The Private History of a Psak that Failed

by Rabbi Aryeh Klapper

Let’s assume that many synagogues in cold climates cannot provide enough spaces at COVID-safe megillah-readings for their entire membership. Let us also assume that we don’t want anyone to risk their lives from cold or COVID in order to hear megillah, or even Parshat Zakhor (which we can wait for better weather to fulfill).

I began with a strong feeling that our communities should have invested more energy in training leiners, commissioning klafs, and setting up spreadsheets, to ensure much wider access to a live reading from a kosher megillah. The wonderful efforts of Chabad in New Rochelle last year should have been our model. 

Based on that feeling, I thought that we were responsible to find a way that almost everyone could fulfill their obligations in a way halakhically preferable to just listening to a livestream. Let me explain that further.

I saw two attitudes toward reliance on livestreaming in public pronouncements. 

One was celebratory; the pandemic allowed us to realize that our rejection of the internet as a ritual space was old fashioned and exclusionary. This is true. It is beyond question that more and more of “real life” is online, and that economic, physical, and emotional limitations make entering the physical space of synagogues very difficult for many people, especially those already on the margins of the community.

A second saw reliance on livestreaming as an emergency measure. The pandemic may well be the kind of extreme sh’at hadchak that allows halakhah to give credit for actions that wouldn’t be minimally acceptable (bediavad) in ordinary times. (See my audio shiur here and article here.)

Each of these approaches made me nervous. In brief – I intend to write about these more extensively in the near future – the first approach underplays the costs of decentering physical community. It’s easy to see the analogy to the Conservative movement’s decisions in the face of the movement to suburbia. It’s also easy to see many important differences, both in terms of the sociology and especially in terms of the halakhic approaches; there’s nothing beyond the bounds of normal halakhic discourse here. Nonetheless, it seemed to me unnecessarily risky.

I was also unhappy treating a second consecutive Purim as that kind of extreme halakhic emergency. But treating it as an ordinary emergency, and yet making reliance on the livestream widespread, seemed to me to make it much more likely that this reliance would take long-term root in our communities. 

Because of these discomforts, and because I thought we could have done more to prepare, I was looking for another way that people could fulfill megillah at home. 

However, Deborah Klapper challenged my assumptions in two ways. First, she argued that not much more could have been done because of the weather. Second, she thought that since many community rabbis had issued psakim, in reliance on major poskim, telling people that they could rely on the livestream this year, it would be wrong and irresponsible to make people feel uncomfortable doing so. 

If I had no viable alternative, Deborah was certainly correct (and likely even if I did). But I received an email this week from my dear friend Dov Weinstein, who wrote: “If one is stuck at home with no options but listening to the megillah over zoom, do you think it would be at least a hiddur to have the camera show a closeup of the klaf, such that the person at home can “see” the text, and read along for themselves out of a kosher megillah?”

I had not previously thought about how a visual of the scroll might help. 

It seems obvious that for those who have a kosher megillah scroll at home, and are comfortable repeating Biblical Hebrew after dictation, the simplest and best solution is a recording made specifically to allow listeners to repeat it word for word while reading their own scroll. Last year a colleague responded to my request by posting a link to such a recording (68 minutes long) from Rabbi Daniel Mann, and I am told that it is available upon request from info@eretzhemdah.org.

Many people don’t have access to a scroll. But if a livestream video combined with livestream dictation would work halakhically, they would not need one. I thought this could be the practical alternative I needed.

Deborah challenged this assumption as well. She argued that I radically overestimated people’s comfort and competence at repeating the Hebrew of the megillah after dictation, even if they could look at a (unvocalized) text while doing so. She also argued that not many people would find this a congenial option; and that even those who tried it would probably make mistakes that would prevent them from fulfilling the mitzvah. If they allowed more competent people to correct them, they would be humiliated as well (and probably still make too many mistakes).

That should probably have been enough to stop me. However, Deborah only got involved after I had already written several drafts of an essay arguing for this proposal. 

Here was the initial version of my argument.

In Shu”T Yabia Omer (4OC:8:15), Rav Ovadiah Yosef zt”l understands Shu”T Radbaz (3:605) as holding that if a person reads a text silently, then repeats it out loud immediately while looking away, they are nonetheless considered to be reading from the text. (This position is necessary for just about any contemporary keriat haTorah to be valid, since baalei keriah often look just ahead while reading, especially when they transition between columns.) 

Rav Ovadiah contends that Radbaz’s position is supported by Sefer haEshkol (via Nimmukei Yosef) and Agudah’s position that a blind person can receive an Aliyah. He understands them as requiring the blind person to repeat the keriah word for word after someone who is reading directly from the scroll. Rav Ovadiah further contends that Beit Yosef (OC 141) cites their position in the context of ROSH’s position that the oleh must formally be the Torah reader, with the “official” baal keriah serving only to prompt the oleh. Therefore, the blind oleh must be considered to be reading from the text.

א”ו 

,שמכיון שהש”צ רואה וקורא מתוך הכתב

– והסומא קורא אחריו בנחת בתכ”ד לראייתו של הש”צ

.שפיר דמי

.אלמא דלא בעינן שהקריאה של העולה לס”ת תהיה מתוך הכתב ממש

Rather, it must be 

that since the shaliach tzibbur sees and reads from the written text,

and the blind person reads after him quietly immediately after the shaliach tzibbur sees that text – 

this is halakhically fine.

So we see that we do not require the oleh’s reading to be literally from the written text. 

Beit Yosef rejects Sefer HaEshkol’s position, and our own custom to give aliyot to the blind rests primarily on Maharil (brought by RAMO in Shulchan Arukh OC139:3), who rejects ROSH’s position that the oleh must read. However, Rav Ovadiah suggests that Beit Yosef rejects HaEshkol only with regard to someone who is blind. 

וגם הב”י ודעימיה שחלקו על האשכול וסיעתו

,י”ל שמודים בזה

– רק שבסומא, הואיל ואינו רואה בעצמו הכתב

,אין לסמוך על ראית הש”צ וקריאתו

– אבל כשרואה הכתב בעצמו

.אפי’ קורא התיבה בע”פ ש”ד

Even Beit Yosef and those with him, who disagreed with Eshkol and his aides – 

we can say that they concede to this,

and it’s only that with regard to a blind person, since he does not himself see the written text,

we cannot rely on the seeing and reading of the shaliach tzibbur,

but when the oleh sees the written text themselves – 

it is halakhically fine even if the oleh reads the word from memory 

I thought the simplest explanation for this position is that for the sighted, repeating dictation from a scroll is considered reading from that scroll. However, this extension does not apply to people physically incapable of visual reading (and perhaps not to illiterates). On this basis, a person could probably be considered to be reading from the text of a megillah if they repeated it word for word after a livestream of someone reading from a kosher megillah. 

However, Dov Weinstein correctly pointed out that Rav Ovadiah’a language indicates that Beit Yosef ultimately requires not only the possibility of seeing the written text, but also actually seeing it, even if the seeing and reading need not be exactly simultaneous. 

One might argue that Beit Yosef’s requirement of actual seeing is necessary only to avoid the negative prohibition against reciting Written Torah from memory (which may be evaded nowadays by reading from a printed or projected text), and not for the positive requirement of reading from a text. But that seems elaborate and speculative, and perhaps also insufficient. 

Repeating after a livestream reading from a kosher megillah is therefore effective only according to the position that Beit Yosef rejects. Furthermore, I am not convinced that Eshkol and Agudah in fact required the blind oleh to repeat from dictation at all; more likely one or both ruled against ROSH and did not require any oleh to read for themselves. Accordingly, repeating after a livestream reading seemed unlikely to move the needle far enough halakhically, even if combined with the possibility that one fulfills the obligation simply by listening to the livestream.. 

However, there is also extensive halakhic literature about whether various forms of indirect “seeing” count as seeing. The conversation generally begins with Shu”T Halakhot Ketanot 1:99 (see also 1:274) about spectacled baalei keriah, but the literature covers kiddush hachodesh, re’iyat negaim, dayyanei chalitzah, the blessing said when seeing kings, davening in the presence of excrement, and many other topics. The general outcome is that all these forms of seeing are sufficient. The exceptions are where the indirectness introduces a significantly greater possibility of error. 

None of these seeings is halakhically vicarious – no one fulfills anyone else’s obligation of seeing. Any attempt to do that would be subject to the same rules as attempting to fulfill obligations of speech via a livestream.

However, with regard to keriat megillah, the mitzvah is not seeing but reading, just with a condition that the reading must be from a scroll. What if one repeats dictation from a livestreamed reading while looking at a video livestream of the megillah being read from? That, I thought would very likely fulfill Beit Yosef’s requirement that the repeater be looking at the scroll being dictated from. 

So even after Deborah’s critique, I thought I still had enough to at least launch a trial balloon for such a reading. I should have realized that if there were no longer important practical effects, I needed to do much more extensive research before thinking about psak.

Happily, a wonderful friend and talmid chakham, Rav Yitzchak Roness, pointed me to https://www.hebrewbooks.org/pdfpager.aspx?req=43794&st=&pgnum=287&hilite= , which contains a much better sourced and developed discussion of the issues associated with my argument. So on my father in-law’s theory that “No one is useless – you can always be a bad example,” I’ve written the essay you’ve read.

Chosenness and the Infinite Value of Each Human Being

by Rabbi Aryeh Klapper

At a public conference many years ago, a prominent Jewish intellectual explained to great acclaim why he no longer accepted the idea that Jews are “chosen.” Since all human beings are created b’tzelem Elokim, he argued, they are each infinitely valuable, and therefore, they must all be equally valuable. I raised my hand: Mathematicians, I asked, disagree about whether all infinities are equal.  Would you have a moral problem with someone claiming that chosenness creates a “larger infinity?” 

No one else present was interested in my question, and I don’t know enough math to pursue the analogy in depth. I myself am deeply committed to the absolute ontological equality of all human beings. I recognize that distinguishing among infinities is dangerously similar to an Orwellian declaration that “Some people are more equal than others.” I follow Rav Yaakov Kaminetsky z”l’s argument in his commentary to Avot that Judaism would be irredeemably racist if not for the possibility of conversion, which proves that “chosenness” relates to a responsibility that can be voluntarily assumed by nonJews. (Rabbi Kaminetsky plainly excluded any understanding of conversion as effecting a miraculous ontological shift.)

Nonetheless, the distinction inherent in my question matters. There is a moral gulf between those who assume the infinite value of each human being, and then build particularist pride on top of that, and those who seek to build pride by diminishing others. 

I have seen both in Jewish contexts. During my year in yeshiva, a rabbi at an affiliated institution – a man with many admirable traits – regularly gave allegedly inspirational lectures filled with comments that diminished the humanity of nonJews. These lectures seemed to me to have an almost visibly corrosive impact on the souls of his students. But I also acknowledge that some Chabad shluchim strike me as superb examples of treating each human being as infinitely valuable without compromising on their belief in Jewish superiority. The world would be a much better place if everyone cared for each other on quotidian matters the way those shluchim care for nonJews.

This issue arose for me this week in the context of Netziv’s explanation of naaseh v’nishma.

In Shemot 24:3, we read:

וַיָּבֹ֣א מֹשֶׁ֗ה וַיְסַפֵּ֤ר לָעָם֙ אֵ֚ת כָּל־דִּבְרֵ֣י יְקֹוָ֔ק ואֵ֖ת כָּל־הַמִּשְׁפָּטִ֑ים

וַיַּ֨עַן כָּל־הָעָ֜ם ק֤וֹל אֶחָד֙ וַיֹּ֣אמְר֔וּ

:כָּל־הַדְּבָרִ֛ים אֲשֶׁר־דִּבֶּ֥ר יְקֹוָ֖ק נַעֲשֶֽׂה

Mosheh came and recounted to the nation all of Hashem’s words and all the regulations.

The entire nation responded in one voice, saying:

All the words that Hashem spoke – we will do (= naaseh).

Four verses later, we read

וַיִּקַּח֙ סֵ֣פֶר הַבְּרִ֔ית וַיִּקְרָ֖א בְּאָזְנֵ֣י הָעָ֑ם

וַיֹּ֣אמְר֔וּ

:כֹּ֛ל אֲשֶׁר־דִּבֶּ֥ר יְקֹוָ֖ק נַעֲשֶׂ֥ה וְנִשְׁמָֽע

(Mosheh) took the scroll of the covenant and read/proclaimed (it) in the ears of the nation.

They said:

All that Hashem spoke – we will do and we will heed (=naaseh venishma)

Netziv raises three questions. First, if the Jews already committed to doing “All the words that Hashem spoke,” what more was Mosheh seeking to accomplish by reading the “scroll of the covenant” to them? Second, why is only the first response attributed to “the entire nation?” Third, what does “we will heed” add to “we will do?”

Grouping the questions makes clear that the overall structure of the answer will be: Mosheh read the scroll of the covenant so that some (but not all) of the nation would add “we will heed” to “we will do.” 

Netziv formulates the distinction between “doing” and “heeding” as follows: “Doing” means performing the actions that G-d commands, but “heeding” means performing them with the intention that G-d commands. Netziv believes that the intention that G-d commands is that one perform them entirely for His sake, rather than because they accord with nature or human reason.

Netziv constructs the following timeline. In the Ten Commandments and immediate aftermath, G-d makes clear to the Jews that he insists on their studying Torah and engaging in worship (torah va’avodah), but he does not mention gemilut chasadim, the third pillar holding up the world. Why?

שהרי בטבעם המה בני אברהם יצחק ויעקב גומלי חסדים

Because by their nature they are children of Avraham, Yitzchak, and Yaakov, practitioners of chasadim

Because chessed was natural to them, when the Jews respond “All the words that Hashem spoke – we will do,” they cannot be referring to chessed, because they would have done chessed even without the Divine command. Mosheh then reads to them the “Scroll of the Covenant,” which Netziv identifies with Genesis, to explain that the Three Forefathers performed chessed for G-d’s sake, and not just by nature. The elite of the nation understood the point and responded “We will do and we will heed” to emphasize their acceptance of the requirement for motivation.

I am not comfortable with reading elite/mass distinctions into the narrative here (although I must acknowledge that Netziv is far from alone in doing so). I find it frankly disturbing that he understands “naaseh venishma” as reflecting the attitude of only the elite. But my interest this week is his apparent claim that Jews are genetically more predisposed to chessed than are nonJews.

This is the kind of claim that can easily be turned to evil. Chessed is natural to Jews, but not to nonJews; therefore nonJews do not share at least one of G-d’s thirteen attributes; therefore they are not truly created b’tzelem Elokim; and so on.

Which is why it is so absolutely vital that Netziv notices the danger, and moves to preclude it. Even though his textual interpretation here in no way depends on any claim regarding nonJews, he adds a sentence in:

שהרי בטבעם המה בני אברהם יצחק ויעקב גומלי חסדים

– וגם כל האוה”ע

על חסד נבנית העולם

Because by their nature they are children of Avraham, Yitzchak, and Yaakov, practitioners of chasadim

and so too all the nations of the world (are natural practitioners of chasadim)

because the world was built (by G-d) through chessed

He adds this in to prevent anyone from reading his argument in the ways above. All human beings must share every aspect of G-d Who created the world.

The problem is that that all distinctions can become invidious; and that malicious or insensitive students may try to dismiss such clarifications as disingenuous apologetics for the censor. So if we are to legitimate such rhetoric or theology in our midst (even without agreeing with it), we need to set clear halakhic and hashkafic boundaries that, if breached, will demonstrate that human life is not being given infinite value.

Here are my suggestions. 

First, the status of tzelem Elokim must not be subject to any notion of “greater” or “lesser.” All human beings are created b’tzelem Elokim, period. 

Second, it must be a given that Jewish and non-Jewish physical lives are in practice absolutely equal infinities. For example, in a pandemic, one cannot suggest that Jews be given priority for care, or for immunization, or that even that Jewish self-care responsibilities are greater because of some non-equivalence.

One of the tiny, fleeting comforts of this terrible time has been the broad acceptance within Orthodoxy that the disease is a human problem and that how to respond is a problem of human ethics. Even those whose practical decisions seem to show a willful disregard for human life at least do so without obvious prejudice. May that merit help bring us to a time of much greater comfort.

What Do Angels Look Like? and Other Questions About Halakhah’s Understanding of Art

by Rabbi Aryeh Klapper

“How many angels can dance on a needle’s point?” is often cited as an example of pointless speculation. Wikipedia reports an academic consensus that the question was actually invented to needle certain schools of philosophy or theology, with Peter Harrison suggesting that “needle’s point” was a pun on “needless point.” But the perhaps genuinely important underlying issue was whether metaphysical beings occupy physical space at all. The only coherent answers are “none” and “infinity” (although Douglas Adams fans might argue for “42”).  

“What do angels look like?” may seem similarly silly. But Rosh HaShanah 24b provides two possible Biblical sources for a prohibition against producing representations of angels. Shemot 20:4 (also Devarim 5:8) bans the making of representations of things “in the heavens above,” and Shemot 20:20 bans the making of gold and silver representations of things “with Me.” If we don’t know what angels look like, how can we know whether a particular representation is forbidden?

One possible answer is that they look like keruvim, the winged figures atop the Ark. But this answer seems paradoxical, as G-d commanded us to make the keruvim! This can be finessed by asserting that the prohibitions prohibit making additional images of angels. But that seems forced, and also 1 Kings 6:23 reports that King Shlomoh made two additional wooden keruvim for the Temple.

A second possibility is that angels look as described in the visions of Yechezkel, with multiple pairs of wings. But this also seems strange, as before Yechezkel, what did the prohibition mean? Also, do all angels look alike? Yechezkel himself seems to suggest otherwise.

The possibility that seems most compelling to me emerges from Ralbag’s Commentary:

,וראוי שתדע כי צורת האדם לא יעברו על עשייתה אם לא היתה בולטת 

,כי אינה תמונת האדם לפי מה שיורגש ממנו בזולת זה האופן 

;וזה מבואר בנפשו

– ואולם צורת כוכבים ומזלות

,הנה יעברו עליה אף על פי שהיא שטוחה

.כי צורתם היא שטוחה לפי מחשבת האנשים

,וכן צורת מלאכי השרת

– אשר יסכימו האנשים בהם

,יעברו על עשייתה אף על פי שהיא שטוחה

.לפי שאין להם צורות ותמונות על דרך האמת

You should know that representations of human beings –

one does not violate by making them unless they stick up three-dimensionally,

because only in that manner are they temunot of a human being as perceived by human beings,

as is self-explanatory;

but representations of stars and planets/constellations –

one violates (by making them) even if they are flat (=two-dimensional),

because their actual form is flat according to the way people think;

so too, representations of ministering angels,

meaning representations that people agree regarding –

one violates by making them even if the representation is flat,

because they have no forms or images in the way of truth.

Ralbag contends that since angels actually don’t look like anything, the prohibition must refer to whatever a particular society recognizes as a visual representation of an angel. 

This understanding parallels Rambam’s explanation in his Commentary to the Mishnah that prohibitions against representations of the sun, moon, and stars do not relate to the astronomical bodies as they appear to the human eye, but rather to zodiac-like images, which are entirely products of the human imagination.

The question then is why such representations should be forbidden.

A reasonable first step is to note that the prohibition against representing G-d seems also to be related to His not having “any form or image in the way of truth.” Devarim 4:15-16 warns:

וְנִשְׁמַרְתֶּ֥ם מְאֹ֖ד לְנַפְשֹׁתֵיכֶ֑ם 

כִּ֣י לֹ֤א רְאִיתֶם֙ כָּל־תְּמוּנָ֔ה 

:בְּי֗וֹם דִּבֶּ֨ר יְקֹוָ֧ק אֲלֵיכֶ֛ם בְּחֹרֵ֖ב מִתּ֥וֹךְ הָאֵֽשׁ

פֶּ֨ן־תַּשְׁחִת֔וּן וַעֲשִׂיתֶ֥ם לָכֶ֛ם פֶּ֖סֶל תְּמוּנַ֣ת כָּל־סָ֑מֶל 

. . . תַּבְנִ֥ית זָכָ֖ר א֥וֹ נְקֵבָֽה

You must be exceedingly guarded for your souls

because you saw no temunah

on the day that Hashem spoke to you at Chorev from the midst of the fire.

Lest you destroy

and make for yourselves a pesel, a temunah of any semel

a tavnit of a male or a female . . .

The simplest reading of the argument in these verses is that representations are forbidden because they entrench false ideas of G-d in human minds. Recall that avodah zarah originally meant “strange worship of G-d” rather than “worship of a strange god.”

However, Devarim 4:19 seems to convey a different rationale.

וּפֶן־תִּשָּׂ֨א עֵינֶ֜יךָ הַשָּׁמַ֗יְמָה 

וְֽ֠רָאִיתָ אֶת־הַשֶּׁ֨מֶשׁ וְאֶת־הַיָּרֵ֜חַ וְאֶת־הַכּֽוֹכָבִ֗ים כֹּ֚ל צְבָ֣א הַשָּׁמַ֔יִם 

. . . וְנִדַּחְתָּ֛ וְהִשְׁתַּחֲוִ֥יתָ לָהֶ֖ם וַעֲבַדְתָּ֑ם

And lest you raise your eyes toward heaven

and see the sun and the moon and the stars, all the host of the heavens

and be led astray into sin, and bow to them, and worship them

The suggestion here seems to be that conceiving of G-d as representable will lead to the worship of astronomical bodies. However, the causal chain is not clear. 

The question that seems most pressing to me, and that none of these texts address explicitly, is whether the prohibition against physical representations is intended to constrain our thoughts and imaginations. Should making mental representations of G-d also be forbidden?

(I am leaving aside the halakhic questions of whether objects that create representations via optical illusions are forbidden, or images composed of energy, such as light-sculptures.) 

The obvious difficulty with any such claim is Yechezkel. The magnificent poem An’im Zemirot suggests that we understand the prohibition as discouraging unauthorized mental representations of G-d. It therefore provides us with a handy list of Biblical, i.e. authorized descriptions. The problem is that the Torah seems to ban even, or perhaps especially, physical representations of the prophetic descriptions.

Moreover, if mental or verbal representations of G-d and angels are discouraged, we may end up with an irony according to Ralbag. If the prohibition accomplishes its purpose, and conversation and thoughts about G-d and angels become utterly aniconic, then there will be no “representations that people agree on.” With regard to G-d, it may be that we prohibit even representations that are meaningful only to the artist. But with regard to angels, Ralbag seems clear that only conventional representations are forbidden. Could each artist then freely produce their own representations? 

In other words – can we argue that the ultimate purpose of the prohibition is to free us to think and create about angels subjectively without worrying that the results will be taken as objective representations?

Now imagine a society in which everyone agrees that a particular image corresponds to the word “angel,” but everyone also understands that the image is no more a representation than is the word “angel.” Are such images “agreed on” for Ralbag?

If the prohibition is against “making” rather than “having” representations, what if someone makes a representation that resonates with enough other people that it becomes conventional?

Part of what I’m wondering is whether there are images that human beings are hard-wired to recognize as angels, in a way that culture cannot extirpate. Even if the culture professes not to believe in the existence of angels, if we understand the term, we automatically associate it with certain images.

Here’s another thought experiment: What if a culture becomes convinced that angels look just like human beings (at least until they earn their wings)?  

What about cultures that believe that angels are masters of disguise? So for example: According to Ralbag, “flat” paintings of human beings are permitted, but not of angels. What if I paint a scene of Avraham serving three men while they eat under a tree? What if I paint the scene but don’t title it?

Here’s the thing. Most of us live in Jewish cultures that are more-or-less post-Maimonidean in the sense that even non-philosophers instinctively agree that neither G-d nor angels “look like” anything in particular. My sense is that we also live in Jewish cultures that instinctively accept virtually every halakhic leniency regarding the production of images, as can be witnessed by the reaction to occasional efforts by halakhists to impose restrictions on kindergarten drawings of sunny days (or to my wife’s objection to a popular children’s siddur’s representation of G-d as a benevolently personified moon). It seems clear to me that these realities go hand-in-hand, and can best be justified by arguments along the lines of Ralbag above.

It also seems clear to me that such arguments often implicitly contend that all religious images are fundamentally kindergarten art. It does not take the religious representations produced by artists seriously. That does not seem to me sustainable. The unanswered halakhic questions I’ve raised throughout this essay are intended to at least raise the issue.

What Does the Manna Teach Us About Economic Inequality?

by Rabbi Aryeh Klapper

A confession: I always thought the Torah’s account of the manna falling from heaven made sense. I never noticed the contradiction between “Everyone gets what they want (or need)” and “Everybody gets exactly the same.”

זֶ֤ה הַדָּבָר֙ אֲשֶׁ֣ר צִוָּ֣ה יְקֹוָ֔ק

לִקְט֣וּ מִמֶּ֔נּוּ

אִ֖ישׁ לְפִ֣י אָכְל֑וֹ

עֹ֣מֶר לַגֻּלְגֹּ֗לֶת מִסְפַּר֙ נַפְשֹׁ֣תֵיכֶ֔ם

:אִ֛ישׁ לַאֲשֶׁ֥ר בְּאָהֳל֖וֹ תִּקָּֽחוּ

This is what Hashem commended:

Glean of it, 

each man in accordance with his okhel

an omer per head, in accordance with the number of your souls

each man shall take for those who are in his tent.

One can resolve this contradiction at the price of redundancy by understanding “each man in accordance with his okhel” as referring to “each man shall take for those who are in his tent,” so that everyone gets the same. But this reading is hard to sustain in the next sentences:

וַיַּעֲשׂוּ־כֵ֖ן בְּנֵ֣י יִשְׂרָאֵ֑ל

וַֽיִּלְקְט֔וּ 

:הַמַּרְבֶּ֖ה וְהַמַּמְעִֽיט

וַיָּמֹ֣דּוּ בָעֹ֔מֶר

וְלֹ֤א הֶעְדִּיף֙ הַמַּרְבֶּ֔ה וְהַמַּמְעִ֖יט לֹ֣א הֶחְסִ֑יר

:אִ֥ישׁ לְפִֽי־אָכְל֖וֹ לָקָֽטוּ

Bnei Yisroel did so.

They gleaned, 

the increaser and the diminisher.

They measured as/via an omer.

The increaser did not get extra

and the diminisher did not lose out.

Each man in accordance with his okhel they gleaned.

Who are the “increaser” and “diminisher?” To be consistent, we must claim that they are men with larger and smaller households. They must measure an omer per person, not an overall omer. But then why would we expect the increaser to get extra, and the diminisher to lose out? And overall, why is it necessary for the Torah to explain at such length the simple idea that the manna was collected and/or distributed proportionally?

Leaving aside the literary issues: Why would it be good and proper for everyone to receive the same, rather than in accordance with their needs or wants? 

Ibn Ezra and Avraham ben HaRambam stake out diametrically opposite positions. 

According to Ibn Ezra, an omer per head was the maximum, but children got less. He does not explain whether adults received the same regardless of the size of their body or appetite, and his reading fits very poorly with “The increaser did not get extra and the diminisher did not lose out.” (Chatam Sofer reaches Ibn Ezra’s outcome by arguing that the term “omer” should be understood as a subjective volume measurement, based on each person’s fingerwidth. This requires an assumption that fingerwidth directly correlated with bodysize.)

According to Avraham ben HaRambam, “This is one of the wonders of the manna and its wondrous signs, that it fed equally the adult and the minor, the strong and the weak, each one needing exactly an omer per head.”

Avraham ben HaRambam’s position seems to me much better literarily than Ibn Ezra’s. The Torah’s repetitions and paradoxes are intended to emphasize that the manna miraculously squared the circle by making an equal share satisfy everyone’s needs equally.

But I’m not sure what this reading means, what its message is. In real life, individual needs and desires differ. Avraham ben haRambam seems to think that the message is that we don’t really need more than just enough. (Ralbag adds that we shouldn’t think it virtuous to get by with less than enough. The manna critiques both hedonists and ascetics.) This philosophy provides a demand-centric approach to inequality – let’s train everyone to recognize their true needs, because true needs are much less unequal than desires. 

One can accept this reading but challenge the moral. Even if we all boil our needs down to be conceptually alike, some people’s basic needs will consume vastly more resources than others’, e,g, if they have certain medical conditions. The manna miraculously matched equality of income with equality of outcome, but what should we do in our world, where they don’t match? 

So far we’ve only dealt with two axes – resources/wealth and needs/desires. But any serious treatment of fairness has to consider a third axis: just desserts. Is it obvious that all people deserve the same share of resources, or to have their needs/desires equally met? Even if we assume the propriety of “from each according to their abilities,” perhaps the proper formula is “To each a share of their needs proportional to the share of their abilities that they contribute.” 

Rabbi Samson Raphael Hirsch may accept a version of this formula:

“However, it seems that the intent of the gleaners to glean, each in accordance with his quota, was an unalterable condition, because otherwise they would have been able to suffice – once the outcome of the first day became known to them – with collecting a minimal amount, as one way or the other, each person would receive sufficient for their needs, and no one would under any circumstances receive more than their quota.” 

One wonders, however, at the psychological impact of this arrangement. This is make-work in the purest sense. In yeshivish terms, it strips away the illusion that human effort/hishtadlut has any direct relevance to results. 

Mekhilta d’Rabbi Shimon bar Yochai may provide a slightly different approach.

– איש לפי אכלו

:’דורשי רשומות אומ 

מיכן שהיה בו במן 

בזעת אפך תאכל לחם

each man in accordance with his okhel – 

The expounders of reshumot say:

From here we learn that the manna contained within itself

by the sweat of your brow shall you eat bread

This may mean that G-d had a principled objection to providing human beings with food that required no effort on their part. If so, maybe a token, minimal effort was sufficient after the first day. 

This suggests that G-d used the manna to create an egalitarian utopia. All needs were provided for equally, and with minimal effort. Having one’s needs provided for was a human right, not something one needed to earn, and there was nothing one person could do to become more deserving than another of having his or her needs met. In our world, we should strive as best we can to recreate such equality.

What if someone wanted more? 

We all know that the manna was an every-flavor bean. What if some people had much greater gustatory imaginations than others, and so they experienced the manna more pleasurably than others?

Ramban plays the Faucian skunk at the egalitarian picnic. He notes that benei Yisroel ask to return to Egypt where they “sat over the fleshpot, and ate bread to satiety,” and G-d responded with quail and manna – but there is no miraculous equalization with regard to quail.

,ויתכן שהיו גדוליהם לוקטין אותו

,או שהיה מזדמן לחסידים שבהם 

,וצעיריהם היו תאבים לו ורעבים ממנו 

כי לא יספר בשלו וילקטו המרבה והממעיט 

.כאשר אמר במן

Plausibly the adult/great/powerful? among them would glean the quail, 

or the quail would present themselves only to the pious among them,

and the youngsters would desire it and be hungry for lack of it, 

because the Torah does not tell regarding the quail they gleaned, the increaser and the diminisher

as it said regarding the manna.

Human beings do not live by bread alone, and the manna did not succeed in creating a society with no desires beyond needs, if that was its intent. G-d did not create a fully equal society – if Ramban’s second hypothesis is correct, He seems to have deliberately generated material inequality based on spiritual inequality.

Perhaps G-d deliberately created human beings as too complex for any notion of sameness to yield fairness. Yet the manna still teaches that sameness is part of the equation.

The Halakhah of Equal Protection

by Rabbi Aryeh Klapper

The 14^th Amendment to the United States Constitution declares that the relevant government authorities may not “deny to any person within its jurisdiction the equal protection of the laws.” The commitment stated in this post-Civil War amendment is now seen as a restatement of the fundamental American ethic. Unequal laws are unjust per se. They also undermine democracy by entrenching power in those the law privileges and denying it to those the law disfavors.

The Torah seems to state a similar ethic in at least four places: 

Shemot 12:49

:תּוֹרָ֣ה אַחַ֔ת יִהְיֶ֖ה לָֽאֶזְרָ֑ח וְלַגֵּ֖ר הַגָּ֥ר בְּתוֹכְכֶֽם

There must be one torah for the ezrach, and for the ger, who is gar in your midst

Vayikra 24:22

:מִשְׁפַּ֤ט אֶחָד֙ יִהְיֶ֣ה לָכֶ֔ם כַּגֵּ֥ר כָּאֶזְרָ֖ח יִהְיֶ֑ה כִּ֛י אֲנִ֥י יְקֹוָ֖ק אֱלֹ-הֵיכֶֽם

There much one mishpat for you – the ger and the ezrach alike

Bamidbar 9:14

:חֻקָּ֤ה אַחַת֙ יִהְיֶ֣ה לָכֶ֔ם וְלַגֵּ֖ר וּלְאֶזְרַ֥ח הָאָֽרֶץ …

… there must be one chukah for you and for the ger and for the ezrach of the land

Bamidbar 15:15-16

הַקָּהָ֕ל חֻקָּ֥ה אַחַ֛ת לָכֶ֖ם וְלַגֵּ֣ר הַגָּ֑ר חֻקַּ֤ת עוֹלָם֙ לְדֹרֹ֣תֵיכֶ֔ם כָּכֶ֛ם כַּגֵּ֥ר יִהְיֶ֖ה לִפְנֵ֥י יְקוָֽק׃

:תּוֹרָ֥ה אַחַ֛ת וּמִשְׁפָּ֥ט אֶחָ֖ד יִהְיֶ֣ה לָכֶ֑ם וְלַגֵּ֖ר הַגָּ֥ר אִתְּכֶֽם

The kahal – there must be one chukah for you and for the ger who is gar;

It is an eternal chukah for all your generations; 

you and the ger must be alike before G-d.

There must be one torah and one chukah for you and for the ger who is gar with you.

At least two mid-20^th century scholars connected these verses to the promise of equal protection in a formally halakhic context, analysis of the principle that “dina demalkhuta dina” = “the law of the government is the law.” 

Rav Chaim Regensburg, Rosh Yeshiva of HTC and Av Beit Din of Chicago, wrote in his article “Iyyunim al Zekhuyot Ezrachiyot” that 

מכל זה נוכחנו שכלל גדול הוא במשפטים ובחוקים שבמדינה

 .שצריך להיות שוויון מוחלט בין כל התושבים והאזרחים 

“חֻקָּ֤ה אַחַת֙ יִהְיֶ֣ה לָכֶ֔ם וְלַגֵּ֖ר וּלְאֶזְרַ֥ח הָאָֽרֶץ” 

,היא אחת התכונות העיקריות של כל חוק ומשפט 

.וחוק המשולל תכונה זו אינו חוק צדק

From all this we have proven that a great principle of the chukim and mishpatim of a state is

that there must be absolute equality among all the toshavim and ezrachim.

“there must be one chukah for you and for the ger and for the ezrach of the land”

is one of the essential characteristics of every chok and mishpat,

and a chok which lacks this characteristic is not a just chok. 

Rav Efraim Fischel Weinberger of Tel Aviv wrote in his article “Samkhut Hatzibbur Bivchirat Anshei Hamemshal L’Or Hahalakhah” that 

חק התורה

.הוא נגד יצירת תחומים, הפליות ומעמדים שונים בעלי זכויות יתר

… “כלל התורה הוא: “חוקה אחת יהיה לכם

יוצא איפוא שחוקי המלכות והמדינה 

מחייבים את האזרחים ויש להם תוקף 

רק אם הם חוקים דמוקרטיים בלי כל הבדל כל שהיא בין אזרח לאזרח

The chok of the Torah 

is against the creation of boundaries, discriminations, and classes with greater privileges.

The general principle of Torah is: “there must be one chukah for you” … 

It therefore emerges that the chukim of the government and of the state 

obligate the citizens and have force

only if they are democratic chukim with no distinction at all among citizens …  

The claim that Halakhah mandates equal protection in the context of dina demalkhuta can be challenged in at least three ways. First, the halakhah of dina demalkhuta was articulated and maintained for a millennium in environments where the civil law discriminated against Jews. Second, Halakhah itself discriminates in various contexts between citizens (Jews) and resident aliens who are not Jewish, and even imposes some restrictions on naturalized citizens (converts). Third, Halakhah discriminates even among citizens in various contexts, for example on grounds of gender or lineage. 

My focus here is on the first challenge. I’ll briefly sketch two responses to the last two challenges, and a difficulty with each. But my focus is on the first challenge, and on a response to it that may be useful overall.

Response #1 – Equal protection applies specifically in the realm of dina demalkhuta, meaning laws developed via human reason. Divine laws need not meet the same standard. 

The problem here is that the relevant Biblical verses relate to halakhah itself, and the diverse terminology (torah, chok, mishpat) suggests that they apply across all types of halakhah. 

Response #2 – “Equal” does not mean “identical.” According to https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/702, “most laws are assessed under so-called ‘rational basis scrutiny.’ Here, any plausible and legitimate reason for the discrimination is sufficient to render it constitutional.” However, “laws that rely on so-called ‘suspect classifications’ are assessed under heightened scrutiny. Here, the government must have important or compelling reasons to justify the discrimination, and the discrimination must be carefully tailored to serve those reasons.” Within halakhah, we need to determine what constitutes a “rational basis” for discrimination; and whether halakhah has the equivalent of “suspect classifications.” 

The problem here is figuring out what to do if existing laws seem not to meet the equal protection standard. 

Moving back to the first challenge: A medieval halakhic consensus, beginning at least from Rabbi Yosef Ibn Migash among Sefardim (see his commentary to Bava Batra 55a) and perhaps from Rabbeinu Tam among Ashkenazim (see e.g. Talmidei Rabbeinu Peretz Nedarim 28a), held that dina demalkhuta dina applied only to laws that are כלליים/general rather than aimed at specific individuals, and that the government must be משוה מדותיו/relate to all equally. Rabbeinu Tam in some versions even bans laws that treat one מדינה /state within an empire differently from its peers. On this basis, Dr. Shmuel Shiloh in his excellent book Dina D’Malkhuta Dina, p. 110, asserts that 

,ברור, שכאשר מדובר בחוק השווה לכל נפש

.הכוונה היא, שהוא חל באופן שווה אף על היהודים

It is clear that when speaking of a chok that applies equally to all souls, 

that the intent is that it applies in an equal manner even to Jews.

Dr, Shiloh’s statement is in conscious opposition to the late 15th century Rabbi Yosef Kolon, who wrote (Responsa Maharik 194):

,וגם אין לומר דהכ’ לא שייך למימר ד”ד כיון שהישראל פורע יותר מהכותי

שהרי כת’ המרדכי שם דלא אמרינן אלא כשהמלך משוה מדותיו

.דודאי פשיט’ דשפיר מקרי משוה מדותיו כיון שכל יהודי פורע בשוה דבר קצוב

One cannot say that dina demalkhuta does not apply here because the Jew pays more than the nonJew,

because the Mordekhai wrote there that “we say it only when the king relates to all equally,”

because it’s obvious that “relates to all equally” is met when all Jews pay an equal fixed amount.

Dr. Shiloh concedes that

,למרות ריבוי המקומות השנים בעיקרון השוויון 

.נאמר דבר זה במפורש במקום אחד לבד 

:בסיום אחת מתשובותיו כתנ הריטב”א כך

“והסכמת שופטי המלך בזה אינו מעלה כלום

אלא א”כ הוא חוק קבוע מן המלכו’ על כל המלכות ואפי’ על היהודיים

“.דקי”ל דינא דמלכותא דינא

despite the many places that teach about the fundamental principle of equality,

(that Jews and nonJews must be treated equally) is stated explicitly in only one place.

At the end of one of his responsa (#53), Ritva writes:

“the consensus of the king’s judges in this matter is of no avail

unless it is a chok established by the government over the entire kingdom, even on the Jews,

because we hold dina demalkhuta dina.”

Dr. Shiloh understands this as a statement that dina demalkhuta dina applies only to laws that apply equally to Jews and nonJews. In my humble opinion, this is incorrect. The clause preceding Dr. Shiloh’s quote is 

למדנו מזה שדברים אלו הם כפי המנהג

we have learned from this that in these matters (the law) follows the practice.

Therefore, Ritva contends, the practice of non-Jewish courts is irrelevant to Jewish courts, unless the government has established this as a law that is binding even on Jews. The point is not that the law must apply equally to Jews – it’s that there must be a law that applies to Jews, and not merely a convention of the state non-Jewish judicial system. Otherwise rabbinic courts are free to follow their own conventions.

Maharik’s position is brought by Rav Yosef Caro in Beit Yosef (Choshen Mishpat 369), but not in his Shulchan Arukh, while Rav Moshe Isserles cites it in a gloss. So this issue may be a dispute between them as well.

What interests me is that Maharik and Dr. Shiloh each see their opposing positions as obvious despite a lack of explicit textual precedent. And I think they are both obviously correct! Maharik seems to me obviously correct historically that the Jewish community enforced taxes on themselves that were levied unequally. Dr. Shiloh seems to me obviously correct that this violates the fundamental consensus principle that law must be applied equally.

Rav Yekutiel Cohen, Av Beit Din of Ashdod, explains Maharik via Rav Shlomo Kluger’s comment (Chokhmat Shlomo to Choshen Mishpat 369:8, available on Al HaTorah) that the equality standard applies only to citizens, not to resident aliens. Maharik assumed that Jews would always be considered aliens rather than citizens in non-Jewish polities. (Dr. Shiloh presumably rejects that assumption.)

According to Rav Kluger, we must say that the ger referred to in our equality verses is the convert, not the resident alien. But is it consistent with the spirit of these verses to discriminate against resident aliens without a rational basis for doing so?

Rabbi Cohen argues that there is a rational basis for such discrimination: alien minorities are often hated by the natives and require additional government services. Similarly, Ramban to Shemot 1:10 records that Pharaoh began his campaign against the Jews by imposing a labor levy on us, “because it is the way of gerim in the land to offer a labor levy to the king.” Not coincidentally, Ramban limits the authority of dina demalkhuta dina to regulations that fall within the conventional practice of kings.

However, Responsa Ateret Paz (1:3 CM 4) puts Ramban’s explanation in a different context. After imposing the labor levy, Pharaoh escalates by asking the midwives to kill all Jewish male infants at birth. When they refuse, Pharaoh cites Maharik’s position that dina demalkhuta applies even to discriminatory laws! The midwives reply that it applies only to laws that meet the equality standard.

In other words, the legitimation of discrimination (sometimes? often? always?) leads to its expansion. But protests are more often effective when they reflect a moral consensus than when they oppose it. Perhaps the Jews could have successfully refused the labor levy, as the midwives refused the order to murder. Or perhaps disobeying what was seen as a legitimate tax would have turned all Egypt against them faster – in fact, Ramban suggests that popular outrage forced Pharaoh to cancel his general decree against male Jewish infants after only three months. 

It seems to me that the equality standard functions in halakhah as an aspirational ideal. It is implemented only when doing so will not destabilize the rule of law, or alternatively, when it is violated so grossly that revolution is both justified and very likely to succeed.

Jews in the United States are blessed with full citizenship in a country that shares our moral aspiration of having the law provide equal protection to all human beings. The meaning of equal protection is not always clear, and reasonable people can disagree about the risks of various kinds of protest. But there should be no doubt of our Torah obligation to work toward the realization of this Torah aspiration. 

My thanks to all those who participated in this week’s MLK Day Yom Iyyun, who helped me sharpen several of the ideas in this essay, although the work is far from complete.

What Kind of Freedom Does the Torah Value?

by Rabbi Aryeh Klapper

The game of freedom is not zero-sum – there can be more freedom in the world, or less. It is not an altruist’s game – giving up my freedom may diminish yours as well. Isaiah Berlin’s distinction between “freedom from” and “freedom to” is essential but does not make the game semantic. In short, it’s complicated.

Let’s start with a God’s-eye perspective. When G-d was all that existed, His “freedom from” was apparently absolute. The angels opposed the creation of humanity because the existence of another being with any degree of freedom would diminish His. 

But G-d chose to create humanity anyway, because the absence of other free-willed beings limited his “freedom to.” He could not express generosity. Possibly He could not be loved.

Rav Yosef Dov Soloveitchik argued that the Biblical story of Creation should be read as normative, with the premise that human beings are charged with being as like G-d as they can be. So: Just as He created, so too we must create. 

Having read Nietzsche, the Rav also recognized the danger of this idea. What if human beings realize that to truly be like G-d they must be utterly autonomous, create their own norms? Why would they be wrong?

One answer is that human beings cannot truly be like G-d. Imitatio dei must always remain an aspiration; it cannot actually be achieved.

A second answer is that human beings by necessity live in the world that G-d created, and in which G-d exists. So we can never have the freedom that G-d had before Creation. We can never be the only free-willed being in existence. The fantasy of unbounded freedom is what led Kayin to murder Hevel, only to rediscover G-d.

The issue between these two answers may be a matter of Biblical interpretation. Must the normative story of Creation be interpreted in light of the subsequent 613 commandments? Or must the 613 commandments be understood in light of their normative preamble, the story of Creation? In other words: must we understand halakhah as a means for maximizing our freedom, or is it possible for halakhah, properly interpreted, to limit our freedom? 

A third answer, which I prefer, is that the normative message of Creation is more complex, because G-d’s creation limited His own freedom in one sense, and expanded it in another. 

The existence of other free-willed beings (us) meant that G-d entered the sphere of ethics, that in a sense we can say that He acquired duties toward us. Duties toward others restrict the freedom of one’s own will. This may be the underlying message of all the Rabbinic stories that portray Hashem observing the mitzvot.    

On the other hand, by enabling Hashem to act ethically, to express middot such as chessed, Creation also expanded Divine “freedom to.”

On this reading, the existence of mitzvot is not in tension with the norm of creation. Rather, mitzvot should be understood as opportunities to expand our “freedom to.”

The challenge is that acknowledging the existence of a normative obligation always carries with it the yetzer hora to impose that obligation on others against their will. We are tempted to conclude that the mitzvot are ends in and of themselves, rather than opportunities to express human virtues. 

It turns out that there are two religious paths to becoming a slave-owner. 

The first is the Nietzschean/Fascist temptation, the belief that your freedom to obey G-d is limited to the extent that others have any capacity to limit your actions, and expanded by the capacity to have others do your will (and perhaps, that it is worth submerging your individual identity into a collective that is free from external constraints). This is true – but your “freedom to” is even more limited by the inability to relate to other free beings as free. Moreover, the effort to keep others subjugated will end up controlling your life, whether as an individual or as a society. 

The second is the anti-Nietszchean/Communist/Puritan temptation, the belief that freedom is not intrinsically valuable at all, and certainly not as valuable as obedience to G-d. So it is better for others’ wills to be subordinated to mine, and thereby certainly to G-d’s, than for them to be left free, which risks disobedience to G-d.

These two paths are ideologically opposed, but perfectly complementary in practice. They parallel the first two explanations above of the relationship between Creation and Mitzvot.   

The narrative of yetziyat mitzrayim might seem to be the antidote to these ideological poisons. Here the point is as clear as can be – G-d hates slavery, and He intervenes to end it. As Rashi famously points out, the Exodus is really a second Creation. Before Creation, there was no time, and time restarts at the Exodus, with a normative component. “This month/newness/chodesh must be for you the head of months; it shall be the first for you, of the months of the year.” But Rashi’s question is: Why then is the narrative of the first Creation necessary? I suggest: because otherwise we might not realize that creativity is intrinsically valuable.

But the narrative of Exodus can also be normatively misunderstood. We can argue that the story is not about generic freedom from avdut, but only about Jewish freedom from Gentile avdut. On this misreading, our goal is to become avdei Hashem in the sense of slaves rather than free-willed servants, and we are entitled to enslave others to increase our and their obedience to G-d. (Both yitzrei hora at once!) After all, the regulations of avdut follow almost immediately after the 10 commandments, with their preamble “I am Hashem your G-d Who took out of Mitzrayim, from the house of avadim. Is that to teach us to read the preamble narrowly? 

The correct reading is that the juxtaposition is intended to emphasize that the entire framework of law, society, halakhah – all of which constrain some sorts of freedom – must nonetheless be understood as having the purpose of maximizing freedom, and interpreted accordingly. Sometimes the world leaves human beings very few choices, if any, to keep themselves and their families alive – with full awareness of the dangers (we call it avdut!), halakhah sets up a mechanism to ameliorate such situations and enable at least some degree of freedom in the present, and guarantee that the prospect of freedom is always there.

This reading is demonstrated by Yirmiyahu 34:13-14, which states that the law that an eved ivri must be freed embodies the covenant Hashem made with the Jews on the day He took them out of Egypt. Note that the law itself allows an eved contract to last six years, but the language of 34:9-10 implies that Yirmiyah demanded immediate manumission.

In the Yerushalmi (Rosh HaShanah 3:5), Rav Shmuel son of Rav Yitzchak argues, against Rashi, that the norm must precede creation. Shemot 6:13 states:

וַיְדַבֵּ֣ר יְקֹוָק֘ אֶל־מֹשֶׁ֣ה וְאֶֽל־אַהֲרֹן֒ 

וַיְצַוֵּם֙ אֶל־בְּנֵ֣י יִשְׂרָאֵ֔ל וְאֶל־פַּרְעֹ֖ה מֶ֣לֶךְ מִצְרָ֑יִם 

:לְהוֹצִ֥יא אֶת־בְּנֵֽי־יִשְׂרָאֵ֖ל מֵאֶ֥רֶץ מִצְרָֽיִם

Hashem spoke to Mosheh and Aharon

He commanded them regarding Benei Yisroel and regarding Pharaoh King of Mitzrayim

to bring Benei Yisroel out of Mitzrayim. 

What was the content of this command? The laws of freeing slaves, as referenced by Yirmiyahu.

Some contemporary rabbinic commentators note that Yirmiyahu refers to the covenant being established on the day of the Exodus, whereas this verse apparently takes place long before. Their suggestion is that the command was given at the outset, even though it took binding effect only at the Exodus. The Jews had to know the meaning of G-d’s intervention before it happened, and before they received the Torah. 

אין בן חורין אלא מי שעוסק בתורה

ואין בן תורה אלא מי שעוסק בחרות

No one is free except the one who engages in Torah,

and no one is a ben Torah unless they engage in maximizing freedom.

What is the Moral of This Dvar Torah?

by Rabbi Aryeh Klapper

In the realm of halakhah, Modern Orthodoxy celebrates theoretical pluralism. Beit Shammai are halakhically irrelevant (eino mishnah) when they disagree with Beit Hillel, and yet are divrei Elokim chayyim and therefore (equally?) worthy of our time and effort interpreting them. 

However, public shiurim rarely focus on rejected halakhic positions. Even Beit Shammai’s position is most often used as a foil to develop Beit Hillel’s position by contrast. It is an especially safe foil, because everyone knows which way the halakhah must end up, even if they find Beit Shammai’s position more compelling. The experience trains us to live comfortably with a certain amount of religious dissonance. If we accept Rav Chaim Vital’s claim that the halakhah of Messianic times will follow Beit Shammai, the experience may even be flattering and affirming; our spiritual instincts are too good for this unredeemed world. 

Beit Shammai’s position is also safer than most because its rejection (according to the more popularly known Talmudic position) results from a Heavenly voice rather than from human reason, and because the Talmud explains Beit Hillel’s triumph as a result of character. Indeed, since Beit Hillel’s superiority is embodied in their willingness to cite Beit Shammai’s position before their own, our willingness to explicate Beit Shammai’s positions actually cements our identification with Beit Hillel.

So it makes sense that few public shiurim are devoted to making sense of non-Beit Shammai halakhic positions that the teacher thinks shouldn’t be followed. I suspect that the more tenuous the authority of the approved position, the less generosity shown the rejected positions.

What about the realm of hashkofoh? Do we see value in expounding the theological, moral, or ethical positions found in the Tradition that, in our opinion, should be rejected?

There are at least two ways to reject the premise of this question. One way is to deny that binding decisions exist in the realm of hashkofoh. The other is to deny that important disagreements exist. (The first position is articulated at least with regard to ethics by Rav Yosef Dov Soloveitchik in Halakhic Morality, and the second by Rav Eliyahu Dessler in Michtav MeiEliyahu. Each of them acknowledges that many hashkafic positions are utterly incompatible with Torah; the discussion is only with regard to positions that have already made it into the Tradition.)

But let’s suppose that the Tradition in fact contains hashkafic positions that should be rejected as guides for practice. Is there value in expounding those positions in and of themselves? (Full disclosure: I often teach Rav Dessler’s position as a foil.) Or is that irresponsible? 

This question often comes up for me in the process of preparing these essays, or my parshah shiurim. I generally start by reading through the parshah until I find a section that raises new questions for me, or old but disturbingly unresolved questions. Then I go through the commentaries on Al HaTorah and/or Bar Ilan, sometimes with supplements from paper books, until I find one that makes me rethink. But making me rethink doesn’t mean that I’ll end up agreeing with it. I might end up strongly disagreeing. Can I still base my essay or shiur on it? Can divrei Torah end with morals we disagree with? Or even that we’re not sure whether we agree with?

The rest of this essay focuses on a Ramban that met the requirement above – it made me rethink – but I’m not sure yet how I’ll feel about it when I’m done. I’m writing stream-of-consciousness to model the idea that there is value in thinking about challenging interpretations of Torah, and in sharing our understandings of such Torah, even if we won’t necessarily agree, or at least not agree fully, with the hashkafic perspectives that emerge from them.

Ramban to Shemot 1:10 wonders why Pharaoh’s campaign against the Jews was launched gradually and subtly rather than with sudden overwhelming force. He offers three reasons in the context of an overall vision of the narrative arc:

Pharaoh and the experts who advised him did not see fit to smite them with the sword, because

1) this would be a great betrayal, to smite without cause the nation that had entered the land at the command of a prior king

2) also, the populace would not have permitted the king to do such criminal violence, and he is consulting with them

3) furthermore, the Jews themselves were a numerous and strong people, and would have made full-scale war against him.

Instead, Pharaoh said hava nitchakmah lo – let us be clever so that the Jews will not realize that they are being treated with hatred. So he imposed a labor levy on them, which was standard practice for communities of resident aliens, as we can see from Shlomoh’s practice in 1Kings 9:21. Then he covertly commanded the midwives to kill the male infants at birth, so that even the birthing mothers would not realize what they were doing. Then he ordered his entire people, “Every male that is born – you shall throw them into the Nile,” meaning: He did not wish to order his executioners to kill them with the king’s sword, or to have the executioners be the ones throwing them into the Nile, but rather said to his people: When anyone among you finds a male Jewish infant, throw him into the Nile, and if the father comes to the king or to the local official, they will tell him: “Bring witnesses and vengeance will be done to the perpetrator!” Once the king’s “whip was untied,” the Mitzriyim would search the Jewish houses, enter them at night ?as if they were strangers? and remove the children from them, which is what the Torah refers to by saying “And (Yocheved) was no longer able to hide (Mosheh).” 

It seems that this situation was only briefly in force, as there was no such decree when Aharon was born, and after Mosheh’s birth it seems to have lapsed. Perhaps Pharaoh’s daughter out of her pity for Mosheh told her father not to behave so, or perhaps once it became known that the decree came from the king it lapsed, or perhaps it the decree was made specifically then on the basis of astrology, as per our masters (Shemot Rabbah 1:29). All this was done with cleverness toward them so that the criminality would remain unknown. This is the meaning of their saying to Mosheh our Teacher (Shemot 5:21), “You have given us a bad odor so as to give a sword into their hand,” because now they will hate us more, and they will find grounds for accusing us of revolt and killing us openly in front of everyone rather than resorting to trickery.

Reason #3 is pragmatic – Pharaoh chose the gradual approach in the belief that it would prevent the Jews from taking up arms to protect themselves. This may have been good policy – it seems to have worked – although I can imagine situations in which the element of surprise is more valuable.

Reason #2 makes a claim about a rift between the ruling elite and the populace. Ramban does not explain why the populace would be less inclined to genocide against the Jews than the elite. Perhaps they had lingering gratitude for Yoseph’s policies; or perhaps in general he believes that the common sense of the masses is less prone to immoral extremes than that of the elite. Or – and I think this most likely – genocidal extremism is generally rare, so that whichever group gets to that point first has to worry that the other won’t go along. 

Reason #1 interests me most. Ramban’s language suggests that this was an internal constraint on Pharaoh, that he simply could not bring himself to commit so sudden a betrayal. The gradualism was necessary to overcome his own yetzer hatov. I’m not sure, however, that the best reading of the story indicates any psycho-moral development within the original enslaving Pharaoh. 

Rabbeinu Bachya understood Ramban differently. He inserts the phrase ותהיה זאת למלך לחרפה בתוך העמים, “because this would be a disgrace for the king among the nations.” This suggests yet a different external constraint. But I wonder to what extent he is correct that political leaders within one group are constrained by the moral disregard of leaders in another group, at least once they’ve reached an internal state consistent with the commission of genocide. I also wonder again whether gradualism is a better tactic than surprise for avoiding international condemnation – that doesn’t seem to be the lesson of Rwanda or Bosnia.

Finally, Ramban suggests that the directly genocidal technique of throwing babies in the river was short-lived, and offers as one possible explanation for its shortlivedness that Pharaoh was persuaded by his daughter to stop.

Overall, the message of Ramban seems to be that there were many people who could have prevented the enslavement of the Jews and killing of our sons. His daughter might have spoken up earlier; the populace might have maintained their moral revulsion; or the international community might have condemned him. At each stage, their opposition might have had not only a pragmatic but a moral impact. Perhaps this Pharaoh was incapable of hardening his heart? 

But Pharaoh’s most subtle technique was at the second stage. He encouraged the Egyptians to victimize the Jews by promising them that the justice system would look the other way, while insisting to the Jews that they rely on the law to protect them. The Jews would not realize in time that the promise of justice was a mockery. Meanwhile, with the מורא של מלכות = the fear of government gone, the Mitzriyim may have gone further than even Pharaoh intended. 

What do you think is the lesson of Ramban’s understanding of the process by which we were enslaved in Egypt? Would you “give this vort over” even if you disagreed with the lesson?

What Happened to Yosef’s Other Children? Rav Yehuda Herzl Henkin z”l’s Challenge to American Orthodoxy

by Rabbi Aryeh Klapper

Until the 19^th century, Christians in Ottoman Egypt were required to wear special attire and pay special taxes. The rise of Egyptian nationalism under Muhammad Ali Pasha fostered a new Egyptian identity that included Copts, and members of the Coptic economic elite attained political and social prominence. Boutros Ghali became prime minister under King Fuad in 1908 and served until he was assassinated in 1910. Some weeks before his death, in a fatalistic moment, he called in his grandson Boutros Boutros-Ghali (later Egyptian Foreign Minister under Anwar Sadat, and UN Secretary General) and made him swear to bury him in Paris.

Not really, although the historical parallels to Jews in Ancient Egypt, and Modern Europe, may be instructive. But Boutros Boutros-Ghali’s memoir Egypt’s Road to Jerusalem does include the following, which may shed light on aspects of this week’s parshah:

We left for Alexandria aboard a special train that had belonged to King Fuad. Every year at the start of the summer season the king had taken this train from Cairo to Alexandria, accompanied by all his cabinet members, making Alexandria for three months the second capital of Egypt. Then in September, they would return via the same train, with the same ceremony, to Cairo. For generations, every member of the Egyptian oligarchy had to own a second residence in Alexandria. As a boy, I was obsessed by such social niceties and humiliated because my family did not own a second residence in Alexandria but only rented a villa there. Every time I asked my father to buy a villa, he would ask me whether I preferred our second residence to be in Alexandria or in Europe. I would always reply “Europe!” “Then, do you see why we have no Alexandria villa?” my father would ask.

I was put in mind of this section last week by Rav Yehuda Herzl Henkin z”l’s essay on Vayechi (the Hebrew is in Shut Bnei Banim vol. 4, p. 128, available on Hebrew Books and Sefaria; available in New Interpretations on the Parsha, but the translation below is my own).  In honor of Rav Henkin z”l, I’ll first provide the essay in full, with some comments of my own following.   

Yosef certainly had sons aside from Efraim and Menasheh, as in Yaakov’s statement “but your progeny whom you sired after them…” (48:6). Even according to Rashi’s opinion that this statement was made in future tense = ‘if you sire more,’ as Onkelos had translated, we must say that in the end such sons were born. Otherwise, why would the Torah tell us of things that Yaakov said which were purely theoretical?

At first glance the mystery is deep. There is not mention of additional sons of Yosef anywhere else in Scripture, nor in texts of Chazal. They do not appear in Parshat BaMidbar in the lists of the Children of Israel who exited Egypt, so it seems that they did not exit. They assimilated, remained in Egypt, and their traces were lost.

On this basis we can understand Yaakov’s words:

“Now, your two sons that were born to you in the Land of Mitzrayim ere I came to you to Mitzrayim – they are mine. Efraim and Menasheh, like Reuven and Shimon, will be mine. But your progeny whom you sired after them – they will be yours; they will be called under their brother’s names in their homesteads.” 

Yaakov and his sons had portable wealth: silver and gold, flocks and cattle and camels. Just as they brought this wealth into Egypt, they would be able to bring it out. But Yosef, the one with authority over the land, had fields and vineyards, houses and palaces full of all goods – immobile possessions that could not be transported.

So this is what Yaakov meant by saying:

“Now, your two sons that were born to you in the Land of Mitzrayim ere I came to you to Mitzrayim – they are mine. Efraim and Menasheh, like Reuven and Shimon, will be mine.” 

Efraim and Menasheh will be like the son of Yaakov for all purposes, and they will share in the estate of their grandfather equally with Reuven, Shimon, and their father’s other brothers, whereas the wealth of Yosef will be inherited by Yosef’s other sons and not by Efraim and Menasheh. This is the meaning of “they will be called under their brother’s names in their homesteads”: “called under X’s name” means that one person takes another’s place as heir, as in Devarim 25:6: “So the first-born to whom she subsequently gives birth will stand up under the name of his dead brother,” which is speaking about inheritance. Yaakov was concerned that if Ephraim and Menasheh would inherit their father, they would take possession of his wealth, and when the day of redemption came – they would not want to leave. This is what Yaakov sought to prevent in every way.

All the above (parshanut) was revealed in our beit midrash. It remains to ask: Why did Yaakov foresee that the remaining sons of Yosef would melt (into Egyptian society), and therefore he focused on saving Efraim and Menasheh alone? Really it should be the reverse: If Efraim and Menasheh, who were born and reached the age of educability while Yosef was by himself in Egypt, before the arrival of Yaakov and his brothers, nonetheless remained faithful to Israel and his Torah, then all the more so their younger brothers, who were born when they already had a grandfather in Egypt, (should have remained faithful)!

But it seems to me that this is not astounding, and there are several explanations for the matter:

1) When Yosef was by himself in Egypt, he took pains to educate Efraim and Menasheh in the heritage of his father’s household, because who other than him would do it? But after his family reached Egypt, he did not devote himself to the education of his other sons to the same extent, but rather relied on the family influence. However, this influence was not effective, because Yosef and his sons lived in Egypt’s capital, the place of the king and officers, and not with Yaakov and his sons in the Land of Goshen.

2) Before his father and brothers arrived, Yosef felt alone and solitary in Egypt, as emerges from the names by which he called his two sons. He transmitted this feeling of alienation to Efraim and Menasheh, and this was effective in enabling them to avoid blending into Egypt. However, after Yaakov’s household arrived, Yosef felt expansive and relaxed in Egypt, and his younger sons felt even more this way, and therefore they blended in, and ultimately melted.

3) What is astounding is not that Yosef’s other sons assimilated, since they were members of the elite in Egypt. The astounding thing is that Efraim and Menasheh did not melt also. However, Efraim and Menasheh saw and experienced the spiritual whirlwind that passed over their father when Yosef made himself known to his brothers and when Yaakov came to him in Egypt. These experiences left a deep impression in their souls and served as a shield against assimilation, which was lacking for Yosef’s other sons.

The fundamental question Rav Henkin addresses is whether it is reasonable to expect Orthodox children in America to become authentic Jewish leaders. This is powerful stuff from a posek so vital to our community’s development. We owe it a full hearing whether or not we end up agreeing. Rav Henkin himself made Aliyah in 1972.

The textual peg is why Yaakov grants Tribe status to Efraim and Menashe, who grew up without his influence, and preemptively denies it to any children of Yosef whom he would know from the cradle. Shouldn’t it be the other way around?

Rav Henkin’s third answer is that the two oldest children were witnesses to powerful identity-forming experiences with their father. Yosef was a baal teshuvah, and his family became baalei teshuvah with him. But later children would grow up knowing only the restrictions generated by those experiences, which were imposed on them rather than assumed autonomously, and would not find them meaningful. There are of course ways to avoid this trap, but Yaakov knew Yosef too well to believe that he would adopt them.

Rav Henkin’s second answer is that Yaakov’s arrival made Egypt home. This sounds like a charedi critique of Modern Orthodoxy, but historical context inverts that parallel. The most likely parallel to Yaakov’s arrival in Egypt is the post WWII arrival of European Torah greats in America. Perhaps the worry is not assimilation of individuals, but assimilation of the community as a whole. Yosef’s later children would superficially maintain their Jewish identity and Orthodox practice, but their values and their prejudices would become fundamentally Egyptian. 

Rav Henkin’s first answer is the most subtle and yet perhaps the most directly challenging. Yosef was a successful father when fully engaged, but it’s also true that the village matters. You just have to make sure it’s the right village. 

Maybe the village that matters most is not where you live, which can be dictated by duty or economic necessity, but where you would choose to be, and with whom. Do you buy in Alexandria and rent in Paris, or buy in Paris and rent in Alexandria? In other words: Are you in Alexandria because you must be, or because your fundamental identity and desires are those of a royal hanger-on? Yosef’s later children spent vacations in Goshen out of duty and necessity, but lived in Cairo by choice.

Rav Henkin’s challenge applies to how we spend time just as much as it does to where we spend time.

2020 SBM Teshuvot

We are excited to share this year’s SBM Teshuvot, on the topic of “Dina D’Malkhuta Dina: Obligations and Limits.” In addition to the Teshuvot, the reader includes the SBM weekly summaries as well as Rabbi Klapper’s introduction to the topic.

Contributors include:

Rabbi Aryeh Klapper

Adena Morgan

Zack Orenshein

Eli Putterman

Sara Schatz

Joshua Skootsky

Avi Sommer

Tzophia Stepansky

Bracha Weinberger

Binyamin Weinreich

Batsheva Leah Weinstein

Talia Weisberg

Akiva Weisinger

Eliana Yashgur

May One Write a Ketubah in STAM Script?

This article was originally published (with original Hebrew sources included) as part of the 2020 CMTL Reader.

Dear Rabbi Klapper,

A friend recently asked me to write his ketubah, and I agreed. He knows that I have studied safrut, although I have never written any STAM, and wants and expects a ketubah in full Torah scroll font, including the tagim on the letters. However, a sofer STAM I consulted told me that there was a minhag hasofrim, scribal custom, not to include the tagim when writing a ketubah. This would disappoint my friend, so I am turning to you to ask whether I should, may, should not, or may not write him a ketubah including the tagim.

Dear R. Noach נ”י,

It is a pleasure to receive questions suffused with both learning and humility. I will do my best to be worthy of the task you entrust me with.

Your question raises at least three issues:

1. Is there a universal custom among sofrim not to write tagin in ketubahs?
2. If yes, are you bound by that custom?
3. Are there grounds other than minhag to forbid or discourage writing a ketubah with tagim?

There is a fourth issue as well. While, since you have not yet set a price, there is no issue of breaking a contract or ח”ו accepting a מי שפרע on yourself, it seems that you have created an expectation in your friend that it would be preferable to fulfill. More importantly, the expectation is related to an upcoming wedding. The mitzvah of being משמח חתן וכלה applies even well in advance of the wedding – see for example הערות הגרי״ש אלישיב פסחים מט:

In our time, the poskim have written that even the “seudat shiddukhin” that people make for the completion of the kinyan between the groom and bride is considered a seudat mitzvah,

Meaning that it participates in the unique advantage of seudat mitzvah found in our mishnah because of its relationship to the mitzvah of bringing joy to a groom and bride, which is relevant also to a seudat shiddukhin

although the specific example of seudat shiddukhin is disputed. The ketubah will in any case be part of the couple’s experience on the wedding day itself, and small disappointments can have outsize effects. So I would say here that כל המשנה ידו על התחתונה, meaning that you should write the ketubah with tagim unless doing so is definitively prohibited or wrong.

1-2. Is there a universal custom among sofrim not to write tagin in ketubahs? If yes, are you considered a sofer?

I asked three rabbonim choshuvim who have been sofrei beit din for gittin and/or STAM. None of them was aware of such a formal minhag, although two of them commented that they had not seen ketubot written with tagim, and one of them referred me to halakhic materials that generally supported chumra in this area. I also found no mention of such a minhag in הכתובה כהלכתה. A group minhag cannot exist unconsciously –לא ראינו אינו ראיה. So it seems that empirically there is no universal minhag among contemporary sofrim in this regard, and certainly not one that extends to people who do not write STAM. 

3. Are there grounds other than minhag to forbid or discourage writing a ketubah with tagim?

This issue appears to start from a responsum of Rambam cited by Rabbeinu Yerucham (see also אורחות חיים ח”א הל’ ת”ת אות ט):

It is proper for you to know that this script which is called ktav ashurit, since the Torah was given in it and also the luchot were written with it – that it is very shameful to use except for the Holy Writings,

and from ancient days Israel has been scrupulous about this, and their writings and the compositions of their sages and their secular writings were in ktav ivri.

Therefore you find on shiklei hakodesh the secular words are in ktav ivri 

and there has never been found even one letter of ktav ashurit in anything found from the remnant of Israel, whether coin or stone, rather all is ktav ivri.

This is why the Sefardim altered their script and transformed their letters into others

A different version is found in שו”ת הרמב”ם רסח which includes a report of RI Migash’s position:

…because of this issue, the Sefardim altered their script and gave the letters other forms, until it became as if another script, so that it would be permitted to use it for secular matters.

Rabbi Yosef Halevi z”l denigrated writing a get in our script, whose letters are very close together, and said that this would lead to ambiguity which can invalidate a get. 

The scribes then wrote it, namely the get, in a script with more separated letters, meaning the ketav Ashuri used for a Torah scroll.

But he denigrated this as well, saying: How can we use this Divine script, which will come to be treated degradingly?! Rather, let it be written in the script called X. 

Beit Yosef YD 283 brings an excerpt from Rabbeinu Yerucham:

It is proper for you to know 

that ktav ashuri, since the Torah was given in it and the luchot were written with it – it is very shameful to use except for the Holy Writings

Therefore the Sefardim altered their script and transformed their letters into others to the point that their script gained an independent identity for the purpose of permitting its use for secular matters.

He does not cite this position in Shulchan Arukh. Rav Mosheh Isserles (RMI) cites at the end of YD 284:

Some say that one must not write secular matters in ktav ashurit with which we write the Torah

The default in formal halakhah would therefore be a prohibition for Ashkenazim, but not for Sefardim. 

However, the 17^th century commentary Beit Hillel on RMI attests that Ashkenazim apparently did not adopt this prohibition:

“Some say that one must not write secular matters in ktav ashurit with which we write the Torah” –

When I was chosen by the state to make improvements in Yaroslav, I was asked by an educated person why we are not cautious today during fairs, where they post written papers saying “Here X is for sale,” meaning wine or meat or such, and they hang it at the entrance and write in ktav ashuri, which is absolutely forbidden according to the position RMI records as “Some say.”

Similar accounts can be found throughout the centuries. See for example Tzitz Eliezer:

I was asked whether it is permitted to enter a lavatory with a secular newspaper that contains no divrei Torah in order to read it – assuming of course that is also contains no pornography – the question is because it is printed using Hebrew characters.

I responded on the spot that it was permitted, and that it was not comparable to what RMI writes in YD 284:2 that “Some say that one must not write secular matters in ktav ashurit with which we write the Torah” – see also RMI YD 237:6 and Pitchei Teshuvah YD 237:2, that our printed font is not called “ktav ashuri with which we write the Torah” – but even in ktav ashuri there is room to permit since (the newspaper) contains no matters of holiness.

As I said to him, I remember that this issue has already been mentioned permissively, and now I see Shu”t Yaavetz 1:10 who came out that this is permitted, and testifies about himself that in the lavatory he read philosophy books translated into Hebrew, because the language itself has no holiness, rather we care only about the content.

I further found in Shu”t Divrei Yosef (Irgas) #41 who came out saying that secular matters, even when written in the letters of ktav ashuri, are certainly not prohibited to erase or to bring into a lavatory, and he testifies that the widespread practice was to bring them into a lavatory with no one raising any objection – see there with greater detail and length.

We get from all these that, as I answered on the spot, it is permitted to bring a newspaper printed in Hebrew characters into a lavatory, even including those written in ktav ashuri [and as a matter of practical halakhah they (=mainstream poskim) came out permitting even the case that RMI prohibits – see Arukh HaShulchan YD 283:14 and 284:40.] 

It is worth noting that Beit Yosef’s excerpt from Rabbeinu Yerucham elides the Rambam’s argument from archaeology, namely that all ancient Jewish coins etc. used ktav ivri rather than ktav ashurit. Recent discoveries seem to call this argument into serious question empirically – see e.g. the coin at https://www.ancient-hebrew.org/inscriptions/117.html and the Bar Kochba letter at https://www.ancient-hebrew.org/inscriptions/124.html. Rav Yosef Caro may have had access to similar counterevidence, and that may be why he leaves the argument out of Beit Yosef and omits the halakhah entirely in Shulchan Arukh.

It is also worth noting that Rambam’s formulation of the prohibition differs significantly from the one he attributes to RI Migash. Rambam frames it as degrading to use ktav ashurit for any purpose other than kitvei hakodesh, which seems likely to mean Scripture; whereas RI Migash is concerned lest the script be treated disrespectfully (although it’s not clear to me why a get would be treated disrespectfully – perhaps he was concerned that if a mistake was discovered, the invalid document would simply be tossed away). RMI prohibits writing secular matters, which presumably means that all matters of Torah, at the least, are permitted. 

I don’t know how RMI derives his formulation from Rambam. However, empirically, in the autograph edition of the Mishneh Torah (see http://maimonides.bodleian.ox.ac.uk/) the topic headings are in ktav ashurit, which suggests either that RMI correctly intuited Rambam’s position, or else that even in the original it was rhetorical rather than legal. 

From all this it seems clear that minhag Yisroel was to be lenient in this matter throughout, and that any broad stringency is a later and anachronistic matter, akin to speaking Yiddish rather than Hebrew when dealing with secular matters despite the explicit permission on Shabbat 40b.

However, this popular disregard was regularly opposed by poskim who saw the forms of the letters as inherently sacred. See for example Radbaz cited by Pitchei Teshuvah 283:3:

See (Responsa Radbaz 4:45) who wrote that it is forbidden to embroider even secular matters in ktav ashurit, because the script itself contains great holiness

See also Arukh HaShulchan EH 284:

Our teacher RMI wrote “Some say that one must not write secular matters in ktav ashurit with which we write the Torah” – 

we already mentioned this at the end of the previous subsection, and we brought proof for this permission for from the issue of (speaking) ‘lashon hakodesh’,

and we must say that the “some say” hold that writing is not comparable to speech, as many secrets of the Torah depend on the picture of the latters, as the Sages of the Kabbalah have written at length in their books, and how could we expend them for worthless and empty matters.

But what can we do? The printers will (continue) to print all secular matters in ktav ashuri, and we have no power to protest, and He Who is Merciful will grant atonement for sins, but blessed is the portion of the printer who is careful about this, and his reward will be great for this. 

See also the testimony of R. Chaim Dovid Halevi:

I already alluded in the attached letter that all the greatest sages of Sefarad, up to literally the past generation, (and I was privileged in my youth in Yerushalayim to experience the remnants of those great ones in Torah and wisdom and undiluted fear of Hashem), did not write even one word in block ktav ashuri, rather with the half-pen called X alone, and even their books were printed specifically in ktav rashi, and the greatest of the Sages of Ashkenaz in Europe behaved similarly. Regarding this I wrote that “To our pain, we have already let this slide,” but to the point of degradation, namely allowing ktav ashuri to be brought into a lavatory – we will not G-d forbid be lenient… 

Note that R. Halevi proves that the issue is unrelated to ktav STAM rather than ktav ashurit, so that with or without tagim makes no difference.

On the other hand, Ktav Sofer reports that his grandfather the Chatam Sofer used ketav Ashurit when sending wedding invitations:

My memory is that the written invitations sent out by my ancestor, the teacher of all Israel, light of the diaspora, his holy honor my grandfather the Chatam Sofer zt”l were written in ashurit and in a nonJewish language, and without doubt he had good reasons for not being concerned for all this 

Ketav Sofer himself nonetheless concludes that with regard to such invitations 

Nonetheless it is good to choose ktav rashi or something similar

Ketav Sofer reaches this conclusion solely on the basis of Rambam’s original formulation, as followed by R. HaLevi’s teacher, in which the only permitted use for ketav ashurit is writing Scripture. He explicitly rejects the idea that invitations to a seudat mitzvah, kal vachomer to a wedding, should be considered ‘secular” or “profane” use:

But begging Your Honor’s forgiveness, you erred, because an invitation to a seudat mitzvah, such as to to a seudah for a brit milah, all the more so for the sake of bringing joy to a groom and bride – is considered a mitzvah matter.

Even though they invite people from far away, and both parties know that it won’t be possible for them to attend, and the invitation is only a matter of honor and expressing affection – this itself is part of honoring the mitzvah, that those worthy of honor should be honored for the honor of the mitzvah, aming us for the honor of Torah and those who learn it, love it, and lead in accordance with it, and so too everything similar, and this is obvious.

It is therefore clear that the chumra he ends with is not halakhic, but rather a concern for mystical sensibility.

Igrot Moshe argues that if this is true of wedding invitations, all the more so it must be true for ketubot:

Therefore we can rely in practice (on this precedent) to permit writing a ketubah even in ktav ashurit, as some do in our country America, that they have the ketubah written by a sofer in actual ktav ashurit. 

However, he too ends up with an extrahalakhic chumra, saying that even though RI Migash is not accepted as halakhah, and even though we write gets lekhatchilah in ketav ashurit, Ri Migash’s objection to writing a get in ketav ashurit suggests that he would not have allowed it in a ketubah either.

But regarding this there is room to be stringent, since Rambam in a responsum holds in the name of RI Migash that he refrained from writing even a get in ktav ashurit, 

and perhaps the father of the chatan heard this from me, but not using the language of prohibition

Perhaps some scribes on this basis adopted a custom of writing a ketubah in the manner of a get, namely in ktav ashurit but without tagim.

Rav Ovadiah Yosef surveys the topic with his usual mastery in a responsum on printed wedding invitations, and concludes

The principle that emerges is that those who are lenient regarding this have what to rely on, and one should not object to their practice

It seems clear from the flow of his responsum that this permission applies equally to handwritten materials.

Rav Yaakov Ariel in באהלה של תורה א י”ד מא initially tends toward regarding a ketubah as “chol,” but changes his mind upon seeing Igrot Mosheh:

Here we can point out that it is proper to refrain from drawing STAM letters in ketubot and various announcements, as these are all secular matters. It also seems correct to make this point regarding ketubot that are printed in ktav ashuri with tagim as in a Torah scroll – isn’t a ketubah a secular use! Even though it serves the purpose of a mitzvah, it seems reasonable that a ketubah is not better than a get. On the contrary, a get actually performs a mitzvah, that he divorces with a get in accordance with the religious law of Moshe and Israel rather than with anything else, as opposed to the ketubah, which is at root a financial agreement between the parties. Therefore it seemed to my impoverished minf that we should encourage altering the traditional script when writing ketubot.

However, afterward I found in Igrot Mosheh YD 3:120 that he permits printing ketubot on ktav ashuri (see there that I merited arriving at some of his rationales on my own), and in the book Mishpat HaKetubah (by the gaon R. A.C. Bar Shalom, 1:108-109) he writes that since the ketubah is not thrown out, and it serves a mitzvah purpose, it is permitted to write it in ashurit letters. But secular announcements, which in the end are thrown in the garbage, certainly one should avoid using ketav ashurit in them.

Rav Yosef in the name of Berit Kehunah, and Rav Ariel in his own name, also suggest a counterpoint to the assertion that ketav ashurit is degraded when being used in secular documents – perhaps instead it is degrading for the language of Torah to be confined to “sacred documents” rather than spreading throughout life, just as we have seen in our day the amazing kiddush Hashem created by the revival of Hebrew as an everyday language. Kodesh should suffuse chol rather than fleeing from it. 

On the basis of all the above it seems clear to me that there is no halakhic issue with writing a ketubah in full ketav STAM, especially as a commissioned ketubah is regarded as a work of art and treated with great respect. Someone with strong mystical sensibilities may be machmir for themselves, and it may be a virtuous act for a scribe to make at least one alteration in the script, so as to make clear that a ketubah does not have per se kedushah, and so that the subjective act of writing STAM remans a unique experience. However, the mitzvah of being mesameiach chatan vekallah is obviously just a precursor of the overarching value of shalom bayit, and HKBH allows His Name, written in ketav ashurit, to be erased for the sake of shalom bayit. Therefore, one should not impose such chumrot at the cost of disappointing a bride or groom.

 הנלע”ד כתבתי, וה’ יצילני משגיאות

אריה דוד קלאפפער