Monthly Archives: October 2019

Was Negiah Prohibited in Eden?

by Rabbi Aryeh Klapper

This Dvar Torah may not be about what you think it’s about!

Just before G-d commanded the first human, He explained our purpose(s). Since one philosophic definition of chiyyuv (=obligation) is to fulfill one’s telos (=purpose), a reasonable hypothesis is that G-d’s first commands provided a way for humans to fulfill those purpose(s).

Let’s approach this questions by looking carefully at Bereishis 2:15-17, with my deliberately tendentious translation.

וַיִּקַּ֛ח ה֥’ אֱ-לֹהִ֖ים אֶת־הָֽאָדָ֑ם 

וַיַּנִּחֵ֣הוּ בְגַן־עֵ֔דֶן 

לְעָבְדָ֖הּ וּלְשָׁמְרָֽהּ:

וַיְצַו֙ ה֣’ אֱ-לֹהִ֔ים עַל־הָֽאָדָ֖ם לֵאמֹ֑ר 

מִכֹּ֥ל עֵֽץ־הַגָּ֖ן אָכֹ֥ל תֹּאכֵֽל:

וּמֵעֵ֗ץ הַדַּ֙עַת֙ ט֣וֹב וָרָ֔ע לֹ֥א תֹאכַ֖ל מִמֶּ֑נּוּ 

כִּ֗י בְּי֛וֹם אֲכָלְךָ֥ מִמֶּ֖נּוּ מ֥וֹת תָּמֽוּת:

Hashem Elokim picked up the human being

He put him down in the Arbor of Eden

l’ovdoh and l’shomroh.

Hashem Elokim imposed a command on the human being, as follows:

From all the trees of the arbor –  you must eat;

but from the Tree of Knowledge, Good and Bad – you must not eat from it

because on the day of your eating from it, you will surely become mortal.

L’ovdoh and l’shomroh are the human being’s purpose(s) in the Garden. Given artistic freedom, I’d prefer to translate the phrase as “to serve and conserve it.”  Alas, I find it hard to read Torah as endorsing idolatry (avodah = service), and I’m leery of seemingly contemporary policy prescriptions (leshomroh=conservation), so my translation here is “to work and protect it.”  

To work an arbor means to make it more productive, to cultivate it. Why is cultivation a proper purpose? The sequence of events in verses 2:8-10 is suggestive.

וַיִּטַּ֞ע ה֧’ אֱ-לֹהִ֛ים גַּן־בְּעֵ֖דֶן מִקֶּ֑דֶם 

וַיָּ֣שֶׂם שָׁ֔ם אֶת־הָֽאָדָ֖ם אֲשֶׁ֥ר יָצָֽר:

וַיַּצְמַ֞ח ה֤’ אֱ-לֹהִים֙ מִן־הָ֣אֲדָמָ֔ה

כָּל־עֵ֛ץ נֶחְמָ֥ד לְמַרְאֶ֖ה וְט֣וֹב לְמַאֲכָ֑ל 

וְעֵ֤ץ הַֽחַיִּים֙ בְּת֣וֹךְ הַגָּ֔ן וְעֵ֕ץ הַדַּ֖עַת ט֥וֹב וָרָֽע

Hashem Elokim planted an arbor in Eden, to the East.

He placed there the human that He had formed.

Hashem Elokim generated from the ground

every tree attractive to sight and good for eating

and the Tree of Life amid the arbor, and the Tree of Knowledge Good and Bad 

G-d places Adam in the arbor after it has been planted, but before the ground generates trees. I suggest that this was so Adam would see the trees grow into being. He thereby understood that the arbor was not fixed and eternal, but rather required stimulation. He intuited his purpose of l’ovdoh.

The Tree of Life amid the arbor, and the Tree of Knowledge, Good and Bad” may be 

  1. a subset of “all trees attractive to sight and good for eating,” or 
  2. separately created at this time, or 
  3. already grown when Adam is first placed there, before any other trees are generated. 

I prefer the last option.  Adam would intuit that these trees require no stimulus – they need only be protected from harm. 

Adam’s purposes therefore are 

  • l’ovdoh = to cultivate all the ordinary trees of the garden, and 
  • l’shomroh = to preserve the central tree(s).

We can then identify the positive command “from all the trees of the arbor you must eat” as a fulfillment of l’ovdoh (one cannot eat fruits unless they have been produced), and the negative command “but from the Tree of Knowledge, Good and Bad – you must not eat from it” – as a fulfillment of leshomroh.  If the positive and negative commandments are parallel. Adam would therefore understand that his obligation was to avoid cultivating the latter tree, with every expectation that it would not fruit.

But of course, it did fruit.  Imagine poor Adam’s confusion. Why would G-d command him not to cultivate the tree, if it would grow regardless? 

Moreover – maybe if this tree fruited in its own, maybe all the other trees would also have fruited on their own, regardless of his efforts.  Solzhenitsyn in The Gulag Archipelago tells of a prisoner in a labor camp who spends each day for decades turning the heavy wheel of a mill embedded in the camp wall, so that his fellow inmates could have flour.  Finally released, he goes outside the wall, and sees that the mill was a sham, and the wheel connected to nothing – and promptly dies. Maybe Adam ate the fruit because he no longer saw his works as having any purpose.

G-d is not chas veshalom a Soviet taskmaster; He would not have assigned human beings purposeless tasks. So Adam must have misunderstood.  Was it G-d’s fault for not making His command clearer?

Of course not. To understand what G-d wished to happen, we need to look at the next steps of the narrative.

וַיֹּ֙אמֶר֙ ה֣’ אֱ-לֹהִ֔ים 

לֹא־ט֛וֹב הֱי֥וֹת הָֽאָדָ֖ם לְבַדּ֑וֹ 

אֶֽעֱשֶׂה־לּ֥וֹ עֵ֖זֶר כְּנֶגְדּֽוֹ:

Hashem Elokim said:

It is not good, the human being by himself

I will make him a help to counterbalance him.

Just after G-d commands Adam, He states that Adam’s current state is “not good,” and then creates Eve to assist him. A reasonable hypothesis therefore is that the creation of Eve is necessary for the proper fulfillment of His command. But why does G-d command Adam when he is not yet capable of obeying?

Let’s shift one chapter forward.  In 3:3, Eve tells the snake that G-d commanded human beings ולא תגעו בו, usually translated as “and do not touch it.”  But G-d said nothing whatever about touching in Chapter 2! Why does Eve invent a prohibition?

The 19th century commentator S. D. Luzatto (SHaDaL) answers as follows:

Perhaps there is no addition to Hashem’s word here,

because the verb negiah is used many times in the borrowed sense of “damage,”

for example “do not touch My anointed” (Tehillim 105:15)

SHaDaL’s translation radically reoriented my perception of the command.  I had thought it was about protecting human beings from the tree. In his reading, it is about protecting the tree from human beings.

A second possible approach is to see Eve as overzealously extending the prohibition. She found her religious experience inferior to Adam’s, who had directly experienced G-d as commander, and so felt compelled to add weight to His yoke.  (She thus anticipated Dr. H. Soloveitchik’s thesis about the motivation for chumra among Chassidei Ashkenaz and late 20th Century American Orthodoxy.) 

Avot d’Rabbi Natan Version B (1:1) takes a third approach:

לא רצה אדם הראשון לומר לחוה 

כדרך שא”ל הקדוש ברוך הוא 

אלא כך אמר לה: 

ומפרי העץ אשר בתוך הגן אמר א-להים 

לא תאכלו ממנו 

ולא תגעו בו פן תמותון

The First Adam did not want to say to Eve 

in the same way that the Holy Blessed One had said to him

rather he said to her thus:

“’and from the tree which is amid the arbor,’ said G-d,

‘you must not eat from it 

and you must not touch it lest you die’”

Adam added a prohibition when talking to Eve because he wanted to be more than just a pass-through for Torah – he wanted to contribute.  Note, however, that the midrash seems to explain why Adam (in violation of Mishnah Eduyot 1:3) wanted to express the Divine command in his own words; it does not explain why Adam seemingly altered its substance.

Holding these approaches in our mind, we can move to one last mystery.  Where is Adam while the snake is seducing Eve into sin? 

One answer in Midrash Rabbah is that G-d had taken Adam on a world tour. This suggests that G-d deliberately gave the snake the opportunity to speak privately with Eve. Why would He do that?

So we have three questions.  

  1. Why is Adam commanded before Eve’s creation? 
  2. Why does Eve tell the snake about a prohibition against negiah that G-d never expressed?
  3. Why does G-d enable the snake to speak to Eve without Adam present?

In “Equality Lost,” the eponymous essay of his book Equality Lost and maybe the most powerful dvar Torah of the past 40 years, Rav Yehudah Herzl Henkin suggests that G-d commanded Adam before creating Eve so that Adam would have the opportunity to share the gift of Torah with her. Eve is created as a “help to counterbalance him,” but she cannot play her role as equal unless he sees Revelation as a gift to be shared rather than a source of exclusivity and power. The test of whether he had fully shared was to see whether she could now stand on her own in Torah, and so G-d had to ensure that the snake found her alone.

But why did she fail to withstand the snake?  Rav Henkin contends that Adam added the “fence” of touching, without distinguishing between the initial Divine decree and the humanly legislated fence.  (This parallels Maimonides’ understanding that it is a Biblical violation to present Rabbinic law as having Biblical force.) When the snake touches the tree, and seemingly nothing happens, Eve becomes convinced that everything Adam had told her was unreliable, and so she cannot resist the snake.

I suggest that Adam did not deliberately add on to G-d’s command.  Rather, he misunderstood the DON’T as forbidding cultivation, and then expressed it to Eve in his own words, rather than G-d’s.

The prohibition actually was against eating, and intended to protect humans from the tree. But because Eve had no access to the original text of Revelation, she propagated Adam’s error, and they sinned together when his error was exposed.     

“It is not good, the human being by himself” – Two heads are better than one, and in genuine discussion, the truth often emerges. G-d created Eve to be Adam’s match in Torah conversation. He revealed His command to Adam before Eve was created, intending for their conversation to take place within a shared set of assumptions, without competing subjective experiences of the primary dataset (cf. לא בשמים היא).  But Adam did not share his Torah fully with Eve. We are still paying for his mistake. So long we fail to create genuine equality of opportunity in Torah education, we are still making his mistake – and therefore countless others.

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Sukkot/Bereishit Reader 2019

Check out the 2019 edition of the CMTL Sukkot/Bereishit Reader for Divrei Torah from Rabbi Klapper and CMTL alumni!

Wishing you all a Moadim LeSimchah!

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Why Didn’t the Rabbis Eliminate Mamzerut? Part 6

by Rabbi Aryeh Klapper

This article is part of a series. For the rest of the series, see Part 1Part 2, Part 3, Part 4, Part 5, Part 7, Part 8, Part 9.

Vayikra 15:2 tells us that a man become tamei (=ritually impure) if he is zav (has an emission) from his flesh. Zav is distinguished from ordinary emissions in a variety of ways, including that the emission must not be attributable to a non-zav cause. Mishnah Zavim 2:2 lists eating and drinking as non-zav causes. Rabbi Akiva declares that “eating and drinking” includes consumption of any food or drink whatsoever.

אמרו לו:

אין כאן זבין מעתה!?

אמר להם:

אין אחריות זבים עליכם.

They said to him:

Now there can be no zavs?

He said to them:

The responsibility for (the existence of) zavs does not rest upon you.

The disagreement between Rabbi Akiva and his anonymous interlocutor here mirrors the dispute on Sanhedrin 73a regarding whether three Biblical laws “never were and never will be” (see Part 5).  Neither side offers a rationale for their position.

We can speculate that with so many mitzvot gone dormant after the Second Temple’s destruction, it became clear to Rabbi Akiva that studying these mitzvot must have value independent of preparation for performance; and it was only a small step from there to conclude that the value of study is essentially independent of preparation for performance; and finally that the eternality of Torah is enhanced rather than harmed by asserting that some mitzvot exist solely because there is value in studying them.

Rabbi Soloveitchik in Halakhic Man essentially identifies the methodology of Brisk with Rabbi Akiva’s ideology. We can accordingly identify Rabbi Akiva’s interlocutors with a matter-of-fact Telzer critique of Brisk; so much of the Torah’s legislation bears such marked similarity to the content and methods of practically intended legal systems, that it seems absurd to understand it as having no practical aims. Briskers respond that Torah criminal law covers the same ground as other systems of criminal law, but plainly would be ineffective at deterring crime. They cite the contention of Rabbi Nissim Girondi (Derashot HaRAN #11) that Torah criminal law is intended to “bring the Divine effluence down into the world,” while a parallel  system of “the king’s justice” – to which halakhah gives almost unfettered discretion – deals with the practical issue of deterrence.

Derashot HaRan’s contention seems incompatible with Mishnah Makkot 1:10.

סנהדרין ההורגת אחד בשבוע נקראת חובלנית

רבי אלעזר בן עזריה אומר:

אחד לשבעים שנה;

רבי טרפון ורבי עקיבא אומרים:

אילו היינו בסנהדרין – לא נהרג אדם מעולם;

רבן שמעון בן גמליאל אומר: אף הן מרבין שופכי דמים בישראל.

A Sanhedrin that kills once in seven years is called “Brutal.”

Rabbi Elazar ben Azariah says:

Once every seventy years.

Rabbi Tarfon and Rabbi Akiva says:

Had we been on the Sanhedrin – no person would ever have been killed.

Rabban Shimon ben Gamliel says:

They would have multiplied bloodshedders in Israel.

If deterrence is accomplished by a parallel legal system, why is Rabban Shimon ben Gamliel’s critique relevant to the Sanhedrin?!

We might answer for RAN that he concedes that in the absence of a king (or perhaps if the king fails in his responsibility), the Sanhedrin assumes responsibility for the parallel system as well.  In that case, Rabbi Akiva and Rabbi Tarfon were taking an absolute position against the death penalty.  Alternatively, perhaps RAN thought that this was the issue in dispute.  Rabban Shimon ben Gamliel believed (incorrectly) that halakhic criminal justice had a deterrent function, whereas Rabbi Akiva and Rabbi Tarfon believed (correctly) that it did not.

Even according to RAN, however, the criminal law has a practical function, namely “bringing the Divine effluence down into the world.”  Must the law be implemented to accomplish this purpose? Perhaps the trial is a sufficient implementation, regardless of the verdict.

Talmud Makkot 7a explains the position of Rabbi Akiva and Rabbi Tarfon as follows:

היכי הוו עבדי?

רבי יוחנן ורבי אלעזר דאמרי תרוייהו:

ראיתם טריפה הרג? שלם הרג?

אמר רב אשי:

אם תמצא לומר שלם הוה, דלמא במקום סייף נקב הוה?

בבועל את הערוה היכי הוו עבדי?

אביי ורבא דאמרי תרוייהו:

ראיתם כמכחול בשפופרת?

ורבנן היכי דיינו?!

כשמואל, דאמר שמואל: במנאפים = משיראו כמנאפים.

How would Rabbi Akiva and Rabbi Tarfon have acted to prevent executions?

R. Yochanan and R. Elazar both said:

“Did you see whether the victim was a tereifah or rather whole?”

Said Rav Ashi:

“And if he appeared whole, perhaps there was already a hole where the sword cut him?”

How did they prevent execution in cases of sexual transgressions?

Abbayei and Rava both said:

“Did you see the act of penetration?”

So how would the Rabbis have acted to enable executions in cases of sexual transgressions?

They would have followed Shmuel, for Shmuel said:

The rule regarding adulterers is that only the appearance of adultery is necessary.

It seems likely that Rabbi Akiva and Rabbi Tarfon would have insisted on the trial, even though they would always have questioned the witnesses until they found a point ambiguity sufficient to acquit.

However, various commentators connect Rabbi Akiva’s position here with his position in Zavim.  For our purposes, perhaps the most interesting is Rabbi Eliezer Berkovits in his Halakhah: Kocha veTafkidah (published in translation as Not in Heaven, but the translation here is mine).

תשובתו של ר’ עקיבא היתה: “אין אחריות זבים עליכם”,

היינו –

ר’ עקיבא לא חש לכך שלפי שיטתו נעקרה פרשת זבים מהתורה.

האחריות על הפוסק היא להכריע על פי הבנתו את הענין.

ולמה לא נאמר איפוא כי גם בפרשת הרוצח חכמים

לא קיבלו אחריות על עצמם

לפסוק דין באופן שיהיו רוצחים?

ועל כן, אם לפי ראות עיניהם יש לחוש למיעוטא

של שמא במקום נקב סייף הוה –

הם אינם יכולים לדון את האדם למיתה.

Rabbi Akiva’s response was: “You do not have responsibility for the existence of zavim.”

meaning:

Rabbi Akiva was not concerned that his position uprooted the chapter dealing with zavim from the Torah.

The responsibility of the posek is to decide the issue in accordance with his understanding.

Why, therefore, shouldn’t we say that with regard to the chapter on murders as well,

the Sages did not accept upon themselves the responsibility

to rule in a way that would lead to the existence of legally identifiable murderers?

Therefore, if in their judgment one should take into consideration the unlikely possibility

that there was a wound where the sword cut him –

they cannot judge the man liable for execution.

Rabbi Berkovits suggests that the position of Rabbi Akiva and Rabbi Tarfon regarding the death penalty is dependent on the position he articulated in the context of, namely, on his belief that an interpretation of Torah is not false just because it leads to the practical elimination of a Torah law.

What generates or motivates Rabbi Akiva and Rabbi Tarfon’s position?  Rabbi Berkovits appears to frame it within their technical claim – they thought execution required the elimination of even the slightest doubt of innocence.

One can make this a purely technical question, addressed in other sugyot, of whether there is a compelling Biblical source for relying on probability in capital cases. This would require sugyot elsewhere that provide such a source to be following Rabban Shimon ben Gamliel.

However, one can also make this a moral claim.  Rabbi Akiva and Rabbi Tarfon thought that human knowledge could never be certain enough to permit executing a person.

On this second understanding, does the position of Rabbi Akiva and Rabbi Tarfon provide a precedent for morally reinterpreting Torah laws out of existence?

The answer may be yes, with certain conditions.  We will discuss those conditions in subsequent essays.  For now, though, I conclude by noting that Rabbi Berkovits correctly recognizes that Ramban to Makkot 7a utterly rejects the claim that Rabbi Akiva and Rabbi Tarfon relegated Torah capital jurisprudence to the realm of hypothetical law.

איכא למידק:

אי הכי, עקרת פרשת רוצחין ופרשת עדים זוממין . . . !?

איכא למימר

הא דאמר ר”ע לא נהרג בה אדם מעולם – לאו דוקא,

אלא על הרוב וגוזמא בעלמא,

שהרי אתה מוצא שיהרג בנואף ונואפת כשיראו כמכחול בשפופרת, וכל שכן באיסור שבת וע”ז . . .

We can ask against the position of Rabbi Akiva and Rabbi Tarfon:

If so, you have uprooted the chapters of murderers and of perjured witnessses . . . !?

But we can say in response that

When Rabbi Akiva said “No man would have been killed” –

he was not being literal,

but rather speaking generally and exaggerating,

as you would find adulterers killed if the witnesses saw the actual penetration

and all the more so it would be possible to execute in cases of Shabbat violation and idolatry.

Ramban’s understanding of Rabbi Akiva here can be extended to Zavim as well.  Rabbi Akiva is generally understood to mean only that one is not a zav if one has eaten or drunk in the previous 24 hours – this means that the case of zav is possible after a fast such as Yom Kippur, for example.  This interpretation is explicitly adopted by Tiferet Yisroel. Others extend this approach even to the cases of the Rebellious Son, the Idolatrous City, and the Leprous House.

If we follow this approach, it turns out that there is no precedent anywhere in halakahah for interpretations that makes a Torah law genuinely impossible.  Can one limit Torah law to extremely rare cases?  Rabbi Akiva holds yes, but his position is disputed.  What about creating a loophole that enables the evasion of the Torah law in all cases?  In Part 7, we’ll look at a 20th century iteration of this discussion.

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Why Didn’t the Rabbis Eliminate Mamzerut? Part 5

by Rabbi Aryeh Klapper

This article is part of a series. For the rest of the series, see Part 1Part 2, Part 3, Part 4, Part 6, Part 7, Part 8, Part 9.

Sanhedrin 71a cites a beraita which declares that three Biblical laws “never were and never will be,” rather are purely hypothetical. The Talmud associates the declaration with beraitot conveying a specific legal position about each law.

In Parts 1-4 of this series, I showed that regarding the Rebellious Son and the Idolatrous City, those legal positions are not radical reinterpretations of the laws in response to moral concerns. Rather, the declarations of hypotheticality are reactions to those preexisting legal positions.

A fair counterquestion is: What motivated these extreme legal positions, if not moral discomfort with the law as it would otherwise be understood?

This seemingly powerful question rests on a false premise. It assumes that these legal positions could only have been produced by extreme interpretations, i.e. interpretations arrived at by methods that the interpreter would dismiss in other circumstances. But this is not so.

Let’s turn for example to the third law, that of the Leprous House.  Mishnah Negaim 12:3 records a Tannaitic dispute:

. . . שהיה ר’ ישמעאל אומר:

עד שיראה בשני גריסין על שתי אבנים או על אבן אחת;

ר”ע אומר:

עד שיראה כשני גריסין על שתי אבנים, לא על אבן אחת;

רבי אלעזר בר”ש אומר:

עד שיראה כשני גריסין על שתי אבנים בשני כתלים בזויות, ארכו כשני גריסין ורחבו כגריס.

. . . as Rabbi Yishmael would say:

(The lesion does not make a house leprous ) until it appears in the size of two beans on two stones,

or on one stone;

Rabbi Akiva says:

Until it appears the size of two beans on two stones,

not on one stone;

Rabbi Elazar beRabbi Shimon says:

Until it appears the size of two beans on two stones

on two walls in a corner.

It is the legal position of Rabbi Elazar beRabbi Shimon that the Talmud associates with hypotheticality.  How is his position arrived at?  Vayikra 14:36 first speaks of the lesion appearing on the קיר(ו)ת/walls of the house, and then of its appearance on the קיר/wall. Rabbi Elazar beRabbi Shimon therefore requires a wall that is also walls, i.e. a corner.  There is nothing unusual about this mode of legal reading; if anything, it is not clear why the resulting requirement is so unlikely to be met.

Note that roughly the same mode of reading generates Rabbi Yehudah’s requirement for the parents of the Rebellious Son to have identical voices;  in Devarim 21:18; the mother and father say that their son “does not heed our voice” – singular.  Moreover, an anonymous Mishnah on Yoma 62a, identified by the Talmud with the same Rabbi Yehudah, requires the two goats of Yom Kippur to be identical in appearance, height, and value. The reason no one declares that the goats never happened is that it is easier for human beings to overlook minor physical differences among goats than among people, especially when the people are of different genders.

In other words: the legal positions that the Talmud associates with hypotheticality are extreme only in their effect on the likelihood of the law being applied in practice. There is nothing extraordinary about the interpretations that generate them.

A further proof that these interpretations are not generated by moral concerns is that the third case, the Leprous House, is not morally bothersome to the extent that a reader might feel compelled to eliminate its practical application. (This argument is also made by Rabbi Ethan Tucker here.)

Rabbi Dan Margulies (WBM ’16) disagreed with this proof when I published it on Facebook some months ago.  He argued that destroying someone’s house is a uniquely demoralizing punishment, especially when it results from a secondary event rather than directly from a specifically identified sin.  Destroying a house can also be a form of collective punishment.  The ongoing public conversation about whether destroying the homes of terrorists is a legitimate punishment suggests that my initial dismissal of the moral issue was too facile.

Rabbi Tuvy Miller (SBM ’13) in his CMTL alumni DT “The House That Was?” took a diametrically opposite approach to constructing a moral issue. Rabbi Miller begins from Rashi (based on midrashim), who notices that the Torah introduces the ‘leprous house’ with language that sounds more like a promise than a threat.

ונתתי נגע צרעת

בשורה היא להם שהנגעים באים עליהם,

לפי שהטמינו אמוריים מטמוניות של זהב בקירות בתיהם

כל ארבעים שנה שהיו ישראל במדבר,

ועל ידי הנגע נותץ הבית ומוצאן

This was an announcement to them that these ‘afflictions’ would come upon them,

because the Amorites concealed gold treasures in the walls of their houses

 during the Jews’ forty year sojourn in the wilderness,  

and via the ‘affliction’ they would tear down the house and find them (the treasures).

I had always assumed that this interpretation rejects the position that the Leprous House is purely hypothetical: promises of wealth that depend on an unrealizable condition are simply cruel. Rabbi Miller argued, however, that the “never was and never will be” position might be a moral reaction to this interpretation. Since the Torah in several contexts recognizes that despoiling a defeated enemy undermines the morality of war, how could the Torah promise financial benefits from the destruction of the Seven Nations?

These critiques are wonderful contributions to Torah, and I am grateful for them. Nonetheless, I don’t see them as plausible drivers for extreme reinterpretations.

With regard to Rabbi Miller’s suggestion, Tanakh doesn’t always ban spoils – sometimes it seems to strongly encourage spoiling – and the bans seem clearly unusual, beyond-the-ordinary gestures. Even those bans might not apply to abandoned safe deposit boxes discovered years later.

With regard to Rabbi Margulies’ suggestion, I am not convinced that destroying a dwelling raises moral challenges as serious as execution.  Moreover, since the Torah does not explicate the cause of house-plagues, perhaps they occur only when every inhabitant of the house has sinned, and so there is no issue of the innocent suffering together with the guilty.

The true underlying issue, then, is: Must we assume that Torah laws are intended to have real-world application, and therefore reject interpretations which make them hypothetical?

Maimonides presumed that we must, That’s why with regard to all three of the Leprous House, the Idolatrous City and the Rebellious Son, he ruled against the positions that the Talmud associates with hypotheticality.  The Amora Rabbi Yonatan also rejected hypotheticality on ideological grounds, declaring that he was as certain of the actuality of the Idolatrous City and the Rebellious Sin as if he had sat on their tell/grave. The only reason Rabbi Yonatan doesn’t make a parallel statement about the Leprous House is that he doesn’t need to; Sanhedrin 73a records a beraita in which two Tannaim report actually seeing ruins that were identified as those of Leprous Houses.

I contend, however, that the author of the “never was and never will be” beraita rejects this assumption.  Like Rabbi Joseph B, Soloveitchik’s Halakhic Man, he is not bothered if an ideal structure of Halakhah has no precise real-world correlate.

I suspect that many readers will immediately accuse me of anachronism.  Halakhic Man is a product of NeoKantian philosophy and Brisk, and his positions cannot reasonably be assigned to a member of Chazal.  Surely it is beyond reason to think that the Rav and the Chazon Ish were simply recreating a Tannaitic dispute.

This argument is powerful, but it is also demonstrably false.  The Tannaitic dispute about this issue is explicit in Mishnah Zavim 2:2. The Mishnah discusses which sorts of emissions make a man a zav, and which are considered the product of ordinary processes.  Rabbi Yehudah holds that one is not a zav if he even experienced any sort of visual sexual stimulus.  Rabbi Akiva holds that one is not a zav even if he merely ate or drank anything.

אמרו לו:

אין כאן זבין מעתה!?

 אמר להם:

אין אחריות זבים עליכם

They said to (Rabbi Akiva):

Now there will be no zavim!?

He replied:

The responsibility for (the existence of) zavim is not yours.

It seems unavoidable to me that Rabbi Akiva held like Halakhic Man, and his interlocutors like Maimonides.

Stay tuned for Part 6!

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Yom Kippur Reader 2019

Check out the 2019 edition of the CMTL Yom Kippur Reader for Divrei Torah from Rabbi Klapper and CMTL alumni!

Wishing you all a Gemar Chatimah Tovah!

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Why Didn’t the Rabbis Eliminate Mamzerut? Part 4

by Rabbi Aryeh Klapper

This article is part of a series. For the rest of the series, see Part 1Part 2, Part 3, Part 5, Part 6, Part 7, Part 8, Part 9.

Contemporary efforts to reinterpret ethically troubling Torah laws out of practical application generally raise theological hackles.  Why? Didn’t Chazal’s interpretations do the same thing? Haven’t many areas of Torah law been purely theoretical for a millennium or more?  

In Part 1 of this series, I called attention to an apparent irony. Chazal explicitly acknowledge that mamzerut is ethically unjustifiable, and yet unlike for other laws, there is no record that any member of Chazal ever suggested that “mamzerut never was and never will be.” I argued that aiming to resolve every actual case of possible mamzerut is nonetheless a proper goal for poskim.  

In Part 2, I showed how Rav Moshe Feinstein set this goal for himself with complete integrity, and without arguing that this meant that mamzerut should be understood as a purely theoretical law.  But I also showed that Rav Moshe regarded mamzerut as a special case, because Chazal interpreted the Torah as requiring poskim to rule leniently even in cases of probable mamzerut. Chazal nonetheless created an additional rabbinic restriction. However, consistent with their Torah interpretation, they allowed that restriction to be treated as a formal rather than as a substantive barrier. 

Mamzerut is unquestionably special.  On Kiddushin 71a, Rav Yitzchak rules that “a family of mamzers that has been subsumed (=allowed to marry within the community) – is subsumed.” On Kiddushin 72b, Rabbi Yose holds that in the Future to Come all mamzers will be allowed to marry within the community.  Rabbi Meir disagrees; but Rav Yehudah in the name of Shmuel declares that the halakhah follows Rabbi Yose. Rav Yitzchak is likely based on Rabbi Yose. If in the End all mamzers will be legitimated, it makes little sense to spend time and effort in our days “outing” them. It seems reasonable to argue that both Rabbi Yose and Rabbi Yitzchak were motivated by Tanakh’s moral opposition to “visiting the sins of parents on their children.” Probably, like Rav Moshe after them, they built off the universally accepted assertion on Kiddushin 73a that the Torah prohibits only a “definite” mamzer.

Because of its ‘specialness,’ mamzerut is not a sufficient precedent for contemporary attempts to adopt interpretations of halakhot that practically eliminate them.  But ‘special’ is not necessarily ‘unique.’ Are there other halakhot that, like mamzerut, were understood by Chazal as ideally having minimal or no practical application?  If yes, did Chazal regularly arrive at such understandings based on moral discomfort? If yes, is moral discomfort a legitimate basis for contemporary halakhists to interpret halakhot out of practical existence?

It turns out that there are quite a few halakhot that at least some members of Chazal understood as having minimal or no practical application.  But it is much less clear whether those understandings were based on moral discomfort, or what precedent they provide for contemporaries. 

Let’s start our analysis by recognizing that there are several different ways to argue that a law is purely theoretical, or to interpret a law so that it becomes purely theoretical .  One can argue that it is, or interpret it so that it is:

  1. Physically impossible
  2. Practically impossible
  3. Morally impossible
  4. Easily evadable
  5. Logically impossible
  6. Obsolete

These categories will be helpful as we survey the field.  

Sanhedrin 71a cites anonymous beraitot stating that three Torah laws “never were and never will be.” Part 3 discussed the second case discussed on Sanhedrin 71a, the Law of the Idolatrous City.  Let’s now move to the most famous of the three cases, the Rebellious Son/ ben sorer umoreh.  

The Talmud asks: 

Which position does this beraita follow:

“The rebellious son never was and never will be, 

so why is it in Scripture? Expound and receive reward.”?

The question “which position etc.” assumes the existence of a dispute.  The Talmud offers two alternative answers. The first is that the beraita follows Rabbi Yehudah.  This is a reference to Mishnah Sanhedrin 71a, as interpreted by the Talmud. That interpretation is supported by another beraita.

/Mishnah/

If his father wanted (to declare him a rebellious son) but not his mother, or vice versa –

he is not made (=legally treated as) a rebellious son,

until both of them want.

Rabbi Yehudah said:

If his mother was not fit for this father –

he is not made a rebellious son.

/Talmud/

What is the meaning of “not fit?”

If you say it means ‘not legally fit,’

in the end, his father is his father and his mother is his mother (so the conditions of the verse are met)!?

Rather, it means that his mother is (not) equivalent to his father.

A beraita said the same thing:

“Rabbi Yehudah said:

If his mother was not equivalent to his father in voice, appearance, and height – 

he is not made a rebellious son.

Why?

Scripture says: He does not heed our (plural) voice (singular)” –

(and) once we require voice to be equivalent, we also require appearance and height to be equivalent.

Once we understand Rabbi Yehudah’s “fitness” to mean that the parents must have indistinguishable voices, appearances, and statures, it makes sense to say that the law of the rebellious son is physically impossible

Rabbi Yehudah’s position regarding voice is derived from a close reading: the parents jointly declare that the son does not heed their “voice,” singular. By contrast, the move from voice to requiring equivalent appearance and height appears almost sleight of hand, as nothing in the verse relates to appearance or height.  Moreover, ‘speaking with a single voice’ might refer to compatibility of parenting method and aims rather than to anything physiological. That might even be what Rabbi Yehudah meant by “fit” in the Mishnah. For these reasons, it is a tenable hypothesis that Rabbi Yehudah’s ruling, as understood by the beraita and the Talmud, was driven by moral discomfort and had the intent of making the law purely theoretical.

But – the Talmud acknowledges that Rabbi Yehuda’s position, however understood, is controversial.  The beraita stating that the rebellious son “has not been and never will be” follows Rabbi Yehudah against the anonymous opening position of the Mishnah.  In such situations, the halakhah presumptively follows the anonymous Mishnah. In his Commentary on the Mishnah, Maimonides states that “the law does not follow Rabbi Yehudah,” and his Mishneh Torah (Laws of Rebels 7:10) agrees.  For all we know, Rabbi Yehudah’s position was rejected precisely because it made the halakhah practically impossible, or alternatively because it was obviously driven by a moral agenda rather than by textual fidelity. So his position may be a rejected precedent.

We might also decide that Rabbi Yehudah never meant the radical position the Talmud ascribes to him.  Perhaps even in the beraita the Talmud cites to support its interpretation of him, he requires only physical compatibility, not identicality.  So no one ever actually interpreted the Torah so as to make the law of the rebellious son physically impossible because they found it morally impossible; that was just a thought experiment, which was rejected.

Alternatively, we might decide that Rabbi Yehudah adopted his radical interpretation only because he already knew that the law was practically impossible.  

Why would we say this?  The Talmud next identifies the position that the law is purely theoretical with a beraita in which Rabbi Shimon, unlike Rabbi Yehudah, states that conclusion explicitly.  The identification with Rabbi Yehudah is mentioned first because the Talmud is organized around the Mishnah, so it first mentions the position that is in the local Mishnah. But substantively, we would only understand Rabbi Yehudah that way if we knew that he agreed with Rabbi Shimon.

Here are Rabbi Shimon’s words:

Said Rabbi Shimon:

Because this one ate a tartimar of meat and drank a half-log of wine,

his father and mother take him out to be stoned?!

Rather: This never was and never will be,

(so) why is it in Scripture? Expound and receive a reward.

Rabbi Shimon argues that the law is practically impossible.  The text explicitly requires the parents to actively bring their child to be punished, but they would never do such a thing. 

Is Rabbi Shimon describing the law as it was presented to him, or describing the law based on his own interpretation? The Torah says that the parents must tell the elders that their child is zolel v’sovei, gluttonous and a drunk.  Rabbi Shimon agrees with the anonymous position in Mishnah Sanhedrin 8:2 as to how much meat and wine that requires; Rabbi Yose there doubles the amounts. Is there an amount large enough that Rabbi Shimon would see as sufficient to motivate parents to take their child out to be stoned?  

Parents sometimes deal with addicted children in ways they would never consider under other circumstances. Yet “tough love” does not extend to execution. Moreover, I can’t believe that his evaluation would change if we adopted Rabbi Yose’s required amounts, and I am not aware of any position that ever required more.  So it seems to me most likely that Rabbi Shimon is describing the halakhah as it was presented to him. He can be used to argue that interpretations which yield the result of practical impossibility are reasonable and within the tradition, but not as a precedent for developing interpretations with the intent of making a law practically impossible.

Even though Rabbi Shimon is merely describing the law, the form of the Talmud’s opening question tells us that his position is disputed.  It is therefore not surprising that the Talmud follows his statement by citing Rabbi Yonatan as saying: “I saw him (a rebellious son), and I sat on his grave (after he was executed).” 

We already discussed Rabbi Yonatan’s apparent eyewitness report in Part 3.  But let’s note here that Rabbi Yonatan is an amora (Talmudic era), and the ordinary rules of the Talmudic game are that amoraim do not argue directly with tannaim (Mishnaic era) such as Rabbi Shimon. So we should be alert for a tannaitic position disagreeing with Rabbi Shimon.  Such a position may be cited on Sanhedrin 72a.

Rabbi Yose the Galilean says:

Because this one ate a tartimar of meat and drank a half-log of wine,

the Torah says that he should be taken out to be stoned?!

Rather: The Torah fully understood the psychology of the rebellious son,

that in the end he will exhaust his father’s possessions, seek his custom and not find it,

go out to the crossroads and rob the people/

(So) the Torah said: Let him die innocent and let him not die guilty . . .

Both the form and the substance of Rabbi Yose the Galilean’s statement suggest that it was originally presented as a contrast with Rabbi Shimon.  He agrees with Rabbi Shimon that the son’s sins are trivial; but he trusts the Torah to be making a prediction that justifies the execution.

Rabbi Yose the Galilean starts by seeing the law as morally impossible. He responds to this impossibility with an apologetic; the law seems unjust to us, but only because we can’t know what G-d knows about this young man’s future.  This is a kind of universal solvent for moral difficulties with Biblical law, and it provides no basis for reinterpreting the law in the face of moral difficulty.  

Maybe Rabbi Yose the Galilean believes that even parents would be persuaded by his reasoning, and would bring their child to be punished.  Or maybe he agrees with Rabbi Shimon that they would not, but practical impossibility does not bother him, at least so long as it is not the result of an interpretation driven by a claim of moral impossibility.

The bottom line is that the Talmud’s discussion of the law of the rebellious son, and the positions that the rebellious son never was and never will be, are not valid precedents for interpreting a halakhah out of existence on the basis of moral objections.  We showed in Part 3 that the Idolatrous City is also not a valid precedent. But Sanhedrin 71a discusses a third case, and there are cases beyond those three. Perhaps one of the others, or the overall pattern, will provide stronger precedents. Stay tuned for Part 5!

 

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Why Didn’t the Rabbis Eliminate Mamzerut? Part 3

by Rabbi Aryeh Klapper

This article is part of a series. For the rest of the series, see Part 1Part 2, Part 4, Part 5, Part 6, Part 7, Part 8, Part 9.

Moral critics of contemporary Orthodoxy often make the following argument: 

Chazal interpreted Torah laws out of existence when they found them immoral.

We find Law X immoral.

Contemporary rabbis (should) agree with us that Law X is immoral.

They should act like Chazal and interpret Law X out of existence.

This series of essays challenges that argument. 

Let me be clear that I am a strong advocate for the role of morality in halakhic interpretation, and for seeking whenever possible to interpret halakhah so as to avoid causing other people pain.  My discussion is about the extreme limits of such interpretation. 

I will also note that in my experience and evaluation, attempts at such extreme interpretation tend to cause lasting harm and only the illusion of progress, for two reasons:  

First, such interpretations galvanize reactionaries who seek davka to implement the law, and who seek to tar all creative interpretations with humane implications as founded in moral critiques of the Torah.  The result is that people who might otherwise have been easily helped become political footballs; arguments that might have drawn consensus support are excluded from the discourse; and no one is actually helped to flourish in the community of their choice. This state of affairs is itself ethically lamentable, and must be fought; but it must also be acknowledged, and the battle is pointless if it destroys the very people it is meant to help. 

Second, at least outside the State of Israel, the people who suffer from halakhic restrictions are generally those who most strongly believe that halakhah is the will of G-d and in the necessity of Orthodox community; otherwise, they would just leave.  They will generally refuse to accept help that, within their own plausibility structures, is inconsistent with those beliefs.  

However, truth is a value in and of itself.  So if the argument that opens this essay is correct, I would acknowledge it even if I thought using it in practice was unwise.  But I do not think it is correct.      

My primary countercase is the law banning mamzerim from marrying within the community. Part 1 of this series showed that Rabbinic literature acknowledges that this law violates the fundamental moral sensibility that children should not suffer for their parents’ sins, and yet records no effort to interpret it out of existence. Part 2 noted that normative halakhah nonetheless encourages poskim to try to interpret every individual case out of the category of mamzerut, and showed how Rav Moshe Feinstein’s position allowed one to accomplish this with integrity.

Let’s now begin looking at the evidence for the assertion that Chazal interpreted Torah laws out of existence for moral reasons.  Sanhedrin 71a cites anonymous beraitot stating that three Torah laws “never were and never will be,” and there are several statements elsewhere that seem to make similar claims about other laws.  Part 3 begins from the second case discussed on Sanhedrin 71a, the Law of the Idolatrous City.     

כמאן אזלא הא דתניא:

עיר הנדחת לא היתה ולא עתידה להיות, 

ולמה נכתבה? דרוש וקבל שכר.?

כמאן? כרבי אליעזר, 

דתניא:

רבי אליעזר אומר:

כל עיר שיש בה אפילו מזוזה אחת – אינה נעשית עיר הנדחת.

מאי טעמא?

אמר קרא: ואת כל שללה תקבץ אל תוך רחבה ושרפת באש,

וכיון דאי איכא מזוזה לא אפשר, דכתיב לא תעשון כן לה’ א-להיכם.

אמר רבי יונתן: 

אני ראיתיה, וישבתי על תילה.

Which position does this beraita follow:

“The seduced-into-idolatry city never was and never will be, 

so why is it in Scripture? Expound and receive reward.”?

Which position?  That of Rabbi Eliezer,

as we learned in a beraita:

Rabbi Eliezer says:

Any city that has within it even one mezuzah – cannot be made a seduced-into-idolatry city.

Why?

Scripture says: “All its loot you must gather into its public square, and burn it in fire,”

and since if there were a mezuzah this (burning) would not be possible,

as Scripture says: “Do not do thus (destruction) to Hashem your G-d.”

Said Rabbi Yonatan:

 I saw it, and I sat on its tell.

For this passage to instantiate the thesis that Chazal interpreted Torah laws out of existence when they found them immoral, we need to establish at least three things:

  1. That Rabbi Eliezer interpreted the Law of the Idolatrous City out of existence
  2. That he did so in the service of a moral agenda
  3. That his position is a viable precedent 

Careful reading of the passage shows that Rabbi Eliezer himself never states that the law is purely theoretical. Rather, that position is found in a beraita (also cited in the Tosefta).  The Talmud argues only that this position is compatible with, or grounded on, the position of Rabbi Eliezer.  We cannot tell from this whether Rabbi Eliezer’s position is intended to make the law purely theoretical.

Here it is important to consider in what way Rabbi Eliezer’s position can be understood as making the law purely theoretical.  The argument (careful of the double negatives) is that no Jewish city would ever not have a single sacred object with G-d’s Name.  This is not a logical impossibility. Rather, like Rabbi Shimon’s claim that no parent would bring their child to be punished as Rebellious, it is a claim of practical impossibility.  Not “this could never happen,” but rather “this would never happen.”  Why? because Jews would never behave in such a way as to trigger this law.  If they ever did, the law would be just. (Note that Rabbi Shimon himself does not seem to have qualms about the Idolatrous City.  Mishnah Sanhedrin 111b cites him interpreting a verse as G-d’s assurance that carrying out that Law will be regarded by Him as the equivalent of bringing an olah sacrifice.)  

Perhaps a useful contrast is this dispute recorded in Sifrei Devarim 94.

את יושבי העיר ההיא – 

מיכן אמרו: 

אין מקיימים את הטפלים; 

אבה חנן אומר: לא יומתו אבות על בנים – 

בעיר הנדחת הכתוב מדבר.

The inhabitants of that city

Based on this they said: 

One does not keep alive the children (of an Idolatrous City);

Abba Chanan says:

Fathers must not die for children (and children must not die for fathers) – 

Scripture is discussing the Idolatrous City.”

Here Abba Chanan explicitly rejects a legal position regarding the Idolatrous City on the basis of a moral principle! The Biblical verse he cites has no specific textual connection to the Idolatrous City; it simply drives him to reinterpret inhabitants as excluding children. Abba Chanan had no qualms about openly basing his legal interpretation on moral principles.  The burden of proof is therefore on the claim that Rabbi Eliezer could do so only covertly.

In any case, Rabbi Eliezer’s position is not consensus.  By asking “Which position,” the Talmud tells us that the answer will be one side of a dispute.  On Sanhedrin 113a, the Talmud identifies the other side of the disputant as the anonymous Mishnah on 111b.

(שללה – ולא שלל שמים. 

מכאן אמרו: 

ההקדשות שבה – יפדו;

ותרומות – ירקבו; 

מעשר שני) וכתבי הקדש – יגנזו.

(Its loot – and not the loot of Heaven.

From here they said:

The ‘sanctified’ objects in it – must be redeemed;

the priestly portions – must rot;

the second tithe) and the Holy Writings – must be secreted.

מתניתין דלא כרבי אליעזר. 

דתניא: 

רבי אליעזר אומר: 

כל עיר שיש בה אפילו מזוזה אחת – אינה נעשית עיר הנדחת, 

שנאמר 

ושרפת באש את העיר ואת כל שללה כליל, 

והיכא דאיכא מזוזה – לא אפשר, 

דכתיב 

לא תעשון כן לה’ א-להיכם.

This Mishnah is against Rabbi Eliezer, 

as we learned in a beraita:

Rabbi Eliezer says:

Any city that has within it even one mezuzah – cannot be made a seduced-into-idolatry city.

as Scripture says: 

All its loot you must gather into its public square, and burn it in fire entirely,

and where there is a mezuzah,  this (burning) is not possible,

since Scripture says: 

Do not do thus (destruction) to Hashem your G-d.

Maimonides Laws of Idolatry 4:16 rules like the anonymous Mishnah, against Rabbi Eliezer.  

We must also note the odd statement of Rabbi Yonatan that “I saw it and sat on its tell.”  Firstly, Rabbi Yonatan is an Amora, and Amoraim generally do not take such direct issue with a Tanna!  (Perhaps Rabbi Yonatan was only taking sides with the Anonymous Mishnah.) Second, Rabbi Yonatan made the identical comment about the Rebellious Son: “I saw him, and I sat on his grave.”  Perhaps Rabbi Yonatan, who as an Amora lived long after halakhic courts had the power to inflict capital punishment, led an archaeological tour of great halakhic execution sites? But many acharonim point out that Rabbi Yonatan was a kohen, and therefore could not have sat on the grave and tell.  But then why did he say that he did?

The answer, I suggest, is that Rabbi Yonatan’s statement should not be understood as literal.  Rather, when kohanim swore, they liked to do so with a reference to their status, and one strong form was “I am as sure this happened as if I had become tamei  to a corpse.”  Another example of this, if I am correct, is the statement of the kohen Rabbi Elazar bar Tzadok cited on Berakhot 19b that “We used to leap over coffins to greet Jewish kings.”  In what universe would the only path to greet a king require one to leap over coffins, regularly? Rather, Rabbi Elazar was as certain of the halakhah as if he had done it himself.  So too, Rabbi Yonatan. 

Rabbi Yonatan is not providing eyewitness testimony. We might have rejected that by saying that he had misidentified the gravesite, or that the executions in question had been rooted in legal error.  Rather, he is staking out an ideological position against the claim that a Biblical law can be interpreted as purely theoretical.

Bottom line, the case of the Idolatrous City provides no evidence that Chazal deliberately reinterpreted a Biblical law out of existence, and no precedent for doing so ourselves.  There is no evidence that the position “never was and never will be” generated a halakhic interpretation, rather than building off an independently arrived at plausible interpretation.  The “never was and never will be” position is based on a practical rather than a moral claim. The halakhic interpretation associated with the “never was and never will be” position is one side of a Tannaitic dispute, and Rambam rules like the other side.  Finally, the Amora Rabbi Yonatan appears to reject such a position in principle, not only in this specific case.

In Part 4, we’ll discuss the Rebellious Son, the second of the celebrated trio on Sanhedrin 111a.  Part 5 will discuss the Leprous House, the third member. We’ll also discuss the position of Rabbi Akiva and Rabbi Tarfon about the death penalty in general.  Finally, we’ll turn to a much less known Mishnah in Negaim that may prove a more useful precedent that any of those usually cited.

 

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