Category Archives: Jewish identity

Sinai and Orthodox Authority

by Rabbi Aryeh Klapper

At Columbia University this past Monday night, I was privileged and honored to share my thoughts on the topic “Can One be Halakhic Without being Orthodox?” with a large, patient, tolerant, and talented group of young people, including many alumni of CMTL’s Summer Beit Midrash and Winter Beit Midrash, and of Gann Academy. My fear is that they got less out of the experience than I did, as the thought I had to share turned out to be far less developed and coherent than I had hoped and because the topic turned out to require much more extended treatment. So it seems worthwhile to honor their generosity and their challenging engagement by trying again here—in a somewhat different and more limited fashion—in the expectation that I will do so again in a longer format at some soon point, having benefited again from your responses and critiques. The audio of the lecture will be posted early next week.

The Jewish people are a political community bound by religious law. I contend that this proposition emerges from the Aseret HaDibrot and indeed all of Torah and is a fundamental necessary assumption of any halakhic Judaism.

By ‘political’ I mean that we take collective responsibility for the distribution and exercise of power in our community.

By ‘religious’ I mean that we see Jewish law as deriving its authority from G-d’s will.

A community can be bound by religious law, but not be political, if it sees obedience to that law by members of that community as solely a matter of personal choice. The easiest way to accomplish this reasonably is to restrict religious law to ritual and allow a parallel, nonreligious system to take responsibility for issues such as the distribution of material goods (economic policy, Choshen Mishpat), the regulation of information (libel and slander laws, lashon hora), criminal justice (dinei nefashot), and even of membership in the community (immigration policy, gerus).

I contend that an authentically halakhic Judaism has a principled opposition to such restriction.

But, I need to qualify that statement immediately by saying that an authentic halakhic Judaism may accept or even advocate for such restriction in particular circumstances, on practical or moral grounds. For example, when the Jewish community is practically unable to use physical force against its members, criminal law needs to be handled by other agencies for practical reasons. When many segments of the Jewish community fundamentally reject the authority of halakhah, coercing obedience to it is both practically counterproductive and morally offensive.

A community is political, but not bound by religious law, if it grounds the legitimacy of power on a basis other than Divine Will. But, I need to qualify that statement immediately by saying that it need not ground the legitimacy of power exclusively on the basis of Divine Will, nor on the basis of direct Divine Will.

In fact, I contend that halakhic Judaism always rejected both. Halakhic Judaism has always held that the legitimacy of power requires heteronomous and autonomous grounds. The simplest basis for this claim is that the Torah became binding when we accepted it, not when G-d gave it.

Furthermore, many features of halakhah are specifically and explicitly intended to distance direct Divine Will from power. The clearest illustration of this is Rabbi Yehoshua’s use of the Biblical clause לא בשמים היא, “It is not in Heaven” in the Oven of Akhnai story. The point of this story is not to celebrate autonomy but rather to legitimate the use of coercive authority by some human beings against others, specifically against others who claim the right to act on the basis of their own experience of Divine Will.

Halakhic Judaism therefore, like many contemporary systems of government, is an intricate dance that revolves around the dynamic interaction of autonomy and authority. That dance must be enacted differently in different contexts. Contemporary Orthodox versions incorporate the reality that formal halakhic authority is greatly diminished, in three interconnected ways:

First, the halakhic community has little-to-no access to any means of power other than social suasion. (This is true even in the State of Israel for the overwhelming majority of halakhic issues.)

Second, there is almost no formal framework for granting halakhic authority within the community, especially outside Israel. Even those who believe that titles matter need not hold that having met the minimal standards for semikhah confers more than minimal authority.

Third, many of the mechanisms within halakhah for granting authority have been sidelined. Midrash Halakhah is not used to generate law; legislation is binding at most on narrow local communities; mechanisms for seizing property or annulling marriages are used only in directly precedented cases; there is no mechanism for taking a binding vote on issues of controversy.

If we stay with the dance metaphor, the weakening of one partner does not properly lead to the other asserting more and more dominance. Rather, as in all relationships, one proper response to weakness is to make greater efforts at self-restraint, to ensure that one’s partner is still given the fullest possible capacity for self-expression and influence in your shared being.

So one can argue that the proper response to the weakening of formal halakhic authority is not the exuberant celebration but rather the voluntary restriction of halakhic autonomy, especially in areas where the stakes are lower. (Note that both halakhic autonomy and its restriction may play out differently for those who formally make decisions only about their own actions, and those who formally make decisions with the intent to set halakhic precedents.)

A strong-form statement of this argument would be that in the absence of formal authority, the preservation of halakhah as law requires us to seek to constitute informal authority whenever and wherever possible.

But I think this is false. Halakhah does not restrict the authority of direct Divine Will because it mistrusts G-d; it restricts that authority because it mistrusts humans who would be the conduits of that Will, or would claim to be the conduits. Therefore, halakhah has no brief for giving similar authority to human beings on any other basis. So an authentic halakhic system must always allow for authority to be religiously challenged, rebuked, or even disobeyed.

But there must be an authority to challenge, rebuke, or even disobey. A paradox of modernity is that one may be obligated to establish authority in order to disobey it.

So the issue of non-Orthodox halakhic-ness cannot be about, or at least not only about, whether Orthodoxy is generally and/or fundamentally right or wrong about gender roles, or about sexuality. The issue is not even whether Orthodoxy generally and/or fundamentally excludes the objectively correct positions on such issues.

The question is whether it is possible to reject the informal Orthodox authority exercised on such issues and still authentically maintain a conception of the Jewish people as a political community bound by religious law, and sustain the dance of autonomy and authority in one’s individual and communal life.

In the context of that question, I want to make a descriptive sociological claim that may have significant normative implications: The claim is that it is perfectly coherent to describe someone, or for someone to describe themselves, as nonobservant Orthodox, but that it is incoherent to describe someone, or for someone to describe themselves, as nonobservant Halakhic non-Orthodox. If one doesn’t practice halakhah, then the halakhah one doesn’t practice is Orthodox.

Assuming I am correct, it means that Orthodox identity exists prior to and independent of praxis, whereas non-Orthodox halakhic identity is constituted by practice. I don’t claim that this was always true, or is inevitably true. But if it is true now, it certainly reflects the failure of American Conservative Judaism to develop a successful non-Orthodox basis for grounding halakhic obligation. With rare individual exceptions, Jews today who identify as both halakhic and as non-Orthodox are an epiphenomenon of Orthodoxy. They have rationales for their rejection of specific Orthodox rulings, but they have no independent rationale for accepting the rest of the system.

One might be able to both summarize and generalize this by saying that: (a) no one has yet successfully developed a Jewish theology that both accepts Higher Biblical Criticism and convinces Jews that they are obligated to subordinate their immediate perception of the Divine Will to the perception of others who are more grounded in Jewish tradition; and (b) no one has yet successfully developed a non-Orthodox halakhah that Jews see as authoritative whether or not they experience its observance as immediately religiously meaningful.

I want to be clear that the successful development of such a theology or halakhah would not necessarily lead me to see it as religiously legitimate. The tradition I see as authoritative has often utterly excluded positions that were genuinely halakhic, meaning that they held with integrity that the Jewish people are a political community bound by religious law. Take for example the Sadducees, or lehavdil elef alfei havdalot, Beit Shammai.

On the other hand, I also want to be clear that Orthodoxy is not a magic word, in two ways:

First, the Orthodoxy of today includes positions that are halakhically legitimate but evil, not because they offer intellectually implausible readings of traditional texts, but because they offend against an objective moral order. If I had my choice I would exclude them, but as I do not have the social power to accomplish this, I believe that my Orthodox identification instead requires that I take responsibility for them. Yigal Amir is Orthodox; at least some of the “price-tag” terrorists are Orthodox; there are virulent racists in American Orthodoxy; and so on. It is davka Orthodox Jews who need to denounce them and work toward making such positions unacceptable in their community to the point that they are no longer Orthodox.

Second, the Orthodoxy of tomorrow may become halakhically illegitimate. If tomorrow all the Orthodox synagogues in the world introduce idol worship, with the approval of their rabbis, DON’T LISTEN!

Third, Orthodoxy today or tomorrow may choose to exclude halakhic people or community for completely illegitimate reasons, and if it chooses to exclude a sustainably halakhic community, that community would be entitled to see Orthodoxy rather than itself as violating lo titgodedu, the prohibition against factionalism.

What I want to suggest overall is that the interests of Torah are better served in our day if:

(1)  People who have moral problems with specific areas of halakhah, but recognize the religious necessity of authority, make their critiques within the Orthodox system rather than excluding themselves.

(2) People who have authority within the halakhic system recognize the religious value and necessity of internal moral and intellectual critique, and see those who engage in such critique—even when they go to the extent of civil disobedience—as vital positive members of their community. (Note that civil disobedience, which involves acceptance of the legitimacy of penalties, must be sharply distinguished from secession or rebellion.)

(3) People who have authority within the halakhic system recognize that authority is constituted not by agreement but by eagerness to engage and willingness to obey in the face of disagreement.

I believe that these recognitions would lead to different and better handling of current and future controversies within and on the borders of Modern Orthodoxy.

I also suggest cautiously that Modern Orthodox leaders should recognize the extent to which their own community’s continued presence in the Orthodox coalition is not inevitable. I say cautiously because the recognition of insecurity can lead to the persecution of alleged heretics to prove one’s own loyalty. But it can also lead to a mature recognition of the dangers posed by zealots, and concerted effort to prevent them from unnecessarily burning bridges, or grain silos.

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Filed under Jewish identity, Jewish Values

The CMTL Shavuot Library

Just in time for Shavuot, here are selections from CMTL’s Torah archive:

Synesthesia at Sinai:  Why did the Jews see voices when they received the Torah?

Who Wrote the Torah? A literary analysis in defense of unitary authorship of the Torah.

Talmud Torah as the Shared Spiritual Language of the Jewish People: Dr. Ruth Calderon’s Knesset Speech and the fulfillment of Rabbi David Hartman’s dream.

Why Study Talmud? Two foundational principles–“the humility of reason” and “the vulnerability of authority”–that we distill through Talmud study.

The Boundaries of Torah Study: Can and should our definition of learning Torah include learning from secular sources in the sciences and humanities?

A note on translations and the Book of Ruth

Translated Excerpts from Rut Rabbah

 

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Filed under holidays, Jewish identity, Jewish Values

Follow-up #3

Last week we discussed Tosafot Yebamot 47a’s presentation of Rabbeinu Tam’s apparent position that many people are presumptively Jewish, meaning that if they claim to be Jewish, halakhic authorities will believe them without requiring corroborating evidence.  According to a beraita on Yebamot 47a, the claim to be a convert is believed only with corroboration or if there is a prior presumption.  Rabbeinu Tam commented that this is true only if there is prior knowledge of Gentileness; someone coming literally out of nowhere and claiming to be a convert would be believed.

Rabbeinu Tam (or perhaps Tosafot on his behalf) cited as proof a story from Pesachim 3b, in which a Gentile was given a portion of a Passover sacrifice simply by showing up.  He addressed an implicit challenge to his proof: what if that story was not based on presumption, but rather on the probability that most people presenting themselves to eat the sacrifice are Jewish?  He responded that most people presenting themselves as Jewish are also Jewish, so Pesachim and Yebamot remain parallel.

However, this response muddies the waters – do we believe the claim to be Jewish because of a presumption, or rather on the basis of probability?  We explained last week that presumptions (chazakah), unlike probability claims (rov),  can exist even without an evidentiary basis,.

Tosafot cite the beraita on Yebamot 47b we looked at two weeks ago as a second proof for Rabbeinu Tam.

מעשה באחד שבא לפני רבי יהודה,

ואמר לו:

נתגיירתי ביני לבין עצמי.

א”ל רבי יהודה:

יש לך עדים?

אמר ליה: לאו.

יש לך בנים?

א”ל:

הן.

א”ל: נאמן אתה לפסול את עצמך, ואי אתה נאמן לפסול את בניך.

A case: Someone came before Rabbi Yehudah,

and said to him:

“I converted when I was alone”.

Rabbi Yehudah said to him:

“Do you have witnesses?”

He said: “No.”

“Do you have children?”

“Yes”.

He said to him:

“You are believed to disqualify yourself, but you are not believed to disqualify your children.”

At first glance this text seems to contradict rather than support Rabbeinu Tam: why don’t we presume the convert to be Jewish?  Tosafot, however, start the other way around: why do we presume the children to be Jewish, so that eliminating the father’s testimony leaves their identity legally solid?[1]

ועוד ראיה משמעתין,

דאמר ליה ר”י אי אתה נאמן לפסול את בניך,

There is another proof (for Rabbeinu Tam’s position) from our own sugya,

where R. Yehudah says to him “You are not believed to disqualify your children”,

Why isn’t the father presumed Jewish?  Tosafot answer that in fact he is, but a technical mechanism nonetheless prevents him from enjoying all the privileges of Jewish status.

 

ואיהו גופיה כשר, אלא דשוי נפשיה חתיכה דאיסורא,

אבל אם בא על בת כהן – לא פסלה,

כדפי’ לעיל.

And he himself is also valid, just that ‘he has made himself a slice of prohibition’,

but if he were to have relations with a daughter of a kohen[2], he does not disqualify her,

as I explained earlier.

The simplest explanation of this mechanism is that it functions in the same manner as an oath.

The upshot of Tosafot is that we presume the father to be Jewish even though he has told us that he is not by claiming to have been invalidly converted.  Here the basis for treating the father as Jewish cannot be probability – no one thinks that most people claiming not to be Jewish are actually Jewish.  Rather, the basis must be presumption.

The last section of Tosafot notes that a story on Yebamot 45a should not be seen as evidence for Rabbeinu Tam.  As background for this story, you need to know that the Talmud records three positions as to the status of matrilineals:

a) that they are mamzerim

b) that they are invalid to marry kohanim

c) that they are no different than Jews with two Jewish parents.

 

תלמוד בבלי מסכת יבמות דף מה עמוד א

ואף רב יהודה מורה בה להיתירא,

דכי אתא לקמיה דרב יהודה, א”ל: זיל איטמר, או נסיב בת מינך.

וכי אתא לקמיה דרבא, א”ל: או גלי, או נסיב בת מינך.

Rav Yehudah also ruled to permit (a matrilineal Jew to marry a Jew with two Jewish parents),

as when (a matrilineal Jew) came before Rav Yehudah, Rav Yehudah said to him: “Go hide, or else marry a woman like yourself (i.e. matrilineal)”,

and when he came before Rava, Rava said to him: “Either go into exile, or else marry a woman like yourself (i.e. matrilineal)”.

Prima facie, Rav Yehudah and Rava suggest that the matrilineal simply show up in a Jewish community elsewhere, where he will be presumed (in their opinion, correctly) to be a halakhically valid marriage partner for Jews born from two Jewish parents, even where he would be socially ineligible would his heritage be known[3].  This suggests that the new community will not investigate their claim to be Jewish.

Tosafot argue, however, that the new community might have investigated whether he was Jewish, but not have researched his family.  Once again, we are left to wonder how he could prove his Jewishness without revealing his parentage.  Bottom line, though, this explanation is offered only to reject using the beraita as a proof for Rabbeinu Tam; once Rabbeinu Tam has triumphed anyway, there is no reason to assume the new community checked at all whether he was Jewish.

ומההיא דלעיל (דף מה.) דא”ל זיל גלי אין ראיה,

דשמא לא היו בודקים אלא אם הוא ישראל אם לאו, אבל במשפחתו לא היו בודקין.

From that earlier (narrative” in which he says to him “Go into exile” there is no proof (for Rabbeinu Tam),

as perhaps they would only investigate whether he was Jewish, but they would not investigate his family.

 


[1] The text does not actually say that the children are considered Jewish, only that their father’s testimony does not determine their status, but Tosafot presumes that they are considered Jewish.

[2]I would emend based on parallels to “a woman whose halakhic status would change as the result of having sex with a Gentile”

[3] This is not the right place to discuss the ethics of hiding one’s background from potential spouses, the current social status of matrilineals in the Jewish community, or the relationship of this passage to the issue of mekach taut as a method of freeing agunot.

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Filed under Beit Din, Conversion, Jewish identity, Jewish Values, marriages, Summer Beit Midrash

Follow-up #2

The 2013 SBM Sh’eilah which you received two weeks ago focused on a woman whose Jewishness comes into question as the result of a conversation with her daughter.  It might reasonably be thought that if the mother cannot be declared Jewish, the same is automatically true of the daughter – but such is not the case. Last week we explained how it be halakhically possible to rule that a woman was not Jewish but and simultaneously that her daughter was Jewish, as follows:

If Robin (the mother) is disqualified on the basis of her own testimony, and Catherine (the daughter) would be considered Jewish if we disregard her mother’s testimony, we may well be able to treat Catherine as Jewish even if we treat her mother as not Jewish.

We then added:

In practice, what evidence could Catherine have for her Jewishness other than being Robin’s daughter?  This of course raises the question of how one establishes one’s Jewishness, and whether and under what circumstances there is a presumption of Jewishness.  This discussion as well relates to a dispute between Rabbi Yehudah and his colleagues, as well as a number of fascinating Talmudic narratives, and I look forward to sharing at least some of those with you next week.

Let us move on to that discussion.

On Yevamot 46b-47a the following fascinating but enigmatic beraita appears:

מי שבא ואמר גר אני, יכול נקבלנו?

ת”ל: אתך –

במוחזק לך.

בא ועדיו עמו, מנין?

ת”ל: וכי יגור אתך גר בארצכם.

אין לי אלא בארץ, בח”ל מנין?

תלמוד לומר. אתך

בכל מקום שאתך;

אם כן, מה ת”ל בארץ?

בארץ – צריך להביא ראיה, בח”ל – אין צריך להביא ראיה,

דברי ר’ יהודה;

וחכמים אומרים:

בין בארץ בין בחוצה לארץ – צריך להביא ראיה.

  1. One who comes and says “I am a ger=convert” – one might have thought we accept him –
  2. so Scripture teaches: “with you” –
  3. only if you already presume him to be.
  4. If he comes with his witnesses, from where do we know?
  5. Scripture teaches “If there should gar with you a ger . . . “.
  6. “. . . in your land” –
  7. So far I only know in the land – from where do I know (that this is also true) in the diaspora?
  8. Scripture teaches “with you” –
  9. wherever he is with you.
  10. If so, why does Scripture teach us by saying “in (the) [your] land”?
  11. In the land – he must bring evidence; in the Diaspora – he need not bring evidence,
  12. according to Rabbi Yehudah.
  13. But the Sages say:
  14. Whether in the land or in the diaspora – he must bring evidence.

 

 

We can ask many basic questions about this beraita, such as:

What is the definition, or: what are the boundaries, if any, of the “acceptance” referred to in line 1?

Is the presumption in line 3 of born Jewishness or rather of conversion?

Why do we need a Torah text to teach me that witnesses are believed?

How does ““If there should gar with you a ger . . . “ teach that one believes a claim of conversion supported by witnesses?

What is the basis of the dispute between Rabbi Yehudah and the Sages?

These questions are asked by the Talmud and Rashi, and we may return to them in future weeks.  The question that matters to us this week, however, is this:

The first line, at least in the opinion of the Sages, asserts that a claim to be a convert rather than a Gentile is believed only if there is a prior presumption supporting the claim.  Is this also true of a claim to be a born Jew?

Rabbeinu Tam, as cited in the Tosafot to Yebamot 46b, asserts that the claim to be a born Jew is accepted as is.  He in essence reverses the beraita by arguing that the prior presumption of conversion is necessary only when there is evidence of prior Gentileness; a person with no known background would be believed if they claimed to be Jewish.  Rabbeinu Tam asserts this on the basis of the following beraita from Pesachim 3b.

ההוא ארמאה דהוה סליק ואכיל פסחים בירושלים.

אמר: “כתיב (שמות יב) ‘כל בן נכר לא יאכל בו’, ‘כל ערל לא יאכל בו’, ואנא הא קאכילנא משופרי שופרי!”

אמר ליה רבי יהודה בן בתירא: “מי קא ספו לך מאליה?”

אמר ליה: “לא.”

“כי סלקת להתם, אימא להו: ‘ספו לי מאליה.'”

כי סליק, אמר להו: “מאליה ספו לי.”

אמרו ליה: “אליה לגבוה סלקא!”

אמרו ליה: “מאן אמר לך הכי?”

אמר להו: “רבי יהודה בן בתירא.”

אמרו: מאי האי דקמן?  בדקו בתריה ואשכחוהו דארמאה הוא, וקטלוהו.

שלחו ליה לרבי יהודה בן בתירא: “שלם לך רבי יהודה בן בתירא! דאת בנציבין ומצודתך פרוסה בירושלים.”

A Gentile would go up and eat from Paschal sacrifices in Jerusalem.

He said: “Scripture writes ‘No gentile may eat it”, “No uncircumcised my eat it”, and yet I eat from the best of the best!”

Rabbi Yehudah ben Beteira said to him: “Did they feed you from the tail?”

He replied: “No”.

“When you go up there, say to them: ‘Feed me from the tail.’”

When he went up, he said to them: “Feed me from the tail.”

They said to him: “The tail goes to the Most High!”

They said to him: “Who said this to you?”

He replied: “Rabbi Yehudah ben Beteira.”

They said: What is this before us?  They investigated his background and discovered that he was a Gentile, and executed him[1].

They sent to Rabbi Yehudah ben Beteira: “Peace unto you, Rabbi Yehudah ben Beteira!  For you are in Nezivin but your net is spread in Jerusalem.”

 

Here is Rabbeinu Tam’s argument as presented by Tosafot:

תוספות מסכת יבמות דף מז עמוד א

במוחזק לך –

  1. אומר רבינו תם:
  2. דדוקא בדידעינן דהוה עובד כוכבים מעיקרא,
  3. דאי לא הוה ידעינן, מהימן, מגו דאי בעי אמר ‘ישראל אני’, דמהימן,
  4. כדמשמע בריש מסכת פסחים (דף ג: ושם)
  5. גבי ההוא עובד כוכבים דהוה סליק ואכיל פסחים בירושלים.
  6. ואין לומר
  7. שאני התם דהוו סמכי ארובא דהוו ישראל,
  8. דהא בכל מקום נמי איכא רובא, דרוב הבאין לפנינו בתורת יהדות ישראל הם!?
  9. ועוד ראיה משמעתין,
  10. דאמר ליה ר”י אי אתה נאמן לפסול את בניך,
  11. ואיהו גופיה כשר, אלא דשוי נפשיה חתיכה דאיסורא, אבל אם בא על בת כהן – לא פסלה, כדפי’ לעיל.
  12. ומההיא דלעיל (דף מה.) דא”ל זיל גלי אין ראיה,
  13. דשמא לא היו בודקים אלא אם הוא ישראל אם לאו, אבל במשפחתו לא היו בודקין.

“Only if you already presume him to be” –

1. Says Rabbeinu Tam:

2.  (The requirement that a convert have a prior presumption applies) specifically when we knew that he was originally a Gentile,

3. because if we had not known, he would be believed (when he claimed to be a genuine convert), since he has a migo[2] that he could have said ‘I am a Jew’, as someone who makes such a claim is believed,

a. as is implied at the beginning of Pesachim

b. regarding the Gentile who came and ate the Pesach in Jerusalem (that he was initially able to do so suggests that anyone claiming to be Jewish was accepted until counterevidence emerged).

c. and it would be incorrect to (reject Rabbeinu Tam) and say

d. that  because they relied on the majority (of those who presented themselves to eat the Pesach) being Jewish, (whereas our beraita discusses a non-Passover case in which no such majority exists),

e. because everywhere else there is also a majority, (namely) that most of those who come before us בתורת יהדות=presenting themselves as Jews are Jews!?

Rabbeinu Tam argues, as best I can tell, that it is obvious from the story that in previous years no one had investigated whether the Gentile was Jewish before feeding him from the Passover sacrifice, and this indicates that generally a claim to be Jewish was presumed true.

Tosafot then raise a possible objection to the generalization: Perhaps it is not that the claim to be Jewish is believed, but rather that the claim to be eligible to eat the Passover is believed, on the ground that most people making such a claim are telling the truth?  In other words, perhaps there is no general presumption of Jewishness, just a situational probability analysis.

Tosafot’s response is that most people claiming to be Jewish are Jewish, so one does not need the presumption ever.

Here we need to clarify the difference between presumption (חזקה) and probability (רוב).

A presumption can exist without a ground – it can simply be a default setting.  For example, Jews are presumed to be telling the truth when they act as formal witnesses in beit din – they have a chezkat kashrut – simply by being born, even if they are born into a culture that has made lying into a fine art.

A probability, by contrast requires a ground – we need to understand what we are claiming, why we think it is likely true.  Determining the context of the odds is vital.  For example – suppose most of the people in the world are not Jewish, but most of the people claiming to be Jewish are – does the majority support someone’s claim to be Jewish, or oppose it?  Should we seek more precise sociological data – for example, see whether either majority is affected by skin color, age, or level of education?

Note also that handling conflicts between presumption and probability is a massive topic.

Note also that halakhah likely often requires one to investigate ordinary probabilities to see if one can determine the status of a particular case, and allows one to presume that an individual case came from the majority only if either further investigation is impractical, or else if there is a superprobability (likely somewhere between 85 and 95 percent.)

Some practical questions for us then are

1)      If we accept as normative the position of Rabbeinu Tam as recorded by Tosafot – what is the probability today that those who claim to be Jewish actually are Jewish?  Do the percentages vary geographically, eg among Israel, Russia, and the US, in ways that we must account for halakhically?

2)      Does Rabbeinu Tam’s migo argument apply for someone who claims to be a convert and was not previously known to be Gentile, but whose previous Gentileness could be discovered easily, eg. via a Google search?

3)      Does Rabbeinu Tam’s claim that a claim to be Jewish is accepted presumptively apply even if the person making the claim has not previously identified as Jewish, or had previously identified as not Jewish, and so had, before making the claim, been assumed to be not Jewish?

Next  we will discuss Tosafot’s second proof for Rabbeinu Tam, as well as a disproof Tosafot reject.

 


[1] It is not a capital crime for a Gentile to eat the Passover, so presumably there is a backstory about the particular gentile – perhaps he was a spy?

[2] An argument of the form:  If I were lying, I would have made a stronger claim than this, and you would have believed me – so believe me when I make this weaker claim.

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Follow-up discussion on the question of Jewish identity

The 2013 SBM Sh’eilah which you received last week focused on a woman whose Jewishness comes into question as the result of a conversation with her daughter.  It might reasonably be thought that if the mother cannot be declared Jewish, the same is automatically true of the daughter – but such is not the case.  The source of this potential split is a fascinating discussion on Yevamot 46b-47a, which is based in large part on a word from this week’s parashah.

 

דברים פרק כא:טו-יז

כי תהיין לאיש שתי נשים – האחת אהובה והאחת שנואה –

וילדו לו בנים – האהובה והשנואה

והיה הבן הבכור לשניאה:

והיה ביום הנחילו את בניו את אשר יהיה לו

לא יוכל לבכר את בן האהובה על פני בן השנואה הבכר:

כי את הבכר בן השנואה יכיר לתת לו פי שנים בכל אשר ימצא לו

כי הוא ראשית אנו

לו משפט הבכרה: ס

Devarim 21:15-17

If a man has two wives – one loved and one hated –

and they bear him children – the loved and the hated –

and the eldest son is the hated’s

on the day that he bequeath to this sons that which will be his

he must not ‘elderize’ the son of the loved in the face of the son of the hated who is eldest.

Rather he must recognize=יכיר the eldest son of the hated so as to give him double in all that may be found of his

because he is the first of his strength

his is the status of the eldest.

 

A beraita understands “recognition” as a public act – “he must make others recognize him” (יכירנו לאחרים),  which is reasonable when one considers that this recognition takes practical effect after the father’s death.

Rabbi Yehudah derives from this understanding that the father has general legal credibility about his children’s status; for example, a kohen father is believed when he says that his sons are not valid kohanim because of their mother.

How does he derive this?  Most commentators explain that the father’s power to declare one child “eldest” carries with it the implication that an older child is not actually his son, and therefore is actually a mamzer.  If the father can declare his son a mamzer, then a fortiori he can declare his son an invalid kohen.

Note:

The Sages disagree with Rabbi Yehudah and say “he is not believed”.  It is not clear how far the disagreement extends.  Here are three possibilities:

a)      They reject any notion that the verse confers any power on the father.  Rabbi Yehudah thought that the existence of a prohibition against a specific “elderization” implied that the father otherwise was believed when he “elderized” a son.  The Sages, however, think that the prohibition is simply intended to keep the father from trying.

b)      They agree that the verse gives the father the general power to ‘elderize’, or at least to be believed when he declares someone to be his eldest son, but reject the notion that this power carries any implications for any other status.  For example, recognizing A as the eldest son of X does not require recognizing B as a mamzer even if B was born before A to a mother who had been married to X for the year prior to his birth.

c)       They agree that the verse gives the father the practical capacity to declare his son a mamzer, but only as a consequence of declaring an ‘eldest’; they reject extending this power to direct declaration of other statuses.

The Talmud suggests that this statement of Rabbi Yehudah contradicts his own practical ruling brought in a different beraita:

ושפטתם צדק בין איש ובין אחיו ובין גרו

מכאן א”ר יהודה:

גר שנתגייר בב”ד – הרי זה גר, בינו לבין עצמו – אינו גר.

מעשה באחד שבא לפני רבי יהודה,

ואמר לו:

נתגיירתי ביני לבין עצמי.

א”ל רבי יהודה:

יש לך עדים?

אמר ליה: לאו.

יש לך בנים?

א”ל:

הן.

א”ל: נאמן אתה לפסול את עצמך, ואי אתה נאמן לפסול את בניך.

“You must judge justly between each man, his brother, and his convert” (Devarim 1:16) –

Based on this, Rabbi Yehudah said:

A convert who converted in beit din  – his conversion is valid; if he converted within himself – he is not a valid convert.

A case: Someone came before Rabbi Yehudah,

and said to him:

“I converted within myself”.

Rabbi Yehudah said to him:

“Do you have witnesses?”

He said: “No.”

“Do you have children?”

“Yes”.

He said to him:

“You are believed to disqualify yourself, but you are not believed to disqualify your children.”

If Rabbi Yehudah gives fathers carte blanche credibility with regard to statuses, why would the father in this case not be believed to declare his son not Jewish?

Rav Nachman bar Yitzchak and Ravina offer different resolutions.

Rav Nachman bar Yitzchak explains that in this case the father is testifying that he is not Jewish, and the Torah only grants credibility regarding children’s statuses to Jewish fathers.

Ravina explains that Rav Yehuda’s grant of power does not extend to cases in which the son’s disqualification would also apply to already-born grandchildren.

The Talmud, as understood by Rashi, concludes that while Ravina is correct that the power of yakir even according to Rabbi Yehuda does not apply when it would disqualify extant grandchildren, the law follows Rav Nachman bar Yitzchak’s explanation of our case (which works according to both Rabbi Yehuda and the Sages), so that the father is not believed to declare his son not Jewish even if there are no extant grandchildren.

Now explanations grounded in yakir apply only to fathers, but Rav Nachman bar Yitzchak’s explanation should apply equally to fathers and mothers.  Therefore, in the SBM sh’eilah, if Robin (the mother) is disqualified on the basis of her own testimony, and Catherine (the daughter) would be considered Jewish if we disregard her mother’s testimony, we may well be able to treat Catherine as Jewish even if we treat her mother as not Jewish.

How can this result be intellectually respectable?  For now, I will set out two basic options:

1)      We actually believe that both parent and child are Jewish, but the parent is obligated to accept the stringencies generated by his/her own statements as if they were true

2)    Halakhah follows its own procedures and epistemology, and to accept something as legal truth does not require accepting it as factual truth.

Each of these options is worthy of extensive nuanced development, but that will have to come some other week.

So we have concluded that Catherine can be treated as Jewish even if Robin cannot be, so long as Catherine would be considered Jewish if we disregard Robin’s story.  That makes sense in theory, but in practice, what evidence could Catherine have for her Jewishness other than being Robin’s daughter?  This of course raises the question of how one establishes one’s Jewishness, and whether and under what circumstances there is a presumption of Jewishness.  This discussion as well relates to a dispute between Rabbi Yehudah and his colleagues, as well a number of fascinating Talmudic narratives, and I look forward to sharing at least some of those with you next week.

Shabbat shalom

Aryeh Klapper

 

 

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Summer Beit Midrash 2013 Sh’eilah

The following is the question that was posed to the SBM fellows, which will be followed by some of the ramifications in further posts. You can see some of the other material from the Summer Beit Midrash here on our website

QUESTION

On a trip to Israel, right after graduating Lotus University in 1984, Robin Smith met David Nunez, a Brazilian Jew. They bonded at once and were soon married by a Conservative rabbi, with a few male Orthodox friends in attendance.

As time passed, they grew more observant, and eventually joined a Conservative synagogue on Utopia Parkway in Queens, NY.  They had a girl, Catherine, whom they sent to pluralistic Jewish schools.

David and Robin identify themselves unambiguously as Jews.  Robin avoids talking about her parents, has no contact with any family member, and generally says that she had a difficult childhood.

More time passed, and they began moving in a generally Orthodox social orbit.  They moved to Lomokome, New Jersey, and joined the Young Israel there.  Catherine graduated college.

Catherine nags Robin once in a while about the absence of grandparents or cousins on her side.  One day, Robin talks of her childhood for the first time.  It seems that she realized from a very young age that she was different from her Catholic social circle – she couldn’t stand even being in Church, and Hebrew writing was mystically attractive to her.  Just after high school graduation she realized that she must be Jewish.  She confronted her parents with that as a fact, and when they refused to admit either that she was adopted or that her mother had been born Jewish and converted, she stormed out and never looked back.

When she arrived at Lotus University in the fall, however, it took time for her to join the Jewish community and to identify as a Jew.  She set foot in Chabad for the first time at her first Passover seder in her sophomore year, but by midjunior year she was a regular at Hillel meals.  Some time that year, she says, learned from her father in a tearful phone call that her mother had in fact been born Jewish, in Russia, but it was too late to repair the relationship.  Robin’s parents are no longer alive.

Catherine becomes fascinated by her background.  She submits her mtDNA to www.FamilyFoliageDNA.com, a site that allows you to be contacted by possible relatives who have also submitted their DNA.  Several weeks later, Catherine is contacted by Leah Perlstein, who, the mtDNA test says, is certainly a direct maternal relative, according to the shared “regular” DNA likely a number of generations back.

Meanwhile, David is deeply worried – has he accidentally intermarried?  Over Robin’s objection, he makes an appointment with the local GPS Beit Din for a psak about his wife and children’s Jewishness.  She accompanies him to the appointment and responds to the beit din’s questions, but she recognizes that she did poorly and completely failed to convince them that her story was plausible.

The Beit Din tells them that Robin must undergo giyyur, as there is no valid testimony that Robin’s mother was Jewish and that they don’t generally accept DNA evidence into Halakhah for any purposes other than direct identification of a body.  Besides, they point out, a maternal ancestor of Leah’s might have converted into Judaism while Robin descended from an unbroken Gentile maternal line.  Most human beings are Gentiles, after all.

David’s expectation when going to beit din was that at worst Robin would undergo rapid Orthodox giyyur.   But she simply refuses.  “My father told me that I was completely Jewish, and I believe him, and anyway I know my own soul – it’s a yiddisher neshomoh”. She notes that the beit din will likely not be willing to convert her in any case, as she adamantly refuses to cover her hair anywhere outside shul and will not give up her Shabbat ritual of squeezing herself fresh orange juice – she simply cannot see how it relates to threshing.

David and Robin approach you, the rabbi of their shul.  They recognize that you will not be willing to overrule the beit din, and furthermore, that the beit din is making a reasonable decision based on the evidence available to it.  However, they ask:

  • If Robin is certain, based on her appraisal of her presumptive father’s character and her metaphysical self-perception, that she is actually Jewish, must she separate from David?
  • If David feels that the combination of DNA evidence and Robin’s confidence convinces him that Robin is Jewish, must he separate from her?
  • Will the rabbi allow them to remain members of the shul now that they have disclosed their situation to him?

 

 

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