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Can We Judge a Psak Based on Its Consequences?

by Rabbi Aryeh Klapper

What should Aharon have done?  What could Aharon have done?

It is vital to recognize that these are not the same question.  The first question can be asked even if none of the available choices would have stopped the making and worshipping of the Golden Calf.  And there may have been things that Aharon could have done to stop the Calf that he was nonetheless correct to avoid doing.

The underlying difference is between consequentialist and nonconsequentualist ethics.  Can the choice which yields the best overall result be wrong?  

The same issue comes up regularly in the context of halakhic decisionmaking.  To what extent are perceived negative consequences evidence of the rightness or wrongness of a psak?

To be sure, consideration of consequences is often part of the purely internal halakhic calculus.  “The Torah has concern for the money of Israel”, and so one can rely on minority positions when the standard psak would cause significant loss.  (Almost) Nothing stands in the way of preserving life.  Rabbinic prohibitions are vacated when the alternative is damage to human dignity.  And so on and so forth.

However, the formal internal calculations of halakhah generally require that these consequences be clearcut.  What if human dignity will suffer either way, but likely more severely one way than the other?  What if this will cause a loss to some people, and a gain to others?  How does one evaluate tradeoffs between quantity and quality of life?

One might say that in such cases one must simply fall back to the formalities of the law.  “Let the law pierce the mountain”, and let the ship of Judaism proceed without regard for the presence of floating mines (a.k.a. torpedoes).

Rabbi Moshe Tendler argues (Kavod Horav p. 167-9) – to my mind convincingly despite minimal evidence – that psak for a community should consider consequences differently than psak for individuals.  For example, communal psak can impose current hardships and risks in the interest of future generations, whereas individual psak must focus on those presently alive.  Communities can also consider statistical consequences whose probable effects on any defined individual are trivial.  In a real sense the formalities of law lose their formality in the context of communal decisionmaking, and consequentialism becomes a much larger factor.  

To take one example: R. David Stav ruled that the town of Shoham could run round trip buses to Tel Aviv and its nightlife on Friday night, in order to prevent the deaths from drunk driving that would otherwise be statistically probable.  I’m fairly confident that he would not permit individuals to offer a group of teenagers a lift if they missed the bus.

But life and death cases are low-hanging fruit.  My question is whether on a communal level poskim may or must also consider much more amorphous consequences.  I liked to tell my high school students that I judged my work as a teacher by the condition of their souls ten years after graduation – ought a shul posek to consider in advance how a given psak will affect the souls of congregants ten years on? Perhaps Rav Tendler’s distinction applies only to concrete matters, but poskim need to consider the future condition of even specific individual souls.

Judging what will be best for other souls inevitably introduces an element of paternalism.  How can I make decisions on the assumption that you will otherwise make poor decisions?

My suspicion is that in principle almost everyone thinks that psak should nonetheless take such consequences into account.  We want poskim to be in relationship with sho’alim, not to be reference books.  We want this not only so that they can understand the underlying situation, but also so that they can respond to it.

Nonetheless, there are at least two valid sources of resistance to this idea.  For many laypeople, giving Rabbis discretion extends the sphere of influence in their lives of people whose values they don’t fully share.  For some senior halakhists, this discretion should be vested only in truly great halakhists with demonstrated capacity to resist the pressures of the moment, otherwise halakhah will lose all its formality and integrity.  Which brings us full-circle, to Aharon HaKohen at Sinai.

Let us set the scene.  Mosheh Rabbeinu has been gone for (a little or a lot) longer than everyone had anticipated.  Rumors are spreading wildly, and a group of agitators are beginning to run riot.  Chur, whom Mosheh had given interim judicial authority together with Aharon, stood up to the rioters and is killed.  No attempt at all is made to censure his murderers.  Aharon reasonably believes that he will be killed if he directly opposes the construction of a constructed image to replace Moshe.  What should he do?

On a halakhic level, the answer may seem simple.  One must give up one’s life rather than commit idolatry or its אביזרא, violations falling within its penumbra.

But in truth it is not simple.  Aharon surely did not intend the Calf to be an actual idol; from his perspective, he simply sculpted a statue.  If no other Jew had worshiped it after he made it, there would be no reason to assume that the calf was assur behanaah, forbidden for Jews to derive benefit from, as are images constructed for the sake of worship.

Nor is there evidence that Aharon himself ever worshipped the calf.  It is an anonymous plural that declares “These are your gods, O Israel”.  He builds an altar before it, but then declares that there will be a holiday for Hashem the next day.  What Aharon violates is lifnei iver, the prohibition against placing obstacles in the path of the spiritually blind, and there is much debate in the tradition as to whether lifnei iver of idolatry is an abizra that one must die rather than commit.

Aharon reasonably believes that the Jews’ souls will be even further damaged if he is killed.  Moreover, if Moshe returns to find him dead, he will absolutely despair of the people, and abandon the whole project of shaping them into the People of Torah.  Moreover, by sort-of participating in their sin, he creates a bond and sympathy and credibility that will be helpful in what will clearly be a long and painful process of spiritual recovery.

But Aharon spent months in Moshe’s yeshiva researching the question of whether lifnei iver of idolatry is an abizra, and came out quite convinced that the weight of the mesorah favored the position that it is.  Nothing about this admittedly traumatic experience has changed his reading of the texts, or the weight of the authorities involved.  It’s just that faced with an actual circumstance, it seems clear that his community would be better off if he paskened the other way, and he can’t claim that the other way is demonstrably incorrect.  So what should he do?

The Torah does not tell us explicitly whether Aharon’s decisions were right or wrong.  Moshe’s first words to him are harsh, but Aharon responds, and then the issue seems to be dropped; in other cases, such as after the death of Nadav and Avihu, this seems to indicate a withdrawal of his initial criticism.

Aharon becomes High Priesthood.  He goes on to save the Jews from Divine wrath when Moshe can’t or won’t, and he dies beloved by both the people and G-d.  The evidence seems to be that from a consequentialist perspective, he made the right decision.

The problem is that a purely consequentialist perspective undermines law completely.  If one should always choose the option that produces the best results, what is the purpose of rules?  

The best halakhists understand that the most important consequence of all is the preservation of halakhah as law, in other words the ability to find meaning in and give authority to rules regardless of their consequences.  

Embracing that paradox is the key to a vibrant halakhic future.

Shabbat shalom.

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Some Kind of Blue? Tradition, Tekhelet, and the Rav

by Rabbi Aryeh Klapper

The color of an object can be defined by the wavelengths of light that it reflects, which means that objects really have no color at all.  Identical reflected lightwaves can then hit human retinas and generate wholly different mental experiences.  Wittgenstein thought that our capacity to communicate about color at all was miraculous.  Regardless, there is no way to convey subtleties of color reliably through pure language.

For this reason, halakhic treatments of color are heavily based on practical tradition.  Which colors create niddah and which don’t is learned by show and tell, not by reading ArtScroll.

All this by way of introduction to the topic of tekhelet, the dye of uncertain color (sky-blue? sea-green? wine-dark like the Homeric ocean?)  that was used in the High Priest’s garments and that we have a mitzvah to place on our tzitzit.  The fundamental halakhic difficulty with tekhelet is that it disappeared from history for a millennium.  In “Two Types of Tradition” (שעורים לזכר אבא מרי ז”ל כרך א), the Rav made famous a family tradition about his great-grandfather the Beit Halevi’s response to the Radziner Rebbe’s attempt to recover tekhelet in the late nineteenth century.

ידוע מה שאירע

בין זקני הגאון רבי יוסף דוב הלוי ובין האדמו”ר הגאון מראדזין

,בנוגע לתכלת שבציצית

.שהרבי מראדזין חידשה וציוה לכל חסידיו להטיל תכלת בציציותיהן

האדמו”ר ניסה להוכיח על יסוד הרבה ראיות

.כי הצבע הזה הוא באמת התכלת

רב יוסף דוב טען כנגד ואמר

שאין ראיות וסברות יכולות להוכיח שום דבר

.במילי דשייכי למסורת של שאל אביך ויגדך

:שם אין הסברה מכריעה כי אם המסורה עצמה

.כך ראו אבות וכך היו נוהגים וכך צריכים לנהוג הבנים

It is well known what happened

between my ancestor the Gaon Rav Yosef Dov Halevi and the ADMOR Gaon from Radzin

with regard to the tekhelet in tzitzit,

that the Rebbe from Radzin renewed it and ordered all his chasidim to put tekhelet among their tzitzit. The ADMOR tried to demonstrate on the basis of many proofs

that this dye is in truth the (halakhic) tekhelet.

Rav Yosef Dov countered that proofs and rational arguments cannot demonstrate anything

with regard to matters that affiliate with the tradition of Ask your father and he will tell it to you.

In such matters, reason is not decisive, but rather the tradition itself:

This is what the fathers saw, and so they practiced, and so the children must practice.

 The Rav understood the Beit HaLevi to be sealing the issue of tekhelet off from the realm of argument and discussion.  What is not clear is exactly what aspect of tekhelet is off-limits to reason and evidence.

I always thought the issue was color; how could we possibly know that we had matched the Torah’s intent or Chazal’s practice?  The discovery of ancient tekhelet textiles would not help with that, as surely even a colorfast dye will change significantly over a thousand years.  The fascinating disputes about how best to restore medieval paintings suffice to demonstrate this.

But rereading the Rav’s essay this week, it seemed more likely that he had in mind the identity of the chilazon, the creature from which the dye is produced.  But this made his claim much harder to accept – why shouldn’t archaeological or chemical evidence be sufficient to identify ancient dye works, and then the chilazon?

The Rav makes the identity of the chilazon a quasi-halakhah l’Mosheh miSinai, and analogizes identifying the chilazon to identifying the etrog as the pri eitz hadar required by Vayikra 23:40.  Let us accept the analogy for the sake of argument.  If the identity of the etrog were lost for a thousand years, there would be a reasonable basis for claiming that it could not be restored on the basis of arguments from texts, no matter how clever or clear.  But if we found an ancient repository of palm, willow, and myrtle branches, and together with them the right quantity of one and only one species of fruit, would that not be sufficient grounds to reconnect us with the original tradition?

Proponents of contemporary tekhelet make this argument, with a shiur by Rav Herschel Schachter providing far and away the most coherent and compelling version I have heard or seen.  But Rav Schachter adds a wrinkle.  As part of the ongoing debate over his tekhelet, the Radziner published on p. 13 of the introduction to his Ein HaTekhelet a letter that he described as being an authorized representation of the Beit Halevi’s position.  That letter seems to undermine the Soloveitchik family tradition. 

הגאבד”ק בריסק דליטא שיחיה

מסר כל טעמו ונימוקו בדבר מיאונו במצות התכלת

לאחד ממיודעינו

:שיכתוב ויאמר לנו משמו בזה הלשון

,כמע”ל לא ביאר בדבריו מה זאת מצא אחר שנשכח

,אם מציאת הדג או הוצאת צבעו

,ורק אחרי אשר כמע”ל יברר זאת, היינו האם היה בזה דבר הנשכח והוא מצאה

.אז נהיה מחויבים לשמוע אליו וללבשו

,אכן אם נאמר כי  הדג היה במציאות

,וגם הוצאת צבעו היה ידוע בכל זמן מהזמנים שעברו עלינו מעת שפסקה התכלת בישראל

,ועל כל זה לא לבשוהו אבותינו ואבות אבותינו

הרי הוא כאילו יש לנו קבלה ומסורה מאבותינו

כי זה הדג וצבעו איננו החלזון והתכלת

,אף שהוא בכל הסימנים שסמנו חז”ל

.כי אפילו נרבה כחול ראיות, לא יועילו נגד הקבלה והמסורה

ורק אחרי אשר יברר לנו כי דג זה או מלאכת צבעו נפסק ונשכח מציאתו או ידיעתו בשום זמן מהזמנים ונפסקה בזה הקבלה, אז יהיה לנו דברי ההלכה לראיה

.ע”כ דבריו שיחיה

The Gaon Av Beit Din of Brisk in Lithuania, may he live,

gave over all his reasons and rationales in the matter of his eschewing the mitzvah of tekhelet

to one of our intimates,

so that he would write and say to us in his name, as follows:

Your Honor did not explain in his words what it is that he found after it had been forgotten.

whether it is the finding of the fish or of the way to extract its dye,

and it is only after Your Honor explains this,

namely whether there was something here that was lost and that he found,

that we will be obligated to heed him and to wear it.

However, if we say that this fish was in existence,

and the extraction of its dye was known in all the times that have passed over us from the time that tekhelet ceased to be in Israel,

and that despite all this it was not worn by our fathers and our fathers’ fathers,

that would be as if we had a received tradition from our ancestors

that this fish and its dye are not the chilazon and the tekhelet

even if it fits all the identifying characteristics given by Chazal,

and even if we multiplied proofs like sand,

they would not prevail against a received tradition

Only after it became clear to us that this fish or the craft of making its dye had its existence or knowledge ceased and forgotten at some time and this interrupted the reception,

then we would use the words of the halakhah as proofs.

Rav Schachter reads this letter as saying that empirical evidence is perfectly sufficient in the absence of a positive tradition, but cannot overcome a negative tradition.  In this case the negative tradition was that no known creature and manufacturing process could yield tekhelet.  Rav Schachter then cites Rav Elyashiv as finding the Radziner’s letter a more plausible account of the Beit HaLevi’s position than the Rav’s report, and this seems clearly to be his own opinion, even though the Rav’s report is confirmed by other branches of the Soloveitchik family.

Now the whole point of “Two Types of Tradition” is that students can challenge their teachers’ intellectual traditions but must simply receive their practical traditions.  Rav Schachter implicitly points out that this metatradition of the Rav is grounded in intellect, and therefore can be challenged and even rejected by his students.

I suggest that metatraditions by their nature as abstractions are always grounded in intellect rather than pure reception, and therefore can never have unchallenged authority.  A claim of authority on the basis of tradition is therefore never self-sufficient.  It can succeed only if there is a shared prior metatradition about the authority of tradition, and that metatradition will be accountable to the ordinary intellectual processes of Torah.

Even without Beit HaLevi’s authority, however, I find the argument that color requires a live tradition to be powerful.  Furthermore, Beit HaLevi seems to have been quite right in doubting that the Radziner had properly identified the chilazon with the cuttlefish, and I remain unconvinced by the partisans of murex trunculus (with the caveat that Rav Schachter argues that neither precision of color nor of mollusk are necessary).  The barriers to reconstructing lapsed traditions such as tekhelet should not be impassable, but they can and should be quite high.

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The Message of the Keruvim

This week’s alumni Dvar Torah is by Rabbi Shaul Epstein

Hashem commands Moshe to create Keruvim on top of the cover to the Ark of the Covenant. The verses state that these Keruvim “shall have their wings spread out above, shielding the cover with their wings… two beings with faces and wings that will face each other.” (Exodus 25:20)

Having beings with faces and wings in the Mishkan seems to contradict Judaism’s strong theological and halakhic condemnation of the use or creation of graven images. This problem is intensified if one accepts Rashi’s opinion that all the commands related to the Mishkan came after the building of the Golden Calf and its subsequent punishment. Why would G-d command the creation of Keruvim if similar images had led the Jewish people to commit one of their gravest national sins?   

Even if one assumes against Rashi that the Torah is in chronological order, the Jewish people had just heard on Mount Sinai the commandment “You shall not make for yourself a sculptured image” (Exodus 20:4)!  And if that was not clear enough, the first set of commandments Moshe receives after the revelation at Mount Sinai include the prohibition  “… you shall not make any gods of silver, nor shall you make for yourselves any gods of gold.” (20:20)

The Midrash (Mekhilta d’Rabbi Yishmael parasha 10) cited by Rashi on this second verse clearly picks up on this tension:

?אלהי כסף ואלהי זהב – למה נאמר

– לפי שהוא אומר ועשית שנים כרובים זהב, (אמר) הריני עושה ארבעה –

…תלמוד לומר אלהי זהב – אם הוספת על שנים, הרי הם כאלהי זהב

לא תעשו לכם – שלא תאמר: הואיל ונתנה תורה רשות לעשות בבית המקדש, הריני עושה בבתי כנסיות ובבתי מדרשות – תלמוד לומר לא תעשו לכם

Gods of silver and gods of gold– why was this said?

Since it is written (Exodus 25:18) And you shall make two golden cherubs, one might say “I shall make four!” –

To this end it is written “gods of gold” – If you make more than two, they are considered “gods of gold”…

you shall not make for yourselves

So that you not say: “Since the Torah permitted the making (of cherubs) in the Temple, I shall do the same in synagogues and in houses of study” – i

It is therefore, written: You shall not make for yourselves.

According to this halachic Midrash, these first commandments after the Revelation at Mount Sinai anticipate our concerns.  But why does the Torah create those concerns, and why are two cherubs okay when four would not be?

Chizkuni, echoing Midrash Lekach Tov (quoted in Torah Sheleimah), considers this an example of a biblical prohibition with explicit exceptions.  Famous examples of this paradigm include the mixing of wool and linen in Tzitzit despite the general injunction against mixing those fabrics (shatnez), as well as the prohibition of a man marrying his brother’s wife being overridden by the mitzvah of yibbum when the brother dies childless.  Rashbam (Exodus 20:20) and Abarbanel (25:10) both explain that no contradiction exists as the keruvim were not intended for worship, while the prohibition only centers on creating foreign gods.  Dr. Alexander Klein of Bar Ilan University suggests that according to Maimonides, the absolute prohibition of creating images was a decree to prevent people from coming to worship them.  It was a סייג לתורה, a decree that serves a protection from violating another prohibition.  Therefore, states Dr. Klein, since there is no innate prohibition of making images, the Torah can allow their creation in carefuly controlled ways in the Mishkan.

All these explanations provide ways to work around the apparent contradiction,  but  they avoid a larger question: Why would G-d create such a tension in the holiest center of Jewish service?  He could have commanded the Mishkan to exist without any Keruvim, thus avoiding the problem all together.

I would like to humbly suggest that facing such a contradiction in the Mishkan provides us a model for confronting the many other theological challenges we face daily. We would have much simpler lives if things were black and white and we had clear lines and paths drawn for us. Due to many circumstances mostly connected to the imperfection of this world, we live with much grey area and thus need to have exceptions and apparent inconsistencies as part of our daily existence. Seeing the Keruvim in the Mishkan, while recognizing the general prohibition of such images, teach us that sometimes appropriate tension exists within our service to the Divine.

This idea is highlighted specifically through the message and apparent purpose of the Keruvim. While there are numerous opinions regarding what these Keruvim beings might represent (children, angels, male/female to name a few), they all center on some aspect of the relationship between the Jewish people and Hashem. As stated at the end of the section describing the Keruvim (25:22)

וְנוֹעַדְתִּי לְךָ, שָׁם, וְדִבַּרְתִּי אִתְּךָ מֵעַל הַכַּפֹּרֶת מִבֵּין שְׁנֵי הַכְּרֻבִים, אֲשֶׁר עַל-אֲרוֹן הָעֵדֻת–אֵת כָּל-אֲשֶׁר אֲצַוֶּה אוֹתְךָ, אֶל-בְּנֵי יִשְׂרָאֵל

There I will meet with you, and I will impart to you—from above the cover, from between the two cherubim that are on top of the Ark of the Pact—all that I will command you concerning the Israelite people.

At the location where direct communication emanates from Hashem to Moshe and Bnai Yisrael, we see what the relationship represents through the Keruvim and we recognize that this relationship, based on love, will sometimes create discomfort, but will remain strong so long as we stay committed to maintaining this important connection.
Rabbi Shaul Epstein (SBM 2003) currently serves as a Rabbinic Coordinator for Buckeye Kosher in Columbus OH and as the Midwest Representative for KVH Kosher.

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Moral and Other Sevarot

by Rabbi Aryeh Klapper

A fundamental premise and moral of Talmud study – the one lesson without which (in my humble opinion) one has learned little or nothing – is that reason (practical and pure) and revelation need each other.  It is arrogance to believe that one can discover the truths of Torah simply by looking into oneself or by unaided contemplation of the world; it is megalomania to believe that one can understand Torah without the mediation of human intellect.  

Our tradition demands that we develop a dialectical epistemology, an approach to truth that balances and interweaves autonomous investigation with acceptance of the received Word.

Talmud is often taught and learned without explicitly referencing this issue, and “dialectical epistemology” is not a self-explanatory phrase.  So I’ll try to provide in this week’s essay a clear illustration of what I mean.

Bava Kamma 46b records a halakhic dispute between Symmachus and the Sages in the following case:  An ox gored a pregnant cow to death, and the cow was found next to its stillborn calf.  Do we presume that the stillbirth occurred before the goring, or rather that it was caused by the goring?  Symmachus says that the issue is in doubt, and so the gore-r pays half of what he would pay were his responsibility clear; the Sages say המוציא מחבירו עליו הראיה = “The one who wishes to take something away from his fellow has the burden of proof”, and so the gore-r pays nothing.

Several hundred years later, R. Shmuel bar Nachmani asks: What is the Biblical source for the Sages’ principle?  He responded by citing Exodus 24:14.

וְאֶל־הַזְּקֵנִ֤ים אָמַר֙

שְׁבוּ־לָ֣נוּ בָזֶ֔ה עַ֥ד אֲשֶׁר־נָשׁ֖וּב אֲלֵיכֶ֑ם

וְהִנֵּ֨ה אַהֲרֹ֤ן וְחוּר֙ עִמָּכֶ֔ם

 – מִי־בַ֥עַל דְּבָרִ֖ים יִגַּ֥שׁ אֲלֵהֶֽם 

.יגיש ראיה אליהם

To the Elders he said:  

Sit for us in this situation until we return to you

and behold Aharon and Chur with you

whoever is a baal devarim (= plaintiff) yigash (=will draw near) to them

meaning that he will draw-near a proof to them.

R. Ashi then attacks Rabbi Shmuel bar Nachmani’s premise:

!?הא למה לי קרא!? סברא הוא

!?דכאיב ליה כאיבא, אזיל לבי אסיא

Why should a verse be needed?!  This can be derived from sevara (=reason)!?

The one who experiences the pain goes to the house of healing!?

Rav Ashi’s attack appears to be based on the claim that unaided practical reason can reliably derive some Halakhic truths.  The relevant halakhic truth here seems roughly equivalent to “Possession is nine-tenths of the law.”  Since not all halakhic truths can be derived in this way, Revelation is still needed, but only to supplement reason.  We therefore expect Rav Ashi’s attack to be followed by an understanding of the verse as teaching such a supplemental truth, and we are not disappointed:

,אלא קרא לכדר”נ אמר רבה בר אבוה

דאמר רב נחמן אמר רבה בר אבוה

,מניין שאין נזקקין אלא לתובע תחלה

:שנאמר

 – מי בעל דברים יגש אליהם

.יגיש דבריו אליהם

Rather, the verse is needed (as the basis) for R. Nachman in the name of Rabbah bar Avuha,

for R. Nachman bar Avuha said:

What is the Biblical source for the principle that we take cognizance only of the plaintiff initially?

Scripture says:

Whoever is a baal devarim (=the plaintiff) will yigash (=draw near) to them –

meaning that he will draw-near his words to them.

This new conclusion seems unrelated to its predecessor; rather than establishing who has the burden of proof, it establishes a principle of judicial procedure.  However, Rashi draws a connection:

כגון

(ראובן תובע משמעון מנה שהלוהו (בעדים או בשטר

,’ושמעון משיבו ‘תפסת משלי – החזר לי מה שתפסת

או

 – ‘משכון היה בידך ונפחת מדמיו, שנשתמשת בו’

,בתחילה נזקקין לטענת ראובן ומוציאים לו המנה משמעון

.ואחר כך נזקקין לו לטענת שמעון לדון על דבר התפיסה והמשכון

An example (of taking cognizance only of the plaintiff initially) is

Reuven sues Shimon for a mana that he has lent him

Shimon replies: ‘You (illegitimately) seized something of mine –  return what you have seized’

or

‘You had my pledge in your possession and it lost value, because you made use of it’ –

We initially take cognizance of Shimon’s claim and extract the mana from Shimon for him,

and afterward take cognizance of Shimon’s claim to judge the matter of the seizure or the pledge.

According to Rashi, Rav Nachman is not introducing a new axis.  Rather, he introduces a special circumstance in which Rav Shmuel bar Nachmani’s principle is true but its implications are not obvious.  What happens when the defendant counterclaims, and offers to bring proof?  The verse teaches that the burden of proof needs to be met only with regard to specific claims, rather than to the general financial balance between the parties.  To extract money from Shimon, Reuven needs to prove only that Shimon’s owes him, even if the possibility remains that he has equal or greater counter-obligations.  

Rav Nachman’s statement should end the sugya.  Instead, the Talmud cites an astonishing coda:

:אמרי נהרדעי

.פעמים שנזקקין לנתבע תחלה

.והיכי דמי? דקא זילי נכסיה

The Nehardaens say:

Sometimes we take cognizance of the defendant initially.

When is that?  When his assets are losing value.

Rashi provides two illustrations of losing value.  

  1. when Shimon has a deal in place to sell the object he is counterclaiming from Reuven.  
  2. when Shimon is under financial pressure and will have to sell his real estate at a below-market price in order to pay Reuven.  

The common denominator of these cases is that the Nehardeans disregard R. Nachman’s clarification when they see it as generating injustice, despite its Biblical derivation, and even though their standard of injustice is derived solely from intuition.  What entitles them to do this?

With this question in hand, let us return to Symmachus and the Sages, and ask an almost opposite question.  If the Sages’ principle is so obviously true that no verse is needed to teach it, how could Symmachus disagree with them?  

The answer is that Symmachus also addressed a special case.  How heavy is the burden of proof?  In many areas of halakhah, a probabilistic argument (=rov) is sufficient – if it can be demonstrated that possibility X is more likely than possibility Y, halakhah will treat X as true.  Symmachus held that such a demonstration was also sufficient for the purposes of extracting money, but the Sages disagreed.  (Perhaps the Sages believe that Revelation is needed to overrule Symmachus.)

ROSH (Bava Kamma 5:1) collects several interpretations that disagree with Rashi’s.  Rabbeinu Tam, for example, thinks that Reuven’s claim must be for personal injuries rather than property damage, and ROSH thinks that in such a case Shimon doesn’t even get the standard 30-day stay of judgment to collect exculpatory evidence.  RIVA interprets “taking cognizance of only the plaintiff initially” as meaning that the plaintiff gets to put his full case on before the defendant rebuts, and wins the case even if the defendant plausibly claims that his witnesses died or left town owing to the delay.  RAAVAD interprets it as giving the plaintiff the right to suspend his case indefinitely without prejudice, even if the defendant asks for a verdict.  

What matters for us is ROSH’s summary comment:  

וכל הני פירושי סלקי אליבא דהלכה

:דסברות גדולות הם

All these interpretations come out in accordance with the halakhah,

because they are in great accord with reason (=sevarot gedolot).

What sort of reason?  Remember that Rav Ashi gave what appeared to be homespun wisdom via analogy – the burden of proof is on the plaintiff, as why should the healthy party (=the party in possession) go to the doctor (=beit din)?  Shitah Mekubetzet cites Rav Yehonatan as offering a very different interpretation:

כלל גדול נתן משה רבינו עליו השלום לשבעים זקנים ואהרן וחור

שלא ידינו שום אפוקי ממונא בדעת מכרעת וברובא

.אלא בראיה

סברא הוא דכאיב ליה כאיבא אזיל לבי אסיא

,לא היה צריך משה להזהירן

,דפשיטא הוא דלא גרע דין אחד ממשפט הרופאים

שאין הרופא דן את החולה לפי סברתו לבדו

,’עד שאומר לו החולה ‘ראשי כבד עלי ובמקום פלוני’, ‘ומשתנה עלי במקום פלוני למקום פלוני

ולפי שהוא מראה לו פנים הוא דן אותו

כך התובע צריך להראות לו פנים שתביעתו חזקה וברורה

.כלומר בעדים

Mosheh Rabbeinu of blessed memory gave a broad principle to the seventy elders and Aharon and Chur

that they should not extract any money judicially on the basis of compelling reason or probability

rather (only) via proof.

But (Rav Ashi held that) “the one who experiences the pain goes to the house of healing”

and therefore Mosheh did not need to command them about this,

since it is obvious that legal judgement does not require less care than medical judgement,

and a physician does not judge the patient on the basis of his unaided reason

rather he waits for the patient to say “My head is heavy and hurts in that place”, or ?

and he judges in accordance with what the patient makes apparent to him

so too the plaintiff must show that his claim is strong and clear,

namely via witnesses.

According to R. Yehonatan, reason teaches that one cannot extract money on the basis of reason alone!

Bottom line: Reason can be a source of halakhic truth.  When this appears to make a verse of Revelation redundant, we may interpret that verse as limiting or countering the halakhic truth derived from reason.  But this does not shake our underlying epistemological faith in reason, so we may limit that limit on the basis of reason.  This cycle can and should be iterative.  Shabbat shalom.      

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The Hidden Relationship of Kibbud Av Vaeim

This week’s alumni Dvar Torah is by Rabbi Joshua Strulowitz

Shemot 21:17 and 21:19 discuss special obligations toward parents.  An adult child who hits or curses his parents is liable for the death penalty. Sandwiched between these two pesukim is a statement that one who kidnaps and sells any other human being is liable for the death  penalty.

This is a bizarre juxtaposition. Why is kidnapping placed in a section focused on honoring one’s parents?

Talmud Kidushin 31 presents several archetypes of kibbud av vaeim (=honoring parents). Dama ben Netinah famously refuses to wake his father despite the severe financial consequences for showing such a high level of deference to his father’s needs (Kiddushin 31a).  Rabbi Tarfon would kneel by his mother’s bedside, allowing himself to be stepped on to ease her climbing in and out of bed – and the Talmud concludes that his dedication was insufficient, and the mark of aqequate kibbud av vaeim is standing by quietly as one’s mother throws one’s money into the sea.   The message seems to be that the way we directly treat our parents is the most important aspect of our fulfillment of kibbud av vaeim.

The great  Spanish sage Don Isaac Abarbanel (1437-1508) uses the juxtaposition between kidnapping and honoring parents to modify this message.  He explains that the prohibition against kidnapping and selling another is inserted as a subtle reference to Yosef and his brothers, whose sibling rivalry tore their family apart and caused unspeakable pain to their father.  

Abarbanel’s method of interpretation here is fascinating and creative. He reads a halakhic verse as an allusion to a story, and and then learns a Halachic principle from the story.

Sibling relationships are often a volatile mixture of love, respect, jealousy and resentment. One might think that these relationships are voluntary commitments. One can embrace them as long as they remain positive and beneficial, but one has the right to discard them if the relationship goes south.

Abarbanel understands the reference to Yosef as the Torah’s way of teaching us that these complicated relationships are not optional. They are part and parcel of the mitzvah of kibbud av vaeim. As much as it means for parents to have children who show them love and respect, it is often just as important for them to see their children treat each other the same way. Often parents get no greater pleasure than seeing their children have a close bond, be it in childhood or adulthood.

After Yaakov’s passing, Yosef’s brothers become nervous. The Torah states (Genesis 50:15)

וַיִּרְאוּ אֲחֵי יוֹסֵף כִּי מֵת אֲבִיהֶם וַיֹּאמְרוּ לוּ יִשְׂטְמֵנוּ יוֹסֵף וְהָשֵׁב יָשִׁיב לָנוּ אֵת כָּל הָרָעָה אֲשֶׁר גָּמַלְנוּ אֹתוֹ

And Joseph’s brothers saw that their father had died, and they said,  “Perhaps Joseph will hate us and return to us all the evil that we did to him.”

The brothers assume that the only reason Yosef never enacted revenge against them was out of a commitment to kibbud av.  Yosef kept up the appearance of a positive relationship with his brothers for his father’s sake. After Yaakov dies, the brothers concoct the story that Yaakov gave them a message to tell Yosef not to harm his brothers. They understood how central the brothers’ relationship was to kibbud av, and assumed that keeping it in that context was the best way to restrain Yosef.  Abarbanel’s reading suggests that they may have been correct.

Our relationship with our siblings can be the greatest manifestation of kibbud av vaeim. But taken to its logical end, Abravanel challenges us to ask ourselves how all the relationships in our life impact our parents and our obligation to honor them.

 

Rabbi Joshua Strulowitz (SBM 2000) is a member of the faculty of Yeshiva University High School for Girls.

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Creativity and Avodat Hashem

Based on a lecture by Rav Michael Rosensweig.  Rav Rosensweig’s later written version was published as Personal Initiative and Creativity in Avodat Hashem” in The Torah U-Madda Journal Vol. 1.

This summary, by Aryeh (Robert) Klapper, was originally published in Hamevaser, Iyar 5748/May 1988)   All errors of formulation, fact, etc, are Rabbi Klapper’s.

In the beginning, God performed the utterly inimitable creation ex nihilo, out of nothing.  Yet man is required to emulate all of His ways – “lehidamot lo kemah she’efshar”, “to be similar to him to the extent possible”.

Creativity and submission clash constantly in Jewish thought.  “One should not rely on miracles”, but Ramban claims that each moment of existence is a hidden miracle.  Prayer and Kabbalah are means of “affecting” the Divine, but both are aspects of avodat Hashem (service of G-d).  And finally, “No one is free except those who have accepted upon themselves the yoke of heaven.”  From that paradox, the necessary synthesis emerges.  Human beings must create, but only for the greater glory of G-d.  And we must realize that we can at best rediscover Divine truths or develop our own tzelem Elokim (Divine image); we can but transform the yesh G-d brought into being.

Rav Yosef Dov Soloveitchik teaches in Lonely Man of Faith that human beings have a religious obligation to create in both the physical and metaphysical realms, to build the world physically, spiritually, and even aesthetically.  And while the rigid Halakhic system limits human autonomy greatly, unmoderated inflexibility leads to the ritualism Yeshayahu denounced and the legalism so often criticized today.  Judaism must provide a way for human beings to achieve a personal relationship with G-d.

Gershom Scholem writes that every religion creates mysticism in reaction to increasing formalization, surviving undivided if the formal structure allows accommodation.  Kabbalah, however, is neither accessible nor attractive to all.  And extra-halakhic religious systems hold the danger of subjectivism, which Rav Soloveitchik teaches in Halakhic Mind is actually self-worship.

Torah provides several non-mystical outlets for human creativity within the halakhic system.  Sefer Hachinukh, for example, believes circumcision to be an act of self-perfection, and possibly the mitzvah of “zeh keli v’an’veihu”, of beautifying mitzvot, allows human beings to redefine cheftzot shel mitzvah, mitzvah-objects.  Rambam in his Commentary on the Mishnah explains that God gave the Jews many mitzvot so that each would find one to excel in and be particularly inspired by.  The permission of tefillas n’dovoh, voluntary prayer, provides similar opportunities to personalize religion.  Finally, most rishonim encourage the search for ta’amei hamitzvot. rationales for commandments.  Sefer Hachinukh among others believes that each commandment has multiple reasons, enabling each Jew to personalize their kavannah while performing it.

The Yerushalmi extends the tension between creativity and submission to the realm of talmud Torah“Kol mah she’atid talmid vatik lechadesh k’var ne’emar l’moshe misinai”, “Everything a veteran student will originate in the future was already said to Moshe at Sinai”.  The tradition is both vast and rigid.  But it also contains ample evidence of individual contribution.  “Chayav adam lomar davar b’shem omro”, one must identify the Torah one has learned with the one who taught it.  The dialectic method pioneered by the Ba’alei haTosafot revolutionized Talmudic studies in the Middle Ages, as did the pilpulists in the fifteenth century and Brisk in the nineteenth.  Various scholars of the fifteenth and sixteenth centuries claimed that Eliyahu haNavi had revealed himself to them, giving their works a legitimate source outside the received tradition.

David Singer and Moshe Socol recently argued in Modern Judaism that the Rav’s description of his grandfather as a revolutionary resulted from the influence of modernity on his thought, that chidush is actually antithetical to halakhah.  Their position was considered and rejected by the Tanna Rabbi Elazar ben Azariah, who once asked his students “Mah chidush ne’emar hayom?”, “What of originality was said today?”  They replied in surprise “v’halo talmidekha anu?”, “Are we not your students?”  How can we say anything that you have not already heard?  And he told them: “There cannot be a House of Study without chidush”.  The Yerushalmi itself believes that a veteran student can be mechadesh.  Yet the concepts of mesorah and y’ridas hadoros (continuous decline of the generations dating from the Sinaitic Revelation) would seem to exclude any sort of development or progression.

Judaism solves the creativity-submission conflict by incorporating chidushim into the Mesorah.  A talmid vatik can be mechadesh, but the chidush is valid only insofar as it can be included within the Sinaitic revelation, only to the extent that it is rediscovery.  

This solution does not, however, account for the concept of “eilu v’eilu divrei Elokim Chayim”, “These and those are the words of the living G-d”.  The Talmud applies this concept to directly contradictory opinions.  Such opinions cannot be contained within an ordinary tradition.

But the Mesorah is no ordinary tradition.  The Mishnah tells us that every word heard at Sinai divided into seventy voices, that multi-dimensionality was built into the Mesorah at its start.  When Moshe Rabbeinu went up to the heavens, he saw the Heavenly Court developing forty-nine reasons for both permission and prohibition on ritual issues, and he was told “nims’ru lechakhmei yisrael vehahakhra’ah k’mosam”, “They have been given to the sages of Israel, and the decision is theirs”.  Maharal believes that all opinions arrived at by legitimate methods on halakhic issues have significance, albeit those accepted lehalakhah have more; each issue has “aspects of tum’ah and aspects of taharah”.  And Ritva believes in multiple truth, that somehow mutually exclusive opinions on halakhic issues can be true simultaneously.

The justification for this fragmentation of tradition is Judaism’s acceptance and validation of the uniqueness of every human being.  The Mishnah tells us that because of that uniqueness, “chayyav kol Adam lomar: ‘bishvili nivra haolam’”, “Every human being must say: ‘The world was created for me’”.  And Tanchuma points out that individuality is more than skin deep: “Just as their visages differ from each others’, so do their minds”.

If initiative is permitted, then it is obligatory; imitatio dei cannot be disregarded in talmud Torah, the most spiritual activity of all.  The passion of the Beit Hamedrash, “milchamtah shel Torah”, derives from the religious nature of the intellectual battle in Torah.  But again the emotion and the creativity must be within the system: “afilu av uvno v’rabi v’talmid bish’as limud na’asim oyvim v’eynam zazim misham ad shena’asim ohavim”, “Even a father and son or Rav and student become enemies during study, but do not leave (their studies) until they become friends”.  The words of Torah are “ever-multiplying” yet “fixed as driven nails”.  Chidushim are valid only insofar as they possess both characteristics.

Perhaps the most poignant testimony to the value of human initiative in Torah comes from the Vilna Gaon, who turned down a dream-maggid’s offer to teach him the entire Torah effortlessly.  But throughout Jewish history scholars have defended man’s right and need to earn the Torah and make it his own.  Geonic opponents of codification argued that its costs outweighed its benefits, that preventing misinterpretation was not as important as making sure people learned the original sources.  The Maharal’s brother protested the Shulchan Arukh on Tanchuma’s grounds; as people’s minds differ from one another, each can extract something unique and valuable from halakhic texts.  The Maharal in Netivot Olam railed against those who pasken from sifrei psak (handbooks of halakhah) without checking the original sources.  “Ein l’dayan ela mah she’eynav ro’os”, “A judge cannot take into account anything other than what his eyes see”; psak given from secondary sources is a case of the blind leading the blind.

The abuses feared by opponents of codification have never been more evident than in our era, in which reliance on summaries and English “how-to” books, and to a lesser degree on the Mishnah Berurah, have made the Magen Avraham and even the Taz obsolete.  Sadly, never has the need for such reliance been more widespread.  Yet specific historical eras encourage sensitivity to certain issues, and we must believe that our generation has something unique to contribute.  If this seems presumptuous of us, if we are accused of ignoring the concept of y’ridas hadoros, our response must be an abiding faith in the progression of ideas and the unfolding of mesorah.

Even those less experienced and less talented are valuable links in the chain of mesorah.  Individual responses are important in both lomdus and hashkofoh, and the inevitable subjectivity created by the order and amount of the posek’s exposure to sources plays a legitimate role in psak.  But one must constantly challenge his or her own objectivity to avoid subjectivism and self-worship.

Not all ideas about and in Torah are worthwhile.  Tosafot denounces “charifus shel hevel”, “worthless sharpness”, as does Maharal “pilpulo shel hevel”.  Capacity to be mechadesh requires a minimum level of knowledge, method, and the parameters of conceptual plausibility in halakhah and machshovoh, plus exposure to real and textual rebbeim.  But given those conditions, every Jew has the right to view themselves as a potential contributor to and transmitter of the Mesorah.  We have the obligation to pursue truth with passion yet with the utmost respect for our predecessors in the eternally unfolding Mesorah.

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The Decalogue in Rabbinic Literature

This week’s alumni Dvar Torah is by Dr. Malka Simkovich

This week’s parsha features a passage that in many ways, is the most central document in Israelite history. This passage, Exodus 20:1–13, is known as the Decalogue, or The Ten Commandments (although some of these commandments are actually statements). In the centuries following the dramatic moment of divine revelation at Sinai, the Decalogue took hold as the central articulation of Israelite theology.  Its contents, along with the ethical injunctions in Vayikra 19, were paraphrased and referenced in many passages preserved in biblical prophetic literature. And by the Second Temple period, the Decalogue was not only a central idea, but a liturgical document.  Despite its importance in the biblical and late Second Temple periods, the Decalogue is not preserved in rabbinic liturgy. Nor is it of central theological interest in rabbinic literature. While its verses have retained an important place in Jewish tradition, they have also been eclipsed by a different statement, one uttered not by God,  but by Moshe. This passage is, of course, the Shema (Deut 6:4–9). In order to understand why the Shema came to replace the Decalogue, it is helpful to explore how Jews and early Christians living during this period related to this text.

In the Second Temple period, the Decalogue had pride of place in Jewish thought and liturgy. Tefillen discovered at Qumran, the archaeological site adjacent to the caves where the Dead Sea Scrolls were discovered, contain parchment that records both the Shema and the Decalogue. These tefillen were likely used in the first century BCE or first century CE, when the Qumran sect flourished. Other Jewish documents written during these two centuries also mention the Decalogue. The Sentences of Pseudo-Phocylides, a wisdom text that was written in Greek by a Jew who probably lived in Alexandria, Egypt, opens with a paraphrasing of the Decalogue: the writer mentions every injunction of the ten commandments except the proscription to keep the Sabbath (Pseudo-Phocylides, 1–18).  A second document, which is part of a twelve-book collection probably written and assembled by Jews in the late Second Temple period called The Testaments of the Twelve Patriarchs, also paraphrases the Decalogue (Testament of Issachar 5:1-5). Even the great first century CE Jewish Philosopher Philo of Alexandria was fascinated with the Decalogue: he wrote an entire treatise devoted to interpreting it.

Early Christian documents whose authors had not fully severed their ties to Judaism refered to the Decalogue as an authoritative text that was foundational to their faith. The early Christian text written in Greek known as the Didache, was written in the late first or second century, cites the twelve apostles of Jesus as paraphrasing the Decalogue to their students. Likewise, the third century Christian document called the Didascalia, which also purports to record the teachings of the apostles, does the same (Didache 2:1–3; Didascalia 26:9–10).

But by the early rabbinic period, the Decalogue was falling out of favor in some Jewish circles. Even as Christians were making reference to the Decalogue, Jews were disputing whether to recite it regularly in their synagogues.

The decision to stop reciting the Decalogue after the Shema is well documented. The Bavli explains that the daily liturgy used to comprise the Decalogue, the Shema, and the Amidah, but the recitation of the Decalogue was abolished because of the heretics (minim) (b. Berakhot 12a). Perhaps the concern was that the heretics would argue that the recitation of the Decalogue proved that only the portions of the Torah that the Israelites heard directly from God were true (Rashi on Berakhot 12a). Or perhaps the rabbinic concern was that reading the Decalogue would affirm sectarian claims that only the Written Law was authoritative, whereas the Oral Law was not. But these explanations do not explain why the Shema continued to be recited. After all, the Shema is part of the Written Law as well.

Perhaps the reason why the Decalogue fell out of favor in lieu of the Shema is that for the most part, the Decalogue comprises ethical instructions that, with the exception of the injunction to keep the Sabbath, all of humankind are expected to observe, whereas the Shema is a theological statement that affirms the election of Israel by God. By the early rabbinic period, the seven Noahide laws had taken form  which included some of the statements of the Decalogue (t.Abodah Zara 9:4; b.Sanhedrin 56a; earlier articulations of these laws in the second century BCE document Jubilees 7:20–21, as well as Sibylline Oracle 4:24–39, a document probably composed in the late Second Temple period). This led towards a sense that the Decalogue had universalist elements in it.

Even the mention of the Sabbath in the Decalogue would not have necessarily been viewed by the rabbis as particularistic. In the Roman period, many Gentiles observed the Sabbath without converting to Judaism. These people were called God-fearers (see, for instance, Juvenal, Satires, 14.96–106). The Decalogue, then, may have been viewed as potentially applicable to all of humankind from start to finish.

A second difference between the Decalogue and the Shema is that the Decalogue is a document that was spoken by God, whereas the Shema was spoken by Moshe. The Shema, then, represents the affirmation of all Israelites to commit themselves to a covenantal relationship, whereas the Decalogue represents the divine injunction to do so.

Given the fact that the Decalogue has been subjugated to the Shema, how might we appreciate its importance in our tradition today?

I believe that both the Decalogue and the Shema are foundational to Jewish thought. At the moment that the Israelites were leaving Egypt and making the transition from slavery to freedom, they needed to hear a universalist message: a message that while they were chosen by the One True God to be His elect people, this same God that had just chosen them had jurisdiction over the entire world. Indeed, the major trope of the Exodus story is that God controls the entire earth (see, among others, Exodus 8:6, 8:18, 9:14, 9:29, 10:2, 14:1, 14:18). Forty years later, a new generation of Israelites on the cusp of entering into Israel needed to hear a different message: As they entered the an unknown land, aware that they were embarking on inevitable military conflicts and the loss of their main conduit to God, Moshe, the Israelites needed to hear that God was committed to a relationship with them that, while it could include suffering as punishment for sins, would endure for perpetuity.

The community of Israelites who entered the land of Israel and their descendants held fast to the idea that God was committed to an eternal relationship with them. This relationship was reflected in the relational text of the Shema, in which the Israelites affirmed that God was our God, rather than the Decalogue, which affirmed that God was the God—the God who had taken the Israelites out of Egypt. Since the Decalogue was spoken by God and the Shema was spoken by Moshe, the Shema represented the Israelite side of the covenantal relationship—the side that required the Israelites to continually affirm their identities in light of their connection to God.  

The rabbis understood that the Decalogue and the Shema were given at different turning points in Israelite history, bore different theological messages, and reflected two different voices. Aware that non-rabbinic communities were espousing views that they regarded as heretical, and that these same communities were laying claim to their holy texts, the rabbis turned to the document that they believed represented their own voice, and their own commitment to serving God, rather than the voice of God that proscribed them to do so.

Shabbat shalom!

Dr. Malka Simkovich (SBM 2006) is an Assistant Professor of Jewish Studies at Catholic Theological Union in Chicago.

 

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