Saying the Unsayable: Why G-d Wore a Tallit to Lead the First Selichot

by Rabbi Aryeh Klapper

On Rosh HaShannah 17b, Rabbi Yochanan explains the opening of Exodus 34:6 via an arresting image.

–”ויעבר ה’ על פניו ויקרא . . .”

!אלמלא מקרא כתוב, אי אפשר לאומרו

,מלמד שנתעטף הקדוש ברוך הוא כשליח צבור

.והראה לו למשה סדר תפלה

:אמר לו

 – כל זמן שישראל חוטאין

.יעשו לפני כסדר הזה, ואני מוחל להם

“Hashem passed before h/His face, and h/He proclaimed”:

Were it not written in Scripture, it would be impossible to say this!

This teaches us that The Holy Blessed One wrapped Himself like a congregational prayer leader

and showed Mosheh the order of prayer.

He said to him:

Whenever Israel sins,

they should do before me just like this order, and I will forgive them.

 

Rabbi Yochanan seems shocked by his own theological audacity.  But what is it about this image that so shocks him?  Is it the blatant anthropomorphism of G-d wearing a tallit?

This aspect of the image certainly bothered many later rabbis.  Rabbi Yom Tov ibn Ashbili (RITVA) hastens to explain that the verse is written from Mosheh’s perspective – he saw this in a prophetic vision, but it was only a metaphor.  Rabbeinu Chananel contends that G-d ordered an angel to appear as if he were wearing a tallit, or alternatively, that G-d created an angel with the appearance of a tallit-wearing human.

I am not convinced, however, that Rabbi Yochanan’s shock issue here was anthropomorphism (or that any of the later rabbis believed it was).  Anthropomorphism is all over Tanakh, and RITVA and Rabbeinu Chananel are trotting out standard solutions for the issue.  Something more must have triggered Rabbi Yochanan’s assertion that Scripture here writes the otherwise unsayable.

What might this have been?

The declaration “Were it not written in Scripture, it would be impossible to say this!” appears seven times in the Talmud.  Several of these can be understood as referring to anthropomorphism, but several of them cannot.  The clearest example is Bava Batra 10a, also said by Rabbi Yochanan.

:א”ר יוחנן

?מאי דכתיב “מלוה ה’ חונן דל”

!אלמלא מקרא כתוב, אי אפשר לאומרו

כביכול – עבד לוה לאיש מלוה

Said Rabbi Yochanan:

What is the meaning of “Those who are gracious to the poor are Hashem’s creditors” (Proverbs 19:17)?

Were it not written in Scripture, it would be impossible to say this!

As if it were possible – the borrrower is slave to the [human] creditor.

 

There is no physical imagery at all here.  What then is the issue?

Let’s look at one more example, from Berakhot 32a:

“ועתה הניחה לי ויחר אפי בהם ואכלם  ואעשה אותך לגוי גדול וגו'”

:אמר רבי אבהו

!אלמלא מקרא כתוב, אי אפשר לאומרו

,מלמד שתפסו משה להקדוש ברוך הוא כאדם שהוא תופס את חבירו בבגדו,

:ואמר לפניו

!רבונו של עולם, אין אני מניחך עד שתמחול ותסלח להם

“Now you leave go of Me, and My anger will burn amidst them and consume them . . .”

Said Rabbi Abbahu:

Were it not written in Scripture, it would be impossible to say this!

This teaches that Mosheh seized The Holy Blessed One like a person seizing his fellow by the garment,

and said before Him:

Master of the Universe, I will not leave go of you until you absolve and forgive them!

 

I suggest that common denominator, the issue in each case, is not anthropomorphism, but rather the depiction of G-d as subject or servile to human beings.  Berkahot 32a depicts G-d as subject to detention by Mosheh; Bava Batra 10a as subject to the will of charitable people; and Rosh HaShannah 17a as manipulable by human beings via the recitation of a verbal formula, namely the “13 Attributes”.  Call it magic or theurgy, the last is surely the most shocking.

Now Rabbi Yochanan states that he can say this only because Scripture says it – but what if Scripture could be understood differently?  Would we be allowed to take one of several possible interpretations and claim that it permitted saying the otherwise unsayable?

Here again it is vital to understand exactly what Rabbi Yochanan thought was unsayable.  If the issue were anthropomorphism, he could simply agree with Ramban that ויעבור ה’ על פניו means that G-d passed before Mosheh’s face, and nothing would compel him to permit or accept the image of G-d’s tallit.  But he was bothered by magical theology, not by anthropomorphic metaphors.

Rabbi Yochanan could not evade the issue by having Mosheh be the subject of ויקרא (h/He proclaimed).  He knew that G-d was the One who proclaimed the 13 Attributes, and that He intended them to be recited efficaciously by Mosheh, because in Bamidbar 14:17-18 Moshe recited them after declaring that this is “as G-d had previously spoken = כאשר דברת לאמר”, and G-d then forgives them “in accordance with Moshe’s speech = כדבריך”.  Rabbi Yochanan’s challenge was to make sense of this apparent theological absurdity in some way.  His solution was the image of G-d as Shaliach Tzibbur.

Some background information is necessary here.  Rabbinic literature depicts human beings as wrapped in tallitot for prayer even when they are praying alone, and both G-d and humans as wrapped in tallitot even when not praying.  So Rabbi Yochanan has no exegetical need to introduce the notion of G-d as congregational prayer leader even if he translates “passed before His face” as a reference to wrapping a tallit.

Now only Mosheh was present atop Sinai – there was no “congregation” (although Mosheh was “equal to all of Israel”).  Furthermore, Bamidbar 14:17—18 proves only that Mosheh could use the formula, not that it would be useful permanently for the Jews.  Rabbi Yochanan presents G-d as a congregational prayer leader in order to move from the verse to a claim that the formula works for post-Mosheh congregations as well.

Based on Shemot 34 and Bamidbar 14, we can only know that reciting the 13 Attributes works to save all of Israel, so most likely Rabbi Yochanan treats a halakhic tzibbur as a formal representation of the entire Jewish people.

The question that remains is – (how) does presenting G-d in this way solve the underlying problem of G-d’s apparent manipulability?  Why does this image help make the verse’s theology sayable, if only barely?

My very tentative answer is that Rabbi Yochanan’s goal was to connect the verses to the practice of communal fasts.  Why?  Because if reciting the 13 Attributes were simply a matter of magic, with forgiveness automatic, there would be no need to fast or repent.  By limiting the efficacious recitation to the context of a communal effort at repentance, Rabbi Yochanan opens up the possibility that the 13 Attributes work only insofar as they help us change into the sort of people who can be at least plausibly worthy of Divine forgiveness.

At the same time, the depiction of G-d as shaliach tzibbur emphasizes that G-d very much wants us to make those changes, and that He Himself prays for His mercy to be revealed above His other attributes (see Berakhot 7a).

Shabbat shalom and shanah tovah!

Is Teshuvah a Mitzvah?

This week’s alumni Dvar Torah is by Judah Kerbel

Presumably, Rambam wrote Hilkhot teshuvah to elaborate on a requirement to do teshuvah. But Avodat HaMelekh (R. Menachem Krakowski, d. 1930) notes something peculiar – Rambam’s language does not indicate that teshuvah itself is a mitzvah:

רמב”ם הלכות תשובה פרק א

כל מצות שבתורה בין עשה בין לא תעשה

אם עבר אדם על אחת מהן בין בזדון בין בשגגה

.כשיעשה תשובה וישוב מחטאו חייב להתודות

All commandments in the Torah, whether positive or negative,

if a person transgressed one of them, whether intentionally or unintentionally, when the person does teshuvah and repents from that sin, the person is obligated to confess.

It seems here that the obligation associated with teshuvah is the confession!  There is an assumption here that one will do teshuvah, but Rambam never says that there is an obligation to abandon sins and engage in a process called teshuvah.

The problem is sharpened when one looks at Devarim 30:1-2::

וְהָיָה כִי יָבֹאוּ עָלֶיךָ כָּל הַדְּבָרִים הָאֵלֶּה

הַבְּרָכָה וְהַקְּלָלָה אֲשֶׁר נָתַתִּי לְפָנֶיךָ

וַהֲשֵׁבֹתָ אֶל לְבָבֶךָ

:בְּכָל הַגּוֹיִם אֲשֶׁר הִדִּיחֲךָ יְקֹוָק אֱ-לֹהֶיךָ שָׁמָּה

וְשַׁבְתָּ עַד יְקֹוָק אֱ-לֹהֶיךָ וְשָׁמַעְתָּ בְקֹלוֹ

כְּכֹל אֲשֶׁר אָנֹכִי מְצַוְּךָ הַיּוֹם

:אַתָּה וּבָנֶיךָ בְּכָל לְבָבְךָ וּבְכָל נַפְשֶׁךָ

It will be that when all these things come upon you –

the blessing and the curse that I have presented before you –

then you will take it to your heart

among all the nations where Hashem, your God, has dispersed you;

and you will return to Hashem, your God, and listen to his voice, according to everything that I command you today, you and your children, with your heart and all your soul

Ramban understands the second verse as presenting a mitzvah of teshuvah (30:11), “you must return” rather than you will return.  In Hilkhot Teshuvah 7:5, however, Rambam sees this verse purely as a promise that G-d will redeem us and that we will do teshuvah.

What is the nature of teshuvah if viduy is the commandment, not teshuvah itself?

Avodat HaMelekh suggests that teshuvah is assumed by definition if one is going to keep the Torah at all. If one has violated a mitzvah, obviously one has to abandon that path! We do not need a verse to teach us that – it is unfathomable to think otherwise, it is the foundation of the entire Torah. Rather, the Torah elsewhere (Bamidbar 5:6-7) teaches the chiddush that teshuvah requires verbal confession, and Rambam asserts that is the emphasis here as well.

A person wishing to make a proper change in behavior going forward cannot assume that wishing will make it so. One has to verbally commit to making that change happen, and to making a conscious effort to act cautiously to avoid making future mistakes. For Rambam, lack of confession undermines the entire teshuvah process.

Minchat Chinukh disagrees (Mitzvah 364).  He holds agrees that there is a mitzvah to confess, and by not confessing one has not fulfilled that particular mitzvah – but if one genuinely repented in his heart without verbally confessing, one has fulfilled the separate commandment of “you must return”, and one has still properly atoned for one’s sins.

Whether or not the verses in our parasha speak of an actual mitzvah of teshuvah, it is certainly tied to redemption.  When we return to G-d, G-d will end the exile and bring us back to Eretz Yisrael. By working to strengthen our observance of mitzvot, and thereby reversing course when we have not met all of our obligations, we come closer to G-d (Rambam 7:6). As the Yamim Noraim approach, may will all merit to do our own teshuvah and to come together as a united people in doing teshuvah, to come closer to G-d, and to reap the benefits of the promises G-d made with our ancestors.

Judah Kerbel (SBM 2015) is in his third year at RIETS and his second year at the Bernard Revel Graduate School, concentrating in medieval Jewish history.

AUTHORITY OR ANARCHY?

AUTHORITY OR ANARCHY? 

Three stories about public halakhic policy from the past few days

Should Orthodox rabbis have authority over each other?  This issue has come to the fore in three episodes over the past few days.  In the brief essay below I try to explain how each episode helps illuminate the issue and to argue that we have been avoiding hard choices that we really have to make.

1) The RCA passed a resolution mandating that its members use a halakhic agunah-prevention prenup when officiating at weddings.

Modern Orthodox discussions on social media have generally cheered this.

SBM alum Yeshayahu Ginsburg deserves great credit for pointing out an underlying process issue – should rabbinic organizations or institutions be able to impose their will on rabbis with whom they have substantive halakhic, hashkafic, or sociological disagreements?

The RCA also recently passed a resolution forbidding its members from hiring women as clergy.

Modern Orthodox discussions on social media have generally booed this.

Bluntly – if you support prenuptial agreements and women as clergy, is it possible or legitimate to expect the RCA to effectively enforce the first while asking RCA members to ignore the latter?

2) The Chief Rabbinate failed to automatically approve conversions certified by two of the RCA’s formal Halakhic authorities, Rabbi Gedaliah Dov Schwartz and my teacher Rabbi Mordechai Willig.

The Chief Rabbinate’s decisions reveal yet again the hollowness of its supposed deal with the RCA on conversions.  As I have written many times before, its procedures in this regard violate the numerous Torah prohibitions against oppressing converts, Jews, and human beings.  Its blatant disregard for American Orthodoxy damages respect for Torah and halakhah.  We need to come up with and fight for immediate plausible alternatives to a rabbinic bureaucracy that seems incompetent at its best and often much, much worse.

It is fair to argue that with Israel out of the picture, the entire RCA drive to centralize US conversions via the GPS system becomes an obvious mistake, and should be dismantled.  The argument is that the GPS system’s standards are so restrictive that many Orthodox rabbis end up taking converts elsewhere, and so it leads to a proliferation of Orthodox converts who are not recognized universally in Orthodoxy.  Moreover, the system has applied its standards retroactively, so that many past Orthodox converts (and Orthodox children of Orthodox converts!) are being forced to reconvert.  As with the Chief Rabbinate’s policy, this means that every legitimate convert must live in constant fear for their own Jewish status, and for that of their descendants ad biat goel.  This violates all the same Torah prohibitions mentioned above.

I think this argument is substantively correct.  Except – it assumes that the alternative is a better world in which almost all Orthodox converts are generally recognized by almost everyone in Orthodoxy.  We have to consider the possibility that the alternative is one in which, let’s say, 49% of RCA members adopt the policy of the Chief Rabbinate and view every past and present conversion as presumptively invalid.

In other words: given that we can’t actually impose authority, reach genuine consensus, or achieve universal mutual recognition, would complete anarchy be better or worse than what happens now?

3) Yeshivat Chovevei Torah released a responsum by Rabbi Ysoscher Katz permitting women to lead selichot services (or, more technically, permitting groups coming together for selichot to designate themselves as ensembles of individuals rather than as congregations).

The responsum was released at a time that gave halakhic authorities no opportunity to consider its arguments, let alone a chance for public consideration of its merits, and yet seemed intended to generate immediate practice.  Rabbi Katz and YCT acknowledged that YCT Rosh Yeshiva Rabbi Dov Linzer had previously issued a responsum with a different practical conclusion.

When creative arguments are proposed for new practices that are clearly both halakhically and sociologically controversial, halakhically serious leaders and congregations should engage in serious deliberation before acting.    I hope that this has now been the case regarding women leading selichot in all congregations and communities that aspire to halakhic seriousness, including partnership minyanim.

Let’s suppose that the overwhelming majority of RCA members conclude that Rabbi Katz’s responsum is totally wrong.  Would it be legitimate for them to pass an enforceable resolution declaring that rabbis must not permit women to lead selichot?  What can an Orthodox halakhist, or an Orthodox organization, legitimately say about a halakhic decision made by an acknowledged colleague that does not leave their lay audience saying “these and those are the words of the living G-d”, and we can act as we please?  (If the answer is nothing, the only recourse left Is delegitimating the author of the decision, i.e. denying collegiality.)  Under what circumstances should individual halakhists be bound by majority decisions, especially majorities of lesser scholars?  Is there a difference between majorities and overwhelming majorities?

Bottom line: We need a much deeper and more sophisticated conversation about rabbinic and halakhic authority.  We need to recognize that granting authority always involves agreeing to follow rulings we disagree with, and that denying authority always involves letting people do things we disagree with.  We need to develop ways of denying the l’maaseh legitimacy of a psak without denying the Orthodoxy or learning of the posek.  We need to acknowledge that halakhah legitimately has its own politics, and that if we persist in shallow or scorched-earth tactics, Orthodox society will soon resemble the US Congress or worse.

Bikkurim and Gratitude

This week’s alumni Dvar Torah is by Leora Balinksy

The mitzvah of Bikkurim found in Parshat Ki Tavo contains rich symbolism that highlights the importance of gratitude to God. I would like to share the ideas of three thinkers who adorn this message with their connections and explanations.

The Sfas Emes  (Ki Tavo, 5634) points out the juxtaposition of Ki Tavo with Parshat Zachor, wherein Bnei Yisrael are commanded to eradicate the name of Amalek.. In this week’s parsha, the fruits that must be brought as an offering are referred to as “Reishit Kol Pri Ha’adama” (Dev. 26:3). Similarly, Amalek is referred to elsewhere as “Reishit Goyim” (Bamidbar 24:20).

Amalek is conceived of as the spiritual, ideological enemy of Bnei Yisrael, who do not submit to God’s will.  The Sfas Emes explains that the name of God cannot be full until the name of Amalek is erased, because by seeing themselves as the first and most supreme, they deny the supremacy of Hashem. The mitzvah of Bikkurim showcases that Bnei Yisrael are not meant to share this trait. Through Bikkurim, we are meant to recognize the true First- God- and submit to Him.

Martin Buber, in his article “Bikkurim” (quoted by Rav Elchanan Samet) beautifully addresses this point:

“The essence of acknowledging Divine sovereignty lies in man’s gratitude to the Creator as the source of all the good, and his appreciation that man himself is, in no way, responsible for all that the might of his own hand has accomplished. Failure to realize this implies repudiation of the yoke and fear of heaven and all the evil consequences that flow therefrom. This is indeed the subject of the warnings contained in Moses’s address to the people in Deuteronomy. They would forget God’s bounty and imagine that they were the authors of all the benefits they were enjoying the in Promised Land. There were therefore bidden to perform a rite that would act as a constant reminder that the “earth is the Lord’s and the fullness thereof”, that everything as a gift bestowed by Him and He was responsible for all their prosperity, the bringing of the first fruits. Indeed, all such offerings constituted acknowledgement of Divine overlordship.

Similarly, the Akeidat Yitzchak (citied by Nechama Leibowitz in her writings on Ki Tavo) connects this message of gratitude to the Psukim that must be uttered upon giving the Bikkurim.

“This ‘bringing’ of the bikkurim and that ‘bringing’ to the land are included together in the prayer with a covert parallel (9-10): ‘And He BROUGHT us to this place… and now I HAVE BROUGHT the first of the fruits of the land…’ What is expressed here is the mutual interaction between God and His nation. ‘I was brought by Him to this fertile land,’ says the farmer, ‘and now I am bringing Him some of its fruit.’ This conveys more than just gratitude. The entire land is given to the nation by God’s hand; the produce which the man who is brought there brings from the ground is likewise from God’s blessing and His actions; one cannot GIVE Him something of it, but one may BRING Him something – the choicest of the first fruits as a symbol and as sanctification.”

The idea of Hakarat Hatov, of gratitude, is simple and often spoken about, but too often not realized. May we merit to infuse the messages of Bikkurim laid out by the above thinkers into all facets of our lives.

Leora Balinksy (SBM 2016) is a sophomore at Barnard College.

Does G-d Gloat?

by R’ Aryeh Klapper

My friend and colleague Rabbi Carl Perkins recently passed on to me a query from a bar mitzvah student: How can the Torah portray G-d as rejoicing at the destruction of Jewry, even when we are wicked?

Devarim 28:63 in fact emphasizes that G-d’s happiness when destroying them is parallel to His happiness when doing well by them.

וְ֠הָיָה כַּאֲשֶׁר־שָׂ֨שׂ יְקֹוָ֜ק עֲלֵיכֶ֗ם לְהֵיטִ֣יב אֶתְכֶם֘ וּלְהַרְבּ֣וֹת אֶתְכֶם֒

כֵּ֣ן יָשִׂ֤ישׂ יְקֹוָק֙ עֲלֵיכֶ֔ם לְהַאֲבִ֥יד אֶתְכֶ֖ם וּלְהַשְׁמִ֣יד אֶתְכֶ֑ם

It will be that just as Hashem your G-d sas (rejoiced) to benefact you and to multiply you

so Hashem yasis to destroy and to shatter you

My immediate answer was a reference to Megillah 10b.  The Talmud there cites our verse and challenges: Does The Holy Blessed One really rejoice at the downfall of the wicked?  It concludes:

:אמר רבי אלעזר

.הוא אינו שש, אבל אחרים משיש

:ודיקא נמי

.דכתיב “כן ישיש” ולא כתיב ישוש.  שמע מינה

Said Rabbi El’azar:

He does not rejoice but He does cause others to rejoice.

A close reading (of the verse) supports this:

as Scripture writes yasis rather than yasus.

Treat this argument as conclusive.

Rabbi El’azar’s argument is that yasis is a transitive verb, meaning “He will make X rejoice”.  If the Torah meant that G-d would rejoice, it would have used the intransitive yasus.  By using yasis, it indicates that G-d will turn us over to others who will rejoice in our destruction, but G-d will not share in their joy.

The Talmud does not claim that Rabbi El’azar arrived at this reading as the result of the grammatical argument.  Quite the opposite: It presents his reading as a direct response to the theological challenge raised by the bar mitzvah boy.  The grammatical argument is a happy post facto discovery.  The Torah couldn’t mean that!  And look – it turns out that it really doesn’t.

Rabbi Perkins didn’t buy the “really doesn’t”.  What I had shown, he contended, is that the Rabbis shared his congregant’s moral outrage at the Torah’s portrayal of a gloating G-d.  Bully for the Rabbis!  But how could I explain the fact that the Torah in fact portrayed G-d that way?  How could I justify the pshat of the verse?

Now in one sense this question did not bother me very much.  Despite powerful modern critiques such as Heschel’s G-d in Search of Man and Wyschogrod’s Body of Faith, I remain strongly sympathetic to Maimonides’ rejection of anthropopathism (the attribution of emotion to G—d), and prefer to say “k’b’yakhol” (=as if it were possible) whenever speaking of G-d in such terms.  For a Maimonidean, the statement that G-d will rejoice in destruction means only that He will act in a manner that, were a human being to act that way, we would interpret as the outward expression of inward joy in destruction.  (Rabbi Perkins called my attention to Laws of the Foundations of Torah 1:12, in which Rambam cites the first half of our verse as an example of this.)

The Rabbis too were fully aware that the Torah presents G-d as hating as well as loving, as killing as well as burying.  They taught us to imitate His mercy rather than His vengeance, even though the Torah describes him as both rachum and nokeim.  In other words, they seem to have understood at least the negative emotions in Maimonidean terms.

But they also recognized that this approach becomes implausible when needed too often.  At some point it becomes very hard for a person of integrity to describe G-d as awesome or merciful, if all the available evidence points to an enfeebled or harsh Divinity.  So it should not be a matter of indifference if the Torah here depicts G-d as gloating amidst our wreckage.

Does the Torah really depict G-d that way?  Or, put differently:  Is yasis here an exclusively transitive verb?

Rabbi El’azar’s explanation is broadly accepted in our tradition, even by a pashtan such as R. Yosef Bekhor Shor, who begins by citing the grammatical rather than the theological argument.  So perhaps that argument is sufficient.

The problem is that yasis appears four other times in Tanakh, and the feminine version tasis appears once, while neither yasus nor tasus ever appears.  In at least a few of those other cases, the intransitive reading is considerably more plausible than the transitive, and the reverse is never true.  So it seems overwhelmingly likely that yasis can be read as intransitive, and Rabbi El’azar’s argument simply fails.

Ibn Ezra, so far as I can tell alone in the Tradition, tries a different approach.  The Torah tells us that G-d is as joyous at our destruction as at our good – why need that imply that He is joyous at all?   Rather, say that the Torah comes to tell us here that our actions cannot really affect G-d and cause Him damage or grief – what we do is fundamentally a matter of indifference to Him, and he experiences the same (absence of grief or) joy either way.

This seems like Maimonides on steroids, but I think it is a mistake.  The whole point of Maimonides’ approach is that we don’t need to deny that the text “means” that G-d has legs or nostrils or emotions.  Of course the text “means” that – but who says that G-d intended us to believe what it literally “means”?  G-d provided philosophers with a key, in the form of human reason, that enables us to distinguish the metaphoric from the literally true.

I do not share Maimonides’ faith in reason and philosophers.  But if every Jewish interpreter in history agreed that this verse cannot mean that G-d actually gloats (even while disagreeing amongst themselves as to what it does mean), then I think is it reasonable for us to hold that it does not mean that G-d actually gloats.

Now the Rabbis famously say that “A verse does not leave its peshat”.  But the point of that statement is that a metaphor works only if it is built off a literal truth.  The Sword of Torah is an honor to wear only if military swords are part of formal dress uniforms; if wearing a physical sword were shameful, King Solomon would not use that image to represent Torah scholars on parade.  Similarly, we can describe G-d as gloating because human beings gloat; but that does not require G-d to actually gloat, any more than Solomon required his Torah scholars to wear dress swords.

Let me sharpen the argument.

Suppose that ‘Andrew’ makes a literal statement, for example “Mars is bright tonight”.  Suppose further that Andrew is a believer in astrology, so that for him the statement “Mars is bright tonight” carries the implication “There will be war tonight”.

‘Bill’ and ‘Chet’, who do not believe in astrology, were present when Andrew made that statement.  The next morning, Bill asks Chet whether war is likely. Chet responds: “Mars is bright tonight”.

Is the “pshat” of Chet’s statement “a red planet is highly visible”?  Clearly he does not “mean” that.  Yet his sentence makes sense only because Andrew did mean that, and he is speaking in the cultural context created by Andrew’s statement.

My point is that we can never know from internal evidence whether a statement about G-d in the Torah was made by Andrew, or rather by Chet.

One final note: For Maimonides, the story should be told differently.  Bill believes in astrology, but Chet does not.  So when Chet answers,

1)    Bill takes the answer literally, and

2)    Chet knows that Bill will take the answer literally, but

3)    Chet himself does not mean it literally.

Possibly Chet hopes that next time Bill will ask him the question in broad daylight, and receive the same answer.  This will force Bill to recognize that Chet never meant it literally, and perhaps to reconsider his belief in astrology.  So too, Maimonides may hope that Devarim 28:63’s description of a gloating G-d will force readers to reconsider their belief that G-d has emotions.

Shabbat shalom!

Juxtaposing Marriage and Divorce

This week’s alumni Dvar Torah is by Yoni Zolty

According to many monei hamitzvot (commentators who count the number of mitzvot) Parshat Ki Tetzeh contains the most mitzvot in the Torah (see for instance Sefer HaChinuch). It should be unsurprising then that the bulk of seder nashim can be found enumerated within the parsha (22:13-23:4, 24:1-6, 25:5-10). Yet, the Torah’s description of the mitzvah of kidushin (marriage) is surprisingly terse. The Torah in the beginning of chapter 24 describes a scenario in which a man has married and now wishes to divorce his wife:

:כי יקח איש אשה ובעלה והיה אם לא תמצא חן בעיניו כי מצא בה ערות דבר וכתב לה ספר כריתת ונתן בידה ושלחה מביתו

When a man takes a wife, and marries her, if she finds no favor in his eyes, because he has found some unseemly thing in her, that he writes her a bill of divorcement, and gives it in her hand, and sends her out of his house.

The Torah carefully details the proper procedure for divorce and in the next two subsequent pesukim proceeds to describe the prohibition of machazir gerushato– remarrying one’s ex-wife. The laws of divorce are richly enumerated: The Torah specifies the motivations for divorce as well as the procedure of writing a writ of divorce lishma (in her name), placing it in her hand and sending her out of the home. The details of a get, further unpacked in mesechet gitin, are precisely stated in the pasuk.

Chazal understand that the first half of the pasuk describes the process of kidushin and nisuin (marriage). However, in strong contrast to the elaborate detail of the divorce process, kidushin is sparely described. The gemara (kidushin 2a, 9a) learns out from the words “yikach” and “uba’ala” that a woman can be betrothed through kesef and biah (money and intercourse). These derivations are not obvious though. The gemara jumps through multiple hurdles to arrive at these conclusions and suggests that there might be another separate source for kidushei kesef (3a). Likewise, the yerushalmi (1:1) proposes that perhaps betrothals would require both kesef and biah, and that each method could not be performed independently. The question then is why the Torah did not describe the details of kidushin as elaborately as it did by geirushin?

Furthermore, the very juxtaposition of marriage and divorce is itself jarring. When introducing the institution of marriage, one would not have expected to discuss divorce. Divorce is an unfortunate and undesired termination of marriage, and while it is sometimes a necessary and important institution, why must it be mentioned when introducing marriage? Why should divorce be referenced and muddy the romantic institution of marriage? It seems to be out of place!

Rav Michael Rosensweig suggests that the Torah intentionally discussed divorce while introducing marriage in order to denote the seriousness and commitment of marriage. Marriage is considered a legally binding contract between two individuals and like many contractual agreements, can in many ways be best understood by studying how it can be broken. An agreement which can easily be dissolved is not much of an agreement. The relative irreversibility of an agreement demonstrates its seriousness and durability. Thus, while a marriage contract can be broken, the Torah stipulates a very precise, legal, formal and intricate process. It is not a simple agreement which can be easily discarded or broken, but a serious commitment. The Torah thus juxtaposes marriage with divorce to demonstrate the strength of marriage bonds and ironically focuses on the details of divorce instead of those of the creation of marriage to emphasize this point.

The Rambam in the beginning of hilchot ishut explains that before matan Torah if a man wanted to marry he would simply begin living with a woman and she would be considered his wife. A relationship was much less binding and lacked any formal legal elements to it. Divorce was much more informal—the Yerushalmi (Kidushin 1:1) suggests that non-Jews (who retain the same rules of marriage as pre-Matan Torah) may simply “walk-out” of a relationship as they please. The Rambam explains, then, that the chidush (novelty) of the mitzvah of kidushin was to add a formal legalistic aspect to marriage, reinforcing the commitment of marriage and its contractual element. Kidushin necessitates the creation of a legal mechanism for divorce—what halacha terms a get, and is therefore intentionally linked together in the Torah’s presentation of these laws.

Yoni Zolty (SBM 2016) is a junior at Columbia University.

Halakhic Laboratory #1: Crossdressing

by Rabbi Aryeh Klapper

All halakhic arguments made herein are purely theoretical and may not be relied on for practice even in emergency circumstances without express authorization from a qualified Orthodox halakhic decisor.  Any reproduction, retransmission, or other account of this article must include this disclaimer.

 

In a genuinely communist society, such as the classic kibbutz, is the mitzvah of tzedakah totally fulfilled, or totally eliminated?

I ask this question to yeshiva students often.  They quickly realize that it depends on whether the purpose of tzedakah(charity) is to inculcate the virtue of generosity – in which case communism is the worst-case scenario – or rather to ameliorate the consequences of income inequality – in which case communism is the ideal.

Thinking more deeply, we can recognize that this question instantiates a broader intellectual strategy.  Tzedakah is a mitzvah that practically ameliorates a difference – what happens if we instead eliminate that difference?  What other mitzvot that have the effect of ameliorating differences?

I first realized the potential breadth of this strategy a few years ago when the Summer Beit Midrash, with the generous support of the Ruderman Foundation, studied halakhah in relation to issues of disability.  One guest lecturer, Professor Michael Stein, argued persuasively that the use of wheels rather than legs was a socially constructed disability – in one-level open environments, such as ranch houses, wheels may be faster and more efficient than feet.  He suggested that society should where possible seek not to accommodate the disabled, but rather to reconfigure itself so that there was no disability.

Rabbi Benny Lau makes a similar argument in a halakhic context.  Mishnah Megillah 24b states that a Kohen with blemishes on his hands may not go up to give the Priestly Blessing.  Rabbi Yehudah extends that to kohanim with dyed hands.  The rationale for both is that “the people will stare at him”.  The Talmud extends the ban to other blemishes such as a blind eye.  But it then applies the rationale to create a leniency – physical disqualifications that result from the possibility of distraction don’t apply once the community is “used to them”.  Rabbi Lau argues that the community has a moral obligation to become used to them.  (This argument does not apply to service in the Temple, where the disqualification is not based on the possibility of audience distraction.)

What about mitzvot that depend on difference, but apparently with the opposite intent, to maintain and reinforce that difference?  What happens to those mitzvot when we eliminate difference completely?  Should we see this as a reason not to eliminate the difference?

For example: Halakhah contains many rules intended to reinforce the difference between Jews and nonJews.  What if all nonJews convert?  Or: Halakhah has laws separating between milk and meat.  What if our society becomes wholly vegetarian, or if we develop meat that is not halakhically fleishig and milk that is not halakhically dairy?  Or to take a more immediately relevant issue: With regard to gender, R. Yoel bin Nun has reportedly suggested in the halakhic laboratory that contemporary biological women should be considered men for many halakhic purposes, such as obligation in time-bound commandments.

Which brings us to the prohibitions against crossdressing found in this week’s parshah (Devarim 22:5).

לֹא־יִהְיֶ֤ה כְלִי־גֶ֙בֶר֙ עַל־אִשָּׁ֔ה

וְלֹא־יִלְבַּ֥שׁ גֶּ֖בֶר שִׂמְלַ֣ת אִשָּׁ֑ה

כִּ֧י תוֹעֲבַ֛ת ה’ אֱ-לֹהֶ֖יךָ כָּל־עֹ֥שֵׂה אֵֽלֶּה

The accessory of a man must not be on a woman

and a man must not wear the garment of a woman

because anyone who does these is the toeivah of Hashem your G-d.

Rashi comments that these prohibitions are bounded by their rationale:

– “לא יהיה כלי גבר על אשה”

:שתהא דומה לאיש, כדי שתלך בין האנשים, שאין זו אלא לשם ניאוף

  – “ולא ילבש גבר שמלת אשה”

.לילך ולישב בין הנשים

:דבר אחר: שלא ישיר שער הערוה ושער של בית השחי

כי תועבת” – לא אסרה תורה אלא לבוש המביא לידי תועבה”

“The accessory of a man must not be on a woman” –

so that she appears like a man, in order to go among the men, as this is only for the sake of adultery;

“and a man must not wear the garment of a woman” – to go sit among the women;

Alternatively: That he must not remove his genital hair and his underarm hair;

“because … the toeivah” –

The Torah prohibited only clothing that leads to toeivah.

RAMO OC 696:8 controversially takes that logic one step further.

,ומה שנהגו ללבוש פרצופים בפורים

  –וגבר לובש שמלת אשה ואשה כלי גבר

אין איסור בדבר

;מאחר שאין מכוונין אלא לשמחה בעלמא

 . וכן בלבישת כלאים דרבנן

,וי”א דאסור

אבל המנהג כסברא הראשונה

The custom which has developed of wearing masks on Purim,

and of a man wearing a woman’s garment, and a woman the accessories of a man –

there is nothing prohibited in this matter

since they intend only mere high spirits;

the same is true regarding the wearing of Rabbinically prohibited Shatnez.

Some say it is forbidden,

But the custom accords with the first position.

RAMO seems to view at least the Biblical prohibition subjectively rather than objectively – crossdressing is only Biblically forbidden when the intent is to engage in licentiousness.  On this view, perhaps crossdressing would be Biblically permitted when done to satisfy one’s own psychological needs, and then permitted even Rabbinically in extreme circumstances.

Even if that argument goes too far to be sustainable even in emergencies, it suggests an array of supplemental practical strategies.  What if the clothing is cross-, but we use other means to ensure that it can’t lead to the sort of promiscuity that motivates the Torah’s ban? For example, what if a biological female cross-dressed as a man but wore a large sign explaining what she was doing?  Or: what if crossdressing men adopted a clear symbol to identify themselves, such as a special color of earring?  Most contemporary kashrut agencies deem such symbols insufficient to permit the sale of dairy bread, but the Boston tradition is that the Rav thought that labelling the package was sufficient.

Another test case: What should androgynes (people with both male and female genitals) wear?  A brief reception history of Mishnah Bikkurim Chapter 4 suggests that the halakhah on this issue has not been fully developed yet.  The standard printed edition (also RAMO of Pano) says that an androgyne מתעטף ומסתפר כאנשים = “may/must wrap the head and get a haircut in the manner of men”.  Rabbi Shimshon of Sanz, however, has אינו נעטף ומספר כאנשים, which he interprets as meaning that “like men, neither wraps the head nor gets a haircut”.  Halakhot Gedolot has ומתעטף באבלות ואינו מספר = “wraps the head during mourning and/but does not get a haircut”.  Rambam )Hilkhot Avodah Zarah 12: 10) has  אינו עוטף כאשה ולא מגלח ראשו כאיש= “may/must wrap like a woman but may/must not shave the head like a man”.  I leave it to you to figure out where the commas belong in Rambam.

Despite this confusion, I have not yet found anyone suggesting that androgynes should dress, accessorize, and hairstyle in a uniquely identifying fashion.  This may seem surprising because the House of Rav states in the name of Rav on Yebamot 83a that the halakhah follows R. Yose’s position that an androgyne is neither male nor female, but rather its own kind.  (The same position is found at the end of the printed Mishnah Bikkurim Chapter 4 in the name of Rabbi Meir).  However, the formulations of R. Yose’s position bears careful attention.  Yebamot 83a has

,אנדרוגינוס בריה בפני עצמה הוא

ולא הכריעו בו חכמים אם זכר אם נקבה

The androgyne is his/her own kind

and the Sages did not determine him/her to be either male or female.

Mishnah Bikkurim has:

,אנדרוגינוס בריה בפני עצמה הוא

ולא יכלו חכמים להכריע עליו אם הוא איש או אשה

The androgyne is his/her own kind

and the Sages were unable to determine whether s/he was male or female.

The version in Yebamot leaves open the possibility that the Sages left androgyne as a third category.  The version in Bikkurim, however, makes clear that the goal of the Sages was to classify the androgyne legally as either male or female, and any unique status s/he has is an accident of doubt rather than a positive determination.  Most likely, then, the version in Yebamot should also be read that way.

If that is the case, the Sages considered and rejected the possibility of breaking the sartorial gender binary in what is perhaps the most likely and obvious case.  This would make it much harder for contemporary halakhists to permit breaking it in any case.

We must also consider the apparent absence of any halakhic objection to unisex clothing.  This may suggest that the prohibition is not about the need for clothing to mark sex, but rather about the need for clothing not to contradict sex.  However, I don’t know that halakhah has ever confronted the possibility of a society in which all external markers are unisex.

The purpose of this experimental Halakhic Laboratory Report is to test the possibility of public creative halakhic conversation that does not lead to the practical legitimization of options that lack the backing of significant halakhic authority.  Please be a solvent rather than a precipitant.