Halakhah and Phenomenology – The Very Small, Tastes and Birkhas haChamah

The Chinukh repeatedly explains various mitzvos by explaining “ha’adam nif’al lefi pe’ulaso — a person is affected according to his action.” Contemporary hashkafos differ over what halachic life is supposed to cause, whether the ideal is better described as “wholeness”, perfecting the image of G-d, or “attachment” to G-d. (See the posts in the “Forks” category.) But notice that both agree in describing the role of halakhah in terms of the change is causes on the self — whether perfecting him in a mussar sense, refining him in a Hirschian sense, bringing him experientially in a relationship with the A-lmighty, as Chassidim do, etc…

One thing this implies is that halakhah need not be concerned with determining an objective reality. Rather, it has to deal with that which has impact on the person — the world as it’s experienced. Perhaps this is why the realia to which we apply halakhah is called metzi’us, literally “what is found”, and substantive elements of the metzi’us are said to have mamashus, they can “be felt”.

This actually means paying attention to three questions — what can be perceived first-hand, what was perceived and what is known by the individual in question.

Perceived and known: Well, if you see the ham and you know it’s ham, it’s obviously prohibited.

Not perceivable: This includes microscopic mites on one’s food. Knowing they’re there doesn’t change the halakhah; they simply don’t have mamashus. Since a microscopic bug can’t enter our direct experience, the impact of eating it is not the same as the impact of eating a bug we could have seen.

My Rebbe, R. Dovid Lifshitzzt”l (Yeshivas Rabbeinu Yitzchaq Elchanan, Fall 1984 or perhaps Spring 1985), used a similar idea to explain a different problem. The Gemara explains that maggots found within a piece of meat are kosher.
The reason given is that they were born from the meat, an idea known in the history of science as “spontaneous generation”. Therefore, halachah treats the maggots identically to the meat.

Spontaneous generation has since been disproven. Maggots come from microscopic eggs, not abiogenetically from the meat. Now that we know that the underlying science is wrong, need we conclude that the halachic ruling is also wrong?

Rav Dovid taught that the halachic ruling is still applicable, because the microscopic eggs and maggot larvae are not visible, and therefore (like the insects in our first example), lack mamashus. The only cause for the current presence of maggots that we can see is the meat. Viewing the question in terms of human experience, the meat is the only source of
the maggots. Bugs or eggs that are too small to be seen, while we might cerebrally know they are there, can’t have the existential impact as those I could, and ought to have, noticed unaided.

Perceivable but not objectively real: e.g. Ta’am and Birkhas haChamah

There are responses that are normal human responses to an object or event, but have no objective trigger. Sometimes halakhah tries to weed out this attachment to falsehood by not recognizing it. Other times the Torah finds it more useful to channel that reaction.

In my humble opinion, an example of this second case is the concept of ta’am as used in the laws of kashrus. The usual approach is to define “ta’am” in the empirical sense, the taste of the item. And therefore it is usually explained in terms of microscopic particles of food trapped inside the metal. E.g. a meat pot is described as having particles of meat trapped inside it. And there are cases where ta’am can be determined by having a non-Jew taste the mixture.  (Or a kohein check a mixture of food that contains a tiny amount of terumah.) If an amount falls in (or is mixed in by a non-Jew who is not doing it to intentionally feed to someone who is subject to the laws of kashrus) that is less than one in 60 it can be nullified IF it can’t be detected by taste. Such as a drop of milk falling into a pot of stew. In such a case the Shulchan Arukh (and Sepharadim) have a non-Jew check the taste, while the Rama prohibits (105:1-2).

However, there are cases where we assume a ta’am and even Sepharadim don’t ask anyone to check for us. (See YD 92:5,7 and 105:5). E.g. If milk fell on the outside of the same pot, the pot is meaty. The very same less than 1/60 drop is harder to nullify if it falls on the outside surface of the pot than in the stew itself?!

And why don’t Ashkenazim have a non-Jew taste the product, if it’s all about sensory taste?

Also, this explanation involving microscopic particles of food absorbed into the pot defies the principle we invoked with respect to microscopic bugs — it can’t be seen or tasted, but it does count?

I would therefore suggest the novel approach that ta’am here is meant in the psychological sense, the purpose or motivation of an idea. A meaty pot isn’t meaty because there is any physical meat trapped in it, but because we can’t disentangle our association to the pot from its historical use for meat. (And halakhah doesn’t ask us to change that.)

If the pot was used for meat and I didn’t know, then it’s a matter of neglect on my part. I should know that in the realm of human experience, not personally but of humanity as a whole, this pot is branded “meaty”. Yes, physical taste is one way of having a mental association, and therefore there are times Sepharadim believe it’s the only such association. But it’s not the only way the food can be experientially linked to prior foods.

Admittedly this case is speculative. So is the next one…

Birkhas haChamah

There is no astronomical event specific to this berakhah. The equinox was on March 20th this year, and we will be making the berakhah be”H on April 8th. This is because our estimate for the year for the purposes of this berakhah is that of Mar Shemu’el, where the year is 365-1/4 days exactly. (The same estimate as the Juilan year.) Over time, the rough level of that estimate adds up. Rav Adda proposed a more accurate estimate 365.2424 or so, and that is what we use in the 19 year cycle of months. For that matter, the 19 year cycle dates back to galus Bavel (where either they learned it from us, because the Babylonians did start using it in 499 BCE, or we learned it from them) — so we knew a better estimate when the halakhah of making birkhas haChamah mentioned in the beraisa.

The actual words of the beraisa are:

To which the gemara asks: “ואימת הוי — and when is this?”

“אמר אביי כל כ״ח שנין — Abayei says: Every 27 years, והדר מחזור ונפלה תקופת ניסן בשבתאי באורתא דתלת נגהי ארבע — …when the cycle renews and the ‘season of Nissan’ [vernal equinox] falls in Saturn, on the evening of Tuesday going into Wednesday.” The berakhah is then made in the next morning, when we next see the sun.

The reference to Saturn is an astrological concept. Each of the seven visible moving astronomical objects (Saturn, Jupiter, Mars, Sun, Venus, Mercury, Moon) rule over the world for an hour. During the course of a week, this pattern completes 24 such cycles. Saturn rules at sunset the evening before Wednesday, when the day begins halachically. Therefore, the sun returning to the equinox position when Saturn is ruling is defined as it being back in the place where it was created. Notice that this rule of Saturn has no corresponding astronomical event. For that matter, the Rambam rejects such astrology, and yet codifies birkhas hachamah.

And the Rambam, Ramban and Ran conclude the sun was created toward the end of Elul, not in Nissan. (Rashi and Tosafos conclude it was created in Nissan. Tosafos say it was “conceived” in Tishrei, and explain our liturgy accordingly.) And yet all three support the current practice of birkhas haChamah on a Wednesday in Nissan as an anniversary of the sun’s creation (or is we say like Rashi, placement in the sky) on the first Wednesday. Or, that it was the hypothetical beginning of the cycle the sun started in mid-way, when it was created a half a year later.

And was that Wednesday even measurable as time on a calendar? R’ Soloveitchik notes that in Qabbalah, the six days are really 6 of the sephiros. According to the Rambam they are logical causal steps in the development of creation, and not intervals  of time. (See the last block quote in this earlier post.) Rav Dessler understands the Ramban as saying that time during this period was entirely unlike the stream we experience. The Maharal also considers the element of time part of why the story of creation is considered by the mishnah to be a mystery. (See this post.) And yet none of them raise these issues as problems with respect to the observance of birkhas haChamah.

We live in a period of history in which science and technology are making great progress. The zeitgeist therefore gives them a very central role. It is natural for us to seek an explanatation for ta’am in terms of microscopic particles, even though Chazal couldn’t have shared that chemical notion of how taste works, and we know from the word’s other uses that that’s not how Hebrew reflects our relationship to taste. We also assume birkhas haChamah is speaking of the sun going back to a physical position.

The gemara concludes the dispute about when creation and numerous other events happens by saying that we count years from Tishrei, as that’s about physical age, but tequfos from Nissan. Age is done in physical years. Tequfos aren’t the passing of time, it’s astrology in the sense of how we perceive the heavens rather than how they objectively are astronomically. For all we know they are exactly 365-1/4 days, a third kind of year in addition to the tropical one (one apparent orbit of the sun) or the sideral (one apparent orbit of the constellations, which was 20m24.5128s longer than the tropical year in 2000 CE). Tequfos are measured from the more spiritual new year, the month in which we became a people, Nissan. Note that both are experiences, the passage of time, astrology, not abstractions of science.

This is why the approach to birkhas haChamah is mythic. In the technical sense; choosing ideas for their import, not their historicity. Some may be historical, others not, but that’s not what’s relevent because the whole thing isn’t a from scientific historian approach to the world.

It seems quite clear that the purpose of Birkhas haChamah was more pedagogic. There was a need to create a cause to bless G-d “who makes the act of creation” rarely enough for the blessing to be a major life event (unlike saying it on every thunderstorm, or when seeing the ocean, a large sea, a desert or being in an earthquake) but yet frequent enough to be remembered from one generation to the next. The thing we are thanking Hashem for is constant, He constantly creates anew and sustains us. The reason for the berakhah is thus not a physical event, but a cause for remembering that fact.

(Aside from the fact that many of the claims, e.g. much that is said about the “sun being exactly back in the same place” at birkhas hachamah, are just wrong. And rather than serving to advance faith, they give the scoffer straw-men with which they reinforce their skepticism. With respect to aggadic stories, the Rambam [introduction to his commentary to chapter Cheileq in Sanhedrin] identifies three categories of people, two wrong camps, and one right one. The erroneous approaches are: (1) Those who take all the fantastical claims of the stories as literal, find them absurd, and ridicule the Torah for it; and (2) Those who take them as literal, take them seriously, and therefore believe in an absurd distortion of the Torah.  Here too, by confusing a mythic perspective for a scientific one, people are being pushed into two very similar camps. The correct approach is (3) to realize that the Torah convey deeper truths via hint and riddle. As Rav Hirsch would say, to use metaphore to help us internalize abstract truths.)

As I opened, halakhah need not address what is, but rather how we can shape people. The academic strives for an objective study of the material. Trying in that way to obtain a freedom from negi’os (personal stake) and therefore greater accuracy. Talmud Torah is inherently different. The whole point is to acheive unity with the Torah being studied; to see it from the inside, as it sees itself, and to be shaped by that perception. The scientist and the talmud chakham approach their displines with very different attitudes. We should respect that same division and avoid making scientific claims about mitzvos. It is unnecessary to reexplain the kashrus of maggots, the notion of ta’am in a mixture or on a utensil, or the cause of birkhas hachamah as scientific theory advances, because none of them were based on the objective realities of science.

I hope to continue this discussion in a future post on understanding the rules of birur, resolving what to do in uncertain situations, by invoking the distinction between things that are unknown because they were never perceived vs. things that are unknown because the results of the perception got lost or confused. With that I will have discussed all the possibilities: perceived and known (trivial case); imperceptible (doesn’t count whether or not it’s known); perveption without an actual object; and in the future post – perceptible but never happend to be perceived nor known; as well as perceivable and once perceived, but now unknown.

In a third post I would like to discuss a different issue — is belief in mitzvos having cosmological impact beyond their effect on the people doing them consistent with this notion that halakhah is about human perception?

Speaking Yiddish

In the US today, when someone needs to pay for a ride to get somewhere, someone in the house may wait by the window to see when it arrives. And then they’ll call out “Time to go, the taxi’s here!”

In pre-war Eastern Europe, they would have called out “Der balagalah iz du — The wagon driver is here.”

And in that, lies all the difference.

זו היא כל התורה כולה ואידך פירושה הוא זיל גמור

This is the entire Torah, and the rest is explanation. Go learn!

- Hillel (to prospective convert), Shabbos 31a

Osniel ben Kenaz

אמר רב יהודה אמר רב בשעה שנפטר משה רבינו לגן עדן אמר לו ליהושע שאל ממני כל ספיקות שיש לך אמר לו רבי כלום הנחתיך שעה אחת והלכתי למקום אחר לא כך כתבת בי (שמות לג) ומשרתו יהושע בן נון נער לא ימיש מתוך האהל מיד תשש כחו של יהושע ונשתכחו ממנו שלש מאות הלכות ונולדו לו שבע מאות ספיקות ועמדו כל ישראל להרגו אמר לו הקב”ה לומר לך אי אפשר לך וטורדן במלחמה שנאמר (יהושוע א) ויהי אחרי מות משה עבד ה’ ויאמר ה’ וגו’ במתניתין תנא אלף ושבע מאות קלין וחמורין וגזירות שוות ודקדוקי סופרים נשתכחו בימי אבלו של משה אמר רבי אבהו אעפ”כ החזירן עתניאל בן קנז מתוך פלפולו

Rav Yehudah said that Rav said: At the time that our teacher Moshe was released to gen eden, he said to Yehoshua, “Ask me about any uncertainty you may have.” [Yehoshua said, "Have I ever left your side, even for a moment? You have written about me, 'and his assistant, the young Yehoshua, did not stir from the ohel mo'eid.' " Immediately, Yehoshua's strength waned and he forgot 300 halakhos and 700 doubts were born to him. All of Israel got up to kill [Yehoshua]. Hashem said to him, “It is impossilbe for Me to [let Myself] tell you. Go, distract Israel with war.” As it says, “and it was, after Moshe, Hashem’s servant, died . . . God said, ‘Go and cross the Jordan…’ .” (Yehoshua 1)

- Temurah 16a

אמר רבי יוחנן שעורין ועונשין הלכה למשה מסיני עונשין מכתב כתיבי אלא הכי קאמר שיעורים של עונשין הלכה למשה מסיני תניא נמי הכי שיעורין של עונשין הלכה למשה מסיני אחרים אומרים בית דינו של יעבץ תיקנום והכתיב (ויקרא כז) אלה המצות שאין נביא רשאי לחדש דבר מעתה אלא שכחום וחזרו ויסדום

Rabbi Yochanan said: Measures and punishments are [all] laws given to Moshe from Sinai. “Punishments”? They are written [and thus wrong to classify them as orally given to Moshe]! Rather, this is what was said: The measures over which one is punished were given to Moshe from Sinai. Other say the court of Yaavetz established them. But doesn’t it say “These are the mitzvos” (Vayiqra 27) — that no prophet is worthy of adding anything from now on? Rather, they forgot them, and they went back and reestablished them.

- Yuma 80a

תנא הוא עתניאל הוא יעבץ

Mishna: Asniel is Yaavetz.

- Temurah (ibid)

Today, the 7th of Adar, not only marks the birth and death of Moshe. I want to point out another significant event. Until Moshe’s death, one could resolve halakhah by turning to Moshe to ask Hashem. However, we see in this gemara that the moment Moshe died, “lo bashamayim hi — it [the Torah] is not in heaven” took effect. Hashem couldn’t restore the lost Torah to Yehoshua, that’s not what Torah is supposed to be.

Osniel ben Qenaz did something new. He was the first rabbi in the sense of the halachic give-and-take we find in the mishnah, gemara, codes, commentaries, responsa and lomdus. The era of Rabbinic Judaism begins with Osniel, even as Yehoshua carries on the prophetic inspired approach to Torah.

Osniel prefigures another event in Jewish history. Note the phrase “שכחום וחזרו ויסדום — they forgot [the laws], and they went back and reestablished them.

דאמר רבי ירמיה ואיתימא רבי חייא בר אבא מנצפ”ך צופים אמרום ותיסברא והכתיב (ויקרא כז) אלה המצות שאין הנביא רשאי לחדש דבר מעתה אלא מה’ הואי, מידע לא הוה ידעין הי באמצע תיבה הי בסוף תיבה, ואתו צופים תקנינהו. -ואכתי, אלה המצות – שאין הנביא רשאי לחדש דבר מעתה! – אלא: שכחום וחזרו ויסדום

Rabbi Yirmiyah said and others believe it was Rav Chiya bar Abba: Menatzpa”kh [an acronym listing the letters that have final forms] were said by the seers. Is this logical?  But doesn’t it say “These are the mitzvos” (Vayiqra 27) — that no prophet is worthy of adding anything from now on? Rather, they are from Hashem, but they didn’t know which went in the middle of the word and which at the end of the word, and the seers came and fixed it. But again “These are the mitzvos” (Vayiqra 27) — that no prophet is worthy of adding anything from now on! Rather, they forgot them, and they went back and reestablished them.

- Shabbos 104a, Megillah 3a

And similarly the Ashuris script is described as restored,  as well as many other things forgotten during the Babylonian Exile. This same using reason to restore what was forgotten was a key part of the job of the Anshei Kenesses haGdolah. Theirs was not only an era after much Torah was forgotten during the pressures and assimilation of exile, but also the end of a prophetic alternative. The Great Assembly included the last of the prophets. One couldn’t “feel for” the right answer as reliably, and halachic reasoning came to the fore.

I fell in love with one of the central ideas in Professor Moshe Koppel’s book, “Metahalakhah”. There are two ways to learn a language: The native speaker doesn’t learn rules of grammar before using them, he just knows what “sounds right”. In contrast, an immigrant builds his sentences by using formalized rules, learning such terms as “past imperfect” and memorizing the forms that fit each category. R’ Koppel notes that the rules can never perfectly capture the full right vs wrong. A poet has to know when one can take license.

He argues that halakhah is similarly best transmitted by creating “native speakers”. It is only due to loss of our progressive loss of the Sinai culture with each generation that we need to rely on transmitting codified rules. In each of our cases, there was a major cultural shift.

With Moshe’s death, we not only lost Moshe’s level of prophecy. Note the words spoken by Yehoshua. “I have no doubts; I never left your side.” Overconfidence, in contrast to Moshe’s anavah. And therefore there was a shift from knowing by having a prophetic feel for what’s right to formal rules of derashah, of qal vachomer and gezeira shava.

Similarly the reestablishment of numerous laws by Anshei Keneses haGedolah when their prophecy was waning, and they needed to restore the Torah forgotten by our being mingled among the nations by Sancheirev.

The 7th of Adar therefore also represents Torah in our generation. We’re still reeling from the cultural dislocation caused by the Holocaust and the shift of Torah centers from Europe to Israel and the United States. From Sepharadim being forced out of century old communities. We’re still rebuilding. And again we see a focus on formal rules, on halachic guides.

However, there is a next step. Osniel was from the tribe of Yehudah and later became the first of the Judges, but he is not the one with whom Hashem established the kingship. It’s not until a leader emerges who is not only king, warrior and sage, but also the author of Tehillim — David.

Perhaps this is what it means when we say in the birkhas ahavah, the second blessing before the morning Shema, “lishmor vela’asos ulqayeim — to guard, to do, and to make permanent.” Shemirah, guarding, is a term used for prohibitions, mitzvos lo sa’asei. Asiyah obviously refers to duties, mitzvos asei. However, after watching to refrain from the prohibited and to do the mandatory, one has to allow them to make a permanent impact on one’s soul. This is qiyum hamitzvos –making the permanence of the mitzvos.

An Osniel can reestablish a mitzvah. Yasdum, literally — he gave them a foundation. But we still had Yehoshua giving us a building atop that foundation. We are now rebuilding our foundations. Now we need to Davidically stand upon them and sing.

(See also “Halachic Process – part I“.)