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May a Chazan Lead High Holiday Services from a Wheelchair? Part 4

by Rabbi Aryeh Klapper

Dear Rabbi:

Mr. Toviah Goodman has davened 1st day Rosh Hashannah Shacharit and Yom Kippur Neilah for our shul since its founding in 1993.  However, he suffered several health setbacks this year, and now is in a wheelchair full time.  Should he continue to serve as shaliach tzibbur, or should we replace him with someone who is able to stand?

Sincerely,

The Members of the Ritual Committee, Congregation Mevakshei Psak

ANSWER PART 4

We can sum up our pre-20th century precedents as follows:

Maharam and Maharshal prefer blemished shluchei tzibbur.

Mahari Brona and Chavot Yair prefer shluchei tzibbur who are unblemished and physically whole.

Sefer Chassidim is indifferent to the question of blemishes.  However, Sefer Chasidim sees disability as an issue if it prevents a shaliach tzibbur from fulfilling the prayer obligation in the manner incumbent upon, or perhaps even preferential for, people without disabilities, lest they learn from him.

In the 20th century, the question of a shaliach tzibbur in a wheelchair was addressed, whether analytically, by reporting anecdotes, or by reporting responses they received, by

  1. Rabbi Ezra Batzri in Techumin vol. 4
  2. Rabbi Shmuel Toledano in Tzohar vol. 3 (5758), and again in Tzohar vol. 10
  3. Rabbi Yitzchak Zilberstein in Chashukei Chemed to Berakhot 30a
  4. Rabbi Hillel Herzl Yitzchak in Beit Hillel 35 (5768)
  5. Rabbi Yitzchak Isaac Leibes in Responsa Beit Avi OC3:38
  6. Rabbi Pinchas Toledano in Responsa Brit Shalom 3:7
  7. Rabbi Mordekhai Tzvi HaLevi Tziyyon in שו”ת השואל #8

1. R. Batzri concludes forcefully that there is no halakhic issue so long as the community does not object, and the community ought not to object.

2. R. Shmuel Toledano in Tzohar vol. 3 (5758) concludes that there is no issue ad hoc or when the person has a chiyuv.  For Yamim Noraim, the same is true if it is clear that the congregation forgives its dignity in this regard.  (However, he discourages appointing an amputee lekhatchilah for the Yamim Noraim or regularly).

He reports that R. Wozner, author of Responsa Shevet Levi, told him that a chazan who cannot stand can be appointed for the Yamim Noraim if he is best for the tzibbur’s kavvanah, and that he might remember R. Meir Shapiro, founder of Yeshivat Chakhmei Lublin, sitting while being shaliach tzibbur for the Yamim Noraim.

In Tzohar vol. 10, R. Toledano revisits the issue and provides more fascinating anecdotes:  

a) Rabbi Moshe Shaul Klein reported that the Imrei Chayyim (Gerrer Rebbe) served as shaliach tzibbur on the Yamim Noraim while seated.

b) R. Chaim Kanievski distinguishes between ad hoc and regular service.  The logic seems to be that the shaliach tzibbur standing is a matter of the dignity of the congregation, and the congregations is permitted to forgive its dignity only on an ad hoc basis.

3. R. Zilberstein reports that R. Elyashiv preferred a shalaich tzibbur who could stand even if that meant a decline in piety or vocal ability.  He assumes that the shaliach tzibbur standing is not only an issue of the dignity of the congregation, but a fundamental requirement of prayer.

4. In Beit Hillel 35 (5768), Rabbi Hillel Herzl Yitzchak notes that one might argue that when the Chazan is using a wheelchair, everyone will know that he is unable to stand, and there is no risk that people will learn from him to sit.  This would remove the proof from Sefer Chassidim.  He nonetheless adopts the positions of Rabbis Elyashiv and Kanievski.

5. R. Leibes argued that in America, where in his perception standards had slipped, it is particularly important that the shaliach tzibbur stand.  He also finds Chavot Yair’s arguments compelling. Unfortunately, the specific question he is responding to is elided on Hebrewbooks.org.  It seems that he believed that a shliach tzibbur who cannot stand should not be allowed to serve on the Yamim Noraim, even if he has already been appointed and will have to be bought off financially.

6. R. Pinchas Toledano in Responsa Brit Shalom 3:7, assumes the issue is purely one of the dignity of the congregation, and concludes that a chazan whom the community desires can therefore serve, as the community may forgive its honor.

7. R. Tziyyon in Responsa HaShoeil #8 cites a wealth of contemporary poskim, of varying stature, as follows:

a) R. Aviner strongly supported Maharam.

b) R. Nebenzahl also ruled that there was no basis for objecting.

c) The book Tefilah Kehilkhatah rules like Maharam in principle.  However, for the Yamim Noraim it prefers to follow Chavot Yair. However, if there would be a loss of human dignity in excluding someone from serving as shaliach tzibbur, he goes back to Maharam.

d) R. Shammai Gross (following Magen Avrohom) thought that one should not follow Maharam lekhatchilah

e) R. Elchanan Prince distinguishes between ad hoc and fixed appointment

f) R. Eliyahu Schlesinger was opposed

g) R. Herschel Schachter reports that Rav S.Z. Auerbach ruled the same way as R. Zilberstein’s report of R. Elyashiv, and thus Rav Shimon Schwab ceased being shaliach tzibbur for Neilah in Breuer’s

h) R. Tziyyon cites Rav Ovadiah Yosef as opposed.  (However, I think this report is an error, and Rav Ovadiah was referring only to a shaliach tzibbur for keriat haTorah.)

i) R. Tziyyon cites the newsletter Vayishma Moshe, however, as reporting some of these same poskim very differently.  For example, it cites Rav S. Z. Auerbach as saying that there is no issue if the community is agreeable, whereas Rav Schachter’s report indicated a substantive opposition.  It also quotes R. Chaim Wozner, son of the author of Shevet Levi, as saying that he could not imagine any Jew raising the issue against someone who wished to be shaliach tzibbur for a yahrtzeit.

Where does all this leave us?  

Major contemporary poskim apparently reach conclusions ranging from unqualified paskening like Maharam to a hard lekhatchilah preference for chazanim who can stand, even if they are less pious or musical.  However, none of them has given the issue a sustained treatment in print, and the secondhand or anecdotal reports are often contradictory even regarding the same posek.  

From my perspective, the two figures here whose opinions might significantly change the landscape of psak are R. S. Z. Auerbach and R. Yosef.  However, the former’s opinion is reported in contradictory ways, and the report of the latter I think reflects a misunderstanding.  So there is no controlling contemporary authority.

One option is to say that there is no real basis for adjudication here.  Once all the formal arguments have been made, and all positions have survived relatively and roughly equally intact, the issue can and should be left to the lay community to decide.  They may choose to ask a halakhic authority to decide for them anyway, either because leaving it to the congregation would likely lead to intracommunal dissension, or because they resonate with that halakhic authority’s religious intuition.  But that is their choice, and the decision would not be made on what Modern Orthodoxy generally recognizes as formal halakhic grounds.

A second approach is to evaluate the textual evidence ourselves, without regard to the weight of previous authorities.  But in this case, we have already concluded that there is essentially no primary textual evidence.     

A third approach is to frame the issue in terms of broader halakhic issues and values.  For example, three kinds of dignity, or kavod, are mentioned in the responses above.

  1. Kavod hamitzvah – the dignity of the commandment.  
  2. Kavod hatzibbur – the dignity of the congregation
  3. Kavod haberiyot – the dignity of the individual human being

Key questions include:

Is there a halakhic hierarchy among these types of kavod?  How do we evaluate their strength, and relative strength, regarding specific issues and cases?  

Modern Orthodoxy often frames itself as strongly committed to the value of “inclusion”.  Is this just another way of saying “kavod haberityot”, or does it have different connotations and implications?  How does “inclusion” play out halakhically?

A related but not identical approach is to frame the issue in terms of the experiences of the people involved.  For example: Maharam prefers a disabled shaliach tzibbur since “G-d’s formal table-service is broken vessels”.  Would disabled people wish to be shluchei tzibbur if that requires them to perceive themselves as “broken vessels”?

Stay tuned next week for the exciting conclusion of Rabbi Klapper’s responsum!

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May a Chazan Lead High Holidays Services from a Wheelchair? Part 3

by Rabbi Aryeh Klapper

Dear Rabbi:

Mr. Toviah Goodman has davened 1st day Rosh Hashannah Shacharit and Yom Kippur Neilah for our shul since its founding in 1993.  However, he suffered several health setbacks this year, and now is in a wheelchair full time.  Should he continue to serve as shaliach tzibbur, or should we replace him with someone who is able to stand?

Sincerely,

The Members of the Ritual Committee, Congregation Mevakshei Psak

TESHUVAH PART 3 – METHODOLOGICAL EXCURSUS

Halakhic data can be arranged synchronically or diachronically. Synchronic means presenting all positions as if they exist at the same time; diachronic means showing how positions originated, were eliminated, developed or changed over time.

A certain element of diachronicity is ineluctable in current Orthodox halakhah. We have a structure of authority that is popularly understood to give more authority to a precedent the further back it goes. This is not quite true; what is generally true is that halakhah gives more formal authority to texts from an earlier era than texts from a later era. Roughly speaking, there are four eras: Tannaim, Amoraim, Rishonim, and Acharonim.

Halakhah actually has a counter-principle known as halakhah k’batrai, meaning that the law follows the latest authority within every era in a dispute. However, this principle does not seem to operate well in the era of the Rishonim, which from a halakhic perspective ended more with a whimper than a bang. The extent to which it will operate regarding the period of the Acharonim is in question; we’d first have to settle whether that era has ended.

All these principles functioned on the presumption that the halakhic world could reasonably be understood as revolving on a single axis. Thus we speak of “the Rishonim” and “Acharonim” as if the cultural progression of medieval Judaism in Yemen and France were perfectly coordinated. Of course, this was not the case. But each culture could imagine that it was. When cultures met, either one attained dominance, or they negotiated a rough compromise, so that the presumption could be plausibly maintained.

Why should legal authority be affected by who comes first? The notion of descending authority, in Hebrew yeridat hadorot (which Rabbi Norman Lamm brilliantly termed “the degeneration theory”), is rooted in the sense that Torah still emerges out of the experience of Sinai, which grows more and more attenuated over time. The notion of ascending authority uses the imagery of nanas al gabei anak, the dwarf standing on a giant’s shoulders. Since we believe in the possibility of Redemption, progress must be possible. How can progress be possible, if we are moving further away from Sinai? The answer is that our contributions never start from scratch; we build on the advances of our greater predecessors

Standing on the intellectual shoulders of our predecessors requires us to be aware of their work. Here is where modernity and what we might call the “Standard Model of Halakhah” can come into conflict. A combination of astounding wealth and the growth of information technology means that the contemporary talmid chakham has access to a broad array of past texts and halakhic cultures that did not make it into earlier cuts of the tradition, or at least of his or her tradition.

Moreover, it is much easier than before to make a convincing argument that a later source was unaware of an earlier source, or had access only to corrupted versions of that source.

Why does this matter?

Halakhah has a category called toeh bidvar Mishnah, which roughly means that a halakhic ruling can be declared null and void if its author demonstrably was unaware of a relevant precedent that, had he or she known it, would or should have changed the ruling. This demonstration is difficult to accomplish directly; how can you know what you yourself would have thought, let alone what someone else would have thought? So we adopt essentially a “reasonable halakhist” standard, namely that if in our opinion a reasonable halakhist would or should certainly have changed his or her mind, then the ruling can be declared null and void.

Now we have access to much more material of the Rishonim than any of the later Rishonim or early Acharonim did. By the formal rules of halakhah as we understand them today, this means that halakhah k’batrai does not apply; instead, if an acharon decides an issue differently than it was previously decided by a rishon, but was unaware of that rishon’s decision – the acharon’s decision is null and void, and certainly we should pasken like the rishon rather than the acharon.

All this brings us back to our specific question of the shaliach tzibbur who uses a wheelchair.

In the previous two sections of this teshuvah, we studied three strands of the tradition.

The 13th century R. Meir of Rothenburg (Maharam) probably ruled that the disabled are ideal chazzanim. We noted that his responsum exists in at least two versions, only one of which explicitly addresses disability, but thought that the version which does so is likely correct. This version, printed and heartily endorsed by Maharshal in the 16th century, is the one cited by all subsequent authorities.

The 15th century R. Israel (Mahari) of Brona conceded that there was no halakhah barring a disabled shaliach tzibbur. He nonetheless opposes appointing a disabled man as the official shaliach tzibbur, rather than to lead services ad hoc, and, all things being equal, would rather have services led by a man who has none of the physical conditions or characteristics that disqualify a kohen from serving at sacrifices in the Temple. He cites as precedent the 13th century Or Zarua, without a specific source; we were not convinced that Or Zatua took any relevant position.

R. Israel seems wholly unaware of Maharam. We can plausibly conjecture that he would have changed his mind had he known of Maharam. So on a halakhic level, we are entitled to rule like Maharam even though a later rishon ruled otherwise.

It is also true that Maharshal was unaware of Mahari Brona. However, he would likely have made the same calculation we did, and thus discount him.

The 17th century Chavot Yair agrees with Mahari Brona that there is no halakhic issue, and furthermore rejects any analogy to the Temple service. He comes up with a host of independent reasons, however, for reaching Mahari Brona’s conclusion.

Chavot Yair makes a reference to a prooftext cited by Maharam, and soundly rejects its relevance, but he nowhere indicates awareness that Maharam’s authority was relevant to the issue. Can we presume that he was unaware of Maharam’s ruling, and that he would have changed his mind had he been aware of it? It seems to me at least as likely that he would have developed a compromise similar to that of Mahari Brona.

In the 20th century, Rabbi Yitzchak Zilberstein (Chashukei Chemed to Berakhot 39a) casually introduced an early 13th century (pre-Maharam) source that had either been overlooked or been unavailable to all previous decisors. Sefer Chasidim (Margoliot edition) #5756 reads as follows:

אחד זקן היה רגיל להתפלל ביום הכפורים

שנה אחת לא היה חזק לעמוד (ולהתפלל בעמידה)

אמרו מקצתם

כיון שאין לנו כיוצא בו מוטב להתפלל בישיבה,

אמרו הזקנים

כיון שאינו יכול לעמוד – יתפלל אחר אף על פי שאינו כל כך הגון

פן ילמדו ממנו אחרים ויתפללו מיושב,

ואשר כתוב (ש”ב ז’ י”ח) וישב (דוד) לפני ה’

ישב לבו בתפלה

ואמרו במכילתין ויקחו אבן וישימו תחתיו וישב עליה (שמות י”ז י”ב) –

ויקחו אבן אלו האבות

וישימו תחתיו אלו מעשה האבות

וישב עליה אלו מעשה האמהות

 

הרי לא ישב ממש.

An elderly man regularly served as shaliach tzibbur on Yom haKippurim

One year, he was not strong enough to stand (throughout the prayer)

Some of the (?congregants?) said:

Since we have no one equal to him, it is best that he lead services while seated.

The elders said:

Since he cannot stand – let another lead, even though he is not as appropriate

lest others learn from him to pray while seated

As for 2 Samuel 17:12, He yashav=sat before Hashem –

Translate instead he yashav-settled his heart in prayer.

and Mekhilta to Shemot 17:12 They took a rock and they placed it under him and he sat on it

They took a rock – meaning the forefathers;

they placed it under him these are the deeds of the forefathers

he sat on it- these are the deeds of the foremothers

so (Moshe) never actually sat.

If one takes Sefer Chasidim as a halakhic source, must we take it as halakhically dispositive? Note that Sefer Chasidim is not addressing the question of the nature of the disabled body; he is concerned with the actual inability to stand. Perhaps Maharam would concede in such a case; we cannot prove otherwise, as Maharam’s case so far as we know involved a chazzan whose disability (an arm injury?) had no effect on any of the ritual of prayer. Very likely Mahari Brona and Chavot Yair would agree that this specific form of disability would pose a formal halakhic difficulty.

This week’s section has treated halakhah as if it were purely a formal game – authority is determined by rules, and whoever has more authority, wins. But that is far from an accurate portrait of halakhah. What about our own intellectual evaluation of the evidence provided in precedents? What about values? Moadim lesimchah and please look for Part 4 next week.

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May a Chazan Lead High Holidays Services from a Wheelchair? Part Two

by Rabbi Aryeh Klapper

Last week we learned that:

Maharam probably prefers a disabled shaliach tzibbur to one who had not suffered any physical ravages.  He states explicitly that mumim (any from a list of physical blemishes) invalidate kohanim and not shluchei tzibbur.

Maharshal strongly endorses the version of Maharshal’s position that prefers a disabled shaliach tzibbur.   Mahari Brona opposes appointing a person with a mum to a formal communal position as shaliach tzibbur, but he permits having such a person serve as an ad hoc prayer leader, or if there is no alternative.  Mahari Brona states that he saw this position in Or Zarua, but cannot remember where.  Our analysis of the most likely reference in Or Zarua concluded that it was probably irrelevant to the question of mumim or disability.

A few other points before we move on from Mahari Brona.

1) Maharam’s case involved a physical disability that was also a formal legal mum.  Mahari Brona only discusses formal mumim; disability per se is not mentioned, and it is possible that he considered it irrelevant.

2) Mahari Brona takes it as given that a blind man can serve as an ad hoc chazan.  He does not cite a source.  Blindness is a formal mum.  That could have ended the discussion of mumim.   However, Mahari Brona assumes that one can distinguish between “official” and ad hoc shluchei tzibbur, and that blind people can only serve ad hoc.

What is his basis for this distinction?

Or Zarua cites Rav Yehudai Gaon, from Sefer Miktzo’ot, as follows:

והורה רב יודאי גאון

דשליח צבור סומא כשר הוא

ואין מסלקין אותו כל זמן שמעשיו הגונים

Rav Yudai Gaon ruled 

that a blind shaliach tzibbur is valid

and one must not remove him so long as his actions are proper.

The phrase “one must not remove him” can be read as only post facto, meaning that he cannot be appointed to such a position.

However, Or Zarua also quotes a geonic responsum, as follows:

ובתשובות כתב

ושליח צבור סומא או זקן שכהו עיניו מרוב זקנה

והם יודעים להתפלל כראוי

ושאלתם

מהו לירד לפני התיבה להוציא את הרבים ידי חובתן

כך ראינו

שיורדין לפני התיבה ומוציאין את הרבים ידי חובתן . . .

But in the response he writes

A shaliach tzibbur who is blind, or one so elderly that his eyes have dimmed from great age, 

but they know how to daven as is fitting,

and you asked

whether they can go down before the ark in order to fulfill the masses’ obligation for them –

Here is how we saw it –

They may go down before the ark and fulfill the masses’ obligation for them . . .

This responsum seems to support blind shluchei tzibbur without qualification, and suggests that we should not read the official/ad hoc distinction into Rav Yehudai either.  Indeed, Rav Yehudai Gaon can be read as making the opposite point, that not only is a blind shaliach tzibbur valid, he is every bit as good as a seeing man, and therefore should not be replaced for any reason other than impropriety.

The next major halakhist to address our issue from first principles is Chavot Yair.  His responsum is very tricky to read, and I have seen scholars completely reverse its meaning!  So please check my translation-with-commentary as carefully as you can, and see whether you agree that I have it right.

שו”ת חוות יאיר סימן קעו

שאלה

תמהת על אשר שמעת שהרע בעיני שהעבירו שם ק”ק פלוני סומא בא’ מעיניו בימים הנוראי’

Question:

You were astonished at hearing that I was displeased that Congregation X put forward a man blind in one eye as shaliach tzibbur on the High Holidays.

מימי לא אמרתי דבר וחזרתי לאחורי

(Answer)

In all my days I have never said anything and then turned around and denied it 

(so if I had been displeased, I would certainly admit it)

וידעתי בני ידעתי מ”ש רז”ל שהקב”ה משתמש בכלים שבורים –

I know full well that which Chazal say, that “The Holy Blessed One prefers to use broken vessels (meaning men with broken hearts, and one might infer that He also prefers men with missing eyes)

רק דמשם אין ראיה,

דההיא לא מקרי מום ע”פ האמת, וכל לב נשבר שפיר מקרי צדיק תמים,

מש”כ מום בגוף י”ל כל מום רע

But there is no proof from there

Since (a broken heart) is not truly called a mum, and every brokenhearted man can properly be called “unblemishedly righteous” 

unlike physical blemishes, which are called “every bad mum”.

ומימי לא עלה על לבי דפסול משום דתפלה במקום קרבן וכהן העובד צריך שיהיה בלי מום

כמו שעלה על דעתך ואמרת

(Nonetheless) in all my days, I never considered declaring (someone with a physical mum invalid as a shaliach tzibbur) on the ground that prayer is in place of sacrifice, and a kohen who serves (at a sacrifice) must be without any mum, (and the shaliach tzibbur is parallel to the kohen),

as you considered and said,

דא”כ למה לא חשיב ליה במעלות ומידות דש”ץ פ”ב דתענית

אף דזה ודאי ל”ק

דשם מיירי בסתם אדם בלתי חסרון בגוף

because if that were so, why is mumlessness not on the list of the elevated character and traits of the proper shaliach tzibbur in the second chapter of Taanit (16a)?!

Although this is certainly not a dispositive question, 

since that list is dealing with a standard person, who has no physical lack (that would count as a mum).

מ”מ לא מחשבותיך מחשבתי דברור דאין לדמותו לכהן בכה”ג,

דא”כ כל אדם נמי,

כמ”ש הטור סי’ צ”ח,

ועוד שהרי כתב הרא”ש הביאו הטור סי’ נ”ג

שאין להתרעם על חזן שהוא ממשפחה בזויה שטוב לקרב מזרע רחוקים ע”ש,

וכה”ג בכהן העובד לא, שהרי אמרו רז”ל אין בודקין ממזבח ולמעלה

ואפילו גר כשר להיות ש”ץ

Nonetheless your thoughts are not my thoughts, 

as it is clear that a shaliach tzibbur should not be compared to a kohen in that fashion, 

since if that were so, every individual person also (would have to be mumless in order to pray)

as Tur OC 98 writes (a set of rules for individual prayer built off the analogy to sacrifices)!

Additionally, because Rosh wrote, and he was cited by Tur OC 53, 

that there is no ground for objecting to a chazzan from a despised family, as it is good to bring near the descendants of the distant – see there,

but this is not so regarding a kohen doing the Temple service, as Chazal said: “There is no need to check lineage past someone who served at the Altar”

and even a convert (who has no family lineage) is valid to be a shaliach tzibbur (whereas obviously converts can’t be kohanim).

ועם כל זה קראתי תגר כמו שכתבת

But despite all this I did object vociferously (to the one-eyed chazan), as you wrote,

כי נ”ל דבתרווייהו איכא למיחש מיהא היכא דאיכא אחר הגון וראוי כיוצא בזה

because it seems to me that one should nonetheless be concerned regarding both (a chazan with a mum and a chazan from a family with lineage issues) where there is another who is similarly proper and fit,

כי ידוע שרמ”ח איברים הם כסא ודמות לרמ”ח אורות עליונים ורמ”ח איברים רוחניים שבנשמה

וא”כ כל כה”ג הרי הכסא פגום.

because it is known that the 248 organs/limbs are the throne and image for 248 Upper Lights and 248 spiritual organs/limbs that are in the soul

and if so, in any case like (a one-eyed chazzan), the throne is damaged

והפילוסופים כתבו בהפקד חוש מה יפקד מושכל מה, ועי’ עקידה פ’ שמות שער ל”ה דף צ”ז ע”ב

and (also) the philosophers wrote that where a sense goes dormant, some element of understanding goes dormant with it – see Akeidat Yitzchak Shemot Gate 35 p. 97b.

וכיוצא בזה כתבתי במקום אחר שאין ליתן לכתחלה לברך ב”המ לקטוע אצבע ואפילו למוכה שחין

דלא עדיף זה מידיו מזוהמות דצריך להעביר הזוהמא כבסי’ קכ”א

ה”נ אפשר באחר

I wrote similarly elsewhere that one should preferably not honor someone missing a finger with leading birkat hamazon, nor even someone with boils. 

as the latter is not better than someone with filthy hands, who has to remove the filth, as in SA OC 181 – 

so here too it is possible to have someone else do it

מלבד מה שיש בזה העדר כבוד למצוה

ואפילו בנגלה הקריבהו נא לפחתך

All this aside from there being in this a lack of honor for the mitzvah

and even in the exoteric framework, “Bring him then to your baron” (Malachi 1:8 criticizes the Jews for bringing blind, lame, and sick animal sacrificeswhen they would not give such to a human overlord) 

אף כי ע”פ הנסתר יש תילי תילי’ סודות נסתרים באברי הגוף גם בפרקי הידים

אפס קצתם תמצא בהקדמה בן מאה שנה

ויש כאן חסרון שפע בכוס של ברכה העליון

יאיר חיים בכרך

and certainly according to the esoteric there are heaps and heaps of secrets hidden in the limbs of the body and even the joints of the hands

you will find but a few of them if you prepare for one hundred years

so there is a diminution in the overflow of the Cup of the Upper Blessing

Yair Chaim Bachrach 

Chavot Yair rejects the application of Maharam’s argument to physical blemishes (perhaps without being aware of Maharam).  His rejection is perhaps based on Zohar, which emphasizes that G-d’s use of broken vessels in no way contradicts the need for kohanim to be without mumim.

Chavot Yair equally rejects giving Mahari Brona’s concern about the analogy to kohanim any halakhic weight.  He makes the compelling argument that in terms of the analogy to sacrifice, there is no difference between private prayer and that of the shaliach tzibbur.

Nonetheless, Chavot Yair rules that one should prefer physically whole chazanim, to the point of making a public fuss about the issue on Yom Kippur.  He does this on the basis of a broad set of arguments.

The first is that kabbalah takes the body as a metaphor very seriously.

The second is that a rabbinic philosopher claimed that the loss of a sense must lead to a fundamental loss of understanding.

The third is that the analogy to a human baron holds, and it diminishes the honor of the mitzvah to have a person with a mum leading it.

The question for us is how much weight to give Chavot Yair.

1) We might say that he has less authority than Maharam, and Maharshal.  Perhaps, as he does not cite them explicitly (although he may implicitly), we can contend that he was unaware of them, and would have conceded had he become aware.

2) We might say that he couches his position in nonhalakhic terms, even though he clearly tried to mandate it in practice.

3) We might give less (or more) weight to arguments based on kabbalah

4) We might say that we do not accept the truth of the position he cites from “the philosophers”

5) We might say that social norms have changed, and in our time there would be no hesitation about sending a physically blemished person to lead a delegation to the local baron.  Or we might argue that the analogy is off – in all societies delegations are often headed by elders, even if they are bringing the choicest of animal specimens as gifts or sacrifices.

Stay tuned for Part 3 soon!  Shabbat shalom and gmar chatimah tovah.

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May a Chazan Lead High Holiday Services from a Wheelchair? Part 1

by Rabbi Aryeh Klapper

Dear Rabbi:

Mr. Toviah Goodman has davened 1st day Rosh Hashannah Shacharit and Yom Kippur Neilah for our shul since its founding in 1993.  However, he suffered several health setbacks this year, and now is in a wheelchair full time.  Should he continue to serve as shaliach tzibbur, or should we replace him with someone who is able to stand?

Sincerely,

The Members of the Ritual Committee, Congregation Mevakshei Psak

Dear Ritual Committee Members,

I am answering you in writing and at length because of the broad issues involved here.  I encourage you to share my answer with your general membership.

PART 1

The question of whether physical disability might be a disqualification for the role of shaliach tzibbur (communal prayer leader) was probably first raised by an anonymous questioner to Maharam (R. Meir of Rothenburg) in the 13th century).  Here is the question, with R. Meir’s response, as quoted from manuscript by Maharshal (R. Shlomo Luria) in the 16th century.

וששאלת

אם אדם שפגעה בו מדת הדין

שנפלו לו זרועותיו

ראוי להיות ש”ץ?

פשיטא דראוי וראוי הוא,

ואדרבה מצוה מן המובחר,

דמלך מלכי המלכים חפץ להשתמש בכלים שבורים,

ולא כדרך שרים בשר ודם,

שנאמר (תהלים נ”א י”ט) לב נשבר וג’,

דאין נפסל במומין אלא כהנים עכ”ל

That which you asked:

Whether a person who has been injured by the Attribute of Justice

whose arms fell

is fitting to be a shaliach tzibbur?

It is obvious that he is more than fitting

and just the opposite – he is an ideal candidate

since the Ultimate King wants to use broken vessels,

unlike the practice of flesh-and-blood officials

as Psalms 51:19 says:

A heart that is shattered and crushed – G-d, You will not despise.

because no one but kohanim are invalidated by mumim (physical blemishes)

Maharshal heartily endorses Maharam’s response.

ואני אבוא אחריו למלא את דבריו,

דהא אפי’ לוים שעבודתן בשיר בשילה ובית עולמים,

אפ”ה אין נפסלין אלא בקול, כמ”ש לעיל,

כ”ש ש”ץ שלנו.

I will follow in his wake to add the final touches to his words

that even Levites, whose Service was by singing (in the Tabernacle) at Shiloh and in the Temple

nonetheless were only invalidated because of vocal issues, as I wrote above

all the more so our shluchei tzibbur.

Two highly clever elements of this brief comment deserve explication.

1) Maharam’s Biblical prooftext was from Psalms 51, which is introduced as David’s response to the Prophet Natan’s criticism of him for first sleeping with Batsheva.  The opening sentence of Maharshal’s sequel is a reference to 1Kings 1:14

וַאֲנִי֙ אָב֣וֹא אַחֲרַ֔יִךְ וּמִלֵּאתִ֖י אֶת־דְּבָרָֽיִךְ

I will follow in your wake to add the final touch to your words

These are the words of Natan to Batsheva, concluding his plan to have her son Shlomoh become King David’s successor.  All’s well that ends well.

2)  Maharam simply asserted that prayer leaders are not subject to the same disqualifications as priests; but why not?  Isn’t prayer in place of sacrifice, as “our lips compensate for bulls”?  Maharshal argues that the shaliach tzibbur does not play the same role as the kohen.  He does not actually bring the sacrifice; he merely provides the atmospheric music, as did the Levites.

There are two obvious weaknesses with Maharam’s argument.  The first is that David is clearly not speaking of a physically shattered heart; he is using a metaphor, and the midrash is also using a rhetorical sleight of hand in making the comparison to flesh-and-blood kings.  The second is that G-d does require the kohanim who perform His physical Temple service to be mumless, rather than preferring them to be physically broken vessels.  Maharshal’s clever attempt to finesse the point is not very convincing, as the shaliach tzibbur is actually the one praying on everyone else’s behalf, not a mere musical accompanist.

These difficulties might be brushed aside on the basis of Maharam’s authority.  But did Maharam actually say this?  The footnotes in the printed Maharshal (Yam Shel Shlomoh Chullin 1:48) refer one to #249 of the edition of Maharam’s responsum printed in Cremona.  However, the question in that edition reads

וששאלת

אם אדם שפגעה בו מדת הדין

ראוי להיות שליח צבור?

That which you asked:

Whether a person who has been injured by the Attribute of Justice

is fitting to be a shaliach tzibbur?

This version makes no reference to physical disability at all.  The question may be whether a person who clearly has suffered Divine Justice is a fitting representative for a community seeking Divine Mercy.  To which Maharam answers:  If the person has a broken heart, in other words if he has repented, G-d is pleased with his service.

Apparently unbeknownst to Maharshal, the question about physical blemishes was asked to Rabbi Yisrael of Brona in the 15th Century (Shu”t Mahari Brona #25).  He gave a very different, and somewhat odd, answer:

נשאלתי בקהלת ברונא מארץ הגר

אם למנות ש”צ בעל מום . . .

והשבתי שאין נכון בעיני,

רק ראיתי בא”ז שאין למנות ש”צ בעל מום

ושכחתי מקומו

אך נ”ל ראייה מס”פ האומר דקדושין (סז ב)

דמסיק בעל מום עבודתו פסולה בדיעבד . . .

וכיון דתפלתינו במקום קרבן, 

שנא’ ונשלמה פרים שפתינו,

א”כ אין נכון כלל למנותו לכתחלה לש”צ קבוע,

אבל באקראי יכול

דלא גרע מסומא דמתפלל לפעמים

אבל היכא דלא איפשר באחר –

אין לבטל תפלתינו בשביל זה,

כיון דכלנו מתפללים ביחידים והתפלה אינו אלא מדרבנן,

ואף על גב דכתיב ועבדתם בכל לבבכם,

ודרשי’ (תענית ב א)

איזוהי עבודה שהיא בלב? הוי אומר זו תפלה –

אסמכתא היא

או בעת צרה היא דאורייתא . . .

I was asked while in the community of Brona a question from Hungary

whether to appoint a shaliach tzibbur who has a mum . . .

I responded that it is not proper in my opinion

I have even seen in Or Zarua that one should not appoint a shaliach tzibbur who has a mum

but I have forgotten the location of that ruling

But it seems to me that proof can be brought from the end of Talmud Kiddushin Chapter 3

where it concludes that the Service of someone with a mum is invalid even after the fact . . .

so since our prayers take the place of sacrifice, 

as Scripture says “and our lips will compensate for bulls”,

therefore it is not proper at all to appoint him in the first place as a permanent shaliach tzibbur,

but this can be done on an ad hoc basis

as he is not worse than a blind person, who may lead prayers on an ad hoc basis

but where no one else can do it –

we should not idle ourselves from praying for this reason,

since we all pray individually now

and prayer is only a Rabbinic obligation.

Even though Scripture writes “you must serve Him with all your hearts”,

and we derive (Taanit 2a)

What Service is in the heart?  Say that this is prayer –

this is a mnemonic

or perhaps prayer in a time of crisis is a Biblical obligation . . .

Mahari Brona takes the comparison to priests and Service seriously – but how seriously?  Priests with mumim cannot serve ad hoc in the Temple!  So it seems at least possible that his prooftexts are marshalled in support of the missing citation from Or Zarua, rather than independently sufficient arguments.

But Mahari Brona’s claim to have forgotten the location of the Or Zarua is odd; at least in our editions, the seemingly relevant line appears in a collection of halakhot relating to shluchei tzibbur.

וצריך להיות צדיק וישר ונקי בגופו

ואם אינו כן עליו הכתוב אומר . . .

הקריבהו נא לפחתיך הירצך או הישא פניך.

והורה רב יודאי גאון

דשליח צבור סומא כשר הוא

ואין מסלקין אותו כל זמן שמעשיו הגונים.

He must be righteous and straight and naki begufo (literally: clean in his body)

If he is not such, Scripture says about him . . . (Malakhi 1:8)

Bring this (blemished sacrifice) to your baron – will he acknowledge you, or show you favor?

and/but Rabbi Y(eh)udai Gaon ruled

that a blind shaliach tzibbur is valid,

and that he should not be removed so long as his deeds are proper.

What does naki begufo mean?  If we read Rav Yehudai Gaon’s ruling about blind people as a contrast – “but R. Yehudai Gaon ruled” – it might mean that one’s body has to be clean of mumim.  Perhaps that is how Mahari Brona read it in his youth.

However, it turns out that Or Zarua was actually citing a Geonic responsum, and the texts of that responsum make it almost certain that naki begufo refers to a character trait, not a physical condition.  It may have meant simple cleanliness; or, as guf naki came to mean regarding tefillin, it may have referred to specific practices regarding bathroom issues.

So what we have so far is a Maharshal endorsing a Maharam that probably, but not certainly, preferred a disabled Shaliach Tzibbur to one who had not suffered any physical ravages; and a Mahari Brona that follows an Or Zarua that almost certainly says nothing relevant.

STAY TUNED FOR PART 2 NEXT WEEK!  (Spoiler: Mr. Goodman probably keeps his slot.)

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The Value of Lip Service

by Rabbi Aryeh Klapper

A cynical old salesmanship saw says that “Sincerity is everything.  Once you can fake that . . .”.  

We learn in this week’s parshah that the Torah is not distant from us.  Rather, “the matter is near to you, very – in your mouth and in your heart, to do/make it”.  Why does the mouth matter, and not just the heart?  Is there any value in having Torah only in one’s mouth, and not (yet) in one’s heart?  

Kiddushin 49b tells the story of a very contemporary-sounding court case.  A man planning on aliyah sells his home in galut.  But his plan falls through, and so he wants to reverse the sale.   Rava rules that if no explicit condition was put on the sale, it cannot be reversed, since “Words in the heart are not words.” All that matters is what comes out of your mouth.

How does Rava know this?  The gemara first suggests that he derives it from two cases of “coerced consent”.   Sacrifices and divorces must each be given willingly, yet the courts can use force until the sinner or husband say they are willing.  Doesn’t this prove that sincerity is unnecessary?  No, the gemara answers.  There is a presumption that people desire atonement, or to listen to the words of the Sages.  Coercion in these cases does not cause people to say things that they don’t mean; it enables them to say something they truly mean.  

This may seem like insincere legal legerdemain.  Obviously he doesn’t truly mean it, or he would have said it without being coerced to!  To understand how this can make psychological sense, we need to turn to a related discussion on Bava Batra 47-48.

Rav Huna there says that if a person is coerced into selling something at a fair price, the sale is valid.  Why should this be so?  The gemara first proposes that many sales are coerced in the sense that the seller would rather keep the object, but needs the money.  It concludes that this is not a valid source, since perhaps one cannot derive a case of coercion-by-others from a case of coercion-by-circumstances.  The cases of sacrifice and divorces are then proposed and rejected on the same grounds as above.  The gemara concludes that Rav Huna’s position is simply grounded in sevara, or practical reason.

What is Rav Huna’s sevara?  He believes that human beings prefer to have it all, and we trade goods only because necessity forces us to.  There is rarely if ever in human affairs an act that is absolutely autonomous.  Therefore, so long as a person gets what we believe he would acknowledge is fair value, the law regards trades as willing, regardless of whether we “wanted” to sell.  “אגב אונסיה גמר ומקני = As a result of his being compelled, he made up his mind to effect the transfer”. So too in the case of divorce, once the law determines that a person is getting “fair value” for surrendering their marital rights, they are considered to be acting willingly.  (The same would be true regarding marriage, except that the Rabbis stepped in to nullify what they considered to be an immoral outcome.)

We have come a long way from “All that matters is what comes out of your mouth”.  It seems that the law does not in fact accept insincerity; it just has a lower standard of willing than is commonly understood.  Indeed, the end of the sugya in Kiddushin makes clear that when there is absolute certainty about a person’s intent, and that intent was evident to the other party, sales are reversible even if no explicit condition was made.

With this understanding in hand, we can return to our opening question: Is there any value in having Torah only in one’s mouth, and not in one’s heart?  We will approach that question though an analysis of conversion.

A beraita on Yevamot 24b cites Rabbi Nechemyah as declaring that converts who are motivated by a human relationship, or by the hope of riches or position, or fear of Jewish power, are invalid.  Rabbi Yitzchak bar Shmuel bar Marta declares, however, that the halakhah is against Rabbi Nechemyah, and all such converts are validly converted.  Ritva asks: Why should insincere conversions be valid? His response deliberately evokes Rav Huna’s rationale: “אגב אונסייהו גמרו וקבלו = as a result of their being compelled, they made up their minds to accept”.

It seems clear that what insincere converts accept is the yoke of the mitzvot; but why are they under compulsion?  The connection to Rav Huna tells us that they see this as a transaction.  In order to obtain the spouse/position/security they desire, they must accept the responsibility of the mitzvot.  So they are sincere enough.

In Ritva’s account, lip service to Torah apparently has no value.  It is only because we believe that they meant their acceptance of mitzvot that we legitimate their conversions.  Ultimately it’s the heart that counts.

Rav Chaim Ozer Grodzinski (Achiezer 3:26) makes this position explicit:

According to Rabbi Nechemyah, a convert for the sake of marriage is not a convert, because even though his mouth says that his intention is to convert, and “words in the heart are not words”, there is absolute certainty that his intention for the sake of marriage, and when there is absolute certainty because “these are words that are in the heart of every person” – they are words.  According to this, wherever it is not obvious to the whole world that his intention is for the sake of marriage, and there is room to doubt that perhaps he converted wholeheartedly, the rule should be like every other case of non-absolute certainty, meaning that words in the heart are not words, as Ketzot HaChoshen wrote, (and therefore Rabbi Nechemyah should accept them)!?

But we can say that for Rabbi Nechemyah, conversion is different than other transactions, because the essence of the acceptance of mitzvot and of conversion is “words in the heart”, and so long as he has not converted wholeheartedly, he is not a convert, and even where there is no certainty that his intention was for the sake of marriage or for some other purpose, if he in fact intended for some other purpose, he is not a convert, since “his heart is not with Him”.

However, according to the halakhah (rejecting Rabbi Nechemyah) that “They are all converts”, it is explained in the rishonim, and Ritva in the name of Ramban, that the reason for this matter is that since they converted and accepted (the mitzvot) upon themselves, there is a legal presumption that “As a result of their being compelled, they made up their minds to accept”.  The straightforward understanding appears to be that even though there is absolute certainty that his intention is for the sake of marriage, nonetheless because of the compulsion of desire he makes up his mind to “effect the transfer”, and accepted the conversion wholeheartedly, so there is certainty that he made up his mind and accepted the conversion wholeheartedly.

Rav Chaim Ozer concludes that if our legal certainty about their intent is factually incorrect, and they actually did not “make up their minds to accept the mitzvot”, then their conversion is factually invalid (although legally we have no way of knowing this).  He goes so far as to distinguish conversion from other transactions.  In financial issues, and perhaps even with regard to sacrifices and divorce, “words in the heart are not words” even if the spoken words are false.  But with regard to Torah, only the heart matters.

However, R. A. Y. Kook in one responsum suggests a radically different approach.  In response to a rabbi who sought to release a woman from a marriage by invalidating her husband’s conversion, he writes:

It is obvious that our default is to presume that he is a convert immediately after he is circumcised and immerses and accepts the mitzvot with his mouth.  Indeed, Scripture writes (Tehillim 78:36) regarding our ancestors that “They seduced Him with their mouth (at Sinai), but their hearts were not with him”, and the midrashim say that their hearts were turned to idolatry, and the idol of Mikhah was with them, but nonetheless, since they accepted (the Torah) with their mouths, the conversion (of the entire Jewish people) was completed.

For Rav Kook, it seems that Jewish history began with lip service.

The approach of the High Holidays properly leads to an emphasis on inner depth and authenticity.  We resonate with Rav Chaim Ozer’s claim that only the heart matters with regard to Torah.  But perhaps Rav Kook teaches that this should be true only for ourselves, not for others.  The lip service – and chesed, and tzedakah, and other maasei mitzvot – of the Orthoprax and Social Orthodox members of our community may be the truest recreation of Sinai, and attempts to ferret out ideological insincerity ultimately strike at our own legitimacy.

 

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Who Owns the Torah? Elitism and Democracy in Torah Perspective

by Rabbi Aryeh Klapper

The Torah in numerous places appears to assume that halakhic knowledge and authority would be centralized in the tribe of Levi.

Nonetheless, throughout Jewish history Torah scholars have come from all tribes, and from converts. Was this part of the Divine plan? If yes, why does the Torah so often associate scholarship with Levi? If not, does making halakhic authority accessible to everyone replace the Torah’s vision of an ideal social order with anarchy and chaos?

Rambam (Laws of Shmittah 13:12-13) seeks to resolve this tension by turning all scholars into honorary Levites.

Why wasn’t Levi granted a share in the inheritance of the Land of Israel and its spoils
together with his brothers?
Because he was separated-out to serve Hashem,
to attend Him and to teach His straight ways and righteous statutes to the masses
as Scripture says:
“They will teach Your statutes to Jacob, and your Torah to Israel”
Therefore they were separated from the ways of the world –
they do not go out to battle like the rest of Israel
they do not inherit land and they are not granted property via the exertion of their bodies
rather they are the troop of Hashem
as Scripture says:
“Hashem blesses his troops”
And He the Blessed grants them (what they need)
as Scripture says:
“I am your share and land-inheritance”.
But this is not true only of the tribe of Levi;
rather,
each and every person from all those present in the world
whose spirit volunteered him and whose intellect made him comprehend
to become separated and stand before Hashem to attend and serve Him,
and to know Hashem,
and walked straight as the Divine made him,
and removed from his neck the yoke of the many calculations which human beings have sought –
He is sanctified as holy of holies,
and Hashem will be his share and land-inheritance for eternity and beyond,
and he will be granted in this world what is sufficient for him,
as He granted to the kohanim and Levites,
as behold David said:
“Hashem is my share and portion; You direct me as I choose my lot”

Turning Levi into a symbol or metaphor enables Rambam to maintain that the Torah intends there to be a social divide between the scholarly elite and the rest of the Jewish community. The elite give up all interest in money or power – G-d takes care of their minimal this-worldly needs – and as a result they can be trusted with Torah authority.

It is a pretty vision. Unfortunately, the politics of this world rarely turn out that way. G-d tends to provide for the this-worldly needs of scholars by way of non-scholars, who accordingly and properly have great influence over their Torah dependents. Scholars are not always satisfied with the bare minimum of physical comfort. Desire for power may be as prevalent among scholars as among businessmen. Scholars compete for the best fellowships, jobs, and students, not always nicely or with proper regard for ultimate ends. In sum: Concentrating authority in scholars does not successfully insulate Torah against the evils endemic to other political systems.

We might seek to insulate scholars from the direct influence of the rich by creating a government-sponsored fellowship, a National Endowment for the Metahumanities. Socialist Torah, rather than capitalist. After all, the Torah does not say that G-d will provide for the Levites’ this-worldly needs on an ad hoc basis; rather, it sets up a tax system to support them.

I think the best way to evaluate this theoretically attractive vision is to think about the Rabbanut in Israel.

An alternative vision emerges from a midrash cited by Rashi to Devarim 29:3.

“And Hashem did not give you a heart to know until this day” –
I have heard that on the very day that Moshe gave the scroll of the Torah to the Children of Levi
as Scripture writes (31:9):
”He gave it to the kohanim Children of Levi”
all Israel came before Moshe and said to him:
‘Moshe Rabbeinu,
we too stood at Sinai and received the Torah, and it was given to us,
so why are you giving the members of your tribe dominion over it?!
They will say to us tomorrow:
‘It was not given to you; it was given to us’.
Moshe rejoiced over the matter.
It was about this that he said to them (27:9):
“This day you have become a nation to Hashem your G-d” –
this day I have understood that you are cleaving to and desirous of the Omnipresent.

It seems from this midrash that Moshe Rabbeinu originally inclined to either the socialist or capitalist visions above, or perhaps to Rambam’s imagined Republic. But when the other tribes – all Israel! – came to him and protested that they too wanted to study Torah, he rejoiced.

This midrash is likely related to the dialogue between Moshe and Yehoshua about Eldad and Meidad (Bamidbar 11:28-29), where Moshe, to Yehoshua’s surprise and perhaps dismay, expresses comfort with the idea of a community in which everyone is a prophet, and therefore no one has more access to the Divine than anyone else. Moshe was comfortable in principle with both spiritual and halakhic democracy.

Comfort in principle does not imply endorsement in practice. Democracy, in both its pure and representative/republican varieties, has its own weaknesses. As Socrates loved to point out, democracy works well only when its constituents know the limits of their own knowledge, and prefer truth to power. In fact, only Eldad and Meidad were prophets, not the entire people of Hashem. By the same token, not all of us – even among those who live the life of Levi – are halakhically competent scholars.

Nonetheless, the democratic ideal properly has consequences. The chief of these are that scholars must be accountable to their constituents, must constantly seek to spread rather than hoard knowledge and authority, and must recognize the autonomy of individual men and women as a core religious value.

In the coming weeks I expect to publish several essays that have as their immediate practical aim the constriction of halakhic authority, and therefore might reasonably be seen as in tension with the last commitment above. So in the spirit of the first and second commitments, and of the month of Elul, I ask and invite you to look for them, read them carefully, and then hold me accountable.
Shabbat shalom

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The Spiritual Dangers of Ideological Camping

by Rabbi Aryeh Klapper

Parshat Ki Teitzei opens with a famous dispensation for soldiers: “The Law of the Beautiful Captive”.  This law can reasonably be understood as a bulwark against the use of rape as a military tactic, as is prevalent in many modern conflicts.  Nonetheless, the clear overall impression is that soldiers in the field are given more license than civilians.

A quite different impression emerges from a verse later in the parshah.  Devarim 23:10 reads:

כִּֽי־תֵצֵ֥א מַחֲנֶ֖ה עַל־אֹיְבֶ֑יךָ

וְנִ֨שְׁמַרְתָּ֔ מִכֹּ֖ל דָּבָ֥ר רָֽע:

When you go out as a camp against your enemies

You must be guarded against any evil davar

Here the sense is that soldiers must be especially vigilant, spiritually and morally. Nachmanides explains that

והנכון בעיני בענין המצוה הזאת,

כי הכתוב יזהיר בעת אשר החטא מצוי בו.

והידוע במנהגי המחנות היוצאות למלחמה,

כי יאכלו כל תועבה,

יגזלו ויחמסו ולא יתבוששו אפילו בניאוף וכל נבלה,

הישר בבני אדם בטבעו

יתלבש אכזריות וחמה כצאת מחנה על אויב.

ועל כן הזהיר בו הכתוב “ונשמרת מכל דבר רע”

ועל דרך הפשט היא אזהרה מכל הנאסר:

What is correct in my eyes regarding this mitzvah

is that Scripture cautions in the time that sin is commonly found

and it is known regarding the practice of camps that go out to war

that they eat all abominations

they rob and plunder without shame

even with regard to married women and all disgraces.

The straightest of human beings by nature

will put on cruelty and rage when the camp goes out against the enemy

Therefore Scripture cautions regarding it “You must be guarded against any evil davar

and using the approach of pshat this is a caution against all (already)

forbidden things

So which is it?  Is war a time for accommodationist leniency, or rather for countercultural stringency?

Most likely both. We can easily explain that soldiers need to be especially vigilant, and yet that we need to make allowances for their inevitable failures, and provide queasifying outlets to prevent even worse transgressions.

Rabbinic literature tends to build up the spiritual risks.  “Any evil davar” becomes a specific warning against the Big 3 sins that a Jew must die rather than commit.  There is no point fighting a war if one becomes the enemy in the process.  So we must be sure that there are monotheists in foxholes, despite the prevalence of superstition and the human tendency to worship all conceivable higher powers in times of great danger; again, that we avoid rape; and that we shed no innocent blood unnecessarily, even as we shed blood necessarily.  

The need for this reminder emphasizes Ramban’s notion that war desperately tries men’s souls, so that even our deepest inhibitions come under fire.  

But the Sifri adds a disconcerting anticlimax:

כשהוא אומר “דבר” – אף על לשון הרע

By saying “davar” – it includes lashon hora as well

Textually, it is easy to understand where Sifri is coming from.  The word davar, translated as “thing” or “matter”, could be removed without changing the verse’s meaning.  Therefore, it should be translated as “word”.

But what is the point of mentioning lashon hora in the aftermath of the Big 3 sins?  And why is lashon hora especially relevant in the context of war-camps?

An approach may emerge from comparing our parshah’s opening formula

כי תצא למלחמה על אויבך

to the one that opens 23:10

כי תצא מחנה על אויבך.

What is the difference between between “going out to war” and “going out as a camp”?

I suggest that the simplest explanation is that in the first verse, the war precedes the camp; if there is a camp, it is only because we are already at war.  By contrast, in 23:10 the camp precedes the war.  There is an enemy, and in response to the enemy we create an armed camp – but there is as yet no war.  

This distinction may be implied in Ramban.  Ramban is careful not to say that the verse seeks to prevent depraved wartime behavior; rather, it seeks to guard against the depraved behavior of war-camps.  

In war, we sometimes have to compromise, and let things go in the hope of preventing greater transgressions.  But in the run-up or prelude to war, this may not be the case.  During such times, our goals must be to

  1. Prevent the war if possible
  2. Strengthen our inhibitions so as to prepare ourselves to withstand the trials of war

Controlling our speech is crucial for both these efforts.

The mere existence of a war-camp creates enormous pressure for war.  The financial and social burden of the camp is enormous, and often not sustainable, so that war must be fought soon if at all.  Simply being in a camp creates pressure towards ideological homogeneity.  Internal conflict within a camp is dangerous and intolerable, so all aggressions are deliberately redirected toward the enemy.  Language is therefore used to exacerbate the conflict rather than to create space for nonviolent resolution.

Moreover, war-preparation davka often involves breaking down moral intuitions by dehumanizing the other side.

Into this breach the Torah steps.  These are temptations of ordinary strength, and there is no need for special understanding or dispensations.  You must be especially careful to guard yourself against “evil speech”.

Now Ramban, and the Torah, are talking about physical, armed conflict.  But it seems to me that the lessons apply equally to conflicts within or between Jewish denominations.

Here are some such applications:  

1)      Camps naturally tend to self-justify and self-perpetuate.  Once a group identity has developed – especially if that identity is largely defined by your exclusion or rejection of specified others – reintegrating with “outsiders” is extraordinarily difficult.  Even if we maintain an overall shared identity, the other side will soon form their own war-camp in response to ours!  So we should think twice or three times before developing exclusive self-definitions (even or especially if that self-definition is about being less exclusive than the group you are excluding.)

2)      War-camps naturally tend toward diminishing the value and humanity of their enemies.   A genuinely “these and those” outlook rarely survives in such circumstances; “pluralism” becomes a buzzword whose major purpose is to tar those outside one’s camp as intolerant fanatic extremists.

3)      The morality of language is often the first casualty of devolution into camps, the canary in the communal coal mine.  When attack essayists are among the most prominent participants in public halakhic discourse, and crude insults become the stock in trade of serious talmidei chakhamim, our spiritual atmosphere has clearly become toxic.

These points will not make any impression on those who genuinely want ideological war within Orthodoxy, or Modern Orthodoxy, whether their desires arise out of admirable religious sincerity or are rather the manifestation of deep character flaws.  But the rest of us can and should use this Elul to consciously diminish their influence.

This week’s Dvar Torah is sponsored in memory of Fishel Yitzchak ben Shmuel Zisblatt by his children, grandchildren and great-grandchildren.

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