Rights, Duties and Covenants

אמר רבא: כל המעביר על מדותיו מעבירין לו על כל פשעיו

Rava said: Whomever is “maavir al midosav“, they [the heavenly court] passes [ma'avirin] over all his sins for him.

– Shabbos 17b

What is this “maavir al midosav“? As we saw earlier:

The first definition will look at is provided by Rashi (ad loc). It’s one who does not mete out judgment to those who mistreat him.

The gemara (Yuma 23a) says it’s someone who forgives others when he is slighted. … How do we explain Rashi’s willingness to give a different translation to that of the gemara? Perhaps they are not so much defining ma’avir al midosav as giving examples of the behavior of someone who mastered this middah rather than the middah itself. In other words, if we view ma’avir al midosav as an attitude, we cannot see it directly in others, and therefore we look at how the person acts. The actual definition, therefore, would be a character trait that would motivate not demanding exact justice and standing on one’s rights and also motivate forgiving slights to one’s honor.

Two obvious questions arise:

We can understand the form of the reward. Someone who forgives others is forgiven himself — it is middah keneged middah, the reward is of the same type as the act. But what is the great value of this middah that the magnitude of the reward is so great. For it to allow the overlooking of all sin would be to imply that the maavir al midosav is someone who mastered a truly central piece of the Torah’s message.

Second, what is this gemara asking of us; are we supposed to be doormats?

To understand this middah, lets look at contrasts from either side:

Western Civiliation, since the American revolution, as tended toward legal system based on defining rights. John Lock wrote of the natural writes of “life, liberty and property”. To Thomas Jefferson, these are endowed by G-d and inalienable, and (perhaps to avoid issues of slavery and what would later be called communism), “property” was replaced by “the pusuit of happiness”. But clearly, the US, and subsequently many other governments, are built on a Lockian conception of the role of law.At first glance, one would think that there is little real difference between a legal system based on defining the rights of each party, and one in which the philosophy is based on one’s duties. After all, is there a difference between granting people a right to property and giving people the duty to avoid theft and damages?

I feel, however, that there are very real differences.

First, a psychological difference. Rights are about protecting “my own” from being encroached upon by others. Rather than looking at what I’m supposed to do, the system is set up to encourage me to make sure I got mine. From which the current culture of entitlement, and the insane abuse of tort law, are a minor step — “Do I still got mine?” to “How can I get mine?” The culture is set up to encourage such a progression.

Second, a rights-based law is about maximizing autonomy. Does each person have sufficient conceptual space, to act with full liberty and freedom? There is no establishment of society’s moral stance. One watches for intereference from others, but one is making an ideal out of maximizing autonomy rather than harnessing that autonomy to some end.

This is a consequence of moral relativism. Because there is no real belief in an absolute moral standard, of a territory people’s personal standards are to map, there can be no meaningful attempt to implement one in the law. Therefore, one encourages freedom to act as an end itself, rather than as a means to greatness.

Therefore is therefore no room in a rights-based law for protecting able minded adults from themselves. So, for example, regardless of one’s position on the immorality of homosexuality, the foundational philosophy of American law does not support such a ban. (I’m not saying that’s a good thing, just observing the facts.) With the goal being the maximization of autonomy, how can one ban what two adults do behind closed doors with no direct impact on others?

However, the lack of establishment of a common moral code is itself damaging to society. No one private violation of moral code, whatever the society holds it to be, will necessarily harm others. But living in a society that doesn’t promote morality, that doesn’t work toward aiming that autonomy toward some higher end, is harmful.

So the Torah does not laud the notion of standing for one’s rights.

However, does this mean this philosophy is wrong for the US? Well, how does halakhah define what’s right for a secular government?

רבי חנניה סגן הכוהנים אומר, הוי מתפלל בשלומה של מלכות–שאלמלא מוראה, איש את ריעהו חיים בלעו.

Rabbi Chanania, the assistant-head of the kohanim would say: You should pray for the peace of the kingdom, for without the fear of it, a person would eat his neighbor alive.

– Avos 3:2

A civil law exists to provide peace. And that the American Constitution does quite well, among the most effective systems in history.

Looking at the other side, why did the US choose a rights-bases system? England was based on duties. These were obligations and prohibitions assigned by royalty and priviledged classes. The other extreme from a rights-based law is one in which our obligations are imposed on us. If rights-based law is overly prone to a culture of entitlement and license, than a duty-based law is equally dangerous because it is prone to totalitarianism, and oppression by a dictatorship or oligarchy.

How then is halakhah structured? The Torah describes itself as a beris. (Technically, multiple berisim are found in it.) A covenant.

How does a contract differ from a covenant? A successful contract is one where the outcome is a win-win. Each party takes away what they need from the deal, in exchange for giving up something that didn’t matter as much to them.

A covenant, however, creates a new community. A marriage is not a contract, an exchange of favors. It creates a new unit, the married couple, and each enters the marriage covenant with the commitment to contribute to the wellfare of that community of two.

Halakhah is neither a system of rights nor of duties to another, it’s a covenantal system by which G-d and the Jewish people (or in the case of Noachide Law, G-d and humanity) form a community together and work to the betterment of that entity.

Let’s look how each of these three would define chessed, kindness:

  • Rights-based: There is no equivalent. By definition, a rights based law guarantees that each person gets what is due them. There is no way to phrase a concept of giving people without it being due.
  • Duty-based: I am obligated to give to the other.
  • Covenantal: I hold a resource of the covenantal community. It is not only mine, but something I was given stewardship of in my role as part of the whole.

This last definition is that of R’ Shimon Shkop, to (yet again) return to his introduction to Shaarei Yosher:

Although at first glance it seems that feelings of love for oneself and feelings of lovefor others are like competing co-wives one to the other, we have the duty to try to delve into it, to find the means to unite them, since Hashem expects both from us. This means [a person must] explain and accept the truth of the quality of his “I”, for with it the statures of [different] people are differentiated, each according to their level.The entire “I” of a coarse and lowly person is restricted only to his substance and body. Above him is someone who feels that his “I” is a synthesis of body and soul. And above him is someone who can include in his “I” all of his household and family. Someone who walks according to the way of the Torah, his “I” includes the whole Jewish people, since in truth every Jewish person is only like a limb of the body of the nation of Israel. And there are more levels in this of a person who is whole, who can connect his soul to feel that all of the world and worlds are his “I”, and he himself is only one small limb in all of creation. Then, his self-love helps him love all of the Jewish people and [even] all of creation.

In my opinion, this idea is hinted at in Hillel’s words, as he used to say, “If I am not for me, who will be for me? And when I am for myself, what am I?” It is fitting for each person to strive to be concerned for himself. But with this, he must also strive to understand that “I for myself, what am I?” If he constricts his “I” to a narrow domain, limited to what the eye can see [is him], then his “I” — what is it? Vanity and ignorable. But if his feelings are broader and include [all of] creation, that he is a great person and also like a small limb in this great body, then he is lofty and of great worth. In a great engine even the smallest screw is important if it even serves the smallest role in the engine. For the whole is made of parts, and no more than the sum of its parts.

Therefore it is appropriate to think about all the gifts of heaven “from the dew of the heavens and the fat of the land” that they are given to the Jewish people as a whole. Their allotment to individuals is only in their role as caretakers until they divide it to those who need it, to each according to what is worthy for him, and to take for himself what is worthy for himself….

What then is the profound value of the maavir al midosav? It is the central middah necessary to enter a beris. It truly is the underpinning of the entire Torah, being both necessary for properly accepting the Torah, and for the relationship with your soul, with Hashem and with other people that the Torah calls from you.

Shavuos Reading

I just wanted to share some of what I came across this Shavuos…


1- From YU’s “Shavuos-to-Go”, R’ Mordechai Torczyner writes about the connection between Shavuos and chessed. Often cited is the idea that Rus, a book about chessed, is read on Shavuos to highlight this connection. R’ Torczyner opens with a different point of connection:

[A] midrash describing the scene atop Har Sinai places the credit not with Moshe, but with Avraham:

At that moment the ministering angels sought to harm Moshe. God shaped Moshe’s face to appear like that of Avraham, and God said to the angels, “Are you not embarrassed before him? Is this not the one to whom you descended and in whose home you ate?” God then turned to Moshe and said, “The Torah was given to you only in the merit of Avraham.

But what I found particularly intriguing is that he builds the connection from the following observation:

Adam and Chavah were charged with working in their garden and protecting it, and they would have been the sole beneficiaries of their work; every plant they grew, nearly every fruit they cultivated, was theirs to eat. (Bereishis 2) Only in one case were they told to labor benevolently without expectation of reward: The fruit of the Tree of Knowledge of Good and Evil would receive their care, but provide no benefit. All work for that tree would be purely chesed shel emet, kindness without any anticipation of reciprocity. This was their own opportunity to engage in עולם חסד יבנה, bringing into reality a world founded on kindness. Instead, though, the first human beings took that fruit for themselves.

The sin of the tree of knowledge was a flaw in chessed, in acting for the other with no intent to get benefit from it. I would suggest that this notion of chessed was in fact the very da’as the tree was supposed to impart.

And it’s not until we get to Avraham, who not only performs chessed but commits to transmitting it down the generations that Hashem finds a nation worth of the Torah. This is the reason why humanity required 26 generations between the giving of derekh eretz and the Torah.


2- Rabbi Lord Jonathan Sacks, in the Naso 5770 issue of his weekly Parashah Sheet “Covenant and Conversation” carries two essays.

I will comment on the longer essay in a forthcoming blog entry. (Shorter version used to appear here.)

In a short thought on the last page (taken from “To Heal a Fractured World” pp 252-253), Rabbi Sacks discusses the nature of heroism. I found this interesting because the question of whether heroism is a Jewish value is still open for me. What does “chazaq ve’ematz” really mean? R’ Jonathan Sacks quotes Lionel Trilling’s Sincerity and Authenticity:

I once had occasion to observe in connection with Wordsworth that in the Rabbinical literature there is no touch of the heroic idea. The Rabbis, in speaking of virtue, never mention the virtue of courage, which Aristotle regarded as basic to the heroic character. The indifference of the rabbis to the idea of courage is the more remarkable in that they knew that many of their number would die for their faith.


3- Another favorite topic often visited in these pages is the subject of Jewish Values — the notion that there are demands the Torah makes of us beyond those of halakhah. Whether we view these as obligations of being (“be Holy, for I Am holy”) rather than halakhah‘s obligations of doing; or as obligations that are simply too subjective to be codified, each person capable of a different level of reaching beyond the letter of the law in different areas; or as the Ramban describes the obligation “and you shall do the honest and the good” — that there are just too many human interactions for a specific halakhah to cover each and every possible decision.

Rav Yehudah Amital wrote on this subject, and it was included in Yeshivat Har Etzion’s “Virtual Beis Medrash” mailing for Shavuos. A teaser:

The Gemara in Makkot (23b-24a) states:

Rabbi Simla’i expounded: Six hundred and thirteen mitzvot were told to Moshe…

David came and condensed them to eleven…

Yeshayahu came and condensed them to six…

Mikha came and condensed them to three…=

Even though Rabbi Simla’i opened with a reference to the 613 mitzvot, some of the things mentioned in connection with David, Yeshayahu, and Mikha – such as “walking humbly with God” and “shutting one’s eyes from seeing evil” – are not included among the six hundred and thirteen commandments! The verses cited here deal not only with mitzvot, but also with values – values that are an integral part of the Torah. Mikha reduced the 613 mitzvot to three values, and these values have binding force just like mitzvot.

Rabbi Chayyim Vital develops a parallel idea regarding character traits (Sha’ar Kedusha I:2):

The good and bad traits depend on this soul; they are the seat, foundation, and root of the rational soul, upon which depend the 613 mitzvot… It is for this reason that the character traits are not included among the 613 mitzvot. They serve, however, as the primary preparation for the 613 mitzvot… because the rational soul is not strong enough to fulfill the 613 mitzvot through the 613 organs of the body, but only through the fundamental soul that is connected to the body itself… Hence, one must be more careful about bad traits than about fulfilling the positive or negative precepts. For when a person has good traits, he will easily fulfill all the mitzvot.

The Torah does not relate to positive character traits as commandments, but nevertheless Rabbi Chayyim Vital sees them as being even more basic and fundamental than observance of the mitzvot.


4- Returning to YU’s Shavous to Go, in last year’s edition Rabbi David Horwitz touches on many of the themes R’ Amital discusses.

He too looks at the dispute between Rabbi Aqiva and Ben Azzai as to which principle is more primary to the Torah:

Love your neighbor as yourself: R. Akiba states, this is a great principle of the Torah. Ben Azzai states: This is the book of the descendants of Adam (Genesis 5:1): This is even a greater principle.

– Sifra, on Sefer Va-Yiqra 19:8

Among R’ Horwitz’s observations:

Ben Azzai comes to teach that the ground of Jewish interpersonal ethics is not merely a social contract between disparate individuals but is rooted in the fact that every human being was created in the image of God. Hence, the end of Genesis 5:1 is the crucial key. That is the point of the Torah stating “This is the book of the descendants of Adam”. It is precisely the fatherhood of God that is the ground of our duty to embrace the brother hood of man. Hence, even if one has broken the social contract and harmed someone else, one dare not retaliate. Every human being is created in the image of God, and no one may ever forget it.

He then also casts this dispute in terms of Kant’s Categorical Imperative in a manner I found interesting, but unconvincing.

An imperative is called hypothetical when it indicates which means must be supplied in order that the something further, the end, is realized. Thus, if one acts nicely towards someone else because one wants some reciprocity, e.g., some favors from that person, one is only acting in terms of a hypothetical imperative. The categorical imperative, on the other hand, is a category based upon the concept of duty, and is not based upon what end or result one might receive from a particular action. Any act of goodness based upon the hypothetical imperative is only conditional and cannot form the basis for a system of ethics. Only the categorical imperative can be the ground of unconditional goodness (Cassirer, pp. 244-45). Only the categorical imperative is worthy to be the foundation of morality.

Armed with these categories, we can now return to the debate between R. Akiba and ben Azzai. Ben Azzai disputes R. Akiba’s citation because in his view, “Love your neighbor as yourself” and Hillel’s notion of “what is hateful to you do not do to your fellow man,”  expresses only the hypothetical imperative, and not the categorical imperative. And the hypothetical imperative will not take care of the case in which one is harmed by others, and feels that it is indeed a legitimate source of pleasure to retaliate. Alternately, the  hypothetical imperative will not take care of the case in which one personally does not consider an act that others consider harmful to be, in fact, harmful. Ben Azzai, when responding with “This is the book of the descendants of Adam” responds by asserting that Jewish ethics is grounded upon a categorical imperative. And that itself is based upon the verse that concludes “In the likeness of God made He him”.

The Categorical Imperative, in its first formulation, states:

Act only according to that maxim through which you can at the same time will that it should become a universal law.

This too requires knowing how universal is “universal”. Suppose someone is a skilled shoemaker. Should they not become shoemakers because we wouldn’t want a world of only shoemakers? Perhaps the Kantian response is that each person should take the profession for which they are most fit. Abstracting away this person’s particular skill at shoemaking.

Similarly, the question of whether someone’s desire for revenge or personal taste about what is harmful is not necessarily a hypothetical imperative. It could also be a single situation’s application of something that is always, categorically, true.

I therefore don’t this as a core feature of the dispute between Rabbi Aqiva and Ben Azzai. As I see it:

Rabbi Aqiva’s verse has the disadvantage of being particularist, and not speaking to the need to show respect and love for people who aren’t our brothers  in Judaism.

However, Ben Azzai’s verse has the disadvantage of turning chessed into a derived value. By making the love we show others derivative of our love and awe for their Creator, we risk turning them into objects of mitzvah performance (like tefillin) rather than fully connecting to them as people.

Choosing Chumeros

As I write this, it’s a few hours before Rosh Chodesh Elul. For many people, a time for choosing chumeros, stringencies in those areas of our lives that could use that extra attention.

The Daf Yerushalmi Yomi recently learned Shevi’is 20a (in the Vilna edition) 7:20. The gemara is citing a Tosefta (Maaseros 1:2):

התני הסיאה והאיזוב והקורנס שהובילו לחצר אבל אם היתה שניי’ נכנסת לשלישית שלישית מששית לשביעית ששית הכא את מני לחוריה וכא את מני לקומיה אמר רבי יוסי שלישית וששית אע”פ שאין בהן מע”ש יש בהן מעשרות שביעית אין בה מעשר כלל לא כן אמר רבי אבהו בשם רבי יוחנן לית כאן מששית לשביעית ששית אלא שביעית מן ברשות בעלים ברם הכא ברשות עני הן מוטב ליתן ליה אחד בודאי ולא שנים בספק

Doesn’t it say in the [Tosefta], “Si’ah, hyssop and qornos [three herbs that general grow wild] that were brought into the yard: If they were [plants] of the second [year of the shemittah cycle] going into the third [and now they are brought into the yard], they are of the third year [in terms of tithing]. If they were from the sixth year going into the seventh [sabbatical] year, they have the law of the sixth.” — this [case] one counts to the later [the third year], and here one counts to the earlier [sixth] year???

Rabbi Yosi said: The third and sixth [years] even though they do not have maaser sheini [a tithe eaten by the owner but only in Jerusalem], they do have maaser [-- they have the tithe given to the poor]. The seventh year does not have maaser at all.

Didn’t Rabbi Avohu say the same in the name of Rabbi Yochanan? “From the sixth going into the seventh [ie sabbatical year] is not of the sixth year but of the seventh — that is only with respect to the control of the owners, however here it is about the control of the poor. It is better to give that one with certainty, that two give two [for the earlier and later year] in doubt.

After terumah is given to the kohanim, and maaser rishon, the first tenth, is given to the leviim, the second tenth has different dispositions depending on which year it is in the shemittah cycle. In the first, second, fourth and fifth years, it is eaten by the owner in Jerusalem. In the third and sixth years, it is given  to the poor. (In addition to the other parts of the crop which are given to the poor as well as the usual obligation of tzedaqah.) On the seventh, shemittah, year, the crops are holy, ownerless, and thus there is no tithing of any sort.

Here we have a plant that in general grows wild, and therefore isn’t subject to maaser. However, in this particular case the person takes the plant and allows it to finish growing in his vegetable patch. And a new year began in between Does the herb follow the year it was grown, or the year it became subject to the obligation? The shenuttah cycle is rabbinic at times when most Jews live outside of Israel, and thus the Sages had leeway as to how to label the years with respect to tithing. The Yerushalmi tells us that in order to avoid giving two kinds of maaser in doubt, the Tosefta rule stringently.

All of the above is by way of background. What I want to point out is their definition of stringency:

When in doubt whether to group something with the second year, and thus the maaser is part of a spiritual pilgrimage to Jerusalem, or with the third, and thus the maaser is given to the poor — “stringency” means giving to the poor. Similarly, if it’s between declaring the food sacred or giving it to the poor — give it to the poor.

When I posted a version of the above to Avodah (corrected off-list by REMT, thank you!) R’ Danniel Shoemann pointed me to a similar chumerah in Chagiga 3b (quoting Mishnah Yadayim 4:3). In sefer Bamidbar, we conquer the lands of Amon and Moav from the Emori (who in turn had won them from the Amoni and Moavi) and after the wars in the book of Yehoshua they are settled by the people of Re’uvein, Gad, and half of the tribe of Menashah. (This is the land just east of the much of the Jordan river, in the western part of the current country of Jordan.) However, the land is not resettled by Jews in the second time around, in the days of Ezra. Shemittah only applies to lands conquered in the days of Ezra, or those lands with Jewish populations next to it that the law was rabbinicly extended to.

Rabbi Yochanan says that this does not include Amon and Moav with respect to shemittah, but one is obligated to give maaser from crops grown in that area. Given that the second tithe differs depending upon the year of the cycle, but in Israel proper there is no tithe for the shemittah year, what does one do in the seventh year in Amon and Moav? Rabbi Yochanan (note: the same Rabbi Yochanan as in the gemara I quoted) rules that one gives maaser ani to the poor.

Hunting for spiritual experiences or prohibiting things so as to avoid doubt are NOT appropriate chumeros if it means difficulties for others! Quite on the contrary — the gemara recommends starting with being stringent in how we extend aid…

Who fed the Egyptians?

During the second 3 days of choshekh in which the darkness was tangible and the Mitzriim could not move, how did they eat? After all, an oath not to eat for 3 days is considered suspect, and we wait in expectation that the person will need to violate it. (Which is less suspect than if the oath were three days without sleep, where we give them lashes immediately and it may be violated even at the beginning, since it is inevitable that they will sleep. Still, the implication is that most people, can’t live three days without food or drink, and certainly a whole nation didn’t survive that way.) So, if the Mitzriim didn’t die, how did they eat?

The Netziv (Haameiq Davar, Shemos 11:2) asks why is it that when Hashem promises in advance that the Jews would get treasures from the Egyptians, He says (3:22) “וְשָׁאֲלָה אִשָּׁה מִשְּׁכֶנְתָּהּ — and a woman will ask/borrow from her neighbor”, but now when it happens, He tells the Jews “וְיִשְׁאֲלוּ אִישׁ מֵאֵת רֵעֵהוּ, וְאִשָּׁה מֵאֵת רְעוּתָהּ — and a man will ask/borrow from his friend, and a woman from her friend”? Why the promotion from shakhein (neighbor) to reia (friend)?

The Netziv answers that during plague of choshekh, “Yisrael, who were a light in their homes, put out (hoshitu) before them food and everything they needed. And through this, Yisrael obtained a great grace in their eyes.”

Picture what this implies about our obligations to others. The Egyptians were not fellow Jews, they were sinners who worshiped idols, engaged in all forms of sexual immorality, were murderously cruel (all three of the “be killed rather than violate” sins), our tormentors. And yet, we showed them kindness. A lesson in how to treat the other, and a lesson in just how far we should take “do not take revenge and do not and do not bear a grudge.” (Vayiqra 19:18) The prohibition is only against “a member of your people”, but we shine as children of Abaraham when we go beyond the minimum loving-kindness the Torah demands of us.

I was thinking that perhaps this could answer another question I had… Hashem promised Avraham we would leave with “great wealth” (Bereishis ). I’m sure Avraham Avinu would be happy we would end up rich, but is this really the greatest thing a tzadiq would hope for? So, I once offered a chassidishe style answer, re-punctuating a pasuq from after Makas Choshekh (11:2): “Daber na be’zanei ha’am — speak please into the ears of the nation” that they should ask, every man of their neighbor and every woman of her neighbor, gold utensils and silver utensils. And Chazal say that Hashem said “na” (please) because He “needed a favor” (so to speak) in order to fulfill His promise. So my earlier suggestion was to read the verse “say ‘please’ into the ears of the nation”, teach them to say please. Avraham, the maste of lovingkindness, would hear the words “great wealth” and expect Hashem to lead his children to kindness. The wealth was that Moshe put the word “na” in the ears of the people — teaching them to say “please”, even in this situation.

But now I could answer without playing with the punctuation or taking phrases out of context: that Avraham’s “great wealth” of lovingkindness was what the Jews learned by sustaining the Mitzrim during the plague of darkness! We refrained from vengeance when they were down. The Mitzriim didn’t come help (at least not in numbers enough to be recorded in the Torah) when we “cried out from all the work”, but we came when they needed us. As we say in Havdalah, Hashem bestowed on us a difference “between light and darkness, and between Israel and the other nations.”