Dialogue: Should Torah be Nonpartisan?

by Rabbi Aryeh Klapper

Edited transcript of a conversation this week between the middle-aged Centrist Orthodox politically moderate rabbi of a midsized shul and two wonderfully difficult congregants.  

Aharon and Miriam: Rabbi, we’re wondering if you plan to tell us which candidates or party to vote for in the coming election. We understand that politics are really tangled, so there’s often a really good Torah basis for either side. But surely this year the choice is clear! Even though we disagree about which side to choose.

Rabbi: The task of a public scholar is to make Torah relevant, but not partisan.

Miriam: Why shouldn’t Torah be partisan, if one side is closer to Torah than the other?

Rabbi: The Orthodox community is politically diverse. If we make Torah partisan, then some of our members will turn away from Torah, or else we will split the community.

Aharon: If Torah cannot tell people what to do about the major human issues of the day, what use is it? If Orthodox Jews will turn away from Torah rather than obey it, what sort of Fear of Heaven does our community have?

Rabbi: I’m very glad you asked that question. Certainly Torah can and should tell people what to do about specific issues. But a political party or candidate has positions about lots of issues. All I’m saying is that Torah doesn’t tell people to support all the positions of Party A or Candidate B just because Torah supports some of their positions.

Miriam: That isn’t a sufficient response. Part of the job of Torah is to tell us how to weigh and balance various values, isn’t it? So if Candidate B is right about the more important issues, then you should tell us to vote for her. It sounds to me like you’re using Torah to cover up for unwillingness to risk the shul’s tax exemption.

Rabbi: I can’t deny that the tax exemption has crossed my mind. But I’m less worried about losing it than about keeping it dishonestly.

Miriam: Then give it up voluntarily! Or make a clear division between when you’re speaking as the rabbi of the shul and when you’re speaking privately. For example, I want to make clear that I’m not asking you because of your position, but rather because of my profound respect for your Torah wisdom.

Aharon: Me too!

Miriam: And if you’re worried about members leaving, I think you’re being slippery. You know full well that taking a position on some issues will be understood as partisan no matter how much you insist that you aren’t telling people how to vote.

Rabbi: I’m sure you’re right about that.

Aharon: So are you going to avoid taking positions on those issues? Even if they’re the most important issues?

Rabbi: Thank you for holding me accountable to my own ideals. I don’t think I could live with myself if I was just being cowardly. But I still feel very uncomfortable attaching Torah to one political side or the other, and I’d like help figuring out why.

You know how deeply I believe that halakhah is not meant to turn people into religious automatons who simply obey orders. They have to take responsibility for their own Torah choices. I also say all the time that Torah scholars have no special knowledge or authority over facts. It feels like telling people how to vote violates both those principles. I think my job is to explain to people what I see as the values and principles the Torah holds dear, and  let them decide how those play out in the real world.

Yes, I pasken about kashering dishwashers, and about mechitzah height, and even life-and-death issues. But only where detailed halakhic knowledge is essential, or where the community needs a single standard, or in the rare case that I think a person has the right to defer responsibility.

Miriam: That sounds awfully noble, but I’m not convinced. But let’s leave voting aside for the moment. I’m sure a lot of people have asked you how to balance the pikuach nefesh risks of the pandemic against the moral necessity to protest. Did you pasken for them?

Aharon: Also, even if you don’t want to pasken, what are you doing, yourself, in public? It would be ridiculous to claim that leading by example deprives other people of their autonomy.

Rabbi: I understand that some people have a very hard time accepting that it could be permitted to attend a mass demonstration at the same time that we’re saying that shuls have to stay closed, and permitting only small outside minyanim.

Shuls are closed because a community like ours is very vulnerable to rapid spread, and many of us live with people in high-risk categories. Gathering together isn’t just risking our lives, it risks the lives of other people.  People who attend demonstrations that don’t absolutely maintain social distancing should not be attending minyan at all. The same goes for anyone in their households.

But attending demonstrations is arguably a way of saving lives, and correcting radical injustice on the societal level, especially a society that one participates in, benefits from, and has responsibility for, legitimates assuming a certain amount of risk to oneself.  So if people are convinced that the demonstrations can have such results (whether I agree or disagree), I tell them to minimize the risk to themselves and maximize results as best they can. But they must be extraordinarily careful not to expose others who have not voluntarily assumed any risk.

My household has high-risk people, so it’s hard for me to justify attending any public gathering. I believe that otherwise, like many of my colleagues, I would be joining protests that observe social distancing.

But let me challenge you for a moment. Demonstrations are a physical risk, but they may be less of a social risk than taking stands within our community, especially when that puts us in conflict with people who generally share our political or religious views. As Dumbledore said, standing up to our friends often requires more courage than standing up to our enemies.

I am absolutely comfortable saying that Torah requires Democrats and Republicans to treat every human being with dignity. This is true in direct dealings and in how we speak about others when they are not present, and with regard to both individuals and groups. Can you tell me what you are doing to make this happen within our community, and within the Orthodox community?

Miriam: I’ve been sharing like mad on Facebook some amazingly powerful stories and statements from Jews of color who love our community but nonetheless have sometimes felt excluded or disparaged. Also divrei Torah emphasizing that support for equal civil rights is a religious obligation, and statements from politically conservative thought-leaders about how ongoing racism undermines our vision of American exceptionalism.

Aharon: I committed to not being silent when people in my community say or share things that, to me, violate the principle that all human beings are created b’tzelem Elokim. But it’s really hard – I have a lot fewer “friends” than I did last week, and now I’m a little bit glad that I won’t be going to an extended family party for a while. I know that some of my friends who made the same commitment are afraid they’ll have to confront teachers they revere. What about you?

Rabbi: One of my teachers coined the term “sustainable hypocrisy” for the idea that people and communities should try to establish public images just a little better than they actually are, and then try to live up to them. This works if the image is just a little better, but not if the gap is large. I’m very happy that so many Orthodox organizations have made statements about committing to eliminating both gross and subtle racism within our ranks, but the gap is too large right now. I’m working to shrink it.

Here are two concrete measures that I think can be implemented soon:

1) having every school and shul put accountable policies in place to ensure that no one is ever asked to prove their Jewishness because of how they look.  I can’t tell you how many upsetting stories I have heard about admission interviews or about shul guests. I want to stress the accountability – right now these stories often go nowhere because there’s no safe address for complaints.

2) making clear at every level and in every context, from pre-school to kiddush club, that we view making racist comments as a violation of Halakhah. Statements by organizations or university presidents can too easily be dismissed as exercises in public relations. We need to translate them into consensus halakhic guidelines for shuls and schools with the imprimatur of major poskim. I resist formal sanctions for any but the most blatant or repeat offenders; but our positions and policies should be crystal clear.

Obviously there is much more to do. But if we can establish accountability and Torah rigor in core contexts, we’ll be in much better shape to address the harder questions about both our present and our past, and to provide serious Torah resources for thinking about partisan issues.

Our time together is almost up. Does one of you have a relevant question or comment about this week’s parshah?

Miriam: Well, Aharon and I were discussing, just before you came in, how this week’s parshah is always a gut-check for me because of what happens to Miriam, and maybe – I know this isn’t how most of the rishonim understand it – because she wasn’t welcoming to someone who looked different, and came from a different culture. I wonder how Mosheh Rabbeinu’s children were treated – maybe that’s why they never became communal leaders.

Rabbi: Yeyasher kochekh. A sobering thought to leave on. I look forward to our next conversation.

This dialogue is a work of ideological fiction. Any resemblance to actual persons, living or dead, is coincidental but artistically encouraging.

Pledges and Allegiances

by Rabbi Aryeh Klapper

The Nazirite is an ersatz High Priest. Taking a vow of nezirut forbids one to cut one’s hair or become tamei even for relatives, and just like a High Priest), and to drink wine (parallel to a priest who is actually performing Temple Service). Through the institution of nezirut, the Torah provides an outlet for those who cannot be satisfied by merely fulfilling what is required of them, or who cannot handle having G-d require more from someone else.

Is providing this outlet an ideal, or rather a concession? Is the nazir a laudably ambitious spiritual striver, or an obsessively hypercompetitive soulthlete?

Talmud Nedarim 9a-10a offers a wonderfully nuanced meditation on this question. We’ll start at the end and meander our way to the beginning.

The last unit of the sugya centers on a beraita:

ר’ אלעזר הקפר ברבי אומר:

וכפר עליו מאשר חטא על הנפש –

וכי באיזו נפש חטא זה?!

אלא שציער עצמו מן היין.

והלא דברים ק”ו:

ומה זה שלא ציער עצמו אלא מן היין – נקרא חוטא,

המצער עצמו מכל דבר – על אחת כמה וכמה!

מכאן:

כל היושב בתענית נקרא חוטא

The great Rabbi El’azar HaKappar said:

“and this will atone for him from his sin against a nefesh” –

What nefesh did the nazir sin against?

It must be that he afflicted himself by denying himself wine.

This generates a kal vachomer:

If the nazir, who only denied himself wine, is called a sinner,

one who denies himself everything – all the more so!

From here (we derive):

Anyone who fasts is called a sinner.  

Rabbi El’azar HaKappar presumably was in favor of fasting on Yom Kippur. But he nonetheless calls voluntary asceticism a sin. Perhaps it smacks of ingratitude for G-d’s Creation.

The Talmudic narrator, however, calls foul. The verse “and this will atone for him from his sin against a nefesh” refers to a nazir who accidentally violated his vow by becoming tamei. Isn’t that violation the sin, rather than the original oath?

There are too many scribal variants in the line that follows to know whether the challenge is answered here. However, the question plainly resonated with someone. Here’s how I know.

Yerushalmi Nazir 1:5 reports the following story:

אמר שמעון הצדיק:

מימי לא אכלתי אשם נזיר אלא פעם אחד

שעלה אחד אלי מדרום

וראיתיהו

דמות יפה עינים וטוב רואי קווצותיו תלתלים

ואמרתי לו:

בני, מה ראית להשחית השער הנאה הזה?!

נומא לי:

ר’, רועה הייתי בעירי, והלכתי למלאות את השאוב מים,

וראיתי את הבוביא שלי בתוך המים,

ופחז יצרי עלי ובקש לאבדני מן העולם.

אמרתי לו:

רשע, מה אתה מפחז בדבר שאינו שלך?! עלי להקדישך לשמים!?

וחבקתיו ונשקתיו על ראשו

ואמרתי לו:

בני, כמותך ירבו עושי רצון המקום בישראל

עליך הכתוב אומר איש או אשה כי יפליא לנדור נדר להזיר לה’

Said Shimon the Righteous (and High Priest):

In all my days, I never ate the asham-sacrifice of a nazir except once

when someone came to me from the south

I saw him –

beautiful eyes, good-looking, with curly locks –

and I said to him:

“My son,

What inspired you to shave this beautiful hair (as required at the end of the nezirut term)?”

He replied:

“Rebbe,

I was shepherding in my city, and I went to fill the trough with water,

and I saw my reflection in the water,

and my (evil) inclination seized me and sought to wipe me out of the world,

so I said to it:

‘Wicked one,

 you are seizing via something that is not yours? It is my obligation to sanctify you to Heaven!’”

I hugged him and kissed him on the head

and I said to him:

“My son,

May those who do the Will of the Omnipresent like you multiply in Israel!

Regarding you Scripture said: If a man or woman swears an oath of nezirut to G-d.”

Essentially the same story appears in the Bavli, except that this is the only asham-sacrifice of a nazir who became tameithat Shimon haTzaddik ever ate from. The addition of “who became tamei” lets the story match the context of the verse. But it seems now that Shimon HaTzaddik regarded only those nezirim who became tamei as sinners.  And why would the handsome southerner’s origin story be relevant to the issue of tum’ah?

The Talmudic narrator responds via a sharp observation about human nature. People mean it when they take a vow of nezirut, and they accept the required privations without regret – until something goes wrong, and they have to start over. Shimon HaTzaddik thought that every other nazir who had become tamei had regretted their original oath.

Understand that the nezirim who made it through without becoming tamei were just lucky – they too would have regretted their oaths had they become tamei. They had a cost-benefit calculation in mind when making their oath. Their motive for becoming nezirim was at least partly ego-gratification rather than truly “for G-d.” Yet Shimon HaTzaddik did not consider them sinners. Maybe we see the oath as channeling and sanctifying their evil inclinations rather than as indulging them.

That is a fine line indeed.  A third beraita presents the issue squarely:

חסידים הראשונים היו מתאוין להביא קרבן חטאת,

לפי שאין הקדוש ברוך הוא מביא תקלה על ידיהם,

מה היו עושין?

עומדין ומתנדבין נזירות למקום, כדי שיתחייב קרבן חטאת למקום;

ר’ שמעון אומר:

לא נדרו בנזיר

. . . כדי שלא יקראו חוטאין,

שנאמר: וכפר עליו מאשר חטא על הנפש.

The Early Pietists were desirous of bringing a chatat-sacrifice (which atones for accidental sins),

because the Holy Blessed One never causes missteps through them (so they never sinned accidentally).

What would they do (to satisfy their desire)?

They would arise and voluntarily vow nezirut to the Omnipresent,

so as to become liable for a chatat-sacrifice to the Omnipresent.

Rabbi Shimon said:

They did not take a nazir oath

. . . so as not to be called sinners,

as Scripture says: “and this will atone for him from his sin against a nefesh” –

The Early Pietists were frustrated by their lack of access to a category of religious experience. Moreover, G-d deliberately sets out to deny them this experience (as a reward!). But they found a loophole in His defenses.  The nazir brings a sin-offering even though taking the oath is not prohibited. So they took the oath, according to the anonymous first position in the beraita.

Rabbi Shimon denies this. What sort of Pietist sees sating their own spiritual appetite as justifying actions for which the Torah requires atonement?

This brings us back to the sugya’s opening beraita, which records a dispute between Rabbi Meir and Rabbi Yehudah. Rabbi Meir believes that oaths are best never taken; what justifies taking the risk of nonfulfillment, which is a deoraita violation. But Rabbi Yehudah says that the opportunity to fulfill a vow justifies the risk of non-fulfillment.

I suggest that Rabbi Yehudah affirms the religious value of autonomy. He understands why the experience of serving G-d through a self-imposed obligation can add something to the experience of serving G-d by obeying His entirely heteronymous commands. Rabbi Meir may have rejected autonomy altogether.  More likely, he read Halakhic Man and believed that all of Halakhah reflects human autonomy, because the law is formulated by human thought.

In the long-term, this sugya may be a useful “safe space” for thinking about whether and how we consider motives when people express a desire for religious experiences that are within halakhah but beyond their personal halakhic obligations. In the short-term, it can be a spur to thinking about whether and how to make public pledges about anti-racism in response to the horrifying killing of George Floyd.

I am leery of pledges – I like to be free to do the objectively right thing rather than being constrained by subjective commitments. There will always be costs that I had not sufficiently considered, and there’s often some element of grandstanding. Often we don’t really mean to make an unqualified and absolute commitment, and our exceptions eventually generate cynicism rather than inspiration. Fairly generic public pledges may be stalking horses for more extensive campaigns or ideologies I disagree with.

Most of all, I don’t want to create the misimpression that opposition to racism is imposed on Torah and Halakhah rather than deeply expressive of them.

On the other hand, pledges create human connections. People from radically different walks of life often trust each others’ pledges more than they trust each other’s overall moral systems.

Public pledges also create accountability. Putting commitments in nonHalakhic form makes it much harder to hide behind the wonderful complexities of our tradition.

Finally, pledges create pressure on others to do the same, and change the default settings of people without strong opinions.

Connections, accountability, and pressure are emphatically needed with regard to racism in the Orthodox community.

Balancing all these considerations, and with full credit to Uri l’Tzedek for creating an admirable anti-racism pledge, I wish to state the following:

There is a halakhic obligation to object and reprove when Orthodox Jews make racist statements in one’s presence.

There is a halakhic obligation to object and reprove when Orthodox community policies discriminate on the basis of race, whether implicitly or explicitly.

If you catch me failing to live up to these obligations, please hold me accountable.

2020 CMTL Shavuot Reader

The Center for Modern Torah Leadership is pleased to present its 2020 Shavuot Reader, with articles about the current pandemic and about Shavuot written by Rabbi Klapper and CMTL Alumni.

Do Real Cases Make Bad Law?

by Rabbi Aryeh Klapper

After the death of Rabbi Seligman Bar (Yitzchak Dov) Bamberger (the Wurzburger Rav) in 1878, his son Rabbi Moshe of Kissingen inherited the manuscripts of his father’s practical halakhic responsa. He was troubled about whether to publish them. The Torah in them was certainly publishable and would be eagerly received. But his father had asked him not to publish, because he held that responsa halakhah lemaaseh were less reliable than works of pure scholarship. So Rabbi Moshe turned to two of the great poskim of his time, Rabbi Naftoli Tzvi Yehudah Berlin (Netziv) and Rabbi Yitzchok Elchonon Spector.

The question he asked has at least three distinct components. The first is subjective and pastoral: How can I live with myself if I disobey my late father’s instructions, and yet how can I let parts of his contributions to Torah die with him? The second is objective and pragmatic: Does my obligation of kibbud av forbid me to do what I would otherwise think is right? The third is intellectual: Is my father’s opinion about the relative worth of responsa and novella correct?

Underneath it all was a worry: Maybe my father’s opinion was correct about his own responsa, and publishing them will damage rather than enhance his legacy.

Rabbi Spector’s response (printed in Zekher Simkhah p. viii, h/t ויקיפידיה)  was fundamentally pastoral. He saw no point in addressing the intellectual questions; what mattered was making the responsa publicly accessible while keeping the son whole. So he opens by expressing his hesitancy about getting involved lest he act against the true wishes of the late tzaddik, and he pleads illness to avoid examining the merits of the work (claiming that he isn’t even able to read the galleys of his own responsa!). His practical suggestion is that the son write a foreword stating his father’s wishes that no one rely on the responsa without examining the evidence for themselves (if they are competent to do so), and that they are intended to spur thought rather than to preempt it. Rabbi Spector cites as precedent that the Shakh’s introduction to Yoreh Deah and the Pri Megadim’s introduction to Hilkhot Pesach each demand that readers swear never to rely on their conclusions.

Such introductions rarely succeed. The positions of Shakh and Pri Megadim themselves are often cited for halakhic authority without reference to their reasoning, and Rav Moshe Feinstein introduced his first book of responsa with a similarly futile disclaimer. I’m confident that Rabbi Spector knew this. Perhaps his pastoral approach failed because Rabbi Bamberger could not suspend his disbelief, and that’s why the responsa were first published many years later, by a grandson.

Or perhaps it was Netziv’s fault. He tells Rabbi Moshe directly that his father was simply wrong (Meishiv Davar 1:24):

 “Regarding Your Honor’s presentation of your father zt”l’s opinion not to print the responses he wrote halakhah lemaaseh, on the ground that one ought not rely on a responsum as much as on what is written in the course of studying a topic, when you get to know it more comprehensively and accurately than you do at a time that someone comes to ask you something. He rested his words on the consensus of poskim to rely on the Piskei HoRosh more than on his responsa, and also on Chazal’s statement that “One does not learn halakhah from what was ruled in practice.” That is the substance of what you wrote in the name of your father zt”l.

But in my impoverished opinion, the words are utterly incorrect in their reasoning:

On the contrary, at the time (poskim) respond halakhah lemaaseh – they reach the depth of the matter than when the topic come up in the course of learning, and also there is more siyata dishmaya (assistance from Heaven) in the practical moment, and Chazal said in Ketubot (60b) that siyata dishmaya is very helpful in issuing correct ruling, and it also says in Bava Batra (130b) that “One does not derive Halakhah from learning nor from what was ruled in practice, rather one must wait until one is told “This is halakhah lemaaseh.” See Rashbam’s commentary there. Similarly, in Sanhedrin (86b) regarding the Rebellious Elder: “If he taught in the manner he was used to – he is exempt; but if he ruled lemaaseh – he is liable,” so we see that ruling lemaaseh is more serious.

As for the consensus of the poskim that we rely more on the Piskei HoRosh than on Rosh’s responsa when they differ – this is not a reasoned position, but rather a tradition from Rosh’s son Rabbi Yehudah, and presumably his son knew that the psakim were written later than the responsa, and ROSH had recanted . . . so Torah that emerges in the moment of responding lemaaseh is stronger and more closely coordinated with truth than what emerges from a person’s mind while learning. The great scholars who did not wish to publish their responsa had a different rationale; they knew that one is entitled to place more reliance on responsa, and they did not wish (the responsibility of having) others rely on their opinion, whereas they knew that people do not rely on halakhic novella, and so were not concerned about publishing them.”

I think Netziv clearly has the better case based on precedent.  For example, “We do not derive halakhah from the ruling in a practical case” probably refers to instances where we know the ruling but not the reasoning, so what is unreliable is our interpretation rather than the ruling itself.

However, Rabbi Bamberger may have known himself well. I suspect that he was making a subjective rather than an objective claim; my teshuvot are not as solid as my scholarship.

Netziv and Rabbi Bamberger have been on my mind during this crisis as I read some great contemporary  collections of in-the-moment responsa, and make some efforts to generate my own. Some people’s minds are sharpened by urgency, and their conclusions and reasoning become wonderfully solid and consistent. Others meet their communal responsibilities but are scrambling to match their own usual standards of clarity or judgment. We owe them all gratitude. We also owe them all the effort to evaluate their reasoning rather than uncritically granting them authority, and therefore the whole burden of responsibility. One of the best elements of halakhic leadership during this crisis has been the way that public halakhic pronouncements have often been issued only after broad consultation, and then modified in response to practical feedback.

Moreover, as Netziv sets out in the magnificent introduction to his commentary on Sheiltot d’Rav Achai Gaon, some Torah scholars are much better at making decisions than at explaining them, and others are much better at explaining decisions than at making them.

I don’t know whether Rabbi Bamberger fell into either group. But some rulings by necessity are issued without the opportunity for comprehensive research or unhurried reflection. Responsa lemaaseh are often written after the fact, and always have been. Rabbi Bamberger could always have taken the time later to write comprehensive responsa.

But it’s very hard to do objective research once one has ruled in practice. I wonder whether Rabbi Bamberger suspected himself of defensiveness, and feared that his responsa sometimes drew the target around the arrow, whereas his scholarship drew the target before the arrow was shot. That would be only human.

But if that was his concern, I’m glad in the end that it was not heeded. We have no choice but to look to human leaders. But we are blessed when our leaders are conscious of their humanity, and the Torah of such leaders should long endure.

Halakhah and Moral Intuition: A Case Study

by Rabbi Aryeh Klapper

In the midst of an exhortation to provide the newly poor with interest-free loans, Vayikra 25:36 declares

וחי אחיך עמך

and your brother will live with you.

A beraita on Bava Metza 62a cites Rabbi Akiva as making two astonishing interpretational moves with regard to this phrase. First, he contends that it relates to immediate life-and-death situations rather than to loan terms. Second, he contends that it creates a hierarchy rather than an equation: the obligation to save your brother’s life applies only if he will live with you.  You therefore have no obligation to save his life at the expense of yours.

The beraita deliberately presents Rabbi Akiva’s position as morally counterintuitive.  It begins by presenting the position of Ben Petora as derived from moral reason, whereas Rabbi Akiva responds with an argument from Scripture:

שנים שהיו מהלכין בדרך, וביד אחד מהן קיתון של מים,

אם שותין שניהם – מתים; ואם שותה אחד מהן – מגיע לישוב.

דרש בן פטורא:

מוטב שישתו שניהם וימותו,

ואל יראה אחד מהם במיתתו של חבירו.

עד שבא רבי עקיבא ולימד:

חייך קודמים לחיי חבירך.

Two people traveling on the way

with a canteen of water in the hands of one

If both drink – they die; in one of them drinks – he reaches a settlement.

Ben Petora taught:

Better that both drink and die,

and let not one of them see the death of his fellow:

Until Rabbi Akiva came and taught:

“and your brother shall live with you”

Your life has priority over that of your fellow.

Why is Rabbi Akiva counterintuitive? Most likely because he directly contradicts what the Talmud understands to be Judaism’s most fundamental principle of moral reason (Pesachim 25b, Yoma 82b, Sanhedrin 74a).  The principle is formulated as a rhetorical question: “Mai chazit dedama didakh sumkin tfei? Dilma dama dechavrekh sumkin tfei! What have you seen (that makes you say) that your blood is redder? Perhaps your fellow’s blood is redder!”  The halakhic consequence of mai chazit is that one cannot kill someone else to save oneself. But the same logic applies to lifesaving.

However, Ben Petora is not the only possible result of applying mai chazit to the canteen case. One might instead have the two travelers flip a coin for the water, or forbid both from drinking any water at all.

Nor is it absolutely clear that mai chazit forbids all possible cases of killing to save your own life. Tosafot point out that the mai chazit question can be asked in reverse: “What evidence suggests that his blood is redder than yours?” Tosafot conclude that mai chazit requires one to stay passive when faced with a choice between lives.  You can do this even when halakhah constructs passivity as a violation of murder or bloodshedding.

Maybe Tosafot would allow this even when halakhah constructs your activity as merely passive. That way you can reach Rabbi Akiva’s result, as drinking the water is only a violation of “Do not stand idly by your peer’s blood.”  Rambam by contrast requires one to actively choose death before violating any prohibition of killing.  Rabbi Chaim Soloveitchik argues that because the Talmud presents Rabbi Akiva as counterintuitive, Rambam must be correct, and Tosafot incorrect.

But Rabbi Akiva’s position is nonetheless accepted by halakhah. What does that say about halakhah’s relationship to its own deepest moral intuition?  Plainly that intuition is overruled by and your brother will live with you. But to how great an extent?

Let me raise the stakes before answering. Rambam holds that the mai chazit principle is not just about choosing yourself, but rather even about choosing yourself; kal vachomer a third party cannot choose between two other lives. This is the meaning of Mishnah Ohalot’s declaration that while one can abort a fetus to save its mother, one cannot commit infanticide once the child’s head as emerged, because ein dochin nefesh mipnei nefesh, “we do not push one human nefesh aside for the sake of another.”

Rabbi Akiva’s overruling might mean only that in the context of lifesaving, one is entitled to prioritize one’s own life over another’s. But if mai chazit is all that forbids third parties from choosing to kill one person to save another (outside the context of rodef), perhaps Rabbi Akiva implies more radically that mai chazit does not apply to lifesaving.  In the context of triage, we therefore can and should develop criteria to decide whose blood is redder.

This opens the door to understanding the last units of Mishnah Tractate Horayot as establishing triage criteria: Kohens precede Levites, men precede women, and so on. For most halakhists, however, and in that category I include myself, Horayot cannot be interpreted in a way that fundamentally denies mai chazit.  It seemingly follows that Rabbi Akiva intends only to permit choosing one’s own life, and has no implications for choices made by third parties.

This understanding of Rabbi Akiva raises its own moral difficulties. If two people are dying of thirst in the desert, and a third party comes along with enough extra water to save one but not both, what should he or she do? The narrow reading of Rabbi Akiva leads to the conclusion that third parties must follow Ben Petora, and split the water between the two: “Let both die, but let neither see the death of his fellow.”

Here we reach a crucial realization. The Talmud presents the reasoning of mai chazit as intuitive, such that Rabbi Akiva requires a Biblical verse to overrule it. But this does not require that all the practical implications of mai chazit are intuitive. Following an intuitive principle can lead to profoundly counterintuitive results. If one can never choose among lives, one will sometimes be forced to watch both die rather than save one.

Maybe that is the price we have to pay in order to prevent people from choosing to save people like themselves over people unlike themselves. However, I think there may be a way for halakhah to thread the needle and avoid Ben Petora’s conclusion without opening a Pandora’s box.

Why does Ben Petora require the two travelers to split the water? Rabbi Chaim Soloveitchik in his novellae on the Rambam suggests that according to mai chazit, neither of them could choose to drink. Really, they should both die with the canteen still full.  Even Ben Petora can’t abide a result that absurd, so he allows them both to drink half. That way, neither chooses his own life at the immediate expense of his fellow’s.

Rabbi Akiva’s verse comes to teach that halakhah does not want absurd results. When not choosing yields a morally absurd result, halakhah allows you to choose your own life over another’s.

What should third parties do in similar situations? For example: Unlike canteens of water, ventilators cannot always be split between patients. Failure to choose would mean intubating neither patient, and letting both die.

We might point out again that Ben Petora’s ruling is not the only possible outcome of applying mai chazit to lifesaving situations.  We could treat patients in the order of arrival, and flip a coin if they arrive simultaneously.

I suggest instead the following. In a YU symposium on CRISPR technology, Rabbi J. David Bleich suggests that the Torah needs to grant permission to heal because healing seems to encroach on G-d’s domain, “playing G-d.”  He argues that the Torah’s permission to manipulate the human body is therefore confined to actions that can be constructed as “healing.”

By the same token, the Torah’s permission to heal allows doctors to heal as effectively and efficiently as they can, even when this entails choosing which patients get access to limited resources. But this permission extends only to choices based on purely medical criteria, and only on the axis of healing. There is no basis for applying the non-medical criteria of the Mishnah in Horayot, or for considering a patient’s life-expectancy independent of illness or injury. This enables triage to remain within the bounds of mai chazit.

Triage and Ventilators: The Position(s?) of Rabbi Shlomo Zalman Auerbach zt”l

by Rabbi Aryeh Klapper

In the second edition of Responsa Minchat Shlomo (vol. 2-3), #86 Section 1 is titled “Rules of Priority with regard to Treatment and Ventilators.” The section is only three paragraphs long, and yet succeeds in contradicting itself twice, once in a way that has important practical halakhic implications.

The responsum opens by citing Pri Megadim (Mishbetzot Zahav 328:1):

“If there is one whom the doctors et al say is definitely in danger (of dying), and another who may be in danger, and there is only enough medication for one of them – the definite pushes aside the doubtful.”

Pri Megadim cites no evidence for this position, and it seems plainly to contradict the statement in Mishnah Ohalot 7:6 that “we do not push aside one nefesh because of another nefesh.”

Nonetheless, Rabbi Auerbach treats it as dispositive precedent. More than that – he uses it as the basis for a more expansive claim:

ולכן צריכים בעיקר להתחשב עם גודל הסכנה

Therefore, one must essentially consider the extent of the danger

and the odds of saving

Pri Megadim made no reference to the “odds of saving”, only to “the extent of the danger.”

If one treats Pri Megadim’s statement as the product of formal legal reasoning, there seems no basis for Rabbi Auerbach’s extension. Rabbi Auerbach also does not discuss what happens if his two criteria point in opposite directions, such as if the more endangered patient is less likely to respond to treatment.

It therefore seems that Rabbi Auerbach understood Pre Megadim as making a general claim, based on reason, that the obligation to save lives, or more precisely the prohibition against failing to save lives, should be fulfilled in the manner that will statistically save the most lives.

Rabbi Auerbach acknowledges that allowing any such choices risks a slippery slope. He immediately denies that the relative age of the patients plays any role, without explaining why.  He references the last Mishnah in Horayot, which can be understood as giving priority to men over women, kohanim over Levites, etc., but states – again without explaining why – that “I think it is difficult to act in accordance with this.”

He then expresses strong doubt as to whether the standard derived from Pri Megadim justifies removing a ventilator. This doubt is formulated via a loose analogy – it may be “as if the first patient has acquired the machine.”  Even Pri Megadim would concede that a dangerously ill patient has no personal obligation to give way to someone sicker or more likely to be saved. If a patient is entitled to resist the machine’s removal, then the doctor has no right to remove it without consent.

Another loose analogy suggests that doctors involved in treating a patient cannot decide to abandon them for another on the basis of efficiency, because “one engaged in a mitzvah is exempt from another,” and in some cases is even forbidden from switching to the second mitzvah.

Rabbi Auerbach ends the first paragraph by commenting that he is not seeking to nail the Halakhah down, because the questions are grave, and he has no clear evidence from precedent.

The second paragraph opens by endorsing a hospital protocol that refuses ventilators to patients who are described as treifot, on the grounds that experience shows that non-treifot patients will soon arrive. Rabbi Auerbach says that this makes sense because it would be forbidden to remove the ventilator from the treifah patient, since that removal would be active killing, and it is taken as given that a subsequent healthier patient would not be allowed to kill the treifah and seize the ventilator.

Rabbi Auerbach closes by apparently endorsing the order of priority in Horayot should two patients arrive in medically identical condition, but acknowledges that other decisors disagree.

The two contradictions I see are:

The first paragraph forbids removing ventilators based only on the loose analogy to ownership.  The second describes removing ventilators as active killing.

The first paragraph states that the objection to using the order in Horayot is practicality, while the third paragraph mentions only that its use would be controversial.

In addition, the Hebrew term for ventilator in the first paragraph is machshir hanshamah, while the second paragraph uses mekhonat hachaya’ah.

All this suggests that this responsum is cobbled together from multiple sources. Such an approach is methodologically risky when speculative. In fact, I initially developed an imaginative but completely wrong reconstruction. But happily there ends up being no need for speculation.

The first edition of Minchat Shlomo prints our responsum as #82 Section 2, and provides separate headings for the paragraphs. Paragraph 1 is addressed to Dr. Shimon Glick, while Paragraphs 2-3 are addressed to Rabbi Moshe Shternbuch.

Even the first edition does not provide the text of the initial questions. However, Rabbi Shternbuch prints his question in his own responsa collection, Teshuvot veHanahagot 1:858.  At the suggestion of SBM alum Rabbi Elli Fischer, I wrote to Dr. Glick, who graciously searched his files and emailed me a pdf of his question and Rabbi Auerbach’s answer.  (A photo of the answer, but not the question, was published in the periodical Assia.) With the questions in hand, we may be able to explain why Rabbi Auerbach’s response to Rabbi Shternbuch says that removing a ventilator is forbidden as killing, while his response to Dr. Glick mentions only the concern that the patient has acquired a right to treatment.

But first we need to make the contradiction worse.  As Rabbi Dr. Avraham Steinberg notes in a forthcoming article, the second edition of Minchat Shlomo simply left the penultimate line out of the first paragraph.  Here it is:

ובנוגע למכשיר הנשמה –

חושבני שתלוי בשיקול הדעת של הרופא,

ואם על פי רוב זה כבר ללא תועלת –

מוטב להעביר את זה לשני

Regarding the ventilator –

I think that it depends on the doctor’s judgment

and if the odds are that it is already not purposeful –

it is better to move it to the second patient.

Now we have three positions regarding removal of ventilators. (Or even four: the manuscript shows that Rabbi Auerbach originally wrote that it was barur kashemesh, clear as day, that it depends on the doctor’s judgement, but crossed that out and wrote instead “I think.”) Can they be brought together into a coherent whole?

A key starting point is that Dr. Glick and Rabbi Shternbuch asked different questions. Dr. Glick discussed triage choices without using technical halakhic descriptors such as treifah, and made no statements about existing policy. Rabbi Shternbuch reports a question from a doctor that specifically discusses choosing non-tereifot over tereifot, and in the context of an established policy refusing treatment to tereifot.

Rabbi Auerbach’s response to Rabbi Shternbuch is that removal of ventilators in the context of patients who will clearly die without the ventilator is likely murder, and therefore forbidden. Dr. Glick’s question however extends even to choices between patients both whom may live regardless, although their odds of survival are increased by ventilation. In such cases, the issue of murder may not apply, but the question of a right to treatment may.

The key practical question is what standard Rabbi Auerbach intended by saying “if the odds are that it is already not purposeful.” The understanding that seems to me most likely is that he meant “if the odds are that ventilation is not prolonging the patient’s life.” This position is not obvious, and therefore must be stated, it might be forbidden to remove a ventilator so long as there is any chance that it is prolonging life. It seems to me that this is the only case involving dying patients that would not run afoul of the position in the letter to Rabbi Schternbuch that removing a ventilator is considered active killing.

I need to make clear that I am not endorsing either Rabbi Auerbach’s conclusions or his reasoning. My own strong preference, and ongoing effort, is to develop a halakhic ethics of triage that fiercely resists any efforts to attenuate the force of the statement that we do not push aside one nefesh for the sake of another. I am very grateful to those who have challenged and honed my thinking in the series of ZOOM shiurim on this topic, and invite you to join us this coming week.

Social Distancing in Halakhah: The Dispute between Rambam and Ramban about Harchakot Niddah

by Rabbi Aryeh Klapper

Negative Commandment #353 in Maimonides’ Book of Commandments prohibits hugging, kissing, and similar activities between men and women who are Biblically forbidden to have sex with each other, including couples where the woman is niddah. This prohibition is derived by Sifra (midrash Halakhah to Vayikra) as follows:

1. Vayikra 20:18 declares that niddah-sex leads to the punishment of karet for both men and women.
2. Vayikra 18:19 formulates the prohibition as lo tikrav legalot ervatah. “Lo tikrav” literally means “do not draw near.” This mandates harchakot (distancings) beyond avoiding intercourse, although the punishment of karet applies only to intercourse.
3. Vayikra 18:6 formulates a general prohibition against incest as lo tikrevu legalot ervatah. The prohibitions of harchakot therefore apply to all such relationships as well.

However, Sifra does not obviously support Maimonides’ conceptualization of all Biblical harchakot as a single mitzvah applying to both incest and niddah, and perhaps adultery.  Rather, harchakot for incest and niddah are derived independently.

Nachmanides disagrees with Maimonides and holds that harchakot are not an independent mitzvah. He also rejects Sifra’s derivation of the prohibitions, arguing that the verb krv is often a euphemism for intercourse. He offers two alternatives. The first is that harchakot are Rabbinically rather than Biblically prohibited. The second is that they are Biblically prohibited, but do not constitute an independent mitzvah. Rather, harchakot are subsumed into the individual prohibitions against intercourse.

Nachmanides explains the second option via analogy. Many prohibitions are punishable only if the violation exceeds a threshold shiur/measurement. However, Rabbi Yochanan held that violations falling below that threshold are still Biblically prohibited “because they can be combined.” For example, the shiur for eating forbidden foods is generally an olive-size, but eating less than an olive-size of pork (chatzi shiur) remains Biblically prohibited according to Rabbi Yochanan. Nachmanides suggests that hugging, kissing, etc. are parallel to chatzi shiur violations:

דכל דמתהני מאיסורא – איסורא הוא

כענין בחצי שיעור

Because everything that derives benefit from prohibition – is itself prohibited
in the manner of violations below the threshold shiur

How seriously should we take this analogy? Conceptual halakhists generally distinguish between chatzi shiur, where the prohibited action is done to an undersize object, and chatzi ma’aseh, where the action itself is incomplete.  For example, Rabbi Yochanan conceded that carrying an object less than 4 cubits in a public domain on Shabbat is not Biblically prohibited. Surely hugging, kissing, and even mixed dancing are more like a chatzi ma’aseh of intercourse than a chatzi shiur! So what does Nachmanides gain by introducing the analogy? (Note also that there is also much discussion of whether chatzi shiur is an independent generic prohibition or rather an internal aspect of all other prohibitions.)

I suggest the following.  Yoma 74a says that Rabbi Yochanan’s rationale for prohibition is

כיון דחזי לאיצטרופי

since it can be combined

The classic conceptual question is whether this means that chatzi shiur is prohibited lest one continue on to a full-shiur violation, or rather that the existence of the full-shiur prohibition demonstrates that G-d objects to the performance of this action with this object (and if, e.g., one ate 1.5 olive-sizes of pork, the prohibition would relate equally to each molecule). By staking his rationale on “deriving benefit,” Nachmanides makes clear that his analogy is to the second understanding of the prohibition against chatzi shiur.  In other words, he views harchakot not as preventive measures, but rather as activities that are wrong in and of themselves.

This position has potentially radical implications. If harchakot are preventive, then plausibly in circumstances where there is no risk of a slippery slope, they can be permitted. But such circumstances are irrelevant if harchakot are intrinsically prohibited.

However, Nachmanides offers this analogy in support of the possibility that harchakot are Biblically forbidden but not a separate mitzvah. The bulk of his discussion assumes that they are Rabbinically forbidden.

Moreover, Nachmanides argues that Rabbinic prohibitions allow more room for subjective considerations. He cites a number of Talmudic stories which endorse great rabbis’ physical interactions with female relatives on the grounds of purely innocent intent. “If this were an absolute Biblical prohibition, it would not be permitted to pious sages to act this way even when doing so for the sake of Heaven.  Rather, everything is a fence and a barrier, and permitted with relatives to men who have an established reputation of being above suspicion in these matters and who avoid such behavior with other women.”

How can Nachmanides reject Sifra out of hand? He contends that all Talmudic positions reject it.  On Shabbat 13a and and Avodah Zarah 17a, the Amora Rabbi Pdat is cited as saying

לא אסרה תורה אלא קורבה של גלוי עריות בלבד

The Torah forbade nothing but the kurvah of actual intercourse

This directly contradicts Sifra’s notion that the verb krv extends the prohibitions beyond intercourse.  However, in each case Rabbi Pdat’s statement is introduced with the term ופליגא, meaning that it disagrees with what came before. Perhaps what came before agreed with Sifra! Nachmanides responds that no, what came before argued for a Rabbinic prohibition of a specific behavior, and Rabbi Pdat argued that such behavior was entirely permitted.

This seems difficult to fit with Rabbi Pdat’s language. Even if we agree that לא אסרה תורה does not necessarily imply a Rabbinic prohibition, how can it be read as rejecting such a prohibition? Nachmanides argues that in context it can be, as follows:

The sugya on Shabbat 13a opens with a query: Is it permitted for a husband and wife to share a bed while she is niddah if both remain clothed?  Nachmanides explains that the question assumes that despite the clothing, they will touch each other and feel each other’s body heat. In other words, the experience will be erotic.

Rav Yosef argues that such behavior must surely be forbidden as a preventive, just as we prohibit having chicken and cheese on one’s table together.  But the Talmud rejects this proof, arguing that the husband and wife can serve as checks on each other, and the requirement to be clothed will serve as a reminder that intercourse is prohibited.

The Talmud eventually finds a dispositive proof.  An anonymous beraita derives from Yechezkel 18:6 an analogy between the prohibitions of adultery and niddah, and concludes: Just as sharing a bed together with both clothed is forbidden to a man with another’s wife, so too it is forbidden to a man with his own wife in niddah.  It is this beraita that Rabbi Pdat’s statement disagrees with.

Nachmanides argues that the analogy between niddah and adultery leads to banning all eroticism, even if it will not lead to intercourse.  He understands the prohibitions against men deriving erotic pleasure from looking at or listening to another man’s wife as intended that way.  Rabbi Pdat responds that the intent of the Torah in the context of niddah is to prevent intercourse only. He therefore rejects the beraita’s analogy to adultery, and holds that Rabbinic preventions in the context of niddah are legitimate only if they tend to prevent intercourse. Furthermore, he holds that when there are “two minds” able to check each other, and there  is a heker, a change in behavior that serves as a reminder of the prohibition against intercourse, one need not be concerned that intimacy will lead to intercourse.

Nachmanides does not tell us whether he rules like Rav Pdat. Furthermore, he understands Rabbi Pdat as fully agreeing with harchakot that might lead to intercourse. His willingness to allow subjective leniencies probably also carries with it stringent implications, for example if an interaction has specific erotic implications for a couple, or a society. For example: Rabbi Pdat would agree that in a society where pajamas are standard, being clothed in bed could not function as a heker. Practical halakhah certainly adopts great stringencies in this regard.

Nonetheless, it seems to me that Nachmanides’ comprehensive effort to refute Maimonides signifies an endorsement of Rabbi Pdat’s underlying principle that harchakot in the context of niddah are very different than those in the context of adultery. However, practical halakhah appears to have rejected this approach, as many of the harchakot we practice seem very distant from concerns that they will lead to intercourse.

CMTL Pesach Reader, 2020 Edition

Check out our Pesach Reader 2020, with articles about Pesach (and Coronavirus) by Rabbi Klapper and CMTL alumni!

Stay healthy and have a Chag Kasher VeSameach!

The First Sacrifice

This week’s alumni Dvar Torah is by Tuvy Miller

Sefer Vayikra opens by presenting korbanot (sacrifices) as a fundamentally human activity.

דַּבֵּ֞ר אֶל־בְּנֵ֤י יִשְׂרָאֵל֙ וְאָמַרְתָּ֣ אֲלֵהֶ֔ם

אָדָ֗ם כִּֽי־יַקְרִ֥יב מִכֶּ֛ם קָרְבָּ֖ן לַֽיקֹוָ֑ק

מִן־הַבְּהֵמָ֗ה מִן־הַבָּקָר֙ וּמִן־הַצֹּ֔אן תַּקְרִ֖יבוּ אֶת־קָרְבַּנְכֶֽם: 

Speak to the children of Israel, and say to them:
When an adam from [among] you brings a sacrifice to the Lord;
from animals, from cattle or from the flock you shall bring your sacrifice.

Why “אדם?”

Tanhuma Yashan (Tzav #2) offers the following interpretation:

למה נאמר אדם?

אלא אמר הקב”ה: כשתהא מקריב לפני – תהא כאדם הראשון

שלא היה גוזל מאחרים, שהוא היה יחיד בעולם

כך אתה לא תהי’ גוזל לבריה.

למה? כי אני ה’ אוהב משפט שונא גזל בעולה

Why is the term “adam” used?
The Holy Blessed One said: When you sacrifice before Me – you must be like Adam
who did not rob from others, since he was alone in the world.
So also you shall not rob people. Why? (Is. 61:8:) BECAUSE I THE LORD LOVE JUSTICE, I HATE ROBBERY WITH A BURNT OFFERING.

This interpretation assumes that Adam brought sacrifices. However, the text in Bereshit makes no mention of this. The straightforward reading appears to be that Kayin and Hevel were the first to sacrifice. On what basis does the Tanhuma assume that Adam sacrificed?

RaDaK (Bereshit 4:3 s.v. “vayehi”) also assumes that Adam sacrificed, and that Kayin and Hevel were following in his ritual footsteps.

כי מן הדומה הקריב אדם קרבן לה’ …וזה דרך ההודאה לק-ל, ואף על פי שהכתוב לא זכר מזה…

ובניו למדו ממנו והביאו כל אחד מהמלאכה שבה היה מתעסק

ולהודות לא-ל על הטובה שנתן לו בעבודתו.

Adam presumably offered sacrifices to God…
and this (sacrifices) is the way of thanking God, even though the text does not mention it…
and his sons learned from him and each one brought from (the products) of his particular work
to thank God for the good that he had been given in his labor.

Adam naturally offered sacrifices as a way of thanking God, and his sons followed in his stead. [1]

Another possible approach emerges from Maimonides’ discussion of the mizbeah (altar).

רמב”ם הלכות בית הבחירה פרק ב הלכה ב

ומסורת ביד הכל

שהמקום שבנה בו דוד ושלמה המזבח בגורן ארונה

הוא המקום שבנה בו אברהם המזבח ועקד עליו יצחק,

והוא המקום שבנה בו נח כשיצא מן התיבה,

והוא המזבח שהקריב עליו קין והבל,

ובו הקריב אדם הראשון קרבן כשנברא 

ומשם נברא,

אמרו חכמים: אדם ממקום כפרתו נברא.

It is a universally accepted tradition
that the place on which David and Solomon built the Altar, the threshing floor of Ornan,
is the location where Abraham built the Altar on which he bound Isaac.
and is the location where Noah built [an altar] when he left the ark.
It was also [the place] of the Altar on which Cain and Abel brought sacrifices.
[Similarly,] Adam, the first man, brought a sacrifice there when he was created
and he was created from (the earth at) that very spot
as our Sages said: “Man was created from the place where he [would find] atonement.”

Rambam offers a clue as to where we might look for textual evidence that Adam brought sacrifices  – they were brought at the time and place of his creation. We should therefore look closely at the Torah’s description of Adam’s earliest moments, even before he was placed in the Garden.

Adam’s creation is described in Bereshit 2:7:

וַיִּיצֶר֩ יְקֹוָ֨ק אֱ-לֹהִ֜ים אֶת־הָֽאָדָ֗ם עָפָר֙ מִן־הָ֣אֲדָמָ֔ה

וַיִּפַּ֥ח בְּאַפָּ֖יו נִשְׁמַ֣ת חַיִּ֑ים

וַֽיְהִ֥י הָֽאָדָ֖ם לְנֶ֥פֶשׁ חַיָּֽה:

7 And the Lord God formed the human of dust from the ground,
and He breathed into his nostrils the soul of life,
and the human became a living soul.

In the most straightforward sense, נשמת חיים means “breath of life”, which makes Adam into a נפש חיה or living creature. Onkelos, however, translates נפש חיה as “רוח ממללא”, referring to Adam’s capacity for speech and thought. In this understanding, נשמת חיים is more than just life – it is essentially the tzelem Elokim, [2] or the intellect, familiar from Bereshit chapter 1.

In the creation story of chapter one, a primary expression of tzelem Elokim is mastery of the natural world (Bereishit 1:26,28). The purpose of Adam’s intellect in chapter two is not as clear. One possibility emerges from the following midrash (Torah Sheleimah 2: #140):

נשמת – מלמד שעל כל נשימה שאדם עושה, חייב לקלס לבוראו, שנאמר כל הנשמה תהלל קה

“Nishmat” – This is to teach us that a person must praise God for every breath they take…

This Midrash associated neshamah with the obligation to praise God. If נשמת חיים is the intellect, [3] what follows is that on some level, upon his entry into the world, Adam must use his tzelem Elokim, his intellect, to praise God.

Putting Chapters 1 and 3 together, we can therefore say that Adam’s intellect is to be used in mastery of the natural world and in praising God. [4] Korbanot are a prime example of using mastery of the natural world to praise God. Thus the description of Adam as nishmat chayyim supports the idea that he must have sacrificed.

This interplay between tzelem Elokim and nishmat hayyim is expressed beautifully by Meshekh Hokhma to Bereshit 4:3:

…והענין מושכל,

כי לא בחר השם בקרבן כי אם בהשתתף מעשה האדם בזה,

כמו בעל חי שהאדם טורח בטיפולו ובגידולו

לכן אסרה תורה מחוסר זמן,

שכיון שנולד והוא נגמר מהטבע בלבד – לא ירצה . . .

And the matter is intuitive –
for God only wants a sacrifice (that was produced) with human participation,
for example an animal, that a person toils to raise and care for.
Therefore the Torah forbids an underage animal, as because it was born and completed by nature alone – it would not be accepted.

For R. Meir Simha, korbanot entail taking human mastery of the natural world and offering it in praise [5] to God. This prevents human haughtiness while also conveying that God desired human creative expression as a means of worship.

In our original Midrash, Adam is held up as an example of one who did not offer stolen sacrifices. In truth, he could not bring a stolen korban, because there was no one from whom to steal. He had almost the entire world to master. In our quest to praise God, the Midrash reminds us that we cannot allow our mandate of וכבשוה to run amok. We must recommit to our elemental tzelem Elokim and nishmat hayyim as we seek to navigate a turbulent world.

 

Notes:

[1] In asserting that korbanot are “דרך ההודאה לק-ל” RaDaK appears to be siding with Ramban in his dispute with Rambam about the fundamental purpose of korbanot (or at least against Rambam). See, also, Ramban’s comments here- “וזה יחסום פי המהבילים בטעם הקרבנות”.

One might expect more explicit mention of the first time sacrifices are offered.

Ramban (4:3 s.v. “vayaveh”) suggests that Kayin/Hevel understood the סוד הקרבנות, which might mean that they arrived at this knowledge independently, without Adam’s example. This reading does not preclude Adam having brought korbanot; it simply does not serve as convincing support.

[2] See Moreh Nevukhim 1:1. Understanding נשמה as intellect has antecedents in the book of Iyyov (32:8, 33:2-4).

[3] Though this midrash seems to understand it as breath.

[4] A fusion of chapter one and chapter two.

[5] Though in fairness he does not say that here.

 

Tuvy Miller (SBM 2013) is in his final year of semikha at RIETS.

Facing the Halakhic Challenges of the Current Crisis

by Rabbi Aryeh Klapper

The ongoing Covid-19 crisis presents our community with innumerable practical challenges. As with all political leadership, halakhic crisis management depends on effective communication as well as effective action. Led by the superbly Nachshonian RCBC, local and national Modern Orthodox leadership has done a superb job of communicating the absolute priority of social distancing. There have also been many substantive halakhic opinions issued on narrower issues. But the effectiveness of those opinions has sometimes been limited by challenges of communication.

Let me start with an example that is about the context of halakhah, rather than about halakhah itself.  There have been many statements about the safety of mikvaot, and therefore the permissibility of immersion, for women who are not at high risk. These properly include caveats that our information about the virus is constantly being updated, which justifies the exclusion of high-risk women.

This is very important. But there are other issues that also must be dealt with. An excellent Israeli directive began with the following:

A woman who feels terrified by the necessity to go to mikveh – is not obligated to immerse.

Her life and peace of mind come before all.

From a halakhic perspective, she of course remains in a condition of prohibition until she next immerses.

Together with this, I will try to explain, as one who is in charge of the mikvaot of X, why in my humble opinion immersion in the mikvah is secure with a high degree of likelihood.

This creates an entirely different tone. It expresses a sensitivity to the possibility of spousal coercion, and validates a woman’s right to make their own judgments about safety. It makes clear that trust must be earned rather than assumed.  This makes it much more likely that trust will be earned.  And that trust will be greatly needed.

At the same time, even this statement has no long-term plan for a community in which many women feel that the mikvaot are genuinely unsafe, let alone for the couples in which the women are being specifically told that they should not go, with no prospect of short-term change. There is also a possibility that experiencing the mikvah under hazmat conditions will be immensely stressful for a significant number of women, with long-term effects.

We also need a plan that can survive our being wrong a few times, as we inevitably will be.  Some mikvah somewhere will likely become at least a suspected vector of infection at some point. What resources will we have to demonstrate that it is an anomaly, and that just about every mikvah is in fact punctiliously carrying out recommended best practices? I personally am reeling from the number of infections in Israel attributed to Purim celebrations.

There may be no such plan. But we also cannot casually expect mass religious heroism. In the absence of confidence that we have a humanly realistic plan, people will embrace other plans that seem humanly realistic, even if we strongly doubt their halakhic bona fides.

A major challenge here is that halakhah has a strong preference for dealing with exceptions to standard law in a private, case-by-case fashion. There are good reasons for that – making public exceptions weakens the law and leniencies are often abused. Keeping leniencies individual enables poskim to be more flexible in each case. But I suspect there is a tipping point at which everyone knows that there will have to be so many exceptions that a public rule is necessary.

It would be helpful if we could effectively teach ROSH’s idea that some halakhic positions are totally out of bounds – except in emergencies.  ROSH held that a dried out lulav was Biblically invalid under ordinary circumstances, but that when literally no other lulav was obtainable, one could make a blessing on a dried out lulav. One would be perfectly justified in denouncing someone who counseled the use of a desiccated lulav in an ordinary year. But what if there’s a legitimate reason to fear that no lulavim will be available this year? The Raavad disagreed strongly with ROSH, and the Beit Yosef compromised – yes wave the lulav, but no berakhah.  We need at least to make that compromise comprehensible to people (and for ourselves as well, clarify how it plays out with regard to DON’Ts).

The dispute among ROSH, RAAVAD, and Beit Yosef is also key to many of the conversations about virtual ritual. Almost everyone agrees that virtual davening communities do not have the depth of connection and spirituality of in-person communities. Almost everyone agrees that if we could allow mourners to say kaddish now, without fear that next year’s mourners would be much likely to show up in person, we would. The question is whether it’s possible to allow it now without the laity drawing the lesson that in principle it’s good enough.

Crisis leniencies often face another tension. State the actual standard for leniency, and many people who desperately need that leniency, are perhaps even required to use it, will refuse to. State a lower standard, and of course many people will use it who should not be permitted to.

Last week’s dvar Torah discussed this question with regard to relaxing the prohibition against kitniyot for the poor in a time of scarcity. Maharim MiBrisk held that it was necessary to relax the prohibition for all, lest the poor feel stigmatized and fail to have the halakhically required joy of yom tov. Divrei Malkiel disagreed.  However, Divrei Malkiel conceded that in an economic crisis, many of the genteel poor, who were keeping up the appearances of their past condition, would refuse to take advantage of leniencies if that required acknowledging their poverty. He therefore conceded that in such a crisis Maharim MiBrisk’s position would be justified.

This dynamic underlies the conversation about ZOOM seders and communication devices over a three-day yom tov.  We all understand that three days without human contact on yom tov will pose a severe health challenge to some of our most vulnerable community members. If we publicly set the standard for leniency as medically verified risk of suicide, not many people will use it unjustifiably. However, it is equally certain that many people who are at risk will refuse to use it. They may be in denial about the severity of their condition (and for that reason may not even have a therapist). Or they may be unwilling to admit their condition to others. A specific aspect of permitting electronic communication is that it requires coordination with a second party. I can’t ask you to ZOOM your seder unless we both classify it as pikuach nefesh.

On the other hand, we also all understand that separating families at the seder will cause enormous and profound unhappiness. If we set the standard for leniency at risk of great sadness, many people will use it who cannot plausibly be classified as in danger. Some rabbis may think that the lower standard is proper. But those who don’t cannot escape choosing between Scylla and Charybdis.

This is a halakhic tension.  But the fundamental issue is whether we can communicate one of these positions effectively enough that mostly the right people use the leniency without guilt, while the wrong ones don’t use it at all.

It might help to think about setting up two committees. The first would discuss ways of credibly certifying the Covid-19 precautions of specific mikvaot. The second would engage in halakhic disaster planning. What if mikvaot become actually unsafe? What if we have a dramatic rise in marital unhappiness? What if the first days of yom tov show a dramatic spike in severe depression? Each of these committees must include representative men and women, as well as both halakhists and professionals or volunteers who can credibly convey the concerns and reaction of the community to proposed rulings. If we eschew a formal structure, we need to find ways to ensure that we have the conversations informally.

My belief is that having these conversations will yield both better policy and better communication.

Shabbat shalom