Category Archives: Weekly Devar Torah

Rationalism, Mysticism, and the Search for Order

by Rabbi Aryeh Klapper

It is a peculiar error of modernity that rationalism and mysticism are presumed to be opposites, when historically they have generally been allies.  I first learned this by reading Bertrand Russell, but the same point can easily be made within Jewish tradition, for example by studying Rambam’s concepts of worship and Providence.

One source of the modern confusion is semantic.  Rationalists tend to define those who oppose them as mystics.  So let us begin by defining our terms.

Rationalism, for the purposes of this devar Torah, means “the belief that one can derive all abstract truths and proper situational behavior by formally reasoning from first principles”.

Mysticism means “the belief that there are aspects of reality that cannot be accessed through physical experience, but can be accessed through other means”.

Platonists, who believe that abstract ideas are “more real”, than physical objects, which are merely ‘shadows’ of the ideas – are mystics.  And rationalists, like mathematicians, will always have a tendency to Platonism.  In twentieth century Jewish thought, I have always been struck by those who consider Mordechai Kaplan a rationalist, when his belief in “the force that makes for good in history” seems as mystical as they come.  Obi Wan-Kenobi was no anti-mystic (And Kaplan never paid enough attention to the problem of the Dark Side).

Ralbag’s commentary on this week’s parshah provides another example.  Here are the eleventh and twelfth morals he draws from the story of Yehudah and Tamar:

11. That actions which are intended/prepared for good purposes, even though they are in and of themselves somewhat shameful, the one who puts effort into them will be aided by Hashem the Blessed.  Thus you will find that Tamar was aided in this action, such that her aim was achieved, namely that she became pregnant from Yehudah and bore him children, one of whom became the great of the tribe of Yehudah.  Now she did this with wisdom, covering her face so that he would not recognize her, and taking security from him to prove to him that it was from him that she was pregnant.

12. To tell of the strength of Hashem’s Providence toward those He loves, that when they wish to do a shameful act, Hashem the Exalted prepares for them something that will satisfy their thirst without shame.  In this case, consorting with prostitutes was shameful for the “shlemim” (= people of integrity) even before the giving of the Torah.  This is what Yehudah meant by saying “let her have them, lest we become objects of ridicule”, and Hashem prepared for him someone (Tamar) who had a legal claim on him, in accordance with what was practiced (under the rubric of “yibum” = levirate marriage ) before the giving of the Torah.

Ralbag certainly qualifies as a rationalist, and yet here he introduces fascinating forms of Providence without any apparent textual compulsion – his morals are not derived from the text, rather he mines the story for support for principles he already believes.  I note tangentially that these morals are dangerous as well as fascinating, and one should avoid ever relying on them prospectively.

What rationalism and mysticism share, I suggest, is an unwillingness to tolerate disorder, to believe that there is anything in the universe that cannot be systematized.  To a significant degree this is simply a human characteristic – Kant’s disproof of the argument from design was that the human mind inevitably imposes order on data, that we are incapable of relating to information without organizing it into patterns. What is often underappreciated is that Kant’s disproof works as well or better against science as against religion.  The entire scientific enterprise rests on the presumption that the universe as a whole is consistent, that things happen for reasons other than randomness – but what if that consistency exists only in our minds, which cheerfully filter out anomalies as “experimental error”?

The desire to systematize, to construct a world in which no stray locks of hair fall irrepressibly over our mental eyes, also drives the Brisker derekh in Talmudic learning.    Of course, there are mystics who embrace contradictions, i.e. breakdowns in the capacity of reason to explain the world – the affinities between the writings of Rav Kook and those of Walt Whitman can be striking – but at least in the former case, Hegel provided a model in which the embrace of contradictions could itself be systematized, and thus to intellectually assimilate even more data into a recognizable pattern.

Psychologically, it may be that the perception of order is a necessary condition for happiness.  Rabbi Irving Greenberg has explained compellingly that aveilut=mourning fundamentally consists of experiencing the world as disordered.

Ordered systems always require ignoring some of the data, and greatness often consists in knowing which data can be safely ignored. The risk, in Torah as in science, is that one will choose to ignore the wrong details.  In both realms an important antidote is curiosity, the abiding interest in anomalies and loose threads, along with the capacity to temporarily tolerate disorder in the hope of finding a better pattern.

Obviously, that kind of curiosity is more attractive to those who find existing patterns insufficient for other reasons.  And for the same reason, it can be threatening to those who find existing patterns deeply satisfying.  Nor should we believe that the result of pulling at loose threads is always a more beautiful tapestry – sometimes the result is simply a loose string, or an amateurishly woven jumble. This conflict of sensibilities may itself be a useful pattern for explaining some of the current issues of controversy within Modern Orthodoxy.  May we find the wisdom to know which threads will benefit from pulling and reweaving, and which are best left alone.

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How to Teach Halakhah: From the Transcript of an Ongoing Podcast

by Rabbi Aryeh Klapper

We need to think about halakhah curricularly.  I don’t mean that questions of the pedagogy of halakhah should be confined, or even largely contained, within a halakhah curriculum.  Rather, we need to think about how we as a school or community teach halakhah holistically – what is our students’ overall experience of the practice and study of halakhah?

Let’s start by distinguishing between “whether” and “why” classes.

In a “whether” class, the default goal is to be comprehensive, to present every interpretive option, and to present each option in its best possible light.  “Whether” classes validate multiple practice options, and empower students to make choices.

In a “why” class, there may be less need to present positions that we won’t end up following leHalakhah, at least so long as the students would not think of or encounter those options on their own.  “Why” classes convince students to exclude options, and to make only choices which the teacher would approve.

Both types have a place in our schools and shuls.  But they require very different pedagogies.

In every pedagogic context, teachers must decide whether their primary goal is empowerment or persuasion, validation or standardization.  They must decide whether setting themselves up as a source of authority is a desideratum; and whether they seek to position the class as deepening the students’ appreciation of their community, or rather as critiquing it.  Sometimes these decisions can be made ad hoc; sometimes they require a sustained and consistent pedagogic approach.

These choices often reflect the instructor’s goals for his and her students throughout their lives.  Should students learn to see halakhah as a menu from which they can choose (not that they can refuse to eat, or skip a course – but they have options for each course) or as a blueprint they must follow?  Should their study of halakhah be an experience of autonomy, or rather of submission?  Should their default be to ask a sh’eilah whenever they experience uncertainty, or only when they have a conflict of interest, or when the stakes are communal rather than individual?

On a deep level these are false either/ors.  The experience of studying halakhah should be one of both submission and autonomy; students should see halakhah as both blueprint and menu; and there are many different kinds and degrees of uncertainty.  We must also distinguish among “asking a sh’eilah”, “looking it up yourself”, “doing the research yourself”, and “making your own decision”.  But pedagogically it is often important and necessary to choose which side of these dichotomies to emphasize.

Let’s concretize these issues with a tale of two teachers, Ayelet and Brokhoh.  Ayelet falls on the authority/standardization/blueprint side of the spectrum, while Brokhoh falls on the autonomy/validation/menu side.  Let’s make the issue the kashrut of a school sukkah under windy conditions, where the skhah has been blown away from the walls toward the middle of the roof.  Ayelet and Brokhoh are each scheduled to teach their classes in the sukkah, with school-provided cookies so students can fulfill the mitzvah.

Each teacher will think of the issue of dofen akumah, the concept that a sukkah is valid even if kosher skhakh begins up to 4 amot away from a required wall because we treat those 4 amot as an extended wall, which goes up to where the kosher skhakh, or “roof”, begins.

Each teacher will discover after minimal research that there may be a machloket rishonim, a disagreement among medieval authorities, as to whether this principle can be applied if there is in fact just open space in the 4 amot, rather than invalid skhakh.  According to the Encyclopedia Talmudit, the issue depends on whether we view the wall as literally “bent over”, in which case the wall must continue physically, or rather as if it is “moved over” so that its vertical component reaches the kosher skhakh.  In that case the horizonal space can be ignored, so it makes no difference whether it is empty or filled.  Most rishonim hold that it is considered “bent over”; therefore most rishonim hold that it must be solid; therefore a sukkah whose skhakh is blown more than three tefachim away from a necessary wall becomes invalid.  QED.  So, Ayelet concludes as she emphatically takes the cookies off the table, our class will not be eating in the Sukkah today.

What questions was Ayelet asking herself as she read the Encyclopedia?  It seems to me that she focused on clarity and authority.  How can the dispute be most clearly and neatly explained?  What are the “nafka minas”, the practical differences, that flow inevitably from the clearly identified and explained conceptual positions?  Which position has more authority attached to it?  How must we act?

Brokhoh also read the Encyclopedia Talmudit.  But her conclusion from its citations is that the issue has not really been addressed directly by the poskim, which means that this is an opportunity for the students to think for themselves.  She has a different set of questions than Ayelet : Which interpretation of dofen akumah fits better with the nominal phrase itself?  Which interpretation seems a better explanation of the Talmudic passages in which the term appears?  If walls need not reach vertically up to the skhakh, so that we treat empty vertical spaces as extensions of the walls, why can’t we treat empty horizontal spaces as extensions of an L-shaped wall?  What about spaces that still have a framework, just not enough skhakh to be kosher?  What if the framework is tight-knit enough to meet the standards for a valid wall, even though it would not be enough for skhakh?  Even if she can explain some or all of these issues to the students, will they understand them well enough, and have the breadth and maturity necessary, to evaluate them sufficiently to make their own decisions by the end of a single period?  If she puts away the cookies because they can’t make a decision, will they learn about the seriousness of the process, or rather about its futility?  If she encourages them to eat the cookies, will they come to see halakhic discourse as a mere language game divorced from the realities of life?

There is a deeper issue hidden in the artificial limitation of the Ayelet and Berokhoh’s research to the Encyclopedia Talmudit.  Which is: What sort of competencies are needed to teach halakhah, in what ways?

It might be useful to think about a science classroom as an analogy.  Science can be taught as an assemblage of existing knowledge, or as a process of discovery.  A teacher may be excellent at digesting presentations of scientific consensus and of conveying that digest to students, but have no capacity to convey how that consensus was arrived at, or the limits of that consensus.  For example, he or she may have no genuine understanding of research protocols, or of the extent to which “scientific method” is a poor description of the methods used by scientists (especially those engaged in highly creative science).  I was deeply affected by Thomas Kuhn’s biting critique of most high school labs, in which an experiment is judged a success or failure based on whether it achieved the predicted result, and the reaction to “failure” is to repeat the experiment until it “succeeds”.  The teacher may also wish to encourage, or rather to discourage students to consider whether they agree with the consensus based on their intuition and the evidence available to them.

Encouraging students to think independently, no matter how carefully you try to circumscribe the methods they use, will always lead to some students thinking things the teacher passionately disagrees with.  In that kind of science classroom, some students will conclude that global warming is not caused by human activity; the same will happen in a halakhah classroom.  Teachers and schools need to decide whether and how they can handle this.  (Note: Ayelet’s students are much less likely to voice their disagreements with her presumptions in class and in assignments than Berokhoh’s are, but this does not demonstrate that she is more effective than Berokhoh in shaping the broad parameters of her students’ longterm thinking. But Ayelet does not have to deal directly with students whom she knows reject her assumptions, or with student work that upsets her. )

Moreover, Berokhoh is unlikely to be able to effectively teach the way Ayelet does, and vice versa, because each of them likely is teaching halakhah the way they themselves experience it.  So a school or community needs to decide whether that diversity is a strength or a weakness – or my preference, to consider how to make that diversity a strength.  Part of that involves deciding whether education happens best when teachers are in their intellectual and spiritual comfort zones, or whether there is value in pushing teachers to model dealing with discomfort.

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Drinking Eyes and Kissing Ewes

by Rabbi Aryeh Klapper

When Yaakov saw Rachel, daughter of Lavan, brother of his mother,

and the flock of Lavan, brother of his mother,

Yaakov approached

He rolled/revealed/rejoiced the stone off the mouth of the well

He kissed the flock of Lavan, brother of his mother

Yaakov gave Rachel a drink . . . 

Nechamah Leibowitz z”l used to joke that every Yeshiva student knew ten explanations for how Yaakov could kiss Rachel, but not that an explicit verse in the Torah forbids lying.  Now we can (tongue in cheek) suggest an eleventh explanation.  Yaakov did not actually kiss Rachel; he merely gave her a drink, albeit after drinking in her appearance.  What he kissed were Lavan’s sheep.  The mistake arose because the Torah here uses verbs with identical letters – vav, yud, shin, qof – to mean “kiss” and “give drink to”.

But our confusion about Yaakov’s actions seems to mirror Yaakov’s own confusion in the text.  Both Rachel and the flocks belong to “Lavan, brother of his mother”, and he notices them both before deciding which to water and which to kiss.  Furthermore, is Rachel a name, or rather a common noun?  If the latter, it means “ewe”, so Yaakov was kissing sheep either way?

Now we might say that Rachel must be human because she is the daughter of Lavan, who is human.  But later in the parshah, Lavan removes from Yaakov’s flock all the speckled and brown sheep, so that Yaakov remains with the flock of leftovers that are Lavan, or white.

Lavan removes the speckled and brown sheep because he has agreed that Yaakov’s salary for shepherding will be all the speckled and brown lambs born that year.  But his original offer to Yaakov in Hebrew is “NKBH your salary on me, and I will give it”.  The standard commentators translate NKBH as “make clear” or “cut” (meaning give a fixed value to).  The Zohar, however, notices that NKBH can also spell nekeivah, female.  Lavan expects Yaakov to again ask for a woman as recompense for his work, just as he had worked seven or fourteen years for Rachel.  He is taken aback when Yaakov asks for actual sheep.

Asking for sheep rather than women reflects a new maturity in Yaakov.  The Torah explains clearly what causes this development: Yaakov thinks of leaving Lavan only after Yosef is born.  The birth of Yosef enables Yaakov to recognize Rachel as a person, rather than as the best-looking of Lavan’s flock.

This new recognition makes him feel the need to have his own flock, and not depend on Lavan, in part because he realizes – perhaps for the first time – that he would like to grow old together with Rachel rather than replace her if she ages poorly.

Rachel was fully aware of Yaakov’s attitude.  Perhaps she was present when Yaakov, after completing his first seven years of labor, came to Lavan and said: “Hubba my wife, and I will have sex with her” (29:21).  His failure to mention Rachel by name may have given Lavan the idea of substituting Leah, and In Chazal’s understanding of the narrative, may have induced Rachel to cooperate with the switch.  In any case, Rachel throws Yaakov’s words back in his teeth when she says “Hubba sons to me, and if not, I am dead/will die”.  She is correct that only bearing his child will make her fully alive to Yaakov.  But her words become bitterly ironic in retrospect when she dies in childbirth.

The late medieval commentator R. Isaac Arama, in his Aqeidat Yitzchak, points out that Yaakov never accepts a traditional salary from Lavan; he works either for Rachel or for his own flock.  R. Arama suggests that Yaakov and Lavan were engaged in a complex social negotiation from the very beginning.  Lavan’s seemingly generous offers (29:15 and 30:20) to let Yaakov set his own salary are actually attempts to subordinate him, to convert him from an honored guest into a contract laborer.  By demanding first Lavan’s Rachel, and then a share of the flock, Yaakov constructs modes of compensation that he believes will generate rather than diminish social equality.  The success of his last mode is captured by Lavan’s sons declaration (31:1) that “it is from that which is our father’s that he has achieved all this kavod/dignity.”  Yaakov’s possessions are for the first time not seen as part of Lavan’s family fortune.  Having his own sheep gives him enormous dignity.

What about his first mode?  A difference between people and sheep is that Rachel and Leah do not stop being Lavan’s daughters just because they marry Yaakov.  Truth be told, it is not clear that Lavan’s sheep would ever fully cease being his if they were given to Yaakov as salary.  Maybe Yaakov insists on his novel compensation regimen because it is only the next generation of lambs, who have known no previous owner, that can truly be his.  By the same token, it is only the birth of Yosef to Rachel that makes him think of breaking free of Lavan.

Breaking free of Lavan is not easy.  On the one hand, Yaakov makes an enormous step forward by speaking to Rachel and Leah together about his plans, and at least as importantly, they respond together.  This might mean that Yaakov now sees Leah and Rachel each individually as full human partners.  The problem with this theory is that he calls them (31:4) toward the field, to his flock.  Yet that he calls them at all suggests a profound progression in the relationships.

When Yaakov speaks to them, moreover, he makes himself incredibly vulnerable by sharing with them his experience of G-d.  Rachel and Leah might have responded mockingly.  Perhaps worse, they might have responded separately and contradictorily, thus forcing him to choose between them.  Instead, Rachel and Leah respond in the best way possible.  They utterly sever their connection with Lavan, thus giving Yaakov the dignity of his own family.  They affirm and support the normative implications of his religious experience.    “All the wealth which G-d saved from our father is ours and our sons.  Now -everything which G-d said to you, do!”

The result of this harmony is that Rachel and Yaakov now seem to be in tune.  While Lavan is off shearing his flock, Rachel steals his terafim, and Yaakov steals his heart (31:19-20).  Perhaps Rachel’s action is inspired by Yaakov’s newfound religious confidence in her.  It is also possible that Rachel liked going to extremes.

But Yaakov and Rachel don’t really know each other.  He does not realize that Rachel has stolen the terafim, and so he affirms that whoever has done so will die –  perhaps his words contribute to her early death.  Moreover, Yakov’s dialogue with Lavan is all about who the women belong to, not about what they want or whom they feel loyalty to.   The profound respect he showed in his conversation with them seems to melt in the heat of disputational polemics.

In the end, fervor is no substitute for depth of understanding and sustained commitment.

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The Model of Avraham: The Uniqueness of Mishpat and Chesed

Guest Dvar Torah by Yehudah (Label) Freundlich

Socrates famously asked whether G-d desires the good, or rather the good is whatever G-d desires.  Our parshah immediately strongly rejects the second horn of this dichotomy: that Mishpat and Chesed are defined by what Hashem wants. “It would be a desecration were the judge of all the land not to do Mishpat”, Avraham Avinu says to the Ribono Shel Olam.  Thus Avraham does not accept Hashem’s intention to destroy Sodom as Mishpat and becomes a kanai for Mishpat rather than for Ratzon Hashem.  Thus Mosheh Rabbeinu argues against Hashem’s plan to destroy bnei Yisroel even it is Mishpat, since it is not Chesed.

Avraham formulates a principle of justice (fifty Tzaddikim), which he requests of Hashem. Hashem acquiesces. Avraham raises the ante, forty five Tzaddikim, and so on down until ten. Each time Hashem gives in, but only to what Avraham explicitly requests at that time. When Avraham requested fifty, Hashem could have responded, even ten. But Hashem responds only to Avraham’s explicit request of the moment. When Avraham requested fifty Tzaddikim, Hashem could have responded, there aren’t fifty.  But no, Hashem clearly states Avraham’s principle and acquiesces: “If I will find in Sodom fifty Tzaddikim in the city then I will bear the entire place for their sake.” All this is intended to teach us that it is our obligation to formulate and demand Mishpat from Hashem.

The Torah explains why Hashem reveals to Avraham what he is going to do: ”For I have known him so that he may command his children and his household after him, that they will keep the way of Hashem to do righteousness and justice.”  Indeed Chazal have stated that Hashem wanted Avraham to argue.

The Torah presents us with the following model of Avraham regarding Mishpat:

1. Avraham does not accept Hashem’s intention to destroy Sodom as Mishpat;

2. Avraham becomes a Kanai for Mishpat and argues with Hashem;

3. Avraham formulates principles of Mishpat and attempts to get Hashem to fulfill these principles;

4. Hashem may acquiesce, but only to what Avraham explicitly demands, because

5. Hashem wants all this, wants this entire process of formulation, protest, and debate.

Chazal have clearly followed this model of Avraham; they do not accept that what is written in the Torah or what is Halacha, the representation of G-d’s Will on earth, is necessarily Mishpat.  When Torah, Halacha come into conflict with Mishpat or Chesed, as they understood Mishpat and Chesed, Chazal are Kanaim for Mishpat and Chesed and ‘argue’ with Halacha. Chazal would not learn lessons from what they did not consider to be Mishpat or Chesed, and they try, so to speak, to convince the Halacha, i.e., they try to find ways and arguments so that, without formally transgressing the Halacha, they could somehow reconcile the Halacha with their sense of Mishpat and Chesed, always with complete confidence that Hashem wants this of us.

Daniel the tailor feels that the Torah is treating the Mamzer unfairly; he calls Sanhedrin oppressors using the strength of the Torah when they forbid the Mamzer to marry within the community. “The father of this one committed adultery; this one, what did he do wrong and what is his responsibility?”, argues Daniel the tailor. Chazal enshrined  him and his words in Midrash Rabbah, and pointedly did not learn a lesson from the Torah that we should distance ourselves from the Mamzer. On the contrary, Chazal stress that greater a Mamzer who is a scholar that an ignorant Cohen Gadol.

Hillel Hazaken feels that the Sabbatical abrogation of private financial loans (שמיטת כספים) is not working well in his times: it prevents poor people from getting loans (נועל דלת מפני לוין).So Hillel creates an institution. the Pruzbul, which turns a private loan into a court loan.For the sake of Tikkun Olam, Hillel creates an institution that effectively gets around the abrogation of private loans.

Rebbe Akiva and Rebbe Tarphon (but not Rabban Shimon Ben Gamliel) would not be party to capital punishment.  If they were on the Sanhedrin, they would use legal tricks, relying upon what we would today call unreasonable doubt, all for the purpose of evading executing the death penalty, though that is what the Torah prescribes.

Chazal loosen the usual requirements for testimony to free an Agunah, allowing a single witness, a woman, the wife herself, etc.  In all times, we find Rabbanim struggling with Halachah for the sake of the Agunah, to find some way to release her.

The Ramah performed the marriage of a young poor orphan girl on Shabbat in order not to humiliate a proper daughter of Israel. The girl’s father had died in between the shiddukh and the wedding, leaving the girl alone, bereft of both father and mother. Ultimately, an uncle took her in, but did not take care of the arrangements for the wedding. As was the custom of the time, the wedding was on a Friday close to Shabbat, so that the Shabbat meal would constitute the Seudat Mitzvah. On the wedding day, the Chatan refused to marry because 1/3 of the dowry was lacking, despite the pleas of the town elders not to humiliate a daughter of Israel for ‘cursed money’.  When the girl’s relatives finally chipped in, it was Shabbat.  The Ramah lived nearby, and he married them on the spot.

The Ramah explains himself in a Teshuvah. Like Avraham standing before Hashem, he marshals argument after argument.

(First), The prohibition is only (sic!) a rabbinical edict, and Rabbenu Tam, among others, states that the edict does not apply in times of urgency. Though we do not follow them, in case of extreme urgency, we can rely upon them. And, continues the Ramah. “What could be of greater urgency than not to humiliate a daughter of Israel?”.  She could be disgraced her entire life!

(Second) For the sake of human dignity (כבוד הבריות), rabbinical edicts are overridden.

(Third) Great is Shalom between man and wife, and though, here they are not yet married, but still, they are engaged.

(Fourth) The Ramah concludes: Of course, we should not plan a wedding on Shabbat, but if things happen, and it could lead to humiliation or the like, then one who is lenient should enjoy Shabbat, and the Mitzvah will atone for him—if his intentions were L’shem Shamayim.

Michah Hanavi presents the theological underpinnings for the position outlined in the model of Avraham. “What is good and what does Hashem demand of you, but doing mishhpat and loving chesed  and walking humbly with your G-D?”  Michah bases all the Mitzvot, all that is good, all that Hashem demands of us, on three elements: Mishpat, Chesed, and “walking with Hashem”.  All the Mitzvot, all those other than Mishpat and Chesed, we do because that is the way we walk with Hashem.

Of these Mitzvot, Rav has said that they were given to purify us, “Does Hashem care whether we shecht from the neck or the nape? The Mizvot were given to purify us,” says Rav.  But Chazal would never say, Does Hashem care whether we do Mishpat or do injustice? Love kindness or love cruelty?  “For it is Chesed I desire,” says Hoshea.  Mishpat and Chesed we do, says Michah Hanavi, because they are Mishpat and Chesed.  Hashem demands of us that we do Mishpat and love Chesed because they are Mishpat and Chesed, and not because they are Mitzvot; and that is why we will argue even with Hashem regarding Mishpat and Chesed.  Because that is what Hashem demands of us!

Indeed, there is a great difference between one who does Mishpat or Chesed because it is a Mitzvah, and one who does Mishpat and Chesed in their own right.  One who does Mishpat or Chesed because it is a Mitzvah, so to speak, looks over his shoulder searching for approval. Is this really a Mitzvah? Isn’t there another more important Mitzvah? Whereas the one who does Mishpat and Chesed because they are Mishpat and Chesed, is focused on those in need.  “What greater urgency can there be than not to humiliate a daughter of Israel?” says the Ramah.  Only one focused not on the Mitzvah but on those in need, can have the chutzpah to say to the Ribono Shel Olam, “It would be a desecration were You should do such a thing!”.

This then is the Torah’s response to the Socratic dilemma; this is the uniqueness of Mishpat and Chesed among the Mitzvot: Hashem demands of us that we formulate principles of Mishpat and Chesed and pursue them, even, if necessary, to argue with Hashem himself.  Because that is דרך ה’, לעשות צדקה ומשפט, the way of Hashem to do righteousness and justice.

ציון במשפט תפדה ושביה בצדקה

 

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Noach: A High School Seminar Transcript

by Rabbi Aryeh Klapper

(Note:  A seminar is a class discussion with rigorous and formal canons of discussion, often including a requirement that opinions be backed by specific textual evidence. In today’s class, every student is required to make at least one substantive contribution to receive a passing grade.)

Teacher: Today’s seminar will begin from a very brief opening thesis/dvar Torah by Gittel.

Gittel: Hashem wanted people to be good, but they were bad and getting worse.  Hashem warned them that bad things would happen, but they didn’t listen.  Finally He destroyed the world in a flood, leaving only Noach and his family alive.

We should learn from this that we really need to be good, and that we should believe people when they say that Hashem will destroy the world if we’re not good.

Rivky:  But didn’t Hashem promise that He would never bring another Flood?  I think the lesson is that if people tell us that Hashem will destroy the world if we’re not good, we shouldn’t listen to them: Hashem did that once and he won’t do it again.

Elimelekh:  Just because He promised not to bring a flood, doesn’t mean he isn’t going to destroy the world some other way.  “G-d gave Noah the rainbow sign/no more water, it’s the fire next time.”  And in fact, when Sodom gets as evil as the Flood generation, Hashem rains fire on them.

Yaakov:  That’s cheating!  What’s the point of His promise then?

Rivky:  Anyway, people are always telling us that the world’s going to end soon.  We can’t believe all of them, so how do we choose?  I think we shouldn’t believe any of them.

Gittel: We should listen to prophets.

Rivky: But there are no prophets nowadays!  I know that Chazal said that “Prophecy was taken from the wise and given to the insane and children” – is that whom you want us to listen to?

Yaakov: We have people with ruach hakodesh; we should listen to them.

Elimelekh: People with ruach hakodesh can still make really bad mistakes, and anyway we really don’t know who has it or what it means.

Shlomo:  Maybe it means that we should listen to scientists.  I think a lot of them are telling us that the world will become uninhabitable if we don’t stop global warming.

Yaakov:  But stopping global warming isn’t about morality and avodas Hashem!  It’s about reducing our carbon footprint.

Rivky: And anyway, He promised.

Shlomo: Maybe there’s a connection.  Maybe a society would only go on doing things that could kill our whole species if it had completely lost control of its appetites, and so it must be a really evil society.

Yael: But we’re not really one society in the world, so how could Hashem judge us all together?

Elimelekh:  Why should we believe that what scientists tell us is true?  Doesn’t science keep changing?

Rivky: I think that’s cheating.  We assume that science is true in every other class in this school.

Yaakov:  So let’s stop doing that in the other classes too.

Elimelekh:  Are we really living in a society that might be so evil that G-d would destroy us, at least if He hadn’t promised not to?  Didn’t Rav Moshe Feinstein say that America is a “government of chesed”?

Yaakov: Rav Moshe was niftar many years ago, and things have gotten much worse.  One of my rebbeim said that the generation of the Flood was punished because hishchis kol basar es darko al haaretz, meaning rampant sexual confusion – isn’t that happening in America today?

Gittel: Chazal also said that Hashem spares any society that is interpersonally good, even if they’re terrible at bein adam laMakom.  I think at least America qualifies.

Yaakov: I think Hashem does judge the whole world together, as one society, for these purposes.  There’s something powerful in the idea that we and our worst enemies are all one moral ecosystem from Hashem’s perspective.

Batsheva: Why are you so confident that America is a good society interpersonally?  Almost everything I read is about African-American being killed by police, women (and men) being sexually assaulted, and enormous gaps between the rich and the poor.  It may be true that we profess excellent values, but we don’t live up to them.

Elimelekh: I think you need to keep America’s faults in perspective.  Despite everything, almost everyone in the world realizes that they would prefer to live here if they made a purely rational decision.

Batsheva: Yes, but maybe that’s just because we’re so rich.  If we were a poor country, would people feel the same way?

Shlomo:  You’re assuming that virtue and success are unrelated.  Maybe we’re so rich because we’re so good.

Gittel:  Doesn’t Kohelet tell us that virtue and success are unrelated?

Shlomo: I didn’t mean that Hashem rewards us.  I meant that our society gives people the freedom to be creative and the ambition to live well, and that’s a recipe for national wealth.

Batsheva: Part of the message of Kohelet is that it often takes a long time for the economic effects of virtue or vice to wear off.  We might be rich because our grandparents constructed a virtuous society, even though our society is totally corrupt.

Yaakov:  Maybe Hashem judges individuals “ba’asher hu sham”, as they are now, but judges societies on the basis of their potential.  He only brought the flood when there was no hope that anything worthwhile would ever emerge from that society.  Does America still have the potential for moral greatness?

Gittel: I think it would be enough for Hashem if the Jewish people were virtuous or had the potential for moral greatness.  But I don’t see us being better or worse than anyone else.

Yael:  It’s very hard to compare societies.  But I find it difficult to believe that the world today is worse morally than it was in the 1940s, or in the nineteenth century.  So I really don’t think it makes sense to say that we’re under threat of G-d destroying the world today.

Elimelekh: The whole North Korea situation has really scared me, and I’ve read a lot about the Cold War, when many people thought nuclear war was inevitable.  Maybe we’re always under threat of G-d destroying the world:

Shlomo: But why should we be?  If we’re better than the worst ever, there shouldn’t be a threat.

Rivky: Rambam says that every Jew should imagine every year that the whole world’s survival depends on whether their next choice is for good or evil.  Maybe the possibility of the world being destroyed tomorrow is necessary to make us take our free will seriously.

Teacher: So, last round.  What’s your one sentence takeaway from Parshat Noach?

Batsheva: Societies should always consider whether they are badly overestimating themselves.

Elimelekh: Existence is always fragile.  We survive only while Hashem Wills us to.

Gittel: There really isn’t any excuse for being evil if you believe in Hashem.

Rivky: We should act as if the world depends on us, but really G-d will be merciful anyway.

Shlomo: Human beings and animals have the same end, but if we’re good, maybe Hashem will know our names.

Yaakov: The world is an ark, and we are all on it together, whether we like it or not.

Yael: Humanity is too diverse and complex for Hashem ever to find us completely valueless.

Teacher: Thank you very much for your serious participation.  I think this was a powerful discussion: I learned a lot about the parshah, and about you.  I hope you’ll share this discussion with your parents and your shuls.  Shabbat shalom!

(Please note: This dialogue is a work of fiction.  No actual students were stimulated to think in the course of its preparation, but I would be encouraged if it resembled actual classrooms. Do you agree?)

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

by Rabbi Aryeh Klapper

Dear Rabbi:

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

Sincerely,

The Members of the Ritual Committee, Congregation Mevakshei Psak

ANSWER PART 4

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

Maharam and Maharshal prefer blemished shluchei tzibbur.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a) R. Aviner strongly supported Maharam.

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

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

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

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

f) R. Eliyahu Schlesinger was opposed

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

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

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

Where does all this leave us?  

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

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

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

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

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

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

Key questions include:

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

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

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

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

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

by Rabbi Aryeh Klapper

Dear Rabbi:

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

Sincerely,

The Members of the Ritual Committee, Congregation Mevakshei Psak

TESHUVAH PART 3 – METHODOLOGICAL EXCURSUS

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

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

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

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

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

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

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

Why does this matter?

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

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

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

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

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

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

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

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

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

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

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

אחד זקן היה רגיל להתפלל ביום הכפורים

שנה אחת לא היה חזק לעמוד (ולהתפלל בעמידה)

אמרו מקצתם

כיון שאין לנו כיוצא בו מוטב להתפלל בישיבה,

אמרו הזקנים

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

פן ילמדו ממנו אחרים ויתפללו מיושב,

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

ישב לבו בתפלה

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

ויקחו אבן אלו האבות

וישימו תחתיו אלו מעשה האבות

וישב עליה אלו מעשה האמהות

 

הרי לא ישב ממש.

An elderly man regularly served as shaliach tzibbur on Yom haKippurim

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

Some of the (?congregants?) said:

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

The elders said:

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

lest others learn from him to pray while seated

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

Translate instead he yashav-settled his heart in prayer.

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

They took a rock – meaning the forefathers;

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

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

so (Moshe) never actually sat.

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

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

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