Monthly Archives: July 2015

Omnimerciful Rejections, Or: How to Turn Down Requests for Unviable Halakhic Reform

This week’s alumni dvar torah is by Rabbi Shlomo Zuckier

Our Parsha features two different stories of struggles by those who are committed to G-d and to Torah, and who make significant requests to change the status quo. Moshe asks to enter the land of Israel and is rebuffed, while Benos Tzelofchad (the daughters of Tzelofchad) request and are granted a share in the Land of Israel.

These two stories are juxtaposed in Perek 27 of Bemidbar (and its Sifrei commentary): Benos Tzelofchad, pursuant to their request, are offered to inherit their father’s plot of land in Israel, the general laws of inheritance are established, and Moshe is told that he will die before entering the Land, despite his requisitions that he be granted entry. In reading and considering these two stories, similar but divergent in their structure, we can examine phenomenologically the process of requesting a change the Halachic status quo – both the stakes involved and the appropriate response. Let us analyze the two cases.

The request of Benos Tzelofchad to receive a portion in the Land is positively received, and part of this may be due to the stakes that they saw tied up in this issue. Let us consider the Sifrei’s insightful presentation of the story (133):

כיון ששמעו בנות צלפחד שהארץ מתחלקת לשבטים לזכרים ולא לנקבות נתקבצו כולן זו על זו ליטול עצה אמרו לא כרחמי בשר ודם רחמי המקום בשר ודם רחמיו על הזכרים יותר מן הנקבות אבל מי שאמר והיה העולם אינו כן אלא רחמיו על הזכרים ועל הנקבות רחמיו על הכל שנאמר [נותן לחם לכל בשר וגו’ (תהלים קלו כה) נותן לבהמה לחמה וגו’ (שם /תהלים/ קמז ט) ואומר] טוב ה’ לכל ורחמיו על כל מעשיו (שם /תהלים/ קמה ט

When the daughters of Tzelofchad heard that the Land was being divided into tribes to men and not to women, they all gathered together to consult. They said: Not like the mercy of flesh and blood is the mercy of G-d. Flesh and blood have greater mercy for men than for women, but the One Who Spoke and the World Was is not so; rather His mercy is on men and on women. His mercy is on everything, as it says “He gives bread to all flesh…” (Ps. 136:25); “He gives to an animal its bread…” (Ps 147:9); and “The Lord is good to all, and His mercy is on all His creations” (Ps. 145:9).

Benos Tzelofchad object to what seems to be unfair treatment stemming from insufficient concern for women. They reject the prospect of a G-d Who is merciful to men more than to women, which they know to be inconsistent with G-d’s true nature, and thus assume that the current state of affairs must be a human rather than a divine construction. Moshe conveys their concerns to G-d, who rules that Benos Tzelofchad can inherit the Land, proving their presumption right.

It certainly was convenient that G-d deemed this arrangement viable and incorporated it into the laws of inheritance. Otherwise, formulating a response to Benos Tzelofchad that both held firmly to the Halacha and offered a degree of mercy befitting G-d and G-d’s Torah would have been extremely difficult. Happily, in clarifying this law, G-d once again emerges as the Omnimerciful, and the Torah is properly interpreted.

If we consider Moshe’s situation, the picture is quite different. Moshe is famously denied the possibility of entering the Land of Israel, which is discussed in multiple Midrashim elsewhere, especially at the outset of Parshas Va’eschannan. In our Parsha and its Sifrei commentary, although the rejection itself is not discussed, we find a discussion of what comes after the rejection. In the Midrash, G-d offers a dual mitigation of the rejection that Moshe experiences.

First, Moshe is shown the entire Land tow which he was denied entry (Num. 27:12-13). The Midrash presents this as a sort of consolation prize, or maybe even a coping mechanism, as Moshe is shown not just the entire geographic landscape of Israel (or the entire world, as R. Eliezer argues in Sifrei Num. 136), but is given temporal perspective as well, viewing all future generations (see Sifrei Deut. 357). This satiates Moshe’s curiosity to understand G-d’s ways (as depicted in Ex. 33), and gives him a virtual presence in Israel’s future in the Land.

Second, Moshe is told about the continuity of leadership, which he is deeply committed to knowing, out of concern that the people should have sufficient governance in place after his passing. Moshe uncharacteristically initiates a conversation with G-d, with the inverted וידבר משה אל ה’ לאמר, “and Moses spoke to G-d” (Numץ 27:15), indicating a sense of urgency on his part. Moshe insists on appointing a leader over the community, in order that “G-d’s congregation not be like shepherd-less sheep.” As Sifrei Num 138 explains (possibly drawing on the strong opening), after Moshe’s personal request to enter the Land is rebuffed, he is assertive in saying to G-d “tell me if you are appointing leaders or not.” This is the genesis of our section about appointing Yehoshua, for the Midrash.

Thus, despite being spurned in his great wish to enter the Land, G-d still supports Moshe by showing him the Land of Israel throughout history, and by ensuring that the people have future leadership in place for after his passing.

Any Orthodox Halakhist knows that there is not always a “Halakhic Way,” even in extremely difficult cases. But there remains the vitally important, but often overlooked question of how to conduct the process of relaying the unfortunate news of a “no” answer while remaining faithful to G-d and Divine values of mercy, love, and support.

In a scenario where the request for change is answered with a “no,” responsibilities are incumbent on each of the involved parties. First, and more trivially, the Halacha-abiding requester (Shoel) has an obligation to follow the clarified Halacha, as difficult as that may be.

Simultaneously, the responder (Posek) is faced with a dual obligation, as we learn from Moshe and Benos Tzelofchad: 1. The Posek must make it clear that the “no” answer is due not to a deficiency of mercy inherent in Torah, but to moral or structural constraints imposed by the Omnimerciful G-d which cannot be averted. 2. The Posek needs to make clear what the road forward is, what alternate routes might be appropriate for the Shoel.

If we are to follow G-d and G-d’s ways, we are obliged both to be loyal to the Torah and to emulate G-d’s omnimercy. Moshe Rabbenu and Benos Tzelofchad deserve no less.

Shlomo Zuckier (SBM 2012) is Associate Rabbi and JLIC Co-Director at the Slifka Center for Jewish Life at Yale, a PhD student in Judaic Studies at Yale, a Tikvah, Wexner, and Kupietzky Kodshim Fellow, and Editorial Assistant for Tradition magazine.

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Chok, Mishpat and Obergefell

by Rabbi Aryeh Klapper

In Numbers 24:5, Bilaam blesses the Jewish people: “How goodly are your tents, O Jacob.” The Rabbis understood him to be praising the Jews for ensuring that the openings of their respective tents did not face each other, thus preserving modesty. Soon after, the Rabbis depict Bilaam as inverting his blessing by sending Midianite seductresses out to tempt the Jews into sexual exhibitionism. Bilaam does this because he understands that Jewish modesty is like Samson’s hair: shorn of this virtue, we lose our superpowers and become vulnerable. Why did G-d use Bilaam to bless the Jews, if by doing so He enabled Bilaam to learn how best to attack us?

Imagine pre-snake Adam and Eve walking into the Jewish camp. They would not praise the Jews for their modesty, and they would have no idea why the tents’ openings did not face each other. For Bilaam to praise the Jews’ virtue, even in the context of his deep and unremitting hatred, he had to be capable of understanding that modesty was a relevant evaluative category.

What would it take for Bilaam to have this capacity? Unlike the prelapsarian original couple, he would have to be conscious of his own sexuality, and experientially aware that sexuality could be associated with shame. He might nonetheless choose exhibitionism for himself, and for his culture. He might decide that sexual shame is the root of neurosis and dedicate himself to its cultural eradication. But he would understand what he was eradicating. Perhaps there would even be moments when he regretted his victory.

My tentative suggestion is that the Torah teaches us here that there is a value in making our moral premises intelligible even to our enemies; this is part of our mission to be the light of the nations. I want to be clear that this value is not pragmatic, and that we are not safer, or less likely to be hated, if we are understood. Like Bilaam, the world may use its understanding of our virtue to learn how best to undermine us. It is simply part of our job to enable as much as we can of humanity to make informed moral choices.

I suggest further that perhaps we can understand the Seven Noachide Commandments as intended not to provide a formal code of behavior, but rather to identify a set of moral premises. Perhaps our mission is particularly to make those premises universally intelligible. Making premises intelligible is not accomplished through rational argumentation. Rational arguments depend on mutually intelligible premises.

For example: The prohibition against eating flesh taken from live animals may make sense only to those who have the capacity to empathize with animals, or at least to believe via analogy to their own experience that animals have a self that can feel pain. With those givens, we can argue as to whether causing pain in this way is justified, or whether we should prohibit the meat rather than the action of obtaining it. But that argument makes no sense to someone who sees no resemblance between animals and ourselves, or is generally incapable of empathy.

What we can do is to live lives that inspire admiration and that make much better sense when framed in terms of those premises. When the intelligibility of our premises erodes, when the society we live in reacts to our premises with bewilderment, every halakhically committed community needs to ask itself: Have our lives inspired admiration, and if not, why? Have we lived in accordance with our premises, or have we self-contradicted in ways that make it impossible for anyone to understand them without cynicism?

Asking this question requires us to be able to think of ourselves as separate from the broader society our community inhabits. This is legitimately challenging for Modern Orthodoxy, which sees value in being part of American society. When halakhic premises become unintelligible to the society outside our community, they will likely become, or have already become, unintelligible within our community.

One core premise: let us identify it with the Noachide commandment against forbidden sexual relationships, or arayot—that is no longer intelligible to many Americans is that sexuality can be evaluated in nonutilitarian terms, that a sexual act can be wrong even if no one gets hurt. We have replaced sexual morality with sexual ethics. Conversations on topics such as chastity, masturbation, and adultery are wholly changed from what they were even two decades ago, and tracts from back then can seem less contemporary than prehistoric cave art.

There are many reasons that traditional rationales in the area of sexuality have moved rapidly from self-evident to unintelligible. Here are two: (1) Effective birth control and in vitro fertilization have broken the connection between intercourse and procreation. It is no longer self-evident to speak of intercourse as potential procreation, or as inevitably associated with the risk of pregnancy. (2) Many human beings with homosexual orientations have told compelling personal stories of pain and alienation.

In the secular world, the natural reaction to a premise’s social unintelligibility is the repeal of any laws that depend on it. In the Orthodox world, where immediate repeal is rarely a viable option, one reasonable reaction is what I call “chokification,” or the declaration that laws that once depended on the now-unintelligible premise should be regarded as either beyond human comprehension or else as arbitrary rules intended to train us to obedience. Chokification generally has two consequences: It forestalls attempts to change the law while discouraging any attempt to extend the law’s reach by applying it to new situations. Over time, as reality diverges more and more from the law’s original situation, the law will become less and less relevant practically.

A trend toward chokification of the halakhic prohibitions against homosexuality has been evident in Modern Orthodoxy for some time, and as in the general society, it is more pronounced among the young. This suggests that rationales seen as self-evident in the past are no longer intelligible to them. My suspicion is that this is true as well for a significant percentage of the Charedi world.

The question is whether chokification is an effective long-term strategy, or only a holding pattern. Even if it is sometimes an effective long-term strategy, the case of homosexuality may be harder, as the laws generated by the original premise are now seen by many within our community as deeply wrong ethically rather than only incomprehensible. Perhaps chokification can help hold the halakhic line only if it is rooted in unshakeable belief that this law, as is, represents the will of G-d. In other words, chokification is perfectly compatible with calls for social change. R. Shalom Carmy, for example, argues in First Things that Orthodoxy must repent for past mistreatment of people with homosexual orientations. Such mistreatment has no warrant in Halakhah and likely results from the basest of motives.

However, chokification is less compatible with calls for dramatic legal change. Such calls can reasonably be seen as resting on the belief that one knows why the law is as it is, and sees the law not as a chok but rather as a mistaken mishpat. Furthermore, it must be challenging to tell people that they are religiously obligated to follow a mistaken mishpat until the law is changed, even if that law causes them great suffering.

My own sense is that effective and authentic responses to homosexuality must be able to claim that the law as understood within past Halakhic tradition was in fact the Will of G-d, and further that an interpretation of that law which is genuinely continuous with that tradition has religious significance today. Until such responses are developed, chokification is likely the best strategy. But while it may be reasonable to welcome Obergefell’s outcome as a civil rights advance, or to acknowledge that outcome as a necessary response to a shift in public sensibilities, we should recognize that a deep and likely very important religious understanding has been lost. That understanding had been perverted to justify cruelty, and it may take a long time to reclaim it. But any celebration cannot be unmixed.

Obergefell represents our failure to make our premises intelligible even to our best friends; unambivalent celebration of Obergefell represents our failure to keep them intelligible even to ourselves. This should at the least generate a serious cheshbon hanefesh (spiritual accounting). Shabbat Shalom!

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