Category Archives: Summer Beit Midrash

Brisker CRISPER: The Hezekian Archetype for Halakhic Discussions of Embryonic Editing (Week Three Summary of SBM 2019)

by Gershon Klapper and Doniel Weinreich, SBM Fellows

In those days Hezekiah sickened unto death; the prophet Isaiah son-of-Amotz came to him and said, ‘So saith the Lord: Instruct your household that you, moribund, will not survive.’”(2 Kings 20; Isaiah 38)

But Hezekiah survives, after pleading his case to G-d, and sires children. Why did G-d initially send Isaiah to declare his death a fait accompli, and how did Hezekiah change His mind? 

On Brachos 10a, Rav Hamnuna offers a reconstruction of the lifesaving dialogue. Hezekiah was reluctant to procreate on account of a spiritual vision which foretold unworthy progeny. But Isaiah said to him, “What are the kavshei d’-rachmana (secrets of the Merciful) to you? What you have been obligated, do, and what He likes, He will do.” Hezekiah agrees to procreate, asking Isaiah for his daughter’s hand, and G-d then accepts his prayer.

Abravanel explains the redundancy of Isaiah’s initial declaration “you, moribund, will not survive” to mean that “you will die, and your line will cease.” G-d’s plan for history required the Davidic line to continue, even though segments of the line such as Hezekiah’s son Menasheh would be wicked. “Although Menashe was wicked and his sons like him, behold: Josiah came from him, and this is the good fruit which comes eventually from evil branches” (Abravanel, Isaiah 38).

According to this interpretation, what are the kavshei d’-rachmana, and why was Hezekiah enjoined from considering them? Abravanel’s analysis suggests that the ban on considering kavshei d’rachmana as a factor in procreation applies only to kings, who need to ensure an heir to the throne. 

Rabbi Moshe Alshikh interprets kavshei d’-rachmana in a much more expansive, maximalist fashion. He claims that no one, royal or commoner, should ever dispute G-d’s command in any area based on a personal moral calculus (Alshikh, Genesis 26). Rabbi Yaakov Kaminetsky agrees with the expansion to all people, but seems to reject Alshikh’s assertion that calculations never limit obligations. He claims that Hezekiah was wrong morally only because he was wrong factually — he didn’t know that Menasheh would repent, or that Josiah would descend from him. But in principle, Hezekiah was correct that it would be better to not procreate than to have unmitigatedly evil descendants (Emes L’-Yaakov, B’rachos 10a). Possibly Abravanel agrees.

Rabbi Menachem Meiri held a middle ground. He apparently limits the ban on considering kavshei derachmana to issues of procreation, but agrees that no calculation based on them can affect obligation. His creative contribution is to extend kavshei derachmana from the supernatural to the natural: “A man must not curtail the commandment to procreate because of any sort of suspicion that he or his partner cannot produce proper progeny, whether on the basis of tradition, reason, or experiment, because a man has no business with the secrets of G-d, at all, as it says, ‘why are you involved in these kavshei d’-rachmana?’” (Beis Ha-B’chira, B’rachos 10a). Netziv contends that “even the decision to form a couple is included within kavshei d’-rachmana, as it has been since the antediluvian start” (Ha-Amek Davar, Genesis 24:51).

These differing understandings of kavshei d’rachmana have direct implications for modern p’sak. For example, Rabbi Menashe Klein ruled that genetic testing for Tay-Sachs through Dor Yesharim was prohibited because it might prevent some heaven-ordained couples from procreating: “And this is an extraordinarily clear matter, because even if you see through prophecy that you will have unworthy progeny, you are within the kavshei d’-rachmana” (Shu”t Mishneh Halakhos, 12:265).

A responsa by Rabbi Yitzchok Zilberstein answers a question from a man who wished to abstain from procreation because he discovered that his wife had a family history of schizophrenia, creating an increased risk of his children inheriting the disease. The man must procreate, ruled Rabbi Zilberstein, because “he has not fulfilled the commandment of p’ru u-r’vu and he is not at liberty to abstain lest his son be diseased, as per B’rachos 10a” (Chashuskei Chemed, B’rachos 10a, s.v. b’-hadei kavshei). Rabbi Zilberstein rules similarly in cases where there is a family history of Marfan’s Syndrome or of irreligiosity, and where there is a high risk of abduction by the Catholic Church. In all of these, he says, to interfere with reproduction would be to risk atrapalliation/unraveling of G-d’s plan. 

Can any pragmatic concerns supersede the command to procreate? A beraita on Bava Basra 60b relates that at some point in history, when the Jews were being oppressed and circumcision was forbidden, it would have been proper to decree for Jews to not marry, or procreate, at all. No decree was made, however, because most Jews would not follow such a command. We don’t issue a decree unless the majority of the populace can uphold it, and “it is better for them to be accidental sinners rather than purposeful sinners.”

The Tosafists ask: How could it be proper to make a decree against fulfilling the commandment to procreate? They suggest that the proposed decree would have only applied to people who had already fulfilled the minimal requirement of having one male and one female child (ibid. Tos’fos s.v. din hu). Rabbi Avraham Chaim Schor, alternatively, answers that the rabbis in fact have the power to require us to passively violate commandments, such as by not blowing shofar when Rosh Ha-Shana falls out on Shabbos (Toras Chaim, Bava Basra 60b).

Meiri and Sforno (to Bereshot 35:11) reject these answers. They instead read Bava Basra 60b as contradicting the story of Hezekiah on B’rachos 10a. If it was wrong for Hezekiah to reason himself out of the command to procreate, they argue, it would also be wrong for Jews living under oppression to reach such a conclusion.

A third passage concerning nonfulfillment of procreation is found on Sotah 12a. When Pharaoh ordered his people to throw all male Jewish babies into the Nile, Amram divorced his wife, and the Jewish masses followed suit. Amram’s daughter Miriam protested that his action was worse than Pharaoh’s; Pharaoh’s decree affected only the male children, but Amram’s actions affected both male and female children. Furthermore, Pharaoh’s decree only affected the children in this world, but Amram’s actions would affect them in this world and the world to come (because unborn children garner no merit). Convinced by his daughter’s objections, Amram returned to his wife and the masses followed.

Many achronim question how Amram could have entertained this idea in the first place. Doesn’t the story of Hezekiah teach that one ought not engage in teleological calculations commandments? The Marafsin Igra responds by citing a gemara in Yevamos which says that, if one’s children die without procreating, one has not fulfilled the commandment. Since Pharaoh had commanded his people to kill all male progeny, the next generation would not be able to procreate (endogenously), and so p’riah u-r’viah could not be fulfilled anyway. But the virtue or wickedness of progeny has no bearing on the fulfillment of the command. 

This summer, we are investigating precedents for halakhic perspectives on gene editing. Understandings of kavshei d’-rachmana which contend that G-d directly intends specific children to result from specific unions — can easily be understood to imply that it is not the role of mankind to interfere in such matters, e.g. by editing an embryo to avoid disease. This may result in psakim such as those we’ve cited above from Rabbi Klein and Rabbi Zilberstein.

The alternative, narrower understanding of Rabbi Kaminetsky provides more leeway to would-be permissive decisors. If Hezekiah was wrong only because his source of information was unreliable, it may be perfectly legitimate to use scientific information to make such decisions.

Similarly, different treatments of the gemara in Bava Basra lead to distinct halakhic conclusions. The simple read of the Talmud has been used for a millennium to allow infertile couples to remain. Tosafot’s position can lead to leniencies about contraception once p’ru ur’vu has been fulfilled. Rabbi Schor’s position might allow the use of IVF before the fulfillment of p’ru u’rvu, in extenuating circumstances such as high risk of disease, even for poskim who hold that IVF procreating does not fulfill the commandment.

The plain implication of the sugya in Sotah is that even a single generation of Jewish women, who will never be able to reproduce, is valuable, and that it is worthwhile to have children even when Pharaoh has decreed that they die in their infancy. In the case of the Jews in Egypt, G-d rescues them and they do not die out, neither the women without procreating nor all the men in infancy. It is no stretch to expand this case to our subject — if it is worth having children even if they are sure to die, and worth following the letter of p’ru u-r’vu even if it guarantees disaster, in the hope of heavenly intervention, how are we empowered to interfere with Jews’ embryos? Yet we can of course distinguish between cases where the choice is binary, procreate or not, and cases where there is a therapeutic option. 

Ultimately, as we move toward writing responsa, two core questions will be: Do we feel comfortable ascribing any sphere of knowledge about our material world exclusively to G-d? Could we come to terms with any halakhah that limits the use of reliable medical knowledge?

 

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Creativity at the Cutting Edge of Halakhah: Week Two Summary of SBM 2019

by Sara Krishtul and Elyanna Saperstein, SBM Fellows

How does Jewish law respond to changes in scientific knowledge and technical capacity? One window into this issue is Shu”T Noda B’Yehudah 2:YD:210, written by the renowned eighteenth-century posek Rabbi Yechezkel Landau of Prague. Rabbi Landau’s ruling demonstrates the power and necessity of halakhic creativity in response to such changes, and also some of its risks and perhaps inevitable pitfalls.

R. Landau’s son-in-law R. Leib Fischels reported a disagreement between two rabbis in London – henceforth the matir=permitter, and the oseir=forbidder – whether to allow doctors to autopsy a man who died after surgery to remove a bladder or kidney stone, in the hope of developing safer, less invasive surgery for future patients. The case appears to pit the the concern of nivul u’vizayon hameit (=marring and disgrace of the corpse/deceased) against the obligation to save lives, pikuach nefesh.

The matir cites two precedents in which apparent nivul hamet is halakhically permitted. 

First, Tanakh reports without disapproval that Yaakov, Yosef, and the kings of Israel were embalmed. While one might claim that embalming is for the honor of the dead, and is therefore not considered nivul, the matir argues that the autopsy in our case is parallel, because the dead will be honored by bringing healing to other patients.

Second, Shut HaRashba cited by RAMO YD363:2 permits children to fulfill their father’s wish to be buried with his ancestors by exhuming him and pouring lime over his body to expedite its decomposition. 

The oseir cites a ruling by R. Akiva recorded in Gemara Bava Batra 155a prohibiting an autopsy. The proposed aim of the autopsy was to determine whether or not the deceased had reached puberty at the time of death; if he had not, this would retroactively invalidate his sale of his father’s property shortly before death. 

At face value, the oseir’s case – nivul of a cadaver in order to ascertain biological details of the deceased’s death – seems very similar to our topic of medical autopsy. However, the matir responds that the cases are not parallel at all. Rabbi Akiva teaches us that one cannot do nivul for financial gain, but why would that mean that one cannot do nivul in order to save lives?!

R. Fischels agrees with this disproof. However, he contends that one can even go further, and prove the matir’s permission from the oseir’s source. It’s true that Rabbi Akiva forbids the heirs from autopsying the body – but the Talmud implies that the buyers of his property would be permitted to demand an autopsy!

R. Landau is quick to justify the oseir, however. He argues that autopsies in London likely require the permission of the family, and therefore, if one does not distinguish between autopsies for gain and autopsies for medical knowledge, the oseir’s proof would be valid. R. Landau makes clear that he offers this defense for the honor of the oseir rather than because he agrees with him, and he agrees with the matir’s original disproof. 

However, Rabbi Fischels claims that the matir has also not brought any proofs relevant to permitting nivul. Why? Because neither embalming nor pouring lime are properly defined as acts of nivul, even though they alter the corpse. Rather, embalming prevents nivul by preserving the body in its pre-decomposed state, and pouring lime prevents nivul by rapidly taking the body to its fully-decomposed, non-repulsive state – fleshless bones. Autopsies, by contrast, are actually nivul and must be justified by some competing value. 

R. Fischels here effectively distinguishes nivul of the body from kavod of the deceased person. We are left to consider how he would rule in a case where we are both being menavel the body, and mechabed the person.

R. Fischels claims that he does have a valid proof for permitting the autopsies. This proof is from Talmud Chullin 11b. The Talmud there seeks to prove that we can rely on probability in capital cases from the fact that we do not require murder victims to be autopsied, even though an autopsy might show that they were treifot (people with holes in vital organs that will kill them quickly), whom it is not a capital crime to kill. The Talmud responds that this cannot be a valid proof, as why would we rely on probability when autopsying was possible?! Rabbi Fischels argues that the Talmud clearly thinks that an autopsy would be justified to save the life of the accused murderer.

Rabbi Landau responds that this is backwards thinking. If we could not rely on probability, then nobody could be executed without autopsy. The autopsy therefore serves to enable the execution, not to prevent it!

Rabbi Landau concedes that the language of the Talmud leans toward Rabbi Fischels’ reading. וכי תימא משום איבוד נשמה דהאי ננוליה – were you to say that we should do nivul (to the victim) for the sake of (preventing) the loss of life (of the killer). How can this be explained?

R. Landau explains that the Torah mandates that halakhah always adopt the positions that minimize executions. This special concern for capital defendants means that autopsies would always be required in capital cases even if they are not permitted for the purpose of saving life in other circumstances. Therefore, R. Fischels cannot prove from here that medical autopsies are permitted. 

R. Landau then expresses his incredulity at the entire conversation. Why were Rabbi Fischels, the matir, and the oseir bringing evidence as to whether nivul particularly is permitted to save lives? It’s clear that even the possibility of pikuach nefesh (lifesaving) overrides all prohibitions that are not yeihareig v’al ya’avor (require one to die rather than transgress). Therefore, since nivul is plainly not yeihareig v’al ya’avor, medical autopsies should obviously be permitted?! 

R. Landau therefore contends that the real issue is whether halakhah considers the generation of new medical knowledge that can save lives to be “lifesaving.” He concludes that it is only considered lifesaving if one can point to a “sick person before us,” who may be saved by the new knowledge. Thus, the Talmud in Chullin permits autopsies to save the life of someone already convicted and liable for execution, and the Talmud in Yoma permits digging people out of construction debris on Shabbat. But if there are no patients in hand, the statistical likelihood that such patients exist elsewhere, or will eventually appear here, does not create a halakhic imperative of lifesaving. 

R. Landau argues that this distinction is pragmatically necessary, Otherwise, lifesaving would be used to allow all medical work on Shabbat, including crafting medical instruments. As well, autopsies would end up being performed for the most remote medical concerns, even general anatomical curiosity. In an act of reductio ad absurdum, R. Landau lists these outcomes and cries, “Heaven forfend that we permit this!”

To better understand why R. Landau felt compelled to draw the radical distinction of lefaneinu without bringing further proof, it is important to understand the communal issues facing the London at the time. When the she’eilah was asked, human bodies were being used more and more systematically for medical research; specifically, a surgeon from France had recently proved that he had used information gained from autopsies to develop a better treatment for bladder stones – the very same disease as in our question! The increased reliance on autopsies for medical education, together with the lack of refrigeration technology available and Christians’ religious reservations on signing off on autopsying their bodies, meant that schools were desperate for cadavers. Permitting autopsies for medical research in R. Landau’s time would have meant the end of traditional Jewish burial; it would have made redundant an ancient rite that had hitherto characterised Jewish communal life.

R. Landau thus offers a creative distinction that was consistent with his precedents but did not emerge from them. It is not clear whether he would have made this distinction without the practical pressures he faced.

The role of halakhic creativity in response to societal and technological changes is even more striking when we follow the sugya through to the formative years of the modern State of Israel. R. Yechiel Weinberg in Shu”T Sridei Eish 2:92 ruled for a rabbi in Manchester, England, that autopsies were generally forbidden, citing Rabbi Landau. However, he later wrote a letter (Writings 1:22) arguing forcefully that they must be permitted in Israel. He notes that developments since R. Landau’s time, such as the advent of telephones and radio, mean that we are more connected and the effect of research on patients is felt much more immediately. Therefore, all patients anywhere can be considered lefaneinu. As well, the newly-formed State of Israel simply needs medical schools, and therefore anatomy labs – outsourcing a country’s medical care would be ludicrous. Moreover, Israel would suffer international criticism if it had below-par medical care, the Israeli Rabbinate would be severely criticized if religious concerns lowered the quality of the country’s health care. 

The severe limit placed by the R. Landau on the permissibility of autopsies through his lefaneinu distinction forces R. Weinberg to push back with an equally innovative re-classification of the effects of medical research as lefaneinu

How much concern should poskim have for the transience of the societal conditions their teshuvot address? In hindsight, It was inevitable that R. Landau’s creative distinction would need to be replaced once the desperate need for cadavers receded, or as autopsies became a more essential part of medical practice generally. Perhaps poskim should find ways of building sunset provisions into their rulings, or other ways of allowing their successors greater leeway to “start from scratch” when situations changed in relevant ways. Perhaps that is not a formally legitimate move with regard to laws that are deoraita under Biblical authority. R. Landau’s creative ruling, and Rabbi Weinberg’s creative response, throws into relief both the power and shortfalls of using halakhic creativity in pesikah.

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Should Our Understanding of G-d’s Purposes Affect Our Interpretation of His Words? Week One Summary of SBM 2019

by Dan Jutan, SBM Fellow

How should halakhah deoraita (carrying Biblical authority) be determined in new circumstances?  One possibility is that halakhah is a self-contained system, in which all legal mandates are derived by legal reasoning from legal precedents.  Another possibility is that the means mandated by halakhah are sometimes derived from moral, ethical, or pragmatic explanations of why the halakhah ought to be a certain way, or of why G-d would want halakhah to be a certain way.

BT Sanhedrin 21a:Talmud presents this issue as in complex dispute between Rabbi Yehudah and Rabbi Shimon.

/Mishnah/

He (the king) must not have many wives”—aside from eighteen.

Rabbi Yehudah says:

He can have many wives,

but only if they don’t lead him astray.

Rabbi Shimon says:

Even one—if she leads his heart astray,

he must not marry her.

If so, why does Scripture say don’t have many wives?!

Even (wives) like Avigayil

/Talmud/

Does our Mishnah mean to say that R. Yehuda is doresh taama dikra and R. Shimon is not?

But we heard the opposite, as a Mishnah elsewhere teaches:

A widow, whether poor or wealthy –

one may not take collateral from her,

as Scripture says

You may not take the garment of a widow for a pledge,

In the opinion of R. Yehudah.

Rabbi Shimon says:

From a rich widow—one may take collateral; from a poor widow – one may not take collateral;

and you are obligated to return it to her, and you’ll give her a bad name amongst her neighbors.

So evidently, Rabbi Yehuda is not doresh taama dikra and Rabbi Shimon is!?

Generally, Rabbi Yehudah is not doresh taama dikra,

but it’s different here, because the taama is explicit in the verse:

Why he must not have many wives? Because and his heart will not stray.

But Rabbi Shimon would say to you as follows:

Let’s see – generally we are doresh taama dikra. That being so, the Torah should just write

he must not have many wives and then be silent—I’d figure out the rationale and his heart will not stray. So why does Scripture write and his heart will not stray?

To teach that even one, if she leads his heart astray—he must not marry her.

Given that, what meaning does he must not have many retain?

Even (if they are) like Avigayil.

What precisely does doresh taama dikra mean? In the context of this sugya, it appears to describe a process of resolving an issue of Biblical law on the basis of the rationale for that law. Rabbi Shimon thus decides that the law against taking collateral from widows does not apply to rich widows because they would be much less likely to engage in regular and extended interactions with the lender.

However, the root verb drsh does no usually refer to practically applying an idea, but rather to exegetically extracting an idea from a verse.  An SBM Fellow suggested that it refers here to extracting something from an assumed rationale, to being doreshthe taama rather than the kra.

But what is a taama? The word can refer to either a rationale and a reason. There are numerous ways to inflect that distinction. One is that a reason explains why a law was originally legislated, the motive for the law, while a rationale explains why that law still has force today, the justification for the law.

This distinction recalls one made by Rabbi Yosef Dov Soloveitchik in Halakhic Mind.  The Rav argues that one cannot legitimately ask why G-d commanded a particular law, as one can never know G-d’s mind.  However, you can examine the effects of following G-d’s command. Thus, in contrast to Rambam, the Rav would not allow saying that G-d commanded us not to wear shaatnez because idolatrous priests wore shaatnez.  You could however investigate whether not wearing shaatnez increased our sense of distance from idolatrous practice.  You can’t say God that commanded Shabbos so that we would have a day of rest, but you can say that observing Shabbat yields the experience of a restful day.

Applying the Rav to our context, we can say that being doresh taama dikra means that one can or should resolve ambiguities or controversies about Biblical law in favor of the positions that will most likely yield the same result as the law has in the past.  But we should not make the historical-theological claim that this is the reason the law was commanded, and one could not challenge existing law, or develop radically new law, on the ground that the existing law does not fulfill its purpose.

By introducing the Rav’s distinction, we connected the issue of taama dikra to the ongoing discussion in Jewish tradition about the legitimacy and significance of taamei hamitzvot, rationales or reasons for commandments.  Is that discourse necessarily connected to the halakhic process dispute about being doresh taama dikra?  Minchat Chinukh (464) explicitly connects the discourses. He argues that engaging in taamei hamitzvot is an intrinsically hubristic enterprise – how can we know why G-d commanded something? – that can be justified only by the need to determine the halakhah, by being doresh taama dikra. We might also have thought that doresh taama dikra referred specifically to reasons or rationales derived by exegesis of Scripture – kra – but Minchat Chinukh cites examples that seem derived simply from reason or common sense, or what one SBM fellow called “svara.”

We saw that the Talmud itself asserts that there is a dispute between Rabbi Shimon and Rabbi Yehudah regarding whether/when we are darshinan taama dikra.  Minchat Chinukh implies that every one of the myriad instances in the Talmud of rabbis offering rationales for a Biblical law follows the position darshinan. or at least all the instances where those reasons or rationale are not exegetically grounded.  How do we rule?

Beit Yosef says that we rule darshinan, as seems indicated by Minchat Chinnukh.  Rambam, however, seems maddeningly inconsistent.  In various places in the Mishneh Torah he appears to rule like the positions darshinan, never darshinan, anddarshinan only on the basis of exegesis, respectively.

Lechem Mishna to Laws of Lenders and Borrowers 3:1 seeks to resolve these inconsistencies.  He sets up two wholly incompatible resolutions.  In one of these, Rambam rules darshinan, but interprets a Mishnah against the Talmud; in the other, he rules lo darshinan, but contends that Talmudic sugyot have implicitly conflicting understandings of Rabbi Yehuda’s position. Each resolution portrays Rambam’s rulings as motivated by mechanical rules of decision, such as “The law follows an anonymous Mishnah,” or “Talmudic discussions located as commentaries on the Mishnah they interpret take precedence over discussions of those Mishnah cited elsewhere.” Lechem Mishnah is forced to construct this complicated architecture to resolve only a few of the relevant cases in Rambam. It seemed clear that to resolve all the relevant cases by these means would require complexity to a degree that would greatly diminish credibility.

Is there a better way to resolve Rambam?  Rabbi Klapper presented his thesis in the following logical progression:

  1. No Tanna or Amora every explicitly espouses the positions darshinan taama dikra or lo darshinan.The Talmud assigns these positions to Rabbi Shimon and Rabbi Yehuda respectively.
  2. There seems to be no tradition behind these assignments.  Rather, the Talmud suggests that specific positions held by Rabbi Shimon and Rabbi Yehuda imply positions on the broad issues of darshinan.
  3. Without an explicit statement or a clear tradition, there is no way to prove from any specific halakhic position, or set of halakhic positions, that a specific authority held Io darshinan. For example, Lechem Mishnah notes that Rambam in the Mishneh Torah rules like the position lo darshinan as presented in an anonymous Mishnah, but in his Commentary on the Mishnah, Rambam provides a taam to explain that Mishnah!  Any ruling against someone else’s taam may reflect a rejection of their specific rationale, rather than a principled rejection of the relevance of all taams.  The simplest explanation of Rambam is that he rules darshinan in principle, but reserves the right to reject any specific taam that fails to convince him.
  4. Every halakha will eventually encounter new circumstances which present challenges that cannot be resolved mechanically on the basis of precedents or formal rules of authority. In such circumstances, there are three alternatives:
    1. treat every question arising from those circumstances as an unresolvable safek (doubt)
    2. grant one or more halakhic figures unaccountable halakhic authority
    3. resolve the situation by considering the taam behind the law in prior cases

Rabbi Klapper argued that treating whole areas of halakhah as unresolvable will make the unliveable, and that granting halakhic authority without accountability violates “not in Heaven” and the entire nature of the Halakhic process, and is practically dangerous as well.

Therefore, everyone at some point must be willing to doresh taama dikra.  In fact, there is no contrary position in the tradition. By assigning the positions darshinan to Rabbi Shimon and lo darshinan to Rabbi Yehudah, the Talmud meant only that Rabbi Shimon was much more enthusiastic about this legal strategy than Rabbi Yehudah was, not that Rabbi Yehudah would never use it.  It is a “soft” rather than a “hard” machloket.

Rabbi Klapper argued that his position is necessary if we wish to extend halakhah meaningfully into the rapidly developing technological future, such as the realm of genetic editing via CRISPR that is SBM’s specific topic this summer.  The alternative is that more and more areas of life will be walled off from Halakhah.

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The 2018 SBM Shayla – Honoring Parents

by Rabbi Aryeh Klapper

SBM 2018 concluded with a superb series of conversations about the Fellows’ draft responsa to the following case. It was moving and inspiring to see how seriously they took both the issues and each other’s work.  We hope that the case will stimulate further conversations among you, and look forward to sharing the Fellows’ final responsa soon.  Meanwhile, we’re including at the end some guiding questions and approaches drawn from Rabbi Klapper’s draft responsa (note that elements of his draft did not survive the Fellows grilling either).

CASE

Kirk and Gwyneth live in Hollywood, Connecticut.  She is 38, he is 39, and they have three children, girls ages 5 and 7, and a boy age 12.  She is a lawyer working for a large firm that specializes in creating offshore corporations to lower tax liabilities. He is a successful serial entrepreneur currently building a business selling nonmatching pairs of socks to young women (www.dobbysoxers.com).  They identify as Modern Orthodox and keep Shabbat and a kosher home, and hilkhot niddah deoraita.

Gwyneth’s parents, Mel and Natalie, divorced when she was still a baby.  She grew up with her mother Natalie on the Upper East Side, living a lavish lifestyle largely financed by Mel, who never forgave either her mother or her for his overwhelming defeat in divorce court.  Mel and Gwyneth were together every second weekend until her high school graduation, and while the relationship never flourished, it has also never been allowed to lapse completely.  Lately they touch base by phone every few months.  Mel has however shown great affection and generosity to his grandchildren, who call him regularly.  Gwyneth and Natalie talk almost daily, and meet frequently.

Mel is still active in his business and very wealthy.  He has never been terribly interested in Jewish practice, although he is a large donor to local Jewish institutions in his current home in Los Angeles.  He has remarried and divorced several Gentile wives since divorcing Natalie.

Natalie has become gradually more interested in religion, and now identifies as Modern Orthodox.  She is an active member of an MO synagogue, keeps a kosher home, and will not eat in nonhekshered fleishig restaurants or check her email on Shabbat, although she does make and receive phone calls and texts.  For some years, she has been in a relationship with Dustin, and they would like to marry.  However, she never received a get from Mel, and Mel has refused to discuss the matter with her, threatening to block her number if she brings it up again.  The Beit Din of America has issued a seruv against Mel and ORA has organized a demonstration in front of his house.     

Natalie asks Gwyneth to bring the issue up with Mel. Gwyneth says that she has already tried, and Mel ordered her never to mention it again.  Natalie also asks Gwyneth to prevent the grandchildren from calling Mel until he gives the get, and if she can, even to prevent them from answering the phone when Mel calls. 

Gwyneth now comes to you and asks whether she is obligated to bring the issue up again with Mel, or whether she is forbidden to, or whether she can choose whichever she thinks is right.  If the last, she’d appreciate any guidance you can give her.  She asks the same question regarding the grandchildren.  She is explicit that she would rather not interfere in their relationship with their grandfather, which has seemed to her a beautiful thing.  She also mentions that Kirk has been very clear that he would not support allowing the children to “be dragged into this thing between your parents,” and that Kirk has a good relationship with Mel that she is sometimes jealous of.  She is aware that Kirk thinks that her mother is impossible to live with, and that Mel is doing Dustin a favor by preventing Natalie from marrying him.  For that matter, she recognizes that her mother has often been a negative force in her life and in her marriage, and both Kirk and her therapist have told her that some of the things her mother has said to her in recent years amount to emotional abuse and attempts at excessive control.  She recognizes that her mother has always tried to sabotage her relationship with Mel.  At the same time, she has deep gratitude for what she sees as a mostly normal and successful childhood, and believes that the stress of not being able to marry Dustin has exacerbated her mother’s weaknesses of character.         

Kirk’s parents Sacha and Scarlett are still married to each other, and they live a few towns over in New Rochelle.  They have identified as Orthodox and been shomrei Shabbat throughout his life.  However, 10 years ago Sacha was indicted for income tax fraud for systematically taking part of the fees for his wedding catering fees in cash and not reporting them.  The indictment was dismissed after he agreed to pay a very heavy fine.  Kirk and Sacha had previously been close, but Kirk has not spoken to his father since the conviction.  He says that he prefers to keep in his mind the clear image of his father as a profoundly righteous man that he imbibed as a child.  His sense is that his father does not believe that he did anything morally wrong, and regrets only being caught, although he has no indication that his father is taking any legal chances these days. However, Kirk calls his mother every day.  Last week, she told him that his father will be receiving a lifetime service award at his shul’s annual dinner and that both of them would really appreciate it if he would make sure to be there; there seems to be a hint that his father’s health is not perfect. She mentions that they would be willing to pay for his ticket if money is an issue.  He mentions all this to Gwyneth, who opposes his going because “it will send the wrong message to our children.”  Still, he feels uncomfortable and even worried, and they both agree to ask you for advice or psak, whichever you feel appropriate.       

GUIDING QUESTIONS and APPROACHES

WHAT ARE OUR HUMAN GOALS?

  • What interest do we have, if any, in altering the relationship between Kirk and Sacha?  Note that change may strain the status quo between Kirk and Gwyneth.
  • What interest do we have, if any, in altering the relationship between Gwyneth and Natalie?  We may have a long-term interest in improving her capacity to resist Natalie, but there is no reason that process must begin now. 
  • What interest, if any, do we have in altering the relationship between Gwyneth and Mel?
  • We have a clear interest in freeing Natalie.

 WHAT ARE OUR HALAKHIC GOALS?

  • Do we think that Kirk is in constant violation of his filial obligations?
  • Do we think that Orthodox society will be helped by more protests against honoring people such as Sacha?  Do we think that such protests are worth disrupting otherwise healthy families?
  • The second question is really a generalized question of the first.  So we need to start with it, although we may conclude that he is not in violation narrowly, and yet that we have no interest in generalizing his behavior.

IS KIRK IN CONSTANT VIOLATION OF HIS FILIAL OBLIGATIONS?

Two questions:

  1. Is cutting off contact a per se violation?
  2. If yes, has Sacha behaved in a way that removes all the obligations that cutting off contact would otherwise violate?

 

Please email your substantive comments to us, or post on our Facebook page.  Thank you for reading!  Rabbi Klapper’s weekly parshah essay will iyH resume next week.

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Of Marriage and Mikvaot: When Does One Not Need to Listen to Their Parents? (Week Five Summary of SBM 2018)

by Amir Zinkow and Yair Lichtman, Senior Fellows

Up until this week, we spent the summer engrossed in the theoretical realm of Gemara, Rishonim, and codes. Now, we have finally arrived at more practical issues. Ironically, many of the more practical cases of kibbud av va’em focus on those people who are in situations that may result in their being exempt from the mitzvot of kibbud and yir’ah. These include cases of parents who tell their children to do things they do not want to do, how to live their lives, or situations of abuse, R’’L.

A seminal decision comes from the 15th century Italian posek Rabbi Joseph Colon Trabotto (Shu’’t Maharik 366). The question that came before him was complicated, with many aspects, but the part relevant to us is this: If a father forbids his son from marrying a specific woman, must the son obey? Does kibbud av require absolute obedience?

Maharik brings three reasons why a son should not have to obey his father in such a case. First, he notes that the Talmud records a dispute as to whether expenditures required to take care of a parent are borne by the child, or rather by the parent.  The consensus psak is that they are borne by the parent. Maharik argues that if we do not require a child to pay actual money for the care of his father, all the more so do we not require a child to go through the emotional suffering that would result from not marrying the woman with whom he desires to spend his life.

Maharik’s second argument is that, in a way, the father is asking his son to commit a sin. For if the son does not marry this woman, he will have to marry someone else, whom he will inevitably come to resent, and Chazal were careful not to create marriages in which resentment is present  (He derives this from the prohibition against men marrying women they have never seen, although he concedes that this prohibition can be relaxed when the alternative may be not marrying).

Finally, Maharik claims that kibbud av is limited to providing direct physical benefit to a parent. In our case, no physical benefit is present.

In shiur, we noted several interesting aspects of Maharik’s argumentation that may affect the way we posken in other cases. One issue we saw is that his first argument is very easily trivializable. How much emotional distress must children suffer before it is too much and they no longer have to listen to their parents? How do we even quantify this? What if someone just really does not want to take out the trash!?

We also observed that Maharik greatly lowered the standard of what kind of transgression a parent must ask of their child in order to remove the child’s obligation of kibbud. In the responsum, the Maharik uses the language of “nidnud aveirah“.  This phrase is difficult to translate, but indicates an action that is close to sinning but not actually sinning.

Lastly, Maharik made the claim that obeying parents is not part of kibbud or yir’ah; we were unsure whether we were comfortable writing obedience completely out of these mitzvot.

R. Moshe Isserles (Rema) in Yoreh De’ah 241:25 brings down Maharik lehalakhah, ruling that if a father is refusing to allow his son to marry someone, the son has no obligation to obey. However, Netziv, in his Meishiv Davar, reins in this general pesak. He reasons that if the marriage will cause the parent any tza’ar or embarrassment, then the son will be in transgression of the mitzvat lo ta’aseh of “arur makleh aviv v’imo”, “cursed is one who is makleh his father or mother”.  (The word makleh is difficult; one can translate it literally as “lighten”, or else as a lesser form of mekallel, or cursing.) In such cases, the son is obligated to obey the parent and not marry the wife of his choice.

We noted again how difficult it is to quantify tza’ar and embarrassment. When weighing a son’s tza’ar against his father’s, it becomes even more challenging to decide: Whose tza’ar is greater?  We also noted that the prohibition against being makleh parents does not appear in the Talmud, although it does in Rambam (Hilkhot Mamrim, end of Chapter 5), and in any case Netziv expands it well beyond Rambam to include causing parents tza’ar or to indirectly cause them bizayon.

Whether or not one accepts (some or all) of Maharik’s arguments will determine the extent of the obligations of kibbud av va’em in a variety of practical cases. For example, Rabbi Chaim Jachter spoke to SBM about the possible application of harchakot d’Rabbeinu Tam by a son on his father. These sanctions, sometimes imposed by a beit din on a recalcitrant husband to encourage him to give his wife a get, involve the cessation of most forms of social interaction with the husband, including business interaction and casual conversation. May a daughter participate in such sanctions against her father?  Would that extend to refusing direct requests for food or conversation? Rabbi Jachter didn’t issue a definitive ruling on the matter, but it may depend on such issues as whether one must endure emotional pain in the pursuit of this mitzvah, whether the father’s attempts at interaction would be considered “requests to violate the Torah,” and whether maintaining social contact is part of the mitzvah. Rabbi Jachter also raised a potential distinction between teenagers and adult children, considering the effect on both the children and the parents at these varying stages of life.

Another situation in which Maharik’s arguments play out is the case of a mother instructing her son to violate a personal religious practice which falls short of a complete obligation. Shu”t Arugat HaBosem (OC 19), by Rabbi Moshe Greenwald, relates to a man who wants to know if he must listen when his father instructs him to refrain from immersing in a mikveh before prayer. In his discussion, Rabbi Greenwald evaluates whether there is, in fact, an element of mitzvah in such an immersion, and concludes that

כיון דמעולם היה מנהגך כך

א”כ פשיטא דלא גרע ממאי דאיתא ביו”ד סי’ ר”ד דבכל דבר מצוה אם נהג כן ג’ פעמים אפילו לא הוצא בשפתיו צריך לקיים מצד נדר…

Since your practice has always been to do this,

if so it is obvious that this is no worse than what is found in Yoreh Deah 204, [which says] that in every matter of a mitzvah, if one acts in that way three times, even if he did not articulate it with his lips, he needs to fulfill it as a neder…

Rabbi Greenwald allows a person to disobey his parent only after determining that this practice constitutes a mitzvah of sufficient weight.

Shu”t B’tzel HaChochmah (2:55) deals with a case of a son who learns that his father has cancer, whose father asks him to tell him about the diagnosis. Rabbi Betzalel Stern, presuming that it would be bad for the father’s health to hear the news, discusses whether listening to the father’s request falls within the realm of kibbud. He concludes that the son should not tell his father, as he seems to accept Maharik’s claim that kibbud only relates to the father’s personal needs.

This being our final week of shiur, we had a discussion about how these halakhot of kibbud av va’em would be applied given various modern values and realities. For example, given today’s sensitivities towards the emotional pain that come with certain strained relationships, how much do we require a child to go through in order to fulfill kibbud av va’em? We also considered meta-halakhic factors: As focus shifts from the family to the individual, how does this affect our pesak regarding kibbud av va’em? If kibbud av va’em as previously paskened assumed that individual identity (the Self) is at least partially constituted by family membership, and that this halakhah is fundamentally about the creation of a family unit rather than about the fulfillment of the individuals in the relationship, whereas we share modern culture’s position that individual fulfillment is a greater value, and see the self as existing prior to its membership in the family, perhaps this should affect our attitudes towards this mitzvah.  Or perhaps the mitzvah should challenge us to rethink our acceptance of cultural assumptions on these issues.

The modern phenomenon of ba’alei teshuvah raises another issue.  One standard rationale for these mitzvot is that they inculcate respect for the wisdom of the past, and thereby for Jewish tradition.  How do we conceive of and justify these mitzvot for people and societies in which Torah and Halakha are revolutionary instead of traditional? In other words, when children of non-frum parents become frum, they are breaking with tradition – with the way their parents think and act.  How does our tradition deal with this? Are ba’alei teshuvah obligated in kibbud av va’em even though their parents do not keep halakhah?  Does it matter whether the children’s return to observance is experienced as a fulfillment of shared values that the parents did not live out, or as a rejection of parental values?

As we enter our week of teshuvah writing, we are struggling with these questions and more. We hope to consider the cultural, meta-halakhic, and modern realities as we write. Perhaps most importantly, we look forward to weighing the values that underlie all of kibbud av va’em and producing responsa that reflect those values.

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Human Dignity, Human Relationships, and Kibbud Av Va’Em: Week Four Summary of SBM 2018

This week’s summary is by Tamar Yastrab and Tamar Beer, SBM fellows

Rabbi Klapper began shiur by highlighting the ambiguities of the Gemara’s question “eizehu kavod eizehu yir’ah”. Does the question presuppose intuitive definitions of kavod and yir’ah, and seek to differentiate between the two seemingly similar categories? Or, does the question presume no prior knowledge of the categories of kavod and yir’ah, and seek to define them?

It is curious that the gemara lists examples of kavod and yir’ah for parents rather than precisely defining the categories. We realized that all the examples of yir’ah were DON’Ts and all the examples of kavod were DOs. We noted that strangely, obedience was absent from both these lists, even though obedience seemed the central element in many of the narratives about Kibbud Av Va’em we’ve seen in the gemara.

The next step was exploring the various ways in which several of the listed examples can be interpreted. To take one from each list:

Under yir’ah, we find v’lo machriyo =you shall not weigh in on a controversy in which a parent has taken a position. Rashi limits this to the case of a parent who is a chakham (and the subject matter to halakhah). Rav Chananel ben Shmuel contends that the prohibition applies regardless of the parent’s expertise (and to all subjects (or perhaps: all subjects except for halakhah). We asked whether their positions reflect differing standards as to what kind of parent deserves reverence – does kavod require deference to a parent who is a fool? or rather relate to the context and nature of reverence – is casual disagreement about trivia an act of irreverence?

Under kavod, we find maakhilo– causes him to be fed. Does this require the child to provide the parent with food, to personally serve the parent food (or to ensure that the parent is served by a competent butler)? The same issue arises with regard to all the other listed examples of kavod – do they require provision of goods or rather of services?

This issue may be at the core of the the question the gemara next poses: mishel mi =who is responsible for the financial costs of kibbud (and perhaps yir’ah)?

Our two options are either mishel ben =kavod must be financially paid for by the child, or else mishel av =the financial costs of kavod are borne by the parent. It is tempting to assume that the mishel ben position demands more of the child than the mishel ben position. However, this may not be so, in fact the reverse may be true. If the child is exempt in terms of monetary obligations, it must be that the obligation is on actions. This may imply that the child cannot outsource his obligations to hired others if it becomes too onerous, and also that he is expected to contribute his time and his patience. Another possibility is that the child may be obligated to provide both money and service.

The gemara challenges the mishel ben position by citing a beraita which rules that a child can feed their impoverished parent with food set aside as ma’aser ani (=the poor tithe given in the third and sixth years of the shemittah cycle). If kavod imposes a financial obligation on the son, satisfying kavod from a pool designated for the poor generally may be considered illegal “double dipping”, since it diminishes the total resources set aside for the class of poor people.

The gemara answers that the obligation of kavod can be satisfied with the parent still poor and still hungry. At that point there is no double dipping involved in feeding the parent with maaser ani. However, the beraita concludes by citing Rabbi Yehudah as declaring that “A curse should fall on one who feeds their parent maaser ani”. Since kavod has been satisfied, why the curse? The gemara answers that “Nonetheless, it is degrading”. If it is degrading, how can the obligation of kavod have been satisfied?

Rabbi Klapper suggested, following an idea of Rav Hershel Schachter and building on an answer given in shiur by Amir Zinkow, that perhaps parents are owed not only the special obligation of kibbud av va’em, but also that the general obligation of kavod habriot (=human dignity) has particular manifestations in the relationship between children and parents. While this standard obligation of kavod applies equally to every person, what is considered to be kavod can vary depending on the relationship with the person.

This can explain why one may not use maaser ani to feed a parent even after the obligation of kibbud av va’em-has been satisfied. Perhaps receiving charity in the context of a parent-child relationship is degrading, and as such, would be considered a deficiency in the baseline level of kavod which every person deserves.

The gemara next cites a beraita in which Rabbi Eliezer answers the question “How far does kibbud av v’em extend” by citing the case of a parent throwing a wallet full of money into the sea. The child must not humiliate the parent. The pronouns of the statement are ambiguous- כדי שיטול ארנקי ויזרקנו לים בפניו ואינו מכלימו. Whose wallet? Even if the child’s wallet, must the parent indemnify the loss if we hold mishel av? If the wallet belongs to the parent, or if the parent must indemnify the child, it may be hard to understand why this case would be used as an extreme case of kibbud. Rabbi Klapper asserted that in fact children do often develop a sense of entitlement to their parents’ money, and become angry if parents spend money on their own pleasures that diminishes the child’s financial expectations.

We next delved into various rishonim.

The Sefer Charedim believes that the chiyyuv is extremely far reaching, comparing the parent-child relationship to that of a king and servant. Sefer Charedim suggests that the child is obligated in all demands of the parents, barring only a parental request for a child to violate halakhah. He also contends that kavod is intended to express and/or inculcate ahavah =love.

The Ramban suggests that the core chiyuv of kibbud av va’em is providing the parent הנאה =benefit. He is therefore compelled to explain various cases of obedience as providing psychological benefits for the parent, but he is unwilling to say that obedience per se gives the parents a relevant benefit.

The Sefer HaChinuch explains that the obligation of kibbud av va’em is meant to imbue children with a sense of gratitude for those who provided for them”.

The Sefer Yereim suggests that there is no set amount required for kibbud av va’em, and proposes that the more careful one is to fulfil this command to better. We noted that this seemed odd both because kibbud av va’em is not listed among the mitzvot that “have no measure”, and because the case of maaser ani indicates that there is in fact a set requirement.

Rabbi Klapper suggested that the halakhic portions of the text which delineate specific requirements can be understood in conjunction with the heavily midrashic stories that illustrate great acts of kavod by drawing a distinction in kibbud av va’em. The standard level is chiyyuv =obligation, relating the the examples of kavod and yir’ah outlined in the beraita and perhaps to the more expansive interpretations of the rishonim. However, inherent in the mitzvah is also a level of kiyyum, where the child may act beyond what she or he is called upon to do. In this regard, we can comprehend the extreme narratives of אתא רב דימי and רבי אבהו (Kedushin 31.) as going above the letter of the law.

We discussed other textual oddities present in the gemera and rishonim. The gemara exempts women from kibbud av va’em because of רשות אחרים. What does רשות אחרים mean, and how could it exempt women from an unambiguous halakhic obligation? (We noted Rabbi Mordechai Willig’s position that the exemption is socially contingent.)

Tzipporah Machlah Klapper suggested that perhaps from the plural אחרים we can infer that the gemara was talking about her children, rather than her spouse. Rabbi Klapper believes that this constraint points to a larger limitation on kibbud av va’em. Kibbud av va’em is one relationship that at times overrides some relationships (Tosfot- אם יעסוק בכבוד אביו הלא אבידת חבירו קודמת כדאמרינן באלו מציאות (ב”מ דף לב.), yet can also be overcome by other relationships. Perhaps the marriage relationship supersedes the parental relationship halakhically. This suggests that husbands as well must prioritize their marital relationship over their obligations of kibbud av va’em where those conflict.

Another interesting observation we made was that though the Rambam brings many of our sugyot down to halacha, he never mentioms the idea שלשה שותפי באדם, that G-d and parents are partners in each human being. How could he omit one of the most foundational text related to kibbud av va’em? (Note that Tur promptly reinserts it in his own code.) Perhaps for the Rambam, kibbud av va’em is has no emotional bearing on the parent-child relationship and really addresses the child and Hashem alone. Thus Rambam explains that a child should remain silent and respectful even when their parents publically humiliate them is because וְיִירָא וְיִפְחַד מִמֶּלֶךְ מַלְכֵי הַמְּלָכִים שֶׁצִּוָּהוּ בְּכָךְ , he must be in terror and fear of the King of Kings Who has commanded him to show kavod to parents. In stark contrast to Sefer Charedim, he says nothing about the child’s emotional relationship to the parent. For Rambam, at the root of kibbud av va’em is truly kibbud Shamayim. Yet perhaps he goes too far in removing the human relationship from the equation, and his position leaves too much space for abuse.

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What Does Kibbud Av Va’Em Actually Mean? (Week Three Summary of SBM 2018)

by Eli Finkelstein and Steve Gotlib, SBM Fellows

There are four pesukim in the Torah from which we derive Mitzvot regarding Kibbud Av Va’Em (KAVE):

כַּבֵּד אֶת-אָבִיךָ, וְאֶת-אִמֶּךָ–לְמַעַן, יַאֲרִכוּן יָמֶיךָ, עַל הָאֲדָמָה, אֲשֶׁר-יְהוָה אֱלֹהֶיךָ נֹתֵן לָךְ. (שמות כ:יא)

אִישׁ אִמּוֹ וְאָבִיו תִּירָאוּ, וְאֶת-שַׁבְּתֹתַי תִּשְׁמֹרוּ:  אֲנִי, יְהוָה אֱלֹהֵיכֶם. (ויקרא יט:ג)

וּמַכֵּה אָבִיו וְאִמּוֹ, מוֹת יוּמָת. (שמות כא:טו)

וּמְקַלֵּל אָבִיו וְאִמּוֹ, מוֹת יוּמָת. (שמות כא:יז)

 

We spent this week trying to figure out what we could learn from these pesukim. How do they relate to each other, and to other mitzvot in general?

We began our discussion through the lens of the sugya about אתי עשה ודחי לא תעשה, the discussion about whether the fulfillment of a Mitzvat Aseh can override a prohibition (Yevamot 5B-6B).

The Gemara intends to prove that an Aseh can override a Lo Taaseh whose punishment is Karet by bringing in KAVE. If not for Vayikra 19:3, which is interpreted as subordinating KAVE to Shabbat because Shabbat represents Kevod Hashem, we would have thought that honoring one’s parents could supersede the prohibition of Shabbat.  We would then have generalized this to mean that all Asehs override all prohibitions involving karet (when the Aseh can only be done by violating the prohibition).

However, the Gemara rejects that claim by saying that even before the verse, we would never have thought that KAVE could override all Shabbat prohibitions.  Rather, we would have thought this only about the prohibition against directing animals (mechamer), which is not punished with Karet.  Ie, the fact that in the end KAVE does not override Shabbat also cannot teach us a general rule that Asehs don’t override override Lo Taasehs.  This is because we  would usually be breaking the Lo Taaseh only for a Hechsher Mitzvah of KAVE, and not for the Guf Mitzvah, which would be worth violating Shabbat for.   (The rishonim discuss what to do about the cases where the violation of Shabbat would directly benefit the parent, and why simply obeying a command to be mechamer wouldn’t directly fulfill KAVE even if the physical benefit was indirect, e.g. by having the animal bring desired foodstuffs.)

However, a similar Gemara in Bava Metzia offers a different interpretation. The reason why KAVE might be able to override a Lo Taaseh with an Aseh is because KAVE is analogized to Kibbud Hashem.  (The Yerushalmi has a version in which KAVE is shown to take precedence over Kibbud Hashem in some ways.)

So we see two different views of KAVE – one in which it has less power than other mitzvot, and one in which it has more power.

YU Rosh Yeshiva Rabbi Michael Rosensweig formulates this dichotomy by stating “Kibbud av va-eim, then, is governed by a fundamental tension. On the one hand… it is manifestly subordinate to other mitzvot because it cannot compete against kavod Shamayim — kulkhem chayavim bikhvodi. But, on the other hand… kibbud av va-eim is superior to other mitzvot because it is analogous to  kavod Hamakom — hukash kevodam le-kavod ha-makom.” 

There are two ways to resolve this apparent conflict. The first is by R. Rosensweig, who cites the opinion of the Baalei HaTosafot on Yevamot 6a. The Tosafot write that KAVE is a fundamentally extreme mitzvah which can never be equal to others (though it can in theory either supersede or be subordinate to them).  Once the Talmud concludes that KAVE cannot displace a lo taaseh ve-taaseh it must be the case that it cannot displace even an ordinary lav.

But how can this be the case given the unique interplay between KAVE and the honor of Heaven that we learn from the various pesukim which give it authority?

R. Rosensweig answers this question by stating that “A child’s first interaction with the Ribono Shel Olam is through his parents, through the values and beliefs and through the traditions they bequeath to him… it is in the furthering of kavod Shamayim that the authority of a parent — and thereby the imperative of kibbud — is firmly rooted.”

If this is the case, it makes sense why KAVE can not trump kavod Shamayim. If parents are teaching their child to live a life of Jewish values, the honor that they are due is due to them channeling the honor of Heaven. However, according to R. Rosensweig, “if a parent competes against kavod Shamayim, when he tests his authority against His Authority, he severs his own authority from its life source and is left pathetically paralyzed and pitiably feeble.” Any demand of a parent to violate any command of the Torah would then be meaningless as they are no longer inspiring kavod Shamayim and no longer have any authority to rely on in order to grant them honor.

In R. Rosensweig’s view KAVE serves the exclusive purpose of being an instrument to teach kavod Shamayim. If it is accomplishing this goal, it is all-powerful. If it is not accomplishing this goal, it is utterly powerless.

A second approach was offered by R. Klapper in Shiur this week. First, we must understand the connection between KAVE and Kibbud Hashem as a metaphor. Then we need to interrogate the metaphor: do we take it seriously as a Halakhic concept, or do we treat it as merely a literary comparison which is not intended as an overall equation?

To answer this question, we must use the same Tosafot on Yevamot 6A, DH Nigmar MeHacha DeLo Dachi, cited by Rav Rosensweig:

כיון דגלי לן קרא דלא אלימא לן טעמא דהוקש כבודם לכבודה מקום דלידחי, א”כ אפילו לאו גרידא לא דחי, דמכלאים לא מצי גמיר משום דכיבוד הוי הכשר מצוה:

Once the Torah has revealed to us that the rationale that KAVE is analogized to Kevod HaMakom cannot push aside a prohibition involving karet, we realize that it cannot push aside even an ordinary prohibition.  (This is so even though other Asehs can push aside such prohibitions, which is derived from the rule that the mitzvah of tzitzit overrides the prohibition against wearing shaatnez,) because KAVE is weaker than tzitzit because it is only a Hekhsher Mitzvah.

The way we understood this line is that since the Gemara in Bava Metzia does not see the connection of KAVE to Kibbud Hashem as having sufficient legal meaning to override a prohibition involving karet, we see that it has no legal significance at all, at least in terms of determining a hierarchy of mitzvot.

In addition to this conceptual debate,  we learned the quintessential sugya in the Gemara regarding KAVE, on Kiddushin 29A-32A.  Among the topics we covered was a discussion of which parent one is required to prioritize Kibbud for. The Gemara in 31A states that one is Chayav to honor his father before his mother, since his mother is also Chayav to honor her husband. In addition, we see a Halachah that a woman is only Chayav to honor her parents when she is not married, but that her obligation of KAVE is in some way bounded and limited by an obligation to honor her husband.

On this topic, we read an article by YU Rosh Yeshiva Rabbi Mordechai Willig in Beit Yitzchak. There, he methodically showed that all the manifestations of a wife’s chiyuv to honor her husband are sociologically determined, not eternal.  Nowadays, they do not apply, and a husband who insists on them is violating communal and relational norms rather than enacting them.  We noted that the gemara does not provide any legal basis for such an obligation.  Following this argument, a married woman nowadays is fully Chayav in Kibbud Av Ve’Em, and a child would not automatically honor the father first. This argument will be important for our coming discussion of KAVE in cases of parental conflict.

In the coming weeks, SBM 18 will continue to dive into the various mekorot regarding Kibbud Av Ve’Em, and how various halachot are applied to real-life situations.

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