Category Archives: Jewish Values

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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How and Why We Must Teach Our Children Well

by Rabbi Aryeh Klapper

I put off watching Hotel Rwanda for a long time. This past Tenth of Tevet, in the afternoon, I finally steeled myself and watched it. Not all at once – I needed breaks, and so the movie wasn’t quite done when it was time for minchah. But I couldn’t bear to eat before finishing, so my fast lasted about twenty minutes longer than everyone else’s.

The leitmotif of the film is a radio station playing in the background which constantly refers to Tutsi people as “cockroaches” and encourages Hutu people to commit genocide against them, with devastating success. My mind went constantly to Parashat Shemot, in which the Jews “multiply and swarm”, like insects. (Or locusts – the eighth plague may be a poetically just response to the Mitzriyim’s image of the Jews.)

Now I know full well that there is an attempt to commit genocide against the Jews in (just about) every generation. I also know that it is not only the Jews. Several years ago Gann Academy held an extraordinary assembly in which a Bosnian survivor told stories of longtime friends and childhood playmates turning into genocidal murderers; I hold no brief for Holocaust uniqueness. But the word cockroaches got to me viscerally. What kind of people can be persuaded to regard other human beings as cockroaches?

Here’s the educational problem. The simplest answer is that people who hold such opinions become, or always were, as worthless as cockroaches. How can we appreciate the enormity of their evil without repeating it?

It will not work to say that we despise the sinners, but not their genes. Cockroaches do not spawn chihuahuas, and nothing depresses a Manhattanite more than seeing a baby roach – you know there are thousands more where that one came from.

How do we teach the Book of Exodus so that our children and students really feel grateful for G-d’s rescue, and still have them understand deep in their souls why G-d stopped the angels from singing while the Mitzriyim drowned? How do we allow ourselves to know that Palestinian public culture unambivalently celebrates the murderers of our friends and neighbors and children, and yet not have our children grow up to murder their babies, and then celebrate those murders?

No, it is not good enough if only a few of our children grow up that way, no matter how spectacularly the rest turn out.

Yes, we are responsible for the way all our children grow up. Even those who rebel against us are shaped by our community.

It is absurd to claim that all the good in our community is internally generated, and all the evil the result of malicious external influences. But even if that were plausible, we would still be responsible to develop a pedagogy that would enable our children to resist those influences.

One instinctive response to desecrations of Hashem’s Name such as the “wedding of hate” video is to deny that intellectually reasonable people could read Jewish tradition as endorsing such behavior. The prima facie problem, of course, is that some elements of the tradition seem to very much endorse such behavior.

In response, educators talk about the need for a more comprehensive perspective, so that isolated passages that raise moral challenges do not become philosophic centerpieces. This is very true. But children will never know enough (and most adults do not know enough) to have that kind of perspective, and we cannot easily segregate the tradition into G, PG, and R rated components. For that matter, many teachers, especially teachers of young children, do not have great breadth of knowledge.

In a sense, we are dealing here with the core problem of all philosophy: How do we establish our basic assumptions? We need to acknowledge that such assumptions cannot be proven; they can only be instilled.

The core assumptions of a society are instilled not by the rote repetition of propositional statements but rather by the transparent demonstration of values in action. For this purpose, Talmud Torah is an action, perhaps the quintessential action. We need not just to teach our values, but to teach our texts in a manner that demonstrates our values.

Here is an example. When the “Shimshon” song is sung, (as we must acknowledge it is at Dati Leumi events, including Bnei Akiva gatherings, albeit generally without waving weapons), there is a tendency to replace the “Plishtim” of the verse with “Palestinim.

Now many commentators have correctly noted that this is halakhically illegitimate – the Talmud (Berakhot 28a) rules that “Sancheriv already came and mixed up all the nations,” so that we now accept male converts from the land of Ammon, even though the Torah explicitly states that an Ammonite male may not enter the Congregation of Hashem. And it is true that discrimination against Ammonites is not currently a problem in Orthodoxy.

My question is, however, whether we learn and teach as if this halakhah is true. For example, we translate “Mitzriyim” as Egyptians, even though neither the Torah’s restriction of Mitzri conversion nor it’s prohibition against ‘abominating’ them applies halakhically to contemporary Egyptians. Now I have not heard of anyone making invidious comments about Egyptians on the basis of identifying them with the Biblical Mitzriyim. But when we translate Mitzrayim as Egypt, without using the occasion to explicitly make the caveat that Egyptians are not halakhically Mitzriyim, we undermine our efforts to separate Plishtim from Palestinim.

This is not exclusively an Israeli problem. For example, there is a children’s song in America that translated Amalek as Germans and Ishmaelites as Arabs, and before my wife and I protested, it was taught to our children in both a Chabad and a Modern Orthodox day school.

The impulse behind these identifications is obvious; they create apparent relevance. And we cannot deny that similar identifications are present throughout the Tradition. Perhaps the most common and powerful example is the identification of Christianity with Esav. Contemporary warnings against faith in interfaith cooperation are often accompanied by the citation “It is halakhah that Esav hates Yaakov.”

Historians point out that Esav was identified with the Roman Empire before the conversion of Constantine, so that the identification with Christianity is an accidental outcome (and one which has never really acknowledged the Reformation). Similarly, those who seek to apply Biblical description of Yishmael to contemporary people can never keep straight whether they are talking about Arabs (including Christian Arabs) or rather Muslims (including Indonesians etc.).

What these changes suggest is that – as Chazal said – there is no genetic connection between Biblical and contemporary categories. Instead, there is an ongoing effort to use Biblical categories to interpret lived experience. As with every act of interpretation, this makes human beings responsible for the implications of Torah in this world. In a world where Jews have genuine, although secular power over others, we cannot afford the indulgence of immediate but misleading relevance.

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Is the New Biblically Prohibited?

by Rabbi Aryeh Klapper

One of the great if bitter “in jokes” of Jewish modernity was Chatam Sofer’s use of the phrase “the new is Biblically forbidden everywhere” to combat Reform innovation. The first level of the joke was that Chatam Sofer was rhetorically repurposing Mishnah Orlah 3:9, where the same phrase should be translated “Grain of the new year is forbidden (until chol hamoed Pesach) even outside Israel.” The second level of the joke is that while the consensus medieval position was that the Halakhah follows this Mishnah, the practice of even the fully observant community has generally been otherwise, such that many great decisors have been compelled to produce limmudei zekhut for them. So chadash is a classic example of a law where popular practice has overwhelmed the written tradition, and Chatam Sofer was offering a creative interpretation – a “chiddush” – and this became the slogan for a static, book-driven vision of Judaism.

And of course this was not Chatam Sofer’s only chiddush – the third level of the joke is that Chatam Sofer was a remarkably creative Torah scholar. The fourth and final level of the joke, if I am not making an unfair presumption, is that most of those opposing Chatam Sofer did not understand that it was funny, and did not realize that he was being creative; they were wholly unaware of the Mishnah and of the history of that Halakhah. This is still true today.

When it stops being funny, of course, is when those who support Chatam Sofer stop recognizing the humor, and genuinely believe it to be an absolute statement, even if they know the Mishnah and the history. This is an unavoidable risk of absolutist rhetoric. I presume Chatam Sofer was aware of the risk that his own words could eventually be used to stifle the people most like him, brilliantly creative, deeply aware of context, fully committed to Halakhah, and capable of utilizing that creativity so that Halakhah could function effectively in every new context but thought it a risk worth running.

The contemporary figure most comparable to Chatam Sofer in this respect was the Rav zt”l, who developed a variety of remarkably original conceptions of the extent and nature of tradition. One of these is highlighted on a 2013 Hirhurim blogpost, Rav Soloveitchik and Tradition Bearers, where Rabbi Gil Student cited from a lecture by the Rav, in the context of opposing a particular innovative halakhic proposal: “Whoever doubts the Sages, taints them with an accusation like misogyny, doubts Judaism.” He writes:

Soloveitchik inferred this strong position from an unusual phrase in Rambam’s Mishneh Torah (Hilkhos Teshuvah 3:8). Rambam states that anyone who denies the Oral Torah or “contradicts its transmitters” (makhchish magideha) is classified as a heretic. What constitutes contradicting the transmitters of the tradition? R. Soloveitchik explained that …[w]ho[m]ever rejects the great sages of every generations, even post-Talmudic, rejects the tradition they embody.

Rabbi Student links to Rabbi Steven Weil’s write-up of the lecture, which includes the following: The Rav clearly stated,

Even those who admit the truthfulness of the Torah Shebe’al Peh but who are critical of chachmei Chazal as personalities, who find fault with chachmei Chazal…which actually has no impact upon the Halacha; nevertheless, he is to be considered as a kofer [denier].

The chachmei hamesorah, the greatest talmidei chachamim of all times whose personalities and outlooks were formed by the sacred texts they wholly embraced, represent Torah and one who rejects them denies all. In Rabbi Student’s words:

Historians and R. Soloveitchik enthusiasts may find it interesting that this was not a new interpretation innovated for this occasion…R. Soloveitchik had published it 30 years earlier. In a 1943 lecture in memory of his father, R. Soloveitchik offered this explanation as part of a lengthy discussion of the laws of declaring the new month…R. Soloveitchik distinguished between laws that the Sages received as tradition and those they derived through logic. Rejecting the Oral Torah refers to the tradition. Rejecting the Sages means disagreeing with their logic, their judgment as presented in the Talmud. From this limited requirement, R. Soloveitchik deduces that rejecting the Sages themselves constitutes heresy. He then applies it to the Sages in general, presumably even post-Talmudic bearers of the tradition. Someone who rejects their judgment, rejects the tradition. This final step reflects R. Soloveitchik’s view 30 years later, when he articulated it in a communal controversy.

Rabbi Student’s last paragraph very usefully invites us to find the boundary, and the gaps, between the Rav’s creative halakhic argumentation and his rhetoric as reported. The Rav’s article explains why Maimonides believed that a formal sanctification of the New Moon continued in some sense after the exile and eventual cessation of the Sanhedrin, even though that sanctification was one of the Sanhedrin’s powers. His solution is that this power of the Sanhedrin stemmed from its role as the embodiment of tradition, and as such could be assumed by another such embodiment. He defines, or at least recognizes, such an embodiment by another of its powers: the capacity to legislate for the whole Jewish people. The Rav recognizes that to “embody tradition” must mean more than “to pass tradition down accurately,” otherwise any two witnesses should be sufficient, and therefore he argues that “transmission = מסורת” is a qualitatively distinct process from learning. He doesn’t rigorously define that distinction in the article. The Rav substantiates his claim that a non-Sanhedrin body can “embody the tradition” via a close but creative reading of Hilkhot Teshuvah 3:9:

Three are called “deniers of Torah”: 1) Who says that the Torah is not from Hashem . . . 2) and similarly, who denies its interpretation, namely the Oral Torah, and (who) contradicts its speakers, such as Tzadok and Boethius 3) and who says that the Creator exchanged this mitzvah for another mitzvah.

The Rav argues that the parenthesized (who) above should be inserted, so that “contradicting its speakers” becomes an independent form of denying the Oral Torah. This may in itself be a chiddush. Granting the literary point, however, how can one “contradict its speakers” without simultaneously denying the interpretations they offer? The Rav answers that without this additional clause one might think that the obligation of obedience applies only to laws received as tradition; however, the requirement not to “contradict its speakers” extends the obligation to laws derived from reason and not received as tradition. In other words, to embody tradition is to have the authority to creatively extend it. The Rav then comments that this applies even outside of Israel, to the Sages of the Babylonian Talmud, because they spoke for and were recognized by the whole Jewish community.

Let us take all of this as given. What is explicit within the Rav’s article is that: a) “contradicting its speakers” applies to a collective group of ‘speakers’ whose legislative authority is recognized by the entire Jewish community. It cannot apply to individuals or subgroups nor apply to any post-Talmudic group; b) “contradicting its speakers” refers to denying the authority of a legal conclusion, and in no way refers to evaluations of the personal piety, integrity, or morality of either the collective or individuals or subgroups within it; c) “contradicting its speakers” is a hyper-traditionalist position, which denies Torah authorities the authority to innovate within the context of Tradition, rather than a reform position.

Going back to Rabbi Student, my take is that the Rav did not “deduce” any of these extensions from his earlier article, any more than Chatam Sofer “deduced” his anti-Reform position from the Mishnah. Rather, the Rav used lomdishe language and ideas as the basis of rhetoric in the same way that Chatam Sofer used Mishnaic language and ideas. Furthermore, I find insufficient basis in Rabbi Weil’s report for Rabbi Student’s claim that the Rav extended his chiddush, even rhetorically, to “post-Talmudic bearers of the tradition.”

Finally, it should be obvious that there is a difference between criticism, even robust criticism, and rejection. Now one doesn’t need the Rav’s chiddush to recognize that there is a point at which someone has been so creative, changed so much or so radically, that they can no longer legitimately claim to be connected to the past, and that Torah authenticity requires such a connection to the Torah past. It also seems patent to me that authentically continuing a tradition requires genuine reverence for those who transmitted it.

But not everything new is forbidden everywhere by the Torah, and Chatam Sofer neither expected nor wanted knowledgeable Jews to believe otherwise; nor did the Rav expect or want his creative rhetoric to become a tool for enforcing a stultified rabbinic conformity, or for creating an intellectual prison bounded by his own theological and halakhic positions, with his students forced to become wardens, inmates, or both.

*Adapted from a 2013 dvar torah by Rabbi Klapper

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Teaching Rabbis Rabbinic Ethics

by Rabbi Aryeh Klapper

In light of recent rabbinic scandals, Rabbi Josh Yuter properly suggests on his blog that a course on rabbinic ethics be part of semikhah programs, and puts forth a suggested curriculum. Certainly our parsha, a story of how klal Yisroel was failed by its best and brightest, is an appropriate time to reflect on educating our future leaders.

However, I am not confident that courses on professional ethics significantly improve professional behavior, especially where no professional association has the mandate to seek out and punish malfeasance. I don’t believe the spies would have made better choices had Mosheh Rabbeinu given them a great shiur in Hilkhot Meraglim, or even a series of such shiurim.

I am also unsure that teaching texts is the best mode of teaching a narrow subset of Jewish ethics. One outcome of general halakhic training is that students learn how to evade and manipulate texts; those of good character use these powers for good, while those of bad character use them for evil. Students of bad character often corrupt the texts they learn, and may even learn new techniques of evil from them.

Let me use one of Rabbi Yuter’s suggested texts to illustrate. On Chullin 44b, Rav Chisda gives a definition of the status talmid chakham that Rashi reads as suggesting a direct connection between Torah academic stature and ethical character. Other rishonim read it very differently, however. Here is the statement:

Said Rav Chisda:

Who is a talmid chakham? One who examines a tereifah for himself.

Rashi explains:

When a doubt arises that perhaps one of his animals has become a tereifah,

and there is a reason for prohibition and a reason for permission,

and he does not take pity on it (ADK: meaning on its potential use) and forbids it.

In other words, the true talmid chakham is one who is willing to rule against his or her economic interests even when it would have been easy, but not honest, to avoid doing so.

Piskei RID perhaps does not understand the hava amina; obviously a true talmid chakham cannot permit the forbidden! He therefore transfers Rav Chisda’s statement from the realm of substance to that of appearances:

Something in doubt,

where one person gives a reason to permit and another to declare it tereifah,

and this (true talmid chakham) adopts the reason to declare it tereifah and is stringent upon himself.

It is appropriate for a talmid chakham to act in this way,

as if he would be lenient, people would besmirch him, saying

“He was lenient for himself, but if it had belonged to others, he would have declared it tereifah.”

In context, RID’s reading seems a better fit than Rashi’s. Immediately preceding Rav Chisda’s statement, the Talmud tells the following story:

Rabbah permitted a tereifah and bought meat from it.

The daughter of Rav Chisda said to him:

When my father permitted a firstborn animal (for the use of kohanim, by declaring it blemished and therefor unfit for sacrifice), he did not buy meat from it (despite being a Kohen)!?

He replied to her: That was only regarding a firstborn animal, which is sold by estimate; here, the weight is evident.

What grounds are there for suspicion – that they might give me the best cut (for the same price)? They give me the best cut every day!

Here the issue is not direct self-dealing, but rather the suspicion of a kickback or bribe from the animal’s owner. Rav Chisda’s daughter accuses her husband Rabbah of insufficient concern for the appearance of corruption, which supports RID’s reading. Perhaps Rashi thought that Rav Chisda’s daughter went so far as to accuse her husband of actual corruption. Either way, Rabbah’s reply compounds the ethical difficulty rather than resolving it.

Rav Chisda’s statement about the true talmid chakham is followed by two more using the phrase “one who examines a tereifah for himself.” Rashi’s reading becomes progressively harder to sustain as we read through the series.

Said Rav Chisda:

Who is the referent of the verse “One who hates gifts will live”?

This refers to one who examines a tereifah for himself.

Mar Zutra taught in the name of Rav Chisda:

Anyone who reads Scripture and repeats Oral Torah

and examines a tereifah for himself and served talmidei chakhamim

Regarding him Scripture says: “When you eat (the product of) your own hands’ exertion, you are fortunate and possess the good.”

Rashi explains that one who examines a tereifah for himself “certainly hates gifts from others, as even regarding his own he is not greedy to decide for the side of permission.” Furthermore, “all the more so he will not be greedy regarding the property of others, to steal and rob,” and so he eats the product of his own hands’ exertion. But it is hard to say that “One who hates gifts will live” refers to someone’s relationship to their own property. It is even less plausible to say that the direct referent of “when you eat (the product of) your own hands’ exertion” is someone who refuses to eat the product of their own halakhic leniency! These difficulties leads Rabbeinu Nissim to cite a diametrically opposed explanation:

But others interpreted:

“Who is a talmid chakham? One who examines a tereifah for himself.

Meaning – that he has reached the level of being able to explain which is kosher and which is tereifah, and is fit to rely on himself and does not need the rulings of others.

Therefore (Rav Chisda) said that “Regarding him Scripture says:

“When you eat (the product of) your own hands’ labor, you are fortunate and possess the good.”

Meaning that the exertion he has exerted in Torah causes him not to lose money because of a doubt.

Maharsha argues that the next line of Talmud proves that this explanation is correct:

Rav Zvid said: He merits obtaining a homestead in two worlds, this world and the Coming World.

“You are fortunate” – in this world; “and possess the good” – in the Coming World.

According to Rashi’s understanding, the scholar who “examines a tereifah for himself” is giving up this world!? So RAN’s alternate explanation must be accepted.

The Talmud next describes the behavior of a pair of rabbis, Rabbi Elazar and Rabbi Zeira. Each turned down food sent them from the nasi’s table, citing the verse “who hates gifts will live”; but whereas Rabbi Elazar also refused the nasi’s invitations to meals, Rabbi Zeira accepted them, asserting that he was conferring rather than receiving honor by attending.

Rabbis Elazar and Zeira are bookends to Rabbah and Rav Chisda. Like Rav Chisda, who refused even the appearance of benefiting from his own rulings, Rabbi Elazar goes the extra mile to avoid even the appearance of impropriety; and like Rabbah, Rabbi Zeira not only accepts the risk that people will see him as benefiting from his position, he argues that one privilege of his position entitles him to the next. Now that we’ve learned this text ourselves, it may be tempting to say that students should be taught to emulate Rav Chisda and Rabbi Elazar, and to see Rabbah and Rabbi Zeira as bad examples in this regard, but I contend that would be simplistic.

Rabbis must fundraise, so there’s no possibility, especially in small communities, that they will be unaware of who contributes and how much. They cannot fully avoid either the appearance or reality of owing something to the wealthy. That’s why Rambam and Shulchan Arukh describe even Rabbi Zeira’s behavior as middat chassidut, beyond  what is required. More sharply, if we are simply placing the text in front of students, what if they are convinced by RAN rather than Rashi, and see in this text no concern for self-dealing or the appearance of impropriety? Even if they adopt Rashi’s understanding, what if they choose to see Rabbah as their model in this area, as he is in so many others?

In sum, Rabbi Yuter deserves much gratitude for raising the issue. But teaching rabbis ethics through texts is setting foxes to guard henhouses, unless the teachers and texts have been domesticated. Nor do we wish our rabbinic foxes to become sheep; rabbis who see one interpretation of a multivalent text as absolute in the realm of rabbinic ethics will likely have the same monovision when it comes to releasing agunot, or conversion, etc.

I therefore suggest that while deep and intense Torah study is needed here as everywhere to determine our ends, the means for improving rabbinic ethics must primarily involve the development of unambiguous standards, effective and fair modes of investigation, and readily enforceable consequences.

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The Meaning in the Microscopic

by Rabbi Aryeh Klapper

The principle that Halakhah ignores the microscopic is well-entrenched in the Orthodox mind. We have some debate about the tiny lobsters (cephalopods) that populate urban reservoirs and give NYC drinking water its pleasing if sub-audial crunch, but only because the largest of them can, under the right circumstances, be seen by the naked eye. But in a different kashrut context, most halakhists for at least 800 years have vehemently denied this principle and insisted on the relevance of the microscopic and even the infinitesimal.

I don’t as yet have a compelling resolution for this contradiction, or even a plausible articulation of what is/was at stake philosophically or practically. But developing such resolutions and articulations seems to me desirable and might be important, so I ask your indulgence for a presentation of the evidence, and look forward to suggestions and critiques.

The last two verses of Parashat Shemini read:

זאת תורת הבהמה והעוף

וכל נפש החיה הרמשת במים

ולכל נפש השרצת על הארץ להבדיל

בין הטמא ובין הטהר

ובין החיה הנאכלת ובין החיה אשר לא תאכל

This is the instruction-set for domestic animals and birds

and for every living creature that creeps in the water

and for every creature that swarms on the land to distinguish

between the tamei and tahor and between the living which is eaten and the living which must not be eaten

Rashi comments:

— “להבדיל”

לא בלבד השונה

אלא שתהא יודע ומכיר ובקי בהן

“בין הטמא ובין הטהר”

צריך לומר בין חמור לפרה והלא כבר מפורשים הם

אלא בין טמאה לך לטהורה לך

בין נשחט חציו של קנה לנשחט רובו

“To distinguish” –

not merely to study the verbal formula

but that you should know and recognize and be expert in them.

“between the tamei and tahor”

does it need to say this regarding donkeys and cows? They are already (distinguished) explicitly!? Rather it means between those which are tamei to you and those which are tahor to you,

between those which had half the windpipe cut and those which had most of the windpipe cut

Ramban cites Rashi and then seems compelled to warn sternly against a possible misinterpretation of Rashi’s source, which Rashi himself did not cite:

(וקתני התם (פרק יב ז

וכמה הוא בין רובו לחציו, כמלא שערה

(ולא תחוש בזה ממה שאמרו בגמרא (חולין כט א

רוב הנראה לעינים בעינן

שאין פירושו אלא להוציא מדברי האומר מחצה על מחצה כרוב

ולכך אמרו דבעי שיהא השחוט רוב ממש כדי שיראה לעינים

לא המחצה שנחשוב אותו בלבנו ונאמר רוב הוא השחוט

מאחר שאין במה שלא נשחט יותר ממנו

אבל כל שישחטו ממנו יותר מן החצי כשר הוא

ואפילו כמלא חוט השערה

כדמפורש בזו הברייתא

ואף בגמרא כך הוא עולה

It says further (in the Midrash Halakhah):

How much is the difference between half and most? The width of a hair.

Do not be concerned here about the Talmud’s statement (Chullin 29a)

“we require a majority which is visible to the eye,”

as that only means to exclude the position that an exact half counts as a majority.

That’s why they say that we require an actual majority that is visible to the eye,

not a half that we consider in our minds and say that most of it was cut

since the part which was not cut is no greater than it.

But so long as they cut more than half of it is kosher,

even if it is only more by the width of a hair,

as is explicit in that beraita and the Talmud works out that way as well.

Why is Ramban so concerned about this misinterpretation? Likely key is his admission that while the beraita is explicit that the difference between half and majority is a hairsbreadth, the Talmud’s language suggests that the difference be visible, and must be massaged to mean otherwise. Moreover, Rashi on the Talmud seems to be trying to preemptively exclude Ramban:

“רוב הנראה לעינים”

כלומר רוב גמור שהוא ניכר

“a majority which is visible to the eye” –

Meaning, an absolute majority which is recognizable.

Ramban on the Talmud is hypersensitive to this issue as well, and insists that neither Rashi nor Rabbi Yitzchak Alfasi (RIF) could have meant otherwise.

והא דאסיקנא בשחיטה דבעינן רוב הנראה לעינים

פירש”י ז”ל שיהא רוב גמור וניכר

פי’ לפירושו לאפוקי מחצה על מחצה שאינו כרוב

שכל שהוא יותר ממחצה נראה לעינים הוא

ואין פירושו כענין שאמרו בברכות (מ”ח א’) רובא דמינכר בעינן

שהוא רוב גדול שניכר מרחוק…

ולא היה צריך רבינו הגדול ז”ל לכתוב בהלכות ודוקא רוב הנראה לעינים

[דהא תנן: חצי אחד בעוף ואחד וחצי בבהמה [שחיטתו פסולה

אבל נראה שהוא מסכים לפי’ שכתבנו ואין בו בית מיחוש

That which we conclude that regarding shechitah we require a majority visible to the eye,

Rashi explains that it means a majority that is absolute and recognizable

The explanation of his explanation is (that he means) to exclude half/half, which is not considered a majority,

as anything more than half is visible to the eye

and it does not mean something like Berakhot’s “we require a recognizable majority,” which means a majority that can be recognized from a distance . . .

and RIF did not need to write “and specifically a majority that is visible to the eye,”

as the Mishnah teaches that: “(if he cut) half of one (of the trachea and esophagus), in birds and animals, his shechitah is invalid,”

but it seems that he agrees with what we have written and there is no basis for concern about this.

Now Chullin 29a is discussing a dispute between Rav and Shmuel as to whether half counts as a majority. The issue for us is whether the category half/half extends to cases which are visually indistinguishable, or not. The Talmud says that Shmuel’s position that half is insufficient requires a visible majority, which on its surface means that an invisible majority counts only as half. RIF goes out of his way to emphasize that a majority means “specifically a visible majority” and Rashi adds his own adjectives: “absolute and recognizable.” Rashi’s use of “recognizable” is likely a reference to Berakhot, which requires a majority of seven to be obligated for a minyan to be valid, rather than six. Ramban nonetheless insists that everyone agrees that even an infinitesimal difference between halves makes the larger section the halakhic majority.

What motivates Ramban? His proofs for his position are: (1) the language “majority visible to the eye” is also the criteria for determining whether an animal can still be slaughtered if its windpipe has already been cut; and (2) the midrash halakhah asserts that the difference between half and majority is a hairsbreadth. But on examination, both proofs are circular. Regarding (1), why is it obvious that an animal which has most of its windpipe cut is a treifah, so long as the majority is not recognizable? And (2): the boundary has to fall somewhere; wherever it falls, only a hairsbreadth will divide the two sides.

Nonetheless, Ramban’s position and interpretation become, so far as I can tell, completely normative in the medieval period. The next suggestion that anyone ever held a contrary position is in the 16th century, when Maharshal to Chullin records the following:

ובמקצת הל’ שחיטה כתוב

בעינן רוב הנראה לעינים אבל לא רוב במדידה

וליתא. ובישינות כ’ ז”ל

בעינן רוב כשיעור, אבל לא המשוער בלב

Some versions of (a standard medieval) Laws of Slaughter have written:

“we require a majority visible to the eye, not merely a measurable majority.” But this is not so

and in the ?older versions? it is written

“we require a majority by quantity, not one which is merely estimated”

Note that Maharshal, like Ramban, not only disagrees with this position but denies its existence, attributing it to scribal error.

I eagerly await your suggestions as to why this issue seemed so vital to Ramban and Maharshal, and your reconciliations of this Halakhah with our disregard of the microscopic in other contexts.

To send comments and suggestions, please go to our Facebook page: https://www.facebook.com/pages/Center-for-Modern-Torah-Leadership/378077108552?fref=nf

Shabbat Shalom!

 

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Our Father Was a Wondering Aramean Uber Driver, Who Missed the Exit for Israel and Ended Up In Egypt

This week’s alumni dvar torah is by Benzion N. Chinn

I recently started driving for the taxi service Uber.  The logic behind this decision was that my main job as a tutor has me driving to different parts of Los Angeles.  When I’m already on the road but with time to spare, it makes sense to pick up a passenger to help pay for the economic privilege of owning a car. In addition, the job is an education on the myriad of personalities one can find in a city like Los Angeles, and I can always hope that the passenger will want to go the same way I was going anyway.

Murphy’s Law comes into play, though – passengers often turn out to be going in the exact opposite direction. Sometimes I take on rider after rider, hoping they will “take” me where I want to go, only to find myself going further and further in the wrong direction.

Being on the wrong path and stubbornly holding on in hope that it will magically turn out to be the right path has given me renewed empathy for our Patriarch Jacob.

The story of Jacob, in marked contrast to those of Abraham and Isaac, seems an exercise in history gone wrong. With Abraham and Isaac, the divine narrative of history seems, with only a few minor hiccups, to be moving in the right direction. But where Abraham and Isaac separated their children and ultimately avoided fraternal violence, Jacob’s sons sell their brother Joseph.  Avraham defeats the Four Kings, and Yitzchak reaches an accord with the Philistines, but Jacob feels compelled to disavow Simon and Levi’s devastation of Shekhem. While Avraham reaches Canaan, and Isaac never leaves, Jacob is first exiled to Aram and eventually goes down to Egypt, setting the stage for his family’s enslavement.

From this perspective, Jacob must be seen as the grand failure of the patriarchs. Geographically and eventually economically, Jacob lost everything that Abraham and Isaac worked so hard to gain.  Jacob was the patriarch who missed the exit for Canaan, refused to ask for directions, and drove Jewish history into a ditch, from where it needed rescuing by Moses.

This dark view of Jacob, though, is countered by the fact that unlike Abraham and Isaac, all of Jacob’s sons are counted as part of Israel. In the end, Jacob did not produce an Ishmael or an Esau. For this reason, the Israelites are called after Jacob and not Abraham or Isaac.

This forces us to confront the possibility that perhaps, as counter-intuitive as it sounds, Jacob was going in the right direction the entire time. By leaving the land, was Jacob building a Jewish people? By contrast, were Simon and Levi destroying a potential part of Israel by massacring the inhabitants of Shekhem? Could it be that driving down a dirt road, a field and off a cliff really was a short-cut?

Our judgment of Jacob is relevant to our understanding of Jewish history, a story which is fundamentally one of history gone wrong. We could not keep a land or a temple. In exile we failed to hold on to either Spain or Eastern Europe. In looking at the wreckage of Jewish history, do we turn around and say that, in some mysterious sense, we did something right? By right I do not merely mean that Jewish history will end in a messianic redemption. To truly redeem Jewish history, we must say that the various tragedies of Jewish history, along with the cultural and leadership failures that could be attributed to the different generations, were either the products of some Jewish strength (even if they manifested themselves as tragic flaws) or led to something intrinsically positive about Judaism that could make it worthy of redemption.

Benzion N. Chinn spent several years at The Ohio State University following what he thought was the proper path for him, attempting to earn a doctorate in Jewish History. Following certain unfortunate career mishaps, he has taken his life in a new direction, working as an academic and special education tutor. He lives in Pasadena, CA with his wife and son. 

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“Good” Deeds Done in the Service of Evil?

Rambam asks us to imagine ourselves and our world at equipoise, virtues and vices cancelling out perfectly, so that our next action decides how G-d will judge. But is it true justice to weigh deeds against one another, rather than responding to each deed independently? This is a metaphysical question, but I want to approach it by putting two very concrete halakhic analyses in dialogue with each other: Professor Jeffrey Rosen’s take on lashon hora, and Rabbi Shaya Karlinsky’s approach to dealing with abuse allegations.

The obvious question regarding lashon hora is: Why should it be forbidden? Why shouldn’t we see maximum transparency as a good, and celebrate when a false image is shattered? Professor Rosen’s answer is that complete transparency is never achieved. We are continually making educated guesses and filling in the blanks of our knowledge about others in order to complete our view of them. In this process, human nature tends to assign negative information disproportionate weight, and therefore a word of lashon hora can generate untold numbers of unjustified negative guesses. Lashon hora is therefore deceptive in result—it makes us think of people as worse than they are—even when true.

Rabbi Karlinsky notes, however, that abuse allegations against popular rabbis and teachers often generate the opposite reaction. People rush to serve as character witnesses for the accused and argue that their many acts of kindness and compassion make the abuse allegations implausible. Rabbi Karlinsky’s response builds off a Kli Yakar. Kli Yakar understands Devarim 25:13-16 as condemning both the honest and dishonest weights of a shopkeeper who maintains two sets, on the ground that the honest weights—and all the transactions for which they are utilized—are essentially covers for the fraud. When accused by a victim, the shopkeeper will produce the honest weights and satisfied customers and use them to attack the credibility of the fraud accusation. So too, Rabbi Karlinsky argues, the abuser’s acts of kindness and compassion are a core part of their abuse.

On the surface, Rabbi Karlinsky and Professor Rosen are in serious tension. However, they dovetail in the following way: Our tendency to overplay the sins of others makes it hard for us to believe that someone who has sinned seriously is also capable of great good. Where the good is incontrovertible, we may choose to disbelieve the evil, since we cannot find a coherent narrative that explains it.

Rabbi Karlinsky’s solution to this problem is dramatic. He encourages us to disregard apparent good done by abusers, seeing it as instrumental to the evil, and so the evil becomes the only aspect of character left, and cannot be ignored.

I prefer a slightly different framing of the problem. It may not be that people disbelieve the accusations, but rather that they are hesitant to ruin a life for one misdeed when they know of much good the accused has done. Rabbi Karlinsky’s solution theoretically works for this version of the problem as well. But I’m not sure it works in practice. Here’s why:

If the fundamental issue is whether the allegations are accurate, it is directly useful to explain how the same person could have committed both great and foul deeds. But if the fundamental issue is justice, Rabbi Karlinsky’s theory has a more uphill climb. It requires us to believe both that the accused committed evil deeds, and that their good deeds are essentially meaningless.

Divrei Torah during this period of repentance should meet two criteria: cause self-reflection and be concrete. So let me put this question in a framework that functions as a soul-mirror for us, challenging us to make real decisions differently.

Are there people who do good primarily to enable them to do or get away with evil? Is this an underlying motivation for other people? I think the answer to both questions is yes, which is an introduction to more serious questions.

Base motivations can often be bent to positive aims, and one can imagine a person successfully doing good their whole lives by convincing their evil inclination that, on some undefined day, their reputation will be so unimpeachable that they can act as they please without fear of consequences. So the real questions are: How much good is done by being alert for such motivations? How much harm is done by suspicion?

Answering these questions properly likely requires developing a comprehensive taxonomy of people who do both significant good and significant evil. Here is a tentative and very incomplete attempt toward that end:

  1. Conflicted: They have tasted the fruit of the Tree of Knowledge of Good and Evil and found it delectable either way. There is no ultimate way to know which will predominate their life. In the terms of mussar, we might say that they constantly revisit the same “bechirah (choice) points.”
  2. Consistent: They are fundamentally driven by a single basic passion, regardless of whether it leads to good and evil. Examples of passion include power and eros.
  3. Goal-oriented: They believe they have an end that justifies all means, and their actions ultimately aim at that end. In an extreme version, their end not only justifies any means, but fundamentally makes all other values irrelevant. They may believe their attainment of power to be an essential means, and can end up confusing that means with their ultimate end.
  4. Manipulative: They have no values other than their own satisfaction, but are capable of making short-term sacrifices and long-term strategies. They will go to lengths to cement relationships that give them what they want. But they will badly use people after a relationship is established, using gratitude, insecurity, and hero worship to maintain control.

These are ideal types, and very few people, if any, fit any of these descriptions precisely. I suspect, though, that each of us can recognize a little of ourselves in at least one.

It is very important to socially reward the conflicted and the consistent for the good they do. But Rabbi Karlinsky argues that we as a community and as individuals must recognize the manipulators for who they are. Gratitude and admiration are natural and generally wonderfully positive human emotions, but they can be perverted. The question is how we can tell which kind of person we are dealing with.

Perhaps the scariest experience of my life was attending a speech by the late Rabbi Meir Kahane. What terrified me was the way he insulted his followers—he seemed depressed that his supporters were generally not intellectually gifted—and nonetheless kept perfect control over them. I submit that the surest sign of a manipulator is the presence of acolytes who cannot tear themselves away no matter how badly they are betrayed or humiliated. When apologists for the accused include people whose trust has been betrayed, look out.

Now it seems to me from a legal theory perspective that in general we rule that מצות בין אדם לחבירו אין צריכות כוונה = interpersonal mitzvot do not require intent to be legally significant. Money given to the poor is charity even if given for the sake of personal aggrandizement, even if it is not ideal charity. So from a theological perspective, it may be that G-d rewards manipulators for the interpersonal mitzvot they do.

From a human perspective, we cannot allow the good they do to weaken our resolve to stop their ongoing manipulation, and, as Rabbi Karlinsky argues, we cannot think in terms of balancing their good and evil. In particular, we must take a very jaundiced view of any apparent teshuvah, demanding it be sustained for many years, without relapse, before even thinking of considering them changed people.

It is also very important that we identify the goal-driven, not because their good deeds are done in service of evil, but because their good deeds are not predictive of how they will behave when faced by similar choices in the future. Most specifically, they are likely to behave differently when trusted with power than when they are powerless.

In the foremath of Yom Kippur, it is and should be emotionally difficult to set high standards for accepting the repentance of others even as we ask G-d to set abysmally low standards for our own. It is similarly hard to judge others by their worst aspects as we ask G-d to judge us by our best. We are mostly, I hope, conflicted or consistent sinners, striving to find ways to empower our best selves. We would rather believe that all others are doing the same, and we pray for G-d to take that as His premise. But that may be a Divine luxury in which we cannot always indulge.

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