CMTL Pesach Reader, 2017 Edition

Check out the 2017 edition of the CMTL Pesach Reader for Divrei Torah about Pesach from Rabbi Klapper and CMTL alumni!

http://www.torahleadership.org/categories/pesachreader2017.pdf

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הא לחמא עניא (from the Aryeh Klapper Haggadah, in progress)

  • הא לחמא עניא דאכלו אבהתנא בארעא דמצרים.

    כל דכפין – ייתי וייכול;        כל דצריך – ייתי ויפסח.

    השתא – הכא;                                         לשנה הבאה – בארעא דישראל.

    השתא –  עבדי;                                                                           לשנה הבאה – בני חורין.

    This is the bread of poverty that was eaten by our ancestors in the land of Mitzrayim
    Anyone hungry – let them come and eat!  Anyone in need – let them come eat a Pesach!
         This year – here;                                                        The coming year – in the land of Israel!
    This year – slaves;                                                                            The coming year – free people!

    In the United States, we generally recite this paragraph ritually in a locked house or apartment, or a wellguarded resort complex, where the poor – unless previously invited – could not possible hear us. This seems too ironic for words. But it is also true that we live in environments where the desperately and publicly poor are rarely known to us personally, and so reasonable concerns of safety and privacy make the idealistic framework set out here uncomfortable and likely unwise. Can we nonetheless make sense of it? Let us begin by recognizing that the paragraph is structured chronologically – we start in Mitzrayim at the point of the Exodus (“This is the bread our ancestors ate in the Land of Mitzrayim”), move to Israel during the Temple period (““Anyone in need – let him come eat a Pesach”), acknowledge contemporary reality, and finally express our hopes for the future. Our scripted invitation to the needy is a deliberate flashback to the Temple period, when all Israel was camped out in Jerusalem, and the “haves” provided for those who could not afford their own lamb for the Pesach sacrifice. It is not intended as a direct critique of Diaspora practice. Nonetheless, surely one purpose of the Pesach sacrifice was to create a circumstance in which each Jew of means had direct responsibility for the poor. Can we maintain the spirit of the law when the letter remains sadly out of reach? I don’t think the solution is necessarily open-air barbecue seders in public parks. Chazal (Bava Batra 7b) recognize a legitimate tension between the right to privacy and the obligation to remain accessible to the poor. Residents of a courtyard may legally compel each other to pay for the construction of a gatehouse; yet Elijah the prophet stopped visiting one chasid’s courtyard once a gatehouse was built, in protest against his exclusion of the poor. The proper balance between these values depends on social and individual circumstances. In a perfect world, no one responds to the last-minute Pesach invitation, because all the poor have already been provided for. We can recline in the privacy and freedom of our houses and hotels without guilt, but only if we have done our part in advance to ensure that the poor have the wherewithal to make their own sedarim.

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Rav Soloveitchik on Semikhah

by Rabbi Aryeh Klapper

INTRODUCTION

This essay is devoted to a purely conceptual “Brisker” account of the Rav’s analysis, in many contexts, of classical semikhah and eligibility for the same.  If this analysis survives critique, a subsequent essay will place it in the context of a central theme of the Rav’s philosophic work.  If that analysis as well emerges recognizably from critique, a third and last essay will draw tentative but concrete implications for contemporary practice with regard to eligibility for semikhah, and humbly submit them for critique.

No attempt will be made in this essay to evaluate the Rav’s work, only to present it.  The practical weight of any implications derived from this analysis will depend on the general weight one assigns to the Rav’s opinions in determining individual or communal practice, and/or on evaluation of the argument on its merits as a reading of the tradition.

I have followed the approach of many of the Rav’s direct talmidim in writing the Rav’s material directly, rather than citing him in the third person.  Any content that I believe to be my own is specifically marked {ADK}.  There may be places where I have misunderstood the Rav or made an argument that seems necessary for his thesis but which he himself never made.  Readers are encouraged to check my analysis against the available evidence of his positions, to which I have tried to provide fairly comprehensive access in the endnotes.  Readers who wish to study the Rav’s directly relevant positions in advance of my presentation are directed to

“קביעת מועדים על פי הראיה ועל פי החשבון”, in קובץ חידושי תורה

“בענין תקנת משה”, in שיעורים לזכר אבא מרי ז”ל כרך ב

“קונטרס הסמיכה” in ארץ הצבי

רשימות שיעורים to נדרים ח:, שבועות ל., שבועות לא.,  בבא קמא טו., בבא קמא פד:׳

The Rav Thinking Aloud on the Parsha: Sefer Bamidbar

“Semichah of Yehoshua” in The Rav Thinking Aloud on the Parsha: Sefer Bamidbar

“הערות בריש מסכת אבות”, in בית יצחק כרך כב עמוד סד

 

 

The rest of the article can be found here.

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Tangents and Main Points

by Rabbi Aryeh Klapper

Students in my Talmud classes are often asked to recall ‘how we got here from there’, meaning how we meandered from the alleged base text or main topic of a session to the fascinating but apparently wholly disconnected conversation we are in.  My class thereby models the text, as the Talmud is constructed associatively; and the tangents are often the true main point of the class, and of Talmudic sugyot).

For this to work, the students must not notice when their train leaves the rails and begins to roam the intellectual countryside, or to mix metaphors:  like Wile E. Coyote, if they look down too soon and notice that they’ve gone off a cliff, they never make it to the other side.

This is a difficult trick to pull off in writing, where language is the only tool that can keep the reader from awareness.  One strategy is to do a reverse Hansel and Gretel, sprinkling candy crumbs on the ground behind you in hopes that the reader will follow and keep picking them up until their original trail is lost.  But it is a trick often necessary when writing a dvar Torah on the early parshiyot of Vayikra, which are rarely directly meaningful to contemporary readers.  Here is one attempt.

Vayikra 7:24 states:

But the organ-fat of a neveilah (an animal that has died of a cause other than kosher shechitah)

or the organ-fat of a tereifah (an animal that was halakhically dying before its shechitah)

may be used for every task, but you surely must not eat it.

Rashi comments:

“may be used for every task” – This came and taught about organ-fat that it does not acquire the tum’ah of the neveilah from which it is taken.

But what does the acquisition of tum’at neveilah have to do with suitability for all tasks?  Rashi here is silent, but “the words of Torah are often poor in one place but rich in another”.  Rashi’s source is a dispute between Rabbi Akiva and Rabbi Yose the Gallilean on Talmud Pesachim 23a:

“may be used for every task” – 

What does Scripture teach by writing “for every task”?

You might have thought that it would be permitted for tasks of the Above, but prohibited for mundane tasks –so Scripture writes “for every task”.

This is the opinion of Rabbi Yose the Gallilean.

But Rabbi Akiva says:

You might have thought that it would be permitted for mundane tasks, but prohibited for tasks of the Above– so Scripture writes “for every task”.

What “tasks of the Above” is organ-fat suitable for?

Rashi comments (on the position of Rabbi Yose the Gallilean) that it is useful to prepare hides for Temple maintenance.

Rabbi Pinchas HaLevi (Poland/Germany, d. 1805) in his Panim Yafot argues that Rabbi Akiva reads the word every as permitting one to bring hides that have been prepared with such fats into the Courtyard of the Temple.  This presumes that one may not bring other parts of a neveilah into the Courtyard owing to their tum’ah, and that, happily, turns out to be the position of Rabbi Akiva in Mishnah Eruvin Chapter 10.

If a dead sheretz (rodent? reptile? which carries the same degree of tum’ah as a neveilah)

was found in the Temple (on Shabbat, when the muktzah prohibition prevents direct manual removal) – a priest removes it with his belt (even though the belt acquires tum’ah thereby), so as not to linger the tum’ah,

according to Rabbi Yochanan ben Beroka;

Rabbi Yehudah says:

With a wooden stick (that does not acquire tum’ah), so as not to increase the tum’ah.

From what places in the Temple must it be removed (even on Shabbat)?

From the Sanctuary and the Hall and between the Hall and the Altar,

according to Rabbi Shimon Dwarfson;

But Rabbi Akiva said: 

From the places where one would be liable for karet if one brought a dead sheretz there deliberately, or a chatat sacrifice if one brought a dead sheretz there accidentally – 

from those places one must remove it; 

but all remaining places – we cover it with a container.

Now why would Rabbi Akiva hold that one should not remove a dead sheretz from all parts of the Temple, when there is a Biblical violation against bringing tum’ah into the Temple?  Eruvin 104a suggests that Rabbi Akiva agrees with a seemingly paradoxical position later stated explicitly by Rabbi Tovi bar Kisna in the name of Shmuel:

Said Rabbi Tovi bar Kisna in the name of Shmuel:

One who brings in (to the Temple) something that has the same tum’ah as a dead sheretz – is liable, but (one who brings in) a dead sheretz – is exempt.

Rabbi Tovi bar Kisna’s position is derived from Numbers 5:3, which explicitly requires sending certain human beings who have acquired tum’ah in certain ways out of the desert camp, and is understood as applying to the Temple afterward.

Scripture writes: “Whether male or female, you must send away” –

This applies to all those who can become tahor via immersion

But excludes a dead sheretz which cannot become tahor via immersion

Thus Rabbi Akiva can hold that there is no prohibition against bringing a dead sheretz in, and therefore no obligation to bring it out, and therefore one should not violate the muktzah prohibition to remove it.

But this actually proves too much – even Rabbi Akiva holds that one must remove a dead sheretz from the Sanctuary and the Hall on Shabbat.  If there is no prohibition against bringing one in, why should one violate muktzah to remove it?

Rashi explains:

he holds that one who brings a dead sheretz into the Temple is exempt –

Meaning there is no Biblical obligation to ‘send it out’,

and therefore the Rabbinic muktzah prohibition is not pushed aside to remove it.

But from the Sanctuary and the Hall we do remove it,

as the Sages did not make their words stand in the way of the Honor of the Divine Presence

The last line of Rashi is fascinating.  On Berakhot 19, the Talmud has a long discussion as to whether, or under what circumstances, human dignity overrides what would otherwise be the Halakhah.  This question is initially presented as dependent on the relative value of human and Divine dignity.  In the course of the discussion, we learn that human dignity presumptively overrides all Rabbinic legislation.  Rashi here extends that principle to Divine dignity as well.  On what basis does he do this?

I suggest the following.  On reflection, it should be clear that the Talmud actually presented a false choice.  The real question is not whether human dignity overrides Divine law, but rather the place of human dignity within Divine law – and if G-d mandates concern for human dignity, doing so cannot violate His dignity.  The conclusion that human dignity sometimes trumps even Biblical-level law in no way contradicts this.  Therefore, Rashi reasons, the premise that Divine dignity trumps human dignity stands, and therefore, if human dignity trumps Rabbinic law, so must Divine dignity.

But Rashi makes a further leap.  In Berakhot, Divine dignity is manifested in human obedience.  Here, Divine dignity is implicated in human aesthetics – no human being of consequence would tolerate dead animals in their home, so it violates His dignity for one to be left where His presence dwells.  By bringing His presence down to human beings – by investing the Mishkan – G-d therefore makes His dignity vulnerable in new ways – not only to human free will, but to the chances of mortality, human and animal.  Perhaps it makes sense, then, that the Temple is so hedged about with commandments – in recognition of G-d’s willingness to risk His dignity so as to dwell among us, we assign ourselves the task of magnifying His dignity to the extent possible through our obedience.

Shabbat Shalom

This Dvar Torah is a rewrite of a Dvar Torah published in 2014.

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Parshas Tzav/Shabbos HaGadol — Precious Preparations

This week’s alumni Dvar Torah is by Alex Zaloum

At the beginning of this week’s parsha, we read:

“The Kohen shall don his fitted linen Tunic, and he shall don linen Michnasaim on his flesh; he shall raise the ashes which the fire will consume of the olah-offering on the Altar, and place it next to the Altar. He shall remove his garments and he shall wear other garments, and he shall remove the ashes to the outside of the camp, to a pure place” (Shemos 6:3-4).

Rashi gives a parable for why the kohen is instructed to wear a different set of clothes to remove the ashes from the Temple: “…[G]arments in which he cooked a pot for his master he should not pour in them a cup of wine for his master…”

One difference between cooking a pot of food and pouring a cup of wine is that that former is typically not done in the presence of the master, while the latter typically is. This difference is clearly borne out, as in haramas hadeshen (raising the ashes) the ash was placed “by the Altar” and in hotza’as hadeshen (removing the ashes) the ash was “removed outside the camp in a pure place.”

Another difference is that whereas pouring wine is a service in and of itself, cooking is merely a preparation for serving the master. So too, whereas haramas hadeshen is a mitzvah itself, hotza’as hadeshen is merely to ensure the Altar is cleared for further use (as Rashi to 6:4 indicates: “this is not a daily duty, but the raising of the ashes is a daily duty”).

But there is a third distinction: typically the servant who cooks is not the same servant who pours the wine. In fact, according to the opinion of Rabbi Eliezer, these two tasks were indeed performed by separate kohanim (see Yoma 23b).

From Rashi’s commentary, however, it is clear that he holds that the same kohen performed both the raising and removing of the ashes. If Rashi had Talmudic precedence for an interpretation that would better fit his parable, why did he choose the interpretation that both tasks were performed by a single kohen?

Perhaps Rashi is implicitly teaching a lesson for us all (not just a lesson for kohanim, but for every Jew, as we read in parshas Yisro 19:6: “and you will be unto Me a nation of priests, and a holy people.”):

In our service of Hashem, much of our time is spent preparing: walking to shul, cooking for Shabbos, acquiring a lulav and esrog, etc. For us, there is an obvious spiritual advantage in the mitzvah itself compared to the preparatory acts that precede it, as when we do a mitzvah we connect directly with Hashem in a revealed way. But from Hashem’s perspective, the preparatory acts of a mitzvah and the mitzvah itself are equally important. As the preparation is a necessary component to the fulfillment of the mitzvah, they are both part of Hashem’s will.

Therefore, although the kohen must change clothes to ensure the priestly garb does not get filthy while removing the ashes, it is the same kohen who is worthy of performing the mitzvah of raising the ash to the side of the Altar as the one who is charged with the menial task of removing the ash from the Temple courtyard.

This is a timely lesson as we are prepare our homes (and ourselves) for Pesach.

Although technically the mitzvah to destroy chametz is only on the 14th of Nissan, if in the weeks prior to Pesach we do not take the time to make the proper preparations, then we will not be able to enter Pesach chametz-free.

So when we don our smocks to rid the house of chametz, we must know that although from our perspective the Seder is the moment of most evident spiritual connection, from Hashem’s point of view, sweeping behind the cabinet is just as precious as eating the afikomen.

May we all have much success in our Pesach preparations, and a kasher and freilichen Pesach!

 

Originally from Arlington, VA, Alex Zaloum (WBM 2016) graduated from Harvard College last spring and is currently pursuing semicha at the Rabbinical College of America in Morristown, NJ.

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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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