Category Archives: Weekly Devar Torah

The Persistence of Memory: Sacrifice, Human Sacrifice, and Amalek

by Rabbi Aryeh Klapper

The Bible has been a bestseller for thousands of years.  Leviticus as a stand-alone book, though, seems to have all the appeal of Magical Creatures and How to Slaughter Them next to a Harry Potter collection.  A little more humor, and a lot more explicit gore, and perhaps it could compete with Pride and Prejudice and Zombies. As best I recall, the Reader’s Digest Condensed Bible simply skips from Exodus to Numbers.

All these challenges are intensified if one deals with Parshat Vayikra alone.  Listen to the great medieval commentator Rabbi Yosef ibn Caspi in his Mishnat Kesef, believing that he is channeling Maimonides:

כבר התועדתי בפירושי זה פעמים,

ובספר הסוד ובספר במשל,

כי תכונתי חזקה בבחירת הקיצור בכל מקום.

לכן

כאשר ראיתי זאת הפרשה ורבות מהנמשכות אחריה סובבות על מעשה זבחים וקרבנות

אשר ידוע שמשרע”ה כתבו בספרו מוכרח ואנוס,

כי אין חפץ לה’ בעולות וזבחים,

רק הכרח מנהג האומות כולם בזמן ההוא הביאם לזה,

לכן

די לנו בידיעת מלות אלו הספורים

ואם לא נדעם – אין זה היזק בזה,

ורב במה שנמצא בפירוש רש”י וא”ע

לכן

אניח פרשה זאת, והפרשת צו . . .

I have already informed you twice in this commentary,

and also in my Sefer HaSod and Sefer HaMashal,

that my character tends strongly to choose brevity everywhere.

Therefore,

when I saw this Parshah and many that follow it focusing on the making of sacrifices,

which it is known that Mosheh Rabbeinu wrote in his book compelled and coerced,

because Hashem has no liking for sacrifices,

rather it was the compulsion of the universal custom of nations of the time that brought them to this, therefore

it is sufficient for us to know the meaning of the words in these descriptions,

and if we don’t know them – there will be no damage in this,

and more than enough can be found in the commentaries of Rashi and Ibn Ezra

therefore

I will leave this Parshah be, and Parshat Tzav . . .

But Ibn Caspi’s comment begs the question: why did sacrifice become a universal expression of religion?

One possibility is that sacrifice achieves atonement, and atonement is a universally recognized human need.  But I have always been bothered by the connection between sacrifice and atonement. What a waste!  An animal – a living thing, or at the very least a valuable natural resource – is reduced to its maximal carbon footprint.  What “sweet savor” could possibly waft from these pointless barbecues? Wouldn’t it be better to genuinely make amends?

Ok, I get it; atonement sacrifices are largely for commandments between man and G-d, and there really is no way to make things up to G-d.  Except there is – repentance, especially repentance out of love, which for some reason in G-d’s perspective transforms past sins into virtues.

You’ll tell me that sacrifices lead to repentance. The death of an animal is a significant thing – it makes one think that could’ve/should’ve been me, there but for the chessed or rachamim of G-d go I.  But honestly, anyone who would think that way probably doesn’t need a sacrifice to think that way – they’d react the same way to a dead squirrel on the sidewalk, maybe even to a pen that’s run out of ink.

History/anthropology seem to show that prescribed modes of repentance inevitably lead to cost-benefit analyses – is this sin worth a goat to me, or not? The equation tends to work out badly for the goats.

I read an article this week that tried to equate philanthropy with sacrifice. It is true that the Temple accepted voluntary sacrifices.  I suppose it’s even likely that there was a plaque somewhere with the names of the people who gave the most and best voluntary sacrifices – perhaps we’ll dig it up soon, which would seem to validate the initial investment in immortality. But I think the author was misled by the term in English.  The Hebrew term korban, means thing which is brought closer, or that brings closer – it has nothing to do with giving something up, let alone of giving something up voluntarily for a greater purpose. The same negative applies to words such as זבח and עולה.

In his commentary to Deuteronomy 12:30-13:1, Ibn Caspi raises a much darker possibility.  Here are the relevant verses, followed by his commentary:

הִשָּׁ֣מֶר לְךָ֗ פֶּן־תִּנָּקֵשׁ֙ אַחֲרֵיהֶ֔ם

אַחֲרֵ֖י הִשָּׁמְדָ֣ם מִפָּנֶ֑יךָ

וּפֶן־תִּדְרֹ֨שׁ לֵֽאלֹהֵיהֶ֜ם לֵאמֹ֨ר

אֵיכָ֨ה יַעַבְד֜וּ הַגּוֹיִ֤ם הָאֵ֙לֶּה֙ אֶת־אֱלֹ֣הֵיהֶ֔ם

וְאֶעֱשֶׂה־כֵּ֖ן גַּם־אָֽנִי:

לֹא־תַעֲשֶׂ֣ה כֵ֔ן לַה֖’ אֱ-לֹהֶ֑יךָ

כִּי֩ כָל־תּוֹעֲבַ֨ת ה֜’ אֲשֶׁ֣ר שָׂנֵ֗א

עָשׂוּ֙ לֵאלֹ֣הֵיהֶ֔ם

כִּ֣י גַ֤ם אֶת־ בְּנֵיהֶם֙ וְאֶת־בְּנֹ֣תֵיהֶ֔ם

יִשְׂרְפ֥וּ בָאֵ֖שׁ לֵֽאלֹהֵיהֶֽם:

 אֵ֣ת כָּל־הַדָּבָ֗ר אֲשֶׁ֤ר אָנֹכִי֙ מְצַוֶּ֣ה אֶתְכֶ֔ם אֹת֥וֹ תִשְׁמְר֖וּ לַעֲשׂ֑וֹת

לֹא־תֹסֵ֣ף עָלָ֔יו וְלֹ֥א תִגְרַ֖ע מִמֶּֽנּוּ: פ

Guard yourself,

lest you be ensnared after them,

after they have been destroyed from before you,

and lest you seek after their gods, saying:

“How would those nations worship their gods?

I too will do the same.”

Do not do the same for Hashem your G-d

because all the abominations of G-d. that He hates,

they did for their g-ds

because even their son and daughters

they would burn in fire for their gods.

It is everything that I command you – that is what you must guard to do;

you must add nothing above it; you must subtract nothing from it.

הנה אלו יכול משה למונעם מהזבחים לגמרי,

להיותם נעשים לאלהי העמים,

היה השם חפץ בזה

ואחר כי לא היה יכול להעתיקם משרש

והעתק הסעיפים

ככל אשר יוכל

בעבודות המגונות,

כשריפת הבנים

אם שריפתם לגמרי או שריפת עורם או שערם בהעברם,

כי על הכל יאמר שריפה בשיתוף מה

Now had Mosheh been able to completely prevent them from sacrifices,

seeing as they were done for the gods of the nations,

Hashem would have desired this.

But since he could not remove them from the roots

he removed them from the branches –

to the extent he was able –

of the disgraceful modes of worship

such as burning children

whether completely burning them up, or burning their skin or hair by passing them through flame,

because all of them can be called burning, with some commonality

I suggest that Ibn Caspi sees “sacrifice” anthropologically as at core the dedication of an act of violence to a god.  What matters is not that the sacrifice is killed, but that you killed it, and the more significant the thing you kill, the better.  All sacrifice is at core human sacrifice, not self-sacrifice.

The Torah came along and, unable to extirpate this practice directly, tried to change its meaning.  Removing human sacrifice from the apex of the ritual pyramid opened up the possibility of understanding animal sacrifice as sublimating violence rather than as sanctifying it.  There is always a danger that the original meaning will break through.  But when violence is given no controlled religious outlet, sanctified violence often finds far more dangerous expressions.

Ibn Caspi’s understanding of the etiology of sacrifice does not mean that all those who endorse sacrifice at core endorse violence. Sublimation can be real and effective. Moreover, maybe the Canaanite meaning was not the original meaning either, but a later distortion, and the Torah restored sacrifice to its pre-Canaanite glory.

Preserving a practice while changing its meaning runs two risks: critics may accuse you endorsing its original meaning, and followers may come to adopt its original meaning.

A similar dynamic may occur with regard to the mitzvot of battling, remembering, and erasing the memory of Amalek. The urge to extirpate evil can be positive, but it can also be the inspiration for much greater evils than those it seeks to extirpate. Halakhah postpones the mitzvah to the Messianic age, noting that Yehoshua made a point to attack only combatants, and categorizing Samuel’s instructions to Saul as extralegal.  This in turn drives many commentators to find ways to “spiritualize” the mitzvah and expand the category of Amalek so that it can have contemporary relevance.  But this approach is subject to three kinds of misunderstandings.

  1. It is often misunderstood as reflecting an ethical difficulty with the halakhah, when instead it is a reaction to the practical irrelevance of the halakhah. Sometimes it is even an ethical protest against a halakhah that seems insufficiently exercised by the persistence of evil.
  2. Sometimes critics misunderstand such spiritualizing expansions as instead expanding the literal mitzvah of total war.  A recent article in an online Jewish magazine got there by mistranslating the Hebrew phrase במסירת נפש להריגה as “prepare to kill,” rather than correctly as “accept the risk of being killed.”
  3. Most dangerously, sometimes followers make the same mistakes as the critics, or worse, sometimes interpreters genuinely mean to expand the category so that the mitzvah can find practical expression.  It is therefore imperative to reiterate that not only is the mitzvah eschatological, the halakhic category of Amalek cannot apply to any people who have territorial conflicts with the Jewish people, and all ethnic Biblical categories were rendered halakhically obsolete by Assyrian population transfer policies.  Every attempt at giving contemporary relevance to the category Amalek must be must be monitored with great caution as a potential “stringency that leads to leniency.”

Shabbat shalom and Purim sameiach!

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They Might Be Giants

by Rabbi Aryeh Klapper

The planks that formed the walls  of the Mishkan were 10 amot long, according to Exodus 26:16. Assuming that an amah is 18 inches long (the low end of the halakhic range of values), this means that the carpets that formed the ceiling and roof of the Mishkan needed to be lifted into place at least 15 feet above ground.

Not an impossible feat by any means.  For example, the carpets might have been attached to ropes and winched into place by a team of oxen.  Or the planks might have been lain on the ground, and the carpets placed on them.  When the planks were raised into place, again likely by oxen and pulleys, the roof and ceiling would have been raised into place automatically.

However, a hyperliteral reading of Shemot 40:18-19 tells a different story.  Mosheh first assembled and raised the walls of the mishkan.  Afterward, he spread the ceiling and then the roof over them. Assuming that these actions were all done by Mosheh personally, it follows that he was tall and strong enough to manipulate huge carpets more than 15 feet above ground.  On Bekhorot 44a, Rav uses this argument to conclude that Mosheh was at least 10 amot tall.

אמר רב:

משה רבינו עשר אמות היה,

שנאמר:

ויפרש את האהל על המשכן,

מי פרשו – משה רבינו פרשו,

וכתיב:

עשר אמות אורך הקרש

אמר ליה רב שימי בר חייא לרב:

אם כן, עשיתו למשה רבינו בעל מום,

דתנן:

גופו גדול מאבריו או קטן מאבריו!?

אמר ליה:

שימי [את]?! באמה של קרש קאמר.

Said Rav:

Mosheh our Teacher was ten amot

as Scripture says:

He spread the tent over the Mishkan.

Who spread it?  Mosheh our Teacher spread it,

and it is written:

ten cubits the length of a plank.

Said Rav Shimi bar  Chiyya to Rav:

If so, you have made Mosheh our teacher blemished,

as a Mishnah is taught:

(Among the blemishes that disqualify a kohen for Temple Service are:)

“If his body is larger than his limbs or smaller than his limbs”!?

Rav said to him:

Are you Shimi?! What I said was in plank-amot.

Rav’s initial argument is straightforward, but every line of his subsequent dialogue with Rav Shimi seems mysterious.  In what way does making Mosheh taller imply that he was disproportionate? And what are “plank-cubits”?

Rashi explains that an amah can be measure either objectively or subjectively (the length of a forearm). Rav Shimi initially thought that Rav meant that Mosheh was ten times as tall as his forearm was long, which would certainly have made him disproportionate.  Rav responds that he meant that Mosheh was 10 objective amot tall, just as the planks were, but that his limbs were proportionate.

This reading seems to make Rav Shimi’s question absurd.  Rav’s proof was that Mosheh must have been as tall as the planks, so obviously he meant objective amot!?

The Talmud records at least three other such dialogues between Rav and his grandson Rav Shimi bar Chiyya bar Rav.  In each of them, Rav Shimi objects to a factual claim made by his grandfather, who prefaces his response with “Are you Shimi?!” (The את is missing in our text, but present in the version in Yalkut Shimoni and one manuscript.) Rav then explains that either he or his prooftext has been misunderstood. The most directly parallel case is Menachot 29a, where Rav declares that the Menorah was only 9 tefachim high (maximum value = 3 feet). Rav Shimi objects that according to Mishnah Tamid 3:9, the priest who serviced the menorah stood on a rock that was three stairs high!? Rav responds that he was referring only to the height of the Menorah above where its branches began.

It’s unclear to me whether Rav’s preface “are you . . .” is intended to praise or put down his grandson. (Rabbeinu Gershom records a tradition that Rav did not look at other people and so had to identify them by voice, in which case it would be neutral.  But Rashi convincingly rejects this on the ground that Rav never refers to anyone but his grandson this way.)  Perhaps Rav meant to praise Shimi generally but claim that this question was uncharacteristically weak.

On Nedarim 38a Rav Yochanan appears to assume the truth of Rav’s statement, and the Talmud seems to find another ground for objection.

אמר ר’ יוחנן:

אין הקדוש ברוך הוא משרה שכינתו אלא על גבור ועשיר וחכם ועניו,

וכולן ממשה.

גבור –

דכתיב: ויפרוש את האהל על המשכן,

ואמר מר:

משה רבינו פרסו,

וכתיב: עשר אמות ארך הקרש וגו’.

אימא: דאריך וקטין!

אלא מן הדין קרא, דכתיב:

ואתפוש בשני הלוחות ואשליכם מעל שתי ידי ואשברם,

ותניא:

הלוחות – ארכן ששה ורחבן ששה ועביין שלשה.

Said Rabbi Yochanan:

The Holy Blessed One rests His Presence only on the gibor, wealthy, wise, and humble.

All of these are derived from Mosheh.

Gibor

as Scripture says:

He spread the tent over the Mishkan.

and a Master said:

Who spread it?  Mosheh our Teacher spread it,

and it is written:

ten cubits the length of a plank.

But maybe he was tall and narrow (and therefore not a gibor)!?

Rather from this verse, as it is written:

“I took hold of the two tablets; I threw them from my two hands; I shattered them”

and a beraita teaches:

“The tablets were six long and six wide and three thick.”

The anonymous Talmud here suggests that the lack of proportion was not between torso and arms, but rather between height and width.  Mosheh was giant but puny.  This also seems absurd, as it requires not only height but strength to lift and spread out a massive carpet. The Talmud however takes the suggestion seriously, and derives Mosheh’s gevurah from a different verse.

On Shabbat 92a, the Talmud has a third discussion of Mosheh’s height.

אמר רבי אלעזר:

המוציא משאוי למעלה מעשרה טפחים – חייב,

שכן משא בני קהת.

ומשא בני קהת מנלן?

דכתיב: על המשכן ועל המזבח סביב,

מקיש מזבח למשכן;

מה משכן עשר אמות – אף מזבח עשר אמות.

ומשכן גופיה מנלן? –

דכתיב עשר אמות ארך הקרש

וכתיב ויפרש את האהל על המשכן.

ואמר רב: משה רבינו פרשו.

מכאן אתה למד: גובהן של לויים עשר אמות.

. . .

דילמא משה שאני,

דאמר מר: אין השכינה שורה אלא על חכם גבור ועשיר ובעל קומה.

Said Rabbi El’azar:

One who carries something out (on Shabbat) above 10 tefachim is liable,

as that was how Bnei Kehat carried (the Mishkan and accessories).

From where do we know that Bnei K’hat carried above 10 tefachim?

As it is written: “[the cover of the gate was on the Mishkan and the altar around”

which compares the Mishkan and altar:

just as the altar was 10 amot, so too the altar was 10 amot.

From where do we know the Mishkan itself?

as it is written: ten cubits the length of a plank.

and Scripture says: He spread the tent over the Mishkan.

and said Rav: Mosheh our Teacher spread it.

From here you learn: The height of the Levites was 10 amot

 . . .

But maybe Mosheh was uniquely tall,

as a Master said: The Divine Presence rest only on the gibor, wealthy, wise, and tall.

Here height replaces humility as a condition for the Divine Presence, and is a necessary condition independent of gevurah.  Rabbi El’azar claims that all Levites were as tall as Mosheh, but the Talmud seems to rejects this on the ground that there would be no purpose in making them so tall, whereas Mosheh’s height was necessary for the Divine Presence to rest on him.

Later commentaries resurrect Rav Shimi’s question. If the purpose of excluding the blemished from the Temple Service is to prevent visual distraction, wouldn’t superhuman height, however well=proportioned, be a blemish? This might be why we prefer to have all Levites be that tall.  Some contemporary commentaries even try to argue that at 15 feet, the Levites in the Wilderness were only slightly taller than the average person of their time.

There are ideological countertraditions.  The Divine Presence rested on Sinai because it was not high and mighty, neither tall nor gibor.  Perhaps Rav Yochanan deliberately replaced “height” with “humility” on the list of qualifications for the Divine Presence, and reinterpreted gevurah from physical prowess to conquering one’s own urges.

Rav’s tradition puts Mosheh Rabbeinu’s greatness obviously beyond our reach and grasp. Rabbi El’azar suggests that the same is true of all the Levites of that generation, and maybe of all people then.  Perhaps Rav Shimi and the anonymous Talmud, and maybe Rav Yochanan, contend that such claims are definitionally false.  Superhuman greatness is a disproportion or even distortion, and allegedly superhuman role models are distractions rather than inspirations.

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How to Read Like Chazal: The Five Pillars of Peirush and the Mishkan

by Rabbi Aryeh Klapper

Did Chazal have a reading methodology?

In a LookJed exchange with Dr. Avie Walfish some time ago, I argued that “we would be well-served by developing a mode of teaching for the next generation that focuses on reclaiming the methodologies of Chazal,” rather than teaching them to read like a particular understanding of a particular subset of rishonim. If the answer to my question above is “no,” my argument is stillborn. This is the objection that several great contemporary Tanakh teachers/scholars have raised in response to my contention. There is a sense in which that response strengthens my argument, in that it reflects our failure to teach even our best and brightest that Chazal did more than brilliantly but randomly impose their feelings, beliefs, and admonitions on the text.

Now there is a sense in which their response is likely true. The term “Chazal” encompasses at least hundreds of sages, who lived over a period of at least 500 years and in a diverse array of geographic and cultural contexts, and who were educated by schools and teachers who often saw each other as ideological opponents. Rabbinic literature itself records fundamental methodological disagreements, such as whether or not the Divine Torah’s linguistic efficiency is subject to the constraints of idiom (דברה תורה בלשון בני אדם) as well as those of grammar. So to claim that Chazal had a single method of interpretation would certainly be overbroad.

On the other hand – schools of interpretation are often recognizable in retrospect, and the recording of occasional methodological disagreements itself suggests a common core. For example, the dispute about idiom seems to arise out of the common belief that Torah is written with maximal efficiency. It is not unusual for a culture to record primarily disputes, and leave little formal record of consensus or common knowledge. The problem then is how to recover that culture when the consensus has dissipated and the knowledge evaporated. There is grave danger that the incidental will be mistaken for the central in any such project of intellectual archaeology. This has likely happened with regard to “No Scripture leaves the boundary of its peshat” (אין מקרא יוצא מידי פשוטו), leaving aside the question of whether that statement has been properly understood (I discuss the statement here).

Here are what I preliminarily propose as the “Five Pillars of Peirush,” principles that may reasonably characterize the exercise of reading like Chazal did:

  1. Bias toward meaningfulness
  2. Risk-taking
  3. Literary context
  4. Cultural context
  5. Mythological sensibility

I will briefly explain what I mean by each, and then try to provide an illustration via Parashat VaYakhel.

1. Bias toward meaningfulness

If there are two ways of understanding an element of a text, whether a single word, a structure, or an entire narrative, one should choose, or at least fully explore, the interpretation that gives the element greater significance.

2. Risk-taking

Interpretation is an abstraction, a web of meaning that can comport with but never be demonstrated by data. As in science – that a theory fits with the known facts may reflect its truth, or else the theorists’ failure of imagination (perhaps another theory fits even better); and in any case the theory may be proven wrong, or less compelling, as previously unknown facts emerge. Recognizing that proof is generally a chimera, it is worth making suggestions that explain one thing well even if, looking at the evidence overall, they are highly speculative.

3. Literary context

Every word of Tanakh refers to every other use of the same word in Tanakh. This is parallel to, but not the same as, the deconstructionist insight that the meaning of a word in conventional language is constructed for each reader out of every previous meaning the word has had for that reader.

Every incident in Tanakh is presumed to happen within the same universe. Characters who live at the same time can therefore interact even if they are not explicitly mentioned in each other’s stories, and anonymous characters in one story can be identified with named characters from another.

4. Cultural context

Tanakh does not construct a self-sufficient universe de novo; instead, it records a perspective on a universe known to readers from elsewhere. Think of a history of the Vietnam War written for veterans of that war. It is therefore legitimate to see a verse as referring to an incident known to us only via oral tradition.

5. Mythic sensibility

I use the term “mythic” with trepidation, as it can be misunderstood in two ways. To be as clear as I can – “mythic” in no way implies fiction. Furthermore, I do not mean to reject the argument that much of Tanakh is intended to demythify the natural world. What I mean by “mythic sensibility” is that one sees history as either a recurring pattern or else as the playing out of a cosmic plan, or both, and understands specific events in light of that sensibility. Ramban’s concept of מעשה אבות סימן לבנים is a fine example.

Now on to Vayakhel:

VaYakhel opens by reporting that Mosheh congregated (transitive) that entire edah of the Children of Israel. He begins by announcing

אֵלֶּה הַדְּבָרִים אֲשֶׁר צִוָּה יְקֹוָק לַעֲשֹׂת אֹתָם

שֵׁשֶׁת יָמִים תֵּעָשֶׂה מְלָאכָה

וּבַיּוֹם הַשְּׁבִיעִי יִהְיֶה לָכֶם קֹדֶשׁ שַׁבַּת שַׁבָּתוֹן לַיקֹוָק

כָּל הָעֹשֶׂה בוֹ מְלָאכָה יוּמָת

לֹא תְבַעֲרוּ אֵשׁ בְּכֹל מֹשְׁבֹתֵיכֶם בְּיוֹם הַשַּׁבָּת

There are the things which Hashem has commanded, to do them.

Six days melakhah will be done

But on the seventh day, it will be for you holy, a Shabbat Shabbaton to Hashem,

Everyone who does melakhah in it must die.

You must not kindle a fire in all your dwellings on the day of Shabbat.

We are then told again that Moshe spoke to “the entire edah” of Bnei Yisroel. This time he commands them to bring terumah for the construction of the Mishkan, and to construct the Mishkan and its accessories.

The entire edah of Bnei Yisroel then leave Mosheh’s presence.

Any sensitive reader must ask why Mosheh feels compelled at this point to assemble the entire community. A Rabbinic reader might ask in addition whether Mosheh did so on his own authority, or rather on Divine instruction, and would explore (but not commit to) the position that Mosheh did so on his own even if there was no evidence for preferring that option.

Any sensitive reader must further ask inter alia

  1. why Mosheh begins with instructions about Shabbat, when the topic du jour is clearly the mishkan
  2. why there is a paragraph break between the Shabbat and Mishkan instructions
  3. at what point in the overall Exodus narrative the assembly takes place.

The answer to the first two questions, laaniyut da’ati, is that instructions about Shabbat are also the topic of the last paragraph Hashem tells Mosheh to say to bnei Yisroel before He gives him the first Tablets (31:12-18); in other words, Mosheh now does what he was supposed to do then, as if the Golden Calf had never happened.

At the same time, the very word vayakhel recalls the Golden Calf episode, which began as follows:

וַיַּרְא הָעָם כִּי בֹשֵׁשׁ מֹשֶׁה לָרֶדֶת מִן הָהָר וַיִּקָּהֵל הָעָם עַל אַהֲרֹן

The people saw that Mosheh as delaying to descend from the mountain, vayikahel the people on Aharon.

(Note that the Golden Calf episode is framed by the people’s seeings: it ends with them seeing that Mosheh’s face is illuminated).

Perhaps Mosheh is mak’hil the people to demonstrate that the Golden Calf episode was not the fault of the people, but rather of weak leaders, who allowed them to assemble as a mob with no positive purpose.

Be that as it may, we must now ask perhaps more difficult questions: Why was Shabbat the last topic Hashem covered with Mosheh before giving him the luchot? And why are Shabbat and mishkan connected?

We can answer both questions with one presumption – Mosheh was originally intended to build the Mishkan as soon as he came down from Sinai (among other reasons, so that the luchot would have a storage place.) This was derailed by the Golden Calf.

From a Halakhic perspective, the question is: Is the juxtaposition of Shabbat and Mishkan intended to teach us that Shabbat suspends the Mishkan, or rather that the rules of Shabbat are suspended with regard to the Mishkan?

The rabbis end up saying that the Shabbat overrides the construction of the Mishkan, but that the activity of the Mishkan supersedes Shabbat. What justifies this apparent paradox?

My suggestion is that the Rabbis understood that the Mishkan had changed its nature as the result of the Sin of the Golden Calf. It had been intended to be a symbol that the first Sin was undone, that humanity was back in Eden. Instead, it became a symbol that we had sinned – an atonement, with cherubs at its heart guarding the route back to Eden.

Now the Rabbis understood as well that the Mishkan symbolized the world – there are linguistic markers of this throughout, of which the most prominent are the constant use of melakhah and ויכל משה. They knew as well that the world is created twice in Bereshit, once (1:1-2:3) without sin and once (2:4 – 3:24) with. It therefore seemed reasonable that the Mishkan as originally commanded – before the Calf – symbolized the world as it is presented in the first Creation narrative, whereas the Mishkan after the Calf also symbolizes the world as it is presented in the second Creation narrative.

The first Creation narrative ends with Shabbat. It follows that the construction of the Mishkan – which was commanded before the Calf – must not take place on Shabbat, lest in the very building of our symbol we deny the Creation it symbolizes. But in the second narrative, Shabbat is never reached. It follows that the work of the Mishkan – the work of repairing humanity so that the world can reach Shabbat – must never cease.

This Dvar Torah was originally published in 2013

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Was Making the Golden Calf a Violation of Halakhah?

by Rabbi Aryeh Klapper

According to yibadel l’chayyim my father, my grandfather z”l did not sing the stanza “Tzeitkhem l’shalom” (Go in peace) on Friday nights, because he thought it was rude. My wife’s family sings Tzeitkhem, but omits the stanza “Barkhuni l’shalom” (Bless me in peace) on the ground that asking angels for blessings violates Rambam’s Fifth Principle of Faith.  We’ve agreed to disagree about this.

I sometimes frame the issue this way to our confused guests: Do you worry more about interpersonal mitzvot, or rather about mitzvot between humans and G-d?  About derekh eretz, or about avodah zarah? Then I justify my grandfather’s position by quoting King David: “Let us please fall at the hand of Hashem, for His mercies are numerous, and let me not fall at the hand of a person.”

There are other options.  We could sing neither stanza, and leave the angels standing there awkwardly (“In every other house they ask us to bless them?!?”) until they decide on their own to leave. Or we could add the fifth stanza “Shuvkhem l’shalom” (Return in peace), which at least mitigates the rudeness.

But it turns out that our eccentric pattern of sounds and silences beautifully models for our students the ability to disagree passionately and yet respect each other’s practices. (For our children, the punchline of the old Jewish joke applies: “That was the custom, to fight about it!”)

The truth is, though, that I started off thinking that Deborah’s objection to Barkhuni was simply wrong.  After all, Yaakov Avinu denies an angel leave to go “unless you bless me,” and he asks for his grandchildren to be blessed by “the angel who has redeemed me from all evil!” I discovered some years ago that the objection was reliably attributed to R. Chayyim Volozhin, but with all respect, could not understand how he justified it in light of the verses about Yaakov. The more serious theological problem with “Shalom Aleikhem,” it seemed to me, is that people tend to sing not “melekh malkhei hamelakhim” (King who is king of all kings) but rather “melekh malakhei hamelakhim” (King who is messengers of the kings, or: King of the messengers of kings).

Netziv’s commentary to Parshat Ki Tisa made me rethink this issue, and several others along the way.

Netziv starts from the classic question: How could the great Aharon haKohen have enabled idolatry by making the Golden Calf? He rejects out of hand the notion that Aharon was simply afraid for his life. Nor does he deploy his radical notion of aveirah lishmah(sinning for the sake of Heaven), according to which a violation of halakhah can sometimes be justified on consequentialist grounds. He does not cite the Midrashic claim that Aharon was surprised by the spontaneous emergence of a calf from the melted gold. Instead, Netziv argues that Aharon must have had a correct legal argument that justified making the Calf.

Netziv knows perfectly well that the Golden Calf becomes the archetypical avodah zarah in Tanakh. He does not suggest that Aharon’s argument is still valid. But he contends that G-d extended the perimeter of the prohibition against avodah zarah in reaction to the Calf.  Praying to intermediaries that can only carry out Hashem’s will was originally permitted, and the desire for mediation was a legitimate expression of fear of G-d. However, the experience of the calf demonstrated that intermediaries would inevitably be taken as substitutes. Perhaps it also created the social-religious will necessary for a ban on intermediaries to be effective rather than generating a worse counterrevolution.

This prohibition comes after the Giving of the Torah via the Ten Statements
“Do not make with me elohim of silver, and elohim of gold you must not make for yourselves”
meaning that they must not make a form of silver that would make it convenient for G-d to manage Israel and relate to their prayers and needs, or a form of gold that would make it convenient for Israel to constantly ask it to receive their needs from The Holy Blessed One.
This is not actual
avodah zarah, which was prohibited to them in the Ten Statements when He said “You must not have other elohim…” as there the meaning is an overseer with power, that we would chas v’shalom believe that The Holy Blessed One transferred His management to some middlebeing, but this prohibition, that comes after the Giving of the Torah, comes to add a ban even in a manner where the middlebeing will ask Hashem for our needs,
and this is actually permitted, as I explained regarding the above verse “Behold I send an angel…” (23:20)
as it is only when The Holy Blessed One is as close to Israel as he actually was with Mosheh that it is forbidden to transfer our request to angels even in that manner, as opposed to when he manages us via an angel, when even though it is possible to ask Him directly, nonetheless there is no sin
chas v’shalom in asking the angels to seek mercy for us from Him the Blessed…
This was the intention of Aharon the Righteous, which was an accidental violation of a prohibition that he had as yet no responsibility to know, but great corruption came from this…

When Yaakov demanded a blessing from the angel, he was clearly not on the level of Mosheh Rabbeinu, and the Calf had not yet happened, so his demand was legitimate.  However, after the disaster of the Calf, G-d ‘built a fence around the Torah’ by forbidding us to addressing requests to intermediaries even when the ultimate addressee of our requests is clearly G-d, Who alone has the capacity to fulfill or reject them. So “Barkhuni” can be forbidden even though by singing it we follow in the footsteps of Yaakov Avinu.

Netziv does not discuss “Barkhuni’ directly, and my wife Deborah considers this defense of her position more problematic than the challenge from Yaakov.  I too will cheerfully continue to sing Barkhuni rather than accept Netziv’s explanation, for both textual and theological reasons.

But having thought of this application of Netziv, I looked to see if anyone had made the argument explicitly.  I looked in vain. But the search led me to discover that the issue goes back much further than I had realized.  An excellent summary and analysis of the literature (relating to 32 separate piyyutim or tefillot!) can be found in an article by Rabbi Shlomo Sperber in  the journal Yeshurun, Volume 3 (5757), which I found on the Otzar HaChokhmah site but is publicly available at www.beureihatefila.com.

Rabbi Sperber’s earliest source is a responsum from Rav Sherira Gaon that accepts as a matter of course that one prays to angels for some matters, and directly to G-d for others. Rav Sherira uses this to explain why, when Rav states that one must not pray for one’s needs in Aramaic, Rav Yochanan explains that angels don’t understand Aramaic. (He concludes that one need not be concerned for this in practice, but raises no theological objections).  Nonetheless, such prayers are not found elsewhere in Geonic literature (with the possible exception of Siddur Rav Amram Gaon). But they are produced in a flurry in early medieval Ashkenaz, to the dismay of the Maimonideans, and the polemics develop from there.

Rabbi Sperber concludes by publishing a responsum of Rabbi Samson Raphael Hirsch that offers a valuable model for dealing with many contemporary conflicts, which so often depend on whether we are willing to read each other’s words and opinions generously.

בקשת האדם אצל המלאכים שיבקשו עבורו אצל הקב”ה הוא תופעה מצויה המובאת בחז”ל בסנהדרין מד:
“ר’ יוחנן אמר: לעולם יבקש אדם רחמים שיהו הכל מאמצין את כחו”,
ופירש”י “שיסייעוהו מלאכי השרת ושלא יהו מסטינים מלמעלה”.
גם בשבת יב: “לעולם אל ישאל אדם צרכיו בלשון ארמי וכו’ כל השואל וכו’ אין מלאכי השרת נזקקין לו וכו’ שאני חולה דשכינה עמו”,
ופירש”י “אין המתפלל צריך שיזדקקו לו מלאכי השרת להכניס תפלתו לםנים מן הפרגוד”.
עכ”ז משפטים אלו ניתנים להבנה כפי נטיית הרצון.
על כל פנים לפיוט מכניסי רחמים לבטח תמצא הצדקה לפי המאמרים הללו.

Human requests for angels to request from The Holy Blessed One on their behalf is a common phenomenon that is brought down in Chazal on Sanhedrin 44b
“Rav Yochanan said: A person should always seek mercy that all bolster his strength,”
and Rashi explains “that the ministering angels should assist him, and not oppose him from above.”
Also on Shabbat 12b: “A person should never ask for his needs in Aramaic… because the ministering angels won’t relate to him… but a sick person is different because the Presence is with him,”
and Rashi explains that “the (sick person) who prays does not need the ministering angels to relate to him
to bring his prayer within the Curtain.”
Nonetheless, these statements can be understood however one wishes.
However, you can certainly find a way of justifying the piyyut “Makhnisei rachamim” on the basis of these citations.

It would be absurdly disingenuous to present Rav Hirsch as a model of theological tolerance who prized communal unity over truth. Rather, he explicitly and compellingly self-identified with the zealotry of Eliyahu/Pinchas.

Moreover, Aharon’s error teaches us that compromise and unity are not supreme values. Sometimes there is no way to avoid calling out: “Whoever is for G-d – to me!” even at the cost of civil war, or of losing one’s representation in the Knesset, and even when the other side has a technically defensible halakhic argument.

But like Pinchas in the Book of Joshua, who prevents civil war by accepting the claim of the Tribes in TransJordan that their altar was not idolatrous, Rav Hirsch’s commitment to theological truth was tempered here by a commitment to human truth.  He sought to accurately understand others’ religious expressions in their own terms, and to defend them where a defense was available. Whether a person is capable of turning down opportunities to express their zealotry against fellow humans may be a useful metric of whether they are capable of making positive contributions to religious society.

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2019 Annual Essay on Commandedness in memory of Matt Eisenfeld

by Rabbi Aryeh Klapper

A human action that fulfills a Divine command/צווי is religiously different from the same action undertaken in response to Divine will/רצון. This proposition is central to contemporary Orthodox ideology.

The ideological centrality of commandedness manifests itself in three separate contexts, which may pull in opposing directions.  

1) Commandedness separates Orthodoxy from non-Orthodoxy. (This is Orthodoxy’s perspective – I am not evaluating here the efforts made in other communities to reclaim the language or substance of commandedness.)

2) Commandedness enables an understanding of chosenness that is rooted in responsibility rather than ontology.  “Here is contained the response to those who claim that the Jewish religion is a racist religion, Heaven forbid . . . we believe that our chosenness stems solely from our being subject to additional commandments, and anyone who accepts upon himself or herself the Yoke of Heaven is absolutely able to join our nation and is called by the name of Israel.” (Rabbi Yaakov Kaminetsky, Emet l’Yaakov to Avot 1:11)   

3) Commandedness justifies gender non-egalitarianism.

The first two contexts are conducive to framing commanded actions as qualitatively superior. In the third context, however, such claims generate accusations of misogyny and the like. Women are אינן מצוות (not commanded) in a set of mitzvot that are experientially central to male Orthodox life, and as a result are excluded from serving as communal religious representatives for those mitzvot.

The primary textual hook for the claim of superiority is Rabbi Chanina’s statement that Greater is the one who is commanded and does than one who is not commanded and does.”  On Talmud Kiddushin 31a and Bava Kamma 87a, Rav Yosef initially assumes that non-commanded actions are greater than commanded actions, but is convinced by Rabbi Chanina’s authority or arguments to reverse his position.  (This may also be disputed between R. Abun and R. Levi in Yerushalmi Peah 1:1.)

Any number of acharonim further nuance the issue and explain that the metzuveh is superior in some ways and cases but inferior in others. Think for example of whether the mitzvah to love G-d is best fulfilled purely out of a sense of obligation. (Note that the Talmud seems to define R. Chanina’s “greater” as “receives greater reward.” See also Rabbi Francis Nataf, “Commandment, Coercion, and Modernity,” in The Tent of Abraham.)

Rav Yosef presumably remained within Orthodoxy even when he thought that acting without being commanded was superior, and I have not seen specific belief in Rabbi Chanina’s statement on anyone’s list of entrance requirement for the World to Come.  What is consensus, and I contend definitional to Orthodoxy, is that G-d commands human beings, and that His commands are binding.  It might or might not be best to be motivated by the fact of being commanded rather than by love or fear or awe of G-d and/or an independent sense of His will. But anything He commands must be done.

Moreover, some commanded actions may be forbidden and sinful if done for any motive other than fulfilling a command. The paradigmatic halakhic example is yibbum (levirate marriage), which may become incest if engaged in for other motives (at least according to the position of Abba Shaul on Yebamot 109a).  See also the position held by Rav Aharon Lichtenstein zt”l and the Chofetz Chaim that the erasure of Amalek is murder if done with any admixture of any motive other than the fulfillment of a command. Consider also the deaths of Nadav and Avihu for bringing “a zarah fire that He had not commanded them.”

Some Orthodox theologians have difficulty finding religious meaning in non-commanded actions.  Their banner is כל הפטור מדבר ועושהו נקרא הדיוט (Yerushalmi Shabbat 1:2: “He who is exempt in a matter and does it regardless is called an idiot”).

This default setting seems to run aground on such concepts as לפנים משורת הדין (going further in than the letter of the Law). But the apparent conflict may be an artifact of a false equation between “actions that halakhah requires” and “actions that G-d commands,” or may be resolvable by developing looser definitions of halakhah that include broad directives such as “You must do the straight and the good.” 

A more difficult challenge emanates from the position that women are rewarded for performing most or all of the mitzvot from which they are exempt. Many of the controversies around those issues are probably not about gender, but rather about our theological issue. Nonetheless, for understandable reasons, almost all halakhic or hashkafic conversation about them becomes entangled in, and not infrequently warped by, polemics one way or the other about gender.

What seems to me a notable exception is the treatment of these issues in Rav Yisroel Zev Gustman z”l’s Kuntres Shiurim – Kiddushin, Shiurim 19-20.  Rav Gustman’s analysis therefore seems an excellent point of departure for what I want to do here, which is to make a preliminary effort at analyzing the halakhic issues around women performing such commandments with an eye to the general philosophy of commandedness.  

Rav Gustman himself opens with a philosophic question, as follows: Tosafot and others provide psychological explanations for why a commanded person deserves a greater reward than an uncommanded person.  Rav Gustman asks: Why do we need such explanations? Let us simply say that a commanded action is intrinsically greater than an non-commanded action!

Now it is well-known that Talmud Eiruvin 96b records a Tannaitic dispute as to whether nashim somkhot reshut, meaning whether women can perform the ritual owner’s-leaning-of-hands on sacrifices. R. Yose and Rabbi Shim’on say they can, and R. Yehudah says they can’t. The Talmud records the rationale for permitting as כדי לעשות נחת רוח לנשים, which probably means something like “to assuage women’s feelings of exclusion.”

Why does Rabbi Yehudah forbid? Rashi explains that R. Yehudah holds that women performing this ritual violate bal tosif, the Biblical prohibition against adding to the Torah.  Tosafot by contrast contend that the concern is lest women support their weight on the animal and, because they are not commanded, thereby violate the prohibition against me’ilah (deriving benefit from animals dedicated as sacrifices).

Tosafot’s assumption is that even R. Yose does not permit women to do semikhah on the sacrifice in the same way as men, who are commanded. Rav Gustman contends, with the explicit support of Raavad’s commentary on Sifra 2, that Rashi disagrees and understands R. Yose as permitting women to put weight on the animal when performing the ritual.

Why isn’t this a violation of me’ilah? Rav Gustman responds by developing a category he terms רשות דמצוה, meaning “an optional act that nonetheless is commanded”.  (Rav Gustman is following Baal haMaor Rosh HaShanah 9b. Note that this sense of the phrase must be distinguished from its sense on Talmud Bava Metzia 118b of “an action authorized by a mitzvah,”.  See also Rav Tzadok haKohen miLublin in Meishiv Tzedek 54 and on, who may deliberately conflate the two senses.)

In what sense can an “optional” act be “commanded?” Rav Gustman argues that commandedness is a property of actions, independent of who is performing them. Leaning hands on a sacrifice is a commanded act whether performed by women or by men, even though only men are commanded to perform it. (In Brisker terms: Tzivui is a din in the maaseh, not in the oseh, and does not depend on the participation of a metzuveh.)

Rav Gustman can now explain why Tosafot need to provide psychological reasons for the greater reward given to the metzuveh.  Commanded actions are not intrinsically better than non-commanded actions.  However, G-d does not keep score based on the objective quality of actions, but rather based on the subjective merit of performers.  In Grantland Rice’s formulation, “When the One Great Scorer comes, to mark against your name, He marks not that you won or lost, but how you played the game.”

Rav Gustman also draws a far-reaching set of halakhic implications. For example: Remember that full semikhah must be either a mitzvah or else a sin of me’ilah – there is no in-between. It follows that a reshut d’mitzvah, the optional performance of a commandment, is sufficient to override what would otherwise be the sinfulness of an action. Rav Gustman notes that Raavad to Hilkhot Tzitzit 3:9 records a medieval dispute as to whether women who wear linen garments with tzitzit that include t’khelet (blue wool) violate the prohibition against wearing shaatnez.  He argues that the two sides reflect the original dispute regarding semikhah. If one thinks that women are permitted to perform semikhah, then one thinks that an optional mitzvah they perform is sufficient to activate the principle עשה דוחה לא תעשה (roughly: “when the performance of a DO definitionally requires the violation of a DON’T, the DO overrides the DON’T”).

Perhaps more radically, Rav Gustman draws an analogy between women’s relationship to mitzvot they are exempt from and men’s relationship to ma’ariv, the Evening Service.  Talmud Berakhot 27b records a dispute between Rabbi Yehoshua and Rabban Gamliel as to whether ma’ariv is mandatory (chovah) or optional (reshut).  The halakhah follows Rabbi Yehoshua.  But on Shabbat 10a, Abbayay contends that if ma’ariv is optional, then once a man has “loosened his belt,” i.e. gotten ready for bed, we do not bother him to say it.  Rav Gustman deduces from here that a reshut d’mitzvah is not fully optional – one should always do it unless one has a good excuse or reason for not doing it. Therefore, he concludes, the Torah is not neutral about whether woman should perform commandments from which they are exempt. Women should not pass up opportunities to fulfill them unless they either have a strong excuse, or else face a strong halakhic counterpressure.

But we are not yet at the end of his deductive chain.  Rav Gustman sees no reason to differentiate between Jews and non-Jews, either – a mitzvah action is a mitzvah action regardless of the actor.  It seems to follow – although he does not draw this consequence explicitly – that non-Jews should seek to do all mitzvot which they are not explicitly forbidden.

Rav Gustman’s analysis does not fully convince me, nor do I find all his halakhic conclusions congenial.  His conception of “commandedness” as a property of actorless actions seems deeply odd to me. Nonetheless, or if you prefer: as a result, he compels me to acknowledge that my presuppositions about the halakhic and hashkafic implications of commandedness are challengeable.

Understanding and explicating the concept of commandedness, and the associated concept of heteronomy, should be a core task of contemporary Orthodox thought. Yet my sense is that we have made little progress.  Probably this is because of the opposing polemical tugs I outlined above.

Polemical fears around gender have also led some of Modern Orthodox communal leaders into the trap of demanding conformity in theoretical halakhic discussions, and an expanding array of practical questions. Each side frames its narrowing circle of legitimate influencers as a necessary response to the perceived threat of the other’s monolithicism, in a vicious cycle. The price of imposed intellectual conformity is always integrity. Moreover, a discourse based on fear in one direction often leads to alliances that leave one even more vulnerable to pressures from the other direction.

My hope and prayer is that bringing Rav Gustman’s analysis into public view helps stimulate a conversation that models what Orthodox halakhic discourse should be; open-minded and evidence-based with a wide range of legitimate, openly acknowledged, and often conflicting rooting interests.

 

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Ordination and Subordination

by Rabbi Aryeh Klapper

Can you imagine buying G-d? I can’t either. But Chazal did.

Parshat T’rumah opens with G-d telling Mosheh to initiate the bringing of its eponymous collection of gold, silver, fabrics, etc. for the building of the Tabernacle.  Except it doesn’t say v’yaviu =“they must bring,” but rather v’yikchu =“they must take,” or perhaps “they must acquire.”

How can one “acquire” via the process of donation? Midrash Rabbah suggests that v’yikchu li should be translated not as “they must take to Me’, nor even as “they must acquire for Me,” but rather as “they must acquire Me.”  Most sales of objects, the midrash says, do not entail the simultaneous sale of their seller; but when G-d sold us His lekach tov, the Torah, He made Himself part of the deal.

Rav A. Y. Kook (Responsa Orchot Mishpat CM 35) takes this midrash to a logical but shocking conclusion.  If G-d sold Himself to us, He must now k’b’yakhol (=as if it were possible) be our eved!

Some background is necessary to understand Rav Kook’s explanation of how this can be so.

Vayikra Chapter 25 concludes its presentation of the law of the Jewish eved as follows:

כִּֽי־לִ֤י בְנֵֽי־יִשְׂרָאֵל֙ עֲבָדִ֔ים
עֲבָדַ֣י הֵ֔ם
אֲשֶׁר־הוֹצֵ֥אתִי אוֹתָ֖ם מֵאֶ֣רֶץ מִצְרָ֑יִם
אֲנִ֖י יְקֹוָ֥ק אֱ-לֹהֵיכֶֽם:

Because the Children of Israel are avadim to Me –
they are My
avadim
whom I have extracted from the Land of Mitzrayim
I am Hashem your G-d.

Chazal understood the repetition “avadim to me . . . My avadim” to imply that Jews must be exclusively Hashem’s avadim, and not avadim to avadim, i.e. to human masters.

This seems incongruous, since as we noted, our verse comes as the conclusion to the laws of the Jewish eved!  Rabban Yochanan Ben Zakkai responds (Kiddushin 22b) that a Jewish eved, because he can buy his contract out pro rata whenever he has the means, is merely an employee who was paid in advance. But this is true only for his initial six-year term; if he reenlists, there is no additional payment from the master, and so no way to buy himself out.  The Torah therefore commands that his ear be pierced, since how could the ear which heard “they are My avadim” voluntarily enslave itself?!

Rabban Yochanan ben Zakkai thus argues that not all avadim are slaves.  Generations later, Rav derived (Bava Metzia 10a, 77a, Bava Kamma 116b) the converse – employees are avadim in the full sense of the word if they are bound to specific performance, i.e. if they do not have the right to buy out their contracts.  Therefore, “workers can back out of contracts, even at midday.” The Talmud (explicitly on BK 116b, implicitly on BM 10a) suggests that Rav’s principle applies in full only to workers who agree to a personal services contract over a definite time (sekhirut).  Workers who contract to perform specific defined tasks (kablanut) have less robust protections, because they are not avadim; rather, they are performing tasks they chose for themselves at a time of their own choosing.

Rav Kook’s responsum addresses the question of whether Rav’s principle entitles community rabbis to break their contracts at will.  He rules that it does not, for several reasons. His first reason exposes what seems to be a massive difference between his vision of the rabbinate and its contemporary reality.

דאין זה דבר ברור לע”ד
שרבנות תחשב שכירות כדין שכיר יום,
די”ל דאינה כ”א קבלנות . . .
וי”ל בזה שלא נקרא שכיר יום כ”א מי שעליו לעבוד תמיד כל היום
ואין לו זמן פנוי
שניכר שהוא עבד,
מה שא”כ ברבנות
שרק החובה עליו להורות כ”ד שאלת או”ה
ולדון כל דין תורה שיזדמן,
ואנו יודעין שהרבה זמן נמצא פנוי שאין בו עבודת הציבור כלל,
א”כ הדעת נותן
שאין שכירות הרבנים על הזמן
כ”א על ענין המלאכות והפעולות שעליו לעשות . . .

It is not clear to my impoverished intellect
that the rabbinate is considered
sekhirut, like day-laboring, as one can say that it is instead kablanut . . .
as we can say that one is only called a day-laborer if one is obligated to work the entire day,
with no free time,
so that it is recognizable that one is an
eved,
as opposed to the rabbinate,
where one is only obligated to rule on any questions that arise regarding the permitted and forbidden,
or to judge any lawsuits that arise,
and we know that much time remains unfilled which involves no communal work at all.
It therefore seems reasonable
that that the hiring of rabbis is not for their time
but rather for the specific tasks and actions they are obligated to perform . . .

On this basis, the contemporary 24/7 pulpit rabbinate might very well be halakhic avdut. This would enable rabbis to become free agents at will, and might seem to decisively settle the contemporary controversy over whether pulpit rabbis have serarah.

However, Rav Kook offers two further explanations for his ruling.  The first suggests that we can distinguish not only among types of contract, but also among purposes.

דעיקר כונת התורה
שלא יהי’ אדם מישראל משועבד בדרך שפלות לזולתו
משום שעבדי הם וראוי שיהי’ מכובדים . . .
וחז”ל אמרו:
אמר הקדוש ברוך הוא:
בתי נתתי לכם –
כביכול, כאילו נמכרתי עמה
וא”ז ח”ו נגד כבוד של מעלה להתעסק בצרכי קהל קודש עם ד’ אלה,
וק”ו לבשר ודם שזהו כבוד גדול לו שזכה לעבודה קדושה כזאת.
ומי זה שיוכל לומר שבכה”ג יהי’ יכול לחזור בו מטעם עבדי הם,
לא יעלה עה”ד על הדעת כלל וכלל.

The root intent of the Torah is
that a Jewish human should not be subordinated (=made an
eved) in a degrading manner to another because “they are My avadim and it is appropriate for them to be honored” . . .
and Chazal said:
“Said The Holy Blessed One:
I have given you My daughter (=Torah);
k’b’yakhol it is as if I was sold with her.”
But it is not, G-d-forbid, in opposition to the Honor of Above
to be engaged with the needs of the Holy community the nation of Hashem,
All the more so for flesh and blood,
it must be a great honor for them to merit such holy
avodah,
so who would be able to say (or: would have the
chutzpah to say) that in such a case,
a person could break a contract (to perform such
avodah) on the basis of “they are My slaves?!”Such a thought should not even arise!

So for Rav Kook there is no difficulty with rabbis – and G-d!! – being avadim for the purpose of serving the Jewish community.

This argument leaves me cold.  The Torah’s objection to avdut is a question not just of social, externally derived, honor, but of autonomy and the dignity that derives from making free decisions and accepting responsibility for their consequences. Communal avadim do not necessarily have more autonomy than private avadim, and communities can abuse their power just as individuals can.

Rav Kook’s last reason seems more promising to me:

ולבד זה יש מקום לומר שברבנות לא שייך חזרה מטעם עבדי הם,
עפ”ד הסמ”ע בה’ שותפין קע”ו סקנ”א
דה”ט דשותפין הם משועבדים זה לזה, ואינם יכולים לחזור בהם מטעם עבדי הם
דל”ש עבדי הם כ”א
כשהוא משועבד לחבירו וחבירו אינו משועבד לו כלל. . .
א”כ י”ל ברב עם הציבור,
שישנם גם על הציבור כמה עניני עבדות שמשתעבדים לרבם
נוסף על סתם ת”ח,
ומחוייבים לשמוע לדבריו בכל הנהגות הקהילה
אפילו בדברי רשות, ובעניני מעות הצדקות וכיו”ב,
וכמה שיעבודי כבוד הרב ששייך רק לרב העיר ולא לשום ת”ח אחר,
כל אלה עבדות הוא מצד הציבור,
א”כ הם שניהם עבדים זל”ז
וכה”ג אפילו זולת טעם הקבלנות אינו יכול לחזור.

There is also room to say that the rabbinate may not renege on the basis of “They are My avadim
on the basis of the opinion of Sefer Meirat Einayim Hilkhot Shutafin 176:51
who explain that partners are subordinated to one another,
and therefore cannot renege on the basis of “They are My
avadim,
because “They are My
avadim” applies only
when one is subordinated to another who is not subordinated to you at all
but partners are
avadim to each other, so they are not subject to “They are My avadim” . . .
We can therefore say regarding the relation of a rabbi and community
that since the community is also subordinated to their rabbi
over and above their relationship to other scholars
and they must obey his word in all communal practices
even matters that are halakhically optional, charity disbursement, and the like,
and certain aspects of rabbinic honoring apply only the city rabbi and not any other scholar,
all these are
avdut of the community to the rabbi,
therefore the rabbi and community are
avadim to each other
and under such circumstances even a day-laborer may not renege.

Here Rav Kook indeed describes the rabbi-congregation relationship as “a community consisting of a master, a mistress, and two slaves, making in all, two.

But the analogy to partnership is not perfect.  Partners are subordinate and dominant to each other in the same way, on the same axes.  In Rav Kook’s description, rabbis and congregations have very different obligations to each other, and it’s not obvious to me that they offset. Put differently, partners are equal to each other, and subordinate only to the abstraction of the partnership; neither partner is an eved, and neither has serarah over the other.  This is not true of employees and employers, or rabbis and congregations, who may be eved and sar to each other, meaning that even employees with great responsibility may be entitled to quit at will if their jobs are totalizing.

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Is Marriage What Brings Us Together?

by Rabbi Aryeh Klapper

My thanks to the wonderful participants in CMTL’s Winter Beit Midrash 2019 for their help developing the ideas herein, for which I nonetheless accept sole responsibility.

The Torah does not present itself as a comprehensive legal code. Essential information is clearly missing – for example the mechanics of ritual slaughter, or the color and shape of t’fillin. Yet the Torah demonstrably cares about such minutiae, as we are given the mechanics of bloodsprinkling in detail, and the color of tzitzit.

Our mesorah has a variety of approaches to these gaps. Some are filled by Halakhah l’Mosheh miSinai = regulations whispered to Mosheh at Sinai aside from the public Revelation, and others by Midrash Halakhah = the system of deriving law by textual interpretation of Torah (which may itself have been whispered at Sinai). Some – perhaps most – are understood to be deliberately left to Rabbinic discretion = mesaran hakatuv lachakhamim.  Finally, some gaps seem intended almost as tests.  The correct way to fill them is discoverable only by human reasoning = sevara.

These categories interact, so that almost every area of halakhah results from their interplay. For example, the rule that one may not murder to save a life is derived by sevara – who says that your blood is redder than his? Midrash Halakhah takes the product of that sevara as the basis for legal exegesis – adultery is compared to murder to teach us that one may also not commit adultery to save a life.  Anyone lacking the capacity for accurate moral reasoning will therefore misinterpret Torah as well.

Our topic this week is marriage. The Torah never defines marriage generally and directly.  However, the laws of the daughter-sold-as-maidservant (Shemot 21:7-11, specifically 9-10) contain relevant information.

וְאִם־לִבְנ֖וֹ יִֽיעָדֶ֑נָּה
כְּמִשְׁפַּ֥ט הַבָּנ֖וֹת יַעֲשֶׂה־לָּֽהּ:
אִם־אַחֶ֖רֶת יִֽקַּֽח־ל֑וֹ
שְׁאֵרָ֛הּ כְּסוּתָ֥הּ וְעֹנָתָ֖הּ לֹ֥א יִגְרָֽע:

If he (the master) marries her to his son –
he (the son) must do for her as is the law for daughters (
mishpat habanot).
If he (the master or son) marries an additional wife –
he must not diminish her
sh’er, k’sut, and onah.

The “law for daughters” seems to point to a set of obligations that husbands have toward wives.  No details are given.  However, from the Torah’s prohibition against diminishing sh’er, k’sut, and onah if a second wife is subsequently taken, it seems reasonable to see those three as contained within the set, and possibly as comprising it.

Rabbi Samson Raphael Hirsch suggests compellingly that the Torah chooses to present the general laws of marriage in this context in order to show that all wives are protected by these laws, regardless of their social status relative to their husbands and/or their co-wives. He does not however explain why the Torah chooses to define the “law for daughters” by implication rather than directly.

Rashi records the standard definitions of sh’er = food, k’sut = clothing, and onah = sex with appropriate frequency. Each of these can be challenged as a matter of pshat – e.g. Rashbam identifies onah as housing (cf. מעון), and Targum Yerushalmi translates k’sut as tachsheeteha = cosmetics and/or jewelry.  As a matter of law, the Talmud records a dispute as to whether the husband’s obligations to provide food and/or clothing are Biblical, or rather Rabbinic (and negotiable between the parties).  Barring the introduction of new and otherwise unknown husbandly obligations, the latter position appears to require understanding all three terms in the verse as relating to intimacy.

This position is taken by Ramban.

ובגמרא (כתובות מז:) אמרו על מי שאמר כך
והאי תנא סבר מזונות דאורייתא . . .
והמובן בסוגית הגמרא שהם דברי יחיד,
והלכה מזוני תקינו לה רבנן . . .
והנה שארה – קרוב בשרה. וכסותה – כסות מטתה . . .
ועונתה הוא עונה שיבא אליה לעת דודים . . .
וכך אמרו חכמים: שארה – זו קרוב בשר,
שלא ינהג בה כמנהג פרסיים, שמשמשין מטותיהן בלבושיהן.
וזה פירוש נכון, כי דרך הכתוב בכל מקום להזכיר המשכב בלשון נקי ובקצור,
ולכן אמר באלו ברמז שארה כסותה ועונתה, על שלשת הענינים אשר לאדם עם אשתו בחבורן . . .

Ketubot 47b says regarding one who interprets sh’er as food that
“That Tanna holds that providing food is a Biblical obligation” . . .
It is understood from the flow of the gemara that this is a minority position,
whereas the halakhah is that providing food is a rabbinic enactment.
So
sh’er = “closeness of flesh”, and k’sutah= bedcoverings . . .
and
onatah = having sex at romantically appropriate intervals . . .
so the Sages say: “
She’er= closeness of flesh,
meaning that he should not act with her the practice of the Persians, who have sex while dressed.”
This is a correct interpretation,
as the way of Scripture throughout is to refer to sex euphemistically and cleanly.
Therefore, it gives these hints of
sh’erah k’sutah v’onatah to the three conditions of marital intimacy . . .

The Vilna Gaon in Aderet Eliyahu takes a radically opposite approach to the text.

“עונתה” – זו דירה, דלשמש לא צריך קרא

Onatah” – this refers to housing, as (the obligation to have) sex does not require a verse.

In other words, the Vilna Gaon believes that the husband’s obligation can be derived via sevara.

Ramban and Vilna Gaon can easily be made to agree substantively.  We can say that the fact of a sexual obligation is derived from sevara, and then the details of that obligation are derived from the text.

On this basis, we can suggest that mishpat habanot, the normative framework for marriage, is not spelled out in the Torah because it must be developed via the interaction of sevara, Rabbinic discretion, and textual interpretation. Mishpat habanot reasonably differs in polygamous and monogamous contexts.  The Torah therefore specifies that a second marriage cannot diminish the first wife’s rights – as defined by the mishpat habanot for monogamous relationships – on three specific axes.

According to Ramban, each of these axes relates to sexual intimacy. Rambam, however, adopts the position that sh’er and k’sut refer to food and clothing. I suggest that this dispute is ultimately about the fundamental nature of marriage. For Rambam, marriage is by definition a broad relationship in many areas of life. For Ramban, marriage is about the norms of a sexual relationship.  Depending on various circumstances, those norms may extend to food and clothing obligations, but one can conceive of a valid and holy marriage relationship that regulates only the sexuality of the partners.

Rambam may also see all aspects of the sexual relationship other than frequency as negotiable, and perhaps as socially dependent.  By contrast, Ramban has the Torah give specific content to the mishpat habanot on all three axes.  I have not yet found a standard for k’sut, but with regard to sh’er, he refers us to a specific regulation on Ketubot 48a (which Rambam does not cite).

תני רב יוסף:
שארה – זו קרוב בשר
שלא ינהג בה מנהג פרסיים, שמשמשין מטותיהן בלבושיהן
מסייע ליה לרב הונא, דאמר רב הונא:
האומר ‘אי אפשי אלא אני בבגדי והיא בבגדה’ –
יוציא ונותן כתובה

Rav Yosef taught a beraita:
Sh’erah – this refers to closeness of flesh
meaning that he must not act with her the practice of the Persians, who have sex while dressed.
This supports Rav Huna, for Rav Huna said:
One who says “I do not want (to have sex) except in my clothes and with my wife wearing hers” –
he must divorce his wife and pay her
ketubah.

Rav Yosef taught that the mishpat habanot requires undressing; in other words, it takes time and an effort at intimacy, rather than the mere satisfaction of desire. This is very likely to be threatened by the pressures of polygamy, so the Torah specifically forbade its diminution.  Rav Huna correctly derives from Rav Yosef that a husband who unilaterally limits sexual intimacy to the immediate physical act is in breach of the mishpat habanot, and can therefore be sued for divorce. Rashba to Ketubot 63a cites the possibility that physicality without intimacy is an ultimate breach, because it enables men to avoid pain while inflicting it on women. Rashba to Niddah 15a similarly understands that the husband’s mitzvah of onah derives from a prior sexual obligation that is part of the definition of marriage. Therefore, the mitzvah has no application whenever the underlying obligation has been suspended, for example by an oath not to derive pleasure from one’s partner’s body. Conversely, it may be possible to completely fulfill the mitzvah and yet be in breach of one’s sexual obligations under mishpat habanot.

The idea that halakhah regulates and expands the marriage relationship, rather than constructing it from scratch, may have broader philosophic and legal implications. For example, while the mitzvot of sh’er, k’sut, and onah are all one-way, from the husband toward the wife, it seems clear from Niddah 15a that some and perhaps all elements of mishpat habanot are reciprocal. Perhaps these mitzvot are intended to compensate for the practical factors that often undermine the fundamentally reciprocal nature of marriage. It is also possible that some aspects of the mishpat habanot are socially contingent, which would explain why the Torah never defines the halakhic marriage relationship directly.

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