Monthly Archives: February 2019

Was Making the Golden Calf a Violation of Halakhah?

by Rabbi Aryeh Klapper

According to yibadel l’chayyim my father, my grandfather z”l did not sing the stanza “Tzeitkhem l’shalom” (Go in peace) on Friday nights, because he thought it was rude. My wife’s family sings Tzeitkhem, but omits the stanza “Barkhuni l’shalom” (Bless me in peace) on the ground that asking angels for blessings violates Rambam’s Fifth Principle of Faith.  We’ve agreed to disagree about this.

I sometimes frame the issue this way to our confused guests: Do you worry more about interpersonal mitzvot, or rather about mitzvot between humans and G-d?  About derekh eretz, or about avodah zarah? Then I justify my grandfather’s position by quoting King David: “Let us please fall at the hand of Hashem, for His mercies are numerous, and let me not fall at the hand of a person.”

There are other options.  We could sing neither stanza, and leave the angels standing there awkwardly (“In every other house they ask us to bless them?!?”) until they decide on their own to leave. Or we could add the fifth stanza “Shuvkhem l’shalom” (Return in peace), which at least mitigates the rudeness.

But it turns out that our eccentric pattern of sounds and silences beautifully models for our students the ability to disagree passionately and yet respect each other’s practices. (For our children, the punchline of the old Jewish joke applies: “That was the custom, to fight about it!”)

The truth is, though, that I started off thinking that Deborah’s objection to Barkhuni was simply wrong.  After all, Yaakov Avinu denies an angel leave to go “unless you bless me,” and he asks for his grandchildren to be blessed by “the angel who has redeemed me from all evil!” I discovered some years ago that the objection was reliably attributed to R. Chayyim Volozhin, but with all respect, could not understand how he justified it in light of the verses about Yaakov. The more serious theological problem with “Shalom Aleikhem,” it seemed to me, is that people tend to sing not “melekh malkhei hamelakhim” (King who is king of all kings) but rather “melekh malakhei hamelakhim” (King who is messengers of the kings, or: King of the messengers of kings).

Netziv’s commentary to Parshat Ki Tisa made me rethink this issue, and several others along the way.

Netziv starts from the classic question: How could the great Aharon haKohen have enabled idolatry by making the Golden Calf? He rejects out of hand the notion that Aharon was simply afraid for his life. Nor does he deploy his radical notion of aveirah lishmah(sinning for the sake of Heaven), according to which a violation of halakhah can sometimes be justified on consequentialist grounds. He does not cite the Midrashic claim that Aharon was surprised by the spontaneous emergence of a calf from the melted gold. Instead, Netziv argues that Aharon must have had a correct legal argument that justified making the Calf.

Netziv knows perfectly well that the Golden Calf becomes the archetypical avodah zarah in Tanakh. He does not suggest that Aharon’s argument is still valid. But he contends that G-d extended the perimeter of the prohibition against avodah zarah in reaction to the Calf.  Praying to intermediaries that can only carry out Hashem’s will was originally permitted, and the desire for mediation was a legitimate expression of fear of G-d. However, the experience of the calf demonstrated that intermediaries would inevitably be taken as substitutes. Perhaps it also created the social-religious will necessary for a ban on intermediaries to be effective rather than generating a worse counterrevolution.

This prohibition comes after the Giving of the Torah via the Ten Statements
“Do not make with me elohim of silver, and elohim of gold you must not make for yourselves”
meaning that they must not make a form of silver that would make it convenient for G-d to manage Israel and relate to their prayers and needs, or a form of gold that would make it convenient for Israel to constantly ask it to receive their needs from The Holy Blessed One.
This is not actual
avodah zarah, which was prohibited to them in the Ten Statements when He said “You must not have other elohim…” as there the meaning is an overseer with power, that we would chas v’shalom believe that The Holy Blessed One transferred His management to some middlebeing, but this prohibition, that comes after the Giving of the Torah, comes to add a ban even in a manner where the middlebeing will ask Hashem for our needs,
and this is actually permitted, as I explained regarding the above verse “Behold I send an angel…” (23:20)
as it is only when The Holy Blessed One is as close to Israel as he actually was with Mosheh that it is forbidden to transfer our request to angels even in that manner, as opposed to when he manages us via an angel, when even though it is possible to ask Him directly, nonetheless there is no sin
chas v’shalom in asking the angels to seek mercy for us from Him the Blessed…
This was the intention of Aharon the Righteous, which was an accidental violation of a prohibition that he had as yet no responsibility to know, but great corruption came from this…

When Yaakov demanded a blessing from the angel, he was clearly not on the level of Mosheh Rabbeinu, and the Calf had not yet happened, so his demand was legitimate.  However, after the disaster of the Calf, G-d ‘built a fence around the Torah’ by forbidding us to addressing requests to intermediaries even when the ultimate addressee of our requests is clearly G-d, Who alone has the capacity to fulfill or reject them. So “Barkhuni” can be forbidden even though by singing it we follow in the footsteps of Yaakov Avinu.

Netziv does not discuss “Barkhuni’ directly, and my wife Deborah considers this defense of her position more problematic than the challenge from Yaakov.  I too will cheerfully continue to sing Barkhuni rather than accept Netziv’s explanation, for both textual and theological reasons.

But having thought of this application of Netziv, I looked to see if anyone had made the argument explicitly.  I looked in vain. But the search led me to discover that the issue goes back much further than I had realized.  An excellent summary and analysis of the literature (relating to 32 separate piyyutim or tefillot!) can be found in an article by Rabbi Shlomo Sperber in  the journal Yeshurun, Volume 3 (5757), which I found on the Otzar HaChokhmah site but is publicly available at

Rabbi Sperber’s earliest source is a responsum from Rav Sherira Gaon that accepts as a matter of course that one prays to angels for some matters, and directly to G-d for others. Rav Sherira uses this to explain why, when Rav states that one must not pray for one’s needs in Aramaic, Rav Yochanan explains that angels don’t understand Aramaic. (He concludes that one need not be concerned for this in practice, but raises no theological objections).  Nonetheless, such prayers are not found elsewhere in Geonic literature (with the possible exception of Siddur Rav Amram Gaon). But they are produced in a flurry in early medieval Ashkenaz, to the dismay of the Maimonideans, and the polemics develop from there.

Rabbi Sperber concludes by publishing a responsum of Rabbi Samson Raphael Hirsch that offers a valuable model for dealing with many contemporary conflicts, which so often depend on whether we are willing to read each other’s words and opinions generously.

בקשת האדם אצל המלאכים שיבקשו עבורו אצל הקב”ה הוא תופעה מצויה המובאת בחז”ל בסנהדרין מד:
“ר’ יוחנן אמר: לעולם יבקש אדם רחמים שיהו הכל מאמצין את כחו”,
ופירש”י “שיסייעוהו מלאכי השרת ושלא יהו מסטינים מלמעלה”.
גם בשבת יב: “לעולם אל ישאל אדם צרכיו בלשון ארמי וכו’ כל השואל וכו’ אין מלאכי השרת נזקקין לו וכו’ שאני חולה דשכינה עמו”,
ופירש”י “אין המתפלל צריך שיזדקקו לו מלאכי השרת להכניס תפלתו לםנים מן הפרגוד”.
עכ”ז משפטים אלו ניתנים להבנה כפי נטיית הרצון.
על כל פנים לפיוט מכניסי רחמים לבטח תמצא הצדקה לפי המאמרים הללו.

Human requests for angels to request from The Holy Blessed One on their behalf is a common phenomenon that is brought down in Chazal on Sanhedrin 44b
“Rav Yochanan said: A person should always seek mercy that all bolster his strength,”
and Rashi explains “that the ministering angels should assist him, and not oppose him from above.”
Also on Shabbat 12b: “A person should never ask for his needs in Aramaic… because the ministering angels won’t relate to him… but a sick person is different because the Presence is with him,”
and Rashi explains that “the (sick person) who prays does not need the ministering angels to relate to him
to bring his prayer within the Curtain.”
Nonetheless, these statements can be understood however one wishes.
However, you can certainly find a way of justifying the piyyut “Makhnisei rachamim” on the basis of these citations.

It would be absurdly disingenuous to present Rav Hirsch as a model of theological tolerance who prized communal unity over truth. Rather, he explicitly and compellingly self-identified with the zealotry of Eliyahu/Pinchas.

Moreover, Aharon’s error teaches us that compromise and unity are not supreme values. Sometimes there is no way to avoid calling out: “Whoever is for G-d – to me!” even at the cost of civil war, or of losing one’s representation in the Knesset, and even when the other side has a technically defensible halakhic argument.

But like Pinchas in the Book of Joshua, who prevents civil war by accepting the claim of the Tribes in TransJordan that their altar was not idolatrous, Rav Hirsch’s commitment to theological truth was tempered here by a commitment to human truth.  He sought to accurately understand others’ religious expressions in their own terms, and to defend them where a defense was available. Whether a person is capable of turning down opportunities to express their zealotry against fellow humans may be a useful metric of whether they are capable of making positive contributions to religious society.

Leave a comment

Filed under Uncategorized, Weekly Devar Torah

2019 Annual Essay on Commandedness in memory of Matt Eisenfeld

by Rabbi Aryeh Klapper

A human action that fulfills a Divine command/צווי is religiously different from the same action undertaken in response to Divine will/רצון. This proposition is central to contemporary Orthodox ideology.

The ideological centrality of commandedness manifests itself in three separate contexts, which may pull in opposing directions.  

1) Commandedness separates Orthodoxy from non-Orthodoxy. (This is Orthodoxy’s perspective – I am not evaluating here the efforts made in other communities to reclaim the language or substance of commandedness.)

2) Commandedness enables an understanding of chosenness that is rooted in responsibility rather than ontology.  “Here is contained the response to those who claim that the Jewish religion is a racist religion, Heaven forbid . . . we believe that our chosenness stems solely from our being subject to additional commandments, and anyone who accepts upon himself or herself the Yoke of Heaven is absolutely able to join our nation and is called by the name of Israel.” (Rabbi Yaakov Kaminetsky, Emet l’Yaakov to Avot 1:11)   

3) Commandedness justifies gender non-egalitarianism.

The first two contexts are conducive to framing commanded actions as qualitatively superior. In the third context, however, such claims generate accusations of misogyny and the like. Women are אינן מצוות (not commanded) in a set of mitzvot that are experientially central to male Orthodox life, and as a result are excluded from serving as communal religious representatives for those mitzvot.

The primary textual hook for the claim of superiority is Rabbi Chanina’s statement that Greater is the one who is commanded and does than one who is not commanded and does.”  On Talmud Kiddushin 31a and Bava Kamma 87a, Rav Yosef initially assumes that non-commanded actions are greater than commanded actions, but is convinced by Rabbi Chanina’s authority or arguments to reverse his position.  (This may also be disputed between R. Abun and R. Levi in Yerushalmi Peah 1:1.)

Any number of acharonim further nuance the issue and explain that the metzuveh is superior in some ways and cases but inferior in others. Think for example of whether the mitzvah to love G-d is best fulfilled purely out of a sense of obligation. (Note that the Talmud seems to define R. Chanina’s “greater” as “receives greater reward.” See also Rabbi Francis Nataf, “Commandment, Coercion, and Modernity,” in The Tent of Abraham.)

Rav Yosef presumably remained within Orthodoxy even when he thought that acting without being commanded was superior, and I have not seen specific belief in Rabbi Chanina’s statement on anyone’s list of entrance requirement for the World to Come.  What is consensus, and I contend definitional to Orthodoxy, is that G-d commands human beings, and that His commands are binding.  It might or might not be best to be motivated by the fact of being commanded rather than by love or fear or awe of G-d and/or an independent sense of His will. But anything He commands must be done.

Moreover, some commanded actions may be forbidden and sinful if done for any motive other than fulfilling a command. The paradigmatic halakhic example is yibbum (levirate marriage), which may become incest if engaged in for other motives (at least according to the position of Abba Shaul on Yebamot 109a).  See also the position held by Rav Aharon Lichtenstein zt”l and the Chofetz Chaim that the erasure of Amalek is murder if done with any admixture of any motive other than the fulfillment of a command. Consider also the deaths of Nadav and Avihu for bringing “a zarah fire that He had not commanded them.”

Some Orthodox theologians have difficulty finding religious meaning in non-commanded actions.  Their banner is כל הפטור מדבר ועושהו נקרא הדיוט (Yerushalmi Shabbat 1:2: “He who is exempt in a matter and does it regardless is called an idiot”).

This default setting seems to run aground on such concepts as לפנים משורת הדין (going further in than the letter of the Law). But the apparent conflict may be an artifact of a false equation between “actions that halakhah requires” and “actions that G-d commands,” or may be resolvable by developing looser definitions of halakhah that include broad directives such as “You must do the straight and the good.” 

A more difficult challenge emanates from the position that women are rewarded for performing most or all of the mitzvot from which they are exempt. Many of the controversies around those issues are probably not about gender, but rather about our theological issue. Nonetheless, for understandable reasons, almost all halakhic or hashkafic conversation about them becomes entangled in, and not infrequently warped by, polemics one way or the other about gender.

What seems to me a notable exception is the treatment of these issues in Rav Yisroel Zev Gustman z”l’s Kuntres Shiurim – Kiddushin, Shiurim 19-20.  Rav Gustman’s analysis therefore seems an excellent point of departure for what I want to do here, which is to make a preliminary effort at analyzing the halakhic issues around women performing such commandments with an eye to the general philosophy of commandedness.  

Rav Gustman himself opens with a philosophic question, as follows: Tosafot and others provide psychological explanations for why a commanded person deserves a greater reward than an uncommanded person.  Rav Gustman asks: Why do we need such explanations? Let us simply say that a commanded action is intrinsically greater than an non-commanded action!

Now it is well-known that Talmud Eiruvin 96b records a Tannaitic dispute as to whether nashim somkhot reshut, meaning whether women can perform the ritual owner’s-leaning-of-hands on sacrifices. R. Yose and Rabbi Shim’on say they can, and R. Yehudah says they can’t. The Talmud records the rationale for permitting as כדי לעשות נחת רוח לנשים, which probably means something like “to assuage women’s feelings of exclusion.”

Why does Rabbi Yehudah forbid? Rashi explains that R. Yehudah holds that women performing this ritual violate bal tosif, the Biblical prohibition against adding to the Torah.  Tosafot by contrast contend that the concern is lest women support their weight on the animal and, because they are not commanded, thereby violate the prohibition against me’ilah (deriving benefit from animals dedicated as sacrifices).

Tosafot’s assumption is that even R. Yose does not permit women to do semikhah on the sacrifice in the same way as men, who are commanded. Rav Gustman contends, with the explicit support of Raavad’s commentary on Sifra 2, that Rashi disagrees and understands R. Yose as permitting women to put weight on the animal when performing the ritual.

Why isn’t this a violation of me’ilah? Rav Gustman responds by developing a category he terms רשות דמצוה, meaning “an optional act that nonetheless is commanded”.  (Rav Gustman is following Baal haMaor Rosh HaShanah 9b. Note that this sense of the phrase must be distinguished from its sense on Talmud Bava Metzia 118b of “an action authorized by a mitzvah,”.  See also Rav Tzadok haKohen miLublin in Meishiv Tzedek 54 and on, who may deliberately conflate the two senses.)

In what sense can an “optional” act be “commanded?” Rav Gustman argues that commandedness is a property of actions, independent of who is performing them. Leaning hands on a sacrifice is a commanded act whether performed by women or by men, even though only men are commanded to perform it. (In Brisker terms: Tzivui is a din in the maaseh, not in the oseh, and does not depend on the participation of a metzuveh.)

Rav Gustman can now explain why Tosafot need to provide psychological reasons for the greater reward given to the metzuveh.  Commanded actions are not intrinsically better than non-commanded actions.  However, G-d does not keep score based on the objective quality of actions, but rather based on the subjective merit of performers.  In Grantland Rice’s formulation, “When the One Great Scorer comes, to mark against your name, He marks not that you won or lost, but how you played the game.”

Rav Gustman also draws a far-reaching set of halakhic implications. For example: Remember that full semikhah must be either a mitzvah or else a sin of me’ilah – there is no in-between. It follows that a reshut d’mitzvah, the optional performance of a commandment, is sufficient to override what would otherwise be the sinfulness of an action. Rav Gustman notes that Raavad to Hilkhot Tzitzit 3:9 records a medieval dispute as to whether women who wear linen garments with tzitzit that include t’khelet (blue wool) violate the prohibition against wearing shaatnez.  He argues that the two sides reflect the original dispute regarding semikhah. If one thinks that women are permitted to perform semikhah, then one thinks that an optional mitzvah they perform is sufficient to activate the principle עשה דוחה לא תעשה (roughly: “when the performance of a DO definitionally requires the violation of a DON’T, the DO overrides the DON’T”).

Perhaps more radically, Rav Gustman draws an analogy between women’s relationship to mitzvot they are exempt from and men’s relationship to ma’ariv, the Evening Service.  Talmud Berakhot 27b records a dispute between Rabbi Yehoshua and Rabban Gamliel as to whether ma’ariv is mandatory (chovah) or optional (reshut).  The halakhah follows Rabbi Yehoshua.  But on Shabbat 10a, Abbayay contends that if ma’ariv is optional, then once a man has “loosened his belt,” i.e. gotten ready for bed, we do not bother him to say it.  Rav Gustman deduces from here that a reshut d’mitzvah is not fully optional – one should always do it unless one has a good excuse or reason for not doing it. Therefore, he concludes, the Torah is not neutral about whether woman should perform commandments from which they are exempt. Women should not pass up opportunities to fulfill them unless they either have a strong excuse, or else face a strong halakhic counterpressure.

But we are not yet at the end of his deductive chain.  Rav Gustman sees no reason to differentiate between Jews and non-Jews, either – a mitzvah action is a mitzvah action regardless of the actor.  It seems to follow – although he does not draw this consequence explicitly – that non-Jews should seek to do all mitzvot which they are not explicitly forbidden.

Rav Gustman’s analysis does not fully convince me, nor do I find all his halakhic conclusions congenial.  His conception of “commandedness” as a property of actorless actions seems deeply odd to me. Nonetheless, or if you prefer: as a result, he compels me to acknowledge that my presuppositions about the halakhic and hashkafic implications of commandedness are challengeable.

Understanding and explicating the concept of commandedness, and the associated concept of heteronomy, should be a core task of contemporary Orthodox thought. Yet my sense is that we have made little progress.  Probably this is because of the opposing polemical tugs I outlined above.

Polemical fears around gender have also led some of Modern Orthodox communal leaders into the trap of demanding conformity in theoretical halakhic discussions, and an expanding array of practical questions. Each side frames its narrowing circle of legitimate influencers as a necessary response to the perceived threat of the other’s monolithicism, in a vicious cycle. The price of imposed intellectual conformity is always integrity. Moreover, a discourse based on fear in one direction often leads to alliances that leave one even more vulnerable to pressures from the other direction.

My hope and prayer is that bringing Rav Gustman’s analysis into public view helps stimulate a conversation that models what Orthodox halakhic discourse should be; open-minded and evidence-based with a wide range of legitimate, openly acknowledged, and often conflicting rooting interests.


Leave a comment

Filed under Uncategorized, Weekly Devar Torah

Religious Habit: Vice or Virtue

This week’s alumni Dvar Torah is by Rabbi Noah Cheses

A recent book club conversation on Shulem Deen’s book, “All Who Go Do Not Return” drilled into the following line: “Going to shul was like brushing my teeth or putting on my shoes. It was what I did, without giving it much thought” (184). We wondered together about the potential value and risk of religious rituals becoming automatic habits.

For the author of this memoir, the emphasis in his educational upbringing on habit and compliance left him overly vulnerable to critical thinking and intellectual inquiry. Once he challenged a few assumptions, the foundation of his religious identity began to crumble.

The Rabbis of the Talmud (Brachot 28b) underscore the danger of thoughtless religious habit: When you pray, don’t make your prayer a fixed activity…What is considered a fixed activity? Rabbanan say “Anyone whose prayer isn’t said in the language of beseeching.” Rabba and Rav Yosef both say “Anyone who isn’t able to introduce a new request or meaning when he prays.”

Going through the motions, without any emotion (“beseeching”) or fresh thinking (“new requests and meaning”), is not the way to lead a religious lifestyle.

While certain rabbinic texts warn us about the danger of religious habit, other texts extoll the power and value of habit. The Ein Yakov, a 16th century commentary on the non-legal parts of the Talmud, quotes a discussion about the most important verse in the entire Torah. A few options are suggested, from the shema to vehavta l’reacha kamocha.

A third verse is quoted from this end of Parshat Tezaveh which describes the Korban Tamid: “the first sheep shall be offered in the morning and the second sheep in the afternoon (29:39).” It would be hard to think of a less exciting verse than this one! The message of this verse is the value of consistency. The daily routine of mitzvoth, davening in the morning and the evening is what elevates us to the greatest spiritual heights. Like the concert cellist or Olympic skater, it takes years and years of great devotion and daily commitment to achieve spiritual excellence.

So how can we square away the seemingly conflicting texts in our tradition? Is religious habit a virtue or vice?

In typical Talmudic fashion, the answer is: IT DEPENDS. It depends on the person and the given habit; it depends on the context and the consequences. Habits are powerful forms of lasting behavior and as with most powerful things in our world, the force can be used for good or for bad. Repeated actions that harden into habits can become the best and worst components of our character.

The ideal—as suggested by the Rabbis in Berachot—is to aim for some sort of hybrid in which mitzvoth are performed with regularity and with renewal. With the investment of enough effort, even the same actions, day in and day out, can be made exciting and fresh.

Rabbi Noah Cheses (SBM 2006) is the Rabbi of the Young Israel of Sharon.

Leave a comment

Filed under Alumni devar Torah, Uncategorized

Gold, Giving, and Forgiving

This week’s alumni Dvar Torah is by Tamar Beer

Why does the Torah give us such a detailed account of the mishkan, down to its exact materials and dimensions? Why is it important for Bnei Yisrael to follow such a precise mishkan construction manual? Why, after an entire parshah of precise details, must the Torah in 25:9 command Mosheh

כְּכֹ֗ל אֲשֶׁ֤ר אֲנִי֙ מַרְאֶ֣ה אוֹתְךָ֔ אֵ֚ת תַּבְנִ֣ית הַמִּשְׁכָּ֔ן וְאֵ֖ת תַּבְנִ֣ית כָּל־כֵּלָ֑יו וְכֵ֖ן תַּעֲשֽׂוּ

Just as I show you – the structure of the tabernacle and the structure of all its vessels, (and) so you must make it.?

Do we really need this pasuk to inform us that it is crucial to follow God’s blueprint? Why is it so important to emphasize God’s command while constructing the tabernacle?

Answering these questions requires us to understand when this parshah was actually commanded.  Midrash Tanchuma suggests:

אֵימָתַי נֶאֶמְרָה לְמֹשֶׁה הַפָּרָשָׁה הַזּוֹ שֶׁל מִשְׁכָּן? בְּיוֹם הַכִּפּוּרִים עַצְמוֹ, אַף עַל פִּי שֶׁפָּרָשַׁת הַמִּשְׁכָּן קוֹדֶמֶת לְמַעֲשֵׂה הָעֵגֶל.
אָמַר רַבִּי יְהוּדָה בְּרַבִּי שַׁלּוּם: אֵין מֻקְדָּם וּמְאֻחָר בַּתּוֹרָה,
שֶׁנֶּאֱמַר: נָעוּ מַעְגְּלֹתֶיהָ לֹא תֵדָע (משלי ה, ו) – מְטֻלְטָלוֹת הֵן שְׁבִילֶיהָ שֶׁל תּוֹרָה וּפָרָשִׁיּוֹתֶיהָ.

When was this parshah of the mishkan said to Moshe?
On Yom Kippur itself, even though the parshah of the mishkan precedes the making of the egel [in the text of the Torah].
Rabbi Yehuda son of Rabbi Shalom says: There is no chronological earlier or later in the Torah, as (Proverbs 5:6) says: “Her pathways wander in ways you cannot know” . The paths and parshiyot of Torah wander..

The Tanchuma asserts that the mishkan was actually commanded following the sin with the egel, in order to atone for it. However, it is curious that in order to atone for the day in which we sinned with the gold, we build a tabernacle of gold. Especially considering that Rosh haShannah 26a informs us that a Kohen Gadol is prohibited to wear gold in the Holy of Holies on Yom HaKippurim precisely so as not to remind G-d of the Calf:

דאמר רב חסדא: מפני מה אין כהן גדול נכנס בבגדי זהב? לפני ולפנים לעבוד עבודה, לפי שאין קטיגור נעשה סניגור.

For Rav Chisda says: Why doesn’t the Kohen Gadol enter [the Holy of Holies] wearing his golden clothes? Because a prosecutor can’t serve as a defense attorney.

Rashi clarifies:

אין קטיגור – זהב העגל ושופר של פרה נמי קטיגור דעגל הוא

“You can’t have a prosecutor…” – referring to the gold of the Calf

Since Yom HaKippurim is an atonement for the chet ha’egel, it is unwise to wear things which represent our connection to the sin. Instead, on this day, we choose to distance ourselves from this sin, and wear things which are not made from the very materials of our idolatry. Why then does God command us to create the mishkan- which is also intended to atone for our sin with the calf – out of gold!?

The Midrash Tanchuma nonethless makes the connection perfectly clear:

אָמַר הַקָּדוֹשׁ בָּרוּךְ הוּא:
יָבֹא זָהָב שֶׁבַּמִּשְׁכָּן וִיכַפֵּר עַל זָהָב שֶׁנַּעֲשָׂה בּוֹ אֶת הָעֵגֶל,
שֶׁכָּתוּב בּוֹ: “וַיִּתְפָּרְקוּ כָּל הָעָם אֶת נִזְמֵי הַזָּהָב וְגוֹ”‘ (שמות לב, ג).
וּלְכָךְ מִתְכַּפְּרִין בַּזָּהָב,” וְזֹאת הַתְּרוּמָה אֲשֶׁר תִּקְחוּ מֵאִתָּם זָהָב.”
אָמַר הַקָּדוֹשׁ בָּרוּךְ הוּא: כִּי אַעֲלֶה אֲרֻכָה לָךְ וּמִמַּכּוֹתַיִךְ אֶרְפָּאֵךְ (
ירמיה ל, יז

The Holy One Blessed is He said:
Let the gold of the tabernacle comes to atone for the gold that the egel was made out of,
regarding which it is written: “and all the people took off the gold rings from their ears and brought them to Aharon”
(Shmot 32:3).
Therefore we atone with gold –  “This is the gift that you must take from them – gold . . .”
And The Holy One Blessed is He said: “For I will bring healing to you, and I will use (the material of) your wounds to heal you”
(Jeremiah 30:17).

Why is the mishkan is specifically made out of the very same material as the egel in order to atone for it, when gold is a “prosecutor” for the sin?  Midrash Aggadah T’rumah 27:1 recounts a conversation between G-d and the Jews that may be helpful.

אמרו ישראל לפני הקב”ה:
רבונו של עולם, מלכי הגוים יש להם אהל ושלחן ומנורה ומקטר קטורת,
וכן הוא תכסיסי המלוכה, כי כל מלך צריך לכך,
ואתה הוא מלכנו גואלינו מושיענו – לא יהיה לפניך תכסיסי המלוכה, עד שיודע לכל באי העולם כי אתה הוא המלך?!
אמר להם:
בני, אותם בשר ודם צריכים לכל זה,
אבל אני איני צריך,
כי אין לפני לא אכילה ולא שתייה,
ואיני צריך מאור, ועבדי יוכיחו, כי השמש והירח מאירים לכל העולם, ואני משפיע עליהם מאורי,
ואני אשגיח עליכם לטובה בזכות אבותיכם.
אמרו ישראל לפני הקב”ה:
רבונו של עולם, אין אנחנו מבקשים את האבות, “כי אתה אבינו – אברהם לא ידענו, וישראל לא הכירנו.” (ישעיה סג:טז)
אמר להם הקב”ה:
אם כן – עשו מה שאתם חפצים, אלא עשו אותם כאשר אני מצוה אתכם

[Bnei] Yisrael said before The Holy One Blessed is He:
Master of the Universe, the kings of the nations have their tent, table, candelabra, and incense- burner, which are the standard royal accessories, because every king needs them.
and You are our king, our redeemer, and our saviour – should You do not have before You the royal accessories, so that the whole world will know that You are the king?
He said to them:
My children, those who are flesh and blood need all of this, but I don’t need it,
because I do not eat and I do not drink,
and I do not need light – as my servants prove – for the sun and the moon light the entire world, and I bestow them with my light.
And I will watch over you in the merit of your forefathers.
Bnei Yisrael said to The Holy One Blessed is He:
Master of the Universe, we do not wish our forefathers, “because You are our father – Avraham did not know us (in Egypt), and  Israel did not acknowledge us (in the WIlderness) (Isaiah 63:16).
The Holy One Blessed is He said:
If so – do what you wish, but do it in the manner that I command you.

It is natural for human beings to show appreciation and respect through giving of ourselves. However, while our gifts generally benefit the recipients, this is not so with God.

Perhaps Bnei Yisrael’s former idolatry stemmed from the desire to honor and serve God in a way that felt more intuitive to them. Without the ability to gift God with valuables- namely gold- they felt detached. Once they created the calf in order to fill this void, their heads became filled with the notions that they were somehow able to benefit God, and the activity quickly turned idolatrous. When God renews the covenant with Israel, He recognizes their need to serve Him in a way which they can relate to. However, if He were to put this in the hands of the nation, they would project their own images of physical kings and deities onto the concept of God.

This is why the nation requires such detailed instructions on how to create the mishkan. When every single detail of the construction is delineated by God, it is unlikely that the nation will lose sight of the object and purpose of their worship. If God had allowed them to bring their own creativity and personal ideas into building, they can quickly come to sin- however, with the overarching mentality of commandedness, they will be guarded from their sinful thoughts.

Perhaps this can shed light onto why the mishkan serves as an atonement for the egel ha’zahav, and why it was fitting for it to be made of gold. It is gold- the shiny, valuable metal, which Bnei Yisrael felt tempted to donate to God for sinful reasons. This is now the same gold that they use to distance themselves from sin. Through the commandment of the tabernacle, God enables the nation to reclaim their use of gold and giving in worship. He enables them to use gold in order to divert their temptation towards serving a physical god, and instead, to use gold for acceptable forms of worship created to reinforce the idea of God’s power and glory in a more accessible manner. In God’s infinite mercy, He offers us, not just atonement for our major sin regarding the calf, but also a vehicle to perform complete tshvua: the Tabernacle.


Tamar Beer (SBM 2018) is a student at Stern College.

Leave a comment

Filed under Alumni devar Torah, Uncategorized

Ordination and Subordination

by Rabbi Aryeh Klapper

Can you imagine buying G-d? I can’t either. But Chazal did.

Parshat T’rumah opens with G-d telling Mosheh to initiate the bringing of its eponymous collection of gold, silver, fabrics, etc. for the building of the Tabernacle.  Except it doesn’t say v’yaviu =“they must bring,” but rather v’yikchu =“they must take,” or perhaps “they must acquire.”

How can one “acquire” via the process of donation? Midrash Rabbah suggests that v’yikchu li should be translated not as “they must take to Me’, nor even as “they must acquire for Me,” but rather as “they must acquire Me.”  Most sales of objects, the midrash says, do not entail the simultaneous sale of their seller; but when G-d sold us His lekach tov, the Torah, He made Himself part of the deal.

Rav A. Y. Kook (Responsa Orchot Mishpat CM 35) takes this midrash to a logical but shocking conclusion.  If G-d sold Himself to us, He must now k’b’yakhol (=as if it were possible) be our eved!

Some background is necessary to understand Rav Kook’s explanation of how this can be so.

Vayikra Chapter 25 concludes its presentation of the law of the Jewish eved as follows:

כִּֽי־לִ֤י בְנֵֽי־יִשְׂרָאֵל֙ עֲבָדִ֔ים
עֲבָדַ֣י הֵ֔ם
אֲשֶׁר־הוֹצֵ֥אתִי אוֹתָ֖ם מֵאֶ֣רֶץ מִצְרָ֑יִם
אֲנִ֖י יְקֹוָ֥ק אֱ-לֹהֵיכֶֽם:

Because the Children of Israel are avadim to Me –
they are My
whom I have extracted from the Land of Mitzrayim
I am Hashem your G-d.

Chazal understood the repetition “avadim to me . . . My avadim” to imply that Jews must be exclusively Hashem’s avadim, and not avadim to avadim, i.e. to human masters.

This seems incongruous, since as we noted, our verse comes as the conclusion to the laws of the Jewish eved!  Rabban Yochanan Ben Zakkai responds (Kiddushin 22b) that a Jewish eved, because he can buy his contract out pro rata whenever he has the means, is merely an employee who was paid in advance. But this is true only for his initial six-year term; if he reenlists, there is no additional payment from the master, and so no way to buy himself out.  The Torah therefore commands that his ear be pierced, since how could the ear which heard “they are My avadim” voluntarily enslave itself?!

Rabban Yochanan ben Zakkai thus argues that not all avadim are slaves.  Generations later, Rav derived (Bava Metzia 10a, 77a, Bava Kamma 116b) the converse – employees are avadim in the full sense of the word if they are bound to specific performance, i.e. if they do not have the right to buy out their contracts.  Therefore, “workers can back out of contracts, even at midday.” The Talmud (explicitly on BK 116b, implicitly on BM 10a) suggests that Rav’s principle applies in full only to workers who agree to a personal services contract over a definite time (sekhirut).  Workers who contract to perform specific defined tasks (kablanut) have less robust protections, because they are not avadim; rather, they are performing tasks they chose for themselves at a time of their own choosing.

Rav Kook’s responsum addresses the question of whether Rav’s principle entitles community rabbis to break their contracts at will.  He rules that it does not, for several reasons. His first reason exposes what seems to be a massive difference between his vision of the rabbinate and its contemporary reality.

דאין זה דבר ברור לע”ד
שרבנות תחשב שכירות כדין שכיר יום,
די”ל דאינה כ”א קבלנות . . .
וי”ל בזה שלא נקרא שכיר יום כ”א מי שעליו לעבוד תמיד כל היום
ואין לו זמן פנוי
שניכר שהוא עבד,
מה שא”כ ברבנות
שרק החובה עליו להורות כ”ד שאלת או”ה
ולדון כל דין תורה שיזדמן,
ואנו יודעין שהרבה זמן נמצא פנוי שאין בו עבודת הציבור כלל,
א”כ הדעת נותן
שאין שכירות הרבנים על הזמן
כ”א על ענין המלאכות והפעולות שעליו לעשות . . .

It is not clear to my impoverished intellect
that the rabbinate is considered
sekhirut, like day-laboring, as one can say that it is instead kablanut . . .
as we can say that one is only called a day-laborer if one is obligated to work the entire day,
with no free time,
so that it is recognizable that one is an
as opposed to the rabbinate,
where one is only obligated to rule on any questions that arise regarding the permitted and forbidden,
or to judge any lawsuits that arise,
and we know that much time remains unfilled which involves no communal work at all.
It therefore seems reasonable
that that the hiring of rabbis is not for their time
but rather for the specific tasks and actions they are obligated to perform . . .

On this basis, the contemporary 24/7 pulpit rabbinate might very well be halakhic avdut. This would enable rabbis to become free agents at will, and might seem to decisively settle the contemporary controversy over whether pulpit rabbis have serarah.

However, Rav Kook offers two further explanations for his ruling.  The first suggests that we can distinguish not only among types of contract, but also among purposes.

דעיקר כונת התורה
שלא יהי’ אדם מישראל משועבד בדרך שפלות לזולתו
משום שעבדי הם וראוי שיהי’ מכובדים . . .
וחז”ל אמרו:
אמר הקדוש ברוך הוא:
בתי נתתי לכם –
כביכול, כאילו נמכרתי עמה
וא”ז ח”ו נגד כבוד של מעלה להתעסק בצרכי קהל קודש עם ד’ אלה,
וק”ו לבשר ודם שזהו כבוד גדול לו שזכה לעבודה קדושה כזאת.
ומי זה שיוכל לומר שבכה”ג יהי’ יכול לחזור בו מטעם עבדי הם,
לא יעלה עה”ד על הדעת כלל וכלל.

The root intent of the Torah is
that a Jewish human should not be subordinated (=made an
eved) in a degrading manner to another because “they are My avadim and it is appropriate for them to be honored” . . .
and Chazal said:
“Said The Holy Blessed One:
I have given you My daughter (=Torah);
k’b’yakhol it is as if I was sold with her.”
But it is not, G-d-forbid, in opposition to the Honor of Above
to be engaged with the needs of the Holy community the nation of Hashem,
All the more so for flesh and blood,
it must be a great honor for them to merit such holy
so who would be able to say (or: would have the
chutzpah to say) that in such a case,
a person could break a contract (to perform such
avodah) on the basis of “they are My slaves?!”Such a thought should not even arise!

So for Rav Kook there is no difficulty with rabbis – and G-d!! – being avadim for the purpose of serving the Jewish community.

This argument leaves me cold.  The Torah’s objection to avdut is a question not just of social, externally derived, honor, but of autonomy and the dignity that derives from making free decisions and accepting responsibility for their consequences. Communal avadim do not necessarily have more autonomy than private avadim, and communities can abuse their power just as individuals can.

Rav Kook’s last reason seems more promising to me:

ולבד זה יש מקום לומר שברבנות לא שייך חזרה מטעם עבדי הם,
עפ”ד הסמ”ע בה’ שותפין קע”ו סקנ”א
דה”ט דשותפין הם משועבדים זה לזה, ואינם יכולים לחזור בהם מטעם עבדי הם
דל”ש עבדי הם כ”א
כשהוא משועבד לחבירו וחבירו אינו משועבד לו כלל. . .
א”כ י”ל ברב עם הציבור,
שישנם גם על הציבור כמה עניני עבדות שמשתעבדים לרבם
נוסף על סתם ת”ח,
ומחוייבים לשמוע לדבריו בכל הנהגות הקהילה
אפילו בדברי רשות, ובעניני מעות הצדקות וכיו”ב,
וכמה שיעבודי כבוד הרב ששייך רק לרב העיר ולא לשום ת”ח אחר,
כל אלה עבדות הוא מצד הציבור,
א”כ הם שניהם עבדים זל”ז
וכה”ג אפילו זולת טעם הקבלנות אינו יכול לחזור.

There is also room to say that the rabbinate may not renege on the basis of “They are My avadim
on the basis of the opinion of Sefer Meirat Einayim Hilkhot Shutafin 176:51
who explain that partners are subordinated to one another,
and therefore cannot renege on the basis of “They are My
because “They are My
avadim” applies only
when one is subordinated to another who is not subordinated to you at all
but partners are
avadim to each other, so they are not subject to “They are My avadim” . . .
We can therefore say regarding the relation of a rabbi and community
that since the community is also subordinated to their rabbi
over and above their relationship to other scholars
and they must obey his word in all communal practices
even matters that are halakhically optional, charity disbursement, and the like,
and certain aspects of rabbinic honoring apply only the city rabbi and not any other scholar,
all these are
avdut of the community to the rabbi,
therefore the rabbi and community are
avadim to each other
and under such circumstances even a day-laborer may not renege.

Here Rav Kook indeed describes the rabbi-congregation relationship as “a community consisting of a master, a mistress, and two slaves, making in all, two.

But the analogy to partnership is not perfect.  Partners are subordinate and dominant to each other in the same way, on the same axes.  In Rav Kook’s description, rabbis and congregations have very different obligations to each other, and it’s not obvious to me that they offset. Put differently, partners are equal to each other, and subordinate only to the abstraction of the partnership; neither partner is an eved, and neither has serarah over the other.  This is not true of employees and employers, or rabbis and congregations, who may be eved and sar to each other, meaning that even employees with great responsibility may be entitled to quit at will if their jobs are totalizing.

Leave a comment

Filed under Uncategorized, Weekly Devar Torah

Brit HaAganot: The Story of the Super Bowls

This week’s Alumni Dvar Torah is by Ezra Newman

Parshat Mishpatim ends with a peculiar 11-verse story colloquially referred to as “Brit HaAganot.” In this story, Moshe is commanded to go up to God, while Aharon, Nadav, Avihu and the Elders bow from a distance. Moshe ascends, returns, and tells Bnei Yisrael “kol divrei Hashem,” to which they respond “Naaseh.” Moshe then writes down “kol divrei Hashem.” He makes an altar and 12 “Matzeivot,” one for each tribe, and has sacrifices brought on the altars. He throws half the blood from these sacrifices on the altar. He then reads Bnei Yisrael the “Sefer HaBrit,” to which they respond “Naaseh viNishmah.” He takes the rest of the blood and throws it on Bnei Yisrael, exclaiming that “this is the blood of the covenant between them and God over these devarim.” Then Moshe, Aharon, Nadan, Avihu and the Elders go up to God, where they see God, and God does not harm them. They eat and drink.

This is an unusual story, presented without context or explanation. The commentators ask: Did this story happen before or after Matan Torah? Why can the non-Moshe leaders go up to God at the end but not at the beginning? Why do Bnei Yisrael respond to being told “kol divrei Hashem” by saying “Nishma,” but to Moshe reading them the “Sefer HaBrit” by saying “Naaseh viNishmah?”

The best way to answer these specific questions involves focusing on a broader question: what is the purpose or message of this narrative?

Most commentators explain that this is the narrative of God establishing a covenant between God-self and Bnei Yisrael. Rabbi Chanoch Waxman of Yeshivat Har Etzion notes that the narrative ends with two classic tropes of covenant stories, the appearance of God to people and the sharing of a meal. But what is the content of this covenant? We are not given any details from “kol divrei Hashem!” Abarbanel writes that this is a covenant built around the Torah, which is established through the dual actions of Moshe reading the “Sefer HaBrit” for Bnei Yisrael and the throwing of the blood partly on the Mizbeach, representing God, and partly on the Matzeivot, representing the nation. Chizkuni adds that the splitting of the blood evokes the Brit Bein-HaBetarim, a covenant between God and Avraham. Rashi explains that this is a sort of conversion ritual for Bnei Yisrael, as the Talmud derives from here that conversion requires Hartzaat Damim, a sacrificial blood ritual (when the Temple is standing).

According to Rashi, this narrative actually happened before Matan Torah, and is out of place in the Torah. The standard covenant answer similarly supposes that this narrative is placed out of order in the Torah, as it actually describes a part of Matan Torah itself or an event that occurred directly after Matan Torah.

Ramban, however, kidarko bakodesh, explains that this narrative is appropriately chronologically placed in the Torah, and happened well after Matan Torah. I believe that Ramban’s reading is compelling, and that this narrative is not about God establishing a covenant with Bnei Yisrael or of them engaging in some sort of conversion ritual.

The purpose of this narrative is to illustrate the transition and dispersion of power within Bnei Yisrael after Matan Torah. Before Matan Torah, Moshe was the sole leader, but after this narrative, his leadership is dispersed among other members of Bnei Yisrael, namely Aharon, Nadav, Avihu and the Elders.

It is clear at first glance that this narrative revolves around the actions of Moshe. The word Moshe is the milah manchah (leitmotif) of this 11-verse narrative, appearing 7 times. Yet it is not immediately clear why Moshe is central here.

The message is gleaned through investigating the structure of this narrative. The unit has almost a perfect chiastic structure, but with each section containing a twist to demonstrate the shifting of power from Moshe to the other leaders.

  1. At the outset, Moshe is told to go up to God alone, while Aharon, Nadav, Avihu and the Elders bow from a distance. At the end of, , they all go up to God and see God. 
  2. Moshe is described by name as teaching the people the law and writing the Sefer HaBrit, but when he subsequently reads the Sefer HaBrit, his name is conspicuously absent.
  3. Moshe is in charge of bringing the sacrifices, but at the end of the narrative, all the leaders eat and drink together.
  4. In the first part of the narrative, Moshe alone throws the blood on the altar, signifying his special relationship with God, while in the second part of the narrative Moshe throws the blood on the nation, and in fact not necessarily on all of them; Ibn Ezra writes that Moshe only threw the blood on the Elders, as they represented the entire nation.

(י) ויראו את אלהי ישראל ותחת רגליו כמעשה לבנת הספיר וכעצם השמים לטהר:

יא) ואל אצילי בני ישראל לא שלח ידו ויחזו את האלהים

(א) ואל משה אמר עלה אל יקוק אתה ואהרן נדב ואביהוא ושבעים מזקני ישראל והשתחויתם מרחק:

(ט) ויעל משה ואהרן נדב ואביהוא ושבעים מזקני ישראל:

(ב) ונגש משה לבדו אל יקוק והם לא יגשו והעם לא יעלו עמו:

(ז) ויקח ספר הברית ויקרא באזני העם ויאמרו כל אשר דבר יקוק נעשה ונשמע:

(ג) ויבא משה ויספר לעם את כל דברי יקוק ואת כל המשפטים ויען כל העם קול אחד ויאמרו כל הדברים אשר דבר יקוק נעשה: (ד) ויכתב משה את כל דברי יקוק…

ויאכלו וישתו:

…ויבן מזבח תחת ההר ושתים עשרה מצבה לשנים עשר שבטי ישראל:

(ה) וישלח את נערי בני ישראל ויעלו עלת ויזבחו זבחים שלמים ליקוק פרים:

(ח) ויקח משה את הדם ויזרק על העם ויאמר הנה דם הברית אשר כרת יקוק עמכם על כל הדברים האלה:

(ו) ויקח משה חצי הדם וישם באגנת וחצי הדם זרק על המזבח:

There is still one unanswered question from among those raised at the beginning of this dvar torah: how do we explain the change in Bnei Yisrael’s response from “Naaseh” when they were told of “Kol Divrei Hashem,” to “Naaseh ViNishma” when they are read the “Sefer HaBrit?”

I think that our understanding of the purpose of the narrative can shed new light unto this question. Traditionally, the word “ViNishma” is interpreted here to refer to the word of God, “we will heed the word of God.” But I think that it’s more appropriately interpreted to refer here to the other leaders of Bnei Yisrael. The people have not changed their attitude to the word of God – they said “Naaseh” to that before, and they say “Naaseh” to that again. But now, they are recognizing that they must also heed not only Moshe relaying the word of God, but also the teachings and leadership of Aharon, Nadav, Avihu and the Elders, and to this they are saying “ViNishma.”

Ezra Newman (SBM 2013) is currently in his third year at Harvard Law School.


Leave a comment

Filed under Alumni devar Torah, Uncategorized

Is Marriage What Brings Us Together?

by Rabbi Aryeh Klapper

My thanks to the wonderful participants in CMTL’s Winter Beit Midrash 2019 for their help developing the ideas herein, for which I nonetheless accept sole responsibility.

The Torah does not present itself as a comprehensive legal code. Essential information is clearly missing – for example the mechanics of ritual slaughter, or the color and shape of t’fillin. Yet the Torah demonstrably cares about such minutiae, as we are given the mechanics of bloodsprinkling in detail, and the color of tzitzit.

Our mesorah has a variety of approaches to these gaps. Some are filled by Halakhah l’Mosheh miSinai = regulations whispered to Mosheh at Sinai aside from the public Revelation, and others by Midrash Halakhah = the system of deriving law by textual interpretation of Torah (which may itself have been whispered at Sinai). Some – perhaps most – are understood to be deliberately left to Rabbinic discretion = mesaran hakatuv lachakhamim.  Finally, some gaps seem intended almost as tests.  The correct way to fill them is discoverable only by human reasoning = sevara.

These categories interact, so that almost every area of halakhah results from their interplay. For example, the rule that one may not murder to save a life is derived by sevara – who says that your blood is redder than his? Midrash Halakhah takes the product of that sevara as the basis for legal exegesis – adultery is compared to murder to teach us that one may also not commit adultery to save a life.  Anyone lacking the capacity for accurate moral reasoning will therefore misinterpret Torah as well.

Our topic this week is marriage. The Torah never defines marriage generally and directly.  However, the laws of the daughter-sold-as-maidservant (Shemot 21:7-11, specifically 9-10) contain relevant information.

וְאִם־לִבְנ֖וֹ יִֽיעָדֶ֑נָּה
כְּמִשְׁפַּ֥ט הַבָּנ֖וֹת יַעֲשֶׂה־לָּֽהּ:
אִם־אַחֶ֖רֶת יִֽקַּֽח־ל֑וֹ
שְׁאֵרָ֛הּ כְּסוּתָ֥הּ וְעֹנָתָ֖הּ לֹ֥א יִגְרָֽע:

If he (the master) marries her to his son –
he (the son) must do for her as is the law for daughters (
mishpat habanot).
If he (the master or son) marries an additional wife –
he must not diminish her
sh’er, k’sut, and onah.

The “law for daughters” seems to point to a set of obligations that husbands have toward wives.  No details are given.  However, from the Torah’s prohibition against diminishing sh’er, k’sut, and onah if a second wife is subsequently taken, it seems reasonable to see those three as contained within the set, and possibly as comprising it.

Rabbi Samson Raphael Hirsch suggests compellingly that the Torah chooses to present the general laws of marriage in this context in order to show that all wives are protected by these laws, regardless of their social status relative to their husbands and/or their co-wives. He does not however explain why the Torah chooses to define the “law for daughters” by implication rather than directly.

Rashi records the standard definitions of sh’er = food, k’sut = clothing, and onah = sex with appropriate frequency. Each of these can be challenged as a matter of pshat – e.g. Rashbam identifies onah as housing (cf. מעון), and Targum Yerushalmi translates k’sut as tachsheeteha = cosmetics and/or jewelry.  As a matter of law, the Talmud records a dispute as to whether the husband’s obligations to provide food and/or clothing are Biblical, or rather Rabbinic (and negotiable between the parties).  Barring the introduction of new and otherwise unknown husbandly obligations, the latter position appears to require understanding all three terms in the verse as relating to intimacy.

This position is taken by Ramban.

ובגמרא (כתובות מז:) אמרו על מי שאמר כך
והאי תנא סבר מזונות דאורייתא . . .
והמובן בסוגית הגמרא שהם דברי יחיד,
והלכה מזוני תקינו לה רבנן . . .
והנה שארה – קרוב בשרה. וכסותה – כסות מטתה . . .
ועונתה הוא עונה שיבא אליה לעת דודים . . .
וכך אמרו חכמים: שארה – זו קרוב בשר,
שלא ינהג בה כמנהג פרסיים, שמשמשין מטותיהן בלבושיהן.
וזה פירוש נכון, כי דרך הכתוב בכל מקום להזכיר המשכב בלשון נקי ובקצור,
ולכן אמר באלו ברמז שארה כסותה ועונתה, על שלשת הענינים אשר לאדם עם אשתו בחבורן . . .

Ketubot 47b says regarding one who interprets sh’er as food that
“That Tanna holds that providing food is a Biblical obligation” . . .
It is understood from the flow of the gemara that this is a minority position,
whereas the halakhah is that providing food is a rabbinic enactment.
sh’er = “closeness of flesh”, and k’sutah= bedcoverings . . .
onatah = having sex at romantically appropriate intervals . . .
so the Sages say: “
She’er= closeness of flesh,
meaning that he should not act with her the practice of the Persians, who have sex while dressed.”
This is a correct interpretation,
as the way of Scripture throughout is to refer to sex euphemistically and cleanly.
Therefore, it gives these hints of
sh’erah k’sutah v’onatah to the three conditions of marital intimacy . . .

The Vilna Gaon in Aderet Eliyahu takes a radically opposite approach to the text.

“עונתה” – זו דירה, דלשמש לא צריך קרא

Onatah” – this refers to housing, as (the obligation to have) sex does not require a verse.

In other words, the Vilna Gaon believes that the husband’s obligation can be derived via sevara.

Ramban and Vilna Gaon can easily be made to agree substantively.  We can say that the fact of a sexual obligation is derived from sevara, and then the details of that obligation are derived from the text.

On this basis, we can suggest that mishpat habanot, the normative framework for marriage, is not spelled out in the Torah because it must be developed via the interaction of sevara, Rabbinic discretion, and textual interpretation. Mishpat habanot reasonably differs in polygamous and monogamous contexts.  The Torah therefore specifies that a second marriage cannot diminish the first wife’s rights – as defined by the mishpat habanot for monogamous relationships – on three specific axes.

According to Ramban, each of these axes relates to sexual intimacy. Rambam, however, adopts the position that sh’er and k’sut refer to food and clothing. I suggest that this dispute is ultimately about the fundamental nature of marriage. For Rambam, marriage is by definition a broad relationship in many areas of life. For Ramban, marriage is about the norms of a sexual relationship.  Depending on various circumstances, those norms may extend to food and clothing obligations, but one can conceive of a valid and holy marriage relationship that regulates only the sexuality of the partners.

Rambam may also see all aspects of the sexual relationship other than frequency as negotiable, and perhaps as socially dependent.  By contrast, Ramban has the Torah give specific content to the mishpat habanot on all three axes.  I have not yet found a standard for k’sut, but with regard to sh’er, he refers us to a specific regulation on Ketubot 48a (which Rambam does not cite).

תני רב יוסף:
שארה – זו קרוב בשר
שלא ינהג בה מנהג פרסיים, שמשמשין מטותיהן בלבושיהן
מסייע ליה לרב הונא, דאמר רב הונא:
האומר ‘אי אפשי אלא אני בבגדי והיא בבגדה’ –
יוציא ונותן כתובה

Rav Yosef taught a beraita:
Sh’erah – this refers to closeness of flesh
meaning that he must not act with her the practice of the Persians, who have sex while dressed.
This supports Rav Huna, for Rav Huna said:
One who says “I do not want (to have sex) except in my clothes and with my wife wearing hers” –
he must divorce his wife and pay her

Rav Yosef taught that the mishpat habanot requires undressing; in other words, it takes time and an effort at intimacy, rather than the mere satisfaction of desire. This is very likely to be threatened by the pressures of polygamy, so the Torah specifically forbade its diminution.  Rav Huna correctly derives from Rav Yosef that a husband who unilaterally limits sexual intimacy to the immediate physical act is in breach of the mishpat habanot, and can therefore be sued for divorce. Rashba to Ketubot 63a cites the possibility that physicality without intimacy is an ultimate breach, because it enables men to avoid pain while inflicting it on women. Rashba to Niddah 15a similarly understands that the husband’s mitzvah of onah derives from a prior sexual obligation that is part of the definition of marriage. Therefore, the mitzvah has no application whenever the underlying obligation has been suspended, for example by an oath not to derive pleasure from one’s partner’s body. Conversely, it may be possible to completely fulfill the mitzvah and yet be in breach of one’s sexual obligations under mishpat habanot.

The idea that halakhah regulates and expands the marriage relationship, rather than constructing it from scratch, may have broader philosophic and legal implications. For example, while the mitzvot of sh’er, k’sut, and onah are all one-way, from the husband toward the wife, it seems clear from Niddah 15a that some and perhaps all elements of mishpat habanot are reciprocal. Perhaps these mitzvot are intended to compensate for the practical factors that often undermine the fundamentally reciprocal nature of marriage. It is also possible that some aspects of the mishpat habanot are socially contingent, which would explain why the Torah never defines the halakhic marriage relationship directly.

Leave a comment

Filed under Uncategorized, Weekly Devar Torah