Category Archives: Weekly Devar Torah

The Parah-dox and Orthodox Ethics

by Rabbi Aryeh Klapper

The Talmud on Yoma 14a records a dispute between Rabbi Akiva and the Sages about the meaning of the opening phrase of Bamidbar Chapter 19, verse 19:

והזה הטהור על הטמא

“And the pure will sprinkle on the impure”

According to the Sages, this means that Red Heifer Ash-water loses its spiritual and halakhic potency on something which is incapable of becoming impure.

According to Rabbi Akiva, it means that sprinkling Red Heifer Ash-water on a tamei person makes them tahor, but the person sprinkling becomes tamei.

The Rabbis object to Rabbi Akiva’s argument – isn’t this needlessly paradoxical, they ask?  Even if your reading makes sense in the text, shouldn’t we prefer an interpretation that fits with reason?

Rabbi Akiva’s response is: ABSOLUTELY NOT.  This detail of the law, he says, is what drove King Solomon to confess in Kohelet 7:23

אמרתי אחכמה והיא רחוקה ממני

“I said: “I will become wise”, but this goal remains distant for me.”

This is what Rabbi Soloveitchik zt”l described as a “gesture of surrender”, a humble and noble willingness to acknowledge that “Because your thoughts are not My thoughts, and your ways are not My ways, declared Hashem.  As the heavens rise above the earth, so too My ways rise above your ways, and My thoughts above your thoughts”.   Ultimately Divine wisdom cannot be fully comprehended by human intellect.

BUT: Does that mean we shouldn’t try?

Put differently:  Is it better to have thought and lost, or never to have thought at all?

For some people, Rabbi Akiva’s embrace of irrationality is the paradigm for our relationship to mitzvoth.  We are best off not asking “why” questions about mitzvoth; ours not to make reply, but simply to follow G-d’s orders.

But for others, Rabbi Akiva’s understanding of this verse is an exception.   One law is immune to reason, to remind us of the limits of human intellect.  But with that reminder in hand, we must try our best to understand everything else using the minds that Hashem gave us.

Or maybe Rabbi Akiva is simply wrong.  The Halakhah follows the Sages against Rabbi Akiva; there is no reason to interpret this verse as generating an irrational law when an alternate explanation can be found.

I remember my excitement when I first realized that this third position was possible within the tradition, that there were great rabbis who believed that we should believe that all mitzvoth were comprehensible.  It came not from Rambam – my high school strongly discouraged me from reading the Guide for the Perplexed – but from the introduction of the great medieval parshan Rabbi David Kimchi, known as RADAK, to his commentary on Nakh.

אין צריך לומר התורה והמצוה שהם בנויות על דרך השכל

כי גם החוקים אשר נאמר עליהם כי אין להם טעם

כן הוא שאין להם טעם נראה לרוב בני אדם

אבל החכם המתבונן בהם ימצא טעמם ברור ומבואר

It goes without saying regarding Torah and mitzvoth that they are built on the ways of the intellect

as even the chukim, about which it is said that they have no rationale

It is true that they have no rationale which is apparent to most people

But the sage who meditates on them will find their rationales clear and explained

Even the chukim, Radak says – even the Red Heifer, which is described as THE chok of the Torah – makes sense to philosophers.  NOTHING about Torah law is in principle beyond human comprehension.

This was extremely attractive to me as a teenager.  But the problem with this position, as my high school teachers knew, is that:

The belief that nothing about Torah is utterly incomprehensible easily slides into the belief that we already comprehend everything in Torah.

The belief that we comprehend everything leads us to identify Torah with our own understanding of Torah.

The identification of Torah with our understanding of Torah means that we attribute our own errors to G-d.  When times change, so that our rationales for mitzvot no longer seem reasonable, we take that as evidence against the Torah, rather than as evidence that we have misunderstood Torah.

But the first position, the extreme version of Rabbi Akiva, can send us sliding down its own slippery slope:

The belief that nothing about Torah is ultimately comprehensible easily slides into the belief that we should not use ethics to evaluate our interpretations of Torah.

The belief that Torah interpretations need not be ethical leads us to accept interpretations that make Halakhah irrelevant, immoral or even cruel.

For example: some years ago, the Summer Beit Midrash studied the laws regarding the halakhic status of the deaf who also cannot speak audibly.  The Talmud categorizes deaf-mutes as not bnei and bnot mitzvah, as incapable of halakhic responsibility.  In the late 19th century – think Helen Keller – it became clear that deaf children could be fully educated, and that deaf adults could be fully competent even if they spoke Sign rather than verbalizing.

For some rabbis, this made it obvious that their halakhic status had changed.  We know, they argued, why the Talmud declared deaf-mutes to be exempt from mitzvot – it was because their minds had not properly developed.  Reality has changed, and it would distort Torah if halakhah did not take this new reality into account.

For other rabbis, our capacity to educate the deaf instead proves that their halakhic exclusion was not based on their mental incompetence, but rather is simply a gezeirat hakatuv, an incomprehensible (and therefore unchangeable) Divine decree.

I much prefer the middle position, the moderate understanding of Rabbi Akiva.  We should not be afraid to admit that some mitzvot are beyond our comprehension; but we should also not be afraid to admit that some halakhot are perfectly within our comprehension.

Jews should not glory in incomprehensibility, and obey the absurd with greater joy than the reasonable. We should instead strive to rationalize when we can do so with sincerity and integrity.  At the same time, we need to recognize that in every generation there will be some mitzvot – often different than those considered chukim in earlier generations – that we cannot rationalize with sincerity and integrity, and which we must nonetheless obey.

I wrote the following rationalization as an in-shul introduction to the leining of Parshat Chukkat 2015.

Why is the ritual of the Red Heifer in Sefer Bamidbar, rather than together with other priestly rituals in Sefer Vayikra?   The simplest answer is that our parshah is suffused with death.  Miriam dies; Aharon dies; Mosheh is sentenced to die in exile; the people ask repeatedly “Why have you taken us out of Egypt to die in the desert?”; and many of them in fact die at the hands of fiery snakes.  The Rabbis like to say that G-d often sends the refuah before the Makkah, the cure before the disease.  So here He gave Bnei Yisroel the laws of the Parah Adumah just before we had to deal with many crushing deaths.

How does this ritual help us deal with death?  My dear friend Rabbi Elisha Anscelovits points out that the ashes were sprinkled on the third and seventh days of shiva.  In the midst of mourning, G-d reminds us that we have responsibilities; that while our grief is justified, it cannot define us permanently or absolutely.  But the ashes cannot be self-sprinkled; to emerge whole, we need the help of others.

This is the deepest meaning of the paradox of the parah adumah, in which the sprinkler becomes tamei while the sprinkler becomes tahor – one person willingly becomes tamei so that others can become tahor.  The ritual reminds us that there are so many powerful areas of life where we are not self-sufficient, where we cannot bootstrap ourselves out of our ruts – we need our family, our friends, our community, and sometimes the human community.  Once we recognize our own needs, we will then try to be the helpers our family, friends, community and fellow humans need.

In the past week, the human religious community of the United States was frayed by the shocking racist murders in Charleston.  In response, a wide spectrum of Jewish organizations has called for this Shabbat to be a “Shabbat of Unity” as a statement of sympathy for the African-American community and as a protest against racism and discrimination. The RCA and the Orthodox Union have joined this call in the spirit of the Rav zikhrono livrakhah’’s call for human cooperation across religious boundaries on social and political issues.

May this be the beginning of a much deeper commitment by the Orthodox community to that spirit and that call.

Let’s make it so.

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Masterpiece Cakeshop and the Spies

by Rabbi Aryeh Klapper

Mosheh gives the spies a tactical brief.  He wants them to tell him how best to conquer Canaan.  The spies instead present a strategic evaluation. They tell the people whether it would be best to try to conquer Canaan.

From a leadership theory perspective, there is room for blame all around. Administrators need to know their personnel well. They should not be surprised when independent and creative subordinates exceed their brief.  Trusted subordinates should try their best not to surprise the administrators who trust them, so the spies should have warned Mosheh Rabbeinu what they would be saying.  All this is wholly independent of the religious or practical correctness of the spies’ strategic conclusion.

The breakdown in the chain of command means that the dispute between the spies is presented to outsiders unmediated (as raw intelligence), and perhaps in a context of unmoderated direct democracy.  In such contexts (and many others), rhetoric, defined as the capacity to make the stronger argument appear weaker, and the weaker argument appear stronger, is generally more powerful than objective truth. Rule-bound democracies create the expectation that each presentation will be countered.  The audience knows enough not to act until it has at least the illusion of having heard all plausible positions defended. Here the proposal to return to Egypt is made before Calev and Yehoshua have said a word.

Mosheh and Aharon respond by (silently) falling on their faces in front of “all k’hal adat Yisroel”.  It is not clear whether their gesture is directly to the people, or rather whether they are assuming an attitude of prayer.  Yehoshua and Calev now speak, also to “all k’hal adat Yisroel”, and try to counter rhetoric with rhetoric.  The response, in verse 14:10, is:

“all the edah spoke to pelt them with stones; but the Glory of Hashem appeared in the Tent of Meeting to all B’nei Yisroel.”

It is challenging throughout Chumash to determine with any precision what is meant by the various terms for aggregations of Jews kehal, edah, kehal adat, Yisroel, bnei Yisroel, etc.  But careful readers cannot help noticing that three different such terms show up here.  Mosheh, Aharon, and all 12 spies speak to “k’hal adat Yisroel”; “all the edah” speaks about stoning; and the Glory of Hashem appears to “all Bnei Yisroel”.  Presumably these refer to separate groups, and we should at least try to identify them.

Once we undertake that task, we have to take note that in 13:26 the spies appear to report separately to “Mosheh, Aharon, and all k’hal adat Yisroel” and to “all the edah”.  In 14:1, it is “all the edah” that raises its voices”, while it is the “am” that cries. “All Bnei Yisroel complain to Mosheh and Aharon, but it is “all the edah” that expresses the complaint verbally. In 14:4., the plan to return to Egypt – possibly after appointing a new leader, depending on how one translates נתנה ראש – is spoken about “one man to his brother”, i.e. within a group.

One clue to unravelling all this, I suggest, is the term lirgom otam ba’avanim.  As used in the rest of Chumash, this does not seem to refer to mob killing, but rather to a form of judicial execution.

If we accept this, it follows that the edah is a judicial body with capital jurisdiction, aka a Sanhedrin.  This reading is strengthened by the inclusion in chapter 15 – apparently entirely out of context – of a sacrifice brought by the edah = Sanhedrin when it errs.  Presumably the decision to execute Yehoshua and Calev was an error.

Our image of one aspect of the episode of the spies therefore has to change. The final step of the sin is not mob violence, but rather the politicization of the judicial system.  There is hope for human agency until that point.  G-d finds it necessary to intervene only when the Sanhedrin decides to execute those who oppose the newly minted popular will.

The episode of the spies of course has eternal religious significance. I want to suggest here that it also has very immediate political lessons to teach about the role of the judicial system.  Specifically, I want to talk about the Masterpiece Cakeshop ruling of the Supreme Court. Let me be clear upfront that I think the lessons go both ways, and that poskim can and should learn from that ruling.

Masterpiece Cakeshop tested whether religious opposition to homosexual behavior could be legally stigmatized in the same way as racism, antisemitism, and misogyny.

Justice Kennedy’s opinion rested largely on the undisputed fact that an earlier person with authority over the case had condemned as “despicable” the use of religious arguments to refuse to provide a cake for a same-sex wedding.  This meant, he said, that the earlier hearing had been tainted by obvious and legally unacceptable hostility to the baker’s religion.

I doubt that the same argument would have been found convincing if the issue had been refusal to bake a cake for a mixed-race wedding.  Moreover, Justice Kennedy’s opinion fudges in that it leaves open the possibility that this kind of official animus toward a religious position was out of bounds only because it took place before Colorado had legalized same-sex marriage, in other words before homosexuality had been fully assimilated into prior civil rights paradigms.

I do not want to address the religious substance of the issue in depth here.  Suffice it to say that there are Orthodox Jews who believe very strongly that the halakhic prohibitions in this regard are rationally defensible and socially essential, while others believe as strongly that it is purely a chok that cannot be justified on any ground other than obedience to Divine Will.  Those in the former category have every reason to maintain a fighting retreat, and hold out the hope of regaining lost political ground. Those in the latter category have no real basis for carving out any but the narrowest legal protections for their religious needs.

I do want to argue that we should recognize as a society that moral changes which occur with sweeping rapidity are risky – that’s why we have a Constitution – and therefore where possible, people who stick to their suddenly unpopular moral positions should be protected.  In that regard, to the extent possible, even if we feel compelled to enact our current beliefs into law – and often we should feel the moral compulsion to do that – we should try our best to leave the courts as neutral arbiters of that law, rather than turning them into further vehicles of popular moral expression.

I am sure that the Sanhedrin saw it very differently.  From their perspective, the people had now been subjected for a year (or perhaps several hundred years) to ceaseless propaganda demanding the conquest of Canaan. The spies’ rhetoric provided a brief and fragile opportunity to overcome that propaganda, and it was essential to solidify that opportunity as rapidly and irreversibly as possible.

The spies were terribly wrong, and the Sanhedrin was wrong to accept their position.  But I wonder whether G-d would have found it necessary to intervene had they been willing to let Yehoshua and Calev have their say, without resorting to the threat of judicial violence.  Allowing the law to stigmatize moral dissent undermines the social contract which allows people with differing opinions to constitute and accept a common authority.

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The Use of Halakhic Materials in Discussions of Public Ethics

by Rabbi Aryeh Klapper

I was saddened to read of the petirah of Dr. Rabbi Baruch Brody z”l, father of Rabbi Shlomo Brody (SBM 2001) and medical ethicist extraordinaire.  Dr. Brody’s collection Taking Issue was a source of enormous consolation to me during my mother aleha hashalom’s illness, and his work continues to influence my thinking.  The following dvar Torah is in dialogue with the final essay in that collection, “The Use of Halakhic Materials in Discussions of Medical Ethics”.    

Dr.  Baruch Brody distinguished three ways to use halakhic materials in discussions of medical ethics.  I suggest that medical ethics is a particular example of public ethics, or ethical issues that need to be decided communally rather than by autonomous individuals.  The three ways are:

1)      as a source of ideas which can be defended independently of their origin

2)      as a basis for mandating certain forms of behavior for members of the Jewish faith who are perceived as bound by Jewish law

3)      as the basis for claims about the Jewish view about disputed topics in public ethics.

Dr, Brody sees the first way as nonproblematic.  If an idea can be defended without reference to its origin in halakhah, of course it has a place in public discourse.  Academics should footnote appropriately.  But so far as public discourse is concerned, the same idea often occurs in many different traditions, and we should be indifferent as to which tradition suggested the idea to any particular person.

I suggest that footnotes matter in public discourse as well.  Claims that a position is well-rooted in a particular tradition make it more appealing to people who identify with that tradition, and to others who deeply respect that tradition, in the same way that attributing a position to a person will add or detract to its appeal depending on that person’s public image.

This is not a bad thing.  I do not concede that public moral discourse ought to be completely denatured, and that all arguments about public ethics must plausibly claim to have been immaculately conceived.  I do accept that particularist religious arguments are generally out of bounds if they cannot be defended on universal grounds.  But I’m not sure that we need to defend them exclusively on universal grounds.

This being so, it is important to recognize that one can draw ideas out of the halakhic corpus and then use them to reach conclusions that halakhah in practice rejects, or has never contemplated.  These must be footnoted differently than ideas which emerge from the halakhah as an overall and practiced system.  The distinction may be parallel to one suggested by Rav Aharon Lichenstein zt”l between ideas that emerge out of the substantive content of a halakhist’s work, and ideas that are under the authority of that halakhist.

Halakhah tends to be much more fully developed with regard to Jews than nonJews.  Therefore, one can often claim the authority of Halakhah when one seeks to mandate certain forms of behavior for Jews (#2 above). However, a claim that this behavior is mandatory for an integrated Jewish-nonJewish society will be much less likely to have such formal authority.  Instead, it will generally be a projection of how Halakhah might or should develop if it were given authority.

This brings us to the central point of Dr. Brody’s article.  It is common for Jewish books on medical ethics to extrapolate from the Halakhah to public ethics.  But the Halakhah may apply only to Jews!  “Authors who use this material for the third use distinguished above may then incorrectly conclude that obligations which are supposed to fall only upon the Jewish people fall upon all people.” So one must be very cautious in moving from Halakhah to public ethics.

Dr. Brody humbly gives an example from his own work which he sees as instantiating that fallacy.  The question he addressed was whether a married man could undergo gender reassignment surgery over his (female) wife’s objection.  Among the arguments he made was that under secular law as it then (1981) stood, gender reassignment would automatically terminate the marriage, and that Jewish law had opposed such unilateral termination since Rabbeinu Gershom forbade it in the 11th century. (Note: The argument also assumed a “fault” framework for divorce; contemporary secular “no fault” divorce law in principle allows either party to terminate the relationship unilaterally, without needing recourse to radical surgery or identity shifts. In practice, the New York Times recently published as article on secular agunot, who remain married because their abusive husbands have disappeared and they cannot serve divorce papers on them.)

Dr. Brody contends that applying the Cherem d’Rabbeinu Gershom was an error, because it applied only to Jews (perhaps only to Ashkenazim). It cannot serve as the basis for a claim that Judaism or Jewish law oppose unilateral divorce outside the context of the Jewish community.  The Torah may permit either spouse in a Noachide marriage to end the relationship unilaterally, and Rabbeinu Gershom’s decree would have done nothing to change that.

I’m not certain the application was an error.  It seems to me that we can distinguish between conclusions that within the Halakhah are justified on particularist grounds, and those that even within Halakhah are justified on universal grounds. If the halakhic tradition understands the Cherem to be motivated by an ethical sensibility, then it would be legitimate to bring that ethical sensibility to the public discourse.  One could not quite argue that it was “under the authority” of Halakhah, but once could go further than “this idea was suggested to me by” Halakhah. But I acknowledge that the halakhic process is usually murky as to whether a particular principle can be justified without a particularist appeal, and laws can move over time from one category to the other (“chokification” and “mishpatification”).

I think there may be another and more serious methodological problem.

Let’s assume that in many cases we can figure out the halakhah for Jews, and the halakhah for nonJews.  Dr. Brody suggests that where they diverge, we are stuck, and Halakhah has no role in public discourse.

I think we need to push the question a little further.  Why are we stuck?  After all, we might argue in many such cases that the law for Noachides rests on universal principles, whereas the law for Jews rests on particularist grounds.  If that is so, our public ethics position should follow Noachide law, with a standard argument that the law should allow a religious conscience objection.  In other cases, we might argue that the law for Jews represents the ethical ideal, and Noachide law is a concession to the reality of most societies.  Our public ethics position would then follow the halakhah-for-Jews in any society ethically advanced enough to make it a live option.

Both these models assume that the Halakhah for integrated societies must fundamentally be either the halakhah for Jews, or else Noachide Law.  But perhaps this binary is incorrect, and the Halakhah for an integrated society would be entirely different.

As an analogy: In the realm of Shabbat, halakhah as-it-stands is utterly different for Jews and nonJews.  We think of the two societies as intersecting for Shabbat purposes mostly in the realm of “amirah lenokhri”, of what Jews can and can’t have nonJews do for them on Shabbat.  But what if we tried to think of what Shabbat would be like in an integrated society, where the issues are not just melakhah but also labor laws, time for family and reflection, and the like?  Should the soccer stadiums and/or the malls and/or the corporate law firms be open, or closed? Could such a society have a shared public Shabbat even if Jews were privately forbidden to do melakhah and nonJews were privately obligated to do at least one melakhah?

Shabbat shalom

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Peer Pressure and Drinking: A Very Dry Dvar Torah

by Rabbi Aryeh Klapper

Dedicated to the complete and speedy recovery of Chayim Binyamin ben Rivka Hinda (Rabbi Chaim Strauchler, SBM 2002).

A confession: I have no firsthand experience of “drinking culture”, either as participant or as anthropologist.  But “this too is Torah, and I need to learn it”. Torah relates to every aspect of human existence, which means that understanding any aspect of human existence sheds light on Torah.

My text this week is Mishnah Tractate Nazir Chapter 2 Section 3.  The text in every edition currently available reads something like this:

מזגו לו את הכוס ואמר ‘הריני נזיר ממנו’ – הרי זה נזיר.

מעשה באשה אחת שהיתה שכורה ומזגו לה את הכוס ואמרה ‘הריני נזירה ממנו’.

אמרו חכמים: לא נתכונה אלא לומר הרי הוא עלי קרבן.

They poured him a cup, and he said ‘Behold I am a nazir from it’ – he is a nazir.

A story: A woman was drunk, and they poured her a cup, and she said ‘Behold I am a nazir from it’ –

the Sages said: She intended only to say: “It is (forbidden) to me as if it were a sacrifice”.

The legal statement and the story have very different bottom lines. In the statement, the man becomes a nazir; in the story, the woman is only forbidden to drink that particular glass of wine.

The early 18th century commentary הון עשיר reasonably notes that the statement makes no mention of drunkenness at all, and that there is no “and” linking the story to the statement.  He therefore concludes that the story introduces a new case, in which the law Is different than in the case of the statement.

However, the Babylonian Talmud is not satisfied with this approach.  Instead, it pulls out what seems like a very outlandish interpretive technique: the חסורי מחסרא, which appears to be a claim that a line of the Mishnah was omitted.  The statement should actually include the proviso: “But if he is drunk, he is only forbidden to drink the specific cup of wine”.  The result is substantively identical to הון עשיר’s interpretation.  (I find it interesting that, so far as I can tell, no traditional commentator even suggests that the statement and the story have different legal outcomes because the former is about men and the latter about a woman.)

The Talmud also adds an explanation for why law changes in the case of someone already drunk:

סבר: מייתין לי אחרינא ומצערן לי,

אימא להו הא מילתא דפסיקא להו.

He reasoned: They’ll bring me another cup and keep bothering me,

so I’ll say something to them that makes them stop.

The drunk wants the people who brought him this drink to believe that he will be equally forbidden to drink any subsequent cup, but he does not really intend to forbid more than the one cup now in front of him. The Sages understand this, even if (he hopes) his barmates do not.

Understanding a drunk’s intention need not imply that he is making sense.  But Rashi explains that in this case she very much is:

סבירא להו שלא אסרתי עלי אלא כוס זה בלבד

ומייתו לי כוס אחרינא ואמרי לי ‘אשתי’ וקא מצערין לי

דשתויי אנא ולא מצינא למשתי לי

Otherwise they will think that I have only forbidden this cup, 

and they will bring me another cup and say to me “Drink!”, and they’ll harass me, 

because I am drunk and I cannot drink it.

Rashi’s portrait is of someone who knows that having more alcohol would be dangerous, and also that her companions will nonetheless pressure her to drink.  She comes up with a clever scheme to relieve their pressure.  The same people who would pressure her to drink irresponsibly will back away from pressuring her to break an oath.

Tosafot add a disquieting element that nonetheless ring true:

שדרך בני אדם להפציר בשכור שישתה ועתה אינו רוצה לשתות . . .

אבל כשאינו שכור אין דרך להפצירו . . .

It is the way of people to pressure someone drunk to keep drinking, even if he does not want to . . . 

but it is not their way to pressure someone who is not drunk

The Sages therefore decided that using the same words, a sober person would intend to be a nazir, while a drunk person would not.  But why not ask the drunk what his intention was?  Shitah Mekubetzet cites R. Azriel as giving an answer that seems somewhat ironic:

ולא בעי למימר דנשייליה

דהא לית ליה דעתא צילותא

The Talmud doesn’t suggest asking him, 

since his mind is not clear

But if his mind is not clear, how can the oath be binding? Rambam explains that the person is not “as drunk as Lot”.  Peer pressure to keep drinking is most intense precisely at the borderline.

The Talmud Yerushalmi seems to offer a different explanation.

מתניתא בשאינו יכול

אבל אם יכול – הדא דתנינן מעשה

The statement deals with one who is not able,

 but if he is able – that’s the case of the story

What is the meaning of “able”?

רישא דמתניתין מיירי בשאינו רגיל לשתות ולהיות שיכור ואין דרך להפציר לאדם כזה

The statement deals with one who does not drink and get drunk regularly, and it is not their way to pressure such a person.

This claim does not ring quite as true as Tosafot’s.  Perhaps for that reason, Korban HaEdah contends that the text should be reversed to read:

מתניתא ביכול

אבל אם אינו יכול – הדא דתנינן מעשה

The statement deals with one who is able,

but if he is not able, that’s the case of the story

Korban HaEdah tries to make this text mean roughly the same thing as the Bavli by claiming that the story Is about someone who “is not able” because they are drunk.  I do not find the attempt convincing.

Rambam may have understood the Yerushalmi in an entirely different fashion.  Here is Mishnah Torah Hilkhot Nezirut 1:11-12:

מזגו לו כוס של יין ונתנו לו לשתות

ואמר ‘הריני נזיר ממנו’ –

הרי זה נזיר גמור;

ואם היה מר נפש או כעוס או מתאבל,

והיו מבקשין ממנו שישתה כדי לשכח עמלו,

ואמר ‘הרי זה נזיר ממנו’ –

הרי זה אסור באותו הכוס בלבד ואינו נזיר, שלא נתכוון זה אלא שלא ישתה כוס זה.

וכן שכור . . .

If they poured him a cup and gave it to him to drink, 

and he said ’Behold I am a nazir from it’ – 

he is a complete nazir.

But if he was bitter of spirit, or angry, or mournful, 

and they were asking him to drink so that he would forget his worries, 

and he said ’Behold I am a nazir from it’ – 

he is only forbidden to drink that cup and is not a nazir, as his intent was only to not drink that cup.

The same is true regarding someone drunk . . .

Rambam may be claiming that in a drinking culture, it is common to believe that getting drunk is a healthy way to deal with emotional challenges.  Someone who resists drinking will be pressured by friends who believe it is for their own good, to the point that a halakhic stratagem may be necessary to fend them off.

But what motivates or justifies Rambam in codifying this psychological/sociological insight into Halakhah?  Neither Talmud made any mention of any factor other than drunkenness! (Note that he brings the same case in his Commentary on the Mishnah!)

The answer, I suggest, is found in an offhand note of the late 16th – early 17th century Mishnah commentary Melekhet Shlomoh (which my Bar Ilan says was not printed until 1924).  He writes that a Rav Yehosef recorded an alternate text of the Mishnah, in which the woman was not a שיכורת but rather a שיכולת; not drunk, but rather mourning her losses. Rav Kapach states that the first edition of the Rambam’s Commentary on the Mishnah discussed only someone drunk, while the second inserts a discussion of people facing emotional difficulties. He suggests that after producing the first edition, Rambam discovered the שיכולת text of the Mishnah, and decided that it was correct.

If Rav Kapach is correct, though, why does Rambam leave the discussion of drunkenness in?  Also, the Bavli discusses the שכור, and we have no record of an alternate Bavli text?

I have a possibly wild suggestion.  The Yerushalmi as we have it reads:

מתניתא בשאינו יכול אבל אם יכול הדא דתנינן מעשה

Perhaps Rambam, having found the text of the Mishnah, either found another text or emended the Yerushalmi to read:

מתניתא בשאינו [ש]יכול אבל אם [ש]יכול הדא דתנינן מעשה

The Yerushalmi and Bavli would then be making separate claims about drinking culture – that peer pressure to drink more than one really wants to is most dangerous when you are already somewhat drunk, and when you are emotionally vulnerable. Maimonides thought both claims were correct, and worthy of codification.

 

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Judging the Judging of the Judges: A Sample from the 2018 CMTL Shavuot Reader

by Rabbi Aryeh Klapper

See the full version of the 2018 CMTL Shavuot Reader here!

Chazal read Tanakh. This may seem too obvious to bother saying, but I think it bears repetition and emphasis, because there is a popular misimpression that Chazal instead used or mined Tanakh. One cause of this misimpression is that we generally encounter Chazal’s readings in the context of public performances. These performances were generally intended to convey the outcomes of Chazal’s readings with pedagogic and mnemonic effectiveness, rather than to convey their methodology.

Here is a parable: A teacher of astronomy taught the names of the planets from the following verse: My Very Eager Mother Just Set Up NinePins. A student mistakenly concluded that the teacher had learned of the planets by unpacking the mnemonic, rather than by looking at the stars. So too, Chazal often used clever manipulations of verses to convey their readings memorably, but one must not conclude that they derived their readings from those manipulations.

Furthermore: The records of Chazal’s performances often leave out many of the direct justifications of their readings. Reading Midrash is often akin to reading a technical article from which the footnotes have been removed, and concluding that the author was ignorant of all colleagues and predecessors. Often the key footnote is simply the instruction to read every verse cited in its own context.

Here is an example relating to Megillat Rut: Tehillim 50:7 reads

שמעה עמי ואדברה

ישראל ואעידה בך

א-להים א-להיך אנכי:

Listen, My nation, and I will speak;

Israel, and I will testify about you;

E-lohim, I am E-lohekha.

One of the formal performances (petichtaot) that introduces Midrash Rut Rabbah presents this as follows: The word E-lohim is a reference to Exodus 22:27, which reads

א-להים לא תקלל

You must not curse E-lohim

which is understood halakhically as a prohibition against cursing human judges. But the word E-lohim also refers to G-d. Tehillim 50:7 therefore is simultaneously a reminder to Israel that G-d has bestowed His authority on human judges – they are called Elohim – and to those judges that G-d judges them – they are subordinate to E-lohim. Therefore human beings must treat human judges with the respect due to Divine agents, but those agents must remember their subordinate status.

This reading superficially depends on translating verse 7

O Judges! I am your Judge

rather than the more likely

By G-d! I am your G-d.

However, verse 7 is the introduction to a paragraph – not cited in the petichta – which builds toward the declaration in verses 16-18

ולרשע אמר א-להים

מה לך לספר חקי ותשא בריתי עלי פיך:

ואתה שנאת מוסר ותשלך דברי אחריך:

אם ראית גנב ותרץ עמו ועם מנאפים חלקך

To the wicked said E-lohim:

“What right have you to tell My statutes, and to have assumed My covenant in your mouth?

You have hated rebuke, and thrown My words behind you;

If you have seen a thief – you ran with him, and you share fortune with adulterers.

So the rebuke in 7 is indeed to those who tell G-d’s statutes, and who run with thieves when they are responsible for restraining them.

Now Tehillim 50:6 – also never cited in the petichta- reads as follows:

ויגידו שמים צדקו

כי א-להים שפט הוא

סלה

Heavens declare His righteousness

that E-lohim is a judge

Selah

This likely stimulates – although it does not compel – a connection to Rut 1:1:

ויהי בימי שפוט השופטים

It was in the days when the judges (were) judged

אוי לדור ששופט את שופטיו

ואוי לדור ששופטיו צריכים להשפט

Woe to the generation which judges its judges,

and woe to the generation whose judges deserve to be judged.

In other words: Tehillim 50:7 aspires to a society in which judges are respected and deserve that respect. Tehillim 50:16-18 acknowledges the breakdown of that ideal in part – the judges do not deserve respect. It does not discuss whether they should nonetheless be treated as if they deserved respect. Rut Rabbah may not take a position either – but it recognizes explicitly that there is a cost to treating judges with disrespect even when they don’t deserve respect, and so a decision to treat them disrespectfully must not be taken lightly.

Now is this reading derived from ויהי בימי שפוט השופטים? Put differently, is this how the author of the petichta read Rut 1:1? I suggest that a close reader would note immediately that the word שפוט seems unnecessary – tautologically, “shoftim” engaged in “shefitah”. If this reader has a bias – let us call it a Rabbi Akiva bias – toward assuming that such redundancies are substantively significant rather than inefficient idioms, s/he will argue either that

  1. the text is seeking to contextualize itself more precisely than would be accomplished by “In the days of the shoftim”, or that
  2. the reference is to a particular form of shefita, or that
  3. the phrase שפוט השופטים takes advantage of the syntactic ambiguity of שפוט, as in the awkward English translation “the judging of the judges”, which can mean either “the judging (of others) by the judges” or else “the judging (by others) of the judges”.

This petichta takes option 3.

But why does it take option 3? Not because option 3 is linguistically compelling, but rather because option 3 seems to be a proper frame for the book. In other words, option 3 is contextually compelling. Having read Megillat Rut, the author of the petichta concludes that one useful background for the story is a recognition that it occurs during a time when respect for authority has collapsed.

It must be understood as well that option 3 itself has two branches:

  1. “the judging (by others) of the judges”
  2. “the judging (by Another) of the judges”

The apparent redundancy of שפוט is adequately accounted for if one takes option 1. The petichta’s decision to take both options together reflects a reading of the entire megillah, and possibly as well of the entire Sefer Shoftim. This reading is derived in the petichta by noting that Shoftim 2:17 seems to criticize Israel for not following the shoftim, and yet that such shoftim as Shimshon and Gid’on seem not to have been models of propriety – although here again, other footnotes are almost certainly missing.

To sum up: The petichta, taken naively, cleverly overreads Rut 1:1 on the basis of a clever overreading of Tehillim 50:7. I argue that the substantive reading of Tehillim 50:7 is actually well-grounded in the full text of Tehillim 50, and that the substantive reading of Rut 1:1 is rooted in a well-grounded reading of the entire megillah and of Sefer Shoftim.

Please turn to the 2018 CMTL Shavuot Reader for an exposition of those readings of Rut and Shoftim; a presentation of a petichta that adopts option 1 above; a discussion of whether one can choose both 1 and 3; and especially for a new edition/presentation of the astonishing Rut Rabbah, which may not be a midrash after all, but rather a Chazalic commentary al derekh hapshat.

Shabbat shalom v’chag sameiach!

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Slaves, Wage Slaves, and Divine Service

by Rabbi Aryeh Klapper

What is the difference between slavery and employment?

Western society has a linguistic commitment to opposing slavery.  If you call something slavery, we’re against it.  This reality does credit to our society.

However, we sometimes define slavery too narrowly.  We treat slavery and freedom as absolute opposites, when really there are degrees of freedom, and degrees of slavery.  Our opposition to slavery should not be satisfied because we have eliminated its absolute form.  We need to be advocates for freedom as well.

There are reasons to be cautious when advocating freedom.  The word is susceptible of many meanings.  Freedom can mean license – and we do not mean to support license. Most of us acknowledge that individuals must surrender some of their freedoms to a state in order for all of us to live free of fear of violent crime.  Most of us acknowledge that we sometimes need to surrender some of our “freedom from” in order to gain “freedom to”, because many things are possible only in the context of genuinely committed relationships.

Two verses in Parshat Behar, Vayikra 25:42 and 25:55, exemplify this tension.

כי עבדי הם

אשר הוצאתי אתם מארץ מצרים

לא ימכרו ממכרת עבד:

כי לי בני ישראל עבדים

עבדי הם

אשר הוצאתי אותם מארץ מצרים

אני יקוק א-להיכם:

Because they are my avadim

whom I have taken out of the land of Mitzrayim;

they must not be sold in the way an eved is sold.

Because the Children of Israel are avadim to Me;

they are My avadim 

whom I have taken out of the Land of Mitzrayim

I am Hashem your G-d.

Why do we owe gratitude for being saved from one avdut, if our redeemer now claims us for Himself?

Chazal note that G-d’s claim here is used exclusively to protect us from human masters.  We cannot be sold in the manner that humans sell their slaves; we cannot be subjected to pointless commands whose only purpose is to demonstrate dominance (avodat perekh); we cannot be sold permanently.  But why does G-d allow any form of avdut at all?

A spectacular passage on Bava Metzia 10a offers a subtle and brilliant meditation on the problem of avdut.

The passage starts with a formal legal statement that seems utterly irrelevant to our topic:

Rav Nachman and Rav Chisda both said:

 “One who picks up a lost object in order to acquire it for his fellow – 

his fellow has not acquired it.

On the surface, this seems morally questionable.  If the law allows me to acquire a lost object selfishly, why should it deny me the capacity to do so altruistically?

The Talmud explains:

Why?  

Because he is viewed as one who seizes something on behalf of a creditor

 when that seizure harms the interests of third parties, 

and one who seizes something for a creditor when that seizure harms the interests of third parties 

does not acquire the seized object.

This requires some unpacking.

To acquire something on behalf of someone else, I must be their agent.  If they appoint me, I essentially become them legally. But if they have not appointed me, my agency is a construction, a sort of legal fiction, which the law allows only when it benefits my fellow and harms no one else.

A sample case where it works is when I seize property from a defaulting debtor on behalf of a creditor.  A sample case where it doesn’t work is when I seize the same property, and by doing so ensure that other creditors will not be fully repaid.

How does this relate to lost objects?  Lost objects are a financial opportunity for everyone in the world.  When I acquire a lost object for one person, I am depriving everyone else of that opportunity.  So lost objects cannot be acquired on behalf others except by appointed agents.

Rava challenges Rav Nachman (and Rav Chisda) from the following beraita:

What a worker/poel finds – he keeps for himself.  

These words apply when the employer said to him: 

“Weed with me today, hoe with me today”. 

But if the employer said to him 

“Do work with me today” 

his findings belong to the employer”.

It seems from this beraita that one person – specifically a worker – can acquire lost objects for another person – specifically their employer – even if they were not hired explicitly for that purpose!?

Rav Nachman replies:

Workers are different 

because his hand is considered as if it were his employer’s hand.

The simplest way of explaining Rav Nachman is to say that the default employment contract includes a clause appointing the employee as the employer’s agent for the purpose of acquiring lost objects.  But this is true only if the hiring language is generic – “do work”.  If the hiring language is task-specific – “hoe”, or “weed” – then all other tasks, for example acquiring lost objects, are excluded.

Now Rava raises the stakes.  Rav Nachman’s response is wrong, he says, because it contradicts a statement by Rav:

A worker can back out of his contract, even in midday.

What is the contradiction?  How does the right to withdraw from a contract change the terms of the contract while it is in force?

The answer is that Rav Nachman’s argument was not really about implicit contract clauses.  Rather, he regarded employees as fundamentally slaves – his language is parallel to language that prevents slaves from acquiring property even for themselves.  Rava objects that workers are not slaves, because workers can free themselves.

But Rav Nachman has an answer this time as well.

So long as he hasn’t backed out, his hand is as if it were his employer’s hand.  

When he reneges, another factor comes into play – 

“For to Me are the Children of Israel avadim (servants/slaves), they are My avadim” – 

they are My avadim, not avadim of avadim.

Rav Nachman holds that there is no fundamental difference between employment and slavery.  Just – the Torah states that we can only be subcontracted, because G-d holds our primary contract, and He allows us to break the subcontract.  (This is true even for the eved ivri, but because he was paid in advance, he cannot break his contract without returning a prorated portion of his advance.) For all other legal purposes, employees are slaves (perhaps even without the legal protections that the Torah grants slaves specifically).

Except this is not fully true.  Not all workers are slaves, only those who were hired without task-specific language.  Workers hired to “hoe” or “weed” own their own “hands”, and therefore they cannot acquire lost objects for their employers.

We end up with a hierarchy of avdut.

Absolute avadim are bound to do whatever their master wills them to do.  They cannot choose to end the relationship, and they have no task-autonomy.

An eved ivri has no task-autonomy, but he can theoretically end the relationship.  However, it is unlikely that he will be able to do so in practice, since he must return a prorated portion of his advance, and he entered the relationship because he needed the advance.

An employee who is hired per-time, without designated tasks, is still a slave while at work.

An employee who is hired for designated tasks, and who can end the relationship. is much closer to freedom.

But absolute freedom means working only at what you want to do now. That’s why Mishnah Bava Metzia 75a declares that it is morally wrong to trick someone into working for you instead of independently, even if they do the exact same work and end up with exactly the same profit.  Absolute freedom means never being bound even by your own commitments to others.

The Torah takes simultaneous stands against slavery and absolute freedom by grounding the former in our subordination to G-d’s will. Halakhic People can recognize that there are times and ways in which we should permit or require people to make commitments that they cannot undo unilaterally.  But we should also see freedom as the default, and countenance the surrender of autonomy only grudgingly.  This attitude should be at the core of Jewish labor ethics, and should affect our conceptions of psak and I suggest our theologies as well.

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PSHAT and MEANING: AN I on an EYE for an Eye-IN

by Rabbi Aryeh Klapper

There is a perhaps apocryphal story about Jacques Derrida, a prolific literary critic who believed that words were incapable of transferring meaning from the author to the reader.  Derrida was asked: “Why do you write, if you don’t believe that anyone will understand your intent?”  He responded: “I am a determinist; I don’t believe I have a choice.”  This dvar Torah is in a less extreme version of that spirit.

Words don’t mean anything by themselves.  At least, not after Migdal Bavel; my preferred interpretation of that story is that it describes a transition from a natural language to artificial languages. In a natural language, sound, orthography, and meaning are intrinsically connected. The Rabbinic term for this may be “lashon hakodesh”.  In artificial languages, sound, orthography, and meaning are connected to each other only arbitrarily.  Onomatopoeia is a vestigial example of natural language, for example bees buzzzzzzing instead of hissing.  You can see from the “u” that the correspondence is not really crucial; a buzz would sound the same if it were a bizz or a bazz or a bezz or a bozz, or a bzzz, or for that matter a hiss.

Let us take a perhaps provocative example: What is the pshat of the phrase “I’ll kill you for that”?  I’m asking this question not philosophically, but rather as a matter of practical law.  The halakhah famously works on the principle habo lehargekha hashkem lehargo =”one who comes to kill you – anticipate and kill him first”.  In order to apply this principle, what evidence does one need of the other person’s intent?  Is a stated threat sufficient?  One halakhic authority held that it depends on whether the threatener is a talmid chakham or rather an am ha’aretz.  A scholar means by that phrase only that s/he is very angry with you, whereas an ignoramus vaday yaaseh kemo sheamar =will certainly do as he said.

Taken at face value, that scholar meant the following.  Scholars are so psychologically distant from the possibility of violent action that their threats of murder must legally be understood as hyperbole.  When said by a scholar, “I’ll kill you” means “I’m very angry with you”, or at most “I’m so angry with you that if I were not a scholar I would kill you”.  When said by an ignoramus, “I’ll kill you” is an expression of actual intent to commit violent action.  In other words, the pshat of “I’ll kill you” resides not in the words themselves, but in the interrelationship of words and speaker.

Some readers may find that interrelationship intuitively compelling.  Of course intellectuals, or at least Torah intellectuals, or at least people who have spent significant effort on understanding certain texts about Jewish law, are less likely to engage in violence.

Other readers, perhaps based on personal experience of yeshiva politics, will not find the interrelationship even plausible.  If nonetheless committed to the position of the unnamed halakhic authority above, they may develop cynical explanations.  For example, they may claim that any talmid chakham with actual murderous intent would be clever enough not to express that intent and put the intended victim on guard.  Or even more cynically, they might claim that the law was formulated by a talmid chakham so as to give talmidei chakhamim an advantage in potentially deadly confrontations; the am haaretz is never permitted to go for his gun first.

Other readers may claim that the interrelationship is itself dependent on a broader social context.  In some times and places, talmidei chakhamim are less likely to mean their threats than amei haaretz; in other times and places, the reverse is true.  They may suggest as well that it depends on the subject matter that lead to the threat, or on the physical and social context in which the threat is offered, or even on which yeshiva educated the threatener.

To close this section, I need to note that “anticipate and kill him first” does not legally mean that one is encouraged or even permitted to do so when other means of effective self-protection are available, such as calling the police (and letting them and the judicial system decide whether the threat was intended literally).

Now – what does all this tell us about the pshat of ayin tachat ayin =“eye for eye”, in Vayikra 24:20?  (Readers can decide for themselves whether to presume that it has the same meaning in Shemot 21:24, or whether their horror of Torah redundancy forces them to the opposite presumption, that it cannot have the same meaning in both places.)

The Halakhah of course is that judicial authorities are not permitted to remove or blind the eye of someone who caused someone else’s eye to become blind.  There are fundamentally three approaches to asserting that this is the “original intent” of the law as it is found in Chumash.  (I want to be clear that “ayin tachat ayin” may appear in legal codes that either precede Chumash, and there is no reason to assume that the meaning are consistent across contexts.  The same is true for later non-Halakhic codes.  Modern “back to the pshat” movements might very well produce codes which intend the phrase literally.)

  1. No legal system could ever have intended the phrase literally, because there are inevitable corollary consequences (such as loss of blood) that would prevent exact proportionality.
  2. The literary context of the phrase makes clear that it refers to financial compensation.
  3. The Torah as a legal document must be interpreted in accordance with its own rules of statutory construction, and not in the same way as one would interpret a text written in ordinary language.  Those rules demonstrate that it refers to financial compensation.

I find some versions of each of these approaches compelling.  But my purpose here is not to explicate those arguments – for summaries, see for example Ibn Ezra and Ramban.  Rather, I want to try a fourth approach in response to those who believe that Rabbinic interpreters consciously changed the meaning of the phrase from physical retaliation to financial compensation because they had independently and self-consciously acquired a moral discomfort with the literal meaning.

My argument is that

  1. In order to demonstrate morality-based reinterpretation, you have to show that interpreters read these texts differently than they would have read the same texts absent moral pressure.
  2. In order to demonstrate self-conscious morality-based reinterpretation, you have to show that interpreters understood morality as different in kind than the tools they used to interpret texts in accordance with the texts’ original meaning.

In other words,

  1. If it can be shown that the Rabbis might have understood “eye for eye” as referring to financial compensation even if they had had no moral objection to understanding it literally, then there is no evidence that they engaged in morality-based reinterpretation
  2. If it can be shown that the Rabbis thought that reasonableness was a way of determining the original meaning of texts, then there is no evidence that they engaged in self-consciousmoral reinterpretation.

Now with regard to all these arguments, we can argue that there is also a qualitative element.  If understanding “eye for eye” as referring to financial compensation is more radical textually than rabbinic moves which have no plausible moral motive, then one can argue that this particular move must still have a moral motive.  But if it turns out that this is just a garden-variety rabbinic interpretive move, then there is no basis for assigning morality a role.

My parade countercase in this week’s parashah is the law found in Vayikra 22;28:

ושור או שה

אתו ואת בנו

לא תשחטו ביום אחד

An ox or a sheep

It (masculine) and it(masculine)’s son

You must not slaughter them in one day.

On Talmud Chullin 78b we find the following Tannaitic text:

“אותו ואת בנו” –

נוהג בנקבות ואינו נוהג בזכרים

חנניה אומר: נוהג בין בזכרים ובין בנקבות.

(The law of) “It (masculine) and it(masculine)’s son” – 

applies to females and not males.

Chananiah says:

It applies to both males and females.

It seems to me that the anonymous first position is by any measure a more radical textual move than saying that “an eye for an eye” is a metaphor. There is no morality motive for this move. (It seems necessary to say that willingness to be fluid about gender in grammar says nothing about willingness to be fluid about gender in practice).  Therefore, I contend, there is no basis for assigning such a motive to the Rabbinic understanding of “eye for eye”, except insofar as moral intuition was an ordinary Rabbinic tool for determining the reasonableness of an interpretation.

Shabbat shalom!

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