Category Archives: Weekly Devar Torah

Why the Free Bird Sings

by Rabbi Aryeh Klapper

The caged bird sings
with a fearful trill
of things unknown
but longed for still
and his tune is heard
on the distant hill
for the caged bird
sings of freedom
Maya Angelou, “I Know Why the Caged Bird Sings”

I know a bird
that sings when free,
but when caged
by you or me
it ceases to eat
and refuses to live.
Avraham Ibn Ezra, Commentary to Vayikra 25:10, as freely translated by Aryeh Klapper

The inscription on the Liberty Bell reads “Proclaim liberty throughout all the land unto all the inhabitants thereof.”  This excerpt (from the King James translation of Vayikra 25:10) makes several interesting translational choices. For example, why “throughout all the land,” when the Hebrew is בארץ, merely “in the land?”  Why “the inhabitants thereof,” rather than merely “inhabitants thereof,” when the Hebrew יושביה has no definite article?  These choices can seem odd even in English, and many internet sites quoting the Bell accidentally remove the first “all” and the second “the.” These imprecisions matter because  they license us to challenge the core translation: Is the Hebrew דרור/d’ror properly translated as “liberty?”

A translation can have any of three sources: tradition, parallel uses, and context. In the case of d’ror, the parallel in Yirmiyah 34:8-9 seems to make the meaning crystal clear.

הַדָּבָ֛ר אֲשֶׁר־הָיָ֥ה אֶֽל־יִרְמְיָ֖הוּ מֵאֵ֣ת ה֑’
אַחֲרֵ֡י כְּרֹת֩ הַמֶּ֨לֶךְ צִדְקִיָּ֜הוּ בְּרִ֗ית אֶת־כָּל־הָעָם֙ אֲשֶׁ֣ר בִּירֽוּשָׁלִַ֔ם
לִקְרֹ֥א לָהֶ֖ם דְּרֽוֹר:
לְ֠שַׁלַּח אִ֣ישׁ אֶת־עַבְדּ֞וֹ וְאִ֧ישׁ אֶת־שִׁפְחָת֛וֹ
הָעִבְרִ֥י וְהָעִבְרִיָּ֖ה
חָפְשִׁ֑ים
לְבִלְתִּ֧י עֲבָד־בָּ֛ם
בִיהוּדִ֥י אָחִ֖יהוּ אִֽישׁ:

The matter which came to Yirmiyahu from Hashem
after Tzidkiyahu cut a covenant with all the populace that was in Yerushalayim
to proclaim to them d’ror
to send forth each man his manslave and his maidslave
the Hebrew and the Hebrewess
free
to not work them as slaves
a Jew, his brother man.

It seems undeniable that a d’ror-proclamation sets slaves free. When the Jews fail to abide by the proclamation, G-d frames their coming destruction as poetic justice, declaring that He will grant His servants of destruction freedom to destroy:

אַתֶּם֙ לֹֽא־שְׁמַעְתֶּ֣ם אֵלַ֔י לִקְרֹ֣א דְר֔וֹר
אִ֥ישׁ לְאָחִ֖יו וְאִ֣ישׁ לְרֵעֵ֑הוּ
הִנְנִ֣י קֹרֵא֩ לָכֶ֨ם דְּר֜וֹר נְאֻם־ה֗’
אֶל־הַחֶ֙רֶב֙ אֶל־הַדֶּ֣בֶר וְאֶל־הָרָעָ֔ב

You did not heed me, to proclaim a דרור
Each man to his brother, and each man to his fellow
Behold I am proclaiming a d’ror regarding you, says Hashem,
to the sword and the plague and the famine

Yeshayahu 61:1 similarly reads

לקְרֹ֤א לִשְׁבוּיִם֙ דְּר֔וֹר

To proclaim d’ror regarding captives.

So d’ror plainly can refer to liberation from a previous state of constraint. Likely the King James chose “liberty” rather than “freedom” because the connotation of liberty at that time was “freedom from,” whereas freedom would be more likely understood as “freedom to.”

However, these are not the only Biblical contexts in which the word d’ror appears.

For example, Shemot 30:23 refers to “myrrh d’ror.”  Most commentators assume that the meaning in this context must be derived from the contexts we have already seen.  Thus R. Avraham ben HaRambam writes:

שם הטוהר והחרות

a term for purity/freedom (from impurities)

while BDB translates d’ror as “liquid” on the basis of “flowing; free run, liberty.”  Only Rashbam seems to take this instance as reflecting a different meaning entirely: חשוב, significant. I’m not sure that I’m understanding Rashbam correctly, though, and he may also see social significance as rooted in the capacity to resist others’ attempts to constrain you.

D’ror also appears twice in contexts where the intended referent seems to be a type or species of bird.

כַּצִּפּ֣וֹר לָ֭נוּד כַּדְּר֣וֹר לָע֑וּף

Like a bird to wander; like a d’ror to fly (Mishlei 26:2)

גַּם־צִפּ֨וֹר׀ מָ֢צְאָה בַ֡יִת וּדְר֤וֹר׀ קֵ֥ן לָהּ֘

Also the bird found a home, and the d’ror a nest for itself (Tehillim 84:4)

One might see these uses as stemming from a different root entirely. BDB, for example, simply identifies the species as “swallow.” Ibn Ezra to Mishlei 26:2 seems to adopt this approach:

טעם שמות העופות והבהמות אשר פרשו הראשונים
הם כחלומות בלי פתרון
והזכיר הצפור והדרור
כי הם דרות בבתים עם בני אדם
וצריכין לנוד מהרה ממקו’ למקום מפני העוברים והשבים

The rationales that my predecessors gave for the species-names of birds and animals
are like dreams that have no interpretation
it mentions the tzippor and the d’ror here
because they live in houses together with human beings
and they need to flit rapidly from place to place because of the passers-by

Here Ibn Ezra denies that the species-name d’ror has any discoverable etymology, or that the species has any relevant characteristic that distinguishes it from the tzippor.  He does however identify it as a bird that lives in a space it shares with human beings.

Ibn Ezra to Tehillim 84:4 takes a radically different approach:

דרור –
שם עוף מנגן
אולי נקרא כן
בעבור שאין מנהגו לנגן
כל זמן שאיננו חפשי
וזה העוף ידוע הוא בספרד

“D’ror” –
This is the name of a songbird
Perhaps it is called thus
because its practice is not to sing
whenever it is not free
This bird is known in Spain.

Ibn Ezra here provides an etymology for the species-name d’ror – the same kind of etymology he scoffed at in his comments to Mishlei 26:2! Assuming this is the same species, we now learn that its residence among human beings does not imply domestication, or at least not total domestication; the bird sings only when it is free. Its constant motion is likely for the purpose of avoiding capture.

Even more astonishingly, Ibn Ezra to Vayikra 25:10 – the Liberty Bell verse – reverses the vector of derivation.

דרור –
ידועה
והוא כמו חפשי.
וכדרור לעוף –
עוף קטן
מנגן כשהוא ברשותו
ואם הוא ברשות אדם
לא יאכל
עד שימות.

“D’ror” –
The meaning is known
and it is like “free.”
(as in the verse) “like a d’ror to fly”
a small bird
which sings when in its own reshut
but when in the reshut of a human being
it will not eat
to the point of dying

Here Ibn Ezra argues that the species name is the etymology of the term “liberty,” or at the least that we derive the meaning of d’ror here from the species name.  Why would he take that approach, which requires him to assume that the name was known via tradition, when the meaning seems clear from context here and from parallel passages?

I suggest that Ibn Ezra thought the translation of “liberty” was not a perfect fit in our context.  Why? Because although Yirmiyahu uses d’ror to refer to freeing slaves, and Yeshayahu uses d’ror to refer to freeing captives, a careful look at the Jubilee law in Vayikra 25:10 reveals no explicit contextual reference at all to slavery or freedom.  Rather, the unit Vayikra 25:10-13 speaks about the need for people to return to their hereditary homesteads. Slavery may be mentioned in 25:14, but as an additional element. One can argue that people who sell their land will eventually end up enslaved, or that 25:10-13 refers to people who were sold away from their lands rather than people who sold their lands, but this is certainly not obvious.

How does Ibn Ezra resolve this?  Perhaps the key is that he frames the bird’s refusal to sing as about reshut, which can mean both “space” and “authority.”  The bird will sing only when it is in its own reshut.  Similarly, even if people are not enslaved, they do not have d’ror unless they have a space they can call their own.

The problem is that Ibn Ezra to Mishlei 26:2 defines the d’ror species as one that lives in human houses, and therefore finds its space continually intruded on.

I can only suggest this. We all live within the impersonal constraints of time, space, and our own physicality.  We can only dream of perfect, Divine freedom. Perhaps we can even dream of that freedom only when we are not subject to any other person’s will. Until then we are constrained to imagine only freedom from, not freedom to.

The d’ror dreams of its own space, but its physical needs and limitations compel it to live in human abodes. So long as it is not captive – so long as it is not subject to a human will – the dream seems close enough that it can be expressed in music.

The free bird sings
with a fearful trill
of things unknown
but longed for still.
it sings of freedom.

 

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Can Halakhah be a Desecration of Hashem’s Name?

by Rabbi Aryeh Klapper

וּשְׁמַרְתֶּם֙ מִצְוֹתַ֔י וַעֲשִׂיתֶ֖ם אֹתָ֑ם

אֲנִ֖י הֽ’:

וְלֹ֤א תְחַלְּלוּ֙ אֶת־שֵׁ֣ם קָדְשִׁ֔י וְנִ֨קְדַּשְׁתִּ֔י בְּת֖וֹךְ בְּנֵ֣י יִשְׂרָאֵ֑ל

אֲנִ֥י ה֖’ מְקַדִּשְׁכֶֽם:

הַמּוֹצִ֤יא אֶתְכֶם֙ מֵאֶ֣רֶץ מִצְרַ֔יִם לִהְי֥וֹת לָכֶ֖ם לֵא-לֹהִ֑ים

אֲנִ֖י הֽ’:

You must guard my commandments, and you must do them

I am Hashem;

And you must not desecrate My Holy Name, and I will be sanctified within Bnei Yisroel

I am Hashem Who sanctified you;

Who took you out of the Land of Mitzrayim in order to be G-d for you

I am Hashem

Vayikra 22:31-33 can be read as a single Divine sentence, punctuated by self-identifying statements. We must keep His mitzvot, in order not to desecrate His Name, because He took us out of Egypt. On this reading, desecration and sanctification of His Name are merely functions of the other commandments, and have no independent substantive meaning. We sanctify by observing halakhah, and desecrate by violating halakhah. Similarly, the Exodus from Egypt is invoked only to ground G-d’s authority, and to explain why the status of His Name can be tied to Jewish observance of the mitzvot. Furthermore, the phrase “within Bnei Yisroel” suggests that observance of Halakhah is a purely parochial concern.

The Halakhic tradition itself adopts a much broader and more nuanced understanding of the categories Kiddush Hashem and Chillul Hashem. Here are some of the variations the tradition introduces:

1) Under certain circumstances, there is an obligation of Kiddush Hashem to die rather than violate halakhah, even though generally the obligation to preserve life overrides halakhah.

2) For some purposes, Chillul Hashem is focused on Jews, and the obligation die requires a quorum of Jews (women count to this minyan according to most). For other purposes, the audience for Chillul and Kiddush Hashem specifically is nonJews. It is even possible to argue that the essential audience is always nonJews, and that a quorum is required because nonJews are more affected by Jews’ willingness or unwillingness to sin in front of their coreligionists.

3) Kiddush and Chillul Hashem can be associated not only with halakhah but with Jewish identity, universal ethics, and display of proper character. (See for example Rambam Hilkhot Yesodei HaTorah 5:11.) Public explicit denial of G-d’s authority by Jews desecrates His Name, but so does paying tradesmen late even though you have the funds, or being quarrelsome, or standing by the letter of the law even when that violates its spirit.

Broadening the scope of Chillul Hashem beyond halakhah untethers verse 32 from verse 31. This is especially important according to the Midrash Lekach Tov, which sees ushmartem mitzvotay as a commandment to observe mitzvot without regard to whether one finds them rationally appealing. “These are my commandments, and you have no permission to challenge them = להרהר אחריהם.

By contrast, Yerushalmi Bava Kamma 4:3 suggests that sometimes the halakhah itself can be a chillul Hashem.

מעשה

ששילח המלכות שני איסטרטיוטות ללמוד תורה מרבן גמליאל

ולמדו ממנו מקרא משנה תלמוד הלכות ואגדות

ובסוף אמרו לו

כל תורתכם נאה ומשובחת

חוץ משני דברים הללו

שאתם אומרים

בת ישראל לא תיילד לעכו”ם אבל עכו”ם מיילדת לבת ישראל

בת ישראל לא תניק בנה של עכו”ם אבל עכו”ם מניקה לבת ישראל ברשותה

גזילו של ישראל אסור ושל עכו”ם מותר.

באותו שעה גזר רבן גמליאל על גזילות עכו”ם שיהא אסור מפני חילול השם . . .:

A true story:

The (Roman) Empire sent two officials to learn Torah from Rabban Gamliel

They learned from him Mishnah, Talmud, Halakhot and Aggadot.

At the end they said to him:

All your Torah is pleasant and praiseworthy

other than these two things

that you say

a Jewess must not midwife an idolatress, but an idolatress may midwife a Jewess

a Jewess mustn’t nurse the child of an idolatress, but an idolatress may nurse the child of a Jewess

in her space

An object robbed from a Jew is forbidden, but an object robbed from a Gentile is permitted

At that very time Rabban Gamliel decreed regarding the robbed objects of idolaters that they should be prohibited because of Chillul Hashem . . .

One aspect of this text seems impenetrably mysterious. The Romans refer to ‘two things,” but in the excerpt above there are three, and the ellipses conceals a fourth. Nonetheless, it seems fair to say that Rabban Gamliel responded to one of the Romans’ complaints by altering the halakhah, but not to all of them. If Rabban Gamliel is reacting to the Roman perception, why the difference?

Yet both in reason and in text it cannot be that Rabban Gamliel stands for the proposition that the proper reaction to an outsider’s moral critique of halakhah is always to change the offending law. There must be a basis for distinction. Indeed, it might be accurate to say that sometimes Gentile objections to Halakhah trigger the obligation to die al kiddush Hashem rather than transgress the law, while in other circumstances the proper reaction is to change the law. Surely the difference in outcomes is not arbitrary!

The simplest explanation is that it depends on whether, when confronted by the critique, we decide that we agree with it. The mere fact that outsiders dislike our laws cannot compel change; but fear of showing weakness cannot prevent change in the fact of moral critique.

The question then is why Rabban Gamliel found the Romans’ critique compelling in one case but not in the others.

One possibility is that the Romans’ other critiques were grounded in reciprocity rather than in objective right or wrong. They would have accepted a rule that required every nation to midwife or nurse its own mothers and babies, but they objected to allowing it only one way. Rabban Gamliel was not moved by pure claims of discrimination. If either result could be justified intrinsically, he was fine with having the results be asymmetrical between Jews and Gentiles.

This approach seems in stark contrast to Meiri, who claims that halakhah’s asymmetries are intended to mirror or compensate for discrimination against Jews in Gentile legal systems, and therefore do not apply to citizens of systems that give Jews equal rights. Note however that Meiri is commenting on the Bavli, which does not bring the midwifery and nursing cases.

Another possibility is that Rabban Gamliel thought the laws about midwifery and nursing were not intended to discriminate against Gentiles, but rather to avoid dangerous liability. The best of obstetric and pediatric care cannot prevent all deaths, and the deaths of Gentile mothers and babes under the most skilled and conscientious Jewish practitioners might have triggered pogroms. Allowing Jews to fence goods stolen from Gentiles, by contrast, had no aim but profit.

Yet a third possibility is that Rabban Gamliel saw chillul Hashem as a valid reason to prohibit what halakhah would otherwise permit, but not to permit what halakhah would otherwise forbid.

It is striking regardless that Rabban Gamliel reacted not to a critique of actual Jewish practice, but rather to a critique of the law per se. This suggests that the underlying issue of chillul Hashem is not so much the way that Jews are perceived by the world outside them, but rather by how Torah is perceived.

Yet it is also plainly the case that Torah cannot fold its hand in the face of moral censure or opprobrium. It seems reasonable to claim that those who enact laws against Judaism often find our laws immoral. Yet if they try to enforce their biases, we are likely to become obligated to become martyrs for the law as-is rather than change the law under pressure.

It is also striking that Rabban Gamliel did not claim that the Romans had misunderstood the law, or engage in other sorts of apologetics. He chose instead to explicitly override the law that irked them.

What seems to me the upshot here is that the Yerushalmi at least does not rule moral critiques of the halakhah out of bounds, and that we should be open to accepting moral critiques from any source. We should not claim that such critiques necessarily stem from a narrow vision and lack of broader halakhic context; rather, sometimes it is precisely the broad context that generates the sense that this particular law doesn’t fit well.

Openness to moral critique must not be either the result or the cause of a lack of overall moral confidence in the system. These are very legitimate concerns. But shutting ourselves off from moral critique carries equally serious risks. Our unwillingness to entertain and respond to moral criticism can cause others to lose their overall confidence in the system.

 

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Does the Torah Forbid Us to Lie?

by Rabbi Aryeh Klapper

Nechama Leibowitz zt”l often commented acerbically that Yeshiva students knew ten ways to explain how Yaakov really didn’t kiss Rachel, even though the Torah says vayishak Yaakov l’Rachel (Bereshit 29:11), but could not answer when asked whether the Torah specifically forbids lying.  The correct answer was yes, based on Vayikra 19:11, which includes the phrase lo t’shakru.

I wondered whether this was entirely fair. Nechama’s line was intended to critique an educational system that privileged knowledge of interpretations over knowledge of the text itself, and on that level was very often correct. But at least some students, perhaps the baalei keriah among us, knew the verse – we just didn’t translate it in our heads as a prohibition against lying per se, but rather in a more halakhically qualified way. In other words, we thought of this verse the same way we thought of vayishak Yaakov l’Rachel – through the lens of Rabbinic interpretation. Here, for example, is Rashi:

לפי שנאמר (ויקרא ה:כב) ונשבע על שקר

ישלם קרן וחומש;

למדנו עונש, אזהרה מנין?

תלמוד לומר ולא תשקרו

We learn from venishba al sheker(Vayikra 5:22) that one who swears falsely

(that they do not have the plaintiff’s property in their possession)

is liable to pay a 25% penalty (=a fifth of the total compensation due the plaintiff)

(In rabbinic legal exegesis, every statement of penalty must have an associated DO NOT):

We have thus learned a penalty, but where is the DO NOT?

So Scripture says: lo t’shakru.

We therefore argued that in fact there was no Biblical prohibition against lying, only against swearing falsely, and that this particular verse prohibited only swearing falsely as a defendant when accused of having the plaintiff’s property in your possession.  (Note that 19:12 explicitly prohibits swearing falsely by His Name – Rashi explains that this is intended to include all the Names of Hashem in the prohibition.)

Nechama’s line of course was also intended as a moral critique. The problem was not so much that many of us didn’t remember the verse, but that it wasn’t obvious to us that the Torah forbade lying, while ironically it was obvious to us that Yaakov did not kiss Rachel romantically. In each case, she thought that we needed to see Rabbinic interpretation as reacting to the plain meaning of the verse, but not as intended to deny that meaning.  (The reactions differ in kind: regarding Bereshit, they explain why a noble action by the hero might nonetheless not be a viable behavioral model for readers; regarding Vayikra, they explain why a verse stating a moral that should be obvious is not redundant in a formal legal context.)

Pedagogically, this is a very complex notion.  The beit din I serve on recently had occasion to emphasize the centrality of truthtelling in Judaism, and despite having Nechama’s line ringing in my head, I did not simply cite our verse.  Instead, my colleagues and I cited midvar sheker tidchak (Shemot 23:7), “distance yourself from falsehood.”  To some extent this was because “Distance yourself from falsehood” has a stronger moral valence than simply “Don’t say a falsehood,” as it seems to exclude even misleading truths or lies by omission.  And while we knew that Shemot 23:7 also has a limiting legal context – it specifically forbids judges in financial suits from approving a technically justified ruling that they know to be substantively false, or to serve together with judges they know to be incompetent – we also knew that Rabbinic literature cites its plain meaning as well.

Here, however, was a problem. The primary rabbinic citation of the plain meaning is on Ketubot 17a, where Beit Shammai and Beit Hillel dispute what one sings while dancing before a bride with objective physical flaws.  Beit Hillel say that one praises her beauty regardless – kallah naeh vachasudah – while Beit Shammai say that one praises her as she actually is – kallah kemot shehi.  Beit Shammai challenge Beit Hillel on the basis of Shemot 23:7; Beit Hillel respond that we sing from the perspective of the groom. Beit Hillel’s response leaves space for disingenuousness, and is itself a little disingenuous, as a purpose of the praise is to reinforce the groom’s faith in his perspective.

Similarly, while “the seal of the Holy Blessed One is truth,” we sometimes learn this is contexts where He sacrifices the integrity of His seal.  We are certainly permitted or obligated to lie for the sake of preserving marital harmony, as Hashem changed Sarah’s words when speaking to Avraham about Sarah’s laughter.

Chazal teach us that marital harmony is more important than pure truth, and more generally that pure truth is destructive to human society, but try at the same time to emphasize the critical social and moral necessity of almost-pure truth. This kind of dialectical pedagogy is extraordinarily difficult to pull off.

With this complexity in mind, I thought it worth briefly investigating whether the standard “peshat” commentaries on Vayikra 19:11 make any effort to preserve what Nechama claimed was the plain meaning.  Rashbam, I noticed immediately does not. He apparently feels that the immediate context of the verse demonstrates that it is limited to the context of financial suits.  The verse opens with lo tignovu = don’t steal, and continues with lo t’khachashu – don’t deny, a verb also used in Vayikra 5:21 in the lawsuit context.

Ibn Ezra and Bekhor Shor each maintain the financial context, but expand the field.  Ibn Ezra says the verse bans telling a creditor to obtain his funds from a third party, when in fact you have no account with that third party.  Bekhor Shor says that it forbids committing to fulfill certain conditions in exchange for a financial advance, and then failing to fulfill those conditions. (It’s not obvious to me whether he refers only to a case in which one never intended to fulfill them.  HaKetav VeHakabbalah however argues that the verb teshaker always refers to a statement that is false at the time it is uttered, and not to one that can be falsified later by nonperformance.)

Siftei Kohen (late 16th-early 17th century commentary by R. Mordekhai Cohen, a student of R. Yosef Caro in Tzefat) recontextualizes the entire verse to be about marital sexuality.  It is possible but not obvious that he means to make a claim about the necessity of emotional honesty in the context of intimacy.  Regardless, this seems less likely the plain meaning than the lawsuit context.

The only precedent I can find for Nechama is Rabbi Samson Raphael Hirsch, who contextualizes our verse as part of the parashah’s overall theme of kedushah (=holiness).  He argues that our verse is framed in the plural because it addresses not individuals but the community.  As a result, he contends, we are not referring to gross financial sins, which are surely always the province of a minority, and which the majority will always put down by force  Rather, “we are referring here to those categories of theft, falsehood, and false oathtaking that are capable of penetrating every aspect of commercial and social life; not only that, but they can become the dominant characteristic of a nation; and once they are broadly flouted, all signs of opprobrium are removed from these acts.  More than this – they become considered a skill, deserving of praise and honor.  Nonetheless, in the eyes of Hashem they are as lowly and despised as actual robbery and falsehood and false oathtaking.  These are what G-d prohibits here, Who seeks to sanctify His nation in the realms of commercial and social life . . .  lo t’shakru – the whole broad field of falsehood should have no place in commercial and social life, because truth, meaning the recogniition of things and relationships as they actually are is the foundation of peace and faithfulness to commitment . . . whereas falsehood becomes the tool of all wickedness and evil . . .”

In the end, I am not convinced that this is the plain meaning of our verse (as opposed to Shemot 23:7.)  But with apologies to Nechama, perhaps it would not be a terrible thing if during this Shabbat’s leining we all first thought of her interpretation, and of Rav Hirsch’s.

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Should Moral Intuition and Halakhah Always Agree?

by Rabbi Aryeh Klapper

Dear Rabbi Klapper:

I identify as a passionate Modern Orthodox Jew, but there are things about the theory and practice of halakhah that bother me morally.  I’ve usually found ways to deal with these conflicts without violating normative halakhah in any way. Sometimes that makes me feel proud of my willingness and ability to put ego aside and submit to G-d.  But sometimes it just makes me feel yucky. Sometimes I feel that I really won’t be able to live with myself if I carry this halakhah out in practice, and I understand why it would be impossible for someone else to live the way I do.

Here’s the thing.

I believe that halakhah is the best method we have of transforming G-d’s will, as expressed in Torah, into specific instructions.

I believe that the Written Torah is the word of G-d, and that Chazal and the Rishonim and Acharonim were collectively the authentic bearers of the Oral Torah.

Should I feel religiously inadequate because I have these conflicts, or because it’s not obvious to me that I should always follow the halakhah no matter what? Should I just ask a great Torah scholar and let them make these decisions for me?       

In great perplexity,

Yosef Alceuta Judahson

 

Dear Yosef:

I was greatly impressed and heartened by your letter. These are the sorts of perplexities we should welcome nowadays. Even in communities that try to isolate themselves, people are under so much pressure from the changing moral perspectives of the world around us – progressing and regressing, but always changing – that it is almost impossible for conformists to develop authentic values deeply rooted in Torah, rather than grafting a veneer of Torah rhetoric onto a political or social program grown from very different roots. A spirit of rebellion and stubborn moral independence is a religious necessity in our day. Probably it always was.

Nevertheless, when one’s moral sense conflicts with practical halacha, it is usually shallow or arrogant to think that the choice is either/or. The first things any sensible person considers is that they might have missed a way of reconciling the two, or that there might be a way of ensuring that the conflict has no practical expression, or that they have either the morality or else the halakhah wrong.

Each of these modes of resolution can themselves be done shallowly and arrogantly. You are right to bristle at people who tell you that there is obviously no conflict, and that your perplexity is unjustified.

I’m also not claiming that there’s never an either/or.  Sometimes there is. I’m only claiming that usually there are other choices, and that it’s responsible to explore the other possibilities first.

But we need to address an underlying issue before we grapple with the questions you raise directly. How should we feel about feeling conflicted? I began by saying that we should welcome these sorts of perplexities – why?

My sense is that conversation about conflicts between halakhah and ethics focuses on two positions.

The first, sometimes called “Akeidah Orthodoxy,” sees these conflicts as nisyonot, as theological tests. Following one of Kierkegaard’s interpretations, which has important Jewish antecedents and echos, they argue that the message of the Akeidah is that sacrificing one’s independent notion of the good to G-d is a supreme religious act. We should celebrate such opportunities, while at the same time recognizing how excruciatingly difficult they can be.

The second position is that conflicts between ethics and halakhah always reflect a failure to understand halakhah properly.  Principles such as “all her ways are noam=pleasantness” are assigned axiomatic and a priori meaning.  They are fixed and certain points on the basis of which every halakhah must be evaluated, rather than as part of an iterative process in which our understanding of “pleasantness” is also influenced by its compatibility with halakhah.

Akeidah Orthodoxy holds little appeal for me. I much prefer to read the akeidah as teaching Avraham that his moral intuition was reliable.

But this doesn’t mean that all human moral intuitions are reliable, or that Avraham “failed the test” by not insisting on following his moral intuition over G-d’s command. The first claim seems ridiculous to me, and is why I don’t find noam theology attractive either. It’s also hard to read the Torah as fundamentally critical of Avraham’s performance. I think we can learn from the Akeidah that human moral intuition is valuable, and we should do our best to develop it, without succumbing to moral megalomania.

We also don’t have the direct access to G-d that Avraham did, so our chance of misunderstanding what He wants is much greater.  And Rashi suggests that even Avraham mistook His intent, which never included Yitzchak actually being killed! So a clash between moral intuition and halakhah should certainly send us to recheck with great thoroughness whether we have the halakhah right.

If we grant that we might have one or both of the values and the halakhah wrong, how are we to make decisions?  If we don’t endorse “akeidah theology,” is there a reason to prefer halakhah over intuition?

I suggest that there is.  Specifically in times of great moral ferment, when it is obvious that even the most strongly and broadly held human intuitions (whether correct or incorrect) are often the product of socially contingent factors, one of the attractions and advantages of halakhah is that it provides an Archimedean point for values, a fixed polestar we can follow when everything else seems mutable, fleeting, and invented. Halakhah – in its imperfection – is a desperately necessary bulwark against relativism and nihilism. Moreover, a moral tradition that has stood the test of time is much more likely to be correct overall than the creation of any particular society – kal vachomer ben beno shel kal vachomer when that tradition as a whole is authentically rooted in and nourished by the word of G-d.

In such times, the absence of conflict between one’s moral intuition and halakhah is disturbing.  It seems to indicate not that we have been עושה רצוננו כרצונו, but rather that we have been עושה רצוננו רצונו – that we have not subordinated our will to His, but rather attributed our will to Him.

This doesn’t mean that we should look to manufacture such conflicts by pretending that we have two opposing certainties when really we have none. But I want to argue for a middle ground. We should find such clashes comforting rather than disturbing.

Why? Because if you value both halakhah and moral intuition, and you recognize that both of them are inevitably unreliable, you realize that you must be doing them one or wrong if they never conflict. Different imperfect epistemologies cannot honestly yield identical results.

All of this is very abstract, and I hope serves as the introduction to many profoundly challenging conversations about specific issues that raise these sorts of conflict for you. But I owe you at least the beginnings of direct responses to the questions in your last paragraph.

You are not inadequate because your moral intuition is not in perfect accord with the halakhah as you understand it.  AderabbahI would worry if that were not the case.

Your understanding of what the halakhah is should not always take precedence over your moral intuition. First of all, you might have the halakhah wrong. Second, there are (rare) cases in which halakhah recognizes its own limits.

Asking a Torah scholar to make the decision for you is not a reliably safe way out. Torah scholars are also fallible.  You may not have the privilege of access to a genuinely great Torah scholar whose moral intuition resonates with yours and yet gives you confidence that it has much deeper roots in our tradition. The greatest Torah scholars will in any case often refuse to make these decisions for you, but instead seek to add depth and breadth to your decisionmaking process. But – you should make every effort to bring such scholars into your life.

The introduction to Shiurei Daat contends that Judaism recognizes three necessary and legitimate epistemologies: knowledge of the Torah, of the world, and of one’s own soul. When these come into conflict, the reason is a lack of balance, that we know one of them more deeply than the others. I find this a very useful and powerful framework for thinking about the kinds of perplexities you face. I hope that you’ll respond to them by seeking to deepen your knowledge of all three areas.

Bivrakhah,

Aryeh Klapper

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Where There’s a Priestly Will, Is There a Halakhic Way?

by Rabbi Aryeh Klapper

Texts cannot defend themselves against interpreters who do not love them. And love is not enough.  Only a relationship characterized by loyalty, integrity, and rigor can grant texts any degree of actual influence and genuine independence.

Rabbinic interpretation of Vayikra 13:2-3 seems to eviscerate the text.  The Rabbis appear to seize legal powers that the text plainly grants to kohanim. They then apparently extend those powers in explicit defiance of the conditions set out in the text.

Jews who understand Chazal this way usually grant themselves the same unconstrained authority over texts that they assign to Chazal. They see Judaism as a government of people, not of texts. (One might describe them as believers in daas Torah, who differ from extremist charedim with regard to ends but not means.)

It is vital to see whether this understanding of the Rabbinic project meets our own standards of loyalty, integrity, and rigor. Were Chazal constrained by their relationship with the text of Torah, or not?  Can we honestly describe ourselves as constrained by the same relationship?

Vayikra 13:2 says that if a person develops one of three types of skin lesions, which develops into a nega tzaraat, then  

וְהוּבָא֙ אֶל־אַהֲרֹ֣ן הַכֹּהֵ֔ן

א֛וֹ אֶל־אַחַ֥ד מִבָּנָ֖יו הַכֹּהֲנִֽים:

וְרָאָ֣ה הַכֹּהֵ֣ן אֶת־הַנֶּ֣גַע בְּעֽוֹר־הַ֠בָּשָׂר

וְשֵׂעָ֨ר בַּנֶּ֜גַע הָפַ֣ךְ׀ לָבָ֗ן

וּמַרְאֵ֤ה הַנֶּ֙גַע֙ עָמֹק֙ מֵע֣וֹר בְּשָׂר֔וֹ

נֶ֥גַע צָרַ֖עַת ה֑וּא

וְרָאָ֥הוּ הַכֹּהֵ֖ן וְטִמֵּ֥א אֹתֽוֹ:

He is brought to Aharon the kohen

or to one of his sons the kohanim

The kohen sees the nega in the skin of the flesh

and the hair of the nega has turned white,

and the appearance of the nega is deeper than the skin of the flesh,

This is a nega tzaraat

The kohen sees it

and the kohen declares it tamei.

As Seforno perceptively points out, the subject of this law is the kohen; the person with the nega is the object.  That is why the Torah describes the person as being brought to the kohen, rather than as coming to him. Many commentators and halakhists conclude that the person can even be brought to the kohen involuntarily.

Does the kohen/subject have agency?  Can the kohen look away and not see the nega if he wishes, or evaluate the entire person rather than just the nega? Must the kohen follow the Torah’s prescription as to what sorts of nega becomes tamei and which not, or the decision be based on what the kohen “sees” as pastorally better for the person with the nega?

Mishnah Moed Katan 7a records a dispute between Rabbi Meir and “the Sages,” identified by the Talmud as Rabbi Yose, as to whether a kohen should examine a nega during a festival. Both parties agree that in principle the kohen should do whatever will maximize joy during the festival, i.e. examine the nega if and only if the result will be the anxiety-relieving declaration of tahor.

But how can that be done with integrity?  Rabbi Meir says that the legal consequences of tum’ah here are not triggered by the objective condition, but rather by the kohen’s declaration.  Therefore, the kohen should be silent if the only honest word he can speak is tamei, and let the joy of the festival continue unabated. Rabbi Yose, however, holds that one cannot seek a declaration of tahor without opening up the genuine possibility of a declaration of tamei. Therefore, better for the kohen to refuse to examine any potential nega during the festival, lest he be forced to declare it tamei, even though this leaves many people’s festival joy diminished by the fear that they will be declared tamei immediately following the festival.

But is it really legitimate to adopt a “don’t ask don’t tell” policy regarding negaim? Don’t all the standard mitzvah-lists count “carrying out the laws of negaim” as a duty?!

Talmud Moed Kattan 7b doubles down on yes.

למימרא דבכהן תליא מילתא?!

אין, והתניא )בניחותא(

וביום הראות בו

יש יום שאתה רואה בו, ויש יום שאי אתה רואה בו.

מכאן אמרו:

חתן שנולד בו נגע –

נותנין לו שבעה ימי המשתה, לו ולביתו ולכסותו.

וכן ברגל, נותנין לו שבעת ימי הרגל,

דברי רבי יהודה;

רבי אומר:

אינו צריך,

הרי הוא אומר

וצוה הכהן ופנו את הבית

אם ממתינים לו לדבר הרשות – כל שכן לדבר מצוה.

Do you mean to say that it depends on the kohen?!

Yes, and a beraita says accordingly:

And on the day that there is seen in it (Vayikra 13:14) –

There is a day that you examine it, and a day that you don’t examine it,

On this basis they said:

A bridegroom who develops a nega

we give him the seven days of feasting – to him, to his house, and to his clothes.

Similarly, on a festival we give him the seven days of the festival

in the opinion of Rabbi Yehudah;

Rebbe said:

This (source) is unnecessary

Vayikra 14:36 says (regarding house-tzaraat)

The kohen commands, and they empty the house [before the kohen comes to examine the nega] –

if one delays (examination) so that the person can do something optional (saving his property),

then certainly one can do so for the sake of something that is a mitzvah (such as marriage- or festival-joy).

At this sugya’s end, at least according to Rebbe and perhaps according to all opinions, it appears that the Rabbis interpreted the Torah as giving kohanim the discretion to refuse to implement the halakhah of nega when they saw it as competing with a more important value. A very similar move can be found in a beraita on Berakhot 19b which gives the Rabbis discretion to overrule the obligation to return lost objects because “sometimes you must look away, and sometimes you must not.” They choose to exercise that discretion in situations where the finder would think it beneath their dignity to recover their own identical object.

The formulation of this discretion may be vital.  A rule can be suspended for the sake of a conflicting value, but only if the value of the rule is genuinely maintained, if it is not universally suspended. There is metahalakhah, but it must not drown halakhah. The Torah almost never tells us explicitly how to choose among laws when they conflict, or between laws and values. Halakhah sometimes codifies the hierarchy purely abstractly, and sometimes adopts a more granular approach.

Another interpretive move rips the power of nega-discretion away from the kohanim. Sifra, the Midrash Halakhah on Vayikra, points out that “one of his sons the kohanim” is redundant – aren’t all of Aharon’s sons kohanim, and aren’t all kohanim Aharon’s sons?  It appears to conclude that all Israelites are permitted to examine a nega; a kohen is needed to declare the judgement, but need have no part in making it.

Mishnah Negaim 3:1 similarly presents the nega-examination as a sort of Kabuki theater:

הכל כשרים לראות את הנגעים, אלא שהטומאה והטהרה בידי כהן:

אומרים לו: אמור ‘טמא!’ והוא אומר: ‘טמא!’ אמור ‘טהור!’ והוא אומר: ‘טהור!’

All are fit to examine negaim, but tum’ah and taharah are in the hands of the kohen:

They tell him: Say ‘Tamei’ and he says ‘Tamei!’;  Say ‘Tahor!’ and he says ‘Tahor!’

Suddenly, the kohen is a puppet, with no agency at all. His only role is to say what he is told to say by the authorities, whom it seems reasonable to identify with the rabbis.

The situation grows more complicated when we turn to Talmud Arakhin 3a.

הכל כשרין לראות את הנגעים –

לאתויי מאי?

לאתויי שאינו בקי בהן ובשמותיהן.

והאמר מר: אינו בקי בהן ובשמותיהן – אינו רואה את הנגעים. !?

אמר רבינא:

לא קשיא: הא דמסברי ליה וסבר, הא דמסברי ליה ולא סבר.

“All are fit to examine negaim” –

to include whom?

To include one who is not expert in them and their categories.

But a Master said: One who is not expert in them and their categories must not examine negaim. !?

Said Ravina:

There is no difficulty: This is where he can understand it when explained, this is when he can’t.

Why would a puppet need to understand what he is saying?  The simplest reading, that of Rosh but probably not of Rambam, is that the kohen is not actually a puppet. What the rabbis tell him to say has to make sense to him, or he simply won’t do it.

Rav Yaakov Emden (Sheilat Yaavetz 1:138, opposed by Beit Yitzchak YD1:55) argues that the kohen’s discretion was always limited to cases where there was genuine doubt.  If the kohen refuses to examine a nega that is obviously tamei, the declaration when it is actually examined takes effect retroactively.  In his vision, one can imagine that the role of the experts is to tell the kohen whether or not he has discretion.

Moreover, most halakhists rule that the kohen cannot make his declaration unless he is actually looking at the nega. This means that the Rabbis’ apparently radical transformation of one of his sons the kohanim into “all are valid for examining negaim” is, in the end, not radical at all, and could easily be accomplished without any textual reinterpretation whatsoever.  The ruling cannot be made unless the nega has been brought to a kohen, and the kohen’s determination has to abide by the rules. What the Rabbis have done is to

  1. acknowledge that this rule can often conflict with halakhic obligations of joy, or with reasonable human expectations of economic stability.
  2. formulate discretionary features that can diminish such conflicts, yet without changing any of the rule’s elements; and
  3. ensure that this discretion cannot be exercised by either the kohen or themselves without accountability.

This seems to me a potentially generalizable description of much Rabbinic work, and compatible with a loving relationship characterized by loyalty, integrity, and rigor.

Moreover, it seems to me a reasonable and useful starting point for evaluating present halakhic programs. Much work would of course have to be done defining terms such as discretion, preservation, and accountability, and many others.  In the end it is a text, and as such cannot defend itself against interpreters who do not love it.  But perhaps some will.

Shabbat Shalom!

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The Fire Last Time, And Almost Every Time

by Rabbi Aryeh Klapper

There is no way to keep religion away from politics and psychology. G-d is willHe-nilHe involved in human affairs, because every human being who has or claims a relationship with Him affects other human beings. Moreover, we all have expectations of Him, and our sense of self and our position in society are profoundly  affected by His choices to fulfill or frustrate those expectations.

Rashi and rabbinic interpretations generally construct a narrative of the Mishkan’s construction which is all about managing those expectations.

The Jewish people expect G-d to respond to their overwhelming response to His appeal by sending a perceptible or even tangible expression of His presence. They cheerfully watch their volunteer artisans and engineers make the components, expecting that as soon as the parts are done, the whole will miraculously erect itself, as Rashi himself later expects the Third Temple to descend flaming from Heaven.  But the parts just lie there.

So they go to the craftsmen, and tell them angrily: “What are you waiting for?!  Build it, and He will come!” Truth be told, the craftsmen might prefer it this way.  So they cheerfully set up their blocks and tackles and go about putting up the walls – which promptly fall right back down.  And again, and again.

The craftsmen cannot bear the possibility that their work is inadequate.  So they don’t abandon the structure; they admit defeat and bring it, still in kit form, to Mosheh (Shemot 39:33). But the people have no such personal investment, and there is much grumbling as they trail behind.  Here is the Midrash Tanchuma’s retelling:

כיון שגמרו מלאכת המשכן – היו יושבין ומצפין

אימתי תבא שכינה ותשרה בו

והיו מצטערין הכל מפני שלא שרתה שכינה עליו,

מה עשו? הלכו להם אצל חכמי לב. אמרו להן:

ומה אתם יושבין העמידו אתם את המשכן ותשרה שכינה בינותינו!

היו מבקשין להעמידו, ולא היו יודעין, ולא יכולין להעמידו,

וכשהן חושבין להעמידו – הוא נופל,

מיד הלכו להם אצל בצלאל ואהליאב. אמרו להם:

בואו אתם והעמידו המשכן שאתם עשיתם אותו שמא על ידכם ראוי לעמוד!

מיד התחילו להעמידו ולא יכלו,

התחילו מסיחין ומרננין ואומרים:

ראו מה עשה לנו בן עמרם!

שהוציא את ממונינו במשכן הזה והכניס אותנו לכל הטורח הזה

ואמר לנו כי הקדוש ברוך הוא יורד מן העליונים ושורה בתוך יריעות עזים

When they finished the work of the Mishkan – they were anticipating:

When will the Presence come and inhabit it?

Everyone was suffering because the Presence had not come to inhabit it.

What did they do?  They went to “the wise of heart” (craftsmen).  They said to them:

Why are you just sitting there?! Go erect the Mishkan and the Presence will dwell among us!?

They tried to erect it; but they did not know how;

when they thought they had it erected – it would fall.

Immediately they went to Betzalel and Oholiav (the architect and designer). They said to them:

You come and erect the Mishkan that you have made!  Perhaps it will be fit to stand via your hands!

Immediately (Betzalel and Oholiav) tried to erect it, but they were unable.

So (the people) began complaining:

Look what the Son of Amram has done to us!

He spent all our money on this Mishkan,

and put us to all this bother,

saying to us that the Holy Blessed One would descend from Above and dwell in goatskin curtains!

Why does the Mishkan keep falling down?  Not because of any flaw in His design, or their skill.  Rather, because Mosheh was frustrated that he had no tangible part in the work, so G-d ensured that the final stage would be his, with more than a symbolic ribbon-cutting.

ולמה לא היו יכולין להעמידו,

אלא שהיה משה מיצר על שלא נשתתף הוא עמהן במלאכת המשכן,

כי צד הנדבה נתנה על ידי ישראל

והמלאכה נעשית ע”י בצלאל ואהליאב וחכמי לב

Why were they unable to erect it?

Because Mosheh was distressed that he had not participated with them in the work of the Mishkan

because the materials were contributed by the Jewish people

and the labor was done by Betzal’el and Oholiav and the wise of heart.

Because Mosheh was distressed, G-d hid the method from them and they were unable to erect it.

Yet the task that G-d leaves Mosheh is beyond his, or for that matter any single human being’s, physical capacities (unless Mosheh was a giant, which some midrashim suggest). So G-d tells him to playact, to pretend as if he is lifting the components – “Do something with your hands and make it appear as if you were erecting it” – while He miraculously causes the Mishkan to erect, but assures him that the plaque will still have his name on it.  Thus in Shemot 40:17 “the Mishkan was erected,” whereas in 40:18 “Mosheh erected the  Mishkan.”

Now the Mishkan is standing. Mosheh, and only Mosheh knows that the Divine presence is there. The people expect that G-d’s Presence will make itself known, but nothing at all happens, at least so far as they can tell.  Mosheh goes through the seven day inauguration ritual, taking the Mishkan apart and reconstructing it each day – and each day, nothing new happens.  Why?

Mosheh realizes: G-d was concerned for My frustration, but I should be thinking about Aharon – how would he feel if he had no part in this? So Mosheh tells the people (Rashi Vayikra 9:23):

אהרן אחי כדאי וחשוב ממני,

שע”י קרבנותיו ועבודתו תשרה שכינה בכם

ותדעו שהמקום בחר בו

Aharon my brother is more fit and worthy than I

because it is through his sacrifices and service that the Presence will dwell among you

and you will know that the Omnipresent chose him

Aharon now goes to perform His service.  Like the people, he expects – everyone has been told this, by Mosheh! that his service will be efficacious, and G-d’s Presence will descend as he concludes the final ritual.  But nothing happens.  So it’s his turn to complain:

יודע אני שכעס עלי המקום בשבילי לא ירדה שכינה לישראל

כך עשה לי משה אחי

שנכנסתי ונתביישתי ולא ירדה שכינה לישראל

מיד נכנס משה עמו ובקשו רחמים

וירדה שכינה לישראל

לכך: נאמר ויבא משה ואהרן אל אהל מועד.

I know that the Omnipresent is angry with me.

It is because of me that the Presence has not descended to Israel.

My brother Mosheh did this to me!

I entered the Mishkan, and I was shamed, and the Divine Presence did not descend to the Jews.

Immediately Mosheh entered with him, and they prayed,

and the Divine Presence descended to the Jews

Thus Scripture says: “Mosheh and Aharon came to Ohel Moed.”

At long last, “a fire came out from Heaven, and consumed on the altar” (Vayikra 10:2).  The people experience the giddy mixture of joy and terror they have been awaiting; Betzalel’s craftsmanship and Aharon’s Priesthood are confirmed; Mosheh is involved at every step of the process.  Everything is hunky-dory at last.

But we have come a long way from Mosheh’s first experience with Divine fire, which consumed nothing.

In Vayikra 9:22, Aharon descends “from making” the sacrifices. The straightforward reading is that he descends physically from the altar.  One mussar step straight down: He descends from the spiritual high of the sacrifice:  One spiral Chassidic step further: He descends spiritually as a result of making the sacrifices. 

In Chassidic literature, Aharon’s descent is the inevitable consequence of his effort to bring the people up.  Perhaps Chazal had the same reading, but interpreted it differently.  Aharon’s sacrifice was only necessary because Mosheh realized he was frustrated. Otherwise, the Divine fire would have descended before there was anything on the altar to consume.

Satisfying Aharon’s expectations has tragic consequences. Because Aharon’s sons also had expectations – after all, they were given uniforms! But they feel that it is He a late for complaints – fire has already descended from Heaven, and no one else feels that anything is still lacking. So they try to involve themselves, and another fire comes down from Heaven, and consumes them.

Perhaps Mosheh’s experience of pure innocence was possible only when he was a shepherd in the Wilderness, when there was only one man, who came with no expectations, only a sense of wonder.  In society, G-d is always a “consuming fire” (Devarim 4:24).

Wonder also requires expectations: what attracts Mosheh is that the shrub is not being burnt up even though he is expecting the fire to consume it.  (This is parallel to T.S. Eliot’s argument that creativity can only take place in the context of tradition.) What Mosheh lacks is expectations for himself. It does not occur to him that private access to G-d can be a source of power. He has been there, done that, and has no interest in unretiring. This is why Mosheh is the right person for the job.

We sometimes wish that all our religious leaders were Mosheh Rabbeinu the shepherd, learning Torah with pure spiritual wonder and no thought for themselves. There is good reason for that; human ambition makes G-‘d’s fire consuming, and fire spreads. Many leaders are not self-aware enough to empathize with the ambitions of others, let alone to deliberately make room for those ambitions to be satisfied. People with enormous Torah talents end up consumed by their own ambitions, like Nadav and Avihu.

But to get Mosheh to take the job of redeeming us from Egypt, G-d has to rekindle his ambitions. Religion needs the yetzer hora of ambition, as it needs every other human drive. Otherwise Torah becomes disconnected from society, and thereby from justice.

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Halakhic Authority and Rabbinic Relationships: Annual Dvar Torah Honoring the Memory of Rabbi Ozer Glickman Z”L

by Rabbi Aryeh Klapper

My wife’s driving instructor Tom Scott had a rule: Right-of-way must be given, never taken. What about halakhic authority?  Must it be given, or can it be taken?

Most yeshiva students are taught to read the halakhic passages of Talmud with the goal of abstracting and depersonalizing the content. We care about the ideas, and we want the halakhah to be decided based on who has the stronger argument. Yet if we are honest, we cannot avoid recognizing that the formal rules of psak are often about who has authority.

How is that authority obtained? Is it apportioned solely on the basis of intellectual, spiritual, or pastoral merit, or do the personal and private interactions among halakhists affect them as well?

A snippet of halakhic sugya on Pesachim 100a may offer a window into this issue, or at least a useful platform for analyzing it.

Our snippet comes at the end of a sugya discussing the rules for eating on the eves of Shabbat, Yom Tov, and Pesach. An Amoraic statement that “The Halakhah follows Rabbi Yehudah on Erev Pesach” is interpreted as referring to a hypothesized argument between Rabbi Yehudah and Rabbi Yose about whether a person who was already in midmeal needs to end that meal at the moment Pesach begins.  This hypothesis is supported by a beraita which records a parallel argument regarding Erev Shabbat:

[כ]דתניא:

מפסיקין לשבתות, דברי רבי יהודה;

רבי יוסי אומר: אין מפסיקין.

ומעשה ברבן {שמעון בן} גמליאל [ורבי יהודה] ורבי יוסי שהיו מסובין בעכו וקדש עליהם היום.

אמר לו רבן {שמעון בן} גמליאל לרבי יוסי

{ברבי} (ב”ר)

רצונך נפסיק, וניחוש לדברי יהודה {חבירנו}?

אמר לו:

בכל יום ויום אתה מחבב דבריי לפני רבי יהודה, ועכשיו אתה מחבב דברי רבי יהודה בפני?!

הגם לכבוש את המלכה עמי בבית?!

{אמר לו:}

אם כן – לא נפסיק, שמא יראו התלמידים ויקבעו הלכה לדורות.

{אמרו:}

לא זזו משם עד שקבעו הלכה כרבי יוסי.

as we learned in a beraita:
We break for Shabbatot, according to the words of Rabbi Yehudah:
but Rabbi Yose says: We don’t break:
A narrative about Rabban [Shim’on ben] Gamliel. [Rabbi Yehudah], and Rabbi Yose.
They were reclining in Acre when Shabbat came in (lit: when the day became holy on them).
Rabban [Shim’on ben] Gamliel said to Rabbi Yose
Berebbe
Is it your wish that we break, and be concerned for the words of Yehudah [our chaver]?
He replied: Each and every day you show affection for my words in the presence of Rabbi Yehudah, and now you are showing affection for the words of Rabbi Yehudah in my presence?!
“Will you even conquer the queen with me in the house?!”
[He said to him:] If so, we will not break, lest the students see and establish the halakhah for all generations.
[They said]: They did not move from there until the halakhah had been established as following Rabbi Yose.

The Talmud then reports an Amoraic statement that presumably relates to the beraita:

אמר רב יהודה אמר שמואל:

אין הלכה לא כרבי יהודה ולא כרבי יוסי,

אלא: פורס מפה ומקדש.

Said Rav Yehudah said Shmuel:
The Halakhah follows neither Rabbi Yehudah nor Rabbi Yose,
rather: One spreads a cloth (over the food) and says kiddush.

Three brief notes about manuscript variants:

  1. In some versions Rabbi Yehudah is present for the conversation, and in some he is not
  2. In some versions there is ambiguity as to whether RSbG responds to Rabbi Yose, or whether instead “If so, we will not break, lest the students see and establish the halakhah for all generations” is still Rabbi Yose himself talking.
  3. In some versions RSbG refers to Rabbi Yehudah as “our colleague.”

After a conventional presentation of the halakhic dispute between Rabbi Yose and Rabbi Yehudah, the beraita segues into a narrative. This narrative opens with one or both of the rabbis involved reclining at a meal with RSbG (in some versions Rabban Gamliel) on Friday at the moment of nightfall. RSbG turns to Rabbi Yose and asks him whether he wants them to break and “take into consideration” the position of Rabbi Yehudah.  Rabbi Yose responds angrily.

Why is he angry? RSBG did not suggest that the Halakhah followed Rabbi Yehudah against him! In fact, it seems that RSbG deferred absolutely to Rabbi Yose, to the point of letting him  decide whether they should even take Rabbi Yehudah’s position into account. This is even though RSBG is the Nasi, the head of the Jewish community and the academy.

Rashbam’s commentary offers a clue.  He understands RSBG as addressing Rabbi Yose using a term of great respect, “Berebbi,” that is never used in direct address elsewhere. Moreover, his version has the Nasi implicitly set Rabbi Yose up as his equal, “our colleague.” This courtesy seems excessive.

I suggest that according to Rashbam, RSBG knows that he is walking on eggshells here.  Most likely RSBG meant, and intended Rabbi Yose to understand, that he thought Rabbi Yehudah was correct on this issue, and intended to rule like him.  But in Rabbi Yose’s presence, he preferred to present this as merely accounting for all positions, and he gave Rabbi Yose the opportunity to save face by endorsing this.

Rabbi Yose does not take the graceful way out. Instead, he lashes out at RSBG, accusing of at least inconsistency and perhaps hypocrisy, and of spectacular chutzpah, while comparing him to Haman.  Possibly RSBG is cowed by the outburst and agrees to follow Rabbi Yose; or perhaps Rabbi Yose himself insists that they keep eating until it has been established that the Halakhah follows him.

In Rashbam’s reading, the Rabbis in the beraita understand each other perfectly. What we have is an authority struggle between RSbG and Rabbi Yose, which Rabbi Yose wins absolutely.  It seems that halakhic authority can be “taken.”

Except that the sugya’s final comment undoes Rabbi Yose’s victory; Rav Yehudah in the name of Shmuel disestablishes the narrative’s halakhic conclusion, and perhaps the entire beraita, and instead adopts a position that can be viewed as either entirely new or as a compromise.

But we can also read the beraita very differently than Rashbam. Perhaps RSbG sees Rabbi Yose as more authoritative than Rabbi Yehudah – and tells Rabbi Yehudah so every day – but when both rabbis are present, he’d very much like to avoid making that hierarchy explicit. But Rabbi Yose misunderstands, and thinks that RSbG’s allegiance is wavering. RSbG responds to Rabbi Yose’s outrage with complete submission.

Both these readings are predicated on the assumption that rabbinic relationships affect rabbinic authority. What makes that assumption compelling in this story is Rabbi Yose’s memorable citation of Esther 7:8: “Will you even conquer the queen with me in the house?!” The reference to the verse is at once brilliantly clever and deeply personal. To rule like Rabbi Yehudah is one thing; to do so in Rabbi Yose’s presence is something else entirely. Never mind that Rabbi Yehudah is present as well – he is just an innocent bystander, a Charvonah.  The queen is Torah, and RSbG is alienating her affection, whether by force of personality or by simple force. And without her affection, is Rabbi Yose still king? Note also that he regards himself as king even in the presence of the Nasi, who is the current link to the Davidic monarchy.

The verse may also help us choose between our suggested readings.  Because the truth in Esther, of course, is that Haman is not conquering Esther in any way, let alone threatening Achashverosh. He is merely pleading for his life.  Perhaps the beraita cites Rabbi Yose’s bon mot to undermine his perspective and teach us that he is badly overreacting to RSbG’s innocent attempt at preserving Rabbi Yehudah’s dignity.

Rabbi Yose’s assertion of his authority appears to work; They did not move from there until the halakhah had been established as following Rabbi Yose. Maybe there was a real risk that onlookers would misunderstand; maybe Achashverosh had no choice but to condemn Haman once he found him on the bed with Esther, whether or not he understood the true situation. Perhaps sometimes halakhic authority must and can be taken.

But maybe the risk was only in his mind. Perhaps everyone else knew that RSbG always followed Rabbi Yose, and would have immediately realized that adopting Rabbi Yehudah’s stringency for one night was only a polite gesture.  Rabbi Yose gains nothing, since the halakhah would follow him without a formal public establishment.  And readers of the beraita must now suspect that his authority was always taken more than given (even if in fact it originally stemmed from the clarity of his analysis, נימוקו עמו). In the long run, perhaps that is what emboldens Shmuel to disestablish the precedent Rabbi Yose insisted on setting.

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