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Volume 31: Number 181

Mon, 28 Oct 2013

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Subjects Discussed In This Issue:
Message: 1
From: Zev Sero <z...@sero.name>
Date: Sat, 26 Oct 2013 23:16:20 -0400
Re: [Avodah] Kofin Oso

On 26/10/2013 7:41 PM, Chana Luntz wrote:

> Si'if 1. [...]and if he pimps prostitutes if there are witnesses,
> or he acknowledges there are those who say that we force him.

While that would seem to be the logical translation of "ro'eh zonos",
if you look closer I think you will find that it actually means one who
*frequents* prostitutes, i.e. a customer, not an employer.

>  From the Rosh: - 43:6
> ??? ????? ????? ??, ???? ?????? ??????.
> and all the work in this claim, multiplies mamzerim in Israel

You've mistranslated this line.  He says that anyone who forces a get over
such a claim is increasing mamzerim in Israel.  In other words, at least some
gittin that were forced according to the Rambam are passul bediavad, and the
children are mamzerim.  The only question is which ones.  When he says that
bediavad what's done is done, he means that although we can be sure that among
all the cases there *are* pasul ones, in any specific case we can't assume
this is one of them.

 From what you've  written here and in the past, I think you're missing the
fundamental point in the "ma'us alai" debate, which is that (at least AIUI)
everyone agrees that a genuine claim of "ma'us alai" is grounds for kefiyas
get, and that everyone also agrees that a *false* claim is *not* grounds.
The only problem is how we know which claims are false and which are true.
The only difference (AIUI) between the Rambam and RT is that the Rambam
assumes any woman who makes such a claim is telling the truth, while RT and
the Rosh worry that she's lying, in which case the get will be pasul
*even according to the Rambam*.

In other words, "ma'us alai" is not synonymous with "I want out of this
marriage".  It is a specific claim about the woman's subjective but
involuntary feelings, that may or may not be true.  And wanting to marry
someone else is just one reason why a woman might lie about it.  So even
according to the Rambam one can't simply use this as a weapon in every case,
and if there are malicious lawyers and "rabbis" who teach women to say
"ma'us alai" as if it were a magical incantation then it should be obvious
that the Rambam would agree that one can't rely on it any more.


> If, as RYH suggests, the Shulchan Aruch is following the Rosh, then
> while one would not hold by cattle prod gitten l'chatchila in a case
> of ma-os alai (and hence, the Shuchan Aruch would not rule to do so
> in his sefer), bideved they would be regarded as kosher.

Only if it really is a case where she actually says "ma'us alai", lefi
tumah, i.e. without coaching from someone who knows what legal consequences
flow from such a declaration.


> ??? ????? ??? ???? ???? ???? ?????? ??? ???,
> ?? ???? ?? ?????? ?????? ???? ?? ????, ??? ???? ????? ?? ???? ?????!
> ?And what is it that gives a reason to force a man to divorce and to
> permit a married woman - that she is not able to have relations with
> him, and that she will remain a living widow all her days, behold is
> it not that she is not commanded in being fruitful and multiplying?

Slight  mistranslation.  "Lo tiba'el lo" is not part of the question,
it's an alternative proposal.  Let her not sleep with him, and remain
a living widow for the rest of her life.  Why is this a bad thing, asks
the Rosh.

> Now there seem to be two possibilities.  Either that the Rosh rejects
> all those mishnas and gemoras that suggest that women are, if
> anything, more susceptible to being seduced than men (eg he holds
> contrary to Rabbi Yehoshua (Sotah 20a) that a woman  prefers one kav
> and triflus to nine kavs and prishus).  And likewise that he holds
> that not only one woman in 1000 can be found who is able to resist
> the temptation of adultery but indeed all women who claim to hate
> their husbands and who might have set their eyes on another fall
> within that category.   Or, alternatively the reality was that  in
> the Rosh?s day adultery was not something that women could easily
> access, no matter how they desired it, ? their only route to
> achieving anything should they put their eyes on another was to force
> a divorce.

A third possibility is that he's not concerned to prevent deliberate
sin.  If she wants to commit adultery, "hal'iteihu larasha veyamos",
let her do as she wishes, and she will suffer for it.  Any mamzerim
that result are her fault, not ours.   Whereas if we give her an invalid
get, then the mamzerim that result will be our fault.

Zev Sero               A citizen may not be required to offer a 'good and
z...@sero.name          substantial reason' why he should be permitted to
                        exercise his rights. The right's existence is all
                        the reason he needs.
                            - Judge Benson E. Legg, Woollard v. Sheridan

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Message: 2
From: Richie <cantorwolb...@cox.net>
Date: Sat, 26 Oct 2013 22:37:12 -0400
Re: [Avodah] Who is Eliezer?

Rabbi Eisenman is to be commended for one of the most insightful,
enlightening and realistic postings I have ever seen on Avodah. It indeed
takes courage to articulate an attitude that I'm sure will be met with
great resistance from the "black and white" thinking we often see.

I, for one, with a background in law enforcement, can attest to the
veracity of what Rabbi Eisenman has written. We have Jekyll and Hydes
in our midst.

We have Jekyll and Hydes in ourselves. It takes an intrepid individual
to confront what most people sweep under the carpet. All of the kosher
meat scandals, the kosher fraud, the "religious" pedophiles, the "frum"
charity collectors, etc. etc. etc.

These are the people that Rabbi Eisenman is talking about, and these
are the people you and I know. It has been taught that each of us has a
percentage of the Four Sons in us. The goal is to capitalize on the First
Son who is referred to as the Wise Son. What is quite interesting is
that the second son is the Wicked Son and one would expect the opposite
for the first son -- so instead of "Wise," why isn't "Good" used (as the
opposite of Wicked)? I would be interested in Rabbi Eisenman's response
to that question. In any event, reality dictates how complicated the
human being is and anyone who comes up with simple, easy, black and
white answers fails to realize the complexity involved.

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Message: 3
From: Zvi Lampel <blimielam...@mail.gmail.com>
Date: Sun, 27 Oct 2013 15:10:50 -0400
Re: [Avodah] Mesorah

On 10/25/2013 10:07 AM, Micha Berger wrote:

On Thu, Oct 24, 2013 at 08:21:14PM -- 0400, Zvi Lampel wrote:
> The Abarbanel certainly uses "mekubal" to mean a Qabbalist. For
> example, in his prologue to Breishis, he refers to "Ramban and the
> group ("kahss") of mekuballim" who take the "Shamayyim" to mean the
> upper [spiritual] heavens... ["The mekuballim made remazim in this
> whole narrative--albeit with belief in the peshat of the verses...but
> it is not my intention to speak at length on their words, for I have
> not studied the chochmas ha-kabballah, and the daas ha-kedoshim lo
> eidah."]

RMB: I still think "traditionalist" fits better than Qabbalist".

ZL: Ramban was famous for carrying out his stated aim of introducing
remazim to Toras Nistar into his Chumash commentary. I find it difficult
to believe that this is not what the Abarabanel is singling out the
Ramban and company for. Also, I should have noted that before the
sentence I cited, the Abarbanel wrote--regarding people's interacting
with and/or seeing of angels--"sheh-b'kulam haissa hasagah chushy-iss
l'davar mu-seggess, v'hu asher yikarei, eiytsel haMekuballim, 'giluy
eiynayim,' v'zehu daas HaRamban." It once again seems to me that Abarbanel
is identifying this approach with that of Mekuballim as a select group
devoted to mystical kabbalah, not your ordinary recipients of traditional

(Incidentally, I nevertheless question Abarbanel's previous ascribing
to the Ramban the idea that the sechallim nivdallim "b'derech pelleh
hiss-lavshu guf u-bassar." All I see in the Ramban is that Hashem caused
the senses of the people involved to perceive these images.)

RMB: IOW, the Ramban and the group of traditionalists are those who follow
the Torah without Scholastically trying to make it jibe with then-current
notions about how the world works... And the Abarbanel is simply admitting
that his teachers all used Scholastically based hashkafah so he didn't
know the details of the other approaches. Not that the other approaches
were al pi nistar. E.g. this example also doesn't require Toras haNistar
-- shamayim as a metaphysical "place" is all over shas.

ZL: Does that make it non-Nistar? I think we need to define the
kabbalsitic sense of the words "nistar" and "sod" as you are using
them. (Indeed Abarbanel uses both of those very terms in a non-kabbalisitc
sense.) I find it difficult even to distinguish between what the rishonim
considered the physical mechanics of the universe, in which they described
angels as playing key roles, and the non-physical mechanics thereof.

On 10/24/2013 7:39 PM, Micha Berger wrote:
> According
> to the Encyclopaedia Judaica (2008)
> http://www.jewishvirtuallibrary.org/jsource/judaica/e
> jud_0002_0011_0_10514.html
> the earliest use of "qabbalah" to refer to yesodei hatorah was by the
> Roqeiach (late 12th cent, early 13th), around a century before Abarbanel.
> Did "mequbal" become a title for a master of sod yet?

Ramban on Iyov 23:13-- "...Iyov hayyah chacham u-mekubal yodeiya sod 
ha-elokus v'ha-Yichud Yisborach."

-- Zvi Lampel

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Message: 4
From: David Riceman <drice...@optimum.net>
Date: Sun, 27 Oct 2013 10:15:53 -0400
[Avodah] Kofin Oso



I would be very interested in seeing either, or both, these
teshuvos because obviously it is difficult to discuss a shita without seeing
it inside.



David Riceman

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Message: 5
From: "Prof. Levine" <llev...@stevens.edu>
Date: Mon, 28 Oct 2013 10:19:05 -0400
[Avodah] Lessons From Jacob and Esau

Even if one has read this insightful essay by RSRH before,  it is 
well worth the read again and especially in light of this week's parsha.

 From Jacob and Esau (Collected Writings VII)

I think this essay should be required reading for anyone involved in Chinuch.

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Message: 6
From: Micha Berger <mi...@aishdas.org>
Date: Mon, 28 Oct 2013 13:30:16 -0400
[Avodah] [VBM: Before Sinai] Shiur #02: Is There an Ethic

This shiur series promises to be very AishDas-y.
Subscription form: http://www.vbm-torah.org/howto.htm

I also think it is worth seeing R/Dr Eugene Korn's and R JD Bleich's
essays directly. Not to mention, the relevant chapter in Leaves of
Faith, but I don't have a URL for that...

REK:  http://www.edah.org/backend/JournalArticle/korn2_2.pdf
RJDB: http://j.mp/1aP4yLZ

Hopefully I'll find time to post my own opinion.


The Israel Koschitzky Virtual Beit Midrash

Before Sinai: Jewish Values and Jewish Law
By Rav Dr. Judah Goldberg

Shiur #02: Is There an Ethic Beyond Formal Jewish Law?

In the first shiur, we outlined a perceived void with regard to
a contemporary statement of Jewish values, and we elaborated the
methodological assumptions that will guide this project. Before proceeding
further, however, it is worth pausing to assess alternative approaches to
both the supposed problem and its possible solution. While in the last
shiur we introduced a range of Jewish values (including commitment to
peoplehood and connection to the Land of Israel), this shiur will focus
on a particular issue that has attracted much attention: Whether there
exist ethical duties beyond the calling of formal halakha.

The Problem
""" """""""

To restate the problem, many find the formal requirements of Jewish
law too narrow to account fully for all that we ask and expect of a
Jew. We are left with the unsettling feeling that there is more to
proper conduct than just the code of halakha, for all of its sweep and
comprehensiveness, but we struggle to explain what else there could be
outside of the formal law. Regarding the ethical realm, mori ve-rabbi
R. Aharon Lichtenstein asserts:

    If, however, we equate Halakhah with the din, if we mean that
    everything can be looked up, every moral dilemma resolved by reference
    to code or canon, the notion is both palpably naive and patently
    false. ... Which of us has not, at times, been made painfully aware
    of the ethical paucity of his legal resources? Who has not found
    that fulfillment of explicit halakhic duty could fall well short
    of exhausting clearly felt moral responsibility? ("Does Judaism
    Recognize an Ethic Independent of Halakhah?" Leaves of Faith: The
    World of Jewish Living, 38-39)

R. Lichtenstein's intuitive questions pose a problem not only for
Jewish practice but for halakha as well. Even if we could point to
a complementary system that fills in the ethical gaps for us, would
this imply that halakha itself is somehow, Heaven forbid, defective --
defying our notion that "God's Torah is perfect" (Tehillim 19:8)?

Response #1: Formalism
"""""""" """ """""""""

One possible response is to reject the logic behind the question. R.
Lichtenstein presupposes that we possess some independent moral
barometer outside of halakha that judges the halakha and finds it
incomplete. Perhaps this notion is wrong, not for its assessment but for
its assumption. In other words, for a Jew, "halakhic" is synonymous with
"ethical." What the halakha proscribes regarding interpersonal relations
comprises the scope of unethical behavior; what it sanctions, either
overtly or through silence, is by definition both "right" and "good."

This view constitutes "halakhic positivism," which maintains that
the revealed law contains within it the entire scope of meaningful
values, including morality, and is therefore not subject to any kind of
examination by external criteria. According to halakhic positivism, R.
Lichtenstein's reference to "ethical paucity of his legal resources"
is an oxymoron, as the law itself defines what is ethical. A corollary
of halakhic positivism is "halakhic formalism," which holds that the
objective halakha determines the full range of duties for a Jew. What
is not addressed by the halakha outright is necessarily a "devar reshut"
(a matter of personal choice), devoid of any moral weight.

Of halakhic positivism, R. J. David Bleich writes that "such a position
recognizes the norms of Halakhah as constituting the sole constraints upon
human conduct." A corollary of the resulting "moral stance," he admits,
is that it "permits an individual to take advantage of any loophole in
the law which may present itself and to do so without feeling any degree
of culpability based upon an ultimate moral concern" ("Is There an Ethic
Beyond Halakhah?" The Philosophical Quest: Of Philosophy, Ethics, Law,
and Halakhah, 137-138).[1]

    Halakhic formalism, then, readily solves our problem by denying
    that it exists in the first place. If all halakhic responsibility
    has been fulfilled, by definition no ethical concern remains, and
    practitioners of halakha can feel reassured that they are meeting
    the full standard of conduct expected of them.

Critique of Response #1
"""""""" "" """""""" ""

For all of its simplicity, the position of halakhic positivism runs
into some obvious difficulties. One is a central proof-text for R.
Lichtenstein's own aforementioned assertion:

    Rav Yochanan said, "Jerusalem was destroyed because they judged
    [in accordance with] Torah law within it." Well, should they have
    followed the laws of the Magians instead?! Say, rather, because
    they based their judgments solely upon Torah law and did not act
    "lifnim mi-shurat ha-din." (Bava Metzia 30b)

Thus the Talmud introduces the concept of "lifnim mi-shurat ha-din," an
expectation of conduct that lies "beyond the boundary of the law." In
other words, according to Rav Yochanan, the courts of Jerusalem did
everything right by halakhic standards but were held accountable for
exactly that -- not aspiring to something further. Clearly, something
"beyond" must exist that is not encompassed by the halakha, implying
that it not only has ethical standing but can be intuited by and demanded
from the individual (or at least from judges).

For R. Bleich, though, the quote from Bava Metzia proves just the

    Despite the nomenclature employed in describing this norm, viz.,
    "lifnim mi-shurat ha-din -- beyond the boundary of the law," adherence
    to the standard denoted thereby is prescribed as normative and binding
    and hence endowed with the essential attributes of Halakhah.... [This]
    proof-text certainly establishes beyond a reasonable doubt that
    failure to adhere to a standard of lifnim mi-shurat ha-din is
    a culpable offense -- and the punishment meted out at one point
    in Jewish national history was the destruction of Jerusalem. No
    less! "Ain onshin ela im ken mazhirin -- There can be no punishment
    other than upon admonition" is not only a fundamental principle
    of Jewish law, but is the expression of an elemental principle of
    justice. Accordingly... that lifnim mi-shurat ha-din is mandated
    as a normative and binding standard of conduct, must be conceded by
    all. (126)

According to R. Bleich, adhering to a standard beyond the letter of the
law is actually part of the law itself. The very fact that God punished
a community for its strict adherence to the plain law is proof enough
that lifnim mi-shurat ha-din is not truly "supererogatory" (beyond
what is required) but falls within the basic obligations of appropriate

R. Bleich's position, though, must confront other difficulties, as
highlighted in a critique by R. Eugene Korn.[3] A halakhic formalist will
have to refute every supposedly extra-halakhic value -- "middat chasidut"
(a quality of the pious), "darkhei chokhma" (ways of wisdom),[4] and
the like -- by claiming that they, too, are subsumed within normative
halakha. The result is both a tautology -- whatever is virtuous we
will call halakha because formalism holds that halakha defines all
that is virtuous -- and a dilution of the very concept of law. At
the extreme, even R. Bleich concedes that there is an area of Jewish
ethics which is highly individualized -- the commandment to imitate
the Divine. In R. Bleich's words, "The command is normative, but at
the same time it establishes a relative norm commensurate with each
individual's apprehension of the divine essence" (138). R. Korn counters
that a "relative norm" that corresponds to one's spiritual persona is
paradoxical. We could call this a command to pursue virtue or to aspire
to godliness, but not a din.

Furthermore, troubled by the apparent subjectivity of this mitzva, R.
Bleich explains in what sense it is still objective:

    Yet, although the standard is relative and varies from person to
    person, the standard to be applied to each individual is, at least in
    the eyes of the Deity, objective and mandatory. Hence, even ethical
    obligations of this nature can well be termed a facet of Halakhah
    or normative law. (140)

For R. Bleich any apparent subjectivity in this mitzva is an illusion.
Heaven has set an objective standard for each person, whose task is to
best intuit where his or her bar might lie. R. Korn, again, is hardly
satisfied with this resolution. "Positivist halakhah," he asserts,
should be "objective, open to human analysis and determination; its
study is a cognitive and discursive enterprise, not an intuitive nor a
mystic experience."[5]

Finally, halakhic positivism invites a problem of epistemology. If all
of our moral knowledge flows from the revealed halakha, how would we know
what "lifnim mi-shurat ha-din" is? Even if we were convinced that lifnim
mi-shurat ha-din is technically binding (thus resolving the challenge
to formalism), we would still be bereft of any moral compass that could
tell us what to do and where the new limits lie.[6]

Response #2: Natural Morality
"""""""" """ """"""" """"""""

A second possible response to perceived gaps in halakha is to fill the
void not with additional halakhic precepts, but with ethical duties
independent of halakha. These duties result from humanity's essential
identity as moral beings whose actions are invested with meaning, prior
to and independent of Divine commands.

This view maintains that morality is both inherent in nature and
actionable without Divine input. Concepts of "right" and "good" exist
even without Divine knowledge, which is why it is meaningful to call
God "just" and why Avraham was able to challenge him, "Shall, then,
the Judge of the whole earth not do justice?" (Bereishit 18:25).

To be sure, we can delineate various levels of natural morality
claims. The term "natural morality" itself implies the limited suggestion
that the natural world is morally laden. Notions of "good" and "bad"
exist even in the absence of Divine revelation. R. Lichtenstein strongly
defends this notion, and even R. Bleich is willing to concede it.[7]
"Natural law," on the other hand, means that natural morality imposes
specific demands on moral agents. Even without Torah, we would hold a
murderer liable for his heinous act.

Even if we accept natural law, though, this doesn't mean that it has
relevance for us in a post-Sinaitic world. One could argue that natural
law reigns in the absence of revelation, but the revealed Torah either
preempts or supersedes all of its obligations.

A more ambitious claim would be that natural law is not a relic of Jewish
history but is alive and obligatory today for even the halakhically
bound Jew, not because Torah is deficient but because the two systems
are complementary. Mori ve-rabbi R. Yehuda Amital, zt"l, for instance,
rejects halakhic formalism because:

    According to this view, which zealously tries to defend the honor
    of the Torah, there is no connection between God, Creator of man,
    and God, Giver of the Torah, as if that which God implanted in man's
    heart does not belong to God. (Jewish Values in a Changing World, 23)

It seems that R. Amital sees confluence between natural law and halakha
for theological reasons, as both systems emanate from a single, unifying
Divine source.

Natural law, then, compels us to act ethically even when halakha does
not dictate to do so. Furthermore, such an admission does not imply
that halakha is incomplete but, rather, that it takes for granted the
natural law that, for a believer, was ordained by the same Giver of
law. Regarding cannibalism, R. Amital explains:

    It seems obvious to me that God does not want man to eat human
    flesh. The Torah fails to mention that the eating of human flesh is
    forbidden, not because it is permitted, but because certain things are
    so obvious that it is unnecessary for the Torah to state them. (39)

Critique of Response #2
"""""""" "" """""""" ""

One obvious problem that arises with the natural law response but not
with halakhic positivism is the existence of conflicts. With halakhic
positivism there exists only a single source of morality, but belief
in natural law introduces a second source which does not always accord
with the halakha. Difficulties that jump to mind include mitzvot that
call for collective killing, such as the mitzvot to eliminate Amalek,
the seven Canaanite nations and the inhabitants of an "ir ha-nidachat"
(a wayward city of idol worshippers).

R. Amital stresses that Divine commands take precedence over natural
law. Even so, "this does not mean that we are supposed to modify
our moral outlook so that it should be in keeping with the Torah's
commands" (31). Our natural moral instincts are legitimate, virtuous,
and commendable, even if the halakha temporarily suspends them.

This resolves the practical conflict but not the underlying
discordance. Moreover, the very argument that validates the partnership of
natural law and halakha -- that both come from the same Divine source --
simply shifts the contradiction to God Himself: How could His commandment
demand something that revolts the human heart He crafted?

One possibility is to defend all of God's commandments as somehow moral,
even if they defy our intuitive understanding. Thus R. Walter Wurzburger
writes, "Once God is defined as the supreme moral authority, obedience to
divine imperatives emerges as the highest ethical duty. Thus, Abraham's
readiness to sacrifice Isaac... was a perfectly moral act" (Ethics of
Responsibility, 19).

If this point is correct, though, why should we not reshape our moral
thinking in light of the Akeida -- or, for that matter, Amalek?[8]
Moreover, even without confronting contradictions to halakha, nature
and instinct do not always read like an open book. Countering those
who celebrate a Talmudic passage (Eiruvin 100b) that suggests we could
have learned modesty from the cat and chastity from the dove, R. Bleich
(quoting Professor Marvin Fox) contends that "we might just as readily
have decided to imitate the ferocity of the lion, the murderousness
of an aroused pack of wolves, and the sexual behavior of a rabbit"
(136). Even with regard to human moral intuition, does the diversity of
moral systems and opinions in the world not give us pause?

Response #3: Expanded Interpretations of Jewish Duty
"""""""" """ """""""" """"""""""""""" "" """""" """"

A third approach sits midway, in a sense, between the first two. It
rejects strict halakhic formalism but seeks to locate further ethical
duty within a broader conception of Jewish tradition and obligation,
rather than outside of them, as natural law does. This approach wants to
"have its cake and eat it too." It adheres to formalism by maintaining
that the obligations of Jewish living indeed address the full range
of ethical responsibilities, but it avoids the narrowness of halakhic
formalism by asserting that Jewish duty doesn't end with the law.

Of course, the conceptual strength of this approach is also its greatest
challenge. It needs to demonstrate genuinely Jewish responsibilities
that lie outside of the boundaries of codified halakha, something that
neither strict halakhic formalists nor natural law theorists need to
do. We will present two different solutions to this particular dilemma.

Solution A: "Halakha," Reinterpreted
"""""""" "" """""""""" """""""""""""

Mori ve-rabbi R. Aharon Lichtenstein suggests that the term "halakha"
is ambiguous and can actually refer to two different concepts. The first
is din, connoting Jewish rules or laws; the second is the full breadth
of Jewish tradition and Torah she-be'al peh, "roughly the equivalent
of halakhic Judaism" ("Does Judaism Recognize an Ethic Independent of
Halakhah?" 51). In answering "how independent of Halakhah is the ethic
that ennobles us above the "~scoundrel with Torah license' [one who
circumvents the law]," R. Lichtenstein writes:

    If we regard din and Halakhah as coextensive, very independent. If,
    however, we recognize that Halakhah is multiplanar and
    many-dimensional; that, properly conceived, it includes much more
    than is explicitly required or permitted by specific rules, we shall
    realize that the ethical moment we are seeking is itself an aspect
    of Halakhah. The demand or, if you will, the impetus for transcending
    the din is itself part of the halakhic corpus. (40)

This obligation R. Lichtenstein mainly finds in the concept of lifnim
mi-shurat ha-din, thus returning it to its plain, paradoxical meaning:
"Halakhah itself mandates that we go beyond its legal corpus" (42).

Where R. Lichtenstein differs from strict formalism, then, is in
emphasizing the unique character of lifnim mi-shurat ha-din. R. Bleich
highlights its formal elements -- an opinion that counts it as one of
the 613 mitzvot, Jerusalem's destruction as a punishment -- and thus
concludes that lifnim mi-shurat ha-din is "endowed with the essential
attributes of Halakhah" (126). R. Lichtenstein, in contrast, points
to its "crucial distinction from din -- "its subjective and contextual
nature, as well as the Maharal's interpretation that Jerusalem's fall
was a natural consequence of draconian policies rather than Divine
retribution for the transgression of law (47). What they agree upon,
however, is that higher ethical aspiration definitely falls within the
boundaries of halakhic calling.[9]

Solution B: Covenantal Ethics
"""""""" "" """""""""" """"""

R. Walter Wurzburger offers a different solution, not by widening
the scope of "halakha" per se but by invoking our covenant with God,
which, according to R. Wurzburger, transcends mere adherence to the
law. R. Wurzburger observes that "the Bible records a variety of covenants
that do not mandate obedience to specific norms but establish a unique
relationship between God and man" (Ethics of Responsibility, 14). Even
berit Sinai (the covenant at Sinai), the ultimate source of halakhic
obligation, includes a more sweeping mandate to be a "holy people" (Shemot
19:6; see Ha'amek Davar there) (26). Regarding the realm of ethics,
"Jewish ethics encompasses not only outright halakhic rules governing
the area of morality, but also intuitive moral responses arising from
the Covenantal relationship with God, which provides the matrix for
forming ethical ideals not necessarily patterned after legal models" (15).

R. Wurzburger pluralistically invokes multiple covenants and sources
of obligation, referring alternatively to berit Avot (the covenant with
our Forefathers), berit Sinai and broad, open mitzvot such as "you shall
do the right and the good" (Devarim 6:18). While he mainly focuses his
attention on the Sinai experience and the obligations that emanate from
it, perhaps his most innovative point, which he cites from his mentor
R. Joseph B. Soloveitchik, is that the covenants prior to Sinai continue
to have binding force upon our conduct, beyond our halakhic obligations
(14-15). This insight will form the backbone of the rest of this study,
as it will further explore the full content (beyond the ethical) of
berit Avot and its nuanced interaction with the halakhot of Sinai.

Summary and Critique of Response #3
""""""" """ """""""" "" """""""" ""

Both R. Lichtenstein and R. Wurzburger find an obligation for ethical
conduct inside of Judaism but outside of law. However, to the extent
that this third response sits somewhere between formalism and natural
law, R. Lichtenstein and R. Wurzburger each occupy a slightly different
position on that spectrum.

As such, each of them will have to bear some of the critiques of the
earlier responses. R. Lichtenstein, whose approach falls somewhat closer
to the pole of halakhic formalism, articulates the counter-arguments

    First, if lifnim mi-shurat ha-din is indeed obligatory as an integral
    aspect of Halakhah, in what sense is it supralegal?... Second,
    isn't this exposition mere sham? Having conceded, in effect, the
    inadequacy of the halakhic ethic, it implicitly recognizes the need
    for a complement, only to attempt to neutralize this admission by
    claiming the complement has actually been a part of the Halakhah
    all along, so that the fiction of halakhic comprehensiveness can be
    saved after all. (46)

R. Lichtenstein needs to walk a fine line between what I would
call "halakhic inclusivism" and legal formalism. He does so, as
mentioned above, by stressing the contextual nature of lifnim mi-shurat
ha-din. Furthermore, R. Lichtenstein's "inclusivism" seems to be motivated
by something different from R. Bleich's formalism. Halakhic formalism
comes from a general skepticism about natural law that therefore eschews
anything other than Divine commands. R. Lichtenstein, on the other hand,
aspires for inclusivism not because of the illegitimacy of natural law
but because of his vision of halakha.

For R. Lichtenstein, halakha does not fill in moral lacunae but purposely
seizes the full scope of a Jew's duties in order to frame them within a
Divine-human relationship. As such, "Integration of the whole self within
a halakhic framework becomes substantive rather than semantic insofar
as it is reflected in the full range of personal activity" (51). It
is not that an ethic could not exist independent of halakha. Rather,
it is inconceivable that halakha would not integrate such a critical
dimension of human moral life.

R. Wurzburger, on the other hand, liberates himself fully from
any halakhic formalism, but this leaves open the question of what
"Covenantal Ethics," the term he coins, will actually draw from.
To fill that void, R. Wurzburger speaks of "the intuitions of a moral
conscience formed within the matrix of Torah teachings" (28). However,
this formulation is subject to two critiques. First, in order to build
an ethical conscience from the law, one probably needs to approach the
law with some preconceived moral values in order to discern where it
should guide us further. Presumably, R. Wurzburger will have to embrace
some degree of natural morality, which exposes him to its critics.

Second, as R. Wurzburger himself notes, "Since subjective intuitions
play a significant role in Jewish Covenantal Ethics, the resulting system
cannot avoid the difficulties besetting all forms of intuitionist ethics"
(34). Thus he concludes, "In areas where halakhic guidance is unavailable
there is no mechanism by which competing moral claims can be adjudicated"

The resultant ambiguities, though, do not deter him. Employing ethical
intuition, for R. Wurzburger, is not just a method for deriving an ethical
response, but is itself an aspect of participating in a living covenant
with God:

    To properly fulfill our Covenantal obligations, it is not sufficient
    to satisfy the minimal requirements demanded by the Law; we
    must respond to an all-encompassing summons addressed to us as
    free individuals in our existential subjectivity, uniqueness, and
    particularity by God, Who is absolutely One and Unique. (Ethics of
    Responsibility, 32)

Beyond demanding adherence to an objective code, the covenant calls
upon the individual to actively and creatively respond to it in each
nuanced scenario. Thus, subjective intuition (in both the ethical and
spiritual domains) is not a liability but an essential component of
religious life.[10]


Moving forward, we will return to R. Wurzburger's essential thesis in
future shiurim and further explore what meaning berit Avot may have for
ethics and other Jewish values today.

For Further Analysis:
""" """"""" """""""""

While this shiur explored ethical obligations outside of halakha, similar
questions could be raised about the spiritual and ritual spheres. Are
there spiritual aspirations that set limits on our conduct beyond the
specific demands of halakha? If so, from where do they derive? Are the
theories above applicable to the ritual realm? Parallel to the Ramban's
commentary to Devarim 6:18, see his commentary to Vayikra 19:2 and 23:24,
as well as his "Derasha Le-rosh Ha-shana" in Kitvei Ramban, vol. 1
(Jerusalem, 1991), 218-219.


[1]Available, with minor changes, at [http://j.mp/1aP4yLZ or]

[2] If R. Bleich's conclusion is correct, then we must redefine din
itself. Rather than view it as the baseline requirements of conduct, in
most cases it actually falls below the standard that halakha requires. In
what sense, then, is it din? Perhaps we could translate din as "justice"
rather than "law," in which case the Torah is saying that merely doing
what is objectively just vis-a-vis the other party does not fulfill
one's personal obligations.

[3] "Legal Floors and Moral Ceilings: A Jewish Understanding of
Law and Ethics," Edah Journal 2:2 (Tammuz 5762). Available at

[4] Rambam Hilkhot Avadim 9:8.

[5] To be sure, R. Bleich's position in the cited article is nuanced. At
times he defends halakhic formalism; at others (particularly towards the
conclusion) he seems to accept an ethic "which is beyond the recorded
Halakhah;" "cannot be captured in precise, unequivocal formulae;" and
"is recorded in the Aggadah rather than in the Halakhah." Similarly,
there is a "highly relative" standard that derives from "an individual's
metaphysical comprehension of the nature of the Deity," but perhaps
"God's essence can be discovered, not from the study of ethics, but from
the pages of the Talmud" (141) -- in other words, halakhic positivism. One
might want to associate R. Bleich's position with that of R. Lichtenstein
(presented below), but R. Bleich specifically distances himself (see
note 12 below). My overall impression is that R. Bleich persistently
gravitates towards halakhic formalism, even as he occasionally diverges
from its most extreme formulation.

[6] One could respond by invoking the Ramban's commentary to Devarim 6:18,
which some read as saying that a deep engagement with din guides the way
for lifnim mi-shurat ha-din (see, for instance, R. Walter Wurzburger,
Ethics of Responsibility: Pluralistic Approaches to Covenantal Ethics
[Philadelphia, 1994], 27, 37). Once halakha commands that we must
transcend mere din, opportunities for excellence will be self-evident
from meditating on the content of the din itself. It seems to me, though,
that this position entails at least some softening of the positivist
position. The moral sensitivity that is required to read the law openly
and liberally cannot itself emerge from a reading of the law, as pure
positivism would require.

[7] For a review of natural morality in Jewish tradition, see Avi Sagi and
Daniel Statman, "The Dependence of Morality on Religion in Jewish Thought"
(Hebrew), in Between Religion and Ethics, eds. Avi Sagi and Daniel Statman
(Ramat-Gan, 1993), 115-44. Also see R. Bleich's own "Judaism and Natural
Law," The Philosophical Quest, 85-124.

[8] To this we could perhaps respond that when the bulk of commandments
point in one moral direction, the outliers are readily identifiable. Even
if they are by definition "ethical" in the abstract as God's will, we need
not try to reconcile them with our general impressions of morality. But
what measure should we use to assess a mitzva's morality? If we just hold
halakhot to the external criteria of natural morality, then we approach
R. Amital's position. But if we want halakha to itself serve as a source
for building and shaping moral thinking and not just conform to it, then
a priori sorting of mitzvot into models and exceptions is problematic.

[9] Thus R. Bleich concludes that his position is "substantively in
agreement with the position adopted by Rabbi Aharon Lichtenstein in
his classic essay on this topic. Yet," he continues, "I do not believe
that the question is ultimately one of definition of terms, as Rabbi
Lichtenstein asserts" (133).

[10] Also see "Covenantal Imperatives" in Covenantal Imperatives: Essays
By Walter S. Wurzburger on Jewish Law, Thought, and Community (Jerusalem,
2008), 46-54. In this earlier essay, R. Wurzburger is responding more
to existential critiques of Judaism as mechanical and impersonal rather
than to ethical critiques of Judaism as too narrow. The need for ongoing
personal engagement with the covenant actually answers both problems.

Go to top.

Message: 7
From: Micha Berger <mi...@aishdas.org>
Date: Mon, 28 Oct 2013 14:02:41 -0400
Re: [Avodah] rav benyamin lau proposes

On Sat, Oct 26, 2013 at 09:55:41PM +0200, Ben Waxman wrote:
> http://www.kipa.co.il/jew/54021.html
> Rav Benyamin Lau  proposes that women be able to "meqadeish" men.
> Rav Navon rejects the idea entirely.

I don't see the other tzad. "Kol hameqadesh al da'as rabbanan meqadesh"
(RBL's grounds for this innovation) still requires "kol hameqadesh"
and not the rabbanan to enact a qiddushin without his actually doing
the right rite.

Tir'u baTov!

Go to top.

Message: 8
From: Micha Berger <mi...@aishdas.org>
Date: Mon, 28 Oct 2013 14:56:27 -0400
[Avodah] [VBM: Siddur] Shiur #01: Birkot Ha-shachar

Another shiur series that promises to be very AishDas-y.
Subscription form is still: http://www.vbm-torah.org/howto.htm

Here REB points out a distinction as berakhos as a way to take a moment
to reflect on the spiritual content of what I'm doing, and berakhos as
part of the seder tefillah. And on which side of that line does the
Rambam place birkhos hashachar. The Rambam (unlike current practice
among non-Teimanim) only has one say the berakhos that actually apply
to that morning; OTOH he places birkhos hashachar in Hil' Tefillah,
not Hil' Berakhos.


The Israel Koschitzky Virtual Beit Midrash

The Structure of and Meaning of the Daily Prayer
By Rav Ezra Bick

Shiur #01: Birkot Ha-shachar

Introduction: Seder Ha-tefilla
""""""""""""" """"" """"""""""

In this course, we will try to understand the different parts of what
constitutes the seder tefilla, the order of the prayers. On the one
hand, this is the most well-known text in Judaism. On the other hand,
precisely because most observant Jews begin to recite the prayers before
they can read and then never examine the seder tefilla as adults, its
deeper meaning and the significance of its structure and order (the word
"seder" means order) is neglected and largely unexplored. The order
of prayers was carefully constructed by the Sages, and it consists of
different parts, based on different obligations and fulfillments, which
are crafted together to form the unity with which we are familiar. We
are going to try to analyze each part, understand its purpose and role,
and begin to clarify the meaning of the text as well.

When the Sages speak about tefilla, often the reference is specifically
to the Amida. The Rambam as well defines the obligation to pray as being
fulfilled by the recitation of the Amida. We are examining a broader
concept, the seder tefilla, which consists of sections which in one way
or another have become part of the daily recitation and therefore have
been integrated in one order of prayer. For instance, keriat Shema is,
in essence, a separate obligation from that of prayer, yet the Sages
placed it directly before the Amida and connected the two through the
principle of semikhat geula le-tefilla. Different levels of integration
will bring us back to the beginning of the siddur, and therefore we
begin our discussion today with the section known as birkot ha-shachar,
the morning benedictions, beginning with ha-noten la-sekhvi vina (Who
gives the rooster intelligence).

Birkot Ha-shachar and the morning routine
"""""" """""""""" """ """ """"""" """""""

The source for the morning benedictions is the gemara in Berakhot 60b.
The gemara presents a list of statements, each beginning with the formula
"When one [does a particular activity]," followed by the instruction to
recite a blessing:

    When one hears the sound of the rooster, he should say: "Blessed
    He who gave the rooster the intelligence to distinguish between day
    and night."

    When one opens one's eyes, he should say: "Blessed He who gives
    sight to the blind...." When one washes his face, he should say:
    "Blessed He who removes the bonds of sleep from my eyes..."

In actuality, the first item on this list is, "When one goes to sleep
on his bed, he recites shema and says: 'Blessed He who causes the bonds
of sleep to fall on my eyes....'" Within the list is also included the
blessings on tallit and tefillin. On the other hand, the list that we find
in the siddur includes three additional blessings taken from Menachot 43b,
as well as one (ha-noten la-ya'ef koach) which has no Talmudic source at
all. For the time being, we shall ignore these discrepancies and examine
the list as a unit.

The language of the Gemara seems to present these blessings as responses
to particular events. In fact, most of the chapter in Berakhot in which
this passage is found deals with what is known as birkot ha-re'iya,
blessings recited after seeing some particular phenomenon. Examples of
such blessings include those recited when witnessing lightning, seeing
natural wonders, unusual creatures, or when eating a new fruit. (The
chapter is aptly known as Perek Ha-ro'eh). It would be natural to view the
birkot hashachar in the same light. In fact, the Rambam (and others) rules
that these blessings must be recited only immediately after experiencing
the particular phenomenon which triggers them according to the list. This
position has two ramifications for practical halakha. First, one who has
not experienced the phenomenon -- for instance, one who has not heard
the crow of the rooster -- does not recite a blessing at all. Secondly,
the blessing should be recited immediately, more or less, after the
experience, and not as a bunch when one begins to pray (Hilkhot Tefilla
7:4-9). The Meiri and other Rishonim disagree, stating that the blessings
are not responses to specific experiences, but were enacted in response
to "the way of the world" (Meiri, Berakhot 60b). The Rama codifies the
latter opinion, stating that "the blessing is not on his experience;
rather we bless God who satisfies the necessities of the world. That is
the custom and one should not deviate" (Orach Chayyim 46:8).

The Rambam's position
""" """""""" """"""""

On first glance, the Rambam seems to be treating birkot ha-shachar as
belonging to the general class of birkot ha-re'iya, blessings recited
in response to special occurrences, places, sights or other phenomenon.
In fact, these blessings are the predominant concern of Perek Ha-ro'eh.
If birkot ha-shachar are indeed considered birkot ha-re'iya, they are
not actually part of the daily prayer, even though in the natural course
of things they are engendered every morning. In principle, the only
difference between ha-noten la-sechvi vina and oseh ma'aseh bereishit
(Who makes the works of Creation -- recited upon witnessing lightning)
is that the rooster crows every morning whereas lightning is relatively
infrequent. In halakhic terms, the cause (mechayev) of the obligation in
the Rambam's opinion is the occurrence, the event. The Meiri's opinion,
on the other hand, implies that the day is the mechayev. A new day
obligates one to recite a series of blessings, and accordingly we would
be justified to view the birkot ha-shachar as the beginning of the daily
prayer, or more properly as the beginning of the daily "order of prayer"
-- in other words, of the siddur.

I think, however, that this misrepresents the opinion of the Rambam. It is
true that the Rambam rules that a blessing cannot be recited unless there
is a specific event that triggers it. But the context of these blessings
is essentially different than that of the usual birkot ha-re'iya.

Firstly, consider the Rambam's system of classification. There is
a separate section of the Rambam's Mishneh Torah entitled "Hilkhot
Berakhot," in which the Rambam not only codifies general laws of
blessings, but also lists the blessings that are recited over events.
After detailing the laws of birkat ha-mazon, the Rambam begins the tenth
chapter of Hilkhot Berakhot by stating:

    The Sages enacted many other blessings and recitations... as praise
    and thanksgiving to God... and these are they: One who builds a new
    house or buys new utensils... says "Blessed are You... who has given
    us life and sustained us [she-hecheyanu ve-kiyemanu]... One who sees
    his friend after thirty days says "Who has given us life...," and if
    [he sees his friend] after twelve months he says "Blessed are You,
    God, who revives the dead." One who hears good tidings says, "Blessed
    are You... who is good and does good." If he heard bad tidings,
    he says, "Blessed is the true judge." (Hilkhot Berakhot 10:1-3)

This continues for twenty-six sections, concluding:

    The principle of the matter is: One should always beseech concerning
    the future and plead for mercy, and one should give thanks for the
    past, and thank and praise as well as he can; and the more one thanks
    God and praises him constantly, the more praiseworthy it is.

The Rambam here lists dozens of blessings, clearly establishing the
character and tone of Hilkhot Berakhot. Hilkhot Tefilla, on the other
hand, deals not with blessings, but with prayer. By creating two separate
sections of halakhot, the Rambam clearly distinguishes between prayer
and general blessings. Nonetheless, the blessings of birkot ha-shachar
are found in Hilkhot Tefilla and not in Hilkhot Berakhot. This indicates
that despite the connection to specific events, these blessings are part
of the daily prayer and not merely a reaction to an event.

Secondly, the Rambam makes this point explicitly. Chapter 7 in Hilkhot
Tefilla, which lists these blessings, comes after an extensive discussion
of the daily recitation of the Amida, and begins: "When the Sages
enacted the recitation of these prayers [shacharit, mincha and arvit],
they enacted other blessings to be recited every day, and these are
they..." The Rambam then proceeds to list the birkot ha-shachar, quoting
Berakhot 60b. These blessings are an extension of the enactment to pray
three times daily and basically part of the same process. Furthermore,
the blessings were intended to be recited daily, "every day." It is
clear that the Rambam views the morning blessings as part and parcel
of the obligation to pray, and not as part of the obligation to "give
thanks for the past, and thank and praise as well as he can."

This should be obvious from the context of these blessings as well. The
regular birkot ha-re'iya are responses to unusual -- even extraordinary
-- events which impinge on our daily routine, and therefore require
a special response. Overwhelming natural events, special good news,
once-a-year occasions -- all these require one to give expression to his
response whereby he recognizes the presence of God. It is not surprising
that the halakha generally limits the frequency of these blessings. The
blessing on viewing the "great sea," for instance, is not recited if one
has already recited the blessing in the last thirty days. The reason is
that these blessings are responses, and they are based on the natural
presence of the emotional response in the observer. The events of birkot
ha-shachar -- when one opens one's eyes, when one stretches one's limbs,
when one gets dressed, when one covers one's head, when one stands,
when one tightens one's belt, etc., are all, practically speaking,
trivial. It is not just that they are not unusual; they are the epitome of
the usual. These are simply the daily occurrences that attend the process
of waking up. What is more, they are trivial in another sense. The Sages
have broken down the process of beginning the day into minute steps,
ones which would normally not demand individual attention. Becoming
aware of the light (hearing the rooster), opening one's eyes, placing
one's feet on the ground, standing up, dressing, covering one's head,
tightening one's belt -- these are treated as separate events eliciting
separate responses in the form of separate blessings. By the standards
of hilkhot berakhot, none of these events would engender a blessing --
and surely not all them one after another.

It seems clear that according to the Rambam, the genuine focus of birkot
ha-shachar is that they should be recited daily, in exactly the same
way that one should recite the Amida daily. The need for specific events
mandated by the Rambam should not be understood as the mechayev of the
blessings, but merely as a condition. It is understood that each of these
events will occur in a normal day and the blessings refers to them. If
the event is absent, then the blessing cannot be recited, since it is
then meaningless. But the point is not to RESPOND to a particular event,
but to begin the day with a proper recognition of one's place in the
world and the contingencies of human existence. Hence, the aim of the
Sages is not to tell us how to respond to an imposing human experience,
but on the contrary, to draw our attention to an otherwise overlooked
aspect of human existence. The actual event is important because the
goal of these blessings is to force us to perceive those events, to
pay attention to the minutiae of what it means to begin to be alive
and active in the morning. We are not responding to the event; we are
focusing on the event and placing it in the context of the creative power
of God. The Sages broke down the process of getting up into tiny steps
to force us to realize how amazing that process is, and how much God is
doing to allow each of us to begin the day. The extreme and exaggerated
division of the process of waking up is exactly the point here -- the
Sages are forcing us to pay minute attention to what otherwise we would
totally ignore. In fact, for most of these steps, we would not notice
them precisely because we would be barely awake when they took place.

The accepted halakha today is to recite birkot ha-shachar in series,
often only after beginning the tefilla in the synagogue. Nonetheless,
I think the point of the Rambam is correct even according to our custom.
The truth is that the Rambam follows the exact formulation of the Gemara
-- "When one hears the sound of the rooster, one says... When one opens
one's eyes, one says..." The ruling of the Meiri and others, which is
the basis for the modern custom, does not divorce the blessing from the
event, but only allows one to relate to the general "way of the world"
rather than to a specific EXPERIENCED event. This is possible because
the blessing is not a response to the event (which would require personal
experience of the event), but a directed instruction on how to evaluate
the event, and ultimately, how to evaluate and experience being awake,
and by extension, alive.

The custom of reciting birkot ha-shachar together, as a series, in the
synagogue, does have, in my opinion, a negative effect, precisely because
it inhibits the attention to the INDIVIDUAL step of each blessing. All
I can suggest in response is that one should recite the blessings
slowly, savoring the wonder of each individual step in the process of
becoming active in the world, which was the supreme goal of the Sages
in instituting these blessings.


The basic idea of these blessings is that the Sages viewed the rather
mundane passage from sleep to wakefulness as being a nearly miraculous
transformation from inertia to activity; it is basically a passage from
death to life. No one would naturally pay attention to that transformation
because it occurs daily and, more importantly, because it is initial to
awareness and not part of it. The initial state before the process --
sleep -- is unconscious, and one does not begin to pay attention to the
conditions of life until one is awake and active. The Sages are trying
to draw us back in time, to force us to pay attention to the very first
stirrings of a new day and a new life, and to do that in near-slow motion,
one step at a time. For indeed, no experience throughout the day can
compare to the experience of being able to start a day, to rise and
become an active participant in living.[1]


[1] The three blessings of she-lo asani goy, she-lo asani eved and
she-lo asani isha, do fit in to the framework that we have established,
and in fact are not found in Berakhot. The Rambam lists them separately
as well. This requires a separate discussion.


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