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Parashat Ki Tavo


Elitism and Democracy in Torah Perspective


The Torah in numerous places appears to assume that halakhic knowledge and authority would be centralized in the tribe of Levi. 

Nonetheless, throughout Jewish history Torah scholars have come from all tribes, and from converts.  Was this part of the Divine plan?  If yes, why does the Torah so often associate scholarship with Levi?  If not, does making halakhic authority accessible to everyone replace the Torah’s vision of an ideal social order with anarchy and chaos?

Rambam (Laws of Shmittah 13:12-13) seeks to resolve this tension by turning all scholars into honorary Levites. 

Why wasn’t Levi granted a share in the inheritance of the Land of Israel and its spoils

together with his brothers?

Because he was separated-out to serve Hashem,

to attend Him and to teach His straight ways and righteous statutes to the masses

as Scripture says:

“They will teach Your statutes to Jacob, and your Torah to Israel”

Therefore they were separated from the ways of the world –

they do not go out to battle like the rest of Israel

they do not inherit land and they are not granted property via the exertion of their bodies

rather they are the troop of Hashem

as Scripture says:

“Hashem blesses his troops”

And He the Blessed grants them (what they need)

as Scripture says:

“I am your share and land-inheritance”.

But this is not true only of the tribe of Levi;


each and every person from all those present in the world

whose spirit volunteered him and whose intellect made him comprehend

to become separated and stand before Hashem to attend and serve Him,

and to know Hashem,

and walked straight as the Divine made him,

and removed from his neck the yoke of the many calculations which human beings have sought –

He is sanctified as holy of holies,

and Hashem will be his share and land-inheritance for eternity and beyond,

and he will be granted in this world what is sufficient for him,

as He granted to the kohanim and Levites,

as behold David said:

“Hashem is my share and portion; You direct me as I choose my lot”

Turning Levi into a symbol or metaphor enables Rambam to maintain that the Torah intends there to be a social divide between the scholarly elite and the rest of the Jewish community.  The elite give up all interest in money or power – G-d takes care of their minimal this-worldly needs -  and as a result they can be trusted with Torah authority.

It is a pretty vision.  Unfortunately, the politics of this world rarely turn out that way.  G-d tends to provide for the this-worldly needs of scholars by way of non-scholars, who accordingly and properly have great influence over their Torah dependents.  Scholars are not always satisfied with the bare minimum of physical comfort. Desire for power may be as prevalent among scholars as among businessmen.  Scholars compete for the best fellowships, jobs, and students, not always nicely or with proper regard for ultimate ends.  In sum: Concentrating authority in scholars does not successfully insulate Torah against the evils endemic to other political systems.

We might seek to insulate scholars from the direct influence of the rich by creating a government-sponsored fellowship, a National Endowment for the Metahumanities.  Socialist Torah, rather than capitalist.  After all, the Torah does not say that G-d will provide for the Levites’ this-worldly needs on an ad hoc basis; rather, it sets up a tax system to support them.  

I think the best way to evaluate this theoretically attractive vision is to think about the Rabbanut in Israel.     

An alternative vision emerges from a midrash cited by Rashi to Devarim 29:3.

“And Hashem did not give you a heart to know until this day” –

I have heard that on the very day that Moshe gave the scroll of the Torah to the Children of Levi

as Scripture writes (31:9):

”He gave it to the kohanim Children of Levi”

all Israel came before Moshe and said to him:

‘Moshe Rabbeinu,

we too stood at Sinai and received the Torah, and it was given to us,

so why are you giving the members of your tribe dominion over it?! 

They will say to us tomorrow:

‘It was not given to you; it was given to us’.

Moshe rejoiced over the matter. 

It was about this that he said to them (27:9):

“This day you have become a nation to Hashem your G-d” –

this day I have understood that you are cleaving to and desirous of the Omnipresent.

It seems from this midrash that Moshe Rabbeinu originally inclined to either the socialist or capitalist visions above, or perhaps to Rambam’s imagined Republic.  But when the other tribes – all Israel! – came to him and protested that they too wanted to study Torah, he rejoiced. 

This midrash is likely related to the dialogue between Moshe and Yehoshua about Eldad and Meidad (Bamidbar 11:28-29), where Moshe, to Yehoshua’s surprise and perhaps dismay, expresses comfort with the idea of a community in which everyone is a prophet, and therefore no one has more access to the Divine than anyone else.  Moshe was comfortable in principle with both spiritual and halakhic democracy.

Comfort in principle does not imply endorsement in practice.  Democracy, in both its pure and representative/republican varieties, has its own weaknesses.  As Socrates loved to point out, democracy works well only when its constituents know the limits of their own knowledge, and prefer truth to power.  In fact, only Eldad and Meidad were prophets, not the entire people of Hashem.  By the same token, not all of us – even among those who live the life of Levi - are halakhically competent scholars.

Nonetheless, the democratic ideal properly has consequences.  The chief of these are that scholars must be accountable to their constituents, must constantly seek to spread rather than hoard knowledge and authority, and must recognize the autonomy of individual men and women as a core religious value.

In the coming weeks I expect to publish several essays that have as their immediate practical aim the constriction of halakhic authority, and therefore might reasonably be seen as in tension with the last commitment above.  So in the spirit of the first and second commitments, and of the month of Elul, I ask and invite you to look for them, read them carefully, and then hold me accountable.

Shabbat shalom

Parashat Shofetim


Must one ask all one’s halakhic shaylahs to the same posek?  Is it forbidden to check the answers one receives with other poskim?

Asei lekha rav”, meaning that one should seek to have a primary Torah mentor, is often excellent advice.  However, “primary” is not the same as “exclusive”.  The Torah never permits any human being to completely abandon the exercise of moral and religious judgement.  Moreover, pretending that such a relationship exists when it really doesn’t can do great harm.

In its original contexts (Pirkei Avot 1:6 and 1:16), aseh lekha rav does not relate to laypeople asking live halakhic sheilot.   Here for example is R. Ovadiah miBartenura’s commentary to 1:6

“Asei lekha rav” –

meaning that he should accept upon himself one rav to learn from constantly,

rather than learning today from one and tomorrow from another. 

Even though in Tractate Avodah Zarah (19) they said:

One who learns Torah from only one Rav never sees signs of blessings in his learning,

they have already explained that these words apply to reasoning,

that it is good for him to hear the reasoning of many,

but with regard to memorizing settled law, one rav is preferable, lest his formulations become corrupted.

In other words, asei lekha rav applies only to a specific form of learning – the memorization of halakhic statements.  It has no application to asking shaylahs. 

The Rav miBartenura provides a different context-appropriate explanation in his commentary to 1:16:

“Asei lekha rav” – this statement refers to poskim who issue rulings in difficult cases.

If an issue of law comes before you, and you are in doubt regarding it,

“asei lekha rav vehistalek min hasafek”

rather than deciding the issue yourself,

just as Rava,

when a case of a possible treifah was brought before him,

gathered all the butchers of Mata Mechasya,

saying: Let us receive only a splinter of the plank”. 

In other words, asei lekha rav requires shared responsibility and serious consideration of others’ opinions.

The mistaken insistence on asking all shaylahs to the same rabbi is often supported by a concern about shitah-shopping.  This concern is grounded in a beraita cited on Eiruvin 6b:

The law actually follows Beit Hillel

But one who wishes to act according to Beit Shammai – may do so;

According to Beit Hillel – may do so.

From the leniencies of Beit Shammai and from the leniencies of Beit Hillel – he is wicked;

From the stringencies of Beit Shammai and the Stringencies of Beit Hillel –

of him Scripture says: “the fool walks in darkness”.

Please note, however, that the beraita has no general objection to asking different questions to multiple rabbis.  The beraita discusses only circumstances in which the answers of Beit Shammai and Beit Hillel were known in advance, and where the primary ground for choosing among them was leniency.  This bears no relationship to directing particular questions to poskim who are experts in the relevant fields, or who know your mind and soul better with regard to specific issues, or who share your values in particular areas. 

Furthermore, a key marker of authentic Torah is that “All her ways are pleasantness”.  It violates the nature and purpose of halakhah when a psak causes unnecessary moral discomfort or emotional anguish, let alone harms a marriage.  We each have a responsibility to prevent this.  One way of accomplishing this is to ask for a second opinion when a psak seems not to meet the “pleasantness” standard.

This is not a descent into “shitah-shopping”. Tosafot Niddah 20b (see also Tosafot Chullin 44b and AZ 7a) concludes that halakhah does not constrain people from asking, so long as they are transparent with the second posek; rather, it gives guidelines to halakhists as to when they can overrule the previous answer. 

the objection is not on the asker but rather on the sage

but the asker – should ask everything he wishes

since as a result they will be rigorous on the issue

and sometimes the first will have erred, and this way the matter will be seen in its true light

Tosafot Bava Kamma 100a makes a stronger claim. 

This is not like showing a dinar-coin to a banker (to determine its authenticity)

where once he showed it to the banker, he should not have shown it to another

but regarding a cow

when this sage forbade it to him (=declared it not kosher),

he should not have hurried to feed it to dogs . . .

rather he should yet have asked it another sage.

(This position of Tosafot is cited as law by Shakh Choshen Mishpat 25:5.   See also Yam Shel Shlomo Chulin 3:8, ad the article by Rabbi Chaim Yosef Shaanan in the journal Tzohar, vol. 16.)

One 20th century posek explained the principle on the basis of a competitive market improving products:

The questioner Is obligated to ask the question to several sages,

 because thereby each sage will be more rigorous about the matter,

and the matter will emerge in its true light,

as the more sages they ask, and the more that sages know that they will ask others,

the more and more rigorous they will be before issuing rulings, and not rely on themselves. 

From here it is also clear

 that a sage has the obligation to express his opinion and disagree with his colleagues

if he believes that the halakhah is not in accord with their opinion.

In Reshimot Shiurim to Bava Kamma, Rav Herschel Reichman presents Rav Yosef Dov Soloveitchik’s integration of this principle into an overall philosophy of Torah.

that the hora’ah of a sage is given over to further clarification,

 because every hora’ah of a sage is an object=cheftza of Torah

and part of the tradition=Masoret of Torah,

and the Torah is given over to clarification via the back-and-forth among sages. 

Therefore the owners should not have relied only on the sage they asked first,

because it is plausible that in the course of clarifying the law with other sages

that his hora’ah would change or become a nullity.

All this makes clear that laypeople have not only the right, but often the obligation, to ask for a second halakhic opinion when the first answer they receive feels wrong.  As the motto of the Center for Modern Torah Leadership has it, we all need to TAKE RESPONSIBILITY FOR TORAH.

Shabbat shalom

Parashat Re'eh

Authorized and Unauthorized Additions

אֵ֣ת כָּל־הַדָּבָ֗ר אֲשֶׁ֤ר אָנֹכִי֙ מְצַוֶּ֣ה אֶתְכֶ֔ם אֹת֥וֹ תִשְׁמְר֖וּ לַעֲשׂ֑וֹת לֹא־תֹסֵ֣ף עָלָ֔יו וְלֹ֥א תִגְרַ֖ע מִמֶּֽנּוּ:

Everything that I am commanding you – that is what you must observe, to do.  You must not add to it; and you must not subtract from it.

Devarim 13:1 can be read as a free-standing and self-sufficient sentence, which is why it starts a new chapter.   However, the traditional Jewish punctuation reads it as the true conclusion of the preceding chapter, which ends:

לֹא־תַעֲשֶׂ֣ה כֵ֔ן לַיקֹוָ֖ק אֱלֹהֶ֑יךָ כִּי֩ כָל־תּוֹעֲבַ֨ת יְקֹוָ֜ק אֲשֶׁ֣ר שָׂנֵ֗א עָשׂוּ֙ לֵאלֹ֣הֵיהֶ֔ם כִּ֣י גַ֤ם אֶת־בְּנֵיהֶם֙ וְאֶת־בְּנֹ֣תֵיהֶ֔ם יִשְׂרְפ֥וּ בָאֵ֖שׁ לֵֽאלֹהֵיהֶֽם:    

Do not do the same for Hashem your G-d, because it was all the abominations of Hashem that He hates that they did for their gods; yes, they would even burn their sons and daughters in fire for their gods.

Seforno uses this connection to make the startling claim that the prohibition against “adding to” is needed to prevent Jews from voluntarily instituting child sacrifice for the sake of Heaven.

לא תוסף עליו - כי אולי תוסיף דבר נמאס אצלו יתברך, כמו שיהיה אם תרצה להוסיף מיני עבודות לא-ל יתברך, שלפעמים תהיה העבודה הנוספת דבר נמאס אצלו ית', כמו שריפת הבנים.

“You must not add to it” – because perhaps you will add something that is revolting to Him May He be Blessed, as would happen if you wanted to add forms of service to the Divinity May He be Blessed, that on occasion the added service would be revolting to Him May He be Blessed, like the burning of sons.

Seforno’s shocking suspicion also implies an important liberalism: G-d does not reject humanly conceived and initiated worship out of hand.  If we could be trusted to choose actions which pleased Him, perhaps He would even prefer such freely-chosen worship above obedient service.

By contrast, Rabbi Samson Raphael Hirsch reads our verse as rejecting human religious autonomy in principle.

“Everything” the parshiyot-division of the Masorah shows that this verse is the conclusion of what is said before it, and this is its meaning: For this reason, you must not produce for yourself new ways of Divine service, you must not seek to ingratiate yourself before your Divinity in ways different from those that were established by Him.  Only if you faithfully perform that which he commanded will you express the submission which He is expecting from you.  He imposed mitzvot on you and taught you how to fulfill them, and these mitzvot and these ways of fulfilling them express His will. 

Rav Hirsch seems to believe that worship in a freely-chosen form is oxymoronic. 

This profound philosophical dispute between Seforno and Rav Hirsch may reflect an even deeper disagreement about the nature of the Oral Law.  Why doesn’t the rabbinic corpus constitute an illegitimate addition? 

For Rav Hirsch, the Written Law is famously the “lecture notes” for the Oral Law.  This means that the Oral Law actually came first – the Written Law is just a way of encoding it.  There is nothing creatively human about the Oral Law.  Even the most brilliant rabbis were merely answering complex crossword clues correctly.  This tracks with his absolute prohibition against adding.

By contrast, Seforno may acknowledge that while the Oral Law is under the authority of the Written Law, it is the product of an unscripted human encounter with the Divine Will, and may reflect genuine creativity.  For Seforno, the prohibition is against undisciplined adding.

This theme is elaborated by Rabbi Pinchas Halevi Horowitz (1730-1805) in his Panim Yafot.  Rabbi Horowitz reads the opening of the verse as a reference to the Oral Law – “Everything that I am commanding you” includes matters that are not explicit intentions of the text.  He embraces the paradoxical formulation on Megillah 19b that G-d showed Mosheh everything that the Soferim would eventually originate.  The Talmud says that this refers specifically to the rabbinic mandate to read the Megillah on Purim, but Rabbi Horowitz reads it more broadly.

He then adds an important excursus on the nature of Torah study.

שלימוד התורה הוא בכל דור בשני פנים

האחד ללמוד התורה שכבר נתון בכתב ובע"פ בכל הדורות הקודמין, וזה הלימוד מקרא ומשנה,

והלימוד השני הוא עיון והשכל הטוב חלקו מאת ה' בתורה, כמ"ש ותן חלקינו בתורתיך,

. . . כי שתי הפנים האלה התחלפו בימי שנות האדם

בילדותו א"צ כ"כ שקידה וזיכרון הטוב,

כמ"ש [שבת כא ב] בגירסא דינקותא עולה לזיכרון יותר מבימי הזקנה,

אבל בעיון השכל הוא בהיפוכו כי דעתם מתיישבת עליהם,

. . . the study of Torah in every generation has two aspects

The first is to lean the Torah that has already been given, in writing or orally, in all the previous generations.  This learning is called mikra and Mishnah.

The second type of learning is ?analysis and excellent comprehension? which is his portion given out by Hashem in the Torah, as is written “and give our shares in Your Torah”.

. . . These two aspects reverse during a person’s years

In his youth he does not need so much diligence and good memorization,

as per Talmud Shabbat 21b that the learning of youth arise in memory more than that of old age,

but the investigation of the intellect is the reverse, because their mind becomes settled . . .  

According to Rabbi Horowitz, the human “share” in G-d’s Torah is not what we take out of the text, but rather what we put into it.  It is our creative contribution.  But such contributions must be built on a solid basis of knowledge of the written Torah and all its previous interpretations, including those once regarded as creative.  In turn, our successors will be required to memorize our creative contributions by rote before being allowed to attempt such contributions themselves.

Rabbi Horowitz thus sets out a model for the discipline that Seforno sees as the difference between legitimate creativity and illegitimate adding.  Creativity must go hand in hand with genuine commitment to and respect for the past.  Moreover, creativity is not an end in itself; rather, its value is predicated on being filtered via sound and mature judgment.

Let us be frank – this model may not be useful in real life.  There is no formula for determining the genuineness of commitment to the past.  Making memorization a requirement simply privileges those with superior memories.  Similarly, good and mature judgment are often not recognized, especially by those who lack them.

What may help is an acknowledgement and keeping-in-mind of the Torah’s caution that creativity can lead to human sacrifice. 

The Kotzker Rebbe reportedly asked:  Why did the angel call out to Avraham two commands-to-stop at the Binding of Isaac?  Wouldn’t Avraham have stopped once G-d said “DO NOT send your hand forth against the child”?  Why did He need to add “and do nothing at all to him”? 

More astonishingly yet, Rashi claims that Avraham did not stop in response to “DO NOT send your hand forth”; rather, he asked for permission to at least wound Yitzchak, which is why G-d continued “do no meumah (a pun on mum=blemish) to him”.  Why would an apparent sadistic streak emerge, rather than a joyous celebration of the reprieve?

The Kotzker replied: The most difficult temptations are those which convince a person that letting his or her worst evil inclinations flourish is actually a fulfillment of the Divine Will.  We may convince ourselves that the very absurdity of an action is what proves its religious origin: who but G-d would think of such a command?  Or we may convince ourselves that only the most ethically counterintuitive actions can prove that we are acting out of genuine religious devotion, that we are utterly engaged in the fulfillment of His will rather than our own.  Thus the true test of the Akeidah was not whether Avraham was willing to sacrifice Yitzchak, but rather whether he was able to abort the sacrifice when G-d revealed his error.  And, the Kotzker concludes, even Avraham was unable to stop immediately, even when presented with an angel telling him to stop – the angel had to tell him twice to keep him from drawing blood.

A reasonable argument can be made that the popularity of creative stringencies in contemporary Orthodoxy stems precisely from this impulse, especially in the areas of conversion and agunot.  There is real and culpable inconsistency in celebrating creative leniencies while denigrating creative stringencies.  At the same time, we should be hypersuspicious of any creativity that seems to draw strength from the number of victims it claims.

Parashat Va'etchanan

Summer Beit Midrash Week 5

    If you firmly believe that you are mashiach, are you a shoteh? Rav Moshe Feinstein (Iggerot Moshe 1:120) deals precisely with this question. Rav Moshe was faced with this issue in 5679. The man in question believed that he was mashiach and that he was thus destined to save the Jewish people. He had an obsession with serving as shaliach tzibur and ba’al kriah and would fight with all his might to be able to be in those roles. On one occasion he stole the sefer Torah and went running with it into the street screaming about how he was going to fix the world. Lest one believe that these were his only strange behaviors, this man would also hang out in trees and walk around town without clothing, claiming that he was like Adam before the sin. However, it is important to note that in all other behaviors Mr. Mashiach was a perfectly reasonable and sane human being.

By the time that the man was ready to be married, he was working as an elementary school teacher and had not displayed any worrying behaviors for many years. The marriage went on completely without issue. Unfortunately, soon after his marriage the man reverted to publicly stating that he was mashiach and returned to going about his strange behaviors. Two years before the writing of Rav Moshe’s teshuva, the man went to his father’s house to work as a farmer. Since then, he had not displayed any of his crazy behaviors. Believing him to be completely back to normal, the man was taken to give his wife a get. All went according to plan, but on the way out of the proceedings, the man remarked to Rav Moshe that he still believed himself to be mashiach. Rav Moshe then had to determine whether or not the get that was given was a valid one, or if it was invalid due to having been given by a shoteh. After all, the second chapter of Mishna Gittin clearly lists a shoteh as one who is invalid to give a get. Perhaps the man’s get can still be considered valid since the man’s only irrational behaviors stem from his one incorrect belief that he is mashiach? This idea is hard to reconcile with the Rambam, who writes in Mishneh Torah Hilchot Eidut that one who is a shoteh for one matter is considered to be a shoteh in all matters, even if he is entirely rational when it comes to those other matters.

    The question of whether or not this man is a shoteh hinges upon the gemara in Chagiga which discusses the criteria that are necessary in order to deem one to be a shoteh. Rav Huna posits that to be considered a shoteh one needs to go outside alone at night, sleep in a graveyard, and tear his clothing. In other words, if someone only performed one or two of those actions, there could easily be a logical reason for it. Rav Huna’s opinion is necessary, according to Rav Moshe, to show that a person performing all three of those actions is so unlikely to be doing them all for a logical reason that they must be assumed to be a shoteh. According to the gemara in Chagiga then, the man in question may not be considered a shoteh because all of his actions have logical reasons, stemming naturally from the one false belief that he is mashiach.

    The issue with this reading of the gemara is that the Rambam states in Hilchot Eidut that a shoteh in one matter is considered to be a shoteh in all matters. The Rambam clearly states that such a person is invalid as a witness and, on top of that, that they do not have a chiyuv in any mitzvot! Rav Moshe interprets the Rambam as saying that the Torah does not give people only a partial chiyuv in mitzvot. Either a person is subject to all mitzvot or they are not subject to mitzvot at all. It is this lack of obligation that disqualifies their testimony. Interestingly, Rav Moshe moves on to say that this overwhelming disqualification is ONLY with regard to testimony and obligation in mitzvot. In all other areas of Halacha, Rav Moshe claims that even the Rambam would agree that one irrational belief (and the actions which stem from it) would not make one a shoteh in regards to all of the matters which they have rationality with. Therefore the man who believed that he was mashiach would be able to give his wife a get without issue even if he is a shoteh.

    We then moved on to the path towards helping a shoteh recover from their illness through the words of Rav Yitzchok Zilbershtein, who discussed whether one is permitted to violate Shabbat in order to heal a shoteh resulting in him or her then being in a position where he or she is chayav in mitzvot. For this, Rav Zilbershtein laid out three potential possibilities.

  1. It is completely permitted to heal a Shoteh on Shabbat. This position was brought down from the Beit Meir, who stated that the reason that one can violate Shabbat to save any life is the principle of violating one Shabbat so that the person saved can keep more Shabbatot. The person, being healed from being a shoteh, would then be in a position to keep Shabbat in a way that they would have been unable to before when they were not chayav in mitzvot.

  2. It would not be permitted to heal a shoteh on Shabbat at all. This is supported by the Biur Halacha since the mental condition of the shoteh is not enough to be considered a physical danger and allow the permission to save a life on Shabbat to take affect.

  3. It is permitted to heal a shoteh on Shabbat, but only when there is absolutely no doubt that the shoteh will actually be healed. This approach is based on the Netziv in Ha’amek Sh’elah, who argues that the principle of violating one Shabbat to allow others to be observed is a second justification for violating Shabbat to save life but applies only when the outcome is definite.  This principle allows violating Shabbat even when no life is in danger, only the capacity to be chayav in mitzvot.  Ordinary life-saving is justified by the verse “and they shall live by them”; it requires physical danger but applies even when there is only a possibility of death.

We also noted a halakhic irony: it seems that the more valuable the shoteh is before being healed, the more difficult it is to permit healing him or her if that healing involves violating Shabbat.  Some of us thought this was perfectly reasonable while some of us thought it was counterintuitive. We also disagreed as to whether and to what extent our intuitions were relevant to the process of deciding the Halachah.  This conversation was an excellent preparation for writing our teshuvot next week.

Parashat Balak


Shoshana Jakobovits and Gershon Klapper


The topic of the 2017 Summer Beit Midrash is “Mental Disability in Halakhah”. We will approach this topic through the halakhic category of שוטה (shoteh). The psukim in the Torah make no mention of שוטה as a legal status, and the Tannaïtic material may not define the condition formally. We will therefore attempt to build a framework for this category via its legal implications, having started this week with the Midrash Tanaïm and the Mishnah, and continuing next week with the Tosefta, the Yerushalmi and the Bavli.


Can we find rationales for the mitzvot the שוטה is excluded from? Maybe all mitzvot which require דעת (da’at, knowledge or understanding)? Or perhaps mitzvot which have a certain communal aspect? Are there specific halakhic realms they don’t participate in, or participate in only partially (for example testimony, marriage and divorce, or perhaps נזיקין, damages)? What are the differences between the statuses of the חרש (cheireish, deaf-mute) and שוטה as recorded in pre-Helen Keller halakhic literature, and to what extent does the traditional grouping of the קטן (katan, minor) with them have legal significance? These are some of the overarching questions we explored this week.


The Mekhilta d’Rabbi Yishmael (מכילתא דרבי ישמעאל כי תשא - מסכתא דשבתא פרשה א, 31:14) discusses the חרש ,שוטה and קטן ‘s obligation regarding at least some aspects of shabbat:


"To know that I, the L-rd, sanctify you" (Sh’mot 16): What is the intent of this? From "And the children of Israel shall keep the Sabbath" (Ibid.) I might think, even a חרש (deaf-mute), a שוטה (imbecile), and a קטן (minor) [are obligated]? It is, therefore, written "to know that I, the L-rd, etc." I spoke only of one who has דעת.


The presumption of the Mekhilta seems to be that we would think that the חרש ,שוטה and קטן are exempt from (at least some) obligations of Shabbat. This idea in mind, one could think that the words "And the children of Israel shall keep the Sabbath" come to state that in fact all B’nei Israel, חרש ,שוטה and קטן included, are obligated in these. The Mekhilta states that the function of the words "to know (לדעת) that I, the L-rd, sanctify you" are to show that חרש ,שוטה and קטן are, in fact, excluded from the obligation since they lack the appropriate דעת.


It is interesting, and perhaps even crucial to note that there is absolutely no presumption that the people belonging to the categories חרש ,שוטה or קטן might be excluded from the category בני ישראל (B’nei Israel). In other words, the Jewishness of the חרש ,שוטה and קטן, their belonging to the Jewish people is never put into question by the Mekhilta, nor by any other source from the Midrash Halakhah and the Mishnah.


What is put into question, though, is their intellectual capability, their דעת. However, the concept of דעת is quite obscure and further questions need to be addressed: what exactly does דעת entail? Are there different kinds of דעת (i.e. knowledges of different concepts) and from which mitzvot does this criteria exempt the חרש ,שוטה and קטן?


The Midrash Halakhah excludes the חרש ,שוטה and קטן on several occasions on the grounds that they are lacking דעת; this rationale appears, for example, in the Sifrei Bemidbar (Parashat Chukat, piska 124), which deals with the placing of the red heifer’s ashes in a tahor place. The חרש ,שוטה and קטן are declared pasul for this task, since they lack the דעת להניח, the knowledge to place these ashes appropriately. It is unclear from this text whether the Sifrei deems their דעת insufficient for placing, for handling precious objects, or for placing in a tahor location. In any case, this type of דעת is radically different from the type of דעת required in the Mekhilta, which is an understanding that G-d sanctifies us and a rather abstract, spiritual notion.


Furthermore, in the Tosefta (Shvu’ot, ch. 3) the word ידע (knew, Vayikra 5:1) is taken to prove that a שוטה is unfit to testify. This type of דעת, a basic knowledge of the circumstances and content of events necessary to provide testimony, constitutes yet another type of דעת.


What seems to emerge from studying Rabbinic legal interpretations of Torah is that the שוטה is excluded from specific mitzvot because of their lack of the דעת necessary to perform those mitzvot.


Let us now move to mishnaic texts, and consider a mishnah central to the rulings about חרש and שוטה: the mishnah (Rosh Hashanah ch. 2) rules that a חרש, a שוטה, and a קטן cannot fulfill the masses’ obligation to hear the shofar by blowing it for them, citing a general precept that “All that have no obligation in a matter cannot fulfill the masses’ obligation [in that matter].” This statement, as it seems to assume that the חרש, שוטה, and קטן have no obligation to hear shofar, provides a theoretically far-reaching curb to the שוטה’s involvement in mass obligations and implies a significantly handicapped obligatory framework; the קטן is already “exempt from all commandments” (Sanhedrin ch. 8) and the חרש is presumably exempt from shofar as he is from other obligations that explicitly require hearing “testifying” (Tosefta ch.3) and “appearing [in Jerusalem at festivals]” (Mekhilta ch. 20) but the שוטה lacks a rationale for exemption unless he, too, is generally exempt from a category, maybe all-encompassing, of commandments into which this falls. This thesis is further supported by other mishnayot, which state that the חרש שוטה and קטן cannot “read the megillah [to the masses],” (Megillah ch. 2) that they cannot “sanctify [the red heifer],” (Parah ch. 5) and that they cannot “lean [on sacrifices];” (Menachot ch. 9) presumably this is because they have no obligation to hear the megillah, or purify via the red heifer, or bring sacrifices, and why but because they have preceptually limited obligations. Additionally, the שוטה is listed without rationale as exempt from appearing in Jerusalem at festivals in the mishnah, (Chagigah ch. 1) as well as in the Mekhilta (ch. 20) which outlines the specific exemptions of other categories from the commandment.


We will continue by exploring the tosefta and talmudic sources, tracking the evolution of the definitions and legal ramifications of the cases חרש and שוטה. We will delve into philosophical and technical discussions as we move towards a comprehensive framework for dealing with contemporary חרש and שוטה cases. As the חרש and שוטה which were often distinct in early sources converge in the mishnah, will they change again? Wherein lie the originators and resolvers of the modern conundrums confounding all and driving this summer’s SBM?

Parashat Chukat

The Hard Work of Improving Our Community's Character

Rabbi Aryeh Klapper

Improving a community’s character is hard: Just ask Moshe Rabbeinu!  Hashem replaced Moshe as leader only when after forty years, the same stimulus (thirst) led to the same response (hectoring complaint).    He did not expect real change in less than a generation.  Deepseated communal religious failures cannot be overcome rapidly or easily. 

This essay will inevitably be read as a response to the arrests this week of Orthodox Jews for making fraudulent claim on government “safety net” programs.  Two points are therefore necessary by way of introduction:

1)      A society that genuinely believes in the presumption of innocence would not permit the deliberate public humiliation of people who are merely accused.  There is absolutely no excuse for the phenomenon of “perp walks”, no matter the person nor the crime.  Former Labor Secretary Raymond Donovan’s plaint after acquittal “Where do I go to get my reputation back”? carries added force in the age of social media.

2)      Journalism at its best is avodat hakodesh, sacred work.  Journalism at its worst is simply lashon hora supersized.  Articles should not uncritically pass on uncorroborated information provided by an anonymous law enforcement or prosecutorial official (likely breaching duties of confidentiality) that is clearly intended to cast aspersions on entire communities and serves no vital communal “need to know”.  Such articles should not be “shared” uncritically.

All that said, the reaction to the articles in both the Charedi and MO community indicates that many of us saw the worst-case scenario as eminently plausible.  If we’re right, that’s a good thing, or at least much better than denial.  

Moreover, there was recognition in the MO community that while the specific sin in question may not be our failing, we share the underlying challenge of being successfully mechanekh (Torah-educating) for financial integrity.

Our response to this challenge cannot be merely curricular.  We need to acknowledge (usually with pride!) that there is currently no radical values-divide between Orthodox religious professionals and the Orthodox laity.  Values-failures in the system likely reflect those who are teaching, not what texts they are not teaching, or modalities they are not using.  Surely Moshe Rabbeinu tried having the Jews learn mussar along with gemara Nezikin!  Teaching Bava Kamma in every grade will not help if students emerge with a list of successful defenses against tort suits.  Teaching mussar will not help if a fundamental ethic being internalized is the worthlessness of human beings unredeemed by Torah. 

So this 1300 word essay is not intended as a panacea.  My hope is to provide one analytic framework that may be helpful, and to add one religious concept/text to the conversation.

Analytically, I want to distinguish between “luxury problems” and “problems of luxury”. 

A luxury problem is one that we can devote time and energy too only because we have solved more fundamental issues such as survival and sustenance.  For example: Rav Moshe Lichtenstein some years ago objected to declaring fast days during a drought until all the garden sprinklers in Israel had been turned off.  For a country that desalinates enough to handle all other needs, drought is a luxury problem.

A problem of luxury is one that is legitimately fundamental, but only because we have allocated our resources in particular ways.  For example: In the US and Israel today, even the temporary absence of running water is a fundamental problem with implications for survival, even though by historical or comparative standards the presence of (potable!) running water is a remarkable luxury.

Moral difficulties arise when societies are structured in ways that regularly generate problems of luxury for people who don’t have the resources to solve them.  For example, if a society largely supports its underclass by hiring them as gardeners, the absence of water for gardening threatens massive unemployment and economic devastation.        

Here is a more relevant, but possibly controversial, example:  Sending talented Torah educators outside our community as kiruv professionals can reflect Torah luxury: it can mean that we have enough skilled teachers to ensure our own community’s thriving, and are generous enough to share our Torah resources with communities that face an existential cultural threat.  But if we consistently produce many more professional Torah educators than our community needs, so that the economic viability of our scholarly class depends on the continuing availability of kiruv jobs, then we create a problem of luxury.

And directly on point: Dignity and marriageability are each fundamental resources.  A society that allocates these resources disproportionately to those who meet financial thresholds, even those financial thresholds are well above what is otherwise needed for physical and spiritual comfort, creates problems of luxury.

I contend that both Modern and Charedi Orthodoxy are currently such societies.  It is of course true that individuals can and should resist the temptations to cheat or steal in order to overcome such problems of luxury.  But remonstrations about individual failures will generally register as hollow and hypocritical in a society that allocates dignity and social prestige more to wealth (or to the appurtenances of wealth, such as attending hyper-expensive schools) than to virtue.

The religious concept I want to introduce can be found all over the writings of NETZIV, but a core location is Responsa Meishiv Davar 2:9.  Netziv wonders why the Torah bothers to tell us in Bamidbar 21:26 that Cheshbon was the capital city of the Amorite King Sichon “who battled with the first king of Moav, and he took all his land from him, as far as Arnon”.  He connects this to a Talmudic (Bava Batra 78b) translation/interpretation of the previous verse:

Therefore the rulers say: Come make a Cheshbon = accounting!

The rulers refers to those who rule over their evil inclinations:

Come make an accounting means make an ultimate accounting, namely of the loss involved in a mitzvah against its reward, and the reward of transgression against its loss.

Why, Netziv asks, should those who “rule over their inclinations” need to engage in such an accounting?  Won’t it be obvious to them that mitzvot are worth doing and sins are not?

He answers that such people need to learn the lesson of Sichon’s triumph.  Moav’s king was unpopular, possibly deservedly so.  A group of Moabites turned to Sichon for help deposing him.  They assumed that Sichon would allow them to pick a superior replacement.  Sichon instead conquered their land for himself.

The moral of the story is that good intentions sometimes pave the road to destruction.  It is not enough to evaluate an action in the abstract; one must consider all its ramifications.  In that broad view, it will sometimes become clear that fulfilling a halakhic obligation is worthwhile, and even that transgressing a prohibition is worthwhile. 

Netziv’s initial context is campaigns against heresy or halakhic lassitude in the rabbinate.  Granting that there are weeds of many kinds in the Torah garden – does the gain of eliminating them outweigh the costs of communal discord, or the inevitable reality that some people will be caused unjust or disproportionate suffering?  (I would add: what if one creates a “chilling effect” that discourages people from expressing creative ideas on issues that call for creative responses?  What if one turns many of the finest minds and souls away from Torah careers?  Some of our writers seem to think that napalm is an appropriate garden herbicide.)

But Netziv’s legitimation of moral pragmatism has much broader relevance.  In areas such as education, safety, inclusion, health, et al., our community often functions as if progress in one area has no cost in others.  These costs are often long-term and abstract.  Making them part of our communal cheshbon takes conscious effort and often a sacrifice of near-term gratification.  But our failure to do so creates environments which make the moral choices of the individuals in our community more difficult, and eventually but inevitably to the distortion of our communal structure of Torah values. 

Improving a community’s character is hard.  We should think long-term and structurally rather than focusing solely on immediately improving individual choices.  We need mature willingness to acknowledge and account for the indirect moral and spiritual costs of direct moral and spiritual achievements.  Scholars, professionals, and laypeople must realize that we are each part of the problem and necessary contributors to any solution.     

Parashat Korach

In the Space Between Korach and Shammai: Dealing with Torah Arguments that Might or Might Not be For the Sake of Heaven

Every faction that exists for the sake of Heaven – will ultimately endure;

Every faction that exists not for the sake of Heaven – will not ultimately endure.

Which are factions that exist for the sake of Heaven? These are the factions of Hillel and Shammai.

Which is a faction that exists not for the sake of Heaven? This is the faction of Korach and his edah.

(Pirkei Avot 5:17)


Careless readers of this beautiful mishneh might conclude that each and every faction can be classified as either “for the sake of Heaven” or else “not for the sake of Heaven”.  But nothing about the Mishneh denies a more complex reality in which factions are coalitions of people with different motives, and in which individual human beings often have mixed motives.  Meshekh Chokhmah (quoted in my Jewish Press column this week) implies that even “Korach and all his edah” must be read narrowly to exclude the 250 elders who came with Korach, as their motives were pure.  The Mishnah should be used as a mussar self-check rather than to dismiss opposing factions as ephemeral.


It should also be clear that there is no necessary relationship between purity of motives and quality of argument.  The best of arguments will be appropriated by the greedy if it serves their interests; and the righteous are fully capable of gross analytic or interpretational error.  A demonstration of sordid motives does not absolve us of the obligation to accept the truth from whoever speaks it, and to reject the false likewise.


But we must acknowledge that the halakhah does not always follow the best argument.  Philosophy is properly a world of emet vasheker, truth and falsehood, in which arguments are evaluated without regard to who makes them.  But practical halakhah is a normative system, which is to say it exists in the realm of tov vara, good and evil.  In that world, it matters very much who has authority, and order is better than chaos.  Therefore, at times one must follow a weaker argument made by a greater authority over a stronger argument made by a lesser or non-authority, and law has an inertial preference for continuity.


Halakhic decisionmaking must nevertheless not be allowed to depend exclusively or even primarily on who has authority rather than on the strength of arguments.  G-d made halakhah depend on textual interpretation and rational argument in order to ensure that Jewish religious leaders would always be intellectually accountable to the people.      


The mistaken idea that halakhah depends exclusively on personal authority leads to a politics of personal destruction, in which the only effective response to disagreement is to delegitimate the disagreeing person (or community).


The mistaken idea that halakhah depends exclusively on perceived analytic superiority leads to a politics of intellectual dishonesty.  If truth is in and of itself a sufficient ground for practice, then we cannot risk allowing anyone to think even for a moment that the arguments for a position we disagree with are compelling. 


Orthodoxy is currently plagued by an incoherent and malignant combination of these two mistakes.  The consequences are that people who make bad arguments for positions we disagree with are attacked personally to deny them authority; and good arguments made by people without personal authority are ignored or disingenuously dismissed to ensure that no one follows them until they are given authority.

Each of these consequences is immoral, and also very poor policy.


Rabbi Zevulun Charlop shlita, Dean Emeritus of RIETS, likes to say that mechadshim (creative Torah scholars) should be evaluated like baseball batters: even the best only hit safely once every three tries, and those with power are regarded as successful at much lower ratios.  Mechadshim with power are more likely to be wrong, and their mistakes are likely to be doozies.

What happens to a Torah community that delegitimates public intellectuals after their first error, and rejects all disruptively creative ideas out of hand?  A Torah community needs to be able to tolerate and survive significant and even potentially dangerous errors, or else it will stifle the creativity that is essential to its intellectual and spiritual health.     

Our panic when confronted by presumptive halakhic authorities who make bad arguments about important issues, or presumptive nonauthorities who make good arguments, reflects a deep lack of trust in our community.  We suspect first of all that our nonscholars cannot distinguish weak from strong arguments, especially when they have a rooting interest in the outcome.  Secondly, we suspect that many members of our community do not care about the strength of an argument, or about the consensus of scholars.  Rather, they see the existence of any sort of argument as a matir, as giving them the right to do what they want.

These suspicions are not groundless.  But we overreact to them when we seek to prevent non-poskim from having any input into halakhah, or seek to shoehorn all scholars into a conformist mold.  A healthy halakhicate wants to be accountable to its laity, and wants everyone to be as autonomous as is consistent with preserving the role of halakhah as law rather than as subjective religious expression.

These overreactions often generate a vicious cycle.  The overbearing push for conformity leads to a celebration of even shallow ideosyncrasy.  Telling nonscholars or lesser scholars that they have no say leads them to deny the legitimacy of authority.  Each then side then uses the other’s reactive misbehavior to justify its own escalation.

By the same token, error should not be without consequences, especially if the error is not acknowledged.  On Gittin 43a Rabbah bar Rav Huna tells us that “A person does not find his footing in words of Torah unless he stumbles in them first” – in the context of correcting his previous mistaken ruling.  Home run hitters usually strike out a lot because they take big swings, but not everyone who takes big swings is a home run hitter.  Some people simply can’t hit at all.  Obviously, a past record of achievement makes it more likely that we’ll keep you in the lineup when you’re slumping.

I think we can admit that Orthodoxy faces enormous challenges.  Not so much to our survival, as to our capacity to live integrated religious lives in modernity.  We have not yet developed sufficiently compelling intellectual responses to Biblical criticism, or halakhic responses to the (wonderful) ethical challenge of participating as full citizens in a pluralistic society, or sociological responses to the existence of large numbers of Jews who see intermarriage as no bar to full communal membership, or moral responses to Jews who see no justification for heteronormativity. 

These are just some of the many issues we confront where past ideas are insufficiently developed to guide us.  We need intellectual incubators, not sterile industrial egg farms.

One can of course deny the value of living an integrated religious life anywhere outside the beit midrash.  One can shrug off the reality that less than 10% of American Jews identify as Orthodox, let alone live halakhically observant lives, by blaming the audience and absolving the product, or by waiting for demography to change that reality. 

But if we are not prepared to do any of these, it’s time we learned to leave a greater margin for error.  


Parashat Emor



When Rabbi Akiva declared Bar Kochba to be the King Messiah, only one rabbi stood up to him. “Weeds will grow in your jawbones, Akiva, and still the Son of David will not have come”, said Rabbi Yochanan ben Torata. (Yerushalmi Taanit 4:5) His line was likely an ironic inversion of Yeshayahu 66:14, “and your bones will flourish like grass”.

But who was Rabbi Yochanan ben Torata (lit: “son of a cow”)? Let me tell you a story.

Once there was a pious Jew who owned a cow. They worked hard together during the week, and they each rested on Shabbat. Eventually the Jew lost his money and was forced to sell the cow to a Gentile. The cow worked hard for the Gentile during the first week, but when Shabbat came she sat down and simply refused to move, no matter how much the Gentile yelled at her or how hard the Gentile prodded her.

The Gentile came to the Jew and tried to cancel the transaction on the ground that the cow was defective. The Jew, however, understood the problem. He went up to the cow and whispered: “Dear cow, when you were in my possession we both ploughed during the week and rested on Shabbat; now because of my sins you are in the possession of a Gentile, and I ask that you stand up and plough!” The cow obeyed, but the Gentile suspected witchcraft. When the Jew explained what he had said, the Gentile reasoned to himself: If a cow has that much awareness of its Creator, am I not more obligated to do so! Immediately he converted to Judaism. (Pesikta Rabbati 14)

That convert was Rabbi Yochanan ben Torata.

There are many halakhic difficulties with this story. A cow being obstinate once a week is not grounds for reversing a transaction, and a Jew is not allowed to tell an animal to work on Shabbat. But aggadic narratives often rely on our willful suspension of halakhic disbelief.

Other rabbinic narratives celebrate the spiritual intuition of animals, such as the donkey of R. Pinchas ben Yair, which would refuse to eat untithed grains. Or learn human obligations via a kal vachomer from animals, such as the frogs who self-martyred by jumping into Egyptian stoves. Or have cows be religiously persuadable, as when Eliayhu haNavi convinces the sacrifice of the priests of Baal to accept its fate on Mount Carmel. So there is nothing unusual about this story.

But why (other than his name), is it told about Rabbi Yochanan ben Torata?

I can find only three other possible references to him in Rabbinic literature.

a) Once, when Rabbi Akiva called him to the Torah, he refused the aliyah on the ground that he had not adequately prepared, and the Sages praised him. (Shemot Rabbah Ki Tisa 40:1)

b) He stated that the lips of Torah greats move in the grave when their words are cited. (Shir Hashirim Rabbah 7)

c) He stated that Shiloh was destroyed because sacred things were treated disrespectfully; Yerushalayim in its first form because of idolatry, sexual sins, and bloodshed: but that regarding the most recent destruction, we must acknowledge that the people were energetic in Torah study and punctilious tithers. Why were they nonetheless exiled? Because they loved money, and hated each other. (Tosefta Menachot 13:22)

It is tempting to connect each of these statements to a fundamental dispute with Rabbi Akiva about the Bar Kochba revolt:

a) One must not be hasty to apply the words of Torah; perhaps one has misunderstood them, and Bar Kokhba did not fulfill the Messianic predictions.

b) Eternal life is more important than this-worldly freedom.

c) So long as these social ills persist, it is foolhardy to seek to reverse the destruction – and our people have not stopped loving money or hating each other

The first two connections are highly speculative, but I think the third has legs. It certainly fits well with the tradition that Rabbi Akiva’s students died because they failed to treat one another respectfully.

Why was Rabbi Yochanan ben Torata the one rabbi capable of articulating this critique?

The story of the Shabbat-sensitive cow tells us that Rabbi Yochanan ben Torata converted not out of love of the Jewish people, but rather out of pure religious conviction. This is a situation that comes up regularly for conversion courts, and there are two ways to formulate the issue. One is pragmatic: Will a convert be able to sustain their commitment if they aren’t deeply connected to a community, or if they are regularly disappointed by a community? The second is fundamental: Is concrete ahavat Yisroel, love of the Jewish people as we are, with all our individual warts and collective flaws, an essential component of kabbalat hamitzvot? The story of Rabbi Yochanan ben Torata suggests that at least under certain circumstances we can make allowances for converts who are more connected to G-d than to people.

Moreover, there is something very striking about a convert who articulates positions that no one else is willing to say publicly. It takes courage to convert a person with courage, as one will likely be assigned some of the blame when they later take unpopular positions.

More sharply: Imagine that the Bar Kochba Revolt is beginning, and the rabbinic community is lining up behind him. The universally acknowledged gadol hador, the great scholar-leader of the generation, clearly believes the times to be Messianic. At this point a conversion candidate states during his interview that while he of course believes in the Messiah, it seems wholly implausible to him that the Messiah is anywhere nigh, and that the gadol hador – indeed the whole rabbinic establishment – has in his humble opinion succumbed to irrational exuberance. Would such a convert make it through the process?

One of the great beauties of Rabbinic tradition is its willingness to preserve even the sharpest of self-critiques, without allowing the possibility of error to lead to paralysis. I wonder if there were rabbis who specifically recognized the need for importing such a critique in a time of mass enthusiasm, and who welcomed Rabbi Yochanan ben Torata specifically because of his stance rather than despite it. I like to think that they did so even while disagreeing with him.

We should not need converts to fill the role of social critics; it is a terribly unfair burden to place on them. Happily our community today is sufficiently diverse that I don’t believe it is a necessary burden.

Moreover, it seems that the rabbinic community learned the wrong lesson from Bar Kochba’s failure, or at the least, that our political judgment is terrible. Bar Kochba failed despite rabbinic support, and Zionism succeeded despite rabbinic opposition. As a result, it is only in narrow sectors of Orthodoxy that messianic populism causes us to overlook ongoing social ills. Yet we cannot disclaim responsibility for those sectors.

Perhaps a subtle message of the Omer mourning is that Bar Kochba might have succeeded if he had paid more attention to Rabbi Yochanan ben Torata. At the very least, Orthodox Zionists, even as we properly and joyously celebrate the existence, success, and many incredible achievements of the State of Israel, need to ensure that we maintain a space and an open ear for the Rabbi Yochanan ben Torata’s among us.

Parashat Shelach


Rabbi Joseph B. Soloveitchik’s Ish HaHalakhah dominated the landscape of Modern Orthodox hashkafah for years.  More precisely, an image arising out of a partial understanding of the work dominated that landscape.  This image closely approximated the epigraph of the book – “the image of his father’s face appeared to him in the window” – which is to say that it caught the core of the Rav’s portrayal of his father and grandfather.  It had enormous value in explaining, validating, and valorizing the character of the Eastern European Talmudic scholar to an American Jewish culture with a tenuous-at-best relationship to rigorous traditional Torah study, and in more generally presenting halakhic dedication as enabling rather than inhibiting the development of a rich internal life.

Ish HaHalakhah’s influence far outstripped the range of those who actually read the book, let alone of those who read it in the original Hebrew.  Many eager readers (myself as a teenager, but I don’t think I’m projecting) gave up when they hit untranslated Greek characters in the opening pages.  So it can be no surprise that, as with all hyperintellectual books that become cultural touchstones, some errors and loss of context were the price of popularization. 

Such distortions are calibrated to the needs and desires of their time.  As a culture changes, they reverse roles and make the book’s message less rather than more accessible.

Here are three common perceptions related to the book that I contend are incorrect:

1) The Ish HaHalakhah represents the highest form of Jewish religiosity, rather than one among many powerful forms

2) Halakhah is the only form of access to the Divine Will that Orthodoxy should acknowledge, and there is no religious meaning to acts or intentions that are not channeled through the intellectual frameworks and practical mandates of halakhah.

3) The Ish Hahalakhah has no interest in determining Halakhah.  When the Talmud records halakhic disputes, he seeks only to explore the conceptual underpinnings of each position.  The same is true with regard to disputes among later commentators and decisors.

Let us begin with the question of whether the Ish HaHalakhah reflects the highest form of Jewish religiosity.  My evidence against this hypothesis is the book’s own description of its eponym, on page 15.

תעודתינו במאמר זה היא לחדור לתוך כבשונה של תודעת איש ההלכה ולעמוד על מהותו של טיפוס "מוזר ומשונה", המתגלה לעולם מתוך ד' אמותיו "המצומצמות", כשידיו מלוכלכות בשפיר ושליא.  ברם כדי לצאת ידי חובתינו במסה זו עלינו לפתוח בביאור סירטוט אופייני וקו יסודי בהשקפתו האונטולוגית של איש הדת בהשוואה אם איש הדעת - שמתוכם של השינויים וההבדלים שבין שניהם, נכיר את בעל הוויות אביי ורבא.

This section is translated as follows on pp. 4-5 of Dr. Lawrence Kaplan’s magisterial translation, Halakhic Man:

Our aim in this essay is to penetrate deep into the structure of halakhic man’s consciousness and to determine the precise nature of this “strange, singular” being who reveals himself to the world from within his narrow, constricted “four cubits” [Berakhot 8a], his hands soiled by the gritty realia of practical halakhah [see Berakhot 4a].  However, in order to fulfill the task, we must undertake a comparative study of the fundamental and distinctive features of the ontological outlooks of homo religiosus and cognitive man.  For only by gaining an insight into the differences and distinctions existing between these two outlooks will we be able to comprehend the nature of halakhic man, the master of Talmudic dialectics.


It is almost impossible for translations to capture allusions, especially when the alluded-to text is less known than the alluding text.  “master of Talmudic dialectics” is certainly more helpful to most audiences than “master of the challenges of Abbaye and Rava”.  But readers of the English have no way of knowing that the Rav is citing language from Talmud Sukkah 28a., and I contend that in this case the allusion is critical to meaning.  Here is the Talmud:

A beraita:

Hillel the Elder had eighty students –

Thirty of them were fit to have the Divine presence rest on them as it did on Moshe Rabbeinu;

Thirty of them were fit to have the sun stand still for them as it did for Yehoshua bin Nun;

Twenty of them were intermediate.

The greatest of them was Yonatan ben Uziel;

the least of them was Rabban Yochanan ben Zakkai.

They said regarding Rabban Yochanan ben Zakkai that he did not leave aside

mikra or mishnah,

gemara, halakhot, and aggadot

didkdukei Torah and dikdukei Sofrim,

kalim vachamurim and gezeirot shavot

tekufot and gematriot,

the discourse of the ministering angels

the discourse of demons

the discourse of dekalim

parables of washermen

parables of foxes

great thing

lesser thing.

What is the meaning of great thing?  The Making of the Chariot;

What is the meaning of lesser thingThe challenges of Abbaye and Rava . . .

Many of the elements of Rabban Yochanan ben Zakkai’s curriculum are obscure, and can only be identified speculatively.  But there is no ambiguity about the status of “the challenges of Abbaye and Rava” relative to the status of “the Making of the Chariot”; it is davar katan, a lesser thing.

It follows that the Ish HaHalakhah, as the master of “the challenges of Abbaye and Rava”, is not the equal of one who is a master of “the Making of the Chariot”, and we have demonstrated that the Ish HaHalakhah is not the highest form of Jewish religiosity.

This naturally raises the question: Who is the master of the Making of the Chariot?

This question was the subject of great medieval controversy.  Rambam Laws of the Foundations of Torah 4:13 identifies the making of the Chariot with rational metaphysics, and he was sharply criticized for this by those who identified it with mystical experience instead. It is true that Ish HaHalakhah points out repeatedly that its eponym is not interested in either rational metaphysics or in mysticism.

But I contend that the Rav held a third position.  Rather, the key to the Rav’s hierarchy lies in a seeming paradox that Lord Rabbi Sacks raised many years ago: The Ish HaHalakhah would clearly have no interest in reading the Rav’s book about him, let alone in writing it!  I contend that for the Rav, the master of the Making of the Chariot is the author, not the subject, of the book.      

In a subsequent installment, I will seek to justify that claim on the basis of Halakhic Mind.  But I will first seek to demonstrate the incorrectness of the other two misperceptions listed at the outset of this essay, on the basis of Halakhic Morality and the Rav’s lomdishe account of semikhah, respectively.  Please stay tuned, and I very much welcome anticipatory questions, challenges, and comments.

Shabbat shalom!

Parashat Tetzaveh

Purim, Anti-anti-semitism, and Modern Orthodoxy[1]

Megillat Esther opens with a massive all-male drinking party at King Achashverosh’s palace, then cuts to an all-female drinking party at the queen’s palace.  Disaster strikes when the king demands that Queen Vashti switch parties* while “wearing the crown of royalty, so as to show the nations and the officers her beauty”.  The midrashic suggestion that she was ordered to come wearing only the crown captures the atmosphere of the verse perfectly, although the specific facts necessary to create that atmosphere may well be culturally dependent. 

                Vashti refuses, and the king (at least) banishes her and removes her queenship.  It’s not clear whether we are supposed to sympathize with her (in which case her role in the story is to help establish Achashverosh’s character and explain Esther’s handling of him), ignore her, or celebrate her downfall (thus the midrashim which suggest that Achashverosh was essentially imitating her humiliation of Jewish women).

                A key question is whether Achashverosh’s demand of Vashti is a breach of Persian morals or not.  If it is, it generates a whole social breakdown, as all the virgins in Persia are now put on display for the king, and all the women are put on notice that they may not refuse any of their husbands’ requests.  Ironically, it is precisely this breakdown that enables the reversal of fortune at the megillah’s end – Esther invites the king and Haman to drinking parties, and Haman’s fate is sealed when the king reasonably suspects that such drinking parties lead to debauchery.

                Now how do the Jews relate to all this?  The midrash reasonably assumes that they participate in the party (the midrash also notes that no reason is given for the party, and suggests that it was about the failure of the promised Jewish redemption to arrive – thus the use of כלים מכלים שונים in 1:7, which the midrash identifies with the Temple vessels), and there is no hint in the text that they object to the chauvinist decree or the taking of the virgins.  To all accounts they participate כדת*, in accordance with the law – a term which appears in 1:8 (describing the drinking), in 1:15 (regarding Vashti’s fate), and in 2:8 and 2:12 (regarding the collection and preparation of the virgins, described as “in accordance with the דת of women”). 

                But Haman does not see it that way.  The Jews, he declares in 3:8, have different דתs than any other nation (ודתיהם שונות מכל עם – note that the word שונות recalls וכלים מכלים שונים, and is likely a basis for identifying those with the Temple vessels), and they do not follow the דתs of the king.  Is Haman correct?  Or is this an anti-Semitic projection?*  Regardless, in 3:15 the king’s דת becomes that the Jews are to be exterminated.

                The truth is that one Jew – Mordekhai – refuses to obey one order[2] of the king – bowing down to Haman.  I suggest that Mordekhai sees Haman as ambitious and a threat to the king, whose life Mordechai has already saved.  ונהפוך הוא – it is Mordekhai’s loyalty that exposes him to the charge of being a Vashti.  At the same time, we learn that Haman may be somewhat hen-pecked, despite the king’s banishment of Vashti.

                In 4:16, the plot turns when Esther agrees to approach Achashverosh אשר לא כדת, after protesting that all the people of all the nations know better.  In other words, she makes Haman’s charge true – her דת is not the king’s, and different from those of all other nations.  In 8:13 the king overwrites his דת of extermination, and in 9:13 we learn that the new Jewish דת involves hanging the ten sons of Haman.

                Is that all there is to Persian Judaism – does ונהפוך הוא (see 9:1) change only who’s on top and who on bottom, but not the nature of society?          

                As of 8:17, that seems to be the case – the Jewish reaction to victory is – a drinking party!*  In which they are apparently joined by many nonJews, who are now afraid of them.  In other words, they have become Achashverosh.

                But in 9:19, a new feature (mitzvah – דת?) is added to the day – now in addition to the drinking, there must also be mishloach manot, reflecting some recognition of community,  and in 9:22, a radically new דת – מתנות לאביונים, gifts to the poor.* 

                Until 9:22, the Megillah is a court farce, and one might be forgiven for thinking that the entire plot relates only to the wealthy elite –perhaps the extermination plan seemed total to them because they simply didn’t consider the poor.  But over time, the Jews – perhaps prodded by Mordekhai and Esther – recognize that this episode should cause them to question the whole moral structure of Persian society, and so their דתות in fact become different than those of other nations.*  .  (If I were a dyed in the wool liberal I would connect this to Mordekhai raising taxes as well, but I’m not.) 

                Most specifically, the Jews become the antithesis of Amalek, which attacks specifically the weak.*  We reject the evolutionary imperative and preserve those who cannot protect themselves.

                The challenge of this reading is that it makes anti=Semitism the spur of Jewish morality.  We are blessed to live in a society in which caring for the less fortunate or less able is an almost universally agreed upon דת, although we disagree strongly about how best to accomplish that.  But there are other areas in which there is profound pressure to fall into step with the immoral moral expectations – the דתות – of the society that surrounds us.         

This is especially true of Modern Orthodoxy.  I confess that the first chapter of the Megillah always puts me in mind of a group of male Orthodox college students I once knew who would drink themselves into oblivion each Friday night, but tried hard to send the female students home (to their own parties?) before they completely lost control over their behavior.

                Nonetheless, I don’t think that self-ghettoization is effective, and it has its own corruptions.  The yetzer hora (evil inclination) finds its way through cracks in the walls, and is all the more effective when unrecognized. 

But openness to influence must be balanced with a firm sense of identity and moral self-confidence – we must be willing to be out of step, even if that causes us to pay a heavy social price – even if we are no longer invited to the parties, or lose influence in political parties.  “Everyone thinks that” is no more an excuse for us than it was for Esther.


[1] I had the pleasure of listening as Rabbi David Silber taught Megillat Esther to one of my tenth grade classes at Gann Academy in 2013, and thought that several of his ideas deserved to be passed on.  So this dvar Torah is admittedly derivative, although of course I take full responsibility for any errors.  I have asterisked the points I recall specifically from Rabbi Silber.


[2] Which is, interestingly, never called a דת, but rather a צווי

Parashat Terumah

Some Kind of Blue? Tradition, Tekhelet, and the Rav

The color of an object can be defined by the wavelengths of light that it reflects, which means that objects really have no color at all.  Identical reflected lightwaves can then hit human retinas and generate wholly different mental experiences.  Wittgenstein thought that our capacity to communicate about color at all was miraculous.  Regardless, there is no way to convey subtleties of color reliably through pure language.   

For this reason, halakhic treatments of color are heavily based on practical tradition.  Which colors create niddah and which don’t is learned by show and tell, not by reading ArtScroll.  

All this by way of introduction to the topic of tekhelet, the dye of uncertain color (sky-blue? sea-green? wine-dark like the Homeric ocean?)  that was used in the High Priest’s garments and that we have a mitzvah to place on our tzitzit.  The fundamental halakhic difficulty with tekhelet is that it disappeared from history for a millennium.  In “Two Types of Tradition” (שעורים לזכר אבא מרי ז"ל כרך א), the Rav made famous a family tradition about his great-grandfather the Beit Halevi’s response to the Radziner Rebbe’s attempt to recover tekhelet in the late nineteenth century.

ידוע מה שאירע 

בין זקני הגאון רבי יוסף דוב הלוי ובין האדמו"ר הגאון מראדזין 

,בנוגע לתכלת שבציצית 

.שהרבי מראדזין חידשה וציוה לכל חסידיו להטיל תכלת בציציותיהן

האדמו"ר ניסה להוכיח על יסוד הרבה ראיות 

.כי הצבע הזה הוא באמת התכלת

רב יוסף דוב טען כנגד ואמר 

שאין ראיות וסברות יכולות להוכיח שום דבר 

.במילי דשייכי למסורת של שאל אביך ויגדך  

:שם אין הסברה מכריעה כי אם המסורה עצמה  

.כך ראו אבות וכך היו נוהגים וכך צריכים לנהוג הבנים

It is well known what happened 

between my ancestor the Gaon Rav Yosef Dov Halevi and the ADMOR Gaon from Radzin 

with regard to the tekhelet in tzitzit,

that the Rebbe from Radzin renewed it and ordered all his chasidim to put tekhelet among their tzitzit. The ADMOR tried to demonstrate on the basis of many proofs 

that this dye is in truth the (halakhic) tekhelet.  

Rav Yosef Dov countered that proofs and rational arguments cannot demonstrate anything 

with regard to matters that affiliate with the tradition of Ask your father and he will tell it to you

In such matters, reason is not decisive, but rather the tradition itself:

This is what the fathers saw, and so they practiced, and so the children must practice.

 The Rav understood the Beit HaLevi to be sealing the issue of tekhelet off from the realm of argument and discussion.  What is not clear is exactly what aspect of tekhelet is off-limits to reason and evidence. 

I always thought the issue was color; how could we possibly know that we had matched the Torah’s intent or Chazal’s practice?  The discovery of ancient tekhelet textiles would not help with that, as surely even a colorfast dye will change significantly over a thousand years.  The fascinating disputes about how best to restore medieval paintings suffice to demonstrate this.

But rereading the Rav’s essay this week, it seemed more likely that he had in mind the identity of the chilazon, the creature from which the dye is produced.  But this made his claim much harder to accept - why shouldn’t archaeological or chemical evidence be sufficient to identify ancient dye works, and then the chilazon?  

The Rav makes the identity of the chilazon a quasi-halakhah l’Mosheh miSinai, and analogizes identifying the chilazon to identifying the etrog as the pri eitz hadar required by Vayikra 23:40.  Let us accept the analogy for the sake of argument.  If the identity of the etrog were lost for a thousand years, there would be a reasonable basis for claiming that it could not be restored on the basis of arguments from texts, no matter how clever or clear.  But if we found an ancient repository of palm, willow, and myrtle branches, and together with them the right quantity of one and only one species of fruit, would that not be sufficient grounds to reconnect us with the original tradition?  

Proponents of contemporary tekhelet make this argument, with a shiur by Rav Herschel Schachter providing far and away the most coherent and compelling version I have heard or seen.  But Rav Schachter adds a wrinkle.  As part of the ongoing debate over his tekhelet, the Radziner published on p. 13 of the introduction to his Ein HaTekhelet a letter that he described as being an authorized representation of the Beit Halevi’s position.  That letter seems to undermine the Soloveitchik family tradition.    


הגאבד"ק בריסק דליטא שיחיה 

מסר כל טעמו ונימוקו בדבר מיאונו במצות התכלת 

לאחד ממיודעינו 

:שיכתוב ויאמר לנו משמו בזה הלשון

,כמע"ל לא ביאר בדבריו מה זאת מצא אחר שנשכח

,אם מציאת הדג או הוצאת צבעו

,ורק אחרי אשר כמע"ל יברר זאת, היינו האם היה בזה דבר הנשכח והוא מצאה

.אז נהיה מחויבים לשמוע אליו וללבשו

,אכן אם נאמר כי  הדג היה במציאות

,וגם הוצאת צבעו היה ידוע בכל זמן מהזמנים שעברו עלינו מעת שפסקה התכלת בישראל

,ועל כל זה לא לבשוהו אבותינו ואבות אבותינו

הרי הוא כאילו יש לנו קבלה ומסורה מאבותינו

כי זה הדג וצבעו איננו החלזון והתכלת

,אף שהוא בכל הסימנים שסמנו חז"ל

.כי אפילו נרבה כחול ראיות, לא יועילו נגד הקבלה והמסורה

ורק אחרי אשר יברר לנו כי דג זה או מלאכת צבעו נפסק ונשכח מציאתו או ידיעתו בשום זמן מהזמנים ונפסקה בזה הקבלה, אז יהיה לנו דברי ההלכה לראיה

.ע"כ דבריו שיחיה

The Gaon Av Beit Din of Brisk in Lithuania, may he live, 

gave over all his reasons and rationales in the matter of his eschewing the mitzvah of tekhelet

to one of our intimates, 

so that he would write and say to us in his name, as follows:

Your Honor did not explain in his words what it is that he found after it had been forgotten.

whether it is the finding of the fish or of the way to extract its dye,

and it is only after Your Honor explains this,

namely whether there was something here that was lost and that he found,

that we will be obligated to heed him and to wear it.

However, if we say that this fish was in existence,

and the extraction of its dye was known in all the times that have passed over us from the time that tekhelet ceased to be in Israel,

and that despite all this it was not worn by our fathers and our fathers’ fathers,

that would be as if we had a received tradition from our ancestors

that this fish and its dye are not the chilazon and the tekhelet

even if it fits all the identifying characteristics given by Chazal,

and even if we multiplied proofs like sand,

they would not prevail against a received tradition

Only after it became clear to us that this fish or the craft of making its dye had its existence or knowledge ceased and forgotten at some time and this interrupted the reception,

then we would use the words of the halakhah as proofs.

Rav Schachter reads this letter as saying that empirical evidence is perfectly sufficient in the absence of a positive tradition, but cannot overcome a negative tradition.  In this case the negative tradition was that no known creature and manufacturing process could yield tekhelet.  Rav Schachter then cites Rav Elyashiv as finding the Radziner’s letter a more plausible account of the Beit HaLevi’s position than the Rav’s report, and this seems clearly to be his own opinion, even though the Rav’s report is confirmed by other branches of the Soloveitchik family.

Now the whole point of “Two Types of Tradition” is that students can challenge their teachers’ intellectual traditions but must simply receive their practical traditions.  Rav Schachter implicitly points out that this metatradition of the Rav is grounded in intellect, and therefore can be challenged and even rejected by his students.

I suggest that metatraditions by their nature as abstractions are always grounded in intellect rather than pure reception, and therefore can never have unchallenged authority.  A claim of authority on the basis of tradition is therefore never self-sufficient.  It can succeed only if there is a shared prior metatradition about the authority of tradition, and that metatradition will be accountable to the ordinary intellectual processes of Torah.

Even without Beit HaLevi’s authority, however, I find the argument that color requires a live tradition to be powerful.  Furthermore, Beit HaLevi seems to have been quite right in doubting that the Radziner had properly identified the chilazon with the cuttlefish, and I remain unconvinced by the partisans of murex trunculus (with the caveat that Rav Schachter argues that neither precision of color nor of mollusk are necessary).  The barriers to reconstructing lapsed traditions such as tekhelet should not be impassable, but they can and should be quite high.

Parashat Mishpatim

Moral and Other Sevarot

A fundamental premise and moral of Talmud study – the one lesson without which (in my humble opinion) one has learned little or nothing – is that reason (practical and pure) and revelation need each other.  It is arrogance to believe that one can discover the truths of Torah simply by looking into oneself or by unaided contemplation of the world; it is megalomania to believe that one can understand Torah without the mediation of human intellect.  

Our tradition demands that we develop a dialectical epistemology, an approach to truth that balances and interweaves autonomous investigation with acceptance of the received Word.

Talmud is often taught and learned without explicitly referencing this issue, and “dialectical epistemology” is not a self-explanatory phrase.  So I’ll try to provide in this week’s essay a clear illustration of what I mean.

Bava Kamma 46b records a halakhic dispute between Symmachus and the Sages in the following case:  An ox gored a pregnant cow to death, and the cow was found next to its stillborn calf.  Do we presume that the stillbirth occurred before the goring, or rather that it was caused by the goring?  Symmachus says that the issue is in doubt, and so the gore-r pays half of what he would pay were his responsibility clear; the Sages say המוציא מחבירו עליו הראיה = “The one who wishes to take something away from his fellow has the burden of proof”, and so the gore-r pays nothing.

Several hundred years later, R. Shmuel bar Nachmani asks: What is the Biblical source for the Sages’ principle?  He responded by citing Exodus 24:14.

וְאֶל־הַזְּקֵנִ֤ים אָמַר֙

שְׁבוּ־לָ֣נוּ בָזֶ֔ה עַ֥ד אֲשֶׁר־נָשׁ֖וּב אֲלֵיכֶ֑ם

וְהִנֵּ֨ה אַהֲרֹ֤ן וְחוּר֙ עִמָּכֶ֔ם

מִי־בַ֥עַל דְּבָרִ֖ים יִגַּ֥שׁ אֲלֵהֶֽם

יגיש ראיה אליהם.

To the Elders he said:  

Sit for us in this situation until we return to you

and behold Aharon and Chur with you

whoever is a baal devarim (= plaintiff) yigash (=will draw near) to them

meaning that he will draw-near a proof to them.

R. Ashi then attacks Rabbi Shmuel bar Nachmani’s premise:

הא למה לי קרא!? סברא הוא!?

דכאיב ליה כאיבא, אזיל לבי אסיא!?

Why should a verse be needed?!  This can be derived from sevara (=reason)!?

The one who experiences the pain goes to the house of healing!?

Rav Ashi’s attack appears to be based on the claim that unaided practical reason can reliably derive some Halakhic truths.  The relevant halakhic truth here seems roughly equivalent to “Possession is nine-tenths of the law.”  Since not all halakhic truths can be derived in this way, Revelation is still needed, but only to supplement reason.  We therefore expect Rav Ashi’s attack to be followed by an understanding of the verse as teaching such a supplemental truth, and we are not disappointed:

אלא קרא לכדר"נ אמר רבה בר אבוה,

דאמר רב נחמן אמר רבה בר אבוה

מניין שאין נזקקין אלא לתובע תחלה,


מי בעל דברים יגש אליהם –

יגיש דבריו אליהם.

Rather, the verse is needed (as the basis) for R. Nachman in the name of Rabbah bar Avuha,

for R. Nachman bar Avuha said:

What is the Biblical source for the principle that we take cognizance only of the plaintiff initially?

Scripture says:

Whoever is a baal devarim (=the plaintiff) will yigash (=draw near) to them –

meaning that he will draw-near his words to them.

This new conclusion seems unrelated to its predecessor; rather than establishing who has the burden of proof, it establishes a principle of judicial procedure.  However, Rashi draws a connection:


ראובן תובע משמעון מנה שהלוהו (בעדים או בשטר)

ושמעון משיבו 'תפסת משלי - החזר לי מה שתפסת',


'משכון היה בידך ונפחת מדמיו, שנשתמשת בו' –

בתחילה נזקקין לטענת ראובן ומוציאים לו המנה משמעון,

ואחר כך נזקקין לו לטענת שמעון לדון על דבר התפיסה והמשכון.

An example (of taking cognizance only of the plaintiff initially) is

Reuven sues Shimon for a mana that he has lent him

Shimon replies: ‘You (illegitimately) seized something of mine -  return what you have seized’


‘You had my pledge in your possession and it lost value, because you made use of it' –

We initially take cognizance of Shimon’s claim and extract the mana from Shimon for him,

and afterward take cognizance of Shimon’s claim to judge the matter of the seizure or the pledge.

According to Rashi, Rav Nachman is not introducing a new axis.  Rather, he introduces a special circumstance in which Rav Shmuel bar Nachmani’s principle is true but its implications are not obvious.  What happens when the defendant counterclaims, and offers to bring proof?  The verse teaches that the burden of proof needs to be met only with regard to specific claims, rather than to the general financial balance between the parties.  To extract money from Shimon, Reuven needs to prove only that Shimon’s owes him, even if the possibility remains that he has equal or greater counter-obligations.  

Rav Nachman’s statement should end the sugya.  Instead, the Talmud cites an astonishing coda:

אמרי נהרדעי:

פעמים שנזקקין לנתבע תחלה.

והיכי דמי? דקא זילי נכסיה.

The Nehardaens say:

Sometimes we take cognizance of the defendant initially.

When is that?  When his assets are losing value.

Rashi provides two illustrations of losing value.  

  1. when Shimon has a deal in place to sell the object he is counterclaiming from Reuven.  

  2. when Shimon is under financial pressure and will have to sell his real estate at a below-market price in order to pay Reuven.  

The common denominator of these cases is that the Nehardeans disregard R. Nachman’s clarification when they see it as generating injustice, despite its Biblical derivation, and even though their standard of injustice is derived solely from intuition.  What entitles them to do this?

With this question in hand, let us return to Symmachus and the Sages, and ask an almost opposite question.  If the Sages’ principle is so obviously true that no verse is needed to teach it, how could Symmachus disagree with them?  

The answer is that Symmachus also addressed a special case.  How heavy is the burden of proof?  In many areas of halakhah, a probabilistic argument (=rov) is sufficient – if it can be demonstrated that possibility X is more likely than possibility Y, halakhah will treat X as true.  Symmachus held that such a demonstration was also sufficient for the purposes of extracting money, but the Sages disagreed.  (Perhaps the Sages believe that Revelation is needed to overrule Symmachus.)

ROSH (Bava Kamma 5:1) collects several interpretations that disagree with Rashi’s.  Rabbeinu Tam, for example, thinks that Reuven’s claim must be for personal injuries rather than property damage, and ROSH thinks that in such a case Shimon doesn’t even get the standard 30-day stay of judgment to collect exculpatory evidence.  RIVA interprets “taking cognizance of only the plaintiff initially” as meaning that the plaintiff gets to put his full case on before the defendant rebuts, and wins the case even if the defendant plausibly claims that his witnesses died or left town owing to the delay.  RAAVAD interprets it as giving the plaintiff the right to suspend his case indefinitely without prejudice, even if the defendant asks for a verdict.  

What matters for us is ROSH’s summary comment:  

וכל הני פירושי סלקי אליבא דהלכה

דסברות גדולות הם:

All these interpretations come out in accordance with the halakhah,

because they are in great accord with reason (=sevarot gedolot).

What sort of reason?  Remember that Rav Ashi gave what appeared to be homespun wisdom via analogy – the burden of proof is on the plaintiff, as why should the healthy party (=the party in possession) go to the doctor (=beit din)?  Shitah Mekubetzet cites Rav Yehonatan as offering a very different interpretation:

כלל גדול נתן משה רבינו עליו השלום לשבעים זקנים ואהרן וחור

שלא ידינו שום אפוקי ממונא בדעת מכרעת וברובא

אלא בראיה.

סברא הוא דכאיב ליה כאיבא אזיל לבי אסיא –

לא היה צריך משה להזהירן,

דפשיטא הוא דלא גרע דין אחד ממשפט הרופאים,

שאין הרופא דן את החולה לפי סברתו לבדו

עד שאומר לו החולה 'ראשי כבד עלי ובמקום פלוני', 'ומשתנה עלי במקום פלוני למקום פלוני',

ולפי שהוא מראה לו פנים הוא דן אותו

כך התובע צריך להראות לו פנים שתביעתו חזקה וברורה

כלומר בעדים.

Mosheh Rabbeinu of blessed memory gave a broad principle to the seventy elders and Aharon and Chur

that they should not extract any money judicially on the basis of compelling reason or probability

rather (only) via proof.

But (Rav Ashi held that) “the one who experiences the pain goes to the house of healing”

and therefore Mosheh did not need to command them about this,

since it is obvious that legal judgement does not require less care than medical judgement,

and a physician does not judge the patient on the basis of his unaided reason

rather he waits for the patient to say “My head is heavy and hurts in that place”, or ?

and he judges in accordance with what the patient makes apparent to him

so too the plaintiff must show that his claim is strong and clear,

namely via witnesses.

According to R. Yehonatan, reason teaches that one cannot extract money on the basis of reason alone!

Bottom line: Reason can be a source of halakhic truth.  When this appears to make a verse of Revelation redundant, we may interpret that verse as limiting or countering the halakhic truth derived from reason.  But this does not shake our underlying epistemological faith in reason, so we may limit that limit on the basis of reason.  This cycle can and should be iterative.  Shabbat shalom.      

Parashat Yitro



Based on a lecture by Rav Michael Rosensweig.  Rav Rosensweig’s later written version was published as Personal Initiative and Creativity in Avodat Hashem" in The Torah U-Madda Journal Vol. 1.

summary written by Aryeh (Robert) Klapper, originally published in Hamevaser, Iyar 5748/May 1988)   All errors of formulation, fact, etc, are Rabbi Klapper’s.


In the beginning, God performed the utterly inimitable creation ex nihilo, out of nothing.  Yet man is required to emulate all of His ways - “lehidamot lo kemah she’efshar”, “to be similar to him to the extent possible”.

Creativity and submission clash constantly in Jewish thought.  “One should not rely on miracles”, but Ramban claims that each moment of existence is a hidden miracle.  Prayer and Kabbalah are means of “affecting” the Divine, but both are aspects of avodat Hashem (service of G-d).  And finally, “No one is free except those who have accepted upon themselves the yoke of heaven.”  From that paradox, the necessary synthesis emerges.  Human beings must create, but only for the greater glory of G-d.  And we must realize that we can at best rediscover Divine truths or develop our own tzelem Elokim (Divine image); we can but transform the yesh G-d brought into being.

Rav Yosef Dov Soloveitchik teaches in Lonely Man of Faith that human beings have a religious obligation to create in both the physical and metaphysical realms, to build the world physically, spiritually, and even aesthetically.  And while the rigid Halakhic system limits human autonomy greatly, unmoderated inflexibility leads to the ritualism Yeshayahu denounced and the legalism so often criticized today.  Judaism must provide a way for human beings to achieve a personal relationship with G-d.

Gershom Scholem writes that every religion creates mysticism in reaction to increasing formalization, surviving undivided if the formal structure allows accommodation.  Kabbalah, however, is neither accessible nor attractive to all.  And extra-halakhic religious systems hold the danger of subjectivism, which Rav Soloveitchik teaches in Halakhic Mind is actually self-worship.

Torah provides several non-mystical outlets for human creativity within the halakhic system.  Sefer Hachinukh, for example, believes circumcision to be an act of self-perfection, and possibly the mitzvah of “zeh keli v’an’veihu”, of beautifying mitzvot, allows human beings to redefine cheftzot shel mitzvah, mitzvah-objects.  Rambam in his Commentary on the Mishnah explains that God gave the Jews many mitzvot so that each would find one to excel in and be particularly inspired by.  The permission of tefillas n’dovoh, voluntary prayer, provides similar opportunities to personalize religion.  Finally, most rishonim encourage the search for ta’amei hamitzvot. rationales for commandments.  Sefer Hachinukh among others believes that each commandment has multiple reasons, enabling each Jew to personalize their kavannah while performing it.

The Yerushalmi extends the tension between creativity and submission to the realm of talmud Torah.  
“Kol mah she’atid talmid vatik lechadesh k’var ne’emar l’moshe misinai”, “Everything a veteran student will originate in the future was already said to Moshe at Sinai”.  The tradition is both vast and rigid.  But it also contains ample evidence of individual contribution.  “Chayav adam lomar davar b’shem omro”, one must identify the Torah one has learned with the one who taught it.  The dialectic method pioneered by the Ba’alei haTosafot revolutionized Talmudic studies in the Middle Ages, as did the pilpulists in the fifteenth century and Brisk in the nineteenth.  Various scholars of the fifteenth and sixteenth centuries claimed that Eliyahu haNavi had revealed himself to them, giving their works a legitimate source outside the received tradition.

David Singer and Moshe Socol recently argued in Modern Judaism that the Rav’s description of his grandfather as a revolutionary resulted from the influence of modernity on his thought, that chidush is actually antithetical to halakhah.  Their position was considered and rejected by the Tanna Rabbi Elazar ben Azariah, who once asked his students “Mah chidush ne’emar hayom?”, “What of originality was said today?”  They replied in surprise “v’halo talmidekha anu?”, “Are we not your students?”  How can we say anything that you have not already heard?  And he told them: “There cannot be a House of Study without chidush”.  The Yerushalmi itself believes that a veteran student can be mechadesh.  Yet the concepts of mesorah and y’ridas hadoros (continuous decline of the generations dating from the Sinaitic Revelation) would seem to exclude any sort of development or progression.

Judaism solves the creativity-submission conflict by incorporating chidushim into the Mesorah.  A talmid vatik can be mechadesh, but the chidush is valid only insofar as it can be included within the Sinaitic revelation, only to the extent that it is rediscovery.  

This solution does not, however, account for the concept of “eilu v’eilu divrei Elokim Chayim”, “These and those are the words of the living G-d”.  The Talmud applies this concept to directly contradictory opinions.  Such opinions cannot be contained within an ordinary tradition.

But the Mesorah is no ordinary tradition.  The Mishnah tells us that every word heard at Sinai divided into seventy voices, that multi-dimensionality was built into the Mesorah at its start.  When Moshe Rabbeinu went up to the heavens, he saw the Heavenly Court developing forty-nine reasons for both permission and prohibition on ritual issues, and he was told “nims’ru lechakhmei yisrael vehahakhra’ah k’mosam”, “They have been given to the sages of Israel, and the decision is theirs”.  Maharal believes that all opinions arrived at by legitimate methods on halakhic issues have significance, albeit those accepted lehalakhah have more; each issue has “aspects of tum’ah and aspects of taharah”.  And Ritva believes in multiple truth, that somehow mutually exclusive opinions on halakhic issues can be true simultaneously.

The justification for this fragmentation of tradition is Judaism’s acceptance and validation of the uniqueness of every human being.  The Mishnah tells us that because of that uniqueness, “chayyav kol Adam lomar: ‘bishvili nivra haolam’”, “Every human being must say: ‘The world was created for me’”.  And Tanchuma points out that individuality is more than skin deep: “Just as their visages differ from each others’, so do their minds”.

If initiative is permitted, then it is obligatory; imitatio dei cannot be disregarded in talmud Torah, the most spiritual activity of all.  The passion of the Beit Hamedrash, “milchamtah shel Torah”, derives from the religious nature of the intellectual battle in Torah.  But again the emotion and the creativity must be within the system: “afilu av uvno v’rabi v’talmid bish’as limud na’asim oyvim v’eynam zazim misham ad shena’asim ohavim”, “Even a father and son or Rav and student become enemies during study, but do not leave (their studies) until they become friends”.  The words of Torah are “ever-multiplying” yet “fixed as driven nails”.  Chidushim are valid only insofar as they possess both characteristics.

Perhaps the most poignant testimony to the value of human initiative in Torah comes from the Vilna Gaon, who turned down a dream-maggid’s offer to teach him the entire Torah effortlessly.  But throughout Jewish history scholars have defended man’s right and need to earn the Torah and make it his own.  Geonic opponents of codification argued that its costs outweighed its benefits, that preventing misinterpretation was not as important as making sure people learned the original sources.  The Maharal’s brother protested the Shulchan Arukh on Tanchuma’s grounds; as people’s minds differ from one another, each can extract something unique and valuable from halakhic texts.  The Maharal in Netivot Olam railed against those who pasken from sifrei psak (handbooks of halakhah) without checking the original sources.  “Ein l’dayan ela mah she’eynav ro’os”, “A judge cannot take into account anything other than what his eyes see”; psak given from secondary sources is a case of the blind leading the blind.

The abuses feared by opponents of codification have never been more evident than in our era, in which reliance on summaries and English “how-to” books, and to a lesser degree on the Mishnah Berurah, have made the Magen Avraham and even the Taz obsolete.  Sadly, never has the need for such reliance been more widespread.  Yet specific historical eras encourage sensitivity to certain issues, and we must believe that our generation has something unique to contribute.  If this seems presumptuous of us, if we are accused of ignoring the concept of y’ridas hadoros, our response must be an abiding faith in the progression of ideas and the unfolding of mesorah.

Even those less experienced and less talented are valuable links in the chain of mesorah.  Individual responses are important in both lomdus and hashkofoh, and the inevitable subjectivity created by the order and amount of the posek’s exposure to sources plays a legitimate role in psak.  But one must constantly challenge his or her own objectivity to avoid subjectivism and self-worship.

Not all ideas about and in Torah are worthwhile.  Tosafot denounces “charifus shel hevel”, “worthless sharpness”, as does Maharal “pilpulo shel hevel”.  Capacity to be mechadesh requires a minimum level of knowledge, method, and the parameters of conceptual plausibility in halakhah and machshovoh, plus exposure to real and textual rebbeim.  But given those conditions, every Jew has the right to view themselves as a potential contributor to and transmitter of the Mesorah.  We have the obligation to pursue truth with passion yet with the utmost respect for our predecessors in the eternally unfolding Mesorah.

Parashat Bo 5777

Dear Rabbi Klapper,


In the last number of years the question of women's role in spiritual leadership in the synagogue in the Modern-Orthodox community has been a contentious issue. The issue has touched on both halakhic discussions as well public policy concerns, the pace of evolution in the halakhic community and "political" concerns related to relationships with other segments of the community. Wherever one falls on the question of the wisdom of whether move "x" or "y" should have been done at point "a" or "b" in the last five years, certain realities now exist in a number of shuls throughout North America. To that end I would like to hear your perspective, in writing, on the following questions:


1. On a halakhic level, do you believe that an Orthodox shul that employs a God-fearing, observant, learned woman in a clerical role, consistent with the shul's understanding of kedushat beit haknesset and within the other parameters of Orthodox halakha (e.g mehitzah, use of traditional prayerbook etc.) fully retains its status as an Orthodox shul and "mikdash me’at"?


2. What is your view, if the woman employed fills the exact same role as in #1 but uses the title "Maharat"?


3. What is your view if the woman employed plays the exact same role but also has the title "Rabba" or "Rabbi"?


Kevod Horav X,

I am honored by the request you convey, and will do my best to convey my opinion.  I hope it will be helpful as the Orthodox community ponders these weighty issues.

On issues of such moment and controversy, clarity and nuance are both vital.  I will therefore begin by stating two bottom-line commitments as clearly as I can, and then proceed to nuanced analysis.  Here are those commitments:

1.  It is necessary and positive for women to be hired as religious professionals in Orthodox communities.  Any such role can be defined as “clerical”; therefore I oppose any blanket ban on women playing clerical roles.  

2.  It is necessary and positive for Orthodox women to attain semikhah-level competence (and far beyond) in Talmud and halakhah.  Women who attain such competence must be given titles that attest to their achievement, for both practical and ethical reasons.

And now for the nuanced analysis:

One challenge in dealing with the question as formulated is that so many of the terms used have no direct halakhic translation.  For example, the category “clergy”, and the term “clerical role” are English words derived from categories external to Judaism.

The question of whether hiring women to play “clerical roles” violates halakhah is therefore one of definition.  Those who seek to exclude synagogues with female clergy will argue that such women will inevitably, now or in the near future, play all clerical roles; those who seek to include such synagogues will argue that all such roles will be tightly circumscribed in accordance with “mainstream” halakhah.  The flexibility of the category even within Orthodoxy is easily demonstrated by a review of the literature about the parsonage tax privilege.

Another challenge is that “Orthodox” is not identical with “halakhically defensible”.  Shuls have been accepted as Orthodox that engage openly in halakhically prohibited behavior, and “Orthodoxy” can legitimately choose to exclude synagogues for halakhically defensible behavior that it deems immoral, unethical, or unwise.  Orthodoxy is a religious coalition whose parameters are legitimately determined by hashkafah, realpolitik and sociology as well as halakhah.

Mikdash me’at is somewhat different.  The term is almost certainly a melitzah, but it may be one with a halakhic definition, namely that what takes place within it fulfills the obligation of avodah shebelev, and that we would encourage someone to daven there betzibbur rather than davening alone.  

By way of illustration: I believe that there has been an Orthodox consensus for some time that one should rather pray alone than pray in a mixed-pew congregation, and a plausible argument that one who prayed in a mixed-pew congregation is obligated to pray again.  By contrast, the famous proclamation that one should choose to not hear shofar on Rosh HaShannah than to hear it in a mixed-pew congregation is hard to justify on technical halakhic grounds, as to my knowledge no one has argued that a mehitzah is necessary for shofar-listening.  Rather, that proclamation must be understood as an attempted or actual takkanah, a legislative act by prominent rabbis who believed themselves to be broadly accepted as having such authority,

There is a reasonable ongoing prudential debate as to whether the titles given to women with semikhah-level competence in Torah and halakhah should include “rabbi”, רב, רבי, or an obvious feminine analogue such as רבה.  Those in favor argue that only such titles can create the proper equal respect for Torah scholarship etc.; those opposed argue that such titles will create a presumption that women can play all roles currently played by male rabbis, and that this presumption is false.  However, the legal arguments about whether one can give “semikhah” to someone who cannot fulfill all the roles of a “samukh” generally relate to intellectual competence, not to personal status issues such as gender, and have long been decided in practice on the side of minimal qualifications.

The prudential argument can only be settled authoritatively by a legislative act that enjoys consensus support within Orthodoxy.  I am not currently aware of any such act.  Therefore, while it is perfectly legitimate to oppose such titles with might and main, I think it is incorrect to say that the granting or acceptance of such titles is per se a violation of halakhah.  This is true kal vachomer of newly minted titles such as Maharat.  

Therefore, I think it would be greatly overreaching to declare that a synagogue that hires a woman as a member of its clergy, and calls her “rabbi”, has thereby violated halakhah, or that one who prays with a minyan in such a synagogue does not fulfill the mitzvah of tefillah betzibbur.  It remains a mikdash me’at, even if one thinks it has erred.  בדידי הוה מעשה - I myself have willingly davened in such shuls, without halakhic qualms.

The question of whether it remains an “Orthodox shul”, however, is very different – one can be halakhic on an ideological island, but one cannot meaningfully be Orthodox if the rest of what one recognizes as “Orthodox” excludes you.  It is also possible for such exclusion to eventually have a legislative as well as a sociological impact, and certainly more strident opponents will aim for and claim that impact.  Synagogues considering such innovations must consider the risks and rewards of their choices, as must the opponents of such innovations.

This cheshbon will necessarily be affected by one’s opinion as to the qualifications, piety, and observance of the women who have assumed these titles and positions or are likely to do so in the future.  If, for example, the most qualified, pious, and observant women are less likely to use the title “rabbi”, it seems foolish to fixate on the title.

I have a further difficulty with the question as formulated.  You ask my opinion solely about cases where the clerical roles in question are “consistent with the shul's understanding of kedushat beit haknesset and within the other parameters of Orthodox halakha (e.g mehitzah, use of traditional prayerbook etc.”  The problem, of course, is that the shul’s understanding of these concepts may differ from that of those who oppose hiring women for such roles, and its understanding, played out in practice, may have halakhic ramifications.

Note also that I have made no effort here to explicate which if any roles of the samukh or rabbi are not available to women, or to limn my own definition of kedushat beit knesset.  I am in the course of addressing some of the technical issues in my ongoing series on women and serarah.  But I want to set out here three negative principles.

  1. The halakhic consensus among religious Zionists is that Golda Meir could legitimately become Prime Minister of Israel.  At the least it must be acknowledged that many significant halakhic figures held this way.  Any limitation on women’s roles based on a concept such as serarah must be tested for plausibility against a sentence such as “women can be Prime Minister of Israel but not President of a Young Israel”, which to me is self-evidently absurd.

  2. There is no halakhic barrier to women issuing halakhic positions in areas for which they have been properly trained, and very likely there are situations in which they are obligated to do so.

  3. There is no reason that women cannot play the pastoral roles that make up the bulk of the duties of the contemporary synagogue rabbinate.

In the hope that this is useful to klal Yisroel and that I have not erred in my interpretations of Torah

Aryeh Klapper

15 Tammuz 5776/July 21, 2016


Parashat Va'eira

Do True Lovers Have Free Will?  A Philosophic Pilpul

in honor of the marriage of Tzipporah Machlah and Yehuda


Principle #6 of the Thirteen Principles of Belief reads: “I believe with perfect belief that all the words of the prophets are true”.  It is therefore astonishing that Meshekh Chokhmah asserts in his Introduction to Sefer Shemot that such belief is impossible.  


Here is his argument:

The prophecy of Mosheh is above the prophecy of all the prophets,

because the prophecy of the others is (certified) on the basis of signs and wonders,

and anyone who believes in signs, has in his heart an imperfection = יש בלבו דופי,

or else is certified via a prophet who is (already) presumed to be a prophet (on the basis of signs and wonders), such as Elisha via Eliyahu,

just that the Torah said to believe a prophet who displays signs and wonders,

just as it commands that we believe witnesses, even though it is not necessarily inevitable that they will always testify truth.

Chananiah ben Azor demonstrates this, as he was a true prophet but in the end became a false prophet, as they say in (the chapter titled) “Those Who are Strangled”.  

Not so Mosheh Rabbeinu, because all Israel heard the Holy Blessed One speaking to Mosheh face to face, and all of them reached the level of prophecy and saw how the Holy Blessed One spoke to him,  therefore Shemot 19:9 says: “Behold I am coming to you in the thickness of cloud, so that the nation will hear when I speak with you, and they will believe also in you forever”,

because so long as they believed on account of the signs, as they did in Mitzrayim – it would have been easy to nullify (whatever Mosheh commanded) via another prophet who displayed signs and wonders;

not so now – even if a thousand myriads of prophets came with signs and wonders to say in the name of Hashem that the point of a yud of Mosheh’s Torah should be altered, we will not heed him, and we have a mitzvah to execute him in accordance with the law of a false prophet,

since regarding the prophecy of Mosheh we ourselves are witnesses, and so Scripture says: and they will believe also in you forever”.


Meshekh Chokhmah contends that belief in prophets other than Mosheh is a legal rather than religious category, and reflects obligation rather than conviction.  Belief in Mosheh is different because it originates in direct experience.


Meshekh Chokhmah’s argument echoes Mishnah Avot 5:16’s reflection on interhuman relationships:

All love that is contingent on something – when that something ceases, the love ceases;

But (love) that is not contingent on anything – will not ever cease


Belief in Mosheh is emunah she’einah teluyah badvar = noncontingent belief; belief on other prophets is emunah heteluyah badavar = contingent belief.


But even this does not convey the full radicalness of Meshekh Chokhmah’s position.  He actually offers two grounds for the contingency of belief in prophets.  The first is that the evidence for their status is irrelevant.  The second is that prophets are human beings with free will, and someone may be a true prophet one day and corrupt the next.  Mosheh Rabbeinu is an exception to the first issue because his status is established differently; but how could G-d tell the Jews to believe in Mosheh forever?  Shouldn’t they keep in mind that even he might be corrupted?  As Meshekh Chokhmah writes:

If so, how could G-d command that they believe forever in Mosheh – does not Berakhot 33a teach that “All is in the hands of Heaven except the fear of Heaven”, and (therefore) that knowledge does not compel choice?  (Should they not be concerned) lest Mosheh afterward choose, G-d forbid, to add (to the Torah) out of his own mind?!


He concludes:

Against our will, (we must say) that Hashem the Blessed removed choice from Mosheh utterly, and he was left determined, as the angels are.

Two subtly ironic touches show that he understands just how extreme this conclusion seems.  The first is his statement that the position that Mosheh Rabbeinu did not have free will is reached al karchin = against our will.  The second is his citation of the source for his argument:

Investigate closely all the words of Rabbeinu (=RAMBAM) in the Laws of the Foundations of the Torah Chapters 7 and 8, because all his words are holy, and they were said in the spirit of prophecy without a doubt.


In other words, Meshekh Chokhmah’s argument for the possible falseness of all prophecy other than that of Mosheh Rabbeinu, derives from the words of Rabbeinu Mosheh (ben Maimon, RAMBAM), but the prophetic authenticity of RAMBAM cannot be doubted.  Why not?  Was Rambam also deprived of his free will?


Note also that in this reading Mosheh becomes the mirror image of Pharaoh.


But let us focus once again on the nexus of love and belief.  Meshekh Chokhmah suggests that Mosheh’s becoming angelic led to his separation from his wife.  In his formulation, the issue is a lack of physicality; Mosheh literally becomes an angel.  


But it seems to me that a better argument can be made directly from the issue of free will.  Genuine relationship requires that both parties maintain the relationship of their own choice, and a man without free will cannot be a real husband.  Indeed, while Meshekh Chokhmah tries hard to present Mosheh’s apotheosis as a reward, G-d created humans precisely because angels cannot freely choose to love Him.


But here is the problem.  We argued above that love and belief are parallel.  Contingent love, like belief in non-Mosaic prophecy, is subject to change and decay.  Love based on direct experience of the other, like the Jewish people’s prophetic experience of Mosheh’s prophecy, is eternal.  How can this be so?  Why doesn’t it depend on the lover’s choice to act in accordance with his or her experience?  

One might suggest that true lovers are deprived of free will.  But we just argued based on Mosheh that true love requires free will!


I’m not at all sure that we should try to resolve this contradiction.  As Rabbi Akiva does with the apparent contradiction between Divine foreknowledge and human free will, sometimes you just have to embrace the paradox: “Everything is foreseen, and yet autonomy is granted”. (Avot 3:15).  

Instead, we should bless the newly married couple that their love, so deeply grounded in genuine experience of each other’s souls, provide them with both the security that stems from a promise of eternity and the wonder generated by the constant experience of freely choosing to share one’s life, and of having that choice freely reciprocated.


Parashat Shemot


Rabbi Aryeh Klapper, Dean

What is the difference between heroism and ordinary goodness? Is heroism, like the miraculous, necessarily unexpected? Is a hero someone who behaves better than we could reasonably expect ourselves to behave in the same situation, or better than we expected them to behave? Can it be heroic to simply do one’s difficult but obviously correct duty?

These questions are addressed by R. Eliezer son of R. Eliyahu Ashkenazi (1513-1586) in his commentary Maasei Hashem.

ואמנם ענין אומרו ״ויעשו להם בתים״

פירש רש״י על פי האגדה ״בתי כהונה ובתי לוויה״

שכן אמרו רז"ל (סוטה יא, ב; שמ"ר א, יג) גם כן ששפרה ופועה היו יוכבד ומרים

ויש אומרים יוכבד ואלישבע

וכבר יפלא מאד זה כפי הפשט

שהיאך יעלה על לב שפרעה יצוה לעבריות שהם בעצמם יהרגו ילדי העבריים

ועוד יש לשאול

מה שנאמר ״ותיראן המילדות את הא-להים״

ועוד ״וייטב א-להים למילדות״

וכן חזר לומר ״ויהי כי יראו המילדות...״

ואם היו הצדקניות ההם

מה זאת החזקת הטובה על שיראו את הא-להים

והלא דין הוא

שאמרו ״יהרג ואל יהרוג״?!

However, with regard to Scripture saying “He made for them houses”

Rashi explains via the Aggada that this means “Houses of priesthood and Levitehood”

as the Sages said as well that Shifrah and Puah were Yocheved and Miriam,

or some say Yocheved and Elisheva.

But this is astounding if considered in terms of peshat,

as how could Pharaoh even have considered commanding Jewish women to themselves kill Jewish children?!

We can further ask:

When Scripture writes “The midwives feared Elokim”

and further “Elokim did good for the midwives”

and it also recapitulates “When it happened that the midwives feared . . .”

if the midwives are properly identified as those righteous ones (i.e. Yocheved and Miriam or Elisheva),

why are they owed gratitude for fearing G-d

when (their refusal to kill the male Jewish infants) was simply rational law,

as the Sages said: “Let oneself be murdered rather than murder”!?

R. Ashkenazi suggests that for Egyptian midwives to defy Pharaoh was heroic, but for Jewish midwives, how could Pharaoh even consider that they would obey?! And if they were righteous Jewesses, why do they deserve any reward for obeying? What is heroic for those who have the choice of ignoring G-d is mere logic for those who inescapably fear Him.

A harsher version of R. Ashkenazi’s thesis is that all sin reflects a lack of belief, and so is tantamount to denial of the Creator. This thesis is often attributed to the Holocaust martyr R. Elchonon Wasserman. R. Ashkenazi himself is gentler, and has no difficulty understanding why Egyptian midwives deserved gratitude for their resistance. Yad Vashem reflects more his attitude, and I think this is a good thing. But it deserves recall that R. Elchonon returned to Europe from an American fundraising trip in full awareness of the looming danger, and there is also value in the stern expectation of proper behavior regardless of cost.

The midrash seems to be more tolerant yet, and to heap rewards on Yocheved and Miriam for refusing to commit mass infanticide. One textual motive for this is the peculiarity of “he made for them houses” – what sort of reward is that (noting that meanwhile the Jews are building cities for Pharaoh)? It seems that these must be genealogical or symbolic houses, and furthermore, that these must have significance later in

the narrative. And so the midwives become the mothers of Jewish Houses, ala Ravenclaw.

There are many non-philosophic difficulties with this approach, however. Yocheved is not the mother of all Levites, and it requires much exegetical effort to make Miriam the mother of the Davidic line. Deborah Klapper noted to me that “houses” in the rest of Chumash are by definition patrilineal. (I afterward found the same point in Chiddushei HaGriZ.) And grammatically, the verse reads “He made for (third person masculine plural) houses,” so the houses seem unrelated to women at all.

Other midrashim and commentators accordingly understand the verse entirely differently. G-d did not make houses for the midwives; rather, Pharaoh made houses for the Jews. How was this a response to the midwives failure to obey orders? Pharaoh built Jewish housing in the midst of Egyptian neighborhoods, so that the cries of Jewish infants would betray them to his loyal people, who would then throw them in the Nile. More radically, he built the Jewish housing amidst houses with Egyptian infants, so that the Egyptian infants would cry and stimulate sympathetic crying by the Jewish infants. Thus Pharaoh made even babies take part in his genocidal conspiracy, and ensured there would be no innocence at all left in Egypt.

This may seem outlandish, but in fact it responds to a deep textual problem later in Shemot. When G-d kills the Egyptian firstborn, He is פוסח, He passes over, the Jewish houses and their firstborns. This image of selectivity fails utterly if the Jews are geographically isolated, and we have been told previously that the Jews all lived in Goshen! The solution is that Pharaoh at least built Jewish young couples housing, or Jewish maternity wards, in the heart of Egypt. (For those wondering how G-d rewarded the Egyptian midwives – He made the Jews extraordinarily fertile, which in turn raised the midwives’ incomes.)

R. Ashkenazi himself develops a wonderfully creative composite approach. Working again with strong assumptions about human motivations, he argues that no king wishes to commit genocide against his slaves, as that would diminish his stature and harm his economy. Rather, Pharaoh must have been concerned with overpopulation. As Jewish fertility increased, Jews spilled out of Goshen into Egypt

proper. Pharaoh therefore decreed that all Jewish male infants born outside Goshen should be killed, and he built Jewish housing amidst Egyptian neighborhoods to ensure that his decree would be enforced.

I believe that historical experience raises serious questions about R. Ashkenazi’s assumptions. Sometimes – maybe always – the urge to genocide is obviously counterproductive from a rational perspective, and people in the throes of hatred take no heed of economic, political, or military consequences, even if their rhetoric seems to suggest otherwise.

The question I want to raise is whether it is easier or harder to defy an evil social order when it is rationally grounded. Which way are the midwives more heroic – if Pharaoh is rationally (albeit murderously) attempting to maintain his slave population below the threshold at which it will constitute a potential threat, or if he is engaged in a rationally unjustifiable genocide?

My sense is that many human beings, myself among them, find it harder to resist irrational rather than rational appeals to evil (although we often seek to rationalize irrational evil). This may be because reason creates a neutral space that lets us play out the confrontation so that it is less a test of wills. To resist a charismatic requires not objective argument but the claim that I am at least as worthy and as reliable a judge of value as you – it requires ego and self-confidence that has no external source of validation.

Ego and self-confidence are therefore necessary components of moral strength, and in many cases the source of true heroism. As with physical musculature, of course, they are also the source of the dangers they are needed to resist. It is vital that educators, and parents, not fall prey to the delusion that there is any single set of characteristics, or type of human character, that guarantees righteousness.

Who is the true hero? The one who conquers their own tendencies when those tendencies lead to moral or ethical weakness. Shabbat Shalom!

(This Dvar Torah was originally published in 2015)


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Sat, May 25 2024 17 Iyyar 5784