Is Isolation a Bug or a Feature?

This week’s alumni Dvar Torah is by Aliza Libman Baronofsky

The Torah tells us that humans are social creatures – we are not meant to be permanently and completely alone.

וַיֹּ֙אמֶר֙ ה’ אֱלֹהִ֔ים לֹא־ט֛וֹב הֱי֥וֹת הָֽאָדָ֖ם לְבַדּ֑וֹ אֶֽעֱשֶׂהּ־לּ֥וֹ עֵ֖זֶר כְּנֶגְדּֽוֹ׃

The LORD God said, “It is not good for man to be alone; I will make a fitting helper for him.” (Genesis 2:18)

Is Bil’am alone?

We know little about Bil’am and his life before Balak dropped in, nor about the nation and place he came from. He seems an isolated character appearing in an isolated story (although Chazal read him into other stories.) 

It seems that Bil’am generally gets his messages from God when asleep (see 22:9-12), and thus we can infer that he communicates with God without an audience, like most prophets.

But he is not always alone. When Bil’am agrees (after multiple requests) to go to Balak, he is accompanied by his own young assistants (22:22) as well as the messengers from Moav. In the famous dramatic scene of Bil’am’s talking donkey, it is likely that Bil’am’s main motivation is not be embarrassed in front of his notable entourage. The donkey’s refusal to cooperate makes Bil’am look weak, as Rashi follows Midrash Tanchuma in noticing.

 וַיֹּ֤אמֶר בִּלְעָם֙ לָֽאָת֔וֹן 

כִּ֥י הִתְעַלַּ֖לְתְּ בִּ֑י 

ל֤וּ יֶשׁ־חֶ֙רֶב֙ בְּיָדִ֔י כִּ֥י עַתָּ֖ה הֲרַגְתִּֽיךְ׃

Balaam said to the ass, 

“You have made a mockery of me! 

If I had a sword with me, I’d kill you.”

Rashi: 

לו יש חרב בידי. 

גְּנוּת גְּדוֹלָה הָיָה לוֹ דָבָר זֶה בְּעֵינֵי הַשָּׂרִים — 

זֶה הוֹלֵךְ לַהֲרֹג אֻמָּה שְׁלֵמָה בְּפִיו וּלְאָתוֹן זוֹ צָרִיךְ כְּלֵי זַיִן:

‘This utterance was a great shame for him in the sight of the officers: 

this man was going for the purpose of slaying a whole nation by his mouth, and for this ass he required a weapon! 

(cf. Midrash Tanchuma, Balak 9)

 

Let’s imagine the scene. If the officers and servants could see the talking donkey, their focus would be on it, not on Bil’am. If, on the other hand, as the pasuk says “וַיִּפְתַּ֥ח ה’ אֶת־פִּ֣י הָאָת֑וֹן וַתֹּ֤אמֶר לְבִלְעָם֙” – let’s imagine that when G-d opened the donkey’s mouth, it was only לְבִלְעָם֙ – to Bil’am that the mouth was opened. This reading helps us understand how humiliated Bil’am must have been, so unable to control his donkey that he was reduced to raving about killing it. 

 

So Bil’am, who speaks to God privately, arrives in Moav having been humiliated publicly. He would naturally seek public glory to regain his importance and fame. When he finally meets Balak, he is treated to a grand display of sacrifices and feasting. In verse 23:6, Bil’am makes his first attempt at cursing the people – and does so in front of all of the chieftains of Moav (23:6). But first, he does something interesting: Verse 23:6 tells us

וַיֹּ֨אמֶר בִּלְעָ֜ם לְבָלָ֗ק 

הִתְיַצֵּב֮ עַל־עֹלָתֶךָ֒ וְאֵֽלְכָ֗ה 

אוּלַ֞י יִקָּרֵ֤ה ה֙ לִקְרָאתִ֔י וּדְבַ֥ר מַה־יַּרְאֵ֖נִי וְהִגַּ֣דְתִּי לָ֑ךְ 

וַיֵּ֖לֶךְ שֶֽׁפִי׃

Where does Bil’am go? According to Rashi, Onkelos and others, he goes off alone. The implication: That Bil’am must be solitary to gain inspiration to curse B’nei Yisrael.  

 

(The fact that mainstream translations of the text render “שֶֽׁפִי” as alone should not obscure the fact that this word is very difficult to translate. Ralbag and Tur Ha’Aroch both say it means ‘a high place’ – that his aloneness, if real, was incidental to the fact that he needed to be in a high place (possibly to see B’nei Yisrael) and curse them. Others say it means he was lame. Rabbeinu Bachya, who says שֶֽׁפִי is a hapax legomenon – a word without a peer in the Bible – calls this interpretation as recorded in the Gemara in Sotah 10 midrashic, at which Rashbam might have taken umbrage. After all, there is a verse in Iyov (33:21) where the root is used that way.)

 

Nonetheless, it is Rashi’s interpretation that has taken root as the primary one. Fundamentally, Bil’am must be alone to do the thing that makes him special.

 

This reading sets Bil’am up in contrast to B’nei Yisrael. In his first attempted curse of the people, he says (23:9):

 

כִּֽי־מֵרֹ֤אשׁ צֻרִים֙ אֶרְאֶ֔נּוּ וּמִגְּבָע֖וֹת אֲשׁוּרֶ֑נּוּ 

הֶן־עָם֙ לְבָדָ֣ד יִשְׁכֹּ֔ן וּבַגּוֹיִ֖ם לֹ֥א יִתְחַשָּֽׁב׃

As I see them from the mountain tops, gaze on them from the heights, 

There is a people that dwells apart, Not reckoned among the nations 

Though the Hebrew shoresh b.d.d is distinct from the ambiguous “שֶֽׁפִי”, it strikes us that these two images are just 6 verse apart. Bil’am goes off on his own to curse a people who are set apart – who are alone together. 

 

It is our general understanding that these words Bil’am said are blessings though he intended them to be curses. As a result, the traditional commentaries think “הֶן־עָם֙ לְבָדָ֣ד יִשְׁכֹּ֔ן” must be a great compliment of sorts. Rashi uses the word “זָכוּ ” – merited – in his interpretation, telling us that it is a privilege to dwell apart. Ramban appears to give the term a dual meaning, saying that the Jews are united with each other but distinct from other nations. Other nations must band together for strength, but the Jewish people do not need to do so.

 

This text perfectly encapsulates the challenge of living in the modern era. Many of us were taught these values in grade school: It is Bil’am’s lack of modesty – his desire to please the Moabite dignitaries and to be feted – as well as his ambition that steers him astray. God is found in solitary places, the text seems to be saying. In contrast, the Jews are blessed when they dwell alone. (After all, at the end of the parsha, an interaction with Moav does lead to ruin.) In this reading, isolation is a feature of Jewish life. 

 

Many modern Orthodox Jews experience some cognitive dissonance when reflecting on these values. We live in the larger society, attend secular colleges, and teach our children to assert themselves and be ambitious. We no longer see isolationism as a value and we know that both the Jewish nation and the country we inhabit need allies to protect their national interests and better the lives of their citizens. In a globalized world, isolation is an impediment to be overcome. 

 

Rabbi Jonathan Sacks, in his book Future Tense, writes that Bil’am worded his prophecies carefully – since he could not curse the people explicitly, he spoke in a manner that was ambiguous enough that each blessing had the potential to become a curse. Rabbi Sacks notes that the book of Eicha also uses the Hebrew root b.d.d to describe the desolation of Jerusalem. 

 

There are certainly moments that call for withdrawal and isolation. There are tasks that are better accomplished alone, and many human beings are introverts who find periods spent alone to be much-needed preparation for the social interaction that is the fabric of our society. The challenge in our era is to thrive spiritually in a globalized world of divergent views and values. We can appreciate the unintended blessings Bil’am gave us without imagining them to be a commandment from God to isolate ourselves in the desert just as we were when Bil’am first laid eyes on us.

 

Aliza Libman Baronofsky (SBM ’06) lives in Rockville, MD and teaches at the Charles E. Smith Jewish Day School.

 

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Brisker CRISPER: The Hezekian Archetype for Halakhic Discussions of Embryonic Editing (Week Three Summary of SBM 2019)

by Gershon Klapper and Doniel Weinreich, SBM Fellows

“In those days Hezekiah sickened unto death; the prophet Isaiah son-of-Amotz came to him and said, ‘So saith the Lord: Instruct your household that you, moribund, will not survive.’”(2 Kings 20; Isaiah 38)

But Hezekiah survives, after pleading his case to G-d, and sires children. Why did G-d initially send Isaiah to declare his death a fait accompli, and how did Hezekiah change His mind? 

On Brachos 10a, Rav Hamnuna offers a reconstruction of the lifesaving dialogue. Hezekiah was reluctant to procreate on account of a spiritual vision which foretold unworthy progeny. But Isaiah said to him, “What are the kavshei d’-rachmana (secrets of the Merciful) to you? What you have been obligated, do, and what He likes, He will do.” Hezekiah agrees to procreate, asking Isaiah for his daughter’s hand, and G-d then accepts his prayer.

Abravanel explains the redundancy of Isaiah’s initial declaration “you, moribund, will not survive” to mean that “you will die, and your line will cease.” G-d’s plan for history required the Davidic line to continue, even though segments of the line such as Hezekiah’s son Menasheh would be wicked. “Although Menashe was wicked and his sons like him, behold: Josiah came from him, and this is the good fruit which comes eventually from evil branches” (Abravanel, Isaiah 38).

According to this interpretation, what are the kavshei d’-rachmana, and why was Hezekiah enjoined from considering them? Abravanel’s analysis suggests that the ban on considering kavshei d’rachmana as a factor in procreation applies only to kings, who need to ensure an heir to the throne. 

Rabbi Moshe Alshikh interprets kavshei d’-rachmana in a much more expansive, maximalist fashion. He claims that no one, royal or commoner, should ever dispute G-d’s command in any area based on a personal moral calculus (Alshikh, Genesis 26). Rabbi Yaakov Kaminetsky agrees with the expansion to all people, but seems to reject Alshikh’s assertion that calculations never limit obligations. He claims that Hezekiah was wrong morally only because he was wrong factually — he didn’t know that Menasheh would repent, or that Josiah would descend from him. But in principle, Hezekiah was correct that it would be better to not procreate than to have unmitigatedly evil descendants (Emes L’-Yaakov, B’rachos 10a). Possibly Abravanel agrees.

Rabbi Menachem Meiri held a middle ground. He apparently limits the ban on considering kavshei derachmana to issues of procreation, but agrees that no calculation based on them can affect obligation. His creative contribution is to extend kavshei derachmana from the supernatural to the natural: “A man must not curtail the commandment to procreate because of any sort of suspicion that he or his partner cannot produce proper progeny, whether on the basis of tradition, reason, or experiment, because a man has no business with the secrets of G-d, at all, as it says, ‘why are you involved in these kavshei d’-rachmana?’” (Beis Ha-B’chira, B’rachos 10a). Netziv contends that “even the decision to form a couple is included within kavshei d’-rachmana, as it has been since the antediluvian start” (Ha-Amek Davar, Genesis 24:51).

These differing understandings of kavshei d’rachmana have direct implications for modern p’sak. For example, Rabbi Menashe Klein ruled that genetic testing for Tay-Sachs through Dor Yesharim was prohibited because it might prevent some heaven-ordained couples from procreating: “And this is an extraordinarily clear matter, because even if you see through prophecy that you will have unworthy progeny, you are within the kavshei d’-rachmana” (Shu”t Mishneh Halakhos, 12:265).

A responsa by Rabbi Yitzchok Zilberstein answers a question from a man who wished to abstain from procreation because he discovered that his wife had a family history of schizophrenia, creating an increased risk of his children inheriting the disease. The man must procreate, ruled Rabbi Zilberstein, because “he has not fulfilled the commandment of p’ru u-r’vu and he is not at liberty to abstain lest his son be diseased, as per B’rachos 10a” (Chashuskei Chemed, B’rachos 10a, s.v. b’-hadei kavshei). Rabbi Zilberstein rules similarly in cases where there is a family history of Marfan’s Syndrome or of irreligiosity, and where there is a high risk of abduction by the Catholic Church. In all of these, he says, to interfere with reproduction would be to risk atrapalliation/unraveling of G-d’s plan. 

Can any pragmatic concerns supersede the command to procreate? A beraita on Bava Basra 60b relates that at some point in history, when the Jews were being oppressed and circumcision was forbidden, it would have been proper to decree for Jews to not marry, or procreate, at all. No decree was made, however, because most Jews would not follow such a command. We don’t issue a decree unless the majority of the populace can uphold it, and “it is better for them to be accidental sinners rather than purposeful sinners.”

The Tosafists ask: How could it be proper to make a decree against fulfilling the commandment to procreate? They suggest that the proposed decree would have only applied to people who had already fulfilled the minimal requirement of having one male and one female child (ibid. Tos’fos s.v. din hu). Rabbi Avraham Chaim Schor, alternatively, answers that the rabbis in fact have the power to require us to passively violate commandments, such as by not blowing shofar when Rosh Ha-Shana falls out on Shabbos (Toras Chaim, Bava Basra 60b).

Meiri and Sforno (to Bereshot 35:11) reject these answers. They instead read Bava Basra 60b as contradicting the story of Hezekiah on B’rachos 10a. If it was wrong for Hezekiah to reason himself out of the command to procreate, they argue, it would also be wrong for Jews living under oppression to reach such a conclusion.

A third passage concerning nonfulfillment of procreation is found on Sotah 12a. When Pharaoh ordered his people to throw all male Jewish babies into the Nile, Amram divorced his wife, and the Jewish masses followed suit. Amram’s daughter Miriam protested that his action was worse than Pharaoh’s; Pharaoh’s decree affected only the male children, but Amram’s actions affected both male and female children. Furthermore, Pharaoh’s decree only affected the children in this world, but Amram’s actions would affect them in this world and the world to come (because unborn children garner no merit). Convinced by his daughter’s objections, Amram returned to his wife and the masses followed.

Many achronim question how Amram could have entertained this idea in the first place. Doesn’t the story of Hezekiah teach that one ought not engage in teleological calculations commandments? The Marafsin Igra responds by citing a gemara in Yevamos which says that, if one’s children die without procreating, one has not fulfilled the commandment. Since Pharaoh had commanded his people to kill all male progeny, the next generation would not be able to procreate (endogenously), and so p’riah u-r’viah could not be fulfilled anyway. But the virtue or wickedness of progeny has no bearing on the fulfillment of the command. 

This summer, we are investigating precedents for halakhic perspectives on gene editing. Understandings of kavshei d’-rachmana which contend that G-d directly intends specific children to result from specific unions — can easily be understood to imply that it is not the role of mankind to interfere in such matters, e.g. by editing an embryo to avoid disease. This may result in psakim such as those we’ve cited above from Rabbi Klein and Rabbi Zilberstein.

The alternative, narrower understanding of Rabbi Kaminetsky provides more leeway to would-be permissive decisors. If Hezekiah was wrong only because his source of information was unreliable, it may be perfectly legitimate to use scientific information to make such decisions.

Similarly, different treatments of the gemara in Bava Basra lead to distinct halakhic conclusions. The simple read of the Talmud has been used for a millennium to allow infertile couples to remain. Tosafot’s position can lead to leniencies about contraception once p’ru ur’vu has been fulfilled. Rabbi Schor’s position might allow the use of IVF before the fulfillment of p’ru u’rvu, in extenuating circumstances such as high risk of disease, even for poskim who hold that IVF procreating does not fulfill the commandment.

The plain implication of the sugya in Sotah is that even a single generation of Jewish women, who will never be able to reproduce, is valuable, and that it is worthwhile to have children even when Pharaoh has decreed that they die in their infancy. In the case of the Jews in Egypt, G-d rescues them and they do not die out, neither the women without procreating nor all the men in infancy. It is no stretch to expand this case to our subject — if it is worth having children even if they are sure to die, and worth following the letter of p’ru u-r’vu even if it guarantees disaster, in the hope of heavenly intervention, how are we empowered to interfere with Jews’ embryos? Yet we can of course distinguish between cases where the choice is binary, procreate or not, and cases where there is a therapeutic option. 

Ultimately, as we move toward writing responsa, two core questions will be: Do we feel comfortable ascribing any sphere of knowledge about our material world exclusively to G-d? Could we come to terms with any halakhah that limits the use of reliable medical knowledge?

 

Creativity at the Cutting Edge of Halakhah: Week Two Summary of SBM 2019

by Sara Krishtul and Elyanna Saperstein, SBM Fellows

How does Jewish law respond to changes in scientific knowledge and technical capacity? One window into this issue is Shu”T Noda B’Yehudah 2:YD:210, written by the renowned eighteenth-century posek Rabbi Yechezkel Landau of Prague. Rabbi Landau’s ruling demonstrates the power and necessity of halakhic creativity in response to such changes, and also some of its risks and perhaps inevitable pitfalls.

R. Landau’s son-in-law R. Leib Fischels reported a disagreement between two rabbis in London – henceforth the matir=permitter, and the oseir=forbidder – whether to allow doctors to autopsy a man who died after surgery to remove a bladder or kidney stone, in the hope of developing safer, less invasive surgery for future patients. The case appears to pit the the concern of nivul u’vizayon hameit (=marring and disgrace of the corpse/deceased) against the obligation to save lives, pikuach nefesh.

The matir cites two precedents in which apparent nivul hamet is halakhically permitted. 

First, Tanakh reports without disapproval that Yaakov, Yosef, and the kings of Israel were embalmed. While one might claim that embalming is for the honor of the dead, and is therefore not considered nivul, the matir argues that the autopsy in our case is parallel, because the dead will be honored by bringing healing to other patients.

Second, Shut HaRashba cited by RAMO YD363:2 permits children to fulfill their father’s wish to be buried with his ancestors by exhuming him and pouring lime over his body to expedite its decomposition. 

The oseir cites a ruling by R. Akiva recorded in Gemara Bava Batra 155a prohibiting an autopsy. The proposed aim of the autopsy was to determine whether or not the deceased had reached puberty at the time of death; if he had not, this would retroactively invalidate his sale of his father’s property shortly before death. 

At face value, the oseir’s case – nivul of a cadaver in order to ascertain biological details of the deceased’s death – seems very similar to our topic of medical autopsy. However, the matir responds that the cases are not parallel at all. Rabbi Akiva teaches us that one cannot do nivul for financial gain, but why would that mean that one cannot do nivul in order to save lives?!

R. Fischels agrees with this disproof. However, he contends that one can even go further, and prove the matir’s permission from the oseir’s source. It’s true that Rabbi Akiva forbids the heirs from autopsying the body – but the Talmud implies that the buyers of his property would be permitted to demand an autopsy!

R. Landau is quick to justify the oseir, however. He argues that autopsies in London likely require the permission of the family, and therefore, if one does not distinguish between autopsies for gain and autopsies for medical knowledge, the oseir’s proof would be valid. R. Landau makes clear that he offers this defense for the honor of the oseir rather than because he agrees with him, and he agrees with the matir’s original disproof. 

However, Rabbi Fischels claims that the matir has also not brought any proofs relevant to permitting nivul. Why? Because neither embalming nor pouring lime are properly defined as acts of nivul, even though they alter the corpse. Rather, embalming prevents nivul by preserving the body in its pre-decomposed state, and pouring lime prevents nivul by rapidly taking the body to its fully-decomposed, non-repulsive state – fleshless bones. Autopsies, by contrast, are actually nivul and must be justified by some competing value. 

R. Fischels here effectively distinguishes nivul of the body from kavod of the deceased person. We are left to consider how he would rule in a case where we are both being menavel the body, and mechabed the person.

R. Fischels claims that he does have a valid proof for permitting the autopsies. This proof is from Talmud Chullin 11b. The Talmud there seeks to prove that we can rely on probability in capital cases from the fact that we do not require murder victims to be autopsied, even though an autopsy might show that they were treifot (people with holes in vital organs that will kill them quickly), whom it is not a capital crime to kill. The Talmud responds that this cannot be a valid proof, as why would we rely on probability when autopsying was possible?! Rabbi Fischels argues that the Talmud clearly thinks that an autopsy would be justified to save the life of the accused murderer.

Rabbi Landau responds that this is backwards thinking. If we could not rely on probability, then nobody could be executed without autopsy. The autopsy therefore serves to enable the execution, not to prevent it!

Rabbi Landau concedes that the language of the Talmud leans toward Rabbi Fischels’ reading. וכי תימא משום איבוד נשמה דהאי ננוליה – were you to say that we should do nivul (to the victim) for the sake of (preventing) the loss of life (of the killer). How can this be explained?

R. Landau explains that the Torah mandates that halakhah always adopt the positions that minimize executions. This special concern for capital defendants means that autopsies would always be required in capital cases even if they are not permitted for the purpose of saving life in other circumstances. Therefore, R. Fischels cannot prove from here that medical autopsies are permitted. 

R. Landau then expresses his incredulity at the entire conversation. Why were Rabbi Fischels, the matir, and the oseir bringing evidence as to whether nivul particularly is permitted to save lives? It’s clear that even the possibility of pikuach nefesh (lifesaving) overrides all prohibitions that are not yeihareig v’al ya’avor (require one to die rather than transgress). Therefore, since nivul is plainly not yeihareig v’al ya’avor, medical autopsies should obviously be permitted?! 

R. Landau therefore contends that the real issue is whether halakhah considers the generation of new medical knowledge that can save lives to be “lifesaving.” He concludes that it is only considered lifesaving if one can point to a “sick person before us,” who may be saved by the new knowledge. Thus, the Talmud in Chullin permits autopsies to save the life of someone already convicted and liable for execution, and the Talmud in Yoma permits digging people out of construction debris on Shabbat. But if there are no patients in hand, the statistical likelihood that such patients exist elsewhere, or will eventually appear here, does not create a halakhic imperative of lifesaving. 

R. Landau argues that this distinction is pragmatically necessary, Otherwise, lifesaving would be used to allow all medical work on Shabbat, including crafting medical instruments. As well, autopsies would end up being performed for the most remote medical concerns, even general anatomical curiosity. In an act of reductio ad absurdum, R. Landau lists these outcomes and cries, “Heaven forfend that we permit this!”

To better understand why R. Landau felt compelled to draw the radical distinction of lefaneinu without bringing further proof, it is important to understand the communal issues facing the London at the time. When the she’eilah was asked, human bodies were being used more and more systematically for medical research; specifically, a surgeon from France had recently proved that he had used information gained from autopsies to develop a better treatment for bladder stones – the very same disease as in our question! The increased reliance on autopsies for medical education, together with the lack of refrigeration technology available and Christians’ religious reservations on signing off on autopsying their bodies, meant that schools were desperate for cadavers. Permitting autopsies for medical research in R. Landau’s time would have meant the end of traditional Jewish burial; it would have made redundant an ancient rite that had hitherto characterised Jewish communal life.

R. Landau thus offers a creative distinction that was consistent with his precedents but did not emerge from them. It is not clear whether he would have made this distinction without the practical pressures he faced.

The role of halakhic creativity in response to societal and technological changes is even more striking when we follow the sugya through to the formative years of the modern State of Israel. R. Yechiel Weinberg in Shu”T Sridei Eish 2:92 ruled for a rabbi in Manchester, England, that autopsies were generally forbidden, citing Rabbi Landau. However, he later wrote a letter (Writings 1:22) arguing forcefully that they must be permitted in Israel. He notes that developments since R. Landau’s time, such as the advent of telephones and radio, mean that we are more connected and the effect of research on patients is felt much more immediately. Therefore, all patients anywhere can be considered lefaneinu. As well, the newly-formed State of Israel simply needs medical schools, and therefore anatomy labs – outsourcing a country’s medical care would be ludicrous. Moreover, Israel would suffer international criticism if it had below-par medical care, the Israeli Rabbinate would be severely criticized if religious concerns lowered the quality of the country’s health care. 

The severe limit placed by the R. Landau on the permissibility of autopsies through his lefaneinu distinction forces R. Weinberg to push back with an equally innovative re-classification of the effects of medical research as lefaneinu. 

How much concern should poskim have for the transience of the societal conditions their teshuvot address? In hindsight, It was inevitable that R. Landau’s creative distinction would need to be replaced once the desperate need for cadavers receded, or as autopsies became a more essential part of medical practice generally. Perhaps poskim should find ways of building sunset provisions into their rulings, or other ways of allowing their successors greater leeway to “start from scratch” when situations changed in relevant ways. Perhaps that is not a formally legitimate move with regard to laws that are deoraita under Biblical authority. R. Landau’s creative ruling, and Rabbi Weinberg’s creative response, throws into relief both the power and shortfalls of using halakhic creativity in pesikah.

Datan, Aviram, and Korach: Parallel or Intersecting?

This week’s alumni Dvar Torah is by Ben Kaplan

While there are certainly many positive effects of having learned the basic narrative of the Torah as children, there are some downsides as well. Often, we think we know the story the Torah is telling so well that we don’t pay attention, when a close reading of the p’sukim might tell us something unexpected.

The story of Korach is relatively well-known, even though it appears in the middle of Bamidbar. The narrative seems pretty simple. Korach, Datan, and Aviram lead an uprising against Moshe, are pitted against Aharon in a contest of offerings to God, and are then swallowed into the bowels of the Earth.

This version of the story is technically accurate, but it misses a key element of the text. Namely, there seem to be to two parallel stories that are told simultaneously, occasionally, but not consistently weaving together to form a single narrative.

In 16:1-3, Korach, Datan, and Aviram (and On ben Pelet) all approach Moshe with the famous accusation,

רַב לָכֶם

כִּי כָל הָעֵדָה כֻּלָּם קְדֹשִׁים

וּבְתוֹכָם יְקֹוָק

וּמַדּוּעַ תִּתְנַשְּׂאוּ עַל קְהַל יְקֹוָק

You have too much,

for the entire congregation of the Lord is holy

and has the Lord within them,

so why do you raise yourselves above the Lord’s congregation?

Moshe’s initial response is recorded in p’sukim 4-11 and seems to be directed solely toward Korach and his group. There is no explicit mention made of Datan or Aviram. One could argue that they are merely included in Korach’s group, but this explanation is challenged by p’sukim, 12-15, where Moshe sends a messenger specifically to Datan and Aviram, and the two refuse to answer his summons, instead sending back a scathing reply. In 16-20, Korach and his followers bring incense offerings at the Mishkan. Datan and Aviram are completely absent from this scene. P’sukim 21-24 have God telling Moshe to warn the people against coming to close to the משכן (potentially meaning the Mishkan or simply their places of dwelling) of Datan, Aviram, and Korach, while 25-30 Moshe warns them away only from the ohalim of Datan and Aviram, not mentioning Korach at all as he predicts that they will be swallowed by the Earth. When the prophesied event happens in 31-34, only Korach, not Datan or Aviram, is mentioned. Finally, pasuk 35 has the 250 men being burned by a fire of God.

What is one to make of this seemingly confused story? It is tempting to divide the story into two entirely separate occurrences, one rebellion of Korach and his followers and one rebellion of Datan, Aviram, and their followers. This approach is appealing since it allows us to make sense of the two separate punishments (swallowing by the Earth and burning) that appear in the story and also explains why Datan and Aviram as entirely absent from many scenes (mostly those involving the incense offerings) while Korach is missing from others (such as the harsh rejection of Moshe’s messenger). It would make sense that Korach and his followers alone participated in the incense offerings since Korach was a Levite. The punishment of burning would also be a fitting one for someone unqualified attempting to bring an unwanted incense offering before God, as is seen in the case of Nadav and Avihu. This would leave the more horrifying punishment of literally being swallowed by the Earth to Datan and Aviram, who instead of merely claiming all of the Jews holy and wishing to participate more fully in leadership, actively scorned and insulted Moshe, refusing to even meet with him.

However, separating the piece into two entirely separate narratives does not fit the p’sukim for a variety of reasons. Most obviously, there are instances where all three characters are mentioned together (e.g. 1 & 24). Furthermore, even p’sukim that seem to only describe one narrative often reference the other obliquely, such as when Datan and Aviram respond to Moshe’s message using the word המעט in pasuk 13, a clear reference to Moshe’s use of the word in pasuk 9, even though Moshe was seemingly not speaking to Datan and Aviram in that scene. Nonetheless, treating the story as a seamless whole is not totally satisfying as there do seem to be two distinct narrative threads in the story, even if they are impossible to fully untangle.

It could be suggested that the obfuscation of the two narratives is in fact a deliberate literary device which teaches an important lesson about Korach. When viewed separately, Korach clearly comes off as better than Datan and Aviram. Ibn Ezra commenting on B’midbar 26:11 says that the reason why Korach’s sons didn’t die while Datan’s and Aviram’s did was because the latter two were more evil than Korach. We also see Chazal vilifying Datan and Aviram by casting them as the villains in multiple stories in the Torah where their names are not explicitly mentioned. Korach by contrast, gets no such treatment.

The Kli Yakar (B’midbar 16:1) states that when seeking people to join his cause, Korach did not look for those who agreed with his principles. Rather he sought out מרי נפש, people who had any sort of grievance. Korach was the sort of ideologue who thought that his cause was so great that it justified allying himself with those who did not merely wish for a more active role in leadership, but felt that Egypt was a land “flowing with milk and honey” (16:14). The mishnah in Pirkei Avot (5:17) states that any machloket which is not for the sake of heaven will not be upheld. The quintessential example that the mishnah gives of such a machloket is that of Korach. Korach felt that his message was so important that he was willing to work with morally abhorrent people to get his way. Rather than this unholy alliance allowing his vision to come to fruition, it instead muddied his message. His מחלוקת is not upheld but is rather combined with the מחלוקת of Datan and Aviram until even the Torah itself makes no distinction between them. While this is not necessarily a call for ideological purity, it does send a clear message that even well-intentioned people can be brought down by allying themselves with evil men, justifying it as “for the greater good.”

 

Ben Kaplan (SBM 2017) currently lives in Jerusalem. When not writing divrei Torah, he spends most of his time working as a biomedical engineer.

Should Our Understanding of G-d’s Purposes Affect Our Interpretation of His Words? Week One Summary of SBM 2019

by Dan Jutan, SBM Fellow

How should halakhah deoraita (carrying Biblical authority) be determined in new circumstances?  One possibility is that halakhah is a self-contained system, in which all legal mandates are derived by legal reasoning from legal precedents.  Another possibility is that the means mandated by halakhah are sometimes derived from moral, ethical, or pragmatic explanations of why the halakhah ought to be a certain way, or of why G-d would want halakhah to be a certain way.

BT Sanhedrin 21a:Talmud presents this issue as in complex dispute between Rabbi Yehudah and Rabbi Shimon.

/Mishnah/

“He (the king) must not have many wives”—aside from eighteen.

Rabbi Yehudah says:

He can have many wives,

but only if they don’t lead him astray.

Rabbi Shimon says:

Even one—if she leads his heart astray,

he must not marry her.

If so, why does Scripture say don’t have many wives?!

Even (wives) like Avigayil

/Talmud/

Does our Mishnah mean to say that R. Yehuda is doresh taama dikra and R. Shimon is not?

But we heard the opposite, as a Mishnah elsewhere teaches:

A widow, whether poor or wealthy –

one may not take collateral from her,

as Scripture says

You may not take the garment of a widow for a pledge,

In the opinion of R. Yehudah.

Rabbi Shimon says:

From a rich widow—one may take collateral; from a poor widow – one may not take collateral;

and you are obligated to return it to her, and you’ll give her a bad name amongst her neighbors.

So evidently, Rabbi Yehuda is not doresh taama dikra and Rabbi Shimon is!?

Generally, Rabbi Yehudah is not doresh taama dikra,

but it’s different here, because the taama is explicit in the verse:

Why he must not have many wives? Because and his heart will not stray.

But Rabbi Shimon would say to you as follows:

Let’s see – generally we are doresh taama dikra. That being so, the Torah should just write

he must not have many wives and then be silent—I’d figure out the rationale and his heart will not stray. So why does Scripture write and his heart will not stray?

To teach that even one, if she leads his heart astray—he must not marry her.

Given that, what meaning does he must not have many retain?

Even (if they are) like Avigayil.

What precisely does doresh taama dikra mean? In the context of this sugya, it appears to describe a process of resolving an issue of Biblical law on the basis of the rationale for that law. Rabbi Shimon thus decides that the law against taking collateral from widows does not apply to rich widows because they would be much less likely to engage in regular and extended interactions with the lender.

However, the root verb drsh does no usually refer to practically applying an idea, but rather to exegetically extracting an idea from a verse.  An SBM Fellow suggested that it refers here to extracting something from an assumed rationale, to being doreshthe taama rather than the kra.

But what is a taama? The word can refer to either a rationale and a reason. There are numerous ways to inflect that distinction. One is that a reason explains why a law was originally legislated, the motive for the law, while a rationale explains why that law still has force today, the justification for the law.

This distinction recalls one made by Rabbi Yosef Dov Soloveitchik in Halakhic Mind.  The Rav argues that one cannot legitimately ask why G-d commanded a particular law, as one can never know G-d’s mind.  However, you can examine the effects of following G-d’s command. Thus, in contrast to Rambam, the Rav would not allow saying that G-d commanded us not to wear shaatnez because idolatrous priests wore shaatnez.  You could however investigate whether not wearing shaatnez increased our sense of distance from idolatrous practice.  You can’t say God that commanded Shabbos so that we would have a day of rest, but you can say that observing Shabbat yields the experience of a restful day.

Applying the Rav to our context, we can say that being doresh taama dikra means that one can or should resolve ambiguities or controversies about Biblical law in favor of the positions that will most likely yield the same result as the law has in the past.  But we should not make the historical-theological claim that this is the reason the law was commanded, and one could not challenge existing law, or develop radically new law, on the ground that the existing law does not fulfill its purpose.

By introducing the Rav’s distinction, we connected the issue of taama dikra to the ongoing discussion in Jewish tradition about the legitimacy and significance of taamei hamitzvot, rationales or reasons for commandments.  Is that discourse necessarily connected to the halakhic process dispute about being doresh taama dikra?  Minchat Chinukh (464) explicitly connects the discourses. He argues that engaging in taamei hamitzvot is an intrinsically hubristic enterprise – how can we know why G-d commanded something? – that can be justified only by the need to determine the halakhah, by being doresh taama dikra. We might also have thought that doresh taama dikra referred specifically to reasons or rationales derived by exegesis of Scripture – kra – but Minchat Chinukh cites examples that seem derived simply from reason or common sense, or what one SBM fellow called “svara.”

We saw that the Talmud itself asserts that there is a dispute between Rabbi Shimon and Rabbi Yehudah regarding whether/when we are darshinan taama dikra.  Minchat Chinukh implies that every one of the myriad instances in the Talmud of rabbis offering rationales for a Biblical law follows the position darshinan. or at least all the instances where those reasons or rationale are not exegetically grounded.  How do we rule?

Beit Yosef says that we rule darshinan, as seems indicated by Minchat Chinnukh.  Rambam, however, seems maddeningly inconsistent.  In various places in the Mishneh Torah he appears to rule like the positions darshinan, never darshinan, anddarshinan only on the basis of exegesis, respectively.

Lechem Mishna to Laws of Lenders and Borrowers 3:1 seeks to resolve these inconsistencies.  He sets up two wholly incompatible resolutions.  In one of these, Rambam rules darshinan, but interprets a Mishnah against the Talmud; in the other, he rules lo darshinan, but contends that Talmudic sugyot have implicitly conflicting understandings of Rabbi Yehuda’s position. Each resolution portrays Rambam’s rulings as motivated by mechanical rules of decision, such as “The law follows an anonymous Mishnah,” or “Talmudic discussions located as commentaries on the Mishnah they interpret take precedence over discussions of those Mishnah cited elsewhere.” Lechem Mishnah is forced to construct this complicated architecture to resolve only a few of the relevant cases in Rambam. It seemed clear that to resolve all the relevant cases by these means would require complexity to a degree that would greatly diminish credibility.

Is there a better way to resolve Rambam?  Rabbi Klapper presented his thesis in the following logical progression:

1. No Tanna or Amora every explicitly espouses the positions darshinan taama dikra or lo darshinan.The Talmud assigns these positions to Rabbi Shimon and Rabbi Yehuda respectively.
2. There seems to be no tradition behind these assignments.  Rather, the Talmud suggests that specific positions held by Rabbi Shimon and Rabbi Yehuda imply positions on the broad issues of darshinan.
3. Without an explicit statement or a clear tradition, there is no way to prove from any specific halakhic position, or set of halakhic positions, that a specific authority held Io darshinan. For example, Lechem Mishnah notes that Rambam in the Mishneh Torah rules like the position lo darshinan as presented in an anonymous Mishnah, but in his Commentary on the Mishnah, Rambam provides a taam to explain that Mishnah!  Any ruling against someone else’s taam may reflect a rejection of their specific rationale, rather than a principled rejection of the relevance of all taams.  The simplest explanation of Rambam is that he rules darshinan in principle, but reserves the right to reject any specific taam that fails to convince him.
4. Every halakha will eventually encounter new circumstances which present challenges that cannot be resolved mechanically on the basis of precedents or formal rules of authority. In such circumstances, there are three alternatives:
   1. treat every question arising from those circumstances as an unresolvable safek (doubt)
   2. grant one or more halakhic figures unaccountable halakhic authority
   3. resolve the situation by considering the taam behind the law in prior cases

Rabbi Klapper argued that treating whole areas of halakhah as unresolvable will make the unliveable, and that granting halakhic authority without accountability violates “not in Heaven” and the entire nature of the Halakhic process, and is practically dangerous as well.

Therefore, everyone at some point must be willing to doresh taama dikra.  In fact, there is no contrary position in the tradition. By assigning the positions darshinan to Rabbi Shimon and lo darshinan to Rabbi Yehudah, the Talmud meant only that Rabbi Shimon was much more enthusiastic about this legal strategy than Rabbi Yehudah was, not that Rabbi Yehudah would never use it.  It is a “soft” rather than a “hard” machloket.

Rabbi Klapper argued that his position is necessary if we wish to extend halakhah meaningfully into the rapidly developing technological future, such as the realm of genetic editing via CRISPR that is SBM’s specific topic this summer.  The alternative is that more and more areas of life will be walled off from Halakhah.

Imagining Divine Empathy

by Rabbi Aryeh Klapper

Texts cannot defend themselves against interpreters, but interpreters can defend themselves against texts. For example, non-observant Jewish readers sometimes defend themselves against Rabbinic texts by creating distance, by adopting the least generous and most ethically off-putting interpretations possible. This prevents the texts from making claims on them.  Orthodox readers sometimes defend themselves by assimilating the text to practices and values they already agree with. This prevents the texts from challenging them.

These strategies are not illegitimate.  There is no way to read a text without preconceptions. The most we can do is to imagine ways to read with multiple, different, even contradictory preconceptions. People who believe in Torah properly seek to defend it by excluding meanings that we consider implausible, unethical, or even heretical. We can only ask each other to have imaginative and empathetic parameters of plausibility when considering interpretations.

One way a text can help us cultivate the necessary imagination, more-or-less safely, is by presenting perspectives that it clearly does not endorse. For example, the Torah often does not merely condemn its villains; it presents the self-justifications of idol-worshippers, or of libertines, or of those who resist the authority of Mosheh Rabbeinu. Some commentators read these like fantasy fiction, with the goal being to imagine sinners as alien beings having nothing in common with the interpreter. But others engage in imaginative empathy, with the goal being to present sinners as creatures very much like you and me who tragically succumbed to the wiles of our common yetzer hora, or fell prey to intellectual error. Some of the best of these are rabbinic dialogues in which the worst of killers make their decisions on the basis of sophisticated halakhic argument.

Bamidbar 14:13-19 presents a particularly rich opportunity to engage in imaginative empathy. The Torah presents Moshe’s presentation to G-d of what the Mitzriyim would say to the Canaanites – presumably convincing them –  if G-d destroyed the Jews.

Whose plausibility structure should be used? If we believe that Mosheh’s argument convinces G-d to call off our destruction, despite the theological baggage involved in such a claim, then the task is to construct a psychology of Mitzriyim and Canaanites that G-d would find plausible. We are required to consider what G-d would and would not believe about human reactions. Assuming that G-d’s beliefs, must be true even with regard to hypotheticals, our construction must fit our own beliefs about Mitzriyim and Canaanites as well.

The text presents Mosheh’s argument as follows:

ושמעו מצרים כי העלית בכחך את העם הזה מקרבו,

ואמרו אל יושב הארץ הזאת:

שמעו כי אתה ה’ בקרב העם הזה

אשר עין בעין נראה אתה ה’, ועננך עמד עלהם,

ובעמד ענן אתה הלך לפניהם יומם, ובעמוד אש לילה.

והמתה את העם הזה כאיש אחד, ואמרו הגוים אשר שמעו את שמעך לאמר:

מבלתי יכלת ה’ להביא את העם הזה אל הארץ אשר נשבע להם וישחטם במדבר.

ועתה – יגדל נא כח אד-ני, כאשר דברת לאמר:

But Egypt will hear that You have taken with Your power this nation from its core,
and they will tell the inhabitants of that land:

Certainly they have heard that you Hashem are at the core of this nation –

that You have appeared to them eye-to-eye, and Your cloud stands watch over them,

and that in a stand of cloud You go before them by day, and in a stand of fire by night.

So when you put to this nation to death as if it were one man,

the nations who have heard Your repute will say:

“It was out of Hashem’s inability to bring this nation to the land which He swore to give them,

that he slaughtered them in the desert.”

Now – let the power of Hashem enlarge, in accordance with what You said . . .

Mosheh appears to argue that if G-d destroyed the Jews suddenly, the Mitzriyim would say that He did so because He was unable to bring them to Canaan. The medieval French commentator R. Yosef Cara reasonably asks:

איך אפשר שיאמרו מצרים כן,

שהרי ראו כמה מכות וקריעת ים סוף?!

How is it possible that the Mitzriyim would say this,

when they had just seen many plagues and the splitting of the Reed Sea?!

Given that the Egyptians had just witnessed an extended display of awesome Divine might, how could G-d have believed that the Egyptians would think Him incapable of conquering Canaan?

R. Cara’s answer is that the Egyptians would have argued that G-d exhausted His powers by taking Israel out of Egypt. He supports this reading by noting that Mosheh’s subsequent exhortation for G-d to enlarge His power seems philosophically problematic, but now can mean that He should express his power yet more dramatically.  The power Mosheh is speaking of is power-in-the-world, not the power to bear with human beings despite their flaws.

Rav Cara’s reading however does not address what may be the most basic question. Why does G-d care what the Mitzriyim would say, and/or how the Canaanites would react?  We have to address not only the plausibility to G-d of Mosheh’s presentation of human psychology, but also the plausibility of the theopsychology, of G-d’s reaction to Moshe’s presentation.

Does R. Cara provides a plausible reconstruction of human psychology?  Is it reasonable to suppose that the Mitzriyim and Canaanites would, in the aftermath of the sudden destruction of Israel, have seen the Splitting of the Sea as exhausting G-d’s power rather than demonstrating its inexhaustibility? I think the answer is in part yes, and R. Cara does us a service by exposing this.

As both Yeshayah Leibowitz and Rav Dessler point out powerfully, displays of Divine might do not generate enduring belief. Isaac Breuer argued (I learned this from Rabbi Chanoch Waxman’s undergraduate article for Hamevaser) that what is miraculous about miracles is not their product, but rather our recognition of them as supernatural, since we instinctively assimilate all new data to models of comprehensible causality. Egypt would have been searching for a way to make G-d finite. Moreover, we have to admit that sometimes tremendous efforts lead directly to and immediately precede collapse. But the answer is also in part no. The instantaneous destruction of the entire Jewish people would itself have been a display awesome enough to put the lie to a claim of Divine exhaustion.

There really is no plausible way for G-d to be worried that His reputation for power to suffer as the result of His destruction of the Jews. Note that in Shemot 32:11-14 Mosheh apparently convinces G-d not to destroy the Jews via the at least equally implausible claim that the Mitzriyim would argue that He took the Jews out of Egypt because he hated them.) Moreover – why does G-d care so much about His reputation for power? If necessary, He could always do yet more wondrous miracles and restore his reputation, regardless of what became of the Jews.

But it seems to me that there is something that the other nations might have thought that would be legitimate grounds for Divine concern.  They might have thought that it was G-d’s inability to maintain a living relationship with a people that led to the destruction of the Jews. G-d wished to take the Jews to Canaan; He failed. Maybe that failure was inevitable, and will happen every time He tries.  This, I suggest, must be Mosheh Rabbeinu’s real argument, both here and in Shemot.

The question then becomes why Mosheh does not, and presumably cannot, make this argument explicitly.

The answer, I suggest, is that it proves too much.  Accepting that argument would mean that G-d could never destroy the Jews, ever, no matter how grave their wrongdoings.  His reputation is too bound up with their survival to allow Him free reign to punish them. K’b’yakhol – if it were possible to say such a thing – it seems that one arc of the Torah’s narrative is how G-d comes to terms with the ways in which our relationship with Him, as understood by the rest of humanity, limits the extent to which the Attribute of Justice can be expressed in this world relative to the Attribute of Mercy.

Must Halakhah Be Spiritually Fair?

by Rabbi Aryeh Klapper

In the first month of the second year following the Exodus, G-d told Mosheh: “Bnei Yisroel must make the Pesach in its appointed time, on the fourteenth of this month, in the afternoon, you must make it, in its appointed time.”  (Bamidbar 9:2-3) Even one “in its appointed time” would have been redundant, since the date and time are separately specified – two seems extravagant. Mosheh then tells Bnei Yisroel to make the Pesach, and they make it at the specified time and date, with no mention of the “appointed time.” The discrepancy is resolved by a back story – a group of men protested the initial command as discriminatory, and G-d agreed to the point of providing them with a reasonable accommodation in the form of a makeup date, not the “appointed time.”

Who were these people, and why were they initially excluded? They describe themselves as “טמאים לנפש אדם,” ritually impure to a human spirit” (corpse).  Talmud Sukkah 25a provides three possible identifications.  They might have been the ones who carried Yosef’s coffin from Egypt; or who carried Nadav and Avihu’s bodies out of the Holy of Holies; or simply Jews who fulfilled the obligation to bury someone who died with no one specifically obligated to bury them (meit mitzvah).

RITVA (the medieval Spanish Rabbi Yom Tov ben Asevilli) points out that the self-report and the Talmudic identifications each raises a grave difficulty.

Regarding the self-report – the men admit their tamei meitness, and clearly understand this to be the ground for their exclusion. What then are they asking, and why isn’t the answer to their question obvious to Mosheh?

Regarding the Talmudic identifications – In a community of millions, one has to assume that many deaths happen each day, and therefore that some people will always be tamei meit.  So what difficulty requires resolution via a more specific identification?!

Rabbinic tradition provides a series of brilliant technical responses to the first question. The Talmud itself notes that Torah describes the excluded as unable to do the Pesach ביום ההוא, on that day – meaning that they would have been able to being it the next day.  Why, if tamei meitness lasts seven days?  Because the Pesach is slaughtered in the afternoon, but eaten at night.  The people asking would no longer be tamei meit when the time came for eating the Pesach.  Since the slaughtering of each Pesach is done by one person for the sake of a group, they contended that they could be part of such groups despite being tamei meit, and then participate in the eating at night.

Many later commentators note that the extra words במועדו are used to allow the Pesach to be brought when the community as a whole is tamei meit; the questioners here thought that this should also apply to individuals.

Some commentators root their answers in the specific identifications, e,g, perhaps Yosef’s coffin was designed to shield its bearers from tum’ah.  To take one spectacular example, Tzror HaMor (Rabbi Avraham ben R. Yaakov Sabe, Spanish expulsion) notes that the people describe themselves as tmei’im l’nefesh Adam, rather than mentioning death.  The deaths of Nadav and Avihu, he suggests, were not the result of sin but rather because they were so close to G-d that their deaths reversed the sin of Adam, and thereby enabled the exiled Divine Presence to return to Earth (in the Holy of Holies). Their pallbearers therefore contended that tum’ah related to this sort of death should not prevent them from sacrificing.  On the contrary – association with the deaths that brought the Divine Fire to burn on the altar should be a qualification!  Tzror HaMor’s reading is also supported by the odd locution that the people “draw near” to Mosheh and Aharon in order to ask their question.  The Hebrew is ויקרבו, which is the verb for sacrifice and also recalls G-d telling Moseh that the deaths of Nadav and Avihu were a fulfillment of בקרבי אקדש.

The problem with purely technical explanations of the question is that they don’t explain why Mosheh needs to refer the question to G-d, or why G-d responds with a make-up date rather than with an explanation for the exclusion.

Or HaChayyim does a better job of matching the question with G-d’s answer.

צריך לדעת טענת האנשים במאמר למה נגרע –

הלא טעמם בפיהם יענו אנחנו טמאים,

ומה מבקשים ליתן להם תורה חדשה?!

ואולי כי לצד שנטמאו ברשותו יתברך,

בין למאן דאמר טמאי מת מצוה בין למאן דאמר נושאי ארונו של יוסף,

חשבו כי ידין ה’ אותם כטהורים

We have to understand the contention of the people when they said “Why should we be subtracted?” –

Isn’t the reason in their own mouths, when they said “we are temeiim?!”

Perhaps it was since they had become tamei with His permission,

whether one follows the position identifying them as tamei via a meit mitzvah, or as Yosef’s coffinbearers,

they thought that G-d would judge them as if they were tehorim.

Or HaChayyim subtly shifts the framework.  Technical explanations lead at most to doubt – maybe we should not be excluded.  Lamah nigora, why should we be subtracted, has a much more aggressive valence. It establishes a presumption that they should not be excluded. Moreover, Or HaChayyim sees their appeal as not to the law, but rather to G-d directly. Fundamentally, they claim that it would be unfair for Him to exclude them from this mitzvah.

G-d’s answer fits well this way. A makeup date leaves the law as-is while resolving the fairness issue. But Or Hachayyim’s approach requires us to insert facts and arguments into the question that cannot be derived from the text, which states their tamei meitcondition generically.

My own perhaps original suggestion is as follows. It is theoretically possible to bury someone without becoming tamei.  Kohanim, however, are required to become tamei to their dead relatives. Since the Pesach date was announced two weeks in advance, perhaps everyone other than kohanim took technical measures to bury without tum’ah. The only deaths in the one small family of kohanim that month were of course those of Nadav and Avihu, and therefore their buriers were the only tamei meit people among Bnei Yisroel when the time for the Pesach arrived. (This assumes that Mishael and Eltzafan were obligated to become tamei even though they themselves were not kohanim, an issue beyond our scope here.)

Alternatively, perhaps everyone was avoiding participation in burials lest they miss the Pesach. This in effect made every Jew who died a meit mitzvah, and so some people volunteered to be the chevra Kadisha for those two weeks. The question these volunteers asked was whether the exclusion applied to them even though they had become tamei in the process of fulfilling a communal obligation.

This question was both technical and moral.  There is nothing about the law as formulated up to now that allows an exception. But the law also never explicitly rejected this exception.  In this case, the law yields an unfair result without the exception, and that shifts the burden of proof.

Talmud Sukkah 25a learns from here that ha’osek b’mitzvah patur min hamitzvah, that one who is engaged in the performance of one mitzvah, such as burial, is exempt from other mitzvot (such as the Pesach; this means that they can also engage in actions that will make them unable to perform the Pesach a week later.)  This principle had not been stated previously. The volunteers therefore assume that they are still obligated to bring the Pesach, and perhaps even that they will be punished with excision for failing to bring it, even though Halakhah forbids them to bring it, and their inability to bring it results from their fulfillment of a halakhic obligation! This seems doubly unfair to them.

Mosheh Rabbeinu might have responded by teaching the ha’osek principle – no, you will not be punished, because you are exempt. But he senses that this will not satisfy them; it removes the punishment, but not the fundamental unfairness of being excluded from one religious activity because they had volunteered on behalf of the community to perform another.  So he refers them to G-d.  G-d acknowledges that exempting them is insufficient, and so He provides the makeup date.

A makeup date has its own issues.  As Chatam Sofer points out, there is still a vast experiential difference between doing the Pesach with “all Israel” and doing it with a small group.  Moreover, what happens if someone has an equally valid reason for missing the makeup?  The Torah does not provide for a second make-up.

In other words, halakhah is a part of human life, and therefore can never be perfectly fair.  But this does not mean that unfairness is not grounds for complaint.  Perhaps complaints that ask for absolutely clear Halakhah to change are excluded.  But where there is ambiguity or undevelopment, challenges that seek to reverse presumptions are welcome.

However, we do not have Mosheh Rabbeinu’s option of referring such challenges to G-d, immediate reply requested. It matters a great deal whether we decide that this justifies us in giving purely technical answers, because only G-d can respond morally, or rather that it obligates us to respond morally, as G-d would if the Torah were still in the possession of Heaven.