Monthly Archives: February 2017

Moral and Other Sevarot

by Rabbi Aryeh Klapper

A fundamental premise and moral of Talmud study – the one lesson without which (in my humble opinion) one has learned little or nothing – is that reason (practical and pure) and revelation need each other.  It is arrogance to believe that one can discover the truths of Torah simply by looking into oneself or by unaided contemplation of the world; it is megalomania to believe that one can understand Torah without the mediation of human intellect.  

Our tradition demands that we develop a dialectical epistemology, an approach to truth that balances and interweaves autonomous investigation with acceptance of the received Word.

Talmud is often taught and learned without explicitly referencing this issue, and “dialectical epistemology” is not a self-explanatory phrase.  So I’ll try to provide in this week’s essay a clear illustration of what I mean.

Bava Kamma 46b records a halakhic dispute between Symmachus and the Sages in the following case:  An ox gored a pregnant cow to death, and the cow was found next to its stillborn calf.  Do we presume that the stillbirth occurred before the goring, or rather that it was caused by the goring?  Symmachus says that the issue is in doubt, and so the gore-r pays half of what he would pay were his responsibility clear; the Sages say המוציא מחבירו עליו הראיה = “The one who wishes to take something away from his fellow has the burden of proof”, and so the gore-r pays nothing.

Several hundred years later, R. Shmuel bar Nachmani asks: What is the Biblical source for the Sages’ principle?  He responded by citing Exodus 24:14.

וְאֶל־הַזְּקֵנִ֤ים אָמַר֙

שְׁבוּ־לָ֣נוּ בָזֶ֔ה עַ֥ד אֲשֶׁר־נָשׁ֖וּב אֲלֵיכֶ֑ם

וְהִנֵּ֨ה אַהֲרֹ֤ן וְחוּר֙ עִמָּכֶ֔ם

 – מִי־בַ֥עַל דְּבָרִ֖ים יִגַּ֥שׁ אֲלֵהֶֽם 

.יגיש ראיה אליהם

To the Elders he said:  

Sit for us in this situation until we return to you

and behold Aharon and Chur with you

whoever is a baal devarim (= plaintiff) yigash (=will draw near) to them

meaning that he will draw-near a proof to them.

R. Ashi then attacks Rabbi Shmuel bar Nachmani’s premise:

!?הא למה לי קרא!? סברא הוא

!?דכאיב ליה כאיבא, אזיל לבי אסיא

Why should a verse be needed?!  This can be derived from sevara (=reason)!?

The one who experiences the pain goes to the house of healing!?

Rav Ashi’s attack appears to be based on the claim that unaided practical reason can reliably derive some Halakhic truths.  The relevant halakhic truth here seems roughly equivalent to “Possession is nine-tenths of the law.”  Since not all halakhic truths can be derived in this way, Revelation is still needed, but only to supplement reason.  We therefore expect Rav Ashi’s attack to be followed by an understanding of the verse as teaching such a supplemental truth, and we are not disappointed:

,אלא קרא לכדר”נ אמר רבה בר אבוה

דאמר רב נחמן אמר רבה בר אבוה

,מניין שאין נזקקין אלא לתובע תחלה

:שנאמר

 – מי בעל דברים יגש אליהם

.יגיש דבריו אליהם

Rather, the verse is needed (as the basis) for R. Nachman in the name of Rabbah bar Avuha,

for R. Nachman bar Avuha said:

What is the Biblical source for the principle that we take cognizance only of the plaintiff initially?

Scripture says:

Whoever is a baal devarim (=the plaintiff) will yigash (=draw near) to them –

meaning that he will draw-near his words to them.

This new conclusion seems unrelated to its predecessor; rather than establishing who has the burden of proof, it establishes a principle of judicial procedure.  However, Rashi draws a connection:

כגון

(ראובן תובע משמעון מנה שהלוהו (בעדים או בשטר

,’ושמעון משיבו ‘תפסת משלי – החזר לי מה שתפסת

או

 – ‘משכון היה בידך ונפחת מדמיו, שנשתמשת בו’

,בתחילה נזקקין לטענת ראובן ומוציאים לו המנה משמעון

.ואחר כך נזקקין לו לטענת שמעון לדון על דבר התפיסה והמשכון

An example (of taking cognizance only of the plaintiff initially) is

Reuven sues Shimon for a mana that he has lent him

Shimon replies: ‘You (illegitimately) seized something of mine –  return what you have seized’

or

‘You had my pledge in your possession and it lost value, because you made use of it’ –

We initially take cognizance of Shimon’s claim and extract the mana from Shimon for him,

and afterward take cognizance of Shimon’s claim to judge the matter of the seizure or the pledge.

According to Rashi, Rav Nachman is not introducing a new axis.  Rather, he introduces a special circumstance in which Rav Shmuel bar Nachmani’s principle is true but its implications are not obvious.  What happens when the defendant counterclaims, and offers to bring proof?  The verse teaches that the burden of proof needs to be met only with regard to specific claims, rather than to the general financial balance between the parties.  To extract money from Shimon, Reuven needs to prove only that Shimon’s owes him, even if the possibility remains that he has equal or greater counter-obligations.  

Rav Nachman’s statement should end the sugya.  Instead, the Talmud cites an astonishing coda:

:אמרי נהרדעי

.פעמים שנזקקין לנתבע תחלה

.והיכי דמי? דקא זילי נכסיה

The Nehardaens say:

Sometimes we take cognizance of the defendant initially.

When is that?  When his assets are losing value.

Rashi provides two illustrations of losing value.  

  1. when Shimon has a deal in place to sell the object he is counterclaiming from Reuven.  
  2. when Shimon is under financial pressure and will have to sell his real estate at a below-market price in order to pay Reuven.  

The common denominator of these cases is that the Nehardeans disregard R. Nachman’s clarification when they see it as generating injustice, despite its Biblical derivation, and even though their standard of injustice is derived solely from intuition.  What entitles them to do this?

With this question in hand, let us return to Symmachus and the Sages, and ask an almost opposite question.  If the Sages’ principle is so obviously true that no verse is needed to teach it, how could Symmachus disagree with them?  

The answer is that Symmachus also addressed a special case.  How heavy is the burden of proof?  In many areas of halakhah, a probabilistic argument (=rov) is sufficient – if it can be demonstrated that possibility X is more likely than possibility Y, halakhah will treat X as true.  Symmachus held that such a demonstration was also sufficient for the purposes of extracting money, but the Sages disagreed.  (Perhaps the Sages believe that Revelation is needed to overrule Symmachus.)

ROSH (Bava Kamma 5:1) collects several interpretations that disagree with Rashi’s.  Rabbeinu Tam, for example, thinks that Reuven’s claim must be for personal injuries rather than property damage, and ROSH thinks that in such a case Shimon doesn’t even get the standard 30-day stay of judgment to collect exculpatory evidence.  RIVA interprets “taking cognizance of only the plaintiff initially” as meaning that the plaintiff gets to put his full case on before the defendant rebuts, and wins the case even if the defendant plausibly claims that his witnesses died or left town owing to the delay.  RAAVAD interprets it as giving the plaintiff the right to suspend his case indefinitely without prejudice, even if the defendant asks for a verdict.  

What matters for us is ROSH’s summary comment:  

וכל הני פירושי סלקי אליבא דהלכה

:דסברות גדולות הם

All these interpretations come out in accordance with the halakhah,

because they are in great accord with reason (=sevarot gedolot).

What sort of reason?  Remember that Rav Ashi gave what appeared to be homespun wisdom via analogy – the burden of proof is on the plaintiff, as why should the healthy party (=the party in possession) go to the doctor (=beit din)?  Shitah Mekubetzet cites Rav Yehonatan as offering a very different interpretation:

כלל גדול נתן משה רבינו עליו השלום לשבעים זקנים ואהרן וחור

שלא ידינו שום אפוקי ממונא בדעת מכרעת וברובא

.אלא בראיה

סברא הוא דכאיב ליה כאיבא אזיל לבי אסיא

,לא היה צריך משה להזהירן

,דפשיטא הוא דלא גרע דין אחד ממשפט הרופאים

שאין הרופא דן את החולה לפי סברתו לבדו

,’עד שאומר לו החולה ‘ראשי כבד עלי ובמקום פלוני’, ‘ומשתנה עלי במקום פלוני למקום פלוני

ולפי שהוא מראה לו פנים הוא דן אותו

כך התובע צריך להראות לו פנים שתביעתו חזקה וברורה

.כלומר בעדים

Mosheh Rabbeinu of blessed memory gave a broad principle to the seventy elders and Aharon and Chur

that they should not extract any money judicially on the basis of compelling reason or probability

rather (only) via proof.

But (Rav Ashi held that) “the one who experiences the pain goes to the house of healing”

and therefore Mosheh did not need to command them about this,

since it is obvious that legal judgement does not require less care than medical judgement,

and a physician does not judge the patient on the basis of his unaided reason

rather he waits for the patient to say “My head is heavy and hurts in that place”, or ?

and he judges in accordance with what the patient makes apparent to him

so too the plaintiff must show that his claim is strong and clear,

namely via witnesses.

According to R. Yehonatan, reason teaches that one cannot extract money on the basis of reason alone!

Bottom line: Reason can be a source of halakhic truth.  When this appears to make a verse of Revelation redundant, we may interpret that verse as limiting or countering the halakhic truth derived from reason.  But this does not shake our underlying epistemological faith in reason, so we may limit that limit on the basis of reason.  This cycle can and should be iterative.  Shabbat shalom.      

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The Hidden Relationship of Kibbud Av Vaeim

This week’s alumni Dvar Torah is by Rabbi Joshua Strulowitz

Shemot 21:17 and 21:19 discuss special obligations toward parents.  An adult child who hits or curses his parents is liable for the death penalty. Sandwiched between these two pesukim is a statement that one who kidnaps and sells any other human being is liable for the death  penalty.

This is a bizarre juxtaposition. Why is kidnapping placed in a section focused on honoring one’s parents?

Talmud Kidushin 31 presents several archetypes of kibbud av vaeim (=honoring parents). Dama ben Netinah famously refuses to wake his father despite the severe financial consequences for showing such a high level of deference to his father’s needs (Kiddushin 31a).  Rabbi Tarfon would kneel by his mother’s bedside, allowing himself to be stepped on to ease her climbing in and out of bed – and the Talmud concludes that his dedication was insufficient, and the mark of aqequate kibbud av vaeim is standing by quietly as one’s mother throws one’s money into the sea.   The message seems to be that the way we directly treat our parents is the most important aspect of our fulfillment of kibbud av vaeim.

The great  Spanish sage Don Isaac Abarbanel (1437-1508) uses the juxtaposition between kidnapping and honoring parents to modify this message.  He explains that the prohibition against kidnapping and selling another is inserted as a subtle reference to Yosef and his brothers, whose sibling rivalry tore their family apart and caused unspeakable pain to their father.  

Abarbanel’s method of interpretation here is fascinating and creative. He reads a halakhic verse as an allusion to a story, and and then learns a Halachic principle from the story.

Sibling relationships are often a volatile mixture of love, respect, jealousy and resentment. One might think that these relationships are voluntary commitments. One can embrace them as long as they remain positive and beneficial, but one has the right to discard them if the relationship goes south.

Abarbanel understands the reference to Yosef as the Torah’s way of teaching us that these complicated relationships are not optional. They are part and parcel of the mitzvah of kibbud av vaeim. As much as it means for parents to have children who show them love and respect, it is often just as important for them to see their children treat each other the same way. Often parents get no greater pleasure than seeing their children have a close bond, be it in childhood or adulthood.

After Yaakov’s passing, Yosef’s brothers become nervous. The Torah states (Genesis 50:15)

וַיִּרְאוּ אֲחֵי יוֹסֵף כִּי מֵת אֲבִיהֶם וַיֹּאמְרוּ לוּ יִשְׂטְמֵנוּ יוֹסֵף וְהָשֵׁב יָשִׁיב לָנוּ אֵת כָּל הָרָעָה אֲשֶׁר גָּמַלְנוּ אֹתוֹ

And Joseph’s brothers saw that their father had died, and they said,  “Perhaps Joseph will hate us and return to us all the evil that we did to him.”

The brothers assume that the only reason Yosef never enacted revenge against them was out of a commitment to kibbud av.  Yosef kept up the appearance of a positive relationship with his brothers for his father’s sake. After Yaakov dies, the brothers concoct the story that Yaakov gave them a message to tell Yosef not to harm his brothers. They understood how central the brothers’ relationship was to kibbud av, and assumed that keeping it in that context was the best way to restrain Yosef.  Abarbanel’s reading suggests that they may have been correct.

Our relationship with our siblings can be the greatest manifestation of kibbud av vaeim. But taken to its logical end, Abravanel challenges us to ask ourselves how all the relationships in our life impact our parents and our obligation to honor them.

 

Rabbi Joshua Strulowitz (SBM 2000) is a member of the faculty of Yeshiva University High School for Girls.

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Creativity and Avodat Hashem

Based on a lecture by Rav Michael Rosensweig.  Rav Rosensweig’s later written version was published as Personal Initiative and Creativity in Avodat Hashem” in The Torah U-Madda Journal Vol. 1.

This summary, by Aryeh (Robert) Klapper, was originally published in Hamevaser, Iyar 5748/May 1988)   All errors of formulation, fact, etc, are Rabbi Klapper’s.

In the beginning, God performed the utterly inimitable creation ex nihilo, out of nothing.  Yet man is required to emulate all of His ways – “lehidamot lo kemah she’efshar”, “to be similar to him to the extent possible”.

Creativity and submission clash constantly in Jewish thought.  “One should not rely on miracles”, but Ramban claims that each moment of existence is a hidden miracle.  Prayer and Kabbalah are means of “affecting” the Divine, but both are aspects of avodat Hashem (service of G-d).  And finally, “No one is free except those who have accepted upon themselves the yoke of heaven.”  From that paradox, the necessary synthesis emerges.  Human beings must create, but only for the greater glory of G-d.  And we must realize that we can at best rediscover Divine truths or develop our own tzelem Elokim (Divine image); we can but transform the yesh G-d brought into being.

Rav Yosef Dov Soloveitchik teaches in Lonely Man of Faith that human beings have a religious obligation to create in both the physical and metaphysical realms, to build the world physically, spiritually, and even aesthetically.  And while the rigid Halakhic system limits human autonomy greatly, unmoderated inflexibility leads to the ritualism Yeshayahu denounced and the legalism so often criticized today.  Judaism must provide a way for human beings to achieve a personal relationship with G-d.

Gershom Scholem writes that every religion creates mysticism in reaction to increasing formalization, surviving undivided if the formal structure allows accommodation.  Kabbalah, however, is neither accessible nor attractive to all.  And extra-halakhic religious systems hold the danger of subjectivism, which Rav Soloveitchik teaches in Halakhic Mind is actually self-worship.

Torah provides several non-mystical outlets for human creativity within the halakhic system.  Sefer Hachinukh, for example, believes circumcision to be an act of self-perfection, and possibly the mitzvah of “zeh keli v’an’veihu”, of beautifying mitzvot, allows human beings to redefine cheftzot shel mitzvah, mitzvah-objects.  Rambam in his Commentary on the Mishnah explains that God gave the Jews many mitzvot so that each would find one to excel in and be particularly inspired by.  The permission of tefillas n’dovoh, voluntary prayer, provides similar opportunities to personalize religion.  Finally, most rishonim encourage the search for ta’amei hamitzvot. rationales for commandments.  Sefer Hachinukh among others believes that each commandment has multiple reasons, enabling each Jew to personalize their kavannah while performing it.

The Yerushalmi extends the tension between creativity and submission to the realm of talmud Torah“Kol mah she’atid talmid vatik lechadesh k’var ne’emar l’moshe misinai”, “Everything a veteran student will originate in the future was already said to Moshe at Sinai”.  The tradition is both vast and rigid.  But it also contains ample evidence of individual contribution.  “Chayav adam lomar davar b’shem omro”, one must identify the Torah one has learned with the one who taught it.  The dialectic method pioneered by the Ba’alei haTosafot revolutionized Talmudic studies in the Middle Ages, as did the pilpulists in the fifteenth century and Brisk in the nineteenth.  Various scholars of the fifteenth and sixteenth centuries claimed that Eliyahu haNavi had revealed himself to them, giving their works a legitimate source outside the received tradition.

David Singer and Moshe Socol recently argued in Modern Judaism that the Rav’s description of his grandfather as a revolutionary resulted from the influence of modernity on his thought, that chidush is actually antithetical to halakhah.  Their position was considered and rejected by the Tanna Rabbi Elazar ben Azariah, who once asked his students “Mah chidush ne’emar hayom?”, “What of originality was said today?”  They replied in surprise “v’halo talmidekha anu?”, “Are we not your students?”  How can we say anything that you have not already heard?  And he told them: “There cannot be a House of Study without chidush”.  The Yerushalmi itself believes that a veteran student can be mechadesh.  Yet the concepts of mesorah and y’ridas hadoros (continuous decline of the generations dating from the Sinaitic Revelation) would seem to exclude any sort of development or progression.

Judaism solves the creativity-submission conflict by incorporating chidushim into the Mesorah.  A talmid vatik can be mechadesh, but the chidush is valid only insofar as it can be included within the Sinaitic revelation, only to the extent that it is rediscovery.  

This solution does not, however, account for the concept of “eilu v’eilu divrei Elokim Chayim”, “These and those are the words of the living G-d”.  The Talmud applies this concept to directly contradictory opinions.  Such opinions cannot be contained within an ordinary tradition.

But the Mesorah is no ordinary tradition.  The Mishnah tells us that every word heard at Sinai divided into seventy voices, that multi-dimensionality was built into the Mesorah at its start.  When Moshe Rabbeinu went up to the heavens, he saw the Heavenly Court developing forty-nine reasons for both permission and prohibition on ritual issues, and he was told “nims’ru lechakhmei yisrael vehahakhra’ah k’mosam”, “They have been given to the sages of Israel, and the decision is theirs”.  Maharal believes that all opinions arrived at by legitimate methods on halakhic issues have significance, albeit those accepted lehalakhah have more; each issue has “aspects of tum’ah and aspects of taharah”.  And Ritva believes in multiple truth, that somehow mutually exclusive opinions on halakhic issues can be true simultaneously.

The justification for this fragmentation of tradition is Judaism’s acceptance and validation of the uniqueness of every human being.  The Mishnah tells us that because of that uniqueness, “chayyav kol Adam lomar: ‘bishvili nivra haolam’”, “Every human being must say: ‘The world was created for me’”.  And Tanchuma points out that individuality is more than skin deep: “Just as their visages differ from each others’, so do their minds”.

If initiative is permitted, then it is obligatory; imitatio dei cannot be disregarded in talmud Torah, the most spiritual activity of all.  The passion of the Beit Hamedrash, “milchamtah shel Torah”, derives from the religious nature of the intellectual battle in Torah.  But again the emotion and the creativity must be within the system: “afilu av uvno v’rabi v’talmid bish’as limud na’asim oyvim v’eynam zazim misham ad shena’asim ohavim”, “Even a father and son or Rav and student become enemies during study, but do not leave (their studies) until they become friends”.  The words of Torah are “ever-multiplying” yet “fixed as driven nails”.  Chidushim are valid only insofar as they possess both characteristics.

Perhaps the most poignant testimony to the value of human initiative in Torah comes from the Vilna Gaon, who turned down a dream-maggid’s offer to teach him the entire Torah effortlessly.  But throughout Jewish history scholars have defended man’s right and need to earn the Torah and make it his own.  Geonic opponents of codification argued that its costs outweighed its benefits, that preventing misinterpretation was not as important as making sure people learned the original sources.  The Maharal’s brother protested the Shulchan Arukh on Tanchuma’s grounds; as people’s minds differ from one another, each can extract something unique and valuable from halakhic texts.  The Maharal in Netivot Olam railed against those who pasken from sifrei psak (handbooks of halakhah) without checking the original sources.  “Ein l’dayan ela mah she’eynav ro’os”, “A judge cannot take into account anything other than what his eyes see”; psak given from secondary sources is a case of the blind leading the blind.

The abuses feared by opponents of codification have never been more evident than in our era, in which reliance on summaries and English “how-to” books, and to a lesser degree on the Mishnah Berurah, have made the Magen Avraham and even the Taz obsolete.  Sadly, never has the need for such reliance been more widespread.  Yet specific historical eras encourage sensitivity to certain issues, and we must believe that our generation has something unique to contribute.  If this seems presumptuous of us, if we are accused of ignoring the concept of y’ridas hadoros, our response must be an abiding faith in the progression of ideas and the unfolding of mesorah.

Even those less experienced and less talented are valuable links in the chain of mesorah.  Individual responses are important in both lomdus and hashkofoh, and the inevitable subjectivity created by the order and amount of the posek’s exposure to sources plays a legitimate role in psak.  But one must constantly challenge his or her own objectivity to avoid subjectivism and self-worship.

Not all ideas about and in Torah are worthwhile.  Tosafot denounces “charifus shel hevel”, “worthless sharpness”, as does Maharal “pilpulo shel hevel”.  Capacity to be mechadesh requires a minimum level of knowledge, method, and the parameters of conceptual plausibility in halakhah and machshovoh, plus exposure to real and textual rebbeim.  But given those conditions, every Jew has the right to view themselves as a potential contributor to and transmitter of the Mesorah.  We have the obligation to pursue truth with passion yet with the utmost respect for our predecessors in the eternally unfolding Mesorah.

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The Decalogue in Rabbinic Literature

This week’s alumni Dvar Torah is by Dr. Malka Simkovich

This week’s parsha features a passage that in many ways, is the most central document in Israelite history. This passage, Exodus 20:1–13, is known as the Decalogue, or The Ten Commandments (although some of these commandments are actually statements). In the centuries following the dramatic moment of divine revelation at Sinai, the Decalogue took hold as the central articulation of Israelite theology.  Its contents, along with the ethical injunctions in Vayikra 19, were paraphrased and referenced in many passages preserved in biblical prophetic literature. And by the Second Temple period, the Decalogue was not only a central idea, but a liturgical document.  Despite its importance in the biblical and late Second Temple periods, the Decalogue is not preserved in rabbinic liturgy. Nor is it of central theological interest in rabbinic literature. While its verses have retained an important place in Jewish tradition, they have also been eclipsed by a different statement, one uttered not by God,  but by Moshe. This passage is, of course, the Shema (Deut 6:4–9). In order to understand why the Shema came to replace the Decalogue, it is helpful to explore how Jews and early Christians living during this period related to this text.

In the Second Temple period, the Decalogue had pride of place in Jewish thought and liturgy. Tefillen discovered at Qumran, the archaeological site adjacent to the caves where the Dead Sea Scrolls were discovered, contain parchment that records both the Shema and the Decalogue. These tefillen were likely used in the first century BCE or first century CE, when the Qumran sect flourished. Other Jewish documents written during these two centuries also mention the Decalogue. The Sentences of Pseudo-Phocylides, a wisdom text that was written in Greek by a Jew who probably lived in Alexandria, Egypt, opens with a paraphrasing of the Decalogue: the writer mentions every injunction of the ten commandments except the proscription to keep the Sabbath (Pseudo-Phocylides, 1–18).  A second document, which is part of a twelve-book collection probably written and assembled by Jews in the late Second Temple period called The Testaments of the Twelve Patriarchs, also paraphrases the Decalogue (Testament of Issachar 5:1-5). Even the great first century CE Jewish Philosopher Philo of Alexandria was fascinated with the Decalogue: he wrote an entire treatise devoted to interpreting it.

Early Christian documents whose authors had not fully severed their ties to Judaism refered to the Decalogue as an authoritative text that was foundational to their faith. The early Christian text written in Greek known as the Didache, was written in the late first or second century, cites the twelve apostles of Jesus as paraphrasing the Decalogue to their students. Likewise, the third century Christian document called the Didascalia, which also purports to record the teachings of the apostles, does the same (Didache 2:1–3; Didascalia 26:9–10).

But by the early rabbinic period, the Decalogue was falling out of favor in some Jewish circles. Even as Christians were making reference to the Decalogue, Jews were disputing whether to recite it regularly in their synagogues.

The decision to stop reciting the Decalogue after the Shema is well documented. The Bavli explains that the daily liturgy used to comprise the Decalogue, the Shema, and the Amidah, but the recitation of the Decalogue was abolished because of the heretics (minim) (b. Berakhot 12a). Perhaps the concern was that the heretics would argue that the recitation of the Decalogue proved that only the portions of the Torah that the Israelites heard directly from God were true (Rashi on Berakhot 12a). Or perhaps the rabbinic concern was that reading the Decalogue would affirm sectarian claims that only the Written Law was authoritative, whereas the Oral Law was not. But these explanations do not explain why the Shema continued to be recited. After all, the Shema is part of the Written Law as well.

Perhaps the reason why the Decalogue fell out of favor in lieu of the Shema is that for the most part, the Decalogue comprises ethical instructions that, with the exception of the injunction to keep the Sabbath, all of humankind are expected to observe, whereas the Shema is a theological statement that affirms the election of Israel by God. By the early rabbinic period, the seven Noahide laws had taken form  which included some of the statements of the Decalogue (t.Abodah Zara 9:4; b.Sanhedrin 56a; earlier articulations of these laws in the second century BCE document Jubilees 7:20–21, as well as Sibylline Oracle 4:24–39, a document probably composed in the late Second Temple period). This led towards a sense that the Decalogue had universalist elements in it.

Even the mention of the Sabbath in the Decalogue would not have necessarily been viewed by the rabbis as particularistic. In the Roman period, many Gentiles observed the Sabbath without converting to Judaism. These people were called God-fearers (see, for instance, Juvenal, Satires, 14.96–106). The Decalogue, then, may have been viewed as potentially applicable to all of humankind from start to finish.

A second difference between the Decalogue and the Shema is that the Decalogue is a document that was spoken by God, whereas the Shema was spoken by Moshe. The Shema, then, represents the affirmation of all Israelites to commit themselves to a covenantal relationship, whereas the Decalogue represents the divine injunction to do so.

Given the fact that the Decalogue has been subjugated to the Shema, how might we appreciate its importance in our tradition today?

I believe that both the Decalogue and the Shema are foundational to Jewish thought. At the moment that the Israelites were leaving Egypt and making the transition from slavery to freedom, they needed to hear a universalist message: a message that while they were chosen by the One True God to be His elect people, this same God that had just chosen them had jurisdiction over the entire world. Indeed, the major trope of the Exodus story is that God controls the entire earth (see, among others, Exodus 8:6, 8:18, 9:14, 9:29, 10:2, 14:1, 14:18). Forty years later, a new generation of Israelites on the cusp of entering into Israel needed to hear a different message: As they entered the an unknown land, aware that they were embarking on inevitable military conflicts and the loss of their main conduit to God, Moshe, the Israelites needed to hear that God was committed to a relationship with them that, while it could include suffering as punishment for sins, would endure for perpetuity.

The community of Israelites who entered the land of Israel and their descendants held fast to the idea that God was committed to an eternal relationship with them. This relationship was reflected in the relational text of the Shema, in which the Israelites affirmed that God was our God, rather than the Decalogue, which affirmed that God was the God—the God who had taken the Israelites out of Egypt. Since the Decalogue was spoken by God and the Shema was spoken by Moshe, the Shema represented the Israelite side of the covenantal relationship—the side that required the Israelites to continually affirm their identities in light of their connection to God.  

The rabbis understood that the Decalogue and the Shema were given at different turning points in Israelite history, bore different theological messages, and reflected two different voices. Aware that non-rabbinic communities were espousing views that they regarded as heretical, and that these same communities were laying claim to their holy texts, the rabbis turned to the document that they believed represented their own voice, and their own commitment to serving God, rather than the voice of God that proscribed them to do so.

Shabbat shalom!

Dr. Malka Simkovich (SBM 2006) is an Assistant Professor of Jewish Studies at Catholic Theological Union in Chicago.

 

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Theology of Miracles

This week’s alumni Dvar Torah is by Ariel Kelman

The default understanding of miracles should be that they are supernatural. After all, that’s what distinguishes a Miracle from a lucky event. While this topic has received much attention, particularly through the lenses of Rambam and Ramban; throughout my religious education miracles have often been presented from a naturalistic perspective – as events consistent with natural cause-and-effect that simply seemed incredibly unlikely at the time they occurred. Why the tendency toward naturalistic explanations?

Given the success of modern science, religion – when it engages with modern science, as I believe it should – occasionally reacts to the increased scope and success of scientific theories by adopting a posture that credits God with creation of the laws of nature, but removes Him from its daily workings. Sure, on a metaphysical level, Hashem’s will to keep the world going may be necessary – but miraculous interventions!? That would go against empirical science – a big no-no for a modern Jew.

According to this view, adopting a naturalistic understanding of miracles implies a ‘greater’ God than if He performed miracles – the naturalist contends that His work is so perfect that it doesn’t need any tweaking.

Yet the naturalistic approach misses out on something crucial. At rock bottom, there can be no difference between a “small” miracle and a “large” one – if the causal order has been broken, what difference does it make? So if there is any Divine intervention in the world, then we must acknowledge that it cannot be part of the natural order – in fact, that is almost true by definition.

It cannot be denied that the world does seem to operate like clockwork – and even the Torah occasionally emphasizes the natural side of a miracle. As Shadal points out (Shmot 14:21), what was the need for a nightly wind if the entire splitting of the sea was miraculous? Still,the phrase והמים להם חומה מימינם ומשמאלם should put to rest any doubt about whether the splitting of the sea did violate the ‘laws of nature’.

So how are we to view ancient miracles? It seems to me that the “peshat” of a miracle is just that – a non-natural occurrence. And given that I do not see a compelling way to negate this idea in a religiously consistent manner, I’d be loathe to give that up.

But the real challenge presented by this issue is more fundamental. If we had all been witness to an obviously supernatural miracle, it’s fairly unlikely we’d be tempted to naturalize them. But while, for example, the Six Day War was a tremendous and ‘miraculous’ victory, it is not a demonstration of the obvious nature-breaking power of God. The religious zionist sees God’s hand at work as a result of being a religious zionist, rather than an atheist coming to God through the miracle. The inherent nature of the victory is not enough to inspire absolute confidence in God’s ultimate power, as יצאית מצרים did, both for our ancestors and the Egyptians.

When we formulate a religious outlook and tackle the idea of miracles, we should be clear about what a miracle means. I don’t think that Biblical accounts of miracles can be explained naturalistically, and see insufficient reason for doing so; but as with every issue, argument will enrich our understanding. Hopefully these ideas stimulate a deeper discussion, crucial to forming a rich perspective on the theological topics we encounter while reading and learning Torah.
Ariel Kelman (SBM 2016) is currently studying engineering at University of Toronto.

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Devorah as Shofetet: Exception or Paradigm?

by Rabbi Aryeh Klapper

In his magnificent introduction to the Sheiltot d’Rabbi Achai Gaon, Rabbi Naftali Tzvi Yehudah Berlin (Netziv) describes two models of halakhic development.  One model, which he identifies with the tribe of Levi, works pointilistically and intuitively.  It sees each circumstance and set of facts as unique and seeks a religious response that addresses that uniqueness.  The second model, which he identifies with the tribe of Yehudah, looks to build general principles and abstractions that apply to all circumstances and all times.  It seeks to respond religiously to the universal aspects of particular experience.   

Please understand the importance of Netziv’s contention that each of these are halakhic approaches.  Many other thinkers present similar binaries but see them as fundamentally opposed.  What Netziv calls the Levite model, they present as antinomian aveirah lishmoh, sinning for the sake of Heaven.  They make the compelling argument that the entire purpose of law is to subsume the particular into the general, to produce rules.  There may be circumstances where the rules should or must be broken, but in such cases, we should honor law by acknowledging the breach rather than claim that the law can bend far enough to accommodate our actions.

By framing intuitive, situation-specific responses as a mode of halakhah – indeed, as the proper mode of the posek as opposed to the lamdan – Netziv rejects this approach entirely.  

We might reasonably suggest that Netziv’s own approach is intended to expand the reach of law and domesticate intuition.  If halakhah validates situation-specific religious responses, how could there possibly be room left for aveirah lishmoh?  

But the truth is that Netziv has the most radical and pervasive understanding of aveirah lishmoh in the Mitnagdic world.  His bon mot was that one must always consider the benefits of a mitzvah (an action mandated by halakhah) against its costs, and the cost of an aveirah (an action forbidden by halakhah) against its benefits, because sometimes fulfilling the mitzvah isn’t worth its costs, and sometimes violating the aveirah is worth its costs.  

Why should a halakhah that relates to situations in their particularity ever generate counterproductive mandates or prohibitions?

I think Netziv must distinguish between mediated and unmediated religious intuition.  The posek’s intuition is mediated by halakhah, and must produce law.  

Perhaps Netziv imagines a sort of religious state of nature, in which each individual human being reacts to every situation in accordance with their direct perception of Divine Will.  The problem is that the Divine Will may be different for you than for me.  In Maimonidean terms, for example, my character might best be developed by cultivating uncritical generosity, while you need to overcome the culpable naivete that leads you to donate large sums to fraudulent charities.  So the religious state of nature does not enable the building of a religious society, and since human beings are social creatures, it follows that the state of nature does not enable human fulfillment.   We therefore need a religious social contract.  Cue Sinai; enter the Torah.

Social contracts require individuals to exchange the right to make some choices (“freedom from”) for the ability to make other choices (“freedom to”).  We retain the ability to make choices that we no longer have a right to make, and sometimes we may have the obligation to exercise that ability (aveirah lishmoh).  By organizing as a society, we gain the ability to make new choices that are simply wrong, such as limiting the autonomy of others unnecessarily.

Social contracts are based on principles that harden into rules, and rules harden into laws.  Netziv argues that this must be an iterative process.  One class of halakhists (lamdanim) constantly draws perfectly straight lines connecting previously decided halakhic points, and then argues that the lines define the boundary of the acceptable; another class (poskim) recognizes that an infinite number of curves can be drawn between two points, and contends that the existing pattern of halakhic points does not justify an overwhelming preference for simplicity.  The lamdanim must constantly revise their models to account for new points decided by the poskim, and the poskim must stay within lines that have already hardened.  Great poskim recognize that lines are two-dimensional, which is to say that they can only create boundaries within a single plane.  If we acknowledge the existence of infinite dimensions, then, the lamdanim can never fully constrain the poskim.  But the vast majority of us live in a much less exuberant religious geometry.

This tension can be illustrated within midrash halakhah by comparing the terms “binyan av” and “chiddush”.  Categorizing a legal detail as a binyan av lets one generalizes it to a broad range of halakhot beyond its original context; categorizing it as a chiddush confines it to its original context, and biases one toward defining that context narrowly.  The only difference between a binyan av and a chiddush is that the former seems intuitive and the latter seems counterintuitive.  

Lamdanim generally have a bias toward seeing things as binyanei av, whereas poskim are more willing to categorize them as chiddushim.  But there is at least one exception to this tendency.  Points that are halakhic outliers, but that have great appeal on non-halakhic grounds, will often be generalized by poskim and minimized by lamdanim.

This brings us to the case of Devorah the Prophetess.  There is no question that existing halakhic lines appear to be drawn with the intention of limiting women’s leadership roles.  There is also no question that Devorah led, and more particularly, that she functioned as a judge.  This is true even if one concedes that “shoftim” means political leaders rather than judges, since ויעלו אליה כל ישראל למשפט clearly means tht all Israel went up to her for legal judgement.

The simplest way of drawing the lines is to “chokify” Devorah, to say that she was an exceptional case that has no implications for the halakhot of leadership – she was in essence a living aveirah lishmoh.  This is where lamdanim pull out their literal deus ex machina, namely על פי הדבור שאני – Devorah functioned on the basis of an explicit Divine decree that suspended all the ordinary laws regarding women.  

An alternate approach is to say that the case of Devorah teaches us that the lines we had in mind are wrong, and we were drawing them on the basis of way too little halakhic data.  מקרא מלא אומר והיא שפטה את ישראל – an explicit and perfectly straightforward verse says that she served as a judge.  We might go further and seek to chokify any undeniable halakhic restrictions on women’s leadership, while generalizing the example of Devorah to the extent we can.

This is not a new conversation.  Tosafot record both options, and each reverberates throughout the subsequent rishonim of both Ashkenaz and Sefard.  But more immediately, each found new and enthusiastic exponents during the early years of religious Zionism.  For example, in 1920 Rabbi Yaakov Levenson published a book called שוויון נשים מנקודת ההלכה = The Equality of Women from the Halakhic Point of View, which enthusiastically argued that the restrictions in Rambam had essentially no applications in a democratic society.  Rabbi Levenson was Chairman and then President of American Mizrachi.  See as well the respectful but strong disagreement expressed by Rabbi Yosef Kanovitz of Toronto, President of the Agudat HoRabbonim of the US and Canada, and Rabbi Levenson’s equally civil response.  Note particularly that the full exchange was published originally by Rabbi Levenson in his התורה והמדע and then included in Rabbi Kanovitz’s posthumous collection דברי יוסף.

In this ongoing conversation, I have a quite strong opinion, which largely tracks that of Rabbi Levenson in practice.  I think it is correct to say that on the immediate issue he addressed, which was women’s suffrage, there is now a practical halakhic consensus in his favor, and any line-drawers must take that into account.  I think it is generally better not to draw lines than to draw absurd lines; hence my rejection of positions that allow Golda Meir to be Prime Minister of Israel but not President of a Young Israel.  

I don’t think that halakhah should be decided by projections of historical trends, and there certainly remain areas of leadership about which reasonable and responsible halakhists and halakhic communities can differ passionately.  For the time being, there will be shuls of observant Jews who eagerly seek the public presence of women as religious leaders, and others who sincerely find that presence to be a violation of the halakhic ethos, and still others where the issue will cause constant tension.  But the examples of Rabbis Levenson and Kanovitz should show us that there is no reason, and perhaps no excuse, for making those passionate differences the cause of Orthodox schism.  Let us rather try genuinely to convince each other.

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On the Mechanics of Skipping

This week’s alumni Dvar Torah is by Pnina Grossman

Parshat Bo is where the Jewish people are given their first commandments as a new nation. They are commanded about the קרבן פסח – the Passover Offering – that they must bring in Egypt for the first time. During this time, G-d will be carrying out the last of the 10 Plagues in Egypt, but the blood that was to be spread on the doorposts of Jewish houses would also serve as their protection:

וְעָבַ֣ר יְהוָה֮ לִנְגֹּ֣ף אֶת־מִצְרַיִם֒ וְרָאָ֤ה אֶת־הַדָּם֙ עַל־הַמַּשְׁק֔וֹף וְעַ֖ל שְׁתֵּ֣י הַמְּזוּזֹ֑ת וּפָסַ֤ח יְהוָה֙ עַל־הַפֶּ֔תַח וְלֹ֤א יִתֵּן֙ הַמַּשְׁחִ֔ית לָבֹ֥א אֶל־בָּתֵּיכֶ֖ם לִנְגֹּֽף׃

(שמות יב:כג)

For when the LORD goes through to smite the Egyptians, He will see the blood on the lintel and the two doorposts, and the LORD will PaSaCH the door and not let the Destroyer enter and smite your home.

(Exodus 12:23)

While the word פסח is often translated as “pass over”, its translation in this context is not clear to many of the commentators. Rashi explains the word as either “to have mercy on” or “to skip.” R. Amnon Bazak (as heard in a class in Machon Herzog) ties the two terms together with the observation that skipping involves not only the object that is passed over, but also an object that is landed on. Here also, the Jewish houses are not being passed over, they are being landed on. The Midrash in שמות רבה seems to support this idea. On the words “וראה את הדם,” it says “כביכול עמד בפתח ודוחה המשחית, שלא יגוף את ישראל” “If one could say such things, [G-d] will stand in the doorway and push out the Destroyer, so that it cannot strike Israel”.

This interpretation completely shifts the role G-d plays in this plague, as well as how He relates to the Jewish people. Instead of G-d’s main role being to go through Egypt as a destructive force, avoiding Jewish houses to not cause damage, He is, instead the protector of the Jewish people from the destructive force that is present throughout Egypt on this night. “To have mercy on” here is not a passive act of sparing Jewish households, it is an active stand on G-d’s part to choose and protect the Jewish people.

With the talk of skipping, it is unsurprising that מכילתא דרבי ישמעאל links this point with the פסוק in שיר השירים:

ק֣וֹל דּוֹדִ֔י הִנֵּה־זֶ֖ה בָּ֑א מְדַלֵּג֙ עַל־הֶ֣הָרִ֔ים מְקַפֵּ֖ץ עַל־הַגְּבָעֽוֹת׃

(שה”ש ב:ח)

Hark! My beloved! There he comes, leaping over mountains, Bounding over hills.

(Song of Songs 2:8)

The Midrash comments here “שהקב”ה מדלג על בתי בני ישראל במצרים, שנאמר קול דודי הנה זה בא מדלג על ההרים…” “That G-d skipped on the houses of Israel in Egypt, as it says ‘Hark! My beloved! There he comes, leaping over mountains…’” In addition to bringing up the two ideas of G-d taking mercy on the Jews in Egypt and skipping on their houses, the Midrash ties the idea of חפזון, hurriedness, to this part of שיר השירים. This idea is mentioned in שמות as well, when it talks about how the Jews have to eat the קרבן פסח, but here, the verse is used to talk about the hurriedness of the שכינה. Once again, we see G-d’s investment in this new developing relationship as He tells us: בא.

Pnina Grossman (SBM 2012) is a Sharon native and a current student at the City College of New York studying Mechanical Engineering.

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