An Introduction and Tribute to Nechama Leibowitz’s Torah

This week’s alumni Dvar Torah is by Joshua Skootsky

This year, the yartzeit of Nechama Leibowitz (1905 – 1997) falls out during parshat Vayikra. In honor of her incredible work teaching Torah and encouraging the study of Torah, this devar Torah will be based on her teachings. This is meant literally. Perhaps best-known to the English speaking world through the translated essays in “Eyunim – Studies in Torah,” originally published (Hebrew) in 1954, earlier, in 1942, she began printing and mailing out the original parsha sheet – her gilyonot. Unlike today’s parsha sheets, gilyonei Nechama had questions, developed out of reading the text of the parsha closely, sometimes with unfamiliar questions based on familiar commentators, and sometimes along with more obscure or contemporaneous commentators, such as Umberto Cassuto or Benno Jacob. Nechama would mail out the sheets, and her “subscribers” would learn them and attempt to answer them. Then they would mail them back, and Nechama would mark their papers before mailing them back, to give feedback to her many students. To receive a rare יפה from her would fill the “student,” of any age or achievement in Torah learning, with well-deserved pride.

All of her parsha sheets are available online: http://www.nechama.org.il/pages/

This one can be found here: http://www.nechama.org.il/pages/737.html?1

For Vayikra, I will “walk through” the process of reading the gilyon, her questions, and then trying to answer them. For פרשת ויקרא תשי”ג, parshat Vayikra of the year 1953, Nechama first quotes the Abarbanel, who cites the Midrash in Vayikra Rabba to Acharei Mot.

Rabbi Pinchas in the name of Rabbi Levi stated a parable:

“It is like a King whose heart is filled with love for his son, and his son is accustomed to eating non-kosher things. The king said: feed him from my table, and he will learn on his own to no longer eat non-kosher things.

Similarly, the nation of Israel were sinners, worshipping idols, and were bringing sacrifices to forbidden demonic spirits, and causing themselves to be harmed. The Holy One, Blessed Be He, said: Offer your sacrifices before me, near the Tent of Meeting, and separate yourselves from idol worship!”

Nechama then cites Rabbi David Tzvi Hoffman, from his commentary to Vayikra:

“After careful and extensive study, it seems clear that the version of Vayikra Rabba that the Abarbanel cites is completely textually flawed. In the version he cites, the story cannot be understood and is illogical. Indeed, in all the published versions of the midrash, we have a different text:

‘and his son is accustomed to eating non-kosher things. the King said: let this one always be by my table, and he will learn to no longer eat non-kosher things.

Similarly, since the nation of Israel were passionate about idol worship…’”

Then Nechama asks three questions. Some of her questions would be marked with an “x”, indicating that they were harder than usual. Some had “xx”, indicating that they were very hard. For this gilyon, none of the questions are marked with “x”s, so I will venture to answer them.

  1. Explain, how it is possible for the Midrash, in the version cited by the Abarbanel, to serve as a support for the opinion of the Rambam about the sacrifices.
  1. Explain why this version “cannot be understood and is illogical” according to Rabbi David Tzvi Hoffman?
  1. What is the essential difference between these two versions of the midrash?

Before I answer them, note pedagogically what is going on here. Questions 1 and 2 require the student to offer two explanations, from two points of view, that contradict each other! Then, Question 3 asks the student to identify what the difference in meaning between the two versions would be. This is all based on two versions of a Midrash! Nechama’s incredible attention to language and Hebrew was not limited to the text of Chumash, and allowed her to teach incisive lessons where others heedlessly continued reading.

My answers:

  1. Rambam, in Moreh Nevuchim 3:32,  takes the position that the purpose of many commandments, including the sacrifices, was to gradually and gently bring humans to gradual knowledge of God, rather than attempt to bring them from one extreme to another all at once.

Therefore, in the version of Midrash cited by the Abarbanel, the son continues to engage in behavior similar to what he was doing before the King took an interest in him. Eventually, by merely being brought closer to the King, the son will slowly, at his own speed, come to knowledge of God and proper behavior.

  1. According to Rabbi David Tzvi Hoffman, it does not make sense for the King to basically allow his son to continue the same bad behavior. It is implied that the King serves his son the same non-kosher food that he ate before. For Rabbi David Tzvi Hoffman, this seems impossible. Therefore, he prefers the version where the son is brought close to King’s table, so that he can learn which foods ought to be eaten. The change from worshipping idols to worshipping God is analogous to the change from eating non-kosher food to kosher food, even if the means of worship, including animal sacrifice, remain similar.
  1. The essential difference between the two versions of the Midrash is whether or not the King provides non-kosher food for his son. It seems strongly implied in the first version of the Midrash that this is the case, and Rabbi David Tzvi Hoffman’s forceful objection, that the Midrash as cited by Abarbanel “cannot be understood and is illogical,” actually supports and sustains that read.

The Abarbanel says that, in of themselves, the sacrifices were analogous to the non-kosher food of the midrash, but moving the sacrifices into Mikdash, governed by the rules in Sefer Vayikra, was an improvement over the Israelites’ worship of idols. This would eventually lead to proper knowledge of how to serve God.

Rabbi David Tzvi Hoffman says that the purpose of the sacrifices instituted in Sefer Vayikra was to direct the Israelite’s passion for worship towards Hashem exclusively. By directing the sacrifices to Hashem, the means of worship that previously was used for illicit idolatry becomes “kosher.”

So, out of two different texts of the Midrash, cited by two relatively obscure sources, Abarbanel and Rabbi David Tzvi Hoffman, Nechama taught two perspectives on the sacrifices detailed in Sefer Vayikra, each belonging to a great rabbi whose opinions were not explicitly stated, but had to be drawn out by a master teacher.

May her memory, and the Torah that she teaches, be a blessing.

Joshua Skootsky (SBM 2012, 2015) is a student at Yeshiva University.

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Does “It’s Never Been Done” Imply “It Should Never Be Done”? Part 2

by Rabbi Aryeh Klapper

Part 1 of this series can be found here.

PART 1 of this series established that there is no bar under halakhah to arguing that an unprecedented action is halakhically permitted.  This principle is expressed pithily by Mishnah Zevachim 12:4 as “אין לא ראינו ראיה”, “‘We have not seen’ is not proof”.  Nonetheless, scholars may be required to conform when unsophisticated communities object to a practice on the grounds that they have never seen it done, even when the objection is halakhically groundless.  I argued that the Modern Orthodox community should be regarded as sophisticated by historical standards, but that there might – or might not – be reasons to treat it as if it were unsophisticated in certain cases.

RAMO Choshen Mishpat 37:22 expresses the position that despite the Mishnah Zevachim, there are circumstance under which “לא ראינו הוי ראיה”, “‘We have not seen’ is proof”.  This installment will seek to identify as precisely as possible the conditions under which this statement of RAMO applies.

Siftei Cohen (Shakh) to 37:22 connects this RAMO to the opening of Shulchan Arukh Yoreh Deah (YD), the very first topic covered in the formal semikhah curriculum.  YD 1:1 itself is based on the opening line of Mishnah Chullin: “הכל שוחטין ושחיטתן כשרה”, “everyone slaughters, and their slaughtering is valid”.  Who is included in “everyone”?  Talmud Chullin lists a variety of marginal men, which leaves open the possibility that women are excluded.   Beit Yosef mentions that the peculiar work Hilkhot Eretz Yisroel excludes women, but presents the position that women are included as the near-absolute consensus of halakhic authorities, and to my knowledge this claim has not been challenged since.

However, granted that this is true as halakhah, Beit Yosef also cites the position of Agur, a late fifteenth century German-Italian halakhic collection.  Agur writes that while all halakhic authorities agree that women may slaughter legally, a custom has arisen that they do not slaughter, and this custom should be regarded as having legal force going forward.  Agur takes this position using extravagant rhetoric, describing it as “מנהג מבטל הלכה”, “custom nullifying law”.

אף על פי שדעת הפוסקים כן

המנהג בכל גלות ישראל שלא ישחטו  

ומעולם לא ראיתי נוהג לשחוט  

ולכן אין להניחן לשחוט  

כי המנהג מבטל הלכה  

.ומנהג אבותינו תורה היא

Even though the opinion of the decisors is such (that women may slaughter)

the practice in all the diaspora of Jewry is that they should not slaughter

and I have never seen a woman practice slaughter

and therefore one should not allow women to slaughter

because the custom nullifies law

and the custom of our ancestors is Torah.

Beit Yosef himself nonetheless rejects Agur.

:ואני אומר

– שאם היה אומר שהיו רוצות לשחוט ולא הניחון

,היה אפשר לומר שהיא ראיה

.אך ראיית לא ראינו אינה ראיה

But I say:

If he has said that women wished to slaughter and were not allowed to do so –

It would be possible to say that this is a proof

but a proof of the form ‘We have not seen’ is no proof.

He accordingly codifies in Shulchan Arukh that women may slaughter.  RAMO, however, cites what appears to be the position of Agur:

יש אומרים

,שאין להניח נשים לשחוט

,שכבר נהגו שלא לשחוט

וכן המנהג שאין הנשים שוחטות

Some say

that women should not be allowed to slaughter

as they have already adopted the practice of not slaughtering.

and this is the custom: Women don’t slaughter.

Shakh contends that RAMO’s adoption of Agur’s position here reflects his statement in CM 37:22 that under some circumstances “I have not seen” is a valid proof.

[בזה ישבתי בתחילת ספרי שפתי כהן ליורה דעה [סימן א’ סק”א] דברי האגור [סי’ אלף ס”ב

שכתב

שאין להניח נשים לשחוט

,שכבר נהגו שלא לשחוט

.שהב”י שם השיג עליו דלא ראינו אינה ראיה

,ואני כתבתי דבמנהג הוי לא ראינו ראיה

.וכמ”ש מהרי”ק והר”ב כאן  

On this basis I justified at the outset of my work Siftei Cohen to Yoreh Deah the words of Agur,

who wrote that

women should not be allowed to slaughter,

as they have already adopted the practice of not slaughtering.

Beit Yosef there challenged him by saying that “I have not seen” is no proof,

But I wrote that with regard to minhag “I have not seen” is a proof,

as Maharik and RAMO write here.

The key distinction Shakh makes is about the level of halakhah.  In areas that are Biblical or Rabbinic law, “I have not seen” is no proof.  But in areas of customary law, “I have not seen” is proof.  

Shakh does not suggest, or even contemplate, a claim that the fact that something hasn’t been done is the reason that it may not be done going forward; it is merely evidence that a custom to that effect was deliberately instituted.  

,וטעם נכון יש בדבר

דכיון שהמנהג כך

,והדבר שכיח כן

,אם היה הדבר מותר – אי אפשר שלא היינו רואים פעם אחת כן נוהגים להתיר

,אלא ודאי המנהג הוא כן

שנהגו בכונה לאסור

וכן להפך

There is a solid rationale for this.

Since the practice is such

and the matter comes up frequently

if it were permitted – it is impossible that we would not have seen once them practicing allowing this,

rather certainly the custom is such,

meaning that they intentionally adopted the practice of making it forbidden

or vice versa.

Shakh states that his position is based on Maharik and RAMO.  The question then is whether Maharik and RAMO in fact support his distinction between levels of law.  

Shulchan Arukh CM 37:22 discusses a halakhic difficulty with democracy.  In a democracy, every member of the community is party to any suit between the community and an individual member, just as in the United States government attorneys appear for “the People”.  Therefore, every member of the community should be disqualified as a witness in such case as nogeia (interested), and all laws and agreements should be unenforceable.  Mechaber explains that democratic “social contracts” include a waiver of the requirement for valid witnesses.  For this reason, even relatives can testify in such cases.

RAMO adds the following:

– כל דבר התלוי במנהג בני העיר

,אין אומרים בו תרי כמאה

אלא אזלינן ביה בתר הרוב

וכן כל כיוצא בזה

.שאין אנו צריכים עדות ממש

,(וכן לא אמרינן בכיוצא בזה ‘לא ראינו אינו ראיה’, אלא הוי ראיה (מהרי”ק שורש קע”ב

Everything that depends on the minhag of the citizens –

we do not say regarding it that two witnesses are the equivalent of 100;

rather we follow the majority of witnesses.

and all similar standards

since we don’t require formally valid testimony.

Similarly, we do not say in such matters that “’I have not seen’ is no proof”, rather it is a proof (Maharik 172)

The key sentence here is the first – “Everything that depends on the minhag of the citizens”. SHAKH apparently understands minhag here to refer to law at the halakhic level of custom.  I contend, however, that this is clearly incorrect in context.  Minhag here does not refer to customary law, but rather to facts of practice which are in and of themselves halakhically neutral, but which issues of Biblical or Rabbinic law depend on.

For example:  Halakhic day-labor contracts include an implicit stipulation that the hours and conditions of work conform to standard local practice.  Suppose that an employer hired a day-laborer and then sought to force that employee to pay to rent the necessary tools from him.  The employee objects and brings witnesses who state that no employer has ever made such a demand, and that it therefore violates community standards.  A beit din would accept this testimony, even though it has the form “we have not seen”, and decide for the employee.

However – other employees and employers would be free in the future to explicitly agree to such a rental.  The beit din’s ruling is based on descriptive minhag, and relates to Biblical and Rabbinic law; the issue has nothing to do with prescriptive minhag.

Accordingly, RAMO here has no relationship to the position of AGUR regarding prescriptive minhag, and SHAKH has no evidence that testimony of the form “I have not seen” is acceptable in cases regarding prescriptive minhag.  In other words, the argument that “It’s never been done” means “It should never be done” is not correct in any area of halakhah, whether Biblical, Rabbinic, or customary.

In PART 3 of this series we will see that RAMO’s position correctly represents Maharik, and that many great acharonim have similarly concluded that SHAKH’s contention regarding minhag cannot be sustained.

Shabbat shalom!

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Devotion and Completion

This week’s alumni Dvar Torah is by Davida Kollmar

In Parashat Vayakhel, we finally hear about the actual building of the Mishkan, which we have been learning about for past few weeks. The people donate the raw materials, wise men and women volunteer as laborers, and Betzalel ben Uri ben Chur and Aholiav ben Achismakh are officially appointed as the head craftsmen. Together, this team creates all of the various structures that they are commanded to.

However, when it comes to giving credit for the work, not all credit is shared equally. Moshe tells the people that all of the wise men will be making each of the different Keilim, and this section of the Parasha is introduced by talking about the work of everyone. However, when it comes to the recounting of each of the vessels individually, rather than saying “ויעשו”, and they made, it just says “ויעש”, and he made. This fact is highlighted in Shemot 37:1, where it says “ויעש בצלאל את הארן”, and Betzalel made the Ark. Presumably, Betzalel is the singular “he” mentioned by all of the previous Keilim.

Why is Betzalel singled out? Midrash Tanchuma 10 gives an answer:

כתיב ויעש בצלאל את הארן עצי שטים. ובצלאל עצמו עשה הכל?! שכל פעם ופעם הוא אומר ויעש בצלאל! אלא על ידי שנתן נפשו הרבה על המשכן, לפיכך לא קפח הקדוש ברוך הוא שכרו והוא מפרסמו בכל פעם ופעם, שנאמר, ויעש בצלאל… ואף בצלאל, כל החכמים עשו עמו. ולפי שנתן נפשו אל המשכן הרבה, לפיכך כתיב, ויעש בצלאל את הארן.

It says “and Betzalal made the Ark out of Shittim wood.” And Betzalel himself made everything?! Every time it says “and Betzalal made”! Rather because he devoted himself a lot the Mishkan, therefore Hashem did not hold back his reward and He publicized him every time, as it says, “And Betzalel made”… And also Betzalel, all of the wise men worked with him, but because he devoted himself a lot into the Mishkan, therefore it says, “and Betzalel made the Ark.”

What the Midrash is saying is that even though both Betzalel and the rest of the workers put in much effort into the building of the Mishkan, Betzalel’s devotion caused the Mishkan to be attributed to him.

It would seem from this that the person who works the hardest on the task is ultimately the one who is credited with getting the task accomplished. However, another Tanchumah, in Eikev 6, at first glance seems to contradict this:

כל המצוה אם התחלת במצוה הוי גומר את כלה למה אמר רבי יוחנן כל מי שמתחיל במצוה ואחרי כן בא אחר וגמרה נקראת על שם גומרה, ממי את למד ממשה כיון שיצאו ישראל ממצרים מה כתיב ויקח משה את עצמות יוסף (שמות יג) כל העם עוסקין בבזה ומשה היה מטפל בעצמות יוסף… נסתלק משה במדבר ולא נכנס לארץ הכניסו ישראל עצמות יוסף וקברו אותן ותלה המצוה בהן שנאמר (יהושע כד) ואת עצמות יוסף אשר העלו בני ישראל ממצרים קברו בשכם, לכך אמר להם כל המצוה,

“All of the Mitzvah” – if you started a Mitzvah, you should finish it completely. Why? Rabbi Yochanan said anyone who starts a Mitzvah and then another person comes and finishes it, it is called by the name of the one who finished it. From whom do you learn this? From Moshe. When the Israelites left Egypt what does it say, “And Moshe took the bones of Yosef”, all of the nation was busy collection spoils and Moshe was taking care of the bones of Yosef… Moshe died in the desert and didn’t enter the land. The Israelites brought in Yosef’s bones and buried them. The Mitzvah was attributed to them as it says “and the bones of Yosef that the Israelites brought from Egypt they buried in Shechem.” Therefore it says “all of the Mitzvah.”

It seems from the Tanchumah that what causes someone to be credited with the action is not the level of devotion to the action – indeed, the Midrash admits that Moshe was the most devoted to the transport of Yosef’s remains, more than the rest of the Jews. Rather, credit for an action is given to the one who causes the action to be completed. Devotion before completion seems to be irrelevant.

If we look more closely at each of the two cases, though, we find that there are other places in Tanach which seem to support the opposite Tanchumah.

In Divrei HaYamim II Chapter 1, it is Moshe who is credited with the building of the Mishkan, while Betzalel is only credited as the creator of an individual component: 

(ג) וַיֵּלְכוּ שְׁלֹמֹה וְכָל הַקָּהָל עִמּוֹ לַבָּמָה אֲשֶׁר בְּגִבְעוֹן כִּי שָׁם הָיָה אֹהֶל מוֹעֵד הָאֱלֹהִים אֲשֶׁר עָשָׂה מֹשֶׁה עֶבֶד יְקֹוָק בַּמִּדְבָּר:  

(ד) אֲבָל אֲרוֹן הָאֱלֹהִים הֶעֱלָה דָוִיד מִקִּרְיַת יְעָרִים בַּהֵכִין לוֹ דָּוִיד כִּי נָטָה לוֹ אֹהֶל בִּירוּשָׁלִָם: 

(ה) וּמִזְבַּח הַנְּחֹשֶׁת אֲשֶׁר עָשָׂה בְּצַלְאֵל בֶּן   אוּרִי  בֶן  חוּר  שָׂם  לִפְנֵי  מִשְׁכַּן יְקֹוָק וַיִּדְרְשֵׁהוּ שְׁלֹמֹה וְהַקָּהָל: 

(3) And Shlomo and all of the congregation with him went to the Bamah in Givon because there was the Ohel Moed of God that Moshe the servant of Hashem had made in the desert.

(4) But the Ark of God David had brought up from Kiryat Yearim when David was prepared for hit because he had pitched a tent for it in Jerusalem.

(5) And the copper alter that Betzaelel ben Uri ben Chur had made was there before the Mishkan of Hashem, and Shlomo and the congregation seeked it out.

Giving credit to Moshe for the Mishkan makes sense when we look at Parashat Pekudei. There, it is Moshe himself who puts together the pieces that Betzalel had made to build the Mishkan. In other words, Moshe is the one who completed the building of the Mishkan, and therefore he is the one who is credited with its creation. Betzalel is only credited with making the individual Keilim-which were things that he oversaw to completion. This Pasuk seems to match the Tanchumah about receiving credit for completing the Mitzvah.

On the other side of the coin, we see that credit given to the Israelites for the carrying of Yosef’s bones may actually be due to devotion to the action. Bamidbar 9:6-14 discuss the laws of Pesach Sheini. These laws are introduced because of some Israelites who were impure at the time of the regular Korban Pesach and were upset that they would miss out on completing the Mitzvah. The Gemara in Sukkah 25 asks why these men were impure, and one of the possibilities given is as follows:

דתניא: ויהי אנשים אשר היו טמאים לנפש אדם וכו’ אותם אנשים מי היו? נושאי ארונו של יוסף היו, דברי רבי יוסי הגלילי,

As it says in a Baraita: “And there were men who were impure due to a corpse, etc.” Who were those men? They were the ones who carried the coffin of Yosef, these are the words of R. Yosei HaGlili.

An implication of this Gemara (and a similar Midrash in Shemot Rabbah 20:19) is that once Moshe took Yosef’s bones out of Egypt, he already stopped his personal involvement, instead leaving the carrying of the bones to other people. Therefore it is possible that he was not as devoted to the completion of the Mitzvah as we previously thought, which is why it is the Israelites, not he, who is given credit. (I don’t think that saying that Moshe is acting in a supervisory role is sufficient to prove his devotion, as the Pesukim seem to say that Betzalel was actually involved in the work itself instead of in just a supervisory role.)

What comes out of these two Midrashim, then, is that just devotion to an action or the completion of an action are not enough; rather, it is important to show devotion to an action all along and to follow through until the end. Sometimes this is beyond our control – Moshe died before he could bring Yosef’s bones into Eretz Yisrael, and even in the desert, it is likely that he could not carry the bones because he needed to be in a state of constant Taharah (see for example the interpretation of Isha Kushit in Bamidbar 12 as meaning that he needed to separate from Tzipporah). For Betzalel, too, it is not his fault that he did not complete the Mishkan either. Hashem commanded Moshe specifically to put up the Mishkan; indeed, the Midrash Tanchumah on Pikudei states that the workmen tried to put up the Mishkan but couldn’t, and it was only Moshe who was able to. Nevertheless, the fact that the Torah neglects to give them credit in this situation anyway can teach about the times in our lives when we do have the ability to devote our efforts to something and to see it through to completion.

Davida Kollmar (SBM 2014) is the Program Administrator for CMTL.

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Who Gets to Decide What’s “Shabbesdik”?

by Rabbi Aryeh Klapper

Is halakhic sophistication always a virtue?

Mishnah Demai 4:1 states that “One who buys fruits from someone who lacks legal credibility with regard to tithing, and then forgot to tithe them (before Shabbat) – may ask the seller about them on Shabbat, and eat them on the basis of his assurance.”  Why should it matter whether the seller is asked before or after sundown?  Bartenura explains that whereas halakhically sophisticated Jews know that honesty and holiness are unrelated, amei haaretz (=halakhically unsophisticated Jews) regard lying as a violation of the sanctity of Shabbat.  Therefore, while the weekday rule is that only those who observe an area of halakhah have credibility regarding it, one can extend halakhic credibility to amei ha’aretz on Shabbat even regarding laws they violate themselves.

Netziv (Haamek Davar 35:1-3) cites other examples in which halakhah takes the religious intuition of the unlearned into serious account.  In each case, these intuitions may be more constructive socially than scholarly interpretations based on analytic rigor.  Why, then, is law generally determined by scholars rather than by popular practice?

One of the classic intra-Jewish sectarian debates is whether or not one may allow a useful fire to burn in one’s house over Shabbat.  The Prushim (=Pharisees or Rabbanites) said yes, and the Sadducees said no.  The underlying interpretative issue is whether to translate “תבערו” in 31:3 as “do not light a fire”, or rather as “do not allow a flame to burn”.  Our practices of lighting Shabbat candles and of eating cholent are in part demonstrations of loyalty to the Perushi position.

Ibn Ezra records, in amusing emotional detail, a controversy he had with a Karaite (whom he calls a Sadducee) about this verse.  He took the devil’s advocate position that lighting fires should only be forbidden on Shabbat day, “ביום השבת”, and challenged the Karaite to disprove him.  The Karaite failed to do so (over a period of months, with many back-and-forths).  Ibn Ezra concludes that “I have mentioned all this, because an intelligent person can explain Scripture in many ways, which is why we need with regard to all commandments the Kabbalah, Masoret, and Torah Shebe’al Peh [1], as I said when beginning this book”.  Every text can be read plausibly in ways that are nonetheless false; the only way to exclude them is on the basis of received tradition.  The contextual implication is that one need not disprove the Sadducee position regarding fire on Shabbat; if the Rabbinic position is possible, it is necessary.

But why should this be so?  Rabbinic tradition itself records innumerable legal disputes.  Once a dispute arises, both positions are treated as reasonable, and final legal decisions result from interpretive choices rather than Heavenly voices.  No specific rabbinic choice is presumed correct.  Since nothing about the Sadducee interpretation of תבערו conflicts with rabbinic hermeneutics, there seems no intellectual basis for intellectually privileging the Prushi position.  Presumably this is true of many other Sadducee/Prushi disputes.

Many responses to this challenge start from Rambam’s assertion that Mosheh received from Sinai a broad interpretative substratum that is never subject to controversy.  But the more difficult problem to solve is not how one knows where Tradition comes from, but rather why one can have faith that it has been accurately transmitted.  Granting Divine origin, and Mosaic perfection, wouldn’t misunderstanding have crept in the moment Mosheh transmitted his knowledge?  Wasn’t this why Mosheh resisted Yitro’s suggestion that his authority be diffused?

Rambam (Introduction to Mishneh Torah) argues that Mosheh set up a near-perfect pedagogic system, with repetition and reinforcement at every level, so that at least for one generation the Oral Torah could be preserved pristine.  Netziv, however, acknowledges the inevitability of misunderstanding, commenting wryly that “even in that generation of knowledge, there must have been a few amei haaretz, let alone women [2]”.

Netziv goes further.  He suggests that Mosheh, and later Yehoshua, was well aware of these misunderstandings, but where they tended to legal stringency, he did not seek to uproot them.  In other words, from the very beginning there was a practical popular tradition alongside the intellectual tradition, which differed substantively from it.  This is similar to what my teacher Dr. Haym Soloveitchik has famously called “mimetic Judaism”, but with two key qualifications:

  1. it is explicitly acknowledged that the mimetic tradition arose out of folk intuition, rather than seeing it as evidence of lost scholarly positions
  2. the mimetic tradition was tolerated only when it was stricter, not when it was more lenient

Dr. Soloveitchik argues that there is a particular historical reason that the intellectual tradition today (or at least in the late 20th century) tends to stringency, namely the diminishing power of affective religious experience in the halakhic community.  “Having lost the touch of His presence, they seek now solace in the pressure of His yoke.”  He does not suggest that intellectual traditions are inherently or necessarily more stringent than mimetic traditions.  (In a version of this essay published several years ago, I wrote that “In the long run, I contend, those who wish to make significant changes toward ‘leniency’ are better off supporting the primacy of the intellectual over the mimetic.  This may be particularly true with regard to issues of women’s place in ritual, and it is perhaps time that advocates of such changes acknowledged this.”  I think the contention has now been largely verified.)

Netziv contends that the populace in Mosheh’s time adopted the interpretation of תבערו that eventually became the Sadducee position.  He is well aware that this popular tradition eventually turned noxious and generated a position that denied the legitimacy of the Rabbinic intellectual position.  Was Mosheh then wrong to permit it?  Netziv might have adopted the approach (perhaps following the midrash cited by Rashi on “naaseh Adam”) that mistakes are inevitable, and one cannot tell which current mistakes will cause real problems in the future.  

Instead, I suggest, he argues that Shabbat is a uniquely subjective mitzvah, which Mosheh was commanded to explain in a fashion that gave experiential discretion even to those with limited intellectual comprehension.  Therefore, in this case the category “misunderstanding” may be inapplicable.  Verses 35:1-3 represent Mosheh’s explanation of Shabbat in broad categories to those incapable of more precise comprehension, and their subsequent understandings were personally legitimate.  Possibly the Sadducee position represented one such understanding.  Netziv even argues that it was true intellectually with regard to the construction of the Mishkan.

Over time, it became urgently necessary to oppose that understanding.  Why? Perhaps because the mimetic tradition began to see itself as exclusively valid, and delegitimated the intellectual tradition.  Another possibility is that the Sadducee position in the end turned out not to be a stringency, but rather, after the first generation, became a felt burden that diminished the positive mitzvah of enjoying Shabbat, and diminished rather than increased the feeling of holiness.

Netziv himself suggests that the legitimacy of subjective interpretation only applied to the first generation, and thereafter the very same text was properly appropriated for the exclusive use of the intellectual tradition.  Nonetheless, it seems likely to me that Netziv preserves the value of experiential discretion with specific regard to Shabbat, and that, accordingly, Halakhic rulings with regard to such issues as oneg Shabbat, uvda d’chol, and other issues of “Shabbasdikness” should be made with great deference to mimesis and with a deep appreciation of subjectivity taking precedence over the desire for consistent rules.

Shabbat shalom

 

Notes:

[1] I don’t know the specific referent of each of these three terms for Ibn Ezra, or even whether they refer to separate aspects of tradition.

[2] This is not the place to discuss Netziv’s attitude toward women’s learning and intellectual capacity; a good place to start are the various contemporary discussions of the depiction of Netziv’s wife Rayna Batya in his nephew’s autobiographical Mekor Barukh.

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Can We Judge a Psak Based on Its Consequences?

by Rabbi Aryeh Klapper

What should Aharon have done?  What could Aharon have done?

It is vital to recognize that these are not the same question.  The first question can be asked even if none of the available choices would have stopped the making and worshipping of the Golden Calf.  And there may have been things that Aharon could have done to stop the Calf that he was nonetheless correct to avoid doing.

The underlying difference is between consequentialist and nonconsequentualist ethics.  Can the choice which yields the best overall result be wrong?  

The same issue comes up regularly in the context of halakhic decisionmaking.  To what extent are perceived negative consequences evidence of the rightness or wrongness of a psak?

To be sure, consideration of consequences is often part of the purely internal halakhic calculus.  “The Torah has concern for the money of Israel”, and so one can rely on minority positions when the standard psak would cause significant loss.  (Almost) Nothing stands in the way of preserving life.  Rabbinic prohibitions are vacated when the alternative is damage to human dignity.  And so on and so forth.

However, the formal internal calculations of halakhah generally require that these consequences be clearcut.  What if human dignity will suffer either way, but likely more severely one way than the other?  What if this will cause a loss to some people, and a gain to others?  How does one evaluate tradeoffs between quantity and quality of life?

One might say that in such cases one must simply fall back to the formalities of the law.  “Let the law pierce the mountain”, and let the ship of Judaism proceed without regard for the presence of floating mines (a.k.a. torpedoes).

Rabbi Moshe Tendler argues (Kavod Horav p. 167-9) – to my mind convincingly despite minimal evidence – that psak for a community should consider consequences differently than psak for individuals.  For example, communal psak can impose current hardships and risks in the interest of future generations, whereas individual psak must focus on those presently alive.  Communities can also consider statistical consequences whose probable effects on any defined individual are trivial.  In a real sense the formalities of law lose their formality in the context of communal decisionmaking, and consequentialism becomes a much larger factor.  

To take one example: R. David Stav ruled that the town of Shoham could run round trip buses to Tel Aviv and its nightlife on Friday night, in order to prevent the deaths from drunk driving that would otherwise be statistically probable.  I’m fairly confident that he would not permit individuals to offer a group of teenagers a lift if they missed the bus.

But life and death cases are low-hanging fruit.  My question is whether on a communal level poskim may or must also consider much more amorphous consequences.  I liked to tell my high school students that I judged my work as a teacher by the condition of their souls ten years after graduation – ought a shul posek to consider in advance how a given psak will affect the souls of congregants ten years on? Perhaps Rav Tendler’s distinction applies only to concrete matters, but poskim need to consider the future condition of even specific individual souls.

Judging what will be best for other souls inevitably introduces an element of paternalism.  How can I make decisions on the assumption that you will otherwise make poor decisions?

My suspicion is that in principle almost everyone thinks that psak should nonetheless take such consequences into account.  We want poskim to be in relationship with sho’alim, not to be reference books.  We want this not only so that they can understand the underlying situation, but also so that they can respond to it.

Nonetheless, there are at least two valid sources of resistance to this idea.  For many laypeople, giving Rabbis discretion extends the sphere of influence in their lives of people whose values they don’t fully share.  For some senior halakhists, this discretion should be vested only in truly great halakhists with demonstrated capacity to resist the pressures of the moment, otherwise halakhah will lose all its formality and integrity.  Which brings us full-circle, to Aharon HaKohen at Sinai.

Let us set the scene.  Mosheh Rabbeinu has been gone for (a little or a lot) longer than everyone had anticipated.  Rumors are spreading wildly, and a group of agitators are beginning to run riot.  Chur, whom Mosheh had given interim judicial authority together with Aharon, stood up to the rioters and is killed.  No attempt at all is made to censure his murderers.  Aharon reasonably believes that he will be killed if he directly opposes the construction of a constructed image to replace Moshe.  What should he do?

On a halakhic level, the answer may seem simple.  One must give up one’s life rather than commit idolatry or its אביזרא, violations falling within its penumbra.

But in truth it is not simple.  Aharon surely did not intend the Calf to be an actual idol; from his perspective, he simply sculpted a statue.  If no other Jew had worshiped it after he made it, there would be no reason to assume that the calf was assur behanaah, forbidden for Jews to derive benefit from, as are images constructed for the sake of worship.

Nor is there evidence that Aharon himself ever worshipped the calf.  It is an anonymous plural that declares “These are your gods, O Israel”.  He builds an altar before it, but then declares that there will be a holiday for Hashem the next day.  What Aharon violates is lifnei iver, the prohibition against placing obstacles in the path of the spiritually blind, and there is much debate in the tradition as to whether lifnei iver of idolatry is an abizra that one must die rather than commit.

Aharon reasonably believes that the Jews’ souls will be even further damaged if he is killed.  Moreover, if Moshe returns to find him dead, he will absolutely despair of the people, and abandon the whole project of shaping them into the People of Torah.  Moreover, by sort-of participating in their sin, he creates a bond and sympathy and credibility that will be helpful in what will clearly be a long and painful process of spiritual recovery.

But Aharon spent months in Moshe’s yeshiva researching the question of whether lifnei iver of idolatry is an abizra, and came out quite convinced that the weight of the mesorah favored the position that it is.  Nothing about this admittedly traumatic experience has changed his reading of the texts, or the weight of the authorities involved.  It’s just that faced with an actual circumstance, it seems clear that his community would be better off if he paskened the other way, and he can’t claim that the other way is demonstrably incorrect.  So what should he do?

The Torah does not tell us explicitly whether Aharon’s decisions were right or wrong.  Moshe’s first words to him are harsh, but Aharon responds, and then the issue seems to be dropped; in other cases, such as after the death of Nadav and Avihu, this seems to indicate a withdrawal of his initial criticism.

Aharon becomes High Priesthood.  He goes on to save the Jews from Divine wrath when Moshe can’t or won’t, and he dies beloved by both the people and G-d.  The evidence seems to be that from a consequentialist perspective, he made the right decision.

The problem is that a purely consequentialist perspective undermines law completely.  If one should always choose the option that produces the best results, what is the purpose of rules?  

The best halakhists understand that the most important consequence of all is the preservation of halakhah as law, in other words the ability to find meaning in and give authority to rules regardless of their consequences.  

Embracing that paradox is the key to a vibrant halakhic future.

Shabbat shalom.

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The Holy Anointing-Oil and the Pure Incense

This week’s alumni Dvar Torah is by Dan Margulies

The baraita of Rabbi Pinchas ben Yair, which is quoted in many rabbinic sources (e.g. Avoda Zara 20b) and formed the scaffolding for Rabbi Moshe Chaim Luzzatto’s Mesillat Yesharim, lists a ladder of ascending character traits. The version quoted by many of the rishonim includes the phrase: “and purity leads one to holiness”. To the modern reader, the traits identified as “purity” and “holiness” may be somewhat obscure, but beyond their technical halakhic meanings in the world of the temple service, they speak to broader themes in our service of God and our construction of Jewish society.

Parashat Ki Tisa introduces us to two preparations—the incense and the anointing-oil—which can shed some light on the meanings of purity and holiness through their similarities and differences.

The anointing-oil (described in Shemot 30:22-33) and the incense (Shemot 30:34-38) share many points in common. They are both made up of a variety of exotic spices, they are described variably as “holy”, “holiest of holy” and “for use with holy objects”. And their production or misappropriation for personal use carries the punishment of karet.

The contrasts are highlighted by the rabbinic interpretations of these details. The anointing-oil was only made once, in the time of Moshe (Menachot 88a) while the incense was made yearly or as needed (Keritot 6a-b). According to rabbinic tradition, the anointing-oil only needed to be made once because it exists in miraculous perpetuity without being consumed:

“Of the 12 log of oil … the fire burned some off, and the wood absorbed some, and the kettle absorbed some, and it was used to anoint the entire mishkan and its vessels … and Aharon and his sons and all of it remains for future times” (Yerushalmi Sota 8:3, Bavli Horayot 11b)

Part of the defining nature of the anointing-oil is that it will not run out, and thus will never need to be replaced. It exists “for [God] for generations to come” (Shemot 30:31). It, like the aron, is a part of the original mishkan that will never be destroyed.

In commenting on the phrase “and [Betzalel] made the anointing-oil—holy” (Shemot 37:29), Rabbi Ovadia Seforno connects the holiness of the anointing-oil to its permanence. He writes: “this points to the idea that it will not be lost [i.e. consumed] as [God] said, ‘This will be holy to me for generations’ (Shemot 30:31)”. Sforno makes explicit the notion that the holiness of the anointing-oil is bound up with its permanence; that is, we are meant to understand that things that attain a holy state retain it permanently. This is reflected by the rabbinic dictum “we only ascend is matters relating to holiness,” as well many of the halakhot regarding misappropriation of temple property (meila), and specific laws concerning the anointing-oil itself (Keritot 7a).

Unlike the anointing-oil, the incense mixture was meant to be consumed—to be burned on its altar twice daily—and thus needed to be replaced regularly. Although it too is called “holy” (Shemot 30:35), the Torah twice refers to the incense as “pure” (Shemot 30:35, 37:29). In Shemot 37:29 it is quite explicitly being contrasted with the “holy” anointing-oil. In his comments on Parashat Vayakhel, Rabbi Shmuel Bornsztain (author of the Shem Mishmuel) asks why the pasuk poses this contrast between the incense being “pure” and the anointing-oil being “holy”.

The Shem Mishmuel’s question was preempted by Rabbi Yehudah Aryeh Leib Alter (author of the Sfas Emes) in his comments on Parashat Korah 5658, who based on the Zohar (Naso 121b and Shoftim 275b in Raya Mehemna) explains that the kabbalistic aspect of a levite is “purity” and of a kohen is “holiness”. He goes on to explain that this is because “holiness” is something that comes from God down to human beings, but “purity” is something based in human initiative. The ability to bring the incense was unique to someone who possessed both qualities—purity and holiness—and that was Aharon and not Korah.

This paradigm can help explain further why the anointing-oil is called “holy” while the incense is called “pure”. The anointing-oil was produced once and lasts forever—it has a kind of stasis to it, while the incense needed to be produced regularly by generations of experts who dedicated their skill to perfecting it. The incense required human effort, expertise, and regular input to maintain its purpose. In our service of God we can strive for holiness, but as the Sfas Emes suggests holiness can be difficult to cultivate since it stems from a Divine source. But we can also strive for purity, a human trait that grows and is enriched by our input and our effort in our service of God.

Dan Margulies (Winter Beit Midrash 2016) is a fourth-year semikha student at Yeshivat Chovevei Torah Rabbinical School and teaches Talmud at the Temple Emanu-El Streicker Center.

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Parashat Zakhor: Carry On My Wayward Son

This week’s alumni Dvar Torah is by Miriam Gedwiser

What are we remembering with parashat zakhor? Unlike so many of the questions that Deuteronomy 25:17-19 raises, this one seems to have a straightforward answer:  we remember “what Amalek did to you on your journey, after you left Egypt.” Yet for one midrash, the answer was not so obvious.

We begin with a family of midrashim that share a common denominator of Israel as a wayward child, and Amalek as its punishment. One better-known permutation explains the juxtaposition between Exodus 17:7 (Israel wondered, “Is God in our midst or not?”) and 17:7 (“Amalek came”), distilled by Rashi to Exodus 17:8:

משל לאדם שהרכיב בנו על כתפו ויצא לדרך, היה אותו הבן רואה חפץ ואומר, אבא טול חפץ זה ותן לי, והוא נותן לו, וכן שניה וכן שלישית, פגעו באדם אחד, אמר לו אותו הבן ראית את אבא. אמר לו אביו אינך יודע היכן אני, השליכו מעליו ובא הכלב ונשכו

An analogy to a person who put his child on his shoulder and went on a journey. The son would see an object and say “Abba, pick up that thing and give it to me.” And he gave it to him, and so a second and third. They met a certain man. That son asked him: “Have you seen my father?” His father said to him, “You don’t know where I am?!” He cast him down off of him and a dog came and bit him.

Israel is the ungrateful child and God is the angry parent who decides to teach that child a lesson by withdrawing his protection. Amalek is the biting dog, ever ready to attack if God puts Israel down. This version of the midrash grows out of the text in Exodus and does not refer to parashat zakhor in Deuteronomy. (See Midrash Tanhuma (Buber ed.), Yitro 4; see also Shmot Rabbah 26:2.)

A similar midrash appears in Pesikta de-Rav Kahanah (Zakhor, 3) with a twist: at the end, God does not put the child down with a rhetorical question, but with an explicit lesson:

אמר להם הקבה הרהרתם עלי, חייכם שאני מודיע לכם, הרי הכלב ונשך אתכם. ואי זה, זה עמלק שנאויבא עמלק (שם /שמות/ ח), לכך נאמזכור (דברים כה: יז).

God said to them: you doubted Me?  By your life I will inform you. Behold a dog will bite you. And which is that? It is Amalek, as it says “Amalek came” (Ex. 17:8). Therefore it says, “remember” (Deut. 25:17). (emphasis added).

Withdrawing God’s protection is supposed to answer the Israelites’ question “Is God in our midst or not,” presumably in the affirmative.[1] Most interestingly, this version of the midrash connects the lesson learned to the commandment of memory, suggesting that we are to remember not only the fact of Amalek’s attack, but its purpose. If Jews ever veer toward ungratefulness for the benefits of God’s world, remembering Amalek serves as a cautionary tale, and perhaps implicit threat, about what happens if they permit doubt to overtake them.

Another related midrash from the Tanhuma (this time on Deuteronomy (Ki Tetse, 9), not Exodus), takes the same idea one step further:

מלהד למלך שהיה לו כרם והקיפו גדר והושיב בו המלך כלב נשכן אמר המלך כל מי שיבא ויפרוץ את הגדר ישכנו הכלב, לימים בא בנו של מלך פרץ את הגדר נשכו הכלב, כל זמן שהיה המלך מבקש להזכיר חטא של בנו שפרץ הגדר אומר לו זכור אתה היאך נשכך הכלב, כך כל זמן שהקבה מבקש להזכיר חטאן של ישראל שחטאו ברפידים שנא‘ (שמות יז) היש הבקרבנו, אמר להם זכור את אשר עשה לך עמלק

What is the analogy? A king who had a vineyard, and he surrounded it with a fence and put a guard dog inside. The king said, anyone who comes and breeches the gate, the dog will bite him. In some time the son of the king came and breached the gate and the dog bit him. Every time the king wished to recall his son’s sin of breaching the gate he says to him, “recall how the dog bit you.” So every time that God wishes to recall the sin of Israel who sinned at Refidim, as it is said “Is God in our midst [or not]? He said to them, “Remember that which Amalek did to you.”

This midrash casts remembering Amalek as more than a reminder of the consequences of sin; the thing we are supposed to remember is not just Israel’s punishment, but the sin itself. “Remember Amalek” is God’s roundabout way of saying “remember when you breached the gate?” Though most people assume that the purpose of remembering Amalek is to carry out the next commandment in the Torah, erasing them, this midrash would seem to divorce the two.  We remember Amalek to remember our own sin.  The connection to anti-Amalek violence becomes unclear, and the focus of shabbat zakhor shifts radically from nursing a sense of victimhood to one of regret and repentance.

In addition to this unexpected shift in focus, the Tanhuma also at least hints at an even more radical suggestion. If “remember Amalek” means “remember yourselves,” then, grammatically, we are “Amalek” for the purposes of that sentence. If so, we may wonder whether we are Amalek in a deeper sense as well. Recall, after all, that Amalek’s ancestor and ours were twins.[2]

This is fraught territory. Does the idea of “Amalek is us” address the moral quandaries in the passage or exacerbate them? At the very least, it could be a worthwhile experiment to turn our memories inward this shabbat, rather than toward external enemies. And, perhaps, shaking up our us/them categories on a shabbat when Purim begins in just a few hours will lead us to new understandings of the difference (or lack thereof) between ארור המן (cursed is Haman) and ברוך מרדכי (blessed is Mordecai).

 

Notes:

[1] Exactly how being attacked is supposed to convince Israel that God is in their midst is unclear. Perhaps the lesson works through some combination of demonstrating, by contrast, the protection they previously enjoyed, and requiring faith to win the battle. Alternatively, perhaps God’s חייכם שאני מודיע לכם is more of a threat, along the lines of “I’ll show you” – that is, show you what happens when God is really not in your midst. This role of Amalek would also dovetail with the role of Amalek in the story of the ma’apilim, Numbers 14:42-45.

[2] See generally the chapter on Amalek in R. David Silber’s recent work on Megillat Esther, עם לעת כזאת.

 

Miriam Gedwiser (SBM 2002) is on the faculty of Drisha and is a nonpracticing attorney.

 

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