Tag Archives: Halakhah

How not to eat Matzah

Two wrongs don’t make a right, but two Wrights make an airplane, two rights make a lawsuit, and sometimes – two rights make a wrong.  Let me explain. 

Not all chumrot (stringencies that go beyond the basic legal requirement) go well together, even if separately they are praiseworthy. 

My usual illustration of this has been that there is a chumra that one should fulfill the mitzvah of eating matzah by putting a full olive-volume of matzah in one’s mouth simultaneously and swallowing (some suggest chewing first).  There are also chumrot as to how much matzah constitutes an olive-volume, depending on the size of olives and how finely one grinds the matzah to measure it.  Combining these chumras requires one to put a huge quantity of matzah in one’s mouth and try to swallow it in one shot, and not surprisingly, every year the newspapers report a number of emergency room visits by people who choked on the mitzvah.

This safety concern is heightened now that my friend Professor Chaim Saiman sent me a link to a Yeshiva World article that goes this combination one better.  The author, Rabbi Yair Hoffman, contends that each Jew should try to fulfill the mitzvah by putting two olive-volumes of matzah in their mouth and chewing.

Now Rabbi Hoffman’s article has a marvelously honest and revealing prologue in which he acknowledges that his proposal will seem alien to just about all lay Jews, no matter how meticulously observant, and that they would be correct in assuming that it was not practiced by their parents. 

“What?  I never heard of that!”

“I’m sorry, but I do not know anyone who eats matzah like that.  It can’t be true”.

“My parents would have told me if this was true.  I don’t care if you say it is in the Shulchan Aruch.  This is just not done.  It can’t be that tens of thousands of people are doing it wrong.”

Here is how he justifies it nonetheless: 

Let us remember that for centuries, Jews have tried to fulfill mitzvos in the most ideal manner possible.  Often what this means is to fulfill the mitzvah in a manner that is consistent with the views of as many of the rishonim as possible.  Some people who are not accustomed to this notion will find such dedication extreme.  Others, however, will realize that dedication to mitzvos and Torah observance is a manifestation of ahavas Hashem, the love we have toward G-d”.

Let us concede that sometimes “the most ideal manner possible” to fulfill a mitzvah is to engage in rishon-position-maximization (the parameters of when deserve full discussion, but that is not my purpose here).  Surely there are other values as well, though, both general and matzah-specific, and relating to both the letter and spirit of the law, such as hiddur mitzvah (making commandments aesthetically pleasing), simchat mitzvah (joy in fulfilling commandments), oneg yom tov (making the holiday pleasurable), akhilah b’teiavon (eating matzah with appetite), avoiding akhilah gasah (gross consumption), and last but not least, avoiding potentially fatal behaviors.

In other words, there are very good reasons to oppose Rabbi Hoffman’s outcomes even if one concedes the truth of his specific halakhic analysis of matzah.  Rabbi Hoffman simply dismisses popular practice (minhag) here on the ground that it strays from the Shulchan Arukh – he grants mimetic culture no power at all against books.  But perhaps here the mimetic tradition has the authority of near-fatal experience, as when Rabbi Zeira refused to again eat a Purim meal with Rabbah the year after Rabbah had violently killed him at such a meal (albeit resurrecting him through prayer the next day).

But what about the Shulchan Arukh itself?

I think there are three good reasons not to follow Rabbi Hoffman’s understanding here.

1)  Shulchan Arukh may have been using a much smaller olive-volume.  In other word, when he proposed his position, it was not even potentially dangerous.

2)  Shulchan Arukh was referring to soft pita-like matza rather than the hard crackers with which Ashkenazim make do.  Again, when he proposed his position, it was not dangerous.

Reasons one and two are valid separately but are also mutually reinforcing justifications for the contemporary public failure to heed the Shulchan Arukh on this matter.

3) Shulchan Arukh never said any such thing.

Here is the language of the Shulchan Arukh OC 475:1

יטול ידיו ויברך על נטילת ידים,

ויקח המצות כסדר שהניחם,

הפרוסה בין שתי השלימות,

ויאחזם בידו ויברך המוציא ועל אכילת מצה,

ואחר כך יבצע מהשלימה העליונה ומהפרוסה,

משתיהן ביחד,

ויטבלם במלח,

ויאכלם בהסיבה ביחד, כזית מכל אחד,

ואם אינו יכול לאכול כשני זיתים ביחד, יאכל של המוציא תחלה ואחר כך של אכילת מצה,

He must wash his hands and make the blessing “regarding washing the hands”,

then he picks up the matzot in the same order that he left them,

the broken one between the two whole ones,

and he grasps them in his hand and blesses hamotzi and “regarding the eating of matzah”,

and afterward he cuts a piece from the upper whole one and from the broken one, from the two of them together, and dips them in salt,

and he must eat them reclining, together, an olive-volume from each one. 

But if he cannot eat two olive-sizes together, he eats the one from hamotzi first and afterward al akhilat matzah.

Rabbi Hoffman, following some acharonim, understands this as follows:

If one reads the Shulchan Aruch carefully, the indication is that both kezeisim should also actually be swallowed together. However, both the Magen Avraham and the Mishnah Berurah (475:9) write that it is only necessary to have them in the mouth together, chew them, and separate them in the mouth, but it is not necessary to swallow them together—one after the other will suffice.

If it is not possible to put two kezeisim of matzah in the mouth simultaneously, then one should take a kezayis from the whole matzah for the berachah of HaMotzi and, after chewing it, swallow it in its entirety. Afterward, he should take a kezayis from the broken piece, chew it well, and swallow that one in its entirety.

I contend, however, that a careful reading of Shulchan Arukh reveals no trace ever of an obligation to put any olive-volume of anything in the mouth at one time.  Rather, to “eat an olive-volume” of something always means to chew it deliberately, bite by bite, so long as one finishes it bikhdei akhilat pras, in the time an ordinary person eats 3-4 egg-volumes (this measurement has of course been downsized by its own chumras, although it may be that the chumra of necessity cancel each other out mathematically, i.e. the time must increase if the volume does).  To eat two olive-volumes together is to eat them both within that time-period, and Shulchan Arukh reasonably notes that many people will not be able to do this (let alone swallow them simultaneously).  He therefore allows them to be eaten in consecutive time periods, so long as an akhilat pras period does not elapse in which he is not eating matzah.  (Even Mishnah Berurah concedes that this is sufficient bediavad – I simply contend that there is no evidence that it is not lekhatchilah, and Shulchan Arukh’s language offers no basis for a lekhatchilah/bediavad distinction of this sort.)  The requirement that pieces of both matzot be in the mouth together immediately after the blessings refers to an initial bite of indeterminate quantity. 

The broader point is that practical texts are best read in light of lived experience, and reading them without any physical or cultural context leads to error, and ruling in accordance with such readings can lead to dangerous error. 

Now to be fair, the position that the mitzvah of matzah requires swallowing the whole olive-volume simultaneously is cited by Darkei Mosheh from Terumat haDeshen 139 (Darkei Mosheh seems to claim that Beit Yosef also cited this position from Tosafot, but I have not been able to find a relevant reference.)  Terumat HaDeshen in turn cites as his precedent Mordekhai to Pesachim 116a.

However, here too I suggest humbly that an error has crept in.  Terumat haDeshen notes that Mordekhai understands the Hillel sandwich as involving an olive-volume each of matzah, maror, and charoset.  Mordekhai then asks:  How can the throat hold all this?  He responds that it can once the food has been chewed up.  Terumat haDeshen reasonably concludes that Mordekhai must require the entire sandwich to be swallowed at once, and presumes that the same applies to the independent mitzvot of matzah and maror.

My contention, however, is that Mordekhai was responding specifically to the language that Hillel was “korkhan bevat echat v’okhlan”, wrapping them at one time and eating them.  The language at one time suggested to him that Hillel ate his sandwich in this fashion, but Mordekhai had no intention of suggesting that this should be required of the other mitzvot.  Indeed, it is possible that Mordekhai understood the gemara to mean that Hillel’s capacity to eat that much at one time was unusual.  As the Talmud there points out, Hillel’s sandwich was not obligatory even when the Temple was standing.

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“NO BEERS BEFORE BLOGGING!”; HALAKHIC DEMOCRATIZATION AND ITS DISCONTENTS

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Vayikra 10:8-11 juxtaposes a prohibition against kohanim entering the Sanctuary after drinking alcohol with a list of types of legal decisions.  The midrash halakhah reasonably concludes that making such decisions is also forbidden to anyone who has drunk alcohol. 

This conclusion is challenged in two ways.  On Eruvin 64a, Rav Nachman asserts that he achieves mental clarity only after drinking beer, while a beraita on Keritut 13b insists that some forms of Torah study must be permitted even after drinking.  I have difficulty relating to Rav Nachman’s objection (although I’m very glad this prohibition has not been Rabbinically extended to caffeine), but I can see why a culture in which alcoholic liquids are standard beverages would insist on the latter.

Which forms of Torah study are permitted?  The printed text, which seems also to have been that of Rashi, records two positions.  The first anonymous position (missing in several manuscripts) is that Mishnah is permitted, while Rabbi Yose bar Yehudah says that Talmud (other versions: gemara) is permitted.  The common denominator is apparently an attempt to distinguish forms of Torah study that generate hora’ah, halakhic rulings, from those that don’t.

Keritut 13b cites Rav as ruling like R. Yose bar Yehudah.  But, the Talmud objects, Rav himself refused to teach publicly after his Yom Tov meal, owing to alcohol consumption?  Why should he not simply have taught Talmud, without issuing halakhic rulings?  The final answer is

כל היכא דיתיב רב לא סגי ליה בלא הוראה

Wherever Rav sat, it would be insufficient without hora’ah.

Rashi explains

דכ”ע בעו מיניה.

Because everyone asks questions of him.

Rav therefore would not teach publicly after his Yom Tov meal, but he would be engaged in Talmud on his own

Maimonides, however, explains Rav’s exceptionality as follows in Laws of Entrance to the Temple 1:4:

ומותר לשכור ללמד תורה

ואפי’ הלכות ומדרשות

והוא שלא יורה,

ואם היה חכם קבוע להוראה לא ילמד

שלימודו הוראה היא.

Is is permitted for someone who is drunk to teach Torah

even laws and legal interpretations of Scripture

so long as he does not issue halakhic rulings,

but if he was a sage “established for legal ruling” he must not teach

because his learning is legal ruling.

Arukh HaShulchan YD 242 suggests that Rashi and Rambam differ only about the stature of the sage who is forbidden to teach: for Rambam it refers to anyone who is recognized as a decisor, while for Rashi it refers only to

אדם גדול שרבים שואלים אצלו שאלות ואין ביכולתו להמלט מזה

A great man whom many ask questions to and is unable to escape from this.

Kessef Mishnah, however, hints at a more fundamental disagreement 

ודברי רבינו מבוארים בפירוש’

ורש”י פירש בענין אחר: 

I confess that I cannot confidently translate what he says about Rambam (first line above), but he is clear that

Rashi explained it in a different manner, 

which I think refers to a more fundamental disagreement than the one presented by Arukh HaShulchan.

My suggestion is that Kessef Mishnah understands Rambam as forbidding all public teaching of Torah by all recognized decisors because their words are automatically taken as guides for practice, rather than as intellectual frameworks for discussion.  Recognized decisors lose the capacity to speculate publicly.  Here Kessef Mishnah anticipated the age of Twitter.

I want to make a further suggestion.  Rambam’s sociological reality drew a hard-and-fast distinction between recognized decisors and others.  In our world, however – for good or for ill – many people see the intellectual plausibility of an argument as sufficient to make it a guide for practice, regardless of the stature of the person making it.  This means that every speculation in Torah offered publicly by anyone should be subject to this halakhah, which we can frame epigrammatically as the “No beer before blogging!” rule.

A deeper point is that the current democratization of halakhic authority in some Jewish communities – leaving aside the questions of how far it ought extend, and whether it is likely to survive – must at the least be accompanied by a concomitant acceptance of responsibility.  One component of this is that everyone making a halakhic suggestion must think about what would happen not only if everyone adopted it, but also about what would happen if some people would adopt it while others would as a result see the adopters as beyond the halakhic pale.   

We must also realize that the combination of completely eliminating private Torah conversational space with the complete democratization of Torah authority may have the ironic effect of shutting down all capacity for serious halakhic deliberation (as opposed to polemical debate), and in the end generate and enable an effective authoritarian backlash. 

Very likely this is already happening.

 

Shabbat shalom!

Aryeh Klapper

 

 

 

 

 

 

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Retrospectively invalidating kiddushin

 

Last week we discussed various proposed methods for allowing a couple to deliberately live together in a formal and religiously recognized relationship without necessitating a get should they separate.  I argued that such methods would generally be ineffective and even counterproductive. 

That discussion was almost entirely lekhatchilah (beforehand), however.  Faced by a modern agunah situation (and often in cases of mamzerut as well), any beit din will look to see if bediavad (after the fact) it is possible to declare that the relationship never constituted kiddushin, and therefore no get is necessary.  (This technique must be sharply distinguished from afk’inhu, or annulment, which may involve retroactively causing the relationship to never have constituted kiddushin.  That will be discussed some weeks hence).  One can accomplish this inter alia by questioning

A)     whether the parties intended to enact kiddushin

B)      whether the parties entered into the relationship willingly

C)      whether the parties entered into the relationship adequately informed about each other

D)     whether the object of value (ring) belonged to the groom before being transferred to the bride

E)      whether the bride acquired something of value without giving equal value for it other than agreement to marry

F)      whether the bride and groom understood that the transfer of the object of value effected marriage

G)     whether the ceremony took place in the presence of valid witnesses.

In this post we’ll discuss A).

Here we need to distinguish two kinds of cases:  those in which no attempt was made to conform to the halakhic norms of kiddushin, and those in which such an attempt was made.

The most common case of the first kind is where the couple had a civil rather than a religious ceremony.

It might be thought obvious that in such cases no get is necessary.  However, halakhic marriage can be effected via sexual relations as well as through ceremony, and the Talmud in various places established the principle ein adam oseh beilato beilat znut = “a man does not make his sexual act one of promiscuity”.  Now this obviously is not a claim that all male sexual acts are intended to accomplish marriage.  Rather, it is a claim that in a marital context, a man will stipulate that he has whatever intentions are necessary to make his sexual acts marital.  The halakhic tradition has sometimes taken this as a presumption that in a committed monogamous relationship, the first sexual act was intended to effect kiddushin.  The great 20th century halakhic decisor Rabbi Yosef Eliyahu Henkin famously held this about couples who publicly identified as husband and wife in the presence of a Jewish community.  Rabbi Moshe Feinstein famously disagreed, and there is testimony that Rav Henkin did not hold to his position in cases of mamzerut.  It is also possible to distinguish (either way) between

a)       situations in which there is a readily available option for ceremonial kiddushin (such as the United States) and opting for purely civil marriage likely expresses indifference to religion, and

b)      situations in which there is a readily available option for ceremonial kiddushin (such as Israel) and opting for purely civil marriage requires a trip to Cyprus and may express hostility to religion (although we should distinguish hostility to a particular rabbinic bureaucracy from hostility to Halakhah generally), and

c)       situations in which there is no readily available option for ceremonial kiddushin (such as under Communism in the USSR)

In cases of agunah I believe that most batei din would rely on Rabbi Feinstein in cases of purely civil marriage, or at the least refer the case to another beit din that relies on Rabbi Feinstein.

Another case of the first kind is where there was a religious ceremony that deliberately disassociated itself from halakhic kiddushin.   For example, a Reform colleague and I years ago considered proposing that the Reform ceremony include the words “shelo kedat Mosheh v’Yisroel”­ =” not in accordance with the laws of Moses and Israel” to make explicit its rejection of kiddushin, from his perspective to avoid association with what he understood as a patriarchal institution (but see the discussion of kinyan acharayut last post), and from mine to prevent any risk that remarriage without a get would produce mamzerut.  If it can be established that the couple was making the choice to avoid kiddushin consciously while committing to the relationship, i.e. that they did not consider themselves to be engaged in promiscuity, there should be no presumption that a later sexual act was intended to effect kiddushin, even according to Rav Henkin.

But this is not obvious.  If one holds that intent-for-kiddushin, or da’at kiddushin requires specific religious content, the argument is compelling.  Some argue, however, that intent for any relationship which both parties agree imposes a religious obligation of sexual fidelity on the woman constitutes da’at kiddushin; some might not require agreement that the obligation is religious in nature.  If the parties reject other aspects of kiddushin, such as the husband’s physical obligations toward the wife, they are considered matneh al mah shekatuv baTorah = stipulating against Scripture.  In such cases the rule is maaseh kayam utenai batel = the action takes legal effect but the stipulation is a nullity.  In other words, the couple is married, and each party has all the obligations of marriage. 

I think that this is too broad a definition of intent-for-kiddushin.  My preferred alternative is that we define da’at kiddushin as intent for a relationship that imposes an obligation of sexual fidelity on the woman that can be dissolved only via a get.   If the groom does not intend to impose such an obligation on the bride, as would be the case in all such ceremonies, then in fact no kiddushin can have happened and no get is necessary, even though halakhically this means that all sexual acts during the relationship are considered znut.

I cannot say at this point whether/when batei din would accept my preferred formulation lehalakhah.  However, my sense is that in cases of agunah, most batei din would adopt some formulation of daat-kiddushin that would allow the woman to remarry, or at the least refer the case to another beit din that adopted a formulation sufficiently narrow to allow the woman to remarry.

Many Reform and most Conservative wedding ceremonies, however, do adopt or adapt halakhic language and ritual to an extent that make it very hard to argue that the couple explicitly intends to avoid kiddushin.  Reasonably, most couples emerge from such ceremonies feeling that they have entered into whatever Judaism considers marriage.  Factors other than lack of da’at kiddushin are therefore necessary to free agunot who were married in such ceremonies. 

Aryeh Klapper

 

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The Agunah Dilemma, #3

One theme of the Agunah Summit was the need for a “systemic solution”.  However, different speakers used the term to mean and exclude different things, and this led to frequent and unfortunate misunderstandings and failures of communication.  I will therefore try here to develop a rigorous analysis of the term.

Systemic can mean:

  1. Comprehensive (antonym “ad hoc”)
  2. Internal (antonym “external”)
  3. Automatic (antonym “dependent”)

These three translations generate five specific uses:

a)     internal to the Halakhic system, rather than reliant on external forces, such as the secular courts

b)    capable of resolving all cases

c)     capable of resolving all cases without requiring any rabbi to  exercise any form of halakhic discretion

d)    capable of resolving all cases without requiring specific men or women to exercise any form of discretion

e)     capable of resolving all cases without requiring any human being, rabbi or otherwise, to exercise any form of discretion

Each of these definitions likely represents a distinct values position.  For example:

a)     the desire for an “internal solution” may stem from a concern for the moral reputation of Halakhah, and lead someone to prefer such a solution even if it is less effective than a solution that involves extrahalakhic forces or agencies;

b)    the desire for a comprehensive solution may reflect a belief that ad hoc solutions cannot be relied upon in advance, and so reliance on such solutions will leave women vulnerable to get-refusal blackmail or anxiety;

c)     the desire for a solution not dependent on rabbinic discretion may reflect a lack of trust that the rabbinic court system will properly use any new powers it might be given, or a general aversion to increasing rabbinic power;

d)    the desire for a solution not dependent on the discretion of non-rabbis may reflect a lack of trust that couples will take proper prudential measures before marriage, or a sense that accepting such a solution in principle will in practice enable rabbis to avoid their responsibility to fix the matter.

e)     The desire for a solution independent of any human discretion may reflect either a combination of c) and d) or else a sense that vulnerable people should not, if possible, be required to put their trust in others.

Furthermore, the contemporary agunah issue (see also the four manifestations discussed last post) affects three distinct groups of women:

1)       Women who are currently in the midst of or have completed civil divorce proceedings

2)       Women who are currently married but not considering divorce

3)       Women who are not currently married.

A solution may be comprehensive for one or two but not all three of these groups.  For example:

prenuptial agreements only help group 3;

postnuptial agreements might extend a similar solution to group 2;

but any solution requiring the husband to voluntarily accept new obligations cannot help group 1.

Furthermore, some solutions may work comprehensively, internally, or automatically in Israel but not in the United States, or vice versa.  More on that in a forthcoming installment.

 

Rabbi Aryeh Klapper
Dean, The Center for Modern Torah Leadership

www.torahleadership.org

 

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