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Why Didn’t the Rabbis Eliminate Mamzerut? Part 5

by Rabbi Aryeh Klapper

Sanhedrin 71a cites a beraita which declares that three Biblical laws “never were and never will be,” rather are purely hypothetical. The Talmud associates the declaration with beraitot conveying a specific legal position about each law.

In Parts 1-4 of this series, I showed that regarding the Rebellious Son and the Idolatrous City, those legal positions are not radical reinterpretations of the laws in response to moral concerns. Rather, the declarations of hypotheticality are reactions to those preexisting legal positions.

A fair counterquestion is: What motivated these extreme legal positions, if not moral discomfort with the law as it would otherwise be understood?

This seemingly powerful question rests on a false premise. It assumes that these legal positions could only have been produced by extreme interpretations, i.e. interpretations arrived at by methods that the interpreter would dismiss in other circumstances. But this is not so.

Let’s turn for example to the third law, that of the Leprous House.  Mishnah Negaim 12:3 records a Tannaitic dispute:

. . . שהיה ר’ ישמעאל אומר:

עד שיראה בשני גריסין על שתי אבנים או על אבן אחת;

ר”ע אומר:

עד שיראה כשני גריסין על שתי אבנים, לא על אבן אחת;

רבי אלעזר בר”ש אומר:

עד שיראה כשני גריסין על שתי אבנים בשני כתלים בזויות, ארכו כשני גריסין ורחבו כגריס.

. . . as Rabbi Yishmael would say:

(The lesion does not make a house leprous ) until it appears in the size of two beans on two stones,

or on one stone;

Rabbi Akiva says:

Until it appears the size of two beans on two stones,

not on one stone;

Rabbi Elazar beRabbi Shimon says:

Until it appears the size of two beans on two stones

on two walls in a corner.

It is the legal position of Rabbi Elazar beRabbi Shimon that the Talmud associates with hypotheticality.  How is his position arrived at?  Vayikra 14:36 first speaks of the lesion appearing on the קיר(ו)ת/walls of the house, and then of its appearance on the קיר/wall. Rabbi Elazar beRabbi Shimon therefore requires a wall that is also walls, i.e. a corner.  There is nothing unusual about this mode of legal reading; if anything, it is not clear why the resulting requirement is so unlikely to be met.

Note that roughly the same mode of reading generates Rabbi Yehudah’s requirement for the parents of the Rebellious Son to have identical voices;  in Devarim 21:18; the mother and father say that their son “does not heed our voice” – singular.  Moreover, an anonymous Mishnah on Yoma 62a, identified by the Talmud with the same Rabbi Yehudah, requires the two goats of Yom Kippur to be identical in appearance, height, and value. The reason no one declares that the goats never happened is that it is easier for human beings to overlook minor physical differences among goats than among people, especially when the people are of different genders.

In other words: the legal positions that the Talmud associates with hypotheticality are extreme only in their effect on the likelihood of the law being applied in practice. There is nothing extraordinary about the interpretations that generate them.

A further proof that these interpretations are not generated by moral concerns is that the third case, the Leprous House, is not morally bothersome to the extent that a reader might feel compelled to eliminate its practical application. (This argument is also made by Rabbi Ethan Tucker here.)

Rabbi Dan Margulies (WBM ’16) disagreed with this proof when I published it on Facebook some months ago.  He argued that destroying someone’s house is a uniquely demoralizing punishment, especially when it results from a secondary event rather than directly from a specifically identified sin.  Destroying a house can also be a form of collective punishment.  The ongoing public conversation about whether destroying the homes of terrorists is a legitimate punishment suggests that my initial dismissal of the moral issue was too facile.

Rabbi Tuvy Miller (SBM ’13) in his CMTL alumni DT “The House That Was?” took a diametrically opposite approach to constructing a moral issue. Rabbi Miller begins from Rashi (based on midrashim), who notices that the Torah introduces the ‘leprous house’ with language that sounds more like a promise than a threat.

ונתתי נגע צרעת

בשורה היא להם שהנגעים באים עליהם,

לפי שהטמינו אמוריים מטמוניות של זהב בקירות בתיהם

כל ארבעים שנה שהיו ישראל במדבר,

ועל ידי הנגע נותץ הבית ומוצאן

This was an announcement to them that these ‘afflictions’ would come upon them,

because the Amorites concealed gold treasures in the walls of their houses

 during the Jews’ forty year sojourn in the wilderness,  

and via the ‘affliction’ they would tear down the house and find them (the treasures).

I had always assumed that this interpretation rejects the position that the Leprous House is purely hypothetical: promises of wealth that depend on an unrealizable condition are simply cruel. Rabbi Miller argued, however, that the “never was and never will be” position might be a moral reaction to this interpretation. Since the Torah in several contexts recognizes that despoiling a defeated enemy undermines the morality of war, how could the Torah promise financial benefits from the destruction of the Seven Nations?

These critiques are wonderful contributions to Torah, and I am grateful for them. Nonetheless, I don’t see them as plausible drivers for extreme reinterpretations.

With regard to Rabbi Miller’s suggestion, Tanakh doesn’t always ban spoils – sometimes it seems to strongly encourage spoiling – and the bans seem clearly unusual, beyond-the-ordinary gestures. Even those bans might not apply to abandoned safe deposit boxes discovered years later.

With regard to Rabbi Margulies’ suggestion, I am not convinced that destroying a dwelling raises moral challenges as serious as execution.  Moreover, since the Torah does not explicate the cause of house-plagues, perhaps they occur only when every inhabitant of the house has sinned, and so there is no issue of the innocent suffering together with the guilty.

The true underlying issue, then, is: Must we assume that Torah laws are intended to have real-world application, and therefore reject interpretations which make them hypothetical?

Maimonides presumed that we must, That’s why with regard to all three of the Leprous House, the Idolatrous City and the Rebellious Son, he ruled against the positions that the Talmud associates with hypotheticality.  The Amora Rabbi Yonatan also rejected hypotheticality on ideological grounds, declaring that he was as certain of the actuality of the Idolatrous City and the Rebellious Sin as if he had sat on their tell/grave. The only reason Rabbi Yonatan doesn’t make a parallel statement about the Leprous House is that he doesn’t need to; Sanhedrin 73a records a beraita in which two Tannaim report actually seeing ruins that were identified as those of Leprous Houses.

I contend, however, that the author of the “never was and never will be” beraita rejects this assumption.  Like Rabbi Joseph B, Soloveitchik’s Halakhic Man, he is not bothered if an ideal structure of Halakhah has no precise real-world correlate.

I suspect that many readers will immediately accuse me of anachronism.  Halakhic Man is a product of NeoKantian philosophy and Brisk, and his positions cannot reasonably be assigned to a member of Chazal.  Surely it is beyond reason to think that the Rav and the Chazon Ish were simply recreating a Tannaitic dispute.

This argument is powerful, but it is also demonstrably false.  The Tannaitic dispute about this issue is explicit in Mishnah Zavim 2:2. The Mishnah discusses which sorts of emissions make a man a zav, and which are considered the product of ordinary processes.  Rabbi Yehudah holds that one is not a zav if he even experienced any sort of visual sexual stimulus.  Rabbi Akiva holds that one is not a zav even if he merely ate or drank anything.

אמרו לו:

אין כאן זבין מעתה!?

 אמר להם:

אין אחריות זבים עליכם

They said to (Rabbi Akiva):

Now there will be no zavim!?

He replied:

The responsibility for (the existence of) zavim is not yours.

It seems unavoidable to me that Rabbi Akiva held like Halakhic Man, and his interlocutors like Maimonides.

Stay tuned for Part 6!

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We Love Him; We Love Him Not. We Love Him…

by Rabbi Aryeh Klapper

The phrase l’ahavah et Hashem Elokekha appears in Devarim 30:16, and then again in Devarim 30:20.  These verses are the bookends of a parshah, or stanza, so the redundancy appears blatant.  But the prefix lamed of l’ahavah may turn out to be a homonym, or even a pun, so that the stanza actually conveys a dramatic spiritual development.  Properly understanding that development may be a sine qua non for fulfilling the imperative, found in verse 19, to “choose life.”

Verse 15 opens with G-d declaring that He has placed before us this day

אֶת־הַֽחַיִּ֖ים וְאֶת־הַטּ֑וֹב

וְאֶת־הַמָּ֖וֶת וְאֶת־הָרָֽע:

the life and the good

and the death and the bad

Verse 16 opens with

אֲשֶׁ֨ר אָנֹכִ֣י מְצַוְּךָ֘ הַיּוֹם֒

that I am commanding you this day

Does G-d mean that He is commanding us both life and death, both good and bad?  Presumably not. Therefore, the commandments must be what follows, with verse 16 only establishing a context.  What follow is l’ahavah et Hashem Elokekha.

We can reasonably translate verses 15-16 as follows

רְאֵ֨ה

נָתַ֤תִּי לְפָנֶ֙יךָ֙ הַיּ֔וֹם

אֶת־הַֽחַיִּ֖ים וְאֶת־הַטּ֑וֹב

וְאֶת־הַמָּ֖וֶת וְאֶת־הָרָֽע:

אֲשֶׁ֨ר אָנֹכִ֣י מְצַוְּךָ֘ הַיּוֹם֒

לְאַהֲבָ֞ה אֶת־ה֤’ אֱ-לֹהֶ֙יךָ֙

לָלֶ֣כֶת בִּדְרָכָ֔יו וְלִשְׁמֹ֛ר מִצְוֹתָ֥יו וְחֻקֹּתָ֖יו וּמִשְׁפָּטָ֑יו

וְחָיִ֣יתָ וְרָבִ֔יתָ

וּבֵֽרַכְךָ֙ ה֣’ אֱ-לֹהֶ֔יךָ בָּאָ֕רֶץ אֲשֶׁר־אַתָּ֥ה בָא־שָׁ֖מָּה לְרִשְׁתָּֽהּ:

See!

I have placed before you this day

the life and the good

and the death and the bad

(in) that I am commanding you this day to love Hashem your G-d –

to walk in His ways and to observe His mitzvot, His chukum, and His mishpatim

and (if you observe them), you will live and multiply,

and Hashem your G-d will bless you

in the land to which you are coming there, to possess it.

L’ahavah here means “to love,” and to love G-d means to walk in His ways and observe His mitzvot, chukim, and mishpatim. There seems to be no obligation here to feel or inculcate the emotion of love toward G-d, but rather to express that emotion through proper action.  It may even be enough to act as if one is feeling that emotion.

Remember that G-d placed before us both life and death, the good and the bad.  He did that by commanding us to act in certain ways.  Obeying His command brings life, multiplication and blessing; verses 17-18 make explicit that disobedience brings destruction and shortened life, or perhaps national exile.  Connecting life to multiplication suggests that it has a straightforward physical meaning.

In verse 19, G-d calls Heaven and Earth to witness – and to be prepared to testify if necessary – that

הַחַיִּ֤ים וְהַמָּ֙וֶת֙ נָתַ֣תִּי לְפָנֶ֔יךָ

הַבְּרָכָ֖ה וְהַקְּלָלָ֑ה

the life and death I have placed before you

the blessing and the curse

The introduction of witnesses may just be an intensification of G-d’s opening declaration.  But the change from good/bad to blessing/curse opens the possibility that the meaning of “life” has also changed.

In verse 17, G-d commanded us to love Him, and life is the consequence of our obedience.  In verse 19-20, the relationship between love and life seems much more complex and multivalent.

וּבָֽחַרְתָּ֙ בַּֽחַיִּ֔ים

לְמַ֥עַן תִּחְיֶ֖ה אַתָּ֥ה וְזַרְעֶֽךָ:

לְאַֽהֲבָה֙ אֶת־ה֣’ א-ֱלֹהֶ֔יךָ

לִשְׁמֹ֥עַ בְּקֹל֖וֹ

וּלְדָבְקָה־ב֑וֹ

כִּ֣י ה֤וּא חַיֶּ֙יךָ֙ וְאֹ֣רֶךְ יָמֶ֔יךָ

לָשֶׁ֣בֶת עַל־ הָאֲדָמָ֗ה אֲשֶׁר֩ נִשְׁבַּ֨ע ה֧’ לַאֲבֹתֶ֛יךָ

לְאַבְרָהָ֛ם לְיִצְחָ֥ק וּֽלְיַעֲקֹ֖ב לָתֵ֥ת לָהֶֽם:

You must choose life

so that you will live, you and your seed,

l’ahavah et Hashem Elokekha

to heed His voice

and to cleave to Him

because that/He is your life and the length of your days

to settle on the ground that Hashem swore to your ancestors –

to Avraham, to Yitzchak, and to Yaakov –

to give them.

We are commanded to choose life; life is a motive for and a consequence of that choice; and that choice, or perhaps G-d the Commander, is our life.  All this is confusing enough: but what’s love got to do with it?

In verse 17, love was reducible to observance; it was about external expression, not internal state.  In verse 20, love leads to dveykus/cleaving, which is generally a metaphor for an internal state.

Dveykus the internal state is independent of love. For example, in Genesis 34:3 Shekhem’s nefesh cleaves to Dina after he rapes her, and then he loves her (in some sense).  Men abandon their parents and cleave to their wives, while Ruth cleaves to her mother in-law after her husband dies; love is not mentioned explicitly in either context.

A beraita on Nedarim 62a offers an interpretation of verse 20.

לאהבה את ה’ א-להיך

לשמוע בקולו ולדבקה בו

שלא יאמר אדם:

אקרא – שיקראוני חכם;

אשנה – שיקראוני רבי;

אשנן – שאהיה זקן ואשב בישיבה,

אלא – למד מאהבה, וסוף הכבוד לבא,

שנאמר: קשרם על אצבעותיך כתבם על לוח לבך,

ואומר: דרכיה דרכי נועם,

ואומר: עץ חיים היא למחזיקים בה ותומכיה מאושר.

l’ahavah et Hashem Elokekha

to heed His voice and cleave to Him –

(meaning) that a person should not say:

I will read – so that they will call me the title Chakham;

I will recite – so that they will give me the title Rabbi;

I will teach (or sharpen) – so that I can be a zaken and sit in the academy.

Rather – learn out of love, and in the end the honor will come,

as Scripture says: Bind them on your fingers; write them on the tablet of your heart;

and it says: Her paths are paths of pleasantness;

and it says: She is a tree of life for those who grasp her, and those who support her are enriched.

The obvious shift from verses 15-16 is that love is expressed in study rather than in action.  The subtler but equally crucial shift is that l’ahavah is translated as “out of love.”  Verses 19-20 now say that we must choose life out of love of G-d.  Love is an internal state, a motivation. Not only that: love – at least the kind of love that leads to dveykus – is an exclusive religious motivation. Learning out of love means learning with no other motive.

This creates a paradox.  Love of G-d entails the belief or knowledge that He is just, which means that He will reward you for expressing love toward Him. The nature of a just reward is to be something you genuinely and properly desire.  How, then, can human beings serve G-d without the reward becoming part of their motivation?  But religious love is defined by its jealousy; it cannot coexist with other motives.

The beraita reflects this paradox.  We are not supposed to learn for the sake of being honored, but if we are to learn out of love, if we are to find G-d worthy of love, we must believe that honor will come.

This paradox is at the heart of Sefer Iyov. G-d wants to know that Iyov serves Him out of love and not, as Satan asserts, out of self-interest.  But He can only find that out by at least seeming unjust, and would Iyov love an unjust G-d?  Should he?

The same dynamic drives Akeidat Yitzchak.  G-d can only find out whether Avraham serves him purely out of love by demanding that he sacrifice Yitzchak.  Very likely Avraham cannot serve G-d purely out of love so long as Yitzchak lives, because he cannot stop himself from considering Yitzchak’s interests when making decisions, even if he can disregard his own interests.  But if Avraham actually sacrifices Yitzchak, he will cease loving G-d.  There is a Heisenberg principle at work; G-d can be loved, or know that He is loved, but not both. When G-d places life and death before us, He reminds us of His power over us; and pure love generally cannot exist in awareness of power.  But to love someone means giving them emotional power over you!

What may square the circle is perfect faith that He will never use that emotional power, never demand proofs of love that are not in our best interests.  Perhaps that is dveykus.

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Why Didn’t the Rabbis Eliminate Mamzerut? Part 2

by Rabbi Aryeh Klapper

Rabbinic law often seems radically more humane than the text of the Written Torah. This discrepancy leads some to conclude that the Rabbis of the Mishnah and Talmud consciously and deliberately overturned Biblical law when they found it morally disagreeable. This conclusion leads to a question/critique: Why don’t contemporary rabbis do the same thing? 

In Part 1, I briefly discussed cases where (some) Rabbis explicitly declared that a Biblical law “never was and never will be,” and why no such statement appears regarding mamzerut. I wrote that nonetheless “Humane poskim can . . . aim to resolve every case of mamzerut, so long as they can do so with integrity.” In other words, it is possible and legitimate for a contemporary halakhist to aim for the laws of mamzerut to never apply in practice, even though factually many pregnancies result from adultery or incest. 

How can this be done with integrity? In what way is this different than eliminating a Biblical law on the basis of our own morality?

Mamzerut actually seems to be a more extreme case of elimination than the Rebellious Son, Idolatrous City, or House with Tzora’at. It’s not just that the Rabbis didn’t formally eliminate mamzerut; they actually extended it to new cases. Most dramatically, the Biblical prohibition, as understood by the Rabbis (Kiddushin 73a), applies only to a mamzer vadai/definite, but the Rabbis extended it to cases of safek/doubt! Contemporary halakhists who seek to resolve every case of mamzerut therefore seem to be diverging from the Rabbis as well as from the Torah.

This extreme version of halakhic authority is disturbing for another reason. We might cheer poskim when they undo stringencies that cause pain, but by doing so, are we also granting them the authority to undo leniencies? If the Torah does not constrain rabbis from imposing their morality on halakhah, why should we have more confidence in their morality than in the Torah?

Let’s approach this issue through the specific lens of Igrot Moshe, the collected responsa of the great 20th century posek Rav Moshe Feinstein zt”l.  I want to concede upfront that the synthetic position I develop below is not explicit in Rav Moshe’s works, and some of the details are also derived or extrapolated. Nonetheless, I believe that it is a fair and accurate portrayal.

Mishnah Kiddushin Chapter 4 lists three groups of people with halakhic marriage-barriers that derive from safek rather than certainty: “shtuki, asufi, and kuti.” A shtuki is someone whose mother is known, but she refuses to name the father; an asufi is a foundling. (The kuti is unrelated to mamzerut issues.)  

Rava (Kiddushin 73a) states that a shtuki and asufi are each Biblically permitted, but Rabbinically forbidden. Why would the Rabbis have created such a cruel prohibition?  Since the Torah permits a safek mamzer, Rava reasons, the Rabbis cannot have been concerned for the minority possibility that these children are mamzerim.  Rather, they must have been concerned that these children with unknown parents would contract an incestuous marriage, and thus give birth to mamzerim

However, the Talmud (or Rava himself) rejects this explanation as far-fetched. It concludes instead that the reason must be מעלה עשו ביוחסים, literally “they created a higher standard in genealogical matters.”

This conclusion seems to abandon, without justification, the opening assumption that the Rabbis would not contradict the Torah’s decision not to be concerned for the minority possibility of mamzerut. How can this be?

Rav Moshe notes that the Talmud explicitly includes only the shtuki and the asufi in the new Rabbinic prohibition. Perhaps all other safek mamzers remain permitted! This possibility appeals to him, but it runs aground on Mishneh Torah, Laws of Sexual Prohibitions 15:21.

דין תורה שספק ממזר מותר לבוא בקהל 

שנאמר לא יבא ממזר בקהל ה’ – 

ממזר ודאי אסור לבוא בקהל, ולא ספק, 

אבל חכמים עשו מעלה ביוחסין, 

ואסרו גם הספיקות לבוא בקהל.

The law of the Torah is that a safek mamzer is permitted to marry into the Jewish community

because Scripture says: A mamzer must not enter the community of Hashem,

a definite mamzer is prohibited to enter the community, but not a safek.

But the Sages instituted a higher standard in genealogical matters, 

and forbade even the safeks from entering the community.

This undisputed ruling of Maimonides makes it clear that the shtuki and asufi are only examples, and the Rabbis forbade all safek mamzers

But, Rav Moshe notes, Maimonides also makes clear that the prohibition is the same for all safek mamzers. This means that the reason for the prohibition can never be a genuine concern that the child is a “biological” mamzer, but rather – as Maimonides states – that some form of higher standard is imposed here. But what is the difference between a “higher standard” and a “genuine concern?”

Igrot Moshe EH 1:11 has one answer to that question. A genuine concern, analogous to all other cases of safek, would apply for all halakhic matters.  A “higher standard” would apply only to matters that affect a holiness status conferred by genealogy. It therefore does not apply to the marriage prohibitions for biological kohanim that do not have the holiness status of kohanim, such as a petzua daka.  

EH 1:24 points toward a different answer.  Please bear with the unavoidable technicalities, and the necessarily clinical discussion of a tragic case of rape.

Mishnah Ketubot 1:10 reports that an unmarried young woman was raped when she went to draw water from her city’s well, and subsequently gave birth to a daughter.  Talmud Ketubot 15a asks: Is the daughter eligible to marry a kohen? That depends on whether the rapist/presumed father was a man whose daughters are eligible (i.e. not a mamzer or netin or chalal), or not.  The Talmud concludes that the daughter is eligible (according to the positions that matter for our discussion) if  

  1. most of the men in the city were “eligible,” and
  2. there was a caravan of travelers near the city, and most of the men in the caravan were “eligible.”

The need for the presence of a caravan, and for the majority of the caravan to be eligible, is that a “higher standard” was implemented for genealogical matters – we require “two majorities,” not just one.  Since a majority of the potential “city fathers” were eligible, and also a majority of the “caravan fathers,” this higher standard is met.

The obvious problem is that this “higher standard” does not affect the statistical likelihood of the daughter’s eligibility.  If 90% of the men in the city were eligible, and 60% of the men in the caravan, then including the caravan makes things worse statistically than if there were no caravan!  Regardless, the actual likelihood is a single percentage, drawn from the overall population of potential fathers/rapists.  So in what sense is this “two majorities?”  

It must be that the “higher standard” for marrying a kohen is not statistical, but rather formal.  Rav Moshe contends that this is the nature of “higher standards.” It follows that in mamzerut cases as well, on a statistical basis one needs only to demonstrate that the person is a safek.  This removes the Biblical prohibition, and leaves one only needing to meet the “higher standard.”  To meet the “higher standard,” one needs only a second formal argument that generates a safek, even if that formal argument does not affect the overall odds.   

In EH 4:17, Rav Moshe presents a third way in which mamzerut differs from ordinary halakhot (at least according to Rambam).  In other areas, where there is no specific Biblical leniency for cases of safek, any probability greater than 50% generates a prohibition. However, regarding mamzerut, the Biblical leniency applies to any case where the probability is less than 100%.  

Formal rules of halakhah turn majorities into certainties, and so formal rules can create Biblical mamzerut. However, in Rav Moshe’s view, informal/circumstantial evidence and judgments about reality can just about never create a Biblical prohibition. In practice, evidence for mamzerut is generally circumstantial, (e.g. fertilization cannot be witnessed, but only inferred).  Therefore, even if we make the Biblical standard “certainty beyond a reasonable doubt,” rather than absolute certainty, Biblical mamzerut will be extremely rare.  Rabbinic mamzerut will be much more common – but it can be overcome by a formally distinct second argument that generates some degree of doubt, even if that argument doesn’t change the overall odds.

If we now put it all together, Rav Moshe understands the Talmud to be saying that the Torah is not concerned about children born from adultery or incest marrying in the community; even children who most likely were born from such relationships are perfectly marriageable.  The rabbis imposed a higher standard – but that higher standard creates a formal requirement, not a higher statistical bar. 

The formal requirement means that every public case of suspected mamzerut requires a formal rabbinic permission. For the process to be taken seriously, both the public and the rabbis must acknowledge that it is possible that no grounds will be found for permission.  But every rabbi involved must also understand that in any specific case, not finding such a permission is their failure; there is nothing in the Torah that requires this child to suffer for their parent or parents’ sins.           

The result is that Rav Moshe, and any posek following his approach, can with full integrity, and full belief in the Torah as interpreted by the Talmud, seek to resolve every potential case of mamzerut in the direction of leniency. This despite the fact that no one in halakhah has ever suggested that cases of mamzerut never have been and never will be. 

Seeking to resolve every case does not mean that one will always succeed.  Poskim adopting this approach will properly be held accountable by poskim who adopt other approaches, including those who believe that the goal of halakhah is to prevent people who are factually children of adultery or incest from marry within the community. Leniencies developed without the greatest attention to intellectual rigor will fail in practice. 

It should also be clear that Rav Moshe’s position about mamzerut has no necessary implications for any other area of halakhah. What drives Rav Moshe is the conviction that the Torah specifically permits any potential mamzer about whose status there is any doubt at all, and that the Rabbis had no intention or interest in practically expanding the category (at least when doing so would have no significant deterrent effect on adultery – see Part 1). Rav Moshe’s interpretations and rulings result from belief rather than critique. 

In Part 3 (LOOK FOR OUR YAMIM NORAIM READER!), I plan to step back from the specific issue of mamzerut and revisit the general question of whether interpretations that make a halakhah wholly impractical are necessarily the result of moral or ethical discomfort.

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Why Didn’t The Rabbis Eliminate Mamzerut? Part 1

by Rabbi Aryeh Klapper

Devarim 23:3 bans a mamzer and his or her descendants – even the 10th generation! – from marrying ordinary Jews. Mishnah Yebamot 4:13 records that Rabbi Akiva held that all Biblically forbidden relationships generate mamzerut; Shimon HaAmsuni held that mamzerut results only from relationships (other than niddah) punishable by karet (excision) or worse; and Rabbi Yehoshua held only from those relationships punishable by execution. The law follows the middle position of Shimon HaAmsuni, with the result that mamzerut results only from cases of adultery and incest.

All these Rabbis were fully aware that the law of mamzerut unfairly punishes children for their parents’ sins. Yet we find no record of a position declaring that “there never was and never will be a mamzer.” Why not?

A moral critique of mamzerut is memorably articulated in Vayikra Rabbah (Emor 6) by Daniel the Tailor, who frames it as an interpretation of Kohelet 4:1

ושבתי אני ואראה את כל העשקים אשר נעשים תחת השמש

והנה דמעת העשקים ואין להם מנחם

ומיד עשקיהם כח ואין להם מנחם

I turned, and saw all the oppressions that take place under the sun.

Behold – the tears of the oppressed! and they have no comforter.

Power flows from the hands of their oppressors, and they have no comforter.

ושבתי אני ואראה את כל העשוקים . . .– 

דניאל חייטא פתר קרייה בממזרים:

והנה דמעת העשוקים

אבותם של אלו עוברי עבירות, ואילין עלוביא, מה איכפת להון?!

כך אביו של זה בא על הערוה:

זה מה חטא ומה איכפת לו?!

ואין להם מנחם,אלא מיד עושקיהם כח

מיד סנהדרי גדולה של ישראל שבאה עליהם מכחה של תורה

ומרחקתן על שום לא יבא ממזר בקהל ה’

ואין להם מנחם 

אמר הקדוש ברוך הוא:

“עלי לנחמן,

לפי שבעוה”ז יש בהן פסולת,

אבל לע”ל אמר זכריה

“אנא חמיתיה אלו כורסוון כולו דהב נקי”

I turned and saw all the oppressions . . .”

Daniel the Tailor interpreted this verse as referring to mamzerim –

Behold – the tears of the oppressed

Their fathers are transgressors, and they suffer: why is it their responsibility? !

So this one’s father commits adultery:

what sin has the son committed, and why is it his responsibility?!

and they have no comforter, rather power flows from the hands of their oppressors

from the hands of the Great Sanhedrin that comes against them with the force of Torah

and marginalizes them on the basis of the verse “a mamzeir may not enter the Congregation of Hashem

and they have no comforter

Said the Holy One Blessed Be He:

“It is My responsibility to comfort them,”

for in this world they have in them impurities,

but in the Coming Future the prophet Zechariah said

“I have seen those thrones all of pure gold.”

The Bar Ilan Responsa Project records only one other statement by Daniel the Tailor. In Bereishis Rabbah 64:7, he reads Bereishis 26:14 as teaching that “If a person does not make himself like a slave to his slave, he has not acquired him.” One suspects that this principle was not enforced in rabbinic property courts. It seems safe to categorize Daniel the Tailor as a social critic of halakhah.

Rabbinic literature quotes Daniel’s critiques (albeit not in the Talmuds), without any explicit reservation or controversy. Nevertheless, Professor David Halivni argues that his critique of mamzerut boomeranged. Daniel argued powerfully and memorably that mamzerut was an inherently immoral institution. He thus directly challenged the morality of the Torah. Any subsequent elimination of mamzerut in practice would therefore feel like a confession that the Torah was morally imperfect. That was religiously untenable. So mamzerut continued.

I contend that Professor Halivni overstates the case. It is true that the Talmud records Tannaitic positions that the Rebellious Son, Idolatrous City, and House With Tzora’at never were and never would be. But each of these positions is immediately countered by a statement of certainty (framed as eyewitness testimony) that it had been, and the law does not follow the positions that make these cases impossible. Moreover, the House With Tzora’at is not a moral issue, so it’s not at all clear that those positions were generated by moral discomfort. So mamzerut would have continued anyway.

Moreover, Daniel the Tailor eventually has a profound influence on Halakhah. The sixteenth century Syrian Rabbi Yoshiyahu Pinto (Responsa Nivchar MiKessef 138) cites Daniel as his motivation for seeking to permit a specific mamzer, even while conceding that the mother had committed adultery and emphasizing the severity of that sin. More recently, Rav Ovadiah Yosef zt”l regularly cited Daniel in his responsa permitting alleged mamzerim and mamzerot to marry ordinary Jews (and also in his responsa permitting agunot, a topic requiring separate treatment).

The linchpin for Rav Ovadiah is that G-d says “It is My responsibility to comfort them” against those “that come against them with the force of Torah.” Clearly it would be better not to come against them in the first place, and spare Him the need to comfort them.

The nineteenth century Rabbi Yosef Shaul Nathanson (Responsa Shoeil uMeishiv 1:1:5) read Daniel very differently. He argued that because G-d promised to comfort the victims of His halakhah, we need not worry about creating them. Daniel was not seeking to overturn halakhah on moral grounds, but rather to reconcile halakhic decisors to the pain caused by their decisions.

Rabbi Nathanson’s reading does not seem to fit well with Daniel’s other preserved statement. Perhaps more importantly, Rabbi Nathanson offers his reading in the context of an argument against taking a lenient position in a specific case of adultery before the woman became pregnant. We don’t know whether he would have maintained this attitude when addressing the reality of a potentially unmarriageable child.

I don’t think Rabbi Nathanson would have lacked integrity if he had spent months laboring to permit that child. Because everyone in rabbinic tradition has always understood that mamzerut is morally troubling, because it punishes children for their parents’ sins. Daniel the Tailor is just the best articulation of a universally acknowledged reality. The proper question is and was: Can the good of preventing adultery (or incest) justify that unfairness?

Let’s approach this question via an apparently unrelated suggestion from my teacher Rabbi Aharon Soloveitchik zt”l. Rav Aharon argued that the death penalty in civil society, or Noahide Law, is justified only because it deters other acts of violence. Executions without deterrent impact are just murder. In the United States, he contended, there is no way to carry out the death penalty often enough to accomplish deterrence, without relaxing standards and procedures in ways that will lead to the unjustifiable execution of innocents. Therefore he opposed the death penalty in the U.S.

Rav Aharon’s approach was in principle socially contingent. He did not challenge the morality of the Torah in permitting the death penalty, and he had no need to claim that the death penalty never had been and never would be carried out, or that all past judicial executions had actually been state-licensed murders. There may have been, and may yet be, societies where the proper balance of deterrence and punctiliousness can be maintained. But, he held, the United States in the late twentieth century was not such a society.

One can disagree with Rav Aharon in at least three ways. One can argue that

  1. the death penalty has purposes other than deterrence (as Rav Aharon himself argued regarding the death penalty within Jewish society, that it grants the perpetrator atonement); or
  2. that it is an effective deterrent as-is, or
  3. that the relaxation of procedures necessary to allow it to be an effective deterrent would not make the execution of innocents more likely, or at least so much more likely as to outweigh the good of deterrence.

These grounds for disagreement likely reflect underlying different moral weightings of the different risks. But they enable dialogue and deliberation rather than dismissal or defenestration.

It seems likely that the closest we can come to justifying the status of mamzerut is the claim that it effectively deters adultery. (Granted this doesn’t help us at all regarding mamzerut resulting from incestuous rape.) Otherwise, it is simple cruelty. It therefore becomes necessary to ask whether mamzerut is an effective deterrent in our time and place. I suspect reasonable people can differ about this question, and those differences may reflect the realities of different subcommunities.

What I think we can agree on is that mamzerut should be limited to the minimum number of cases necessary for effective deterrence. Very likely, precisely because mamzerut affects children rather than parents, effective deterrence requires only a barely plausible threat. We also must acknowledge that many American Jews are so far removed from halakhah that there is no possibility that any halakhic outcome could accomplish deterrence. Finally, the reality of effective birth control means that it is difficult for a potential effect on children to deter sexual behavior.

Since there are and probably always will be people who see marriage with factual mamzerim as a threat to the spiritual-genetic quality of the Jewish people, the risk that children will bear the consequences of parents’ sins is always real, and those who can be deterred, will be. Humane poskim therefore can legitimately aim to resolve every case, so long as they can do so with integrity. This was plainly the approach of Rav Ovadiah, and is also the position of the Rav as conveyed to me by Rabbi Abraham Halbfinger of blessed memory.

The rub, of course, is what constitutes integrity. I plan to publish a follow-up essay soon reflecting on, illustrating, and hopefully illuminating that issue.

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The Chakham and the Tam in the Age of Science

by Rabbi Aryeh Klapper

The Talmud reports on Tamid 31b-32a that Alexander of Macedon asked the Elders of the Negev ten questions. Among them was אידין מקתרי חכם  = who is called wise? They reply:

איזהו חכם?

הרואה את הנולד.

Who is chakham/wise?

The one who sees the nolad.

When Ben Zoma asks the same question rhetorically in Mishnah Avot 2:9, he answers that the wise is “הלומד מכל אדם = the one who learns from all human beings.” Alexander seems to be living out that principle by asking the question here.  But why does he receive a different answer? (Or if the Mishnah existed in two alternate versions, what motivates and distinguishes the different answers?)

Mishnaic Hebrew is notoriously unable to keep its tenses straight. Nolad therefore can mean either “that which has been (recently) born,” or else “that which will be born.”  Rashi to Tamid 32a defines “the one who sees the nolad” using the latter sense:

המבין מלבו מה שעתיד להיות

קורות שעתידים לבא

ונזהר מהן

one who understands from his own mind what will be in the future

events that in the future will come

and is on guard regarding them

Wisdom, it seems, is the capacity to anticipate, and to act on the basis of current anticipation.

However, Rashi to Devarim 18:13 takes a very different position.  The verse is

תמים תהיה עם יקוק אלקיך

You must be tamim with Hashem Your God.

Rashi comments:

התהלך עמו בתמימות

ותצפה לו ולא תחקור אחר העתידות,

אלא

כל מה שיבא עליך – קבל בתמימות

ואז תהיה עמו ולחלקו:

Walk with him in temimut

and be eager for Him, and don’t probe regarding future events

rather

Everything that comes upon you – accept with temimut

then you will be with Him and become His portion

Defining tamim as “having temimut” doesn’t necessarily advance the conversation, but the context suggests a sort of simplicity or even naivete that take life as it comes, without regard for the future.  Regardless, the incompatibility is clear. The wise person prepares for the future; the tamim does not.

For Rav Nachman of Bratslav, this might be no contradiction. In his famous story “The Chakham and the Tam,” there is no question that the tam is religiously superior. One might reconcile him with the vast bodies of Jewish literature that idealize the chakham by arguing that the one who “learns from all other human beings” is nonetheless capable of temimut.  The one who “understands from his own mind what will be in the future . . . and is on guard regarding them” cannot also be a tam.

One can also explain “who sees the nolad” differently from Rashi. Rabbi Ovadiah miBartenura suggests that such a person understands the ultimate consequences of actions, namely the Heavenly reward or punishment they will yield.

Bartenura is commenting on Mishnah Avot 2:9, which does not mention wisdom explicitly. Rabbi Yochanan ben Zakkai tells his students: “Go out and see what the straight path is that human beings should cleave to.”  Rabbis Eliezer, Yehoshua, Yose, and El’azar ben Arakh each offer suggestions modified by the adjective tov: a tov eye, a tov friend, a tov neighbor, a tov heart.  Between Rabbi Yose and Rabbi El’azar, Rabbi Shim’on says: “One who sees the nolad.” The literary lack of fit is so stark that some commentaries suggest that Rabbi Shimon was not offering an independent suggestion bur rather defining the “good neighbor” suggested by Rabbi Yose. Meiri even suggests that it defines the good friend, and in the process rules out any reconciliation along the lines of Bratslav.

כמאמר החכם שאמר:

“חברו של אדם שכלו,”

ופעל השכל במדותיו והנהגותיו הוא

שיהא רואה את הנולד בכל דבר שיעשנו,

וטרם עשית הפעולה – יתבונן התכלית הראוי לצאת ממנה.

וכל אשר יעשה כן – לא יחטא

וישלמו ענייניו והנהגותיו על צד [ה]ראוי ושלם.

As in the saying of the chakham who said:

“the friend of a human being is their intellect,”

and the action of the intellect in one’s character and actions is

that one sees the nolad in everything one does,

and before doing an action – meditates on the end-goal that is likely to emerge from it

and anyone who does so – will not sin

and their interests and actions will be shalem in a manner appropriate and shalem.

Meiri attributes the definition to a chakham, which suggests that he sees Rabbi Shimon as defining chokhmah; and he emphasizes the completeness = shleimut of such a person.  Onkelos translates tamim in our verse as shalem. So it seems possible that Meiri here is endorsing Onkelos and rejecting Rashi’s understanding of the verse, perhaps because he does not see simplicity/naivete as a religious good.

Tosafot Yom Tov cites Midrash Shmuel as taking issue with Meiri’s moral confidence in his chakham.  He notes that when Rabbi Yochanan Ben Zakkai asks the inverse question “Which is the bad path from which a person should distance themselves,” all of Rabbi Yochanan Ben Zakkai’s other students simply reverse their positions, saying ayin ra’ah, shakhen ra, etc.  Rabbi Shimon, however, says it refers to one who borrows without repaying.  Tosafot Yom Tov argues that this is because seeing the nolad is a good trait, not seeing the nolad is not per se a bad trait.  Perhaps carried away by his own argument, he then argues that perhaps seeing the nolad is not a costless good, as it prevents ultimate shleimut.

ובמדרש שמואל כתב בשם הר”י לירמא:

שעם היות שהרואה את הנולד היא דרך טובה,

הבלתי רואה בנולד אינה היא רעה,

לפי שמצינו אנשים הרבה

 שעם היות שאינם רואים את הנולד, הם הולכים בדרך ישרה

או האנשים שמקיימים התורה לשם שמים

לא לתקות שום שכר, ולא מפחד שום עונש,

אלא לשמה,

שזאת היא העבודה היותר שלימה שבעבודות,

ולכן לא א”ר שמעון שדרך הרעה היא מי שאינו רואה את הנולד

Midrash Shmuel wrote in the Name of R. Y. Liremma

that while seeing the nolad is a good path,

not seeing the nolad is not a bad thing,

because we have found many people who,

while they do not see the nolad, they walk a straight path,

or people who keep the Torah for the sake of Heaven

and not in the hope of reward, or fear of any punishment,

but rather lishmoh,

because this is the service that is most complete among services,

and therefore Rabbi Shimon did not say

that the way of one who does not see the nolad is a bad one.

Tosafot Yom Tov seems to see even considerations of ultimate consequences as somehow tainting, or in our terms, or as a lack of temimut.

What I hope to have established so far is that the Bratslav story of the chakham and the tam has deep roots. However, the advantage of the tam has been harder to see in our era, when scientific prediction has enabled vast public goods. One can claim that we are at grave risk because we have failed to be full chakhamim, and foreseen only some of the consequences of our actions, but it is hard to sustain a contemporary Jewish claim that we would therefore be better off abandoning the predictive capacities we have gained.  We resonate much more with the line of interpretation that sees “be tamim” as preventing us only from seeking knowledge by supernatural means other than Divine prophecy.

This approach fits very well in the context of our verse, which is preceded by a list of occult practitioners whom we are forbidden to consult, and followed by the laws of Divine prophets. All the predictive tools of science are legitimate on this rule.  Most of us (I think) also resonate with the Maimonidean claim that all true modes of knowing reality are legitimate, and that the Torah bars only the fruitless seeking of predictive wisdom from frauds.

My question is whether we lose anything by this approach, in terms of either temimut or shleimut, and whether there is any way to get it back.  Some theologians Jewish and otherwise have tried to develop a concept of “second naivete” with regard to religious claims about the past; perhaps that can be extended to secular claims about the future. But do we see any virtue in such naivete, or would any such attempt inevitably leave us in the position of a drunken Noah exposed to the jeers of his son and grandson.

Rav Moshe Feinstein’s endorsement of genetic screening for Tay-Sachs (Igrot Mosheh EH 4:10) is an interesting test case.  Rav Moshe acknowledges that such testing should be a violation of Rashi’s understanding of Tamim, which he seems to endorse (and lived by, according to the biography at the start of volume 8 of Igrot Moshe). But he cannot tolerate the suffering having Tay-Sachs children causes.  So he develops a new distinction.

כיון שעתה נעשה זה באופן קל לבדוק

 יש לדון שאם אינו בודק את עצמו –

הוא כסגירת העינים לראות מה שאפשר לראות

Now that it has become easy to check (whether one is a Tay-Sachs carrier),

we can decide that  if one does not check themselves

this is like closing the eyes from seeing what it is possible to see.

Virtuous simplicity does not entail walking around blindfolded until one falls into a pit.  But how far over the horizon would Rav Mosheh want us to see?  Tay-Sachs testing  depends on predictions of events many years down the line.  Can we still construct a credible and meaningful theory of temimut in the spirit of Rashi? Would we gain something religiously by doing so?

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Dignity and Charity

by Rabbi Aryeh Klapper

Devarim 15:7-8

כִּֽי־יִהְיֶה֩ בְךָ֨ אֶבְי֜וֹן

מֵאַחַ֤ד אַחֶ֙יךָ֙ בְּאַחַ֣ד שְׁעָרֶ֔יךָ בְּאַ֨רְצְךָ֔ אֲשֶׁר־ה֥’ אֱ-לֹהֶ֖יךָ נֹתֵ֣ן לָ֑ךְ

לֹ֧א תְאַמֵּ֣ץ אֶת־לְבָבְךָ֗ וְלֹ֤א תִקְפֹּץ֙ אֶת־יָ֣דְךָ֔

מֵאָחִ֖יךָ הָאֶבְיֽוֹן:

כִּֽי־פָתֹ֧חַ תִּפְתַּ֛ח אֶת־יָדְךָ֖ ל֑וֹ

וְהַעֲבֵט֙ תַּעֲבִיטֶ֔נּוּ

דֵּ֚י מַחְסֹר֔וֹ אֲשֶׁ֥ר יֶחְסַ֖ר לֽוֹ:

When there is among you an indigent

from one of your brothers in one of your gates in your land which Hashem your G-d is giving you

you must not fortify your heart and you must not close up your hand

from your brother the indigent

Rather you must surely open your hand to him

v’ha’aveit ta’avitenu (perhaps: “and you must surely consider his collateral sufficient to lend him”)

sufficient for his lack which is lacking to him

In Rabbinic reading, the internally redundant phrase “his lack which is lacking to him” opens the door to subjective lacks, and concomitantly, to grave concerns about unfairness, inequality, and abuse. Does Judaism endorse “From each according to their abilities, to each according to their needs?” How do we authenticate subjective lacks? Can we justify allocating resources to enable one person’s need for luxury while another remains lower middle class?

Obviously there are limits.  Each human being, of whatever economic status, has unique physical needs and tastes, and no community can provide for them all. Responsible policymakers must take public perception into account. But the underlying point is that the halakhic obligation of halakhic charity is aimed at preserving dignified life. Enabling dignity sometimes requires treating everyone alike, which is the best-case argument for school uniforms; and sometimes involves making sure that everyone’s individuality is recognized and accounted for, for example buying a homeless man on the street his preferred brand of deodorant rather than the cheapest generic.

Talmud Ketubot 67b presents an extended pointillist meditation on this issue. By ‘pointillist,’ I mean that it presents halakhic and aggadic snapshots in a single framework without telling us how they relate to each other. There is no stam/narrator telling us that this story contradicts or illustrates X exegetical claim or Y story.  By ‘meditation,’ I mean that that the goal is an experience, not an outcome.

My goal in this devar Torah is to provide clues and leading questions that convey and facilitate that experience.  I’ll present each of the sugya’s five independent elements independently, and leave it to you to put it all together.

Here is the first, a beraita in the form of midrash halakhah.

An orphan who comes to get married –

they rent him a house, prepare his bed and all his household goods,

and afterward they marry a woman to him.

as Scripture says: sufficient for his lack which is lacking for him:

sufficient for his lack = house; which is lacking = bed and table; for him = wife.

Scripture similarly says: I will make for him a helpmate equal to him.

This orphan under discussion here is self-supporting, but nonetheless is considered indigent because he is not economically capable of sustaining (or perhaps of obtaining) married life.  You can lack things that you haven’t yet had, and whose lack you never previously felt. Yesterday you were a rock and an island, entire unto yourself; today others have to exercise their generosity to provide for you. Awareness of being single generates a new lack, even though nothing objective has changed. Because the newly lacking may not understand their own needs, proper generosity requires imagination

Here is the second beraita, also in the form of midrash Halakahah.

sufficient for his lack which is lacking to him –

you are commanded to sustain him, but you are not commanded to make him wealthy;

which is lacking to him –

even a horse to ride on and a servant to run before him.

They said about Hillel the Elder

that he acquired for a poor son of a good family a horse to ride on and a servant to run before him;

once – he did not find a servant to run before him, so he ran before him for three mil.

This text revels in paradox.  Aren’t horses and servants the accoutrements of wealth? The story about Hillel suggests that wealth is not only subjective, but also relative to class. Some characters in Jane Austen novels would starve before they gave up their horse, because having a horse, or a footman, maintains their social status. Hillel was impoverished when young, and apparently never felt the need to acquire class status along with wealth. He remained comfortable as a footman, maybe even more so than as a footman’s employer. But he understood what having a footman meant to others who had experienced the reverse financial trajectory.

The third unit begins with a narrative beraita, which then generates Amoraic commentary.

A story about the people of the Upper Galilee

who acquired for a poor son of a good family from Tzippori a litra of meat daily.

The Talmud comments:

“a litra of meat” – what’s special about that?

A litra of bird meat (Rashi: which was very expensive).

If you want I will say:

For a litra (Rashi: of coins), he purchased meat.

Rav Ashi said:

It was a small village, and every day, they would kill one of their animals for his sake (Rashi: even though the market was too small to handle selling the rest of the meat before it spoiled.)

The anonymous interpretations raise questions of fairness and justice; why should this pauper be fed at such high cost? But Rav Ashi raises the stakes even further.  Supporting this one man meant wasting a communal resource, and possibly destroying the local market for meat by creating an artificial glut. Was this behavior obligatory, or even praiseworthy? Might there be behaviors that are praiseworthy done once, even though they would be ruinous if imitated?

A man came before Rabbi Nechmyah:

He said to him: What do you generally make a meal of?

He replied: Fat meat and aged wine.

Would you like to eat lentils with me?

He ate lentils with him, and died.

He said: Woe unto this one whom Nechemyah killed!

(The Talmud comments:)

Just the opposite: He should have said: Woe to Nechemyah who killed this one!

No, because he should not have made himself so finicky.

We are not told what Rabbi Nechemyah ordinarily ate, nor what he would have served had the man been habituated to lentils. For that matter, we don’t even know that the man was poor, only that he seems to have been hungry.  The story echoes that of Marta daughter of Boethius, who dies when the Destruction exposes her to aspects of life her wealth had sheltered her from. But does it also echo the meal Yaakov made for Esav? That might explain why the Talmud feels compelled to defend Rav Nechemyah, even though he appears to be blaming the victim.

A man came before Rava:

He said to him:

What do you generally make a meal of?

He replied:

Fatted chicken and aged wine.

He said to him:

Are you not concerned for the (economic) stress on the community?

He replied:

What, do I eat of theirs?! I eat of the Merciful’s!

as we learned in a beraita:

The eyes of all look expectantly to You, and You give them their food in its time

It does not say ‘their time’ but rather “its time”

This teaches that the Holy Blessed One give each one its sustenance in its time.

Meanwhile, Rava’s sister, whom he had not seen for thirteen years, came,

and she brought him fatted chicken and aged wine.

He said:

I concede to you.  Arise and eat!

Is charity an act of altruism, X giving his/her stuff to Y? Or is it an act of redistribution, mitigating an unjustified inequality and ensuring that G-d’s resources are properly used?  Does Rava’s interlocutor really know the beraita he seems to be presented as quoting? By juxtaposing these stories, is the Talmud suggesting that had R. Nechemyah waited to begin his meal, much fancier fare would have turned up? That the people of Upper Galilee were not really making an economic sacrifice?

Perhaps the unhappy death of Rabbi Nechemyah’s companion, and the miraculously good food fortune of Rava’s companion, together constitute an aggadic critique of the halakhic claim that “you are not commanded to make him wealthy.”  I prefer to suggest that the man (Eliyahu haNavi?) met Rava’s sister on her way, and knew what she was bringing and when.  The dialogue exposed Rava’s unwillingness to share even when sharing would cost him nothing but the social distinction between them.  That may be an underlying lesson – that we have the right to prioritize ourselves, and the formerly rich have a legitimate interest in preserving their social status, but we must never deny someone else for the sake of preserving our superiority over them.

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Monotheism, Matnat Chinam, and Mentschlichkeit

by Rabbi Aryeh Klapper

The Torah makes clear that Canaanite culture was a moral disaster. This moral disaster was foreseen; G-d tells Avraham (Genesis 15:16) that he cannot have the Land immediately “because the sin of the Amorites is not complete UNTIL NOW” – plainly He anticipated that it would become complete at some point before Avraham’s fourth generation, which would receive the land. How did G-d know?

We might say that G-d knows the future, including the decisions people will make, so He knew that the Amorites would sin more and more. This approach would enmesh us in medieval controversies about the relationship between Divine foreknowledge and human freedom. It seems preferable to say that Canaanite culture contained an inevitable and irresistible tendency toward moral disaster, so that G-d could predict its end.

Devarim 9:5-6 implicitly refers to this conversation between Avraham and G-d.

לֹ֣א בְצִדְקָתְךָ֗ וּבְיֹ֙שֶׁר֙ לְבָ֣בְךָ֔ אַתָּ֥ה בָ֖א

לָרֶ֣שֶׁת אֶת־אַרְצָ֑ם

כִּ֞י בְּרִשְׁעַ֣ת׀ הַגּוֹיִ֣ם הָאֵ֗לֶּה ה֤’ אֱ-לֹהֶ֙יךָ֙ מוֹרִישָׁ֣ם מִפָּנֶ֔יךָ

וּלְמַ֜עַן הָקִ֣ים אֶת־הַדָּבָ֗ר אֲשֶׁ֨ר נִשְׁבַּ֤ע ה֙’ לַאֲבֹתֶ֔יךָ לְאַבְרָהָ֥ם לְיִצְחָ֖ק וּֽלְיַעֲקֹֽב:

וְיָדַעְתָּ֗ כִּ֠י לֹ֤א בְצִדְקָֽתְךָ֙

ה֣’ אֱ֠-לֹהֶיךָ נֹתֵ֨ן לְךָ֜ אֶת־הָאָ֧רֶץ הַטּוֹבָ֛ה הַזֹּ֖את לְרִשְׁתָּ֑הּ

כִּ֥י עַם־קְשֵׁה־עֹ֖רֶף אָֽתָּה:

It is not owing to your righteousness and the integrity of your heart

that you have come to possess their land

rather it is owing to the wickedness of those nations

that Hashem your G-d is sweeping them from before you.

You must know that it is not owing to your righteousness

that Hashem your G-d is giving you this good land to possess it

because you are a stiff-necked people.

In other words, the sin of the Amorites is now complete.

Will the fate of the Jews be any different?  It seems at least possible. G-d makes clear that we do not deserve the land; but He does not say that we are as bad as the Canaanites. He constantly warns us against having pity on Canaanites lest they come to live among us and cause us to stray. Rabbi Samson Raphael Hirsch argues that these repeated warnings are necessary because pitilessness violates the fundamental norms of Jewishness, perhaps of the fundamental nature of Jews.

This creates a Scylla/Charybdis dilemma.  We must be terribly careful lest we show pity where pity is forbidden; but what are we to do in a case of doubt? Unnecessary pitilessness is also terrible! Let’s analyze this dilemma through the lens of a phrase from Devarim 7:2, lo techaneim.

Talmud Avodah Zarah offers three legal understandings of the phrase, each based on a separate etymology.  The first is “Do not grant them an encampment/chanayah in the Land; the second is “Do not show them favor/chen,” meaning do not speak favorably of them; the third is “Do not give them an unmotivated­/chinam gift.”

Lo techanem occurs just after commands to smite, utterly destroy, and never cut covenants, and just before the prohibition against intermarriage. To whom do these prohibitions apply? The Talmud reports a Tannaitic dispute as to whether the prohibition against intermarriage applies only to the Seven (Canaanite) Nations, or to all non-Jews. But for whatever reasons, that is not the binary in play for lo techanem. Even more interestingly, halakhists have felt free to apply the three laws generated by lo techanem to different sets of nonJews. Let’s focus in even further then, on the prohibition against giving chinam gifts.

The Tur cited this prohibition twice in his work.  In Yoreh Deah Laws of Idolatry 151

אסור ליתן להם מתנת חנם

במה ד”א?

כשאינו מכירו

אבל אם מכירו, או שכינו – מותר

It is forbidden to give them chinam gifts

What context were these words said in?

Where he does not have a relationship with him.

But where he does have a relationship with him, or if he is his neighbor – it is permitted.

In Choshen Mishpat Laws of Gifts 249 he writes:

אסור ליתן מתנת חנם לעובד עבודת כוכבים

אבל מותר ליתן לגר תושב, שהרי מצוה להחיותו:

It is forbidden to give a chinam gift to an idolater,

but it is permitted to give one to a ger toshav, as he is commanded to sustain his life

The Yoreh Deah version has the practical effect of eliminating the prohibition. The rationale for the exceptions is that they turn the gift into a sale, because the giver expects the recipient to return the favor with interest.  Why would one give presents to someone one has no relationship with? Who ever gives gifts without some expectation of reciprocity?

Shulchan Arukh YD 151 doesn’t mention the neighbor, but adds a new permission, generalized from the Mishnah that mandates feeding the idolatrous poor: One may gift if doing so contains an element of darkhei shalom, the ways of peace, which can perhaps be codified as “whenever it is socially expected.”

These exceptions seem almost funny when one recalls how Rabbi Avraham Danzig sums up the purpose of lo techanem in his Chokhmat Adam:

והכל כדי שלא יתקרבו עמהם וילמדו ממעשיהם

All of this is so they don’t become close with them and learn from their actions

Rabbi Danzig’s summary reflects both the contextual peshat and the consensus of the tradition. Yet how does this make sense?  Surely a prohibition intended to inhibit social intercourse would apply more strongly to friends and neighbors than to strangers! Surely the easiest way to inhibit such intercourse is to dispense with the social niceties (leaving aside that these niceties are plainly habits we have picked up from them! It seems more likely that they reflect a decision to be strict on the side of being gomlei chasadim, those who model selfless givers), rather than being strict on the side of avoiding Gentile influence.

Tur Choshen Mishpat introduces a new dichotomy among Gentiles: there are idolaters, and then there are gerei toshav, or resident aliens.  Shulchan Arukh says the same thing. What if a person is neither?

Maimonides insists that the entire category of resident alien applies only when most Jews are living in Israel. This means that even Gentiles who fully carry out their halakhic responsibilities cannot become resident aliens.  Such people are not idolaters either,  May we give them chinam gifts? In other words: Does the prohibition apply only to idolaters, or does it apply to every undocumented Gentile?

This question seems to be answered definitively by Rashbo, Responsa 1:8.

ומה ששאל ממך הנער

בשולח אדם ירך לנכרי

איך יתישב עם מה שאמרו אסור לתת מתנת חנם?

ואמרת לו

דההוא דשולח ירך לנכרי לא לחנם אלא לגמול למה שקדם או בגוי שאינו עובד עבודה זרה

יפה אמרת. . . .

ואמרינן בפרק בתרא דעבודה זרה (דף ס”ז ב’)

רב יהודה שדר קורבנא לאבידרנא ביום אידו.

אמר: ידענא ביה דלא פלח לעבודה זרה . . .

That which the lad asked of you

regarding the Talmudic case of a person who sends a haunch to a nonJew –

How can this be squared with their statement that one may not give chinam gifts?

I said to him:

You have spoken well . . .

We say in the last Chapter of (Talmud) Avodah Zarah

Rav Yehudah sent a sacrifice to Avidrana on his birthday.

He said: I know of him that he does not worship idols.

Rashbo apparently held that that “resident alien” was just an example of a non-idolatrous Gentile. (Sefer HaChinnukh says the same things, but elsewhere contradicts himself.) Rav Yosef Caro apparently did not have access to this Rashbo, and therefore rules that the prohibition applies to Muslims, even though they are monotheists.

A slightly different framing appears in Meiri to Pesachim 21b:

כבר ביארנו במסכת עבודה זרה

שהגוים

ר”ל שהם מעובדי האלילים שאינם גדורים בגדר שום דת בעולם –

אין אנו מצווים להחיותם

ומאחר שכן, אף מה שאסור לנו – אין נותנין להם בחנם,

שהרי אנו גוזלין בכך גר תושב

שאנו מצווים להחיותו,

אחר שהוא מקיים שבע מצות של בני נח

We have already explained in Tractate Avodah Zarah

that the Gentiles

meaning those who worship idols and are not bounded by the bounds of any world religion –

we are not obligated to sustain their lives

and therefore, even that which is prohibited to us, we may not give them chinam

because by so doing we would be robbing the resident aliens,

whose lives we are obligated to sustain,

since they keep the Seven Noachide Commandments

According to Meiri, there might be no prohibition nowadays against giving nonkosher food away chinam, since according to Rambam there can be no resident aliens nowadays.

The positions of Rashbam and Meiri represent another example where we prefer to err on the side of humanity rather than on pitilessness, when we don’t know which one halakhah requires of us.  As Beit Yosef seems not to have had access to the relevant section of either of these rishonim, I think it is possible to rule like them against Shulchan Arukh, if a case ever came up that met the absolute chinam requirement.

Why should we resolve doubts in that direction? I suggest that what doomed the Canaanites was the convergence in their society of polytheism and moral and ethical breakdown. Preventing contagion from that virulent compound led the Torah to demand that we suppress our natural synpathies for them.

But where there is no danger of contagion from monotheists, however poor their characters, nor from ethical people who happen not to believe in Hashem, the reason for lo techanim appears defunct. Therefore, halakhah retreats to its default posture of treating everyone with lovingkindness.  Perhaps that default posture – even if we too often overcome the default – is why the Torah does not see as inevitably tending toward moral collapse, however bad we may be at present.

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