Category Archives: Weekly Devar Torah

Authorized and Unauthorized Additions

by Rabbi Aryeh Klapper

אֵ֣ת כָּל־הַדָּבָ֗ר אֲשֶׁ֤ר אָנֹכִי֙ מְצַוֶּ֣ה אֶתְכֶ֔ם אֹת֥וֹ תִשְׁמְר֖וּ לַעֲשׂ֑וֹת לֹא־תֹסֵ֣ף עָלָ֔יו וְלֹ֥א תִגְרַ֖ע מִמֶּֽנּוּ:

Everything that I am commanding you – that is what you must observe, to do.  You must not add to it; and you must not subtract from it.

Devarim 13:1 can be read as a free-standing and self-sufficient sentence, which is why it starts a new chapter.   However, the traditional Jewish punctuation reads it as the true conclusion of the preceding chapter, which ends:

לֹא־תַעֲשֶׂ֣ה כֵ֔ן לַיקֹוָ֖ק אֱלֹהֶ֑יךָ כִּי֩ כָל־תּוֹעֲבַ֨ת יְקֹוָ֜ק אֲשֶׁ֣ר שָׂנֵ֗א עָשׂוּ֙ לֵאלֹ֣הֵיהֶ֔ם כִּ֣י גַ֤ם אֶת־בְּנֵיהֶם֙ וְאֶת־בְּנֹ֣תֵיהֶ֔ם יִשְׂרְפ֥וּ בָאֵ֖שׁ לֵֽאלֹהֵיהֶֽם:

Do not do the same for Hashem your G-d, because it was all the abominations of Hashem that He hates that they did for their gods; yes, they would even burn their sons and daughters in fire for their gods.

Seforno uses this connection to make the startling claim that the prohibition against “adding to” is needed to prevent Jews from voluntarily instituting child sacrifice for the sake of Heaven.

“לא תוסף עליו” – כי אולי תוסיף דבר נמאס אצלו יתברך, כמו שיהיה אם תרצה להוסיף מיני עבודות לא-ל יתברך, שלפעמים תהיה העבודה הנוספת דבר נמאס אצלו ית’, כמו שריפת הבנים.

“You must not add to it” – because perhaps you will add something that is revolting to Him May He be Blessed, as would happen if you wanted to add forms of service to the Divinity May He be Blessed, that on occasion the added service would be revolting to Him May He be Blessed, like the burning of sons. 

Seforno’s shocking suspicion also implies an important liberalism: G-d does not reject humanly conceived and initiated worship out of hand.  If we could be trusted to choose actions which pleased Him, perhaps He would even prefer such freely-chosen worship above obedient service.

By contrast, Rabbi Samson Raphael Hirsch reads our verse as rejecting human religious autonomy in principle.

“Everything” the parshiyot-division of the Masorah shows that this verse is the conclusion of what is said before it, and this is its meaning: For this reason, you must not produce for yourself new ways of Divine service, you must not seek to ingratiate yourself before your Divinity in ways different from those that were established by Him.  Only if you faithfully perform that which he commanded will you express the submission which He is expecting from you.  He imposed mitzvot on you and taught you how to fulfill them, and these mitzvot and these ways of fulfilling them express His will. 

Rav Hirsch seems to believe that worship in a freely-chosen form is oxymoronic.

This profound philosophical dispute between Seforno and Rav Hirsch may reflect an even deeper disagreement about the nature of the Oral Law.  Why doesn’t the rabbinic corpus constitute an illegitimate addition?

For Rav Hirsch, the Written Law is famously the “lecture notes” for the Oral Law.  This means that the Oral Law actually came first – the Written Law is just a way of encoding it.  There is nothing creatively human about the Oral Law.  Even the most brilliant rabbis were merely answering complex crossword clues correctly.  This tracks with his absolute prohibition against adding.

By contrast, Seforno may acknowledge that while the Oral Law is under the authority of the Written Law, it is the product of an unscripted human encounter with the Divine Will, and may reflect genuine creativity.  For Seforno, the prohibition is against undisciplined adding.

This theme is elaborated by Rabbi Pinchas Halevi Horowitz (1730-1805) in his Panim Yafot.  Rabbi Horowitz reads the opening of the verse as a reference to the Oral Law – “Everything that I am commanding you” includes matters that are not explicit intentions of the text.  He embraces the paradoxical formulation on Megillah 19b that G-d showed Mosheh everything that the Soferim would eventually originate.  The Talmud says that this refers specifically to the rabbinic mandate to read the Megillah on Purim, but Rabbi Horowitz reads it more broadly.

He then adds an important excursus on the nature of Torah study.

שלימוד התורה הוא בכל דור בשני פנים

האחד ללמוד התורה שכבר נתון בכתב ובע”פ בכל הדורות הקודמין, וזה הלימוד מקרא ומשנה,

והלימוד השני הוא עיון והשכל הטוב חלקו מאת ה’ בתורה, כמ”ש ותן חלקינו בתורתיך,

. . . כי שתי הפנים האלה התחלפו בימי שנות האדם

בילדותו א”צ כ”כ שקידה וזיכרון הטוב,

כמ”ש [שבת כא ב] בגירסא דינקותא עולה לזיכרון יותר מבימי הזקנה,

אבל בעיון השכל הוא בהיפוכו כי דעתם מתיישבת עליהם,

. . . the study of Torah in every generation has two aspects

The first is to lean the Torah that has already been given, in writing or orally, in all the previous generations.  This learning is called mikra and Mishnah.

The second type of learning is ?analysis and excellent comprehension? which is his portion given out by Hashem in the Torah, as is written “and give our shares in Your Torah”.

. . . These two aspects reverse during a person’s years

In his youth he does not need so much diligence and good memorization, 

as per Talmud Shabbat 21b that the learning of youth arise in memory more than that of old age,

but the investigation of the intellect is the reverse, because their mind becomes settled . . .  

According to Rabbi Horowitz, the human “share” in G-d’s Torah is not what we take out of the text, but rather what we put into it.  It is our creative contribution.  But such contributions must be built on a solid basis of knowledge of the written Torah and all its previous interpretations, including those once regarded as creative.  In turn, our successors will be required to memorize our creative contributions by rote before being allowed to attempt such contributions themselves.

Rabbi Horowitz thus sets out a model for the discipline that Seforno sees as the difference between legitimate creativity and illegitimate adding.  Creativity must go hand in hand with genuine commitment to and respect for the past.  Moreover, creativity is not an end in itself; rather, its value is predicated on being filtered via sound and mature judgment.

Let us be frank – this model may not be useful in real life.  There is no formula for determining the genuineness of commitment to the past.  Making memorization a requirement simply privileges those with superior memories.  Similarly, good and mature judgment are often not recognized, especially by those who lack them.

What may help is an acknowledgement and keeping-in-mind of the Torah’s caution that creativity can lead to human sacrifice.

The Kotzker Rebbe reportedly asked:  Why did the angel call out to Avraham two commands-to-stop at the Binding of Isaac?  Wouldn’t Avraham have stopped once G-d said “DO NOT send your hand forth against the child”?  Why did He need to add “and do nothing at all to him”?

More astonishingly yet, Rashi claims that Avraham did not stop in response to “DO NOT send your hand forth”; rather, he asked for permission to at least wound Yitzchak, which is why G-d continued “do no meumah (a pun on mum=blemish) to him”.  Why would an apparent sadistic streak emerge, rather than a joyous celebration of the reprieve?

The Kotzker replied: The most difficult temptations are those which convince a person that letting his or her worst evil inclinations flourish is actually a fulfillment of the Divine Will.  We may convince ourselves that the very absurdity of an action is what proves its religious origin: who but G-d would think of such a command?  Or we may convince ourselves that only the most ethically counterintuitive actions can prove that we are acting out of genuine religious devotion, that we are utterly engaged in the fulfillment of His will rather than our own.  Thus the true test of the Akeidah was not whether Avraham was willing to sacrifice Yitzchak, but rather whether he was able to abort the sacrifice when G-d revealed his error.  And, the Kotzker concludes, even Avraham was unable to stop immediately, even when presented with an angel telling him to stop – the angel had to tell him twice to keep him from drawing blood.

A reasonable argument can be made that the popularity of creative stringencies in contemporary Orthodoxy stems precisely from this impulse, especially in the areas of conversion and agunot.  There is real and culpable inconsistency in celebrating creative leniencies while denigrating creative stringencies.  At the same time, we should be hypersuspicious of any creativity that seems to draw strength from the number of victims it claims.

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The Hard Work of Improving Our Community’s Character

by Rabbi Aryeh Klapper

Improving a community’s character is hard: Just ask Moshe Rabbeinu!  Hashem replaced Moshe as leader only when after forty years, the same stimulus (thirst) led to the same response (hectoring complaint).    He did not expect real change in less than a generation.  Deepseated communal religious failures cannot be overcome rapidly or easily.

This essay will inevitably be read as a response to the arrests this week of Orthodox Jews for making fraudulent claim on government “safety net” programs.  Two points are therefore necessary by way of introduction:

1)      A society that genuinely believes in the presumption of innocence would not permit the deliberate public humiliation of people who are merely accused.  There is absolutely no excuse for the phenomenon of “perp walks”, no matter the person nor the crime.  Former Labor Secretary Raymond Donovan’s plaint after acquittal “Where do I go to get my reputation back”? carries added force in the age of social media.

2)      Journalism at its best is avodat hakodesh, sacred work.  Journalism at its worst is simply lashon hora supersized.  Articles should not uncritically pass on uncorroborated information provided by an anonymous law enforcement or prosecutorial official (likely breaching duties of confidentiality) that is clearly intended to cast aspersions on entire communities and serves no vital communal “need to know”.  Such articles should not be “shared” uncritically.

All that said, the reaction to the articles in both the Charedi and MO community indicates that many of us saw the worst-case scenario as eminently plausible.  If we’re right, that’s a good thing, or at least much better than denial.

Moreover, there was recognition in the MO community that while the specific sin in question may not be our failing, we share the underlying challenge of being successfully mechanekh (Torah-educating) for financial integrity.

Our response to this challenge cannot be merely curricular.  We need to acknowledge (usually with pride!) that there is currently no radical values-divide between Orthodox religious professionals and the Orthodox laity.  Values-failures in the system likely reflect those who are teaching, not what texts they are not teaching, or modalities they are not using.  Surely Moshe Rabbeinu tried having the Jews learn mussar along with gemara Nezikin!  Teaching Bava Kamma in every grade will not help if students emerge with a list of successful defenses against tort suits.  Teaching mussar will not help if a fundamental ethic being internalized is the worthlessness of human beings unredeemed by Torah.

So this 1300 word essay is not intended as a panacea.  My hope is to provide one analytic framework that may be helpful, and to add one religious concept/text to the conversation.

Analytically, I want to distinguish between “luxury problems” and “problems of luxury”.

A luxury problem is one that we can devote time and energy too only because we have solved more fundamental issues such as survival and sustenance.  For example: Rav Moshe Lichtenstein some years ago objected to declaring fast days during a drought until all the garden sprinklers in Israel had been turned off.  For a country that desalinates enough to handle all other needs, drought is a luxury problem.

A problem of luxury is one that is legitimately fundamental, but only because we have allocated our resources in particular ways.  For example: In the US and Israel today, even the temporary absence of running water is a fundamental problem with implications for survival, even though by historical or comparative standards the presence of (potable!) running water is a remarkable luxury.

Moral difficulties arise when societies are structured in ways that regularly generate problems of luxury for people who don’t have the resources to solve them.  For example, if a society largely supports its underclass by hiring them as gardeners, the absence of water for gardening threatens massive unemployment and economic devastation.

Here is a more relevant, but possibly controversial, example:  Sending talented Torah educators outside our community as kiruv professionals can reflect Torah luxury: it can mean that we have enough skilled teachers to ensure our own community’s thriving, and are generous enough to share our Torah resources with communities that face an existential cultural threat.  But if we consistently produce many more professional Torah educators than our community needs, so that the economic viability of our scholarly class depends on the continuing availability of kiruv jobs, then we create a problem of luxury.

And directly on point: Dignity and marriageability are each fundamental resources.  A society that allocates these resources disproportionately to those who meet financial thresholds, even those financial thresholds are well above what is otherwise needed for physical and spiritual comfort, creates problems of luxury.

I contend that both Modern and Charedi Orthodoxy are currently such societies.  It is of course true that individuals can and should resist the temptations to cheat or steal in order to overcome such problems of luxury.  But remonstrations about individual failures will generally register as hollow and hypocritical in a society that allocates dignity and social prestige more to wealth (or to the appurtenances of wealth, such as attending hyper-expensive schools) than to virtue.

The religious concept I want to introduce can be found all over the writings of NETZIV, but a core location is Responsa Meishiv Davar 2:9.  Netziv wonders why the Torah bothers to tell us in Bamidbar 21:26 that Cheshbon was the capital city of the Amorite King Sichon “who battled with the first king of Moav, and he took all his land from him, as far as Arnon”.  He connects this to a Talmudic (Bava Batra 78b) translation/interpretation of the previous verse:

Therefore the rulers say: Come make a Cheshbon = accounting!

The rulers refers to those who rule over their evil inclinations:

Come make an accounting means make an ultimate accounting, namely of the loss involved in a mitzvah against its reward, and the reward of transgression against its loss.

Why, Netziv asks, should those who “rule over their inclinations” need to engage in such an accounting?  Won’t it be obvious to them that mitzvot are worth doing and sins are not?

He answers that such people need to learn the lesson of Sichon’s triumph.  Moav’s king was unpopular, possibly deservedly so.  A group of Moabites turned to Sichon for help deposing him.  They assumed that Sichon would allow them to pick a superior replacement.  Sichon instead conquered their land for himself.

The moral of the story is that good intentions sometimes pave the road to destruction.  It is not enough to evaluate an action in the abstract; one must consider all its ramifications.  In that broad view, it will sometimes become clear that fulfilling a halakhic obligation is worthwhile, and even that transgressing a prohibition is worthwhile.

Netziv’s initial context is campaigns against heresy or halakhic lassitude in the rabbinate.  Granting that there are weeds of many kinds in the Torah garden – does the gain of eliminating them outweigh the costs of communal discord, or the inevitable reality that some people will be caused unjust or disproportionate suffering?  (I would add: what if one creates a “chilling effect” that discourages people from expressing creative ideas on issues that call for creative responses?  What if one turns many of the finest minds and souls away from Torah careers?  Some of our writers seem to think that napalm is an appropriate garden herbicide.)

But Netziv’s legitimation of moral pragmatism has much broader relevance.  In areas such as education, safety, inclusion, health, et al., our community often functions as if progress in one area has no cost in others.  These costs are often long-term and abstract.  Making them part of our communal cheshbon takes conscious effort and often a sacrifice of near-term gratification.  But our failure to do so creates environments which make the moral choices of the individuals in our community more difficult, and eventually but inevitably to the distortion of our communal structure of Torah values.

Improving a community’s character is hard.  We should think long-term and structurally rather than focusing solely on immediately improving individual choices.  We need mature willingness to acknowledge and account for the indirect moral and spiritual costs of direct moral and spiritual achievements.  Scholars, professionals, and laypeople must realize that we are each part of the problem and necessary contributors to any solution.

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

by Rabbi Aryeh Klapper

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

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

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

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

(Pirkei Avot 5:17)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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A Reintroduction to Halakhic Man – Part 1

by Rabbi Aryeh Klapper

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

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

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

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

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

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

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

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

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

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

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

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

A beraita:

Hillel the Elder had eighty students –

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

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

Twenty of them were intermediate.

The greatest of them was Yonatan ben Uziel;

the least of them was Rabban Yochanan ben Zakkai.

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

mikra or mishnah,

gemara, halakhot, and aggadot

didkdukei Torah and dikdukei Sofrim,

kalim vachamurim and gezeirot shavot

tekufot and gematriot,

the discourse of the ministering angels

the discourse of demons

the discourse of dekalim

parables of washermen

parables of foxes

great thing

lesser thing.

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

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

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

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

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

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

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

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

Shabbat shalom!

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Should the Sanhedrin Be Elected?

by Rabbi Aryeh Klapper

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

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

וְנָשְׂא֤וּ אִתְּךָ֙ בְּמַשָּׂ֣א הָעָ֔ם

וְלֹא־תִשָּׂ֥א אַתָּ֖ה לְבַדֶּֽךָ

They will bear the weight of the people together with you

You will not bear it alone

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

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

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

אֶסְפָה־לִּ֞י שִׁבְעִ֣ים אִישׁ֘

מִזִּקְנֵ֣י יִשְׂרָאֵל֒

אֲשֶׁ֣ר יָדַ֔עְתָּ

כִּי־הֵ֛ם זִקְנֵ֥י הָעָ֖ם וְשֹׁטְרָ֑יו

Gather for me seventy men

from among the elders of Israel

whom you know

that they are elders of the people and its bailiffs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Was Rabbeinu Gershom a Halakhic Progressive?

by Rabbi Aryeh Klapper

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

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

First, he banned polygamy.

Second, he banned divorcing women without their consent.

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

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

Banning nonconsensual divorce changes the power contours of marriage.

What motivated Rabbeinu Gershom to make these decrees?

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

אך כי ראה הדור פרוץ ומזלזלין בבנות ישראל בזריקת גט,

ותקן להשוות כח האשה לכח האיש

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

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

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

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

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

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

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

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

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

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

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

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

In the days of the Talmudic Sages, 

if a wife developed such a blemish – 

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

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

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

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

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

as if such a blemish developed in a man – 

we would not compel her to remain with him, 

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

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

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

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

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

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

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

But Rabbeinu Gershom set a boundary in this matter.

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

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

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

because Rabbeinu Gershom’s enactment 

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


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

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

just as the man divorces only willingly, 

so too the woman is divorced only willingly.

But it would be completely implausible to say 

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

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

Even if you were to say

that he standardized the issue

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


in a situation where the man would be coerced to divorce

the woman too is coerced to accept the divorce

and if she refuses to accept it – 

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

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

as this is no claim,

since she is legally obligated to accept the divorce

as I have demonstrated. 

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

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

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

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

Stay tuned for Part 2 of this series coming soon!


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

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

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