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Must Children Presume Parental Penitence? (Week Two Summary of SBM 2018)

by Zachary Ottenstein, SBM Fellow

A beraita on Talmud Kiddushin 22b declares that if a man and woman agree to marry “on condition that he is righteous”, they are married, since he may have “thought of repentance” (שמא הרהר בתשובה).  Lechem Mishnah (Ishut 8:5) and many subsequent scholars see this text as contradicting the consensus ruling of later authorities that a marriage contracted in front of invalid-as-sinners witnesses is null and void: why don’t we presume that the witnesses repented and became valid?

SBM explored this question via a thorough examination of the first half of an extensive responsum written by Rav Ovadiah Yosef z”l in 1957 (Yabia Omer Volume III, Even Ha’ezer 8).

In Rav Ovadiah’s case, two witnesses come to a beit din and testify that a young woman had accepted a token of kiddushin from Mr. X. Both attest that they saw the kiddushin take place in a prearranged place at a prearranged time of day.  They say that the marriage was intended to help the young woman evade the match that her parents had agreed to with her cousin. The young woman admits to none of this and maintains that she never accepted kiddushin from Mr. X.

The witnesses’ recollections conflict regarding  the date and time of day of the wedding: One claims that it was the week before Pesach, while the other claims that it was a week after Pesach. In addition, the father of the woman brought witnesses  stating that the witnesses to thekiddushin were both violators of the Shabbat due to them smoking cigarettes during Shabbat. One of the witnesses admits to not being halakhically observant man and specifically to smoking on Shabbat. So it not clear whether a kiddushin transaction took place, and furthermore, if whatever took place happened in the sight of valid witnesses.

The question is whether we can be sure that kiddushin was never accepted, and/or that no valid witnesses were present if it was accepted, so that we can free the young woman to remarry. The obvious way out of this predicament is for Mr. X to give her a get, but unfortunately he has “turned his shoulder and prevented her release via a get.”   The father of the bride strongly desires a ruling that no get is necessary, but one rabbi argues for stringency, citing our opening beraita as requiring us to be concerned lest the witnesses had repented and were therefore valid. Rav Ovadiah seizes the opportunity to explore the broad issue of presumed penitence.

Rav Ovadiah begins by quoting an Amoraic dispute found on Talmud Sanhedrin 26b.   R’ Nachman states that a person suspected of sexual improprieties is still a valid witness.  R’ Sheshet counters this by asking rhetorically: “He is owed 40 lashes on his shoulders (as punishment for his improprieties), but he is still valid?!” Rava then offers a reconciliation or compromise between these two positions: “R’ Nachman in reality agrees that this person cannot testify on issues related to women, whether to “take her out” (gittin) or to “bring her in” (kiddushin).”

This passage led Rambam to conclude that a kiddushin performed in front of witnesses who are invalid per a deoraita law (for which the minimal punishment is lashes) is null and void.  But why shouldn’t we at least be concerned for the possibility that the witnesses had “thought of repentance”? Why would thinking of teshuvah be sufficient to turn the groom from an absolute rasha to a tzaddik, but leave the witnesses as disqualified reshaim?

Rav Ovadiah quotes a sound explanation from Responsa Maharam Padua 37.

טעמא רבה איכא,

שמאחר שהוא אומר כן ורוצה בקידושין –

מסתמא רוצה לקיים תנאו

There is a great reason for this

Since he states this (condition) and he wants the kiddushin –

The presumption is that he wants to fulfill the condition

Since his condition can only be fulfilled through his repentance, therefore a lot more weight can be given to the idea that maybe he has thought about doing teshuvah. However, the witnesses have no such obligation to fulfill and therefore their potential thoughts of doing teshuvah do not carry as much weight.

This answer of the Maharam Padua seems logical, but it is not based on halakhah as much as it is based on psychology.  Shu”t Radbaz 1:140 gives an entirely different reason for declaring the eidim to be invalid. He writes

דכיון דאיכא סהדי דעבר עבירה שנפסל בה לעדות –

אינו חוזר להכשרו עד שיבאו עדים ויעדו שחזר בתשובה

Since there are witnesses that he transgressed a transgression that makes him invalid to testify

He does not return to being valid until witnesses testify that he has repented

Witnesses become invalid due to their witnessed violation of a commandment, and therefore they cannot become valid again until they have witnesses who can testify that they have in fact repented.

How does all this pertain to the SBM topic of Kibbud Av va’Em?  To answer that question we turn to some primary sources that Rav Ovadiah will use in the second half of his responsum.

Rambam (Hilkhot Mamrim 6:11) states that a mamzer is obligated to honor his father, but he is not liable to punishment if he strikes or curses his father before his father repents (of the adulterous or incestuous act that led to his conception). He goes on to say that even if a parent is wicked and sins frequently, the son is still obligated to fear and honor him.

This contrasts with the opinion of the Tur (Yoreh Deah, Hilkhot Kibbud Av va’Em 240).  Tur holds that as long as the father remains sinful, there is no obligation to honor him, but if and when he does repent, the obligation is reinstated.  But – to bring us full circle – can the Tur’s position ever be relied on in practice, or must children always be concerned lest their parents have “thought of teshuvah” and therefore all obligations toward them have been reinstated?  (More radically: Is it possible that since repentance can retroactively transform the status of past deliberate transgressions into accidental transgression and even virtues, is it possible for parental sinners to retroactively become deserving of honor, and therefore for children to become retroactively guilty for having failed to act toward their previously wicked parents in accordance with the obligations of kavod or yir’ah?)

In the coming weeks, we will continue to discuss hirhurei teshuvah and how it pertains to questions of Kibbud Av va’Em. Our background in the concepts of hirhurei teshuvah and honoring wicked parents, both in the primary and secondary sources, will provide us with an excellent springboard for discussing other relevant questions such as: What makes a parent wicked enough to void the chiyuv of the child towards them? Is there ever a case in which the halakhah itself obligates or recommends that a child not honor his or her parent? Please stay tuned!

Shabbat Shalom!

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Counting and Remaining Uncounted

This week’s Dvar Torah is by Aliza Libman Baronofsky

Our sages called Sefer Bemdibar “Chumash HaP’kudim” because of the censuses that bookend the book, right at the start of Sefer Bemidbar and then again in Parshat Pinchas, after the sin at Ba’al Peor. If you’re old enough to remember real bookends, you know that if you put a whole pile of books outside the bookend – analogous to the placement of this week’s parsha outside the ‘closing bookend’ in Parshat Pinchas – your last few books will fall off the shelf.

It is not my objective to look at every section in these two parshiyot, either to attempt to artificially ‘cram’ them in or to explain why they remain out. However, thematically there is much in Matot that we can see as a natural progression from Pinchas, as well as a natural conclusion to Parshat – and indeed, Sefer – Bemidbar.

Let us begin with the well-known fact that we have a prohibition (dislike?) against counting Jews, which stems from the opening lines of Shmot 30:11-12:

וַיְדַבֵּ֥ר ה’ אֶל־מֹשֶׁ֥ה לֵּאמֹֽר׃

כִּ֣י תִשָּׂ֞א אֶת־רֹ֥אשׁ בְּנֵֽי־יִשְׂרָאֵ֘ל לִפְקֻדֵיהֶם֒ וְנָ֨תְנ֜וּ אִ֣ישׁ כֹּ֧פֶר נַפְשׁ֛וֹ לַה’ בִּפְקֹ֣ד אֹתָ֑ם וְלֹא־יִהְיֶ֥ה בָהֶ֛ם נֶ֖גֶף בִּפְקֹ֥ד אֹתָֽם׃

The LORD spoke to Moses, saying:

“When you take a census of the Israelite people according to their enrollment, each shall pay the LORD a ransom for himself on being enrolled, that no plague may come upon them through their being enrolled.” (Translations from Sefaria unless otherwise indicated.)

It is acknowledged that sometimes we need to count the people, such as when determining how many warriors we have going out to battle (in early Bemidbar) or to determine how many are left after a plague (such as in Parshat Pinchas, after the plague of Ba’al Peor.) It is also clear that last week’s parsha’s census is tied to apportioning of the land.

This week, we tie up loose ends by exacting vengeance on Midian for their role in the sin of Ba’al Pe’or, as described in Bemidbar (Numbers) 31:25-54. The Jews are told to select 1,000 soldiers from each tribe to battle Midian, a total of 12,000. After a decisive victory, we get an extensive list of the spoils and booty the Jews were allowed to keep, presuming they divided it 50-50 between the warriors and those who stayed behind.

Here, an extraordinary number of verses are devoted to enumerating:

  • how many total of each type of spoils the Jews acquired;
  • what number corresponds to the 50% of each type that went to the warriors;
    and
  • the number that was given to God via Elazar HaKohen, called “מֶּ֥כֶס” – a tax levy or duty. (Elazar is generally understood to be taking this share for the Kohanim overall as a result of their service. The overall amount was 1/500 of the warriors’ share or 0.1% of the original total.)

Finally, the exact same numbers are listed again to enumerate the 50% given to the remaining Israelites, of which 1/50 is given to the Leviim. (Interestingly, we are not given the exact numbers for the Levi’im but are told their share as a fraction.)

After the spoils are divided up, the officers of the warriors come forward and give as tribute all of the gold jewelry they had taken as their personal booty (which was apparently allowed). They state:

(מט) וַיֹּֽאמְרוּ֙ אֶל־מֹשֶׁ֔ה עֲבָדֶ֣יךָ נָֽשְׂא֗וּ אֶת־רֹ֛אשׁ אַנְשֵׁ֥י הַמִּלְחָמָ֖ה אֲשֶׁ֣ר בְּיָדֵ֑נוּ וְלֹא־נִפְקַ֥ד מִמֶּ֖נּוּ אִֽישׁ

(49) They said to Moses, “Your servants have made a check of the warriors in our charge, and not one of us is missing (נִפְקַ֥ד).

The word נִפְקַ֥ד has to be translated a little oddly here, as missing, which Rashi takes the lead on stating and virtually everyone seems to agree. The use of the root פ.ק.ד, which sometimes means ‘to count’ reminds us of the censuses. After all, they must be counted (the more common נ.ש.א. here) in order to determine if any are missing.

Of course, we must ask: Why might anyone be missing? What is the implication here?

Before we proceed with this specific question, we must first address the more obvious omnisignificance in the room: Why do we need all these verses at all? At least in the eyes of the more traditional, midrashic commentaries, every verse needs to be justified. This text section gets 20+ psukim with numbers of sheep and types of gold jewelry.

In a traditional take on the Gemara in Shabbat 64, Chizkuni writes that the warrior officers were concerned about having been counted: They therefore stated:

(א) ונקרב את קרבן ה’, לכפר על נפשתינו שנדרנו מלפני החשבון שנמנינו כדי שלא ישלוט בנו נגף ולכך הביאונוהו אל אהל מועד. וכן מצינו ולקחת את כסף הכפורים ונתת אותו על עבודת אהל מועד.  

“We had made this commitment already before having been counted in order to protect us against the potential harm that might befall us on account of the count.  This is why we have now brought it to the Tabernacle.”

To forestall a potential epidemic, they vowed before they left to give from the spoils to Hashem. Chizkuni continues by citing the source for this as Shmot 30:16, our original source about not counting Jews, where “כסף הכפורים” or atonement money is given as a result of the census.

According to tradition, the count is not apparently sinful in and of itself; instead, counting the Jews exposes their sins.

Chizkuni writes regarding v. 49:

ורבותינו אמרו לא נפקד ממנו לדבר עבירה.

Our sages therefore do not understand the word נפקד here in the conventional sense, but they translate it to mean that none of the 12000 soldiers in this campaign had become guilty of a personal sin, which might have resulted in Satan having an excuse to kill him.”

Chizkuni says that being counted could have lead to a plague, but the phrase “ולא נפקד ממנו איש” means that no individual of the 12,000 men (or perhaps their officers) had a personal sin that would increase the likelihood he would die in battle.

Chizkuni here refers back to Rashi and the same Gemara in Shabbat when he says that these officers, who did not sin, are nonetheless atoning from having been tempted to sin. The classical interpretation of these verses, then, is that the donation of these officers is a rare example of leadership gone right in Sefer Bemidbar – leaders confronted with a bad choice who made a good one, which becomes a significant positive part of a story (Ba’al Pe’or) whose ending could have been much worse.

Rashi does something very characteristic on these verses: he lists the words that describe the gold items donated and explains which types of jewelry were included in the list. He notes that the final one is an item in the shape of a uterus to atone for the same sin – the unfulfilled desire the warriors felt for the women of Midian.

אצעדה. אֵלּוּ צְמִידִים שֶׁל רֶגֶל: (ב) וצמיד. שֶׁל יָד: (ג) עגיל. נִזְמֵי אֹזֶן: (ד) וכומז. דְּפוּס שֶׁל בֵּית הָרֶחֶם, לְכַפֵּר הִרְהוּר הַלֵּב שֶׁל בְּנוֹת מִדְיָן (שבת ס”ד):

We expect something like this from Rashi because he likes to take apart lists and give every item on the list additional meaning or detail (see, for example, his commentary on the first few verses of Sefer Devarim.). However, though this type of commentary is characteristic of Rashi, it does make a careful reader aware that he is focusing on the detail in these few verses without saying much about the detail in the lists of spoils.

A more ‘plain text’ approach to the phrase “וְלֹא־נִפְקַ֥ד מִמֶּ֖נּוּ אִֽישׁ” is given by Nachmanides, who writes

הנה השם עשה תשועה גדולה על ידינו שלא מת במלחמה אחד מכל אנשי הצבא אשר בידינו

Behold, Hashem made through us a great salvation that no one from all of our army died in the war. (Translation mine)

When Nachmanides says no one died, he’s continuing a theme he has built in many places. What do we think about the possibility that there were no casualties? While this seems unlikely, it is nonetheless a possible outcome if the Midianites were truly outmatched, says Rabbi Michael Hattin. (See Part 2 of this shiur from TanachStudy.com.) Similarly, Rashbam writes that the real miracle was that no one died of a plague (presumably of the type that were common among encamped soldiers lacking a modern understanding of germ theory.)

Nachmanides’ take on the ‘too much detail question’ is along the same lines as his later commentary (on 31:49):

הוצרך הכתוב לפרט הזה להזכיר כמה המחצה וכמה המכס להודיע כי מיום שלקחו המלקוח עד שמנו אותו וחצו אותו והפרישו ממנו המכס ונתנו לאלעזר הכהן לא מת מכל המקנה הגדול הזה אחד וכן במחצת העדה ללויים וזה נס:  

The Torah needed to include this much detail, noting how much was each half, to let us know that from the day they took the spoils, through the time they counted it and divided it in half, separated the ‘duty’ share and gave it to Elazar the Cohen, not one animal of this great amount died. Also, when the nation divided it up and gave their share to the Leviim [none died either] – which was a miracle. (31:36, translation mine)

This position of Nachmanides here in 31:36 foreshadows the officers later: just as not one of the officers died, so too, none of the animals died. This commentary is similar to Nachmanides’ commentary in 2:4, where he says that the two censuses (In Shmot 30 and Bemidbar 2) have the same count because no one died. We can tell he’s reading ahead to our text at that time because he uses the phrase “לא נפקד מהם איש”, reminiscent of verse 49’s “וְלֹא־נִפְקַ֥ד מִמֶּ֖נּוּ אִֽישׁ׃”. (Indeed, our text is the only place in Tanach where the phrase “וְלֹא־נִפְקַ֥ד … אִֽישׁ׃” is used, but all kinds of commentaries pick it up later (Rashi, Radak, Metzudat David and others) and use it to mean ‘not one is missing.’)

So now we have a war where no soldier sinned and an aftermath where no sheep died. These might be pretty extraordinary miracles. I said earlier that we are perhaps commending the leaders for finishing the terrible story of Ba’al Pe’or off well, with retribution to those who scorned the will of God and a taking of responsibility by the new tribal leaders. The idea that not one died – neither soldier nor animal – can also be showing God’s total forgiveness – no remnant of the sin remains.

However, we might also be hesitant to see these as out-of-the-ordinary miracles (after all, Sihon and Og were more mighty and we defeated them, too.) Other commentaries explore alternate avenues.

The Ohr Hachaim accepts Ramban’s question, writing, “למה האריך כל כך בפרטי החשבון בדבר שיכול כל הבא למנות לידע ”, hilariously translated by Rav Eliyahu Munk as “Who amongst us cannot figure out what half of a total of 675,000 sheep amounts to?” Ohr Hachaim does not consider it to be miraculous that no animal died, in a time span he calls “מועט” – brief – but when he says “ומה גם שיצטרך הכתוב לכתוב כל הדברים בשבילו” – that this so-called ‘miracle’ would not be significant enough to make it worth recording in great detail in the Torah, he sets a high bar for his own answer!

Instead, he says

לא שהיה מונה חמש מאות ונותן אחד לה’ מפאת המכס אלא מונה תצ”ט ונותן אחד

(2) I believe that the reason that the Torah tells us what half the total of these flocks amounted to was to teach us that the calculation of the tax was based on the 500th animal being the tax rather than the 501st. This is the reason the Torah had to repeat this calculation in each instance. In other words, the tax amounted to one in 499 and not as we might have thought one in 500.

Ohr Hachaim says the Torah wants to make sure we don’t think it is a ratio of 1:500, where the 1 given to the duty is not from among the 500. By listing that 675 sheep went to Elazar for the duty, etc., we see that it is the fraction 1/500 (or 1:499). We math types would call this part-to-part as opposed to part-to-whole.

However, Ohr HaChaim’s comment might not even pass his own significance test – this is not a frequently repeated case or one with any practical ramification. 1/501 calculated as a decimal, 0.00199600798403 (repeating), can hardly be said to be much different than 0.002 as to make it worth so many extra verses from the vantage point of someone who, like Ohr Hachaim, does not like extra verses.

Ohr Hachaim, of course, has not resolved all of his problems yet. He still needs to account for the first, very long list. His second point, more meaningfully, is that the Torah’s way of writing makes it clear that the מכס – duty – was taken only out of the warriors’ share, after it was divided in half (where you might have thought it was taken off the top) and the Levites were given their share out of the half that the nation was awarded. This answer accounts for the listing of all the halves twice, to show that both sides started out with half of the original amount of spoils. It can even be argued that after the other sets of numbers are listed, we don’t need to know the exact numbers for the Levites, since we know what fraction of what whole we are calculating. Whatever we think of this answer, we can’t argue that the numbers are not significant enough to matter. This answer deals with much larger numbers. 1/500 off the top of 675,000 versus 1/500 out of 337,500 is 1350 sheep for God versus 675.

(For what it’s worth, Ohr Hachaim is completely on board with the ideas from Shabbat 64a that the soldiers donated the gold to atone for fantasizing about sin, even though none of them sinned and all came back alive.)

Our other reliable omnisignificance booster is the Malbim, who is less explicit but nonetheless does not disappoint. He connects the two sets of numbers, noting that the number of soldiers as a fraction of the nation as a whole corresponds to the fraction of the spoils given to the Levites, who are described in 31:47 as “שומרי משמרת משכן ה’”. Malbim attributes the nation’s success to the prayers of the Levites on behalf of the soldiers.

12,000/600,000=1/50

Since the Levites had an instrumental role through prayer, they are entitled to 1/50 of the spoils for protecting the 1/50 of the nation who went to fight in the war. While Malbim does not explicitly address the omnisignificance question, he clearly believes the specific numbers are significant.

As a longtime ‘math person’, I’ve always resisted any anti-counting bias I felt from the Torah’s census squeamishness. The idea that by counting you risk loss, and superstition in general, is a bit much for my Litvish way of being. Details matter!

Fortunately, I am not the first, or only, one to ever notice that counting can be an expression of love. In his first comment on the book of Bemidbar, Rashi writes, “מִתּוֹךְ חִבָּתָן לְפָנָיו מוֹנֶה אוֹתָם כָּל שָׁעָה” – “Because they were dear to him, He counts them every now and then.” This is indeed a beautiful bookend to our Sefer. For a God committed to His people’s welfare, no detail is too small to escape His care and notice – not even the number of sheep. Especially in the aftermath of Ba’al Pe’or, Hashem takes time and care to show that the relationship is mended. He enables the people to act themselves to accomplish something significant. He then lists the exact number who did so, and the exact numbers of items they earned. In this coda to the Pinchas census, we can imagine that the relationship that’s been on the rocks since Parshat BeHa’alotcha is finally on its way to being mended.

Aliza Libman Baronofsky (SBM ‘06) teaches at the Charles E. Smith Jewish Day School in Rockville, MD.

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Pinchas: Fundamentalist Zealot or Centrist Yeshiva Bochur?

This week’s alumni Dvar Torah is by Rabbi Elliot Kaplowitz

Pinchas is such a fascinating character for the observant Jew. There is something seductively appealing about a zealot’s ability to do the right thing in reaction to shocking acts that paralyze the ordinary arbiters of halakhah.  Even though we are never halachically allowed to instruct anyone in a specific situation that the halacha is “zealots strike him”, still this is the halacha and Pinchas got it right. 

We usually imagine Pinchas rising to action in the moment. But the Gemara on Sanhedrin 82a offers a very different description of the episode.  In the Gemara’s telling of the story, Zimri grabs Cozbi by the hair, drags her in front of Moshe, and asks:

בן עמרם, זו אסורה או מותרת?

ואם תאמר: אסורה, בת יתרו מי התירה לך?

“Son of Amram, is this woman forbidden or permitted?

And if you say that she is forbidden, as for the daughter of Yitro, who permitted her to you?”

Moshe is literally at a loss for words, as the Gemara tells us:

נתעלמה ממנו הלכה –

געו כולם בבכיה

the Halacha eluded him,

 causing the entire nation to cry

It is at this point that Pinchas acts.  But before striking Zimri and Cozbi, the Torah records (Bamidbar 25:7):

וירא פינחס בן־אלעזר בן־אהרן הכהן

ויקם מתוך העדה ויקח רמח בידו

When Pinchas, son of Eleazar son of Aaron the priest, saw this,

he left the assembly and, taking a spear in his hand…

On a peshat level, it is clear that Pinchas saw Zimri and Cozbi coupling. But the Gemara’s retelling adds a step in the sequence of Pinchas’ actions:

מה ראה?

אמר רב: ראה מעשה ונזכר הלכה.

אמר לו: אחי אבי אבא, לא כך לימדתני ברדתך מהר סיני: הבועל את כותית קנאין פוגעין בו?

אמר לו: קריינא דאיגרתא איהו ליהוי פרוונקא

What did Pinchas see (that led him to act)?

Rav says: He saw the incident and he remembered the halakha.

He said [to Moses]: “Did you not teach me when you descended from Mt. Sinai that “One who has intercourse with a Gentile – zealots strike him”?

[Moses] said to him: “Let the one who reads the letter be the agent [to fulfill its contents].”

In this version, Pinchas no longer rises to action following his gut instinct. He acts only after receiving confirmation from Moshe that the Halacha does indeed condone killing the perpetrators of such an act.  It is the modern-day equivalent of consulting with a Rabbi or checking in the Shulchan Arukh before acting.  The irony is that this version directly contradicts Rav Chisda’s ruling of הבא לימלך אין מורין לו – if [the zealot] takes counsel, we do not instruct him so. 

Rav’s retelling of the Pinchas story highlights one of the major questions posed by a commitment to Halacha:  To what extent, if any, can we trust our instincts when facing ethical dilemmas, or must we always consult with Halakhic sources and/or authorities?

In this regard, Rav Aharon Lichtenstein z”l relates a powerful story from his early years living in Israel.  While walking with his family in a charedi neighborhood, they came across a presumably non-observant merchant whose car had broken down and was in need of assistance.  A number of the neighborhood kids got into an argument whether they should help him, based on the Gemara Pesachim 113b’s discussion of the status of wanton sinners as relates to the mitzvah of perika u-te’inah (helping one load or unload a burden).  Rav Lichtenstein recalls that he wrote his father-in-law, Rabbi Soloveitchik, a letter in which he concluded: “Children of that age from our camp would not have known the gemara, but they would have helped him.” Rav Lichtenstein continues: “My feeling then was: ‘Why, Ribbono shel Olam, must this be our choice? Can’t we find children who would have helped him and still know the gemara? Do we have to choose? I hope not; I believe not. If forced to choose, however, I would have no doubts where my loyalties lie: I prefer that they know less gemara, but help him.’” (Rabbi Aharon Lichtenstein z”l. “Developing a Torah Personality—Centrist Orthodoxy: A Spiritual Accounting”) 

The dilemma outlined by Rav Lichtenstein has always defined our community, and will continue to do so.  To trust our instincts and internal morality – which HAS been shaped by our Torah education – or  to consult our sefarim and posekim before doing anything.  This dilemma is seen in the two versions of Pinchas presented above.  The question and challenge for us is which model of Pinchas do we choose to follow.

 

Rabbi Elliot Kaplowitz (SBM 2001) is rabbi of Congregation Netivot Shalom in Baltimore, MD.

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Fear of Others and Its Consequences

This week’s alumni Dvar Torah is by Judah Kerbel

The historian Salo Baron famously critiqued the “lachrymose conception of Jewish history” that we often associate with Jewish identity. But at the Pesach seder every year, we declare that in every generation, we have enemies that threaten to annihilate the Jewish people, but God saves us each time.

The experience of the generation that left Egypt is the paradigmatic Exodus. But by the time we reach Parashat Balak, that entire generation has passed on, per the decree resulting from the episode of the spies. There is now a new generation. Did this generation experience any sort of similar threat of annihilation? And if so, is this instructive for how we should view Jewish history?

A close reading of Parashat Balak reveals striking thematic and literary parallels to Parashat Shemot. Here are some of the examples of the similarities in language:

ויגר מואב מפני העם מאד כי רב הוא… ועתה לכה נא ארה לי את העם הזה כי עצום הוא ממני (במדבר כב, ג; ו)

וַיֹּאמֶר אֶל עַמּוֹ הִנֵּה עַם בְּנֵי יִשְׂרָאֵל רַב וְעָצוּם מִמֶּנּוּ (שמות א, ט)
ויקץ מואב מפני בני ישראל (כב, ג) וַיָּקֻצוּ מִפְּנֵי בְּנֵי יִשְׂרָאֵל (שמות א, ו)

In each case, we have a king who is very afraid of B’nei Yisrael because they are a “large nation” who might harm his core constituency, and as a result of that, the king attempts a solution to “deal” with the problem.  

But there are some key differences:

In Shemot, the king is afraid and imposes his fear on his people, while in Balak, the fear begins with the people, who then appoint a king to deal with the problem.

The fears, and therefore solutions, of each king differ as well. In Shemot, Pharaoh’s fear is that B’nei Yisrael would go to war with Egypt.  He, therefore, seeks to weaken them through hard labor and to kill their baby boys so that they won’t grow up to be enemy soldiers. Balak’s fear, however, is that B’nei Yisrael would deplete the resources of Moav. Cursing them to stunt their growth might be a sufficient solution.

Despite these differences, though, the Gemara in Sotah suggests that Bilam, the sorcerer that Balak sought out to curse B’nei Yisrael, was the advisor to Pharaoh who suggested killing the Jewish male infants. This suggests that the comparison is worth exploring.

Do these two experiences indicate a pattern? The anti-Semitic tropes of Pharaoh and Balak can still be heard in our times, even though  many of us in America do not face daily threats of anti-Semitism. Last summer, marchers in Charlottesville who chanted, “the Jews will not replace us.” In February, a faith leader remarked “the Powerful Jews are my enemy.” In March, a councilman in Washington, D.C. declared that the “Rothschilds” control the climate and the federal government. The common thread between all of these scenarios is an unfounded fear of Jews being too powerful, like that we see twice in the Torah. Hopefully, these parallels give us a greater insight into our own history, although Baron is likely correct that the sum-total of our history is not just these trying times.

But more than that, these experiences should teach us about how we relate to others. Americans are in constant debate about how we relate to others – whether it is those throughout the world who wish to enter the United States or minorities already within our borders. Security is one side of the conversation that must be dealt with, but the question is, what results from our seeking security? Does fear lead us to unnecessarily oppressing an “other,” like Pharaoh and Balak did? With awareness of our own history, hopefully we will cultivate sufficient self-awareness to not allow fear to guide us towards an unwarranted hatred of others.

Judah Kerbel (SBM 2015) is a student at RIETS and the Bernard Revel Graduate School, and he served this year as rabbinic intern at Young Israel of Plainview.

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What Plague Did Pinchas Stop? A New (I Think) Reading of Parshat Balak, With a Moral

by Rabbi Aryeh Klapper

Parashat Balak is a largely self-contained narrative.  There is suspense – will Bil’am succeed in cursing the Jews?  There is conflict between Balak and Bil’am. There is farce, as the wordsmith seer “who knows the mind of the Most High” is outclassed by his donkey’s vision and rhetoric.  There is of course spectacularly beautiful poetry.  But at the end of the day none of it matters to the plot of Chumash.

Then the seventh aliyah comes out of nowhere.  Suddenly the men of Jacob, whose “tents are so goodly”, are compulsively attracted to foreign daughters.  The “nation that dwells alone” is picnicking with idolaters.  The G-d in Whose eyes “it is good to bless Israel”, and Who never changes His mind, demands a Vlad-the-Impaler response. Mosheh Rabbeinu tries to call out the national guard and declare martial law, and the result is a complete breakdown of authority.

The Torah reading seems deliberately constructed to draw attention to these contrasts.  Moreover, while Chazal often try to end liturgical sections on a positive note, Balak ends with a census of plague victims – 42,000 dead!

Some midrashim read the narrative sequentially.  Bil’am realized that he could not directly harm the Jews.  But his fundamental animus remained.  So he looked for ways to undermine his own blessings, and came up with the idea of corrupting Jewish morals.  In this version Bil’am’s idyllic description of the Jews were accurate when he said them.

But it seems to me potentially more powerful to read the stories as simultaneous.  Bil’am blesses the Jews even as they lose their morals.  G-d forces Bil’am to bless them even as He demands that Mosheh execute many of them, and perhaps even as they are dying en masse of His plague.

Can we read the story that way?  Sure.  People will often defend their family and friends against outsiders’ critiques in the strongest terms, and then turn around and privately but pungently express their full agreement with those critiques.  Reading G-d’s actions this way would not require any theologically problematic changing of the Divine Mind.

What should we learn from such a reading?

Let’s start at the end.  Mosheh Rabbeinu responds (in the human political world) to this failure essentially as he did to the Golden Calf, the last episode combing eros with idolatry; he asks some Jews to kill their sinning brethren.

This failure of leadership should be compared and contrasted with the rock-striking episode last week that is presented as the cause for Moshe being unable to lead the Jews into Israel.  The comparison is clear; the Desert Generation has the same weaknesses as the Exodus Generation, which suggests that Moshe’s leadership has not been adequately transformative.  The contrast is that Moshe failed at Mei Merivah because he had no new ideas for reacting to complaints about thirst.  Here he does try a new approach, but it backfires.

Why doesn’t it work?  Perhaps because last time he called on his fellow Levites, and this time he asks each tribe to handle its own criminals. Perhaps because last time he asked for volunteer vigilantes – “whosoever is for Hashem, to me!” – whereas this time he tries to utilize the regular national bureaucracy.  Ultimately it is a volunteer Levite vigilante who acts effectively to stop the plague brought on by the immoral behavior.

Or so it seems.  Let’s take a closer look at the story that bridges Balak and Pinchas.

וישב ישראל בשטים

ויחל העם לזנות אל בנות מואב:

ותקראן לעם לזבחי אלהיהן

ויאכל העם וישתחוו לאלהיהן:

ויצמד ישראל לבעל פעור

ויחר אף יקוק בישראל:

ויאמר יקוק אל משה

קח את כל ראשי העם

והוקע אותם ליקוק נגד השמש

וישב חרון אף יקוק מישראל:

ויאמר משה אל שפטי ישראל

הרגו איש אנשיו הנצמדים לבעל פעור:

והנה איש מבני ישראל בא

ויקרב אל אחיו את המדינית

לעיני משה ולעיני כל עדת בני ישראל

והמה בכים פתח אהל מועד:

וירא פינחס בן אלעזר בן אהרן הכהן

ויקם מתוך העדה

ויקח רמח בידו:

ויבא אחר איש ישראל אל הקבה

וידקר את שניהם את איש ישראל ואת האשה אל קבתה

ותעצר המגפה מעל בני ישראל:

ויהיו המתים במגפה ארבעה ועשרים אלף: פ

 וידבר יקוק אל משה לאמר:

פינחס בן אלעזר בן אהרן הכהן

השיב את חמתי מעל בני ישראל בקנאו את קנאתי בתוכם

ולא כליתי את בני ישראל בקנאתי:

Israel dwelled in The Cedars

The nation began straying toward the daughter of Moav.

They called the nation to their gods’ sacrifices

The nation ate, and bowed to their gods.

Israel yoked itself to the Baal of P’or

Hashem’s anger was kindled at Israel.

Hashem said to Mosheh:

“Take all the heads of the nation

and hang them up to Hashem in the sunlight

and the kindled anger of Hashem, will turn back from Israel”.

Moshe said to the judge of Israel:

“Each of you must execute his men who have yoked themselves to the Ba’al of P’or!”

Behold, a man of Israel came;

He brought the Midianitess near to his brothers

in full view of Mosheh, and in full view of the edah of the Children of Israel

while they wept at the entrance to the Tent of Meeting.

Pinchas son of El’azar, son of Aharon the Priest, saw

He stood up from the midst of the edah

He took a spear in his hand

He followed the man of Israel into the pavilion

He stabbed them, the man of Israel and the woman, in her pavilion

The plague was constrained from upon the Children of Israel.

The dead in the plague were forty two thousand.

Hashem spoke to Mosheh, saying:

“Pinchas son of El’azar son of Aharon the Priest

turned My rage back from against Israel by acting zealously for Me in their midst

so I did not exterminate Israel in My zealotry.

There is unquestionable a plague, and Pinchas’ action stops it.  The problem is that we hear nothing about a plague until Pinchas acts.  We know that G-d is angry, but we don’t know that His anger has been physically expressed.  We also don’t know that the plague had genocidal possibilities until Hashem tells us that Pinchas prevented Him from exterminating us.

Ramban nonetheless takes the story at face value.  G-d sent a plague in response to our straying, and it is the way of plagues to kill the innocent along with the guilty.  Pinchas stopped the plague before it had killed even all the guilty, so that in Devarim 4:3 Hashem needs to point out to Bnei Yisroel that all those guilty of following Baal’ Peor have been destroyed from their midst.

Seforno, who usually follows Ramban, apparently finds this approach unsatisfying, and offers a radically different interpretation.

“ותעצר המגפה” שכבר גזר הא-ל יתעלה,

כאמרו “וכל מנאצי לא יראוה”

“The plague was constrained” that Hashem had already decreed,

 when He said “all those who disgust Me will not see it (=the Land).”

According to Seforno, the plague was decreed in Bamidbar 14:23, after the episode of the Spies.  The victims of the plague are not a new generation, but rather the same people who have defied and frustrated Mosheh and Hashem all along.  Pinchas does not stop a genocide; rather, he delays yet longer the deaths of the Desert Generation.

Seforno’s answer serves more to emphasize the gaps in the narrative than to compellingly explain them.  So I want to suggest a perhaps even more radical alternative.

If our parshah’s stories are simultaneous rather than consecutive, the risk of genocide comes not as a reaction to this specific sin, but rather because the sin makes it harder for G-d to make a compelling case for preventing Bila’am from cursing us.  Pinchas’ act of zealotry takes place just as Bilaa’m begins speaking.

We are often under the illusion that our faults matter only to our enemies.  The truth is that in both society and politics, enemies are constrained by friends, and weakening our friends’ moral confidence in us by acting immorally can be as dangerous as giving ammunition to our enemies.  The piercing criticism of a Pinchas may be much more effective at maintaining alliances based on values than the passive and helpless response of Israel’s appointed leadership.

Shabbat shalom

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The Parah-dox and Orthodox Ethics

by Rabbi Aryeh Klapper

The Talmud on Yoma 14a records a dispute between Rabbi Akiva and the Sages about the meaning of the opening phrase of Bamidbar Chapter 19, verse 19:

והזה הטהור על הטמא

“And the pure will sprinkle on the impure”

According to the Sages, this means that Red Heifer Ash-water loses its spiritual and halakhic potency on something which is incapable of becoming impure.

According to Rabbi Akiva, it means that sprinkling Red Heifer Ash-water on a tamei person makes them tahor, but the person sprinkling becomes tamei.

The Rabbis object to Rabbi Akiva’s argument – isn’t this needlessly paradoxical, they ask?  Even if your reading makes sense in the text, shouldn’t we prefer an interpretation that fits with reason?

Rabbi Akiva’s response is: ABSOLUTELY NOT.  This detail of the law, he says, is what drove King Solomon to confess in Kohelet 7:23

אמרתי אחכמה והיא רחוקה ממני

“I said: “I will become wise”, but this goal remains distant for me.”

This is what Rabbi Soloveitchik zt”l described as a “gesture of surrender”, a humble and noble willingness to acknowledge that “Because your thoughts are not My thoughts, and your ways are not My ways, declared Hashem.  As the heavens rise above the earth, so too My ways rise above your ways, and My thoughts above your thoughts”.   Ultimately Divine wisdom cannot be fully comprehended by human intellect.

BUT: Does that mean we shouldn’t try?

Put differently:  Is it better to have thought and lost, or never to have thought at all?

For some people, Rabbi Akiva’s embrace of irrationality is the paradigm for our relationship to mitzvoth.  We are best off not asking “why” questions about mitzvoth; ours not to make reply, but simply to follow G-d’s orders.

But for others, Rabbi Akiva’s understanding of this verse is an exception.   One law is immune to reason, to remind us of the limits of human intellect.  But with that reminder in hand, we must try our best to understand everything else using the minds that Hashem gave us.

Or maybe Rabbi Akiva is simply wrong.  The Halakhah follows the Sages against Rabbi Akiva; there is no reason to interpret this verse as generating an irrational law when an alternate explanation can be found.

I remember my excitement when I first realized that this third position was possible within the tradition, that there were great rabbis who believed that we should believe that all mitzvoth were comprehensible.  It came not from Rambam – my high school strongly discouraged me from reading the Guide for the Perplexed – but from the introduction of the great medieval parshan Rabbi David Kimchi, known as RADAK, to his commentary on Nakh.

אין צריך לומר התורה והמצוה שהם בנויות על דרך השכל

כי גם החוקים אשר נאמר עליהם כי אין להם טעם

כן הוא שאין להם טעם נראה לרוב בני אדם

אבל החכם המתבונן בהם ימצא טעמם ברור ומבואר

It goes without saying regarding Torah and mitzvoth that they are built on the ways of the intellect

as even the chukim, about which it is said that they have no rationale

It is true that they have no rationale which is apparent to most people

But the sage who meditates on them will find their rationales clear and explained

Even the chukim, Radak says – even the Red Heifer, which is described as THE chok of the Torah – makes sense to philosophers.  NOTHING about Torah law is in principle beyond human comprehension.

This was extremely attractive to me as a teenager.  But the problem with this position, as my high school teachers knew, is that:

The belief that nothing about Torah is utterly incomprehensible easily slides into the belief that we already comprehend everything in Torah.

The belief that we comprehend everything leads us to identify Torah with our own understanding of Torah.

The identification of Torah with our understanding of Torah means that we attribute our own errors to G-d.  When times change, so that our rationales for mitzvot no longer seem reasonable, we take that as evidence against the Torah, rather than as evidence that we have misunderstood Torah.

But the first position, the extreme version of Rabbi Akiva, can send us sliding down its own slippery slope:

The belief that nothing about Torah is ultimately comprehensible easily slides into the belief that we should not use ethics to evaluate our interpretations of Torah.

The belief that Torah interpretations need not be ethical leads us to accept interpretations that make Halakhah irrelevant, immoral or even cruel.

For example: some years ago, the Summer Beit Midrash studied the laws regarding the halakhic status of the deaf who also cannot speak audibly.  The Talmud categorizes deaf-mutes as not bnei and bnot mitzvah, as incapable of halakhic responsibility.  In the late 19th century – think Helen Keller – it became clear that deaf children could be fully educated, and that deaf adults could be fully competent even if they spoke Sign rather than verbalizing.

For some rabbis, this made it obvious that their halakhic status had changed.  We know, they argued, why the Talmud declared deaf-mutes to be exempt from mitzvot – it was because their minds had not properly developed.  Reality has changed, and it would distort Torah if halakhah did not take this new reality into account.

For other rabbis, our capacity to educate the deaf instead proves that their halakhic exclusion was not based on their mental incompetence, but rather is simply a gezeirat hakatuv, an incomprehensible (and therefore unchangeable) Divine decree.

I much prefer the middle position, the moderate understanding of Rabbi Akiva.  We should not be afraid to admit that some mitzvot are beyond our comprehension; but we should also not be afraid to admit that some halakhot are perfectly within our comprehension.

Jews should not glory in incomprehensibility, and obey the absurd with greater joy than the reasonable. We should instead strive to rationalize when we can do so with sincerity and integrity.  At the same time, we need to recognize that in every generation there will be some mitzvot – often different than those considered chukim in earlier generations – that we cannot rationalize with sincerity and integrity, and which we must nonetheless obey.

I wrote the following rationalization as an in-shul introduction to the leining of Parshat Chukkat 2015.

Why is the ritual of the Red Heifer in Sefer Bamidbar, rather than together with other priestly rituals in Sefer Vayikra?   The simplest answer is that our parshah is suffused with death.  Miriam dies; Aharon dies; Mosheh is sentenced to die in exile; the people ask repeatedly “Why have you taken us out of Egypt to die in the desert?”; and many of them in fact die at the hands of fiery snakes.  The Rabbis like to say that G-d often sends the refuah before the Makkah, the cure before the disease.  So here He gave Bnei Yisroel the laws of the Parah Adumah just before we had to deal with many crushing deaths.

How does this ritual help us deal with death?  My dear friend Rabbi Elisha Anscelovits points out that the ashes were sprinkled on the third and seventh days of shiva.  In the midst of mourning, G-d reminds us that we have responsibilities; that while our grief is justified, it cannot define us permanently or absolutely.  But the ashes cannot be self-sprinkled; to emerge whole, we need the help of others.

This is the deepest meaning of the paradox of the parah adumah, in which the sprinkler becomes tamei while the sprinkler becomes tahor – one person willingly becomes tamei so that others can become tahor.  The ritual reminds us that there are so many powerful areas of life where we are not self-sufficient, where we cannot bootstrap ourselves out of our ruts – we need our family, our friends, our community, and sometimes the human community.  Once we recognize our own needs, we will then try to be the helpers our family, friends, community and fellow humans need.

In the past week, the human religious community of the United States was frayed by the shocking racist murders in Charleston.  In response, a wide spectrum of Jewish organizations has called for this Shabbat to be a “Shabbat of Unity” as a statement of sympathy for the African-American community and as a protest against racism and discrimination. The RCA and the Orthodox Union have joined this call in the spirit of the Rav zikhrono livrakhah’’s call for human cooperation across religious boundaries on social and political issues.

May this be the beginning of a much deeper commitment by the Orthodox community to that spirit and that call.

Let’s make it so.

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A Look of Tumat Met

This week’s Alumni Dvar Torah is by Rabbi Jared Anstandig

Regarding the Mitzvah of the פרה אדומה, the Torah states, “זֹאת חֻקַּת הַתּוֹרָה אֲשֶׁר־צִוָּה ה’ לֵאמֹר.”  On this Pasuk, רש”י draws attention to the תורה’s usage of the term “חוקה,”

לְפִי שֶׁהַשָּׂטָן וְאֻמּוֹת הָעוֹלָם מוֹנִין אֶת יִשְׂרָאֵל, לוֹמַר מָה הַמִּצְוָה הַזֹּאת וּמַה טַּעַם יֵשׁ בָּהּ? לְפִיכָךְ כָּתַב בָּהּ חֻקָּה — גְּזֵרָה הִיא מִלְּפָנַי, אֵין לְךָ רְשׁוּת לְהַרְהֵר אַחֲרֶיהָ.

Because Satan and the nations of the world taunt Israel, saying, “What is this command and what reason is there for it”, on this account it (Scripture) writes (uses) the term חקה about it, implying: It is an enactment from before Me; you have no right to criticize it.

The traditional approach to the פרה אדומה aligns with רש״י’s comment, and so Judaism takes the פרה אדומה as the quintessential חוק, a law which we will never be able to fully understand. The mystery of פרה אדומה notwithstanding, it is worth exploring the issue that פרה אדומה resolves, namely טומאת מת.

The deceased human being is the highest level of טומאה that exists: in the language of רש”י in this week’s parsha, a corpse is an אבי אבות הטומאה.  This טומאה requires a specific process, the פרה אדומה, in order to become טהור again.

There are three main ways a person becomes טמא from a מת – touching a corpse, carrying a corpse, or being in the same room or above a corpse.  Being in same room (or tent) or above the corpse is known as טומאת אהל.

The Gemara in .יבמות דף סא addresses who can transmit טומאת אהל:

ר”ש בן יוחאי אומר: קברי עובדי כוכבים אינן מטמאין באהל שנא’ (יחזקאל לד, לא) “ואתן צאני צאן מרעיתי אדם אתם” אתם קרויין “אדם,” ואין העובדי כוכבים קרויין “אדם.”

The graves of gentiles do not render items impure through a tent, as it is stated: “And you My sheep, the sheep of My pasture, are men [adam]” (Ezekiel 34:31), from which it is derived that you, the Jewish people, are called men [adam] but gentiles are not called men [adam].

As evidenced from the continuation of the Gemara, רשב״י’s explanation draws on the opening of the section that deals with טומאת מת –i “אדם כי ימות באהל,” “when a man dies in a tent.”  In this context, “a man,” רשב”י argues, refers to a Jewish body, to the exclusion of non-Jews.

Along these lines, בבא מציעא קיד א-ב tells the following story:

אשכחיה רבה בר אבוה לאליהו דקאי בבית הקברות של עובדי כוכבים… אמר ליה לאו כהן הוא מר מאי טעמא קאי מר בבית הקברות א”ל לא מתני מר טהרות דתניא ר”ש בן יוחי אומר קבריהן של עובדי כוכבים אין מטמאין שנאמר (יחזקאל לד, לא) ואתן צאני צאן מרעיתי אדם אתם אתם קרויין אדם ואין עובדי כוכבים קרויין אדם

The Gemara relates: Rabba bar Avuh found Elijah standing in a graveyard of gentiles… he said to him: Is not the Master a priest?[1] What is the reason that the Master is standing in a cemetery? Elijah said to him: Has the Master not studied the mishnaic order of Teharot? As it is taught in a baraita: Rabbi Shimon ben Yoḥai says that the graves of gentiles do not render one impure, as it is stated: “And you, My sheep, the sheep of My pasture, are man” (Ezekiel 34:31), which teaches that you, i.e., the Jewish people, are called “man,” but gentiles are not called “man.”

It appears from this Gemara that אליהו himself subscribes to רשב”י’s opinion, arguing that he may stand in a non-Jewish cemetery since there is no concern of טומאת האהל from the non-Jewish bodies therein.

In practice, רמב”ם פרק א’ מהלכות טומאת מת הלכה יג follows the opinion of רשב”י:

וְאֵין הָעַכּוּ”ם מְטַמֵּא בְּאֹהֶל… וְכֵן הָעַכּוּ”ם אֵינוֹ נַעֲשֶׂה טְמֵא מֵת אֶלָּא עַכּוּ”ם שֶׁנָּגַע בְּמֵת אוֹ נְשָׂאוֹ אוֹ הֶאֱהִיל עָלָיו הֲרֵי הוּא כְּמִי שֶׁלֹּא נָגַע.

A non-Jew cannot transmit טומאה through a tent… And, likewise, a non-Jew cannot become impure from a dead body.  Rather, a non-Jew that touches a corpse, or carries it, or stands above it, he is like someone who did not touch the corpse.

For רמב״ם, a non-Jew is completely removed from the world of טומאת מת.  A non-Jew cannot become טמא, and so a non-Jew cannot transmit טומאה. This position appears to fit perfectly with the both יבמות and בבא מציעא, which both indicate that a non-Jewish corpse does not create טומאת מת through an אהל.

However, תוספות (in יבמות סא א ד”ה ממגע) side against רשב”ג:

ואר”י דאין הלכה כר”ש… וצריכים כהנים ליזהר מקברי עובדי כוכבים, ובפרק המקבל (ב”מ קיד:) בעובדא דאליהו דהשיב לרבה בר אבוה כר’ שמעון בן יוחי דהכא דחויי קא מדחי לה…

Ri says that the halacha does not follow Rabbi Shimon… and Kohanim must be careful about the graves of non-Jews, and in Perek Hamekabel (in Baba Metzia), concerning the story of Eliyahu, that he responded to Rabba Bar Avuh that the halacha follows Rabbi Shimon Bar Yochai, this was merely to push off the question…[2]

תוספות understand that רשב”י’s position about טומאת אהל is subject to a מחלוקת and side against him.  This forces תוספות to take a different approach to the story with אליהו, explaining that אליהו’s words are not to be taken as a halachic argument, but merely something to prevent further question. [3]

When it comes to practice, both the שולחן ערוך and רמ”א hesitate to rule as leniently as רמב”ם and rule, somewhat indecisively, in accordance with תוספות.  They write (in יורה דעה שעב:ב):

קברי עובדי כוכבים, נכון ליזהר הכהן מלילך עליהם; (מהר”מ ותוס’ פ’ המקבל) (אע”פ שיש מקילין (רמב”ם והגמי”י בשם ס’ יראים). ונכון להחמיר.)

The graves of non-Jews, it is appropriate for a Kohen to be careful not to walk on them. (Even though there are those who are lenient, it is appropriate to be strict.)

Given that the position of תוספות prevails in practice, it is worth considering the deeper significance of תוספות’s position.  After all, רמב”ם’s position not only fits better with the read in both Gemaras, but would seem to be more logical – across the board non-Jews are excluded from טומאת מת.  On the other hand, it appears that תוספות agree that a non-Jew cannot contract טומאת מת. Nonetheless, תוספות maintain that a non-Jewish corpse still transmits טומאה.  Why should this be the case?

The answer to this question could be the very nature for the reason for טומאת מת exists in the first place.  Rabbi Yechiel Michel Tucazinsky in גשר החיים (in a footnote to the beginning of פרק ו’ – דיני טומאה page עה), provides the following explanation for the concept of טומאת מת:

מעלת האדם, בחיר יצורי האדמה, שבכחו להתעלות בקדושה  – היא הגורמת שנמשכים ונאחזים באדם יצירי הטומאה… בדבר שאין לחלוחית קדושה אין להם אחיזה…

The greatness of Man, the chosen creation of earth, is his ability to ascend in holiness – this causes impurity to follow and adhere to a person… impurity does not take hold to something without even the slightest amount of holiness to it.

טומאת מת exists because of the unique holiness of humans.  It is not limited specifically to Jews, but to all mankind.  The human being, endowed with free will, has the potential to ascend to the greatest of heights.  This, alone, bestows a certain level of קדושה to all humanity. In this vein, בראשית רבה ח:א notes the following about all people:

אִם זָכָה אָדָם אוֹמְרִים לוֹ אַתָּה קָדַמְתָּ לְמַלְאֲכֵי הַשָּׁרֵת, וְאִם לָאו אוֹמְרִים לוֹ זְבוּב קְדָמְךָ, יַתּוּשׁ קְדָמְךָ, שִׁלְשׁוּל זֶה קְדָמְךָ.

If a person merits it, they say to him “your creation preceded the creation of angels.”  If not, they saw to him the fly preceded you, the mosquito preceded you, the word preceded you.

The laws that dictate when and how a person becomes טמא may be uniquely Jewish rules.  However, our innate sanctity as people is not based on commandedness or religion. Our potential to change, grow, and develop endows each of us, as people, with an internal holiness.  It is the vacuum of kedusha created by the loss of human life and ability to grow that creates טומאת מת. Let us therefore be mindful of the significance of what it means to be human and recognize that universally, we are holy and capable of profound growth and development.

Notes:

[1] As per רש”י there, רבה בר אבוה identifies אליהו as being פנחס, a כהן

[2] תוספות supports his ruling based on רבן שמעון בן גמליאל’s position in משנה אהלות יח:ט which implies that there is a concern of אוהל for a קבר עכו”ם.

[3] There is also a larger question about the concept of לא בשמים היא and deriving halacha from supernatural occurrences.

Jared Anstandig (SBM 2011) currently teaches Tanach and Gemara at Ramaz Upper School. This summer, Jared will be moving to Ann Arbor, Michigan and will serve as rabbi for the Orthodox community at the University of Michigan.

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