Category Archives: Summer Beit Midrash

Is Halakhah Comprehensive? Week Six Summary of SBM 2019

by Tiferet Adler and Tzipporah Machlah Klapper, SBM fellows

How should halakhah deal with categories or ways of being which have only recently come into existence? In such areas, we must decide how far afield to search for precedents, or how willing we should be to create halakhah without clear legal precedents.  As we prepared for writing our teshuvot on germline editing, Rabbi Klapper laid out the following framework of approaches:

  1. Is this an area which should be governed by halakhah?
    1. if yes, what method or methods should we use to create or discover the relevant halakhah?
    2. if no, we have four options:
      1. We can accept that this is simply an area over which halakhah has no direct control, and grant authority instead to some other system or law or values. For example, we could invoke the principle of dina demalchusa dina. (=the law set by the governing authority is the law). Where this is invoked, halakhah lends its religious authority to the decisions and legislation of the governing authority. 
      2. We can suggest that concrete legal rulemaking is the wrong religious modality here, and instead develop a religious approach through the lens of aggada or hashkafah,
      3. We can refer the issue to people that we and/or our community recognize as gedolim (great halachic decisors or Torah scholars), on the ground that
        1. The halakhah already exists, but gedolim are the only ones qualified to discover it, or
        2. The halakhah does not exist, and gedolim are the only ones qualified to create it.
      4. We can do our best to make up our own minds about the issue, by asking either 
        1. What would the gedolim say if they were compelled to address this issue? or
        2. What is our best sense of what our tradition taken as a whole has to say about this issue? or
        3. What is the halakhic category most analogous to this issue, however far fetched the analogy?

SBM explored these options by studying a) past halakhic responses to genetic engineering; b) the state of the halakhic art with regard to transgender people; and c) past approaches to the general question of whether halakhah as we have it should be regarded a complete and comprehensive system for religiously regulating (at least Jewish) life, or rather must be supplemented by creating new halakhah or giving religious authority to other modes of regulation. These materials gave us the sense that there were precedents for all positions within the above framework.  For example, in the realm of genetic engineering, Rav Yuval Cherlow’s articles about using PGD (preimplantation genetic diagnosis) to select the sex or other traits of the embryo to be implanted argued forcefully that there are areas properly outside the control of present religious authority, while Rav Aviner’s response to a hypothetical “religiousness gene” defined the area as primarily hashkafic and therefore subject to the exclusive authority of gedolim.  Rav Cherlow by contrast argues that where ordinary halakhic methodologies cannot apply, we should often resort to the intuition of the community.

In 2004, Rav Idan Ben-Efrayim published Dor Tahapuchot, a comprehensive guide to an Orthodox approach to the halachic status of transgender people with regard to gender. Rav Ben-Efrayim states in a preface that he is writing the book as a placeholder until the gedolim speak, but as of this writing almost nothing has been published by poskim of greater stature, and most popular works simply cite Dor Tahapuchot. In practice, Rav Ben-Efrayim’s work has defined the Orthodox approach to this area for 15 years. Rabbi Klapper pointed this out as a way of showing us the dangers of assuming that someone else will supersede your work – what you write may have more influence than you expect or intend, and accordingly it’s important to always take responsibility for your Torah.

We also looked at the Chazon Ish’s critique of a comment by the Shakh (Choshen Mishpat 73:39). The Shakh argues that dina demalchusa dina grants halakhic authority only to laws which a) are made either for the legitimate benefit of the government or else for the benefit of the citizenry, and b) apply to issues regarding which there is no explicit halakhah. This seeming limitation on dina demalchusa is actually a radical statement about the nature of halakhah. According to the Shakh, halakhah can have gaps. There are places where halakhah has nothing to say, and to fill those gaps in, we coopt the dina demalchusa

Note however that for Shakh these gaps may be temporary and accidental. If the Jews had full political autonomy, he might argue for filling these gaps by analogy or via the authority of gedolim. His distinction between “implicit (אינו מפורש)” and “explicit (מפורש)” halakhah might even be compatible with a claim that those gaps can be filled by discovering rather than creating halakhah.  

The Chazon Ish (Likkutim Nezikin 16) seems to read Shakh as contending that only newly created halakhah could fill those gaps. He responds by vehemently denying that there are any gaps. The idea that Torah is somehow incomplete is anathema to him. 

Everything can be found in Torah, so 

ולשון הש”ך ז”ל קשה לכוין

שאין חילוק בין דין מפורש לאינו מפורש

ואין כלל דין שאינו מפורש

שהכל מפורש בתורה.

The language of the Shakh is difficult to find meaning in, 

because there is no difference between a law which is explicit and one which is not explicit, 

and there is no law at all which is not explicit

because everything is explicit in the Torah

Chazon Ish presumably believes that one looks for the halakhah most closely analogous to an apparently new question.

In a letter to Rav Tzvi Hirsch (Maharatz) Chajes reviewing his book Torat haNeviim, the Chasam Sofer (Teshuvot Chasam Sofer 1 OC 208) presents an approach that differs from both the Shakh and the Chazon Ish. While he, like the Shakh, acknowledges that there are gaps in halakhah, he does not see them as necessarily accidental.  Chasam Sofer believes that halakhah does not seek to be a comprehensive code of civil law; rather, the Torah superimposes specific regulations on a general and comprehensive system of natural justice.

ומסתמא, גם אילו לא ניתנה תורה, וקודם מתן תורה, 

היו דינין ונימוסים, וכל מלך במשפט יעמיד ארץ . . .

אבל מה שלא הזכירה תורה, כגון היזק שאינו ניכר – 

לא הותר חלילה, דרכיה דרכי נועם

אלא איננו בכלל משפטי תורה, 

והמלך וסנהדרין יראו לפי המקום ולפי הזמן, ואין להתורה עסק בזה, 

והוא הדין ומכ”ש להסיר המזיקים הרבים, הרוצחים בלא עדים, וכדומה – 

דרכיה דרכי נועם וכל נתיבותיה שלום.

Presumably, even had the Torah not been given, and before the Giving of the Torah, 

there were laws and enforceable norms, and every king with justice sustained the land . . .

but what the Torah doesn’t mention, such as nonvisible damage,

was not, Heaven forbid, permitted, her ways are ways of pleasantness,

rather it is not within the category of Torah regulations,

and the king and Sanhedrin evaluate in accordance with the place and time, but the Torah has no involvement in this,

and the same is true all the more so with regard to removal of public menaces, or those who murder without witnesses, et al,

her ways are ways of pleasantness and all her paths are peace.

Where halakhah does not provide specific regulations, the Torah authorizes kings and/or the Sanhedrin to make and implement the laws necessary to achieve justice. Damaging action which are not explicitly forbidden by the Torah (for instance, damage which is not visible) are not therefore permissible; rather, “it is not within the laws of the Torah, and the king and Sanhedrin should decide (lit. see) in accordance with the place and time, and the Torah has no involvement in this.” 

By “Torah” and “laws of the Torah,” Chasam Sofer may mean something similar to the “explicit law” of the Shakh. The animating principle behind this is the verse he cites twice: Its ways are the ways of pleasantness. In other words, there are areas in which halakhah provides no direct guidance, and Torah values and social considerations, which are presumed to accord with natural justice, must guide the decisions of political authorities.

Is germline editing, via CRISPR or subsequent technologies, an area which halakhah should be stretched to cover? Is it best left to gedolim to decide in accordance with extrahalakhic norms, or to secular authorities or democratic processes? Please look forward to the SBM sh’eilah and teshuvot. 

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Can There Be Halakhah Which Does Not Come From Torah? Week Five Summary of SBM 2019

by Tiferet Adler and Tzipporah Machlah Klapper, SBM Fellows

Is halakhah derived entirely from the Torah, or does halakhah’s understanding of Torah presume and depend on the existence of halakhic obligations that preceded the Revelation at Sinai? Rav J. David Bleich takes the latter position when discussing whether Halakhah imposes limits on the development and use of biotechnologies such as CRISPR. Even more radically, Rav Bleich argues that Halakhah incorporates such “natural law” obligations even when they are not explicitly mandated by the Torah. Let us be clear that we are not discussing the Seven Noachide Commandments, each of which Chazal derive from the Torah, but rather a set of unwritten obligations which can help us derive meaning from Torah.

Rabbi Bleich’s core argument begins from Talmud Chagiga 12a:

ואמר רב יהודה אמר רב:

בשעה שברא הקדוש ברוך הוא את העולם, היה מרחיב והולך כשתי פקעיות של שתי, עד שגער בו הקדוש ברוך הוא והעמידו,

שנאמר עמודי שמים ירופפו ויתמהו מגערתו,

והיינו דאמר ריש לקיש:

מאי דכתיב אני א-ל ש-די?

אני הוא שאמרתי לעולם די.

Said Rav Yehudah said Rav:

At the time that the Holy Blessed One created the world, it was expanding like two spools of wool, until the Holy Blessed One expressed anger at it and halted it,

as Scripture says: “The pillars of Heaven will soften and be astounded because of His anger.”

Resh Lakish said:

What is the meaning of “I am the Almighty God (E-l Shad-dai)” (Bereishis 17:1)? It means: I am He Who said to the world “enough/dai.

The Beis Halevi (Bereishis 17:1) offers a creative reading of this gemara. He argues that G-d stopped the world from developing infinitely both quantitatively and qualitatively. Before G-d stopped it, the world would have continued toward infinite quantity and quality. By saying “stop,” G-d prevented the development of the world toward perfection. This enabled Him to ennoble man as His partner in creation, charged with completing His own deliberately “unfinished” k’b’yakhol creative activity. The world thus exists in a constant state of “arrested development,” waiting for us humans to perfect it by engaging in agriculture, breadmaking, and other creative endeavors. An example of this (and perhaps a symbol) is that rather than creating man circumcised, God willed man (starting from Avraham Avinu) to circumcise himself. In light of this, when God tells Adam in Bereishis 3:19: “by the sweat of your brow shall you eat bread,” He is providing Adam with a matir, a license to improve on Creation, rather than just cursing Him.

Now, perhaps the most frequently raised ethical challenge to the use of CRISPR technology is that it seems to violate a fundamental intuition about the difference between the human and the Divine: it seems to allow human to “play G-d.” But is that intuition correct? Does Judaism see “playing G-d” as fundamentally wrong? Rabbi Bleich uses the Beis Halevi to argue that man has a Divine mandate to “interfere” in the natural order of things and to partake in its completion. In other words, we are not only allowed but obligated to “play G-d,” But Rabbi Bleich then argues that there are nonetheless halakhic limits to the development of biotechnology. These limits emerge not from the Halakhah derived from Torah, but rather from the natural law obligations that the Torah assumes and that Chazal use when interpreting Torah.

Rav Bleich concedes that he knows of only one place where Halakhah explicitly incorporates such an obligation. On Sanhedrin 74a, Rabbi Yochanan says in the name of Rabbi Shim’on ben Yehotzedek that a rabbinic vote declared that one should violate all Torah prohibitions to save one’s life, except for three: avodah zarah (idolatry et al), gilui arayot (adultery et al), and shefikhut damim (bloodshedding). The gemara asks: How are each of these exceptions derived from the Torah? A verse is found for avodah zarah. Another verse is found that compares gilui arayot to shefikhut damim. But how is shefikhut damim itself derived? The gemara answers that we don’t need a verse for this; it is derived from a svara, a principle derived by reason alone: mai chazis de dama didach sumak tfei, = What makes you say that your blood is redder than his?

The point is not just that we derive the law regarding bloodshedding from svara. Rather, his point is that we interpret the verse which compares gilui arayot and shefikhit damim on the basis of that svara. This shows that we may be able to show the existence of natural law obligations not only through their direct incorporation into halakhah, but also through their indirect effects on our interpretations of Torah.

Rav Bleich contends that Chazal’s interpretation of verapo yerapei (Shemos 21:19) is an example of such an indirect effect. Bava Kama 25a tells us that this verse gives a doctor reshut = permission/authority to heal. Yet if the Beis Halevi is right, and man is a partner in creation, what is the hava amina here? Why do we need a Biblical verse to give doctors dispensation to heal?

Tosfos suggest that that healing the sick might be seen (nir’eh) as contradicting the gzeiras hamelekh, G-d’s decree of illness. Even if human are partners in the fulfillment of G-d’s plan, we are not authorized to contradict His will. Illness is not something left incomplete in creation, but rather a present action of G-d. Without the verse, we might have thought that healing those He made sick contradicted His will; now we know that healing actually fulfills His will.

The underlying principle here can be illustrated via one of the rationales offered by Rav Mosheh Feinstein to explain the consensus psak that when dehydration poses a threat to life on Yom Kippur, there is no obligation to use medical technology to hydrate rather than drinking. Why? Rav Mosheh suggests that using medical technology to avoid transgressing a prohibition does not constitute healing, and therefore is not permitted by rapo yerapei. But why should it be forbidden in the first place?

Rav Bleich suggests that Tosfos is fundamentally correct that the human license to engage in creation allows us only to further His will, not to oppose it. Verapo yerape permits healing even though we might have thought it a contradiction of His will. That we need a verse to permit healing demonstrated that we have a prior assumption that we are forbidden to oppose His will, even for what seem to us constructive purposes. That prohibition has no Biblical source; it is derived from svara.

Man, according to Rav Bleich, has license to bring to culmination the process of creation, to act in accordance with that Divine mandate, but he is halakhically forbidden to attempt improving upon the natural order except to heal. This is especially true of improving our species biologically rather than morally. CRISPR should therefore be permitted for the purpose of eliminating disease, but in all other cases, Rav Bleich sees it as a violation of the natural law principle incorporated by Halakhah that we must not thwart the Divine plan of creation.

Rabbi Bleich offers one model for dealing with moral questions that are apparently outside the purview of halakhah; incorporating a priori natural law principles into halakhah. But there are many other models for creating halakhah where none exists, or seems to exist. We can admit that halakhah does not cover all moral questions, and look for other meaningful modes of response. We can look for extrahalakhic authorities, such as the law of the human society we live in (dina demalchusa), or acknowledge natural law principles without claiming that they are part of halakhah. We can grant exclusive authority to the greatest Torah scholars of the day to create or discover halakhah without reference to ordinary legal procedures. We can grant democratic authority to the observant community, or give all halakhic decisors the right to derive halakhah from Torah sources normally considered apart from law.

In next week’s essay, we’ll show how halakhists over the past several centuries have developed and applied these models in spheres such as genetic engineering, the halachic treatment of transgender people with regard to gender, and political science.

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Technological Innovation: Caution or Celebration? (Week Four Summary of SBM 2019)

by Zachary Orenshein, SBM Fellow

Does halakhah place limits on technological innovation?

Some rishonim may imply such limits in their interpretations of the various Torah prohibitions under the rubric kil’ayim, namely shaatnez (interweaving wool and linen), crossbreeding animals, sowing the seeds of different plants together, and using different animals to drive the same plow. These prohibitions are listed together in Vayikra 19:19 following the phrase “you must observe my chukim.

Rashi understands chukim to be Divine fiats, and declares that there is no rationale other than Divine command for any of the prohibitions of kil’ayim. Ramban objects that Rashi has no Talmudic basis for this assertion; the source Rashi cites at best makes such a claim only about shaatnez. Moreover, he contends that even regarding shaatnez, the Talmud claims only that there is no revealed or humanly intelligible rationale, not that there is no rationale at all.

Ramban then offers a rationale which relates to scientific innovation: mixing these individual creations weakens the force of the initial creation (makchish b’koach maasei Bereishit). This argument seems to assume that God created the world with a certain amount of species, each of which had an intended role. When humans crossbreed plant or animal species, they mess up the ideal of how God intended the world to run. This prompts us to ask: Are any of our modern scientific innovations, such as gene editing, messing with God’s intention for the nature of the world?

One objection to applying Ramban now is that his opinion contradicts the accepted modern scientific view of the world, which sees evolution as constant and extinction as common. To what extent it is possible to take halakhic explanations rooted in a scientific worldview much different from our own, and apply them to new circumstances? Should we instead refuse to apply them even to old circumstances, because of our new understandings?

Alternatively, perhaps we can separate the still-relevant religious assumptions and values undergirding halakhah from the outmoded scientific thinking that generated specific regulations. Ramban could then be taken as precedent for regulating technological innovation lest one come to be makchish b’koach maasei Bereishit, even if our sense of maasei Bereishit would be unrecognizable to him. 

Rabbi Eliyahu Mizrachi finds Ramban’s rationale unconvincing. He argues that because the Torah presents the prohibitions of kil’ayim as a group, they must share the same rationale. But mixing seeds does not change the plants themselves, unlike crossbreeding animals, so Ramban’s rationale cannot apply to it! Therefore, all we can say is that God does not like mixtures, or at least certain mixtures. We can’t know why.

How rational we deem these laws may determine how far we can apply them. If we can locate a rationale, then the prohibition may apply more generally to areas of modern science which similarly veer the world from its original Divine plan. Without a rationale, there is nothing upon which to generalize the law. It would apply only to the specific cases the Torah describes.

Under Rashi’s understanding of shaatnez, there is no basis for prohibiting any other fabric mixtures. By contrast, Mizrachi can be read to say that God generally disdains mixing things, which would have broad implications for scientific innovations. However, he plainly cannot mean that G-d disdains all mixtures! No one has ever suggested that G-d bans making flour and water into dough, for example. Since Mizrachi offers no parameters for determining which mixtures G-d disdains and which He doesn’t, we should probably avoid any applications that go beyond the narrow framework of the Biblical prohibitions. Ramban does provide a parameter – makchish b’koach maasei Bereishit. To the extent we understand what he means, he can become a precedent for limitations on technological innovation.

Another mitzvah which can be used as precedent for setting such limits is the prohibition against kishuf, usually translated as witchcraft. Although “witchcraft” for many in the modern world conjures up a very particular image which has little to do with science, Sefer HaChinnukh defines it more broadly. In his definition, witchcraft is the practice of mixing things with different natures so as to cause damage in the world. Under this definition, it is possible that the prohibition of witchcraft includes scientific innovation which turns out to have negative consequences for the world. This could have radical implications, such as banning Jews from experimental science, as it is almost impossible to know definitively beforehand whether new initiatives will be harmful once in practice.

However, like Ramban’s position regarding kil’ayim, Sefer HaChinnukh’s position on kishuf seems to be rooted in an outdated philosophical position. Modern philosophy does not speak of each species as having a particular nature which can be violated by changing the characteristics of its members, for example via crossbreeding. Rather, we see everything that exists in nature as natural, and our definition of a species must account for all variations present in any member of that species. It is true that most calves have one head, but there exist naturally occurring two-headed calves; therefore, a cow must be defined as having one or more heads. Moreover, we are aware that every species is constantly evolving, In addition, Sefer HaChinnukh describes as part of the problem that there are specific celestial powers in charge of each type of creation that become lost when these creations are mixed. Modern conceptions of metaphysics generally regard such intermediate powers as unnecessary to explain the world and therefore, by Occam’s razor, as nonexistent.

Yet there may still be a way to preserve Sefer HaChinnukh’s position in this halakhic discourse. We can ask, “What would Sefer HaChinnukh say if he accepted a philosophy and metaphysics we currently see as viable?” Perhaps his position can still generate an obligation to diligently monitor scientific innovation for possible negative outcomes down the line. But do we want such an obligation? Imposing halakhic limits on technological innovation would limit Jews from being participants in these advances, while likely having no overall impact on the world. Sefer HaChinnukh’s position seems to require the equivalent of the Shabbos Goy phenomenon in the world of innovative science. We would leave all the actual experimentation and innovation to nonJews, and only have Jewish scientists follow suit if we see that the results of the field are not damaging. 

This makes little sense in an interconnected world, where the scientific activity that occurs in the general world has direct effect on the Jewish communities. Furthermore, if we believe that halakhah has an important moral contribution to the universal discourse on these issues, we must consider that the real world effect of Sefer HaChinnukh would be to prevent halakhically concerned scientists from having any voice in innovative fields.

Perhaps, then, the proper application of Sefer HaChinnukh today is not to ban Jews from participating in the production of innovative science – quite the opposite! It would call for Jews to enter these fields and provide a voice for practical caution and concern for unintended consequences, and provide a brake on risk-taking in service of ambition. 

Maharal offers a completely different approach. His starting point is a Midrash in Bereishit Rabbah which says that God crossbred a horse and donkey to create a mule on the first Motzaei Shabbat of creation, even though the Torah subsequently forbids Jews to crossbreed animals. He concludes that God must be wholly supportive of even the forbidden crossbreeding which the Torah prohibits. If Ramban thinks the laws of nature constrain us, Maharal believes they create a space for human initiative; it is just that Jews, for reasons specific to their nature and mission, must observe a certain set of narrow restrictions. Outside these specific prohibitions, Maharal should be ardently in favor of Jewish participation in emerging fields of scientific innovation as ideal expression of human creativity. 

Where does this leave halakhah, and the poskim charged with deciding, discovering, or creating it? Our divinely rooted tradition could reasonably be expected to provide guidance for the scientific community to navigate innovation ethically and responsibly. Yet, though the debate outlined above speaks to today’s circumstances, it does not sound like standard halakhic discourse. Its modern applications sound much more like mussar. Is “Don’t be too ambitious” and “Consider the consequences” all that poskim have to say by way of guidance to the emerging field of gene editing? As halakhah so often makes evident, ritual followed by a committed community is powerful and enduring. Does halakhah have nothing more specific to offer?

Perhaps all we have to offer is the importance of balancing a drive for creation with caution about consequences. Or, perhaps we can find resources within our tradition that will enable us to construct more precise formulations and concrete rules. How compelling must those resources be? How and on what basis should those rules be given authority? To what extent should halakhah and halakhists seek to participate in a universal ethical discourse, rather than focusing exclusively on guiding the practical decisions of Jews? How we answer these questions is vital not only to our responses to specific biotechnological innovations, but to the general and pressing question of how our live ancient tradition can thrive in a world of rapid technological progress and social change.

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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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