Category Archives: Weekly Devar Torah

In the Space Between Korach and Shammai: Dealing with Torah Arguments that Might or Might Not Be for the Sake of Heaven

by Rabbi Aryeh Klapper

Every faction that exists for the sake of Heaven – will ultimately endure;

Every faction that exists not for the sake of Heaven – will not ultimately endure.

Which are factions that exist for the sake of Heaven? These are the factions of Hillel and Shammai.

Which is a faction that exists not for the sake of Heaven? This is the faction of Korach and his edah.

(Pirkei Avot 5:17)

Careless readers of this beautiful mishneh might conclude that each and every faction can be classified as either “for the sake of Heaven” or else “not for the sake of Heaven”.  But nothing about the Mishneh denies a more complex reality in which factions are coalitions of people with different motives, and in which individual human beings often have mixed motives.  Meshekh Chokhmah (quoted in my Jewish Press column this week) implies that even “Korach and all his edah” must be read narrowly to exclude the 250 elders who came with Korach, as their motives were pure.  The Mishnah should be used as a mussar self-check rather than to dismiss opposing factions as ephemeral.

It should also be clear that there is no necessary relationship between purity of motives and quality of argument.  The best of arguments will be appropriated by the greedy if it serves their interests; and the righteous are fully capable of gross analytic or interpretational error.  A demonstration of sordid motives does not absolve us of the obligation to accept the truth from whoever speaks it, and to reject the false likewise.

But we must acknowledge that the halakhah does not always follow the best argument.  Philosophy is properly a world of emet vasheker, truth and falsehood, in which arguments are evaluated without regard to who makes them.  But practical halakhah is a normative system, which is to say it exists in the realm of tov vara, good and evil.  In that world, it matters very much who has authority, and order is better than chaos.  Therefore, at times one must follow a weaker argument made by a greater authority over a stronger argument made by a lesser or non-authority, and law has an inertial preference for continuity.

Halakhic decisionmaking must nevertheless not be allowed to depend exclusively or even primarily on who has authority rather than on the strength of arguments.  G-d made halakhah depend on textual interpretation and rational argument in order to ensure that Jewish religious leaders would always be intellectually accountable to the people.

The mistaken idea that halakhah depends exclusively on personal authority leads to a politics of personal destruction, in which the only effective response to disagreement is to delegitimate the disagreeing person (or community).

The mistaken idea that halakhah depends exclusively on perceived analytic superiority leads to a politics of intellectual dishonesty.  If truth is in and of itself a sufficient ground for practice, then we cannot risk allowing anyone to think even for a moment that the arguments for a position we disagree with are compelling.

Orthodoxy is currently plagued by an incoherent and malignant combination of these two mistakes.  The consequences are that people who make bad arguments for positions we disagree with are attacked personally to deny them authority; and good arguments made by people without personal authority are ignored or disingenuously dismissed to ensure that no one follows them until they are given authority.

Each of these consequences is immoral, and also very poor policy.

Rabbi Zevulun Charlop shlita, Dean Emeritus of RIETS, likes to say that mechadshim (creative Torah scholars) should be evaluated like baseball batters: even the best only hit safely once every three tries, and those with power are regarded as successful at much lower ratios.  Mechadshim with power are more likely to be wrong, and their mistakes are likely to be doozies.

What happens to a Torah community that delegitimates public intellectuals after their first error, and rejects all disruptively creative ideas out of hand?  A Torah community needs to be able to tolerate and survive significant and even potentially dangerous errors, or else it will stifle the creativity that is essential to its intellectual and spiritual health.

Our panic when confronted by presumptive halakhic authorities who make bad arguments about important issues, or presumptive nonauthorities who make good arguments, reflects a deep lack of trust in our community.  We suspect first of all that our nonscholars cannot distinguish weak from strong arguments, especially when they have a rooting interest in the outcome.  Secondly, we suspect that many members of our community do not care about the strength of an argument, or about the consensus of scholars.  Rather, they see the existence of any sort of argument as a matir, as giving them the right to do what they want.

These suspicions are not groundless.  But we overreact to them when we seek to prevent non-poskim from having any input into halakhah, or seek to shoehorn all scholars into a conformist mold.  A healthy halakhicate wants to be accountable to its laity, and wants everyone to be as autonomous as is consistent with preserving the role of halakhah as law rather than as subjective religious expression.

These overreactions often generate a vicious cycle.  The overbearing push for conformity leads to a celebration of even shallow ideosyncrasy.  Telling nonscholars or lesser scholars that they have no say leads them to deny the legitimacy of authority.  Each then side then uses the other’s reactive misbehavior to justify its own escalation.

By the same token, error should not be without consequences, especially if the error is not acknowledged.  On Gittin 43a Rabbah bar Rav Huna tells us that “A person does not find his footing in words of Torah unless he stumbles in them first” – in the context of correcting his previous mistaken ruling.  Home run hitters usually strike out a lot because they take big swings, but not everyone who takes big swings is a home run hitter.  Some people simply can’t hit at all.  Obviously, a past record of achievement makes it more likely that we’ll keep you in the lineup when you’re slumping.

I think we can admit that Orthodoxy faces enormous challenges.  Not so much to our survival, as to our capacity to live integrated religious lives in modernity.  We have not yet developed sufficiently compelling intellectual responses to Biblical criticism, or halakhic responses to the (wonderful) ethical challenge of participating as full citizens in a pluralistic society, or sociological responses to the existence of large numbers of Jews who see intermarriage as no bar to full communal membership, or moral responses to Jews who see no justification for heteronormativity.

These are just some of the many issues we confront where past ideas are insufficiently developed to guide us.  We need intellectual incubators, not sterile industrial egg farms.

One can of course deny the value of living an integrated religious life anywhere outside the beit midrash.  One can shrug off the reality that less than 10% of American Jews identify as Orthodox, let alone live halakhically observant lives, by blaming the audience and absolving the product, or by waiting for demography to change that reality.

But if we are not prepared to do any of these, it’s time we learned to leave a greater margin for error.

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A Reintroduction to Halakhic Man – Part 1

by Rabbi Aryeh Klapper

Rabbi Joseph B. Soloveitchik’s Ish HaHalakhah dominated the landscape of Modern Orthodox hashkafah for years.  More precisely, an image arising out of a partial understanding of the work dominated that landscape.  This image closely approximated the epigraph of the book – “the image of his father’s face appeared to him in the window” – which is to say that it caught the core of the Rav’s portrayal of his father and grandfather.  It had enormous value in explaining, validating, and valorizing the character of the Eastern European Talmudic scholar to an American Jewish culture with a tenuous-at-best relationship to rigorous traditional Torah study, and in more generally presenting halakhic dedication as enabling rather than inhibiting the development of a rich internal life.

Ish HaHalakhah’s influence far outstripped the range of those who actually read the book, let alone of those who read it in the original Hebrew.  Many eager readers (myself as a teenager, but I don’t think I’m projecting) gave up when they hit untranslated Greek characters in the opening pages.  So it can be no surprise that, as with all hyperintellectual books that become cultural touchstones, some errors and loss of context were the price of popularization.

Such distortions are calibrated to the needs and desires of their time.  As a culture changes, they reverse roles and make the book’s message less rather than more accessible.

Here are three common perceptions related to the book that I contend are incorrect:

1) The Ish HaHalakhah represents the highest form of Jewish religiosity, rather than one among many powerful forms

2) Halakhah is the only form of access to the Divine Will that Orthodoxy should acknowledge, and there is no religious meaning to acts or intentions that are not channeled through the intellectual frameworks and practical mandates of halakhah.

3) The Ish Hahalakhah has no interest in determining Halakhah.  When the Talmud records halakhic disputes, he seeks only to explore the conceptual underpinnings of each position.  The same is true with regard to disputes among later commentators and decisors.

Let us begin with the question of whether the Ish HaHalakhah reflects the highest form of Jewish religiosity.  My evidence against this hypothesis is the book’s own description of its eponym, on page 15.

תעודתינו במאמר זה היא לחדור לתוך כבשונה של תודעת איש ההלכה ולעמוד על מהותו של טיפוס “מוזר ומשונה”, המתגלה לעולם מתוך ד’ אמותיו “המצומצמות”, כשידיו מלוכלכות בשפיר ושליא.  ברם כדי לצאת ידי חובתינו במסה זו עלינו לפתוח בביאור סירטוט אופייני וקו יסודי בהשקפתו האונטולוגית של איש הדת בהשוואה אם איש הדעת – שמתוכם של השינויים וההבדלים שבין שניהם, נכיר את בעל הוויות אביי ורבא.

This section is translated as follows on pp. 4-5 of Dr. Lawrence Kaplan’s magisterial translation, Halakhic Man:

Our aim in this essay is to penetrate deep into the structure of halakhic man’s consciousness and to determine the precise nature of this “strange, singular” being who reveals himself to the world from within his narrow, constricted “four cubits” [Berakhot 8a], his hands soiled by the gritty realia of practical halakhah [see Berakhot 4a].  However, in order to fulfill the task, we must undertake a comparative study of the fundamental and distinctive features of the ontological outlooks of homo religiosus and cognitive man.  For only by gaining an insight into the differences and distinctions existing between these two outlooks will we be able to comprehend the nature of halakhic man, the master of Talmudic dialectics.

It is almost impossible for translations to capture allusions, especially when the alluded-to text is less known than the alluding text.  “master of Talmudic dialectics” is certainly more helpful to most audiences than “master of the challenges of Abbaye and Rava”.  But readers of the English have no way of knowing that the Rav is citing language from Talmud Sukkah 28a., and I contend that in this case the allusion is critical to meaning.  Here is the Talmud:

A beraita:

Hillel the Elder had eighty students –

Thirty of them were fit to have the Divine presence rest on them as it did on Moshe Rabbeinu;

Thirty of them were fit to have the sun stand still for them as it did for Yehoshua bin Nun;

Twenty of them were intermediate.

The greatest of them was Yonatan ben Uziel;

the least of them was Rabban Yochanan ben Zakkai.

They said regarding Rabban Yochanan ben Zakkai that he did not leave aside

mikra or mishnah,

gemara, halakhot, and aggadot

didkdukei Torah and dikdukei Sofrim,

kalim vachamurim and gezeirot shavot

tekufot and gematriot,

the discourse of the ministering angels

the discourse of demons

the discourse of dekalim

parables of washermen

parables of foxes

great thing

lesser thing.

What is the meaning of great thing?  The Making of the Chariot;

What is the meaning of lesser thing?  The challenges of Abbaye and Rava . . .

Many of the elements of Rabban Yochanan ben Zakkai’s curriculum are obscure, and can only be identified speculatively.  But there is no ambiguity about the status of “the challenges of Abbaye and Rava” relative to the status of “the Making of the Chariot”; it is davar katan, a lesser thing.

It follows that the Ish HaHalakhah, as the master of “the challenges of Abbaye and Rava”, is not the equal of one who is a master of “the Making of the Chariot”, and we have demonstrated that the Ish HaHalakhah is not the highest form of Jewish religiosity.

This naturally raises the question: Who is the master of the Making of the Chariot?

This question was the subject of great medieval controversy.  Rambam Laws of the Foundations of Torah 4:13 identifies the making of the Chariot with rational metaphysics, and he was sharply criticized for this by those who identified it with mystical experience instead. It is true that Ish HaHalakhah points out repeatedly that its eponym is not interested in either rational metaphysics or in mysticism.

But I contend that the Rav held a third position.  Rather, the key to the Rav’s hierarchy lies in a seeming paradox that Lord Rabbi Sacks raised many years ago: The Ish HaHalakhah would clearly have no interest in reading the Rav’s book about him, let alone in writing it!  I contend that for the Rav, the master of the Making of the Chariot is the author, not the subject, of the book.

In a subsequent installment, I will seek to justify that claim on the basis of Halakhic Mind.  But I will first seek to demonstrate the incorrectness of the other two misperceptions listed at the outset of this essay, on the basis of Halakhic Morality and the Rav’s lomdishe account of semikhah, respectively.  Please stay tuned, and I very much welcome anticipatory questions, challenges, and comments.

Shabbat shalom!

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Should the Sanhedrin Be Elected?

by Rabbi Aryeh Klapper

Should the Great Sanhedrin, when it is reconstituted, be elected?  What can the selection of the Sanhedrin teach us about rabbinic leadership today?

One apparent forerunner of the Sanhedrin originates in this week’s parshah.  Bamidbar 11 describes a devolution of some form of authority from Moshe Rabbeinu to a group of seventy.  The shift is occasioned by Moshe’s complaint that he is unable to bear the weight of the people by himself, and Hashem states explicitly (11:17) that

וְנָשְׂא֤וּ אִתְּךָ֙ בְּמַשָּׂ֣א הָעָ֔ם

וְלֹא־תִשָּׂ֥א אַתָּ֖ה לְבַדֶּֽךָ

They will bear the weight of the people together with you

You will not bear it alone

Rabbi Joseph B. Soloveitchik derived from here that the Sanhedrin is not merely a court of judges tasked to determine Torah law.  Rather, one role of the Sanhedrin is to function as a representative of the Jewish nation with concern for its political and not just religious wellbeing.

Symbolic representation is often a figleaf for totalitarianism, as in fascism, where the people often have no say in choosing their self-declared “representative” and have no control over actions performed in accordance with “the spirit of the folk”.  The Rav made sure to clarify that this was not the case with regard to the Sanhedrin.  Rather, the people have a “pocket veto” over actions of the Sanhedrin taken in its representative role.  Thus declarations of leap years (Tosefta Sanhedrin 2:13), and Rabbinic decrees (Horayot 3:2, Rambam Hilkhot Mamrim 2:5-6), are nullified if they are not adopted by a majority of the affected population.  (Rambam does not explain how the Sanhedrin should determine that a decree has or has not been adopted, or how it can be held accountable for the accuracy of that determination.  I suggest that this is because he is focused on ends, not means; he is open to a wide variety of mechanisms for accountability, but he would not allow the rabbis to make such determinations by unreviewable fiat.)

A careful reading of the text suggests that the people also had a role in choosing the original Sanhedrin.  Hashem tells Moshe (11:16)

אֶסְפָה־לִּ֞י שִׁבְעִ֣ים אִישׁ֘

מִזִּקְנֵ֣י יִשְׂרָאֵל֒

אֲשֶׁ֣ר יָדַ֔עְתָּ

כִּי־הֵ֛ם זִקְנֵ֥י הָעָ֖ם וְשֹׁטְרָ֑יו

Gather for me seventy men

from among the elders of Israel

whom you know

that they are elders of the people and its bailiffs.

The verse is plainly redundant.  If the men are to be gathered “from among the elders”, what is added by saying that Moshe must “know that they are elders”?  Numerous commentators suggest that Moshe was required to ascertain that these officeholders were popularly considered to be worthy of their positions.  (The text does not specify how Moshe ascertained this, but Moshe’s epistemology is generally not valid precedent for subsequent halakhah; thus “lo bashomayim hi”.)

In an essay entitled “Judaism and Fascism”, published in a 1935 Jubilee volume honoring Rabbi Dov Leventhal of Philadelphia, Rabbi David de Sola Pool takes this argument a brilliant and creative step further.

“Again and again [Moses] works not on his ipse dixit, but through the zekenim, later organized into an official body of seventy elders (Numbers 11:24-39), and the 12 nesiim, an upper chamber . . . By the time of his death, constitutional government had been definitely established through himself as the head of government, the two bodies of the nesiim and the zekenim together constituting the edah, and the courts.  This was a form of bicameral popular representative government . . .”

Rabbi de Sola Pool’s argument likely is that Rabbinic literature sometimes understands the Biblical term “edah” as referring to the Sanhedrin, and that the Torah refers to both “elders of the edah” and “nesiim of the edah”.  His argument accords with the Rav’s claim that the Sanhedrin has an explicitly political role, but to my knowledge is unprecedented in its assertion that the nesiim constituted an upper chamber of the same body as the Seventy Elders.  His conception of the Sanhedrin as distinct from the judiciary, rather than as its apex, likewise seems novel to me, but deserves serious analysis and consideration.  Regardless, it should be clear that he and the Rav both see democratic accountability as essential for any political role, even if that role is played by great Torah scholars, and even if Torah scholarship is a necessary qualification for that role.

Rav Avraham Yitzchak HaKohen Kuk (Responsa Orach Mishpat Choshen Mishpat 2) extends that accountability to the judicial realm.  Indeed, he uses the selection of judges as the model for halakhic recognition of the value of representation:

“. . . This matter (proportional representation) dovetails with the path of Torah,

for there is a mitzvah or each tribe to judge its members (Sanhedrin 16a),

and the mitzvah of establishing judges refers specifically to judges for each tribe respectively,

as is written in Tosafot there s.v. judges,

to the point that even were the population of one city to include members of two tribes, we would establish two sanhedrins (courts of 23 members, with jurisdiction over almost all civil and criminal matters, including capital cases) in that city,

although whether this ever actually happened depends on the dispute (Sanhedrin 111b) as to whether one city is ever apportioned to two tribes.

Nonetheless, we see that the Torah opinion is that any time there is an aspect of division among the people, it is a curtailment of their right to not have an appointee from their side of the divide,

a fortiori if they agree to unite under a single authority, for it is impossible that they should lose out as the result of their side’s love of peace and unity.

And with regard to peace – it is certain that the communal mind will be secure only when it has a representative of its side in the leadership of the whole.

This can be derived a fortiori from the rule of This litigant chooses one for himself” in private matters, for we say (Sanhedrin 23a)

“Since this litigant chooses one judge for himself and this litigant chooses one judge for himself, and the two of them choose for them yet another one, the law will emerge in accordance with its truth”,

and Rashi there s.v. “will emerge” explains that this means that

the litigants will obey the verdict, as the one found liable will reason thus: ‘I myself chose one of the judges, and had he been able to find merit in my cause he would have’,

and the judges themselves will find it agreeable to seek merit in both cases because they were chosen by both.

If it is a praiseworthy path in private matters to pursue the path of peace and straightforwardness by means of a representative, a fortiori this is so in communal matters,

and the peace of the community is included in the last statement, for there is no path more desirable than that each faction should be appeased by knowing that it has a representative who seeks merit for its causes in the leadership of the community.  This is impossible other than through elections leading to proportional representation.”

Recognizing the democratic foundation of rabbinic authority can have at least three salutary consequences.

  1. It requires a halakhically committed population to compel all Jewish institutions to be publicly accountable, regardless of the piety or scholarship of its advisory board.
  2. It prevents laypeople from disclaiming responsibility for the failures of their community’s rabbinic leadership.
  3. It compels supporters of minority halakhic positions to acknowledge that their positions are losing not because the halakhic authorities are out of touch with the desires of the laity, but rather because they are very much in touch.  Contentions about the existence of “silent majorities” are no more convincing in halakhah than anywhere else.

Some readers will respond that one can recognize that rabbinic authority ought to be democratically founded, but in practice is imposed by rabbis on people.   I contend that this argument has only superficial appeal in the vast majority of cases.  All religious communities in America are voluntary, and the power of the Israeli Chief Rabbinate is wholly derived from that of the elected Knesset.

In all democratic societies, people who care most about specific issues will exercise disproportionate power over such issues.  It is reasonable and legitimate for Charedim to care more about religious issues than chilonim.  It is reasonable for Modern Orthodox Jews to care more about day school tuition or even kosher restaurants than batei din, because “If there is no flour, there is no Torah”.  But in the end we get the religious leadership that we want, or at least that reflects our priorities.

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Vowing to God: What to Do When Your Son is a Month Old and Already on Heart Medication?

This week’s alumni Dvar Torah is by Benzion N. Chinn

I confess that this is less than a traditional Torah thought, with a clear question and answer, than an expression of my own bewilderment. It is less that I am offering textual interpretation and sage advice and more that I am asking readers for their guidance.

My son Moshe Eliezer (Louis “Mackie” McKenzie) Chinn was born this past April 24th. Since we brought him home he has been sent back to the hospital twice. The first time was after a coronary-pulmonary failure; in lay-person’s terms, he stopped breathing and needed CPR. The second time was with a heart rate over 300 beats a minute. Thank God, Mackie is responding well to treatment and is now home. We have been introduced to Wolff-Parkinson-White-type Supraventricular Tachycardia. It does not appear to be life-threatening and we hope for the best. The reality is that if things had played out a little different (if Mackie did not have a grandmother who is an OBGYN, or if his veterinarian aunt was not visiting), Mackie right now might be a SIDS statistic.

In the meantime, his mother and I have been very anxious and not getting loads of sleep.  These past few weeks have presented their own spiritual challenge. As a Maimonidean-rationalist, I refuse to believe that God actively saved my child. I did not deserve a miracle and, however righteous my wife may be, a God who would intervene to save my son while allowing thousands of other babies to die that day must be condemned as capricious if not downright satanic. All of this leaves me in a spiritual bind. None of my spiritual training has given me the tools to look the death of my child in the face and then to find salvation. My idolatrous heart tells me that God spared my son because of some good deed and that I should vow to do something in thanks.

While I struggle, I take comfort in the fact that this week’s Torah reading is one of the great examples of the Torah’s ambiguous relationship with vows. The Torah accepts the concept of a Nazarite vow, that one may promise to refrain from cutting their hair and from drinking wine, but at the same time seems critical of the entire venture.

Nazarites bring a sin offering at the completion of their vow.  Perhaps this is because they did not take the pleasure from this world that they were supposed to. There is something fundamentally antinomian and heretical about asceticism. A person who does not believe in the saving power of Halakhah, so that he needs to do extra things, will eventually come to believe that he needs to violate Halakah in order to be saved. For example, the Nazarite Samson slept with gentile women and even went to prostitutes. I suggest that this was not a contradiction to his being a Nazarite, but rather a logical conclusion.  If you believe that his Nazarite status placed him above the normal understanding of mortals, then you must also accept that what would be a sin for anyone was really the height of righteousness for Samson.

I have not become a Nazarite. In fact, I made sure to get a haircut right before the holiday. I am more inclined to think that if I honor my parents by not looking like a Nazarite, I will one day be able to bother Mackie about the length of his hair.

Benzion N. Chinn (SBM 2003) lives with his wife, Miriam, and their two children, Kalman and Mackie, in South Pasadena, CA. He works as an academic and special needs tutor, while occasionally finding time to blog at www.izgad.blogspot.com

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Was Rabbeinu Gershom a Halakhic Progressive?

by Rabbi Aryeh Klapper

First of a multipart series on halakhic solutions to male iggun (men who are in a dead halakhic marriage but are unable to remarry halakhically).

In the late tenth or early eleventh century, according to halakhic tradition, Rabbi Gershom of Mainz, known as Rabbeinu Gershom Meor HaGolah (“Luminary of the Exile”), enacting two decrees that radically changed the terms of Jewish marriage.

First, he banned polygamy.

Second, he banned divorcing women without their consent.

These decrees were accepted almost immediately throughout the Ashkenazic community, and over the centuries have largely become accepted by the Sephardic community as well.

Banning polygamy changes the emotional contours of marriage.  It defines the affective relationship between husband and wife as not only mutual but also exclusive.

Banning nonconsensual divorce changes the power contours of marriage.

What motivated Rabbeinu Gershom to make these decrees?

Three centuries later, Rabbeinu Asher (ROSH) offered this rationale for the ban on nonconsensual divorce (Responsa ROSH 42a):

אך כי ראה הדור פרוץ ומזלזלין בבנות ישראל בזריקת גט,

ותקן להשוות כח האשה לכח האיש

Because he saw the generation unbounded and degrading daughters of Israel by ‘throwing the divorce’, 

and so he decreed to equalize the power of the woman to the power of the man.

“Throwing the divorce” is an idiom for nonconsensual divorce; if a wife refuses to accept the divorce document from her husband, he can simply toss it at her or into her property.  This is Torah law, and the rabbis of the Mishnah and Talmud felt no need to change it.  ROSH asserts that a new social ill grew up in post-Talmudic Jewish Germany and impelled Rabbeinu Gershom to enact his decrees.  It is not clear what that ill was, or why Rabbeinu Gershom’s decree was so rapidly accepted in Ashekenaz.

Another way to frame the question is: Doesn’t the possibility of nonconsensual divorce necessarily degrade women relative to men?  Why did Rabbeinu Gershom think that only his and subsequent generations required the power of the wife to be equal to that of the husband?

In the eighteenth century, Chatam Sofer offered this pungent expansion of ROSH’s formulation:

When the unbounded ones who degraded the proper daughters of Israel grew numerous – 

“In the evening she came, and in the morning she returned” 

Chatam Sofer’s quote of Esther 2:14 strikingly compares a Jewish wife to a Persian virgin commandeered by Achashverosh for a one-night stand – here today and replaced tomorrow.  The problem with his explanation, as with ROSH’s, is that he doesn’t explain what changed in Rabbeinu Gershom’s time to newly create this issue.  Why was the decree against nonconsensual divorce a reaction to a new social ill, rather than a correction of a structural injustice?  Why wasn’t the possibility of nonconsensual divorce a per se degradation of Jewish women?

I suggest that ROSH and Chatam Sofer are placing Rabbeinu Gershom in the context of the Talmudic explanation for the institution of the ketubah.  The ketubah guarantees the wife support or a lump sum should she be widowed or divorced.  Talmud Bava Kamma 89b declares that the rabbis permitted marital cohabitation only in the context of a ketubah

So that she not be light in his eyes, to divorce her

In other words, the Talmud recognizes that the possibility of nonconsensual divorce makes women “light” in the eyes of men, and that this is a problem [1].  It presents the rabbis as trying to solve this by making divorce expensive.  In Rabbeinu Gershom’s community, this solution was apparently no longer effective [2], and so he banned nonconsensual divorce altogether.  But why didn’t the Talmudic rabbis adopt this method in the first place?

Here I think it is useful to look at the context in which ROSH’s explanation appears.  He is discussing the case of a man who discovers after two years of marriage that his wife is subject to a medical condition that makes living with her (in his opinion) impossible and perhaps dangerous, but who is also financially unable to pay her ketubah in full.  She refuses to accept a divorce without full payment, and meanwhile demands both financial support and conjugal rights.  ROSH responds as follows:

In the days of the Talmudic Sages, 

if a wife developed such a blemish – 

her husband would divorce her and be obligated to pay her ketubah;

he would pay whatever he had on hand, and the rest when he became able to.

But now that the Gaon Rabbeinu Gershom z”l decreed that he cannot divorce her against her will, 

it is implausible that he should be obligated to provide her support, clothing, and physical intimacy – 

if that were so, the power of the woman would be much greater than the power of the man,

as if such a blemish developed in a man – 

we would not compel her to remain with him, 

rather we would compel him to divorce her and pay the ketubah,

so how can we say that if such a blemish develops in a woman, 

we compel him to be with her and to support her!?  

If a man, who biblically divorces only by his free will, 

can be compelled to divorce and pay the ketubah if he develops blemishes, 

a woman, who biblically can be divorced against her will – 

shouldn’t this be true all the more so?!   

But Rabbeinu Gershom set a boundary in this matter.

But isn’t it a kal vachomer that he never even considered in such a situation “chaining the man” 

and preventing him from fulfilling “be fruitful and multiply”?!  

Rather, in this case certainly he may divorce her and pay her ketubah

because Rabbeinu Gershom’s enactment 

did not make the power of the woman so much greater than that of the man,

rather,

because he saw the generation unbounded and degrading daughters of Israel by ‘throwing the divorce’, 

and so he decreed to equalize the power of the woman to the power of the man:

just as the man divorces only willingly, 

so too the woman is divorced only willingly.

But it would be completely implausible to say 

that in a situation where the man would be coerced to divorce, 

he would not be able to divorce the woman against her will.

Even if you were to say

that he standardized the issue

so that no man could ever divorce a man against her will,

nonetheless

in a situation where the man would be coerced to divorce

the woman too is coerced to accept the divorce

and if she refuses to accept it – 

he may default on providing her with food, clothing, and physical intimacy,

and she cannot say “I do not wish to accept the divorce until he pays me my ketubah”,

as this is no claim,

since she is legally obligated to accept the divorce

as I have demonstrated. 

ROSH does not advance the egalitarian thesis that Rabbeinu Gershom sought to equalize men and women in order to justify a halakhically expansive understanding of the legislation.  Rather, he uses it as a ceiling, in order to reject an interpretation that, in his view, would give women more power than men.

ROSH makes us confront the reality that Rabbeinu Gershom’s legislation may have decreased inequality at the price of increasing unjustified suffering.  Rather than take the modern approach of no-fault divorce, which in theory equalizes marital power by denying either spouse the right to prevent the other from leaving the relationship, Rabbeinu Gershom increased women’s power over men.

For ROSH, I suggest, the Talmudic rabbis were unwilling to make this tradeoff.  Rabbeinu Gershom became willing to do so only because something happened to decrease women’s stature within marriage.  ROSH presents Rabbeinu Gershom as reactive, not progressive.

But it seems likely to me that Rav Mosheh Feinstein, in a responsum to Rabbi Shimon Trebnik dated 25 Tevet, 5721 (Igrot Mosheh EH 1:115), read ROSH and Rabbeinu Gershom quite differently.

Stay tuned for Part 2 of this series coming soon!

Notes:

[1] Why would the rabbis see this as a problem, if the Torah set up a system that permitted it?  The simplest answer. enshrined in our standard ketubah’s phrase דחזי ליכי מדאורייתא, is that the rabbis merely increased the amount of a Biblically mandated ketubah.  Why would they increase it?  I suggest that the rabbis understood the Torah as balancing the goal of protecting women from unjustified divorce with the risk of deterring men from committing to marriage.  The rabbis saw the balance shifting, either because women’s social bargaining position improved, or else because the risks of unjustified divorce increased, and responded accordingly.

[2] We can’t know how Rosh conceived of Rabbeinu Gershom’s community.  Perhaps he thought they were so rich that the ketubah-payment had become an ineffective deterrent to divorce; perhaps, as in some batei din in contemporary America, the ketubah was calculated by weight of silver and the price of silver crashed; perhaps clever lawyers or secular laws had made effective enforcement of the ketubah impossible.

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The Rabbi and the Gabbai: A Horsetorical Bromance

by Rabbi Aryeh Klapper

The gaon Rav Chasdai, who was known for his outgoing and generous nature, once came across a group of children looking crossly at one another.  He asked them what was the matter, and their reply was:  We all want to play horsey, but no one is willing to be the horse.  So he volunteered to be the horse.  The children tied a rope around him and rode him or led him around for a while.  When they got tired and hungry, they tied the rope very securely to a tree and told him to wait like a good horsey while they went home and returned.

Of course, they forgot about him entirely.  The gabbai of the shul found him half an hour later, and said he would come back with a knife to cut the ropes.  But Rav Chasdai insisted that he instead go bring the children back to untie him, saying that he did not wish to disappoint them.

Thus I heard the story from Rav Chasdai’s grandson, whose credibility is beyond question.

To my mind, however, his grandfather gave the gabbai an implausible rationale.  The children would not have been disappointed.  They had forgotten all about the game, and would never have expected their “horse” to still be there when they remembered.

I suggest instead that Rav C thought it was important for the children to understand and take responsibility for their actions.  What if the gabbai hadn’t come by for hours?  Plainly the knots were so tight that he was unable to free himself.   Children have to learn that games can also have real consequences.

But why didn’t Rav Chasdai tell the gabbai his true motivation?  First of all, the gabbai was prepared to destroy the children’s rope, and Rav Chasdai was gently calling to his attention that the children had legitimate interests here.  Second, perhaps the gabbai had no sympathy for children, and would otherwise have punished them severely.

That was my speculation.  But it happens that I shared it with a colleague who turned out to be the grandson of the gabbai, and he assured me that his grandfather was legendary for his rapport with children.

Why then did Rav Chasdai pretend to be concerned about the children’s disappointment?  My colleague had a very different perspective.  His family tradition was that Rav Chasdai loved to play with children, and would be sad when they grew bored of him.  So he suggested that perhaps Rav Chasdai really just wanted the gabbai to bring his playmates back.

I was rather taken aback by the suggestion.  Would the gaon Rav Chasdai have used the gabbai’s time dishonestly?  Would he want to play with children, any children, so much that he would simply waste time waiting around for them?

Perhaps there was no wasted time, and Rav Chasdai spend his wait-time reviewing Shas in his head.  Indeed, I wonder whether Rav Chasdai loved playing with children because their games, unlike the social play of adults, let him have human contact and relationships without distracting his intellect from Torah.  Chasidic rebbeim are often described as functioning on both levels simultaneously, but Litvaks may not have the same capacity.

Perhaps Rav Chasdai spent his days looking for excuses to get away from adults, and the errand he gave the gabbai was the best he could think of in the moment.  He viewed it as a white lie, as the alternatives were either insulting the gabbai or else wasting time better spent studying Torah.

With all humility, though, I’m not sure he was right.   The Talmud famously declares that even Hashem tells white lies in order to preserve marital harmony, but hopefully everyone understands that this isn’t a license to tell your spouse that you’ve gone to daf yomi when you really went in to work.  And this isn’t obvious, but I think it also means that you can’t tell your spouse that you’re going in to work when you’re really going to daf yomi.  Preserving marital harmony doesn’t mean deceiving your spouse so that s/he won’t stop you from doing what you want to do, even if you think you’ll be happier doing it.  I also suspect that preserving rabbi-gabbai harmony is not at the same level of priority as preserving marital harmony.

But what if it wasn’t about their roles, but about their very human selves?  Both Rav Chasdai’s grandson and my colleague describe their grandfathers as deeply intimate, almost inseparable friends.  Sometimes inseparability can become overwhelming, and one person’s unwillingness to enforce boundaries, added to the other’s inability to recognize them, can put a profound relationship into crisis.  Aggada recognizes that same-sex friendship can be as powerful as heterosexual love; perhaps halakhah does as well, or at least should.  Surely Rav Yochanan would have been right to dissemble rather than shatter his relationship with Resh Lakish.

Moreover, the Talmud reports that Hashem once did lie in order to preserve a beit midrash society.  When Rabban Gamliel was removed from office for abusing Rabbi Yehoshua, his successor Rabbi Elazar ben Azariah opened the Academy to hordes of previously excluded students, and Torah flourished.  Rabbi Gamliel grew depressed, so G-d sent him a dream in which the new students were shown to be worthless hypocrites.  The Talmudic narrator makes sure we know that the dream was false; but believing that  it was true gave Rabban Gamliel the emotional strength to return to the scene of his humiliation, and eventually to (mostly) regain his office.  (Perhaps he also eventually gained the strength to realize that the dream was false.)

So if Rav Chasdai really needed the space, and he dissembled to the gabbai, I think I might be fine with it.

Except that there’s a difference between a one-time falsehood in a crisis, and an ongoing habit.  At some point Avraham would have caught on that Sarah thought of him as too old to have children; at some point Rabban Gamliel would have recognized that his dreams were a little too convenient.

So maybe this story became so worth retelling because it in fact records a crisis passed, and a relationship saved.

But I need to emphasize that it’s very possible that neither the rabbi nor the gabbai ever really understood what had happened between them.  Maybe in the moment the rabbi projected his desire to play onto the children; surely the gabbai really thought the rabbi needed amusement rather than privacy.  Real people do real things for complex and ambivalent motivations, so maybe nothing wholly false was thought or said, and a friendship was saved.

One difference between halakhah and aggada is just that allowance for unclarity.  The Talmud states that one who learns Torah lishmoh has fulfilled the purpose of creation, whereas one who learns Torah not lishmoh would have been better off uncreated.  It isn’t until chassidut that we really consider the question of whether anyone learns purely one way or the other.   Assuming that we will always be somewhat but not fully lishmoh, are we better off learning, or not?

Another way of putting it is that halakhah teaches us how to act, but aggada teaches us how to be.

Note: This dvar Torah is a fictional riff on versions of a story sometimes told about a specific past rabbi.  Any resemblance to him, or to any other specific historical figure, is wholly coincidental. 

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Valuing Dissent in a Time of Celebration

by Rabbi Aryeh Klapper

When Rabbi Akiva declared Bar Kochba to be the King Messiah, only one rabbi stood up to him. “Weeds will grow in your jawbones, Akiva, and still the Son of David will not have come”, said Rabbi Yochanan ben Torata.(Yerushalmi Taanit 4:5) His line was likely an ironic inversion of Yeshayahu 66:14, “and your bones will flourish like grass”.

But who was Rabbi Yochanan ben Torata (lit: “son of a cow”)? Let me tell you a story.

Once there was a pious Jew who owned a cow.  They worked hard together during the week, and they each rested on Shabbat.  Eventually the Jew lost his money and was forced to sell the cow to a Gentile.  The cow worked hard for the Gentile during the first week, but when Shabbat came she sat down and simply refused to move, no matter how much the Gentile yelled at her or how hard the Gentile prodded her.   

The Gentile came to the Jew and tried to cancel the transaction on the ground that the cow was defective.  The Jew, however, understood the problem.  He went up to the cow and whispered: “Dear cow, when you were in my possession we both ploughed during the week and rested on Shabbat; now because of my sins you are in the possession of a Gentile, and I ask that you stand up and plough!”  The cow obeyed, but the Gentile suspected witchcraft.  When the Jew explained what he had said, the Gentile reasoned to himself: If a cow has that much awareness of its Creator, am I not more obligated to do so!  Immediately he converted to Judaism.  (Pesikta Rabbati 14)

That convert was Rabbi Yochanan ben Torata.

There are many halakhic difficulties with this story. A cow being obstinate once a week is not grounds for reversing a transaction, and a Jew is not allowed to tell an animal to work on Shabbat. But aggadic narratives often rely on our willful suspension of halakhic disbelief.

Other rabbinic narratives celebrate the spiritual intuition of animals, such as the donkey of R. Pinchas ben Yair, which would refuse to eat untithed grains. Or learn human obligations via a kal vachomer from animals, such as the frogs who self-martyred by jumping into Egyptian stoves. Or have cows be religiously persuadable, as when Eliayhu haNavi convinces the sacrifice of the priests of Baal to accept its fate on Mount Carmel. So there is nothing unusual about this story.

But why (other than his name), is it told about Rabbi Yochanan ben Torata?

I can find only three other possible references to him in Rabbinic literature.

a)       Once, when Rabbi Akiva called him to the Torah, he refused the aliyah on the ground that he had not adequately prepared, and the Sages praised him. (Shemot Rabbah Ki Tisa 40:1)

b)      <He stated that the lips of Torah greats move in the grave when their words are cited. (Shir Hashirim Rabbah 7)

c)       <He stated that Shiloh was destroyed because sacred things were treated disrespectfully; Yerushalayim in its first form because of idolatry, sexual sins, and bloodshed: but that regarding the most recent destruction, we must acknowledge that the people were energetic in Torah study and punctilious tithers. Why were they nonetheless exiled? Because they loved money, and hated each other. (Tosefta Menachot 13:22)

It is tempting to connect each of these statements to a fundamental dispute with Rabbi Akiva about the Bar Kochba revolt:

a)       One must not be hasty to apply the words of Torah; perhaps one has misunderstood them, and Bar Kokhba did not fulfill the Messianic predictions.

b)      Eternal life is more important than this-worldly freedom.

c)       So long as these social ills persist, it is foolhardy to seek to reverse the destruction – and our people have not stopped loving money or hating each other

The first two connections are highly speculative, but I think the third has legs. It certainly fits well with the tradition that Rabbi Akiva’s students died because they failed to treat one another respectfully.

Why was Rabbi Yochanan ben Torata the one rabbi capable of articulating this critique?

The story of the Shabbat-sensitive cow tells us that Rabbi Yochanan ben Torata converted not out of love of the Jewish people, but rather out of pure religious conviction. This is a situation that comes up regularly for conversion courts, and there are two ways to formulate the issue. One is pragmatic: Will a convert be able to sustain their commitment if they aren’t deeply connected to a community, or if they are regularly disappointed by a community? The second is fundamental: Is concrete ahavat Yisroel, love of the Jewish people as we are, with all our individual warts and collective flaws, an essential component of kabbalat hamitzvot? The story of Rabbi Yochanan ben Torata suggests that at least under certain circumstances we can make allowances for converts who are more connected to G-d than to people.

Moreover, there is something very striking about a convert who articulates positions that no one else is willing to say publicly. It takes courage to convert a person with courage, as one will likely be assigned some of the blame when they later take unpopular positions.

More sharply: Imagine that the Bar Kochba Revolt is beginning, and the rabbinic community is lining up behind him. The universally acknowledged gadol hador, the great scholar-leader of the generation, clearly believes the times to be Messianic. At this point a conversion candidate states during his interview that while he of course believes in the Messiah, it seems wholly implausible to him that the Messiah is anywhere nigh, and that the gadol hador – indeed the whole rabbinic establishment – has in his humble opinion succumbed to irrational exuberance. Would such a convert make it through the process?

One of the great beauties of Rabbinic tradition is its willingness to preserve even the sharpest of self-critiques, without allowing the possibility of error to lead to paralysis. I wonder if there were rabbis who specifically recognized the need for importing such a critique in a time of mass enthusiasm, and who welcomed Rabbi Yochanan ben Torata specifically because of his stance rather than despite it. I like to think that they did so even while disagreeing with him.

We should not need converts to fill the role of social critics; it is a terribly unfair burden to place on them. Happily our community today is sufficiently diverse that I don’t believe it is a necessary burden.

Moreover, it seems that the rabbinic community learned the wrong lesson from Bar Kochba’s failure, or at the least, that our political judgment is terrible. Bar Kochba failed despite rabbinic support, and Zionism succeeded despite rabbinic opposition. As a result, it is only in narrow sectors of Orthodoxy that messianic populism causes us to overlook ongoing social ills. Yet we cannot disclaim responsibility for those sectors.

Perhaps a subtle message of the Omer mourning is that Bar Kochba might have succeeded if he had paid more attention to Rabbi Yochanan ben Torata. At the very least, Orthodox Zionists, even as we properly and joyously celebrate the existence, success, and many incredible achievements of the State of Israel, need to ensure that we maintain a space and an open ear for the Rabbi Yochanan ben Torata’s among us.

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