Creativity at the Cutting Edge of Halakhah: Week Two Summary of SBM 2019

by Sara Krishtul and Elyanna Saperstein, SBM Fellows

How does Jewish law respond to changes in scientific knowledge and technical capacity? One window into this issue is Shu”T Noda B’Yehudah 2:YD:210, written by the renowned eighteenth-century posek Rabbi Yechezkel Landau of Prague. Rabbi Landau’s ruling demonstrates the power and necessity of halakhic creativity in response to such changes, and also some of its risks and perhaps inevitable pitfalls.

R. Landau’s son-in-law R. Leib Fischels reported a disagreement between two rabbis in London – henceforth the matir=permitter, and the oseir=forbidder – whether to allow doctors to autopsy a man who died after surgery to remove a bladder or kidney stone, in the hope of developing safer, less invasive surgery for future patients. The case appears to pit the the concern of nivul u’vizayon hameit (=marring and disgrace of the corpse/deceased) against the obligation to save lives, pikuach nefesh.

The matir cites two precedents in which apparent nivul hamet is halakhically permitted. 

First, Tanakh reports without disapproval that Yaakov, Yosef, and the kings of Israel were embalmed. While one might claim that embalming is for the honor of the dead, and is therefore not considered nivul, the matir argues that the autopsy in our case is parallel, because the dead will be honored by bringing healing to other patients.

Second, Shut HaRashba cited by RAMO YD363:2 permits children to fulfill their father’s wish to be buried with his ancestors by exhuming him and pouring lime over his body to expedite its decomposition. 

The oseir cites a ruling by R. Akiva recorded in Gemara Bava Batra 155a prohibiting an autopsy. The proposed aim of the autopsy was to determine whether or not the deceased had reached puberty at the time of death; if he had not, this would retroactively invalidate his sale of his father’s property shortly before death. 

At face value, the oseir’s case – nivul of a cadaver in order to ascertain biological details of the deceased’s death – seems very similar to our topic of medical autopsy. However, the matir responds that the cases are not parallel at all. Rabbi Akiva teaches us that one cannot do nivul for financial gain, but why would that mean that one cannot do nivul in order to save lives?!

R. Fischels agrees with this disproof. However, he contends that one can even go further, and prove the matir’s permission from the oseir’s source. It’s true that Rabbi Akiva forbids the heirs from autopsying the body – but the Talmud implies that the buyers of his property would be permitted to demand an autopsy!

R. Landau is quick to justify the oseir, however. He argues that autopsies in London likely require the permission of the family, and therefore, if one does not distinguish between autopsies for gain and autopsies for medical knowledge, the oseir’s proof would be valid. R. Landau makes clear that he offers this defense for the honor of the oseir rather than because he agrees with him, and he agrees with the matir’s original disproof. 

However, Rabbi Fischels claims that the matir has also not brought any proofs relevant to permitting nivul. Why? Because neither embalming nor pouring lime are properly defined as acts of nivul, even though they alter the corpse. Rather, embalming prevents nivul by preserving the body in its pre-decomposed state, and pouring lime prevents nivul by rapidly taking the body to its fully-decomposed, non-repulsive state – fleshless bones. Autopsies, by contrast, are actually nivul and must be justified by some competing value. 

R. Fischels here effectively distinguishes nivul of the body from kavod of the deceased person. We are left to consider how he would rule in a case where we are both being menavel the body, and mechabed the person.

R. Fischels claims that he does have a valid proof for permitting the autopsies. This proof is from Talmud Chullin 11b. The Talmud there seeks to prove that we can rely on probability in capital cases from the fact that we do not require murder victims to be autopsied, even though an autopsy might show that they were treifot (people with holes in vital organs that will kill them quickly), whom it is not a capital crime to kill. The Talmud responds that this cannot be a valid proof, as why would we rely on probability when autopsying was possible?! Rabbi Fischels argues that the Talmud clearly thinks that an autopsy would be justified to save the life of the accused murderer.

Rabbi Landau responds that this is backwards thinking. If we could not rely on probability, then nobody could be executed without autopsy. The autopsy therefore serves to enable the execution, not to prevent it!

Rabbi Landau concedes that the language of the Talmud leans toward Rabbi Fischels’ reading. וכי תימא משום איבוד נשמה דהאי ננוליה – were you to say that we should do nivul (to the victim) for the sake of (preventing) the loss of life (of the killer). How can this be explained?

R. Landau explains that the Torah mandates that halakhah always adopt the positions that minimize executions. This special concern for capital defendants means that autopsies would always be required in capital cases even if they are not permitted for the purpose of saving life in other circumstances. Therefore, R. Fischels cannot prove from here that medical autopsies are permitted. 

R. Landau then expresses his incredulity at the entire conversation. Why were Rabbi Fischels, the matir, and the oseir bringing evidence as to whether nivul particularly is permitted to save lives? It’s clear that even the possibility of pikuach nefesh (lifesaving) overrides all prohibitions that are not yeihareig v’al ya’avor (require one to die rather than transgress). Therefore, since nivul is plainly not yeihareig v’al ya’avor, medical autopsies should obviously be permitted?! 

R. Landau therefore contends that the real issue is whether halakhah considers the generation of new medical knowledge that can save lives to be “lifesaving.” He concludes that it is only considered lifesaving if one can point to a “sick person before us,” who may be saved by the new knowledge. Thus, the Talmud in Chullin permits autopsies to save the life of someone already convicted and liable for execution, and the Talmud in Yoma permits digging people out of construction debris on Shabbat. But if there are no patients in hand, the statistical likelihood that such patients exist elsewhere, or will eventually appear here, does not create a halakhic imperative of lifesaving. 

R. Landau argues that this distinction is pragmatically necessary, Otherwise, lifesaving would be used to allow all medical work on Shabbat, including crafting medical instruments. As well, autopsies would end up being performed for the most remote medical concerns, even general anatomical curiosity. In an act of reductio ad absurdum, R. Landau lists these outcomes and cries, “Heaven forfend that we permit this!”

To better understand why R. Landau felt compelled to draw the radical distinction of lefaneinu without bringing further proof, it is important to understand the communal issues facing the London at the time. When the she’eilah was asked, human bodies were being used more and more systematically for medical research; specifically, a surgeon from France had recently proved that he had used information gained from autopsies to develop a better treatment for bladder stones – the very same disease as in our question! The increased reliance on autopsies for medical education, together with the lack of refrigeration technology available and Christians’ religious reservations on signing off on autopsying their bodies, meant that schools were desperate for cadavers. Permitting autopsies for medical research in R. Landau’s time would have meant the end of traditional Jewish burial; it would have made redundant an ancient rite that had hitherto characterised Jewish communal life.

R. Landau thus offers a creative distinction that was consistent with his precedents but did not emerge from them. It is not clear whether he would have made this distinction without the practical pressures he faced.

The role of halakhic creativity in response to societal and technological changes is even more striking when we follow the sugya through to the formative years of the modern State of Israel. R. Yechiel Weinberg in Shu”T Sridei Eish 2:92 ruled for a rabbi in Manchester, England, that autopsies were generally forbidden, citing Rabbi Landau. However, he later wrote a letter (Writings 1:22) arguing forcefully that they must be permitted in Israel. He notes that developments since R. Landau’s time, such as the advent of telephones and radio, mean that we are more connected and the effect of research on patients is felt much more immediately. Therefore, all patients anywhere can be considered lefaneinu. As well, the newly-formed State of Israel simply needs medical schools, and therefore anatomy labs – outsourcing a country’s medical care would be ludicrous. Moreover, Israel would suffer international criticism if it had below-par medical care, the Israeli Rabbinate would be severely criticized if religious concerns lowered the quality of the country’s health care. 

The severe limit placed by the R. Landau on the permissibility of autopsies through his lefaneinu distinction forces R. Weinberg to push back with an equally innovative re-classification of the effects of medical research as lefaneinu

How much concern should poskim have for the transience of the societal conditions their teshuvot address? In hindsight, It was inevitable that R. Landau’s creative distinction would need to be replaced once the desperate need for cadavers receded, or as autopsies became a more essential part of medical practice generally. Perhaps poskim should find ways of building sunset provisions into their rulings, or other ways of allowing their successors greater leeway to “start from scratch” when situations changed in relevant ways. Perhaps that is not a formally legitimate move with regard to laws that are deoraita under Biblical authority. R. Landau’s creative ruling, and Rabbi Weinberg’s creative response, throws into relief both the power and shortfalls of using halakhic creativity in pesikah.

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Datan, Aviram, and Korach: Parallel or Intersecting?

This week’s alumni Dvar Torah is by Ben Kaplan

While there are certainly many positive effects of having learned the basic narrative of the Torah as children, there are some downsides as well. Often, we think we know the story the Torah is telling so well that we don’t pay attention, when a close reading of the p’sukim might tell us something unexpected.

The story of Korach is relatively well-known, even though it appears in the middle of Bamidbar. The narrative seems pretty simple. Korach, Datan, and Aviram lead an uprising against Moshe, are pitted against Aharon in a contest of offerings to God, and are then swallowed into the bowels of the Earth.

This version of the story is technically accurate, but it misses a key element of the text. Namely, there seem to be to two parallel stories that are told simultaneously, occasionally, but not consistently weaving together to form a single narrative.

In 16:1-3, Korach, Datan, and Aviram (and On ben Pelet) all approach Moshe with the famous accusation,

רַב לָכֶם

כִּי כָל הָעֵדָה כֻּלָּם קְדֹשִׁים

וּבְתוֹכָם יְקֹוָק

וּמַדּוּעַ תִּתְנַשְּׂאוּ עַל קְהַל יְקֹוָק

You have too much,

for the entire congregation of the Lord is holy

and has the Lord within them,

so why do you raise yourselves above the Lord’s congregation?

Moshe’s initial response is recorded in p’sukim 4-11 and seems to be directed solely toward Korach and his group. There is no explicit mention made of Datan or Aviram. One could argue that they are merely included in Korach’s group, but this explanation is challenged by p’sukim, 12-15, where Moshe sends a messenger specifically to Datan and Aviram, and the two refuse to answer his summons, instead sending back a scathing reply. In 16-20, Korach and his followers bring incense offerings at the Mishkan. Datan and Aviram are completely absent from this scene. P’sukim 21-24 have God telling Moshe to warn the people against coming to close to the משכן (potentially meaning the Mishkan or simply their places of dwelling) of Datan, Aviram, and Korach, while 25-30 Moshe warns them away only from the ohalim of Datan and Aviram, not mentioning Korach at all as he predicts that they will be swallowed by the Earth. When the prophesied event happens in 31-34, only Korach, not Datan or Aviram, is mentioned. Finally, pasuk 35 has the 250 men being burned by a fire of God.

What is one to make of this seemingly confused story? It is tempting to divide the story into two entirely separate occurrences, one rebellion of Korach and his followers and one rebellion of Datan, Aviram, and their followers. This approach is appealing since it allows us to make sense of the two separate punishments (swallowing by the Earth and burning) that appear in the story and also explains why Datan and Aviram as entirely absent from many scenes (mostly those involving the incense offerings) while Korach is missing from others (such as the harsh rejection of Moshe’s messenger). It would make sense that Korach and his followers alone participated in the incense offerings since Korach was a Levite. The punishment of burning would also be a fitting one for someone unqualified attempting to bring an unwanted incense offering before God, as is seen in the case of Nadav and Avihu. This would leave the more horrifying punishment of literally being swallowed by the Earth to Datan and Aviram, who instead of merely claiming all of the Jews holy and wishing to participate more fully in leadership, actively scorned and insulted Moshe, refusing to even meet with him.

However, separating the piece into two entirely separate narratives does not fit the p’sukim for a variety of reasons. Most obviously, there are instances where all three characters are mentioned together (e.g. 1 & 24). Furthermore, even p’sukim that seem to only describe one narrative often reference the other obliquely, such as when Datan and Aviram respond to Moshe’s message using the word המעט in pasuk 13, a clear reference to Moshe’s use of the word in pasuk 9, even though Moshe was seemingly not speaking to Datan and Aviram in that scene. Nonetheless, treating the story as a seamless whole is not totally satisfying as there do seem to be two distinct narrative threads in the story, even if they are impossible to fully untangle.

It could be suggested that the obfuscation of the two narratives is in fact a deliberate literary device which teaches an important lesson about Korach. When viewed separately, Korach clearly comes off as better than Datan and Aviram. Ibn Ezra commenting on B’midbar 26:11 says that the reason why Korach’s sons didn’t die while Datan’s and Aviram’s did was because the latter two were more evil than Korach. We also see Chazal vilifying Datan and Aviram by casting them as the villains in multiple stories in the Torah where their names are not explicitly mentioned. Korach by contrast, gets no such treatment.

The Kli Yakar (B’midbar 16:1) states that when seeking people to join his cause, Korach did not look for those who agreed with his principles. Rather he sought out מרי נפש, people who had any sort of grievance. Korach was the sort of ideologue who thought that his cause was so great that it justified allying himself with those who did not merely wish for a more active role in leadership, but felt that Egypt was a land “flowing with milk and honey” (16:14). The mishnah in Pirkei Avot (5:17) states that any machloket which is not for the sake of heaven will not be upheld. The quintessential example that the mishnah gives of such a machloket is that of Korach. Korach felt that his message was so important that he was willing to work with morally abhorrent people to get his way. Rather than this unholy alliance allowing his vision to come to fruition, it instead muddied his message. His מחלוקת is not upheld but is rather combined with the מחלוקת of Datan and Aviram until even the Torah itself makes no distinction between them. While this is not necessarily a call for ideological purity, it does send a clear message that even well-intentioned people can be brought down by allying themselves with evil men, justifying it as “for the greater good.”

 

Ben Kaplan (SBM 2017) currently lives in Jerusalem. When not writing divrei Torah, he spends most of his time working as a biomedical engineer.

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Should Our Understanding of G-d’s Purposes Affect Our Interpretation of His Words? Week One Summary of SBM 2019

by Dan Jutan, SBM Fellow

How should halakhah deoraita (carrying Biblical authority) be determined in new circumstances?  One possibility is that halakhah is a self-contained system, in which all legal mandates are derived by legal reasoning from legal precedents.  Another possibility is that the means mandated by halakhah are sometimes derived from moral, ethical, or pragmatic explanations of why the halakhah ought to be a certain way, or of why G-d would want halakhah to be a certain way.

BT Sanhedrin 21a:Talmud presents this issue as in complex dispute between Rabbi Yehudah and Rabbi Shimon.

/Mishnah/

He (the king) must not have many wives”—aside from eighteen.

Rabbi Yehudah says:

He can have many wives,

but only if they don’t lead him astray.

Rabbi Shimon says:

Even one—if she leads his heart astray,

he must not marry her.

If so, why does Scripture say don’t have many wives?!

Even (wives) like Avigayil

/Talmud/

Does our Mishnah mean to say that R. Yehuda is doresh taama dikra and R. Shimon is not?

But we heard the opposite, as a Mishnah elsewhere teaches:

A widow, whether poor or wealthy –

one may not take collateral from her,

as Scripture says

You may not take the garment of a widow for a pledge,

In the opinion of R. Yehudah.

Rabbi Shimon says:

From a rich widow—one may take collateral; from a poor widow – one may not take collateral;

and you are obligated to return it to her, and you’ll give her a bad name amongst her neighbors.

So evidently, Rabbi Yehuda is not doresh taama dikra and Rabbi Shimon is!?

Generally, Rabbi Yehudah is not doresh taama dikra,

but it’s different here, because the taama is explicit in the verse:

Why he must not have many wives? Because and his heart will not stray.

But Rabbi Shimon would say to you as follows:

Let’s see – generally we are doresh taama dikra. That being so, the Torah should just write

he must not have many wives and then be silent—I’d figure out the rationale and his heart will not stray. So why does Scripture write and his heart will not stray?

To teach that even one, if she leads his heart astray—he must not marry her.

Given that, what meaning does he must not have many retain?

Even (if they are) like Avigayil.

What precisely does doresh taama dikra mean? In the context of this sugya, it appears to describe a process of resolving an issue of Biblical law on the basis of the rationale for that law. Rabbi Shimon thus decides that the law against taking collateral from widows does not apply to rich widows because they would be much less likely to engage in regular and extended interactions with the lender.

However, the root verb drsh does no usually refer to practically applying an idea, but rather to exegetically extracting an idea from a verse.  An SBM Fellow suggested that it refers here to extracting something from an assumed rationale, to being doreshthe taama rather than the kra.

But what is a taama? The word can refer to either a rationale and a reason. There are numerous ways to inflect that distinction. One is that a reason explains why a law was originally legislated, the motive for the law, while a rationale explains why that law still has force today, the justification for the law.

This distinction recalls one made by Rabbi Yosef Dov Soloveitchik in Halakhic Mind.  The Rav argues that one cannot legitimately ask why G-d commanded a particular law, as one can never know G-d’s mind.  However, you can examine the effects of following G-d’s command. Thus, in contrast to Rambam, the Rav would not allow saying that G-d commanded us not to wear shaatnez because idolatrous priests wore shaatnez.  You could however investigate whether not wearing shaatnez increased our sense of distance from idolatrous practice.  You can’t say God that commanded Shabbos so that we would have a day of rest, but you can say that observing Shabbat yields the experience of a restful day.

Applying the Rav to our context, we can say that being doresh taama dikra means that one can or should resolve ambiguities or controversies about Biblical law in favor of the positions that will most likely yield the same result as the law has in the past.  But we should not make the historical-theological claim that this is the reason the law was commanded, and one could not challenge existing law, or develop radically new law, on the ground that the existing law does not fulfill its purpose.

By introducing the Rav’s distinction, we connected the issue of taama dikra to the ongoing discussion in Jewish tradition about the legitimacy and significance of taamei hamitzvot, rationales or reasons for commandments.  Is that discourse necessarily connected to the halakhic process dispute about being doresh taama dikra?  Minchat Chinukh (464) explicitly connects the discourses. He argues that engaging in taamei hamitzvot is an intrinsically hubristic enterprise – how can we know why G-d commanded something? – that can be justified only by the need to determine the halakhah, by being doresh taama dikra. We might also have thought that doresh taama dikra referred specifically to reasons or rationales derived by exegesis of Scripture – kra – but Minchat Chinukh cites examples that seem derived simply from reason or common sense, or what one SBM fellow called “svara.”

We saw that the Talmud itself asserts that there is a dispute between Rabbi Shimon and Rabbi Yehudah regarding whether/when we are darshinan taama dikra.  Minchat Chinukh implies that every one of the myriad instances in the Talmud of rabbis offering rationales for a Biblical law follows the position darshinan. or at least all the instances where those reasons or rationale are not exegetically grounded.  How do we rule?

Beit Yosef says that we rule darshinan, as seems indicated by Minchat Chinnukh.  Rambam, however, seems maddeningly inconsistent.  In various places in the Mishneh Torah he appears to rule like the positions darshinan, never darshinan, anddarshinan only on the basis of exegesis, respectively.

Lechem Mishna to Laws of Lenders and Borrowers 3:1 seeks to resolve these inconsistencies.  He sets up two wholly incompatible resolutions.  In one of these, Rambam rules darshinan, but interprets a Mishnah against the Talmud; in the other, he rules lo darshinan, but contends that Talmudic sugyot have implicitly conflicting understandings of Rabbi Yehuda’s position. Each resolution portrays Rambam’s rulings as motivated by mechanical rules of decision, such as “The law follows an anonymous Mishnah,” or “Talmudic discussions located as commentaries on the Mishnah they interpret take precedence over discussions of those Mishnah cited elsewhere.” Lechem Mishnah is forced to construct this complicated architecture to resolve only a few of the relevant cases in Rambam. It seemed clear that to resolve all the relevant cases by these means would require complexity to a degree that would greatly diminish credibility.

Is there a better way to resolve Rambam?  Rabbi Klapper presented his thesis in the following logical progression:

  1. No Tanna or Amora every explicitly espouses the positions darshinan taama dikra or lo darshinan.The Talmud assigns these positions to Rabbi Shimon and Rabbi Yehuda respectively.
  2. There seems to be no tradition behind these assignments.  Rather, the Talmud suggests that specific positions held by Rabbi Shimon and Rabbi Yehuda imply positions on the broad issues of darshinan.
  3. Without an explicit statement or a clear tradition, there is no way to prove from any specific halakhic position, or set of halakhic positions, that a specific authority held Io darshinan. For example, Lechem Mishnah notes that Rambam in the Mishneh Torah rules like the position lo darshinan as presented in an anonymous Mishnah, but in his Commentary on the Mishnah, Rambam provides a taam to explain that Mishnah!  Any ruling against someone else’s taam may reflect a rejection of their specific rationale, rather than a principled rejection of the relevance of all taams.  The simplest explanation of Rambam is that he rules darshinan in principle, but reserves the right to reject any specific taam that fails to convince him.
  4. Every halakha will eventually encounter new circumstances which present challenges that cannot be resolved mechanically on the basis of precedents or formal rules of authority. In such circumstances, there are three alternatives:
    1. treat every question arising from those circumstances as an unresolvable safek (doubt)
    2. grant one or more halakhic figures unaccountable halakhic authority
    3. resolve the situation by considering the taam behind the law in prior cases

Rabbi Klapper argued that treating whole areas of halakhah as unresolvable will make the unliveable, and that granting halakhic authority without accountability violates “not in Heaven” and the entire nature of the Halakhic process, and is practically dangerous as well.

Therefore, everyone at some point must be willing to doresh taama dikra.  In fact, there is no contrary position in the tradition. By assigning the positions darshinan to Rabbi Shimon and lo darshinan to Rabbi Yehudah, the Talmud meant only that Rabbi Shimon was much more enthusiastic about this legal strategy than Rabbi Yehudah was, not that Rabbi Yehudah would never use it.  It is a “soft” rather than a “hard” machloket.

Rabbi Klapper argued that his position is necessary if we wish to extend halakhah meaningfully into the rapidly developing technological future, such as the realm of genetic editing via CRISPR that is SBM’s specific topic this summer.  The alternative is that more and more areas of life will be walled off from Halakhah.

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Imagining Divine Empathy

by Rabbi Aryeh Klapper

Texts cannot defend themselves against interpreters, but interpreters can defend themselves against texts. For example, non-observant Jewish readers sometimes defend themselves against Rabbinic texts by creating distance, by adopting the least generous and most ethically off-putting interpretations possible. This prevents the texts from making claims on them.  Orthodox readers sometimes defend themselves by assimilating the text to practices and values they already agree with. This prevents the texts from challenging them.

These strategies are not illegitimate.  There is no way to read a text without preconceptions. The most we can do is to imagine ways to read with multiple, different, even contradictory preconceptions. People who believe in Torah properly seek to defend it by excluding meanings that we consider implausible, unethical, or even heretical. We can only ask each other to have imaginative and empathetic parameters of plausibility when considering interpretations.

One way a text can help us cultivate the necessary imagination, more-or-less safely, is by presenting perspectives that it clearly does not endorse. For example, the Torah often does not merely condemn its villains; it presents the self-justifications of idol-worshippers, or of libertines, or of those who resist the authority of Mosheh Rabbeinu. Some commentators read these like fantasy fiction, with the goal being to imagine sinners as alien beings having nothing in common with the interpreter. But others engage in imaginative empathy, with the goal being to present sinners as creatures very much like you and me who tragically succumbed to the wiles of our common yetzer hora, or fell prey to intellectual error. Some of the best of these are rabbinic dialogues in which the worst of killers make their decisions on the basis of sophisticated halakhic argument.

Bamidbar 14:13-19 presents a particularly rich opportunity to engage in imaginative empathy. The Torah presents Moshe’s presentation to G-d of what the Mitzriyim would say to the Canaanites – presumably convincing them –  if G-d destroyed the Jews.

Whose plausibility structure should be used? If we believe that Mosheh’s argument convinces G-d to call off our destruction, despite the theological baggage involved in such a claim, then the task is to construct a psychology of Mitzriyim and Canaanites that G-d would find plausible. We are required to consider what G-d would and would not believe about human reactions. Assuming that G-d’s beliefs, must be true even with regard to hypotheticals, our construction must fit our own beliefs about Mitzriyim and Canaanites as well.

The text presents Mosheh’s argument as follows:

ושמעו מצרים כי העלית בכחך את העם הזה מקרבו,

ואמרו אל יושב הארץ הזאת:

שמעו כי אתה ה’ בקרב העם הזה

אשר עין בעין נראה אתה ה’, ועננך עמד עלהם,

ובעמד ענן אתה הלך לפניהם יומם, ובעמוד אש לילה.

והמתה את העם הזה כאיש אחד, ואמרו הגוים אשר שמעו את שמעך לאמר:

מבלתי יכלת ה’ להביא את העם הזה אל הארץ אשר נשבע להם וישחטם במדבר.

ועתה – יגדל נא כח אד-ני, כאשר דברת לאמר:

But Egypt will hear that You have taken with Your power this nation from its core,
and they will tell the inhabitants of that land:

Certainly they have heard that you Hashem are at the core of this nation –

that You have appeared to them eye-to-eye, and Your cloud stands watch over them,

and that in a stand of cloud You go before them by day, and in a stand of fire by night.

So when you put to this nation to death as if it were one man,

the nations who have heard Your repute will say:

“It was out of Hashem’s inability to bring this nation to the land which He swore to give them,

that he slaughtered them in the desert.”

Now – let the power of Hashem enlarge, in accordance with what You said . . .

Mosheh appears to argue that if G-d destroyed the Jews suddenly, the Mitzriyim would say that He did so because He was unable to bring them to Canaan. The medieval French commentator R. Yosef Cara reasonably asks:

איך אפשר שיאמרו מצרים כן,

שהרי ראו כמה מכות וקריעת ים סוף?!

How is it possible that the Mitzriyim would say this,

when they had just seen many plagues and the splitting of the Reed Sea?!

Given that the Egyptians had just witnessed an extended display of awesome Divine might, how could G-d have believed that the Egyptians would think Him incapable of conquering Canaan?

R. Cara’s answer is that the Egyptians would have argued that G-d exhausted His powers by taking Israel out of Egypt. He supports this reading by noting that Mosheh’s subsequent exhortation for G-d to enlarge His power seems philosophically problematic, but now can mean that He should express his power yet more dramatically.  The power Mosheh is speaking of is power-in-the-world, not the power to bear with human beings despite their flaws.

Rav Cara’s reading however does not address what may be the most basic question. Why does G-d care what the Mitzriyim would say, and/or how the Canaanites would react?  We have to address not only the plausibility to G-d of Mosheh’s presentation of human psychology, but also the plausibility of the theopsychology, of G-d’s reaction to Moshe’s presentation.

Does R. Cara provides a plausible reconstruction of human psychology?  Is it reasonable to suppose that the Mitzriyim and Canaanites would, in the aftermath of the sudden destruction of Israel, have seen the Splitting of the Sea as exhausting G-d’s power rather than demonstrating its inexhaustibility? I think the answer is in part yes, and R. Cara does us a service by exposing this.

As both Yeshayah Leibowitz and Rav Dessler point out powerfully, displays of Divine might do not generate enduring belief. Isaac Breuer argued (I learned this from Rabbi Chanoch Waxman’s undergraduate article for Hamevaser) that what is miraculous about miracles is not their product, but rather our recognition of them as supernatural, since we instinctively assimilate all new data to models of comprehensible causality. Egypt would have been searching for a way to make G-d finite. Moreover, we have to admit that sometimes tremendous efforts lead directly to and immediately precede collapse. But the answer is also in part no. The instantaneous destruction of the entire Jewish people would itself have been a display awesome enough to put the lie to a claim of Divine exhaustion.

There really is no plausible way for G-d to be worried that His reputation for power to suffer as the result of His destruction of the Jews. Note that in Shemot 32:11-14 Mosheh apparently convinces G-d not to destroy the Jews via the at least equally implausible claim that the Mitzriyim would argue that He took the Jews out of Egypt because he hated them.) Moreover – why does G-d care so much about His reputation for power? If necessary, He could always do yet more wondrous miracles and restore his reputation, regardless of what became of the Jews.

But it seems to me that there is something that the other nations might have thought that would be legitimate grounds for Divine concern.  They might have thought that it was G-d’s inability to maintain a living relationship with a people that led to the destruction of the Jews. G-d wished to take the Jews to Canaan; He failed. Maybe that failure was inevitable, and will happen every time He tries.  This, I suggest, must be Mosheh Rabbeinu’s real argument, both here and in Shemot.

The question then becomes why Mosheh does not, and presumably cannot, make this argument explicitly.

The answer, I suggest, is that it proves too much.  Accepting that argument would mean that G-d could never destroy the Jews, ever, no matter how grave their wrongdoings.  His reputation is too bound up with their survival to allow Him free reign to punish them. K’b’yakhol – if it were possible to say such a thing – it seems that one arc of the Torah’s narrative is how G-d comes to terms with the ways in which our relationship with Him, as understood by the rest of humanity, limits the extent to which the Attribute of Justice can be expressed in this world relative to the Attribute of Mercy.

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Must Halakhah Be Spiritually Fair?

by Rabbi Aryeh Klapper

In the first month of the second year following the Exodus, G-d told Mosheh: “Bnei Yisroel must make the Pesach in its appointed time, on the fourteenth of this month, in the afternoon, you must make it, in its appointed time.”  (Bamidbar 9:2-3) Even one “in its appointed time” would have been redundant, since the date and time are separately specified – two seems extravagant. Mosheh then tells Bnei Yisroel to make the Pesach, and they make it at the specified time and date, with no mention of the “appointed time.” The discrepancy is resolved by a back story – a group of men protested the initial command as discriminatory, and G-d agreed to the point of providing them with a reasonable accommodation in the form of a makeup date, not the “appointed time.”

Who were these people, and why were they initially excluded? They describe themselves as “טמאים לנפש אדם,” ritually impure to a human spirit” (corpse).  Talmud Sukkah 25a provides three possible identifications.  They might have been the ones who carried Yosef’s coffin from Egypt; or who carried Nadav and Avihu’s bodies out of the Holy of Holies; or simply Jews who fulfilled the obligation to bury someone who died with no one specifically obligated to bury them (meit mitzvah).

RITVA (the medieval Spanish Rabbi Yom Tov ben Asevilli) points out that the self-report and the Talmudic identifications each raises a grave difficulty.

Regarding the self-report – the men admit their tamei meitness, and clearly understand this to be the ground for their exclusion. What then are they asking, and why isn’t the answer to their question obvious to Mosheh?

Regarding the Talmudic identifications – In a community of millions, one has to assume that many deaths happen each day, and therefore that some people will always be tamei meit.  So what difficulty requires resolution via a more specific identification?!

Rabbinic tradition provides a series of brilliant technical responses to the first question. The Talmud itself notes that Torah describes the excluded as unable to do the Pesach ביום ההוא, on that day – meaning that they would have been able to being it the next day.  Why, if tamei meitness lasts seven days?  Because the Pesach is slaughtered in the afternoon, but eaten at night.  The people asking would no longer be tamei meit when the time came for eating the Pesach.  Since the slaughtering of each Pesach is done by one person for the sake of a group, they contended that they could be part of such groups despite being tamei meit, and then participate in the eating at night.

Many later commentators note that the extra words במועדו are used to allow the Pesach to be brought when the community as a whole is tamei meit; the questioners here thought that this should also apply to individuals.

Some commentators root their answers in the specific identifications, e,g, perhaps Yosef’s coffin was designed to shield its bearers from tum’ah.  To take one spectacular example, Tzror HaMor (Rabbi Avraham ben R. Yaakov Sabe, Spanish expulsion) notes that the people describe themselves as tmei’im l’nefesh Adam, rather than mentioning death.  The deaths of Nadav and Avihu, he suggests, were not the result of sin but rather because they were so close to G-d that their deaths reversed the sin of Adam, and thereby enabled the exiled Divine Presence to return to Earth (in the Holy of Holies). Their pallbearers therefore contended that tum’ah related to this sort of death should not prevent them from sacrificing.  On the contrary – association with the deaths that brought the Divine Fire to burn on the altar should be a qualification!  Tzror HaMor’s reading is also supported by the odd locution that the people “draw near” to Mosheh and Aharon in order to ask their question.  The Hebrew is ויקרבו, which is the verb for sacrifice and also recalls G-d telling Moseh that the deaths of Nadav and Avihu were a fulfillment of בקרבי אקדש.

The problem with purely technical explanations of the question is that they don’t explain why Mosheh needs to refer the question to G-d, or why G-d responds with a make-up date rather than with an explanation for the exclusion.

Or HaChayyim does a better job of matching the question with G-d’s answer.

צריך לדעת טענת האנשים במאמר למה נגרע

הלא טעמם בפיהם יענו אנחנו טמאים,

ומה מבקשים ליתן להם תורה חדשה?!

ואולי כי לצד שנטמאו ברשותו יתברך,

בין למאן דאמר טמאי מת מצוה בין למאן דאמר נושאי ארונו של יוסף,

חשבו כי ידין ה’ אותם כטהורים

We have to understand the contention of the people when they said “Why should we be subtracted?” –

Isn’t the reason in their own mouths, when they said “we are temeiim?!”

Perhaps it was since they had become tamei with His permission,

whether one follows the position identifying them as tamei via a meit mitzvah, or as Yosef’s coffinbearers,

they thought that G-d would judge them as if they were tehorim.

Or HaChayyim subtly shifts the framework.  Technical explanations lead at most to doubt – maybe we should not be excluded.  Lamah nigora, why should we be subtracted, has a much more aggressive valence. It establishes a presumption that they should not be excluded. Moreover, Or HaChayyim sees their appeal as not to the law, but rather to G-d directly. Fundamentally, they claim that it would be unfair for Him to exclude them from this mitzvah.

G-d’s answer fits well this way. A makeup date leaves the law as-is while resolving the fairness issue. But Or Hachayyim’s approach requires us to insert facts and arguments into the question that cannot be derived from the text, which states their tamei meitcondition generically.

My own perhaps original suggestion is as follows. It is theoretically possible to bury someone without becoming tamei.  Kohanim, however, are required to become tamei to their dead relatives. Since the Pesach date was announced two weeks in advance, perhaps everyone other than kohanim took technical measures to bury without tum’ah. The only deaths in the one small family of kohanim that month were of course those of Nadav and Avihu, and therefore their buriers were the only tamei meit people among Bnei Yisroel when the time for the Pesach arrived. (This assumes that Mishael and Eltzafan were obligated to become tamei even though they themselves were not kohanim, an issue beyond our scope here.)

Alternatively, perhaps everyone was avoiding participation in burials lest they miss the Pesach. This in effect made every Jew who died a meit mitzvah, and so some people volunteered to be the chevra Kadisha for those two weeks. The question these volunteers asked was whether the exclusion applied to them even though they had become tamei in the process of fulfilling a communal obligation.

This question was both technical and moral.  There is nothing about the law as formulated up to now that allows an exception. But the law also never explicitly rejected this exception.  In this case, the law yields an unfair result without the exception, and that shifts the burden of proof.

Talmud Sukkah 25a learns from here that ha’osek b’mitzvah patur min hamitzvah, that one who is engaged in the performance of one mitzvah, such as burial, is exempt from other mitzvot (such as the Pesach; this means that they can also engage in actions that will make them unable to perform the Pesach a week later.)  This principle had not been stated previously. The volunteers therefore assume that they are still obligated to bring the Pesach, and perhaps even that they will be punished with excision for failing to bring it, even though Halakhah forbids them to bring it, and their inability to bring it results from their fulfillment of a halakhic obligation! This seems doubly unfair to them.

Mosheh Rabbeinu might have responded by teaching the ha’osek principle – no, you will not be punished, because you are exempt. But he senses that this will not satisfy them; it removes the punishment, but not the fundamental unfairness of being excluded from one religious activity because they had volunteered on behalf of the community to perform another.  So he refers them to G-d.  G-d acknowledges that exempting them is insufficient, and so He provides the makeup date.

A makeup date has its own issues.  As Chatam Sofer points out, there is still a vast experiential difference between doing the Pesach with “all Israel” and doing it with a small group.  Moreover, what happens if someone has an equally valid reason for missing the makeup?  The Torah does not provide for a second make-up.

In other words, halakhah is a part of human life, and therefore can never be perfectly fair.  But this does not mean that unfairness is not grounds for complaint.  Perhaps complaints that ask for absolutely clear Halakhah to change are excluded.  But where there is ambiguity or undevelopment, challenges that seek to reverse presumptions are welcome.

However, we do not have Mosheh Rabbeinu’s option of referring such challenges to G-d, immediate reply requested. It matters a great deal whether we decide that this justifies us in giving purely technical answers, because only G-d can respond morally, or rather that it obligates us to respond morally, as G-d would if the Torah were still in the possession of Heaven.

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The Kedushah of the Nazir

This week’s alumni Dvar Torah is by Shoshana Snow

Bamidbar 6:6 describes a nazir as kadosh: “All the days of his nezirut he is kodesh to Hashem.” Rashi (Vayikra 19:2) defines kadosh as separate, specifically from inappropriate sexual behavior: “Be separated from arayot and from aveirah, as wherever you find a fence regarding ervah, there you find kedushah.

The Ramban however, finds this explanation unlikely because the Torah has just finished listing all the prohibited sexual relationships. Rather, Ramban believes that this commandment prohibits being a “naval b’rshut hatorah,” literally one who is disgraceful or disgusting with the permission of the Torah. He posits that it is possible for one to fulfil all 613 commandments while leading a disgraceful life that is not in line with Torah values. Ramban cites eating and sex as permitted activities that can easily become self-indulgent.  

ולפי דעתי אין הפרישות הזו לפרוש מן העריות כדברי הרב,

אבל הפרישות היא המוזכרת בכל מקום בתלמוד, שבעליה נקראים ‘פרושים’,

והענין – כי התורה הזהירה בעריות ובמאכלים האסורים, והתירה הביאה איש באשתו ואכילת הבשר והיין, א”כ ימצא בעל התאוה מקום להיות בסובאי יין בזוללי בשר למו, וידבר כרצונו בכל הנבלות, שלא הוזכר איסור זה בתורה, והנה יהיה נבל ברשות התורה! לפיכך בא הכתוב, אחרי שפרט האיסורים שאסר אותם לגמרי, וצוה בדבר כללי, שנהיה פרושים מן המותרות.

According to the Ramban then, the Nazir is kadosh because he separates from even permitted physical pleasures.

Ramban’s understanding of kedushah and its relationship to nezirus is further developed through his commentary in Parshat Naso. The Ramban explains that the reason a Nazir brings a korban chatat at the completion of his nezirus is because the nazir is leaving his spiritual life and returning to an impure materialistic life (6:14)

וכדכתיב “כל ימי נזרו קדוש הוא לה'”, והנה הוא צריך כפרה בשובו להטמא בתאוות העולם

The Ramban firmly argues that physical pleasure leads to self-indulgence and takes a person farther away from God.

The Rambam however, has a different perspective on nezirus and kedusha. In the fourth perek of Shemoneh Perakim (4:9), the Rambam explains that a person should partake in physical pleasure, albeit moderately. In general, the Rambam believes that one should work to be moderate in all of her behaviors. If one has an extreme behavior such as greed, he should strive towards the opposite extreme, in this case, being immensely charitable, in order to find a middle ground between the two extreme behaviors. It is in this light that the Rambam understands the purpose of the nazir. Through becoming a nazir and developing extreme behaviors of abstinence, one can hopefully become a more moderate person, and temper behaviors such as greed and gluttony. The Rambam therefore believes that the purpose of the chatat is to atone for the sin of asceticism. He argues that asceticism is not an inherent value of the Torah, but rather was necessary in this instance because the person had to combat improper behaviors. The Rambam frowns upon asceticism, and believes that the mitzvot are there to ensure that we remain disciplined and lead moderate lives that are not controlled by our desires.

We are then left to answer two questions. Is nezirus honorable or a last resort? And more importantly, what role does physical pleasure play in our relationship with God and mitzvot? By taking a simple look at the pesukim and the amount of time the Torah dedicates to Nazir it does not seem that this a mitzvah that the Torah looks down upon. Nevertheless, the mitzvah of nazir is not obligatory and therefore is clearly not expected of all people. Referring back to kdoshim tihiyu, the Haemek Davar explains that he agrees with the Ramban about the importance of separation from even permissible things. However, the Netziv includes a caveat that Ramban did not include, where he stated that the pasuk continues, אל כל עדת בני ישראל to highlight that each person’s values and boundaries will be different. Even though everyone should be striving towards separating from physical pleasures, it is up to each person to define her own boundaries and figure out how to incorporate these values in her own life. Relating this back to nezirus, perhaps we do not all need to rush and become Nezirim, but take the messages of nezirus seriously nonetheless. In line with this idea, the ohr hachayim (6:2) identifies two different kinds of nezirim, one who is motivated by a desire to resist sin, and one who becomes a Nazir for less noble purposes, highlighting how while for some nezirus is a way to better serve God, for others this does not end up being the case. Ultimately, the choice to become a Nazir was up to an individual. For some commentaries it is a highly righteous choice, and for others it is less positive, but it is clear that the Torah wants us to think critically about our relationship with physical pleasures and materialism. It is a theme that comes up in Nazir, as well as other places, and it is a critical component of serving God properly. One must stay focused on her path of torah and mitzvot, and the Torah brings this point home through the discussion of Nazir.
Shoshana Snow (WBM ’19) is a rising junior at Queens College, studying neuroscience.

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The Little Prince and His Rose Yeshiva

by Rabbi Aryeh Klapper

“An aspiring maggid shiur need not know every source that everyone else knows. What matter is knowing one hundred sources that no one else knows.” A friend’s rebbe told me this years ago to help me overcome feeling inadequate for my lacking bekiut. To some extent he succeeded, because in principle he was right.  The great shiurim of the past emerged from the capacity to notice things that other people hadn’t, not from comprehensively renoticing everything they had.

This approach carries with it a temptation to intellectual miserliness. Every time you teach one of your hundred sources, after all, if you’re any kind of effective pedagogue, other people learn them! Your students will talk to other teacher’s students, or become teachers themselves, and pretty soon it will just be one of the things that every maggid shiur knows.  

The proper solution to this dilemma, of course, is to keep learning, so that your supply of unique sources refills faster than it is depleted. But the more shiurim you give, the harder that gets.

All this was back in the days before the Bar Ilan Responsa Project, let alone Otzar HaChokhmah, Hebrew Books, Al Hatorah, or Sefaria.  The database revolution has democratized both sides of the equation. On the one hand, bekiut for the purposes of giving a shiur can be easily obtained by tracing a chain of citations from the Talmud, or by working backward from an article by Rabbi Bleich, a responsum of Rav Ovadiah z”l, or an entry in the Encyclopedia Talmudit (if they’ve gotten up to your letter), et al. On the other hand, just about every source in history has been indexed to standard sources, so that anyone inputting the right search string, or reading the standard anthologies, will likely meet all that was once considered unusual.

Preparing for this devar Torah, I had what you might call a “The Little Prince and His Rose” experience.  I followed an interpretive thread on the parshah and realized that it gave me the chance to share with you one of my favorite esoteric (so I thought) sources. But as I no longer recalled the title of the book where had seen it quoted years ago, I typed the key phrase into Bar Ilan in the hope that it might be tagged. It turned out that the idea had come up repeatedly in the past, and of course was referenced in the Daf Al Daf anthology.  My source was no longer special at all. “I thought that I was rich, with a flower that was unique in all the world; and all I had was a common rose.”

The fox comes along and teaches the little prince that “It is the time you have wasted for your rose that makes your rose so important.  You are responsible, forever, for what you have tamed. You are responsible for your rose . . .” Talmud Torah is not a waste of time. But it may be that the function of a successful Torah teacher now is to present the sources he or she loves in a way that makes students and readers want to develop their own special relationship with them, so that there will be always be someone to make sure they are properly understood and have their proper place in a tradition that is now so accessible across intellectual and spiritual communities, in such breadth that, like multiculturalism, it begins by celebrating diversity and ends in homogenization.

So here we go.  Bamidbar 6:14 teaches that a one who takes an oath of nezirut brings a sin-offering = chatat at the conclusion of his period of nezirut.  The obvious question is: Why a sin offering, which is brought in the case of accidental sin? In what way have they sinned, and if they have sinned, in what way was it accidental?

The simple answer is that the Torah is talking about the special case in which the nazir had violated his oath by accidentally becoming tamei meit = acquiring corpse-impurity. But this seems difficult to fit into the verses, which seem to say that every nazir brings such a sacrifice.

The Talmuds accordingly cite several Tannaim as holding that every nazir sins per se.  What is the sin? One possibility is that it is arrogance, yohara. The Nazir’s oath demonstrates a belief that he or she is holier than everyone else and so requires additional religious restrictions, what Rabbi Tzvi Hersh Weinreb refers to as mistaking sanctimony for sanctity. This seems to be the reason that Shimon the Tzaddik refused to eat from any Nazirite’s sacrifice (except for that of one young shepherd whose oath was taken so as to force himself to shave the hair which tempted him to narcissism).

A second position, attributed to Rabbi Elazar haKappar, holds that the sin is unnecessary teetotaling, causing one’s body suffering by depriving it of the pleasures of alcohol. This position was taken to an extreme by Rabbi Shlomo Yosef Zevin in his tour de force essay “Mishpat Shylock,” in which he argued that since our bodies belong to G-d, we have no authority to cause them any suffering or deprive them of any pleasure.

Rabbi Zevins’ position is obviously unsustainable in Jewish tradition, as noted in Rabbi Shaul Yisraeli’s rejoinder, and easily leads to absurd conclusions such as the obligation to eat dessert if one has a sweet tooth, and worse. It rests on the false assumption that ownership is absolute, so that any limits on our rights to our bodies demonstrates that we are not owners.  But Halakhah, and most legal systems, limit the rights of property owners significantly, and the prohibition of bal tashchit applies to all our possessions. We may own our bodies as much as we own anything.

Nevertheless, Rabbi Elazar haKappar’s position is given halakhic weight, and is among the sources the Talmud cites for a prohibition against self-wounding (although it seems more likely an aggadic derivative thereof).  But in what sense then is the sin of the nazir accidental?  

A third possibility leads us to my rose.  A beraita on Nedarim 10a reads:

רבי יהודה אומר:

חסידים הראשונים היו מתאוין להביא קרבן חטאת,

לפי שאין הקדוש ברוך הוא מביא תקלה על ידיהם,

מה היו עושין?

עומדין ומתנדבין נזירות למקום,

כדי שיתחייב קרבן חטאת למקום;

Rabbi Yehudah says:

The First Pietists were desirous of bringing a sin-offering

because the Holy Blessed One never causes them to sin accidentally.

What would they do?

They would rise and voluntarily swear nezirut to the Omnipresent,

so as to be obligated to bring a sin-offering to the Omnipresent.

According to Rabbi Yehudah, the sin may be the same self-denial as Rabbi El’azar HaKappar, or more likely the whole phenomenon of voluntarily taking an oath and thereby risking a profanation of G-d’s Name. But the advantage of his position is that it explains why the sin is considered accidental.  The oath is taken deliberately, but the intent is to fulfill a command of G-d that would otherwise be inaccessible to them. They are sinning for the sake of Heaven.

But are they sinning at all, if that is their motive?  And if they are, does G-d accept their sin-offering?

Mishnah Yoma 8:9 seems directly on point.  

האומר “אחטא ואשוב, אחטא ואשוב” – אין מספיקין בידו לעשות תשובה.

One who says “I will sin and repent, I will sin and repent” – he is not enabled to perform repentance.

Why should he then be enabled to atone via a sin-offering?

Perhaps because the Mishnah only states its ruling about someone who plans to sin twice – but sinning once, in order to have the experience of repentance, is not disapproved of.  After all, it doesn’t seem fair to deprive the perfectly righteous of this experience, when the dominant opinion seems to be that “In the place where the masters of repentance stand, the perfectly righteous are unable to stand”!?

What emerges is a very powerful legitimation of spiritual ambition, alongside a recognition that such ambition will always be in profound tension with law in general and halakhah specifically.  Because of course this ambition is profoundly dangerous and antinomian. One commentator suggests that this was the argument that Potiphar’s wife made to Yosef HaTzaddik: how can you achieve your potential if you never do anything that generates the obligation to repent? Yosef’s response is that interpersonal obligations cannot be sacrificed in such schemes – the sin to G-d he could bear, but not the great wrong to his master.  

This, I suggest, is the key to the law of the nazir.  It gives an outlet for supererogatory ambition, for commoner Israelites to be quasi-High Priests, but in a way that gives the ambitious no basis for power over others; they have only the restrictions of the High Priest, not his rights or obligations.  The process ends with a forced formal admission that this ambition is in some sense sinful. Absent that concession, they would be Icarus, flying too near the sun so that their wings melt and they drown. Or perhaps in Jewish terms, they would be Nadav and Avihu.    

 

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