Shelach 5754

(Another version of this thought was included in Mesukim MiDevash for parashas Shelach, in the “Bemachashavah Techilah” column, pp 1-2. -micha)

 

Inherent Tension

Judaism sees man as a synthesis of two opposite concepts. On the one hand, man is a physical animal, on the other, he carries “the spark of the Divine.” As the Torah describes it:

Then G-d formed Man, dust of the ground and breathed into his countenance the breath of life.

Bereishis 2:7

Each of his parts pulls man in its direction. The physical man shares many of the needs of a creatures. He feels hunger, has sexual urges, wants comfort, heat when he is cold. He longs to satisfy his nerve endings.

We should be clear that the physical is not inherently evil. Shabbos would not be complete without three meals. Simchas Yom Tov, the joy of the holiday, is defined by the Torah by eating — by the holiday meal and partaking the Yom Tov sacrifices.

The spiritual man craves G-d and spirituality. He wants to be more than mere animal. Just as the physical man is not inherently evil, the spiritual man is not inherently good. Cult members too are striving to speak to G-d, to experience Him. As the Pesach Hagadah states, “In the beginning our ancestors were idol worshipers.” We take pride that they searched for G-d even though they reached the wrong conclusion.

While we are tempted to think of these two parts of our mind as complete opposites, they have one thing in common. They describe man as a creature, as a passive being pushed by the forces around it.

Every person is torn between these poles. We find ourselves pulled by the physical and the spiritual parts of our minds. The fact that there is a “self”, the one feeling this pulling, gives us a third piece to the human puzzle. There is a part of man that must do the deciding, that is endowed with the G-d given free will to choose his actions.

Since it is the “I” who is getting pulled by these two forces, the part involved with free-will must also be the seat of awareness. When we describe man as being “in the image of G-d”, we are describing this element of him. Aware, a decider of his fate, a creator.

Tzitzis as a Description Human Nature

R. SR Hirsch understands many aspects of this mitzvos to be osos, symbols Hashem uses to convey certain concepts and priorities to the core of each Jew. He finds the role and function of each of these components of the human condition alluded to in the mitzvah of tzitzis in two different ways: in the color of the strings in the tzitzis, and in their number. In “Collected Writings” (Volume III page. 126) Hirsch comments:

We find only three terms to encompass the colors of the spectrum: adom for red, yaroq for yellow and green, and tekheiles for blue and violet….

Red is the least refracted ray; it is the closest to the unbroken ray of light that is directly absorbed by matter. Red is light in its first fusion with the terrestrial element: adom, related to adamah [footstool, earth as man’s footstool — M.B.] Is this not again man, the image of G-d as reflected in physical, earthly matter: “vatichsareihu me’at mi’Elokim” (Tehillim. 8,6).

The next part of the spectrum is yellow-green: yaroq.

Blue-violet is at the end of the spectrum: techeiles.

The spectrum visible to our eye ends with the violet ray, techeiles, but additional magnitudes of light radiate unseen beyond the visible spectrum. Likewise, the blue expanse of the sky forms the end of the earth that is visible to us. And so techeiles is simply the bridge that leads thinking man from the visible, physical sphere of the terrestrial world, into the unseen sphere of heaven beyond….

Techeiles is the basic color of the sanctuary and of the High Priest’s vestments; the color blue-violet representing heaven and the things of heaven that were revealed to Israel… no other color was as appropriate as techeiles to signify G-d’s special relationship with Israel. A thread of techeiles color on our garments conferred upon all of us the insignia of our high-priestly calling, proclaiming all of us: “Anshei qodesh tihyun li — And you shall be holy men to Me” (Ex. 19, 6).

If we now turn our attention to the pisil techeiles on our tzitzith, we will not that it was precisely this thread of techeiles color that formed the krichos, the gidil, the thread wound around the other threads to make a cord. In other words, the vocation of the Jew, the Jewish awareness awakened by the Sanctuary, that power which is to prevail within us, must act to unite all our kindred forces within the bond of the Sanctuary of G-d’s law.

By wrapping a blue thread around the others we are demonstrating a fundamental principle. Physicality and mental exploration have great value, but only as tools. The end must be to strive to go beyond the spectrum, to reach to be closer to Hashem then we are today.

Elsewhere R. Hirsch explains the concepts symbolized by the numbers 6, 7, and 8. Dr. Isaac Levy includes this explanation in his English translation of Hirsch’s commentary to this week’s parshah (16:41):

The origin of this meaning is to be found in the work of the Creation. The visible material world created in six days received with the seventh day a day of remembrance of, and bond with its invisible L-rd and Creator, and thereby its completed consummation. Similarly the symbolism of the number seven in the Menora, in the Temple, in the Mussaf offerings, in the sprinklings of the blood on Yom Kippur, in the Festivals of Pessach and Succoth, in Sabbath, Schmita, Tumma etc. etc. The symbolism of the number eight: starting afresh on a higher level, an octave higher. The eighth day for Mila, Schmini Atzereth and Israel as the eighth of G-d’s Creations. With the creation of Israel G-d laid the groundwork for a fresh, higher mankind and a fresh higher world, for that shamayim chadashim and the `eretz chadashah for which Israel and its mission is to be the beginning and instrument (Is. LXV,17).

So that there are three elements in us. (a) our material sensuous bodies, like the rest of the created visible world = 6; (b) the breath of free will, invisible, coming from the Invisible One = 7; (c) the calling of Jew, coming from the historical choice of Israel = 8.

This too parallels the understanding of man that we have outlined. The six is physical, the seven represents free will, and the eight is man’s striving to be something more.

Tzitzis, worn so that “ye shall remember and do all My commandments”, is explained in this light.

These are the three elements out of which the tzitzis threads are woven. All these three elements are given to us, are woven into our being and are to be realized in completing our calling. But in these three energies two are to be the directing and ruling ones; the “six” in us is to subordinate itself to the seventh and eighth which are also given as part of us, and is to allow itself to be overcome, wound round, by the firm restraining bonds of duty…. Once the bodily sensuality has submitted itself to the bonds of duty through the Divine and Jewish elements, it becomes completely equal to its brother-energies, and like them, is to expand in free development within the limits of Jewish human duty.

The physical man finds expression, but only after he has been channeled and guided by G-d-like free-will and a drive to surpass nature. This is the essence of Hirsch’s vision of Torah im Derekh Eretz — Torah with the way of the world. Man’s goal is not to strive for spirituality to the exclusion of the physical, but rather to use the physical drives as tools for human growth.

In Hirschian thought, the complete human masters the art of six and seven, the physical and the mental. Notice that Hirsch calls the seven divine, not the eight of the spiritual creature. It is the free-will that makes man like G-d, merely being a passive resident of heaven pales by comparison.

According to the Rambam, it is the eighth string which is the techeiles. In this way the tzitzis instructs each Jew that he has the tools to strive for some thing beyond mere human. He must take his physical resources and divine intellect and apply it to the spiritual realm.

© 1995 The AishDas Society

Lechem Oni

Packing peanuts. That filler material stuck in the box to prevent breakage. You would think it has nothing to do with Pesach, right?

A few years ago, a friend showed me a halachic guide that discussed a kind of packing peanut that was wheat- or corn-starch based. The guide recommended getting rid of them for Pesach. Our first observation is that there are grounds to be lenient and the issue is complex and interesting. (Obviously, if this problem is relevant to you, you should ask your own rabbi.)

However, we have this tendency when it comes to chameitz to be more stringent than usual. This is based on the Ar”i za”l, who says that while halakhah only requires we eliminate pieces of chameitz that can possibly combine to be bigger than a kezayis, we should eliminate from our homes every taint of chameitz.

Chameitz, the Ar”i explains, is representative of the yeitzer hara, and therefore “Anyone who removes all chameitz from their house is assured of having a year without sin.”

So while it’s laudable to go after every speck of chameitz, my friend had to ask: Why are we spending day after day cleaning up dust, and absolutely none preparing for Pesach by removing our spiritual chameitz?

Good question, I thought. But what is “spiritual chameitz“? How do I get rid of something until I know what it is?

Let’s start with the converse. We know that chameitz isn’t matzah. There is plenty of Torah about the meaning of matzah. Perhaps if we look at that and take the opposite, we can get an idea of what chameitz means.

In historical order, the first time we find matzos in the Pesach story is during their servitude. Magid begins with the Aramaic words “Ha lachma anya — this is the poor bread which our forefathers ate in Mitzrayim.” In Hebrew, “lechem oni“, bread of poverty. Matzah as an experience of poverty and humility.

We are also given a second translation of “lechem oni“. Not only is “oni” a reference to poverty, but it can also be taken to mean “answer”. Matzah is also “she’onim alav devarim harbei — about which we answer many things” (Pesachim 36a). This is the matzah of which the Torah says “… וְלֹא יֵרָאֶה לְךָ חָמֵץ וְלֹא יֵרָאֶה לְךָ שְׂאֹר בְּכָל גְּבֻלֶךָ. וְהִגַּדְתָּ לְבִנְךָ בַּיּוֹם הַהוּא לֵאמֹר… — and you shall not have chameitz, and you shall not find any leaven in all your borders. And you shall tell your children on that day, saying…” (Shemos 13:7-8)

Third, the Pesach offering must be eaten “on matzos and maror”. Matzah was eaten the night of the exodus, immediately before Par’oh expellled us from his country. Simply because Hashem said it is a “choq olam — a decree, forever” (Shemos 12:17). Matzah as obedience to Hashem.

Last, there is the matzah of the exodus itself. When “וַיִּשָּׂא הָעָם אֶת בְּצֵקוֹ טֶרֶם יֶחְמָץ — the nation carried the dough because it could not leaven” (ibid v. 34). We left with zerizus, haste to do what right.

So we find that matzah speaks to four things: humility, acting thoughtfully, commitment, and zerizus.

The four find parallel in the four cups of wine, giving these messages to the structure of our seder.

The first cup is filled before Qadeish. After qiddush, allowing us to drink that wine, it addresses Urchatz, Karpas and Yachatz — washing in preparation for dipping a vegetable in salt water, the dipping itself, and breaking the middle matzah in two. When we break that matzah, we say “Ha lachma anya — this is the bread of poverty that we ate in Mitzrayim”. (Most Haggados place this within Maggid, but I think making it the explanation of why we’re breaking the matzah in Yachatz fits better. None of which impacts the point of this post.) All of which refer to humility, to life as a slave in Egypt.

After “Ha lachma anya” we fill the second cup for Maggid, and leave that cup out until it is drunk at the end of Maggid — telling the story of the Exodus. This is “answering over it many things”. Learning and teaching.

The third cup is poured before Motzi, and is out while we eat the matzah, the maror, and the meal. We reenact the eating of the Pesach offering (in two different ways, the majority opinion and Hillel’s), fulfilling all the physical mitzvos of the evening still available to us. This is the step of commitment and obedience.

The last cup is before us as we sing Hashem’s praises. It’s a cup purely of redemption, of leaving Egypt — both the historical and our current Egypts — with alacrity. “ישועת ה´ כהרף עין — the salvation of G-d is like the blink of an eye.” (Idiom from Pesiqta Zutrasa, Esther 4:17, popularized by the Abarbanel’s repeated use)

Getting back to our original question, if matzah reminds us of humility, acting thoughtfully, commitment, and zerizus, what is it we need to rid ourselves of before Pesach? Egotism. mindless routine, lack of commitment, procrastination.

In this light, the Ar”i’s statement is more easily comprehensible. If we eliminate these character flaws, we’d have far less motivation to sin. Following the common customs the Ar”i’s words inspired gives us time in various parts of every room, time we could spend replaying scenes from the past year and how we interacted with our family. If we are to go beyond the letter of halakhah and remove every possible speck of chameitz, it would be appropriate to do so with thoughts of eliminating our motivators for sin.

This is a — if not the — key feature of preparing for Pesach. And if we can do so, we can merit to not only celebrate the great Shabbos of Shabbos haGadol, but also the Great Shabbos of “life of the world to come” (traditional Shabbos Zemirah).

Pesach 5761: The Four Sons Confront Tragedy

The Haggadah tells us that the Torah addresses the question of telling the Passover story to our children by referring to four different kinds of children. One is wise, one is evil, one is uncomplicated, and the last doesn’t know to ask questions. Each son asks a question, even if the last does so in his silence. We can see from the question what they are looking to take from the seder experience.

I believe these four approaches follow through in how we react to tragedy as well. Given the dismal state of current events, perhaps this is worth some exploration.

R’ Joseph Ber Soloveitchikzt”l (“the Rav”) addresses the question posed by the Holocaust in his seminal work on religious Zionism, “Kol Dodi Dofeik”. His position is that the question of why is there human suffering can’t be answered. Any attempt to address theodicy is going to insult the intellect or the emotions, and quite likely both. But “Why?” isn’t the Jewish question. Judaism, with its focus on halachah, on deed, asks, “What shall I do about it?”

The Rav continues by quoting the Talmudic principle, “Just as we bless [G-d] for the good, so we bless [Him] for the evil.” Just as we dedicate all the good that comes are way to be tools in our avodas Hashem, we also dedicate ourselves through our responses to suffering.

This is the wise son’s reaction. “Who is wise? He who learns from every person.” The wise son is one who turns everything into a learning experience. His response to the seder is “What are the testimonial acts, the dictates, the laws, which Hashem our G-d commanded you?” How does G-d teach us to react to the events of Egypt and freedom? How am I supposed to react to tragedy?

When G-d presents tragedy to the wise son, they are called nisyonos — challenges or tests. Like the Akeidah, a learning experience for Abraham, to get him to fully realize his potential.

The second son, the wicked son, needs a wake up call. What the gemarah refers to as “yisurim”. In the weekday prayer “Tachanun” we ask G-d to forgive our sins “but not through yisurim or bad illness”.

The evil son of the Hagadah doesn’t respond to this wakeup call. He asks, — no, he says rhetorically, “What [good] is this job to you?” Our response is to blunt his teeth and point out that had he been there, he wouldn’t have been amongst those to merit the Exodus. We tell him that it’s not the tragedy that is leading him to rejecting G-d — it’s his rejection of G-d that lead him to the tragedy. I like to imagine he accepts this answer in the silence after the paragraph.

There is a second kind of yissurim, yissurim shel ahavah — tribulations of love. This is not where the person is being evil, but he’s not living up to his full potential. He too is in a rut, and G-d calls to him to break out of it and improve. G-d calls him to ahavah, to greater love and closeness to G-d.

This is the uncomplicated son, the one who believes with simple and pure faith. He asks “What is this?” and we answer with the Pesach story, with all that G-d did for us. Unlike the wise son, who wants to know all the laws of the day, all the nuances of how to react, the uncomplicated son is given motivation to cling to the A-lmighty.

Then there are times where the thing we want is a greater nisayon, a greater challenge, than the ones we don’t. And if we are not up to the challenge, if it’s a test that we couldn’t pass, G-d doesn’t make us face it.

There is a story told (Taanis 24b) of R’ Chanina ben Dosa, a man so holy that the Talmud tells numerous stories of miracles that occured to him. And yet one so poor that a heavenly Voice commented that the whole world was supported by R’ Chanina’s merit, but he himself lived off a small measure of carob from one Friday to the next.

Eventually his wife just couldn’t handle the abject poverty any longer. He agreed to her request that he pray for wealth. A heavenly hand came down and handed them a huge golden table leg. Certainly worth a fortune.

That night, R’ Chanina’s wife had a dream. They were in heaven, and all the other couples were sitting at three legged tables. Except for them. Their table only had two legs, it couldn’t stand.

Realizing that the third leg of their table was the gift they had received, she asked her husband to pray for it to be taken back. And it was.

R’ Chaim Vilozhiner associates the three legs of the table in this story with the mishnah (Avos 1:2) about the three pillars of the world: Torah, Divine service, and acts of charity. The Voice said, after all, that R’ Chanina supported the world.

The golden leg they received was the one of kindness. Until now, they had reason not to give more charity — they had nothing more to give. The story as R’ Chaim understands it (I wouldn’t say this about R’ Chanina ben Dosa on my own), suggests that R’ Chanina would have been unable to practice charity as he was worthy to had he had the opportunity.

So, R’ Chanina ben Dosa was poor.

Similarly, the person who is medically needy because that keeps him close to G-d. The person who, had he been healthy, would have been more distracted by the physical opportunities afforded him.

This is the son who doesn’t know how to ask. Unlike the wise son, who asks “How shall I respond?” or the son of uncomplicated, pure and simple faith, who asks “G-d, G-d, why have you forsaken me?” (Tehillim 22:1) this son isn’t asking anything. He isn’t capable of grappling with this issue — be it a tragedy, or be it the Exodus.

“You shall start for him.” Our response must be to help them grow.

Of course, these four sons are archetypes. Real people are wise on some issues, determined to be wrong about others. We have a simple straight to the point perspectives on yet other things, and there are those issues we aren’t prepared or ready to face. But it is only through growth that we can reach our goals as individuals and as a people.

© 2001,2002 The AishDas Society

The Legislative Authority of a Bas Qol

A brief summary of the Encyclopedia Talmudit entry on “Bas Qol”, the paragraph about its impact on halachah:An Achna’i-style oven was made from pieces of pottery that were not cemented together. So, the question arose: Can it, like any other oven, become tamei? Or, is it like shards of pottery which can not? Rabbi Yehoshua and the other sages ruled stringently. Rabbi Yehoshua ruled leniently.When the vote was taken, Rabbi Eliezer disputed the result. “If I am right, let the carob tree prove it.” The tree flew through the air. But the chakhamim replied that we don’t accept halachic rulings from trees. He similarly makes a stream flowed backwards, and even the walls of the beis medrash started to buckle. All three times, the miracles back Rabbi Eliezer, but the sages insist the law follows the majority. Rabbi Eliezer then appeals to heaven, and a bas qol declares, “Why are you disputing with R. Eliezar, for the Halakhah is according to him everywhere”. Rabbi Yehoshua rose to his feet and said, “It is not in Heaven.” (Devarim 30:12)Several generations later, Rav Noson asked Eliyahu haNavi what happened in heaven during that story. He is told that G-d “smiled” and said, “Nitzchuni banai — My children have defeated me!”

However, in Eiruvin 13b, the bas qol is relied upon to give precedence to Beis Hillel. “These and those are the words of the living G-d, but the halachah is like BH.”

The two stories therefore appear to conflict on the question of the precedence of bas qol vs. normal halachic process.

1- Rav Nissim Gaon (Berachos 19a), opinion I: The bas qol said “halachah k’moso b’chol makom”. As a general rule, the halachah is like R’ Eliezer, but not here. The halachic conclusion does not contradict the bas qol, and it’s even possible that the BQ caused them to reach their decision.

2- Ibid, opinion II: The bas qol was only a test for the sages. Again, normally BQ would have halachic power.

3- Tosfos (Eiruvin 6b) I: The bas qol was only for the kavod of R’ Eliezer, who called down the opinion of Shamayim. BQ does NOT have halachic authority.

#3 is only possible (assuming that G-d doesn’t lie) by saying that R’ Eliezer and R’ Yehoshua were in an eilu va’eilu situation — both were right. Therefore, to show R’ Eliezer respect, G-d asserts that R Eliezer isn’t wrong even though the halachah is like R’ Yehoshua. In short, exactly the same point made by the BH vs BS story.

4- Tosfos II: There is a difference between whether the bas qol runs counter to metahalachah (normal halachic process), or in accordance with it. Bas qol can confirm a ruling, but not run counter to normal halachic process. Metahalachically, we follow BH because they are the majority. The BQ only confirms that fact.

(Why did it need confirmation? Probably because this is the first generation that the Sanhedrin was in exile, and because BS were generally considered the sharper group. Therefore there was a crisis in confidence in rejecting BS’s opinion without word from the Chamber of Hewn Wood.)

5- Or Samei’ach (Yesodei HaTorah 9:4): There is a distinction between whether the bas qol is clarifying a particular halachah and whether it speaks of a person’s ruling. In the first case, BQ is certainly not followed — metahalachah is the G-d-given means of creating new halachah. (cf
Temurah 16:1, where the prophet Yehoshua refuses to retrieve lost halachos via prophecy.) In the second, we do follow Beis Hillel, as per the BQ. (Although R’ Yehoshua disagreed about this use of bas qol as well.)

#5 appears to be nearly identical to #4, but with the added statement that given two true answers (speaking of one of two extant rulings), i.e. metahalachah allows one to follow either, BK can be followed. His conclusion is that even had BH and BS been of equal number, the halakhah would still be like BH.

In short, RNG gives authority to BQ to override halachic process, and the Achnai story’s bas qol is a special case for two different reasons. Tosafos and the OS agree that BQ has less authority than metahalachah, and possibly even no halachic say at all.

In either case it’s a question of whether one follows pre-existing rules for making halachic decisions despite supernatural evidence. It’s support for the notion of metahalachah, not for arbitrary leeway in making decisions.

FWIW, RYB Soloveitchik notes that “nitzchuni” does not mean “conquered”. Rather, by the normal rules of grammar it would be singular first person passive causitive of netzach (eternal). At the end of the Achnai story G-d is actually saying “My children have made Me [i.e. My Torah] eternal”. Which it would not be if we were limited to those decisions revealed at Sinai that weren’t lost.

Eilu vaEilu – part I

Before giving my own thoughts, I would like to discuss two recent articles on Eilu va’eilu:

As background: The gemara (Eiruvin 13b) speaks of a protracted debate between Batei Hillel and Shammai. Finally, a bas qol emerged and said “Eilu va’eilu divrei E-lokim Chaim, vehalakhah keBeis Hillel — these and those are the Words of the Living G-d (or: G-d of Life), but the law is like Beis Hillel.” (I already wrote on the role of this bas qol in defining law.) The question is whether this is meant literally, that G-d gave us multiple contadicting messages, and if so, how and why?

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 and the Seifer haQabbalah, and is based on statements like “Why were there so many debates between the schools of Hillel and Shammai [when there were so few between the mentors themselves? Because they did not properly serve their rabbis.” Implied is that much was forgotten because of this lack of connection to the previous generation.

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”.

Personally, I would be inclined to say that these need not contradict, and perhaps both types of debates occur. Except that according to the Rambam, there are no machloqesin in underived law; in his opinion this is one of the critical features of a halakhah leMosheh miSinai (a law given to Moshe since Sinai). The Rambam makes the flawlessness of the mesorah incontravertable. Only contructions are open to debate. So, while one may choose to embrace the idea that both occured, one must be aware that that’s not shitas haRambam.

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. A typical source: In order to make sanhedrin you needed to be able to find 49 arguments that something is tamei, and 49 that the same something is tahor. G-d gave us all 98 arguments, and empowered the rabbinate to decide which is law.

Here, I don’t see why one must assert they are different. After all, even the Ramban and his students don’t give the poseiq carte blanche. He may have the power to define law, but there are limits to which definitions are valid. It would seem from the Ritva (see the quote below, in the discussion of the other article) that the process of finding choices fit the “accumulative” model; G-d could have given us all 98 arguments not directly, but implicitly for us to derive. The argument the poseiq actually derives and finds authoritative could then be correct because of the “constitutive” model, because that’s man’s role in the halachic process.


R’ Michael Rosensweig’s article gives a different perspective. (I’m skipping the first two sections, getting right to the subject of machloqes within halakhah. Otherwise the scope would be too broad for this format.)RMR cites the ma’aseh of “eilu va’eilu” (Eiruvin 13b) and the gemara (Chagiga 3b) describing learning as one rav insisting tamei, the other tahor to open a discussion of halakhic plurality.The Nesivos haMishpat holds that in reality one opinion is wrong, but the mitzvah of talmud Torah includes the studying and winnowing out of wrong opnions. RMR understands this to mean that studying these opinions is part of the encounter with devar Hashem (word of G-d).The Netziv defines two types of pesaq:

  • Hora’ah, dating back to the role of the kohein. From this perspective, both positions are the “substance” Torah, in a literal understanding of “eilu va’eilu”.
  • Hakhra’ah ledoros (making a determination for generations), the logical analysis of the shofeit mechoqeiq (legislating judge). This produces the hilkheta gemirei (deduced conclusion), and as Moshe Rabbeinu was taught “everything that a student will in the future give hora’ah”, Moshe was actually taught that one was more true than the other as he was told which will be the future hora’ah. Within this category, there are two subtypes:
    • Nitzotzos (term taken from Sanhedrin 34a), or netu’im (from Chagiga 3b), which maintain some or Torah (light of Torah), but of lesser quantity.
    • Those which are outright rejected.

RMR then shows that the Rama might conform to this model.

Rashi (Kesuvos 57a, “QM”L”) seems to support a real 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 Amorairn 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.

The Ritva (on “eilu va’eilu”, Eiruvin 13b) writes, “When Moshe ascended to receive the Torah, it was demonstrated to him that every matter was subject to forty-nine lenient and forty-nine stringent approaches. When he queried about this, God responded that the scholars of each generation were given the authority to decide among these perspectives in order to establish the normative halakha.”

The Ritva’s phrasing, that matters being subject to 98 different approaches rather than Moshe being given 98 interpretations seems to me to be what R’ Moshe Halbertal called the “accumulative” approach, even though he then continues to weave it with the “constitutive” one. But to return to R’ Rosensweig…

The Maharshal writes that since each soul was at Har Sinai, each soul presents its perspective on emes. The soul doesn’t simply passively report the emes. The Maharal similarly peaks of a the Ideal pesaq as manifest in heaven, and how man in the “real world” can only approximate that Ideal. (Very Platonic, to my ear.) The reason for plurality is because the actual truth can’t be fully captured within this world.

This last opinion reminds me of R’ Moshe Koppel’s position in “Metahalakhah”. He argues that halakhah is best transmitted the same way grammar is: the native speaker’s feel for right and wrong. It’s only due to loss of our status as “native speakers”, our progressive lost of the Sinai culture, that we need to codify rules. And just like codified rules of grammer, the rules only approximate the reality they’re trying to describe. The Maharal says that this world can’t capture halakhic truth, whereas RMK is arguing that even of that which was given at Sinai, it could not fit a rule set.

RMR opens section IV with an explicit statement of the “constitutive” perspective. Since halachic truth includes plural views, the poseiq is defining which truth is law. The fact that the other is true doesn’t make is any more acceptable as a fall-back position legally.

According to the Maharshal and the Arukh haShulchan, the need for pesaq is “so that it will not be like there are two Toros”. Since either position is truth, it’s not a need to determine Torah, but that of communal unity. The zaqein mamrei (a rebellious elder who refuses to bring his ruling in line with the Sanhedrin’s) is punished because the effects of his actions (“like two Toros”, ruining the entire concept of halachic process) are so damaging — not because he’s promoting falsehood.

The Ran and the Chinukh apply lo sasur (do not disagree) to modern rejections of rabbinic conclusions, not only the zaqein mamrei in the Sanhedrin. Maharam ibn Habib (aside: should I recognize this name?) applies a ZM parallel to any judge, and “we do not divide money according to the majority” (ie rulings are all or nothing, you don’t make someone repay proportionally according to the percentages of votes among the judges) requires him to acquiesce to the majority.

[In part II I will iy”H discuss my own thoughts and opinions on the subject.]

Purpose of Qorbanos

When reviewing what I wrote on this subject for the Mesukim on Vayiqra, I noticed some more points. First to summarize:Rambam (naively reading the Moreh Nevuchim): Hashem gave us qorbanos, a normal idolatrous practice, to wean us from avodah zarah.Ramban: How is this possible? Noach offered a qorban and there were no idolators or peer pressure. Rather qorbanos are to unify all planes of human existance: the thought of teshuvah, the speech of confession, and the action of the qorban. In addition, the person who sinned and brought a qorban sees the offering and realizes the severity of the act; that justice untempered by mercy would have called for his own death, not an animal’s.

(The question remains how the Ramban understands qorbanos that are less related to sin.)

Narvoni: The Rambam doesn’t speak of qorbanos as caused by the practice being avodah zarah. Rather, the practice expresses an inate human limitation. And if one doesn’t allow an expression for avodas Hashem, the need would lead people to avodah zarah.

Abarbanel: There are many proofs that qorbanos are part of an ideal, and not a concession to human limitation.

I then suggested a variant on the Narvoni’s idea that doesn’t fit the Rambam’s words, that the need to give in worship is a human need, but a positive thing, not a limitation. Any real relationship seeks expression in giving — whether it’s qorbanos or flowers. (And in both cases, the primary gift is the act of giving; Hashem doesn’t need the qorban and my wife tends not to take a second look at the flowers.)

So much for the summary.

1- The word “qorban” is the “-an” (object related to) suffix added to /qrb/ (to come close, the root of the word “kiruv”, to cause to come close). However, this has (at least) two meanings: an object that expresses a closeness already felt, or one that causes a closeness.

Perhaps this is reflected in our machloqes. The Rambam, especially as understood by the Narvoni, sees a qorban as an expression of a feeling already there, one which we therefore see in avodah zarah, and which the person needs in order to feel like a worshipper. The Ramban sees a qorban as a tool for acheiving closeness by unifying all his abilities to this end.

2- The Meshech Chokhmah (introduction to Vayiqra) finds a role for each explanation. The Rambam’s notion of weaning was the role of bamos, of altars built to G-d on mountaintops, outside of the mishkan. The weaning period ended when the Beis haMiqdash was dedicated in Yerushalayim, which is why bamos became prohibited at that time. However, we failed, avodah zarah and bamos thrived throughout the first Temple. Qorbanos in the Beis haMiqdash is called a rei’ach nikho’ach (a pleasant smell before Hashem) because they were to unify the worlds, as explained by the Ramban.

In light of the two meanings we gave to qorban, this explains why bamos were not mandatory — they were only for an expression of a feeling already there. As it says in parashas Vayiqra, “ish ki yaqriv mikem qorban — a person, when he brings from you a qorban”, when he chooses. However, the qorbanos at the mishkan or beis hamiqdash are not if/when, but obligatory. Because they create the motivation even when it’s not already there.

3- Allowing the Meshech Chokhmah’s idea that the Rambam’s and Ramban’s ideas can coexist, we can reach an interesting conclusion. According to the Ramban, the point of qorban is about it being an action more than the physical object being offered. Perhaps this is true even when the qorban is Rambam-esque, an expression of a human need. Like the husband who brings flowers, the primary gift is the giving itself, the statement “I need to give”.

4- What a far cry from the 9 seconds given to Qorbanos between “Atah Hu” and “Rabbi Yishma’el” in the minyan I attend every morning. Where’s that “need to give” that marks having a true relationship with the Creator?

I don’t think all the thoughts above will help. I think the gap between mind and heart is too great for philosophising to create an emotional need. Emotions are build slowly, through repetition. Perhaps we should pick one tefillah from Qorbanos, maybe the Tamid that the Shacharis we are davening derives from. And not only having these kavanos when saying it, but also simply thinking, “Ribono shel olam, I can’t even feel the loss of qorbanos. Please help me!”

Life and Consciousness

The differences between the treatment of the Terry Shiavo in American law and halakhah do not rest in scientific knowledge, but in definitions. To be precise two particular definitions: First, determining the line between beneficence and artificially prolonging life. Second, defining which medical states qualify as “human life”. In this entry, I’m just looking at the second one.R’ JB Soloveitchik noted on numerous occasions that just as there is an element of mishpat (intuitive law) in every choq (statute based in an idea too subtle for human comprehension), there is an element of choq in every mishpat. Parah adumah (the Red Heifer), the textbook case of choq, has elements that have been explained by numerous rabbanim. For example, Rashi quotes a chazal that the parah adumah is intentionally an adult version of the eigel hazahav (golden calf). The contrast is noted between the diminutive eizov, a grass and the sprig of proud cedar that are used in the parah adumah offering.Similarly, what could be more of a mishpat than “do not murder”? And yet, reason alone would be insufficient. Does it include euthenasia, and if so, when? What about organ donation from someone who is entirely brain dead, but still (artificially) has heart activity? Is capital punishment moral? When is war justified, if ever? Is abortion murder? Etc..

In the case of total brain death, so that even the brain stem is not functioning, the brain cannot even keep the vital signs going in lung and heart. R’ Tendler and the Chief Rabbinate see this as a direct parallel to the cases in the Talmud of the decapitated body, or one where the brain rotted or turned liquid. The difference is in our ability to determine the brain isn’t functioning without such large-scale flaws. Other rabbis instead keep the definition used elsewhere in the gemara, heartbeat. The cases in the gemara are ones where the gemara knew there couldn’t be a heartbeat. The primary difference is our ability to artificially keep the heart going independent of the brain, without which we wouldn’t have a question.

They don’t argue about the medical facts, but the basic definition: does “life” mean heartbeat (which in the days of the gemara required brain activity) or brain activity (which could only be measured by gross anatomical problems or the lack of heartbeat)? Either side would appeal to the latest technology in determining whether they definition would apply, neither is being scientifically naive.

In the case of persistent vegetative state, the brain can keep the vital functions running. However, it can never return to consciousness. (Tangent: Actually, that’s not so clear. Brain Inj. 2001 Dec;15(12):1083-92 carries an article titled “Cognitive recovery from ‘persistent vegetative state': psychological and personal perspectives”. J Neural Neurosurg Psychiatry. 1985 Dec;48(12):1300-3 has “Unexpected improvement after prolonged posttraumatic vegetative state.” In BMJ. 1993 Jun 12;306(6892):1597-600, “Recovery of patients after four months or more in the persistent vegetative state.” Or read the Kate Adamson story; she was diagnosed with PVS but was actually conscious but unable to act. She lived through treatment without anesthesia because no one realized she was awake in there. But since we’re looking at the philosophical issue, let’s deal with the assumption that PVS were for certain what they believe it is.)

No one is arguing that Terry Schiavo is about to die, and therefore should be aided in dying. Had they not stopped her drink and food supply, there is every reason to believe she would continue living indefinitely. Nor is it the cessation of unusual suffering, as they do not believe she is conscious and therefore living a life of pain.

Assisted suicide is in general illegal in the US; Dr. Kevorkian still sits in jail. Someone who wants to commit suicide because they can no longer live after losing a girlfriend is prevented from doing so, his free will is not respected. It’s not a society which in general allows suicide over quality of life.

The question is whether a life without consciousness is human life to be protected by the law. Behind the assumption underlying the law’s position is that it’s not as protected as other life.

Mussar, even before there was a field of psychology, recognized that not all of our decision making is conscious. As Rav Yisrael Salanter put it, “Man is a drop of intellect drowning in a sea of instincts.” That a primary duty of consciousness is to shape the non-conscious part of ourselves, to make ourselves better people. The mind can’t be identified with consciousness, it’s far greater.

On the other hand, the Meshekh Chokhmah defines the “image of G-d” in which man was created to be our free will. Doesn’t that necessitate consciousness, and therefore the PVS patient lacks the image of G-d and shouldn’t be accorded the full sanctity of human life?

The basic flaw is the assumption that if the brain can’t support consciousness, there isn’t any. An assumption that dovetails well with observations we made in the past about the Western perspective. It’s an inherently empirically oriented society, the scientifically measurable is considered more real. It is unsurprising that this case shows an identification of mind with brain. Second, it’s one that values personal autonomy, and therefore consciousness which enables autonomous decision. It is therefore unsurprising that someone with a brain that does not support such autonomy is not felt to be fully alive.

In Jewish thought, however, the mind is something done by the soul. It may be physically implemented in a brain during life, but the soul and mind can outlive the body. The question therefore isn’t viewed as whether there still is a mind, but whether the soul is still in the body and therefore the mind in the brain. A person’s “image of G-d” is simply not empirically measurable. Scientific progress doesn’t bring us any closer to answering the question of which medical states correspond to the sanctity of life or death. We have a nightly experience of a soul being in a body while not conscious. Therefore one can’t say that there isn’t a human soul still inhabiting the severely brain damaged and PVS body.

Thus, neither identification stands: the mind need not be measurable empirically, and the mind, soul and humanity aren’t necessarily limited to consciousness. Even if the Meshech Chochmah might say they are, he wouldn’t limit existance of the mind to the brain. Conscious activity isn’t the sonum bonum of human life.

Last, what is the justification for terminating something even if it were considered a shadow of true human life? (Particularly if it’s given that Terri Schiavo is incapable of first-hand suffering.) Isn’t it reasonable to say that life is sacred enough to warrant protecting even things similar to it? Along those lines, abortion is prohibited by halakhah, barring special circumstances. This is even true according to those rishonim who do not consider it to be murder. Perhaps because potential human life is itself sacred; it need not be actual life to warrant protection.

Medical state and sanctity of life are separate questions. The Schiavo case touches on a weakness in separation of church and state. The secular approach gives us science, a great means of determining the facts of the case. We can now determine the medical state of a person in more detail and with greater accuracy than ever before. But that doesn’t help us know which sets of medical states are “human life” and which are not. How can one assign moral value to one medical state over another without appealing to religion?

Causality in Halakhah

A major factor in the Terri Schiavo case is that a feeding tube was defined to be heroic medical intervention, rather than a parallel to the charity we would give anyone who can’t obtain food themselves.In halakhah, what’s the line? I would like to suggest that it is defined based on another halachic distinction.How can someone free a slave? The procedure is to give the slave a writ. But as a slave, anything he acquires becomes the property of his owner. Even putting it in his hand doesn’t make it his. Therefore he cannot actually receive the writ — a “Catch 22″! We say “his writ and his ‘hand’ (i.e. his power of domain) arrive together.”On the other hand, if someone want to sell something to another, among the ways he can transfer ownership is by giving the other a contract. Giving it includes putting it in another’s field. But if he’s selling a field, putting the contract in that very field doesn’t constitute giving it. In this case, we do not say that the contract and the ownership arrive together.

The Qetzos asks how these two cases differ.

The basic difference is that the slave’s natural state is to have a power of domain. His being a slave is a monei’ah, an impediment, holding back that natural state from expression. The writ is therefore hasaras hamonei’ah removing that impediment. The field, however, is not already part of the buyer’s domain. Rather, the contract is a sibah, a cause.

Rav Amiel explains that causes must precede their effects. Therefore, the field must be acquired before it can be used as domain for receiving acquisitions. However, a hasaras hamonei’ah need not be earlier than the effect. Implied in this explanation is that the sibah is already acting even during the suppression by a monei’ah, thereby preserving the necessary time sequence.

Halachicly, a sibah and a monei’ah are very different things. It’s not just that a monei’ah is a negative sibah, a cause for the opposite state.

Until a person is a goseis (expected to die within 72 hours), there is no immediate cause for death. Anything that would cause death at that point would be new, in the nature of a sibah. However, for a goseis, the cause is already there. If medicine is presenting death, it’s a monei’ah. Once we conclude a monei’ah is involved there are two further possibilities: either hasaras hamonei’ah (“pulling the plug”), or one can refuse to introduce the monei’ah to begin with; active or passive.

The last option is by far the most often permissable.

To look at physical cases:

Removing Terry Shialvo’s feeding tube was a sibah for her death. She would not have otherwise died, and in fact died more than 72 hours later even without drink or food.

Removing artificial respiration from a goseis would be haras hamonei’ah.

However, once the machine is disconnected, for example to change a filter, to reconnect it would be to refuse the monei’ah to begin with. Although it’s not the removal of something stopping the death, one is allowing the actual cause to run its course rather than initiating the causal sequence. And, as we saw, that’s a halachicly different species.

Purpose of Qorbanos, part II

“This is what is meant by the verse (Tehillim 89:7), “For who in the heavens can equal God, can compare with God among the divine beings?” Said the A-lmighty, “If I wanted a sacrifice, wouldn’t I simply ask Michael, who is right here next to Me, to offer to Me a sacrifice? From whom do I want a sacrifice? From Israel!”
– Tanchuma, beginning of Parashas Tzav

The Kotzker Rebbe explains this medrash. Hashem does not desire the qorban itself. Mal’achim could make a far more perfect offering with no adulteration of intent. Rather, the qorban is in the decision to give. Hashem gave us the power to decide, and our handing back that which is truly ours is what brings us close to Him.

Barukh shekivanti!

Reasons for Mitzvos

There are three things we might be talking about when we ask about reasons for a mitzvah:

  1. (if it’s Torahitic:) the source in the pasuq directly or through derashah;
  2. the halachic mechanism by which a given conclusion was reached;
  3. the philosophical principle behind the mitzvah.

I’m speaking of the third. But the gemara’s usual question is the first: How do we know something is the law?

The two most cited sefarim aimed at discussing the function of mitzvos are the Chinuch and R’ SR Hirsch’s Horeb. An interesting (to me) difference between each of those books, and R’ JB Soloveitchik. All three agree that we can’t fully grasp the reason for a mitzvah. Torahitic mitzvos require knowing the Infinite “Mind” of G-d, and therefore are beyond our abilities to comprehend. Rabbinic ones, unless the reason is explicitely given as part of the legistlation, are products of cultures that are beyond our current abilities to recreate.

They insist, as does the Rambam before them, that while we can’t fully explain a mitzvah, we are also not freed from trying to explore reasons that we can grasp. What’s interesting is that each has a different description of what we’re trying to find:

1- The Chinuch often introduces the reason for a mitzvah with the words “mishorshei hamitzvah” — among the roots of the mitzvah. It would seem that he believes that we can find part of the telos that motivated G-d to give us a mitzvah. But never the whole.

2- R’ Samson Raphael Hirsch sees ritual as a means of communication, G-d transmitting truths to man by means of symbols. In order to fully integrate these symbols into ourselves, and fully explore their richness, they are presented as acts for us to perform.

Any aspect of the message that we understand fully justifies doing it. And every aspect we don’t yet understand, fully justifies doing it until we reach that comprehension. The mitzvah can never be fully comprehended because there is no limit to human growth — there are always new things to learn from it.

3- In R’ JB Soloveitchik’s writings, he calls his explorations into the purpose of mitzvos “halachic homiletics”. In other words, he sees these lessons as things gleaned from the mitzvah, and have value, and should be internalized — but do not necessarily have any connection to the “Idea” that motivated their legislation.

Notice that all three approaches fully conform to the idea of “na’aseh vinishmah”, where doing causes thinking. None of them would say that these ideas should have impact on behavior or legislation. R’ Soloveitchik entire position is based on the premise that there is no causal connection.

Rav Hirsch contrasts Geiger’s Wissenschaft des Judentums (the “science of Judaism”) with true science. Geiger changes Jewish practice to fit his understanding of what Torah is. Fitting experiment to theory is alchemy, not science. A scientific approach to Judaism is one that takes halakhah, the givens, and constructs theories to explain them.

The Chinuch, though, by saying that these are parts of “The Reason”, might support the creation of stringencies based upon these “shorashim”. However, he couldn’t justify a leniency that might run counter from one of the roots he didn’t uncover.

Yom haAtzma’ut

A few years back, when Yom haAtzma’ut was also celebrated on Thursday 3 Iyyar, my father asked me what I thought about not saying Tachanun or saying Hallel. The choice of 5 Iyyar as the point at which we gained atzma’ut, independence, is itself not perfectly compelling. It was not the date we were given independence, or the date the war was won, but the date we made a declaration. No overt miracles. So even a full Zionist could question changing the liturgy for 5 Iyyar. And 3 Iyyar doesn’t even have that much!I replied that quite the contrary. Why is Yom haAtzma’ut celebrated early this year? Because the government has an office of the rabbanut , which did not want to establish a commemoration that would lead to Shabbos violation. The government doesn’t want to take responsibility for celebrations on Shabbos, or on Friday that could run into Shabbos and violate its laws.

Is not the existence of a country that adapts its commemorations for the sake of the Torah not extactly what we should be celebrating?

Rav Dovid Lifshitz spoke more than one year on the dual meaning of “atzma’ut”. Yes, we gained our “atzma’ut” our independence, our ability to be a fully capable and productive individual nation. However, “etzem” not only refers to an individual, it is also a bone or core. For observant Jews, Yom haAtzma’ut recalls what can only be considered a huge gift from the Creator, but only half of the task is done. The Jewish essence, the “etzem” is not yet manifest. We must respond to His gift.

Having a country that works to preserve Shabbos is one thing. Having one that doesn’t even need to, quite something else.

PS: In Rav Dovid Lishitz’s minyan on a year where Thursday was both an early Yom haAtzama’ut and BaHa”B, we said Tachanun, Selichos, and afterward Hallel without a berakhah.

Ki Arumim Heim

“And the snake was [more] arum than all the animals of the field…” (Bereishis 3:1)In this pasuq, “arum” is variously translated. JPS has “subtle”. Others have “sly”, “cunning”, and the like. In Iyov (5:12), Elifaz describes Hashem as One Who “annuls the thoughts of arumim”. In these contexts, it would appear that being an “arum” is no compliment. But in the very next pasuq in Iyov (v. 13), it is attributed to Hashem, who “overtakes the wise in ormah”! And in Mishlei (12:16), “A fool — in the moment his anger will be known; but the arum covers an insult.” The word “arum” describes a kind of wisdom that isn’t entirely negative.Then we get further in the story of Gan Eden, and after Chavah and Adam eat from the fruit, “Their eyes were opened and they knew they were eirumim.” (3:7) Same root, but in this case the translation is consistently “naked”.

Another point that confused me about the story is the choice of word used for garment when Hashem dresses them. There are a number of such words: “beged”, which is the same root as “bagad”, to spy; “kesus”, a covering… The latter in particular would have been the more obvious choice. They were ashamed of their nudity, so Hashem covered them. However, HQBH chose to call the garments “kasnos or” (v. 21), “leather tunics”. The next time we encounter the concept of a “kusones” is in the garments made for kohanim (Shemos 28:4). Hashem gave Adam and Chavah uniforms, something that implies a mission and a station. This isn’t simply a response to physical nudity.

Our rabbis retold: Yisrael are dear, for HQBH surrounded them with mitzvos; tefillin on their heads, tefillin on their arms, tzitzis on their clothing, and mezuzos on their doorposts. Of these [King] David said, “Seven times a day do I praise You by Your righteous laws.” (Tehillim 119:164). When David went to the bathhouse and saw himself arum, he said: “Woe is me, that I stand arum without a mitzvah.” But when he remembered the milah in his flesh, his mind was set at rest. After he left, he gave song, as it says “For the conductor, on the eighth [lit: an eight-stringed instrument, but intended here to be milah, the eighth mitzvah] a song of praise of David.” (12:1)
– Menachos 43b

To be arum is to have wisdom, but no mitzvos, no higher goal to which to set it. The snake was arum in this sense. The wise person who Hashem frustrates is one who abuses that wisdom, plotting how to do something better off undone.

Chavah and Adam ate from the fruit of the tree of knowledge of good and evil, and suddenly they realized they were arumim. They realized there is such a thing as having a higher calling as opposed to wasting one’s life in frivolity. No longer was a life of “working and protecting” (c.f. 2″15) the garden sufficient. In full realization of their ability to create, they had a need to produce, to properly channel their knowledge.

Hashem removes them from Gan Eden, from a position where one can live on dependency, and needs only to preserve what was given. Instead, He gives them kusnos or, uniforms for a life of creative service.

Tzitzis, Advance and Retreat

There are two descriptions of the mitzvah of tzitzis. First, from parashas Shelach (and Qeri’as Shema):

… [T]hey should make for themselves tzitzis on the corners of their garments (bigdeihem) throughout their generations, and that they put on the tzitzis of each corner a thread of blue wool (techeiles). And it shall for you tzitzis, and you will see it and remember all the mitzvos of Hashem… (Bamidbar 15:38-39).

There are a few points I want to stress about this quote:

1- The term for garment used is beged. Hebrew has a number of terms for clothing. That it’s called a beged rather than a kesus or a levush is significant. The uniform of the kohanim is called the bigdei kehunah. By saying the mitzvah is on our begadim is to cast the mitzvah in terms of the uniform for a role. (For an analysis of these terms with respect to bigdei kehunah and all the mentions of clothing in Megillas Esther, see “The Natures of Clothing“, and with respect to the clothing of Adam and Chava see “Ki Arumim Heim“.)

2- The term for the tassel is tzitzis. Tzitzis is actually an agricultural term, it means “sprout” or “small growths”. Tzitzis implies human growth. It is associated with the idea in Menachos 39a that “the beauty of techeiles (meaning tzitzis in general -Rashi) is 1/3 gedilim (knotted cords), and 2/3 free.”

3- Hashem describes techeiles as a thread of blue wool on the tzitzis. From this phrase, the Rambam and Raavad (as opposed to Rashi and Tosafos, see below) conclude that only one of the strings should be blue. The Rambam defines that as one of 8 string-ends coming out of the knotted portion. The Raavad, that it’s one of 4 strings, i.e. two ends are blue. (The Vilna Gaon writes that he is convinced that one of these two positions should be followed, but couldn’t determine which.)

From the Rambam’s position, R’ SR Hirsch explains techeiles as the Jew’s higher calling. It is the eighth string, going beyond the six days of physical creation and even the seventh day of the sanctity imbued within this world. It is sky-blue, the primary color most associated with spirituality — beyond the physical red (adom, red= adamah, earth= dam, blood), and even the green of growth.

The techeiles, then, imposes spirituality on the growth of the tzitzis. As Rav Hirsch describes it, human growth must be expressed freely — represented by the 2/3 of free-string tassel, but only after it was channeled by that blue thread. )I discuss this idea in more detail in Toras Aish for parashas Shelach.)

4- Hashem gives a motivation and purpose to the mitzvah. It’s a mnemonic device to remember not to chase aveiros, and to do mitzvos.

But there is a second presentation in the Torah of the mitzvah. The mitzvah is repeated in Devarim 22:2, to appear next to the laws of shaatnez. This teaches that techeiles, which is definitionally blue wool, is put on a linen garment despite the laws of shaatnez. There the Torah reads:

You shall make for yourself gedilim (cords) on the four corners of your covering (kesusekha), with which you cover yourself.

In this presentation, all three points that I stressed above are different.

1- The term for clothing is kesus, a cover. And in case we missed it, the pasuq continues by saying “which you cover (mekhaseh) yourself in it.” As opposed to the uniform of the beged, this is clothing that one wears to hide. The beged is an appointment to a duty, the kesus, a retreat from shame.

2- There is no mention of the free strings of the tassel, only of the gedil, the knotted part. This is in concert with the notion of it being a kesus. There is no emphasis of human creativity and individuality.

3- It’s from this pasuq that we learn there are eight ends of strings in each tassel. A gedil, a term for a cord or rope from the root /gdl/ – large, must be more than one string. Gedilim, in the plural, is therefore at least 2 pairs of strings, four in all, or eight ends. In fact, Rashi and Tosafos conclude from this pasuq that there is one gedil of white strings, and one of techeiles, i.e. two full strings (four ends) are blue.

The image of the mitzvah of techeiles, then, is that it’s one of man’s forces — with no description to its role in binding and guiding the others.

4- Hashem doesn’t say why we should wear it. Gedilim are worn simply because Hashem said so.

In R’ JB Soloveitchik’s terms, a beged is worn when one is in a state of advance, a kesus, when one seeks retreat. We’re not looking at man advancing, but his withdrawing in order to re-aim himself at the higher goal. Thus, we only speak of the gedil, the channeling of forces.

To use another of R’ Soloveitchik’s models, we can say that Adam I, majestic man, is given begadim with which to accept the responsibility that comes with his ability, and to aim his mastery of the world in positive directions. Adam II, covenental man, is given a kesus with which to hide his needfulness, to help him retreat long enough to find G-d.

Therefore, in Bamidbar, the beged is associated with human creativity, with instructions how to sanctify it, and with a personal motivation for keeping the mitzvah. Whereas in Devarim, the focus is not on our sanctifying ourselves, but in our accepting G-d’s role in sanctifying us.

Both relationships are true. As Rabbi Aqiva asked “Before whom do you make yourselves tahor, and Who makes you tahor?” There are times when we should take the initiative, and times when we are unable, and allow Hashem to do it for us.

In general, I’m trying to explore the concept of clothing, of uniform, and the proper use of chitzoniyus(externals). Like it or not, others do form their first impressions of us from our clothes. While we all know it’s silly to judge people by their clothing, it happens preconsciously and we can’t stop ourselves from forming that first impression. Nor can we change the entire human race from forming such impressions of us.

And there is no neutral clothing. Wearing a black fedora means that people’s first impression of you is “he’s yeshivish”. Not wearing one, though, equally creates an impression, the person will conclude you’re not all that yeshivish (assuming you’re a man, of course). You’re judged in comparison to the stereotype of people with similar clothing. To avoid wearing clothing of any particular subculture marks you as an outsider, an oddball. Etc… But the point is, you’re always marked. There is no non-uniform.

The other contrast to a beged is a levush. (I’m using the terms as I see them in Tanakh. When Chassidim call their clothing “levush”, it’s obviously based on a different understanding of the differences in connotation between the words.) Achashveirosh’s royal robes are “levush malkhus”. Not begadim, because he wasn’t inherently a royal person. Achashveirosh is portrayed in the megillah as a real follower, being lead around by his advisors, a drunkard, and not the swiftest thinker. Begadim help one assume a role. Levush helps look like they are in a role they really aren’t.

We often end up viewing ourselves and trying to remake ourselves to live up to our clothing. That’s the role of beged, raising our self-image to motivate us to improve. However, without knowing the proper time for begadim, one could try to don a beged only to have it devolve into a levush, a means of fooling ourselves into thinking we are holier than we are.

The key is knowing when is a time for advance, and when for retreat. Knowing that is knowing when we’re using chitzoniyus constructively, and when not. But most of us are not in the habit of even noticing the choices we make, never mind working toward improving them. At risk of getting overly repetitive, I see no way of knowing when to don the beged and when the kesus without keeping a daily cheshbon hanefesh.

Appropriate and Inappropriate Kulos, Good Chumros and Bad

It is this rupture in the traditional religious sensibilities [caused by the Holocaust and the subsequent displacement in geographic location] that underlies much of the transformation of contemporary Orthodoxy. Zealous to continue traditional Judaism unimpaired, religious Jews seek to ground their new emerging spirituality less on a now unattainable intimacy with Him, than on an intimacy with His Will, avidly eliciting Its intricate demands and saturating their daily lives with Its exactions. Having lost the touch of His presence, they seek now solace in the pressure of His yoke.

– R’ Dr Haym Solovetichik, “Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy” Tradition, Vol. 28, No. 4 (Summer 1994)

This is how R’ Dr Soloveitchik concludes an essay about a shift in the relationship to halakhah caused by the Holocaust. Before the war, he writes, halakhah contained a much stronger mimetic component, a notion of halakhah-as-lifestyle, seeing “what the people do”. Now, with the rupture in culture caused by the war and subsequent relocations, we rely less on mimeticism and more on textualism, referring back to the formal sources of halakhah, halakhah as a legal code.

Since the publication of that essay, they caused a bit of a backlash. By giving a motivation to the rise of chumros in post-WWII orthodox, he unintentionally gave a tool to people for implementing the equal and opposite reaction. Just one example:

It is true that in pre-war Lithuania, it was common for married women not to cover their hair. In the hands of some, this becomes “mimetic tradition”, following the culture of the observant community, and therefore an argument in favor of preserving that norm.

Interestingly, many of the same people argue in favor of ordaining women on textual grounds: Since semichah today has no real halachic significance, there is no reason that ordination be limited to men. Anyone with the skill to learn how to advise others ought be declared competent for “Yoreh Yoreh”. On the one hand, finding leniency despite the sources; on the other, finding it despite the leniency causing drastic change in Jewish lifestyle.

As I hope the reader can tell, I find both approaches problematic: Both the search for chumros and that for kulos.

I think both problems emerged from something overlooked in the essay. The fall of mimeticism was much earlier, back during the Enlightenment and its aftermath. The culture was lost, and Orthodoxy split into movements, each group seeking a rationale and motivation to continue keeping to the Sinaitic Covenant. What happened more recently, then, was not the loss of a mimetic tradition, a living Torah culture, but the loss of this ideological alternative. Whereas in the 19th century communities were built on ideologies, today all that is watered down. I discuss this two-stage shift in my entry “The Fall of Mimeticism and Forks in the Hashkafic Road“.

(There was one special case, I didn’t discuss then, Hungarian Orthodoxy. The Chasam Sofer took the ruling banning new grain, “Chadash assur min haTorah — the new is prohibited by the Torah”, and turned it into a motto for tenaciously holding on not only to the halakhah, but the culture as it existed at the time the ghetto fell. They therefore rejected all of these up-and-coming Orthodox movements, writing polemics against both Chassidus and Mussar. However, it too was an innovation. There is a fundamental difference between unselfconsciously following a living and changing culture and deciding to set out to preserve a given snapshot of it.)

What I would seek is not a return to the pre-emancipation mimetic Orthodoxy, but the movements of the late 18th and 19th centuries. They provided not only a communal structure that supported observing halakhah, but also the tools to engage one’s mind and heart. That was my focus in the earlier entry; now I want to look at the halachic implications.

The rise of the “Chumrah of the Month Club” is a product of a number of factors. Today’s greater affluence and free time give more opportunity to follow new practices. However, one factor we ought to seek to change is living without a well-articulated basis.

Disconnecting our ideological basis from our mitzvah observance contributes to chumros in two ways:

First, it leads to a religious vacuum. Someone who hungers for a connection to the Creator will seek to do more of the one thing he associates with that connection — more mitzvos ma’asiyos, more actions. This doesn’t really address his need. Rare is the observant Jew whose religious need is caused by not spending enough of his day engaged in religious action. He is really seeking a connection between his soul and that action, but is unaware of the gap. So, misdiagnosed, he instead chooses more action. Which leaves him still hungering, so as soon as the newness wears off, he seeks the next practice and the next one…

Second, without being grounded in an ideology, our practice lacks a value system by which we can assess various positions. The “Brisker Chumrah” has gained such currency in the current generation. In it, one avoids a machloqes, a disagreement in halakhah, by “being chosheish (concerned) for” both opinions. In Brisker thought, halakhah is only based on halakhah. This is a stark contrast from innovative practices based on ideology. The Chassid who started wearing a gartel rather than relying on a belt when davening did so because the separation between upper and lower was more fundamental to his worldview than that of his father. The Mussarnik is more likely to accept a chumrah of avoiding something not required by the letter of the law, not to do something not really mandatory. But the same rationale applies: Every new chumrah adopted was done so because the effort was deemed to be outweighed by the payoff, the chance to further inculcate a value into oneself.

To me it would seem to be the only appropriate grounds for their adoption. Going lifnim mishuras hadin, beyond the line of the law, can only be based on having a yardstick and knowing what is beyond the line, and which not.

I’m reminded of one of Stephen Covey’s “7 Habits”. Habit #2: Begin with the end in mind. As he puts it, “Before you climb a ladder, make sure it is leaning against the right wall.” Start with deciding where you want to end up, and decide your actions based on where they fit in achieving that goal. Without a definition of your own personal role in avodas Hashem (serving G-d), there is little way to make choices about appropriate action.

Covey’s advice on how to reconnect your day-to-day activities with your greater goals gives us an interesting variation on the theme of contemplating the day of one’s death:

In your mind’s eye, see yourself going to the funeral of a loved one. Picture yourself driving to the funeral parlor or chapel, parking the car, and getting out. As you walk inside the building, you notice the flowers, the soft organ music. You see the faces of friends and family you pass along the way. You feel the shared sorrow of losing, the joy of having known, that radiates from the hearts of the people there.As you walk down to the front of the room and look inside the casket, you suddenly come face to face with yourself. This is your funeral, three years from today. All these people have come to honor you, to express feelings of love and appreciation for your life.

As you take a seat and wait for the services to begin, you look at the program in your hand. There are to be four speakers. The first is from your family, immediate and also extended – children, brothers, sisters, nephews, nieces, aunts, uncles, cousins, and grandparents who have come from all over the country to attend. The second speaker is one of your friends, someone who can give a sense of what you were as a person. The third speaker is from your work or profession. And the fourth is from your church or some community organization where you’ve been involved in service.

Now think deeply. What would you like each of these speakers to say about you and your life? What kind of husband, wife, father, or mother would you like their words to reflect? What kind of son or daughter or cousin? What kind of friend? What kind of working associate?

What character would you like them to have seen in you? What contributions, what achievements would you want them to remember? Look carefully at the people around you. What difference would you like to have made in their lives?

Midrashei Halakhah

There are two kinds of medrash (which should technically be called “midrash” to be grammatically correct). Midrashei Aggada are non-halakhic statements, those of mussar, Jewish thought, Qabbalah, and the like. The thought is usually connected to the text through details added to the narrative, or other stories intended as metaphor (whether in addition to being historical or not).I want to discuss here Midrashei Halakhah, which derive laws from the text. Most often, through the rules of derashah. Hillel made a science of derashah, and reduced it to 7 rules. R’ Yishma’el and R’ Aqiva, broke down those rules into subcategories. Because of the differences in approach, R’ Yishma’el’s exposition yeilded 13 laws, R’ Aqiva’s, 19.
Derashah could be understood in 2 ways: Either as applied to the semantics, the meaning of the clauses of the verses, or as applied to the syntax — that particular words have coded meaning.R’ Yishma’el’s school believed the former. “The Torah is written in human idiom”. Therefore, derashos apply to the meaning of clauses, not individual word choice — if it’s normal idiom or metaphoric description. This also lead R’ Yishmael to view derashah as a means of getting what the Torah is telling us, such as “shomei’ah ani” (I hear).R’ Aqiva learned “mounds of halakhos from the tags and serrifs on the letters”. He understood derashah to be about the text itself. Doubled words (e.g. “aseir ta’aseir — you shall tithe” is also taken to mean “aseir bishvil sheti’asheir — tithe so that you may become wealthy”), or the presence of limiting or inclusive keywords (akh – except; raq – only) are grounds for derashah. R’ Aqiva’s language is more one of finding truths, “yachol”, it could be that… Being less related to the plain meaning of the verse, he understands a suggested derashah as less compelling than R’ Yishma’el would.

By their day, these rules of derashah were descriptive only. While Hillel and Shammai may have had the power to make new derashos (there is debate on this point), R’s Aqiva and Yishma’el generation certainly didn’t beyond qal vachomer (deriving from the less obvious case to the more).

Also, none of this necessarily means they invented the rules of derashah or even disagreed over fundamentals. The debate between the two schools of medrash were not over the creation of new laws of derashah. For that matter, it is clear that Hillel’s laws were known to the previous heads of the Sanhedrin, the Benei Beseira. The discussion is over taxonomy; how to understand derashah as being the product of a few clear rules. They could well have simply divided the existing derashos into existing categories, and categorized differently. In fact, we find R’ Yishma’el using ribui umi’ut (a principle of R’ Aqiva’s list) and R’ Aqiva using kelal uperat.

The two series of medrashei halakhah are:

R’ Aqiva’s schoolR’ Yishma’el’s school
ShemosMekhilta deRabbi Shim’on bar YochaiMekhilta (a/k/a Mekhilta deRabbi Yeshima’el).
VayiqraSifra (a/k/a Toras Kohanim and Sifra deVei Rav)Sifrei (lost sometime during the late geonim or early rishonim)
BamidbarSifrei Zutah (“Small Sifrei”)Sifrei (the remaining portion)
DevarimSifreiMekhilta Devarim (largely lost; some portions were recovered from citations including some only found in the Cairo genizah)

The texts seem to have been redacted in the 3rd and 4th centuries.

The traditional publication of the medrashei halakhah includes four books, mixing the two schools: Mekhilta, Sifra, Sifrei (on Bamidbar) and Sifrei (on Devarim). In fact, the two Sifrei’s often get published as a single volume, despite the difference in style that makes their different origin obvious (once you know to look for it).

A more complete publication would have all seven books, typically published in the order: Mekhilta, Mehilta deR’ Shim’on bar Yochai, Sifra, Sifrei (Bamidbar), Sifrei Zuta, Sifrei (Devarim), Mekhilta Devarim.

The word “mekhilta” is Aramaic, and means “measure” or “rule”. The words “sifra” and “sifrei” are conjugations of the root /spr/, meaning “book” or “writing a book”. Sometimes the word “sifrei” is used to refer to all 4 books.

After Rabbi Yehudah haNasi compiled the Mishnah, organizing halakhah by topic rather than verse, the notion of composing Medrashei Halakhah fell out of use. However, as he was from R’ Aqiva’s school (a student of R’ Aqiva’s student, R’ Meir), that school ended up making greater impact on the final law.

A Second Covenant

“To enter into a beris, a covenant, with Hashem your G-d, and in His oath, which Hashem makes with You today.” (Devarim 29:11) The Ramban comments that the beris mentioned here is a new one made in Arvos Mo’av, in addition to the one made at Har Sinai. (The Rav has some Torah on this as well.)I would like to suggest the following distinction between the two covenants:At Har Sinai, we were “ke’ish echad beleiv echad — like one man, with one heart”. We were unified because we chose to follow a common objective. Man joins the community — the connection is made outward from the individual.

Rashi comments on the dots over “lanu ulvaneinu in “The hidden are for Hashem our G-d, vehaniglos lanu ulvaneinu la’asos es kol divrei haTorah hazos — the revealed are for us and our children to do all the words of this Torah.” (29:28) He quotes the opinion of R’ Nechemiah that with these words we accepted areivus zeh lazeh. That lanu, written in the plural, falls the responsibility for the known sins of individuals. The community is responsible for its members, even those who choose not to follow its goals. As parashas Nitzavim opens, “Atem nitzavim hayom kulkhem — You are standing here today, all of you.” The connection is made from the community in toward the member — and so membership is automatic, regardless of personal choice.

It is different but similar to a distinction The Rav makes between the am, and the eidah. The am is the community of fate (which would include all Jews) and the eidah (from the word eidus testimony, those who believe in and live according to the revelation in Sinai), the community of destiny. Man chooses to follow his destiny, fate is imposed upon him. Note the purpose of this second beris: “lema’an haqim osekha hayom Lo li’am, veHu yihyeh likha lEi-lokim — so that you will be established for Him a community of fate, and He will be for you a G-d.” (29:12)

Types of Halachic Rulings

The following taxonomy of kinds of halachic ruling was culled from the Rambam, Hilkhos Mamrim ch. 2, and includes thoughts learned at a shi’ur given by R’ Yonasan Sachs (of RIETS and the Agudath Israel of Passaic).
(I posted an earlier version on soc.culture.jewish, and from there made it into the group’s FAQ. I later repeated it on Avodah, and the following reflects comments and corrections made there.)
  1. Minhag. Custom. Custom, although not really part of halakhah, can change. Minhag is any act that the masses, on their own, accept. According to the Rambam, to qualify as a minhag the practice must then ratified by the rabbinate. Any minhag that is against actual halakhah, is called a minhag ta’os, a mistaken minhag. Any that is based on a misunderstanding is a minhag shetus, a foolish custom. These two subtypes should not be followed. Any nearly universal minhag is called a minhag Yisrael, and has most of the stringencies of law. Yarmulka and ma’ariv services are two examples of a minhag Yisrael.
  2. Din deRabanan. A rabbinic law. These are set up by the rabbinate, instead of the masses, in order to preserve the spirit of the law. For example, Purim and Chanukah. There are 7 new commandments that are entirely rabbinic. According to the Rambam, who only counts biblical mitzvos amongst the 613, this means there are actually 620 mitzvos altogether.
  3. Gezeira deRabanan. A rabbinic “fence”. These are enacted to prevent a common cause for breaking the act of the law. For example, one may not place food directly on a fire before Shabbos in order to keep it heated during Shabbos. This is a fence around the law against cooking on Shabbos. To prevent the gezeira from being violated, a metal cover, called a “blech” in Yiddish, is placed on the stove top before Shabbos with the flame (turned to a low setting) under one section and the pot with food placed on the blech. This blech serves as a fence, allowing heating of the food without any danger of violating the law. Note that a “gezeira dirabanan” becomes binding only if the community accepts it.According to the Rambam, a gezeira cannot be overturned. However, a gezeirah where the law’s purpose is included in the legislation is implicitly conditional on the purpose. The problem is in knowing when the purpose is given in the quoted gezeirah, and when the gemara provides a motivation on its own, after quoting the gezeirah. For example, meat must be salted within three days of slaughter, or the prohibited blood will be too soaked into the meat to be retrieved. What about the contemporary situation, where meat is generally frozen solid? Some rule that since the reason is given in the legislation, and the reason doesn’t apply, neither does the time limit. Others rule stringently, presumably because they do not believe the reasoning about the blood being soaked into the meat was part of the legislation as initially codified.

    According to the Tif’eres Yisrael (Ediyos 1), there are actually two sub-categories:

    1. Siyag. Fence (Hebrew; “gezeirah” is Aramaic). Something that will lead to a future violation to do an error in understanding the law. Such as the ban on mixing poultry and milk, lest people become lenient in mixing meat and milk.
    2. Cheshash. Concern. Cases where the threat of violation is in the current situation, because one is in a circumstance where habit taking over or other accident is likely.

    The Tif’eres Yisrael says that a cheshash can be deemed inapplicable if the norms change such that the threat no longer exists. It does not require a beis din that is greater in number or wisdom as the law is not lifted, just that the current situation is deemed to be outside the limits the law addressed.

  4. Asmachta. Mnemonic. The Raavad (on Mamrim 2) considers laws backed by a mnemonic in the Torah are in a different category than other rabbinic laws. He writes that Hashem wrote these asmachtos as a way to suggest laws to us to enact as needed.
  5. Divrei Qabbalah. The words that were received; i.e. laws enacted by a beis din like the Great Assembly that included nevi’im (prophets). Many consider these rabbinic laws one step closer to Torahitic law than most others, since the law was ratified by consulting with Hashem Himself. This is like the Raavad’s concept of asmachta, but more so — not only suggested by Hashem to be used as needed, but we’re told that the situation justified it.Those who believe this is a distinct category would include Purim as divrei Soferim rather than usual rabbinic law. Some achronim rule that the obligation for women must hear megillah and the other mitzvos of Purim is rabbinic but for men it’s divrei qabbalah. Thus, their obligation is lesser.
  6. Pesaq. A rabbinic ruling. This ruling addresses a the questionable area of some law or custom. A pesaq that is not prima facie in violation of accepted halakhah can only be overruled by another body that is both larger in number (or perhaps number of students), and greater in “chokhmah”. (The ability to know how to use the facts. Not more knowledgeable book-wise, but more steeped in the Torah weltanschauung.)
  7. Derashah. A law derived by hermaneutics. Some hold that derashah only serves as support for already known laws, and therefore are tools in pesaq. However others, including the Rambam, see them as constructive, a means for discovering new Torahitic laws. This appears to be supported by a medrash on Rus, in which Boaz is credited as being the first to rule that “Moavi” means males from Moav in particular.
  8. A last category has only two related examples. Torah law mandates a shevus, a law to rest on Shabbos. It also requires resting from some of the melachos, constructive work activities, even on chol hamo’ed. However, Hashem left it up to man to decide the parameters of these forms of rest.

The distinction between the second and third categories is subtle. In order to be a din (or issur, or melakhah) deRabanan, the prohibited action is one that is similar in purpose to the permitted one.

In contrast, a gezeira does not even require an action. In the example I gave, it was inaction, leaving the pot where it is, that is prohibited. Second, the category includes things that are similar in means to the prohibited act, and will therefore cause confusion about what is and what isn’t okay; and things which will allow people to be caught up in habit, and forget about the prohibition. Only a gezeira may defy an actual Divine law (although a pesaq will often define one), and even so only under specific circumstances. All of the following must be satisfied:

  • The law being protected is more stringent than the one being violated. This determination isn’t easy.
  • The law is being violated only through inaction. No one is being told to actively violate G-d’s commandment.
  • According to the Ta”z, the law being violated will still be applicable in most situations. It still must exist in some form. (Not every acharon agrees with this requirement.)

In another way, a gezeira is less powerful than a normal rabbinic law in that it cannot be compounded. One may not make a “fence” for the express purpose of protecting another “fence”.

A law is considered accepted if it becomes common practice. Any din or gezeira that does not get accepted by the masses in the short run, does not become binding in the long run. Similarly, there are rules for pesaq, but they are violated if the masses choose to follows some other rabbinic body’s pesaq. Notice, however, that this need for acceptance is only in the short run, to enact the law. Once a law is accepted, it may only be overruled by pesaq. It does not cease to exist just because it faded out of practice.

Chidush and Shinui

Rabbi Yochanan ben Beroka and Rabbi Elazar ben Chisma went to Peki’in to visit their rebbe, Rabbi Yehoshua. Rabbi Yehoshua asked them to repeat something they had learned in the beis medrash since their last encounter. They answered, “We are your students, and we drink of your waters.” Rabbi Yehoshua replied, “Ee efshar leveis hamedrash belo chidush — It is impossible to have a beis medrash where nothing new is taught.” (Chagigah 3a)

Innovation is a critical element of Torah study. In Ish haHalakhah (pg. 73), Rav JB Soloveitchik explains that the recipient of the mesorah is not passive; rather, he receives while acting in the image (as it were) of the Creator of Worlds.

Obviously, though, this isn’t a carte blanche. Not all creative intepretations the Torah could possibly be equally valid. Rav Soloveitchik distinguishes between chidush, the positive process of innovation, with shinui, inappropriate changes to halakhah. But he writes in the halachic domain, where this conclusion is obvious; what is a legal system without a well-defined legislative process?

A month ago (“Ikkarei Emunah”, end) , we looked at the list of beliefs listed in Avos 3:11 (or 15 in some editions that Rav Elazar haModi’in says could keep one from having a share in the World to Come. Among them is “megaleh panim baTorah shelo kehalakhah — revealing perspectives in the Torah which are not according to halachah”. One might think this refers to halachic statements, however, it could also mean aggadic statements that somehow violate the halakhah. In fact, the Tosafos Yom Tov (ad loc) gives “veTimna haysah pilegesh — and Timna was a concubine” as an example, the textbook case of a verse that not only has no halachic impact, but also its philosophical or ethical content is unknown.

The Tosafos Yom Tov is clearly applying the concept R’ Soloveitchik calls “shinui” well beyond law, in the realm of parshanut, explaining the text.

So, given that this distinction between chidush and shinui goes beyond violating the legal process, how do we determine what it is?


Let’s first make a Kantian distinction between analytic judgements and synthetic ones. Analytic judgements are tautologically true, true by definition, or inherently false because they’re paradoxical. Synthetic judgements are ones that, as a matter of fact, happen to correspond to reality.Examples:

  • Analytic: All black houses are black.
  • Synthetic: My house is not black.

Analytic judgments must be true. They are neither mesorah, nor philosophy, nor science. The gemara sometimes questions a source text by asking “Lamah li qera, sevarah hi — Why do I need a verse, it is logical!” If a statement logically derives only from definitions provided by the Torah, it too is Torah. Such judgments must be chidush.

Therefore we can define mesorah as follows: The body of knowledge revealed at Sinai, and all further analytic judgments, including sevarah (logic, inductive and deductive reasoning) and derashah (exegesis), that are based entirely upon that knowledge.

Halakhah is a different thing, as it includes rules for legislation and therefore laws and decisions that are enacted rabbinically. Chiddush, the growth of the body of mesorah through identification of its implications, is only part of the evolution of halakhah. However, halakhah therefore also excludes parts of mesorah. In particular rulings that are well grounded in the Torah but run against rabbinic decision. For example, the overwhelming majority of Beis Shammai’s rulings. Shinui in halakhah is therefore straightforward: it’s a violation of any of the halakhos about how to determine halakhah. For example (caveats and subtleties glossed over): rescinding established precedent, following a rejected minority opinion, etc…

Synthetic judgments depend on research, on accumulating new facts. One can only know if “My house is not black” by finding out about my house. Here, the information is capable of being Torah, or non-Torah, depending on the kind of information it adds — is one accumulating a fact about the Torah that was until now unnoticed or forgotten, or is one making a scientific or sociological observation?

Only in the case of non-Torah synthetic judgements one can ask whether or not it qualifies as shinui, manipulation of Torah into something it isn’t. The question becomes what is the mesorah’s position on the matter? Is there one, or a spectrum of them? Are you taking one side of a debate? Can your statement be shown to be implied or supported by a mesoretic concept? Are you voicing an opinion in the face of mesoretic silence? Or, are you proposing a new solution to a question the Torah addresses in order to accomodate something you believe to be true for other reasons?

We can in principle encounter four situations:

1- The mesorah, either in explicitly relayed statement, or in another statement that one can find implied our conclusion. In other words, the statement is a chidush, an expansion of a Torah idea — either because it is an implication, or resolves what would otherwise be a problem.

2- The mesorah is total silent on the point. We have not been able to resolve any position. Then such new ideas can not be “shinui”, since there is no old position to have been changed.

3- Multiple positions coexist in an “eilu va’eilu”, a plurality of Torah approaches. In which case, the position is supportable from the Torah, as the opinion preexisted the novellum. It’s not shinui, so it would be valid to use this new idea to choose one side of the debate over the other.

4- The mesorah relays a single range of opinions, and this new idea is neither within it, nor implied by some other point similarly relayed. This case, and this case alone would be problematic in my model.


Since shinui depends on trying to accomodate information other than Torah, one of the key areas in which it comes up in an aggadic context would be in questions of science and Torah. Here we often face a dilemma. We have two sources of truth. They therefore must agree — or one of them be assumed to be incorrect.The Rambam’s position in this regard, the centrality he gives Aristotilian physics, has gotten much criticism. Not only from the anti-Maimonidians of the period of the rishonim, but even such authorities who embraced science as the Vilna Gaon and Rav Samson Raphael Hirsch take issue. So, perhaps we can look to his shitah with an awareness that the Rambam defines the more liberal edge on this in our mesorah.The more famous quote in the Rambam is where he explains why he rejects Aristotle’s argument that the universe could not have had a beginning in time and but yet asserts the incorporeality of G-d despite the literal text (e.g. “the Mighty Hand”, “for the Hand is on the throne of G-d”, etc…) seemingly asserting He does have a body:

For two reasons, however, we have not done so, and have not accepted the Eternity of the Universe. First, the … the Eternity of the Universe has not been proved, and there is no need to force interpretations on scripture to make it fit one position, as long as the other position is defendable.

Secondly, our belief in the Incorporeality of God is not contrary to any of the fundamental principles of our religion, and it is not contrary to the words of any prophet. … On the contrary, Scripture itself teaches the Incorporeality of God. …

But if we assume that the Universe has the present form as the result of necessity, there would be occasion for the above questions. And these could only be answered in an objectionable way, implying denial and nullification of all the simple statements of the Torah, which no enlightened person doubts are meant as they simply are. … If … Aristotle had a proof for his theory, the whole teaching of Scripture would be rejected, and we should be forced to other opinions. I have thus shown that all depends on this question. Note it. (Guide, II:25)

The Rambam has two requirements:
1- that the philosophy (which included “natural philosophy”, science, in his day) be compelling, and
2- that it not run counter to the words of the prophets, the fundamentals of our religion, and what no Torah enlightened person doubts; in other words, does not run counter to mesorah. Unfortunately, the Rambam discusses the point in the context of claims that would defy basic beliefs. So his description of the second criterion is not as forceful as it could be. However, the reference to the Torah-enlightened does disambiguate.

Secondly, the Rambam’s insistence that he was not innovating in contradiction to earlier sages (shinui) forms a core part of the introduction to the Moreh.

… I adjure any reader of my book, in the name of the Most High, not to add any explanation even to a single word: nor to explain to another any portion of it except such passages as have been fully treated of by previous theological authorities: he must not teach others anything that he has learnt from my work alone, and that has not been hitherto discussed by any of our authorities. The reader must, moreover, beware of raising objections to any of my statements, because it is very probable that he may understand my words to mean the exact opposite to what I intended to say. He will injure me, while I endeavoured to benefit him.” He will requite me evil for good.” Let the reader make a careful study of this work; and if his doubt be removed on even one point, let him praise his Maker and rest contented with the knowledge he has acquired. But if he derive from it no benefit whatever, he may consider the book as if it had never been written. Should he notice any opinions with which he does not agree, let him endeavour to find a suitable explanation, even if it seem far-fetched, in order that he may judge me charitably. Such a duty we owe to every one. We owe it especially to our scholars and theologians, who endeavour to teach us what is the truth according to the best of their ability. I feel assured that those of my readers who have not studied philosophy, will still derive profit from many a chapter. But the thinker whose studies have brought him into collision with religion, will, as I have already mentioned, derive much benefit from every chapter. How greatly will he rejoice! How agreeably will my words strike his ears! Those, however, whose minds are confused with false notions and perverse methods, who regard their misleading studies as sciences, and imagine themselves philosophers, though they have no knowledge that could truly be termed science, will object to many chapters, and will find in them many insuperable difficulties, because they do not understand their meaning, and because I expose therein the absurdity of their perverse notions, which constitute their riches and peculiar treasure, “stored up for their ruin”….

He insists that his words will only be understood if explained in accordance with mesorah. It would seem the Rambam did not set out to give alternate explanations to those offered by Chazal. Aside from that, he feels the need to do so would only be by someone who thinks they know science and philosophy but are “confused with false notions and perverse methods”.


Rav Kook letter 134, addressed to Moshe Zeidel (written 1908), addresses the question of evolution. Rav Kook comes out positively, showing parallels between the progressive unfolding of life that evolution entails with the Jewish worldview. In that letter he writes (tr. Meir Shinnar):

My opinion is, that all whose opinions are straight should know, that even though there is no truth demonstrated in all these new investigations, still we are under no obligation to contradict them outright and to stand against them, because it is not at all the main point of Torah (ikar shel Torah) to tell us simple facts and events that happened.

Later he writes:

And in general, this is a great principle in the battle of opinions, that any opinion that comes to contradict something from the Torah, we have to in the beginning not to contradict it, but to build the palace of Torah above it, and that way we are elevated by it, and through this elevation the opinions are exposed, and later, when we are not pressed by anything, we can with a full and confident heart to fight against it as well. There are several examples that prove the point, but it it is difficult for me to elaborate, and for a wise heart like you the short form is suuficient, inorder to know how to worhip Hashem (lidgol bshem Hashem) above all the winds that blow, and to use everything for our true good, that is also the good of all.

Rav Kook would seem to advocate accepting scientific data even when it requires building our edifice of Torah around it.

However, where does he say that we are to rebuild, rather than to build? In other words, shinui rather than chidush?

Why would Rav Kook be asking us to rebuild Torah around something in which “no truth [is] demonstrated”? Clearly the letter is not about truth, but education and communication. Rav Kook is telling us not to bother with confrontation. The essence is the essence, the lesson of the history. This letter is strategic advice, not epistomological statement. It does not pay to distract people from that to debate their deeply held positions about history.


The basic problem with shinui, adapting the Torah to another discipline is one of epistomology. Isn’t emunah sheleimah taking the Torah as fact, part of the reality that needs explaining, rather than one of the explanations?The alternative is essentially taking a pagan, “god of the gaps” approach to religion; that religion exists to explain the incomprehensible, and therefore only exists in the gaps in our understanding. As those gaps close, the room for paganism deminishes.Thor was a “god of the gaps”. Lightining wasn’t understood, and it was powerful and scarey. So, they proposed a god to explain it, and thus safety comes from keeping him happy and understanding it boils down to reading his myth and moods. Once they felt they understood lightening scientifically, they could do away with Thor.

It the same attitude as “There is nothing left to do but pray”. Aren’t we supposed to pray WHILE there are still other things left to do? Doesn’t our belief in a scientific resolution coexist with our belief in a theistic one?

The idea that the mesorah includes beliefs, even as non-essentials (such as history, or aggadic beliefs which have no halachic impact), which are simply stopgaps until science gives us a “real answer” is a “god of the gaps” approach to religion.

This epistomology becomes really unsupportable when extended to its logical conclusion. The theory that Canaan had so few residents that there was no way 3 million Jews would have had to fight to conquer the country — they would have overwhelmed it by sheer numbers. The typical biblical archeologist similarly questions the numbers cited in the Exodus altogether. Once one permits reinterpretations to accomodate scientific consensus, one removed the basis for belief even in the revelation in Sinai. After all, as most Conservative Rabbis would argue, couldn’t one preserve the “inner truth” of the Exodus and the Siniaitic Revelation without embracing the historicity of the events themselves? How can one explain accepting the methodology when it would mean innovating new understandings of the flood, and yet reject the same method’s conclusions when it comes to an essential belief?

This returns to a theme I raised a while back. Neither side of the dispute as it is playing out now is embracing all their sources of truth equally. If questions of science and religion are to be resolved, it’s only by taking the known facts of each as known facts, and only accepting theories that really accomodate both. If that can’t be done, we are forced to set the question aside until we can — not accept a poor answer. See Trends in Resolving Torah and Science.

What is Judaism?

Since Mosheh received the Torah in the Sinai, the Torah has evolved. It evolved according to the rules set out in the Torah itself, but still, halakhah has grown, courts of greater number and wisdom have overruled the precedent of inferior courts, etc… As the famous story goes (Menachos 29b):

When Mosheh ascended to the Heavens, he found Haqadosh barukh Hu (HQBH) sitting and tying crowns onto the letters [in the Torah]. He said before Him, “Ribono shel olam — Master of the universe! What could compel You (lit: who holds back Your ‘hand’) [to do this]?”
He answered him, “There will be a man in the future after many generations and Aqiva ben Yosef will be his name. In the future, he will clarify every point and mounds of law [from them].”
He said before Him, “Ribbono shel olam, show him to me.”
He told him, “Turn around.”
He turned around and went and sat at the back of eight benches [at Rabbi Aqiva’s academy]. When Moshe had no idea what they were discussing, he became distressed until the students asked, “Rebbe, from where do you learn that?”
Rebbe Akiva answered them, “It is a halakhah that goes back to Moshe from Sinai.”
At that time, [Moshe’s] mind became settled, and he returned to HQBH.
He said before Him, “Ribbono shel olam, You have one such as he and You wish to give the Torah through me?!” He answered him, “Silence! This is what occurred before Me!”
He said before Him, “Ribbono shel olam, You showed me his Torah, now show me his reward!”
He told him, “Turn around.”
He turned around and saw them weighing his flesh in the market place, and he said before Him [in horror], “Ribbono shel olam! This is Torah and this is its reward?!”
He answered him, “Silence! This is what occurred before Me!”

(Side note, the comment about deriving “mounds of laws” from the serifs and crowns on the letters probably has something to do with the difference between Rabbi Aqiva’s school of derashah (derivation from the Torah) and Rabbi Yishma’el’s. See my earlier blog entry on this subject. In short, there is a theory that Rabbi Aqiva’s school (from which we have Rabbi Meir and Rabbi Yehudah haNasi, and thus the mishnah) saw derashah as being about syntax. Rabbi Yishma’el is the one who coined the idiom “the Toreah speaks in the language of man”, and it’s unsurprising that his rules of derashah focus on semantics. Rabbi Aqiva’s school literally derived “mounds of halakhos” from the presence of specific words and letters in the Torah.)

Note that although Mosheh Rabbeinu didn’t know this law outright, Rabbi Aqiva said it comes from him. Many rishonim take this to mean that it derived from Mosheh’s teaching. (A notable exception is Rashi, who says that it was simply a law Mosheh learned later, after receiving this vision.)

With the power to evolve comes the possibility that in different communities and schools of thought it halakhah evolves in different ways. And so, “These and those are the words of the ‘Living’ G-d, but the halakhah is according to Beis Hillel.” As we lived together, to coexist the Sanhedrin found consensus, and since then we have other means of reaching uniform ruling on issues that become contentious or pragmatically impact Jewish unity. (Such as laws of conversion, marriage and divorce.)

Picture how life was for the typical person in the days of the first Beis haMiqdash. Land was divided once, by sheivet and beis avos (tribe and clan). When, Yehoshua’s generation passed away, it inherited by their children, and then again by their children, etc… Women moved off to their husband’s beis av, but for men — you lived next door to your brother, two doors down from your uncle, and most of your other neighbors were relatives. The sole exceptions being tenants of your relatives.

I think much of what drives the Torah’s laws of inheritance is Hashem’s desire for each sheivet to have a distinct derekh avodah, and each beis av to have its own subspecies. Without that, there is little rationale for choosing one gender over the other, and from Chazal until today we find ways to avoid being obligated to do so.

In fact, most questions must not have gone forward to the central beis din in Yerushalayim, the Sanhedrin. Each sheivet had their own judicial system as well, and their own high court. Israel was much bigger then than once the Greeks and Romans brought more modern means of harnessing, modern roads, etc… There was opportunity for much greater variety of opinions than those of Beis Shammai and Beis Hillel. Each sheivet had the opportunity to forge very distinct implementations of the covenant of Sinai. Each evolved according to the rules of halakhah, (in addition to the idolatrous and irreligious amongst us) and therefore all within the covenant, all of them “the words of the living G-d”, but with much less frequent need to impose “but the law is according to…”

The 12 nesi’im, the heads of the tribes, each gave the same gift for the inauguration of the Mishkan. And yet, for each day the Torah lists the items in the gift again, repeating the same text (or nearly so) twelve times. (Bamidbar 7:12-83) The Ramban explains that even though the items given were identical, a silver platter, a silver sprinking bowel, fine flower mixed with oil, a gold pan, a bull, a ram, a lamb, a goat, and shelamim offerings, the intent was distinct. And he goes through the gift of each nasi, explaining how he related it to his own tribe’s history, talents, and culture.

It’s mind-stretching to think how different their expressions of Torah would be. Perhaps they would even seem like different religions.

We are called Yehudim, Jews, because we are the descendents of the Kingdom of Judea, a population numerically dominated by members of the tribes of Judah. The first time we find the word “Yehudi” is in the megillah, describing Mordechai, “A Yehudi man was in Shushan, and his name — Mordechai the son of Ya’ir the son of Shim’i, a descendent of Kish, a Benjaminite.” Of all of the expressions of the covenant, only Judah’s survived. Just as within that tradition, we usually follow Beis Hillel over Beis Shammai. Rabbi Aqiva’s position is not the only one Mosheh Rabbeinu could see as a child of his own.

Yissachar was well known for their Torah study; despite living in the more idolatrous northern kingdom. I sometimes wonder what Isaacarism would have been like, as opposed to Judaism. Yehudah was more open to contemporary society. That’s how they merited to rule — they were known for he ability to admit wrongdoing (such as the story of Judah and Tamar, or David and Bethsheba), were spiritually committed, and were in touch with the facts on the ground. Yisachar were more isolected. Supporting their sheivet was a project of the sheivet of Zevulun, who tended to be seafaring traders and dye-makers. (Zevulun had a monopoly on techeiles for tzitzis and kohanic uniforms, as well as royal purple — both made from sea creatures.) A common model invoked for contemporary kollel is called “a Yissachar – Zevulun arrangement” for this reason. Would Isaacarism necessarily be ascetic, a religion of hermits and nezirim, with many gezeiros fencing in our physical desires from any taint of prohibition? Or is that too much speculation on too little data?

It’s interesting that the word for a halachic decision is a pesaq, a word meaning a break or an interruption. To pasqen is not to find a new position as much as to narrow down the set of permissable halachic rulings.

What is Judaism? Only one of the many possible expressions of the covenant of Sinai. Through the laws of halachic evolution and the forces of history, the only such expression that is still valid. But not the only one that could have been. Had we evolved differently as a people, the expression of the Torah that would address who we are would have been different as well.

The Simplicity of the Shofar

(Hat tip to my daughter Shifra, who made this point the centerpiece of her speech at her bas mitzvah celebration.)Halachically, a shofar must be a simple instrument. If it has a crack or anything that might shape the note, it is invalid. A cow’s horn, which is layered and therefore not a shofar but a shefarferet, is not usable for the mitzvah. It has no keys, no valves, no strings to tune.And yet from an aggadic perspective, the sound of the shofar is quite complex:

  1. We associate the shofar with crying. We blow 100 sounds because Sisera’s mother cried 100 times when learning her son (off to war against the Jews) was killed and would not return. There is a dispute whether the broken sound required by the Torah is more like yelulei yalal (uneven wailing) or genunei ganach (sobbing), so we blow both the teru’ah and the shevarim, as well as the two together as a pair.
  2. The shofar is also a royal sound. “With trumpets and the sound of a shofar, call out before the King. The mishnah describes Hashem as saying, “Call before Me with the blast of the Shofar – to show that you accept of Me as your King.” In the same way they blow trumpets to announce that the king or queen is entering the room, we blow Shofar on Rosh haShanah to announce a new year of Hashem’s rule.
  3. The shofar is used by the army, to alert the troops that it’s time to break camp and go off to war. Similarly, in the desert, they also blew shofar to tell everyone it was time to move each time the Benei Yisrael broke camp. Rav Hirsch explains the shofar of Rosh haShanah similarly. It is a warning to get ready, to stop what we were doing all last year and do something new and better this one.
  4. Then there are the historical reminicences associated with the shofar:
    • The horn of the ram that Avraham found when told not to sacrifice Yitzchaq at the aqeidah.
    • The sound of the shofar heard during the revelation at Mount Sinai.
  5. These might be additional meanings, or they might derive from the previous ones.

We are required that shofar be something that looks simple at first, and yet what it says to us is complicated. A shofar expresses many different emotions at once. If you just look at it without spending real time, you miss the whole thing!

This in itself is an important lesson of the shofar, one critical to prioritizing our lives and to teshuvah: If we rush through life, everything looks trivial. It is only when we take the time to look deeper do we see the real beauty within.

(In addtion Shifra linked this notion to learning a similar lesson while volunteering every Shabbos to help a mother with two autistic sons. Autistic people seem like they are in their own worlds, not feeling much, not relating to the rest of us. Only if you take the time to see through the shell to the child trapped inside can you get to know them and the beauty of their souls.)

Coronating G-d, part II — Pragmatics

I was recently discussing the ideas in my essay “Coronating G-d“. In it I utilized the Vilna Gaon’s distinction between a melekh (king) and a mosheil. A melekh rules with the support of his people, a mosheil rules by strength. I suggested that the reason why accepting Hashem as Melekh is such a central part of Rosh haShanah is that a Melekh has more room for mercy. By accepting Him as king ourselves, we enter the Aseres Yemei Teshuvah without the need for Hashem to impose His Will despite us.The person I was talking to asked what should have been an obvious question. “Okay, so how do we go about doing that?” And I surprised myself by realizing I didn’t know. How can I have ever said Shema, a tefillah described as qabbalas ol malkhus Shamayim (accepting the yoke of [the One in] heaven), and not know what it is I’m supposed to be doing?

So, I put some thought to the subject.

Looking at Shema, we start by joining the community of Jewish (Shema Yisrael), and then proclaiming that despite our disparate perceptions of Him, Hashem is one and unique. This is an awareness of G-d’s uniqueness and power. True of a melekh or a mosheil, although here we’re actively acknowledging it. We accept the fact of Hashem’s rule.

And then, before the list of pragmatic mitzvos for keeping this message an active part of our day, we are told to “Love Hashem with all your heart (kol levavekha), all your soul, and all your resources.” Willingly bowing to that rule. This is the step of which we’re speaking, the shift from realizing Hashem is Mosheil to accepting Him as our Melekh.

Chazal comment (and quoted by Rashi) perhaps on the word “kol”, perhaps on the use of the two-veis word for heart “levavekha” rather than “libekha”, that this is with both of our inclinations — our good inclination and our evil one.

… veyishtachavu lefanekha kol haberu’im,
veyei’asu kulam agudah achas la’asos Retzonekh beleivav shaleim,
kemo sheyadanu, H’ E-lokeinu, shehashalton/shehashilton lefanekha…

… and all those who were created will bow before you, and they will all be made into a single union to do Your Will with a whole heart. For as we know, Hashem our G-d, that the rule/scepter is before You…

– Amidah for Yamim Nora’im

Bowing before Hashem because we acknowledge His rule is obvious. However, note again that this global union of worship is “with the whole heart”, a two-veis heart. Both inclinations. This to is because we know that He rules. But how does that cause us to engage our baser inclinations?

On Shabbos we say, “Yismekhu beMalkhusekha shomerei Shabbos veqor’ei oneg… — They shall rejoice in Your Kingship, those who keep Shabbos and call it pleasure..” It’s not enough to keep Shabbos. To be happily a subject of Hashem as King, we must find it an oneg, a pleasure.

It would seem that qabbalas ol malkhus Shamayim involves accepting the idea that following His plan is what is best for you life. Not just fulfilling the mitzvos, but seeking to do so beleivav shaleim and with qeri’as oneg.

How does one do it? I must start with the first mitzvah that I don’t do and think I can. And with the first mitzvah I do begrudgingly and search the sources and the experiences it brings me to find its beauty. Then the second…

That is working toward the day when our teshuvah is rewarded, and “vehayah Hashem leMelekh al kol ha’aretz — Hashem will be Melekh over the whole world.” Bimheirah beyameinu, amein!

The Nature of Reality

It’s interesting to note that in Jewish terminology, existence is phrased in terms of the thing-as-experienced, not the thing-in-itself, as it would be objectively known if it were possible. For example, the Rambam opens the Yad by telling you that there is a First Matzui, and He is mamtzi everthing that is nimtza. The word “nimtza”, which is used to mean existence, is from the root /m-tz-a/, to find. Experience.

When something is real enough to have impact, we say is has “mamashus”. Or we say that something is mamash exciting, where in English it would be “really and literally exciting”. The word itself, though, literally means “tangibility”.

Perhaps this is because halakhah exists to change the person following it. “The person is made [nif’al] according to his actions [pe’ulaso]”, as the Chinukh often says. Thus, the reality that the halachacist must address isn’t the objective abstract existence, rather, it’s the one experienced and shapes the person.

The Unobservable, the Unobserved, and the Observed

Given the thought of my previous post we need to subdivide reality into three categories: that which no person could have observed, that which someone could have observed, but didn’t, and that which someone did actually observe.

There is a more elaborate example at this appendix to a seifer I might complete someday. The following covers a much smaller range of examples, but I believe it does so more clearly.
The Unobservable:

The most commonly cited case of an unobservable object is a microscopic mite, or another animal that would fall into a non-kosher class if it were large enough to be seen with the naked eye. These “bugs” are kosher. In fact, we recently had the issue of copepods appearing in the New York City tap water. These are crustaceans that can be seen, but are only identifiable by the naked eye as living things by watching their motion. (Their motion is in patterns like living beings, not following the random brownian motion of dust.)

My rebbe, Rav Dovid Lifshitz, invoked the idea in a second case. 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.
The unobservable simply don’t exist.

The Unobserved:

In the case of something that is observable but happened not to be seen, we aren’t dealing only with whether it is part of human experience, but also whether the person is culpable for not bothering to check, but more centrally to our question — how the person who is now in doubt responds to the item because of that doubt.

In this domain we have the rule of rov, following the majority.

Suppose there are three pieces of meat, two of which came from a kosher source, and one from a non-kosher source, but we don’t know which is which. This is a case of parish, so we can assume that any given piece came from the rov – it’s kosher. Since each piece is kosher, each can be eaten, even one after the other! (According to some opinions, even mixed together as a single dish!)

I would argue that this is because the law of rov is not about how to play the odds, but about how people respond to the meat. As observed, each peice of meat is 1/3 neveilah, and it is on that state of observation that we pasqen. Not 1/3 in terms of odds of eating non-kosher, but 1/3 in terms of how we relate to each piece of meat. And thus, no piece is experienced as probably veilah, and all three are kosher; even to be eaten one after the other. Wheras if we were playing the odds about an objective reality, the odds would have combined to knowing you ate the neveilah at some point.
The Observed:

But once something observable actually has been observed, rov does not apply. For example, kol kavu’ah kemechtzah al mechtzah dami — all items for whcih the halakhah was once established, but now doubt arose as to what that halakhah is, are to be treated like a 50:50 uncertainty.

Rabbi Akiva Eiger (Shu”t #136) generalizes this and states that there are two types of birur (doubt resolution): ways that resolve what to do when the halachah is uncertain, and the question we explored in the last section – ways of applying halachah to uncertain situations. Majority only applies in the latter case.

As per above, I would argue that’s because it’s only the case of the uncertain situation that halakhah needs to rule about a reality-as-experienced that contains things in partial states. Something that is “1/3 neveilah“. Once the question is one of halakhah, one doesn’t have this existential aspect, and either something is, or isn’t.

So, had our above three pieces of meat come from three known stores, two known to be kosher and one not, but now I do not know which is which, it’s a case of kavu’ah. The meat can not be determined by majority, and therefore is not kosher (even individually). Again, because now I’m not wondering about the experiencable reality, so my wonder can not be itself treated as part of the metzi’us, the facts of the case.

One last example: the testimony of witnesses. The Torah says, “al pi shenayim o sheloshah eidim yumas hameis — on the say-so of two or three witnesses the condemned is killed.” Chazal ask, if two people is sufficient, why need it say three? The gemara uses this as proof of the concept of “terei kemei’ah — two witnesses are like 100″. The way the Shev Shemaatsa puts it, if you have two conflicting testimonies, “it is like a doubt of equal sides”, and therefore regardless if one party has only the minimal two witnesses and another has 100, the sides are equal.

Another case of an observed reality; whichever side had honest and accurate witnesses did observe what they’re testifying to. Since majority only applies in a case of an unknown but observable reality, majority does not apply in assigning credibility to conflicting testimony.
Another area where the notion of halakhah relating to human experience rather than a theoretical objective reality could help explain a difficult ruling is that of nosein ta’am in kashrus. Usually ta’am is translated “taste”, and therefore understood in terms of microscopic amounts of the food being absorbed into the walls of a hot utensil. But ta’am also has to do with thought or reason, something that “flavors” basic facts. As in ta’am hamitzvah as a term for a reason for or a lesson to be learned from a mitvah. If we take ta’am in this sense, I believe many of the more difficult halakhos involved are resolved.

If chicken soup is cooked in a milchig pot, Ashkenazim are stringent unless the soup is more than 60 times (or perhaps 59) the volume of the walls and floor of the pot itself. (Sepharadim instead rely on a non-Jew actually tasting the food.) If ta’am meant a microscopic about that could be absorbed by the metal, the Ashkenazi requirement is unjustifiable. After all, metal does not absorb anything near 1/60 of its volume, something acknowledged by the usual use of the idea of “microscopic amounts” in explaining the word ta’am. The total amount absorbed in the metal of the pot would never be anything near enough to use the entire volume as an estimate. Bitul beshishim (anullment by one part in sixty) would always apply when comparing the amount in the metal of the pot vs the amount the pot holds in the usual way.

However, if ta’am here refers to how we think of the pot, the question is a non-issue. Ashkenazim rule that thinking of the pot as a fleishig utensil lends its status to the object, whereas Sepharadim rule that it’s a question of whether a person can experience the milk that the pot is usually used with.

Changing Name

There are two places in halakhah where the criterion for whether something is significantly changed is whether there was a shinui sheim, a change in name. The first is in the laws of Shabbos, something is nolad (“born”, i.e. unusable because it did not exist when Shabbos began) if it underwent a change that changes what we call it. For this reason, one may not melt ice to produce water on Shabbos — “ice” and “water” are different names. (This is true for the few languages I could check. It would be interesting to see if anyone discusses the permissability of melting ice by someone whose first language does not use different words for them.) However, R’ SZ Aurbach is quoted (Shemiras Shabbos Kehilchaso 10:5, fn 15) as limiting this gemara to water. Frozen orange juice is called “frozen orange juice”, and thus there is no shinui sheim.

The second case is in property law. Changing something is a form of qinyan, acquisition of the object. One kind of shinui could be a shinui reshus, moving the object from one person’s property to another. Another is changing the object itself to the extent that there is a shinui sheim. A theif who steals wood and makes a hole in the wood, is obligated to return the wood (and the difference in value). If, however, the owner gave up on reclaiming the object (thus giving up ownership) and the thief made something out of the wood (thus acquiring ownership), the thief would have to repay the value, not return the wood.

This could be understood in terms of applying halakhah to the world as experienced. See (“The Nature of Reality” for an explanation, and other possible cases in “The Unobservable, the Unobserved, and the Observed“.) Word give us labels, but by giving groups of things shared labels, they color our world by defining which set of pigeonholes we use to group things as being essentially the same, and assign new things.

For example, in English speaking countries it’s common to ponder if Judaism is a race or a religion. On the one hand, it is racial in that once someone is born a Jew, they are always a Jew, regardless of belief. On the other hand, someone can join the fold through geirus. But the question isn’t one of Judaism, it’s one of English. These are the kinds of peoplehood we assume exist because these are the words the language gives us. The language was primarily shaped by Christians, though. Therefore there is no guarantee that there exists exactly the right pigeonhole to place Jewish peoplehood.

Returning to the subject of shinui sheim, this is a change defined in human perception terms. We’re saying the minimum unit of change is from one conceptual category to another. The physical magnitude of the change is irrelevant — look back to our contrast between melting ice and melting frozen orange juice. It is measured in terms of change in human conception.

Chayei Sarah – Kibbush and Chizuq

1. Buying Ma’aras haMachpeilah

It is interesting to note that Judaism’s holiest sites were not conquered but bought. Parashas Chayei Sarah opens with Avraham purchasing the Ma’aras haMakhpeilah and the fields around it. Later, Yaakov buys the city of Shechem from Canaanite princes, the sons of Chamor (Bereishis 33:19). Similarly, Shemuel II concludes with David haMelekh purchasing the Temple Mount in Jerusalem from Aravnah the Jebusite.

R. Yoseph Ber Soloveitchikzt”l, explained the meaning of qinyan, acquisition, in a speech given to the student body of the Rabbi Isaac Elchanan Theological Seminary in the Spring of 1985. He noted that the root of the word qinyan is /קנה/, to manufacture. (It is also used in lesaqein, to repair.) This is because of the origin of the concept of commerce. Originally people owned what they made, the animals they raised, the plants they planted. The need for people to acquire things they were not personally able to make, lead to trading, barter, and eventually money. Purchasing uses the same root, because purchasing is a surrogate for manufacturing things yourself. I manufacture this, or provide this service, convert it into money, and exchange that effort for someone else’s manufacture or effort in providing that.

Once something is bought you have therefore also acquired its entire history. The person who sold it to you has effectively declared that “all I have done to increase its value was as a surrogate for you doing it yourself.”

2. Kibbush vs Chazaqah

R. Aharon Soloveitchikzt”l (Logic of the Mind, Logic of the Heart) writes of two kinds of acquisition. The first is “chazaqah”, holding. It comes from Hashem’s commandment to Adam “to guard the garden and keep it”. (Bereishis 2:13) This is the gift of reaching unto things through cultivation, work and dedication.

The other kind of acquisition R. Aharon calls “kibbush”, grasping. This kind of activity comes from Hashem’s other imperative to Adam, “be fruitful and multiply, fill the earth vekhivshuhah — and subdue it”. (Bereishis 1:28)

In approaching the Benei Cheis, Avraham describes himself as “geir vetoshav anokhi imakhem — I am a stranger and a resident amongst you”. Avraham lived in two worlds, in the spiritual as well as the physical. He was amongst the Benei Cheis, but also apart from them. This gave Avraham two tools: chazaqah and kibbush.

The Western World is based on “might makes right”, “kochi veotzem yadi asa li es hachayil hazeh – my might, and the strength of my hand won me this battle”. The spirit of the West is “the hand of Eisav— the spirit of kibbush. Avraham didn’t feel the need to enforce his will with power, it was okay for him to be a geir.

Without kibbush society would not progress. We would have no new science or engineering, no new territory, evil would not be vanquished. But kibbush must have limits. While Hashem did command “vekhivshuhah”, He certainly wanted man to rise above the level of warring tribesmen.

The other is the gift of cultivation, of work and dedication and of reaching unto things and people through love, consideration, and guidance (“chazaqah”). We can attain great heights through kibbush, but we can’t just constantly be looking to go further and to extend, we have to also develop what we have.

R. Aharon finds in this distinction the source of the gender differences in halakhah. Males have a tendency toward uncontrolled kibbush, while women are more focused on chazaqah. This places women on a higher spiritual plane than men. When a woman says “she’asani kirtzono — for He has made me according to His Will”, it is implied that men are further from that Will than she is. Women’s innate qualities as the last created creature (Rabbi Soloveichik words this as “the crown of Creation”), are already aimed at the fulfillment of G-d’s ultimate desire for mankind. The reason for the extra mitzvos and extra ritual placed on males is to reign in that uncontrolled kibbush.

What is that “ultimate desire for mankind”?

3. The two Batei Miqdash

R. Chaim Soloveitchik holds that there is a distinct difference between the sanctity of Eretz Yisroel that came with the first commonwealth and that of the second.

The first Temple did not create a permanent qedushah (holiness). The reason given is “that which was acquired through conquering is lost through conquering. The First Commonwealth built on land acquired in the wars of the days of Yehoshua and the Shoftim (Judges), was itself conquered.

The Second Commonwealth was “merely” an immigration of a group of Jews who decided to live in the land as Jews. It is predicated on the mitzvos done there, the education of children raised there. That kind of sanctity can not be undone. “Qidshah lisha’atah viqidshah le’asid lavo – it was sanctified for its time and sanctified for all time to come”. Even today, Har Habayis (the Temple Mount) has the sanctity of the Temple.

R. Aharon understands his grandfather’s words in the light of this distinction. The first commonwealth was founded on kibbush. It therefore had an inherently inferior qedushah. The second commonwealth was built by chazaqah. When Hashem tells Zecharia, “Not by force and not by might but by My spirit”, He is saying that the second Temple should be build on chazaqah, not kibbush, to lead to a permanent sanctification. “Neqeivah tesoveiv gever.”

Rav Aharon Soloveitchik notes Chanukah’s connection to Sukkos. According to Seifer haMakabiim, on the first Chanukah people who had just missed being oleh regel, going up to the beis hamiqdash, with their esrog and lulav, did so then at their first opportunity. Beis Shammai taught that one should light 8 lights the first night of Chanukah, 7 the second, learning from the 70 bulls offered for the mussaf on Sukkos, which also declined in number each day: 14 the first day, 13 the second, etc… Rav Yosi bar Avin or R’ Yosi bar Zevida explains that Beis Shammai are emphasizing the link between Chanukah and Sukkos. (We follow Beis Hillel, and teach that the ideal is to increase as the holiday progresses. They do not deny the connection; but rather Beis Hillel asserts an overriding halachic principle — that we increase in holiness over time.)

The concept of being a geir vetoshav is at the center of the similarity between the two holidays. Sukkos is a time when the toshav leaves his home to experience geirus in the Sukkah. Chanukah is also about the ger’s Chazaqah, the rededication of the second Beis haMiqdash. Not about winning the war – the war wouldn’t be over for years – but about being able to live in Israel as Jews, with access to the beis hamiqdash.

4. Qinyan as Chazakah

We go from looking at Rav Aharon’s elaboration of his grandfather’s concept to using his brother’s, R. Yoseph Ber’s insight to extend R. Aharon’s concept of chazaqah to things acquired by commerce as well. To buy something is to exchange a token of the chazaqah you have put into something else, and trade it for chazaqah on this object.

By combining these ideas, we understand why Chevron, Har haBayis and Shechem were bought. Buying is a means of chazaqah. It is inherently holier than if our claim were based on military victory.

The same idea can be used to understand why the gemara in Qiddushin (2a) asserts that the form of marriage is identical to that of a qinyan. This idea is proven from a gezeirah shavah (a comparison of terms) between the phrase “ki yiqach ish ishah — when a man takes a woman” (Devarim 22:13), and Avraham’s offer to Efron “nasati keseph hasadeh, kach mimeni — I have placed money for the field, take it from me” (23:13). In both cases the expression of “qichah — taking” is used.

(The halakhah is not teaching that women are ch”v bought and sold like chattel. You don’t need a gentile slave’s consent in order to buy him. Purchasing’s two parties are owner and buyer, not buyer and item bought. The fact that the wedding can not occur against her will shows that it isn’t a purchase. Second, the laws of ona’ah – overcharging and underpaying – would apply, and the value of the ring would need to be within 1/6th of the bride’s value.)

In the case of Chevron, Avraham was acquiring the entire field — from the beginning of time until the end. By making marriage assume the qinyan format we are acknowledging that the bride and groom were literally made for each other, and hopefully will remain together until the end of time. By using the form of chazaqah, the marriage, qiddushin, is on a higher plane. Like the ma’aras hamachpeilah, like the second Beis haMiqdash, the qiddushin thereby has the possibility of being an eternal holiness.

5. Gevurah and its Resolution

In Avos 4:1, Ben Zomah says “Who is a gibor, a warrior, one who is koveish his yeitzer, his inclination [toward evil]”. This is a proper use of kibbush, to vanquish evil, to change it into a tool for serving Hashem. It is interesting to note that the one who uses kibbush is called a “gibor”, from the same root as a word for man in the sense of specifically male as used in our pasuq in Zechariah – “gever”.

We find the term gibor in a prophecy about the messianic age. “How much longer will you stray, back-slidden daughter, and remain hidden and withdrawn? For Hashem has created something new on the earth, neqeivah tisoveiv gever — woman shall encircle man.” (Yirmiah 31:20-22)

We can attain great heights through kibbush, but we can’t succeed in establishing a Paradise on earth unless we couple it with chazaqah. At the end of history, the Jewish people, the fallen daughter, the ger vetoshav, will return to Hashem. The principle missing in this galus, the balance of kibbush and chazaqah, will be restored. As man realizes that he is a spiritual being, thereby being freed from needing to be overly focused on the gibor’s battle against the yeizer. The neqeivah, the feminine side, chazaqah, will be restored to its rightful role.

In the time of the Messiah, there will be no pursuit of kibbush, rather everyone will pursue the gift of chazaqah. So women’s Divine endowment and her mandate to be true to that endowment is consonant with humanity’s spiritual and moral goals in the Messianic Era.