The Fourth Son

We can consider the rasha, the evil child, to be a failed chakham (the wise one). He is engaged with the laws of Pesach, but unlike the first child, he rejects them.

The third son, the tam, is usually defined simple in an unsophisticated or ignorant sense, as though his approach is inferior to the wise child’s. But when we find the word “tam” in the Torah, it is a complement. Yaaqov grows up to be an “ish tam yosheiv ohalim — a tam man, who dwelled in tents”. There is a kind of simplicity that is holy, positive — being of one mind, pursuing G-d without conflicting desires or motives.

And if the tam is someone who pursues Hashem on an experiential, desire, level, then the she’eino yode’ah lish’ol, the child who doesn’t even know to ask a question, is his failed counterpart. Just as the rasha is one who tries to encounter Judaism on the chakham‘s cerebral level but rejects what he finds, the she’eino yode’iah lish’ol fails on the experiential level, he finds nothing he can relate to.

And so we continue the Hagadah explaining why the mitzvah of retelling the story of the Exodus is limited to the night of the seder:

יָכוֹל מֵרֹאשׁ חֹדֶשׁ, תַּלְמוּד לוֹמַר בַּיוֹם הַהוּא, אִי בַּיוֹם הַהוּא יָכוֹל מִבְּעוֹד יוֹם, תַּלְמוּד לוֹמַר בַּעֲבוּר זֶה – בַּעֲבוּר זֶה לֹא אָמַרְתִּי אֶלָא בְּשָׁעָה שֶׁיֵשׁ מַצָה וּמָרוֹר מֻנָּחִים לְפָנֶיךָ.

I might have thought [the mitzvah applies] from the beginning of the month. Therefore we learn from what [the Torah] says, “on this day”. If it’s “on that day”, perhaps the mitzvah begins while it’s still daytime. Therefore we learn from what it says, “because of this” [-- "this", indicating something to point to]. “Because of this” I wouldn’t have said except at a time when matzah and maror are set out before you.

The mitzvah of telling the story cannot be cerebral teaching, from a book. It must be accompanied with the mitzvos of matzah and maror. An experiential education, an inculcation. This is the only way to reach the disaffected, the she’eino yode’a lish’ol.

And even the rasha requires this approach.  The thing that gets someone to reconsider their postulates and explore a different philosophy is the experience of (eg) a Shabbos or a Pesach seder. Otherwise, all the “proofs” in the world fall on deaf ears.

Redemption and Teshuvah

My friend Neil Harris wrote over on his blog Modern Uberdox:

I pray that this Pesach brings an end to the exile of the self and a redemption of the person I was created to be.

On which I commented:

First reaction: Beautiful!

Second reaction: Woah, wait a second, how then is Pesach different than Yom Kippur? (not meant rhetorically)

I liked our answers to this question sufficiently to want them recorded here on my turf.

R’ Neil’s suggestion:

Teshuva is a return to the state of who we should be. I think geulah (redemption) is the actualization of the potential. It’s the difference… of wanting to serve Hashem and serving Hashem.

Which is powerful enough to warrant pausing here rather than rushing to my reply. I’ll wait.

Between the time I asked and the time I was able to revisit RNH’s blog, I played with the following:

Tishrei is (in the Zohar’s language) an is’arusa delesata (an awakening from below) — we awaken the qedushah, and Hashem responds. Nissan is an is’aru dele’eilah (from above) — Hashem offers us the qedushah, and it is for us to respond. This is why Tishrei is associated with Din (Divine Justice), as Hashem’s response is in measure to what we earned, whereas Nissan is unearned holiness, an expression of Rachamim (Divine Empathy).


Applying this idea…


Ge’ulah is being freed from those external challenges that are holding us back. Thus, Hashem can offer it to us without violating our free will. And so it happens in Nissan.


Teshuvah is freeing ourselves from our internal flaws. Something we must do for ourselves — a Tishrei awakening from below.


Halakhah is the means G-d gave us to actively and creatively complete ourselves, to use our Image-of-G-d ability to be who choose to make ourselves and become ever close to that “Image”. The word we generally use is “mitzvah” — that which someone commanded. Notably it is not the more direct conjugation, “tzava” — commandment. It is written as though the fact that the deed was commanded is only a distinguishing feature, not its essence. The seventh Lubavitcher Rebbe zt”l goes further and suggests that the word “mitzvah” is cognate to an Aramaic word “tzivsah” — to receive nourishment. A mitzvah is not only commanded, but also our sustenance. “For those are our lives, and the length of our days.” We have trust in Hashem that the actions He commanded are in our own best interests. For this reason the Zohar translates “Taryag mitzvos” as “Taryag Ittin” — 613 pieces of advice or solutions. (“Ittin” is cognate to the Hebrew “eitzos“.)

The distinction between mitzvah and tzivui could be understood with a metaphor. Someone goes to a doctor and is advised not to eat red meat. A few days later, the same man is a guest at someone’s home and is offered some steak. He declines, explaining to his host that he is under “Doctor’s orders”. The purpose of refraining from red meat isn’t in order to obey the doctor. Rather, he has trust in his doctor’s greater understanding of medicine, and feels secure that the abstention is in his own best interest. The doctor’s order is therefore akin to a mitzvah, not a tzivui.

The name of the parashah lacks the richness of the word mitzvah. It doesn’t refer to both Doctor’s and General’s orders by including the letter mem to hint at nursing. “Tzav” means to command. King David wrote, “Ani avdekha ben amasekha — I am Your servant, the son of your handmaiden.” The meaning is actually richer than that translation. An eved is someone who is submerged under and lost to his work. Rav Hirsch understands the word as an intensive form of avad, to be lost or destroyed, made by replacing the unvoiced opening alef with a voiced ayin. And an amah is not only a female servant, but also a forearm. So we can also translate the verse, “I am second to Your work, the son of someone who made herself a tool for Your Will.” Or as the Zohar says (and we repeat upon taking out the Torah in shul), “Ana avda deQBH — I am the servant of the Holy One, blessed is He.”

The obedience aspect of avodas Hashem is a tough sell in today’s society. Perhaps the most central value in Western Culture today is autonomy, giving people the ability and opportunity to be able to do what they want — as long as it doesn’t interfere with others. Submission?

And so we find among our non-Orthodox brothers a growing population who self-identify as “Post-Denominational” and who seek a DIY — Do It Yourself — Judaism. The chaburah movement, and so on. But this tendency has reached Orthodoxy as well.

For example, R’ Natan Slifkin wrote an article about how the shiur of a kazayis has evolved over time. We know from archaeological evidence that the olives of Chazal’s day were somewhat smaller than the kezayis advocated by the Rambam, and is used today by many Sepharadim. Must smaller than the range of value generally discussed by Ashkenazim, even R Chaim Naeh’s position based on the custom of Yerushalayim in his day (early 20th cent). An Ashkenazi position in line with this  finding is Rav Chaim Volozhiner’s opinion, that a kezayis is the size of a typical olive of our olives as they are bred and grow in our day and age. But this opinion isn’t considered very often. At least not in print. Memories of our ancestors’ seder tables indicates otherwise.

Facebook and the j-blogosphere has been full lately of people who take this historical analysis and proclaim that they will use it to justify using smaller measures for matzah and maror. Taking halakhah into their own hands, even though the argument they are relying on is primarily historical, not halachic. What happened to following halachic authorities? Finding a poseiq and relying on someone else’s expertise? Isn’t that how pesaq supposed to work? Similarly, someone commented on Rabbi Reuven Spolter’s blog, Chopping Wood:

Many in the thinking MO community agree with the rationale, underlying assumptions, and thinking set forth by Rav Bigman, and certainly do not agree with Chareidi views of society and the place for women. Why should they adopt the Chareidi psak? If you think that Rav Bigman’s view should not be followed, then in order to make a case that will fall on accepting ears you have to address the issues. For the thinking MO, it is the quality of the argument, not who said it (within reason) or how many said it, that matters. So if you oppose the action, you have to make an argument based on sources and logic, not a list of poskim.

Actually, there are many halachic rules based on who said it. Following Beis Hillel over Beis Shammai. Obeying the majority rule in a Sanhedrin. The Shulchan Arukh, in general, follows the majority of the Rif, the Rambam and the Tur — not the ruling he finds most reasonable. The Rambam, in the introduction to his Mishneh Torah, sources the gemara‘s authority in the fact that its rulings spread across the observant community — not because of the power of its arguments. And similarly of later rabbis, and the local communities they led.

(As a historical point, the actual universal acceptance of the Tamud Bavli as the final word on what Chazal say (when the Bavli actually has an opinion) post-dated the Rambam. Ashkenaz still had a large population from Eretz Yisrael who were loyal to minhagim from that area. In fact, even to this day Ashkenazim do some things that fit the Yerushalmi or the medrashei halakhah better than they conform to the Bavli. But the Bavli didn’t become THE Gemara in Ashkenaz until the Tosafists. Which is why they were the first to show a struggle between the gemara’s content and (locally) accepted halakhah.)

Because the Rambam is thought of as our tradition’s arch-rationalist (a title Rav Saadia Geon or the Ralbag should also be in the running for), I’m going to quote the words of the introduction to reinforce the point that even our rationalists understood that halakhah requires working within its own process, and not an a priori rationality given historical facts. This is from Mechon Mamre’s translation (see there for the Hebrew too; I just figured most people following this discussion wouldn’t bother reading it if I put up the Hebrew):

32 The enacted legislations or enacted customs of the courts that were established in any town after the time of the Talmud for the town’s residents or for several towns’ residents did not gain the acceptance of all Israel….
34 These matters apply to rulings, enactments, and customs that arose after the Talmud was written. But whatever is in the Babylonian Talmud is binding on all of the people of Israel; and every city and town is forced to observe all the customs observed by the Talmud’s sages and to enact their restrictive legislations and to observe their positive legislations.
35 For all those matters in the Talmud received the assent of all of Israel, and those sages who enacted the positive and negative legislations, enacted binding customs, ruled the rulings, and found that a certain understanding of the Law was correct constituted all of Israel’s sages, or most of them, and it was they who received the traditions of the Oral Law concerning the fundamentals of the whole Law in unbroken succession back to Moshe Our Teacher.

Rav JB Soloveitchik applies the Rambam’s reasoning to an instance that post-dates the Rambam’s life — the acceptance of the Shulchan Arukh. The Shulchan Arukh, with the Rama, was so broadly accepted by the Jewish People it became the yardstick from which we measure the novelty of all our rulings, and therefore the need to justify a divergent conclusion. And why the Shulchan Arukh is the central book in the curriculum we use for ordination programs.

Rabbi Spolter’s response to that qol ishah comment begins (minus the author’s name):

…’s comments concretized exactly why Modern Orthodox practice regarding kol isha bothers me so much. Since when has the Shulchan Aruch been appropriated by the Chareidi community? Suddenly, every rav and posek who doesn’t conform to our values is now Chareidi?

One can be leinient in qol ishah because of halachic arguments: perhaps it only applies to live performances, to cases where the woman can be seen, to solos, or that it excludes liturgical or religious music. But to simply refuse to conform because compromising one’s autonomy, doing what makes sense to my own mind, because I share my halachic decision-making with my LOR (Local Orthodox Rabbi, in Jewish Internet-speak)?

So we have two examples of recent phenomenon that point to a trend away from seeing mitzvos in terms of submission to Hashem’s Will (in addition to whatever it is He is trying to provide for us in them), a Western over-emphasis on autonomy. I tried to cite one case, that of the kezayis, where the results could well be correct, but the attitude and process to get there is not. In the case of qol ishah, the same tendency produces a clearly non-halachic result — the assumption that the prohibition is some chareidi chumerah.

There are actually two aspects to the issue I am raising:

First, the need to use halachic methodology to produce halakhah. Halakhah is a legal process, not a fact-finding one. Sometimes the law drifts from history but is binding because it conforms to the legal principles that make interpretations binding. The altar designed by Solomon was unusable in the 2nd Temple, as the new cadre decided to take a more stringent position on how to pour libations than that proven by altars of the past. Similarly, who said we today are supposed to ignore centuries of evolution of the halakhah about how much matzah to eat, and what a “kezayis” measure is in general? Our debate over this issue — the role of historical research on how we decide halakhah — is what distinguished the bulk of Orthodoxy from the Historical School, and why that originally Orthodox movement evolved into Conservative Judaism. The Torah is to be understood from the inside, by subjective study, internalization, and developing a feel for its flow. Not an objective academic study like other topics, that it always can be dovetailed with our conclusions in those disciplines.

There is a question whether one can use archeology — or any external field — to overturn accepted halakhah. When the Radziner Rebbe concluded that the chilazon, the source of the blue tekheiles dye, was the cuttlefish, R’ Chaim Brisker wouldn’t even weigh the quality of his arguments. Rav Chaim would not accept external evidence to reestablish the identity of the chilazon in the face of halachic silence. I found that a chiddush, but I find the overturning of halakhah when it was not silent to be a greater one.

The Torah Temimah (Maqor Barukh 583) repeats a tradition he received from a Rav Eliyahu Goldberg about Rav Chaim Volozhiner. A knife takes on the meatiness (or milkiness) of the food it cut in two cases: if the food is physically hot, or if the food a davar charif, something with a sharp or hot taste. The Shulchan Arukh’s examples are garlic, onion or leek (YD 96:1). Later on (96:5), the Shulchan Arukh discusses turnips among other things.

But when a woman came to Rav Chaim asking about just such a case — she cut meat and turnips with a dairy knife, Rav Chaim didn’t simply tell her the food wasn’t kosher. He instead asked he the color of the turnip. She said it was a white turnip. Rav Chaim allowed her to eat the food. Why? Because while the Shulchan Arukh said that turnips were a davar charif, Rav Chaim didn’t believe this to be true experientially. Still, R’ Chaim wouldn’t overturn an accepted halakhah in the Shulchan Arukh! So, he drew a distinction between the dark skinned turnips the SA’s author would have encountered in the middle east, with the white skinned ones more common in Lithuania, and thereby felt comfortable ruling. In other words, R’ Chaim Volozhiner was willing to give some authority (at least in the case he was undeniably speaking of) to the Shulchan Arukh even when it was based on a reality that ran counter to his senses.

It’s this kind of sensibility to the notion of halachic authority, to building upon generations past, to submission to the law, that I feel is lacking when someone takes it upon himself to reverse the trend of the kezayis of the past hundred and something years on the basis of someone’s booklet about classical-period olives.

Whether it makes sense to us or not, it’s a fact a minimum of R’ Chaim Naeh’s position became the accepted ruling in many communities. Again, overwhelmingly so on the theoretical plane, if a weaker but still reason consensus in practice. Overturning it to produce a result one has a predisposition for requires caution and a feel for how to weigh various considerations.

Second, the consequent need to have a poseiq. Someone whose rabbi gave them a certificate that says “yoreh yoreh — you have permission and thus the duty to do hora’ah“, you know how to interpret law that has no one settled ruling, and how to extrapolate from existing law to new cases. Someone who apprenticed under a rebbe and has a feel for how to “do halakhah“. The alternative is that one is judging the “quality of the arguments” while under the subconscious influence of having a desired outcome, and without the expertise in and practice with the halachic yardstick for measuring quality of argument.

I would think that ideally a person should face a halachic question as follows:

1- If you have time, open up an Arukh haShulchan, MB or the like, or compare a few guides (Chayei//Chokhmas Adam, Qitzur SA, more recent guides) and see if this case has settled law (zil q’ri bei rav), or if the question is still open (hora’ah).
If it’s settled law, then you know what to do. If not…
2- Did your mentor tell you he is comfortable with your ability to pasqen (ie do you have semichah)? Is this case one that you can decide for yourself with some modicum of objectivity? Can you reach a conclusion you yourself are comfortable with?
If all of the above are “yes”, then go ahead with your conclusion. If not…
3- Consult your rabbi! Not the rabbi most likely to be lenient, not some rabbi who knows you, not even some random gadol. The mishnah says “asei lekha rav — make for yourself a rebbe“. Being able to speak with someone who knows you, your proclitivies, and your situation is a big part of pesaq. The only time you should be sacrificing that kind of ability to fit the situation and your own path up the mountain is when there is no other way to get sufficient technical expertise — and even that should be minimized. (Your rabbi may similarly consult his rabbi, if the question is beyond him, and so on recursively as needed.)
This way, you should get an answer that fits where you are — and where you are going — without giving dangerous autonomy to people with little practice separating halachic concerns from personal desires and from misunderstandings of what the halachic concerns are.

Thus the Oral Torah is a dialog down the ages, from the encounter with G-d at Sinai as explained by Moshe Rabbeinu through Yehoshua and so on down to ourselves. As I wrote in 2009:

Mesorah is a living tradition of a development of ideas. The Oral Torah is oral, a dialog across the generations. If we see a quote in the gemara from Rav Yochanan, we might be curious about the historical intent of Rav Yochanan. But in terms of Torah, important to us than what R’ Yochanan’s original intent is what R’ Ashi thought that intent was, which in turn can only be understood through the eyes of what the Rosh and the Rambam understood R’ Ashi’s meaning to be, which in turn can only be understood through the eyes of the Shaagas Aryeh and R’ Chaim Brisker.  That is the true meaning, in terms of Torah, of Rav Yoachanan’s statement.

By sharing the job one’s halakhah decision-making with a mentor-poseiq one is connecting to something eternal. Fealty to halakhah with all its notions of authority and precedence (or should that be: authority including precedence?) saves one from existential angst. Being part of something eternal means my contributions to the fate of the universe will survive my death. Joining the community, finding a different balance between personal expression and fealty to that community and its laws than the “do your own thing”, “self made man”, idealization of autonomy in American and Western society gives me the leverage to be part of something bigger than I am alone.

Am Yisrael Chai for far more than 120 years.

Vayiqra 2

A second thought on the first / title word of parashas Vayiqra…

וַיִּקְרָא אֶל מֹשֶׁה וַיְדַבֵּר ה אֵלָיו מֵאֹהֶל מוֹעֵד לֵאמֹר.

And He called to Moshe, and Hashem spoke to him from the Ohel Moeid, saying.

- Vayiqra 1:1


“וַיִּקְרָא אֶל מֹשֶׁה” – (יומא ד’ ת”כ) הקול הולך ומגיע לאזניו וכל ישראל לא שומעין יכול אף להפסקות היתה קריאה ת”ל וידבר לדבור היתה קריאה ולא להפסקות ומה היו הפסקות משמשות ליתן ריוח למשה להתבונן בין פרשה לפרשה ובין ענין לענין ק”ו להדיוט הלומד מן ההדיוט

“And He called to Moshe”: The voice went and reached his ears, and all [the rest] of Israel didn’t hear.

[You] could [have thought] that even for the pauses there was a calling. Therefore it says “vayidaber — spoke”. For speech there was a calling, but not for the pauses.

And what [purpose] did the pauses serve? To give Moshe time to contemplate between parashah [paragraph] and parashah and between topic and topic. All the more so [they are necessary] for a normal person learning from a[nother] normal person.

- Rashi ad loc, quoting Tr. Yuma

Notice that our sages’  default assumption is that the pause between topics, that whitespace between paragraphs of the chumash, would be that G-d would call Moshe when it was time to review, contemplate and work out the material He already taught, just as He did for the teaching itself.


Rav Reueven Leuchter, opens his series on Concentration (first va’ad) contrasting between using the mind to problem-solve, and using the mind to create and refine an idea. People think of thinking in terms of knowing how to solve problems. But an idiot savant can solve math problems well beyond the reach of normal people. Problem solving isn’t a measure of being an ideal human being. Where the mind is spiritual is in its ability to hold and create intangible entities, ideas.

Picture it as circling the idea, seeing it from every angle. For example (his example), assuming you’re exploring the verse, “Da lifnei Mi atah omeid — Know before Whom you stand.” Turn it around…. “DA lifnei Mi atah omeiad. Da LIFNEI Mi atah omeid… Know before WHOM you stand. Know before Whom YOU stand. Know before Whom you STAND.”

Polish each facet of the idea to a good shine. Make the idea real, massive. (Mass: someone who is contemplating a weighty thought can’t simply be pushed aside by the allure of a shiny object or other distraction around him.) Make it a fine brick in a palace you build in your mind. A piece of a whole world of spirituality.

I would like to suggest that Chazal assumed that the pauses would require Hashem’s calling because this kind of creating has such holiness. But instead the pasuq tells us to dismiss the idea. The beauty of each “stone” of the palace within the soul is very much that it is our creation, not gifted from the Almighty.

Vayiqra 1

וַיִּקְרָא אֶל מֹשֶׁה וַיְדַבֵּר ה אֵלָיו מֵאֹהֶל מוֹעֵד לֵאמֹר.

And He called to Moshe, and Hashem spoke to him from the Ohel Moeid, saying.

- Vayiqra 1:1

“וַיִּקְרָא אֶל מֹשֶׁה” – לכל דברות ולכל אמירות ולכל צוויים קדמה קריאה לשון חבה (יומא ד:ויקרא רבה) לשון שמלאכי השרת משתמשים בו שנאמר (ישעי’ ו, ב) וקרא זה אל זה, אבל לנביאי האומות אומות העולם נגלה עליהן בלשון עראי וטומאה שנאמר ויקר א-לקים אל בלעם:

“And He called [vayiqra] to Moshe”: For all the declarations, statements and commandments, calling preceded them — a language of affection. (Yuma 4b; Vayiqra Rabbah). The language that angels use, as it says (Isaiah 6:2, [quoted in Qedushah]), “And they call, this one to that…”

But to the prophets of the nations of the world, He revealed to them in a language of transitoriness and impurity, as it says, “And G-d happened [vayiqar] upon Bil’am…”

- Rashi ad loc

אל”ף דויקרא זעירא. שמשה היה גדול ועניו לא רצה לכתוב אלא “ויקר” לשון מקרה כאילו לא דבר הקב”ה עמו אלא בחלום כדרך שנאמר בבלעם (במדבר כג:ד) כאילו לא נראה לו השם אלא במקרה (מדרש אותיות קטנות), ואמר לו הקב”ה לכתוב גם האל”ף ושוב אמר לו משה מחמת רוב ענוה שלא יכתבנה אלא קטנה יותר משאר אלפי”ן שבתורה וכתבה קטנה:

The alef of [the word] “vayiqra” is small. For Moshe was a great person and modest, and only wanted to write “vayiqar“, a term of happenstance [miqreh]. As though HQBH only spoke to him in a dream, as it says of Bil’am, as though Hashem only appeared to him by chance. (Midrash Osios Qetanos).

HQBH told him to write also the alef, and again Moshe told Him, because of his great modesty, that he would only write it smaller than other alef‘s in the Torah. And he wrote it in small.

- Ba’al haTurim ad loc

The book of Vayiqra opens with a contrast between “vayiqra“, being called by G-d, and “vayiqar“, serendipity. The Medrash Osios Qetanos, quoted by the Ba’al haTurim, says that this is the reason for the small alef — Hashem wanted to emphasize His closeness to Moshe, while Moshe had a hard time writing such a thing, and wanted instead to make the verse and the prophecy look more like happenstance than like a special relationship.

Rabbi Lord Jonathan Sacks enhances this contrast in a recent mailing, by noting one of the key words in the Tokhachah (chapter of rebuke) near the end of the book of Vayiqra. Hashem writes that if even after feeling the negative consequences of our actions we continue to act with Him in qeri, He will respond to us with qeri. Many translations are offered for the word “qeri“, and as for connotation — the word also denotes impure sexual emissions. But among them, the Rambam ties it to miqra, happenstance, and therefore would translate these lines something like this:

כא וְאִם-תֵּלְכוּ עִמִּי קֶרִי, וְלֹא תֹאבוּ לִשְׁמֹעַ לִי–וְיָסַפְתִּי עֲלֵיכֶם מַכָּה, שֶׁבַע כְּחַטֹּאתֵיכֶם. … כג וְאִם-בְּאֵלֶּה–לֹא תִוָּסְרוּ, לִי; וַהֲלַכְתֶּם עִמִּי, קֶרִי. כד וְהָלַכְתִּי אַף-אֲנִי עִמָּכֶם, בְּקֶרִי; וְהִכֵּיתִי אֶתְכֶם גַּם-אָנִי, שֶׁבַע עַל-חַטֹּאתֵיכֶם. … כז וְאִם-בְּזֹאת–לֹא תִשְׁמְעוּ, לִי; וַהֲלַכְתֶּם עִמִּי, בְּקֶרִי. כח וְהָלַכְתִּי עִמָּכֶם, בַּחֲמַת-קֶרִי; וְיִסַּרְתִּי אֶתְכֶם אַף-אָנִי, שֶׁבַע עַל-חַטֹּאתֵיכֶם. … מ וְהִתְוַדּוּ אֶת-עֲו‍ֹנָם וְאֶת-עֲו‍ֹן אֲבֹתָם, בְּמַעֲלָם אֲשֶׁר מָעֲלוּ-בִי, וְאַף, אֲשֶׁר-הָלְכוּ עִמִּי בְּקֶרִי. מא אַף-אֲנִי, אֵלֵךְ עִמָּם בְּקֶרִי, וְהֵבֵאתִי אֹתָם, בְּאֶרֶץ אֹיְבֵיהֶם; אוֹ-אָז יִכָּנַע, לְבָבָם הֶעָרֵל, וְאָז, יִרְצוּ אֶת-עֲו‍ֹנָם.

21 And if you walk with Me randomly, and do not come to listen to Me, I will add to you seven times more plagues, according to your sin. … 23 And if with these [plagues] you do not turn to Me, and you walk with Me randomly. 24 I too will walk with you randomly, and I — I too — will punish you sevenfold, according to your sin. … 27 And with this [additional punishment] you do not turn to Me, and you walk with Me randomly. 28 I will walk with you with the fury of randomnss, and I — I too — will give you trials, sevenfold, according to your sin. … 40 And they will confess their sin and their fathers’ sin, the embezzlement which they embezzled from Me, and also that they walked with Me randomly. 41 I too will walk randomly with them and I will bring them into the land of their enemies; only then their calloused hearts will be humbled, and they will have repaired their iniquity.

- Vayiqra 26:21,23-24,27-28,40-41

In retrospect the verses of rebuke clearly describe life in exile. G-d abandoning us to the forces of history. As a tiny nation with no political power, that alone is to guarantee punishment.

And yet, when we look at galus overall, our survival these 1943 years since the fall of the Beis haMiqdash speaks louder of Hashem’s Presence than reading all the narratives of Tanakh! As we will say next week, “Vehi she’amdah — This is what stands for our ancestors and us: that not one alone sought to destroy us. Rather, in every generation they rise up to destroy us. And Hashem saves us” — albeit too often with many many casualties — “from their hands”.

What divides vayiqar from vayiqra? A single letter, an inaudible letter, and yet also the letter that represents the start, and the unity of the Creator. What divides being called from happenstance? Hearing the “small still voice” of G-d within. Whether one chooses to look for Him or unfortunately chooses not to.

This thought from the Chief Rabbi reminded me of Rav Dessler’s approach to the line between nature and miracle. A topic I discussed in Mesukim MiDevash for Beshalach, pp 1-2:

Most of us live within a world in which the laws we call “teva” apply. R’ Chanina ben Dosa, however, lived in a world where the laws of neis applied. In this world, oil and vinegar are equally flammable…. Rav Eliyahu Dessler elaborates on this principle. Mekubalim speak of four olamos, each of a higher level than the previous: asiyah (action), yetzirah (formation), beri’ah (creation) and atzilus (emanation)….

People have two sources of information that they consider absolute. The first is their senses – sight, sound, and so on. The second is their self-awareness. The senses bring us information about the physical world. Self awareness brings us concepts like truth, freedom and oppression. Someone mired in the desires of the senses lives in the physical world. He focuses his attention on it, just as everyone focuses on that which is important to them. “Every tailor notices and looks at the clothing of the people in the street; and similarly every shoemaker, shoes…” The man of the senses therefore perceives it as more objective and more absolute than the world of the self…. This is olam ha’asiyah.

However, one can rise above that to the olam ha’yetzirah. This is not merely another level, but another world with its own laws, laws that do not conflict with free will. Those who focus on this world have no question that free will exists. To them, it is the ideals of this world that are more objective and absolute, and the senses, more subjective. Rav Dessler explains that this is how nissim can impact one person’s senses and not another’s. Yetzirah is the Maharal’s plane of nissim, and as the Maharal noted different people will perceive the miraculous differently, or not at all. And so the sea split in olam hayetzirah, but not in olam ha’asiyah.

According to Rav Dessler, someone who truly sees the world in terms of justice and kindness, freedom or oppression, to the extent that those laws are more objective and more absolute than gravity, conservation of energy, or electromagnetic force, then those laws actually do drive their reality. Such a person would live in a world of miracle rather than nature.

As long as we refuse to see Hashem’s “Hand” in the calamities of our exile, we see the events as random (Purim – Lots), qeri. When one seeks out the small alef, one’s experience is an entirely different reality; rather than being subject to happenstance or called by G-d.

Halakhah: Truth or Law?

R’ Moshe Halbertal’s paper on the nature of machloqes found three classical positions. (I blogged on this back in 2005; and you can see RMH’s original 1994 paper “The History of Halakhah, Views from Within: Three Medieval Approaches to Tradition and Controversy“.) As I summarized it then:

RM Halbertal proposes that there are three basic positions on plurality in halakhah:

1- Retrieval: All of Torah was given at Sinai, and therefore machloqesin (debates) are due to forgotten information.

He finds this opinion to be typical of many ge’onim

2- Accumulative: Torah is built analytically from what was given. Therefore, machloqesin come from different minds reaching different conclusions. This is the Rambam’s position among others. It comes from sources like Rabbi Aqiva’s “finding mounds and mounds of laws in the crowns atop the letters”….

3- Constitutive: The poseiq (halachic decisor) doesn’t discover what’s correct halakhah. Rather, part of the definition of “correct” is the poseiq‘s say-so; Hashem gave them the power to decide and define law. This is the position of the Ramban, the Ritva and the Ran.

The Accumulative and Constitutive approach are both open to taking “Eilu va’Eilu divrei E-lokim Chaim“, that before pesaq, each side of a machloqes are the words of the “Living” G-d, quite literally. The difference is whether we limit this domain to, or also to deciding halakhah in cases that are already addressed, but it’s unclear yet how. Accumulative theory would mean that the only real machloqesin are when we need to extrapolate from existing halakhah to new cases. Otherwise, the role of a poseiq is to find the truth: What did Hashem tell us was allowed or not? What was the original intent of the beis din that established the law? And to find the truth, he uses the halachic process to get an answer he is permitted to rely upon.

I believe this is why the Rambam has the rule that there was never a true machloqes in an law that is halakhah leMoshe miSinai. Because such a law never had a formation period, there was no time in which one could extrapolate in different ways to different valid options. Any disputes in halakhos leMoshe miSinai are not true machloqesin — there was a correct answer, and someone in error. (And this distinction between “true machloqes” and machloqes being used non-technically to refer to a dispute even when between right and wrong would explain why the Rambam himself often discusses disagreements which seem to violate his rule. He could say that in these cases, one of the amoraim are wrong, as opposed to the pre-legislativtrue machloqes before either ruling accumulated to the law.)

Whereas Constitutive theory would include situations where the existing halakhah itself is open to multiple interpretations because halakhah is a law-defining process, not a fact-finding one. The halachic process guarantees a result that is valid, and by selecting one result out of a range of possibilities, the poseiq makes that one correct.

Also in that 2005 post I looked at R’ Michael Rosensweig’s article “Elu Va-Elu Divre Elokim Hayyim: Halakhic Pluralism And Theories Of Controversy“. R’ Rosensweig cites Rashi (Kesuvos 57a, “QM”L”) who discusses this kind of plurality. To quote:

When a debate revolves around the attribution of a doctrine to a particular individual, there is only room for one truth. However, when two Amoraim enter into a halakhic dispute, each arguing the halakhic merits of his view, each drawing upon comparisons to establish the authenticity of his perspective, there is no absolute truth and falsehood. About such issues one can declare that both represent the view of the living God. On some occasions one perspective will prove more authentic, and under other circumstances the other view will appear to be more compelling. The effectiveness of particular rationales shift as conditions of their application change even if only subtly.

Notice that this also puts Rashi with the other rishonim on the Constitutive side of the question. Rashi does not limit true machloqes to decisions about new laws, but also in the realm of interpretations of existing ones.

In the past I posted my own opinion on the question:

Mesorah is a living tradition of a development of ideas. The Oral Torah is oral, a dialog across the generations. If we see a quote in the gemara from Rav Yochanan, we might be curious about the historical intent of Rav Yochanan. But in terms of Torah, important to us than what R’ Yochanan’s original intent is what R’ Ashi thought that intent was, which in turn can only be understood through the eyes of what the Rosh and the Rambam understood R’ Ashi’s meaning to be, which in turn can only be understood through the eyes of the Shaagas Aryeh and R’ Chaim Brisker.  That is the true meaning, in terms of Torah, of Rav Yochanan’s statement.

My instinct is that halakhah is Constitutive, and that in fact it’s really “only” the Rambam among the rishonim who holds otherwise. (What the geonim hold is a different discussion, and I have too little access to the sources to discuss it.) What’s interesting enough to me for me to have reopened the topic, is that this again is consistent the Rambam’s Aristotelianism. (Making this post a successor to the previous two: The Rambam’s Philosophy and Mesorah, and The Rambam, Knowledge and Akrasia.)

Aristotilian logic has two laws that force everything to be true or false in a very black-and-white manner:

  • The Law of Excluded Middle: for any proposition, either that proposition is true, or its negation is.
  • The Law of Contradiction: contradictory statements cannot both be true in the same sense at the same time.

In Aristotilian logic, a ball is either red or it is not. Which sounds logical until you consider concepts that have a more and a less — the ball is red in comparison to a blue one, but it seems a little less red than that third ball over there.

The Rambam actually drifts from this idea a bit in his discussion of Providence (Guide 3:18):

HAVING shown in the preceding chapter that of all living beings mankind alone is directly under the control of Divine Providence, I will now add the following remarks: It is an established fact that species have no existence except in our own minds. Species and other classes are merely ideas formed in our minds, whilst everything in real existence is an individual object, or an aggregate of individual objects. This being granted, it must further be admitted that the result of the existing Divine influence, that reaches mankind through the human intellect, is identical with individual intellects really in existence, with which, e.g., Zeiḍ, Amr, Kaled and Bekr, are endowed. Hence it follows, in accordance with what I have mentioned in the preceding chapter, that the greater the share is which a person has obtained of this Divine influence, on account of both his physical predisposition and his training, the greater must also be the effect of Divine Providence upon him, for the action of Divine Providence is proportional to the endowment of intellect, as has been mentioned above. The relation of Divine Providence is therefore not the same to all men; the greater the human perfection a person has attained, the greater the benefit he derives from Divine Providence.

The Rambam modifies the position he just attributes to Chazal by making humanness a set with blurry edges, something someone can be more or less of. And therefore someone who is fully human is fully subject to Divine Providence, but most of us are somewhere short of the end of the spectrum, and therefore receive Providence only occasionally.

But in general, his reasoning is very consistent with Aristotle’s work on logic and syllogisms. And so the Rambam will not gravitate toward a model in which a rabbi can explore a pre-existent fact and yet there are multiple possible correct answers. It violates the black-and-white nature of Aristotilian Logic, in which there is only one Truth. In the Rambam’s worldview, pesaq constructs new facts. There is no history of interpretation of a law.

To close with an example… When a gemara concludes that a mishnah should be taken in a manner that is far from the naive understanding of its words, Rashi will understand the mishnah accordingly. This is typical for a Constructivist, or as I wrote (quoted above), “But in terms of Torah, important to us than what R’ Yochanan’s original intent is what R’ Ashi thought that intent was, which in turn can only be understood through the eyes of what the Rosh and the Rambam understood R’ Ashi…” The Rambam, on the other hand, will rule as closely to the literal mishnah, and fit his understanding of the gemara accordingly. Because in his eyes, the entire discussion is an exploration of what the author or Author of the law meant, and thus one’s understanding of that source is the discussion’s anchor.

For an example of this example, Zava Qama 2:1, the topic of “chatzi nezeq tzeros — paying half the damages for damage caused by kicked pebbles”:

כֵּיצַד הָרֶגֶל מוּעֶדֶת לְשַׁבֵּר בְּדֶרֶךְ הִלּוּכָהּ? הַבְּהֵמָה מוּעֶדֶת לְהַלֵּךְ כְּדַרְכָּהּ וּלְשַׁבֵּר; הָיְתָה מְבַעֶטֶת, אוֹ שֶׁהָיוּ צְרוֹרוֹת מְנַתְּזִין מִתַּחַת רַגְלֶיהָ וְשִׁבְּרָה אֶת הַכֵּלִים מְשַׁלֵּם חֲצִי נֶזֶק….

In what way can ‘the [animal's] foot’ be regularly [destructive] in the way it walks? The animal regularly walks on its way and breaks things. If [a calm animal] was kicking, or if pebbles were kicked from under its feet and broke utensils [its owner] must pay half-damages….

The gemara (ad loc, 17b) says:

אמר רבא: בשלמא סומכוס קסבר כחו כגופו דמי, אלא רבנן. אי כגופו, דמי כוליה נזק בעי לשלם, ואי לא כגופו דמי, חצי נזק נמי לא לשלם. הדר אמר רבא לעולם כגופו דמי, וחצי נזק צרורות הלכתא גמירי לה.

Rava said: It is well according to Sumkhus, who reasons that [the animal's] power [which set the pebble moving] is like its body. But according to the Rabbanan — if [the power] is like its body, he should have to pay the entire cost of the damages, and if it is nore like [the animal's] body, even half the damages he shouldn’t have to pay.
Afterward Rava said: It was always that [the animal's power] is like its body, and the half-damages of pebbles is a received halakhah.

Rashi quotes “הלכתא גמירי לה — it is a received halakhah” in his commentary on the mishnah. Meaning, the whole issue is beyond our ken, but that’s what we got from Sinai.

The Rambam, in contrast, does provide an explanation of the halakhah. In his commentary to the mishnah, the Rambam says that this is an instance of an animal doing damage shelo kedarkah — in an unusual manner. He explains that there are two kinds of unusual manners: (1) a tame animal that rarely damages anything, or (2) the damage is indirect, caused by something that the animal set in motion, not the animal itself.

(Aside from them also disagreeing as to what “הלכתא גמירי לה” means, but that’s not our discussion.)

Rashi’s commentary fits Rava’s explanation, the Rambam’s fits the mishnah‘s opening question: What does it mean to have an animal whose leg regularly breaks things? Rashi follows halakhah as it flows down the ages, a process in which legislation unfolds. The Rambam tries to get at the meaning of the original source.

For the same reason the Rambam, between writing his Peirush haMishnayos and writing the Mishnah Torah, dismissed the notion of relying on later sources to interpret earlier ones — he instead confronts the texts themselves with a clean slate, trying to reach original meaning. He writes (Igeros haRambam, Silat ed. pg 305, 647) about approaching Chazal only through the primary sources without the tradition of interpretation of the ge’onim (tr. R’ Dr Marc Shapiro):

This confusion that people have with regard to the Perush HaMishnah is entirely due to the fact that I corrected it in places. The Creator knows that most of my mistakes were due to my having followed Geonim, z”l, such as Rabbeinu Nissim in his Megilas Setarim and Rav Chefetz, z”l, in the Sefer HaMitzvos, and others whom it is difficult for me to mention. (pg 305)
That which is codified in the chibbur [i.e. the Mishneh Torah -mb] is undoubtedly correct, and so we wrote as well in the Perush HaMishnah, and that which is in your hands [an early version of the Peirush haMishnayos -mb] is the first version which I released without proper diligence. And I was influenced in this by the Sefer HaMitzvos of Rav Chefetz, z”l, and the mistake was in his [analysis], and I just followed after him without verifying. And when I further evaluated and analyzed the statements [of Chazal], it became clear that the truth was what we recorded in the chibbur and we corrected the Perush HaMishnah accordingly. The same happened in so many places that the first version of the Perush HaMishnah was subsequently modified, tens of times. Each case we had originally followed the opinion of some Gaon, z”l, and afterwards the area of error became clear. (pg 647)

This focus on primary sources rather than an acknowledgment of the Torah’s inherent orality and fluidity means that the Rambam isn’t using a halachic process that remotely resembles the ones “everyone” else does.

If we buy into the Rambam’s model of what halakhah is — which, again, betrays an Aristotelian foundation that we have no compelling need to accept — it wasn’t just the innovations of the chassidim that bent the halachic process into an unacceptable pretzel, there are NO observant Jews today. And thus the contrapositive, if we accept the halachic process as practiced by acharonim and arguably most rishonim, then what do we do with what the Rambam describes?

On the other hand, that self-same “halachic process as practiced by acharonim” gives much weight to the Rambam’s opinion as a source.

So, can someone help reconcile me with shitas haRambam?

Purim and Ki Sisa

I have heard many derashos discussing the linkage between parashas Tetzaveh and Purim, which usually falls out around the week of Tetzaveh. Typically involving the discussion of the kohein‘s uniform in Tetzaveh and all the mentions of clothing in the megillah — people wearing their finest at the party, Esther’s change into royal clothes, sackcloth when the news of Haman’s plot came out, Mordechai being dress up in the king’s finery, etc… But there is an intriguing connection between Purim and this week’s parashah (Ki Sisa), one I feel is even tighter than with Tetzavah. In Ki Sisa, Moshe comes down from the mountain, confronts the sin of the eigel hazahav (Golden Calf) and shatters the first luchos. In the aftermath of the consequent punishment to the worshippers of the calf, HQBH and Moshe have a long exchange, including Moshe asking, “הַרְאֵנִי נָא, אֶת-כְּבֹדֶךָ. — Please let me see Your Glory.” And Hashem replies:

וַיֹּאמֶר, אֲנִי אַעֲבִיר כָּל-טוּבִי עַל-פָּנֶיךָ, וְקָרָאתִי בְשֵׁם ה לְפָנֶיךָ; וְחַנֹּתִי אֶת-אֲשֶׁר אָחֹן, וְרִחַמְתִּי אֶת-אֲשֶׁר אֲרַחֵם. וַיֹּאמֶר, לֹא תוּכַל לִרְאֹת אֶת-פָּנָי: כִּי לֹא-יִרְאַנִי הָאָדָם, וָחָי. וַיֹּאמֶר ה, הִנֵּה מָקוֹם אִתִּי; וְנִצַּבְתָּ, עַל-הַצּוּר. וְהָיָה בַּעֲבֹר כְּבֹדִי, וְשַׂמְתִּיךָ בְּנִקְרַת הַצּוּר; וְשַׂכֹּתִי כַפִּי עָלֶיךָ, עַד-עָבְרִי. וַהֲסִרֹתִי, אֶת-כַּפִּי, וְרָאִיתָ, אֶת-אֲחֹרָי; וּפָנַי, לֹא יֵרָאוּ.

And He said: I shall pass all My Goodness over your face and I will call out in the name “Hashem” [the name that connotes transcendence, creation and Divine Empathy] before you; and I will be Gracious to whomever I will be Gracious and I will show Empathy to whomever I will be Empathetic. And He said: You will not be able to see My “Face”, for no person can see Me and live. Hashem said: Here there is place with Me, and you shall stand on the rock. It will be when I pass My Glory, I will place you in a crack in the rosk; and I will place My “Palms” upon you. And I will then remove My “Palms” and you will see My “Back”, but My “Face” will not be seen.

Shemos 33:19-22

Moshe is told that man cannot see G-d. We cannot understand why He shows his Graciousness or Empathy to this person or in this situation and not in another. We can only get a small glimpse, sometimes, “from the back”, with hindsight. This is the message of Purim. The one holiday in our calendar that commemorates Hashem acting through nature rather than defying it. The name “Esther” is associated with the Megillah not only because of its protagonist, but also because her name connotes “hesteir panim”, Hashem “placing His ‘Palms’ upon us and hiding His ‘Face’”. It is only after the events unfold that His plans were visible. Until then, it all looks like “purim – lots”. Also, because of this destruction, the giving of the Torah on Shavuos needed to be repeated. Moshe descended with the Second Luchos on Yom Kippur. And our second acceptance of the Torah isn’t complete until Purim itself. ” “‘קימו וקבלו היהודים — The Jews established and accepted’ (Esther 9:27) — – קיימו מה שקיבלו כבר (בבלי שבת פח ע”א — “They established that which they had already accepted.” (Shabos 88a). The first luchos were entirely made by Hashem. The second luchos were quarried by Moshe. The first luchos represented a world where Hashem would not be hidden. Our sin shifted us to a reality in which He hides by weaving His Plan into the outcomes of nature and human action. The world of Purim. The Torah calls the Day of Atonement “Yom haKippurim“, which the Tiqunei Zohar homiletically explains, “a day which is comparable to Purim”. This is a possible linkage between the days. Yom Kippur and Purim combine to address the loss of Torah caused by the cheit ha’eigel (the sin of the Goldan Calf).