Category Archives: Weekly Devar Torah

Music During the Omer? A Model Modern Orthodox Responsum

by Rabbi Aryeh Klapper

Dear Rabbi Klapper,

What are your thoughts listening to live music during the Omer?  I know that different people do different things regarding this.

Thanks!

Jack Smith

 

Dear Jack,

Thank you for your question!  Every halakhic question is vitally important in and of itself, but your formulation properly raises a really “big” and broad issue: How should an individual Jew in America today (or Israel, but that deserves separate treatment) decide or discover what their minhag is on issues where multiple legitimate minhagim exist?

A good first step is to study about the existing options.  For an excellent survey of halakhic positions regarding “mourning”, I encourage you to read the essay by Rabbi David Brofsky here.  A very different and valuable presentation is by Rabbi Eliezer Melamed here.  (It may be instructive to compare the breadth and depth of each to the presentations that come up first on Google.)  I won’t try to duplicate their work here, and to some extent will rely on them.  Rather, I will try to frame the discussion in a way that empowers you to make informed and meaningful choices, and look forward to further correspondence.

Mourning is the secondary halakhah of the omer period.  The primary halakhah is the Biblical mitzvah of counting the omer.  This mitzvah connects the barley and wheat harvests, the pilgrimage holidays of Pesach and Shavuot, and marks the period between the Exodus and the Revelation at Sinai.  The counting seems intended to create throughout an atmosphere of excitement, celebration, and anticipation that is wholly incompatible with mourning.  Even without the Beit Hamikdash, and therefore without the mitzvot of sacrifices and pilgrimages, it seems inappropriate to be mourning while on the way to Sinai.

The Omer period begins with Chol HaMoed and the last Yom Tov of Pesach, which override any mourning restrictions.  The rest of Nisan is a period in which certain forms of public mourning, such as eulogies, are forbidden.  If mourning begins on day 1, the first sixteen days are our “Vulcan” period, in which the restrictions of Pesach, Nisan and the Omer combine to forbid both happiness and sadness. It seems that we are required to be purely rational and emotionless, at least in public.  But that doesn’t seem realistic or healthy, and one needs to think about how to handle situations in which, for example, insisting on the absence of music would constitute obvious mourning.  Then Yom HaAtzmaut comes only five days later (or six; another issue deserving separate treatment)!  At the other end, the 3 Days of Hagbalah immediately preceding Shavuot, which commemorate our preparation for Revelation, are also clearly a time of joy.  The New Moons of Sivan and Iyyar also fall within the Omer period.  So how can we mourn?

Yet there is no denying that just about every pre-20th century community observed an Omer mourning custom of 32 or 33 days,  starting either from Omer day 1 (=16 Nissan) or else on 1 or 2 Iyyar.  These customs are generally connected to the report that vast numbers of Rabbi Akiva’s students died during the first 32 or 33 days (as the result of interpersonal misbehavior, the Bar Kochba revolt, or both). The regnant explanation of the later starting dates (1 or 2 Iyyar) is that the mourning period was shifted in some parts of Ashkenaz in order to commemorate the Jewish victims of the Crusades, which reached Ashkenaz in Iyyar.  But why move the dates, rather than just extending them?    I wonder if it was an excuse to leave at least Nissan’s happiness unblemished.

The shifting of the dates yields a very odd halakhic result.  A doubtful custom cannot overcome a certain prohibition (and there is room to question the power of a definite custom as well).  Because there are divergent customs with regard to all dates except Iyyar 2-4 and 6–18, and the vast majority of American Jews do not belong to geographic communities bound by a particular custom, a good formal halakhic argument could be constructed to forbid mourning on many or all the other dates.  Instead, the standard halakhah in practice has been that at least those who identify as generic Ashkenazim may adopt any of the preexisting customs as to dates, and even to change their custom from year to year without hatarat nedarim.  One should ideally develop a consistent practice over time, and strive for consistency within any given year; but there is much space for accommodating the needs of friends who have different minhagim, e.g. friends’ celebrations or roommates who listen to music.  And speaking of music . . .

There are two basic frameworks for Omer mourning

1)  Simchat m’reut – essentially, parties.  In this framework there is no issue with live music per se, only with the atmosphere often generated by live music.  So for example chamber music concerts in a concert hall, when you’re not allowed to talk, would be fine (but receptions before and after would not be, even if there were no music).  Conversely, a party with dancing to recorded music would be forbidden.  Generally any combination of alcohol and music would be forbidden.

2)  Specific customs – Obviously there can be no minhag going back more than a century about recorded music.  Various practices have developed as to whether and how to extend a prior minhag about live music.

These options may reflect two radically divergent approaches to religious expression generally.

The first approach, which was championed (at least in this case) by Rav Yosef Dov Soloveitchik, contends that formal halakhah should set the pattern for all religious behavior.  Ritual creativity is inherently suspect as a potential violation of bal tosif (adding to the Torah) or as an imposition of subjective desire onto objective obligation.

By contrast, Rav Ovadiah Yosef sees popular intuition as a valuable guide to balancing conflicting religious emotions and spiritual sensibilities.  The omer period is legitimately a time of both mourning and celebration.  I contend that this balance is and should be affected by the establishment of the State of Israel and the development of Yom HaAtzmaut, Yom Yerushalayim, Yom HaZikaron, and Yom HaShoah.

If your friends and religious peers do not have a clear practice regarding dates and/or music, and a broadly respected local halakhic authority hasn’t taken a firm stand, and you haven’t been clear about your approach in previous years, there’s a great deal of room for personal choices, but one should have in mind “beli neder” if you want to be able to switch again next year.

I think you should aspire to adopt consistent frameworks for making those choices.

How do you balance the advantages and risks of giving halakhic force to popular spiritual intuition?  Do you see halakhah as a stabilizing force, a kind of spiritual insurance, that enables risk-taking?  As a potentially stultifying and homogenizing force that must be balanced by creativity?  As the best or sole method of turning self-satisfying human actions into service of G-d?

What role does music, recorded or live play in your life and the life of the communities?  Is it an essential and constant background that accompanies all emotions, or limited to celebratory contexts?  Does its periodic conscious absence enable you to focus on religious ideas and contexts that you might otherwise give short shrift to?  Does it make you more susceptible to dwelling unconstructively on negative emotions?  Bear in mind that a powerful halakhic argument can be made that music should always be forbidden while we have no Beit haMikdash, but is nonetheless permitted as a concession to our emotional and religious psychology.

How do you balance the “background” religious emotions generated by the ongoing state of the world and condition of the Jewish people?  Should that balance be different in Israel and the United States?

While you grapple with these questions, I suggest that the default American Modern Orthodox framework is that one should not listen to live music in any context from after Pesach through day 32 (other mourning practices may continue through day 33 for those who identify as Sefardim), excluding Yom Ha’atzmaut, but that listening to recorded music is generally permitted.

Bivrakhah,

Aryeh Klapper

Leave a comment

Filed under Uncategorized, Weekly Devar Torah

Tangents and Main Points

by Rabbi Aryeh Klapper

Students in my Talmud classes are often asked to recall ‘how we got here from there’, meaning how we meandered from the alleged base text or main topic of a session to the fascinating but apparently wholly disconnected conversation we are in.  My class thereby models the text, as the Talmud is constructed associatively; and the tangents are often the true main point of the class, and of Talmudic sugyot).

For this to work, the students must not notice when their train leaves the rails and begins to roam the intellectual countryside, or to mix metaphors:  like Wile E. Coyote, if they look down too soon and notice that they’ve gone off a cliff, they never make it to the other side.

This is a difficult trick to pull off in writing, where language is the only tool that can keep the reader from awareness.  One strategy is to do a reverse Hansel and Gretel, sprinkling candy crumbs on the ground behind you in hopes that the reader will follow and keep picking them up until their original trail is lost.  But it is a trick often necessary when writing a dvar Torah on the early parshiyot of Vayikra, which are rarely directly meaningful to contemporary readers.  Here is one attempt.

Vayikra 7:24 states:

But the organ-fat of a neveilah (an animal that has died of a cause other than kosher shechitah)

or the organ-fat of a tereifah (an animal that was halakhically dying before its shechitah)

may be used for every task, but you surely must not eat it.

Rashi comments:

“may be used for every task” – This came and taught about organ-fat that it does not acquire the tum’ah of the neveilah from which it is taken.

But what does the acquisition of tum’at neveilah have to do with suitability for all tasks?  Rashi here is silent, but “the words of Torah are often poor in one place but rich in another”.  Rashi’s source is a dispute between Rabbi Akiva and Rabbi Yose the Gallilean on Talmud Pesachim 23a:

“may be used for every task” – 

What does Scripture teach by writing “for every task”?

You might have thought that it would be permitted for tasks of the Above, but prohibited for mundane tasks –so Scripture writes “for every task”.

This is the opinion of Rabbi Yose the Gallilean.

But Rabbi Akiva says:

You might have thought that it would be permitted for mundane tasks, but prohibited for tasks of the Above– so Scripture writes “for every task”.

What “tasks of the Above” is organ-fat suitable for?

Rashi comments (on the position of Rabbi Yose the Gallilean) that it is useful to prepare hides for Temple maintenance.

Rabbi Pinchas HaLevi (Poland/Germany, d. 1805) in his Panim Yafot argues that Rabbi Akiva reads the word every as permitting one to bring hides that have been prepared with such fats into the Courtyard of the Temple.  This presumes that one may not bring other parts of a neveilah into the Courtyard owing to their tum’ah, and that, happily, turns out to be the position of Rabbi Akiva in Mishnah Eruvin Chapter 10.

If a dead sheretz (rodent? reptile? which carries the same degree of tum’ah as a neveilah)

was found in the Temple (on Shabbat, when the muktzah prohibition prevents direct manual removal) – a priest removes it with his belt (even though the belt acquires tum’ah thereby), so as not to linger the tum’ah,

according to Rabbi Yochanan ben Beroka;

Rabbi Yehudah says:

With a wooden stick (that does not acquire tum’ah), so as not to increase the tum’ah.

From what places in the Temple must it be removed (even on Shabbat)?

From the Sanctuary and the Hall and between the Hall and the Altar,

according to Rabbi Shimon Dwarfson;

But Rabbi Akiva said: 

From the places where one would be liable for karet if one brought a dead sheretz there deliberately, or a chatat sacrifice if one brought a dead sheretz there accidentally – 

from those places one must remove it; 

but all remaining places – we cover it with a container.

Now why would Rabbi Akiva hold that one should not remove a dead sheretz from all parts of the Temple, when there is a Biblical violation against bringing tum’ah into the Temple?  Eruvin 104a suggests that Rabbi Akiva agrees with a seemingly paradoxical position later stated explicitly by Rabbi Tovi bar Kisna in the name of Shmuel:

Said Rabbi Tovi bar Kisna in the name of Shmuel:

One who brings in (to the Temple) something that has the same tum’ah as a dead sheretz – is liable, but (one who brings in) a dead sheretz – is exempt.

Rabbi Tovi bar Kisna’s position is derived from Numbers 5:3, which explicitly requires sending certain human beings who have acquired tum’ah in certain ways out of the desert camp, and is understood as applying to the Temple afterward.

Scripture writes: “Whether male or female, you must send away” –

This applies to all those who can become tahor via immersion

But excludes a dead sheretz which cannot become tahor via immersion

Thus Rabbi Akiva can hold that there is no prohibition against bringing a dead sheretz in, and therefore no obligation to bring it out, and therefore one should not violate the muktzah prohibition to remove it.

But this actually proves too much – even Rabbi Akiva holds that one must remove a dead sheretz from the Sanctuary and the Hall on Shabbat.  If there is no prohibition against bringing one in, why should one violate muktzah to remove it?

Rashi explains:

he holds that one who brings a dead sheretz into the Temple is exempt –

Meaning there is no Biblical obligation to ‘send it out’,

and therefore the Rabbinic muktzah prohibition is not pushed aside to remove it.

But from the Sanctuary and the Hall we do remove it,

as the Sages did not make their words stand in the way of the Honor of the Divine Presence

The last line of Rashi is fascinating.  On Berakhot 19, the Talmud has a long discussion as to whether, or under what circumstances, human dignity overrides what would otherwise be the Halakhah.  This question is initially presented as dependent on the relative value of human and Divine dignity.  In the course of the discussion, we learn that human dignity presumptively overrides all Rabbinic legislation.  Rashi here extends that principle to Divine dignity as well.  On what basis does he do this?

I suggest the following.  On reflection, it should be clear that the Talmud actually presented a false choice.  The real question is not whether human dignity overrides Divine law, but rather the place of human dignity within Divine law – and if G-d mandates concern for human dignity, doing so cannot violate His dignity.  The conclusion that human dignity sometimes trumps even Biblical-level law in no way contradicts this.  Therefore, Rashi reasons, the premise that Divine dignity trumps human dignity stands, and therefore, if human dignity trumps Rabbinic law, so must Divine dignity.

But Rashi makes a further leap.  In Berakhot, Divine dignity is manifested in human obedience.  Here, Divine dignity is implicated in human aesthetics – no human being of consequence would tolerate dead animals in their home, so it violates His dignity for one to be left where His presence dwells.  By bringing His presence down to human beings – by investing the Mishkan – G-d therefore makes His dignity vulnerable in new ways – not only to human free will, but to the chances of mortality, human and animal.  Perhaps it makes sense, then, that the Temple is so hedged about with commandments – in recognition of G-d’s willingness to risk His dignity so as to dwell among us, we assign ourselves the task of magnifying His dignity to the extent possible through our obedience.

Shabbat Shalom

This Dvar Torah is a rewrite of a Dvar Torah published in 2014.

Leave a comment

Filed under Weekly Devar Torah

Does “It’s Never Been Done” Imply “It Should Never Be Done”? Part 2

by Rabbi Aryeh Klapper

Part 1 of this series can be found here.

PART 1 of this series established that there is no bar under halakhah to arguing that an unprecedented action is halakhically permitted.  This principle is expressed pithily by Mishnah Zevachim 12:4 as “אין לא ראינו ראיה”, “‘We have not seen’ is not proof”.  Nonetheless, scholars may be required to conform when unsophisticated communities object to a practice on the grounds that they have never seen it done, even when the objection is halakhically groundless.  I argued that the Modern Orthodox community should be regarded as sophisticated by historical standards, but that there might – or might not – be reasons to treat it as if it were unsophisticated in certain cases.

RAMO Choshen Mishpat 37:22 expresses the position that despite the Mishnah Zevachim, there are circumstance under which “לא ראינו הוי ראיה”, “‘We have not seen’ is proof”.  This installment will seek to identify as precisely as possible the conditions under which this statement of RAMO applies.

Siftei Cohen (Shakh) to 37:22 connects this RAMO to the opening of Shulchan Arukh Yoreh Deah (YD), the very first topic covered in the formal semikhah curriculum.  YD 1:1 itself is based on the opening line of Mishnah Chullin: “הכל שוחטין ושחיטתן כשרה”, “everyone slaughters, and their slaughtering is valid”.  Who is included in “everyone”?  Talmud Chullin lists a variety of marginal men, which leaves open the possibility that women are excluded.   Beit Yosef mentions that the peculiar work Hilkhot Eretz Yisroel excludes women, but presents the position that women are included as the near-absolute consensus of halakhic authorities, and to my knowledge this claim has not been challenged since.

However, granted that this is true as halakhah, Beit Yosef also cites the position of Agur, a late fifteenth century German-Italian halakhic collection.  Agur writes that while all halakhic authorities agree that women may slaughter legally, a custom has arisen that they do not slaughter, and this custom should be regarded as having legal force going forward.  Agur takes this position using extravagant rhetoric, describing it as “מנהג מבטל הלכה”, “custom nullifying law”.

אף על פי שדעת הפוסקים כן

המנהג בכל גלות ישראל שלא ישחטו  

ומעולם לא ראיתי נוהג לשחוט  

ולכן אין להניחן לשחוט  

כי המנהג מבטל הלכה  

.ומנהג אבותינו תורה היא

Even though the opinion of the decisors is such (that women may slaughter)

the practice in all the diaspora of Jewry is that they should not slaughter

and I have never seen a woman practice slaughter

and therefore one should not allow women to slaughter

because the custom nullifies law

and the custom of our ancestors is Torah.

Beit Yosef himself nonetheless rejects Agur.

:ואני אומר

– שאם היה אומר שהיו רוצות לשחוט ולא הניחון

,היה אפשר לומר שהיא ראיה

.אך ראיית לא ראינו אינה ראיה

But I say:

If he has said that women wished to slaughter and were not allowed to do so –

It would be possible to say that this is a proof

but a proof of the form ‘We have not seen’ is no proof.

He accordingly codifies in Shulchan Arukh that women may slaughter.  RAMO, however, cites what appears to be the position of Agur:

יש אומרים

,שאין להניח נשים לשחוט

,שכבר נהגו שלא לשחוט

וכן המנהג שאין הנשים שוחטות

Some say

that women should not be allowed to slaughter

as they have already adopted the practice of not slaughtering.

and this is the custom: Women don’t slaughter.

Shakh contends that RAMO’s adoption of Agur’s position here reflects his statement in CM 37:22 that under some circumstances “I have not seen” is a valid proof.

[בזה ישבתי בתחילת ספרי שפתי כהן ליורה דעה [סימן א’ סק”א] דברי האגור [סי’ אלף ס”ב

שכתב

שאין להניח נשים לשחוט

,שכבר נהגו שלא לשחוט

.שהב”י שם השיג עליו דלא ראינו אינה ראיה

,ואני כתבתי דבמנהג הוי לא ראינו ראיה

.וכמ”ש מהרי”ק והר”ב כאן  

On this basis I justified at the outset of my work Siftei Cohen to Yoreh Deah the words of Agur,

who wrote that

women should not be allowed to slaughter,

as they have already adopted the practice of not slaughtering.

Beit Yosef there challenged him by saying that “I have not seen” is no proof,

But I wrote that with regard to minhag “I have not seen” is a proof,

as Maharik and RAMO write here.

The key distinction Shakh makes is about the level of halakhah.  In areas that are Biblical or Rabbinic law, “I have not seen” is no proof.  But in areas of customary law, “I have not seen” is proof.  

Shakh does not suggest, or even contemplate, a claim that the fact that something hasn’t been done is the reason that it may not be done going forward; it is merely evidence that a custom to that effect was deliberately instituted.  

,וטעם נכון יש בדבר

דכיון שהמנהג כך

,והדבר שכיח כן

,אם היה הדבר מותר – אי אפשר שלא היינו רואים פעם אחת כן נוהגים להתיר

,אלא ודאי המנהג הוא כן

שנהגו בכונה לאסור

וכן להפך

There is a solid rationale for this.

Since the practice is such

and the matter comes up frequently

if it were permitted – it is impossible that we would not have seen once them practicing allowing this,

rather certainly the custom is such,

meaning that they intentionally adopted the practice of making it forbidden

or vice versa.

Shakh states that his position is based on Maharik and RAMO.  The question then is whether Maharik and RAMO in fact support his distinction between levels of law.  

Shulchan Arukh CM 37:22 discusses a halakhic difficulty with democracy.  In a democracy, every member of the community is party to any suit between the community and an individual member, just as in the United States government attorneys appear for “the People”.  Therefore, every member of the community should be disqualified as a witness in such case as nogeia (interested), and all laws and agreements should be unenforceable.  Mechaber explains that democratic “social contracts” include a waiver of the requirement for valid witnesses.  For this reason, even relatives can testify in such cases.

RAMO adds the following:

– כל דבר התלוי במנהג בני העיר

,אין אומרים בו תרי כמאה

אלא אזלינן ביה בתר הרוב

וכן כל כיוצא בזה

.שאין אנו צריכים עדות ממש

,(וכן לא אמרינן בכיוצא בזה ‘לא ראינו אינו ראיה’, אלא הוי ראיה (מהרי”ק שורש קע”ב

Everything that depends on the minhag of the citizens –

we do not say regarding it that two witnesses are the equivalent of 100;

rather we follow the majority of witnesses.

and all similar standards

since we don’t require formally valid testimony.

Similarly, we do not say in such matters that “’I have not seen’ is no proof”, rather it is a proof (Maharik 172)

The key sentence here is the first – “Everything that depends on the minhag of the citizens”. SHAKH apparently understands minhag here to refer to law at the halakhic level of custom.  I contend, however, that this is clearly incorrect in context.  Minhag here does not refer to customary law, but rather to facts of practice which are in and of themselves halakhically neutral, but which issues of Biblical or Rabbinic law depend on.

For example:  Halakhic day-labor contracts include an implicit stipulation that the hours and conditions of work conform to standard local practice.  Suppose that an employer hired a day-laborer and then sought to force that employee to pay to rent the necessary tools from him.  The employee objects and brings witnesses who state that no employer has ever made such a demand, and that it therefore violates community standards.  A beit din would accept this testimony, even though it has the form “we have not seen”, and decide for the employee.

However – other employees and employers would be free in the future to explicitly agree to such a rental.  The beit din’s ruling is based on descriptive minhag, and relates to Biblical and Rabbinic law; the issue has nothing to do with prescriptive minhag.

Accordingly, RAMO here has no relationship to the position of AGUR regarding prescriptive minhag, and SHAKH has no evidence that testimony of the form “I have not seen” is acceptable in cases regarding prescriptive minhag.  In other words, the argument that “It’s never been done” means “It should never be done” is not correct in any area of halakhah, whether Biblical, Rabbinic, or customary.

In PART 3 of this series we will see that RAMO’s position correctly represents Maharik, and that many great acharonim have similarly concluded that SHAKH’s contention regarding minhag cannot be sustained.

Shabbat shalom!

Leave a comment

Filed under Uncategorized, Weekly Devar Torah

Who Gets to Decide What’s “Shabbesdik”?

by Rabbi Aryeh Klapper

Is halakhic sophistication always a virtue?

Mishnah Demai 4:1 states that “One who buys fruits from someone who lacks legal credibility with regard to tithing, and then forgot to tithe them (before Shabbat) – may ask the seller about them on Shabbat, and eat them on the basis of his assurance.”  Why should it matter whether the seller is asked before or after sundown?  Bartenura explains that whereas halakhically sophisticated Jews know that honesty and holiness are unrelated, amei haaretz (=halakhically unsophisticated Jews) regard lying as a violation of the sanctity of Shabbat.  Therefore, while the weekday rule is that only those who observe an area of halakhah have credibility regarding it, one can extend halakhic credibility to amei ha’aretz on Shabbat even regarding laws they violate themselves.

Netziv (Haamek Davar 35:1-3) cites other examples in which halakhah takes the religious intuition of the unlearned into serious account.  In each case, these intuitions may be more constructive socially than scholarly interpretations based on analytic rigor.  Why, then, is law generally determined by scholars rather than by popular practice?

One of the classic intra-Jewish sectarian debates is whether or not one may allow a useful fire to burn in one’s house over Shabbat.  The Prushim (=Pharisees or Rabbanites) said yes, and the Sadducees said no.  The underlying interpretative issue is whether to translate “תבערו” in 31:3 as “do not light a fire”, or rather as “do not allow a flame to burn”.  Our practices of lighting Shabbat candles and of eating cholent are in part demonstrations of loyalty to the Perushi position.

Ibn Ezra records, in amusing emotional detail, a controversy he had with a Karaite (whom he calls a Sadducee) about this verse.  He took the devil’s advocate position that lighting fires should only be forbidden on Shabbat day, “ביום השבת”, and challenged the Karaite to disprove him.  The Karaite failed to do so (over a period of months, with many back-and-forths).  Ibn Ezra concludes that “I have mentioned all this, because an intelligent person can explain Scripture in many ways, which is why we need with regard to all commandments the Kabbalah, Masoret, and Torah Shebe’al Peh [1], as I said when beginning this book”.  Every text can be read plausibly in ways that are nonetheless false; the only way to exclude them is on the basis of received tradition.  The contextual implication is that one need not disprove the Sadducee position regarding fire on Shabbat; if the Rabbinic position is possible, it is necessary.

But why should this be so?  Rabbinic tradition itself records innumerable legal disputes.  Once a dispute arises, both positions are treated as reasonable, and final legal decisions result from interpretive choices rather than Heavenly voices.  No specific rabbinic choice is presumed correct.  Since nothing about the Sadducee interpretation of תבערו conflicts with rabbinic hermeneutics, there seems no intellectual basis for intellectually privileging the Prushi position.  Presumably this is true of many other Sadducee/Prushi disputes.

Many responses to this challenge start from Rambam’s assertion that Mosheh received from Sinai a broad interpretative substratum that is never subject to controversy.  But the more difficult problem to solve is not how one knows where Tradition comes from, but rather why one can have faith that it has been accurately transmitted.  Granting Divine origin, and Mosaic perfection, wouldn’t misunderstanding have crept in the moment Mosheh transmitted his knowledge?  Wasn’t this why Mosheh resisted Yitro’s suggestion that his authority be diffused?

Rambam (Introduction to Mishneh Torah) argues that Mosheh set up a near-perfect pedagogic system, with repetition and reinforcement at every level, so that at least for one generation the Oral Torah could be preserved pristine.  Netziv, however, acknowledges the inevitability of misunderstanding, commenting wryly that “even in that generation of knowledge, there must have been a few amei haaretz, let alone women [2]”.

Netziv goes further.  He suggests that Mosheh, and later Yehoshua, was well aware of these misunderstandings, but where they tended to legal stringency, he did not seek to uproot them.  In other words, from the very beginning there was a practical popular tradition alongside the intellectual tradition, which differed substantively from it.  This is similar to what my teacher Dr. Haym Soloveitchik has famously called “mimetic Judaism”, but with two key qualifications:

  1. it is explicitly acknowledged that the mimetic tradition arose out of folk intuition, rather than seeing it as evidence of lost scholarly positions
  2. the mimetic tradition was tolerated only when it was stricter, not when it was more lenient

Dr. Soloveitchik argues that there is a particular historical reason that the intellectual tradition today (or at least in the late 20th century) tends to stringency, namely the diminishing power of affective religious experience in the halakhic community.  “Having lost the touch of His presence, they seek now solace in the pressure of His yoke.”  He does not suggest that intellectual traditions are inherently or necessarily more stringent than mimetic traditions.  (In a version of this essay published several years ago, I wrote that “In the long run, I contend, those who wish to make significant changes toward ‘leniency’ are better off supporting the primacy of the intellectual over the mimetic.  This may be particularly true with regard to issues of women’s place in ritual, and it is perhaps time that advocates of such changes acknowledged this.”  I think the contention has now been largely verified.)

Netziv contends that the populace in Mosheh’s time adopted the interpretation of תבערו that eventually became the Sadducee position.  He is well aware that this popular tradition eventually turned noxious and generated a position that denied the legitimacy of the Rabbinic intellectual position.  Was Mosheh then wrong to permit it?  Netziv might have adopted the approach (perhaps following the midrash cited by Rashi on “naaseh Adam”) that mistakes are inevitable, and one cannot tell which current mistakes will cause real problems in the future.  

Instead, I suggest, he argues that Shabbat is a uniquely subjective mitzvah, which Mosheh was commanded to explain in a fashion that gave experiential discretion even to those with limited intellectual comprehension.  Therefore, in this case the category “misunderstanding” may be inapplicable.  Verses 35:1-3 represent Mosheh’s explanation of Shabbat in broad categories to those incapable of more precise comprehension, and their subsequent understandings were personally legitimate.  Possibly the Sadducee position represented one such understanding.  Netziv even argues that it was true intellectually with regard to the construction of the Mishkan.

Over time, it became urgently necessary to oppose that understanding.  Why? Perhaps because the mimetic tradition began to see itself as exclusively valid, and delegitimated the intellectual tradition.  Another possibility is that the Sadducee position in the end turned out not to be a stringency, but rather, after the first generation, became a felt burden that diminished the positive mitzvah of enjoying Shabbat, and diminished rather than increased the feeling of holiness.

Netziv himself suggests that the legitimacy of subjective interpretation only applied to the first generation, and thereafter the very same text was properly appropriated for the exclusive use of the intellectual tradition.  Nonetheless, it seems likely to me that Netziv preserves the value of experiential discretion with specific regard to Shabbat, and that, accordingly, Halakhic rulings with regard to such issues as oneg Shabbat, uvda d’chol, and other issues of “Shabbasdikness” should be made with great deference to mimesis and with a deep appreciation of subjectivity taking precedence over the desire for consistent rules.

Shabbat shalom

 

Notes:

[1] I don’t know the specific referent of each of these three terms for Ibn Ezra, or even whether they refer to separate aspects of tradition.

[2] This is not the place to discuss Netziv’s attitude toward women’s learning and intellectual capacity; a good place to start are the various contemporary discussions of the depiction of Netziv’s wife Rayna Batya in his nephew’s autobiographical Mekor Barukh.

Leave a comment

Filed under Weekly Devar Torah

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.

Leave a comment

Filed under Uncategorized, Weekly Devar Torah

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.

Leave a comment

Filed under Uncategorized, Weekly Devar Torah

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.      

Leave a comment

Filed under Uncategorized, Weekly Devar Torah