Can You Help Me Resolve This Controverse-y?

by Rabbi Aryeh Klapper

The ambiguities of inflammable pajamas and pitted dates pose dangers to life and tooth, and it’s incredibly frustrating when a question one has mooted is declared moot. That’s why it’s not clear whether the use of contronyms, words that mean themselves and their opposites, should be sanctioned or rather sanctioned.

Let us peruse this selection from Alei Tamar, the monumental 20^th century Yerushalmi commentary by Rabbi Yissachar Tamar.

The verb H-G-H has two meanings in Tanakh and Talmud:

a. Superficial and simple speech

b. Intellectual analysis

See in the dictionaries of Scripture under “h-g-h”, and in The Complete Arukh under “h-g”

So, too, the noun “higayon” has these two meanings

a. Shallow and simplistic speech, as here and on Berakhot 28

b. Intellectual analysis, as in “higayon” in Tehillim 9 and 19

והנה הפעל “הגה” יש לו בתנ”ך ובתלמוד שתי הוראות:

א) הדבור השטחי והפשוט

ב) החקירה העיונית,

ראה במילוני המקרא ערך “הגה”, ובעה”ש ערך “הג”,

וכן השם “הגיון” יש לו שתי הוראות אלו,

א) הדיבור השטחי והפשוט, כמו כאן ובברכות כ”ח,

ב) החקירה העיונית, כמו “הגיון” בתהלים ט ופי”ט . . .

According to grammarly.com, the verb “peruse” can mean either “to skim or read without attention to detail”, or else “to read or examine in detail”. “Perusal” therefore seems a perfect translation of “higayon”. The question is whether Rabbi Tamar is correctly assigning meanings to contexts.

“Here” for Rabbi Tamar is Yerushalmi Sanhedrin 10:1. The relevant Mishnah reads as follows:

All Israel – they have a portion in the World to Come,

as Tanakh says:

and your people, all of them righteous, when the World comes will inherit land …

But these don’t have a portion in the World to Come:

One who says

“There is no (source for the) resurrection of the dead in the Torah”, or “The Torah is not from Heaven”, and the epikoros;

Rabbi Akiva says:

Also one who reads in The External Books.

And one who whispers over a wound, saying

“Every ailment that I placed on Egypt – I will not place on you, because I am Hashem your healer”;

Abba Shaul says:

Also one who is hogeh the Name by its letters.

כל ישראל יש להם חלק לעולם הבא

שנאמר 

ועמך כולם צדיקים לעולם יירשו ארץ. . .

ואלו שאין להם חלק לעולם הבא:

האומר ‘אין תחיית המתים מן התורה’, ו’אין תורה מן השמים’,

ואפיקורס;

רבי עקיבא אומר:

אף הקורא בספרים החיצונים;

והלוחש על המכה ואומר כל המחלה אשר שמתי במצרים לא אשים עליך כי אני ה’ רפאך

אבא שאול אומר:

אף ההוגה את השם באותיותיו.

Abba Shaul forbids pronouncing the Name. His use of h-g-h therefore does not quite match any meaning of “peruse”, or of higayon as explained by Rabbi Tamar.

However, Rabbi Tamar is not commenting on the Mishnah, rather on the Yerushalmi (which is most likely citing a beraita):

Rabbi Akiva said:

Also one who reads in The External Books

such as the books of Ben Sira and the books of Ben La’anah,

but the books of Hamiram,

and all books written from then on –

one who reads them is like one who reads a letter.

What is the reason?

“and more than those, my son, be careful . . . [making books without end,

and much lahag exhaustion of flesh]” –

for higayon – they were given;

for exhaustion – they were not given.

רבי עקיבה אומר

אף הקורא בספרים החיצונים –

כגון ספרי בן סירא וסיפרי בן לענה,

אבל סיפרי המירם,

וכל ספרים שנכתבו מיכן והילך –

הקורא בהן כקורא באיגרת.

מאי טעמא?

ויותר מהמה בני היזהר )וגו’( [עשות ספרים הרבה אין קץ

ולהג הרבה יגיעת בשר] –

להגיון – ניתנו;

ליגיעה – לא ניתנו.

Rabbi Tamar comments

Here too, its interpretation is

that as opposed to Sacred Scripture, these are given “for higayon”

meaning for the simple reading, in accordance with its form

without deep analysis requiring exhaustion of flesh,

and (without) giving them additional interpretations

ואף כאן ביאורו

שבנגוד לכתבי הקודש, ניתנו הם “להגיון”,

ר”ל הקריאה הפשוטה כצורתה,

מבלי להעמיק חקור ביגיעת בשר

ולתת להם ביאורים נוספים.

Astonishingly, even though the verse (Kohelet 12:12) speaks of lahag and yegiah, and the Yerushalmi contrasts yegiah/exhaustion with higayon, Rabbi Tamar does not connect lahag with higayon. Rather, he treats higayon as introduced by the Yerushalmi solely because it seems the appropriate antonym for yegiah.

Rabbi Tamar cites Berakhot 28b as the other context where higayon unquestionably refers to shallow reading.

A beraita:

When Rabbi Eliezer fell (mortally) ill, his students entered to visit him.

They said to him:

Our master, teach us the paths of life

so that we may merit thereby the life of the World to Come.

He said to them:

Be cautious regarding the dignity of your fellows;

and prevent your children from higayon

and place (your children) between the knees of scholars;

and when you are praying – know before Whom you are standing;

for that you will merit the life of the World to Come.

תנו רבנן:

כשחלה רבי אליעזר, נכנסו תלמידיו לבקרו.

אמרו לו:

רבינו, למדנו אורחות חיים

ונזכה בהן לחיי העולם הבא.

אמר להם:

הזהרו בכבוד חבריכם,

ומנעו בניכם מן ההגיון,

והושיבום בין ברכי תלמידי חכמים,

וכשאתם מתפללים – דעו לפני מי אתם עומדים,

ובשביל כך תזכו לחיי העולם הבא.

This passage contains few if any contextual clues to the meaning of higayon. Rashi famously comments that it refers to study of Scripture, and many others have understood it as referring to philosophy or formal logic (although Rabbi Tamar plausibly claims that this meaning of higayon is post-Talmudic). Rabbi Tamar’s claim that it refers to simple or simplistic reading is based on the assumption that such reading should be discouraged and complex reading encouraged.

Even that assumption is not enough to justify his reading. Many commentators who understand higayon here as referring to complex reading limit the restriction to “your children”, meaning that it addresses curricular order rather than final educational goals. They encourage simple reading of Torah for children (or adults) who cannot yet handle complexity.

Rabbi Tamar’s translation of higayon in Yerushalmi Sanhedrin must therefore stand on its own. How does he read the Yerushalmi overall, and what other assumptions is his reading based on?

The Yerushalmi draws a contrast between books which must not be read, on penalty of losing the World to Come, and books which are “like reading a letter”, which presumably means that reading them is permitted. It seeks to root this distinction in Kohelet 12:12, which concludes with the phrase yegiat basar = exhaustion of flesh. Based on this verse, it contends that X category of books is “given for higayon” but not “given for yegiah”. Is it the category that must not be read, or rather the category that may be read because it is like reading a letter?

One might hope that reading the verse as a whole would be helpful. But the first part of Kohelet 12:12 is also ambiguous. The opening phrases are commonly translated “But more than those, my son, be careful OF making books without end”. But Rabbi Tamar notes that the Targum to that verse reads as follows:

ויתר מהון בני הזדהר למעבד ספרי חוכמתא עד לית סוף

But more than those, my son, be careful TO make books OF WISDOM without end

The Targum’s reading is adopted among others by Abravanel and Netziv in their introductory apologia for publishing books.

I am also not certain how the Targum reads the end of the verse, or whether it is compatible with the Yerushalmi. The Targum translates

ולמעסק בפתגמי אורייתא

ולאסתכלא בליאות בשרא

and to engage with the words of Torah

and to become wise with exhaustion of flesh.

This plainly connects להג to higayon, and understands higayon as intense engagement. Moreover, it does not seem to leave any room for a substantive contrast between yegiah and higayon, and therefore seems incompatible with the Yerushalmi’s reading.

So I do not understand how the Yerushalmi roots its categories in the verse; or how Rabbi Tamar thought it did. I don’t even understand whether the Yerushalmi understands the verse to be opposing books or celebrating them, since it (perhaps like higayon)can legitimately be cited both ways. I would very much appreciate your ideas for resolving this controverse-y.

(Only) Gerim and Toshavim

by Rabbi Aryeh Klapper

Practical halakhic real estate law is mostly found in Mishnah and Talmud Tractate Bava Batra. Two major topics addressed there are inheritance and chezkat shalosh shanim = proof of ownership via three years of unchallenged use. These discussions assume that individual human beings can own land and alienate their ownership of land in ways roughly similar to their ownership of movable property.

Vayikra 25:23 offers a different perspective.

But the land must not be sold in perpetuity

because the land is Mine

because you are (only) gerim and toshavim with Me.

וְהָאָ֗רֶץ לֹ֤א תִמָּכֵר֙ לִצְמִתֻ֔ת

כִּי־לִ֖י הָאָ֑רֶץ

כִּֽי־גֵרִ֧ים וְתוֹשָׁבִ֛ים אַתֶּ֖ם עִמָּדִֽי:

Ger and toshav are legal terms of art which may have no direct translation. But they are contrasted elsewhere with ezrach, which may roughly be translated as “landed citizen”. The point is that human beings reside on the land only because G-d suffers us to do so, not because we have rights. The ironic result is that tribal and familial ownership of land in Israel is permanent. “Sales” are actually rentals lasting at most until the Jubilee year, when all power and authority over land returns to its hereditary owners arising out an original apportionment.

Halakhic real estate law arising from this perspective can be found in the last chapter of Mishnah and Talmud Tractate Arakhin.

What sort of law is this? No one in the Talmud suggests that it “never was and never will be” and was intended exclusively for study. But the Talmud also has no memory of it having been applied in the post-Biblical era, and only the most tenuous evidence of it having been applied ever. The Talmudic conversation never strays far from midrash halakhah, the derivation of law by directly interpreting the Bible.

This is different from other laws not practiced in the Talmudic era. For example, the laws of the Temple ritual are regularly informed and influenced by transmitted memories of how things were done in the Second Temple. But these laws seem not to have been applied in the Second Temple period. That might have been because the I am also unaware of any attempt to create rabbinic-law facsimiles or memorials to these laws, or to use them as moral policy touchstones, even in the Land of Israel.

Vayikra 25 is also not framed as pure abstraction, or as pure transformation of values into law. The “land” cannot be sold in perpetuity, but houses in walled cities can be! But such houses are also not sold under the same terms as movables: the seller has the right to reverse the transaction within twelve months. Regarding that detail, the Mishnah suddenly doffs its hat and produces a rabbit:

Originally

(the buyer) would hide on the day the twelve months expired,

so that the property would become absolutely his

Hillel (the Elder) enacted that (the seller) deposit his moneys in an office,

and then break down the door (of the house) and enter;

whenever that (seller) wants –

let him come take his money

בראשונה

היה נטמן יום שנים עשר חודש,

כדי שיהא חלוט לו.

התקין הלל – שיהא חולש מעותיו ללשכה,

ויהא שובר את הדלת ונכנס;

אימתי שירצה הלז –

יבא ויטול את מעותיו.

Tosafot Arakhin 31b (cf. Sefer HaYashar Chiddushim 123 and Sefer Yereim 164) argues for taking this report at face value.

Here it implies that in the days of Hillel, who was during the Second Temple . . .

they practiced the Jubilee,

since (the Laws of) Houses in Walled Cities was practiced

as we say on 29a

that (the Laws of) Houses in Walled Cities are practiced only when the Jubilee is practiced . . .

הכא משמע דבימי הלל, שהיה בבית שני . . .

היו נוהגין יובל,

כיון דבתי ערי חומה היה נוהג,

כדאמר בפירקין דלעיל (כט.)

דאין בתי ערי חומה אלא בזמן שהיובל נוהג . . .

According to Tosafot, the laws of the Jubilee were in Biblical force (or at least Hillel thought they were in force) during the Second Temple, meaning that all the laws of Vayikra 24 were in force, including those of real estate and of slavery.

An alternate possibility is that a rabbinic-law facsimile of the Laws of Walled Cities was in force. Talmud Gittin 36a makes a parallel suggestion to explain why Hillel needed to make the pruzbul decree to avoid having loans vacated by the Sabbatical Year.

This was true only of the Law of Walled Cities, not of the law regarding land sales. This may have been for the practical reason that it was impossible to confidently identify the genuine owners-by-descent from the original apportionment-by-lottery, and the Rabbis did not want to create competing perpetual deeds. But such issues can generally be finessed. So more likely the rabbis had no interest in imitating the Torah’s system. Why not?

Here is a possibly radical suggestion. The Rabbis were unwilling to implement a system in Israel that would justify discrimination against Jews in the Diaspora.

We noted above that the Jubilee land law seems to be a highly ironic outcome of its ideology. Because G-d owns the land, and human beings live on it only as gerim and toshavim, only by His sufferance, the land becomes so attached to its human owners – so entailed – that it can never be alienated from them. Or another way of putting it: because we are not landed citizens, no one else gets to own land in our Land.

The Jubilee land law has potentially significant moral and practical advantages. For example, it could prevent multigenerational poverty and generally limit economic inequality, and those effects could in turn reduce the risk of political instability. It might also encourage greater environmental responsibility.

However, it seems evident to me that these advantages manifest only when the Jubilee system controls the vast majority of real estate in its political jurisdiction. That’s why the Jubilee laws apply only when all the tribes, the primary unit of apportionment, are represented and identifiable among the Jewish population in Israel.

These advantages also manifest only among the landed citizenry. As the Torah itself often points out, the Levi and the ger are excluded (although the situation regarding converts will be resolved when the Land is next reapportioned; see Chapter 8 of Divine Will and Human Experience).    

Moreover, if our Jubilee system is intended as a moral model for the world, it follows that other societies should also establish systems by which all land is owned inalienably by hereditary citizens, to the exclusion of the ger and toshav. It also follows that people would not be allowed to double-dip by holding multiple citizenships. That would not be good for the Jews so long as we remain a primarily Diasporan community. That may be why the Biblical Jubilee laws apply only when (roughly) most Jews live in Israel, and I suggest it is a reason that the Rabbis did not enact their own version, assuming they had the authority and the capacity to implement it.

But I don’t want to frame that decision as purely or even primarily self-interested. It is also a matter of justice – one may not treat gerim and toshavim less well than one would demand to be treated as a ger or toshav.  (See Ohr HaChayyim to Genesis 23:4 and my If Sarah our Foremother Had Died in Pittsburgh).

One might suggest that with a somewhat autonomous Jewish community established in Judea, Chazal should not have been concerned per se about the economic or political circumstances of Diasporan Jewry (as opposed to being concerned in terms of Diasporan economic and political support for the Judean community). One might even argue that the clearer it is that Jews are outsiders in the Diaspora, the more they will come on aliyah, and so implementing a rabbinic Jubilee would lead to implementing a Biblical Jubilee! And yet Chazal chose otherwise.

Maybe they thought that in a non-Messianic era, the Jewish yishuv in Israel has the great merit of performing a specific mitzvah or mitzvot that can’t ordinarily be performed elsewhere, but that other communities have other merits worth preserving. And/or maybe there were simply too many nonJews in Israel to make it morally or practically plausible that private charity could balance a fundamental structural disadvantage.

Shabbat shalom!

Halakhah, Transparency, and Justice: Thoughts about Kohanim and Converts

by Rabbi Aryeh Klapper

Sunlight, like all disinfectants, kills healthful bacteria and pathogens alike. When the administration of law is fully exposed, mercy often becomes impossible. Such exposure is generally essential to contain the ever-present infectious disease of corruption. But we must acknowledge that it has costs.

Law by its nature is about the application of abstract rules to specific circumstances. The abstractions can be qualified, nuanced, and so forth, but in the end, what a law does is to treat cases with different characteristics as if they were exactly the same. (Sometimes a law allows authorities to use discretion. From the law’s perspective, that means treating each case the same, namely as subject to discretion. But unbounded discretion is really the absence of law, even if it is enshrined in law.)

A key benefit of law is predictability. A clear law allows people to accurately anticipate how the legally constituted authorities will react to the actions they are considering. Laws that are ambiguous, or that leave room for discretion, are less predictable. They lead to injustice because people suffer consequences for their decisions that they could not have anticipated.

This is easy to see in areas such as contract law, where justice between the parties is often properly defined as giving them the outcome they expected. (Not always – some contracts are inherently unjust.) But the broader truth is that when we commit to a system of laws, we order our lives around it, and we have a right to expect it to be applied fairly and predictably.

Halakhah is a system of laws. So to some extent, people who live within halakhah are treated justly when they receive the rulings they expect, and unjustly when they don’t.

What if people receive rulings that are more lenient than they expected?

In zero-sum financial cases, it’s easy to see that this is unjust to the losing party. We don’t say that one party received an excess of justice that balances out the other party’s shortfall. That’s one reason that the Torah explicitly forbids favoring the poor over the rich in a lawsuit, even if one’s overall economic morality is strongly redistributionist.

What about ritual law? For example, let’s imagine that a person reasonably expects (based on public expositions of legal precedent) to be told that her just-slaughtered chicken is treif, or that the smudge on her bedikah cloth makes her niddah, or that use of a device is prohibited on Shabbat, and instead is told that the chicken is kosher, that she may consider herself tehorah, or that the device may be used. These decisions are rooted in a posek’s understanding of how a strict ruling would negatively affect the questioner. Unexpected leniency therefore seems a clear win for the person receiving the ruling, and there seems no reason to worry about injustice.

That’s likely true for the first such ruling. However, a person who is regularly surprised by lenient rulings. will gradually lose confidence in their own understanding of the law. They will perceive the law as inscrutable rather than as predictable. As a result, they will find it hard to order their lives around observing the law.

If lenient surprises happen regularly enough, the person’s expectations will change. And unless we include a ban against sharing the rulings received – which would not be consistent with “sunlight” – other people’s expectations will change as well. If those other people then do not receive the same lenient rulings, they will – correctly – regard this as injustice. This is true even if there are relevant differences between the people involved, so long as the legal significance of those differences is not transparent to the parties involved.

Why not just be transparent? A radical possibility is that laws can tolerate discretionary exceptions only so long as they don’t interfere with the perception of predictability.

For example: some laws are intended to create social deterrents, and to that end they apply harsh punishments. Many cases will have mitigating circumstances that individually justify acquittals to avoid overpunishing. But if too many guilty people are acquitted, deterrence will wither.

The upshot is that the ability to rule mercifully often depends davka on mercy not being predictable, on it being perceived as going beyond the requirements of justice. Predictable mercy is actually a claim that the law is unjust.

These reflections arose as I considered writing about specific aspects of halakhah’s treatment of romantic relationships between kohanim and converts. Specifically, I wondered whether certain paths for ruling leniently in such cases get blocked off as they become more known, and if yes, whether that constitutes an injustice.

Some basic background is necessary.

Vayikra 21:7 forbids kohanim from marrying a zonah. In some contexts in Tanakh, the term zonah clearly means prostitute; in other contexts, such as the descriptions of Rachav of Jericho and the mother of Yiftach, at least some commentators understand it differently. The position of the Sages is that here it refers only to a convert, a freed maidservant, and a Jewish woman who has had sex with a man whom she may not marry, such as a non-Jew.

Some rishonim seem to understand the prohibition against kohanim marrying converts as based simply on their having once been nonJewish. This principle may be constructed as Biblical or as Rabbinic. Others understand the prohibition as based on a presumption that converts had sex with nonJews at some time prior to converting. This assumption may be constructed as rebuttable or as irrebuttable. Yet a third position understands the prohibition as grounded in Yechezkel 42:22, which they understand as obligating kohanim to marry only women who are בתולת מזרע בית ישראל = virgins of the seed of the House of Israel. As ordinary kohanim may marry non-virgins, this verse requires extensive interpretation.

How should poskim react when a kohen and a convert seek to marry?

One approach is to discourage them as strongly as possible. In the YU world, this is often accompanied by anecdotes about such marriages failing, and/or about happy marriages that ensued after such relationships broke up. These anecdotes comport with my limited experiences, and have what seems to me a reasonable psychological rationale; for people who care deeply about halakhah and/or their status as kohanim, the relationship carries a burden of guilt or spiritual anxiety that can be dispelled only by an unequivocal halakhic endorsement, whereas here the endgame is generally a grudging halakhic permission.

A second approach is to search strenuously for grounds for permission. One makes no promises in advance, but at the same time makes at most pro forma attempts to persuade the couple to break up.

Given the rationale I offered above for the first approach, the second approach is most useful for couples who are not deciding whether to marry, but rather only whether to marry in an Orthodox halakhic ceremony. However, I’m not sure whether this outcome comports with justice. Is it fair that people with greater prior commitment are less likely to receive a lenient ruling allowing them to marry, even if this can be justified from a utilitarian perspective?

Several other factors play halakhic roles that seem to me legitimate and yet in tension with justice.

One is that poskim are made uncomfortable, and may suffer reputationally, if they are perceived as being too prone to leniency. But their first leniency inevitably attracts questions from people who see their cases as similar, and if they are, the process will inevitably become more streamlined over time. Poskim may pull back or refuse to take questions if they perceive this happening. But is it justice for the availability of a legal outcome to depend on one’s place in the queue? What if poskim decide that they’ll only address cases brought to them by close students?

The last question raises the broader question of access to halakhic resources. My work on cases of iggun has taught me how vital it can be to have an advocate within the halakhic system doing the necessary halakhic research and pushing for action. People whose local rabbi takes approach #1 may never have their cases presented seriously to poskim who take approach #2, even if that approach would work well for them.

In the United States, issues of kehunah and conversion for many years were greatly affected by two leniencies of Rav Moshe Feinstein. The first was that attestations of kehunah are reliable only via an unbroken chain of Shomrei Shabbat. The second was that in some situations one could rely on the position of Rabbi Shimon bar Yochai, who allowed kohanim to marry women who converted before the age of three.

The first leniency was broadly known and relied on; the second often required access to a student of Rav Mosheh. The second position often came up in an era when adopted children were not told of their status. It comes up now in cases of surrogacy.

Another “modern” case involves women who grow up in non-Orthodox communities and discover late in the dating process that their mother’s conversion is halakhically challengeable, and convert themselves as adults.

One ground for permitting the marriage in such cases is an extension of Rabbi Shimon bar Yochai’s rationale. One understanding of Rabbi Shimon is that there can be no presumption of sex-with-a-man-one-could-not-marry with regard to a woman younger than three years old. Perhaps that presumption is also vacated for women who plausibly identified as Jewish before turning three, even if their identification was mistaken. This extension draws support from Ritva to Ketubot 11a. Ritva posits that infant females captured in the war against the Midianites were raised Jewish and converted as adults, and yet were eligible to marry kohanim. (See also RaSHaSH ad loc.) 

By reading this essay to its end, you joined the favored few who know of this Ritva and its possible halakhic implication. Would sharing his position widely increase the likelihood that couples in this situation will find poskim willing to be lenient? Or is it best to keep the source and argument under wraps, and use it privately if an appropriate case comes to you or me?