Category Archives: Weekly Devar Torah

Pledges and Allegiances

by Rabbi Aryeh Klapper

The Nazirite is an ersatz High Priest. Taking a vow of nezirut forbids one to cut one’s hair or become tamei even for relatives, and just like a High Priest), and to drink wine (parallel to a priest who is actually performing Temple Service). Through the institution of nezirut, the Torah provides an outlet for those who cannot be satisfied by merely fulfilling what is required of them, or who cannot handle having G-d require more from someone else.

Is providing this outlet an ideal, or rather a concession? Is the nazir a laudably ambitious spiritual striver, or an obsessively hypercompetitive soulthlete?

Talmud Nedarim 9a-10a offers a wonderfully nuanced meditation on this question. We’ll start at the end and meander our way to the beginning.

The last unit of the sugya centers on a beraita:

ר’ אלעזר הקפר ברבי אומר:

וכפר עליו מאשר חטא על הנפש

וכי באיזו נפש חטא זה?!

אלא שציער עצמו מן היין.

והלא דברים ק”ו:

ומה זה שלא ציער עצמו אלא מן היין – נקרא חוטא,

המצער עצמו מכל דבר – על אחת כמה וכמה!

מכאן:

כל היושב בתענית נקרא חוטא

The great Rabbi El’azar HaKappar said:

“and this will atone for him from his sin against a nefesh” –

What nefesh did the nazir sin against?

It must be that he afflicted himself by denying himself wine.

This generates a kal vachomer:

If the nazir, who only denied himself wine, is called a sinner,

one who denies himself everything – all the more so!

From here (we derive):

Anyone who fasts is called a sinner.  

Rabbi El’azar HaKappar presumably was in favor of fasting on Yom Kippur. But he nonetheless calls voluntary asceticism a sin. Perhaps it smacks of ingratitude for G-d’s Creation.

The Talmudic narrator, however, calls foul. The verse “and this will atone for him from his sin against a nefesh” refers to a nazir who accidentally violated his vow by becoming tamei. Isn’t that violation the sin, rather than the original oath?

There are too many scribal variants in the line that follows to know whether the challenge is answered here. However, the question plainly resonated with someone. Here’s how I know.

Yerushalmi Nazir 1:5 reports the following story:

אמר שמעון הצדיק:

מימי לא אכלתי אשם נזיר אלא פעם אחד

שעלה אחד אלי מדרום

וראיתיהו

דמות יפה עינים וטוב רואי קווצותיו תלתלים

ואמרתי לו:

בני, מה ראית להשחית השער הנאה הזה?!

נומא לי:

ר’, רועה הייתי בעירי, והלכתי למלאות את השאוב מים,

וראיתי את הבוביא שלי בתוך המים,

ופחז יצרי עלי ובקש לאבדני מן העולם.

אמרתי לו:

רשע, מה אתה מפחז בדבר שאינו שלך?! עלי להקדישך לשמים!?

וחבקתיו ונשקתיו על ראשו

ואמרתי לו:

בני, כמותך ירבו עושי רצון המקום בישראל

עליך הכתוב אומר איש או אשה כי יפליא לנדור נדר להזיר לה’

Said Shimon the Righteous (and High Priest):

In all my days, I never ate the asham-sacrifice of a nazir except once

when someone came to me from the south

I saw him –

beautiful eyes, good-looking, with curly locks –

and I said to him:

“My son,

What inspired you to shave this beautiful hair (as required at the end of the nezirut term)?”

He replied:

“Rebbe,

I was shepherding in my city, and I went to fill the trough with water,

and I saw my reflection in the water,

and my (evil) inclination seized me and sought to wipe me out of the world,

so I said to it:

‘Wicked one,

 you are seizing via something that is not yours? It is my obligation to sanctify you to Heaven!’”

I hugged him and kissed him on the head

and I said to him:

“My son,

May those who do the Will of the Omnipresent like you multiply in Israel!

Regarding you Scripture said: If a man or woman swears an oath of nezirut to G-d.

Essentially the same story appears in the Bavli, except that this is the only asham-sacrifice of a nazir who became tameithat Shimon haTzaddik ever ate from. The addition of “who became tamei” lets the story match the context of the verse. But it seems now that Shimon HaTzaddik regarded only those nezirim who became tamei as sinners.  And why would the handsome southerner’s origin story be relevant to the issue of tum’ah?

The Talmudic narrator responds via a sharp observation about human nature. People mean it when they take a vow of nezirut, and they accept the required privations without regret – until something goes wrong, and they have to start over. Shimon HaTzaddik thought that every other nazir who had become tamei had regretted their original oath.

Understand that the nezirim who made it through without becoming tamei were just lucky – they too would have regretted their oaths had they become tamei. They had a cost-benefit calculation in mind when making their oath. Their motive for becoming nezirim was at least partly ego-gratification rather than truly “for G-d.” Yet Shimon HaTzaddik did not consider them sinners. Maybe we see the oath as channeling and sanctifying their evil inclinations rather than as indulging them.

That is a fine line indeed.  A third beraita presents the issue squarely:

חסידים הראשונים היו מתאוין להביא קרבן חטאת,

לפי שאין הקדוש ברוך הוא מביא תקלה על ידיהם,

מה היו עושין?

עומדין ומתנדבין נזירות למקום, כדי שיתחייב קרבן חטאת למקום;

ר’ שמעון אומר:

לא נדרו בנזיר

. . . כדי שלא יקראו חוטאין,

שנאמר: וכפר עליו מאשר חטא על הנפש.

The Early Pietists were desirous of bringing a chatat-sacrifice (which atones for accidental sins),

because the Holy Blessed One never causes missteps through them (so they never sinned accidentally).

What would they do (to satisfy their desire)?

They would arise and voluntarily vow nezirut to the Omnipresent,

so as to become liable for a chatat-sacrifice to the Omnipresent.

Rabbi Shimon said:

They did not take a nazir oath

. . . so as not to be called sinners,

as Scripture says: “and this will atone for him from his sin against a nefesh” –

The Early Pietists were frustrated by their lack of access to a category of religious experience. Moreover, G-d deliberately sets out to deny them this experience (as a reward!). But they found a loophole in His defenses.  The nazir brings a sin-offering even though taking the oath is not prohibited. So they took the oath, according to the anonymous first position in the beraita.

Rabbi Shimon denies this. What sort of Pietist sees sating their own spiritual appetite as justifying actions for which the Torah requires atonement?

This brings us back to the sugya’s opening beraita, which records a dispute between Rabbi Meir and Rabbi Yehudah. Rabbi Meir believes that oaths are best never taken; what justifies taking the risk of nonfulfillment, which is a deoraita violation. But Rabbi Yehudah says that the opportunity to fulfill a vow justifies the risk of non-fulfillment.

I suggest that Rabbi Yehudah affirms the religious value of autonomy. He understands why the experience of serving G-d through a self-imposed obligation can add something to the experience of serving G-d by obeying His entirely heteronymous commands. Rabbi Meir may have rejected autonomy altogether.  More likely, he read Halakhic Man and believed that all of Halakhah reflects human autonomy, because the law is formulated by human thought.

In the long-term, this sugya may be a useful “safe space” for thinking about whether and how we consider motives when people express a desire for religious experiences that are within halakhah but beyond their personal halakhic obligations. In the short-term, it can be a spur to thinking about whether and how to make public pledges about anti-racism in response to the horrifying killing of George Floyd.

I am leery of pledges – I like to be free to do the objectively right thing rather than being constrained by subjective commitments. There will always be costs that I had not sufficiently considered, and there’s often some element of grandstanding. Often we don’t really mean to make an unqualified and absolute commitment, and our exceptions eventually generate cynicism rather than inspiration. Fairly generic public pledges may be stalking horses for more extensive campaigns or ideologies I disagree with.

Most of all, I don’t want to create the misimpression that opposition to racism is imposed on Torah and Halakhah rather than deeply expressive of them.

On the other hand, pledges create human connections. People from radically different walks of life often trust each others’ pledges more than they trust each other’s overall moral systems.

Public pledges also create accountability. Putting commitments in nonHalakhic form makes it much harder to hide behind the wonderful complexities of our tradition.

Finally, pledges create pressure on others to do the same, and change the default settings of people without strong opinions.

Connections, accountability, and pressure are emphatically needed with regard to racism in the Orthodox community.

Balancing all these considerations, and with full credit to Uri l’Tzedek for creating an admirable anti-racism pledge, I wish to state the following:

There is a halakhic obligation to object and reprove when Orthodox Jews make racist statements in one’s presence.

There is a halakhic obligation to object and reprove when Orthodox community policies discriminate on the basis of race, whether implicitly or explicitly.

If you catch me failing to live up to these obligations, please hold me accountable.

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Do Real Cases Make Bad Law?

by Rabbi Aryeh Klapper

After the death of Rabbi Seligman Bar (Yitzchak Dov) Bamberger (the Wurzburger Rav) in 1878, his son Rabbi Moshe of Kissingen inherited the manuscripts of his father’s practical halakhic responsa. He was troubled about whether to publish them. The Torah in them was certainly publishable and would be eagerly received. But his father had asked him not to publish, because he held that responsa halakhah lemaaseh were less reliable than works of pure scholarship. So Rabbi Moshe turned to two of the great poskim of his time, Rabbi Naftoli Tzvi Yehudah Berlin (Netziv) and Rabbi Yitzchok Elchonon Spector.

The question he asked has at least three distinct components. The first is subjective and pastoral: How can I live with myself if I disobey my late father’s instructions, and yet how can I let parts of his contributions to Torah die with him? The second is objective and pragmatic: Does my obligation of kibbud av forbid me to do what I would otherwise think is right? The third is intellectual: Is my father’s opinion about the relative worth of responsa and novella correct?

Underneath it all was a worry: Maybe my father’s opinion was correct about his own responsa, and publishing them will damage rather than enhance his legacy.

Rabbi Spector’s response (printed in Zekher Simkhah p. viii, h/t ויקיפידיה)  was fundamentally pastoral. He saw no point in addressing the intellectual questions; what mattered was making the responsa publicly accessible while keeping the son whole. So he opens by expressing his hesitancy about getting involved lest he act against the true wishes of the late tzaddik, and he pleads illness to avoid examining the merits of the work (claiming that he isn’t even able to read the galleys of his own responsa!). His practical suggestion is that the son write a foreword stating his father’s wishes that no one rely on the responsa without examining the evidence for themselves (if they are competent to do so), and that they are intended to spur thought rather than to preempt it. Rabbi Spector cites as precedent that the Shakh’s introduction to Yoreh Deah and the Pri Megadim’s introduction to Hilkhot Pesach each demand that readers swear never to rely on their conclusions.

Such introductions rarely succeed. The positions of Shakh and Pri Megadim themselves are often cited for halakhic authority without reference to their reasoning, and Rav Moshe Feinstein introduced his first book of responsa with a similarly futile disclaimer. I’m confident that Rabbi Spector knew this. Perhaps his pastoral approach failed because Rabbi Bamberger could not suspend his disbelief, and that’s why the responsa were first published many years later, by a grandson.

Or perhaps it was Netziv’s fault. He tells Rabbi Moshe directly that his father was simply wrong (Meishiv Davar 1:24):

 “Regarding Your Honor’s presentation of your father zt”l’s opinion not to print the responses he wrote halakhah lemaaseh, on the ground that one ought not rely on a responsum as much as on what is written in the course of studying a topic, when you get to know it more comprehensively and accurately than you do at a time that someone comes to ask you something. He rested his words on the consensus of poskim to rely on the Piskei HoRosh more than on his responsa, and also on Chazal’s statement that “One does not learn halakhah from what was ruled in practice.” That is the substance of what you wrote in the name of your father zt”l.

But in my impoverished opinion, the words are utterly incorrect in their reasoning:

On the contrary, at the time (poskim) respond halakhah lemaaseh – they reach the depth of the matter than when the topic come up in the course of learning, and also there is more siyata dishmaya (assistance from Heaven) in the practical moment, and Chazal said in Ketubot (60b) that siyata dishmaya is very helpful in issuing correct ruling, and it also says in Bava Batra (130b) that “One does not derive Halakhah from learning nor from what was ruled in practice, rather one must wait until one is told “This is halakhah lemaaseh.” See Rashbam’s commentary there. Similarly, in Sanhedrin (86b) regarding the Rebellious Elder: “If he taught in the manner he was used to – he is exempt; but if he ruled lemaaseh – he is liable,” so we see that ruling lemaaseh is more serious.

As for the consensus of the poskim that we rely more on the Piskei HoRosh than on Rosh’s responsa when they differ – this is not a reasoned position, but rather a tradition from Rosh’s son Rabbi Yehudah, and presumably his son knew that the psakim were written later than the responsa, and ROSH had recanted . . . so Torah that emerges in the moment of responding lemaaseh is stronger and more closely coordinated with truth than what emerges from a person’s mind while learning. The great scholars who did not wish to publish their responsa had a different rationale; they knew that one is entitled to place more reliance on responsa, and they did not wish (the responsibility of having) others rely on their opinion, whereas they knew that people do not rely on halakhic novella, and so were not concerned about publishing them.”

I think Netziv clearly has the better case based on precedent.  For example, “We do not derive halakhah from the ruling in a practical case” probably refers to instances where we know the ruling but not the reasoning, so what is unreliable is our interpretation rather than the ruling itself.

However, Rabbi Bamberger may have known himself well. I suspect that he was making a subjective rather than an objective claim; my teshuvot are not as solid as my scholarship.

Netziv and Rabbi Bamberger have been on my mind during this crisis as I read some great contemporary  collections of in-the-moment responsa, and make some efforts to generate my own. Some people’s minds are sharpened by urgency, and their conclusions and reasoning become wonderfully solid and consistent. Others meet their communal responsibilities but are scrambling to match their own usual standards of clarity or judgment. We owe them all gratitude. We also owe them all the effort to evaluate their reasoning rather than uncritically granting them authority, and therefore the whole burden of responsibility. One of the best elements of halakhic leadership during this crisis has been the way that public halakhic pronouncements have often been issued only after broad consultation, and then modified in response to practical feedback.

Moreover, as Netziv sets out in the magnificent introduction to his commentary on Sheiltot d’Rav Achai Gaon, some Torah scholars are much better at making decisions than at explaining them, and others are much better at explaining decisions than at making them.

I don’t know whether Rabbi Bamberger fell into either group. But some rulings by necessity are issued without the opportunity for comprehensive research or unhurried reflection. Responsa lemaaseh are often written after the fact, and always have been. Rabbi Bamberger could always have taken the time later to write comprehensive responsa.

But it’s very hard to do objective research once one has ruled in practice. I wonder whether Rabbi Bamberger suspected himself of defensiveness, and feared that his responsa sometimes drew the target around the arrow, whereas his scholarship drew the target before the arrow was shot. That would be only human.

But if that was his concern, I’m glad in the end that it was not heeded. We have no choice but to look to human leaders. But we are blessed when our leaders are conscious of their humanity, and the Torah of such leaders should long endure.

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Halakhah and Moral Intuition: A Case Study

by Rabbi Aryeh Klapper

In the midst of an exhortation to provide the newly poor with interest-free loans, Vayikra 25:36 declares

וחי אחיך עמך

and your brother will live with you.

A beraita on Bava Metza 62a cites Rabbi Akiva as making two astonishing interpretational moves with regard to this phrase. First, he contends that it relates to immediate life-and-death situations rather than to loan terms. Second, he contends that it creates a hierarchy rather than an equation: the obligation to save your brother’s life applies only if he will live with you.  You therefore have no obligation to save his life at the expense of yours.

The beraita deliberately presents Rabbi Akiva’s position as morally counterintuitive.  It begins by presenting the position of Ben Petora as derived from moral reason, whereas Rabbi Akiva responds with an argument from Scripture:

שנים שהיו מהלכין בדרך, וביד אחד מהן קיתון של מים,

אם שותין שניהם – מתים; ואם שותה אחד מהן – מגיע לישוב.

דרש בן פטורא:

מוטב שישתו שניהם וימותו,

ואל יראה אחד מהם במיתתו של חבירו.

עד שבא רבי עקיבא ולימד:

חייך קודמים לחיי חבירך.

Two people traveling on the way

with a canteen of water in the hands of one

If both drink – they die; in one of them drinks – he reaches a settlement.

Ben Petora taught:

Better that both drink and die,

and let not one of them see the death of his fellow:

Until Rabbi Akiva came and taught:

“and your brother shall live with you”

Your life has priority over that of your fellow.

Why is Rabbi Akiva counterintuitive? Most likely because he directly contradicts what the Talmud understands to be Judaism’s most fundamental principle of moral reason (Pesachim 25b, Yoma 82b, Sanhedrin 74a).  The principle is formulated as a rhetorical question: “Mai chazit dedama didakh sumkin tfei? Dilma dama dechavrekh sumkin tfei! What have you seen (that makes you say) that your blood is redder? Perhaps your fellow’s blood is redder!”  The halakhic consequence of mai chazit is that one cannot kill someone else to save oneself. But the same logic applies to lifesaving.

However, Ben Petora is not the only possible result of applying mai chazit to the canteen case. One might instead have the two travelers flip a coin for the water, or forbid both from drinking any water at all.

Nor is it absolutely clear that mai chazit forbids all possible cases of killing to save your own life. Tosafot point out that the mai chazit question can be asked in reverse: “What evidence suggests that his blood is redder than yours?” Tosafot conclude that mai chazit requires one to stay passive when faced with a choice between lives.  You can do this even when halakhah constructs passivity as a violation of murder or bloodshedding.

Maybe Tosafot would allow this even when halakhah constructs your activity as merely passive. That way you can reach Rabbi Akiva’s result, as drinking the water is only a violation of “Do not stand idly by your peer’s blood.”  Rambam by contrast requires one to actively choose death before violating any prohibition of killing.  Rabbi Chaim Soloveitchik argues that because the Talmud presents Rabbi Akiva as counterintuitive, Rambam must be correct, and Tosafot incorrect.

But Rabbi Akiva’s position is nonetheless accepted by halakhah. What does that say about halakhah’s relationship to its own deepest moral intuition?  Plainly that intuition is overruled by and your brother will live with you. But to how great an extent?

Let me raise the stakes before answering. Rambam holds that the mai chazit principle is not just about choosing yourself, but rather even about choosing yourself; kal vachomer a third party cannot choose between two other lives. This is the meaning of Mishnah Ohalot’s declaration that while one can abort a fetus to save its mother, one cannot commit infanticide once the child’s head as emerged, because ein dochin nefesh mipnei nefesh, “we do not push one human nefesh aside for the sake of another.”

Rabbi Akiva’s overruling might mean only that in the context of lifesaving, one is entitled to prioritize one’s own life over another’s. But if mai chazit is all that forbids third parties from choosing to kill one person to save another (outside the context of rodef), perhaps Rabbi Akiva implies more radically that mai chazit does not apply to lifesaving.  In the context of triage, we therefore can and should develop criteria to decide whose blood is redder.

This opens the door to understanding the last units of Mishnah Tractate Horayot as establishing triage criteria: Kohens precede Levites, men precede women, and so on. For most halakhists, however, and in that category I include myself, Horayot cannot be interpreted in a way that fundamentally denies mai chazit.  It seemingly follows that Rabbi Akiva intends only to permit choosing one’s own life, and has no implications for choices made by third parties.

This understanding of Rabbi Akiva raises its own moral difficulties. If two people are dying of thirst in the desert, and a third party comes along with enough extra water to save one but not both, what should he or she do? The narrow reading of Rabbi Akiva leads to the conclusion that third parties must follow Ben Petora, and split the water between the two: “Let both die, but let neither see the death of his fellow.”

Here we reach a crucial realization. The Talmud presents the reasoning of mai chazit as intuitive, such that Rabbi Akiva requires a Biblical verse to overrule it. But this does not require that all the practical implications of mai chazit are intuitive. Following an intuitive principle can lead to profoundly counterintuitive results. If one can never choose among lives, one will sometimes be forced to watch both die rather than save one.

Maybe that is the price we have to pay in order to prevent people from choosing to save people like themselves over people unlike themselves. However, I think there may be a way for halakhah to thread the needle and avoid Ben Petora’s conclusion without opening a Pandora’s box.

Why does Ben Petora require the two travelers to split the water? Rabbi Chaim Soloveitchik in his novellae on the Rambam suggests that according to mai chazit, neither of them could choose to drink. Really, they should both die with the canteen still full.  Even Ben Petora can’t abide a result that absurd, so he allows them both to drink half. That way, neither chooses his own life at the immediate expense of his fellow’s.

Rabbi Akiva’s verse comes to teach that halakhah does not want absurd results. When not choosing yields a morally absurd result, halakhah allows you to choose your own life over another’s.

What should third parties do in similar situations? For example: Unlike canteens of water, ventilators cannot always be split between patients. Failure to choose would mean intubating neither patient, and letting both die.

We might point out again that Ben Petora’s ruling is not the only possible outcome of applying mai chazit to lifesaving situations.  We could treat patients in the order of arrival, and flip a coin if they arrive simultaneously.

I suggest instead the following. In a YU symposium on CRISPR technology, Rabbi J. David Bleich suggests that the Torah needs to grant permission to heal because healing seems to encroach on G-d’s domain, “playing G-d.”  He argues that the Torah’s permission to manipulate the human body is therefore confined to actions that can be constructed as “healing.”

By the same token, the Torah’s permission to heal allows doctors to heal as effectively and efficiently as they can, even when this entails choosing which patients get access to limited resources. But this permission extends only to choices based on purely medical criteria, and only on the axis of healing. There is no basis for applying the non-medical criteria of the Mishnah in Horayot, or for considering a patient’s life-expectancy independent of illness or injury. This enables triage to remain within the bounds of mai chazit.

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Triage and Ventilators: The Position(s?) of Rabbi Shlomo Zalman Auerbach zt”l

by Rabbi Aryeh Klapper

In the second edition of Responsa Minchat Shlomo (vol. 2-3), #86 Section 1 is titled “Rules of Priority with regard to Treatment and Ventilators.” The section is only three paragraphs long, and yet succeeds in contradicting itself twice, once in a way that has important practical halakhic implications.

The responsum opens by citing Pri Megadim (Mishbetzot Zahav 328:1):

“If there is one whom the doctors et al say is definitely in danger (of dying), and another who may be in danger, and there is only enough medication for one of them – the definite pushes aside the doubtful.”

Pri Megadim cites no evidence for this position, and it seems plainly to contradict the statement in Mishnah Ohalot 7:6 that “we do not push aside one nefesh because of another nefesh.

Nonetheless, Rabbi Auerbach treats it as dispositive precedent. More than that – he uses it as the basis for a more expansive claim:

ולכן צריכים בעיקר להתחשב עם גודל הסכנה

Therefore, one must essentially consider the extent of the danger

and the odds of saving

Pri Megadim made no reference to the “odds of saving”, only to “the extent of the danger.”

If one treats Pri Megadim’s statement as the product of formal legal reasoning, there seems no basis for Rabbi Auerbach’s extension. Rabbi Auerbach also does not discuss what happens if his two criteria point in opposite directions, such as if the more endangered patient is less likely to respond to treatment.

It therefore seems that Rabbi Auerbach understood Pre Megadim as making a general claim, based on reason, that the obligation to save lives, or more precisely the prohibition against failing to save lives, should be fulfilled in the manner that will statistically save the most lives.

Rabbi Auerbach acknowledges that allowing any such choices risks a slippery slope. He immediately denies that the relative age of the patients plays any role, without explaining why.  He references the last Mishnah in Horayot, which can be understood as giving priority to men over women, kohanim over Levites, etc., but states – again without explaining why – that “I think it is difficult to act in accordance with this.”

He then expresses strong doubt as to whether the standard derived from Pri Megadim justifies removing a ventilator. This doubt is formulated via a loose analogy – it may be “as if the first patient has acquired the machine.”  Even Pri Megadim would concede that a dangerously ill patient has no personal obligation to give way to someone sicker or more likely to be saved. If a patient is entitled to resist the machine’s removal, then the doctor has no right to remove it without consent.

Another loose analogy suggests that doctors involved in treating a patient cannot decide to abandon them for another on the basis of efficiency, because “one engaged in a mitzvah is exempt from another,” and in some cases is even forbidden from switching to the second mitzvah.

Rabbi Auerbach ends the first paragraph by commenting that he is not seeking to nail the Halakhah down, because the questions are grave, and he has no clear evidence from precedent.

The second paragraph opens by endorsing a hospital protocol that refuses ventilators to patients who are described as treifot, on the grounds that experience shows that non-treifot patients will soon arrive. Rabbi Auerbach says that this makes sense because it would be forbidden to remove the ventilator from the treifah patient, since that removal would be active killing, and it is taken as given that a subsequent healthier patient would not be allowed to kill the treifah and seize the ventilator.

Rabbi Auerbach closes by apparently endorsing the order of priority in Horayot should two patients arrive in medically identical condition, but acknowledges that other decisors disagree.

The two contradictions I see are:

The first paragraph forbids removing ventilators based only on the loose analogy to ownership.  The second describes removing ventilators as active killing.

The first paragraph states that the objection to using the order in Horayot is practicality, while the third paragraph mentions only that its use would be controversial.

In addition, the Hebrew term for ventilator in the first paragraph is machshir hanshamah, while the second paragraph uses mekhonat hachaya’ah.

All this suggests that this responsum is cobbled together from multiple sources. Such an approach is methodologically risky when speculative. In fact, I initially developed an imaginative but completely wrong reconstruction. But happily there ends up being no need for speculation.

The first edition of Minchat Shlomo prints our responsum as #82 Section 2, and provides separate headings for the paragraphs. Paragraph 1 is addressed to Dr. Shimon Glick, while Paragraphs 2-3 are addressed to Rabbi Moshe Shternbuch.

Even the first edition does not provide the text of the initial questions. However, Rabbi Shternbuch prints his question in his own responsa collection, Teshuvot veHanahagot 1:858.  At the suggestion of SBM alum Rabbi Elli Fischer, I wrote to Dr. Glick, who graciously searched his files and emailed me a pdf of his question and Rabbi Auerbach’s answer.  (A photo of the answer, but not the question, was published in the periodical Assia.) With the questions in hand, we may be able to explain why Rabbi Auerbach’s response to Rabbi Shternbuch says that removing a ventilator is forbidden as killing, while his response to Dr. Glick mentions only the concern that the patient has acquired a right to treatment.

But first we need to make the contradiction worse.  As Rabbi Dr. Avraham Steinberg notes in a forthcoming article, the second edition of Minchat Shlomo simply left the penultimate line out of the first paragraph.  Here it is:

ובנוגע למכשיר הנשמה

חושבני שתלוי בשיקול הדעת של הרופא,

ואם על פי רוב זה כבר ללא תועלת –

מוטב להעביר את זה לשני

Regarding the ventilator –

I think that it depends on the doctor’s judgment

and if the odds are that it is already not purposeful –

it is better to move it to the second patient.

Now we have three positions regarding removal of ventilators. (Or even four: the manuscript shows that Rabbi Auerbach originally wrote that it was barur kashemesh, clear as day, that it depends on the doctor’s judgement, but crossed that out and wrote instead “I think.”) Can they be brought together into a coherent whole?

A key starting point is that Dr. Glick and Rabbi Shternbuch asked different questions. Dr. Glick discussed triage choices without using technical halakhic descriptors such as treifah, and made no statements about existing policy. Rabbi Shternbuch reports a question from a doctor that specifically discusses choosing non-tereifot over tereifot, and in the context of an established policy refusing treatment to tereifot.

Rabbi Auerbach’s response to Rabbi Shternbuch is that removal of ventilators in the context of patients who will clearly die without the ventilator is likely murder, and therefore forbidden. Dr. Glick’s question however extends even to choices between patients both whom may live regardless, although their odds of survival are increased by ventilation. In such cases, the issue of murder may not apply, but the question of a right to treatment may.

The key practical question is what standard Rabbi Auerbach intended by saying “if the odds are that it is already not purposeful.” The understanding that seems to me most likely is that he meant “if the odds are that ventilation is not prolonging the patient’s life.” This position is not obvious, and therefore must be stated, it might be forbidden to remove a ventilator so long as there is any chance that it is prolonging life. It seems to me that this is the only case involving dying patients that would not run afoul of the position in the letter to Rabbi Schternbuch that removing a ventilator is considered active killing.

I need to make clear that I am not endorsing either Rabbi Auerbach’s conclusions or his reasoning. My own strong preference, and ongoing effort, is to develop a halakhic ethics of triage that fiercely resists any efforts to attenuate the force of the statement that we do not push aside one nefesh for the sake of another. I am very grateful to those who have challenged and honed my thinking in the series of ZOOM shiurim on this topic, and invite you to join us this coming week.

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Social Distancing in Halakhah: The Dispute between Rambam and Ramban about Harchakot Niddah

by Rabbi Aryeh Klapper

Negative Commandment #353 in Maimonides’ Book of Commandments prohibits hugging, kissing, and similar activities between men and women who are Biblically forbidden to have sex with each other, including couples where the woman is niddah. This prohibition is derived by Sifra (midrash Halakhah to Vayikra) as follows:

  1. Vayikra 20:18 declares that niddah-sex leads to the punishment of karet for both men and women.
  2. Vayikra 18:19 formulates the prohibition as lo tikrav legalot ervatah. “Lo tikrav” literally means “do not draw near.” This mandates harchakot (distancings) beyond avoiding intercourse, although the punishment of karet applies only to intercourse.
  3. Vayikra 18:6 formulates a general prohibition against incest as lo tikrevu legalot ervatah. The prohibitions of harchakot therefore apply to all such relationships as well.

However, Sifra does not obviously support Maimonides’ conceptualization of all Biblical harchakot as a single mitzvah applying to both incest and niddah, and perhaps adultery.  Rather, harchakot for incest and niddah are derived independently.

Nachmanides disagrees with Maimonides and holds that harchakot are not an independent mitzvah. He also rejects Sifra’s derivation of the prohibitions, arguing that the verb krv is often a euphemism for intercourse. He offers two alternatives. The first is that harchakot are Rabbinically rather than Biblically prohibited. The second is that they are Biblically prohibited, but do not constitute an independent mitzvah. Rather, harchakot are subsumed into the individual prohibitions against intercourse.

Nachmanides explains the second option via analogy. Many prohibitions are punishable only if the violation exceeds a threshold shiur/measurement. However, Rabbi Yochanan held that violations falling below that threshold are still Biblically prohibited “because they can be combined.” For example, the shiur for eating forbidden foods is generally an olive-size, but eating less than an olive-size of pork (chatzi shiur) remains Biblically prohibited according to Rabbi Yochanan. Nachmanides suggests that hugging, kissing, etc. are parallel to chatzi shiur violations:

דכל דמתהני מאיסורא – איסורא הוא

כענין בחצי שיעור

Because everything that derives benefit from prohibition – is itself prohibited
in the manner of violations below the threshold shiur

How seriously should we take this analogy? Conceptual halakhists generally distinguish between chatzi shiur, where the prohibited action is done to an undersize object, and chatzi ma’aseh, where the action itself is incomplete.  For example, Rabbi Yochanan conceded that carrying an object less than 4 cubits in a public domain on Shabbat is not Biblically prohibited. Surely hugging, kissing, and even mixed dancing are more like a chatzi ma’aseh of intercourse than a chatzi shiur! So what does Nachmanides gain by introducing the analogy? (Note also that there is also much discussion of whether chatzi shiur is an independent generic prohibition or rather an internal aspect of all other prohibitions.)

I suggest the following.  Yoma 74a says that Rabbi Yochanan’s rationale for prohibition is

כיון דחזי לאיצטרופי

since it can be combined

The classic conceptual question is whether this means that chatzi shiur is prohibited lest one continue on to a full-shiur violation, or rather that the existence of the full-shiur prohibition demonstrates that G-d objects to the performance of this action with this object (and if, e.g., one ate 1.5 olive-sizes of pork, the prohibition would relate equally to each molecule). By staking his rationale on “deriving benefit,” Nachmanides makes clear that his analogy is to the second understanding of the prohibition against chatzi shiur.  In other words, he views harchakot not as preventive measures, but rather as activities that are wrong in and of themselves.

This position has potentially radical implications. If harchakot are preventive, then plausibly in circumstances where there is no risk of a slippery slope, they can be permitted. But such circumstances are irrelevant if harchakot are intrinsically prohibited.

However, Nachmanides offers this analogy in support of the possibility that harchakot are Biblically forbidden but not a separate mitzvah. The bulk of his discussion assumes that they are Rabbinically forbidden.

Moreover, Nachmanides argues that Rabbinic prohibitions allow more room for subjective considerations. He cites a number of Talmudic stories which endorse great rabbis’ physical interactions with female relatives on the grounds of purely innocent intent. “If this were an absolute Biblical prohibition, it would not be permitted to pious sages to act this way even when doing so for the sake of Heaven.  Rather, everything is a fence and a barrier, and permitted with relatives to men who have an established reputation of being above suspicion in these matters and who avoid such behavior with other women.”

How can Nachmanides reject Sifra out of hand? He contends that all Talmudic positions reject it.  On Shabbat 13a and and Avodah Zarah 17a, the Amora Rabbi Pdat is cited as saying

לא אסרה תורה אלא קורבה של גלוי עריות בלבד

The Torah forbade nothing but the kurvah of actual intercourse

This directly contradicts Sifra’s notion that the verb krv extends the prohibitions beyond intercourse.  However, in each case Rabbi Pdat’s statement is introduced with the term ופליגא, meaning that it disagrees with what came before. Perhaps what came before agreed with Sifra! Nachmanides responds that no, what came before argued for a Rabbinic prohibition of a specific behavior, and Rabbi Pdat argued that such behavior was entirely permitted.

This seems difficult to fit with Rabbi Pdat’s language. Even if we agree that לא אסרה תורה does not necessarily imply a Rabbinic prohibition, how can it be read as rejecting such a prohibition? Nachmanides argues that in context it can be, as follows:

The sugya on Shabbat 13a opens with a query: Is it permitted for a husband and wife to share a bed while she is niddah if both remain clothed?  Nachmanides explains that the question assumes that despite the clothing, they will touch each other and feel each other’s body heat. In other words, the experience will be erotic.

Rav Yosef argues that such behavior must surely be forbidden as a preventive, just as we prohibit having chicken and cheese on one’s table together.  But the Talmud rejects this proof, arguing that the husband and wife can serve as checks on each other, and the requirement to be clothed will serve as a reminder that intercourse is prohibited.

The Talmud eventually finds a dispositive proof.  An anonymous beraita derives from Yechezkel 18:6 an analogy between the prohibitions of adultery and niddah, and concludes: Just as sharing a bed together with both clothed is forbidden to a man with another’s wife, so too it is forbidden to a man with his own wife in niddah.  It is this beraita that Rabbi Pdat’s statement disagrees with.

Nachmanides argues that the analogy between niddah and adultery leads to banning all eroticism, even if it will not lead to intercourse.  He understands the prohibitions against men deriving erotic pleasure from looking at or listening to another man’s wife as intended that way.  Rabbi Pdat responds that the intent of the Torah in the context of niddah is to prevent intercourse only. He therefore rejects the beraita’s analogy to adultery, and holds that Rabbinic preventions in the context of niddah are legitimate only if they tend to prevent intercourse. Furthermore, he holds that when there are “two minds” able to check each other, and there  is a heker, a change in behavior that serves as a reminder of the prohibition against intercourse, one need not be concerned that intimacy will lead to intercourse.

Nachmanides does not tell us whether he rules like Rav Pdat. Furthermore, he understands Rabbi Pdat as fully agreeing with harchakot that might lead to intercourse. His willingness to allow subjective leniencies probably also carries with it stringent implications, for example if an interaction has specific erotic implications for a couple, or a society. For example: Rabbi Pdat would agree that in a society where pajamas are standard, being clothed in bed could not function as a heker. Practical halakhah certainly adopts great stringencies in this regard.

Nonetheless, it seems to me that Nachmanides’ comprehensive effort to refute Maimonides signifies an endorsement of Rabbi Pdat’s underlying principle that harchakot in the context of niddah are very different than those in the context of adultery. However, practical halakhah appears to have rejected this approach, as many of the harchakot we practice seem very distant from concerns that they will lead to intercourse.

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Facing the Halakhic Challenges of the Current Crisis

by Rabbi Aryeh Klapper

The ongoing Covid-19 crisis presents our community with innumerable practical challenges. As with all political leadership, halakhic crisis management depends on effective communication as well as effective action. Led by the superbly Nachshonian RCBC, local and national Modern Orthodox leadership has done a superb job of communicating the absolute priority of social distancing. There have also been many substantive halakhic opinions issued on narrower issues. But the effectiveness of those opinions has sometimes been limited by challenges of communication.

Let me start with an example that is about the context of halakhah, rather than about halakhah itself.  There have been many statements about the safety of mikvaot, and therefore the permissibility of immersion, for women who are not at high risk. These properly include caveats that our information about the virus is constantly being updated, which justifies the exclusion of high-risk women.

This is very important. But there are other issues that also must be dealt with. An excellent Israeli directive began with the following:

A woman who feels terrified by the necessity to go to mikveh – is not obligated to immerse.

Her life and peace of mind come before all.

From a halakhic perspective, she of course remains in a condition of prohibition until she next immerses.

Together with this, I will try to explain, as one who is in charge of the mikvaot of X, why in my humble opinion immersion in the mikvah is secure with a high degree of likelihood.

This creates an entirely different tone. It expresses a sensitivity to the possibility of spousal coercion, and validates a woman’s right to make their own judgments about safety. It makes clear that trust must be earned rather than assumed.  This makes it much more likely that trust will be earned.  And that trust will be greatly needed.

At the same time, even this statement has no long-term plan for a community in which many women feel that the mikvaot are genuinely unsafe, let alone for the couples in which the women are being specifically told that they should not go, with no prospect of short-term change. There is also a possibility that experiencing the mikvah under hazmat conditions will be immensely stressful for a significant number of women, with long-term effects.

We also need a plan that can survive our being wrong a few times, as we inevitably will be.  Some mikvah somewhere will likely become at least a suspected vector of infection at some point. What resources will we have to demonstrate that it is an anomaly, and that just about every mikvah is in fact punctiliously carrying out recommended best practices? I personally am reeling from the number of infections in Israel attributed to Purim celebrations.

There may be no such plan. But we also cannot casually expect mass religious heroism. In the absence of confidence that we have a humanly realistic plan, people will embrace other plans that seem humanly realistic, even if we strongly doubt their halakhic bona fides.

A major challenge here is that halakhah has a strong preference for dealing with exceptions to standard law in a private, case-by-case fashion. There are good reasons for that – making public exceptions weakens the law and leniencies are often abused. Keeping leniencies individual enables poskim to be more flexible in each case. But I suspect there is a tipping point at which everyone knows that there will have to be so many exceptions that a public rule is necessary.

It would be helpful if we could effectively teach ROSH’s idea that some halakhic positions are totally out of bounds – except in emergencies.  ROSH held that a dried out lulav was Biblically invalid under ordinary circumstances, but that when literally no other lulav was obtainable, one could make a blessing on a dried out lulav. One would be perfectly justified in denouncing someone who counseled the use of a desiccated lulav in an ordinary year. But what if there’s a legitimate reason to fear that no lulavim will be available this year? The Raavad disagreed strongly with ROSH, and the Beit Yosef compromised – yes wave the lulav, but no berakhah.  We need at least to make that compromise comprehensible to people (and for ourselves as well, clarify how it plays out with regard to DON’Ts).

The dispute among ROSH, RAAVAD, and Beit Yosef is also key to many of the conversations about virtual ritual. Almost everyone agrees that virtual davening communities do not have the depth of connection and spirituality of in-person communities. Almost everyone agrees that if we could allow mourners to say kaddish now, without fear that next year’s mourners would be much likely to show up in person, we would. The question is whether it’s possible to allow it now without the laity drawing the lesson that in principle it’s good enough.

Crisis leniencies often face another tension. State the actual standard for leniency, and many people who desperately need that leniency, are perhaps even required to use it, will refuse to. State a lower standard, and of course many people will use it who should not be permitted to.

Last week’s dvar Torah discussed this question with regard to relaxing the prohibition against kitniyot for the poor in a time of scarcity. Maharim MiBrisk held that it was necessary to relax the prohibition for all, lest the poor feel stigmatized and fail to have the halakhically required joy of yom tov. Divrei Malkiel disagreed.  However, Divrei Malkiel conceded that in an economic crisis, many of the genteel poor, who were keeping up the appearances of their past condition, would refuse to take advantage of leniencies if that required acknowledging their poverty. He therefore conceded that in such a crisis Maharim MiBrisk’s position would be justified.

This dynamic underlies the conversation about ZOOM seders and communication devices over a three-day yom tov.  We all understand that three days without human contact on yom tov will pose a severe health challenge to some of our most vulnerable community members. If we publicly set the standard for leniency as medically verified risk of suicide, not many people will use it unjustifiably. However, it is equally certain that many people who are at risk will refuse to use it. They may be in denial about the severity of their condition (and for that reason may not even have a therapist). Or they may be unwilling to admit their condition to others. A specific aspect of permitting electronic communication is that it requires coordination with a second party. I can’t ask you to ZOOM your seder unless we both classify it as pikuach nefesh.

On the other hand, we also all understand that separating families at the seder will cause enormous and profound unhappiness. If we set the standard for leniency at risk of great sadness, many people will use it who cannot plausibly be classified as in danger. Some rabbis may think that the lower standard is proper. But those who don’t cannot escape choosing between Scylla and Charybdis.

This is a halakhic tension.  But the fundamental issue is whether we can communicate one of these positions effectively enough that mostly the right people use the leniency without guilt, while the wrong ones don’t use it at all.

It might help to think about setting up two committees. The first would discuss ways of credibly certifying the Covid-19 precautions of specific mikvaot. The second would engage in halakhic disaster planning. What if mikvaot become actually unsafe? What if we have a dramatic rise in marital unhappiness? What if the first days of yom tov show a dramatic spike in severe depression? Each of these committees must include representative men and women, as well as both halakhists and professionals or volunteers who can credibly convey the concerns and reaction of the community to proposed rulings. If we eschew a formal structure, we need to find ways to ensure that we have the conversations informally.

My belief is that having these conversations will yield both better policy and better communication.

Shabbat shalom

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(How) Does Halakhah Take Economic and Other Inequalities Into Account?

by Rabbi Aryeh Klapper

The Talmud (Moed Qattan 27a-b) records a series of rabbinic decrees made to protect the dignity of the poor in the contexts of burial and bereavement. For example, “Originally, when they brought (food) to houses of mourning, the rich would use baskets of silver or gold, while the poor used baskets of peeled willow twigs.” Rabban Gamliel led by example and ordered that his own burial shrouds be plain linen. The concluding Mishnah of Masekhet Taanit teaches similarly that the daughters of Jerusalem all wore borrowed white dresses to the public celebrations of 15 Av “so as not to embarrass she who had none.”

However, this does not mean that halakhah always prioritizes the dignity of the poor above other values.  Mishnah Bikkurim 3:8 records that “The rich brought their bikkurim in baskets of silver or gold, while the poor brought them in baskets of peeled willow twigs.” Tosafot Yom Tov asks: Doesn’t this embarrass the poor? Why didn’t they decree that the rich had to use willow baskets, as they did regarding mourners? Some suggest that the honor of the Temple took precedence.  Maybe halakhah is most interested in the dignity of poor mourners, or would-be brides. Or perhaps the Rabbis left bikkurim alone because the baskets were given to the kohanim, and therefore the rich paid directly and proportionately for their ostentation.

The modern equivalents of gold and silver baskets may be etrogim from family trees descended directly from King David’s, or matzot made so labor-intensively that they are worth their weight in gold. These extravagant products may support businesses that employ many people who would otherwise be poor. The risks are that the poor may be embarrassed to eat their machine matzahs or carry their asymmetrical etrogim, and disengage from the community, or worse, that the non-rich will be driven to spend unsustainable sums on mere halakhic baubles.

All these are cases where halakhah clearly requires nothing beyond the capacity of the poor. What happens, however, when baseline halakhah becomes too heavy a burden on the poor, so that they need to avail themselves of halakhic leniencies? Do the non-poor have a right to keep baseline halakhah, even if that will embarrass the poor, or should halakhic authorities – as best they can – seek to compel everyone to adopt the relaxed standard?  (Note that Deborah Klapper argues that the same question often arises in the context of disabilities, as for example use of Shabbat elevators.)  Is it a Torah value to ensure that the poor can freely invite the rich to meals, or to borrow their lulavim?

A fascinating responsum from the year 1852 addressed this issue head-on. Rabbi Yaakov Meir ben Chayyim Padua, Rabbi of Brisk, was asked to allow the eating of a type בעבליך (=?chickpeas?), a type of kitniyot, because the poor would find little else to eat otherwise. Likely there was a potato shortage.  Rabbi Padua easily reaches the conclusion that this is permissible for the poor. He then goes further:

If you were to say: Here too we will say this because circumstances are pressing (sh’at hadchak), so let us permit this exclusively for the poor who have nothing else to eat, but not for the burghers or the rich –

It would be improper to do this, because in truth there is no intrinsic prohibition, or even trace of a prohibition, in this (eating kitniyot), just (it was prohibited) for some reason they had, that one might come to error or something else (see Pri Chadash 453), and if we permit it for the poor and not the rich – the poor will have their joy of yom tov removed, because they will say: “There is something prohibited about this, but they permitted it to them because of the pressure of circumstances,” and they will be denied the joy of yom tov,

We find that Chazal were afraid of such consequences, as they say in Tractate Niddah “If so, his heart (conscience) will trouble him and he will separate (from his wife) and not fulfill the commandment of procreation” –

so too here, if we permit for the poor alone, some of the G-d-fearing will have their hearts trouble them, and they will avoid eating בעבליך, and thus they will be denied the joy of yom tov.    (Teshuvot Maharim miBrisk 48)

Rav Dovid Tzvi Hoffman makes a similar argument in Responsa Melameid L’Hoil 1:58 (the responsum is undated, so late 19th-early 20th century). German public schools met on Saturday. Rich Jewish parents could afford tutors for their children to make up the material missed, but the poor would fail if they were absent.  Rabbi Hoffman writes:

You might suggest that the Jew should hire a private tutor to teach his child the material covered in school on Shabbat.  Unfortunately, because of our many sins most Jews are poor and incapable of affording the expense of a private tutor for the Shabbat material.  Therefore, since the learning is a prerequisite for making a living, it is certainly considered a “slight mitzvah” and universally considered permitted, just like arranging an apprenticeship for a child is permitted in Shulkhan Arukh Orach Chayyim 307:5.

I say further that there are places where even those who can afford a private tutor would do better to send their children to school on Shabbat just as the poor people are compelled to do.  An example would be those places where many of our nation, because of our many sins, desecrate the Shabbat by writing, and Jewish students who don’t write on Shabbat are rare.  If there are more Jewish students committed to not writing on Shabbat, their hands will be strengthened – “they will help one another and say to each other: “Be strong!”  If the G-d-fearing students are few, though, we must be concerned that – Heaven forbid – they will not withstand this test of their commitment.  Certainly at least the weakest of them will falter.  It is appropriate for the rich to do something that doesn’t even amount to a “small prohibition” in order to save their Jewish brethren from “great prohibitions.”

I don’t mean to say that Maharim miBrisk or Rav Hoffman were necessarily correct in their rulings, or that they expressed a dispositive halakhic principle.  For example, Maharim MiBrisk’s ruling was lovingly criticized by Rabbi Malkiel Tenenbaum (Divrei Malkiel 1:28) writing in response to a potato shortage in 1880.  Rabbi Tenenbaum permits all kitniyot, but only for the poor.

Since the whole basis of the leniency we have explained with Heaven’s help is the pressure and compulsion of circumstances – therefore one may not permit except for the poor who endure that pressure, and not for the rich, and everyone who can make the effort not to eat kitnityot without experiencing that pressure is certainly forbidden to eat kitniyot.

But Rabbi Tenenbaum then provides another reason for insisting that the rich share the halakhic lot of the poor:

But according to what we are told, the gaon Maharim miBrisk spoke well in accordance with his times, when food was enormously expensive and there was no money, and certainly that tzaddik realized that there were many people who were ashamed to proclaim their poverty, and kept up the appearance of wealth, so that it would be humiliating for them to eat kitniyot, and they would instead endure the humiliation of hunger on yom tov – therefore he garbed himself in righteousness, as befit him and commanded that all of them eat, as this almost touched on pikuach nefesh according to what I’ve heard of the great expensiveness and hunger of that time, and in such circumstances we can say that “Better for a chaver to violate a lighter prohibition, etc. (= if he thereby prevents an am haaretz from violating a greater prohibition).”

Our ongoing crisis will pose many similar dilemmas. Challenges of supply may put inflationary pressure on Pesach products (although so far the news is good), and people who have for years been treated by relatives to Pesach vacations will now be forced to make their own sedarim, and find it hard to maintain the yom tov dignity that they are accustomed to. For example, my grandfather z”l refused to join us at the YU Sukkah for yom tov the year after they switched to serving on disposable dishes. Yet I don’t have Pesach china, or Pesach dishwashers.

Perhaps more seriously, the halakhic options available to the elderly and the immunosuppressed, or the quarantined, may become very different than those available to the rest of us. Specifically with regard to mourners, can we say that they must rely on options for kaddish that would be insufficient for the rest of us? Perhaps yes; perhaps this is an opportunity to correct the magical thinking that has arisen around kaddish. But no such arguments would have applied to the megillah, or will to Birkat Kohanim on yom tov. But perhaps we are less concerned outside the sphere of mourning?

Each halakhic issue in any case requires separate treatment. I hope only to have shown that poskim can and should think about class distinctions and other social consequences as they help us navigate these challenging times.

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In Halakhic Emergencies, Break Glass and Then Read Directions Carefully

by Rabbi Aryeh Klapper

The Purim coronavirus crisis generated numerous public statements that the mitzvah of hearing the megillah could be fulfilled via a livestream. Coincidentally, after the publication of my Facebook post clarifying the difference between sh’at hadchak and bedieved, many of those statements were updated to say that livestreaming was sufficient only when no live option was available. Really what they meant to say was that livestreaming might be sufficient to fulfill the mitzvah, and that public and private health concerns required us to rely on that possibility when no safe in-person option was available.

Maybe they were right the first time? Rav Moshe Feinstein’s three responsa on the subject seem to state clearly that it seems more likely than not that one can fulfill the megillah by hearing it via microphone or telephone.

Rav Moshe is hesitant to permit this in practice because of social policy concerns. Such concerns should not affect the underlying halakhic question of whether one’s obligation has been fulfilled. If changed circumstances have obviated Rav Moshe’s concerns, or if one simply doesn’t share those concerns, then his position should be an adequate basis for relying on livestreaming in non-emergency situations.

I disagree with this read of Rav Moshe.  This claim arises from an imprecise reading of Rav Moshe’s responsa, which are carefully nuanced and jurisprudentially sophisticated. Let’s take a look at them in some detail (complete texts with my translation are available here).

The opening paragraph of Igrot Moshe OC2:108 states that “it is inappropriate (אין ראוי) to read the megillah so that people will hear via microphone.” Rabbi Feinstein then denies a report that he had previously ruled that one need not object (אין למחות בידם) to people who do this.

In the body of the responsum, however, Rav Moshe rejects his correspondent’s confident assumption that one cannot fulfill one’s obligation via microphone, because the sound is produced by something which is not itself obligated in the mitzvah. Rav Moshe contends that the microphonic sound is more likely than not considered to be the voice of the human speaker.  He furthermore is not certain that it is physically correct to say that the microphone produces an independent voice. He concludes:

For this reason it is possible that one should not object (אין למחות) on halakhic grounds to those who wish to read the megillah via microphone,

and there is no risk of corrupting other mitzvot such as shofar and Torah reading on Shabbat and yom tov, because it is forbidden to speak into a microphone on Shabbat and yom tov,

and regarding mitzvot of speech on weekdays, if they were also to read via microphone, if one should not object regarding megillah – all the more so (one should not object) to these.

However, since the matter is not unequivocally permitted, and this is a new matter entirely (ענין חדש בכלל),

one should object (יש למחות) in order to restrain them from chasing after other novelties, which they are ardently attracted to in these lands, as Your Honor wrote.

Rav Moshe formally presents the issue as whether one must object to synagogues that read the megillah via microphone.  His conclusion is that one must, but on social policy rather than halakhic grounds. Our question is whether this means that on pure halakhic grounds he endorses the position.

On first blush the answer is yes, since he states that it is more likely correct than not.

But on second thought, maybe not. There are at least three other teshuvot in which Rav Moshe states that an answer is more likely correct than not, and nonetheless frames the halakhah as “One should not object” rather than as “One may act so”:

  1. OC 1:93 – The more likely correct position for a Shabbat blech is that covering the fire is sufficient, and one need not cover the controls. Therefore one can be lenient bish’at hadchak and need not object to people who rely on this position in ordinary situations.
  2. OC 2:84 – The more likely correct position is that attaching things by sticking a needle through them is permitted on Shabbat. This position is certainly correct regarding diapers, where the attachment is necessarily temporary. However, one should not object to women who attach jewelry this way, even though the attachment may last.
  3. OC 4:62 – The more likely correct position regarding Shabbat ending time is that of Arukh HaShulchan, and therefore one should not object to people who rely on it. But perhaps it is appropriate to be stringent and account for the conflicting positions.

What emerges from these cases is that Rav Moshe uses “more likely correct than not” for positions that he would choose where a choice is necessary, but that he would rather have people play it safe and avoid choosing.  However, he believes that one cannot object to people who make the choice even when choosing is unnecessary. Applying those rules to our case, he would prefer that people not rely on hearing the megillah via microphone, but if someone had already heard it via microphone, he would tell them not to make the berakhot if they read it for themselves later. Not quite endorsement, but pretty close.

However, careful attention to Rav Moshe’s language in OC 2:108 reveals an additional wrinkle. In addition to the language of “more likely correct than not,” Rav Moshe offers another ground for not issuing a definitive ruling:

כיון שלא ברור להיתר והוא ענין חדש

since the matter is not unequivocally permitted, and this is a new matter

The phrase inyan chadash also appears in YD 3:30, where the issue is whether placing items in a steam oven constitutes the method of koshering known as hag’alah. Rav Moshe states that it seems reasonable that this works.  However, because it is a new matter that never came before the rishonim, he permits it only for items that are clean, have been unused for 24 hours. are not generally used for sharp foods. He also states that one should not be lenient even to that extent for Pesach koshering, because even “negative absorbed taste” is forbidden. All this seems more definitive and less positive than his rulings in the three cases above that do not involve a “new matter.” Moreover, the hesitations here are not connected in any way to fears of sociological impact.

Like our case, YD 3:30 is a new matter because it involves new technology. I suggest that Rav Moshe regards rulings about unprecedented technology as inherently tentative. One might have misunderstood the reality, or misjudged the stakes, or erred in some other crucial way. The ruling in such cases will be to avoid choosing among positions if at all possible.

This insight helps explain two confusing elements of a different teshuvah regarding microphones.

In OC 4:91:4, dated 5732, Rav Moshe rules that a hospitalized woman should hear havdalah by phone if no in-person option is available, and cites his psak in OC2:208 as precedent.  But he adds two surprising things.

1)      Havdalah is like all other weekday speech mitzvot in this regard, except for keriyat Sh’ma and Birkat HaMazon. One must object to anyone setting out to fulfill the Shema and Birkat HaMazon via microphone.

If Rav Moshe endorses the position that hearing via microphone fulfills one’s obligation, why should one object in those two cases?

2)      One must answer Amen to blessings heard via telephone or microphone out of doubt = misafek.

Why is this considered a doubt? If it is more likely true than not, we have a majority = rov!

I suggest that the answer to both questions is that Rav Moshe had a sort of metadoubt about all rulings issued with regard to new scientific realities. Such rulings may seem “more likely than not,” but the overall odds never go above 50%, i.e. never escape the category safek. Therefore: One should object to the use of microphones to fulfill Biblical commandments, such as keriat shema and birkat hamazon. (Havdalah is only Biblical when it actually ends Shabbat for you; once you’ve said atah chonantanu or barukh hamavdil ben kodesh lechol it becomes Rabbinic.)

In OC 4:126, dated 5740, Rav Moshe returns to the question of whether one can hear the megillah via microphone. A school knew that when its beit knesset was packed, as for example to hear the megillah, the female students could not hear without a microphone. They had the option of delaying the reading until the cafeteria was cleaned up, and having two smaller minyanim, or else of using the microphone. Rav Moshe insisted that they delay the reading despite what he acknowledges as a “slight dchak,” without detailing his rationale.

Delaying the megillah means delaying the breakfast. So Rav Moshe imposes a high standard to be considered a sufficient sh’at hadchak to allow reliance on microphones. Since he does not mention sociological concerns here, his concerns presumably are genuinely halakhic. This demonstrates again that his psak in this context was tentative.

In other words – forced to choose, Rav Moshe chose the position that hearing the megillah by microphone or telephone was sufficient. But he tried to avoid the choice whenever possible, He took a much stronger position against relying on technology for Biblical mitzvot, and emphasized that Amen is answered out of doubt, because he understood that changes in scientific understanding, halakhic understanding, and reality might reveal that his evaluation was wrong. He was trying to rule as necessary in the moment while avoiding setting a precedent.

In the forty years since Rav Moshe’s third teshuvah, the world has changed enormously. Wireless connections and digital signal processing mean that we are dealing with completely different technology than he discussed. His notion that the propagation of sound waves (which he is somewhat skeptical of) is no different than the transformation of speech into bits seems off. He never discusses systems where microphones generate sound through multiple speakers handling different frequencies. The internet and virtual reality have radically different social roles.

For all these reasons, I think that Rav Moshe’s position is a weak reed to build on. In a truly extreme sh’at hadchak such as mass quarantines, it can still be relied on. But the halakhic dialogue about fulfilling mitzvot via electronic transmission or other forms of virtual reality should begin from first principles.

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On What Basis Does G-d Command?  Matt Eisenfeld Memorial Essay 5780

by Rabbi Aryeh Klapper

The concept of commandedness is at the heart of halakhic Judaism. We are fond of pointing out that mitzvot are commands, and that we are commanded, metzuvim and metzuvot. But translations are almost always misleading.  What does the word tzivui actually mean?

Rabbi Mordechai Feinstein, a few of whose writings are published in Igrot Moshe volume 8, proposed the fascinating idea that commandedness is a condition that precedes any actual commands. All human beings are born into the world in a state of being metzuveh or metzuvah. G-d then assigns each of us a specific set of mitzvot.

This explains how Tosafot can suggest that (according to Rabbi Yehudah) blind Jews are Biblically exempt from all mitzvot and yet bound by Rabbinic legislation. Doesn’t the authority of Rabbinic legislation derive from the Biblical commandment “Do not stray from all they tell you, right or left?” The answer is that the verse “Do not stray” is not a commandment, but rather a transfer to human beings of G-d’s inalienable authority to command.

I suggest that a further qualification is necessary.  There is a fundamental difference between the mitzvot that the Torah assigns to Jews, and those that are assigned to humanity as a whole. The Torah is binding on Jews only because we accepted it, because we took an Unbreakable Vow at Sinai. The mitzvot of humanity are binding just because.

It seems likely to me that Biblically exempt Jews can be bound by Rabbinic legislation only because they are considered to have taken the Vow. (One could instead argue that the Rabbis have the authority to impose their legislation on Gentiles as well as Jews, but followed G-d’s example in choosing not to.)

This raises a further question. Is G-d’s inherent authority to command humanity unlimited?  Could He have legitimately imposed the Torah on humanity, but chose not to?  The perhaps radical alternative is that G-d’s inherent authority is narrower than the Torah.  The Torah is a representation of His will, but retzon Hashem per se is not binding. However, forming an intimate relationship with Him involves voluntarily accepting it as binding. (Perhaps the only way to fully accept retzon Hashem as binding is if one does not know in advance the content of that ratzon, i.e. via “na’aseh v’nishma.”)

It is possible to read Sanhedrin 56b as presenting a fundamental dispute about this issue.  Genesis 2:16-17 tells us

וַיְצַו֙ ה֣’ אֱלֹהִ֔ים עַל־הָֽאָדָ֖ם לֵאמֹ֑ר

מִכֹּ֥ל עֵֽץ־הַגָּ֖ן – אָכֹ֥ל תֹּאכֵֽל:

וּמֵעֵ֗ץ הַדַּ֙עַת֙ ט֣וֹב וָרָ֔ע – לֹ֥א תֹאכַ֖ל מִמֶּ֑נּוּ

כִּ֗י בְּי֛וֹם אֲכָלְךָ֥ מִמֶּ֖נּוּ – מ֥וֹת תָּמֽוּת.

Hashem Elokim imposed a tzivui on Adam, saying:

From all the trees of the Garden you may surely eat.

But from the Tree of Knowledge, Good and Evil – you must not eat from it

because on the day of your eating from it – you will surely become mortal. 

What tzivui did G-d impose?  One might say simply: “Not to eat the fruit of the Tree,” but Chazal understood the verse as encoding a series of commandments.  According to Rabbi Yochanan, the first word, vayetzav, refers to the obligation to create functioning legal systems, whereas Rabbi Yitzchak understood it as referring to the prohibition against avodah zarah.

This dispute may reflect fundamentally distinct underlying conceptions.

For Rabbi Yitzchak, the right-to-command humanity emerges from G-d’s status as the only source of value. The core of obligation is that we must worship Him and Him alone, because that is the only way for anything we do to have meaning. All obligations are fundamentally the same.

For Rabbi Yochanan, by contrast, humanity can be commanded involuntarily only for its own sake, only to the extent necessary for its survival and perhaps its flourishing. Avodah zarah is prohibited because worship of a single G-d, i.e. belief in a single source of value, is prerequisite for civic virtue.  Perhaps Rabbi Yochanan believes that the fact of our having been created is sufficient to demonstrate that our survival and flourishing has value.

Various midrashei halakhah and midrashei aggada record a different conversation about the meaning of the word tzivui. The version in Yalkut Shimoni (Shemot 377) states that the opening verse of Parshat Tetzaveh imposed an immediate obligation to bring the oil for the Mishkan, whereas Vayikra 24:2, which contains a tzivui with the same content, extends it to all generations. Rabbi Yishmael then comments:

היה רבי ישמעאל אומר

הואיל ונאמרו צוואות בתורה סתם,

ופרט לך הכתוב באחת מהן שאינו אלא מיד בשעת מעשה ולדורות,

אף פורטני בכל הצוואות שבתורה שלא יהו אלא בשעת מעשה ולדורות.

Rabbi Yishmael would say:

Since the Torah often records tzivuyim plain (i.e., without stating the time to which they apply),

and the Torah specifies regarding one of them (oil) that it applies immediately and for all generations,

this teaches me that all tzivuyim in the Torah apply immediately and for all generations.

Rabbi Yishmael’s comment is followed by three other Tannaim making a statement of the form “. . . אין צווי בכל מקום אלא / The term tzivui as used in Tanakh always means . . .”

a) Rabbi Yehudah ben Beteirah says that tzivui = ziruz, or encouragement/inspiration to action. His evidence is that in Devarim 3:28, G-d tells Mosheh

וצו את יהושע וחזקהו ואמצהו

Be metzaveh Yehoshua, and strengthen him and hearten him

There is no command mentioned in this context, and Rabbi Yehudah ben Beteirah probably understands “strengthen and hearten” as defining the term tzav. (The parallel to Yeshayah 38:1, where Yeshayah tells Chizkiyah to be metzaveh his house because he is dying, suggests that we are referring to an ethical will, what becomes known as a tzava’ah.)

b) Rabbi Shimon bar Yochai says that a tzivui always involves a financial loss (here the cost of the donated olive oil; the loss is not as evident in all the examples he brings)

c) Rebbe says that the word tzivui refers to an azharah, which can mean either a commandment generally or specifically a DON’T. His evidence is G-d’s commandment to Adam in Genesis 2:16.

Rebbe’s position may accord with that of Rabbi Yitzchak. The word tzivui means the same thing when it refers to the Torah and when it refers to general human obligation. Because Rabbi Shimon bar Yochai and Rabbi Yehudah ben Beteirah seek alternative meanings, and settle on ones that fit poorly with Genesis 2:16, it is tempting to suggest that they accord with Rabbi Yochanan.

However, an array of commentators disagree.  Their evidence is from the version in Sifra:

צו – אין צו אלא זירוז מיד ולדורות.

אמר ר’ שמעון:

ביותר – כל מקום שיש בו חסרון כיס.

Tzav – This means ziruz immediately and for all generations.

Said R. Shimon:

B’yoteir/more – everywhere there is financial loss.

They understand b’yoteir as saying that Rabbi Shimon bar Yochai is only adding a nuance, not providing a distinct meaning. Moreover, this version seems to conflate commandedness with ziruz, and thus deny any distinctiveness to Rabbi Yehudah ben Beteirah as well.

However, what may be a version of Rabbi Yehudah ben Beteirah,  found with variations in Sifrei Zuta (27) and Yalkut Shimoni (Bamidbar 775), opens up a new possibility:

וצוית אותו לעיניהם

אבל אין אתה יודע הצווי הזה מהוא

נאמר כאן וצוית אותו

ונאמר להלן קרא את יהושע והתיצבו באהל מועד ואצונו (דברים לא יד)

הא אין צווי בכל מקום אלא ד”ת.

You (Mosheh) must be metzaveh him (Yehoshua) before their eyes

I would not know what this tzivui is.

Now that it says here you must be metzaveh him,

and it says later (Devarim 31:14) Call Yehoshua, and stand in Ohel Moed, and I (G-d) will be metzaveh him

therefore tzivui in every context means “words of Torah.”

The argument here is that whenever G-d Himself is metzaveh, that means that He is teaching Torah. Human beings translate that Torah into commands, encouragement (see Rashi to Devarim 31:14: “azarzenu”), etc., but the core of the relationship is pedagogic.

If this presumably applies to the initial vayitzav in Eden as well, then for the author of this midrash (possibly Rabbi Yehudah ben Beteirah), G-d commands by educating. This might mean that He educates about His will, but more likely, it means that He educates us about the good, and the good is binding independently. Why then is the Torah binding only on Jews? I suggest that many goods can only be achieved in the context of a relationship.

One last possibility. Ramban reads vaatzavenu in Devarim 31:14 as meaning “I will make him a metzaveh.” Perhaps we should read every tzivui in Torah not as a direct command, but rather as a grant of authority to interpreters, in the spirit of the Torah not being in Heaven. On this interpretation, commandedness always refers to Rabbi Feinstein’s condition of being ready to receive specific commands, with the recognition that such commands will inevitably be subject to human mediation.

If we assume that Ramban is in concert with our midrash, rather than an alternative, we can say that when G-d teaches Torah, He grants authority. This contains two valuable lessons for human teachers of Torah.  On the one hand, our efforts – like G-d’s – should always be aimed at empowering our students. On the other hand, we cannot ignore that our students – like G-d’s – are human, and may be tempted to use their power to control others who have learned less, rather than seeking to educate them.

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How Did Chazal Interpret Torah Laws They Found Troubling?

by Rabbi Aryeh Klapper

Dear Rabbi Klapper:

My rebbe in yeshiva two years ago emphasized over and over again the importance of “being mevatel our will before His.” His practical point was that we had to accept halakhah as it was, rather than evaluating it against any external moral or ethical standard. That’s what Chazal did with the Torah, and it’s what we must try to do with the Tradition they bequeathed to us.

I was convinced. 

Your shiur last week therefore was earthshaking to me. You argued – I think it’s fair to say you demonstrated – that Chazal derived some of their halakhic interpretations from external moral and ethical standards. (Where those moral standards were derived from, you didn’t say.  Maybe aggada? Intuition? Natural law?) You argued that developing a conscience was essential for properly learning Torah. My head and soul are still spinning.

You raised tentatively the possibility that Chazal sometimes went further.  Maybe when they couldn’t find a way to square halakhah with ethics, they would interpret that halakhah so that it happened as rarely as possible. Maybe they used ethics not just as a way of understanding halakhah, but even as a way of limiting it.

I know you said in the shiur that you couldn’t prove this. You also spent a lot of time disproving Professor Halbertal’s more extreme claim that Chazal used interpretations they knew were not “latent in the text” in order to ensure that the Ben Sorer Umoreh never happened.  But even granting your other points – and I can’t see any way not to grant them – this possibility still jangled me. So I ‘d appreciate it very much if you’d answer one more question, and I apologize if it seems disrespectful. Has any posek before you raised this possibility, let alone held of it?  

 

Dear Ben:

Thank you so much for writing!

Chazal teach us that the evil inclination is both in front of and behind us. The yetzer hora in front of us incites us to reject what we know to be the obvious and true interpretation of His Will, while the yetzer hora behind us tempts to unquestioningly accept an obvious but false interpretation as His Will. It’s really hard to accurately resist both at the same time, but that is our task.

I’m very, very glad to hear that you’re still thinking about and processing the Torah I taught. Certainly you should not accept anything just because I said it, and certainly we should strive to be mevatel our will before His. The question is how we can correctly identify His Will.

Your question came at exactly the right time, because preparing for this week’s Dvar Torah, I came across a relevant discussion from R. Dovid Tzvi Hoffman’s commentary to Shemot 21:5-6 (http://mg.alhatorah.org/Full/Shemot/21.5#e0n6).  Rabbi Hoffman, author of Shu”T Melamed l’Hoil, was perhaps the foremost posek in Western Europe in the early twentieth century.

Rabbi Hoffman notes that the laws of the Pierced Slave, in both Shemot and Devarim 15:16, open with a description of the slave’s psychological motive for rejecting freedom. These descriptions could most easily be taken as דבר הכתוב בהווה, as conventional illustrations rather than as legal requirements. This is especially so because the descriptions differ in at least two important ways. In Shemot, the slave loves his own wife and family, whereas in Devarim he loves the master’s household; and only Devarim mentions that he has prospered with you. At the least, they should be taken as alternative sufficient motives.

Chazal, however, rule that all of these motives must be present exactly in order to allow piercing. They also interpret the sections literalistically, e.g. they understand “כי טוב לו עמך = because it is good for him with you” to mean that the master must also have prospered.  What, Rabbi Hoffman asks, motivated these rulings, which he believes are not the simplest explanation of the verses?

His response builds off a fascinating citation from Ibn Ezra:

Rabbi Avraham ibn Ezra correctly notes (in his Shorter Commentary):

“The ma’atikim (recorders?) of Torah say that a Hebrew Slave may not be pierced if any of the conditions is lacking,

such as love of his master and his master’s house, and his own wife and children, and that it be good for him with his master.

They say the same regarding the Straying and Rebellious Son.

What they say is correct.”

Why does Ibn Ezra compare the interpretation of this section to that of the Straying and Rebellious Son?

Rabbi Hoffman answers: Because just as the interpretations there are intended to make the Straying and Rebellious son rare (according to at least one Tannaitic position non-existent), so too the interpretations here are intended to make the Pierced Slave rare.

But why did they want to make these Torah laws apply only in rare cases?

If we were to ask: What brought our Sages of blessed memory to adopt a literalist interpretation of this or that chapter, for example ours or that of the Straying and Rebellious Son?

The answer is clear – they saw something astounding – counterintuitive –

in a Jew would be punished with a shameful sign such as a pierced ear,

or a son being sentenced to execution because of a life of dissipation and disobedience to his parents’ words,

and therefore they sought to narrow the application of these laws to as few cases as possible.

This follows the principle “Ein lekha bo ela chiddusho” (RAK: in Midrash Halakhah, roughly translatable as “Counterintuitive laws cannot be used as paradigms”).

(You will find something similar later on regarding the Hebrew Maidservant.)  

The Sages sought to limit the application of these laws because they found them ethically baffling.  I don’t think you could ask for a clearer statement by a posek of my tentative proposal above.

Rabbi Hoffman then ties in another sugya discussed in my shiur.

Indeed, everyone knows the famous statement of Rabbi Tarfon and Rabbi Akiva:

“Had we been on the Sanhedrin, no person would ever have been executed.”

He then explains how these interpretations are justified:

Our Sages of blessed memory did not arrogate to themselves the authority to nullify a commandment from among the Torah’s commandments that seems to them astonishing or incomprehensible, but at the same time they utilized to the fullest the privilege that the Torah granted them to explain its mitzvot on the basis of the well-founded assumption that their interpretations align ideally with the intention of the Giver of the Torah.

Finally, Rabbi Hoffman addresses a potential challenge to his view.

But maybe it would be more correct to say, that this explanation of our verses was transmitted to our Sages in the transmission from Sinai?

That could be, but there is no necessity for saying so, because we have found in many places that the Sages disagree with each other about the explanation of Scripture, and the Talmud provides the reasoning for each conflicting opinion.  If so, it is clear that these opinions were not received as a tradition. And since in the sources under discussion it is not said explicitly that the interpretation is from Sinai, and since we do find in Chazal numerous independent interpretations, it is also possible that here as well we have an interpretation that came from them (and not from Sinai). Certainly they had no cause for interpreting this section literalistically other than the one we brought above.

Let me say, perhaps characteristically, that I have difficulty with that last sentence. I would prefer to say that Chazal’s motive for minimizing the application of the Pierced Slave was their shock that the Torah would permit any Jew to reject freedom for reasons other than desperation.  I also want to think a lot more about whether the analogy Ibn Ezra draws to Chazal’s interpretation of the Straying and Rebellious Son is compelling, and also whether Ibn Ezra intends as far-reaching a point as Rabbi Hoffman makes.

But your question was whether any posek had made the suggestion that Chazal interpreted Torah laws in ways that limited their application because of ethical concerns.  The answer to that I think is plainly yes.

You also noted that your teachers had said that we should relate to Chazal the way that Chazal related to Torah. If one accepts the analogy, which is not obvious, I would caution that our authority to interpret Chazal’s words, individually and communally, must be based on a well-founded assumption that our interpretations align ideally with the intentions of their authors.

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