Monthly Archives: February 2014

The Case of the Added Elders: A Midrashic Mystery Tour

For more of Rabbi Aryeh Klapper’s Torah, please click here.  Please also like our Facebook page and subscribe to Rabbi Klapper’s weekly dvar Torah by emailing moderntorahleadership@gmail.com

  

The Case of the Added Elders: A Midrashic Mystery Tour

Exodus 39:33 tells a seemingly straightforward story.    

ויביאו את המשכן אל משה

את האהל ואת כל כליו

קרסיו קרשיו בריחו בריחיו ועמדיו ואדניו:

They brought the mishkan=Tabernacle to Mosheh –

the ohel=tent and all its accessories . . .

its hooks, its panels, its crossbars, its uprights, and its sockets

The ancient translation known as Targum Yonatan retells it as follows:

ואייתיו ית משכנא לות משה

לבית מדרשיה

דהוו תמן יתבין משה ואהרן ובנוי

והוה מתרץ להון סדר כהונתא

ותמן יתבין סבי ישראל

ואחויאו ליה ית משכנא וית כל מנוי

פורפוי לוחוי נגרוי עמודוי וחומרוי:

They brought the mishkan to Mosheh

to his house of study

there Mosheh and Aharon and his sons were sitting,

and he was explaining to them the order of the priesthood

and there the Elders of Israel were sitting

and they showed him the mishkan and all its accessories

its hooks, its panels, its crossbars, its uprights, and its sockets

Now every reader of Chumash must wonder why the Mishkan was brought to Mosheh, rather than having Mosheh come see it , which presumably would have been easier.  Targum Yonatan explains that Mosheh was in his house of study, where he was teaching Aharon and his sons the priesthood, so perhaps they did not wish to interrupt him.  But the Targum then adds that the Elders were also present – why is that relevant?   The implication of the passage as a whole is that the mishkan was brought into a court session, before the assembled Supreme Court/Sanhedrin.  Why and on what basis does Targum Yonatan suggest this?

I think the road to the answer runs through Exodus 33:7, which takes place when G-d orders Mosheh to have the people leave Sinai, in the aftermath of the Golden Calf.

ומשה יקח את האהל

ונטה לו מחוץ למחנה

הרחק מן המחנה

וקרא לו אהל מועד

והיה כל מבקש ה’

יצא אל אהל מועד

אשר מחוץ למחנה:

And Mosheh took the ohel

and planted it outside the encampment

distant from the encampment

and he called it ohel moed (Tent of Meeting-by-Appointment)

and it would be that anyone who sought Hashem

would go out to ohel moed

which was outside the encampment

 

Why does Mosheh remove the ohel  from the encampment?  Here is the midrashic anthology Yalkut Shim’oni 394:

“ומשה יקח את האהל” –

ריש לקיש אמר:

כשראה משה שאבדו מתנה טובה, אף הוא כעס עליהם,

שנאמר “ומשה יקח את האהל” . . .

משל

למלך שהיה לו לגיון אחד.

מרדו במלך.

מה עשה שר צבא שלו?

נטל סגנון של מלך וברח;

כך משה נטל את המשכן והלך לו.

“והיה כל מבקש ה'” –

‘כל מבקש משה’ אין כתיב כאן, אלא “מבקש ה'” –

אפילו המלאכים והשרפים והגדודים היו מבקשים אותו ליטול ממנו רשות לצאת.

אומרים אלו לאלו: “הוא במשכנו של משה”.

חמה ולבנה מבקשים ליטול רשות לצאת – לעולם הולכין למשכן . . .

“And Mosheh took the Ohel” –

Resh Lakish said:

When Mosheh saw that they had lost out on a good gift, he too expressed anger at them ,

as it says “And Mosheh took the Ohel” –

A parable:

To a king who had one legion.

They rebelled against the king!

What did his general do?

He took the insignia of the king and fled;

So too Mosheh took the mishkan and left.

“and it would be that anyone who sought Hashem” –

It does not write ‘anyone who sought Mosheh’, rather “anyone who sought Hashem” –

Even the angels and seraphim and gedudim would seek him to get authority to go out.

They would say to one another: “He is in the mishkan of Mosheh”.

When the sun and moon would seek permission to go out – they would always go to the mishkan

I absolutely love the reading of “all those who sought Hashem”, and the image of the sun and moon coming to seek permission.  But it should be clear that they were not seeking Mosheh – they were seeking the insignia of Hashem that Mosheh had removed from the encampment.

Why did Mosheh remove the insignia?  This text has Resh Lakish suggesting that he was angry at the Jews for losing out on a great gift, but why does that follow?  For that matter, why would a general flee with the rebellious legion’s insignia because he was angry at them?

A look at Midrash Tanchuma (Ki Tisa 15) answers the last two questions.

 

“ומשה יקח את האוהל” –

למה כעס עליהם משה? אלא כך אמר משה: מנודה לרב מנודה לתלמיד.

ריש לקיש אמר:

משל למלך שהיה לו לגיון אחד. מרדו במלך!

מה עשה שר צבא שלהן?

נטל סיגנון של מלך וברח.

כך משה: כשעשו ישראל אותו מעשה, נטל את המשכן והלך לו.

“And Mosheh took the Ohel” –

Why did Moshe express anger at them?

Rather, Mosheh said: One who is excommunicate to the teacher is excommunicate to the student.

Resh Lakish said:

A parable:

To a king who had one legion.

They rebelled against the king!

What did his general do?

He took the insignia of the king and fled;

So too Mosheh, when the Jews did that deed, took the mishkan and left.

 

In this version it is clear that Resh Lakish offers the parable to disagree with the thesis that Mosheh was expressing anger.  Rather, the general takes the emperor’s insignia in order to protect the rebellious legion – without the insignia, the emperor cannot punish them.

This is a radical and dangerous move – the general remains loyal to the king in theory, but in practice he usurps the throne himself.  Thus in the end the angels, sun and moon will come to Mosheh rather than to G-d for authorization, since only Mosheh can now issue authorizations.

But what is the real-life parallel, the nimshal, to the royal insignia?  Tanchuma and Yalkut Shim’oni  both write that Moshe “took the mishkan and left”, suggesting that the mishkan was the insignia.  The problem is that the Mishkan was not yet built!  Or was it?

I think it was not, and that the mishkan was not the insignia.  Why do I think this?  Let us look at the version of Resh Lakish found in Shemot Rabbah Ki Tisa 45:

 

ר’ יוחנן ורשב”ל

ר’ יוחנן אמר:

כך דרש משה: מנודה לרב – מנודה לתלמיד!

לפיכך “ומשה יקח את האהל”;

ר”ש בן לקיש אמר:

משל למלך שהיה לו לגיון אחד, ומרד עליו.

מה עשה שר צבא שלו?

נטל סגנוס של מלך וברח;

כך משה, בשעה שעשו ישראל אותו מעשה, נטל את האהל ויצא. לכך נאמר “ומשה יקח את האהל”.

This is in dispute between Rav Yochanan and Resh Lakish.

Rav Yochanan said:

Mosheh understood: One who is excommunicate to the teacher is excommunicate to the student!  Therefore “and Mosheh took the tent”;

R. Shim’on ben Lakish said:

A parable:

To a king who had one legion, and they rebelled against him.

What did his general do?

He took the insignia of the king and fled;

So too Mosheh, when the Jews did that deed, took the ohel and left.

In this version Mosheh took his regular ohel, not the Mishkan.  Why did the confusion arise?  If you look back at our initial Targum Yonatan to Exodus 39:33,, you will see that the Targum’s translation of the Hebrew ohel is the Aramaic mishkana – so that while the verse says “they brought the mishkan , , , the ohel”, the Targum has “they brought the mishkana . . . the mishkana”.  So I suggest that Resh Lakish spoke in Aramaic, but was misunderstood.

But why would Mosheh’s regular ohel contain the insignia of G-d?  Here we must turn to Targum Yonatan to 33:7:

ומשה נסיבונון וטמירינון במשכן אולפן אורייתא דיליה

ברם ית משכנא נסב מתמן ופרסיה ליה מברא למשריתא

ארחיק יתיה מן משירית עמא דאתנדון תרין אלפין אמין

והוה קרי ליה משכן בית אולפנא

והוי כל מאן דהדר בתתובא בלב שלים קדם ה’

הוה נפיק למשכן בית אולפנא דמברא למשריתא

מודי על חוביה ומצלי על חוביה ומצלי ומשתבק ליה:

And Mosheh took them and concealed them in his mishkan of Torah study

but he removed that mishkan from there and set it up outside the encampment

distant from the encampment of the people, because they had been excommunicate 2000 amot

and he would call it the mishkan house of study

and anyone who returned-in-repentance with a complete heart before Hashem

would go out to the mishkan house of study that was outside the encampment

admit to his sins, and pray regarding his sins, and pray, and he would be forgiven.

 

We learn two things here:  that Mosheh concealed something in his tent, and that he called the tent House of Study.  It follows that what Mosheh concealed in his tent represents Torah, which is the insignia of Hashem.  Most likely in context this refers to the crowns that the Jews received at Revelation and abandon in 33:6.  The argument between Rav Yochanan and Resh Lakish is therefore as follows:  Rav Yochanan held that Mosheh was angry at the Jews for abandoning their Torah-crowns, and therefore moved his tent away from them.  Resh Lakish, however, argues that Mosheh collected their crowns and then fled from the camp before G-d could take them back.  (Note that on Shabbat 88a, Rav Yochanan says that Mosheh merited keeping all the crowns.  (In another midrash, they are what illuminate his face), but Resh Lakish says that Hashem will eventually return them to us.  Perhaps we have here another appearance of the motif of Resh Lakish as baal teshuvah.)

So now we know that Mosheh has a tent that he called the House of Study, and which was also called ohel moed.  Did he study alone?   Bamidbar 27:2 suggests otherwise.

ותעמדנה לפני משה

ולפני אלעזר הכהן ולפני הנשיאם וכל העדה

פתח אהל מועד לאמר:

And they (the daughters of Tzelafchad) came and stood before Mosheh

and before El’azar the Priest and before the nesi’im and the whole edah

at the entrance to Ohel Moed, saying:

 

On Bava Batra 119a we find the following:

אבא חנן אמר משום רבי אליעזר:

בבית המדרש היו יושבין,

והלכו ועמדו להן לפני כולן.

Abba Chanan said in the name of Rabbi Eliezer:

They were sitting in his House of Study,

and they went and stood before all of them.

 

Now – full circle – we can understand where the extra elders come from in Targum Yonatan to 39:33.  If the mishkan  was brought to Moshe, he must have been somewhere else.  Where else?  In his House of Study, of course.  Would he have been alone?  Of course not – the priests and elders were always studying with him.

This solves the literary issue.  But is there a message as well?

I think yes, and here it is.  Why was it necessary to bring the MIshkan to Mosheh at all?  Why not simply erect it?  Rashi cited the midrashic answer that the Mishkan was too heavy to erect, but Hashem gave Mosheh the strength to do so.

The point is that ritual and spirituality cannot stand on their own – they need to be given meaning and purpose by the intellectual content of Torah.

Shabbat shalom

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Who may, and who must, issue halakhic rulings? Underlying issues in the partnership minyan debate

For more of Rabbi Aryeh Klapper’s Torah, please click here.  Please also like our Facebook page and subscribe to Rabbi Klapper’s weekly dvar Torah by emailing moderntorahleadership@gmail.com

In one of the later volumes of his misnamed Hitchhiker’s Trilogy, the late Douglas Adams has a character learn two life lessons:

a)      One should never go back for one’s handbag (lest one miss an essential opportunity)

b)      One must always go back for one’s handbag (lest one blow an essential opportunity)

The problem is that the two lessons contradict, and the character never learns which rule applies when.

The issue of “partnership minyanim” is appropriately generating much polemic and counterpolemic  and antipolemic, but I have no interest in adding more at present.  Instead, I’d like to ensure that the discussion – presumably all leshem Shomayim (for the sake of Heaven)  – generates some Torah lishmoh (Torah for its own sake) as well.  I think this is vital, because in the course of polemic debate each side runs the risk of sacrificing the capacity for reexamining evidence, lest changing one’s mind about what a particular text means be taken as a sign that one’s overall commitments are weakening or as an admission that they are insufficiently grounded in the Tradition.    

So – Rabbi Herschel Schachter’s public letter regarding “partnership minyanim” emphasizes that not every student who has learned in yeshiva, or in kollel, or even received semikhah, should consider themselves as competent to issue halakhic rulings.  In response, my friend Rabbi Ysoscher Katz notes that the Talmud (Sotah 22a, Avodah Zarah 19b) cites R. Abahu quoting R. Huna quoting Rav interpreting MIshlei 7:26 as criticizing in parallel those who issue halakhic rulings when they should not, and those who don’t issue halakhic rulings when they should.

מאי דכתיב

כי רבים חללים הפילה

ועצומים כל הרוגיה“?

כי רבים חללים הפילה

זה ת”ח שלא הגיע להוראה

.ומורה,

ועצומים כל הרוגיה

זה ת”ח שהגיע להוראה

ואינו מורה.

What is meant by

for many are the corpses she has miscarried, and atzumim are all those she has killed”?

for many are the corpses she has miscarried

this is a scholar (talmid chakham) who has not reached the level of issuing halakhic rulings

and issues halakhic rulings;

and atzumim are all those she has killed

this is a scholar who has reached the level of issuing halakhic rulings

and does not issue halakhic rulings.

I think it is inarguable that R. Abahu teaches both lessons – the question is whether or how any of us can reliably know which rule applies to us, regarding what areas of halakhah, which degree of halakhic complexity, and under what political, social, and religious circumstances.

Rabbi Katz argues that

  1. Maharsha and Rashi disagree as to whether R. Abahu is criticizing all competent scholars who fail to issue halakhic rulings (Rashi), or only great scholars (Maharsha). 
  2. However, Shulchan Arukh 242:14 rules in accordance with Rashi against Maharsha:
  3. Pitchei Teshuvah YD 242:8 explicitly makes the point that Shulchan Arukh rejects Maharsha
  4. Rabbi Schachter’s critique assumes that a scholar risks more my overestimating than by underestimating their stature.  Since the Talmud equated the risks, he must implicitly be following Maharsha against Rashi and arguing that the risk of underestimation applies only to scholars who are great.   However, scholars who may be competent, but are certainly not great, have no obligation to rule, and therefore run no risk by refusing to do so.
  5. However, we follow Shulchan Arukh and Pitchei Teshuvah in ruling like Rashi.  Therefore we run equivalent risks either way, and each person must make their own fraught determinations as to when to go back for their handbag.

I am not convinced that Maharsha and Rashi disagree in the way Rabbi Katz argues, or that either Shulchan Arukh or Pitchei Teshuvha relate to that alleged disagreement.   

Here are the texts of Rashi and Maharsha:

Rashi to Sotah 22a

ועצומים – לשון “עוצם עיניו” (ישעיהו לג) שסוגרים פיהם ואינם מורים לצורכי הוראה.

VaAtzumim – derived from “one who forcefully closes (otzem) his eyes” (Yeshayah 33:15)

Rashi to Avodah Zarah19b

ועצומים – המתעצמים והמחרישים ומתאפקים מלהורות – הורגין את דורן ועצומים לשון “ועוצם עיניו”.

VaAtzumim – those who overpower themselves and are mute and control themselves from issueing halakhic rulings – they kill their generation;

VaAtzumim is derived from “one who forcefully closes (otzem) his eyes”

Maharsha to Sotah 22

ועצומים כל הרוגיה – זה ת”ח שהגיע כו’ –

פירש”י מלשון עוצם עיניו

ויש לפרש כמשמעו

ור”ל גדולים וחשובים שהגיעו להוראה

כמ”ש לעיל ספ”ק

“ואת עצומים יחלק שלל” –

כאברהם יצחק ויעקב וק”ל:

and atzumim are all those she has killed – this is a scholar who has reached etc.

Rashi explains atzumim as derived from “one who forcefully closes (otzem) his eyes”

But one can explain atzumim in its literal sense,

so that it means “great and important”,

as the Talmud writes at the end of the first chapter (Sotah 14a):

“and with atzumim he will take a share of spoils” (Yeshayah 53:12) –

just like Avraham, Yitzchak, and Yaakov

Rabbi Katz reads “great and important” in Maharsha as adding a qualification beyond “reached the level of issuing halakhic rulings”.  But I think Maharsha is merely offering an alternate etymology.  The question is how the Hebrew atzumim can refer to “those who have reached the level of issuing halakhic rulings but do not issue such rulings”.  Rashi argues that atzumim means “those who are otzem their eyes”.  Maharsha argues that this is not compelling, as no other instance of the noun form atzumim in Tanakh means that.  Rather, atzumim consistently means “powerful”, and is often paired with גדולים = great.  Therefore, here as well the etymology of atzumim is “great, important”.  In other words, for Maharsha anyone who has reached the level of issuing halakhic rulings is described by this verse as great and important.  Rabbi Schachter of course agrees – the remaining question is whether one can use the equation in reverse, and conclude that anyone who is not great and important has not reached the level  of issuing halakhic rulings. 

Shulchan Arukh 242:14 writes as follows:

כל חכם שהגיע להוראה

ואינו מורה –

הרי זה מונע תורה ונותן מכשולות לפני רבים,

ועליו נאמר: ועצומים כל הרוגיה

Every sage (kol chakham) who has reached the level of issuing halakhic rulings

and does not issue halakhic rulings –

behold he is withholding Torah and placing obstacles before multitudes,

and regarding him Scripture says:  and atzumim are all those she has killed

Rabbi Katz argues that the opening “Every” is intended to reject Maharsha’s claim that only some scholars – namely, those who are great and important – are criticized for not issuing halakhic rulings when they have reached the level of doing so.  However, I argue that Maharsha never made such a claim, and therefore everyone agrees that the criticism applies to all competent scholars, and the only question is the definition of competence.

Pitchei Teshuvah YD 242:8 writes as follows:

“כל חכם כו'” –

עיין במהרש”א בח”א פ”ג דסוטה שכתב

ובדורות הללו

אותם שמורים הלכה מתוך הש”ע

והרי הם אין יודעים טעם הענין של כל דבר

אם לא ידקדקו תחלה בדבר מתוך התלמוד

שהוא שימוש ת”ח –

טעות נפל בהוראתן

והרי הן בכלל מבלי עולם

ולכן יש לגעור בהן

ע”ש.

ואפשר דדוקא בזמן הרב מהרש”א

שלא היה עדיין שום חיבור על הש”ע

אבל האידנא

שנתחברו הט”ז וש”ך ומג”א ושארי אחרונים

וכל דין מבואר הטעם במקומו

שפיר דמי להורות מתוך הש”ע והאחרונים:

“Every sage etc.” –

See Maharsha Sotah Chapter 3, who wrote

But in these generations,

those who issue halakhic rulings on the basis of the Shulchan Arukh

when behold they do not know the underlying rationale of every matter

unless they carefully examine the matter first on the basis of the Talmud

which is (the contemporary equivalent of) apprenticing with scholars –

error befalls their halakhic rulings

and they are in the category of “those who wear out the world”

and therefore one should castigate them

(see the source!).

But perhaps that was only in the time of the Rabbi the Maharsha,

when there was as yet no commentary on Shulchan Arukh,

but nowadays

that TaZ and SHaKH and Magen Avraham and other later commentaries have been written,

so that every law has its rationale explained right where the law is found,

it is fine to rule on the basis of Shulchan Arukh and the later commentaries.

Rabbi Katz seems to read Pitchei Teshuvah as relating to the word “every”, and arguing that even Maharsha would broaden the franchise today, when the existence of supercommentaries to ShulchanArukh lowers the risk that merely competent scholars will err.

I disagree.  I think Pitchei Teshuvah and Maharsha here are making a procedural , not a substantive point.  Maharsha states that there are some scholars who have reached the level of issuing halakhic rulings but only if they first study the primary Talmudic sources, as otherwise they will not understand the underlying principles of Shulchan Arukh’s rulings and misapply them.  Such scholars might feel compelled to issue rulings even when they only have time to look up the Shulchan Arukh, lest they fall into the category of “and atzumim are all those she has killed; but this would itself be an error on their part.  Pitchei Teshuvah notes that Maharsha’s argument may no longer apply, since the underlying principles of Shulchan Arukh’s rulings are now explained by commentaries on the spot and can therefore be understood without researching the primary sources.  This discussion has no necessary connection with Maharsha’s opinion as to the etymology of atzumim.

Nonetheless, both Maharsha and Pitchei Teshuvah make points that are relevant to the issue Rabbi Katz raises, in the following way:  Maharsha states explicitly that a person can be considered competent on the basis of research even if they might not be competent to answer other questions without additional research, and Pitchei Teshuvah states explicitly that a person can be considered competent if they know Shulchan Arukh and commentaries even though they do not recall the primary sources.  Each of these can reasonably be considered as setting a fairly low standard as to which scholars are not only permitted but even obligated to issue halakhic rulings.

However, here again I don’t think Rabbi Schachter would disagree.  On both Sotah 22a and Avodah Zarah 19b the Talmud continues as follows:

ועד כמה?

עד ארבעין שנין.

איני – והא רבה אורי!?

בשוין.

How old must one be (before one is considered competent to issue halakhic rulings)?

Forty years old.

But [Rabbah] (Rava) issued rulings (even though he died at 40)?!

(The permission and therefore obligation to rule applies to those under 40 only) if they are equal

(in scholarship to those above 40).

In other words, the question is not whether one is obligated to issue rulings in the abstract; it is whether one is obligated to issue rulings (when asked) even though someone else more technically competent is available.   Put differently, the question is whether competence is defined objectively, or relative to the available talent pool.   A related question is whether competence can be defined on a sliding scale, so that one can be obligated to answer basic questions and yet forbidden to issue rulings on more complex or weighty issues. 

My own opinion is that competence can be defined relatively, and on a sliding scale.  Nonetheless, I think it is reasonable to say that there is a standard of competence above which one may, and perhaps must, express an opinion even if others more technically competent are available.  I also think that technical competence is not the only consideration – sometimes a technically greater posek may be less aware of the social reality of a particular community, or have hashkafic positions less compatible with those of that community, or simply have done less extensive research, than a technically lesser posek.  Under such circumstances again, I suggest that the lesser posek may, and perhaps must, express their opinion.

Shabbat shalom!

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Products that are kosher only without a heksher

Many years ago Garelick Farms decided to market its milk all-natural, which meant that it needed a natural source of Vitamin D – and it chose shark oil.   This had at least two consequences: Hood Dairy began running an ad with the tagline “There’s something fishy about Garelick Farms milk”, and the KVH (this was long before I became involved) pulled its hashgachah.

Garelick Farms sued Hood, arguing that the fish was imperceptible, and won – the (non-Jewish) judge tasted the milk and agreed there was no fish taste.  I therefore ruled that the milk was kosher because the KVH had pulled its hashgachah.

The judge’s taste test demonstrated that the shark oil was nullified (certainly the percentage was below 1/60 anyway), so the only remaining issue was deliberate nullification (bittul lekhatchilah), which makes a product prohibited to the person or person for whose benefit the nullification occurred.

R. Akiva Eiger (YD 99:5) states that a nullification done with no specific end-user in mind, but rather for “whomever will wish to buy”, is considered to be done for the benefit of all eventual purchasers.  One understanding of this position is that anything consciously produced with observant Jews in mind has that issue, even if the observant Jews are a trivial percentage of the intended audience.   However, by giving up its kosher certification, Garelick Farms demonstrated that it did not have any concern for observant Jews, and therefore the milk was kosher because it had lost its hekhsher.

Paradoxically, had the KVH accepted this argument and sought to restore the hekhsher, the milk would have become treif.  My contrarian ambition was to develop a list of products that were kosher only when unhekhshered, as many industrial koshering procedures ultimately depend on some form of nullification.  (Note however that this broad interpretation of the prohibition is not obvious either in R. Akiva Eiger or in his cited source, Responsa Rivash 498, and is not followed consistently in practice today; see for example Igrot Moshe YD 1:62-63.)

I thought this was a compelling but creative psak, and to make sure I really believed it, I went out and bought a quart of milk and drank a glass before paskening that anyone else could do so.  But Dov Weinstein shows me that in the current issue of Tradition my teacher Rabbi J. David Bleich makes the same argument.  Here is his quote.

“Paradoxically, according to R. Akiva Eger, a product that otherwise would be permitted may become forbidden by virtue of the fact that it is certified as kosher. Products produced for the mass market are not produced for the benefit of Jews. Accordingly, if some small quantity of a non-kosher ingredient is present, but nullified, the product is permissible. The same product, if produced for a Jew, according to the opinion of R. Akiva Eger, even for an unspecified, anonymous Jew, is prohibited.                                                     Kosher certification is sought by a producer precisely because he wishes to market his product to the Jewish consumer. Targeting the Jewish consumer as a potential customer creates a situation in which nullification is carried out expressly for the benefit of a Jew and hence, according to R. Akiva Eger, a Jew may not benefit from such nullification. Accordingly, stem-cell burgers might be produced that are indeed kosher but they would become prohibited if labeled as such!”

Barukh shekivanti ledaat mori!

For more of Rabbi Aryeh Klapper’s Torah, please click here.  Please also like our Facebook page and subscribe to Rabbi Klapper’s weekly dvar Torah by emailing moderntorahleadership@gmail.com

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Ki Tisa – The wages of sin and the rewards of disobedience

Sh’mot 32:26-28

Mosheh stood in the gate of the camp.

He said: “Whoever is for Hashem – to me!”

All the Sons of Levi gathered to him.

He said to them:

“Thus said (koh amar) Hashem G-d of Israel:

Each man – place his sword on his hip

Pass through and back

from gate to gate in the camp

and kill

each man his brother

and each man his peer

and each man his relative.

The Sons of Levi acted

according to Mosheh’s word.                         

There fell from the nation that day                   

around three thousand men.

שמות פרק לב:כו-כח

ויעמד משה בשער המחנה

ויאמר:  “מי לה’ אלי!”

ויאספו אליו כל בני לוי

ויאמר להם:

“כה אמר ה’ א-להי ישראל:

‘שימו איש חרבו על ירכו

עברו ושובו

משער לשער במחנה

והרגו

 איש את אחיו

ואיש את רעהו

ואיש את קרבו:

ויעשו בני לוי

כדבר משה

ויפל מן העם ביום ההוא

כשלשת אלפי איש:

 

 

 “The wages of sin are sin”; “sin causes sin”; “the coverup is often worse than the crime”.  Why do human beings so often double down on their misdeeds rather than cutting their spiritual losses?

 

This pattern begins with the very first sin – Adam and Eve hide from G-d, and then deflect responsibility. 

 

I raise this question now in the context of Mosheh Rabbeinu’s post-Golden Calf rallying cry in this week’s parshah: “Whoever is for Hashem – to me!”  What would have happened had everyone rallied to him? 

 

Are the various short and longterm punishments meted out for the Calf actually the result not of the sin, but of the failure to recover from it?  And if the Calf was, as Nachmanides plausibly argues, merely  a symbolic chariot for Hashem the invisible Rider, and as seems clear, a replacement for Mosheh when he was thought dead, why didn’t everyone rally to Moshe on his return?

 

My suggestion is that our every action becomes part of our self-image, so that we become invested in our sins.  Had Mosheh been present all the way through, no one would have thought of building a Calf as acceptable.  But having already done it, they could not disown it without disowning part of themselves – and so very few rallied to Mosheh. 

 

At the same time, it seems that only 3,000 of them failed to completely back away from the Calf and dared to confront those who rallied to Mosheh. 

 

The policy question this raises is: what would have happened had Mosheh not initiated the confrontation?  Could things have returned to the way they were before, as if nothing had happened?

 

In one of my tenth grade classes this past week, we’ve discussed the difference between “local” and “reverberating” choices.  Local choices are those that we make each time that will not change the choices we make next time; reverberating choices are those that make us different people, that affect the choices we will make in the future.  The question in those terms is:  Could the Golden Calf have been a local choice had Mosheh not made it reverberate by forcing a confrontation?

 

What makes this question more important is that the question of whether Mosheh made the decision to initiate the confrontation on his own, rather than by Divine command.  The verse says that he said “So said Hashem”, but where did He say it?  Rabbeinu Bechayay said he said it offscreen: Rashi, following Mekhilta and Targum Yonatan, suggests that it refers to Shemot 22:19,זובח לאלהים יחרם ; but by far the most interesting suggestion is made by the midrash Eliyahu Rabba:

מעיד אני עלי את השמים ואת הארץ

שלא אמר לו הקדוש ברוך הוא למשה כך

לעמוד בשער המחנה

ולומר מי לה’ אלי

ולומר כה אמר ה’ א-להי ישראל,

אלא שהיה משה צדיק דן קל וחומר בעצמו –

אמר:

אם אני אומר לישראל

‘הרגו איש את אחיו ואיש את רעהו ואיש את קרובו’,

יהו ישראל אומרים:

לא כך למדתנו, סנהדרין שהורגת נפש אחת בשבוע נקראת מחבלנית?!

מפני מה אתה הורג שלשת אלפים ביום [אחד]!?

לפיכך תלה בכבוד שלמעלה,

שנאמר: כה אמר ה’ וגו’ (שם /שמות ל”ב/) –

מה ענין שלאחריו? ויעשו בני לוי כדבר וגו’ (שם /שמות ל”ב/ כ”ח).

I call Heaven and Earth to testify for me

that The Holy Blessed One never told Mosheh this,

to stand in the gate of the camp

and say “Whoever is for Hashem – to me!”

and say “Thus said Hashem G-d of Israel”

but Mosheh the righteous made an a fortiori argument on his own –

He said:

If I say to Israel:

 “kill each man his brother and each man his peer and each man his relative”,

then Israel will say:

Did you not teach us thus, that a Sanhedrin that takes a life once in seven years is called destructive?!

For what reason are you killing 3,000 in a single day?!

Therefore he made it depend on the honor of Above.

as Scripture writes: “Thus said G-d

What comes afterward?

“The Sons of Levi acted according to Mosheh’s word.

 

For Eliyahu Rabba, Moshe felt that the confrontation was necessary to forestall the anger of G-d.  However, it seems that the principles he had taught his people – in the name of that same God – would be seen as incompatible with the actions he thought were necessary.  So he shockingly pretends to be quoting G-d when actually he was seeking to forestall Him.  In halakhic terms, he claimed that he had a hora’at sha’ah, an explicit suspension of ordinary Torah law.  But this was not true.  Perhaps this provides a different explanation of why only the Levites rallied to him. 

 

Moreover – Sifrei  Matot 153 states that Moshe’s was unique among prophets in that he used the language זה הדבר, this is the word of Hashem, as well as כה אמר, Thus spoke Hashem.  Careful study shows that Mosheh uses זה הדבר when speaking to the Jews, and כה אמר when speaking to Pharaoh. This is the exception, and perhaps that set off alarm bells and even suspicions among the Jews, who recognized that somehow Mosheh was not prophesying in the manner to which they were accustomed. 

 

Now Eliyahu Rabba endorses Mosheh’s decision via a fascinating parable:

משלו משל – למה הדבר דומה?

למלך בשר ודם שסרח לפניו בנו בכורו.

תפסו בידו, ונתנו לעבדו לשר הבית, ואמר לו:

צא והרג את זה ותנהו לחיה ולכלבים.

מה עשה אותו העבד?

הוציאו מלפניו והניחו (בבית ארץ) [בביתו, ורץ] ובא ועמד לפניו.

לסוף ל’ יום, כטוב לב המלך עליו, והיו עבדיו ובני ביתו מסובין לפניו –

כשהוא נושא את עיניו אינו רואה את בנו בכורו –

היה מכניס יגון ואנחה בלבבו – ואין כל ברייה מכיר בו אלא עבדו שר הבית.

מיד רץ והביאו והעמידו במקומו.

כתר יפה שהיה מונח לפניו

תפסו בידו ונתנו בראש עבדו שר הבית,

A parable – to what is this similar?

To a flesh and blood king whose eldest son behaved rottenly before him.

He took him in his hand, gave him to the palace chamberlain, and ordered:

“Go out and kill this one and give him to the beasts and dogs!”

What did that servant do?

He took him out from before him and hid him in his house, then ran back and stood before the king.

After 30 days, when the king grew cheerful, and all his servants and household were dining before him –

There was pain and agony in his heart – and no one recognized it but the palace chamberlain.

Immediately he ran and brought (the condemned son) and stood him in his (accustomed) place.

(The king) had a crown stored before him –

he took it in his hand and placed it on the head of his servant the palace chamberlain.

 

The fundamental analogy seems to be that Mosheh, like the chamberlain, is ultimately rewarded for disobeying orders.  But while it is true that G-d initially threatens to kill all the Jews, He as-if changes his mind – וינחם – before Mosheh actually descends from Sinai (unless one takes verse 14 as out-of-order, as describing in advance how the narrative will end.)

 

Note also that the chamberlain’s reward is likely the crown that had previously belonged to the rescued prince.  But reading the Torah, we generally assume that Hashem takes back both of His threats in verse 10 – that He neither destroys the people nor replaces them with Mosheh.  In this midrash, I suspect that Mosheh’s face is eventually illuminated by light that originally would have been shared by all the people. 

 

Mosheh earns the condemned prince’s crown even as he saves him; his disobedience covers that of the people.  Sometimes one sin makes another necessary

 

This is plainly a dangerous message, and one that – even believing that it is the clear meaning of this midrash – I am hesitant to embrace. 

 

But within the framework of that midrash – I suggest that the servant is heroic because he has so internalized the values of the king that he can act in direct response to values rather than rules, and because he is willing to risk his own life solely for his master’s happiness.

 

The problem here, as in Iyov and the Akeidah, is that once we know the story, we can never be the selfless servant – in the back of our minds will always be the hope that, if we get it right, G-d will give us a crown.  And I wonder how the king reacts  – however happy he is to see his son –  if he suspects that the servant is gaming the system, and chooses when to obey and when not with self-interest as part of the equation.

 

Shabbat shalom

 

 

 

 

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Gender and Tefillin: Assumptions and Consequences

Gender and Tefillin: Assumptions and Consequences

 

Rabbi Ethan Tucker argues[1] that the Rabbis excluded women from the obligation to lay tefillin because tefillin represent full citizenship and – given their immersion in Roman culture – the Rabbis could not imagine women as full citizens. 

 

This argument is frankly puzzling.  The Talmud asserts in several places (Shabbat 62, Eiruvin 95-96) that Rabbi Meir held that women are obligated to lay tefillin.  On what basis does Rabbi Tucker claim that Rabbi Meir’s colleagues found his position unimaginable?  Even if the reconstruction of Rabbi Meir’s position is not historically accurate, the fact would remain that the Talmud found it imaginable.  So why should we read the subsequent tradition, which rules that women are not obligated, as resulting from a lack of imagination? 

 

Note that Rabbi Tucker’s argument is derived wholly from the rhetoric of a Mekhilta whose rhetoric finds no echo in the Talmud’s various discussions of gender-and-tefillin.  It is true that the Talmud in one place (but not in others) assumes that women’s exemption from Tefillin is derivative of their exemption from at least one mode of Torah study; but the derashah deriving that exemption bears no more relationship to citizenship than the derashah deriving women’s exemption from other time-bound commandments from tefillin[2].  Indeed, there is no particular reason to assume that citizenship, as defined by Roman political theory, was a relevant category for the Rabbis.

 

Furthermore, Rabbi Tucker’s read of the Mekhilta focuses on its last line: 

מכאן אמרו:

כל המניח תפילין כאלו קורא בתורה,

וכל הקורא בתורה פטור מן התפילין

“From here they said:

“One who lays tefillin is as if he reads Torah,

and one who reads Torah is exempt from tefillin”.

From here Rabbi Tucker says:  

the final line of the Mekhilta passage above emphasizes that learning Torah and wearing tefillin are essentially the same thing; indeed, one who is truly learning is exempt from wearing tefillin while doing so!” 

But if tefillin symbolize membership in the Torah-studying elite, why should one reading Torah not wear them?  

 

A possible answer is that wrapping tefillin in this stream of interpretation reflects inadequacy rather than mastery – tefillin are substitutes for Torah study, not embodiments of it.  This idea explains why the Mekhilta says that studying Torah exempts one from tefillin, but not vice versa, and is stated explicitly in Masekhet Tefillin Chapter 1:

כך היה רבי אליעזר אומר:

גדולה היא מצות תפילין,

שכך אמר הקדוש ברוך הוא לישראל:

“והגית בו יומם ולילה”!

אמרו ישראל לפני הקדוש ברוך הוא:

“רבון העולמים, וכי אנו יכולין להגות יומם ולילה?!”

אמר להם הקדוש ברוך הוא:

“בני, היו נותנים תפילין על ראשיכם ועל זרועותיכם,

ואני מעלה עליכם כאלו אתם הוגים בתורה יומם ולילה,

שנאמר:

‘והיה לך לאות על ידך ולזכרון בין עיניך

למען תהיה תורת ה’ בפיך'”.

So Rabbi Eliezer would say:

Great is the mitzvah of tefillin

as this is what The Holy Blessed One said to Israel:

“My children, put tefillin on your heads and arms,

and I will treat this as if you recited Torah day and night,

as Scripture says

“And it will be for you a sign on your hand and a mnemonic between your eyes

so that the Torah of Hashem will be in your mouth.”

 

Later commentators even argue that the intent of the Mekhilta is that tefillin and Torah study are mutually exclusive – one is halakhically required to be consciously aware of tefillin whenever wearing them, and someone studying Torah with proper intensity would inevitably fail this requirement.  Wearing tefillin would therefore be a statement that one could not fulfill the true responsibility of Talmud Torah.  Women would still be exempt because, not having the same obligation, they have no need for the black badge of as-if.  But it is hard to see that badge as a critical marker of Roman-style citizenship.

 

In any case, practical halakhah and popular hashkafah do not follow the Mekhilta, as Rabbi Tucker acknowledges in his essay’s first paragraph.  The observant community associates tefillin primarily with prayer rather than with Torah, and reasonably sees this association as continuous with the rest of the Talmudic record.  So why should we treat the Mekhilta as the dominant voice of Jewish tradition, especially if doing so leads us to categorize that tradition as reflective of Roman chauvinism rather than Torah?             

 

Rabbi Tucker’s choice to ignore these alternative understandings of women’s exemption fails to accord with the Talmud’s core value of intellectual generosity.  The Talmud programmatically challenges its own assumptions by constructing hava aminas, by seeking out the best arguments for the positions it wants to reject and sees as obviously wrong – and arguments that begin as generously imagined hava aminas often go on to win the day in some other sugya or later commentator.  Failure to imagine the hava amina – to treat one’s own position as unproblematically peshitta (so obvious that it goes without saying) – results in a vicious cycle: texts are read exclusively through the lens of ideology, and then cited as evidence for that same ideology. 

 

Note also that wrapping tefillin has acquired its own liturgy over time, and one core aspect of that liturgy involves men reenacting the betrothal of the Jewish people to G-d – in other words, playing the female role.  Degendering tefillin is not simply a matter of overcoming qualms about crossdressing[3].  It cannot be accomplished simply by painting the backs of the straps “various colors”, or by reducing male, prayer-based practice to “a strange, arcane ritual devoid of much meaning that is at best the basis for a nostalgic male bonding ritual at a Men’s Club event.”  Here Rabbi Tucker seems oddly dismissive of the lived experience of the halakhic community[4].  

Halakhic practice can develop dramatically when someone with absolute faith that Halakhah expresses the binding Will of G-d for all Jews concludes that a conventional understanding of the law is incorrect because it is morally intolerable, and G-d could not Will the morally intolerable.  By contrast, moral critiques of Halakhah perceived as coming from external ideology freeze the law; they generate a defensive reaction among those who love and identify with the tradition, along with a suspicion that halakhic conclusions stemming from that critique represent the will of the posek (halakhic decisor) subordinating that of G-d, rather than the other way around. 

 

Therefore, it is particularly the most progressive and aspirationally revolutionary of halakhic thinkers who must try hardest to ensure that their critiques of existing practice are and are perceived as organically grounded in the tradition rather than transplanted.  Otherwise their every argument damages the causes they believe in.

 

The Shiltei Gibborim (Rosh HaShannah 9b) cites the 13th-14th century Italian Talmudist Isaiah de Trani the Younger:

וכבר ביארתי בקונטרוס הראיות

שאין הנשים עוברות על בל תוסיף

במצוה שלא נצטוו עליה . . .

ואעפ”י [כן] הנשים אסורות לתקוע ביום טוב של ראש השנה

אפילו בלא ברכה

הואיל ואינן מצוות בדבר הרי יו”ט של ראש השנה אצלן כשאר יום טוב

שאסור לכל אדם לתקוע בשבתות וי”ט . . .

וכןאסורלנשיםלהניחתפלין,

אפילובלאברכה

מפנישנראהכדרךהחיצונים, שעובריםעלדבריחכמיםואינןרוציםלדרשוהמקראותכמותן

I have already explained in the Collection of Proofs

that women do not violate the prohibition of adding to the Torah

by performing commandments they were not commanded regarding . . .

nonetheless women are forbidden to blow the shofar on Rosh haShannah,

even without a blessing –

since they are not commanded in the matter, Rosh haShannah is for them like any other holiday,

and all people are forbidden from blowing the shofar on Shabbat and holidays . . .

and so too it is forbidden for women to lay tefillin,

even without a blessing,

because it seems like the way of the outsiders,

who transgress the words of the sages and do not wish to interpret Scripture as they do

 

More than twenty years ago, as a student at Yeshiva University, I published a letter to the editor of Hamevaser making the technical halakhic case for permission and concluding that “a responsible posek who permitted women to wear tefillin, particularly in private on a case by case basis, could not be dismissed out of hand”.  In practice, I have made clear that women wearing tefillin were welcome to daven in the Orthodox minyanim of Harvard Hillel and Gann Academy, and it seems to me good policy to be as generous as possible when assessing the motives of women who wish to wear tefillin. 

 

But if a halakhic scholar were now to argue, waving Rabbi Tucker’s post as evidence, that the subjective motives of specific women are irrelevant because they are behaving like the “outsiders, who transgress the words of the sages and do not wish to interpret Scripture as they do” – meaning those who reject the Sages’ ruling that women are exempt – I would have a legitimately hard time persuading him or her otherwise.

 

Moreover – the halakhic community rightly takes the term chiyuv (obligation) as reflecting a metaphysical state of being, such that the claim that X is mechuyav necessarily carries the implication that everyone who is like X is also mechuyav – it is not a matter of personal choice or psychological recognition.  Changing the prevalent halakhah to make women obligated to wear tefillin would transform many otherwise observant women into sinners.  Not addressing this issue risks creating the perception that one views chiyuv as merely a social convention.

 

My own position remains that contemporary women who wish to wrap tefillin may do so.  But there is value in specifically masculine and specifically feminine ritual, and religion must take into account and ideally channel the differences between male and female experiences rather than denying them.  Those differences express themselves differently in different times, and it is the obligation of halakhic leadership to develop the practical expression of halakhah accordingly – and surely one positive such development is the explicit inclusion of women talmidot chakhamot among the halakhic leadership.  In this regard there is a certain irony that at least the initial public conversation of this issue has been conducted without a woman’s scholarly voice[5] participating on any side.    

 

 

 


[2] I hope to post soon a separate article exploring how the Rabbis read the verses intertwining Torah, tefillin, and mezuzah as obligating women in the last while, at least according to most, exempting them from the first two. 

[3]Women can play that religious role as well or better than men; my point is that it would not be the same experience for women as men, and that the power of the tefillin-liturgy for men may stem precisely from its requirement that they experience a female role in the context of a ritual only men are obligated to perform.  

[4]The terms “halakhic community”, or alternatively “normative community”, and even “normative halakhic community” can generate their own circular logic in both directions: I define your community as non-normative or non-halakhic or non-normative-halakhic, and then reject your right to use your community’s experience as evidence of practice, while you argue that the fact of your community’s practice obligates me to seek justifications rather than grounds for rejection  I have tried to avoid that trap in this essay, but to prevent ambiguity, I state here that I do not regard communities who pray in principle without a mechitzah, and/or practice ritual generally without regard to the exemption of women from various mitzvot, as normatively halakhic, and that has implications for the standing of scholars who endorse such behavior in practice.  I am generally opposed to restrictions on what scholars, or for that matter nonscholars, can argue should be the practical halakhah.    . 

[5] although this article has been significantly influenced by the private comments of two female scholars on earlier drafts.

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