Monthly Archives: August 2018

Parents as People: The Relationship between the Obligation to Honor Parents and the Halakhic Concept of Human Dignity

 

by Rabbi Aryeh Klapper

A beraita on Kiddushin 30b presents one rationale for the halakhic obligation to honor parents.

שלשה שותפין הן באדם:

הקדוש ברוך הוא, ואביו, ואמו.

בזמן שאדם מכבד את אביו ואת אמו, אמר הקדוש ברוך הוא:

מעלה אני עליהם כאילו דרתי ביניהם וכבדוני

There are three partners in the human being:

The Holy Blessed One, its father and its mother.

When a person honors (is mekhabed) their father and mother, The Holy Blessed One says:

I regard them as if I had dwelled among them and they had honored Me.

However, that beraita is being rapidly obsolesced by the wide variety of contemporary reproductive practices.  Doctors and nurses are partners in reproduction via IVF and most artificial insemination; gestational carriers are partners in surrogacy; mitochondrial DNA donors relieve the risk of some hereditary diseases; and random people may soon be partners in chimaeras.  All this on top of the traditional cases in which halakhah recognizes a child as having a legal mother but no legal father, such as when the mother is Jewish but not the father.

It does not matter whether we greet the multiplication of such cases with ambivalence, horror, or joy.  The fact remains that the “three partners” metaphor is no longer a compelling description on a physical level.  This is even more true if we look at the physiological explanation given in the version of the beraita found on Niddah 31a:

שלשה שותפין יש באדם:

הקדוש ברוך הוא, ואביו, ואמו.

אביו מזריע הלובן,

שממנו עצמות וגידים וצפרנים ומוח שבראשו ולובן שבעין

אמו מזרעת אודם,

שממנו עור ובשר ושערות ושחור שבעין

והקב”ה נותן בו

רוח ונשמה וקלסתר פנים וראיית העין ושמיעת האוזן ודבור פה והלוך רגלים ובינה והשכל

וכיון שהגיע זמנו להפטר מן העולם

הקדוש ברוך הוא נוטל חלקו וחלק אביו ואמו מניח לפניהם

There are three partners in the human being:

The Holy Blessed One, its father and its mother.

Its father generates the white,

from which emerge the bones, tendons, nails, and the brain in its head and the white of the eye

The mother generates the red,

from which emerge the skin, flesh, hair, and the black of the eye

and the Holy Blessed One places in it

spirit, breath, facial features, vision, hearing, speech, mobility, understanding and intelligence

When its time comes to depart from the world

The Holy Blessed One takes His share and leaves the share of the father and mother before them.

The fading applicability of this metaphor is a challenge, but also an opportunity.  The appeal and power of the human-Divine parental partnership metaphor may obscure and deemphasize important underlying halakhic principles of parent-child relationships.  These principles may be easier to discover and understand in our day.

One clue to such principles may be found in Devarim 27:16:

אָר֕וּר מַקְלֶ֥ה אָבִ֖יו וְאִמּ֑וֹ

Blasted be one who is makleh his father or mother

To be makleh probably means “to make kal (=lighter).  It is therefore the antonym of l’khabed =to make heavier, and a less intense form of l’kallel =to make very light =to curse.  The Torah obligates us l’khabed our parents, and forbids us l’kallel them on pain of death.  So what is added by this prohibition?

Fascinatingly, this verse is never cited explicitly in the literature of Chazal, so far as I can tell.  But Rambam (Hilkhot Mamrim 5:15) gives it a place of prominence:

ולא על הכאה ולא על הקללה בלבד הקפידה תורה

אלא אף על הבזיון,

שכל המבזה אביו או אמו

אפילו בדברים ואפילו ברמיזה –

הרי זה ארור מפי הגבורה,

שנאמר ארור מקלה אביו ואמו

The Torah was not insistent only about not-striking and not-cursing parents

but rather even about degradation

since anyone who degrades their father or mother

even verbally, even by gesture –

is blasted from the mouth of the Omnipotent

as Scripture says: “Blasted be one who is makleh their father or mother”.

Rambam seems to believe that “degrading” parents is not a violation of the obligation to honor them, or even of the obligation to revere/awe them.  This seems very peculiar.  His rhetoric “blasted from the mouth of the Omnipotent” also seems peculiar, as he is referring to the curses uttered by the people – albeit at Hashem’s dictation – on Har Eival.  Moreover, his position yields a very difficult halakhic result.

An Amoraic statement on Kiddushin 32a-b permits parents to waive their children’s obligations of kavod, and Rambam (Hilkhot Mamrim 6:8) seems to make this waiver obligatory:

אסור לאדם

להכביד עולו על בניו ולדקדק בכבודו עמהם

שלא יביאם לידי מכשול,

אלא ימחול ויתעלם

שהאב שמחל על כבודו – כבודו מחול.

It is forbidden for a person

to heavily impose his yoke on his children and to be picky about his honor with them

lest he cause them to transgress.

Rather he must waive and look away

since a father who waives his honor – his honor is waived.

Raavad (cited in Responsa Rivash 220) derives by analogy from the honor of scholars that a parent cannot waive the obligations of children to the extent of permitting severe degradation. However, now that we have a separate prohibition against degradation, it may be that parents cannot forgive anything negative.  Netziv further argues (Responsa Meshiv Davar 2:50) that this obligation is not subject to the limits imposed on other obligations toward parents:

נראה דהא דאי’ ביו”ד (סי’ ר”מ סכ”ה)

“וכן אם האב מוחה בבן לישא איזה אשה שיחפוץ בה, א”צ הבן לשמוע אל האב”

זה אינו אלא באופן שאין באשה שחפץ בה בזיון וצער לאב

It seems that what is written in Yoreh Deah 240:25

“So too, if a father objects to a son marrying the woman he wishes to, the son need not heed the father”

applies only in a case where marrying her would not cause the father degradation or pain

Note that Netziv adds “pain” to degradation, further expanding the scope of the obligation and limiting the space in which children’s right to autonomy can shield them against unhealthy parental domination.  (Netziv likely does this on the basis of Sheiltot d’Rav Achai Gaon 61, which in a manner similar to Rambam asserts that children are obligated to not-pain their parents, not only to not-curse them.)

I suggest that while Devarim 27:16 is not cited explicitly in Chazal, it is cited implicitly in at least one place, and its use there will give us a very different halakhic principle and outcome.

On Kiddushin 32a, the Talmud attempts the following proof for the position that parents must bear the financial costs of their children’s obligation to honor them.

A beraita rules that children may feed their parents out of the poor tithe.  This proves that children have no financial obligation toward parents, as otherwise they would be satisfying their personal obligation out of money that we conceive of as already belonging to the poor as a class.

The Talmud rejects the proof by suggesting that the beraita discussed a case in which the child had already satisfied the personal obligation of honoring, and yet the father wanted more.

But the Talmud challenges the rejection, as follows. The beraita continues by citing Rabbi Yehudah’s position that a m’erah (=blasting?) should befall one who feeds their parent poor-tithe.  Why should the child be cursed if the case is one in which the obligation of kavod has been satisfied?

The Talmud answers:

אפילו הכי, זילא ביה מלתא

Nonetheless, it is degrading to him

The obvious problem with the Talmud’s answer is: If it is degrading, then how can the obligation of honor have been satisfied?

We must answer that the obligation that generates the curse cannot be related to the regular obligation of honoring parents. But then what is its nature?

I suggest that the Talmud here is differentiating between honoring parents as parents, and honoring them as human beings.

Honoring them as parents – as G-d’s partners in creation – requires engaging in a set of formal activities that are not culturally contingent or socially derivable.

Honoring parents as human beings, by contrast, means treating them in the way that recognizes your human relationship with them.  It is a subset of the obligation to respect human dignity, which the Talmud acknowledges can vary depending on social position.  To feed parents out of poor-tithe degrades them because it treats them as human strangers, not because it fails to treat them as G-d’s partners.  (This obligation may therefore apply as much or more to adoptive as to biological parents.)

On this understanding, Rambam’s framing of the obligation is contingent on the conventions of one’s society, and children always have the right to choose their own spouses, although for most people in most places during most periods it would be wise and proper for them to consult their parents before doing so.

One framing of the Torah obligations toward parents depends on having children view their parents as creators in partnership with and therefore almost on par with G-d.  Another roots the relationship in a recognition that parents, like everyone else, were created b’tzelem Elokim and deserve social dignity.  As biological parentage becomes an ever more fraught concept, it seems likely that the second model will and should become more prominent.  At the same time, the formal and fixed Torah obligations toward biological parents should remind us of the grave social risks involved in the progressive separation of biological reproduction from human responsibility.

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Going to War with Biblical Monsters

This week’s alumni Dvar Torah is by Benzion Chinn

This week’s portion begins and ends with two of the most morally disturbing commandments in the entire Bible. We begin with the Yifat Toar, the beautiful captive gentile woman that you can apparently legally rape if you follow certain legal procedures, and end with the apparently genocidal commandment to wipe out Amalek.

These commandments exemplify how the Bible allows, and sometimes even appears to encourage, practices that are morally reprehensible, while at the same time subtly undermining these very practices. Understanding the Bible in this way does not come cheap. For such a moral stance to be meaningful, and more than an exercise in apologetics, one must be prepared to pay a price.  Specifically, one must acknowledge that Biblical morality cannot be derived solely from Biblical law, with no moral preconceptions.

Take for example slavery.  The Bible clearly allows for slavery, even of Israelites in cases of theft and dire poverty. Why?  One might be tempted to say that biblical slavery was so “wonderful” that slaves did not want to be free. Yet the Bible punishes the slave for wanting to stay a slave, by having his ear pierced. The reason for this is that by desiring a human master, he is ignoring the commandment of “I am the Lord your God” (Exodus 20:2). This idea is made explicit in Leviticus: “for the Children of Israel are my slaves” (25:55). Furthermore, when this law is repeated in Deuteronomy, we are admonished to remember that we were slaves in Egypt (15:15). Remembering the Exodus from Egypt, the central act of Biblical faith, is placed in tension with slave ownership. Yes, it is legal to own slaves – just as God allowed the Egyptians to enslave the Israelites. Thus, any slaveowner, even as he acts within his legal right, faces the same judgment as Pharaoh.

What you have is a kind of Shylock dilemma. Yes, Shylock’s argument for his being allowed to cut a pound of flesh from Antonio’s body is legally airtight.  But his attempt to exercise such a claim requires suicidal recklessness, as Shylock has to ignore the fact that has made himself vulnerable to a Christian legal establishment that will now seek to hoist him on his own legal petard. So too with slavery. Yes, the master may have a legal claim, but to exercise that claim is to make himself vulnerable to the full wrath of the G-d Who made that law.   

Nonetheless, denouncing biblical slavery has its own consequence. One must concede that Biblical morality cannot be contained within halakhah, but rather must transcend it. Halakhah will not stop you from owning a slave. Therefore, anyone who claims that halakhah is complete and the only necessary moral authority is implicitly endorsing slavery.  Anyone who opposes slavery honestly must recognize this. 

The law of the captive woman functions similarly. Rashi, basing himself on the Midrash Tanchuma, argued that the Bible only allowed the practice out of a fear that people would otherwise simply give in to their Evil Inclination. Lest anyone be under the delusion that anything good might come out of legalized rape, the text hints that eventually the man is going to hate this woman, and that such a union will produce rebellious children (another moral monstrosity).

That being said, honestly facing the monster of biblically sanctioned rape requires more than denunciation. We risk the very notion of chosenness in order to make this denunciation. 

The Bible forbids selling the beautiful captive into slavery “as compensation for your having afflicted her” (21:14). The extra-legal lesson of slavery is once again relevant here. If you cannot “even” sell her into slavery after raping her, how much more so will you be held accountable for having raped her in the first place, however legally?

There is something more going on here, though, as this acknowledgment of the woman’s feelings flips the moral script.  The Bible tempts us with a narrative of “You are God’s special chosen people and, therefore, it is only right that you plunder, kill, and even rape gentiles”.  But we learn from “as compensation” that this narrative is false.  Instead of the good guy Israelites who have defeated the evil “goyim,” it is the “shiksa” that God cares about, and it is you the Israelite who is the oppressor. The very act of assuming chosenness becomes its own refutation.   

This brings us to the commandment to wipe out Amalek. As with slavery and the captive woman, we are baited into a Shylockian legal trap that makes it impossible to follow through on the law. Consider the example of King Saul, who was punished for not killing Agag, the Amalekite king, and for sparing the Amalekite cattle. One way to view Saul’s crime is that he was willing to kill all the other Amalekites. If he had refused to go mass murder Amalekites, his sparing of Agag and the cattle would have been understandable. The fact that he spared only them showed that he was never really motivated by a desire to listen to God, the only conceivable justification for such an action. So not only did Saul disobey God, but he was a murderer too.   

The apologetic temptation is to spiritualize the commandment of wiping out Amalek, so that it refers to the defeat of the Evil Inclination rather than to murdering innocent women and children. This sounds like an easy way out until you recognize the full price to be paid for acknowledging, at least in principle, the possibility of spiritualizing commandments. This makes it possible for a person eating a ham sandwich to “spiritually” keep kosher, and for such kashrut, at least hypothetically, to be superior to many conventional acts of keeping kosher.

To find wiping out Amalek to be morally objectionable therefore means that you are willing to risk the destruction of the entire halakhic system over something that is purely hypothetical. Even though there are no actual Amalekites today, you must prefer to risk putting a kosher symbol on very real ham sandwiches rather than admit that, if there were actual Amalekites, we should kill them.  (There are implications here for how we respond to rabbis who proudly make a point of saying “politically incorrect” things about gentiles in the name of demonstrating their allegiance to “authentic Torah Judaism.”)

When dealing with the Torah, it is important to face problematic texts head on.  This enables us to see how Torah morality undercuts the apparent morality of its own legal structure. Slavery, rape of captive women, and genocide are horrific doctrines.  Challenging them risks the very notion of halakhah and of our being a chosen nation. Taking a moral stance against the Torah’s moral monsters requires making one’s peace with this.  But it also means being true to the Torah’s carefully and subtly expressed morality.

 

Benzion N. Chinn (SBM 2003) lives in Pasadena, CA with his wife, Miriam, and his two children, Kalman and Moshe Eli. He works as an academic and special needs tutor. In his spare time, he pontificates on religion, politics, and sci-fi/fantasy (everything he is not supposed to talk about at the dinner table) over at izgad.blogspot.com.

 

 

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Are Husbands Commanded to Make Their Wives Happy?

by Rabbi Aryeh Klapper

This dvar Torah is dedicated in memory of Fishel Yitzchak Ben Shmuel Zisblatt by his wife, children, grandchildren and great grandchildren.  To sponsor a weekly dvar Torah, please email moderntorahleadership@gmail.com

I had the privilege many years ago of meeting the extraordinary rosh yeshiva/novelist Rav Chaim Sabato at a family picnic/soccer game.  After some goodnatured badinage (=trash talk) about the unfortunate consequences of my choosing to play in sandals, we got into a more serious conversation about my beard.  I told Rav Sabato that I intended to shave on my first wedding anniversary, once the mitzvah of making my wife happy had expired.  He insisted forcefully that the mitzvah applied throughout one’s lifetime.

I hope that I’ve succeeded in living by his ruling, and it is of course a stringency that all husbands should adopt voluntarily and with gusto. But nonetheless “this too is Torah, and I need to learn”.  So a score and more years later, I am finally willing, albeit with trepidation, to start an in-depth look at the topic.

Devarim 24:5 reads as follows:

כִּֽי־יִקַּ֥ח אִישׁ֙ אִשָּׁ֣ה חֲדָשָׁ֔ה

לֹ֤א יֵצֵא֙ בַּצָּבָ֔א

וְלֹא־יַעֲבֹ֥ר עָלָ֖יו לְכָל־דָּבָ֑ר

נָקִ֞י יִהְיֶ֤ה לְבֵיתוֹ֙ שָׁנָ֣ה אֶחָ֔ת

וְשִׂמַּ֖ח אֶת־אִשְׁתּ֥וֹ אֲשֶׁר־לָקָֽח:

When a man takes a new wife

He does/must not go out in the army

and it may not impose on him for any matter

He will/must be clear to his house for one year

and he will/must gladden his wife whom he took.

Midrash Halakhah focuses on the apparent redundancy of concluding phrase “whom he took”. Since halakhah ordinarily requires the consent of both parties for marriage, how might she have become his wife, if not via his taking her?  The answer given in Mishnah Sotah 8:4 is that the extra phrase extends the obligation even to a wife via levirate marriage.

“ושמח את אשתו” – זו אשתו;

“אשר לקח” – להביא את יבמתו

“he will/must gladden his wife” – this refers to his wife;

“whom he took” – to include his levirate wife.

This answer seems to point to another problem.  Why is it necessary to include a second mention of “his wife” at all?  Moreover, this redundancy seems related to the odd structure of the unit, which brings up “gladdening his wife” only after interposing a set of specific don’ts.  Compare Dvarim 20:7:

וּמִֽי־הָאִ֞ישׁ אֲשֶׁר־אֵרַ֤שׂ אִשָּׁה֙ וְלֹ֣א לְקָחָ֔הּ יֵלֵ֖ךְ וְיָשֹׁ֣ב לְבֵית֑וֹ

פֶּן־יָמוּת֙ בַּמִּלְחָמָ֔ה וְאִ֥ישׁ אַחֵ֖ר יִקָּחֶֽנָּה:

Any man who betrothed a woman but did not take-her-as-wife – he may/must go return to his house

lest he die in the battle, and another man take her.

Devarim 20:7 focuses exclusively on the man’s expectations, whereas the section in our parshah mentions only the woman’s expectations.  (Targum ‘Yonatan’ translates our verse as “he must rejoice with his wife”, but Rashi rejects this because the text is pointed vesimakh, which is transitive.)

This different focus may also explain the midrash halakhah’s approach to “a new wife”.  A beraita on Sotah 44a explains that this means “new to him”, so that it includes widows and divorcees, and excludes only remarriage to one’s own divorcee.  In other contexts, such as the recitation of Sheva Berakhot, the rabbis indicate that men’s emotional expectations are on average lower when they marry previously married women.  Yet here, there is no difference, because such women’s expectations are not lower. (Ibn Ezra reports that “some say” that we translate “new wife” as “virgin”, but this position has no impact in halakhah.)

Presumably, we can put the “new wife” together with “the wife whom he took” to create a composite legal set of wives, namely any wives, whether freely chosen or levirate, whether or not previously married, so long as they were not previously married to this husband. Husbands of these wives are exempt from army service and clear to their houses for the year after marriage, so that they may gladden their wives.

The simplest reading of this is that husbands are obligated to gladden their wives so long, and only so long, as they are exempt from army service.  This is the approach I had assumed, and it seems clearly taken by Rambam in Sefer HaMitzvot DO #214:

והמצוה הרי”ד היא

שצונו להתייחד החתן עם אשתו שנה תמימה,

שלא יסע חוץ לעיר

ולא יצא בצבא

ולא יעבור עליו דבר מהדברים הדומים לאלו [ל”ת שיא],

אבל ישמח עמה עד מלוא שנה מיום בואו אליה.

The 214th commandment is

that we are commanded that the groom be alone with his wife for a complete year

meaning that he may not travel out of the city

nor go out in the army

nor have anything similar imposed on him [see DON”T #311]

rather he must rejoice with her until a full year from the day he comes in to her

However, Rav Sabato’s reading is adopted by Sefer Mitzvot Katan (=SMK) #285:

לשמח את אשתו

כדכתיב ושמח את אשתו אשר לקח,

יש בעשה זה לאו, שנאמר ועונתה לא יגרע,

והנה כמה גדולה המצוה הזאת שהרי פטרתו תורה מליצא בצבא,

To gladden his wife

as Scripture writes: “He must gladden the wife whom he took”

This DO has within it a DON’T, as Scripture says “and her times of intimacy must not be diminished”

SMK reads the exemption from army service in the first year of marriage as a specific consequence of a general mitzvah to gladden one’s wife that has no expiration date.  The clear advantage of this reading is that it explains both the odd structure of our passage and the apparent redundancy; the last sentence is not the conclusion of the yearlong exemption from national service, but rather serves to put that exemption into the framework of a more general mitzvah.  (Rav Yerucham Fishel Perlow in his Commentary to the Sefer HaMitzvot of Rav Saadia Gaon suggests that this general mitzvah may be implied here but derived directly from other verses.)

However, Netziv in Haamek Davar uses the same structure to make a radical claim in the opposite direction.  He claims that the husband has the option, not the obligation, to use the time gained via exemption from service to gladden his wife.

“ושמח את אשתו

אינו מצות עשה לשמח את אשתו כל השנה הראשונה,

דזה אינו, ואפילו מדרבנן אינו מחויב לשמחה אלא שבוע אחד,

וכבר עמד ע”ז בס’ יראים, וכתב בזה”ל:

חייב לשמחה בכל דבר שיודע שיש לה שמחה עכ”ל,

ומשום שהיה קשה לומר דמצוה לשמח כל השנה בשמחת נשואין,

מש”ה פירש “ושמח” היינו שמחה בלב במלוי רצון,

 כמו “נתתה שמחה בלבי” ועוד הרבה,

אבל האמת דפי’ “ושמח את אשתו” אינו אלא רשות,

דיכול הוא לשבת בביתו ולשמח את אשתו אף על גב שכל ישראל בצער מלחמה.

He will gladden his wife –

This is not a DO to gladden his wife the whole first year,

as this is not so, and even Rabbinically his is only obligated to gladden her for one week.

Sefer Yereim already noticed this, and therefore wrote as follows:

“He must gladden her with anything that he knows gives her happiness”

Because it was hard to say that this is commanding to gladden all year with wedding celebration,

Yereim explains “he will gladden” as referring to internal joy and fulfilling her wishes

as in the verse “you have placed joy in my heart”, and many others.

But the truth is that “he will gladden his wife” it is only a permission,

that he is permitted to stay home and gladden his wife even though all Israel is in the suffering of battle.

One might suspect Netziv of being antiromantic.  But his next comment demonstrates the opposite:

“אשר לקח” –

טעם הוא שהזהיר הכתוב בזה,

משום דהיא חדשה לו ועדיין לא נשרשו בחיים,

ואם יסיח דעתו ממנה – יוכל להיות שינתק החבל לגמרי,

אבל בלי כפיה רשאי לצאת,

וממילא לא יצא

אם לא יהא ברור שישוב לאהבתה:

whom he has taken

this is the reason Scripture commands these exemptions,

since she is new to him, and they have not been rooted in life,

so that if he stops concentrating on her – possibly the cord will be completely parted.

But he is permitted to leave so long as there is no external compulsion,

and it will therefore turn out naturally that he will not leave

unless it is certain that he will return to her love.

It seems to me that Netziv held that love can only flourish in freedom.  Law can give us freedom from oppression, and thereby freedom to love, but law cannot make us love.  Moreover, no one healthy can be made happy by someone who is compelled to fulfill their wishes, so a general mandate to gladden one’s spouse would be self-defeating.

Netziv’s specific halakhic position is at best a minority, and the mainstream of Jewish tradition does not fully share his idealistic romanticism.  Rav Sabato had good reason for preferring SMK.

But Elul is the month of romance – Ani l’dodi v’dodi li – and therefore an excellent time for considering the power of Netziv’s underlying psychological claim, in both marriage and religion.

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Taking the Hard Way Out

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

דברים י׳ז:ט׳ז

רַק לֹא יַרְבֶּה לּוֹ סוּסִים וְלֹא יָשִׁיב אֶת הָעָם מִצְרַיְמָה לְמַעַן הַרְבּוֹת סוּס וַיקֹוָק אָמַר לָכֶם לֹא תֹסִפוּן לָשׁוּב בַּדֶּרֶךְ הַזֶּה עוֹד

Moreover, he shall not keep many horses or send people back to Egypt to add to his horses, since Hashem has warned you, You must not go back that way again

The Torah forbids a Jewish king to send Jewish people back to Egypt.  While the Torah only references a king, the Rambam (הלכוֹת מלכים ה:ז) understands this as a prohibition for all Jews in all generations, forbidding them to live in Egypt. The Talmud (Sukkah 51b) records the view of Abaye that this halakhah needs to be taken seriously, as a large and successful community in Alexandria, Egypt was wiped out by Alexander the Great because they had failed to heed this prohibition.   

Why should Jews hundreds, or even thousands, of years after the redemption from Egypt be barred from living in that country? While this prohibition would be understandable for the generation that received the Torah, as they had just been redeemed from slavery in Egypt, why should there be a prohibition for all generations?  The Torah doesn’t forbid us to live in Spain, Russia and even Germany, places where horrific atrocities were done to the Jewish people, and in more recent memory. So why the prohibition to live in Egypt?

Rav Shimshon Raphael Hirsch explains that Egypt represents wealth. We see in Sefer Bereishit that Avraham goes to Egypt to avoid a famine, and Yaakov’s family does as well. Egypt is viewed as a place of natural resources, technological advancement and tremendous wealth. This presents a unique challenge. The temptation to become closely connected to Egypt is powerful, because they can ease many of the burdens facing the land of Israel.

A Jewish king could easily lean on Egypt for their natural resources and technological prowess, neglecting their own land and people. So too, if Jews start moving to Egypt there is a risk that they may stay there permanently for financial reasons. Over time the Jewish people will Become too dependant on Egypt, which puts the welfare of the Jewish people at risk and removes the motivation to cultivate the land of Israel and utilize the ingenuity of the Jewish people. This is not to say that the Torah is against all imports, merely the danger of becoming so dependant on one country that our independence becomes compromised.

While the Torah only prohibits us from living in Egypt, this lesson can certainly be applied more broadly. Our land and our people are our most valuable resources, and we need to have trust that Hashem will help us cultivate both. When we do so, we fully maximize the potential of our people and our land. Over the past seventy years we have seen the capacity of the people and the land of Israel when we are independent and self-reliant. May we never lose that vision or forget just how successful we can be if we trust that Hashem will help us maximize the potential of our people and our land.

Rabbi Joshua Strulowitz (SBM 2000) is a faculty member of  Yeshiva University High School for Girls, where he also serves as the curriculum coordinator for the Talmud and Halakhah departments.

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(When) Should Halakhah Be Enforced?

by Rabbi Aryeh Klapper

America has a “wall of separation” between synagogue and state, whereas in Israel the civil courts can be called upon to enforce the orders of state-recognized Rabbinical courts (batei din mamlakhtiyim).  This difference was brought to public attention most recently when the Israeli police arrested a Masorati rabbi for failure to obey a beit din summons (not, as many reported, for performing an unauthorized wedding; that was the subject of the summons, not the cause for the arrest).  Such cases test whether Jewish, and specifically Orthodox, support for religious freedom in the U.S. is a substantive commitment or rather a pragmatic concession to the realities of life as a small religious minority. 

Here are two other ways in which the depth of that commitment can be tested. 

First, Israeli courts have the authority to impose sanctions such as confiscation of passports and drivers’ licenses or even imprisonment on men who refuse a beit din’s order to divorce their wives.  Do we support the utilization and even strengthening of such measures, such as the recent extension of this authority to Jewish non-citizens passing through Israel? 

Second, consider the opening of this week’s parshah (Devarim 16:18)

שֹׁפְטִ֣ים וְשֹֽׁטְרִ֗ים

תִּֽתֶּן־לְךָ֙ בְּכָל־שְׁעָרֶ֔יךָ

אֲשֶׁ֨ר יְקֹוָ֧ק אֱ-לֹהֶ֛יךָ נֹתֵ֥ן לְךָ֖

לִשְׁבָטֶ֑יךָ

וְשָׁפְט֥וּ אֶת־הָעָ֖ם מִשְׁפַּט־צֶֽדֶק

Shoftimand shotrim

you must place for yourself in all your gates

which Hashem your G-d is giving you

by tribe

They will be shofet the people mishpat tzedek.

Rashi defines the nouns shoftim and shotrim as follows:

שפטים = דיינין הפוסקין את הדין.

ושוטרים = הרודים אחר מצותם במקל ורצועה עד שיקבל עליו את דין השופט

Shoftim= judges who decide the law

Shotrim = those who enforce their commands with baton and strap until they accept the judge’s ruling

 This verse seems to mandate the establishment of an executive – call them police, sheriff, or marshals – tasked with enforcing the rulings of the halakhic judiciary.

Rabbi Shmuel David Luzzatto (SHADAL; his commentary is now available online at alhatorah.org) sharply disagrees with Rashi.

אין ספק כי השוטרים אינם שליחי ב”ד הרודים במקל

כי במצרים הרודים במקל היו נקראים נוגשים, לא שוטרים

ולמעלה (א’, ט”ו) אמר

“ואקח את ראשי שבטיכם אנשים חכמים וידועים ואתן אותם ראשים עליכם וגו’ ושוטרים”,

ובדברי הימים ב’ י”ט:י”א

“והנה אמריה כהן הראש וגו’ וזבדיהו הנגיד וגו’ ושוטרים הלוים לפניכם”,

וביהושע ח:ל”ג

“וכל ישראל וזקניו ושוטרים ושופטיו”,

והנה השופטים היו דנים במה שבין אדם לחברו, או בבוא עדים על איש שחטא,

והשוטרים היו משגיחים על שלום המדינה וגוזרים גזרות והנהגות על העם

There is no doubt that the shotrimare not the agents of beit din who enforce via baton

because in Egypt the baton-enforcers were called nogsim, not shotrim

and above (Devarim 1:15):

Moshe said: “I took the heads of your tribes, men wise and known,

and I placed them as heads over you . . . and as shotrim”,

and in II Chronicles 19:11:

“Here Amaryah the Priest and Zevadyahu the nagid . . . and the Levites as shotrim before you

and in Yehoshua 8:33:

“and all Israel with its z’kenim and shotrim and shoftim.”

So the shoftim judged in interpersonal matters, or when witnesses came that a man had sinned,

while the shotrim would oversee the peace of the state and decree decrees and practices on the people.

Shadal may have a strong textual case against limiting the role of the shotrim to the physical enforcement of court orders. But his argument that they constituted a separate branch of government charged with issuing decrees has no textual basis at all!  Rather, it seems to me, his interpretation may reflect a political conviction that the judicial and legislative powers of the state are best separated, or else he had lots of terms for leaders and needed to find something unique for each category to do.

 Rashi’s reading however has a strong contextual basis.  Our verse begins by mandating the appointment of both shoftim and shotrim, and yet concludes that their single purpose is to be shofet.  This strongly indicates that the role of the shotrim is subsumed with that of the shoftim, and that they are support personnel rather than independent actors.

However, support personnel need not be tasked with enforcement specifically.  I learned from Rabbi Abraham Halbfinger of blessed memory that justice always depends on efficient administration.  The best of batei din with the best of intentions, handling divorce and conversion cases with great sensitivity and deep personal attention, but with a filing system that often misplaces vital documents, will produce more and worse long-term injustices than an impersonal and callous beit din which keeps perfect records.  One cannot expect tzedek from the best of shoftim unless they have the right personnel and system for keeping track of vital documents, or shtarot.  Some of the worst problems with batei din in both America and Israel are the result of underfunding such vital background positions, and/or of underappreciating how important it is to fill those positions well. 

But it is also true that justice ultimately also requires enforcement.  Bad people do not do the right thing by choice when self-interest points the other way; and good people can be stubborn in their mistakes, for various reasons.  A system of law that depends on entirely voluntary submission to the law and to judicial authority will end in the tyranny of bad people.  This is why competent American batei din do not agree to hear financial cases unless both sides sign secularly enforceable binding arbitration agreements. Otherwise, bad people will take good people to beit din and if they win, collect, and if they lose, simply move on to secular court.

At the same time, enforcing the law when it lacks broad social support usually generates different sorts of injustices.  It becomes a tool of power – whether in the hands of a minority or a majority – rather than a tool of justice. 

Halakhah regarding marriage, divorce, and Jewish identity is therefore often trapped within a conflict of values.  On the one hand, the fact that so many Jews reject the authority of halakhah means that efforts at enforcement are often, and often correctly, perceived as powerplays by specific subcommunities rather than as pursuits of justice.  On the other hand, leaving the area completely voluntaristic leaves one spouse at the mercy of another at the moment of greatest conflict and antagonism, and leaves converts subject to the whims of particular subcommunities, bureaucrats, and individuals.

One might argue that halakhah should meet these challenges by divesting itself of all non-personal implications.  This seems to me both impossible and wrong.  Jewish status is inherently a communal matter; to argue for the complete separation of religion and identity is to undo the fundaments of Judaism.  I think it is also reasonable for marital status to be an issue of communal concern and recognition.  The breakdown of a common understanding of marriage may make that an untenable position in the progressive West; and yet that most American liberals still seek state recognition of a broader range of marriages, rather than advocating for the abolition of marriage as a state-cognizable category, may say something important (even for those of us who think that the time has come for the state to completely remove itself from the business of marriage, and either to treat people purely as individuals, or else to let them form economic/domestic partnerships as they wish without any notion that such partnerships entail emotional or sexual elements or commitments).

There cannot be true mishpat tzedek without shotrim.  Often this means simply that our society cannot achieve true mishpat tzedek.  Often nothing positive will be accomplished by appointing more shotrim, or by giving the existing shotrim more power. Power contributes to tzedek only if it is grounded in legitimate authority, and legitimate authority requires the consent of the governed.

There is no reason or basis for aspiring to have shotrim enforce all of halakhah on a community which rejects its authority.  An immediate task for a halakhically committed community is to build moral authority for the Law in the areas where halakhah requires enforcement to produce tzedek.  To do that, we need to demonstrate our own commitment to tzedek within halakhah.  In both Israel and America, this means putting serious time, money, attention and political capital into building a beit din system that is highly professional and capable of building moral consensus across communities.

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The 2018 SBM Shayla – Honoring Parents

by Rabbi Aryeh Klapper

SBM 2018 concluded with a superb series of conversations about the Fellows’ draft responsa to the following case. It was moving and inspiring to see how seriously they took both the issues and each other’s work.  We hope that the case will stimulate further conversations among you, and look forward to sharing the Fellows’ final responsa soon.  Meanwhile, we’re including at the end some guiding questions and approaches drawn from Rabbi Klapper’s draft responsa (note that elements of his draft did not survive the Fellows grilling either).

CASE

Kirk and Gwyneth live in Hollywood, Connecticut.  She is 38, he is 39, and they have three children, girls ages 5 and 7, and a boy age 12.  She is a lawyer working for a large firm that specializes in creating offshore corporations to lower tax liabilities. He is a successful serial entrepreneur currently building a business selling nonmatching pairs of socks to young women (www.dobbysoxers.com).  They identify as Modern Orthodox and keep Shabbat and a kosher home, and hilkhot niddah deoraita.

Gwyneth’s parents, Mel and Natalie, divorced when she was still a baby.  She grew up with her mother Natalie on the Upper East Side, living a lavish lifestyle largely financed by Mel, who never forgave either her mother or her for his overwhelming defeat in divorce court.  Mel and Gwyneth were together every second weekend until her high school graduation, and while the relationship never flourished, it has also never been allowed to lapse completely.  Lately they touch base by phone every few months.  Mel has however shown great affection and generosity to his grandchildren, who call him regularly.  Gwyneth and Natalie talk almost daily, and meet frequently.

Mel is still active in his business and very wealthy.  He has never been terribly interested in Jewish practice, although he is a large donor to local Jewish institutions in his current home in Los Angeles.  He has remarried and divorced several Gentile wives since divorcing Natalie.

Natalie has become gradually more interested in religion, and now identifies as Modern Orthodox.  She is an active member of an MO synagogue, keeps a kosher home, and will not eat in nonhekshered fleishig restaurants or check her email on Shabbat, although she does make and receive phone calls and texts.  For some years, she has been in a relationship with Dustin, and they would like to marry.  However, she never received a get from Mel, and Mel has refused to discuss the matter with her, threatening to block her number if she brings it up again.  The Beit Din of America has issued a seruv against Mel and ORA has organized a demonstration in front of his house.     

Natalie asks Gwyneth to bring the issue up with Mel. Gwyneth says that she has already tried, and Mel ordered her never to mention it again.  Natalie also asks Gwyneth to prevent the grandchildren from calling Mel until he gives the get, and if she can, even to prevent them from answering the phone when Mel calls. 

Gwyneth now comes to you and asks whether she is obligated to bring the issue up again with Mel, or whether she is forbidden to, or whether she can choose whichever she thinks is right.  If the last, she’d appreciate any guidance you can give her.  She asks the same question regarding the grandchildren.  She is explicit that she would rather not interfere in their relationship with their grandfather, which has seemed to her a beautiful thing.  She also mentions that Kirk has been very clear that he would not support allowing the children to “be dragged into this thing between your parents,” and that Kirk has a good relationship with Mel that she is sometimes jealous of.  She is aware that Kirk thinks that her mother is impossible to live with, and that Mel is doing Dustin a favor by preventing Natalie from marrying him.  For that matter, she recognizes that her mother has often been a negative force in her life and in her marriage, and both Kirk and her therapist have told her that some of the things her mother has said to her in recent years amount to emotional abuse and attempts at excessive control.  She recognizes that her mother has always tried to sabotage her relationship with Mel.  At the same time, she has deep gratitude for what she sees as a mostly normal and successful childhood, and believes that the stress of not being able to marry Dustin has exacerbated her mother’s weaknesses of character.         

Kirk’s parents Sacha and Scarlett are still married to each other, and they live a few towns over in New Rochelle.  They have identified as Orthodox and been shomrei Shabbat throughout his life.  However, 10 years ago Sacha was indicted for income tax fraud for systematically taking part of the fees for his wedding catering fees in cash and not reporting them.  The indictment was dismissed after he agreed to pay a very heavy fine.  Kirk and Sacha had previously been close, but Kirk has not spoken to his father since the conviction.  He says that he prefers to keep in his mind the clear image of his father as a profoundly righteous man that he imbibed as a child.  His sense is that his father does not believe that he did anything morally wrong, and regrets only being caught, although he has no indication that his father is taking any legal chances these days. However, Kirk calls his mother every day.  Last week, she told him that his father will be receiving a lifetime service award at his shul’s annual dinner and that both of them would really appreciate it if he would make sure to be there; there seems to be a hint that his father’s health is not perfect. She mentions that they would be willing to pay for his ticket if money is an issue.  He mentions all this to Gwyneth, who opposes his going because “it will send the wrong message to our children.”  Still, he feels uncomfortable and even worried, and they both agree to ask you for advice or psak, whichever you feel appropriate.       

GUIDING QUESTIONS and APPROACHES

WHAT ARE OUR HUMAN GOALS?

  • What interest do we have, if any, in altering the relationship between Kirk and Sacha?  Note that change may strain the status quo between Kirk and Gwyneth.
  • What interest do we have, if any, in altering the relationship between Gwyneth and Natalie?  We may have a long-term interest in improving her capacity to resist Natalie, but there is no reason that process must begin now. 
  • What interest, if any, do we have in altering the relationship between Gwyneth and Mel?
  • We have a clear interest in freeing Natalie.

 WHAT ARE OUR HALAKHIC GOALS?

  • Do we think that Kirk is in constant violation of his filial obligations?
  • Do we think that Orthodox society will be helped by more protests against honoring people such as Sacha?  Do we think that such protests are worth disrupting otherwise healthy families?
  • The second question is really a generalized question of the first.  So we need to start with it, although we may conclude that he is not in violation narrowly, and yet that we have no interest in generalizing his behavior.

IS KIRK IN CONSTANT VIOLATION OF HIS FILIAL OBLIGATIONS?

Two questions:

  1. Is cutting off contact a per se violation?
  2. If yes, has Sacha behaved in a way that removes all the obligations that cutting off contact would otherwise violate?

 

Please email your substantive comments to us, or post on our Facebook page.  Thank you for reading!  Rabbi Klapper’s weekly parshah essay will iyH resume next week.

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Of Marriage and Mikvaot: When Does One Not Need to Listen to Their Parents? (Week Five Summary of SBM 2018)

by Amir Zinkow and Yair Lichtman, Senior Fellows

Up until this week, we spent the summer engrossed in the theoretical realm of Gemara, Rishonim, and codes. Now, we have finally arrived at more practical issues. Ironically, many of the more practical cases of kibbud av va’em focus on those people who are in situations that may result in their being exempt from the mitzvot of kibbud and yir’ah. These include cases of parents who tell their children to do things they do not want to do, how to live their lives, or situations of abuse, R’’L.

A seminal decision comes from the 15th century Italian posek Rabbi Joseph Colon Trabotto (Shu’’t Maharik 366). The question that came before him was complicated, with many aspects, but the part relevant to us is this: If a father forbids his son from marrying a specific woman, must the son obey? Does kibbud av require absolute obedience?

Maharik brings three reasons why a son should not have to obey his father in such a case. First, he notes that the Talmud records a dispute as to whether expenditures required to take care of a parent are borne by the child, or rather by the parent.  The consensus psak is that they are borne by the parent. Maharik argues that if we do not require a child to pay actual money for the care of his father, all the more so do we not require a child to go through the emotional suffering that would result from not marrying the woman with whom he desires to spend his life.

Maharik’s second argument is that, in a way, the father is asking his son to commit a sin. For if the son does not marry this woman, he will have to marry someone else, whom he will inevitably come to resent, and Chazal were careful not to create marriages in which resentment is present  (He derives this from the prohibition against men marrying women they have never seen, although he concedes that this prohibition can be relaxed when the alternative may be not marrying).

Finally, Maharik claims that kibbud av is limited to providing direct physical benefit to a parent. In our case, no physical benefit is present.

In shiur, we noted several interesting aspects of Maharik’s argumentation that may affect the way we posken in other cases. One issue we saw is that his first argument is very easily trivializable. How much emotional distress must children suffer before it is too much and they no longer have to listen to their parents? How do we even quantify this? What if someone just really does not want to take out the trash!?

We also observed that Maharik greatly lowered the standard of what kind of transgression a parent must ask of their child in order to remove the child’s obligation of kibbud. In the responsum, the Maharik uses the language of “nidnud aveirah“.  This phrase is difficult to translate, but indicates an action that is close to sinning but not actually sinning.

Lastly, Maharik made the claim that obeying parents is not part of kibbud or yir’ah; we were unsure whether we were comfortable writing obedience completely out of these mitzvot.

R. Moshe Isserles (Rema) in Yoreh De’ah 241:25 brings down Maharik lehalakhah, ruling that if a father is refusing to allow his son to marry someone, the son has no obligation to obey. However, Netziv, in his Meishiv Davar, reins in this general pesak. He reasons that if the marriage will cause the parent any tza’ar or embarrassment, then the son will be in transgression of the mitzvat lo ta’aseh of “arur makleh aviv v’imo”, “cursed is one who is makleh his father or mother”.  (The word makleh is difficult; one can translate it literally as “lighten”, or else as a lesser form of mekallel, or cursing.) In such cases, the son is obligated to obey the parent and not marry the wife of his choice.

We noted again how difficult it is to quantify tza’ar and embarrassment. When weighing a son’s tza’ar against his father’s, it becomes even more challenging to decide: Whose tza’ar is greater?  We also noted that the prohibition against being makleh parents does not appear in the Talmud, although it does in Rambam (Hilkhot Mamrim, end of Chapter 5), and in any case Netziv expands it well beyond Rambam to include causing parents tza’ar or to indirectly cause them bizayon.

Whether or not one accepts (some or all) of Maharik’s arguments will determine the extent of the obligations of kibbud av va’em in a variety of practical cases. For example, Rabbi Chaim Jachter spoke to SBM about the possible application of harchakot d’Rabbeinu Tam by a son on his father. These sanctions, sometimes imposed by a beit din on a recalcitrant husband to encourage him to give his wife a get, involve the cessation of most forms of social interaction with the husband, including business interaction and casual conversation. May a daughter participate in such sanctions against her father?  Would that extend to refusing direct requests for food or conversation? Rabbi Jachter didn’t issue a definitive ruling on the matter, but it may depend on such issues as whether one must endure emotional pain in the pursuit of this mitzvah, whether the father’s attempts at interaction would be considered “requests to violate the Torah,” and whether maintaining social contact is part of the mitzvah. Rabbi Jachter also raised a potential distinction between teenagers and adult children, considering the effect on both the children and the parents at these varying stages of life.

Another situation in which Maharik’s arguments play out is the case of a mother instructing her son to violate a personal religious practice which falls short of a complete obligation. Shu”t Arugat HaBosem (OC 19), by Rabbi Moshe Greenwald, relates to a man who wants to know if he must listen when his father instructs him to refrain from immersing in a mikveh before prayer. In his discussion, Rabbi Greenwald evaluates whether there is, in fact, an element of mitzvah in such an immersion, and concludes that

כיון דמעולם היה מנהגך כך

א”כ פשיטא דלא גרע ממאי דאיתא ביו”ד סי’ ר”ד דבכל דבר מצוה אם נהג כן ג’ פעמים אפילו לא הוצא בשפתיו צריך לקיים מצד נדר…

Since your practice has always been to do this,

if so it is obvious that this is no worse than what is found in Yoreh Deah 204, [which says] that in every matter of a mitzvah, if one acts in that way three times, even if he did not articulate it with his lips, he needs to fulfill it as a neder…

Rabbi Greenwald allows a person to disobey his parent only after determining that this practice constitutes a mitzvah of sufficient weight.

Shu”t B’tzel HaChochmah (2:55) deals with a case of a son who learns that his father has cancer, whose father asks him to tell him about the diagnosis. Rabbi Betzalel Stern, presuming that it would be bad for the father’s health to hear the news, discusses whether listening to the father’s request falls within the realm of kibbud. He concludes that the son should not tell his father, as he seems to accept Maharik’s claim that kibbud only relates to the father’s personal needs.

This being our final week of shiur, we had a discussion about how these halakhot of kibbud av va’em would be applied given various modern values and realities. For example, given today’s sensitivities towards the emotional pain that come with certain strained relationships, how much do we require a child to go through in order to fulfill kibbud av va’em? We also considered meta-halakhic factors: As focus shifts from the family to the individual, how does this affect our pesak regarding kibbud av va’em? If kibbud av va’em as previously paskened assumed that individual identity (the Self) is at least partially constituted by family membership, and that this halakhah is fundamentally about the creation of a family unit rather than about the fulfillment of the individuals in the relationship, whereas we share modern culture’s position that individual fulfillment is a greater value, and see the self as existing prior to its membership in the family, perhaps this should affect our attitudes towards this mitzvah.  Or perhaps the mitzvah should challenge us to rethink our acceptance of cultural assumptions on these issues.

The modern phenomenon of ba’alei teshuvah raises another issue.  One standard rationale for these mitzvot is that they inculcate respect for the wisdom of the past, and thereby for Jewish tradition.  How do we conceive of and justify these mitzvot for people and societies in which Torah and Halakha are revolutionary instead of traditional? In other words, when children of non-frum parents become frum, they are breaking with tradition – with the way their parents think and act.  How does our tradition deal with this? Are ba’alei teshuvah obligated in kibbud av va’em even though their parents do not keep halakhah?  Does it matter whether the children’s return to observance is experienced as a fulfillment of shared values that the parents did not live out, or as a rejection of parental values?

As we enter our week of teshuvah writing, we are struggling with these questions and more. We hope to consider the cultural, meta-halakhic, and modern realities as we write. Perhaps most importantly, we look forward to weighing the values that underlie all of kibbud av va’em and producing responsa that reflect those values.

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