Monthly Archives: February 2018

Installation and Sanctification

This week’s alumni Dvar Torah is by Rabbi Dan Margulies

The process of installing the kohanim included two separable elements: lemale et yadam—”to install them into an office”, and lekadesham—”to make them holy”.   The installation thus reflects the kohanim’s dual role: they occupy an office and perform functionary duties, and they have an elevated holy status among the nation that enables them to serve a bi-directional conduit between the people and God.

Which parts of the miluim play the role of installing the kohanim into their office, and which play the role of imbuing them with added holiness?

The usual way to make something holy is to approximate something else which is already holy, as we find in our parasha, “what/whoever touches the altar will become holy” (Shemot 29:37), as well as in the process of designating a sacrifice by declaring “it is for God” or in taking a vow prohibiting some object “like a sacrifice.”

That explains why the miluim require such an extensive menu of sacrifices, why the kohanim need to serve in the mishkan for a week (without leaving), and why they are daubed with the blood of the sacrifices.  All these were part of lekadesham.

In contrast, there is no clear paradigm in Chumash for investing someone into office (although the process of installing the kohanim may become a pattern for the future.). We can suggest that those processes which do not seem to fit the hakdashah process, such as clothing the kohanim in their special clothing and anointing them with oil (cf. Megilla 1:9) – are by default processes of investiture.

These separate transformative processes are unified and distinguished by being effected by a liquid.  Blood connects to holiness, sacrifices, and purification, and oil inaugurates and dedicates a person or an object to a new role.

The simple reading of the Torah is that the first miluim should be eternally sufficient.  However, Yehezkel (chap. 43-46) describes what seems to be a future miluim for the third Temple. Furthermore, the required sacrifices are different than those for the first miluim!

Menahot (45a) records a dispute about these contradictions between the Amoraim Rabbi Yohanan and Rav Ashi, following a Tannaitic dispute between Rabbi Yehudah and Rabbi Yose. One side holds that these apparent contradictions can only be resolved in the future by Eliyahu haNavi, i.e. they are incomprehensible to contemporary earthly readers.  The other side holds that the prophecy of Yehezkel describes a process of miluim which inaugurated the second Temple, even though no such process was necessary for the First Temple.

Why would either the second or third Temples even need a miluim at all? The halakahah shows clearly that kohanim retain the elevated kedushah they gained at the first miluim —they remain prohibited to marry certain women or to become temei met, they can eat (at least some) terumah, and they are still empowered to bestow the priestly blessing.

We can suggest that they maintained the aspect of lekadesham, but that the aspect of lemale et yadam lapsed when the first Temple was destroyed, because could no longer fulfill their offices. Therefore, when the beit hamikdash was rebuilt after the Babylonian exile, and when it will be rebuilt after the current exile, the kohanim need to be re-initiated into their offices with a whole new miluim process. The official installation—lemale et yadam—needed renewal after the exile because the office itself had lapsed.

Maybe every type of installation into an office or position in Judaism, or even more broadly in life, is comprised of these two parallel tracks found in the miluim: giving the person a heightened status appropriate for their role, and the actual investment into their office. As with the kohanim, the heightened status is often something that a person retains even after they no longer actively participate in the duties of the office (e.g. a professor emeritus, or a talmid hakham who has forgotten their Torah learning – see Menahot 99a “Rav Yosef …”). There is a difference between doing something continuously (say reaching a 60th wedding anniversary or retiring after 30 years at the same job) and filling multiple similar roles in succession. Consider the example of Rabbi Akiva, who reached a certain level of mastery after 24 years in the Beit Midrash even more than two consecutive spans of 12 years. When we experience that discontinuity something is lost and needs to be renewed.

Recognizing the dual nature of installation processes has two significant implications. First, we need to recognize that elevated offices do require that we give formal respect to their occupants by giving them a higher status—this is the concept in halakha of showing kavod harav but also the basis for the recitation of the berakha shehalak mehokhmato lebassar vadam. If we skip the hakdashah elements of the process, we are demeaning the office as a societal institution, not only the person.

Second, we need to recognize that putting someone in office gives them a permanent status.  We therefore need to consider the consequences of raising someone up only to have them leave the role after having been invested. What does it mean to have hundreds of people with advanced talmudic and halakhic educations who do not work in a rabbinic profession? How does that change their relationships to rabbinic authority and to their own standing in the community? Is it an improvement on existing communal structures because of the raised baseline of Torah education? Does it come with a cost? What does it mean when people pursue advanced academic degrees at a rate far outpacing the number of professorships that will ever become available in those fields? Our educational systems and communal culture do a disservice to people when we set them up for greatness without giving them enough to do with it once they earn it.

(This devar torah is based, in part, on shiurim on Masechet Yoma given by Mori veRabbi Dov Linzer at Yeshivat Chovevei Torah 5776-5777)

Rabbi Dan Margulies (WBM 2016) serves as a Kollel Fellow and Co-Director of Community Learning at Yeshivat Chovevei Torah, and as Assistant Rabbi at the Hebrew Institute of Riverdale – The Bayit.

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2018 Matt Eisenfeld Memorial Essay: Commandedness and Mental Disability

by Rabbi Aryeh Klapper

Orthodoxy is justly proud of its efforts toward including people with mental disabilities in synagogue communities. These efforts, in my hometown spearheaded by Yachad and often supported generously by the Ruderman Foundation, deserve enormous recognition and support.  Like any social change, they also generate new halakhic and hashkafic questions and tensions.

One such tension relates to bar and bat mitzvah ceremonies.  The value of inclusion pushes toward having children with mental disabilities the same public recognition, and participation in halakhic ritual, as all their peers.  This can play out in terms of aliyot, or making kiddush or other berakhot for the community, etc.

Why does this create tension?  On a hashkafic level, Orthodox rhetoric about bar and bat mitzvahs is properly all about the substance of adult religious responsibility, of arriving at the age of commandedness, of being obligated in mitzvot.  Yet children with mental disabilities won’t be treated as religiously accountable adults after their bar or bat mitzvah, and no one thinks they should be. On a halakhic level, a meaningful bar or bat mitzvah ceremony should involve taking actions that cause other people to acknowledge your religious adulthood, as for example fulfilling their obligations via your blessing.  Such actions generally require you to be genuinely obligated religiously.  But can there be obligation without accountability?

Rav Chaim Pinchos Scheinberg z”l (Moriyah, Elul 5742) argued that any physical and temporal adult who has the mental ability of p’utot(somewhere between 6 and 9) is fully obligated in mitzvot.  This is the standard the Talmud uses for allowing children to acquire and transfer moveable property.  Rav Shlomo Zalman Auerbach z”l responded to Rav Scheinberg as follows:

… דעתי מסכמת לכך דכל שהוא מבין ויש לו דעת כמו פעוטות ויודע שהקב”ה נתן לנו תורה ואנחנו מקיימים מצוותיו דשפיר חשיב כבר דעת לענין קיום מצוות, ובהגיעו לגיל י”ג שנה הרי הוא חשיב כגדול… ומיהו לענין עונשין שפיר נראה דכמו דחס רחמנא על קטן כך גם מפגר כקטן הוא דחשיב לענין זה אע”ג שהוא גדול, דלא מסתבר לומר דלאחר שהגדיל דינו רק כשוגג ואם ישתפה יתחייב בחטאת, ולכן נראה שרק לענין קיום מצוות שמבין בהם כפעוטות דינו כגדול…

I agree that any male who understands and has a mind like that of p’utot, and knows that the Holy Blessed One gave us Torah and that we fulfill His commands, is properly considered to be mentally sufficient with regard to fulfilling mitzvot, so that when he reaches 13 years old he is considered adult … but regarding punishments, it seems proper that just as the Torah has mercy on a minor, so too one with a mental disability is considered like a minor in this regard even though he is adult, as it doesn’t seem reasonable that after he reaches adulthood he is considered to be an accidental sinner, so that if he improves he would be obligated to bring a sacrifice.  Therefore, It seems that it is only with regard to the fulfillment of those mitzvot that he understands as well as p’utot that he has the legal status of adult … 

It is hard to make out exactly what Rav Shlomo Zalman is saying.  Why would someone be considered only an accidental sinner, rather than a deliberate sinner, if they are legally an adult?  Can a person be an adult for some mitzvot but not others?  But what does seem clear is that Rav Shlomo Zalman is willing to sever the connection between legal obligation and accountability.

Rav Asher Weiss (Minchat Asher 2:48) takes strong issue with Rav Shlomo Zalman’s position.

מש”כ בענין מפגר דאם יש לו דעת כפעוטות חייב בכל המצוות ומ”מ אינו בר עונשין דחס רחמנא עליה כמו על קטן, לענ”ד תמוה לחלק בין חיוב מצוות מה”ת לחיוב עונשים ולא מצינו גדר זה בשום מקום לומר שאדם חייב במצוות מה”ת ומ”מ רחמנא חס עליה ופטור מן העונש ואיך נחדש זה מדעתנו, אתמהה.

That which he wrote regarding someone with a mental disability, that if they have a mind like that of p’utot they are obligated in all the mitzvot, but nonetheless are not subject to punishments, because the Torah has pity on them as it does on minors – it seems astonishing to my impoverished intellect to separate obligation in mitzvot from liability for punishment, and we have not found this categorization anywhere of a person Biblically obligated in mitzvot whom the Torah nonetheless has pity on and exempts from punishment, and how can we originate this out of our own minds!?

But while Rav Weiss finds Rav Auerbach’s reasoning implausible, he seems to find the practical conclusion intuitively congenial, and he uses an ingenious method of his own to reach it.

וכבר כתבתי את הנלע”ד דיש להחמיר כשיטת רוב הפוסקים דפתי חייב במצווות ומפגר דינו כפתי,

אך מ”מ עד שיבנה ביהמ”ק נחמיר שלא להענישם ונחוש לשיטת האחרונים דדינם כשוטה עד שיוכרע הדבר ע”י משה רבינו ובית דינו.

I have already written that according to my impoverished intellect one should be stringent in accordance with the position of most poskim that the peti (simpleton) is obligated in mitzvot, and someone with a mental disability is legally considered a peti, but nonetheless, until the Holy Temple is rebuilt, we should be stringent (the other way) and not punish them, and take into account the positions of the acharonim who say they are legally considered like a shotah (mentally incompetent person) until the matter is settled by Mosheh Rabbeinu and his court.

The difference between Rav Auerbach and Rav Weiss is that the former is willing to establish a metaphysical status of obligation without accountability, whereas Rav Weiss is only willing to establish this as a practical condition – metaphysically he believes that one must have both or neither.

Is Rav Weiss’ practical solution sufficient, or is it an evasion of the issue?  I suggest that Rav Weiss sees it as sufficient because he holds of an even more radical separation, namely that one can be religiously obligated while being halakhically exempt.  Here are his words in Minchat Asher 2:47:

הנה במק”א כתבתי את הנלע”ד דאף חרש שוטה וקטן דפטורין מן המצות, אין זה אלא לענין דינים המסורים לנו, דאין אנו מצווין לכפותו לקיים מצוות ואין מענישין אותו ואין מצווין להפרישו וכך אינו מוציא אחרים ידי חובתן, אבל בדין שמים עתיד הקב”ה א-ל דעות בוחן כליות ולב לשפוט כל אדם לפי דרגת שכלו והבנתו האם דבק בתורה ובמצוב כדבעי.  ודבר זה פשוט לענ”ד דאטו הלן בבית הקברות ומהלך יחידי בלילה ומאבד כליו שמבין דברים אחרים מותר לו לעבוד עבו”ז ולבא על הערוה וכו’ וכי יבא לשאול מה נענה לו? ואטו נאמר לו לית דין ולית דיין ומותר לו לחרף ולגדף מערכות אלקים חיים וכדו’, אלא ברור דכל בני ישראל עבדי ה’ הם וכולם בניו של אלוקינו, וכל אחד חייב לעבדו לפי דרגתו ושכלו, אלא שלענין הלכה עלינו לנקוט שהם פטורים מן המצוות, ודו”ק בזה כי הוא ברור ונכון לענ”ד אף שנראה מחודש.

הנה כ”ז פשוט בעיני זמן רב, ושמחתי מאד כשראיתי בנוב”י (תנינא יו”ד קסד) שכתב דמה שאמרו דליכא עונש ביד”ש עד שנת הכ’ אינו אלא עונש שמים בעוה”ז אבל כל אדם יענש על מעשיו בעולם העליון, ואף קטן כל שיש בו מעט דעת, ושמחתי שכיוונתי לדעתו הגדולה.

I have written elsewhere that according to my impoverished intellect even though deafmutes, shotahs, and minors are exempt from all mitzvot, this is only with regard to human legal authority, meaning that we are not obligated to coerce them to keep mitzvot and we don’t punish them and we are not commanded to separate them from sin, and so too they cannot fulfill another’s obligation, but in terms of Heavenly law – eventually the Holy Blessed One Who know minds and distinguishes emotions and thoughts will judge all human beings in accordance with the level of their intellect and understanding whether they cleaved to Torah and mitzvot as they needed to.  This is obvious to me – do we think that someone who sleeps in graveyards, or walks alone a night, and destroys his clothes (the three classic behaviors of a shoteh), but who understands other things, is permitted to worship avodah zarah or commit adultery and incest etc.?!  If he comes to ask about this, how will we answer him?  Will we tell him that there is no judgment and no judge, and he is permitted to blaspheme and curse the ranks of the living G-d and the like?!  Rather it is clear that all the Children of Israel are servants of Hashem and all children of our G-d, and each individual is obligated to serve Him in accordance with their level and intellect, just that with regard to Halakhah we must take the position that they are exempt from mitzvot.  Dwell on this, because it is clear and correct to my impoverished intellect even though it appears to be new. 

Now all this was obvious to me for a long time, but I greatly rejoiced when I found in Noda b’Yehudah (2:YD:164) that when they say that there is no punishment at the hands of Heaven until age 20, that refers only to punishment at the hands of Heaven in this world, but every human being will be punished for their misdeed in the Ultimate World, even a minor who has some little mind, and I rejoiced that I had reached the same conclusion as his great mind.

In my essay on the religious life of the mentally ill, based on the 2017 Summer Beit Midrash, I argued for a distinction between the external objective categorization that Halakhah must place on mentally ill people, for example shotah/not obligated, or not-shotah/obligated, and their internal religious self-perception.  Rav Weiss’ position does not entail mine, any more than Noda b’Yehuda’s position entailed Rav Weiss’.  But I too was very glad to see that my intuitions paralleled those of a scholar of such stature.

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Architecture, Divine and Human

This week’s Alumni Dvar Torah is by Yedidya Naveh

Parashat Teruma marks our yearly passage from the “interesting” narrative parshiyot, which recount the miraculous events of the redemption from Egypt, to the “boring” clerical readings that describe the planning and construction of the Tabernacle. At this point, it is easy to let our brains turn off during leining. But we shouldn’t. Within the architecture of the Tabernacle hide messages no less profound than the stories that precede and frame them.

R. Hayyim of Volozhin (1749–1821), writes in his philosophical-mystical treatise Nefesh Hahayyim (1:4) that the human body and soul are a miniature version of the Temple. At the same time, he claims that both are together blueprints of the divine structure that gives order to the entire universe.

For this too, let the heart of a member of the holy people tremble. For he contains within his architecture all powers and worlds, … which are the sanctum and the heavenly temple. And the heart of man, the core of his body, is the greatest totality, analogous to the Holy of Holies, the epicenter of the City, the Foundation Stone. It too comprises all the essences of the source of sanctity. The Sages of blessed memory hinted at this when they stated (Berakhot 20a): “One must orient his heart toward the Holy of Holies.”

The sketching of infinite iterations of microcosm and macrocosm is typical of the kabbalah. The basic idea is clear: The world, though it appears base, transient, and broken, is in fact sublime, eternal, and unified. But thinking of the Sanctum as an embodiment of ourselves and of the divine presence simultaneously goes beyond this generality. The materials of the Tabernacle, the scale and the structure, should all be thought of, in classical architectural fashion, as the embodiment of human and divine ideas. The logic of the sanctuary is not random.

Take for example, the case of the windows of the first Temple. The book of Kings (I 6:4) recounts that King Solomon built the Temple with windows that were “clear-opaque” (שקופים אטומים). The Sages (Menahot 86b) interpret this as referring to one-way mirrors that counterintuitively allowed light out but not in. This miraculously demonstrated that God in His abode needs no light from outside; He is Himself the light of the whole world. On the human scale, we are reminded of a person’s eyes. We normally think of one’s eyes as tools that allow light from outside into the body. But in truth, a person’s eyes are also windows into his or her soul, allowing one’s inner light out into the world.

If architecture were a form of poetry, then the Tabernacle and the Temple would be the Jewish people’s Iliad and Odyssey. But architecture is more than poetry. It is the creation of the spaces and places in which we live our whole lives. It therefore crucial for us to study the architecture of the Tabernacle as a paramount expression of who we are as a divinely chosen people. According to Frank Lloyd Wright, “all fine architectural values are human values.” The Torah commands us to look farther. We should say: “All fine architectural and human values are divine values.”

Yedidya Naveh (SBM 2010, 2011) lives with his family in Maale Gilboa. He is collaborating with Yeshivat Maale Gilboa on a “Guide to Jewish Law on Campus” for American college students.

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Stop Thinking About This Dvar Torah!

by Rabbi Aryeh Klapper

A beraita on Berakhot 31a states:

אין עומדין להתפלל

לא מתוך דין, ולא מתוך דבר הלכה, אלא מתוך הלכה פסוקה.

One must not rise to pray 

neither out of din, nor out of dvar halakhah, but rather out of halakhah pesukah.

The problem is that din, dvar halakhah, and halakhah pesukah are virtual synonyms.  So we must be dealing with idioms.

There are three possible ways to go about understanding these idioms.

  1. a)one can try to find subtle semantic differences
  2. b)one can have a reliable tradition
  3. c)one can try to reconstruct the meanings from context

Let’s try them in order.

Teasing meaning out of subtle semantic differences works only if those differences are stable, so that we can confidently know which phrase means “the kind of Torah you should learn just before davening”, and which “the kind of Torah you should not learn just before davening”.  That is not possible here.

For example:

Chiddushei HaRa’ah to Berakhot has the text

אין עומדין להתפלל מתוך דין הלכה אלא מתוך דין הלכה פסוקה

One must not rise to pray out of din halakhah, but rather out of din halakhah pesukah.

and RIF to Berakhot has

 אין עומדין להתפלל מתוך דין והלכה אלא מתוך דבר הלכה פסוקה

One must not rise to pray out of din vahalakhah, but rather out of dvar halakhah pesukah

and Yerushalmi Berakhot has

אלא מתוך דבר של תורה

rather out of davar shel Torah.

Since the text exists in so many different versions, it seems unlikely that the subtle differences in any specific text can be helpful.

Do we have a solid and univocal tradition of interpretation?

Rashi to Berakhot translates halakhah pesukah as follows:

שאינה צריכה עיון,

שלא יהא מהרהר בה בתפלתו

that it does not require investigation,

so that he not be thinking about it while he prays

However, many geonim and Sefardic rishonim seem to translate the phrase as “decided”, or “no longer subject to dispute”.  Later rishonim tend to offer composite definitions, including both simplicity and unanimity.  Here for example is Rabbi Yehonatan of Lunil in his Commentary on RIF:

מתוך דין הלכה –

כלומר:

שרוצה להוציא דין אחד חדש מתוך עומק ההלכה ולהבין דבר מתוך דבר,

ולכך אין לבו בטוח שלא יהרהר בתפלתו

אלא מתוך הלכה פסוקה – 

שאין בה מחלוקת

“Out of din halakhah” –

Meaning: 

That he tries to extract a new law out of the depth of existing halakhah

and to understand one thing out of another

“Rather out of halakhah pesukah” –

which is not subject to dispute. 

The diversity of interpretations suggests that we are dealing with the results of attempts to use the third method rather than with a live tradition, or at least that we cannot know which stream of interpretation reports a live tradition.

We are left with context.

On Bava Kamma 102a, the Talmud suggests that we rule like a particular anonymous statement in the Mishnah, even though a different Mishnah presents the same issue as a dispute among Tannaim,

משום דקתני לה גבי הלכתא פסיקתא

because it was taught next to hilkhata pesikta.

Rashi here explains that our law was taught as part of the same literary unit as a unanimously accepted law, and therefore can be presumed to also have become the law.  Tosafot, however, point out that the Bava Metzia 77b presents the other law in the unit as a minority position!  Tosafot therefore translate hilkhata pesikta as “written in a form that suggests legal decisionmaking”.  If Tosafot is correct, perhaps hilkhata pesikta is an Aramaic idiom with no necessary relationship to the Hebrew halakhah pesukah.

The phrase Halakhah Pesukah appears in the Bavli only on Berakhot 31a.  Three examples are provided:

והיכי דמי הלכה פסוקה?

What cases fit into the category of halakhah pesukah?

 אמר אביי:

כי הא דרבי זירא, דאמר רבי זירא:

בנות ישראל החמירו על עצמן,

שאפילו רואות טיפת דם כחרדל – יושבות עליה שבעה נקיים.

Said Abayay:

Like that of R. Zeyra, for R. Zeyra said:

The Daughters of Israel accepted a stringency upon themselves

that even if they see a drop of blood the size of a mustardseed – they sit seven clean days.

רבא אמר:

כי הא דרב הושעיא, דאמר רב הושעיא:

מערים אדם על תבואתו ומכניסה במוץ שלה,

כדי שתהא בהמתו אוכלת ופטורה מן המעשר.

ואיבעית אימא:

כי הא דרב הונא, דאמר רב הונא אמר רבי זעירא:

המקיז דם בבהמת קדשים – אסור בהנאה, ומועלין בו.

Rava said:

Like that of R. Hoshaya, for R. Hoshaya said:

A person may use subterfuge with his grain and bring it into his house while still in its chaff

so that his animal can eat it while he is exempt from tithing it.

Alternatively:

Like that of R. Huna, for R. Huna said in the name of R. Z’eyra:

One who bloodlets an animal belonging to the Temple – 

it is forbidden to derive benefit from the blood, and one who uses it commits sacrilege.

The points of contact that exist among these halakhot seem purely random.  They are perfectly ordinary in their formulation, and certainly not unusually easy to understand intellectually.  This makes Rashi’s explanation very difficult – why should these halakahot be less distracting in a subsequent prayer than any other?

So it would be nice to discover that these halakhot represent an obvious consensus.  But on Niddah 66a, Rav Pappa challenges a statement of Rava on the basis of the statement by R. Zeyra cited above as an example of halakhah pesukah.  Rav responds:

אמינא לך איסורא, ואת אמרת מנהגא?!

היכא דאחמור – אחמור; היכא דלא אחמור – לא אחמור.

I speak to you of legal prohibition, and you speak of custom?!

Where there is stringency – there is stringency; where there is no stringency – there is no stringency

The simplest meaning of the last line is that R. Zeyra’s halakhah was only adopted in some places!  So how is it a halakhah pesukah?!

There are two possible answers.  The first is that Rava was limiting not the geographic scope of R. Zeyra, but rather the cases it applied to.  The second is that R. Zeyra’s rule became a halakhah pesukah only later.  Each of these is plausible, but not probable.

On the other hand, another Talmudic passage – peculiar in its own right – reinforces the idea that R. Zeyra’s halakhah is special.  On Megillah 28b, we read:

ריש לקיש הוה אזיל באורחא. מטא עורקמא דמיא,

אתא ההוא גברא ארכביה אכתפיה, וקא מעבר ליה.

אמר ליה: קרית?

אמר ליה: קרינא.

תנית?

תנינא ארבעה סידרי משנה.

אמר ליה: פסלת לך ארבעה טורי, וטענת בר לקיש אכתפך?! שדי בר לקישא במיא!?

אמר ליה:

ניחא לי דאשמעינן למר.

אי הכי, גמור מיני הא מלתא דאמר רבי זירא:

בנות ישראל הן החמירו על עצמן,

שאפילו רואות טיפת דם כחרדל יושבות עליו שבעה נקיים.

Resh Lakish was travelling on foot.  He came to a pool of water.  

A man came and put Resh Lakish on his shoulders, and began carrying him across. 

Resh Lakish said to him: “Have you read Scripture?”

The man replied: “I have read Scripture.”

“Have you studied Mishnah?”

“I have studied four orders of the Mishnah.”

Resh Lakish said to him: “You carved yourself four mountains, and you carry the son of Lakisha on your shoulders?! Throw the son of Lakisha in the water!?”

He replied: “I prefer to hear Torah from you.

Resh Lakish then said: If so, learn from me this statement of Rabbi Zeyra:

The Daughters of Israel accepted a stringency upon themselves

that even if they see a drop of blood the size of a mustardseed – they sit seven clean days.

However, the sugya gives us no clue as to why Resh Lakish made the statement of R. Zeyra his signature teaching.

If the intent of learning halakhah pesukah was to present something so uncomplicated and consensus that it would not distract one from subsequent prayer, I hope this dvar Torah has now made the term itself too interesting to easily permit this.  (All this aside from the substance of the examples – I’m currently ten thousand words into writing a responsum about one aspect of one example.)  Unless you’re about to daven, I hope the difficulties I’ve raised will linger in your mind.

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The Slave’s Eye

This week’s alumni Dvar Torah is by Miriam Gedwiser

In Parashat Mishpatim, Ex. 21:26-27, we read:
וְכִֽי־יַכֶּ֨ה אִ֜ישׁ אֶת־עֵ֥ין עַבְדּ֛וֹ אֽוֹ־אֶת־עֵ֥ין אֲמָת֖וֹ וְשִֽׁחֲתָ֑הּ לַֽחָפְשִׁ֥י יְשַׁלְּחֶ֖נּוּ תַּ֥חַת עֵינֽוֹ׃ (ס)
וְאִם־שֵׁ֥ן עַבְדּ֛וֹ אֽוֹ־שֵׁ֥ן אֲמָת֖וֹ יַפִּ֑יל לַֽחָפְשִׁ֥י יְשַׁלְּחֶ֖נּוּ תַּ֥חַת שִׁנּֽוֹ׃ (פ)
If a master, presumably in the exercise of his authority, puts out his (canaanite) slaves eye or tooth, the slave goes free.  The verses frame this freedom as compensatory: תַּ֥חַת עֵינֽוֹ/שִׁנּֽוֹ – in exchange for his eye/tooth.  But unlike the proportionate compensation of the previous verses (עַ֚יִן תַּ֣חַת עַ֔יִן שֵׁ֖ן תַּ֣חַת, verse 24), the master must “pay” more than the value of the injury.  Netziv explains this lack of proportionality as reflecting the mismatch of the original confrontation.  Violence between two free people (וְכִי-יִנָּצוּ אֲנָשִׁים, verse 22) may begin unilaterally but generally does not remain so – the person under attack will hit back, and either may end up injuring the other.  Part of the condition of slavery, however, is submission to the master’s corporal punishment without hitting back.  The disproportion of the original incident favors the master, so the disproportion of the consequences favors the slave to restore some balance.   
 
Implicit in this reading, and explicit in others, is that restitution for the slave is not the only, or perhaps not even the main, focus of the rule.  Instead, the potentially disproportionate “compensation” – a blow to the face could mean the loss of a slave – is structured as a deterrent.  In the words of Shadal, וזה יהיה סבה, שימנע מהכות את עבדו מכת אכזרי – this provides a reason for the master to avoid hitting his slave too cruelly.  (See also Ibn Ezra for a similar approach.)  
 
So far, even those of us who understand slavery as a moral evil can probably feel OK about these verses.  Coming as they do in a universe where chattel slavery was a given, the rules attempt to mitigate some of the worst abuses of slavery by creating strong disincentives for excessive violence on the part of masters.
 
But this is not the end of the story.  On Bava Kama 74b, for example, we read:
מעשה בר”ג שסימא את עין טבי עבדו והיה שמח שמחה גדולה
מצאו לר’ יהושע אמר לו אי אתה יודע שטבי עבדי יצא לחירות
אמר לו למה
א”ל שסמיתי את עינו
אמר לו אין בדבריך כלום
There was an incident involving Rabban Gamliel, who blinded the eye of his Canaanite slave Tavi, and he experienced great joy as a result. [Rabban Gamliel had long wanted to emancipate Tavi, but it is generally prohibited to emancipate a Canaanite slave. The injury provided a fortuitous opportunity for Rabban Gamliel to emancipate his slave, as blinding the eye of one’s slave results in his emancipation (see Exodus 21:27).]  
Rabban Gamliel encountered Rabbi Yehoshua and said to him: Do you know that my slave Tavi was emancipated? Rabbi Yehoshua said to him: Why? Rabban Gamliel said to him: I blinded his eye. Rabbi Yehoshua said to Rabban Gamliel: Your statement is nothing, [and is not grounds for his emancipation]. (Koren transl. and selected explanation).
The non-compensatory nature of the biblical rule that mandates freedom for a slave’s lost eye (even though presumably the slave’s perpetual servitude is of higher monetary value than what would be fair compensation for his lost eye or tooth) places the rule in the category of fine, knas.  As such, it is subject to the general principle of מודה בקנס פטור – one who admits liability for a fine is exempt from that fine.  (The discussion in Bava Kama centers on whether that exemption applies even if witnesses come to establish liability.  The disagreement on that subject does not impact my discussion.)  
 
In the case of Rabban Gamliel, the principle of מודה בקנס פטור means that he cannot free a slave whom he really wants to free.  (Freeing a Canaanite slave violates Vayikra 25:46.)  Rabban Gamliel’s affection for Tavi makes this result seem especially perverse, as the masters very admission, a function of his desire to free his slave, prevents the outcome that both the master and slave want.  
 
At the same time, the rule can generate perverse outcomes of a different variety.  What if instead of a magnanimous master looking for a loophole to free his slave we were confronted with a knowledgeable but malicious master?  The master could injure his slaves with impunity, and then evade the Torah’s deterrence by simply admitting guilt.  (Assuming that either witnesses will not change this outcome, or are unavailable.)
 
This latter possibility is more disturbing than the former. Rabban Gamliel, after all, is looking for ways around a straightforward (for the rabbis) rule against freeing slaves.  His case is not the sort of case that the verse and its deterrence system seems designed for, and Tavi’s freedom would have been a happy accident of overinclusion.  The hypothetical malicious master is exactly the one for whom the rules were crafted, and yet their very status as knas (more than simple compensation) is what gives him, if he knows enough, a way out.  
 
Let’s imagine another hypothetical – the violent master who is not knowledgeable, but admits his guilt out of a genuine sense of remorse, even though he assumes it will lead to his slave’s freedom.  In such a case, we can imagine how the deterrent effect of the law will continue to operate even if the slave does not actually go free – the master is, in some sense, chastened.
 
It is only the maliciously devious master who undermines the purpose of the law.  He is the mirror image, in some sense, of Rabban Gamliel’s benevolent would-be manipulation of the rules, in that he manipulates them for his own benefit, not the slave’s.  
 
This hypothetical manipulative master has bothered me for some time because the workaround seems so obvious, but in truth no one has yet constructed an abuse-proof legal system.  Although the Canaanite slaves of Exodus 21 are a thing of the past, perhaps the difficulty of protecting them within a system that also ensures their domination can inform our thinking about our own world as well.
Miriam Gedwiser (SBM ‘02) teaches Talmud and Tanach at Drisha and at the Ramaz Upper School.  She lives in New Jersey with her spouse and children.  

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Charity vs. Security: A Jewish Analysis of a Moral Policy Question

by Rabbi Aryeh Klapper

Does Judaism require relatively well-off people to give alms-collectors access to their homes and neighborhoods, even if this increases the risk of crime? In a recent Facebook exchange with me, Jewish social activist Aryeh Bernstein argued passionately that it does.  He cited as evidence a Talmudic passage on Bava Batra 7b, and the 13th century Spanish commentary of Rabbi Meir Abulafia (Yad Ramah) thereupon.

I grew up in a dangerous neighborhood.  Every apartment had multiple locks plus a security rod set into the floor; all first floor and fire escape windows were barred; even car windows and doors were kept locked and closed at all times when riding.  Anything less was an invitation to robbery and violence.  So Aryeh’s position struck me as implausible.

But I love and respect his eagerness to bring Jewish texts to bear directly on contemporary social issues.  I share his concern that zoning and safety laws are sometimes abused to protect the rich from having to realize that the poor exist. Moreover, one of the core values and virtues of halakhic Judaism is that we cannot dismiss arguments rooted in traditional texts simply because we find them implausible; we have to engage the texts ourselves.  So let’s read Aryeh’s arguments, and then the texts, and see if his claim stands up.

Here are Aryeh’s words:

“[This] implies a position that the obligations of people with means toward people lacking means do not apply if the other people with means in the neighborhood have reason to believe that that help endangers them. In that light, how do you read Bava Batra 7b, which takes for granted that Eliyahu haNavi cut off a relationship with an otherwise pious person b/c he installed a gate-house, which, as Rashi explains, cut off poor people? And not only does it accept this story at face value, but it imbues it with enough halakhic import as to put significant oqimtot on the mishna there which normalizes construction of gatehouses, insisting that it’s acceptable only if it is not actually locked and does not cut off poor people? How do you read the Yad Ramah there with regard to security concerns overriding concerns of the poor having access?  [Here Aryeh inserted an excerpted version of Yad Ramah.]”

I contend that his argument is wholly mistaken with regard to Bava Batra 7b, and that he has simply misread Yad Ramah.  Let’s learn them together.

Mishnah Bava Batra 7b rules that residents of a courtyard can be compelled by majority vote to pay for the construction of a gatehouse.  It records a minority opinion that this is true only for those courtyards that abut a heavily trafficked space.

Majority rule applies only to improvements, and it follows the Mishnah must consider a gatehouse to be an improvement.  The Talmudic editor challenges the Mishnah on the basis of a story.

There was once a pious man who was regularly visited by Elijah.  

When he built a gatehouse, Elijah ceased to visit him.

The challenge assumes that morally odious constructions cannot be considered improvements for the purposes of this law.  Therefore, since Elijah’s displeasure indicates moral censure, a gatehouse cannot be considered an improvement.  Why, then, does the Mishnah consider it one?

The Talmud responds by distinguishing among gatehouses.  The relevant distinctions are whether the gatehouse is built inside or outside the courtyard entrance; whether the gatehouse has a door at its entrance; whether the door has a lock; and whether the lock is on the inside or the outside.  Texts and commentators differ as to which factor or combination of factors make the gatehouse an improvement, and which make it odious.

Why would a gatehouse be odious?  Rashi explains that Elijah objected because “it is a barrier to the poor, who shout but their voices are not heard”.  So there is no question that the poor need to have vocal access to the courtyard.  What about physical access?

Why would a gatehouse be an improvement?  Rashi explains that it serves “so that the guard of the entrance can sit there in the shade and distance the public from looking into the courtyard”.  In other words, the assumption throughout is that the courtyard has a guard at its entrance who will prevent outsiders from gaining entrance.

Do those outsiders include the poor?  Rashi explains that a gatehouse built outside the courtyard entrance is fine, but one built inside “is a worsening, because the door of the courtyard is locked and the poor person shouts but the gatehouse within blocks his voice”.  An external gatehouse is not problematic, so long as it is openable from the outside, because the poor can still shout from the courtyard entrance.  This is true even though the courtyard entrance itself is locked.

In other words: No one considers allowing any outsiders physical access to the courtyard, let alone to the private dwellings that surround it.  There is properly a locked door to prevent that, and also a guard.  However, even if the guard sits in a gatehouse outside the courtyard so as to discourage voyeurs, he must still allow the poor to stand at the entrance and shout for alms.

A courtyard is a collection of private dwellings surrounding a shared public space.  The best modern analogy is a condo apartment building, or perhaps a gated community.  To satisfy Elijah, it seems that there must be an intercom system to which the poor have access.  No one suggests that the owners must give the poor physical access.

Rashi’s explanatory framework seems to be almost universally accepted.  The exception is Rabbi Abulafia, to whom we now turn.

Yad Ramah does not mention a guard.  He also contends, in contrast to Rashi, that an internal gatehouse is never problematic.  Presumably he is not worried that the internal wall will have a serious acoustic dampening effect.    An external gatehouse is problematic only if it has a door that cannot be easily opened from the outside.

Here Rabbi Abulafia wonders: How is an external gatehouse which can be easily opened from the outside an improvement?  If the poor can get in, can’t thieves and robbers get in along with them?!

His response is that we are discussing a case in which the courtyard itself has a door that locks from the inside.

But, he continues, if the gatehouse serves no security purpose, what use is it?!

He answers that even an openable door discourages animals and casual passers-by from entering – on other words it protects against vermin and violations of privacy.

So Rabbi Abulafia agrees with Rashi that a courtyard can physically exclude the poor; that Judaism insists only that they must be given vocal access to the rich; and even then only to their shared courtyards and not their private spaces.

I can see numerous ways to plausibly distinguish the Talmudic case from many of the cases that raised Aryeh’s ire.  For example:

  1. a neighborhood is not a courtyard, and nothing in the Talmud suggests that the poor can be barred from any public street
  2. the weather is much more severe in the contemporary Midwest than in the ancient Middle East, so that shelter is concomitantly more necessary, and people are less likely to spend time outdoors in their courtyards.
  3. The poor are generally less integrated into society than they were, and we need to compensate for that by giving them greater access.
  4. Surely it matters how much risk is entailed in giving the poor how much access.

These distinctions can serve to defend his social policy position against the Jewish sources he cited.  But to the extent those sources are relevant, they directly oppose his position.

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Teaching Hashkofoh

by Rabbi Aryeh Klapper

What should Modern Orthodox high schools teach their students to believe, and about belief?  These questions are brought into sharp relief by the data from Rabbi Dr. Zvi Grumet’s recent survey of graduates.  Among his key findings are large gaps between what graduates think they were taught to believe, and what they believe now; and a correlation between such gaps and declines in halakhic observance.

Rabbi Dr. Grumet deserves enormous credit for raising critical issues in a substantive and nonpolemical fashion.  Now we need to have real conversations about how to teach hashkofoh.

Let us take this week’s parshah as a starting point.  One of my beit din colleagues often asks conversion candidates: “What happened at Sinai?”  Educators should ask each other, and themselves: How would you answer this question?  How would you want your children or students to answer this question?  Should they all give the same answer, or even the same kind of answer?  Do you want them to give the same answer at 25, or 55, as they did when they were 15 years old?

Conversion candidates who were raised Catholic often talk about being turned off by a sense that key theological questions were out of bounds (they experience Orthodoxy in all its manifestations as much more open, in ways that can astonish those of us who have always lived within Orthodoxy), and they often cite their inability to believe critical dogmas as a key impetus for leaving Catholicism.  What can their experience teach us about our own pedagogy (bearing in mind that dealing with conversion in the US naturally gives one disproportionate exposure to the failure of other religious educational systems)?

One mode of theological education can be termed “catechistic”.  Students are taught to memorize verbal formulas, and to affirm belief in those formulas.  Understanding the formulas is a secondary goal, Sometimes, especially where the formulas are consciously designed to bridge mutually exclusive positions, or to contain paradoxes, deep understanding is davka not a goal for many teachers and institutions.

A very different mode can be termed “inductionist”.  In this mode, students are not taught beliefs qua beliefs, or that belief per se is a goal.  Rather, they are immersed in a way of life, and encouraged to discover what beliefs are necessary to make that way of life meaningful.

These modes can be reframed in a specifically Jewish context as “Maimonidean” or “Alboistic” approaches to the concept of ikkarei emunah, or root principles of faith.  Maimonideans see the willingness to affirm specific propositions as a necessary (and perhaps sufficient) condition for preserving a Jew’s automatic share in Olam Haba.  Alboists think it necessary to understand which propositions must be affirmed for the structure of Torah and mitzvot to stand in this world.

Alboists can concede that some non-ikkar propositions are nonetheless sine qua nons for a share in Olam Haba, and Maimonideans can concede that some ikkar propositions have no reverberations whatsoever.  The difference between them is not necessarily about which propositions one ought to believe.  It can be about whether the purpose of education is getting students to Olam Haba, or rather about enabling them to live with meaning in this world.  Maimonideans may also believe that the only meaning this world has is as a vestibule in which to earn Olam Haba, while Alboists may find it difficult to fathom how a meaningless life can deserve an infinite sequel.

While Maimonideans and Alboists can be in complete substantive agreement about what Jews should ideally believe, their differing priorities will generate substantive differences in terms of what sorts of mistakes they will tolerate educationally, and what sort of theological latitude they give students.

Let us go back to Sinai.  A Maimonidean might focus on having students affirm that every letter of the Torah today is exactly the same as the text that Mosheh wrote in a scroll at G-d’s dictation after descending from Sinai.  Furthermore, while Mosheh was on top of the mountain, G-d taught him every possible true interpretation of Chumash.   Mosheh then taught all these interpretations to the Jewish people, creating a live and comprehensive oral tradition that continues to this day.  There is nothing new in Torah, although things can be forgotten and then rediscovered.

An Alboist might focus on the goal of having students relate to the Torah as a text worth studying so intensely and rigorously that even changes in orthography deserve attention.  Students should find that the study of Torah through the lens of Rabbinic literature yields interpretations that consistently resonate with their souls in ways that no other interpretations can.  Students should find it necessary and rewarding to bring all aspects of their being to bear on the study of Torah, including their creativity.

I emphasize again that we are discussing strategies, not ends.  It may be that only students who believe in literal Divine dictation will relate to the text with ultimate intensity and rigor; that only students who believe that all of Rabbinic tradition was included in the original Revelation will find it a uniquely meaningful mode of study; and that only students who believe that all true interpretations were already given can use their creativity to uncover G-d’s intent rather than their own desires in the text.

I also need to make clear that these strategies are not opposed and incompatible. Students are unlikely to arrive at these kinds of meaningfulness purely by induction, without having their models and mentors expressly state their own beliefs. Different approaches are likely to work better with different students.  It may be possible and advisable to use different modes for conveying different beliefs.  Furthermore, propositions may move into and out of the Alboistic ikkar framework, depending on external pressures and internal plausibility structures.

And – students’ plausibility structures and sensitivity to external pressures change over time, as do their intellectual and spiritual capacities – hopefully for the better, at least for a very long time.  These inevitable changes have implications for both Alboistic and Maimonidean educational contexts.

In my humble opinion – a fundamental error made by many Modern Orthodox schools is that they educate their students ba’asher hem sham – as they are now, without sufficient thought for whether and how what they teach will age as their students grow.

For example – imagine a high school which teaches its students that the truth of Orthodox Judaism is logically demonstrable.  Every teacher affirms this, and experts are brought in occasionally to demonstrate or refute specific arguments, say in the fields of geology or cosmology or cryptography. If the school is at all competent at what it does, a strong majority of its students will graduate believing what it wants them to believe, with confidence and intensity.

Some of these graduates will go on to academically strong secular colleges. In those colleges they will meet very smart people who do not find the truths of Orthodox Judaism logically demonstrable; who are unimpressed by the arguments and evidence of the high school experts; and some of whom seem to be really good people.  A high percentage of these graduates will have crises of faith, and many of them will go OTD.  Is that their fault for choosing secular college, or the fault of their school or developing in them only a weak and cloistered virtue?

Secular college is a bugaboo.  What about high schools which teach students that the text of chumash is unquestionably and perfectly what Mosheh gave us – “kol haTorah shemetzuyah atah b’yadeinu hanetunah leMosheh Rabbeinu”, only to be devastated in yeshiva by the one-letter difference between Ashkenazic and Sefardic scrolls, or the Rav Akiva Eiger on Shabbat 5b that lists all the places where the Talmud seems to have a different text than we do?  There are academic and theological explanations for each of these that are compatible with the formulation in the ani ma’amins, but will students be able to accept them if they feel betrayed?

Issues of historical fact are rarely the key questions.  What about schools that teach their students that there is a clear answer to why bad things happen to good people, or that great Torah scholars always show excellent character and judgment?  These beliefs are likely to be falsified by experience later in life, and what will happen to their graduates then?

Most of our students will experience doubt and uncertainty at points in their lives. The ani ma’amins are generally aspirational rather than descriptive, or we would live in a very different world.  Many or most of them will also have long or short periods in which the practice of yahadut does not consistently provide them with meaning.  We need to educate in a way which will enable them to get through these periods without despair.  They need beliefs that can sustain their commitment when experience doesn’t, and experiences that can motivate them when belief wavers.

Bottom line: We do not necessarily want Orthodox adults to believe religiously exactly what they believed when they graduated high school.  (We should not want this in any other field either.) Recognizing this should have a significant impact on the way we teach hashkofoh.

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