Monthly Archives: January 2016

Interpreting the Second Commandment

This week’s alumni dvar torah is by Jared Anstandig

Though the Torah consists of 613 mitzvot, there is no question that we ascribe the Ten Commandments a more significant and fundamental role. Accordingly, readers of the Ten Commandments look carefully at the content and presentation of the Ten Commandments. Though each one appears quite straightforward, many of them are subject to great, and somewhat surprising, dispute.

Consider the beginning of the second commandment:

לֹא יִהְיֶה לְךָ אֱלֹהִים אֲחֵרִים עַל פָּנָי

You shall have no other gods before me.

At its surface, this verse appears quite simple. Nonetheless, commentators interpret these words in various ways. Namely: does this verse prohibit the worship of other gods because other gods do not exist? Or, is the fact that the verse has to prohibit worship of other gods indirectly affirm the existence of other supernatural powers?

Rambam, in his Mishna Torah, emphatically takes the former approach. In the first chapter of Hilchot Yesodei Hatorah, halacha 6, Rambam writes,

כל המעלה על דעתו שיש שם אלוה אחר חוץ מזה עובר בלא תעשה, שנאמר: ‘לא יהיה לך אלוהים אחרים על פניי

Anyone who entertains the idea that there is a G-d aside from G-d transgresses the negative commandment of “You shall have no other G-ds before me.

Here, Rambam recognizes this mitzva as delegitimizing any other metaphysical powers. To be sure, in his commentary to the tenth chapter of Masechet Sanhedrin, when explaining his 5th Principle of Faith, Rambam acknowledges the existence of angels. He writes,

אין משפט ולא בחירה להם אלא לו לבדו השם יתברך

            There is no judgement and no choice [for angels] but to perform G-d’s will

This statement does indicate that Rambam recognizes metaphysical powers. Nonetheless, for Rambam these powers are fully subservient to G-d, exercising no will of its own. Therefore, within this mitzva is the understanding that G-d is the Supreme Ruler, and that no angel possesses any power of its own.

Ramban, however, views this mitzva slightly differently. In his commentary to this verse, Ramban writes,

והנכון גם לפי הפשט … שלא יהיה לנו בלתי השם אלוהים אחרים מכל מלאכי מעלה ומכל צבא השמים הנקראים אלוהים, כענין שנאמר (להלן כב יט): “זובח לאלוהים יחרם בלתי לה’ לבדו,” והיא מניעה שלא יאמין באחד מהם ולא יקבלהו עליו באלוה ולא יאמר לו אלי אתה

What is correct, even according to the peshat…is that, aside from G-d, we cannot have any gods from among all of the angels on high and from the hosts of the heavens, which are called gods (elohim), just as it says later “One who sacrifices to the gods, aside from G-d, shall be destroyed.” This is a prohibition not to believe in any of them, nor to accept them upon oneself as a G-d, nor to say “you are my G-d.”

For Ramban, it is clear that there are independent supernatural powers in existence. The prohibition here is saying to any of them, as he puts it, “you are my G-d.”

Whereas Ramban acknowledges that it is fair to refer to the supernatural powers as independent “gods,” Rambam appears to discredit their independent existence entirely (This argument manifests itself in each of their opinions toward the prohibition on magic; Rambam believes it is forbidden it because it is false, while Ramban believes it is forbidden precisely because it works).

This metaphysical machloket between Rambam and Ramban may be difficult for modern day Jews to appreciate; belief in numerous supernatural powers is not prevalent in our society. Rabbi Yitzchak Arama, in his Akedat Yitzchak, presents a more relatable approach to this prohibition. He expands the prohibition of idolatry to include subservience to material goals and wealth. He writes,

ויש בכלל זה העבודת אלילים הגדולה המצויה היום בעולם מציאות חזק …לקבוץ הממון והצלחות הנכסים שהמה להם האלהים האדירים אשר עליהם הם נשענים ובאמונתם הם נסמכים

Included within this prohibition of idolatry is something significant that is common and strong in our world today, and that is … the pursuit of gathering wealth and success. These have become mighty gods for people, upon whom they rely and have faith.

Rabbi Yitzchak Arama argues that the prohibition of idolatry extends to more than the belief or reliance upon supernatural powers, but even upon very natural and basic necessities. If we allow ourselves to be driven not by the Divine, but by our material wants and needs, then we are guilty of idolatry. Our belief in G-d, as laid out in the Ten Commandments, demands that we give up our obsession with and dependence upon the superficial “gods” in our lives.

Jared Anstandig (SBM ’11) is from West Bloomfield, MI, and is currently in his fourth year of RIETS.

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Sinai and Orthodox Authority

by Rabbi Aryeh Klapper

At Columbia University this past Monday night, I was privileged and honored to share my thoughts on the topic “Can One be Halakhic Without being Orthodox?” with a large, patient, tolerant, and talented group of young people, including many alumni of CMTL’s Summer Beit Midrash and Winter Beit Midrash, and of Gann Academy. My fear is that they got less out of the experience than I did, as the thought I had to share turned out to be far less developed and coherent than I had hoped and because the topic turned out to require much more extended treatment. So it seems worthwhile to honor their generosity and their challenging engagement by trying again here—in a somewhat different and more limited fashion—in the expectation that I will do so again in a longer format at some soon point, having benefited again from your responses and critiques. The audio of the lecture will be posted early next week.

The Jewish people are a political community bound by religious law. I contend that this proposition emerges from the Aseret HaDibrot and indeed all of Torah and is a fundamental necessary assumption of any halakhic Judaism.

By ‘political’ I mean that we take collective responsibility for the distribution and exercise of power in our community.

By ‘religious’ I mean that we see Jewish law as deriving its authority from G-d’s will.

A community can be bound by religious law, but not be political, if it sees obedience to that law by members of that community as solely a matter of personal choice. The easiest way to accomplish this reasonably is to restrict religious law to ritual and allow a parallel, nonreligious system to take responsibility for issues such as the distribution of material goods (economic policy, Choshen Mishpat), the regulation of information (libel and slander laws, lashon hora), criminal justice (dinei nefashot), and even of membership in the community (immigration policy, gerus).

I contend that an authentically halakhic Judaism has a principled opposition to such restriction.

But, I need to qualify that statement immediately by saying that an authentic halakhic Judaism may accept or even advocate for such restriction in particular circumstances, on practical or moral grounds. For example, when the Jewish community is practically unable to use physical force against its members, criminal law needs to be handled by other agencies for practical reasons. When many segments of the Jewish community fundamentally reject the authority of halakhah, coercing obedience to it is both practically counterproductive and morally offensive.

A community is political, but not bound by religious law, if it grounds the legitimacy of power on a basis other than Divine Will. But, I need to qualify that statement immediately by saying that it need not ground the legitimacy of power exclusively on the basis of Divine Will, nor on the basis of direct Divine Will.

In fact, I contend that halakhic Judaism always rejected both. Halakhic Judaism has always held that the legitimacy of power requires heteronomous and autonomous grounds. The simplest basis for this claim is that the Torah became binding when we accepted it, not when G-d gave it.

Furthermore, many features of halakhah are specifically and explicitly intended to distance direct Divine Will from power. The clearest illustration of this is Rabbi Yehoshua’s use of the Biblical clause לא בשמים היא, “It is not in Heaven” in the Oven of Akhnai story. The point of this story is not to celebrate autonomy but rather to legitimate the use of coercive authority by some human beings against others, specifically against others who claim the right to act on the basis of their own experience of Divine Will.

Halakhic Judaism therefore, like many contemporary systems of government, is an intricate dance that revolves around the dynamic interaction of autonomy and authority. That dance must be enacted differently in different contexts. Contemporary Orthodox versions incorporate the reality that formal halakhic authority is greatly diminished, in three interconnected ways:

First, the halakhic community has little-to-no access to any means of power other than social suasion. (This is true even in the State of Israel for the overwhelming majority of halakhic issues.)

Second, there is almost no formal framework for granting halakhic authority within the community, especially outside Israel. Even those who believe that titles matter need not hold that having met the minimal standards for semikhah confers more than minimal authority.

Third, many of the mechanisms within halakhah for granting authority have been sidelined. Midrash Halakhah is not used to generate law; legislation is binding at most on narrow local communities; mechanisms for seizing property or annulling marriages are used only in directly precedented cases; there is no mechanism for taking a binding vote on issues of controversy.

If we stay with the dance metaphor, the weakening of one partner does not properly lead to the other asserting more and more dominance. Rather, as in all relationships, one proper response to weakness is to make greater efforts at self-restraint, to ensure that one’s partner is still given the fullest possible capacity for self-expression and influence in your shared being.

So one can argue that the proper response to the weakening of formal halakhic authority is not the exuberant celebration but rather the voluntary restriction of halakhic autonomy, especially in areas where the stakes are lower. (Note that both halakhic autonomy and its restriction may play out differently for those who formally make decisions only about their own actions, and those who formally make decisions with the intent to set halakhic precedents.)

A strong-form statement of this argument would be that in the absence of formal authority, the preservation of halakhah as law requires us to seek to constitute informal authority whenever and wherever possible.

But I think this is false. Halakhah does not restrict the authority of direct Divine Will because it mistrusts G-d; it restricts that authority because it mistrusts humans who would be the conduits of that Will, or would claim to be the conduits. Therefore, halakhah has no brief for giving similar authority to human beings on any other basis. So an authentic halakhic system must always allow for authority to be religiously challenged, rebuked, or even disobeyed.

But there must be an authority to challenge, rebuke, or even disobey. A paradox of modernity is that one may be obligated to establish authority in order to disobey it.

So the issue of non-Orthodox halakhic-ness cannot be about, or at least not only about, whether Orthodoxy is generally and/or fundamentally right or wrong about gender roles, or about sexuality. The issue is not even whether Orthodoxy generally and/or fundamentally excludes the objectively correct positions on such issues.

The question is whether it is possible to reject the informal Orthodox authority exercised on such issues and still authentically maintain a conception of the Jewish people as a political community bound by religious law, and sustain the dance of autonomy and authority in one’s individual and communal life.

In the context of that question, I want to make a descriptive sociological claim that may have significant normative implications: The claim is that it is perfectly coherent to describe someone, or for someone to describe themselves, as nonobservant Orthodox, but that it is incoherent to describe someone, or for someone to describe themselves, as nonobservant Halakhic non-Orthodox. If one doesn’t practice halakhah, then the halakhah one doesn’t practice is Orthodox.

Assuming I am correct, it means that Orthodox identity exists prior to and independent of praxis, whereas non-Orthodox halakhic identity is constituted by practice. I don’t claim that this was always true, or is inevitably true. But if it is true now, it certainly reflects the failure of American Conservative Judaism to develop a successful non-Orthodox basis for grounding halakhic obligation. With rare individual exceptions, Jews today who identify as both halakhic and as non-Orthodox are an epiphenomenon of Orthodoxy. They have rationales for their rejection of specific Orthodox rulings, but they have no independent rationale for accepting the rest of the system.

One might be able to both summarize and generalize this by saying that: (a) no one has yet successfully developed a Jewish theology that both accepts Higher Biblical Criticism and convinces Jews that they are obligated to subordinate their immediate perception of the Divine Will to the perception of others who are more grounded in Jewish tradition; and (b) no one has yet successfully developed a non-Orthodox halakhah that Jews see as authoritative whether or not they experience its observance as immediately religiously meaningful.

I want to be clear that the successful development of such a theology or halakhah would not necessarily lead me to see it as religiously legitimate. The tradition I see as authoritative has often utterly excluded positions that were genuinely halakhic, meaning that they held with integrity that the Jewish people are a political community bound by religious law. Take for example the Sadducees, or lehavdil elef alfei havdalot, Beit Shammai.

On the other hand, I also want to be clear that Orthodoxy is not a magic word, in two ways:

First, the Orthodoxy of today includes positions that are halakhically legitimate but evil, not because they offer intellectually implausible readings of traditional texts, but because they offend against an objective moral order. If I had my choice I would exclude them, but as I do not have the social power to accomplish this, I believe that my Orthodox identification instead requires that I take responsibility for them. Yigal Amir is Orthodox; at least some of the “price-tag” terrorists are Orthodox; there are virulent racists in American Orthodoxy; and so on. It is davka Orthodox Jews who need to denounce them and work toward making such positions unacceptable in their community to the point that they are no longer Orthodox.

Second, the Orthodoxy of tomorrow may become halakhically illegitimate. If tomorrow all the Orthodox synagogues in the world introduce idol worship, with the approval of their rabbis, DON’T LISTEN!

Third, Orthodoxy today or tomorrow may choose to exclude halakhic people or community for completely illegitimate reasons, and if it chooses to exclude a sustainably halakhic community, that community would be entitled to see Orthodoxy rather than itself as violating lo titgodedu, the prohibition against factionalism.

What I want to suggest overall is that the interests of Torah are better served in our day if:

(1)  People who have moral problems with specific areas of halakhah, but recognize the religious necessity of authority, make their critiques within the Orthodox system rather than excluding themselves.

(2) People who have authority within the halakhic system recognize the religious value and necessity of internal moral and intellectual critique, and see those who engage in such critique—even when they go to the extent of civil disobedience—as vital positive members of their community. (Note that civil disobedience, which involves acceptance of the legitimacy of penalties, must be sharply distinguished from secession or rebellion.)

(3) People who have authority within the halakhic system recognize that authority is constituted not by agreement but by eagerness to engage and willingness to obey in the face of disagreement.

I believe that these recognitions would lead to different and better handling of current and future controversies within and on the borders of Modern Orthodoxy.

I also suggest cautiously that Modern Orthodox leaders should recognize the extent to which their own community’s continued presence in the Orthodox coalition is not inevitable. I say cautiously because the recognition of insecurity can lead to the persecution of alleged heretics to prove one’s own loyalty. But it can also lead to a mature recognition of the dangers posed by zealots, and concerted effort to prevent them from unnecessarily burning bridges, or grain silos.

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Looking for the Man Behind the Curtain

This week’s alumni dvar torah is by Rabbi Jesse Abelman

In the aftermath of the splitting of Yam Suf, after the Israelites have been saved from almost certain death by G-d’s great hand splitting the sea, we are told:

 . וַיַּרְא יִשְׂרָאֵל אֶת-הַיָּד הַגְּדֹלָה, אֲשֶׁר עָשָׂה יְהוָה בְּמִצְרַיִם, וַיִּירְאוּ הָעָם, אֶת-יְהוָה; וַיַּאֲמִינוּ, בַּיהוָה, וּבְמֹשֶׁה, עַבְדּוֹ

Israel saw the great hand which G-d had used against Egypt, and the nation saw G-d, and they believed in G-d, and in Moshe his servant.

Moshe was concerned with the belief of the Israelites long before they watched their enemies drown in the sea. In Shemot 4:1, after being told to approach the elders of Israel with the message that G-d had sent him, Moshe answers, “They will not believe me, and will not listen to my voice.” Moshe, quite reasonably, does not think that it is wise simply to approach a group of people and say “G-d sent me, now do as I ask.” G-d therefore gives him a series of miracles to perform, to provide evidence that he was in fact a prophet. This has the desired effect: in 4:30-31 we are told that, “He performed the signs in the sight of the nation. Then the nation believed…” Belief, it seems, is the result of examining evidence, specifically the evidence of miracles, supernatural events which prove that G-d must be acting. Both on the shores of Yam Suf, and when Moshe first approaches Israel, they see G-d’s power to act, whether by transforming a staff to a snake, or by moving the powerful waters of the sea at His whim, and they believe. But what do they believe, and what is the relationship between the evidence and their belief?

According to Rashbam, after the events on the sea shore they now believe that G-d will not let them die of starvation, something they had feared before they crossed. It was, indeed, the answer to to they question they had asked immediately before the miracle, trapped between the sea and the chariots of Egypt. Moshe told them, “Do not fear, stand and watch the redemption of G-d which he will do for you today.” So they watched the redemption and they saw that they need to fear, and so they believed… for two verses. Immediately upon leaving the sea, they arrive in Marah, where they could not drink. And so they complain: what will we drink? Their faith evaporated rather quickly, if Rashbam is right. (Though there may be a psychological insight here. If my faith in G-d is only based on what He can do for me, then He must constantly do for me, if my belief is to continue)

Ibn Ezra thinks that they believe that G-d is real, and that Moshe is his servant, who only does as he is commanded. This perspective has the advantage of recognizing the pivotal nature of this moment in the history of Israel, recognizing the gap between the splitting of the sea and all prior miracles. He also rather sharply recognizes the slippery nature of evidence for G-d’s existence. In chapter four they believed, but what they believed is undefined by the pesukim. They watched Moshe and Aharon perform small miracles for them, and then for Pharoah, some of which Egypt’s sorcerers were able to match. They watched as the power of these miracles grew, as Egypt was struck by plagues, many of which were enacted by the hands of either Moshe or Aharon. Did they believe in G-d? They believed that someone with power was on their side. Only at this moment do they fully recognize that this is a power beyond what any human can muster, and that Moshe must be acting on behalf of a greater power. But what is the result of this faith?

When Moshe retells the story of the spies’ reconnaissance mission into the Land of Israel, and their fears about conquering it, he explains that the root of this fear was that, “You did not believe Him.” This disturbing lack of faith was at the base of the great sin that kept Israel out of their land for forty years. Not even two months after the splitting of the seas, the same group of people whom Ibn Ezra thinks believed in the reality of G-d, and understood the difference between His servant and Himself, manufactured a golden calf to worship in some fashion.

Where does this leave us? If, as the Israeli philosopher Yeshayahu Leibowitz was fond of noting, the generation that witnessed the splitting of the sea also created the golden calf, how can a generation where G-d’s hand is less visible hold on to faith in Him? I do not have an answer to this question, but I would like to suggest that the very texts which raise the issue also provide us with some hope. I began by saying that in both of the cases in Shemot where Israel comes to believe, it is predicated on miracles.  Ibn Ezra suggests that until the splitting of the sea, it was not necessarily clear to them who was performing the miracles. The splitting of the sea provided the evidence that it was G-d Himself. Faith based on evidence is always subject to revision in the face of new evidence. With each new miracle Israel had to ask, “Is this truly a miracle of G-d, or is it just a magician’s trick?” In a time when the evidence for G-d does not come from signs and wonders which flout nature, but from the nature of the world as He created it we are, paradoxically, freed from asking “Is G-d the author of this particular wonder?” We no longer see G-d’s great hand acting directly in the world. But, as we have seen, even when He did act directly, his hand was not always easy to recognize.  G-d is hidden, yes, but he was always hidden, behind a curtain created by charlatans like the sorcerers of Egypt who would claim His power for their own.  When we have no expectation that he will reveal himself directly, we are free to seek him out without such distractions.

Rabbi Jesse Abelman (SBM 2009) is working towards a Ph.D in Medieval Jewish History at Yeshiva University and teaches at Ma’ayanot Yeshiva High School for Girls.

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The Delicate Balance of Halakhic Decision

by Rabbi Aryeh Klapper

Halakhic decision-making requires the careful balancing of (at least) three disparate factors: The meaning of authoritative texts, the authority behind or against particular legal positions, and meta-halakhic considerations. In the spectacular just-concluded inaugural Men’s Winter Beit Midrash of the Center for Modern Torah Leadership, we came across an excellent illustration of such balancing in a responsum of Rabbi Eliezer Waldenberg Z”l, Tzitz Eliezer 8:37. I hope the following presentation of that responsum will give you a taste of serious halakhic process and of the learning at WBM, and that you will be inspired to think about how studying Torah in this way can produce an exciting new generation of male and female Modern Orthodox leadership.

Rabbi Waldenberg is responding (in 1961) to an agunah case referred to him by a former student serving as the rabbi of a synagogue in Mexico. The husband in the case has refused to divorce his wife for five years, and the question is whether the original marriage can be invalidated so as to allow the wife her freedom without a get. The Mexican rabbi affirms that the designated witnesses at the wedding were halakhically ineligible. As a valid halakhic marriage ceremony requires the presence of eligible witnesses this should suffice to free the wife. However, there is a small chance that at least two eligible witnesses were present at the wedding as guests.

The technical question raised by this case is whether the presence of such witnesses would validate the marriage ceremony. There are two ways to argue that it should not: (a) the designation of specific witnesses for a marriage ceremony makes all other witnesses ineligible for the purposes of that ceremony; and (b) the halakhic rule that:“If one of the witnesses is discovered to be (ineligible because) they are related (to either party or to each other) or pasul (because of their own violations of Halakhah) – the entire set of witnesses (to which they belong) becomes legally null” applies here even though the ineligible witnesses were designated and the eligible ones were not designated.

The Mexican rabbi cites a responsum of the late Sefardi Chief Rabbi Ben Tziyyon Uziel (Mishpetei Uziel Even HaEzer 2:57) which uses this reasoning (together with other approaches) to free an agunah. Rabbi Uziel acknowledges that he is ruling against a responsum of the Chatam Sofer, and seeks to demonstrate that Chatam’s Sofer’s evidence is not compelling. But he is also perfectly clear that he sees freeing the agunah as the metahalakhically correct result, and therefore seems willing to rule against Chatam Sofer so long as he can undo his proofs:

מצוה עלינו מפי רבותינו הקדמונים

,לחפש בכל צדדי היתר להציל אשה מעגונה

ולכן כמצווה ועושה הנני נטפל בדבר זה

להשיב כהלכה כאשד יורוני מן השמים

It is a commandment upon us from the mouth of our earliest rabbis

to seek all aspects of permission so as to rescue a woman from the condition of agunah.

Therefore it is as one “who is commanded and acts” that I engage with this matter

so as to respond in accordance with Halakhah and as they direct me from Heaven . . .

Chatam Sofer’s highly creative argument was that: (a) guests at a wedding can function as witnesses to the wedding even if they do not hear the groom’s declaration or see him place the ring on the bride’s finger, because knowledge obtained by overwhelmingly powerful inference can be considered testimony; and (b) the principle that “If one witness is ineligible etc.” does not apply to cases where the witnesses are testifying via different legal mechanisms. Thus the designated ineligible witnesses, who testify on the basis of direct vision, do not invalidate the undesignated witnesses, who testify on the basis of overwhelming inference.

Tzitz Eliezer does not contend that R. Uziel is demonstrably or even probably incorrect to reject one or both of these premises. However, he argues that because Chatam Sofer’s authority is so much greater than R. Uziels’, ruling like the latter over the former requires a much higher standard of evidence, even to free an agunah:

,הן אמנם דבס’ משפ”ע שם כותב לסתור דברי הח”ס

אבל לסתור דברי רב רבנן כזה צריכים להוכחות נגדיות חזקות

.ונוסף לכך גם למצוא דברים מסייעים מדברי גדולי פוסקים אחרים

Granted that in the book Mishpetei Uziel he writes to contradict the words of Chatam Sofer,

but contradicting the words of such a great among the rabbis requires strong disproofs,

and in addition finding supporting words among the words of other great decisors.

Note that Tzitz Eliezer is probably not casting any aspersion on R. Uziel’s ruling. He might agree that R. Uziel had the right to overrule Chatam Sofer, and yet contend that lesser decisors such as himself could not follow R. Uziel against Chatam Sofer when their arguments are equally persuasive. Furthermore, Tzitz Eliezer contends that he has found a compelling disproof of Chatam Sofer in Responsum 7 of the great 15th-century German decisor Rabbi Yehudah Weil. Mahari Weil rules explicitly that in a case where the designated witnesses were ineligible, the wedding can be invalidated to free an agunah. Tzitz Eliezer believes either that R. Weil by himself outranks Chatam Sofer, or else that R. Weil and R. Uziel together suffice to overrule Chatam Sofer in an agunah case.

But we are not done. The 16th-century Greek decisor R. Yosef Ibn Lev (Maharival) states that one may not rely on R. Weil’s position in agunah cases, and the 18th-century Polish compendium Baer Heiteiv seems to endorse his position. Tzitz Eliezer indicates that Maharival, Baer Heiteiv and Chatam Sofer together outrank R. Weil and R. Uziel, and so at this point he cannot free the agunah.

But he is not done, either – he is just beginning. He notes that Baer Heiteiv quotes only R. Weil’s ruling, not his reasoning (and perhaps had did not have access to the full responsum). There are two ways to rationalize R. Weil’s ruling: (a) he denies Chatam Sofer’s claim that testimony-from-inference is sufficient to validate a marriage; or, (b) he believes that designating specific witnesses to a wedding has the legal effect of rendering all other witnesses ineligible with regard to that marriage.

Tzitz Eliezer contends that the second possible rationale contradicts the position of R. Moshe Isserles (RAMO: author of the late 16th century Mapah, or Tablecloth, which is the set of Ashkenazi glosses to R. Yosef Caro’s Shulchan Arukh, or Set Table, and have been absorbed into that work, and are generally authoritative for Ashkenazi Jews) that if eligible witnesses were designated, other undesignated witnesses remain eligible as well.

Tzitz Eliezer then argues as follows: (a) Perhaps Baer Heiteiv rejected R. Weil in favor of Maharival because he believed that R. Weill contradicted the position later adopted by R. Isserles, and he correctly held that R. Isserles holds greater authority for subsequent decisors. However, (b) when one looks at R. Weil’s full responsum, it becomes clear that R. Weill accepts R. Isserles’ position, and therefore rejects (only) Chatam Sofer. Finally, (c) R. Weil is more authoritative for us than Chatam Sofer. (Indeed, if Chatam Sofer was unaware of R. Weill’s position, we can argue that he would have ruled differently had he been aware, and so deprive his ruling of most or all authority.) On this basis (and others), Tzitz Eliezer agrees to free the agunah.

I have one point to add. It seems to me that the legal force of a position is affected by the context in which it is articulated. For example: A position that is articulated to free an agunah cannot necessarily be relied on in other circumstances, and a position articulated by a decisor in other circumstances should not be applied automatically to agunah-cases, especially when it would prevent subsequent decisors from freeing the agunah.

In this case, R. Weil’s position was not articulated in an agunah context. He addressed a case in which, so far as we can tell, both parties still wished to be married to each other. The impact of his ruling was to require them to go through a second marriage ceremony. If Chatam Sofer had addressed an agunah situation, perhaps we would give his position authority equal to or greater than R. Weil’s. However, Chatam Sofer’s position was also articulated in a non-agunah context. In his case, the question was whether the second ceremony could be waived in order not to embarrass the officiating rabbi at the initial ceremony by exposing his failure to notice the ineligibility of a designated witness. Chatam Sofer makes clear that at the outset that this is not a serious concern, as the second ceremony can be done without publicity, and that in practice the second ceremony should be held.

Chatam Sofer then obliquely references a Talmudic statement which suggests that one must give a substantive answer to even a fool’s Torah questions. It is in the context of that statement that he offers his novel ground for validating the initial marriage. In other words, he did not intend for this ruling to be followed even in its original context. Moreover, he wrote this ruling while implicitly calling its recipient a fool, which suggests that he did not hold it to the highest standards of rigor.  Tzitz Eliezer mentions none of this, but I suggest that it is in the background of his ruling. Regardless, it would give a contemporary decisor a basis for following his ruling, and that of R. Uziel, despite the position of Chatam Sofer.

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Spritual Risk and Ethical Luck

by Rabbi Aryeh Klapper

Can the morality of an action depend on luck? Let’s start with an example from a very different court. In basketball, it often happens that a player attempts a shot so difficult, and with so many apparently better options available, that teammates and coaches are shouting recriminations at him – until the moment that the ball drops through the hoop. Was the player’s choice retrospectively justified by his success, even though it was a “lucky shot”?

The philosopher Bernard Williams addressed the following scenario. Imagine a successfully married man, with three children, in a stable and remunerative profession, who abruptly leaves everyone and everything behind to become a painter in the South Seas. Imagine further that he succeeds, and becomes one of the great painters of the day (here I leave you to make your own evaluation of Gauguin’s work). Is the decision to abandon family retrospectively justified by the works of art he produces?

One might argue that a decision can only be evaluated based on the information available to the “decider” at the time of decision. The player could not know that his shot would go in; Gaugin could not know that he would produce great art; but they could each reasonably estimate the chances. The moral question then is whether the X percent chance of becoming a great artist justified the inevitable emotional harm inflicted by the decision. On this analysis, the outcome of the decision – whether the shot goes in or not – is irrelevant to the evaluation of the decision. There is no such thing as moral luck. But Williams’ scenario, unlike my sporting analogy, was deliberately constructed to raise the possibility that an action can be justified despite being unethical. Perhaps when one is comparing apples to apples, odds are relevant. But when one is comparing apples to pottery, when there is no joint axis of value along which to make the comparison, the only metric of justification is success.

In other words, there may be no such thing as ethical luck, but if one believes that actions can be justified along multiple axes – ethics, moral, and holiness, to name a few – then justification may depend on luck, on how one’s decisions actually turn out.

This is a radical suggestion, and one that I admit makes me uncomfortable. At the same time – as Deborah Klapper realized immediately when I read her Rabbi Jonathan Sacks’ presentation of and response to Williams in The Great Partnership – it puts me in mind of one of my favorite medieval sources, Rabbi Chaim Or Zarua’s discussion of the apparent contradiction between the numerous Talmudic passages unequivocally condemning the learning of Torah not lishmoh and the famous statement of Rav Yehudah in the name of Rav encouraging learning not lishmoh because it leads to learning lishmoh.

Here is the discussion:

שו”ת מהר”ח אור זרוע סימן קסג ושלא לשמה, הואיל ואתא לידן, נימא ביה מילתא – כי ר”ת אומר שני עניני שלא לשמה יש, חד אסיר וחד שרי, ואני הדיוט ופעוט אומר דכל שלא לשמה חד הוא וכולם עבירה, א[ך] אותה עבירה הותרה, שסופה לבא לידי מצוה, כמו מציל אשה בנהר ומפקח גל בשבת. וכן משמע בנזיר, שמדמה אותה למעשה דיעל. אבל מי שמקשה ערפו לעולם לא יעשה מצוה, נוח לו שלא נברא

Once shelo lishmoh has come up, I’ll say something else about it. R. Tam said there are two types of shelo lishmoh, one forbidden and one permitted. But I, insignificant and small, say that all shelo lishmoh is the same, and all are transgressive. But that transgression is permitted if it will lead in the end to a mitzvah, like when a man saves a woman in a river or digs someone out of a pile on Shabbat. This is also implied by the comparison (of a mitzvah shelo lishmah) to Yael (whose seduction of Sisera is called a “sin lishmoh”). But one who stiffens his neck, never will he do the mitzvah, better for him not to have been created.

 The key question of interpretation is whether he means that “one who stiffens his neck and never intends to do the mitzvah” is better off not having been born, or rather “one who stiffens his neck and in fact never does the mitzvah.”

The comparison to saving lives by transgressing Shabbat or Bal Tikrevu (Or whatever other prohibition(s) one thinks are implicated when men save drowning women) may tend to indicate the former; the comparison to Yael is worthy of study; but the argument itself strongly favors the latter.

Why? He critiques Rabbeinu Tam for saying that there are two kinds of lo lishmoh; but read the first way, he would himself be distinguishing between lo lishmoh with intent to reach lishmoh, and lo lishmoh without such intent.

It therefore seems to me that he means that the action of learning lo lishmoh can only be justified if one eventually comes to learn shelo lishmoh, regardless of what one initially intended or of what the odds were of succeeding in getting to lishmoh.

I generally use this responsum to raise the question of whether Judaism recognizes the validity, or necessity, of spiritual risk – particularly, whether one should understand Halakhic observance as a means of eliminating the chance that one will be held accountable for decisions that were properly made but turned out badly. Rabbi Sacks, by introducing me to Williams, has made me realize that acknowledging the reality of spiritual risk may entail acknowledging the reality of spiritual luck. I welcome comments and arguments as to whether this acknowledgement is theologically acceptable. (This dvar torah was originally published in 2013)

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The Peculiarities of the Pesah

This week’s alumni dvar torah is by Eliav Grossman

The Korban Pesah is listed among the Kodshim Kalim, or “light sacrifices,” a category of sacrifices whose rules are relatively lenient and un­constrictive. Such sacrifices are largely shelamim, sacrifices whose meat is shared between the offerer of the sacrifice and the kohanim. The meat may be consumed for two days after the sacrifice was offered, which is the most generous window of time associated with any of the sacrifices. Moreover, Kodshim Kalim may be eaten anywhere in Jerusalem; unlike other sacrifices, their consumption is not restricted to the confines of the Temple. Finally, Kodshim Kalim can be eaten by anyone, whether a Kohen or Israelite. The laws of Kodshim Kalim are thus broadly characterized as expansive and generous, allowing sacrifices to be eaten leisurely among many people.

Though the Korban Pesah is numbered among Kodshim Kalim, many of its features undermine the characterization of Kodshim Kalim sketched above. One may not consume the Pesah for two days after it is offered; rather, it must be eaten only on the night of the 15th of Nisan, immediately after it is slaughtered. Additionally, while any spot within Jerusalem is theoretically appropriate for eating the Pesah, in reality the Korban Pesah must be eaten within the very restricted space of the group that convenes to eat it. The Pesah may not be removed from the house in which the havurah gathers to eat. Finally, while all Israelites are obligated to partake in the Korban Pesah, each individual Pesah sacrifice cannot be eaten by anyone. Instead, only those individuals who signed up as participants for a particular Pesah may partake. The Korban Pesah, then, in fact features law that tightly restrict when, where, and who may eat the sacrifice. The Korban Pesah’s laws seem to belie its status as a member of the Kodshim Kalim category.

What, then, accounts for the peculiarities of the Pesah? Pesahim 96a records:

…תנא רב יוסף ג’ מזבחות היו שם על המשקוף ועל שתי המזוזות…

Rav Yosef taught: There were 3 altars there; on the lintel, and on the two doorposts.

The first Pesah sacrifice, which occurred in Egypt just before the exodus, included a requirement to smear sacrificial blood across the lintel and doorposts of the house in which the sacrifice was brought. Rav Yosef understands this smearing as equivalent to the דם נתינת usually performed upon the altars in the Temple. For Rav Yosef, the home is transformed into a Temple on Pesah night; the doors become the altar.

I think that this idea may explain the Korban Pesah’s anomalous features. The Pesah must be eaten within the walls of the home. This, perhaps, is reflective of the home’s transformation into the Mikdash: just as many sacrifices must be eaten within the Temple walls, the Pesah must be eaten within the walls of the home. That the Pesah can be eaten only by those who registered with a particular group may also reflect the home’s special status as a temporary Temple. For many sacrifices only a special cadre, namely Kohanim may partake of the meat. The Pesah may accord a priest-­like status to all those who eat it, such that they may do so only by registering themselves as members of a special group in advance.

Philo of Alexandria articulates this position, writing:

In this festival many myriads of victims from noon till eventide are offered by the whole people, old and young alike, raised for that particular day to the dignity of the priesthood…On this day every dwelling­house is invested with the outward semblance and dignity of a temple. The victim is then slaughtered and dressed for the festal meal which befits the occasion. (Special Laws 2: 145, 148).

On the night of Pesah, the home becomes the locus of ritual service. Though much more could surely be said about this unique phenomenon, it suffices to suggest it as at least a partial explanation for the Korban Pesah’s outstanding features.

Eliav Grossman (SBM 2013)  is a senior at Columbia College majoring in Religion and Philosophy. 

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How and Why We Must Teach Our Children Well

by Rabbi Aryeh Klapper

I put off watching Hotel Rwanda for a long time. This past Tenth of Tevet, in the afternoon, I finally steeled myself and watched it. Not all at once – I needed breaks, and so the movie wasn’t quite done when it was time for minchah. But I couldn’t bear to eat before finishing, so my fast lasted about twenty minutes longer than everyone else’s.

The leitmotif of the film is a radio station playing in the background which constantly refers to Tutsi people as “cockroaches” and encourages Hutu people to commit genocide against them, with devastating success. My mind went constantly to Parashat Shemot, in which the Jews “multiply and swarm”, like insects. (Or locusts – the eighth plague may be a poetically just response to the Mitzriyim’s image of the Jews.)

Now I know full well that there is an attempt to commit genocide against the Jews in (just about) every generation. I also know that it is not only the Jews. Several years ago Gann Academy held an extraordinary assembly in which a Bosnian survivor told stories of longtime friends and childhood playmates turning into genocidal murderers; I hold no brief for Holocaust uniqueness. But the word cockroaches got to me viscerally. What kind of people can be persuaded to regard other human beings as cockroaches?

Here’s the educational problem. The simplest answer is that people who hold such opinions become, or always were, as worthless as cockroaches. How can we appreciate the enormity of their evil without repeating it?

It will not work to say that we despise the sinners, but not their genes. Cockroaches do not spawn chihuahuas, and nothing depresses a Manhattanite more than seeing a baby roach – you know there are thousands more where that one came from.

How do we teach the Book of Exodus so that our children and students really feel grateful for G-d’s rescue, and still have them understand deep in their souls why G-d stopped the angels from singing while the Mitzriyim drowned? How do we allow ourselves to know that Palestinian public culture unambivalently celebrates the murderers of our friends and neighbors and children, and yet not have our children grow up to murder their babies, and then celebrate those murders?

No, it is not good enough if only a few of our children grow up that way, no matter how spectacularly the rest turn out.

Yes, we are responsible for the way all our children grow up. Even those who rebel against us are shaped by our community.

It is absurd to claim that all the good in our community is internally generated, and all the evil the result of malicious external influences. But even if that were plausible, we would still be responsible to develop a pedagogy that would enable our children to resist those influences.

One instinctive response to desecrations of Hashem’s Name such as the “wedding of hate” video is to deny that intellectually reasonable people could read Jewish tradition as endorsing such behavior. The prima facie problem, of course, is that some elements of the tradition seem to very much endorse such behavior.

In response, educators talk about the need for a more comprehensive perspective, so that isolated passages that raise moral challenges do not become philosophic centerpieces. This is very true. But children will never know enough (and most adults do not know enough) to have that kind of perspective, and we cannot easily segregate the tradition into G, PG, and R rated components. For that matter, many teachers, especially teachers of young children, do not have great breadth of knowledge.

In a sense, we are dealing here with the core problem of all philosophy: How do we establish our basic assumptions? We need to acknowledge that such assumptions cannot be proven; they can only be instilled.

The core assumptions of a society are instilled not by the rote repetition of propositional statements but rather by the transparent demonstration of values in action. For this purpose, Talmud Torah is an action, perhaps the quintessential action. We need not just to teach our values, but to teach our texts in a manner that demonstrates our values.

Here is an example. When the “Shimshon” song is sung, (as we must acknowledge it is at Dati Leumi events, including Bnei Akiva gatherings, albeit generally without waving weapons), there is a tendency to replace the “Plishtim” of the verse with “Palestinim.

Now many commentators have correctly noted that this is halakhically illegitimate – the Talmud (Berakhot 28a) rules that “Sancheriv already came and mixed up all the nations,” so that we now accept male converts from the land of Ammon, even though the Torah explicitly states that an Ammonite male may not enter the Congregation of Hashem. And it is true that discrimination against Ammonites is not currently a problem in Orthodoxy.

My question is, however, whether we learn and teach as if this halakhah is true. For example, we translate “Mitzriyim” as Egyptians, even though neither the Torah’s restriction of Mitzri conversion nor it’s prohibition against ‘abominating’ them applies halakhically to contemporary Egyptians. Now I have not heard of anyone making invidious comments about Egyptians on the basis of identifying them with the Biblical Mitzriyim. But when we translate Mitzrayim as Egypt, without using the occasion to explicitly make the caveat that Egyptians are not halakhically Mitzriyim, we undermine our efforts to separate Plishtim from Palestinim.

This is not exclusively an Israeli problem. For example, there is a children’s song in America that translated Amalek as Germans and Ishmaelites as Arabs, and before my wife and I protested, it was taught to our children in both a Chabad and a Modern Orthodox day school.

The impulse behind these identifications is obvious; they create apparent relevance. And we cannot deny that similar identifications are present throughout the Tradition. Perhaps the most common and powerful example is the identification of Christianity with Esav. Contemporary warnings against faith in interfaith cooperation are often accompanied by the citation “It is halakhah that Esav hates Yaakov.”

Historians point out that Esav was identified with the Roman Empire before the conversion of Constantine, so that the identification with Christianity is an accidental outcome (and one which has never really acknowledged the Reformation). Similarly, those who seek to apply Biblical description of Yishmael to contemporary people can never keep straight whether they are talking about Arabs (including Christian Arabs) or rather Muslims (including Indonesians etc.).

What these changes suggest is that – as Chazal said – there is no genetic connection between Biblical and contemporary categories. Instead, there is an ongoing effort to use Biblical categories to interpret lived experience. As with every act of interpretation, this makes human beings responsible for the implications of Torah in this world. In a world where Jews have genuine, although secular power over others, we cannot afford the indulgence of immediate but misleading relevance.

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