Monthly Archives: August 2019

Dignity and Charity

by Rabbi Aryeh Klapper

Devarim 15:7-8

כִּֽי־יִהְיֶה֩ בְךָ֨ אֶבְי֜וֹן

מֵאַחַ֤ד אַחֶ֙יךָ֙ בְּאַחַ֣ד שְׁעָרֶ֔יךָ בְּאַ֨רְצְךָ֔ אֲשֶׁר־ה֥’ אֱ-לֹהֶ֖יךָ נֹתֵ֣ן לָ֑ךְ

לֹ֧א תְאַמֵּ֣ץ אֶת־לְבָבְךָ֗ וְלֹ֤א תִקְפֹּץ֙ אֶת־יָ֣דְךָ֔

מֵאָחִ֖יךָ הָאֶבְיֽוֹן:

כִּֽי־פָתֹ֧חַ תִּפְתַּ֛ח אֶת־יָדְךָ֖ ל֑וֹ

וְהַעֲבֵט֙ תַּעֲבִיטֶ֔נּוּ

דֵּ֚י מַחְסֹר֔וֹ אֲשֶׁ֥ר יֶחְסַ֖ר לֽוֹ:

When there is among you an indigent

from one of your brothers in one of your gates in your land which Hashem your G-d is giving you

you must not fortify your heart and you must not close up your hand

from your brother the indigent

Rather you must surely open your hand to him

v’ha’aveit ta’avitenu (perhaps: “and you must surely consider his collateral sufficient to lend him”)

sufficient for his lack which is lacking to him

In Rabbinic reading, the internally redundant phrase “his lack which is lacking to him” opens the door to subjective lacks, and concomitantly, to grave concerns about unfairness, inequality, and abuse. Does Judaism endorse “From each according to their abilities, to each according to their needs?” How do we authenticate subjective lacks? Can we justify allocating resources to enable one person’s need for luxury while another remains lower middle class?

Obviously there are limits.  Each human being, of whatever economic status, has unique physical needs and tastes, and no community can provide for them all. Responsible policymakers must take public perception into account. But the underlying point is that the halakhic obligation of halakhic charity is aimed at preserving dignified life. Enabling dignity sometimes requires treating everyone alike, which is the best-case argument for school uniforms; and sometimes involves making sure that everyone’s individuality is recognized and accounted for, for example buying a homeless man on the street his preferred brand of deodorant rather than the cheapest generic.

Talmud Ketubot 67b presents an extended pointillist meditation on this issue. By ‘pointillist,’ I mean that it presents halakhic and aggadic snapshots in a single framework without telling us how they relate to each other. There is no stam/narrator telling us that this story contradicts or illustrates X exegetical claim or Y story.  By ‘meditation,’ I mean that that the goal is an experience, not an outcome.

My goal in this devar Torah is to provide clues and leading questions that convey and facilitate that experience.  I’ll present each of the sugya’s five independent elements independently, and leave it to you to put it all together.

Here is the first, a beraita in the form of midrash halakhah.

An orphan who comes to get married –

they rent him a house, prepare his bed and all his household goods,

and afterward they marry a woman to him.

as Scripture says: sufficient for his lack which is lacking for him:

sufficient for his lack = house; which is lacking = bed and table; for him = wife.

Scripture similarly says: I will make for him a helpmate equal to him.

This orphan under discussion here is self-supporting, but nonetheless is considered indigent because he is not economically capable of sustaining (or perhaps of obtaining) married life.  You can lack things that you haven’t yet had, and whose lack you never previously felt. Yesterday you were a rock and an island, entire unto yourself; today others have to exercise their generosity to provide for you. Awareness of being single generates a new lack, even though nothing objective has changed. Because the newly lacking may not understand their own needs, proper generosity requires imagination

Here is the second beraita, also in the form of midrash Halakahah.

sufficient for his lack which is lacking to him –

you are commanded to sustain him, but you are not commanded to make him wealthy;

which is lacking to him –

even a horse to ride on and a servant to run before him.

They said about Hillel the Elder

that he acquired for a poor son of a good family a horse to ride on and a servant to run before him;

once – he did not find a servant to run before him, so he ran before him for three mil.

This text revels in paradox.  Aren’t horses and servants the accoutrements of wealth? The story about Hillel suggests that wealth is not only subjective, but also relative to class. Some characters in Jane Austen novels would starve before they gave up their horse, because having a horse, or a footman, maintains their social status. Hillel was impoverished when young, and apparently never felt the need to acquire class status along with wealth. He remained comfortable as a footman, maybe even more so than as a footman’s employer. But he understood what having a footman meant to others who had experienced the reverse financial trajectory.

The third unit begins with a narrative beraita, which then generates Amoraic commentary.

A story about the people of the Upper Galilee

who acquired for a poor son of a good family from Tzippori a litra of meat daily.

The Talmud comments:

“a litra of meat” – what’s special about that?

A litra of bird meat (Rashi: which was very expensive).

If you want I will say:

For a litra (Rashi: of coins), he purchased meat.

Rav Ashi said:

It was a small village, and every day, they would kill one of their animals for his sake (Rashi: even though the market was too small to handle selling the rest of the meat before it spoiled.)

The anonymous interpretations raise questions of fairness and justice; why should this pauper be fed at such high cost? But Rav Ashi raises the stakes even further.  Supporting this one man meant wasting a communal resource, and possibly destroying the local market for meat by creating an artificial glut. Was this behavior obligatory, or even praiseworthy? Might there be behaviors that are praiseworthy done once, even though they would be ruinous if imitated?

A man came before Rabbi Nechmyah:

He said to him: What do you generally make a meal of?

He replied: Fat meat and aged wine.

Would you like to eat lentils with me?

He ate lentils with him, and died.

He said: Woe unto this one whom Nechemyah killed!

(The Talmud comments:)

Just the opposite: He should have said: Woe to Nechemyah who killed this one!

No, because he should not have made himself so finicky.

We are not told what Rabbi Nechemyah ordinarily ate, nor what he would have served had the man been habituated to lentils. For that matter, we don’t even know that the man was poor, only that he seems to have been hungry.  The story echoes that of Marta daughter of Boethius, who dies when the Destruction exposes her to aspects of life her wealth had sheltered her from. But does it also echo the meal Yaakov made for Esav? That might explain why the Talmud feels compelled to defend Rav Nechemyah, even though he appears to be blaming the victim.

A man came before Rava:

He said to him:

What do you generally make a meal of?

He replied:

Fatted chicken and aged wine.

He said to him:

Are you not concerned for the (economic) stress on the community?

He replied:

What, do I eat of theirs?! I eat of the Merciful’s!

as we learned in a beraita:

The eyes of all look expectantly to You, and You give them their food in its time

It does not say ‘their time’ but rather “its time”

This teaches that the Holy Blessed One give each one its sustenance in its time.

Meanwhile, Rava’s sister, whom he had not seen for thirteen years, came,

and she brought him fatted chicken and aged wine.

He said:

I concede to you.  Arise and eat!

Is charity an act of altruism, X giving his/her stuff to Y? Or is it an act of redistribution, mitigating an unjustified inequality and ensuring that G-d’s resources are properly used?  Does Rava’s interlocutor really know the beraita he seems to be presented as quoting? By juxtaposing these stories, is the Talmud suggesting that had R. Nechemyah waited to begin his meal, much fancier fare would have turned up? That the people of Upper Galilee were not really making an economic sacrifice?

Perhaps the unhappy death of Rabbi Nechemyah’s companion, and the miraculously good food fortune of Rava’s companion, together constitute an aggadic critique of the halakhic claim that “you are not commanded to make him wealthy.”  I prefer to suggest that the man (Eliyahu haNavi?) met Rava’s sister on her way, and knew what she was bringing and when.  The dialogue exposed Rava’s unwillingness to share even when sharing would cost him nothing but the social distinction between them.  That may be an underlying lesson – that we have the right to prioritize ourselves, and the formerly rich have a legitimate interest in preserving their social status, but we must never deny someone else for the sake of preserving our superiority over them.

Leave a comment

Filed under Uncategorized, Weekly Devar Torah

Devekut: How Can We Achieve Closeness with the Divine?

This week’s alumni Dvar Torah is by Rabbi Jared Anstandig

Devarim 11:22-23 teaches the mitzva of deveikut, or cleaving to God.

כִּי אִם־שָׁמֹר תִּשְׁמְרוּן אֶת־כָּל־הַמִּצְוָה הַזֹּאת אֲשֶׁר אָנֹכִי מְצַוֶּה אֶתְכֶם לַעֲשֹׂתָהּ

לְאַהֲבָה אֶת־ה׳ אֱלֹקיכֶם לָלֶכֶת בְּכָל־דְּרָכָיו וּלְדָבְקָה־בוֹ׃

וְהוֹרִישׁ ה׳ אֶת־כָּל־הַגּוֹיִם הָאֵלֶּה מִלִּפְנֵיכֶם

וִירִשְׁתֶּם גּוֹיִם גְּדֹלִים וַעֲצֻמִים מִכֶּם׃

If, then, you faithfully keep all this Instruction that I command you to do, 

loving the LORD your God, walking in all His ways, and cleaving to Him,  

then the LORD will dislodge before you all these nations: 

you will dispossess nations greater and more numerous than you.

How can one cleave to God? Rashi, following Sifri, notes that this cannot refer to physical cleaving to God.  In Rashi’s words,

וַהֲלֹא אֵשׁ אוֹכְלָה הוּא!

But God is a consuming fire!

How could the Torah mandate that we cleave to Him?! It is impossible, and even approaching that degree of closeness is dangerous!

Chazal and Rashi responds that though we cannot cleave to God Himself, we fulfill this mitzvah by cleaving to the Sages and those who adhere to God’s will.  Rashi writes:

אֶלָּא הִדַּבֵּק בַּתַּלְמִידִים וּבַחֲכָמִים

וּמַעֲלֶה אֲנִי עָלֶיךָ כְּאִלּוּ נִדְבַּקְתָּ בּוֹ

Rather, cleave to the scholars and sages, 

and I will consider it as though you cleaved to Him.

We cleave to God, according to this, indirectly.  By being close to and supporting students and teachers of Torah we draw close to God.

Rabbi Baruch HaLevi Epstein, in his Torah Temimah (to Devarim 4:4, note 2), comments that the rabbinic interpretation of this mitzvah seems to go far beyond what is necessary to explain the verse.  He writes

מה קשה ליה בכלל וכי אפשר להדבק בשכינה וכו’,

והלא אפשר לפרש בפשיטות

מלשון דביקות הנפש מאהבה וחבה יתירה

וכמ”ש דוד: דבקה נפשי אחריך?

What is the difficulty at all, such that we ask “is it possible to cleave to God, etc?!” 

We can explain this simply 

by translating it as referring to the cleaving of the soul out of love and great affection, 

as David wrote (Tehilim 63:9) “My soul cleaved to and followed You”

Why did Chazal feel compelled to take this verse so far away from its apparent meaning, that we strive to cleave to God emotionally and spiritually?

Torah Temimah answers essentially that clinging to God in a deep spiritual way cannot be the peshat here, because it is too difficult for a layperson to accomplish.  He writes,

וא”א לומר כזה לכל המון העם …

אלא ודאי מכוין לדבק ממש

ודבק שאפשר לכל אדם

It would not be possible to say this [that is, spiritually cleaving to God] to the masses … 

rather, it certainly means to literally cleave, 

in a manner that is possible for all people to achieve.

Chazal are forced to understand this mitzvah as cleaving to the rabbis because it would be unrealistic for the Torah to expect the masses to sincerely and deeply cleave to God.  The Torah would never put so much weight on a relationship with God that the majority of people could never reach.

While there is much truth in Torah Temimah’s comment here about the human experience and the ways in which we have truly meaningful religious experiences, I believe that, even as simple people, we can move toward achieving closeness with God directly in a spiritual way.

In Al Hateshuvah, Rav Soloveitchik presents an apparent contradiction in the words of Rambam.

כשהוא מדבר במציאות אלוקים,

שהיא מצוות עשה ראשונה,

הוא אומר בספר המצוות שנצטוינו ׳להאמין באלוקות.״

“When he speaks about the existence of God,

which is the first positive Mitzva, 

Maimonides says in (the standard translation of) Sefer Hamitzvot that we are obligated ‘to believe in God.’”

ואילו בהלכות יסודי-התורה שבמשנה תורה

משתמש הרמב״ם לא במלה ״להאמין״ אלא במלה ״לידע.״

However, in Hilchot Yesodei Hatorah in the Mishneh Torah,

Rambam doesn’t use the term “to believe,” but rather, “to know.”

Rav Soloveitchik suggests that each of these terms reflects a different experience with God.  The first is belief. Though Rav Soloveitchik does not unpack what this expression means, it seems that in his opinion, “to believe” refers to an experience of faith that God exists. A moment of profound inspiration, for instance, might cause one to “believe” in God.

Knowledge goes further.  Rav Soloveitchik maintains that knowledge cannot refer to an intellectual understanding of God, for that would be impossible.  As the Sages say, God is an all-consuming fire. Try as we might, humans are too frail to actually comprehend God. Rather,

פירושו של ״לידע״ הוא לדעתי,

כי אמונתנו במציאות ה׳ תיעשה להכרה תמידית

The meaning of “to know,” in my opinion,

is that our belief in the existence of God becomes constant.

Belief happens sporadically, in the wake on acute experiences.  Knowledge is ever-present. It’s a continuous awareness that God exists.

Rav Soloveitchik takes this even further.  More than a constant recognition of God in the world, knowledge of God means recognizing God’s involvement in one’s individual life.  For me to know God is to recognize that everything that I have is granted to me directly by God Who is consistently involved in my life.  And a person who recognizes all the good things that God has done for him can have but one response:

הוא מוכרח, כביכול, לחבק את הקב״ה

One is forced, as it were, to embrace God.

Seeing the goodness God grants to me brings me closer to God out of an immense feeling of thankfulness.

According to Chazal, I draw near to God and develop my relationship with Him by surrounding myself with rabbis and scholars.  But perhaps this is not the exclusive modality of deveikut.  The experience of reflecting on everything that one has and on its Source also draws one nearer to the Divine.

May we be all successful developing this attitude of gratitude and ultimately moving closer to God.

Rabbi Jared Anstandig (SBM 2011) is the Orthodox Rabbi at the University of Michigan Hillel and rabbi of the Ann Arbor Orthodox Minyan.

Leave a comment

Filed under Alumni devar Torah, Uncategorized

Monotheism, Matnat Chinam, and Mentschlichkeit

by Rabbi Aryeh Klapper

The Torah makes clear that Canaanite culture was a moral disaster. This moral disaster was foreseen; G-d tells Avraham (Genesis 15:16) that he cannot have the Land immediately “because the sin of the Amorites is not complete UNTIL NOW” – plainly He anticipated that it would become complete at some point before Avraham’s fourth generation, which would receive the land. How did G-d know?

We might say that G-d knows the future, including the decisions people will make, so He knew that the Amorites would sin more and more. This approach would enmesh us in medieval controversies about the relationship between Divine foreknowledge and human freedom. It seems preferable to say that Canaanite culture contained an inevitable and irresistible tendency toward moral disaster, so that G-d could predict its end.

Devarim 9:5-6 implicitly refers to this conversation between Avraham and G-d.

לֹ֣א בְצִדְקָתְךָ֗ וּבְיֹ֙שֶׁר֙ לְבָ֣בְךָ֔ אַתָּ֥ה בָ֖א

לָרֶ֣שֶׁת אֶת־אַרְצָ֑ם

כִּ֞י בְּרִשְׁעַ֣ת׀ הַגּוֹיִ֣ם הָאֵ֗לֶּה ה֤’ אֱ-לֹהֶ֙יךָ֙ מוֹרִישָׁ֣ם מִפָּנֶ֔יךָ

וּלְמַ֜עַן הָקִ֣ים אֶת־הַדָּבָ֗ר אֲשֶׁ֨ר נִשְׁבַּ֤ע ה֙’ לַאֲבֹתֶ֔יךָ לְאַבְרָהָ֥ם לְיִצְחָ֖ק וּֽלְיַעֲקֹֽב:

וְיָדַעְתָּ֗ כִּ֠י לֹ֤א בְצִדְקָֽתְךָ֙

ה֣’ אֱ֠-לֹהֶיךָ נֹתֵ֨ן לְךָ֜ אֶת־הָאָ֧רֶץ הַטּוֹבָ֛ה הַזֹּ֖את לְרִשְׁתָּ֑הּ

כִּ֥י עַם־קְשֵׁה־עֹ֖רֶף אָֽתָּה:

It is not owing to your righteousness and the integrity of your heart

that you have come to possess their land

rather it is owing to the wickedness of those nations

that Hashem your G-d is sweeping them from before you.

You must know that it is not owing to your righteousness

that Hashem your G-d is giving you this good land to possess it

because you are a stiff-necked people.

In other words, the sin of the Amorites is now complete.

Will the fate of the Jews be any different?  It seems at least possible. G-d makes clear that we do not deserve the land; but He does not say that we are as bad as the Canaanites. He constantly warns us against having pity on Canaanites lest they come to live among us and cause us to stray. Rabbi Samson Raphael Hirsch argues that these repeated warnings are necessary because pitilessness violates the fundamental norms of Jewishness, perhaps of the fundamental nature of Jews.

This creates a Scylla/Charybdis dilemma.  We must be terribly careful lest we show pity where pity is forbidden; but what are we to do in a case of doubt? Unnecessary pitilessness is also terrible! Let’s analyze this dilemma through the lens of a phrase from Devarim 7:2, lo techaneim.

Talmud Avodah Zarah offers three legal understandings of the phrase, each based on a separate etymology.  The first is “Do not grant them an encampment/chanayah in the Land; the second is “Do not show them favor/chen,” meaning do not speak favorably of them; the third is “Do not give them an unmotivated­/chinam gift.”

Lo techanem occurs just after commands to smite, utterly destroy, and never cut covenants, and just before the prohibition against intermarriage. To whom do these prohibitions apply? The Talmud reports a Tannaitic dispute as to whether the prohibition against intermarriage applies only to the Seven (Canaanite) Nations, or to all non-Jews. But for whatever reasons, that is not the binary in play for lo techanem. Even more interestingly, halakhists have felt free to apply the three laws generated by lo techanem to different sets of nonJews. Let’s focus in even further then, on the prohibition against giving chinam gifts.

The Tur cited this prohibition twice in his work.  In Yoreh Deah Laws of Idolatry 151

אסור ליתן להם מתנת חנם

במה ד”א?

כשאינו מכירו

אבל אם מכירו, או שכינו – מותר

It is forbidden to give them chinam gifts

What context were these words said in?

Where he does not have a relationship with him.

But where he does have a relationship with him, or if he is his neighbor – it is permitted.

In Choshen Mishpat Laws of Gifts 249 he writes:

אסור ליתן מתנת חנם לעובד עבודת כוכבים

אבל מותר ליתן לגר תושב, שהרי מצוה להחיותו:

It is forbidden to give a chinam gift to an idolater,

but it is permitted to give one to a ger toshav, as he is commanded to sustain his life

The Yoreh Deah version has the practical effect of eliminating the prohibition. The rationale for the exceptions is that they turn the gift into a sale, because the giver expects the recipient to return the favor with interest.  Why would one give presents to someone one has no relationship with? Who ever gives gifts without some expectation of reciprocity?

Shulchan Arukh YD 151 doesn’t mention the neighbor, but adds a new permission, generalized from the Mishnah that mandates feeding the idolatrous poor: One may gift if doing so contains an element of darkhei shalom, the ways of peace, which can perhaps be codified as “whenever it is socially expected.”

These exceptions seem almost funny when one recalls how Rabbi Avraham Danzig sums up the purpose of lo techanem in his Chokhmat Adam:

והכל כדי שלא יתקרבו עמהם וילמדו ממעשיהם

All of this is so they don’t become close with them and learn from their actions

Rabbi Danzig’s summary reflects both the contextual peshat and the consensus of the tradition. Yet how does this make sense?  Surely a prohibition intended to inhibit social intercourse would apply more strongly to friends and neighbors than to strangers! Surely the easiest way to inhibit such intercourse is to dispense with the social niceties (leaving aside that these niceties are plainly habits we have picked up from them! It seems more likely that they reflect a decision to be strict on the side of being gomlei chasadim, those who model selfless givers), rather than being strict on the side of avoiding Gentile influence.

Tur Choshen Mishpat introduces a new dichotomy among Gentiles: there are idolaters, and then there are gerei toshav, or resident aliens.  Shulchan Arukh says the same thing. What if a person is neither?

Maimonides insists that the entire category of resident alien applies only when most Jews are living in Israel. This means that even Gentiles who fully carry out their halakhic responsibilities cannot become resident aliens.  Such people are not idolaters either,  May we give them chinam gifts? In other words: Does the prohibition apply only to idolaters, or does it apply to every undocumented Gentile?

This question seems to be answered definitively by Rashbo, Responsa 1:8.

ומה ששאל ממך הנער

בשולח אדם ירך לנכרי

איך יתישב עם מה שאמרו אסור לתת מתנת חנם?

ואמרת לו

דההוא דשולח ירך לנכרי לא לחנם אלא לגמול למה שקדם או בגוי שאינו עובד עבודה זרה

יפה אמרת. . . .

ואמרינן בפרק בתרא דעבודה זרה (דף ס”ז ב’)

רב יהודה שדר קורבנא לאבידרנא ביום אידו.

אמר: ידענא ביה דלא פלח לעבודה זרה . . .

That which the lad asked of you

regarding the Talmudic case of a person who sends a haunch to a nonJew –

How can this be squared with their statement that one may not give chinam gifts?

I said to him:

You have spoken well . . .

We say in the last Chapter of (Talmud) Avodah Zarah

Rav Yehudah sent a sacrifice to Avidrana on his birthday.

He said: I know of him that he does not worship idols.

Rashbo apparently held that that “resident alien” was just an example of a non-idolatrous Gentile. (Sefer HaChinnukh says the same things, but elsewhere contradicts himself.) Rav Yosef Caro apparently did not have access to this Rashbo, and therefore rules that the prohibition applies to Muslims, even though they are monotheists.

A slightly different framing appears in Meiri to Pesachim 21b:

כבר ביארנו במסכת עבודה זרה

שהגוים

ר”ל שהם מעובדי האלילים שאינם גדורים בגדר שום דת בעולם –

אין אנו מצווים להחיותם

ומאחר שכן, אף מה שאסור לנו – אין נותנין להם בחנם,

שהרי אנו גוזלין בכך גר תושב

שאנו מצווים להחיותו,

אחר שהוא מקיים שבע מצות של בני נח

We have already explained in Tractate Avodah Zarah

that the Gentiles

meaning those who worship idols and are not bounded by the bounds of any world religion –

we are not obligated to sustain their lives

and therefore, even that which is prohibited to us, we may not give them chinam

because by so doing we would be robbing the resident aliens,

whose lives we are obligated to sustain,

since they keep the Seven Noachide Commandments

According to Meiri, there might be no prohibition nowadays against giving nonkosher food away chinam, since according to Rambam there can be no resident aliens nowadays.

The positions of Rashbam and Meiri represent another example where we prefer to err on the side of humanity rather than on pitilessness, when we don’t know which one halakhah requires of us.  As Beit Yosef seems not to have had access to the relevant section of either of these rishonim, I think it is possible to rule like them against Shulchan Arukh, if a case ever came up that met the absolute chinam requirement.

Why should we resolve doubts in that direction? I suggest that what doomed the Canaanites was the convergence in their society of polytheism and moral and ethical breakdown. Preventing contagion from that virulent compound led the Torah to demand that we suppress our natural synpathies for them.

But where there is no danger of contagion from monotheists, however poor their characters, nor from ethical people who happen not to believe in Hashem, the reason for lo techanim appears defunct. Therefore, halakhah retreats to its default posture of treating everyone with lovingkindness.  Perhaps that default posture – even if we too often overcome the default – is why the Torah does not see as inevitably tending toward moral collapse, however bad we may be at present.

Leave a comment

Filed under Uncategorized, Weekly Devar Torah

What’s Greater Than Creation, Revelation, and Miracles?

This week’s alumni Dvar Torah is by Betsy Morgan

Sefer Dvarim is Moshe’s address to Bnei Yisrael just before they enter Eretz Yisrael. Those being addressed are the children of  the generation that G-d freed from slavery in  Egypt. They are tasked with conquering the land and establishing a just society founded on the teachings Moshe has taught them. Moshe tries to prepare them by retelling their forbearers’ history, teaching laws, and reminding them that they can be successful in the Promised Land only by following the teachings of G-d.

Va’etchanan begins with Moshe retelling how God denied him the opportunity to cross into Israel, only allowing him to gaze down upon it from a distance. Moshe then addresses the people directly in 4:1:

וְעַתָּה יִשְׂרָאֵל,

שְׁמַע אֶל-הַחֻקִּים וְאֶל-הַמִּשְׁפָּטִים, אֲשֶׁר אָנֹכִי מְלַמֵּד אֶתְכֶם, לַעֲשׂוֹת—

לְמַעַן תִּחְיוּ, וּבָאתֶם וִירִשְׁתֶּם אֶת-הָאָרֶץ, אֲשֶׁר יְהוָה אֱלֹהֵי אֲבֹתֵיכֶם, נֹתֵן לָכֶם.

And now, O Israel,

hearken to the statutes and to the judgments which I teach you to do,

in order that you may live, and go in and possess the land which the Lord, God of your forefathers, is giving you.

Moshe then offers a variety of reasons and motivations for following the laws. First he  uses fear by reminding them of how God punished those who followed Baal Peor. Second is a positive take, that following the Torah makes the Jewish nation appear wise in the eyes of the other nations. Third are a set of rhetorical questions: does another nation have such a personal relationship with God? Does another nation have a compendium of just, right laws? Moshe ends with an emotional appeal, instructing Bnei Yisrael to remember receiving the Torah at Sinai.

However, as a practical man, Moshe also discusses the unfortunate possibility that despite everything he has said, Bnei Yisrael will in the future transgress God’s teachings. This should result in Bnei Yisrael being exiled from the land the current audience anticipates entering. Moshe promises that if in that sinful future, Bnei Yisrael search their hearts and return to God, He will hear their voice. This great ability for God to accept tshuva is emphasized in 4:31-34:

כִּי אֵל רַחוּם ה’ אֱ-לֹהֶיךָ, לֹא יַרְפְּךָ וְלֹא יַשְׁחִיתֶךָ;

וְלֹא יִשְׁכַּח אֶת-בְּרִית אֲבֹתֶיךָ, אֲשֶׁר נִשְׁבַּע לָהֶם.

כִּי שְׁאַל-נָא לְיָמִים רִאשֹׁנִים אֲשֶׁר-הָיוּ לְפָנֶיךָ,

לְמִן-הַיּוֹם אֲשֶׁר בָּרָא אֱ-לֹהִים אָדָם עַל-הָאָרֶץ,

וּלְמִקְצֵה הַשָּׁמַיִם, וְעַד-קְצֵה הַשָּׁמָיִם:

הֲנִהְיָה, כַּדָּבָר הַגָּדוֹל הַזֶּה, אוֹ, הֲנִשְׁמַע כָּמֹהוּ?

הֲשָׁמַע עָם קוֹל אֱ-לֹהִים מְדַבֵּר מִתּוֹךְ-הָאֵשׁ, כַּאֲשֶׁר-שָׁמַעְתָּ אַתָּה—וַיֶּחִי?

אוֹ הֲנִסָּה אֱ לֹהִים, לָבוֹא לָקַחַת לוֹ גוֹי מִקֶּרֶב גּוֹי, בְּמַסֹּת בְּאֹתֹת וּבְמוֹפְתִים וּבְמִלְחָמָה וּבְיָד חֲזָקָה וּבִזְרוֹעַ נְטוּיָה, וּבְמוֹרָאִים גְּדֹלִים  כְּכֹל אֲשֶׁר-עָשָׂה לָכֶם ה’ אֱ-לֹהֵיכֶם, בְּמִצְרַיִם לְעֵינֶיך?

For the Lord your God is a merciful God; He will not let you loose or destroy you; neither will He forget the covenant of your fathers, which He swore to them.

For ask now regarding the early days that were before you,

since the day that God created man upon the earth,

and from one end of the heavens to the other end of the heavens,

whether there was anything like this great thing, or was the likes of it heard?

Did ever a people hear God’s voice speaking out of the midst of the fire as you have heard, and live?

Or has any god performed miracles to come and take him a nation from the midst of another nation, with trials, with signs, and with wonders, and with war and with a strong hand, and with an outstretched arm, and with great awesome deeds, as all that the Lord your God did for you in Egypt before your eyes?

The rhetorical questions listed refer to the creation of humanity, the mass revelation at Sinai, and the large-scale, public, and miraculous Divine intervention of the Exodus. These represent the archetypical divine acts: creation, revelation, and performing miracles. And yet, they are used as a kal v’chomer to explain God’s capacity to accept teshuvah. These verses give strength by teaching how mercy, too, is Divine and highlighting the awesome nature of God to welcome us back.

This is exactly what Bnei Yisrael need to hear at this momentous juncture.  As they approach the land promised to Avraham so many generations before, they need to hear that enduring in the land is realistic. They are not entering on a permanent zero-tolerance probationary period. G-d will take them back, and let them stay, if they return after they stray.

We know what happened eventually. We just observed Tisha B’Av, the commemoration of Jewish destruction and exile as a result of the Jewish people’s transgression, and failure to return.  In the wake of another Tisha B’Av, this is what we need to hear. Let us find comfort as we turn towards Rosh Hashana and remember the miracle of mercy.

Betsy Morgan (SBM 13′, 14′) works in the Philadelphia area as a Research Engineer and spends her time journeying through the wealth of Jewish learning in classic and Yiddish texts.

Leave a comment

Filed under Alumni devar Torah, Uncategorized

Not Adding or Subtracting, Just Doing My Own Thing?

by Rabbi Aryeh Klapper

The Torah commands twice (Devarim 4:2 and 13:1) against adding to the matters which G-d commands, or subtracting from them.  Nevertheless, the experience of observant Judaism is shaped by and saturated with rabbinic decrees and customs that are not found in the Torah. How can we reconcile our reality with our texts?

Rashi cites Chazal’s solution to explain both verses, without accounting for the redundancy. These commands relate to the forms of mitzvot. If the Torah commands one to pick up FOUR species on Sukkot, one must not pick up three or five.

Ramban 4:2 feels – “feels” feels like the appropriate word – that this solution is too exclusively formal, and ignores the obvious substance of the command.

לפי דעתי:

אפילו בדא לעשות מצוה בפני עצמה,

כגון שעשה חג בחדש שבדא מלבו,

כירבעם (מלכים א י”ב:ל”ג) –

עובר בלאו.

וכך אמרו (בבלי מגילה י”ד) לענין מקרא מגלה:

מאה ושמונים נביאים עמדו להם לישראל

ולא פחתו ולא הוסיפו על מה שכתוב בתורה אפילו אות אחת

חוץ ממקרא מגילה . . .

In my opinion:

Even if he invents a stand-alone mitzvah

such as making a holiday in a month that his own heart invented,

as Yerav’am did (I Kings 12:33) –

he violates this DON’T.

So they say (Megillah 14a) regarding reading Megillat Esther on Purim:

180 prophets arose for Israel

and they neither subtracted nor added to what is written in the Torah, even one letter

except for the reading of the Megillah . . .

Ramban is fully conscious that his prooftext is indirect, and ironic – if there is such a prohibition, how could it have been violated even that once?  How do he and the Talmudic rabbis account for the innumerable Rabbinic decrees other than Purim?  And doesn’t his entire effort risk adding a new mitzvah to the Torah, namely the command not to add mitzvot?

The Vilna Gaon uses the apparent redundancy to support Ramban.  Devarim 4:2, he argues, is a commandment not to add or subtract mitzvot.  13:1 is a commandment not to add or subtract within the form of each mitzvah.

Rav Dovid Tzvi Hoffman (kudos to AlHaTorah.org for making his commentary available) builds off the Gaon.  The commandment in 4:2 is written in the plural, whereas 13:1 has it in the singular.  Perhaps the commandment in 4:2 is addressed to the Sanhedrin, which has the power to change the law.  13:1 is in the singular, meaning that it is addressed to each individual, and relates to the way in which he or she observes the law.

Rabbi Hoffman notes that Rambam likely took this exegetical approach.  However, the mitzvah that Rambam derives from 13:1 is more sophisticated than Ramban’s.

Rambam Laws of Rebels 2:9

הואיל ויש לבית דין לגזור ולאסור דבר המותר

ויעמוד איסורו לדורות

וכן יש להן להתיר איסורי תורה לפי שעה

מהו זה שהזהירה תורה לא תוסיף עליו ולא תגרע ממנו?

שלא להוסיף על דברי תורה ולא לגרוע מהן ולקבוע הדבר לעולם

בדבר שהוא מן התורה בין בתורה שבכתב בין בתורה שבעל פה,

כיצד?

הרי כתוב בתורה לא תבשל גדי בחלב אמו

מפי השמועה למדו שזה הכתוב אסר לבשל ולאכול בשר בחלב,

בין בשר בהמה בין בשר חיה,

אבל בשר העוף מותר בחלב מן התורה.

אם יבוא בית דין ויתיר בשר חיה בחלב – הרי זה גורע;

ואם יאסור בשר העוף ויאמר שהוא בכלל הגדי והוא אסור מן התורה – הרי זה מוסיף;

אבל אם אמר בשר העוף מותר מן התורה ואנו נאסור אותו,

ונודיע לעם שהוא גזרה שלא יבא מן הדבר חובה . . .

אין זה מוסיף, אלא עושה סייג לתורה, וכן כל כיוצא בזה.

Since beit din can decree to prohibit something permitted,

and have the prohibition stand for generations,

and they can also permit Biblical prohibitions temporarily,

what does the Torah mean when it cautions us “Do not add above it and do not subtract from it”?

Not to add above the words of Torah and not to subtract from them and fix the matter forever

in a Torah matter, whether Written Torah or Oral Torah,

An illustration –

The Torah writes “Do not seethe a kid in its mother’s milk”

They learned on the basis of tradition that this verse bans cooking and eating milk with meat,

whether of domestic or wild animals,

but that fowlflesh is permitted with milk Biblically,

If a beit din came and allowed wild animal meat with milk – it would be subtracting;

But if it said that fowlflesh is permitted Biblically, but that we will forbid it,

and tell the people that it is a decree lest . . .

this is not adding, but rather making a fence around the Torah, and so too all similar cases.

Rambam thus neatly solves the question of how the Rabbis can legitimately have added so much to the Torah – the prohibition applies only if they add to the Torah, but so long as they acknowledge their own authorship, there is no violation.

Raavad immediately protests that this concedes too much.

RAAVAD

א”א

כל אלה ישא רוח

שכל דבר שגזרו עליו ואסרוהו לסייג ולמשמרת של תורה –

אין בו משום לא תוסיף,

אפילו קבעוהו לדורות ועשאוהו כשל תורה וסמכוהו למקרא . . .

Says Avraham:

All these are just wind

as everything that they decreed against and forbade as a fence and guard for the Torah –

is not subject to “Do not add,”

even if they fix it for generations and make it as-if Biblical and lean it on a verse . . . .

The obvious basis for Raavad’s protest is that we have utterly failed to live up to Rambam’s requirement.  Halakhic literature is replete with unresolved disputes as to whether a particular law is Biblical or Rabbinic.  Most rishonim therefore adopt some version of Raavad’s contention that the verse “Do not stray from what they tell you right or left” gives the Rabbis an exemption from “Do not add.”  The problem is that making this claim seems a violation of “do not subtract,” because according to the Gaon, 4:2 is addressed specifically to the very group that Raavad exempts from it.

Some commentators therefore seek to narrow the scope of the prohibition against adding.  Chizkuni to 4:2 offers the most radical approach of this sort that I have seen among the rishonim:

תשובה למיני ישראל שפקרו על התלמוד ואמרו

איך הוסיפו חכמי ישראל כמה דברים בתלמוד שאינה בתורה

הרי כתיב לא תספו על הדבר, ולא תגרעו ממנו

ימחו ההוספות מספר חיים.

הרי תשובה לדבריהם

שהרי לשון זה אינו רק בשני מקומות בתורה, ואינו רק גבי אלהות ויראה,

כלומר:

אין לך להוסיף ליראה על יראת הקב”ה יראה אחרת, ולא לגרוע מיראתו . . .

אבל במצות דעלמא

לא הזהיר הקב”ה שלא להוסיף כדי לעשות סייג וגדר לתורה.

A response to the Jewish heretics who scoffed at the Talmud, saying

How could the Sages of Israel have added things in the Talmud that aren’t in the Torah?!

It is written Do not add above it and do not subtract from it –

let the additions be erased from the Book of Life!

The response to their words is

that this language only appears in two places in the Torah, and only regarding Divinity and Awe,

meaning:

you must not add another Awe to your Awe of The Holy Blessed One, nor subtract from His Awe,

but regarding mitzvot generally

The Holy Blessed One did not forbid us to add for the sake of making a protective fence for the Torah…

According to this approach, it seems that the Rabbis have no special privileges – anyone can add if their purpose is to create a protective fence for the Torah.  This approach has the advantage of justifying private customs as well as Rabbinic law.  However, it also has a potentially dangerous implication.  What, in this view, is the prohibition against subtracting?  Rabbis can make fence-decrees that suspend mitzvot, such as the rule against blowing shofar on Shabbat Rosh haShannah – surely that power cannot extend to private individuals.

Netziv, perhaps in response, takes a completely opposite approach.  The Torah does not exempt additions and subtractions made with the proper motivation; rather, it specifically bans them.

Since there are other means of achieving devekut/cleaving to the Divine

certainly via sacrifices, which are great preparation for achieving knowledge of Divinity . . .

therefore it says that it is better to achieve this ‘life’ through statutes and laws than through other means.

About this it says do not add . . .

For Netziv, the Torah here is not worrying about additions or subtractions within Halakhah. Rather, it is worrying that some might come to see spiritual experience as the goal, and Halakhah, or more specifically the legal sections of the Torah as understood by Chazal, as but one means among many.  Possibly there is a tinge of old-fashioned anti-Chassidic hitnagdut here, but more likely Netziv was addressing tendencies among his own Lithuanian students.

Yet Netziv’s writings show that he did not confine himself to the four ells of Halakhah, but rather was himself open to poetry, for example.  What, in his mind, distinguished prohibited additions from his own efforts and experiences?  How can we open ourselves to the full potential breadth of human encounter with the Divine, while leaving the experience of Halakhah as central and controlling?  This is the eternal underlying challenge of the prohibitions against adding and subtracting, which has been met in many different ways in Jewish history, and perhaps our generation will find its answer yet.

Leave a comment

Filed under Uncategorized, Weekly Devar Torah

Is Halakhah Comprehensive? Week Six Summary of SBM 2019

by Tiferet Adler and Tzipporah Machlah Klapper, SBM fellows

How should halakhah deal with categories or ways of being which have only recently come into existence? In such areas, we must decide how far afield to search for precedents, or how willing we should be to create halakhah without clear legal precedents.  As we prepared for writing our teshuvot on germline editing, Rabbi Klapper laid out the following framework of approaches:

  1. Is this an area which should be governed by halakhah?
    1. if yes, what method or methods should we use to create or discover the relevant halakhah?
    2. if no, we have four options:
      1. We can accept that this is simply an area over which halakhah has no direct control, and grant authority instead to some other system or law or values. For example, we could invoke the principle of dina demalchusa dina. (=the law set by the governing authority is the law). Where this is invoked, halakhah lends its religious authority to the decisions and legislation of the governing authority. 
      2. We can suggest that concrete legal rulemaking is the wrong religious modality here, and instead develop a religious approach through the lens of aggada or hashkafah,
      3. We can refer the issue to people that we and/or our community recognize as gedolim (great halachic decisors or Torah scholars), on the ground that
        1. The halakhah already exists, but gedolim are the only ones qualified to discover it, or
        2. The halakhah does not exist, and gedolim are the only ones qualified to create it.
      4. We can do our best to make up our own minds about the issue, by asking either 
        1. What would the gedolim say if they were compelled to address this issue? or
        2. What is our best sense of what our tradition taken as a whole has to say about this issue? or
        3. What is the halakhic category most analogous to this issue, however far fetched the analogy?

SBM explored these options by studying a) past halakhic responses to genetic engineering; b) the state of the halakhic art with regard to transgender people; and c) past approaches to the general question of whether halakhah as we have it should be regarded a complete and comprehensive system for religiously regulating (at least Jewish) life, or rather must be supplemented by creating new halakhah or giving religious authority to other modes of regulation. These materials gave us the sense that there were precedents for all positions within the above framework.  For example, in the realm of genetic engineering, Rav Yuval Cherlow’s articles about using PGD (preimplantation genetic diagnosis) to select the sex or other traits of the embryo to be implanted argued forcefully that there are areas properly outside the control of present religious authority, while Rav Aviner’s response to a hypothetical “religiousness gene” defined the area as primarily hashkafic and therefore subject to the exclusive authority of gedolim.  Rav Cherlow by contrast argues that where ordinary halakhic methodologies cannot apply, we should often resort to the intuition of the community.

In 2004, Rav Idan Ben-Efrayim published Dor Tahapuchot, a comprehensive guide to an Orthodox approach to the halachic status of transgender people with regard to gender. Rav Ben-Efrayim states in a preface that he is writing the book as a placeholder until the gedolim speak, but as of this writing almost nothing has been published by poskim of greater stature, and most popular works simply cite Dor Tahapuchot. In practice, Rav Ben-Efrayim’s work has defined the Orthodox approach to this area for 15 years. Rabbi Klapper pointed this out as a way of showing us the dangers of assuming that someone else will supersede your work – what you write may have more influence than you expect or intend, and accordingly it’s important to always take responsibility for your Torah.

We also looked at the Chazon Ish’s critique of a comment by the Shakh (Choshen Mishpat 73:39). The Shakh argues that dina demalchusa dina grants halakhic authority only to laws which a) are made either for the legitimate benefit of the government or else for the benefit of the citizenry, and b) apply to issues regarding which there is no explicit halakhah. This seeming limitation on dina demalchusa is actually a radical statement about the nature of halakhah. According to the Shakh, halakhah can have gaps. There are places where halakhah has nothing to say, and to fill those gaps in, we coopt the dina demalchusa

Note however that for Shakh these gaps may be temporary and accidental. If the Jews had full political autonomy, he might argue for filling these gaps by analogy or via the authority of gedolim. His distinction between “implicit (אינו מפורש)” and “explicit (מפורש)” halakhah might even be compatible with a claim that those gaps can be filled by discovering rather than creating halakhah.  

The Chazon Ish (Likkutim Nezikin 16) seems to read Shakh as contending that only newly created halakhah could fill those gaps. He responds by vehemently denying that there are any gaps. The idea that Torah is somehow incomplete is anathema to him. 

Everything can be found in Torah, so 

ולשון הש”ך ז”ל קשה לכוין

שאין חילוק בין דין מפורש לאינו מפורש

ואין כלל דין שאינו מפורש

שהכל מפורש בתורה.

The language of the Shakh is difficult to find meaning in, 

because there is no difference between a law which is explicit and one which is not explicit, 

and there is no law at all which is not explicit

because everything is explicit in the Torah

Chazon Ish presumably believes that one looks for the halakhah most closely analogous to an apparently new question.

In a letter to Rav Tzvi Hirsch (Maharatz) Chajes reviewing his book Torat haNeviim, the Chasam Sofer (Teshuvot Chasam Sofer 1 OC 208) presents an approach that differs from both the Shakh and the Chazon Ish. While he, like the Shakh, acknowledges that there are gaps in halakhah, he does not see them as necessarily accidental.  Chasam Sofer believes that halakhah does not seek to be a comprehensive code of civil law; rather, the Torah superimposes specific regulations on a general and comprehensive system of natural justice.

ומסתמא, גם אילו לא ניתנה תורה, וקודם מתן תורה, 

היו דינין ונימוסים, וכל מלך במשפט יעמיד ארץ . . .

אבל מה שלא הזכירה תורה, כגון היזק שאינו ניכר – 

לא הותר חלילה, דרכיה דרכי נועם

אלא איננו בכלל משפטי תורה, 

והמלך וסנהדרין יראו לפי המקום ולפי הזמן, ואין להתורה עסק בזה, 

והוא הדין ומכ”ש להסיר המזיקים הרבים, הרוצחים בלא עדים, וכדומה – 

דרכיה דרכי נועם וכל נתיבותיה שלום.

Presumably, even had the Torah not been given, and before the Giving of the Torah, 

there were laws and enforceable norms, and every king with justice sustained the land . . .

but what the Torah doesn’t mention, such as nonvisible damage,

was not, Heaven forbid, permitted, her ways are ways of pleasantness,

rather it is not within the category of Torah regulations,

and the king and Sanhedrin evaluate in accordance with the place and time, but the Torah has no involvement in this,

and the same is true all the more so with regard to removal of public menaces, or those who murder without witnesses, et al,

her ways are ways of pleasantness and all her paths are peace.

Where halakhah does not provide specific regulations, the Torah authorizes kings and/or the Sanhedrin to make and implement the laws necessary to achieve justice. Damaging action which are not explicitly forbidden by the Torah (for instance, damage which is not visible) are not therefore permissible; rather, “it is not within the laws of the Torah, and the king and Sanhedrin should decide (lit. see) in accordance with the place and time, and the Torah has no involvement in this.” 

By “Torah” and “laws of the Torah,” Chasam Sofer may mean something similar to the “explicit law” of the Shakh. The animating principle behind this is the verse he cites twice: Its ways are the ways of pleasantness. In other words, there are areas in which halakhah provides no direct guidance, and Torah values and social considerations, which are presumed to accord with natural justice, must guide the decisions of political authorities.

Is germline editing, via CRISPR or subsequent technologies, an area which halakhah should be stretched to cover? Is it best left to gedolim to decide in accordance with extrahalakhic norms, or to secular authorities or democratic processes? Please look forward to the SBM sh’eilah and teshuvot. 

Leave a comment

Filed under Summer Beit Midrash, Uncategorized

Can There Be Halakhah Which Does Not Come From Torah? Week Five Summary of SBM 2019

by Tiferet Adler and Tzipporah Machlah Klapper, SBM Fellows

Is halakhah derived entirely from the Torah, or does halakhah’s understanding of Torah presume and depend on the existence of halakhic obligations that preceded the Revelation at Sinai? Rav J. David Bleich takes the latter position when discussing whether Halakhah imposes limits on the development and use of biotechnologies such as CRISPR. Even more radically, Rav Bleich argues that Halakhah incorporates such “natural law” obligations even when they are not explicitly mandated by the Torah. Let us be clear that we are not discussing the Seven Noachide Commandments, each of which Chazal derive from the Torah, but rather a set of unwritten obligations which can help us derive meaning from Torah.

Rabbi Bleich’s core argument begins from Talmud Chagiga 12a:

ואמר רב יהודה אמר רב:

בשעה שברא הקדוש ברוך הוא את העולם, היה מרחיב והולך כשתי פקעיות של שתי, עד שגער בו הקדוש ברוך הוא והעמידו,

שנאמר עמודי שמים ירופפו ויתמהו מגערתו,

והיינו דאמר ריש לקיש:

מאי דכתיב אני א-ל ש-די?

אני הוא שאמרתי לעולם די.

Said Rav Yehudah said Rav:

At the time that the Holy Blessed One created the world, it was expanding like two spools of wool, until the Holy Blessed One expressed anger at it and halted it,

as Scripture says: “The pillars of Heaven will soften and be astounded because of His anger.”

Resh Lakish said:

What is the meaning of “I am the Almighty God (E-l Shad-dai)” (Bereishis 17:1)? It means: I am He Who said to the world “enough/dai.

The Beis Halevi (Bereishis 17:1) offers a creative reading of this gemara. He argues that G-d stopped the world from developing infinitely both quantitatively and qualitatively. Before G-d stopped it, the world would have continued toward infinite quantity and quality. By saying “stop,” G-d prevented the development of the world toward perfection. This enabled Him to ennoble man as His partner in creation, charged with completing His own deliberately “unfinished” k’b’yakhol creative activity. The world thus exists in a constant state of “arrested development,” waiting for us humans to perfect it by engaging in agriculture, breadmaking, and other creative endeavors. An example of this (and perhaps a symbol) is that rather than creating man circumcised, God willed man (starting from Avraham Avinu) to circumcise himself. In light of this, when God tells Adam in Bereishis 3:19: “by the sweat of your brow shall you eat bread,” He is providing Adam with a matir, a license to improve on Creation, rather than just cursing Him.

Now, perhaps the most frequently raised ethical challenge to the use of CRISPR technology is that it seems to violate a fundamental intuition about the difference between the human and the Divine: it seems to allow human to “play G-d.” But is that intuition correct? Does Judaism see “playing G-d” as fundamentally wrong? Rabbi Bleich uses the Beis Halevi to argue that man has a Divine mandate to “interfere” in the natural order of things and to partake in its completion. In other words, we are not only allowed but obligated to “play G-d,” But Rabbi Bleich then argues that there are nonetheless halakhic limits to the development of biotechnology. These limits emerge not from the Halakhah derived from Torah, but rather from the natural law obligations that the Torah assumes and that Chazal use when interpreting Torah.

Rav Bleich concedes that he knows of only one place where Halakhah explicitly incorporates such an obligation. On Sanhedrin 74a, Rabbi Yochanan says in the name of Rabbi Shim’on ben Yehotzedek that a rabbinic vote declared that one should violate all Torah prohibitions to save one’s life, except for three: avodah zarah (idolatry et al), gilui arayot (adultery et al), and shefikhut damim (bloodshedding). The gemara asks: How are each of these exceptions derived from the Torah? A verse is found for avodah zarah. Another verse is found that compares gilui arayot to shefikhut damim. But how is shefikhut damim itself derived? The gemara answers that we don’t need a verse for this; it is derived from a svara, a principle derived by reason alone: mai chazis de dama didach sumak tfei, = What makes you say that your blood is redder than his?

The point is not just that we derive the law regarding bloodshedding from svara. Rather, his point is that we interpret the verse which compares gilui arayot and shefikhit damim on the basis of that svara. This shows that we may be able to show the existence of natural law obligations not only through their direct incorporation into halakhah, but also through their indirect effects on our interpretations of Torah.

Rav Bleich contends that Chazal’s interpretation of verapo yerapei (Shemos 21:19) is an example of such an indirect effect. Bava Kama 25a tells us that this verse gives a doctor reshut = permission/authority to heal. Yet if the Beis Halevi is right, and man is a partner in creation, what is the hava amina here? Why do we need a Biblical verse to give doctors dispensation to heal?

Tosfos suggest that that healing the sick might be seen (nir’eh) as contradicting the gzeiras hamelekh, G-d’s decree of illness. Even if human are partners in the fulfillment of G-d’s plan, we are not authorized to contradict His will. Illness is not something left incomplete in creation, but rather a present action of G-d. Without the verse, we might have thought that healing those He made sick contradicted His will; now we know that healing actually fulfills His will.

The underlying principle here can be illustrated via one of the rationales offered by Rav Mosheh Feinstein to explain the consensus psak that when dehydration poses a threat to life on Yom Kippur, there is no obligation to use medical technology to hydrate rather than drinking. Why? Rav Mosheh suggests that using medical technology to avoid transgressing a prohibition does not constitute healing, and therefore is not permitted by rapo yerapei. But why should it be forbidden in the first place?

Rav Bleich suggests that Tosfos is fundamentally correct that the human license to engage in creation allows us only to further His will, not to oppose it. Verapo yerape permits healing even though we might have thought it a contradiction of His will. That we need a verse to permit healing demonstrated that we have a prior assumption that we are forbidden to oppose His will, even for what seem to us constructive purposes. That prohibition has no Biblical source; it is derived from svara.

Man, according to Rav Bleich, has license to bring to culmination the process of creation, to act in accordance with that Divine mandate, but he is halakhically forbidden to attempt improving upon the natural order except to heal. This is especially true of improving our species biologically rather than morally. CRISPR should therefore be permitted for the purpose of eliminating disease, but in all other cases, Rav Bleich sees it as a violation of the natural law principle incorporated by Halakhah that we must not thwart the Divine plan of creation.

Rabbi Bleich offers one model for dealing with moral questions that are apparently outside the purview of halakhah; incorporating a priori natural law principles into halakhah. But there are many other models for creating halakhah where none exists, or seems to exist. We can admit that halakhah does not cover all moral questions, and look for other meaningful modes of response. We can look for extrahalakhic authorities, such as the law of the human society we live in (dina demalchusa), or acknowledge natural law principles without claiming that they are part of halakhah. We can grant exclusive authority to the greatest Torah scholars of the day to create or discover halakhah without reference to ordinary legal procedures. We can grant democratic authority to the observant community, or give all halakhic decisors the right to derive halakhah from Torah sources normally considered apart from law.

In next week’s essay, we’ll show how halakhists over the past several centuries have developed and applied these models in spheres such as genetic engineering, the halachic treatment of transgender people with regard to gender, and political science.

Leave a comment

Filed under Summer Beit Midrash, Uncategorized