In the Space Between Korach and Shammai: Dealing with Torah Arguments that Might or Might Not Be for the Sake of Heaven

by Rabbi Aryeh Klapper

Every faction that exists for the sake of Heaven – will ultimately endure;

Every faction that exists not for the sake of Heaven – will not ultimately endure.

Which are factions that exist for the sake of Heaven? These are the factions of Hillel and Shammai.

Which is a faction that exists not for the sake of Heaven? This is the faction of Korach and his edah.

(Pirkei Avot 5:17)

Careless readers of this beautiful mishneh might conclude that each and every faction can be classified as either “for the sake of Heaven” or else “not for the sake of Heaven”.  But nothing about the Mishneh denies a more complex reality in which factions are coalitions of people with different motives, and in which individual human beings often have mixed motives.  Meshekh Chokhmah (quoted in my Jewish Press column this week) implies that even “Korach and all his edah” must be read narrowly to exclude the 250 elders who came with Korach, as their motives were pure.  The Mishnah should be used as a mussar self-check rather than to dismiss opposing factions as ephemeral.

It should also be clear that there is no necessary relationship between purity of motives and quality of argument.  The best of arguments will be appropriated by the greedy if it serves their interests; and the righteous are fully capable of gross analytic or interpretational error.  A demonstration of sordid motives does not absolve us of the obligation to accept the truth from whoever speaks it, and to reject the false likewise.

But we must acknowledge that the halakhah does not always follow the best argument.  Philosophy is properly a world of emet vasheker, truth and falsehood, in which arguments are evaluated without regard to who makes them.  But practical halakhah is a normative system, which is to say it exists in the realm of tov vara, good and evil.  In that world, it matters very much who has authority, and order is better than chaos.  Therefore, at times one must follow a weaker argument made by a greater authority over a stronger argument made by a lesser or non-authority, and law has an inertial preference for continuity.

Halakhic decisionmaking must nevertheless not be allowed to depend exclusively or even primarily on who has authority rather than on the strength of arguments.  G-d made halakhah depend on textual interpretation and rational argument in order to ensure that Jewish religious leaders would always be intellectually accountable to the people.

The mistaken idea that halakhah depends exclusively on personal authority leads to a politics of personal destruction, in which the only effective response to disagreement is to delegitimate the disagreeing person (or community).

The mistaken idea that halakhah depends exclusively on perceived analytic superiority leads to a politics of intellectual dishonesty.  If truth is in and of itself a sufficient ground for practice, then we cannot risk allowing anyone to think even for a moment that the arguments for a position we disagree with are compelling.

Orthodoxy is currently plagued by an incoherent and malignant combination of these two mistakes.  The consequences are that people who make bad arguments for positions we disagree with are attacked personally to deny them authority; and good arguments made by people without personal authority are ignored or disingenuously dismissed to ensure that no one follows them until they are given authority.

Each of these consequences is immoral, and also very poor policy.

Rabbi Zevulun Charlop shlita, Dean Emeritus of RIETS, likes to say that mechadshim (creative Torah scholars) should be evaluated like baseball batters: even the best only hit safely once every three tries, and those with power are regarded as successful at much lower ratios.  Mechadshim with power are more likely to be wrong, and their mistakes are likely to be doozies.

What happens to a Torah community that delegitimates public intellectuals after their first error, and rejects all disruptively creative ideas out of hand?  A Torah community needs to be able to tolerate and survive significant and even potentially dangerous errors, or else it will stifle the creativity that is essential to its intellectual and spiritual health.

Our panic when confronted by presumptive halakhic authorities who make bad arguments about important issues, or presumptive nonauthorities who make good arguments, reflects a deep lack of trust in our community.  We suspect first of all that our nonscholars cannot distinguish weak from strong arguments, especially when they have a rooting interest in the outcome.  Secondly, we suspect that many members of our community do not care about the strength of an argument, or about the consensus of scholars.  Rather, they see the existence of any sort of argument as a matir, as giving them the right to do what they want.

These suspicions are not groundless.  But we overreact to them when we seek to prevent non-poskim from having any input into halakhah, or seek to shoehorn all scholars into a conformist mold.  A healthy halakhicate wants to be accountable to its laity, and wants everyone to be as autonomous as is consistent with preserving the role of halakhah as law rather than as subjective religious expression.

These overreactions often generate a vicious cycle.  The overbearing push for conformity leads to a celebration of even shallow ideosyncrasy.  Telling nonscholars or lesser scholars that they have no say leads them to deny the legitimacy of authority.  Each then side then uses the other’s reactive misbehavior to justify its own escalation.

By the same token, error should not be without consequences, especially if the error is not acknowledged.  On Gittin 43a Rabbah bar Rav Huna tells us that “A person does not find his footing in words of Torah unless he stumbles in them first” – in the context of correcting his previous mistaken ruling.  Home run hitters usually strike out a lot because they take big swings, but not everyone who takes big swings is a home run hitter.  Some people simply can’t hit at all.  Obviously, a past record of achievement makes it more likely that we’ll keep you in the lineup when you’re slumping.

I think we can admit that Orthodoxy faces enormous challenges.  Not so much to our survival, as to our capacity to live integrated religious lives in modernity.  We have not yet developed sufficiently compelling intellectual responses to Biblical criticism, or halakhic responses to the (wonderful) ethical challenge of participating as full citizens in a pluralistic society, or sociological responses to the existence of large numbers of Jews who see intermarriage as no bar to full communal membership, or moral responses to Jews who see no justification for heteronormativity.

These are just some of the many issues we confront where past ideas are insufficiently developed to guide us.  We need intellectual incubators, not sterile industrial egg farms.

One can of course deny the value of living an integrated religious life anywhere outside the beit midrash.  One can shrug off the reality that less than 10% of American Jews identify as Orthodox, let alone live halakhically observant lives, by blaming the audience and absolving the product, or by waiting for demography to change that reality.

But if we are not prepared to do any of these, it’s time we learned to leave a greater margin for error.

Wages for Sages

This week’s alumni Dvar Torah is by Rivital Singer

Parshat Korach ends with the laws of Truma and Maaser. The passuk on Maaser says: ”וְלִבְנֵי לֵוִי הִנֵּה נָתַתִּי כָּל-מַעֲשֵׂר בְּיִשְׂרָאֵל לְנַחֲלָה חֵלֶף עֲבֹדָתָם אֲשֶׁר-הֵם עֹבְדִים אֶת-עֲבֹדַת אֹהֶל מוֹעֵד”. We are to give the Leviim a tenth of our produce in return for the work they do in Ohel Moed. This halacha implies that we have a communal obligation to pay our spiritual leaders and teachers for their services. Despite this, there are discussions in a few different places in the gemara regarding whether or not one should be allowed to accept payment for teaching Torah. What is the difference between the work of the Leviim and the work of Rabbinic figures in the time of Chaza”l?

One possibility is that the work of the Leviim is a more encompassing job as a spiritual leader, and therefore they need to be paid so they can devote all their time to serving their community without having to worry about making a living on the side. My only problem with this answer is that it seems to imply that other people who teach Torah aren’t granting a communal service which requires a similar devotion of their time. We know that many of Chazal had other jobs, meaning it must be possible, but in my opinion, the question remains as to whether or not that’s the ideal situation. Should the people in charge of passing the Torah on not spend most of their time making sure to do so in the best way possible?

Another possibility is that it’s the difference between Am Yisrael living as an autonomic united group, as opposed to being dispersed in the diaspora. When we have our own leadership and are living under halakhic law we can designate people in our community to dedicate themselves to being the spiritual leaders of our community. Those people also have a specific God-given role in our day to day lives. In the diaspora, there is no need for a spiritual leader with an all encompassing job. Many of the jobs of the Leviim are not relevant with no Beit Mikdash, and the other spiritual needs that arise in the absence of the Beit Mikdash are dealt with in a more individual fashion. This answer also doesn’t fully satisfy me, because we see in our own communities the roles that rabbis working in communities or as teachers in yeshivot take on and they usually require high levels of dedication and a lot of time.

One final response I’ve heard was that Chaza”l didn’t want the people teaching (and deciding) Torah and halacha to be paid, out of a fear that they wouldn’t be connected to the community. It is impossible to correctly teach halacha if you’re unaware of what’s going on in your community. If you don’t have a job like everyone else, and don’t need to be out in the streets talking to people, you won’t know their struggles and won’t be able to teach Torah in the most relevant way for your disciples. The question that remains is why don’t we require the same of the Leviim. I don’t have a perfect answer, but maybe this is the reason that the Leviim have no nachala in Eretz Yisrael. They are dispersed among the different shvatim so that they won’t be able to create a closed off community and will be forced to be connected with the people and their struggles and desires.

Of course I don’t mean to say that today’s spiritual leaders should not accept pay for the very important work they do, but I do think that having the Torah community constantly remind itself to be connected to the world around it can only elevate us and our Torah learning to higher levels.

Shabbat Shalom

Rivital Singer (Midreshet Avigayil 2015) lives on Kibbutz Maale Gilboa and is currently finishing shana bet at Lindenbaum before drafting into the IDF education force this summer.

The Idolatry of the Leaders

This week’s alumni Dvar Torah is by Judah Kerbel

The Thirteen Middot of Mercy appear for the second time in this week’s parshah, after the sin of the Spies (chet ha-meraglim).  They appeared the first time when G-d taught Moshe how to pray after the sin of the Golden Calf (chet ha-egel). In selichot, we recite the version of the Middot from Shemot, but follow them by citing verses from both episodes. There are many other textual and thematic commonalities. In both cases, G-d reacts with anger. He threatens to destroy the entire nation save Moshe, whom he plans to make into a great nation (וְאֶעֱשֶׂה אוֹתְךָ לְגוֹי גָּדוֹל – Shemot 32:10; Bamidbar 14:12). Moshe intervenes, attempting to persuade G-d that doing so would diminish G-d’s standing among other nations, who will assume that G-d is weak for the inability to handle this nation (Shemot 32:12; Bamidbar 13-16). All this suggests that the two sins have something fundamental in common. Yet, at first glance, the Golden Calf is a paradigmatic transgression of idolatry, while the sin of the spies relates to ingratitude or lack of faith in G-d’s promises.  What is the link between them?

Let’s start by comparing the presentation of the Attributes in each episode.

שמות פרק לד, ו-ז וַיַּעֲבֹר יְקֹוָק עַל פָּנָיו וַיִּקְרָא יְקֹוָק יְקֹוָק אֵל רַחוּם וְחַנּוּן אֶרֶךְ אַפַּיִם וְרַב חֶסֶד וֶאֱמֶת: נֹצֵר חֶסֶד לָאֲלָפִים נֹשֵׂא עָוֹן וָפֶשַׁע וְחַטָּאָה וְנַקֵּה לֹא יְנַקֶּה פֹּקֵד עֲוֹן אָבוֹת עַל בָּנִים וְעַל בְּנֵי בָנִים עַל שִׁלֵּשִׁים וְעַל רִבֵּעִים:	במדבר פרק יד, יח יְקֹוָק אֶרֶךְ אַפַּיִם וְרַב חֶסֶד נֹשֵׂא עָוֹן וָפָשַׁע וְנַקֵּה לֹא יְנַקֶּה פֹּקֵד עֲוֹן אָבוֹת עַל בָּנִים עַל שִׁלֵּשִׁים וְעַל רִבֵּעִים:
The LORD! the LORD! a God compassionate and gracious, slow to anger, abounding in kindness and truth, extending kindness to the thousandth generation, forgiving iniquity, transgression, and sin; yet He does not remit all punishment, but visits the iniquity of parents upon children and children’s children, upon the third and fourth generations” (Shemot 34:6-7, trans. Sefaria)	‘The LORD! slow to anger and abounding in kindness; forgiving iniquity and transgression; yet not remitting all punishment, but visiting the iniquity of fathers upon children, upon the third and fourth generations’ (Bamidbar 14:18, trans. Sefaria).

In Bamidbar, G-d’s name יקוק is invoked only once, not twice as in Shemot.  The version in Bamidbar also fails to mention that G-d extends kindness to the thousandth generation.  What explains these changes?

The Talmud explains that the doubled יקוק represents G-d’s mercy both before and after sin (Rosh Hashannah 17b). Rosh (Rosh HaShanah 1:5) asks: Why would we need mercy before sin?

Rosh answers that with regard to the sin of idolatry, G-d considers the thought of idolatry along with the action as one, G-d and punishes both.  Therefore, there is the need for mercy even before the act of idolatry, when it is still merely a thought. Rabbi Meir Simcha of Dvinsk (Meshekh Chokhma) derives that mercy-before-sin is not needed in our parshah, as the sin of the Spies was not idolatry.

Yet, on the basis of our selichot practice, I would like to suggest that there is an aspect of idolatry involved in our parshah as well. The Gemara states that one who lives outside Eretz Yisrael is as if he worships idolatry (Ketubot 110b). (Throughout history, Jews have lived outside Eretz Yisrael due to the circumstances of exile; I do not intend to weigh in here on the issue of contemporary aliyah).  B’nei Yisrael were on the brink of entering Eretz Yisrael, yet not only did they shun the opportunity to enter the land, but they actively requested to return to Egypt (Bamidbar 14:3). In fact, the ma’apilim, those who tried later to enter the land, confessed their sin of desiring to return to Egypt (Rashi, 14:40). Implicit in this rejection of the land, in the eyes of G-d, is a rejection of G-d on the whole. G-d sees their outcry as a lack of recognition of all the miracles performed on their behalf, as in the Golden Calf episode (14:11). If the reaction of B’nei Yisrael in this episode is not itself idolatry, it entails a denial of G-d on the highest level, perhaps as if it were idolatry.

Note that while G-d forgives B’nei Yisrael after they build the golden calf, we do not achieve full forgiveness here. Perhaps earlier, they were still a young nation, and it was their first major mishap. but, as put by Rabbi Menachem Liebtag, this was the straw that broke the camel’s back.

An additional difference between the Middot brings to light a different explanation. Ramban (Bamidbar 14:17) explains that the phrase notzer chesed la-alafim, extending kindness to the thousandth generation, is not applicable here because Moshe cannot invoke the merits of the patriarchs on behalf of B’nei Yisrael. In Ramban’s words, “they rebelled against their ancestors and did not desire the gift that their ancestors greatly chose.” B’nei Yisrael could not be fully forgiven, especially with regard to Eretz Yisrael, because they were unable to embrace the most significant gift from G-d, that which had been the end-goal for our nation’s development from the time of Avraham Avinu. By rejecting such a significant aspect of the covenant that G-d made with the patriarchs, perhaps they were rejecting their connection with G-d on a larger scale, a further aspect of near-idolatry.

Wherever we may be for whatever reason, as we recently celebrated the 50th anniversary of the reunification of Yerushalayim and will soon celebrate the State of Israel’s 70th year of independence.   May we continue to recognize the miracles G-d has performed for us in recent decades and see the positive in that which happens in Eretz Yisrael.

Judah Kerbel (SBM 2015) is completing his third year at RIETS. He is also enrolled at the Bernard Revel Graduate School, concentrating in medieval Jewish history and the Ferkauf School of Psychology/RIETS certificate program in mental health counseling. He served as a rabbinic intern at The Roslyn Synagogue this past year.

A Reintroduction to Halakhic Man – Part 1

by Rabbi Aryeh Klapper

Rabbi Joseph B. Soloveitchik’s Ish HaHalakhah dominated the landscape of Modern Orthodox hashkafah for years.  More precisely, an image arising out of a partial understanding of the work dominated that landscape.  This image closely approximated the epigraph of the book – “the image of his father’s face appeared to him in the window” – which is to say that it caught the core of the Rav’s portrayal of his father and grandfather.  It had enormous value in explaining, validating, and valorizing the character of the Eastern European Talmudic scholar to an American Jewish culture with a tenuous-at-best relationship to rigorous traditional Torah study, and in more generally presenting halakhic dedication as enabling rather than inhibiting the development of a rich internal life.

Ish HaHalakhah’s influence far outstripped the range of those who actually read the book, let alone of those who read it in the original Hebrew.  Many eager readers (myself as a teenager, but I don’t think I’m projecting) gave up when they hit untranslated Greek characters in the opening pages.  So it can be no surprise that, as with all hyperintellectual books that become cultural touchstones, some errors and loss of context were the price of popularization.

Such distortions are calibrated to the needs and desires of their time.  As a culture changes, they reverse roles and make the book’s message less rather than more accessible.

Here are three common perceptions related to the book that I contend are incorrect:

1) The Ish HaHalakhah represents the highest form of Jewish religiosity, rather than one among many powerful forms

2) Halakhah is the only form of access to the Divine Will that Orthodoxy should acknowledge, and there is no religious meaning to acts or intentions that are not channeled through the intellectual frameworks and practical mandates of halakhah.

3) The Ish Hahalakhah has no interest in determining Halakhah.  When the Talmud records halakhic disputes, he seeks only to explore the conceptual underpinnings of each position.  The same is true with regard to disputes among later commentators and decisors.

Let us begin with the question of whether the Ish HaHalakhah reflects the highest form of Jewish religiosity.  My evidence against this hypothesis is the book’s own description of its eponym, on page 15.

תעודתינו במאמר זה היא לחדור לתוך כבשונה של תודעת איש ההלכה ולעמוד על מהותו של טיפוס “מוזר ומשונה”, המתגלה לעולם מתוך ד’ אמותיו “המצומצמות”, כשידיו מלוכלכות בשפיר ושליא.  ברם כדי לצאת ידי חובתינו במסה זו עלינו לפתוח בביאור סירטוט אופייני וקו יסודי בהשקפתו האונטולוגית של איש הדת בהשוואה אם איש הדעת – שמתוכם של השינויים וההבדלים שבין שניהם, נכיר את בעל הוויות אביי ורבא.

This section is translated as follows on pp. 4-5 of Dr. Lawrence Kaplan’s magisterial translation, Halakhic Man:

Our aim in this essay is to penetrate deep into the structure of halakhic man’s consciousness and to determine the precise nature of this “strange, singular” being who reveals himself to the world from within his narrow, constricted “four cubits” [Berakhot 8a], his hands soiled by the gritty realia of practical halakhah [see Berakhot 4a].  However, in order to fulfill the task, we must undertake a comparative study of the fundamental and distinctive features of the ontological outlooks of homo religiosus and cognitive man.  For only by gaining an insight into the differences and distinctions existing between these two outlooks will we be able to comprehend the nature of halakhic man, the master of Talmudic dialectics.

It is almost impossible for translations to capture allusions, especially when the alluded-to text is less known than the alluding text.  “master of Talmudic dialectics” is certainly more helpful to most audiences than “master of the challenges of Abbaye and Rava”.  But readers of the English have no way of knowing that the Rav is citing language from Talmud Sukkah 28a., and I contend that in this case the allusion is critical to meaning.  Here is the Talmud:

A beraita:

Hillel the Elder had eighty students –

Thirty of them were fit to have the Divine presence rest on them as it did on Moshe Rabbeinu;

Thirty of them were fit to have the sun stand still for them as it did for Yehoshua bin Nun;

Twenty of them were intermediate.

The greatest of them was Yonatan ben Uziel;

the least of them was Rabban Yochanan ben Zakkai.

They said regarding Rabban Yochanan ben Zakkai that he did not leave aside

mikra or mishnah,

gemara, halakhot, and aggadot

didkdukei Torah and dikdukei Sofrim,

kalim vachamurim and gezeirot shavot

tekufot and gematriot,

the discourse of the ministering angels

the discourse of demons

the discourse of dekalim

parables of washermen

parables of foxes

great thing

lesser thing.

What is the meaning of great thing?  The Making of the Chariot;

What is the meaning of lesser thing?  The challenges of Abbaye and Rava . . .

Many of the elements of Rabban Yochanan ben Zakkai’s curriculum are obscure, and can only be identified speculatively.  But there is no ambiguity about the status of “the challenges of Abbaye and Rava” relative to the status of “the Making of the Chariot”; it is davar katan, a lesser thing.

It follows that the Ish HaHalakhah, as the master of “the challenges of Abbaye and Rava”, is not the equal of one who is a master of “the Making of the Chariot”, and we have demonstrated that the Ish HaHalakhah is not the highest form of Jewish religiosity.

This naturally raises the question: Who is the master of the Making of the Chariot?

This question was the subject of great medieval controversy.  Rambam Laws of the Foundations of Torah 4:13 identifies the making of the Chariot with rational metaphysics, and he was sharply criticized for this by those who identified it with mystical experience instead. It is true that Ish HaHalakhah points out repeatedly that its eponym is not interested in either rational metaphysics or in mysticism.

But I contend that the Rav held a third position.  Rather, the key to the Rav’s hierarchy lies in a seeming paradox that Lord Rabbi Sacks raised many years ago: The Ish HaHalakhah would clearly have no interest in reading the Rav’s book about him, let alone in writing it!  I contend that for the Rav, the master of the Making of the Chariot is the author, not the subject, of the book.

In a subsequent installment, I will seek to justify that claim on the basis of Halakhic Mind.  But I will first seek to demonstrate the incorrectness of the other two misperceptions listed at the outset of this essay, on the basis of Halakhic Morality and the Rav’s lomdishe account of semikhah, respectively.  Please stay tuned, and I very much welcome anticipatory questions, challenges, and comments.

Shabbat shalom!

Should the Sanhedrin Be Elected?

by Rabbi Aryeh Klapper

Should the Great Sanhedrin, when it is reconstituted, be elected?  What can the selection of the Sanhedrin teach us about rabbinic leadership today?

One apparent forerunner of the Sanhedrin originates in this week’s parshah.  Bamidbar 11 describes a devolution of some form of authority from Moshe Rabbeinu to a group of seventy.  The shift is occasioned by Moshe’s complaint that he is unable to bear the weight of the people by himself, and Hashem states explicitly (11:17) that

וְנָשְׂא֤וּ אִתְּךָ֙ בְּמַשָּׂ֣א הָעָ֔ם

וְלֹא־תִשָּׂ֥א אַתָּ֖ה לְבַדֶּֽךָ

They will bear the weight of the people together with you

You will not bear it alone

Rabbi Joseph B. Soloveitchik derived from here that the Sanhedrin is not merely a court of judges tasked to determine Torah law.  Rather, one role of the Sanhedrin is to function as a representative of the Jewish nation with concern for its political and not just religious wellbeing.

Symbolic representation is often a figleaf for totalitarianism, as in fascism, where the people often have no say in choosing their self-declared “representative” and have no control over actions performed in accordance with “the spirit of the folk”.  The Rav made sure to clarify that this was not the case with regard to the Sanhedrin.  Rather, the people have a “pocket veto” over actions of the Sanhedrin taken in its representative role.  Thus declarations of leap years (Tosefta Sanhedrin 2:13), and Rabbinic decrees (Horayot 3:2, Rambam Hilkhot Mamrim 2:5-6), are nullified if they are not adopted by a majority of the affected population.  (Rambam does not explain how the Sanhedrin should determine that a decree has or has not been adopted, or how it can be held accountable for the accuracy of that determination.  I suggest that this is because he is focused on ends, not means; he is open to a wide variety of mechanisms for accountability, but he would not allow the rabbis to make such determinations by unreviewable fiat.)

A careful reading of the text suggests that the people also had a role in choosing the original Sanhedrin.  Hashem tells Moshe (11:16)

אֶסְפָה־לִּ֞י שִׁבְעִ֣ים אִישׁ֘

מִזִּקְנֵ֣י יִשְׂרָאֵל֒

אֲשֶׁ֣ר יָדַ֔עְתָּ

כִּי־הֵ֛ם זִקְנֵ֥י הָעָ֖ם וְשֹׁטְרָ֑יו

Gather for me seventy men

from among the elders of Israel

whom you know

that they are elders of the people and its bailiffs.

The verse is plainly redundant.  If the men are to be gathered “from among the elders”, what is added by saying that Moshe must “know that they are elders”?  Numerous commentators suggest that Moshe was required to ascertain that these officeholders were popularly considered to be worthy of their positions.  (The text does not specify how Moshe ascertained this, but Moshe’s epistemology is generally not valid precedent for subsequent halakhah; thus “lo bashomayim hi”.)

In an essay entitled “Judaism and Fascism”, published in a 1935 Jubilee volume honoring Rabbi Dov Leventhal of Philadelphia, Rabbi David de Sola Pool takes this argument a brilliant and creative step further.

“Again and again [Moses] works not on his ipse dixit, but through the zekenim, later organized into an official body of seventy elders (Numbers 11:24-39), and the 12 nesiim, an upper chamber . . . By the time of his death, constitutional government had been definitely established through himself as the head of government, the two bodies of the nesiim and the zekenim together constituting the edah, and the courts.  This was a form of bicameral popular representative government . . .”

Rabbi de Sola Pool’s argument likely is that Rabbinic literature sometimes understands the Biblical term “edah” as referring to the Sanhedrin, and that the Torah refers to both “elders of the edah” and “nesiim of the edah”.  His argument accords with the Rav’s claim that the Sanhedrin has an explicitly political role, but to my knowledge is unprecedented in its assertion that the nesiim constituted an upper chamber of the same body as the Seventy Elders.  His conception of the Sanhedrin as distinct from the judiciary, rather than as its apex, likewise seems novel to me, but deserves serious analysis and consideration.  Regardless, it should be clear that he and the Rav both see democratic accountability as essential for any political role, even if that role is played by great Torah scholars, and even if Torah scholarship is a necessary qualification for that role.

Rav Avraham Yitzchak HaKohen Kuk (Responsa Orach Mishpat Choshen Mishpat 2) extends that accountability to the judicial realm.  Indeed, he uses the selection of judges as the model for halakhic recognition of the value of representation:

“. . . This matter (proportional representation) dovetails with the path of Torah,

for there is a mitzvah or each tribe to judge its members (Sanhedrin 16a),

and the mitzvah of establishing judges refers specifically to judges for each tribe respectively,

as is written in Tosafot there s.v. judges,

to the point that even were the population of one city to include members of two tribes, we would establish two sanhedrins (courts of 23 members, with jurisdiction over almost all civil and criminal matters, including capital cases) in that city,

although whether this ever actually happened depends on the dispute (Sanhedrin 111b) as to whether one city is ever apportioned to two tribes.

Nonetheless, we see that the Torah opinion is that any time there is an aspect of division among the people, it is a curtailment of their right to not have an appointee from their side of the divide,

a fortiori if they agree to unite under a single authority, for it is impossible that they should lose out as the result of their side’s love of peace and unity.

And with regard to peace – it is certain that the communal mind will be secure only when it has a representative of its side in the leadership of the whole.

This can be derived a fortiori from the rule of “This litigant chooses one for himself” in private matters, for we say (Sanhedrin 23a)

“Since this litigant chooses one judge for himself and this litigant chooses one judge for himself, and the two of them choose for them yet another one, the law will emerge in accordance with its truth”,

and Rashi there s.v. “will emerge” explains that this means that

the litigants will obey the verdict, as the one found liable will reason thus: ‘I myself chose one of the judges, and had he been able to find merit in my cause he would have’,

and the judges themselves will find it agreeable to seek merit in both cases because they were chosen by both.

If it is a praiseworthy path in private matters to pursue the path of peace and straightforwardness by means of a representative, a fortiori this is so in communal matters,

and the peace of the community is included in the last statement, for there is no path more desirable than that each faction should be appeased by knowing that it has a representative who seeks merit for its causes in the leadership of the community.  This is impossible other than through elections leading to proportional representation.”

Recognizing the democratic foundation of rabbinic authority can have at least three salutary consequences.

1. It requires a halakhically committed population to compel all Jewish institutions to be publicly accountable, regardless of the piety or scholarship of its advisory board.
2. It prevents laypeople from disclaiming responsibility for the failures of their community’s rabbinic leadership.
3. It compels supporters of minority halakhic positions to acknowledge that their positions are losing not because the halakhic authorities are out of touch with the desires of the laity, but rather because they are very much in touch.  Contentions about the existence of “silent majorities” are no more convincing in halakhah than anywhere else.

Some readers will respond that one can recognize that rabbinic authority ought to be democratically founded, but in practice is imposed by rabbis on people.   I contend that this argument has only superficial appeal in the vast majority of cases.  All religious communities in America are voluntary, and the power of the Israeli Chief Rabbinate is wholly derived from that of the elected Knesset.

In all democratic societies, people who care most about specific issues will exercise disproportionate power over such issues.  It is reasonable and legitimate for Charedim to care more about religious issues than chilonim.  It is reasonable for Modern Orthodox Jews to care more about day school tuition or even kosher restaurants than batei din, because “If there is no flour, there is no Torah”.  But in the end we get the religious leadership that we want, or at least that reflects our priorities.

Vowing to God: What to Do When Your Son is a Month Old and Already on Heart Medication?

This week’s alumni Dvar Torah is by Benzion N. Chinn

I confess that this is less than a traditional Torah thought, with a clear question and answer, than an expression of my own bewilderment. It is less that I am offering textual interpretation and sage advice and more that I am asking readers for their guidance.

My son Moshe Eliezer (Louis “Mackie” McKenzie) Chinn was born this past April 24^th. Since we brought him home he has been sent back to the hospital twice. The first time was after a coronary-pulmonary failure; in lay-person’s terms, he stopped breathing and needed CPR. The second time was with a heart rate over 300 beats a minute. Thank God, Mackie is responding well to treatment and is now home. We have been introduced to Wolff-Parkinson-White-type Supraventricular Tachycardia. It does not appear to be life-threatening and we hope for the best. The reality is that if things had played out a little different (if Mackie did not have a grandmother who is an OBGYN, or if his veterinarian aunt was not visiting), Mackie right now might be a SIDS statistic.

In the meantime, his mother and I have been very anxious and not getting loads of sleep.  These past few weeks have presented their own spiritual challenge. As a Maimonidean-rationalist, I refuse to believe that God actively saved my child. I did not deserve a miracle and, however righteous my wife may be, a God who would intervene to save my son while allowing thousands of other babies to die that day must be condemned as capricious if not downright satanic. All of this leaves me in a spiritual bind. None of my spiritual training has given me the tools to look the death of my child in the face and then to find salvation. My idolatrous heart tells me that God spared my son because of some good deed and that I should vow to do something in thanks.

While I struggle, I take comfort in the fact that this week’s Torah reading is one of the great examples of the Torah’s ambiguous relationship with vows. The Torah accepts the concept of a Nazarite vow, that one may promise to refrain from cutting their hair and from drinking wine, but at the same time seems critical of the entire venture.

Nazarites bring a sin offering at the completion of their vow.  Perhaps this is because they did not take the pleasure from this world that they were supposed to. There is something fundamentally antinomian and heretical about asceticism. A person who does not believe in the saving power of Halakhah, so that he needs to do extra things, will eventually come to believe that he needs to violate Halakah in order to be saved. For example, the Nazarite Samson slept with gentile women and even went to prostitutes. I suggest that this was not a contradiction to his being a Nazarite, but rather a logical conclusion.  If you believe that his Nazarite status placed him above the normal understanding of mortals, then you must also accept that what would be a sin for anyone was really the height of righteousness for Samson.

I have not become a Nazarite. In fact, I made sure to get a haircut right before the holiday. I am more inclined to think that if I honor my parents by not looking like a Nazarite, I will one day be able to bother Mackie about the length of his hair.

Benzion N. Chinn (SBM 2003) lives with his wife, Miriam, and their two children, Kalman and Mackie, in South Pasadena, CA. He works as an academic and special needs tutor, while occasionally finding time to blog at www.izgad.blogspot.com

CTML Shavuot Aseret HaKesharim: 5777 Edition

In honor of Shavuot, check out these 10 links from the Center for Modern Torah Leadership related to Shavuot and Talmud Torah!

1.  Introduction to Rabbi Aryeh Klapper’s translation of the Book of Ruth

 

2.  Rabbi Aryeh Klapper’s translation of the Book of Ruth

3.  Rabbi Aryeh Klapper’s translation of excerpts from Midrash Rut Rabbah

4.  Who Judged the Judges?  Reading Rut Rabbah as Reading Rut

5.  Stairway to Sinai: Smoke and Synesthesia

6.  Talmud Torah as the Shared Spiritual Language of the Jewish People

7.  Why Study Talmud?  (from Milin Chavivin)

8.  Who Wrote the Torah?  An Intellectual Defense of Unified Authorship for High        School Students

9.  The Boundaries of Torah Study

10. Why “Why” Questions Belong in the Beit Midrash