Category Archives: Weekly Devar Torah

Devorah as Shofetet: Exception or Paradigm?

by Rabbi Aryeh Klapper

In his magnificent introduction to the Sheiltot d’Rabbi Achai Gaon, Rabbi Naftali Tzvi Yehudah Berlin (Netziv) describes two models of halakhic development.  One model, which he identifies with the tribe of Levi, works pointilistically and intuitively.  It sees each circumstance and set of facts as unique and seeks a religious response that addresses that uniqueness.  The second model, which he identifies with the tribe of Yehudah, looks to build general principles and abstractions that apply to all circumstances and all times.  It seeks to respond religiously to the universal aspects of particular experience.   

Please understand the importance of Netziv’s contention that each of these are halakhic approaches.  Many other thinkers present similar binaries but see them as fundamentally opposed.  What Netziv calls the Levite model, they present as antinomian aveirah lishmoh, sinning for the sake of Heaven.  They make the compelling argument that the entire purpose of law is to subsume the particular into the general, to produce rules.  There may be circumstances where the rules should or must be broken, but in such cases, we should honor law by acknowledging the breach rather than claim that the law can bend far enough to accommodate our actions.

By framing intuitive, situation-specific responses as a mode of halakhah – indeed, as the proper mode of the posek as opposed to the lamdan – Netziv rejects this approach entirely.  

We might reasonably suggest that Netziv’s own approach is intended to expand the reach of law and domesticate intuition.  If halakhah validates situation-specific religious responses, how could there possibly be room left for aveirah lishmoh?  

But the truth is that Netziv has the most radical and pervasive understanding of aveirah lishmoh in the Mitnagdic world.  His bon mot was that one must always consider the benefits of a mitzvah (an action mandated by halakhah) against its costs, and the cost of an aveirah (an action forbidden by halakhah) against its benefits, because sometimes fulfilling the mitzvah isn’t worth its costs, and sometimes violating the aveirah is worth its costs.  

Why should a halakhah that relates to situations in their particularity ever generate counterproductive mandates or prohibitions?

I think Netziv must distinguish between mediated and unmediated religious intuition.  The posek’s intuition is mediated by halakhah, and must produce law.  

Perhaps Netziv imagines a sort of religious state of nature, in which each individual human being reacts to every situation in accordance with their direct perception of Divine Will.  The problem is that the Divine Will may be different for you than for me.  In Maimonidean terms, for example, my character might best be developed by cultivating uncritical generosity, while you need to overcome the culpable naivete that leads you to donate large sums to fraudulent charities.  So the religious state of nature does not enable the building of a religious society, and since human beings are social creatures, it follows that the state of nature does not enable human fulfillment.   We therefore need a religious social contract.  Cue Sinai; enter the Torah.

Social contracts require individuals to exchange the right to make some choices (“freedom from”) for the ability to make other choices (“freedom to”).  We retain the ability to make choices that we no longer have a right to make, and sometimes we may have the obligation to exercise that ability (aveirah lishmoh).  By organizing as a society, we gain the ability to make new choices that are simply wrong, such as limiting the autonomy of others unnecessarily.

Social contracts are based on principles that harden into rules, and rules harden into laws.  Netziv argues that this must be an iterative process.  One class of halakhists (lamdanim) constantly draws perfectly straight lines connecting previously decided halakhic points, and then argues that the lines define the boundary of the acceptable; another class (poskim) recognizes that an infinite number of curves can be drawn between two points, and contends that the existing pattern of halakhic points does not justify an overwhelming preference for simplicity.  The lamdanim must constantly revise their models to account for new points decided by the poskim, and the poskim must stay within lines that have already hardened.  Great poskim recognize that lines are two-dimensional, which is to say that they can only create boundaries within a single plane.  If we acknowledge the existence of infinite dimensions, then, the lamdanim can never fully constrain the poskim.  But the vast majority of us live in a much less exuberant religious geometry.

This tension can be illustrated within midrash halakhah by comparing the terms “binyan av” and “chiddush”.  Categorizing a legal detail as a binyan av lets one generalizes it to a broad range of halakhot beyond its original context; categorizing it as a chiddush confines it to its original context, and biases one toward defining that context narrowly.  The only difference between a binyan av and a chiddush is that the former seems intuitive and the latter seems counterintuitive.  

Lamdanim generally have a bias toward seeing things as binyanei av, whereas poskim are more willing to categorize them as chiddushim.  But there is at least one exception to this tendency.  Points that are halakhic outliers, but that have great appeal on non-halakhic grounds, will often be generalized by poskim and minimized by lamdanim.

This brings us to the case of Devorah the Prophetess.  There is no question that existing halakhic lines appear to be drawn with the intention of limiting women’s leadership roles.  There is also no question that Devorah led, and more particularly, that she functioned as a judge.  This is true even if one concedes that “shoftim” means political leaders rather than judges, since ויעלו אליה כל ישראל למשפט clearly means tht all Israel went up to her for legal judgement.

The simplest way of drawing the lines is to “chokify” Devorah, to say that she was an exceptional case that has no implications for the halakhot of leadership – she was in essence a living aveirah lishmoh.  This is where lamdanim pull out their literal deus ex machina, namely על פי הדבור שאני – Devorah functioned on the basis of an explicit Divine decree that suspended all the ordinary laws regarding women.  

An alternate approach is to say that the case of Devorah teaches us that the lines we had in mind are wrong, and we were drawing them on the basis of way too little halakhic data.  מקרא מלא אומר והיא שפטה את ישראל – an explicit and perfectly straightforward verse says that she served as a judge.  We might go further and seek to chokify any undeniable halakhic restrictions on women’s leadership, while generalizing the example of Devorah to the extent we can.

This is not a new conversation.  Tosafot record both options, and each reverberates throughout the subsequent rishonim of both Ashkenaz and Sefard.  But more immediately, each found new and enthusiastic exponents during the early years of religious Zionism.  For example, in 1920 Rabbi Yaakov Levenson published a book called שוויון נשים מנקודת ההלכה = The Equality of Women from the Halakhic Point of View, which enthusiastically argued that the restrictions in Rambam had essentially no applications in a democratic society.  Rabbi Levenson was Chairman and then President of American Mizrachi.  See as well the respectful but strong disagreement expressed by Rabbi Yosef Kanovitz of Toronto, President of the Agudat HoRabbonim of the US and Canada, and Rabbi Levenson’s equally civil response.  Note particularly that the full exchange was published originally by Rabbi Levenson in his התורה והמדע and then included in Rabbi Kanovitz’s posthumous collection דברי יוסף.

In this ongoing conversation, I have a quite strong opinion, which largely tracks that of Rabbi Levenson in practice.  I think it is correct to say that on the immediate issue he addressed, which was women’s suffrage, there is now a practical halakhic consensus in his favor, and any line-drawers must take that into account.  I think it is generally better not to draw lines than to draw absurd lines; hence my rejection of positions that allow Golda Meir to be Prime Minister of Israel but not President of a Young Israel.  

I don’t think that halakhah should be decided by projections of historical trends, and there certainly remain areas of leadership about which reasonable and responsible halakhists and halakhic communities can differ passionately.  For the time being, there will be shuls of observant Jews who eagerly seek the public presence of women as religious leaders, and others who sincerely find that presence to be a violation of the halakhic ethos, and still others where the issue will cause constant tension.  But the examples of Rabbis Levenson and Kanovitz should show us that there is no reason, and perhaps no excuse, for making those passionate differences the cause of Orthodox schism.  Let us rather try genuinely to convince each other.

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Peace With Security: A Psychopolitical Meditation on Yitzchak’s Meditations

by Rabbi Aryeh Klapper

There are moments in life that initiate longitudinal bonds, the things that successful marriage and true friendship and discipleship and avodat Hashem are made of.  These bonds, like all dynamic things, require maintenance but have the capacity for growth, and there is nothing more important in life than maintaining, growing, and deepening them.

But there are also moments of surpassing beauty that initiate permanent and unchanging but tangential bonds, between lives that meet only at the one point.  The relationships they initiate may be of little intrinsic significance, but the memory of incandescence or transcendence is part of what sustains our belief in the possibility of shared experience, and thereby enables the relationships that matter.

I had a rather unusual such experience this week, and I’d like to share it with you, and think together about what it might mean.

My divrei Torah generally emerge from an encounter with a text rather than a pretextual agenda.  So I often prepare by scanning the parshah and hoping to be surprised.  This week the first thing that caught my eye was a phrase in 26:24:

וַיֵּרָ֨א אֵלָ֤יו ה’ בַּלַּ֣יְלָה הַה֔וּא

וַיֹּ֕אמֶר

אָנֹכִ֕י אֱ-לֹהֵ֖י אַבְרָהָ֣ם אָבִ֑יךָ

אַל־תִּירָא֙ כִּֽי־אִתְּךָ֣ אָנֹ֔כִי

וּבֵֽרַכְתִּ֙יךָ֙ וְהִרְבֵּיתִ֣י אֶֽת־זַרְעֲךָ֔

:בַּעֲב֖וּר אַבְרָהָ֥ם עַבְדִּֽי

Hashem appeared to him during that night.

He said:

I am the G-d of Avraham your father.

Don’t be afraid, because I am with you,

and I will bless you and make your descendants numerous

for the sake of Avraham My servant.

It seems as if G-d is emphasizing Yitzchak’s unworthiness even as He reassures him that it will all be good.  What would that feel like?  As some acharonim note, it strengthens the reassurance – unlike Avraham and Yaakov, Yitzchak doesn’t have to worry שמא יגרום החטא, lest his sins prevent him from receiving an already-promised reward.  But what does it do to his self-image?

I started my research by using the phrase as my search term on the Bar Ilan Responsa Project’s Literature of Chazal database.  There were only ten hits, and fittingly, nine of them focused on Avraham’s status as G-d’s servant.  Only the very first result, found oddly in Tosefta Berakhot 6:8, related to Yitzchak.

ר’ דוסתאי בי ר’ יניי אמ’ משם ר’ מאיר

הרי הוא או’ ביצחק

“וברכתיך והרבתי את זרעך בעבור אברהם עבדי”

:’דרש יצחק ואמ

…הואיל ואין הברכה שורה אלא על מעשה ידי

,עימר וזרע

‘שנ

“ויזרע יצחק בארץ ההיא וימצא בשנה ההיא מאה שערים”

Rabbi Dostai son of Rabbi Yannai said in the name of Rabbi Meir:

Behold it says about Yitzchak:

“and I will bless you and make your descendants numerous for the sake of Avraham My servant

Yitzchak interpreted this and said:

Since blessing rests only on my handiwork . . .

so he harvested and planted,

as Scripture says:

“Yitzchak planted in that land, and he found in that year a hundred ?gates?”.

I simply couldn’t make head or tails of what was being said here.  What in G-d’s words teaches Yitzchak that his blessing is limited to “his handiwork”?  Why does Yitzchak harvest before he plants?

Very likely the answer to these questions is that the text is hopelessly corrupt. But before giving up, I found one more problem.  The text as we have it says that Yitzchak harvested and planted in reaction to G-d’s words in 26:24.  But we are told about the planting in 26:12!?

So R. Dostai must have read the text as out of chronological order.  What motivated him to do this?

The answer seemed clear.  26:24 tells us that Hashem appeared to Yitzchak בלילה ההוא, “during that night”.  Which night?  The previous verse tells us only that “Yitzchak went up from there to Be’er Sheva”, without mention of night.

But the truth is that there is no mention of night anywhere earlier in the story of Yitzchak. So which night?

Now that R. Dostai had alerted me, the problem seemed so blatant that I was sure all the standard commentaries would address it.  So I looked at Rashi, Rashbam Ibn Ezra, and so on – no luck.  Many of these commentaries noted other temporal anomalies in the narrative – obviously that Be’er Sheva is named three separate times, and it’s very hard to figure out which wells were dug when.  But no one at all seemed bothered by “on that night”.

At this point I began doubting myself.  Maybe the problem wasn’t real, and I was missing an obvious solution.  Maybe I had misread R. Dostai, or this difficulty was also the phantom offspring of a corrupted text.  What did that say about my ability to read Rabbinic commentaries generally?  How many of my previous Torah essays were based on invented textual issues or unnecessarily complex answers?

And then the moment happened.  Approaching desperation as I scanned through everything remotely relevant on Bar Ilan, I found someone who had shared my dark night of the soul.

 – “וירא אליו ה’ בלילה ההוא”

?כל ימי צעקתי על פסוק זה: מה ר”ל “בלילה ההוא”

.ולא ידעינן באיזה הלילה כלל, כי לא נזכר שום לילה

“Hashem appeared to him during that night” –

All my days I screamed about this verse: What is the intent of “during that night”?!

We don’t know at all which night, because no night has been mentioned.

These were the words of Rabbi Yochanan son of Aharon Luria in his commentary Meshivat Nefesh.  Bar Ilan tells me that Rabbi Luria was lived circa 1440-1514 in Alsace, but that his commentary was first published from manuscript in 1998.  Had I tried to write this dvar Torah twenty years ago, I would have been completely alone.

Rabbi Luria’s solution is that night here is symbolic, and refers to Yitzchak’s dark night of the soul while being chased from well to well by the Philistines.  The Torah finishes its physical narrative, which ends when Yitzchak digs the well at Rechovot (verse 22), and then fills in the psychological narrative.  There was a time when Yitzchak was too discouraged to try digging yet another well, so G-d appeared and encouraged him.  What else are your father’s friends for?

I don’t find this solution at all satisfying.  There is no hint here that night is metaphorical rather than actual, and no hint in the text that Yitzchak considered giving up.  But it really doesn’t matter – Rabbi Luria and I, though separated by five centuries, will always share that moment of being the only ones in the world obsessed with this question.

But there is of course the possibility that one of you had noticed the problem, perhaps years ago, and now reading this dvar Torah adds you to our bond.  So for you – and for everyone who understands our experience even if they don’t share it – I’ll provide my own very tentative solution.

I suggest that “during that night” means “during the same night that G-d previously appeared to Yitzchak”.  In other words, this revelation is a continuation of the revelation recorded in 26:2.

If we put those revelations side-by side, they seem almost identical.  What changes is that in the first G-d favors Yitzchak because of Avraham’s actions, while in the second He favors Yitzchak because of Avraham’s character.

Here I turn to my favorite insight from the great medieval commentator R. Yosef Ibn Caspi: When a prophecy appears to be repeated, it doesn’t mean that there was a new experience of revelation, but rather that the prophet gains a new understanding of the previous experience.  I want to take that one step further and say that the Torah here is telling us that Yitzchak had one experience of revelation, “during that night”, but that he understood it differently before and after the episodes of the wells.

When Yitzchak first arrived in Gerar, he thought G-d’s message was that he should imitate Avraham’s actions, and so he redug his father’s wells.  (Davida Kollmar suggests that this may help explain R. Dostai’s enigmatic notion that “blessing rests only on his handiwork”.) After that failed repeatedly, he realized that he needed to be like Avraham, not to imitate his actions.  One cannot be like an enormously creative person by imitating them.

When that happened, Avimelekh ceased quarreling with him and, recognizing that G-d was with Yitzchak, he reinstated the Philistine-Jewish accord first made with Avraham at Be’erSheva.  Perhaps the underlying message gives a new meaning to the slogan “Peace with security”: Those with insecure identities cannot make lasting peace, nor can lasting peace be made with them.  Yet even where longitudinal relationships cannot be formed, we should never surrender our faith in the possibility of shared human experience.

Shabbat Shalom!

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What if Avraham Had Lived in America? Thoughts on the Political Implications of Human and Jewish Being

by Rabbi Aryeh Klapper

Kabbalah teaches that all difference is illusion, because everything is G-d, in Whom inheres no difference.  But illusion is necessary, as human beings cannot understand G-d as pure simplicity.  Human comprehension emerges out of analysis, or breaking things down into distinguishable components.

One can therefore argue: The difference between Jews and other human beings is a necessary illusion.  But just as the illusion of the world must be a means to comprehending the undifferentiated G-d, the illusion of Jewish difference must be a means to comprehending the image of G-d in all humanity.

This suggests that consciousness of being “different” is an essential aspect of Jewish identity, as in “They are a nation that dwells alone.”  Jean Paul Sartre in AntiSemite and Jew challenges this idea by distinguishing between “authentic” and “inauthentic” Jews.  Authentic Jews define themselves by who they are, without reference to others.  Inauthentic Jews define themselves by what differentiates them from non-Jews.  Anti-Semites by definition live inauthentically, since they define themselves in contrast to Jews.  Jews should strive to be authentic.

My question is whether Sartre’s authenticity is possible, or rather impossible because distinction is necessary for human understanding.  Could one be a self-conscious Jew if all human beings were Jewish?  Is it possible to be meaningfully Jewish without self-consciousness?

Rabbi Soloveitchik in his essay “Confrontation” opens up what can perhaps be described as a kabbalistic corrective to Sartre.  Self-consciousness is essential, and difference is necessary for self-consciousness, but difference does not require the presence of an external “other.”

According to the Rav, Jewish human beings properly perceive themselves as both fully human and Jewish.  It follows (my extension of the Rav’s argument) that one can define one’s Jewishness by distinguishing it from one’s own generic humanity, without having resort to an external “other,” and without denying that one remains a generic human.

This dual nature as both human and Jew is embodied in Avraham Avinu’s paradoxical self-description “ger v’toshav anokhi imakhem,” “I am (simultaneously) an alien and a citizen among you.”  The Rav understands these as discrete conditions.  A Jew qua human is a citizen of the world, and qua Jew is an alien.  Jews are both different from and the same as all other human beings.

Jews throughout history have lived this dichotomy as fiddlers on the roof, with varying degrees of success.  Sometimes we fell off on one side, losing track of our Jewishness; sometimes on the other, losing track of our humanity.  But there was never doubt that the roof was slanted on both sides.

Until 20th century America.

Here’s why.

In previous Diaspora cultures, Jews could participate as equals (when and where they could) only by giving up their particularism.  The “generic” cultural or political space might allow them to maintain their particularism in segregated areas of life, such as worship, but as citizens, they were required to be undifferentiatedly human.

Most often, this undifferentiatedness was an illusion, and the “generic” space actually reflected a dominant non-Jewish culture.  More sharply: Judaism was always posterior to the generic culture, whereas some other religion(s), philosophic system(s), ways of life etc. were anterior to that culture.  To enter that space as a Jew meant stripping off part of one’s prior being.

By contrast, for a post-enlightenment Christian, or a Golden Age Muslim, being a part of generic or universal human culture might mean living in a space where only part of one’s Christian or Muslim being could be expressed.  But this limit on expression was not a limit on one’s being.  One could be political as a Christian, or artistic as a Muslim, without in any way becoming “other.”  Generic humanity essentially meant the parts of Christianity or Islam that could be lived even by those who were not Christians or Muslims.

I contend that 20th century America was different in that Judaism was anterior to the generic culture.

But that claim needs clarification before being applies to the 21st century, as follows:

Judaism is anterior to generic Israeli culture in the same way as Christianity is anterior in Europe.  What makes America different is that Judaism is anterior to the culture in the same way as Christianity is within the same generic culture.

Here my claim can be understood in two very different ways.

(1). America is a Judeo-Christian culture (or, if one wishes to be more inclusive, an Abrahamic culture).

(2). America is a genuinely pluralistic culture, in which all religions and ethnicities are understood to be anterior to the generic culture.

The difference between these claims roughly maps onto the difference between conservatives (1) and liberals (2).

For conservatives, Jews participate in generic American culture as Jews because it is fundamentally a Jewish (and Christian, and possibly Islamic) culture.  So that others can participate, we restrain ourselves from fully expressing our Jewishness in the political sphere.  But we recognize and acknowledge that for some others, full participation in that sphere requires a contraction of being and not just of expression.  (For example: We might contend that democracy is a fundamental value of our religion, and that (cue Mendelssohn) Judaism has no need or desire for power, whereas other religions see the enforcement of G-d’s Will as mission-central.)

For liberals, Jews participate in generic American culture as Jews because it is a culture which is continually recreated in the image of all its participants.  No one should ever have to contract their religious being to participate fully, and everyone should have to contract their religious expression equally in the political sphere.

For conservatives, therefore, being a Jew and an American still allows the Jew to define him or herself against an internal human other.  The generic American is not a generic human.

For liberals, by contrast, there is no difference between the generic American and the generic human – there are no prior religious commitments or noncommitments that can constrict one’s relationship to generic American culture, and limits on political expression never constitute limits on being.  Therefore, the Jew and American has no internal other to define Jewishness against.  The Jew in America is by definition a toshav and not a ger, not because Jews specifically are toshavim, but rather because the category ger is not relevant to anyone with American citizenship.

One consequence of this analysis is that the project of liberal Jewish identity in America may be impossible to sustain.  But I am leery of making strong concrete claims on the basis of abstract philosophy, let alone kabbalah.  Perhaps absolutely authentic being is possible, and can be the basis of a viable mass program.  Perhaps differences in religious expression are sufficient to create the necessary illusion of difference.

I am more interested in exploring the consequences of this analysis for the generic American public space.  Here’s what I want to say:

The liberal position rests on the assumption that religious expression and religious being are wholly separable.  There is no restriction on religious expression that in any way impacts on religious being.  Or most sharply: There is no circumstance in which I can argue that a restriction on my religious expression in a public space is also a restriction on my being.

This yields a variety of easily recognizable results.  For example, banning prayer in public contexts, on the grounds that theistic prayer excludes atheists, or monotheistic prayer excludes polytheists, etc.  Or requiring Catholic photographers to work the weddings of divorcees without expressing their opposition in either word or deed.

The conservative position rests on the assumption that there are no generic humans, and every restriction of religious expression is presumptively a restriction of religious being.  Conservatives therefore are suspicious of attempts to extend the generic sphere beyond the political (thus the opposition to “political correctness”), and leery of expanding diversity in the political arena when that risks constricting their religious expression within it (as they think has happened too often already).

Now the “liberal conservative” recognizes that there is great value in building a polity that includes difference, lest we fall off the other side of the roof and forget our common humanity.  Liberal conservatives are therefore willing to sacrifice some of their religious expression, and consequently their religious being, for the sake of creating a generic political culture.  They may for example be willing to settle for generically monotheistic rather than explicitly Jewish or Christian or Judeo-Christian public prayer, or agree to decriminalize adultery.

But where liberals see diversity as a cost-free value, liberal conservatives contend that substantive diversity (meaning a diversity of values, as opposed to superficial diversity such as skin color or dress) always has a cost, for all members of the generic culture, and that a responsible society engages in ongoing cost-benefit analysis.  There is an at least theoretical point at which diversity-accommodation become a Procrustean bed, and multiculturalism eliminates all the substantive differences that made its constituting cultures valuable in the first place.

My own sense is that Jewish conversation about America should take place within the liberal conservative framework of ger vetoshav.  We should acknowledge the great value of building a diverse polity, but also the costs of diversity, and then argue passionately about how best to maximize the former and minimize the latter, and about how to balance them when there is no choice but to choose.

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Bully for Sodom

by Rabbi Aryeh Klapper

Sodom was a halakhically sophisticated culture.  Everyone knew the law, and the difference between a violation of the law and what you could be sued for.  On Sanhedrin 109b, the Rabbis illustrate the evils of Sodom via the halakhic principle that one cannot be sued for stealing property worth less than a perutah:

If someone had a row of bricks – they would come and each steal one.

If somebody had put out garlics or olives to dry – each person would take one.

Rashi explains:

They would say to the victim: “What loss have I caused you? All I took from you was one clove!”

It is as if each person pulled one hair out of his head – the victim ends up bald.

Let’s think for a moment about this case.  Who were the perpetrators, and who were the victims?

I suggest that the rabbis are describing something all-too-familiar – malicious bullying.  Groups would get together and impoverish whomever they didn’t like, while making sure not to do anything that could provoke reaction from those with formal authority and official power. [1]

The analogy to the schoolyard is clear.  These are the clique of kids who pick on a classmate to torment.  No individual kid says or does anything particularly unforgivable, and anyway there are no witnesses outside the group – perhaps they even physically surround the victim so no one else can see.  The victim eventually overreacts to one seemingly minor offense, and then gets in trouble, since the attacker at whom he or she lashes out has not individually caused significant damage.

Sodomean bullies consciously manipulate society so that the victim’s acts of self-defense become punishable while their aggression creates no liability.  They take advantage of a morally intuitive “doctrine of proportionality”.

But is it possible that “each person stealing less than a perutah” is terrible not only when it consciously manipulates the system, but even, or perhaps especially, when it enables people to avoid realizing that they are causing harm?  Can we identify systems and environments in which this happens?  I suggest that conversation is one such realm.  Please allow me to explain.

Liberal cultures have a deep, understandable, and to some extent laudable reluctance to acknowledge that a conversation can be zero-sum, meaning that whatever one participant gains, another loses.

Talmudists, by contrast, understand this instinctively.  This is because Talmudic sugyot (=literary units) are often structured as disputational dialogues.  In disputational dialogue, a raayah (attempted proof) for one side of the machloket (dispute) is always a kushya (attempted disproof) against the other, and a kushya on one side is usually a raayah for the other.

It is important to recognize that a Talmudic dialogue is zero-sum on only one axis – which position wins, meaning emerges as more likely true.  Anything that makes one side more likely true, makes the other less likely true.  A raayah for one side (+1) is a kushya on the other (-1) – that’s zero-sum.  But both sides benefit in the sense that they have come closer to the truth.  So the way to avoid zero-sumness is to change the goal of conversation from victory to truth.

But – what if the other person has not made that change?  For them, it still feels zero-sum, no matter how much you tell them that they have been enriched.  If you “defeat” them in argument, they will likely disengage and decide that the modality doesn’t suit them.

Sometimes the zero-sum axis is not about persuading each other, but rather about the public authority of your respective positions.  In such contexts, total victory is achieved when the opposing position becomes untenable in your community’s discourse.  This can happen through pure logical or empirical demonstration, as when looking through a microscope proved that microbes exist.  But much more often, it results from effective rhetoric which makes use of or disguises itself as logical or empirical demonstration.

Disputational dialogue using formal arguments and verifiable evidence are rare in the public square.  What is much more common is what might be termed “affective debate”, in which a conversation is “won” when one side has made it more emotionally or politically difficult to disagree with it than the other.

It is often assumed that even thinking about affective conversations as zero-sum games is inappropriate.  Surely the goal is for each side to express itself fully to the other!  No one loses just because the other side got to express itself.

But this is true only when there is a shared goal of emotional transparency.  With regard to public affairs, affective conversations are often properly understood as (conscious or unconscious) battles for emotional dominance, with each side trying to make it difficult for anyone to express the other position.

Let’s imagine a conversation set on the midrashic planet EinMakom.

Some people on this planet find emotional fulfillment only by eating roast lamb in public.  Deprived of that outlet, they become terribly sad and lonely.  Many believe that their god cuts off all relationship with them if they fail to eat lamb in public at least once a year.

Other people on this planet worship sheep, and believe that killing them for food is sacrilege and a perversion of the natural order.  Watching people eat lamb makes them physically and psychologically ill. [2]

Now let’s imagine a group conversation space – say, a WhatsApp group for EinMakom’s communal leaders.  Nachshon, one such leader, opens a conversation by sharing the intense inadequacy and despondency he felt when work recently compelled him to spend months in a vegetarian community, where it was socially impossible to eat lamb in public.

Following Nachshon, another community leader offers profound gratitude to him for sharing the experience.  Another admires Nachshon’s bravery and courage, and considers them inspirational.  A third expresses astonishment that such intolerant communities still exist.  A fourth declares with happy confidence that no one in this group would consider acting so intolerantly.  And so on.

Each of these follow-up notes seems positive and innocent – what could be wrong about supporting someone who has taken an emotional risk?  But their collective effect is to silence anyone on the listserv who worships sheep and wishes to protect themselves against the psychological and physical damage they experience when watching lamb-consumption.  Each individual note has minimal effect.  But the camel’s back is nonetheless fractured.

In another space, the roles might be reversed.  An initial posting about the psychological damage caused by watching lamb-consumption is followed by similar supportive postings, so that the notion of expressing one’s pain at being deprived of public lamb-consumption – let alone of demanding the right to consume lamb in public – becomes inconceivable.

As opposed to Talmudic discourse at its best, in which one argument generates the necessity for another, and stimulates its development and formulation, Sodomean conversations silence people and end genuine discussion.  The result is that people lock themselves into homogeneous communities, or bubbles.  (Homogeneity of opinion may be coincident with apparent ethnic or religious diversity.  This will tend to aggravate the difficulty of recognizing the problem of silencing.)

Too many conversations in too many spaces in the Jewish world today are conducted in Sodomean fashion.  Too many conversations in too many spaces in America today are conducted in this fashion.  Thus we keep locking ourselves into self-affirming bubbles, and are shocked to discover that our opinions are not universally held.

It would be an important step forward if we acknowledged – at least to ourselves – that in public conversations about controversial issues, affirmations and expressions of support are often powerful zero-sum moves, and when utilized en masse, can easily become instantiations of middat Sodom.

Acting on this recognition, we can take care that our conversations make space for genuinely different and surprising opinions.  Surprised often enough, we may rediscover how to argue ideas for the sake of truth rather than victory, and share experiences for the sake of mutual understanding.  As Jews, we can recreate the art of disagreeing for the sake of Heaven, and as Americans, the art of deliberative democracy.

 

Notes:

[1] Deborah Klapper and Davida Kollmar both asked, with Avraham Avinu:  If there were victims in Sodom, didn’t G-d destroy the victims and perpetrators together?  I suggest that in a deeply corrupted culture, the victims are just wannabe bullies, and there is no essential difference between them.  Bad people can be bad to each other.

[2] One Rabbinic interpretation holds that the first Paschal sacrifice was instituted as a public defiance of Egyptian lamb-worship.

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

by Rabbi Aryeh Klapper

Halakhic society, like all societies, properly has its radicals and its conservatives.  There are halakhic Avrams, ever willing to leave family and culture behind in pursuit of utopia, and halakhic Yitzchaks, who want nothing more than to keep drinking from ancestral wellsprings.

Halakhic radicals focus on the uniqueness of every moment, and seek the Divine Will as if the Torah were first given in that moment.  Halakhic conservatives focus on continuity and stability, and seek the Divine Will that emerges organically from past applications of Torah to life.

Halakhic society, like all constitutional societies, moderates the clash between radicals and conservatives by binding them to a set of procedural principles.  These principles themselves are understood and applied differently by each side.  Nonetheless, they provide sufficient common ground to enable decisionmaking, and they enable each side to accept defeat without admitting error.  At least, that is the hope; civil wars happen.

My goal in this essay, the first of an intended series, is to begin tracing the history of a phrase that lies on the fault line between halakhic radicals and halakhic conservatives.  That phrase is “לא ראינו” = “we have not seen” (alternatively “לא ראיתי” = “I have not seen”), meaning the attempt to prove halakhah via negative evidence.  It’s never been done that way, so it must be wrong to do it that way.  Does that argument have force in Halakhah?

It should be clear that properly answering this question has significant implications for contemporary conversations about women and Orthodoxy, and I expect to draw those morals explicitly in the course of this series.

Our starting point is Mishnah Zevachim 12:4 (cited partially in Eduyot 2:2).  I will make the conservative move of translating it loosely in accordance with Talmud Zevachim 104a.

.כל הקדשים שאירע בהם פסול קודם להפשטן –אין עורותיהם לכהנים; לאחר הפשטן – עורותיהם לכהנים

:אמר רבי חנינא סגן הכהנים

.מימי לא ראיתי עור יצא לבית השריפה

:אמר ר’ עקיבא

.מדבריו למדנו שהמפשיט את הבכור ונמצא טריפה – שיאותו הכהנים בעורו

:וחכמים אומרים

:אין “לא ראינו” ראיה, אלא יוצא לבית השריפה

All animal sacrifices that are discovered to be invalid

before their skinning –their skins do not go to the kohanim;

after their skinning – their skins go to the kohanim.

Said Rabbi Chanina the Executive Vice Kohen:

In all my days, I never saw a skin go out to the incinerator

[and therefore it must be that the skin goes to the kohanim even if the sacrifice is discovered to be invalid before skinning].

Said Rabbi Akiva:

From his words we have learned that if one skins a firstborn animal

(whether as a sacrifice in the Temple, or, if it was declared physically blemished by a qualified scholar, for the sake of food outside the Temple) –

that the kohanim may derive benefit from its skin.

But the Sages say:

“We have not seen” is not a proof, [1]

and the skin goes out to the incinerator.

Rabbi Chanina is conservative, and the Sages are radical.  The Halakhah follows the Sages.  This suggests that halakhists should not hesitate to argue for the necessity of unprecedented actions.

However, Talmud Pesachim 51a significantly qualifies that suggestion.

 – דברים המותרין ואחרים נהגו בהן איסור

.אי אתה רשאי להתירן בפניהן

:אמר רב חסדא

.בכותאי עסקינן

:וכולי עלמא לא?! והתניא

.רוחצין שני אחין כאחד, ואין רוחצין שני אחין בכבול

 – ומעשה ביהודה והלל בניו של רבן גמליאל שרחצו שניהם כאחד בכבול

“,ולעזה עליהן כל המדינה, אמרו: “מימינו לא ראינו כך

“;ונשמט הלל ויצא לבית החיצון, ולא רצה לומר להן “מותרין אתם

.יוצאים בקורדקיסון בשבת, ואין יוצאין בקורדקיסון בשבת בבירי

,ומעשה ביהודה והלל בניו של רבן גמליאל שיצאו בקורדקיסון בשבת בבירי

“,ולעזה עליהן המדינה, ואמרו: “מימינו לא ראינו כך

“;ושמטום ונתנום לעבדיהן, ולא רצו לומר להן “מותרין אתם

.ויושבין על ספסלי נכרים בשבת, ואינן יושבין על ספסלי נכרים בשבת בעכו

,ומעשה ברבן שמעון בן גמליאל שישב על ספסלי נכרים בשבת בעכו

“,ולעזה עליו כל המדינה, אמרו: “מימינו לא ראינו כך

“.נשמט על גבי קרקע, ולא רצה לומר להן “מותרין אתם

!?

.בני מדינת הים נמי, כיון דלא שכיחי רבנן גבייהו – ככותים דמו

Things which are permitted, but others have practiced that they are prohibited –

you may not permit them in their presence.

Rav Chisda said:

The “others” referred to here are Cutim.

Is this not true regarding everyone?!  But a beraita teaches:

Two brothers may bathe together

(without concern for the appearance of sexual impropriety) –

but not in Kabul;

A story regarding Yehudah and Hillel, sons of Rabban Gamliel,

who bathed together in Kabul,

and the whole country gossiped about them, saying: “In all our days we have never seen such”,

so Hillel left and went to the outer room,

not wishing to say to them “You are permitted to do this”.

One may go out on Shabbat wearing loose sandals

(without concern that they will fall off, and end up being carried) –

but not in Beirut.

A story regarding Yehudah and Hillel, sons of Rabban Gamliel,

who went out in Beirut on Shabbat wearing loose sandals,

and the whole country gossiped about them, saying: “In all our days we have never seen such”,

so they took them off and gave them to their servants,

not wishing to say to them “You are permitted to do this”.

One may sit on “Gentile” benches on Shabbat

(without concern for the appearance of engaging in commerce),

but not in Akko.

A story regarding Rabban Shimon ben Gamliel,

who sat on “Gentile” benches on Shabbat,

and the whole country gossiped about them, saying: “In all our days we have never seen such”,

so he got off and sat on the ground,

not wishing to say to them “You are permitted to do this”.

?!

The people in those foreign places are like Kutim, since they have little exposure to rabbis.

This passage suggests that halakhic radicalism is an option only in communities with a great deal of halakhic sophistication.  The rationale for this distinction is articulated clearly by Rabbeinu Chananel:

?מאי טעמא

 – משום דסרכי

‘,אומרין ‘הלא דבר פלוני היינו נוהגין בו איסור, והיה מותר; כן גם דבר זה מותר הוא

ויבואו להתיר האיסור

What is the reason (for the distinction between Cutim and others)?

Because they will go astray –

they will say

“We used to treat that matter as forbidden, but it was permitted; so too this thing is permitted”,

and they will end up permitting the truly forbidden.

According to this passage, even if “We have not seen” is not sufficient evidence for prohibition, it may be sufficient cause for prohibition – but only in some communities.

Which communities?  The Talmud distinguishes between communities that are regularly exposed to rabbis, and those that are not.  It seems reasonable to take rabbinic exposure as a proxy for halakhic sophistication.  In a halakhically sophisticated community, the acknowledgement of past error does not destabilize the authority of the system.  Perhaps this is because everyone sees the system as functioning through human reason and intuition, and therefore fallible.  In a halakhically unsophisticated community, the acknowledgement of one error may undo everything.  Perhaps this is because loyalty to the system is based on the belief that it is derived through some form of infallible direct access to the Divine[2].

Whether Modern Orthodoxy is a safe haven for halakhic radicalism, then, should depend on whether our community is halakhically sophisticated.  I think that by historical standards it surely is.  Do you agree?

But I also think that this is too easy a statement of the issue.  A community’s halakhic loyalty can be vulnerable for other reasons, such as attenuated belief in Torah min HaShomayim, or pressure from compelling external value systems, or serious ethical lapses on the part of its religious leadership.  All of these apply to Modern Orthodoxy, in spades.

Perhaps the more important question is whether these other causes of instability as well are best dealt with by halakhic conservatism, by reactionarily digging in and reinforcing our commitment to halakhic practice as-is.  Or are there times when one can only fight fire with fire?  Do we live in such times?

Shabbat shalom

 

Notes:

[1] Literally “We have not seen” is not a seeing

[2] which may be termed ruach hakodesh, or daas Torah, etc.

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A Second Opinion on Second Opinions

by Rabbi Aryeh Klapper

Dear Rabbi Klapper,

I am an American student spending a second consecutive “gap year” in Israel.  At the beginning of my shana aleph I called my shul rabbi about observing yom tov sheini.  He told me that his stance is to keep two days. I felt it was anti-halakhic for me to ask a rabbi in Israel who I knew would tell me one day, so I followed the opinion of my shul rabbi for all of the chagim.

This year I am increasingly resentful about keeping two days. The second day does not feel like yom tov, and because I have to find places where I can observe both days, the options for where I can go are limited. The limited options thereby impact the first day of chag as well, which means that both days suffer.

I am contemplating asking a different rabbi (whose position I don’t know) for a second opinion.  Can I?

Thank you!
G’mar chasimah tovah,
Yana Tzviyah

Dear Yana,

It sounds to me like your shul rabbi was properly careful not to pasken for you – he told you his stance, not what you must do.  Perhaps (to his great credit) he realizes that a serious gap year in Israel is an enormously maturing experience, in which young people find new mentors and role models, and that it would be appropriate for him to disclaim any ongoing authority over your religious life, even if you were willing to grant it to him.

In any case, it doesn’t sound like you asked him for a life-psak, but rather for term-limited guidance.  I don’t believe that a psak could be binding on you for a shanah bet you had not yet committed to.  Finally, as he and you are both aware, many of those who hold “two days” in principle would not apply that psak to a student spending a second consecutive year in Israel, especially if she had stayed in Israel for all the regalim.

So yes, I believe you can ask for a second opinion.

That’s the easy part.

The harder part is:  What should you do next?

You mention that you “felt it was anti-halakhic for me to ask a rabbi in Israel who I knew would tell me ‘one day’”.  The colloquial term for this is “shitah-shopping”, and I validate your sense that it lacks integrity.

On the other hand, what are your other choices?

You say that you’re considering asking a second rabbi, whose opinion you don’t yet know, for an opinion. I think you mean that you’re looking for a rabbi to ask whose opinion you don’t know, even if he wouldn’t otherwise be your first choice.  

That does seem better at first glance, but I’m not convinced that it is pointful.  If you ask for advice rather than a psak, you’re really just playing a game, as you’ll keep asking until someone gives you the “one day” answer.  And if you ask for psak, why is it religiously edifying to play halakhic roulette? Why should the answer of this particular rabbi be binding on you, if you have no particular reason to live within his subjective vision of Halakhah generally, or of yom tov or Israel/galut issues particularly? [1]

Here it may be useful for me to share an element of my halakhic autobiography.

Some years ago, an engaged SBM alum called me with “the birth control” sheilah; could he and his fiancée plan to use contraception for the opening year of marriage, so that she could finish her degree before dealing with childcare?  He reminded me that in SBM I had argued that requiring couples to ask for a heter (formal halakhic permission) made them understand the seriousness of the question better, even when they knew that a heter would be forthcoming if they asked.  But he said that it wasn’t working for him that way – it felt like he was manipulating the system by calling me, especially as he did not call me often for psak.  

His self-description still reverberates for me.  It changed my approach to the birth-control issue specifically, and made me rethink the whole question of how to deal with sheilot when both I and the shoeil are aware of a variety of contradictory answers, each held by numerous reputable poskim.  Certainly that is the case with regard to your issue – both you and I know that very great halakhists hold “two days”, “one day”, and even the misleadingly named “one and a half days” position (which seeks to avoid yom tov prohibitions while davening chol prayers etc.).    

Here a second element of halakhic autobiography is relevant.  I spent a year of YU Semikhah at the Gruss Center in Yerushalayim, when I was 22 and had just about no experience of halakhic decision-making.   I faced the same issue as you, and ended up following the “1.5 day” position out of kavod for Rav Lichtenstein zt”l’s well-known position. [2]  I was aware that Rav Amital zt”l held “1 day”, but in my family circles everyone held two days.  There was a certain transgressive thrill in visiting with my charedi American relatives at their hotel on Yom Tov Sheni in weekday clothes; I’m not sure I could have dealt with doing melakhah in front of them.

7 years later, I came back to Israel for Pesach as a newlywed.  My wife’s family was in Israel for the year, keeping one day. [3]  Deborah, my wife, very much wanted to do the same, which was also the position she had followed during her gap year.  

I was very uncomfortable changing from Rav Lichtenstein’s view, even though I had never found it intellectually convincing – indeed, Rav Lichtenstein did not present it as intellectually coherent, but rather as a gesture of respect to the great poskim who held 2 days.  But my in-laws bought me my first Bar Ilan Responsa Project CD on erev Pesach, and I very much wanted to play with my new toy.  So I had my sister-in-law (who was keeping one day) type the queries in for me on the second day.  In the end I became convinced that the one-day position was absolutely correct (see http://torahleadership.org/categories/yom_tov_sheni.pdf), and I paskened accordingly the week after we returned home, for someone else.  (My wife is still upset about this. [4])

This was perhaps the first time that I had paskened for someone else on the basis of my own interpretation of primary sources.  I think I was willing to do it because there was a clear safety net.  Even if my readings were completely mistaken, there was no doubt that the outcome was respectable.  

The price of that safety net was the risk of arrogance – wasn’t it chutzpah to believe that I had compelling evidence on an issue on which far greater minds than mine had been debating for hundreds of years?  But I thought (perhaps mistakenly) that I had genuinely new arguments, and also evidence that had been overlooked by or unavailable to many poskim.  Moreover, this evidence supported the intuition that Rav Lichtenstein had expressed, as a tradition from his rebbe the Rav, as a tradition from his grandfather Rav Chaim Brisker, that the one-day position was correct. [5]

I therefore encourage you to read and understand an article (or as many articles as you can) that lay out the technical halakhic issues well, and that enable(s) you to understand what fundamentally drives each position, or to at least understand one of the key drivers for each position.  I suggest also that you talk through the non-halakhic issues with someone (or many people) whose religious insight you trust.  If you do both of these, I think that this can be an opportunity for you, as it was for me, to dip a toe in the sea of serious psak.

I want to make clear, though, that yom tov sheni in Israel belongs to a limited class of cases, in which (at least within the Religious Zionist community) multiple great poskim legitimate each of a set of contradictory positions, and maintain their positions in full awareness of each other’s critiques.  Not every intellectually plausible halakhic argument can be used as the basis for action; in order to justify action, it also needs to be acknowledged as a basis for action by people with halakhic authority, aka poskim. [6]  Nothing I say here contradicts or is even in tension with that.  

At the same time, I am not a fan of the pure “aseh lekha rav” model, which requires everyone to pick a single halakhic authority and following them consistently.  

First, having a rav does not remove anyone’s moral and spiritual responsibility for their own decisions.  If the posek you first pick turns out to be a “bad shiddukh”, whether for subjective or objective reasons, you must find someone better for you.  (And I believe that your first posek’s decisions will not bind you, especially if you ask for hatarat nedarim.)

Second, it makes no sense to ask somebody for a binding psak unless you have a reason to prefer their judgment to yours, and to the judgment of others whom you could ask and whom you know would give a different answer.  So don’t pick a rav just because you think you have to.  That’s a bad idea with all sorts of shiddukhim.  

But in the absence of a designated rav muvhak, how can non-poskim make halakhic decisions?  I hope we’ll have occasion to discuss that soon.

Bivrakhah,

Aryeh Klapper  

Notes:

  1. Here I am leaving open two other possibilities, namely that you are choosing this posek because there is a specific reason to be bound by his or her opinion on this specific issue, or that you are more broadly shifting from your shul rabbi to this posek (or poseket) as your primary halakhic mentor/consultant.  Each of these possibilities deserves separate extended treatment.
  2. whom I saw myself as “in the presence of”, and therefore felt unable to decide for myself on (informal) moreh halakhah bifnei rabo (issuing a halakhic ruling in the presence of one’s primary teacher) grounds.
  3. I believe this was the pesak they had received from Rav Simchah Kuk,
  4. I’m leaving aside the question of why she felt bound to follow whatever psak I followed on this issue.
  5. As I understand it, the Soloveitchiks and Rav Lichtenstein followed the 1.5 day position because they thought it would be arrogance to decide for the one day position on the basis of intuition alone.
  6. Obviously this begs the question of how such authority is achieved, maintained, and recognized.

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Leadership in a Time of Possibly Radical Change

by Rabbi Aryeh Klapper

Endings are hard, and I don’t believe that the collective wisdom of humanity will ever determine whether gradual or abrupt endings are easier to bear.  Jewish tradition will not help either.  The Rabbis tell us that illness entered the world when Yaakov prayed for a transition toward death.  But Mosheh Rabbeinu dies in defiant full possession of his faculties, “his eye undimmed and his moisture not fled”.  

Transitions are also hard.  Mosheh Rabbeinu was a political leader, and he and G-d seem to agree on the need for a political transition.  The Rabbis tell us that Mosheh was the sun and Yehoshua the moon, so Yehoshua needed Mosheh to shine on him.  The problem is that Yehoshua must become visible while Mosheh is still shining, and then remain visible when Mosheh’s radiance has ceased.  One can play with the metaphor and suggest that for Mosheh, death means only sinking behind the horizon, but this solution seems cute rather than compelling.

Mosheh himself seems to tell the Jews – against the narrator’s later assertion – that he has become aged.  “I am aged 120 years as of today; I will no longer be able to go out and in”, apparently meaning that he can no longer lead the Jews in battle, and thus must be replaced.  But this is an unconvincing argument, for two reasons:

First, Yehoshua led the Jews in their very first battle, with Amalek, while Mosheh prayed behind the scene, so why can’t that be the ongoing practice?  

Second, it seems likely that Mosheh’s vigorous delivery of this speech would put the lie to his claim (just as no one reading his eloquent initial attempt to refuse G-d’s initial mission could believe that he was genuinely כבד לשון= heavy-tongued.)

On Sotah 13b, Rav Shmuel bar Nachmeni in the name of Rabbi Yonatan suggests that Mosheh here is referring to מלחמתה של תורה, the battles of the Beit Midrash.  “to go out and come in – regarding Torah matters”.  Why could he no longer lead these battles?  נסתתמו ממנו שערי חכמה”  – the gates of wisdom were closed off from him”.

Rabbi Yonatan did not mean to suggest that Mosheh lost his overall intellectual acuity, or that he forgot his Torah knowledge.  Rather, as the late Lubavitcher Rebbe noted, Rabbi Yonatan is walking a delicate line.  He needs Mosheh to remain the sun, and yet must also make clear that the sun is setting.  So “gates of wisdom” must refer to a specific and bounded disability.

The problem (also noted by the late Rebbe) is that the text of Rabbi Yonatan’s statement is itself unstable.  Shitah Mekubetzet reports that other manuscripts had מסורת חכמה = the tradition of wisdom.  Manuscripts of the Ein Yaakov had מעינות החכמה = the springs of Wisdom.  Rashi to our verse has מסורות ומעינות החכמה = the traditions and springs of Wisdom.  

It seems plausible that each of these different versions reflects a different approach to the delicate line Rabbi Yonatan seeks to walk.  What capacities can a Torah leader lose that will leave them radiant, and yet point to the need for replacement, and allow for successors to become visible?

The text as we have it – שערי חכמה – suggests that a leader can lose their flexibility, their capacity to learn new things.  Having myself sat willingly in the shiurim of at least two great scholars at that point in their careers, I find this an eminently reasonable suggestion.  There was no question that they were the sun, and we students at best aspiring moons, and yet it was also clear that they could no longer make vital practical decisions for a community.  Flexibility is a necessity.  Effective generals do not always fight the last war, and effective poskim (halakhic decisors) do not always pasken the last sheilah.

The version reading “springs” makes a somewhat stronger claim.  It is not enough to be able to learn new things – you have to be able to adjust previous conclusions in light of new evidence.  A leader who learns, but can no longer be creative, will just end up fighting one of several previous wars.  Perhaps there is nothing objectively new under the sun, but no individual life is ever broad enough to preclude subjectively new experiences.

But it is very challenging to imagine Mosheh Rabbeinu, or lehavdil any great scholar, maintaining their identity when they have lost access to their traditions of wisdom.  For this reason among others the Rebbe zt”l suggested narrowing this term to traditions that have no point of origin in the text of chumash, the halakhot leMosheh miSinai that G-d for His own inscrutable reasons whispered to Mosheh at Sinai.  Without access to those traditions, Moshehh remained great but was no longer irreplaceable.  

Rashi, however, was satisfied with none of these.  He believes that Mosheh had to lose both the traditions and the spring – both the past and the future – if Yehoshua were to succeed and thrive.

Why?  Perhaps Rashi, better than any other version, truly does justice to Rabbi Yonatan’s task.  Mosheh had to lose access to the past, or else Yehoshua could not become visible.  But he also had to lose access to the future, so that Yehoshua could become a sun in his own right.  There had to be a recognizable limit to the questions Mosheh could answer, so that Yehoshua could be recognized as a contributor and not merely as a sustainer.

The truth is that just about every halakhic decisor over time ossifies in both these ways.  Initial intuitions become hardened into formal concepts and rulings, and new cases are more and more easily categorized as minor variants on established precedents.  All this has salutary impact with regard to predictability and accuracy, which are virtues of great significance, especially in stable communities and environments.  But Bnei Yisroel were about to experience an enormous discontinuity as they crossed into Israel.

The problem is that in just about every generation there are those who see radical discontinuities, and those who see fundamental stability.  To take examples from our own day: Is postmodernism a dead-end fad or a seismic philosophic shift?  Does/will the routine participation of women fundamentally change the nature of halakhic discourse?  Do contemporary roshei yeshiva (be they from RIETS, YCT, or Bnei Brak) consistently relate to their lay communities differently than did the leading halakhic decisors of past decades and centuries?

I hope it is clear that the question of whether these changes are radical, or not, does not settle the question of whether they are positive or negative.  But it nonetheless matters a great deal how we answer that question.  As a simple example:  If postmodernism is a noxious but passing cloud, we should not make painful sacrifices to combat it.  If it is a healthy but passing cloud, we should not build our theologies on it.  But if it is healthy and enduring, or noxious and enduring, then such sacrifices and constructions can be justified.  

Perhaps we can argue further that in every generation there are radical discontinuities, but there are also exaggerated claims of discontinuity.  

I am tempted to assimilate this suggestion to the classic rabbinic categories of repentance.  Radical discontinuities, like repentance out of love, turn past vices into virtues, while minor discontinuities, like repentance out of fear, at most allow us to correct and overcome those vices.  

But few things are more dangerous than a mistaken claim that a past vice is newly virtuous.

This Dvar Torah is a version of a Dvar Torah published in 2015.

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