Category Archives: Halachah

Shelach 5754

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(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

Purim 5756

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Purim as Part of the Jewish Year

The three upcoming holidays — Purim, Pesach and Shavuos — have each been compared to holidays in Tishrei.

The Gemara notes that Yom Kippur, or, as the Torah calls it, Yom haKippurim, could be read as “The day which is like Purim”. It is kind of hard to see how the day where one is required to “suppress your nefesh” can be compared to the day where “one is obligated to drink until one can not distinguish between cursing Haman and blessing Mordechai”. Yet, the Gemara invites such a comparison .

Similarly, many of the laws of matzah and sukkah are derived by comparing Sukkos and Pesach. The grounds for this is the hermeneutical rule of “gezeira shava“, which is usually a comparison of two things described in the Torah by similar terminology. In this case it is the fact that both are on the 15th of their respective months that invites the comparison.

Last, the gemara consistently refers to Shavuos as Atzeres, whereas Shmini Atzeres is qualified as Atzeres HaChag, the Atzeres of Succos.

We can therefor look at the fall yamim tovim, and how they are structured, and learn something about their spring parallels.

Yom Kippur and Shmini Atzeres share a theme. On Yom Kippur we are judged to determine our fate for the next year. On Shmini Atzeres, the rain, and by extension our finances, are decided. (See Taanis 2b, where the “key to rain” is given as the source of all fiscal blessing.) One could think of Shmini Atzeres as a reprisal of the theme introduced by Yom Kippur. Sandwiched between them is Succos, presenting the mirror image of the same idea. Instead of focusing on earning sustenance, on Succos we celebrate those things Hashem already gave us.

By parallel, we see how Pesach and Shavuos present opposite side of the same idea. On Shavuos we focus on assuming the responsibility of getting and keeping the Torah. On Pesach, we celebrate the special providence Hashem gives us as Jews. This would mean that to find the theme to Purim, we should look at how it would fit into the same pattern, how it shares the theme of Shavuos.

“And they [Bnei Yisrael] stood under the mountain [Sinai]” (Shemos 19) — R. Avdimi bar Chama bar Chisa said, “This teaches that Hakadosh Baruch Hu flipped the mountain [Sinai] over them [Bnei Yisrael], like a barrel, and said, ‘If you accept the Torah, good, and if not, there will be your graves.’” R. Acha bar Yaakov said, “This provides a major complaint against the Torah.” Rava said, “Even so, the [whole] generation accepted it in the days of Achashveiros. For it says (Esther 9), “the Jews fulfilled and accepted”, they fulfilled that which they had already accepted.
– Shabbos 88b

What the Jews accepted by force in the desert, was finally accepted willingly. Just as Yom Kippur is the complete judgment, and Shmini Atzeres is only a part, Purim represents the completion of what was started at Shavuos.

Purim and Esther

“Where is Esther in the Torah? (Devarim 31) ‘I will hide in hiding (hasteir astir) My Face’.” (Chullin 139b).

This question is particularly valid since when Esther is introduced in the megillah (2:7) we are told her real name is Haddasah (cf Tr. Megillah 13a). Even further, Esther is the name of a pagan goddess. In all likelihood, like many American Jews today, Esther had two names, a religious name of Haddasah, and a legal name of Esther. This is consistent with the fact that we brought back with us from the same exile month names that are clearly pagan in origin. So why is does the megillah choose the name Esther?

A major theme of Purim is the fact that Hashem’s role is hidden, there are no overt miracles, just a steady string of what looks like fortuitous coincidences. Hashem is never named in the megillah. The Yom Tov is named after the lots Haman threw to choose a day, and ended up choosing a date as far ahead in the year as possible.

The book and the queen are called Esther because it brings to mind a pun, and recalls the promise that Hashem will never abandon us as a punishment, but merely hide.

But what about Purim and its relationship to Shavuos? Didn’t we say that the primary theme should be the acceptance of Torah that started at Shavuos?

Torah in a Mundane World

Purim happened at a critical time in Jewish history. The last people who remembered the miracles of the first Beis haMiqdash were already old and dying. Until Moshiach, we won’t see fire descend from the sky to consume the karbanos, the scarlet wool turn white on Yom Kippur, the Urim veTumim, light up prophetically. The last of the prophets (until the return of Eliyahu) were aged. Tzoraas no longer punished those who spoke lashon hara. But until then, all these miracles occured. And as in seifer Shofetim, the cycle of military threat followed by teshuvah followed by a shofeit and military success followed by contentment followed by sin which in turn motivates Hashem to provide the next military threat. This knowledge that acting badly will definitely get punished is — or at least should have been — compelling.

The Meshech Chokhmah (introduction to Shemos) explains that what the gemara means is that while the threat of punishment for sinning was tangible it was as if the mountain was held over their heads. And even so, the moment they came out from under the mountain, when they are bid to “return to your tents” (Devarim 5:27), they returned to the hum-drum world and that feeling that observance is self-evidence subsided. (In the Meshekh Chokhmah’s thought, free-willed observance is the ultimate purpose of existence. He therefore explains this gemara with a strong interest in explaining that free-will was not compromised.)

Then came Purim, with the appearance of happenstance, of Hester Panim, the Hidden Face. The Jewish people were taught a new way to relate to G-d. And the reaction — “the Jews fulfilled and accepted”. A new level of Torah observance was reached, one of trust and faith instead of miracle and prophecy.

Pesach 5761: The Four Sons Confront Tragedy

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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

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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

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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.]

Eilu va’Eilu part II

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[The story so far: In part I I gave a survey of opinions from rishonim discussed in essays by RM Halbertal and Rav Michael Rosensweig.]My personal inclination is close to the philosophy of the Maharal’s. If I can use a variant on Plato’s metaphor, we are like people looking at shadows of an object. Since reality can not capture all “three dimensions” of “divrei E-lokim Chaim”, we see what looks like conflicting “two dimensional” shadows. Shapes that accurately represent the whole, but only from the direction from which we are shining the light. The process of pesaq is that of deciding how we should grow and develop given where we stand; what are angle ought to be in relation to that 3 dimentional object and therefore what shadow it casts.One can’t adopt two conflicting positions, neither leniencies (as would the Conservative movement do) nor stringencies (as per the insufficiently fictional “Chumrah of the Month Club”). That would be combining two different angles, to produce a “shadow” the object could never really cast. One is no longer representing the “object”, the Word of G-d.

True pluralism (within a range of valid positions) seems to be a compelling conclusion from the Gemara (Hagigah 3b) is concerned about the person who will note when “those [Rabbis] prohibit, yet those [authorities] permit [the very same thing]… how can I possibly learn Torah today?” The answer is found in the words of Koheles 12, “Nasnu meiRo’eh echad – both views were given by the same shepherd.”

Rav Tzadoq haKohein (Resisei Laylah sec. 17), defines a different kind of logic when it comes to thought than when it comes to action, and uses this to understand the nature of pluralism.

Whenever a new thing found about the Torah by any wise person, simultaneously arises its opposite…. When it comes to the realm of action (po’al) it can not be that two things true simultaneously. In the realm of the mind (machshavah), on the other hand, it is impossible for a man to think about one thing without considering the opposite.

This model differs from the Maharal’s. The Maharal assumes that truths can’t contradict. Rav Tzadoq denies the applicability of the rule of contradiction. The two ideas can coexist: Man’s thoughts are designed to be able to handle conflicting truths because it is the best way to approximate a full understanding of the Divine Truth. Like the famous parable of the blind men and the elephant: the elephant is not a fan, a wall, a rope or a tree trunk, and the complete picture is closer to the contradiction as a whole than any one position.

This is actually the literal meaning of the word “teiqu”. When the gemara’s debate can not reach a conclusion, it says teiku. Most students are taught the medrashic meaning, that it’s an acronym for “tishbi yetzareitz qushyos ve’ibayos — Eliyahu the Tishbi will answer all questions”. But the word itself means “let it stand”. Not that there is a question left unanswered, but that both positions stand — despite the contradiction.

For the mathematically inclined, then there’s Goedel’s Theorem. Everyone else may choose to stop at this point.In short and without lots of formula and Greek letters, Kurt Goedel presented a set of theorems that boil down to showing that any sufficiently robust finite formal system that is consistent (i.e. does not claim both something and its opposite — A and not A) must be incomplete. This includes all systems that have formal rules from getting from a finite set of givens to an infinite set of conclusions, and are robust enough to be used to describe mathematics. All such systems must either be able to produce contradictory conclusions, or be unable to produce conclusions that are known to be true.According to the Malbim (intro. to Vayiqra), all of the Oral Torah could be reconstructed from the Written Torah and 613 rules of logic and derashah. Even if we add the halakhos leMosheh miSinai, to fit the understanding of most that these have no source in the written Torah (the Malbim’s statement would imply they do), this is a finite number of postulates and a finite set of rules for elaborating on them. What about Goedel’s Theorem.

Given eilu va’eilu The question could be resolved on a number of levels:

As Rav Tzadoq haKohein writes, Divrei E-lokim Chaim are not consistant. Either inherently so, or — as the Maharal takes it — our comprehension is limited to inconsistent approximations. Divrei E-lokim Chaim can therefore be complete.

Halakhah as ruled would have to be constitutive, Rabbanim given the power to define which position is correct. If we took a “retrieval” (Rabbanim try to reconstruct the forgotten) or “accumulative” (deductions from the known) model without a constitutive component, then when we rule out contradictions we would necessarily create areas in which no ruling could be produced.

Purpose of Qorbanos

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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!”

Purim, Yehudim and Simchah

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The exile to Bavel after the first Beis Hamiqdash was attributed to many things; one of the less intuitive (and therefore more discussed) reasons given was that they didn’t make a berakhah before learning Torah. What was so terrible? This period had problems with idolatry, with oppression of the poor and weak, and the destruvtion is being blamed on people who were even learning Torah?!In one way this makes sense. If even the righteous weren’t up to standard, who would the rest of the generation look up to? Who would motivate their change? But only up to a point; it still doesn’t seem like a destruction-worthy flaw, even in the leadership.

The megillah is the first book to refer to us as Yehudim, Yidden, Jews. Even Mordechai, an “ish yemini“, from the tribe of Binyamin, is called a Yehudi. This new usage of the word was because the Jewish people now included only survivors of the Kingdom of Yehudah (Judea).

The name “Yehudah” is significant. It comes from Leah’s words upon naming her son, “This time I will thank — odeh — Hashem.” It is no coincidence that shaped history to give us this name. We are a people of thanking. The first words out of our lips every morning are “Modeh ani lefanekha” thanking Hashem for allowing us to wake up. Rav Saadia Gaon (Emunos veDei’os 3:1) and the Chovos haLvavos (sec 2, intro.) hold that the driving force behind mitzvos is the recognition of the good Hashem bestows upon us.

“When Adar enters, we increase our simchah.” What is “simchah“? Rav Dovid Lifshitz would have us hang a banner in the beis medrash that followed that quote with two more. “Ein simchah elah Torah — there is no [true] simchah except that of Torah.” “Vekhol hamarbeh harei zeh meshubach — and whoever does more, he is praiseworthy.”There are three stories (Sanhedrin 101a) in which Rabbi Aqiva seems to laugh at an inappropriate time. First, when he, Rabban Gamliel, Rabbi Elazar ben Azarya and Rabbi Yehoshua were walking on the road, and they heard the revelry and idolatry of the Roman army loud enough to be heard from a distance from 120 mil. They mourned — Jerusalem is in tatters, and the Romans thrive? And Rabbi Aqiva laughed — if this is the good Hashem gives the idolater, how much more awaits the righteous! Second, when they saw a fox leaving the place of the Holy of Holies, the other rabbis cried — isn’t this the place about which the Torah says “and the stranger who enters shall die” and foxes play there? And Rabbi Aqiva laughed — this is the fulfillment of the prophecy, which means that the prophecies of redemption shall too come to pass. When Rabbi Eliezer became ill, they went to visit him. The other rabbis were pained — we see a veritable Torah scroll in agony, can we not share it? And Rabbi Aqiva laughed — now I see that my rebbe is receiving his punishment in this world, and his reward still awaits him in the World-to-Come.

R’ Saadia Gaon observed that laughter is the reaction people have to a sudden realization of an underlying truth. And so, when R’ Akiva suddenly saw the deeper truth, he laughed. R’ Saadia adds that “simchah” is the kind of happiness associated with laughter.

“When Adar enters, we increase our simchah.” Purim is the story of G-d working behind the scenes, through natural forces, to redeem the Jews. That’s the time when one feels simchah, insight into the deeper truth.

And that’s the time one feels hoda’ah, thankfulness. It’s only through that inner truth that one sees the greatness in G-d allowing us to wake up, rather than taking it for granted. If you don’t even think about the marvel of having air to breate, you can’t thank G-d for giving us air! That’s why it’s at Purim that we’re first called “Yehudim“.Toward the end of the exile to Bavel we have the story of Purim. At this point, Megillas Esther tells us “laYhudim haysa orah visimchah visason viykar — for the Jews there was light, happiness, joy and preciousness.” Rabbi Yehudah (Megillah 13b) explains that orah (light) refers to Torah, simchah (happiness) is Yom Tov, sason (joy) is beris milah, and yeqar (preciousness) is tefillin.

(Without the other four terms to provide contrast and specificity to the words “Torah” and “simchah”, they take on broader meaaning. Torah would include holidays, milah and tefillin — were we not given the Torah we wouldn’t have had any of them. And simchah would mean positive attitude in general, including light, joy and preciousness. “There is no simchah but Torah” is speaking in that broader sense.)

So why didn’t the megillah simply say “for the Jews there was Torah, holidays, milah and tefillin. Why the code words?

In the first beis hamiqdash we had Torah, but it was not or to us. This is why the berakhah was not made. We observed the laws of Yom Tov, but found no simcha in it. We kept milah and wore tefillin, but with no joy or sense of preciousness. This basic misdirection, that halakhah was fulfilled as a duty, not a love, was what made the leadership unable to direct the masses.

With Purim, with the simcha of seeing the deeper truth, Torah took on a deeper life. We experienced the message of the berakhah, “Who chose us from among the nations and gave us His Torah” thereby correcting the flaw that lead to the exile, and started the process of redemption.

“LaYhudim haysa orah visimchah visason viykar, kein tihyeh lanu” — so may it be for us!

Life and Consciousness

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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

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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.