboring in the intellectual fields of Torah and who are privileged to experience the joy of chiddush, of Torah creativity, the Rav’s focus is obviously attractive.  But it seems by implication to cut the majority of the Jewish population off from the central Jewish religious act – not that many of us are capable, whether for reasons of economy, temperament, or ability, of making genuinely original contributions to the study of Torah.  And I submit, pace Maimonides, that Jewish philosophy ought not to so privilege the intellectual elite.

Let me therefore offer the following extension of the argument.

• Most values are universal. People generally agree, for instance, that courage and generosity are good, cowardice and miserliness bad.

Therefore the uniqueness of Torah – and any other moral system – lies largely in the relative weight it assigns universal values, in the way it instructs us to choose when those values compete or conflict.

Therefore the content of a chiddush Torah is its rebalancing of values.

• Chananyah ben Akashya famously teaches that G-d gave us many commandments in order to increase our merit. Maimonides explains that this means that each of us can focus on the commandment or commandments that most resonate with our souls. In other words, every soul among us legitimately balances the values of Torah differently.

Therefore each of us, if we live a life genuinely devoted to Torah, simultaneously offers a creative interpretation of Torah, albeit not one consciously bound to a specific textual rereading.

 

To sum up:  The Torah can be interpreted both through study and through practice.  There is a Torah of thought, and a Torah of life.

But creativity must be treated with caution as well as celebrated.  If we create within Torah, that means that we change Torah, and some of our changes may be for the worse.  Creativity carries with it the probability of error.  I remember R. Zevulun Charlop. Dean of RIETS, telling me that m’chadshim, creative scholars, should be evaluated like baseball batters – getting it right once in three tries is excellent for the less adventurous, and once in four sufficient for those with real power.  How does our system control the impact of these errors?

I submit that one method is by coordinating the Torah of Thought with the Torah of Life.  Academic study with no real-world accountability leads to an impractical and/or unfeeling Torah; life with no textual accountability leads to an incoherent and/or self-indulgent Torah.  Only when they go hand in hand – when the creative energy of one is checked and balanced by the inertia of the other, and vice versa – does Torah develop properly.

In other words – the Torah of Thought and the Torah of Life meet in the realm of p’sak halakhah, where intellectual Torah must be translated into practical rulings.  A community’s healthy relationship with p’sak – and its production of robust p’sak – are signs that it is effectively coordinating its Torahs.  Anemic and mistrusted p’sak, of course, are danger signs.

I submit that Modern Orthodoxy has neither robust p’sak nor a healthy relationship with p’sak, and that the cause of this is that the Torah of Life and the Torah of Thought – both in the admirable process of creativity – have grown apart from one another.

More concretely – the academy and the community do not trust one another’s religious and moral intuitions, and therefore each feels itself unaccountable to the other.  This must change, and it can, and here’s how.

We need to produce talmidei chakhamim – poskim – leaders – who share the positive moral vision of the Modern Orthodox community, including

• commitment to the full religious development of women,
• to the ultimate significance of every human being as a tzelem Elokim,
• to the religious significance of Jewish sovereignty in Eretz Yisroel,
• to unintimidated intellectual openness, and
• to profound cultural responsibility.

These poskim will test their halakhic rulings against that vision – but they must also be unafraid to subject the practices of the Modern Orthodox community to strict Torah scrutiny.  My belief is that the community will respond positively to that scrutiny if it feels a kinship of values with its leaders, but not before.

The Summer Beit Midrash was founded to produce those leaders.

How do we produce such leaders?  How can we create leaders simultaneously and authentically rooted both in the texts of our tradition and in the values of our community?  The Summer Beit Midrash makes every effort to ensure that academic study is never divorced from its real-life and ethical implications.  Every idea offered during our study of traditional texts is tested and retested against our moral intuitions and our philosophic premises as well as our intellectual capacities.

One practical reflection of this approach is our commitment to the nearly lost art of writing teshuvot, or halakhic responsa.  For example, when we studied the laws of conversion this past summer, each fellow wrote a responsum about a technically difficult case involving a “patrilineal Jew” born and raised with a strong non-Orthodox Jewish identity.  Each responsum addressed not only the technical halakhic issues involved but also the question of the Orthodox community’s moral obligation to such individuals, as well as the impact that moral obligation has and/or should have on the determination of halakhah.  The group discussion following the presentation of the responsa also addressed the impact that issuing certain rulings might have on a halakhic decisor’s standing in the community, because leaders must be aware of – and be willing to bear – the personal consequences of their decisions.

Another example – three years ago we studied the law of the katlanit, the woman who has been married twice and may be halakhically forbidden to marry again. The Talmud debates whether this rule is based on medical fears or on astrology; the halakhah clearly follows the position which says it is based on astrology.  We questioned whether it was legitimate for us to cause even one human being to suffer because of a law based on astrology, a system that, following Maimonides, we rejected.

But the issue grew more complicated.  R. Ezekiel Landau, late eighteenth century rabbi of Prague, offers an astrological rationale that exempts virtually all contemporary women from this rule.  We asked: is it legitimate for those who do not believe in astrology to base a legal leniency on an astrological rationale?

Maimonides himself, it turned out, adopted in the matter of katlanit a posture that is to my knowledge unique in the annals of halakhah.  He writes that his practice – and, he claims, the practice of his teachers for several generations – is “maamidin lahem p’nei mit’alem b’galui”, to “openly look away” from those who marry anyway, to tell them in advance that we would happily write ketubot for them were they to marry.  We asked: Is Maimonides’ practice in this case an unrepeatable exception, or a strategy from which we should learn?

Future leaders who have taken these questions with great seriousness, who bring the beliefs and values of our community to their study of Torah, will likely answer them differently than leaders for whom these issues are uninteresting.  And their answers will be respected and trusted by our community.

I hope this talk has contributed to our effort to bring the Torah of Study and the Torah of Life together.  I hope you will be inspired to join our effort in any way you can.