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The Walder Case and Suicide: Lessons Learned and Not Learned

by Rabbi Aryeh Klapper

John Donne wrote that “Any man’s death diminishes me, because I am involved in mankind”. I hope that line resonates for you as it does for me. 

Any human death one has contributed to, in however minor a way, is an occasion for cheshbon hanefesh. The points below are products of the first stage of reflection. They are not all directly related to the Walder case.  I thank the many CMTL alumni whose challenges and criticisms have aided that reflection, and whose thoughts I continue to engage with. The responsibility for the content is purely mine.  

Let me start by stating unequivocally that I don’t regret my role as the “prominent rabbi” cited by JTA supporting Mr. Mordy Getz’s courageous removal of Walder’s books from Eichler’s Boro Park and ShopEichler’s.com. I also think that Walder’s direct victims may celebrate his death, just as Bnei Yisroel sang about the Mitzrim drowning in the Reed Sea even while Hashem silenced the angels.  

Walder’s apparent suicide changes nothing. We cannot allow the risk of suicide – however sincere and realistic – to prevent the exposure of predators. In this case, I can’t see how anything that was done should have been changed to prevent that outcome. (One alum suggests that he should have been arrested and placed under suicide watch. I’m not sure of that, but regardless, that was not something that could be arranged by those who did act.)

My reflection is also not related to the question of Walder’s guilt or innocence. I acted as I thought proper given the information available to me, which at the time meant recognizing that there was a small but real possibility of innocence. That’s why my initial Facebook post (see now also the 2021 CMTL End-of-Year Reader) distinguished halakhically between taking necessary precautions, even if they hurt Walder economically and socially, and setting out to punish him. I established a halakhic standard that allowed such precautions even when guilt is not certain. 

The evidence that has emerged since makes his guilt certain for all practical human purposes. He committed suicide only following the emergence of that evidence, with the certainty that more would emerge. 

But the halakhic standard I set out was reactive to this specific case, and filled what seemed like a halakhic vacuum. It needs to be calibrated in advance as finely as possible – perfection is not humanly possible – to ensure that innocents are not driven to self-harm. 

That calibration must include the recognition that our community includes zealots who will inevitably go well beyond whatever we license, and zealots who will insist that only absolute proof justifies any action, regardless of the dangers of inaction. It was for that last group that I cited Niddah 61a’s striking claim that Gedalyah ben Achikam is held accountable as-if-he-had-killed-them for the murder of his followers by Yishmael ben Netinah, because he took no action despite being told of Yishmael’s plot. Gedalyah was not obligated to believe lashon hora about Yishmael, but למיחש מיהא בעי – he was obligated to take precautions as-if it were true. Those who misuse the laws of lashon hora to protect sexual predators may be held similarly accountable for future victims. 

Walder’s death doesn’t mean that we should revert to a standard of absolute proof in his case. There is no reason to protect Walder’s posthumous reputation at the expense of his victims and at the risk of encouraging the pretense that we have no other Walders in our midst. The evil that men do is often not interred with their bones. While Jewish tradition certainly contains support for “Acharei Mot Kedoshim Emor”, or de mortuis nihil nisi bonum, it also praises King Chizkiyah for dragging his evil father’s corpse through the streets to communicate complete repudiation of his ways. 

We must therefore reject any assertion that because courts don’t try the dead, we can “never really know” that Walder was guilty and therefore must give him the benefit of even miniscule doubt. Criminal trials are not the only way to gain certainty, and they are not always about truth (consider for example rules that exclude evidence not because it is false, but because it was illegally obtained). 

We must also acknowledge that the same arguments about certainty apply squarely to Shlomo Carlebach, regardless of what we individually believe that he did or didn’t do. Enough of the argument that there is no point in considering the accusations because he is dead.  

We must push for as complete and thorough an investigation of the Walder case as possible, focusing not only on Walder’s crimes but on how and by whom they were concealed for decades. WE MUST INSIST THAT THIS REPORT BE MADE PUBLIC. 

Without prejudging, we must apply the same standard of transparency to Yeshiva University, where we have much more influence. For example, in isolation, there may be ethically justifiable reasons for YU’s silence regarding the alleged rape by a present or former member of its basketball team. But it is unreasonable and wrong for YU to ask for trust-without-verification in these matters. For YU especially, but really at this time for any religious institution.

Despite all this, I think it is worth pondering on a systemic level how to evaluate the suicides of guilty accuseds.

Public discussion of this question has largely revolved around the way that suicide deprives victims of closure and the opportunity for revenge. A strong argument can be made that abusers’ obligations to repent and atone include making themselves available to their victims for those purposes. But that is not my concern here.

I also don’t think that the issue rests on providing adequate mental health services to accuseds. 

Rather, my concern is whether we are conveying a message that anyone guilty of such crimes is incapable of repenting and living a morally productive life; and if we are sending that message, whether we should be doing so. 

I am not discussing the factual question of how often current attempts at rehabilitation are effective. I concede that there are human beings who are incapable, barring a miracle, of experiencing genuine remorse for their crimes, let alone of repenting in a way that properly gives us confidence that they will not relapse. Honestly, this is true for most sins, and for just about all addictions – it’s just that the stakes here are so high for potential victims. 

But I think we have a generally acknowledged theological interest in minimizing the number of souls we write off completely. This is especially so if a significant percentage of sexual predators are born with powerful urges that have no acceptable or even legal outlet. We need something useful and fair to say to such people before they commit crimes, and I think afterward as well. Having nothing to say implies that we don’t see them as cast in the Divine mold.  We need to face that squarely, and if having faced it we still have nothing to say, we need to make absolutely sure that we aren’t casting our net too broadly. 

To sum up: 

1. Walder was guilty, and those who exposed his crimes are heroes. Nonetheless, the case reminds us that precautionary actions are often necessary before proof beyond a reasonable doubt is available. We therefore need to calibrate those actions so that they have minimal chance of driving the innocent to suicide.  

2. Many criminals attempt suicide after exposure, and we can’t know Walder’s motives for killing himself. We have no idea of what drove him sexually. But the case reminds us that our society does not see the rehabilitation of many kinds of sex-criminals as realistic, including young offenders whose sexual proclivities may not be a matter of choice. We need to address the practical, moral, and theological consequences of this position, and especially to make sure that the category is drawn as narrowly as possible.

I have one further reflection, which I plan beli neder to expand on in a subsequent essay. 

Chaim Walder succeeded in gaining the power-to-abuse within the Charedi community by selling something revolutionary – the right to emotional self-expression. This is not the only route to abuse. I doubt that the proper reaction is to throw the baby out with the bathwater, even if one discards his specific books. 

But Modern Orthodoxy should learn from this case that emotional exposure and vulnerability can make abuse much easier. We should be very concerned, for example, about giving anyone, including mental health providers and school counselors, access to children in physically private spaces with an expectation of total confidentiality. We must consider what protocols need to be created or strengthened as our educational and religious institutions increasingly seek to hire teachers and counselors who are charismatic, proactively empathetic and who encourage students and parishioners to “make themselves vulnerable” in the classroom and out.  A way of thinking about this might be: How can we have books much like Walder’s, without more Walders?   

Like the desire for money, the desire for intimacy is a fact of human society, and it must be regulated rather than extirpated. Eras of deregulation are often both necessary and highly susceptible to abuses. We live in an era of emotional deregulation. The Walder case should spur us to consider deeply how we can minimize the inevitable abuses.

Shabbat Shalom!

End of Year Appeal

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Dear Friend,
I hope this finds you healthy, joyful, and in loving company.
I’m writing this letter as I emerge from two weeks of COVID isolation. Like most of you, I’m living in the reality that the pandemic continues to make routine human interactions fraught. Halakhah has not yet succeeded in helping our community find a clear and compassionate way through what has become an extended crisis rather than a specific emergency. It’s been quite some time since we even had a serious conversation about how it might. CMTL will continue trying to catalyze and contribute to such conversations.

CMTL stands for what you believe in – Torah that is rigorous, humane, and fully engaged with the world. Please invest generously in our shared vision.

• I’m pleased to report that the application and first publicity for SBM 2022 went up last week. We’re look forward to a wonderful six-week program with in-person guest lecturers and full communal involvement. The topic is “It Makes a Village: Defining Techum Shabbat in the Modern World”.  We’ll address how halakhah properly responds to sociological change, such as the growth of suburban sprawl, and technological change, such as the capacity for precision satellite mapping, and other metahalakhic issues. We’ll have field trips to halakhically challenging sites and hear from leading poskim and scholars in relevant fields, including some of our spectacular alums. Please spread the word to potential Fellows among friends, family, students, and community!

• The Chaim Walder scandal broke several weeks ago. The statement I posted on Facebook, which was cited by JTA and circulated internationally, was beta-tested and improved by comments on the SBM alumni list, as were the two CMTL essays setting out halakhic perspectives on issues in the Kyle Rittenhouse case. All these are included in the 2021 CMTL End-of-Year Reader. (This week’s CMTL essay will beli neder review the Walder case in light of new evidence and Walder’s apparent suicide.) We held an alumni shiur on Sunday Dec. 19^th to beta test an article on surrogacy and eligibility to marry a kohen, which is planned as a dry run for a regular shiur beta-testing material for a planned book tentatively titled Halakhah: An Owner’s Manual. It’s a privilege to have such a friends and colleagues fulfilling a primary task of students: holding one’s teachers accountable for the quality and thoughtfulness of their Torah.

• We’re in the process of scheduling a pilot program for women with very advanced skills to learn urgent and relevant halakhic topics in Even HaEzer and Choshen Mishpat. Each session will involve 3-4 hours of preparation for a two hour shiur. The goals are to offer continuing halakhic education at a level not currently accessible, to work towards a Jewish future where learned women are more fully able to support female Beit Din litigants, and to ensure that learned women’s voices are heard in every area of halakhah. We’re very excited by the positive response to our first set of invitations, and look forward to developing future directions together with the participants.

• The Boston Agunah Task Force is planning a conference on the uses of “coercive control” arguments in get-denial cases. This continues our uncommon commonsense strategy of bringing dayyanim, attorneys, social workers, and advocates together to plan for new legal developments rather than risking damaging reactions when batei din are presented with faits accomplis.

• Our new podcast site https://www.podpage.com/taking-responsibility-for-torah/ is increasing the visibility of our ongoing Torah production. I thank Rabbi Avraham Kivelevitz and the Yeshiva of Newark for their ongoing dissemination of “Rav Moshe and the Art of Psak”, now up to 21 episodes, and the Young Israel of Sharon for hosting my weekly shiur on Halakhic Employer-Employee law. We’re trying to find viable ways of integrating ongoing alumni podcasts into our offerings as well, such as Rabbi Elli Fischer’s “Down the Rabbi Hole”.

• CMTL and our alumni continue to make important contributions to both individual and communal Jewish life. We are proud, for example, that the Drisha Institute’s middle-school, high school, and college learning programs are headed by SBM alums and feature SBM alums as teachers. We’re humbled that the JWB Chaplains Council recently distributed a statement and source collection I compiled on the topic of soldiers who give their lives to save comrades.

• The 2021 CMTL Reader is available here. Because alumni suggestion led us to include lots of supplementary material regarding both the Walder and Rittenhouse cases, very few of the weekly essays are included in the reader. We’re therefore offering a special incentive: Donations of $500 or above dated December 20-January 1 will receive a reorganized, printed, bound and autographed copy of this year’s essays. If you’d prefer an electronic copy, you can ask for that as well.

• We’re also happy to report that CMTL can now receive donations of stock via StockDonator.Com. Stocks will be sold immediately upon receipt.

I hope that you identify with and take pride in the Torah content that CMTL produces, and the way our work contributes to the growth of Torah scholarship, people, and communities.

Please help our work flourish and grow by giving generously.

With blessings and gratitude,

Rabbi Aryeh Klapper, Dean

CMTL End of Year Reader

WAS MOSES A (GOOD OR BAD) JEW WHEN HE KILLED THE EGYPTIAN?

Rabbi Aryeh Klapper, Dean

וַיִּ֤פֶן כֹּה֙ וָכֹ֔ה

וַיַּ֖רְא כִּ֣י אֵ֣ין אִ֑ישׁ

וַיַּךְ֙ אֶת־הַמִּצְרִ֔י

וַֽיִּטְמְנֵ֖הוּ בַּחֽוֹל

He turned to face this way and that way

He saw that no man was present

He smote the Mitzri

and he cached him in the sand.

(Shemot 2:12)

A Yossi Rosenstein painting shows a man in a plain white robe standing over a grave in which an Egyptian headdress is interred. The caption is

“ויך את המצרי – שבו” (מדרש)

“He smote the Mitzri – within.” (Midrash)

I have not found the midrash. But this painting has always struck me as a spectacular interpretation of the text. In the previous verse, Mosheh Rabbeinu reaches adolescence, and sets out to join a peer group:

וַיְהִ֣י׀ בַּיָּמִ֣ים הָהֵ֗ם

וַיִּגְדַּ֤ל מֹשֶׁה֙

וַיֵּצֵ֣א אֶל־אֶחָ֔יו

וַיַּ֖רְא בְּסִבְלֹתָ֑ם

 It happened in those days

Mosheh grew up

He went out toward his brothers

He saw into what they were enduring

At this point, we don’t know who Mosheh sees as his “brothers”. Rosenstein’s point is that Moshe does not know either. The relationship between enslaver and enslaved is always fraught and complicated, and Mosheh might have seen his Mitzri brothers as bearing the “white man’s burden” of civilizing the frighteningly fecund Ivrim.

וַיַּרְא֙

אִ֣ישׁ מִצְרִ֔י

מַכֶּ֥ה אִישׁ־עִבְרִ֖י

He saw

a man, a Mitzri,

striking a man, an Ivri

Here we have the first sign of confusion. Mosheh is capable of recognizing that both the Mitzri and the Ivri are human, and yet one is striking the other.  

מֵאֶחָֽיו.

from among his brothers.

Whose brothers? In a vision of universal humanity, any man striking another is attacking a brother, and any observer can identify with both attacker and attacked. This is true even for those with a clear moral verdict as to guilt and innocence. Generalizing the incident as a metonymy for the wrongful oppression of Ivrim by Mitzrim does not resolve the question of whether to identify as a guilty Mitzri or rather as a victimized Ivri, or rather to reject all particularisms as enabling oppression.

Mosheh Rabbeinu responds by identifying as an Ivri. That identification in fact explodes almost immediately into violence. But the Ivrim do not identify with Mosheh or with his violence.

Mosheh ends up fleeing to Midyan as “a man, a Mitzri”, and remains there until G-d sends him back with the assurance that “all the people who were seeking your life are dead”. The incident is never mentioned again.

Does that mean it was forgotten among the Jews? Chazal thought not. They name Datan and Aviram as the men who reject Mosheh the day after he kills the Mitzri, and place Datan and Aviram at the core of every subsequent challenge to Mosheh’s leadership, leading up to their involvement with Korach. Perhaps their point is that the incident irretrievably damages Mosheh’s moral stature among the Ivrim. Chazal also present Mosheh as killing the Egyptian by using the Divine Name, in other words by using religious power. Every subsequent Ivri death at the hands of G-d reopens the scar.

In the narrative arc of Mosheh’s life, this episode is what makes him responsive – however hesitantly – to G-d’s self-identification (3:6) as “the G-d of your fathers, the G-d of Avraham, the G-d of Yitzchak, and G-d of Yaakov”. The question is whether it necessarily had to end with a dead Mitzri, or whether the painting might have been the complete pshat, so that only a costume was interred. Note that Moshe does not bury the mitzri – the Hebrew word for burial is kevurah, but Mosheh is tomein the Mitzri – he conceals the body in the sand, or caches it. 

The only medieval commentator I find hinting along these lines is Rabbi Yosef Bekhor Shor, who writes:

וירא בסבלותם –

שהיו סובלים עול קשה.

ולא די בעול, אלא שאותו מצרי חובט ומכה אותו עברי

ויחם לבבו, כי נכמרו רחמיו אל אחיו

He saw into what they were enduring –

that they were enduring a difficult yoke,

and as if that yoke were not sufficient, that Mitzri was beating and striking that Ivri

so his heart became heated, because his mercy was aroused toward his brothers

“His heart became heated” is an allusion to the law of the blood-avenger in Devarim 19:6, and “his mercy was aroused toward his brothers” is an allusion to Breishis 43:30, where Yosef feels compelled to withdraw in order to cry. Moreover, by adding חובט/beating to מכה/striking, Bekhor Shor makes clear that Mosheh’s action was not needed to save the Ivri’s life, and Bekhor Shor’s commentary to Devarim 19:6 makes clear that the preferred-outcome is for the blood-avenger not to kill the accidental homicide. Bekhor Shor presents Mosheh as emotionally driven. Killing the mitzri is at best excusable.

Rabbi Samson Raphael Hirsch utterly rejects this vision of Mosheh.

“He turned his face this way and that” –

He looked in all directions,

so as to be certain that no man could see him, so that he would be able to boldly do the deed.

The proof that he would not have been bold had he found witnesses to his deed

is that in verse 14 he notes “Ah, the matter is known”.

This aspect of Moshe’s character is crucial.

Mosheh certainly had a profound sense of obligation

to hurry to the support of any human oppressed for no crookedness of his own

but he would have found alien that heated impetuosity that endangers life.

He was distant from that boldness that inflames and is contagious

which is required of someone who is destined to direct a great mass,

and to spur them on to a dangerous work,

to shatter the iron shackles off them, 

and to wrestle their way to freedom from the yoke of the powerful.

A person who first turns this way and that to see that there is no man –

would not consider even in a dream becoming the savior and leader of his nation.

He was utterly lacking the fundamental desire to be a historical hero.

Rav Hirsch presents Mosheh as anti-romantic and anti-charismatic. Mosheh would never act in the grip of emotion. Moreover, his response would have been the same regardless of who was oppressing whom.

I suspect that Rav Dovid Tzvi Hoffman’s commentary is a conscious, and astounding, response to Rav Hirsch.

He saw that there was no man –

This should be understood according to what our Sages say in the midrash

“He saw that there was no man – who would be zealous for G-d and kill him”.

If the intent of Scripture were that Mosheh looked about lest someone see the action he intended,

it should have written “he saw that there was no one seeing” . . .

 He smote the Egyptian –

It would be an injustice to evaluate this action from the perspective of ordinary, dry, legal process

and raise the question of whether Mosheh was authorized to punish the Egyptian

and to strike him fatally because he had oppressed a Jew

and certainly we need not say as did HaKetav veHakabbalah, on the basis of the Midrash,

that this Mitzri sought to oppress this Jew to the point of death,

and therefore “Moshe said: Certainly this one is liable for execution, per who strikes a human must die”.

Mosheh’s whole intention was to stand at the right hand of his oppressed brother.

because the temporary prevention of an act of oppression

would only spur this inhuman Mitzri to redouble his cruelty in the future.

Is there place to ask the opinion of law

in a place where all human rights are brazenly trampled underfoot?

Rabbi Hoffman’s model for Mosheh is not the blood-avenger but rather the zealot, and his zealot is praiseworthy. When Mosheh looks and sees that “there is no man”, that means two things: First, that the Mitzri is not human; and second, that no one else is acting as humans ought. Rosenstein has Mosheh seeing everyone present as human; Rabbi Hoffman has Mosheh seeing himself as the only human present.  

I think Bekhor Shor is correct that we should regret the pointless killing of this specific Mitzri, and I love Chazal’s insight that Mosheh’s leadership was diminished by the Jews’ memory of his loss of self-control. But as followers of an intensely legal religion, and devoted citizens of a state in which moral issues are often decided by legal authorities, we need also to keep the fundamental insight of Rabbi Hoffman’s revolutionary Mosheh in our consciousness, namely: law cannot establish justice – it can only institutionalize what is already recognized as justice.

Shabbat Shalom!

Affirmative Action

By Rabbi Aryeh Klapper

In a patriarchal society where primogeniture is the norm, first-borns and their younger brothers, and their sisters, grow up with very different expectations, and with very different things expected of them. These two-way expectations are enacted and enforced by the rank-and-file of that society. Most people go along with them even if they don’t fully agree, because after all, what can one person do? And then the time comes when they inescapably can make a difference.

It’s not the difference they dreamed of when they were younger. They can’t undo the past. They can’t change what each child thought would be their future, and the “children” are already adults. So even though it’s very clear to them that the societal norm is unjust and all children should share equally in their estate – and it’s clear that they have the power to dispose of their estate as they wish – it’s not at all clear what constitute fairness now. Dividing the property equally will have radically different emotional impact on the various heirs. It will not change their educations.

Halakhah is fully aware of this dynamic. The laws of private (but not public) tzedakah are focused on maintaining social dignity, and recognize that social dignity is a function of what you expect, and of what others expect from you. Thus the great Hillel gave tzedakah by serving as a formerly rich person’s footman, without demeaning himself. This was not primarily because of his inherent dignity – after all, the law allows a scholar to avoid certain obligations in order to maintain their public dignity – but because Hillel had been desperately poor for much of his life, and so his sense of self had no connection with economic class. Note that Hillel did not feel compelled to serve as footman for every family unable to afford servants, or for other footmen. Did Hillel thereby entrench the formerly rich man’s sense of entitlement? Probably. And yet for all we know he also supported policies aimed at permanently eliminating class distinctions in the next generation.

There’s a Hardy Boys novel in which their friend Chet is tasked with delivering a chocolate-frosted cake through heavy traffic on an unpleasantly hot day. Eventually, a combination of aroma and inactivity drives him to open the box. He sees that the frosting is slightly uneven in one place. Removing that extra and unsightly dab will only improve the cake, he thinks, and reaches out with his thumb. Oops! A little too deep. You can deduce how the story goes from there.

I wonder whether Yaakov Avinu is playing out a Chet-type problem with regard to Menasheh and Efraim. (See what I did there?) When he and Yosef go back and forth about the blessing – establishment, disestablishment, antidisestablishment – are they disagreeing about who deserves greater privilege, or about whether/how to compensate Efraim for having grown up expecting less? Note that Yaakov tries to avoid his father’s mistakes, at least as he perceived them, by giving a joint undifferentiated blessing to the boys, with only hand-placement different. But Yosef thinks even that takes too much frosting off Menasheh’s side of the cake. That of course could reinforce Efraim’s sense of unfair treatment, so now Yaakov has to make the compensation explicit. Maybe the cake finally evens out, or maybe Menasheh is an underappreciated an underimitated tzaddik for not developing a deadly grudge (backlash). (Note that Yosef’s attempt to undo his father’s positioning – ויתמך יד אביו – has a linguistic echo in the first battle against Amalek, when Yehoshua ben Nun the Efraimite first comes to prominence – ואהרן וחור תמכו בידיו.)

If I’m not imagining it, something of this tension – and of the difficulties caused by addressing it – should show up in the content of Yaakov’s blessing. Let’s start by noticing that 48:15 describes Yaakov as blessing Yosef rather than his sons – I take this as a homogenizing stratagem; Tzror HaMor reads is as an indication that the sons were not actually worthy of the blessing they received. Then Yaakov says:

The G-d Whom my ancestors walked before, Avraham and Yitzchak

The G-d Who shepherded me, so long as I have been until this very day

The Angel who redeemed me from all ill

He will bless the lads

and they will be identified with my name, and the name of my ancestors, Avraham and Yitzchak,

and they will be extremely fertile in the midst of the land.

הָֽאֱ-לֹהִ֡ים אֲשֶׁר֩ הִתְהַלְּכ֨וּ אֲבֹתַ֤י לְפָנָיו֙ אַבְרָהָ֣ם וְיִצְחָ֔ק

:הָֽאֱ-לֹהִים֙ הָרֹעֶ֣ה אֹתִ֔י מֵעוֹדִ֖י עַד־הַיּ֥וֹם הַזֶּֽה

הַמַּלְאָךְ֩ הַגֹּאֵ֨ל אֹתִ֜י מִכָּל־רָ֗ע

יְבָרֵךְ֘ אֶת־הַנְּעָרִים֒

וְיִקָּרֵ֤א בָהֶם֙ שְׁמִ֔י וְשֵׁ֥ם אֲבֹתַ֖י אַבְרָהָ֣ם וְיִצְחָ֑ק

:וְיִדְגּ֥וּ לָרֹ֖ב בְּקֶ֥רֶב הָאָֽרֶץ

Some rishonim read this as in halakhic prayer structure: one must praise the king before craving his boon. So the first two lines are praise/שבח, and the request/בקשה is that the angel bless the lads. (This raises the side problem of whether it is permitted to ask angels for a blessing. Rav Chaim Volozhin, and my wife, refuse to sing the Barkhuni stanza of Shalom Aleikhem for this reason.) My tendency is toward the position that reads the first three lines as in apposition, all referring to G-d, which admittedly requires some contortions in translation the word mal’akh. On that assumption, Yaakov’s blessing contains three components: first, that they should have a relationship with G-d; second, that this relationship should be within the context of the family legacy; and third, that they should succeed In transmitting this legacy to a flourishing community.

Many commentators note that Yaakov carefully distinguishes his relationship with G-d from that of Avraham and Yitzchak. They tend to ascribe this to modesty, but it can’t be entirely that, since he seems to retain the distinction in the actual blessing, which I suggest means that he sees independent value in the sort of relationship he had with G-d. We however are not required to accept his self-perception as objectively accurate.

The Targumim reflect two different understandings of what Yaakov is saying. According to Onkelos, Yaakov sees the blessings in his own life as an undeserved legacy from his father and grandfather:

Hashem before Whom my ancestors worshiped, Avraham and Yitzchak

Hashem Who gave me sustenance from when I came into being until this day

ְה’ דִּפְלַחוּ אֲבָהָתַי קֳדָמוֹהִי אַבְרָהָם וְיִצְחָק

.יה’ דְּזָן יָתִי מִדְּאִיתַנִי עַד יוֹמָא הָדֵין

The ancestors’ worship counts, but Yaakov himself received blessing long before he can exercise responsibility, and still sees himself as a dependent infant.

In sharp contrast, Targum Yerushalmi presents Yaakov as living his own religious life:

Hashem before Whom my ancestors walked in truth, Avraham and Yitzchak

Hashem Who led me from when I was a kid until this day.

ה’ די הלכו אבהתי קדמוי בקושטא אברהם ויצחק

.ה’ דדבר יתי מן טליותי עד יומא הדין

Here the difference is that Avraham and Yitzchak walked before G-d in truth, while Yaakov has been led by Him since he first became aware. Note that here is no apparent textual basis for the insertion of “בקושטא/in truth”. It must therefore be a consequence of התהלכו לפני/walking before G-d. The best explanation I have found for this is in Rav Hirsch:

‘;התהלך” נמצא רק בקשר שבין אדם לה”

–והוא מציין הנהגה עצמית

.כלומר, הליכה מרצונו שלו החפשי והמוסרי

The reflexive of “הלך” is found only with regard to a connection between human beings and Hashem,

and it marks self-direction –

meaning, walking of one’s own free and ethical will

Yaakov understood Avraham and Yitzchak as marking out a new path, in which their free choices corresponded with G-d’s Will, whereas he merely followed the path they laid out.

I suggest that Yaakov felt that the approaches of Yitzchak and Yaakov were not open to him. Avraham had no predecessor path to follow, and Yitzchak was the child of the Akeidah. Yaakov understood himself as the inheritor of a constraining privilege – he did not need to find G-d on his own, or to be convinced that G-d was ethical. That also left him without the same opportunity for self-expression in his relationship with G-d. Or at least he felt that way. But his blessing to Efraim and Menasheh – who had the until-then unique experience of growing up Jewish but fully immersed in a non-Jewish culture – was that they should be able to have both a sense of complete freedom and of carrying on a legacy.  (Perhaps Yaakov should have realized that he really grew up at Lavan’s. Even after yeshiva and kollel, you always grow up when you first really have a choice.)

Religious educators – in which category I include parents – should understand that growing up frum is religiously both a privilege and a constraint. Probably all privileges entail constraints. That doesn’t mean that we should avoid privileging our children (except where privilege is a zero-sum game, in which case the ethical issues require extensive discussion). But we need to be sensitive to how our students experience the balance of privilege and constraint, and, with caution and a recognition that there’s no perfect balance, do our best to adjust it, so that the next generation, and the next can grow up to be like Ephraim and Menasheh, and yet not exactly like either.

Shabbat Shalom!

On the Interpretation of Dreams

by Rabbi Aryeh Klapper

On his way to Lavan’s house, Yaakov dreams of angels ascending and descending (28:11-15). But after 14plus years in Lavan’s house, he dreams of sheep ascending each other (31:10-13). The second dream ends with G-d telling him “Get up and leave this land, and return to your birthland (מולדתך)”. On the one hand, the last sentence’s ironic reversal of G-d’s initial instruction to Avraham ((לך לך מארצך וממולדתך shows how far the family has progressed: Yaakov has a cultural backstop, a morally usable past. On the other hand, it appears to track Yaakov’s personal decline: Deborah often quotes Rabbi David Silber as saying that when your dreams shift from angels to copulating sheep, it’s time to “Get up and leave this land”.

Or maybe not such a decline. The question is whether we understand dreams as Divine interventions from without, or as the result of internal promptings. Yaakov’s dream-perspective pulls back from the sheep until he can see the projector and notice the angelic operator, who in turn identifies as the G-d of his previous dream (“I am the E-l of Beit E-l”; if we continue to think cinematically, perhaps the camera pulls back further, revealing that the angel is also a projection) and holds him to his previous commitments (“where you made an oath to Me”). Maybe there is no real difference here, and all that matters is, in Kotzker terms, that Yaakov retains the spiritual capacity to let G-d in.

Here is another way of looking at it: Yaakov’s dream-visions always include their own interpretation. He watches the DVD with the director’s commentary. By contrast, his son Yosef dreams in full naivete. Interpretation happens only after he wakes up. Even though he declares piously that “after all, Interpretations are G-d’s” (40:8). Yosef plainly understands interpretation as a conscious process. Otherwise, how could he be confident of his ability to interpret other people’s dreams?

Here we should note that while Yosef tells his dreams to his brothers and father, he emphatically does not ask what they mean; he knows, and they know that he thinks he knows. Yaakov’s outburst “Is it really so that I, and your mother, and your brothers, will come to prostrate ourselves before you?!” does not shake him. (He and his brothers understand that the moon is Leah. But the brothers also realize that the dreams are progressing. With apologies to lyricist Tim Rice, Joseph is a sheave, but he is not a star. The sun and moon and stars bow to him directly. That’s why that dream makes the brothers hate him more.) Even in prison, Yosef remains confident that he understands his own dreams.

Chazal depict the “baker” and “butler” as somewhere in between. They know what their dreams are about, but now what they mean. The result is that they lose all agency. The only decision they make that matters is to tell their dreams to Yosef (except that the “butler” realizes that the dream said nothing about showing gratitude to the interpreter, and decides to bide his time before mentioning Yosef in the royal court.)

Finally, we come to Pharaoh. Unlike his underlings, he retains the agency to reject interpretations he dislikes, whether or not they accord well with the “text” of his dream.

Why does Pharaoh need an outside interpreter, when Yosef does not? My tentative suggestion is that Yosef wants to make his dreams come true, while Pharaoh wants to prevent his dreams from coming true. Yosef is inspired and energized by his dreams; Pharaoh is terrified and depressed by his.

It should be clear that no one dreams about anything but what will happen to themselves. Pharaoh fully identifies himself with Egypt. Dreaming about national Egyptian bounties and famines is therefore about him. But he is a great man because he maintains that identification even in the face of disaster. What he wants is an interpretation that will save the nation rather than one that will enable him to avoid sharing its fate.  

Yosef realizes that what Pharaoh needs is not an interpretation but an attitude. Of course that’s what the dream means – but who says its inevitable? My dreams won’t happen unless I do something, and his dreams will happen unless he does something. Maybe it’s G-d’s will that my needs and his coincide.

So Yosef tells Pharaoh that G-d sent him this dream as a warning and spur to action. As with the “butler”, nothing in the dream means “You must appoint a man of discernment and wisdom and place him over Egypt”, let alone identifies Yosef as that man. But Pharaoh realizes, as Yosef certainly intended, that no one else in the court had even considered the possibility that something productive could be done.

Moreover, no one else had the guts to provide a self-refuting interpretation. It’s clear from the outset that if Yosef’s policy is correct, his prediction will not be. The “butler” had no need to show gratitude to Yosef, because his reappointment would have happened anyway; and Pharaoh will have no need to acknowledge that a famine would have happened otherwise. This is presumably the tack his successor takes in “not knowing Yosef”. (Also: Nothing about Pharaoh’s dream, or Yosef’s initial interpretation, says anything about using the potential famine to turn Egypt into an absolutist monarchy in which the state owns all the land. I wonder how this Pharaoh would have reacted had Yosef included that at the start.)

One reason all this interests me is that Yosef is often presented as the model successful Diaspora Jew. I have always pushed back hard against this on the ground that Yosef’s policy plainly leads us into centuries of slavery, which most plausibly is measure-for-measure retribution for his enslavement of the Egyptians to Pharaoh. Yosef makes the mistake of accepting the premise of Pharaoh’s dream, meaning the premise of even a genuinely great Pharaoh’s worldview, that his interests and Egypt’s are identical. (Deborah argues that Pharaoh’s treatment of the “butler” and “baker” suggest a more negative evaluation.)

Last week I happened to be reading the first volume of Bernard Baruch’s autobiography, and it immediately put me in mind of Yosef. Le tell you part of his story, and see whether it can serve the function of making us reread the story of Yosef and consider what it means for American Jews.

As you know, President Wilson desperately wanted to keep America out of World War I. Baruch was one of those who urged the necessity of preparing for war regardless. In 1915, in his first meeting with Wilson, he presented a plan for a commission, headed by one wise and understanding man and reporting only to the president, that would have complete authority over the production and pricing of all militarily necessary materials within the United States and its allies.

Wilson finally asked for a declaration of war on April 2, 1917, and by early 1918 became convinced that Baruch had been correct. At that point, even though Baruch had no administrative experience, Wilson told him “After G-d has shown you all this, there is no one as wise and understanding as you”, handed him the Presidential Seal, and appointed him to the job. Baruch thus went out to the land with unprecedented power. There were those who called him dictator – he had particular trouble with Henry Ford, who (as he tells it) refused to believe that there was not enough steel available to keep making both cars and tanks. I’m fictionalizing the details, but you get the idea that Baruch was Joseph. And you’ve probably guessed from his name that Baruch was Jewish.

There is much to discuss about the content of Baruch’s Jewish identity, and what/whether it might help us understand about American Jewishness. But my interest here is that he apparently never considered the possibility of extending the powers of the War Industrial Board into peacetime. He conceptualized wartime economics as an emergency exception because the small sample-size meant that the market could not be trusted to properly regulate supply and demand.

Perhaps that was because Wilson’s dream was peace, and Baruch himself had achieved great wealth as a young man and found it unsatisfying. (What drove Yosef’s life once his family had bowed to him?) I like to think that its not only that dreams don’t inevitably come true, but also that we are responsible for choosing our dreams, or at least which dreams matter to us. What is American Orthodoxy dreaming of?

Shabbat Shalom!

Rav Shlomo Zalman Auerbach and Kyle Rittenhouse

By Rabbi Aryeh Klapper

My essay last week on Halakhah and the Kyle Rittenhouse trial briefly and shallowly addressed a position of Rav Shlomo Zalman Auerbach z”l. Rabbi David Fried (SBM alum and a wonderfully truth-focused talmid chakham) properly challenged me to address it in more depth. I was and remain nervous about doing so, for reasons that will become clear. But I think Rabbi Fried is correct that it must be done. I hope that my attached analysis successfully illustrates a key point of last week’s essay: that it is irresponsible and hubristic to move directly from textual interpretation to practical application without the mediation of a live tradition of practice.

(Note: This essay also integrates challenges posed by Miriam Smirnov and other alums. A non-alum correspondent also pointed out that the previous essay incorrectly took it as given that Rittenhouse was not invited by a property owner to stand guard. Finally, alum Rabbi Elli Fischer recontextualized Rav Shlomo Zalman’s position here in light of a more general commitment to autonomy, and also pointed toward Rav Asher Weiss shlita’s response to Rav Shlomo Zalman’s position. I intend beli neder to include these in the 2021 CMTL Reader, which iyH will be sent out in a few weeks.)

The first paragraph of Minchat Shlomo 1:7: 2 (R. Shlomo Zalman Auerbach) ends with a section that according to a Headlines/NCSY sourcesheet “formulates the halachic principle of “stand your ground”:

But if A coerces B (via the threat of deadly force) in order to prevent B from a permitted act of eating –

it seems correct that even though B could abstain from this eating, and thereby save himself –

which presumptively takes precedence over saving himself by maiming A

(and halakhah forbids killing a “pursuer/rodef” to save oneself when maiming would be sufficient) –

nevertheless, in my humble opinion,

A (the pursuer) does not have the (halakhic) power (via the obligation to preserve one’s own life)

to compel B (the pursued) to act only as A wills,

and if A insists that he will kill B for that reason (= to make him submit) –

A is legally categorized as a “rodef/pursuer”, and it is permitted to kill A,

and we do not at all consider B “able to save himself by merely maiming the pursuer”

because he could save himself by nullifying his will in favor of the pursuer’s will.

(Note: The above applies equally to males and females on both sides of the equation. The same is true throughout this essay.)

This formulation plainly endorses a broad right to “stand your ground”. But R. Shlomo Zalman actually goes further. While his opening sentence concedes that that having the option of avoiding a FORBIDDEN act MIGHT be considered “able to save by maiming”, his argument is incompatible with that concession. All his evidence is drawn from a case in which the pursued is engaged in a forbidden act, namely: R. Yochanan’s ruling on Sanhedrin 82a that Zimri would not have been executed had he killed Pinchas.

To understand RSZ’s argument, we must review R. Yochanan’s ruling and its halakhic reception history.     

Said Rabbah bar Bar Channah said R. Yochanan:

If a zealot comes to ask (whether to kill) – we do not rule for him.

Not only that, but if Zimri withdrew and Pinchas then killed him – he is executed for killing him;

But if Zimri reversed and killed Pinchas – he is not executed for killing him,

because he (Pinchas) is a pursuer.

Each element of R. Yochanan’s statement reflects deep ambivalence about the rule that “kannaim pog’in bo” (=zealots may kill those who act like Zimri). A beit din mustn’t rule in advance that the zealot may kill; the zealotmaykill only in defined circumstances that can change in an instant, transforming a legitimate target into a person whom it is murder to kill; and the zealotand his intended victim are mutual aggressors with equal right to use lethal force against the other.

Rishonim wondered: to which other transgressors does R. Yochanan grant this right of self-defense? They assume that a capital criminal would not be exempted for killing a court-authorized executioner. So why were Zimri and Pinchas different? Perhaps because R. Yochanan’s ruling meant that Pinchas was not court-authorized); or perhaps because the zealot fulfills no mitzvah by killing. Regardless, the upshot is that non-capital criminals, for example thieves, may use deadly force against those who seek to stop them via deadly force.

In the 20^th century, an apparent contradiction was raised. R. Yonatan ben Shaul ruled that using deadly force against a pursuer is forbidden when merely maiming the pursuer would suffice (Sanhedrin 74a). It therefore seems obvious that using deadly force is forbidden when the pursued can be saved merely by refraining from a sinful action. If so, why wouldn’t Zimri be obligated to save himself by ceasing coitus, rather than by killing Pinchas?

 Many resolutions have been provided. Perhaps R. Yochanan meant only that Zimri would not be executed for killing Pinchas; or perhaps Zimri might reasonably believe that Pinchas would kill him anyway; or perhaps Zimri could not have ceased coitus in time; and so forth.

RSZ adopts an original approach. He contends that “Zimri reverses” means that Zimri disengages and THEN kills Pinchas, meaning that Zimri uses deadly force IN ORDER TO CONTINUE sinning. This proves that criminals are entitled to use deadly force not only to preserve their lives, but even to preserve their autonomy to commit crimes.

What if resisting increases your own risk of death? Tosafot hold that one may risk death to avoid prohibitions that are yaavor v’al yehareg, but this doesn’t extend to forbidden or neutral activities. In other words: Zimri should have been obligated to submit, rather than trying to kill Pinchas, because of the risk that he would fail. Why does R. Yochanan allow Zimri to resist?

RSZ responds as follows. Reactive self-defense usually increases the risk of being killed. But preemptive self-defense can increase the risk of killing without increasing the risk of being killed (or at least not to the extent that halakhah forbids assuming it). Therefore, Zimri did not have to wait for Pinchas to raise his spear. Once it was clear that Pinchas would kill him if he slept with Kazbi, then, knowing that he would resist, he was entitled to kill Pinchas preemptively.

The rule for Zimri applies to all criminals, certainly to all those not committing capital crimes.

Let’s apply this in practice. A intends to burn down an auto parts shop owned by X. A knows that X does not have the capacity to resist with deadly force, and therefore has no intention of killing X. However, A knows that B might choose to intervene with deadly force, as evidenced by B standing outside the auto parts shop holding a loaded rifle. A is therefore LEGALLY ENTITLED to kill B preemptively.  

Now you understand why I was nervous about presenting RSZ’s position. He essentially allows criminals to reverse the logic offered by Rava (Sanhedrin 72b) to explain the Biblical law of thefurtively trespassing thief: “The thief says to himself: I will go rob; and when I go rob, B will confront me with deadly force; and the Torah says: He who comes to kill you – arise and kill him first!”

Recall that RSZ begins by tentatively refusing to extend the argument to criminals, as opposed to people engaged in merely neutral activities:

It seems correct that if A prevents B from eating pig by threatening to kill B

that even though A is called a pursuer/rodef –

nonetheless, behold that B has a method of saving himself by ‘avoiding evil’ and not eating pig

and if so – POSSIBLY B is therefore considered like one able to save himself by maiming A,

in that B could refrain from committing the transgression.

I suggest that RSZ begins with this qualification precisely because he recognized the dangerous implications of his argument.

But RSZ’s argument is not purely theoretical. He believes that defending sinful autonomy against unauthorized force is a moral good, perhaps parallel to the Talmudic principle shelo yehei chotei niskar, meaning that we don’t allow people to gain halakhic advantages from halakhically forbidden actions. He also (parenthetically) makes a pragmatic argument for his position:

[Possibly, in order that thieves and thugs not multiply

just as a community may put itself at risk in an optional war

so too individuals may protect their property even by putting their lives at risk

especially since that is the way of the world

so possibly this is similar to Chazal’s statement in several places about risk that

“Nowadays Hashem is the guardian of the simple-minded”.

This requires investigation.]

This is roughly consonant with secular arguments for “stand your ground” laws.

The question is whether RSZ’s argument be “tamed” so that his commitment to autonomy does not lead inevitably to a Hobbesian “war of all against all”, and so that he does not allow criminals to preemptively kill those who would interfere with them.

This kind of “taming” is the purpose of a practical tradition. In actual cases, for example, we might

1. Find grounds for RSZ’s tentative limitation of autonomy to legal acts
2. Limit autonomy to actions that don’t harm anyone else (although it seems to me that RSZ clearly rejects this distinction)
3. distinguish between one-time threats and ongoing efforts to limit autonomy; and/or
4. consider the availability of judicial or police action as “able to save himself by maiming A”; and/or
5. require an extremely high degree of certainty before acting preemptively, including but not limited to a specific threatening action, or a prior history of using legal force; and/or
6. (following Yad Ramah) rule that whoever first introduces lethal force to a situation is responsible for any resulting death;
7. and/or rule that an attempt by A to grab B’s weapon is presumptively an attempt to prevent the use of lethal force rather than attempt to use it;
8. and/or require special training to allow the use of lethal force in any circumstance
9. and/or require advance consultation with a beit din before using lethal force preemptively in any circumstances

and so on and so forth.

RSZ himself explicitly forbids third parties to intervene preemptively in any case other than the furtive thief, on the grounds that without the specific presumption mentioned by Rava, third parties cannot be confident that B will resist A’s threat, and therefore A is not legally a pursuer. He cites no evidence for this limitation; perhaps he introduces it because, as in his (tentative) opening exclusion of criminal actors, he wants to emphasize that his theoretical arguments cannot be applied directly to practice. This is a lesson we need to take deeply to heart.

Shabbat shalom!